Mangal Sain @ Monu vs State
2014 Latest Caselaw 1021 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        RESERVED ON : February 20, 2014
                                        DECIDED ON : February 25, 2014

+      CRL.A. 216/2012 & CRL.M.B. 1879/2013
       MANGAL SAIN @ MONU                                     ..... Appellant
                             Through :       Mr.Sanjeev Kumar, Advocate.
                             Versus
       STATE                                                  ..... Respondent
                             Through :       Mr.Lovkesh Sawhney, APP.


+      CRL.A. 254/2012
       MONU                                                   ..... Appellant
                             Through :       Mr.Vivek Bansal, Advocate.
                             Versus
       THE STATE (NCT OF DELHI)                               ..... Respondent
                             Through :       Mr.Lovkesh Sawhney, APP.
AND
+      CRL.A. 217/2012
       TINKU                                                  ..... Appellant
                             Through :       Mr.Sanjeev Kumar, Advocate.
                             Versus
       STATE                                                  ..... Respondent
                             Through :       Mr.Lovkesh Sawhney, APP.



Crl.A.No.216/2012 & connected appeals                          Page 1 of 9
 CORAM:
MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Mangal Sain @ Monu (A-1), Monu (A-2), Tinku (A-3) and

Krishan @ Changa (A-4) were arrested in case FIR No.120/2008

registered at Police Station Gokal Puri and sent for trial alleging that on

the night intervening 12/13.05.2008 at about 12.30 a.m. at fly-over near

Kanpur, Delhi, Goods Carrier Ltd., Gokul Puri, they in furtherance of

common intention robbed Ripunjay Kumar Dubey of `4,500, credit card,

driving licence, mobile phone make Samsung having connection

No.9958394446 at knife point and inflicted injuries to him. ASI Ramvir

(PW-7), PS Nand Nagri, recorded complainant's statement (Ex.PW-2/A)

on 13.05.2008. When he went to the place of occurrence, it transpired

that the area was within jurisdiction of police station Gokul Puri. They all

went to police station Gokul Puri and First Information Report was lodged

there. Further case of the prosecution is that on 16.05.2008, on the basis

of secret information, all the accused persons were apprehended at 04.20

p.m. when they were travelling in a TSR bearing registration

No.DL1RK5343. Some recoveries were effected from their possession.

Statements of witnesses conversant with the facts were recorded. The

complainant was able to identify A-1 to A-3 in Test Identification

Proceedings. After completion of investigation, a charge-sheet was filed

against the accused persons; they were duly charged and brought to trial.

The prosecution examined 13 witnesses to establish their guilt. In 313

statements, the accused persons denied their involvement in the crime and

pleaded false implication. The trial resulted in their conviction under

Sections 392/394/34 IPC. A-4 was acquitted of all the charges. A-1 was,

in addition, held guilty under Section 411 IPC. It is relevant to note that

the State did not challenge acquittal of A-4.

2. I have heard the learned counsel for the parties and have

examined the record. Conviction of the appellants is based upon the sole

testimony of the complainant. The occurrence took place in the night

intervening 12/13.05.2008 at about 12.30 a.m. First Information Report

was lodged on 14.05.2008. Delay in lodging the FIR has not been

explained with cogent reasons. It has come on record that earlier

statement of the complainant (Ex.PW-2/A) was recorded by ASI Ramvir

Singh (PW-7). He did not register any case. When he went to the spot, he

came to know that the area where the occurrence took place was within

the jurisdiction of Police Station, Gokul Puri. Again, the FIR was not

lodged then and there. Information was conveyed to PCR at 100 soon

after the occurrence, however, daily diary recorded in this regard has not

been placed on record. No PCR official to whom the information was

conveyed and who went to the spot was examined. The complainant did

not lodge any report from the spot. He first went to his house and then

with his brother came on a motor-cycle and set the police machinery in

motion. There is inconsistency between the statements of the witnesses as

to where the statement of the complainant was recorded i.e. whether at the

police station or at the spot. The inconsistency has not been explained.

3. In the complaint (Ex.PW-2/A), the complainant disclosed

that when at about 12.30 (night), he reached near Bhajanpura in the auto

hired by him, its driver made three individuals to sit in the TSR. After

some distance, two assailants sitting adjacent to him put a rope around his

neck and the third individual hit him with a heavy object on head. The

assailant sitting along with the driver stabbed him as a result of which he

sustained injuries on his left hand. Thereafter, he was robbed of cash and

other articles detailed therein. In the complainant, the victim did not give

description of the assailants; no broad features, ages or other particulars

were described. The complainant even did not claim if he was able to

identify the assailants. Registration number of TSR or its description was

not mentioned in the complaint. It was also not disclosed as to which of

the assailants had robbed the articles. While appearing as PW-2 in

examination-in-chief, the victim deposed that when the TSR reached

Bhajanpura, the TSR driver made three more persons to sit in it. When

the TSR was near Loni Flyover, A-1 sitting besides him held his neck and

pushed him down inside the TSR. A-3 and A-4 sitting on the side put a

rope around his neck. The boy sitting besides him tried to stab him with a

knife and it resulted in scratch on his palm. The assailant sitting besides

the driver on the front seat hit him with some hard object on head.

Thereafter, the purse containing driving licence, credit card, mobile phone

and `4,500 were robbed. He was pushed out of the TSR and the assailants

fled the spot. He categorically stated that he was unable to identify the

TSR driver as he had seen him from back. Learned Additional Public

Prosecutor cross-examined the witness after seeking court's permission.

He admitted that in his supplementary statement recorded on 22.05.2008,

he had stated that A-1 sitting on the left side in the TSR and A-4 sitting on

the right side had pulled his neck with the rope. He admitted that in the

supplementary statement, he had disclosed that A-2 sitting on the left side

of the driver seat had attacked him with a knife. He further admitted that

A-3 was TSR driver who had made his associates to sit in the TSR.

4. On scrutinizing the testimony of the witness, it reveals that he

has given entirely inconsistent and conflicting statement and has made

vital improvements. The witness was unable to narrate as to how many

assailants were there in the TSR beside him and the driver. He was also

unable to disclose the seating pattern of the assailants in the TSR. The

complainant could not ascribe specific and definite role to each of the

assailants. He did not disclose as to which of the assailants had inflicted

injuries to him and with what weapon. He was not sure as to which of the

assailants had taken out his articles. The prosecution alleged that A-3 was

the TSR driver. The complainant in his deposition stated that he was

unable to recognize the TSR driver as he had seen his back only. In his

testimony before the court, he gave a conflicting version that A-3 and A-4

were sitting on the rear seat and they put rope around his neck. A-4 to

whom he had attributed similar role as that of A-3 was acquitted by the

trial court. The complainant was unable to recognize him (A-4) in test

identification proceedings. However, he identified him in the court as the

assailant who along with A-3 had put rope around his neck. The

complainant admitted that he was unable to identify the assailant who had

stabbed him with a knife. When cross-examined by learned Additional

Public Prosecutor, he admitted that in the supplementary statement dated

22.05.2008 he had told that A-2 sitting on the left side of the driver seat

had attacked him with a knife. As per his testimony, there were five

assailants, three sitting on the rear seat with him and one sitting along with

the driver in the front. The complainant was not certain as to who had hit

him by a hard object on his head. He merely stated that the person who

was sitting besides the driver on the front seat had hit him on his head. It

is at variance with the supplementary statement recorded on 22.05.2008.

In nutshell, the complainant has given entirely conflicting statement as to

the number of assailants, their place of seating in the TSR, weapons in

their possession and the role played by each of them in the incident.

Since the occurrence had taken place at night time and the complainant

had not noted the broad features of the assailants, it was highly

improbable for him to identify and recognize them in court and attribute

definite and certain role to them.

5. PW-1 (Irfan) who purchased the TSR in question from one

Rajinder Kumar and got it on superdari vide superdarinama (Ex.PW-1/A),

did not support the prosecution and claimed that at the time of incident,

the vehicle was at Kalu's shop for repairing. He was cross-examined by

learned Additional Public Prosecutor but it yielded no fruitful result to

establish that A-3 was in possession of TSR at the time of occurrence.

The investigating officer did not collect any evidence to find out if A-3

used to take the vehicle on hire from its registered owner or whether the

vehicle was in his possession at the relevant time. The police of police

station Gokul Puri was not aware about the suspects. In the absence of any

clue about their identity, strange enough, all were apprehended and

arrested on 16.05.2008 in the same TSR within the jurisdiction of police

station Gokul Puri. No independent public witness including the victim

was associated at the time of effecting recoveries from them. The

recovery of cash as part of stolen amount was not believed by the trial

court. No evidence was collected to show that this mobile allegedly

robbed was used by A-1 after the crime. No call details of this mobile

phone have been proved on record. Mere identification of A-1 to A-3 in

test identification proceedings is not enough to base conviction

particularly when the assailants have alleged that soon after their

apprehension, they were shown to the prosecution witnesses. The

prosecution was unable to produce the crime weapon with which the

injuries were inflicted to the complainant.

6. In view of major discrepancies and conflicting statements,

the conviction of the appellants on the sole testimony of the complainant,

cannot be sustained. They deserve benefit of doubt. The appeals are

accepted and their conviction and sentence are set aside. The appellants be

set at liberty forthwith, if not required to be detained in any other case.

7. Trial Court record along with a copy of this order be sent

back forthwith. A copy of the order be sent to Jail Superintendent, Tihar

Jail for intimation. CRL.M.B.No.1879/2013 stands disposed of.

(S.P.GARG) JUDGE FEBRUARY 25, 2014 sa