MANISH Vs. RAM SARUP

JUDGEMENT

(1.) MANISH (A -1), Ram Sarup (A -2), Manoj (A -3) and Pintu @ Parvinder were arrested in case FIR No.19/2001 registered at Police Station Subzimandi and sent for trial for committing offences punishable under Sections 120 -B/392/394/397 IPC. The prosecution case in the charge -sheet was that on 18.01.2001 Raghubir Singh and Ravinder had gone to deposit cash of their employer Om Prakash doing business in the name and style of M/s Kanshi Ram Pawan Kumar, at 181 -182, Azad Market, Delhi in Oriental Bank of Commerce on scooter No.DL -4SS - 1731. They had bags containing cash Rs.3,28,000/ - and Rs.2.5 lacs each. When they went near Oriental Bank of Commerce, Roshanara Road, at about 11.00 a.m. two boys armed with knife and katta snatched the bag containing Rs.3,28,000/ - from Raghubir Singh after inflicting injuries on his hands and legs. On raising hue and cry, the assailants fled the spot and escaped on a scooter standing nearby. The police machinery was set in motion when Daily Diary (DD) No.5A was recorded at 11.20 A.M. at Police Station Subzimandi on getting information from ASI Vijender, PCR that a dacoity had taken place near Oriental Bank of Commerce, Palace Cinema. The investigation was assigned to SI Gurusewak Singh (PW -25) who with Addl.SHO and Constables Satpal and Govind Ram went to the spot and came to know that injured had already been taken to hospital by PCR officials. He recorded Raghubir Singh's statement (Ex.PW -14/A) at Sir Ganga Ram Hospital and lodged First Information Report after making endorsement (Ex.PW -25/B) thereon. Statements of witnesses conversant with facts were recorded. On 28.01.2001 scooter bearing Registration No.DL -2S -C -9515 used in the crime was recovered from a gali in Aryapura, Subzimandi lying unclaimed and seized vide seizure memo (Ex.PW25/F). On 10.04.2001 Manoj (A -3) was arrested vide DD No.88B under Section 41 -1 (a) Cr.P.C. registered at PS Gokulpuri and Rs.5,000/ - were recovered from his house. On 09.04.2001 Manish (A -1) was arrested in case FIR No.139/2001 under Section 25 Arms Act PS Gokulpuri and pursuant to his disclosure statement, Rs.10,000/ - were recovered from his house. On 18.04.2001 Pintu was arrested from near Ghantaghar, Subzimandi while sitting on a motor -cycle bearing registration No.3 -SL -5260. On his instance A -2 was arrested on 19.04.2001. On 20.04.2001, in pursuance of disclosure statement made by him, Rs.10,000/ - were recovered from his residence. A -1, A -3 and Pintu declined to participate in the TIP proceedings. After completion of investigation, a charge -sheet was filed against all of them in the court for committing offences mentioned previously. They all were duly charged and brought to trial. The prosecution examined 40 witnesses to substantiate the charges. In their 313 statements, the appellants denied their complicity in the offences and pleaded false implication. They examined Durgesh (Manish's mother) and Phool Singh (Manoj's father) in defence. After appreciating the evidence and considering the rival contentions of the parties, the Trial Court by the impugned judgment dated 04.02.2004 in Sessions Case No.53/2001 held A -1, A -3 and Pintu perpetrators of the crime under Sections 120 -B, Section 392 read with Section 120B IPC. A -1 was held guilty for committing offence punishable under Section 394 and 397 IPC. Ram Sarup was acquitted of the charges of criminal conspiracy to commit robbery but was convicted under Section 411 IPC. A -1, A -3 and Pintu were awarded RI for two years under Section 120 -B IPC and RI for four years each with fine Rs.10,000/ - each under Section 392/34 IPC. A -1 was further sentenced to undergo RI for seven years with fine Rs.10,000/ - for the offence under Section 394 IPC and RI for seven years for the offence under Section 397 IPC. A -2 was awarded RI for two years with fine Rs.10,000/ -. All the substantive sentences were to operate concurrently. Being aggrieved, A -1 to A -3 have challenged their conviction. It appears that Pintu has not preferred any appeal.

(2.) I have heard the learned counsel for the parties and have examined the record. There is no challenge to the incident of robbery that took place on 18.01.2001 near Oriental Bank of Commerce in which Raghubir Singh was robbed of Rs.3.28 lacs by the assailants using deadly weapons. PW -2 (Om Parkash) proved that on 18.01.2001 his employees Raghubir Singh and Ravinder had gone to deposit the cash in Oriental Bank at about 11.00 A.M. After about 20 minutes, he got a telephone call from the bank about the robbery whereby the employees were deprived/looted of Rs.3.28 lacs. He further disclosed that Ram Sarup was their employee in the shop prior to the incident and used to go to the bank to deposit the cash. PW -3 (Ravinder Kumar) and PW -14 (Raghubir Singh) have also testified on similar lines and there are no good reasons to disbelieve them. They were not imagined to fake the incident of robbery. The crucial question to be ascertained is as to who were the perpetrators of the crime. The prosecution implicated A -1, A -3 and Pintu to be the assailants who had committed the broad -day light robbery after getting feedback from A -2. There is complete denial by the appellants of their involvement in the crime. Daily Dairy (DD) No.5A was recorded at 11.20 A.M. on getting information from ASI Vijender of PCR that a decoity had taken place near Oriental Bank of Commerce. ASI Vijender, who admitted the injured Raghubir Singh in the hospital was not examined. This DD No.5A does not contain the number of the assailants or the vehicle number in which the assailants had arrived at the spot. SI Gurusewak Singh recorded Raghubir Singh' statement (Ex.PW -14/A) in which he gave graphic detail as to how and in what manner he was robbed by two boys armed with knife and katta. When he did not part with the bag containing cash, he was injured and the assailants were successful to flee the spot with the bag. The complainant (Raghubir Singh) did not disclose the detailed description of the assailants. He also did not disclose if the assailants had fled the crime spot on a two wheeler scooter standing nearby. Apparently, the complainant did not disclose the scooter number on which the assailants had arrived at the spot and fled the scene. In his court statement as PW -14, Raghubir Singh did not opt to support the prosecution and exonerated the accused persons by declining to identify any of them. He was categorical to state that he was not in a position to identify the assailants present in the court. Additional Public Prosecutor cross -examined him after seeking court's permission. However, nothing material could be elicited to ascertain the identity of the assailants. The witness volunteered to add that his attention was towards the brief -case and he was unable to see the faces of the assailants. He denied the suggestion that on 20.04.2001, he had identified A -1 before the police. PW -3 (Ravinder Kumar) also turned hostile and did not identify and recognize the assailants. He was specific to depose that the four accused persons present in the court were not the assailants. Cross -examination by Additional Public Prosecutor did not yield any positive evidence. He rather deposed that in April, 2001 the police had shown him two boys in the police station and he had informed them that those boys Manish (A -1) and Pintu were not the assailants. Apparently, both PW -3 (Ravinder Kumar) and PW -14 (Raghubir Singh) who had direct confrontation with the assailants for long time during day -time and had enough and clear opportunity to observe their features did not opt to support the prosecution and exonerated the accused persons facing trial. No ulterior motive was assigned to these witnesses for deviating from their previous statements recorded during investigation. None of them was able to note down the scooter number on which the assailants had fled the spot. They also did not subscribe to the prosecution story that the robbers were chased by PW -12 (HC Darshan Kumar) or that PW -6 (M.L.Nanda) had confrontation with them. PW -7 (Anurag Nanda) also preferred to resile from his previous statement (Ex.PW -7/A) and declined to identify the assailants stating that he was unable to see their faces. He denied the contents of statement (Ex.PW -7/A) to have been made by him to the police.

(3.) THE next limb of the argument to connect the accused persons with the crime is recovery of the robbed cash at their instance from their houses. It reveals that out of Rs.3.28 lacs robbed only a paltry sum of Rs.25,000/ - in all was recovered from the residences of A -1 to A -3 after a gap of about more than three months of the incident. It is highly unbelievable that these accused persons would retain robbed cash intact with their bank slips on it and would not change it. No independent public witness was associated at the time of recovery of cash. Neither the victims nor the owner was joined at the time of recovery. Moreover, money allegedly recovered was not in the exclusive possession of accused persons. It is relevant to note that the original record was not traceable. The reconstructed record is incomplete and does not contain appellants' statements recorded under Section 313 and Statement of defence witnesses. In the absence of original documents on record and deficiencies in the record, it is difficult to appreciate the evidence of the witnesses minutely and the benefit must go to the accused persons.