RAJKUMAR @ BABLOO Vs. STATE

JUDGEMENT

(1.) Rajkumar @ Babloo (the appellant) challenges a judgment dated 20.11.2010 of learned Sessions Judge in Sessions Case No.51/2008 arising out of FIR No.11/2005 registered at Police Station Uttam Nagar by which he along with Malkiat Singh, Charan Singh and Nand Kishore @ Sanjay was convicted for committing offences punishable under Sections 394/395 read with Section 397 IPC. By an order dated 22.11.2010, he was sentenced to undergo RI for ten years with fine Rs. 5,000/- under Section 394 IPC and RI for ten years with fine Rs. 5,000/- under Section 395 read with Section 397 IPC.

(2.) Allegations against the appellant were that on 04.01.2005, he and his associates con-jointly committed dacoity at Pawan's house bearing No.168, Gali No.9, Laxmi Vihar, Mohan Garden, Uttam Nagar and robbed articles detailed in the FIR and Sunita's supplementary statement. Further allegations were that they also committed decoity in the House of Bhim Sain at E-65, Bhagwati Garden, Uttam Nagar in between 02.30 to 03.00 A.M. and robbed articles detailed in the statements of the victim and his family members. It is further alleged that the assailants were armed with deadly weapons and they used it to commit decoity and voluntarily caused injuries to Tek Chand, Bhagwan Devi, Bhim Sain, Rakesh Kumar, Pawan Kumar and Sunita. The police machinery came into motion when DD No.35-A (Ex.PW19/A) was recorded at Police Station Uttam Nagar on 04.01.2005 on getting information that the assailants had entered inside House No.168, Gali No.9, Laxmi Vihar, Mohan Garden, Uttam Nagar and had killed informant's husband. The investigation was assigned to SI Bhagwan Singh who with HC Davinder went to the spot. Another DD No.37-A (Ex.PW-10/A) was recorded at 04.20 A.M. on getting information that the assailants had entered in House No. E-65, Bhagwati Garden, Uttam Nagar and had robbed its inmates after beating them. The Investigating Officer lodged First Information Report after recording Pawan Kumar's statement (Ex.PW-1/A). During the course of investigation, the culprits were arrested and few robbed articles were recovered at their instance. Applications for TIP were moved and statements of the witnesses conversant with the facts were recorded. After completion of investigation, a charge-sheet was submitted in the court. The prosecution examined 24 witnesses to prove the charges. In his 313 statement, the appellant pleaded false implication. On appreciating the evidence and after considering the rival contentions of the parties, the Trial Court by the impugned judgment convicted the appellant for the offence mentioned previously and sentenced him accordingly. Being aggrieved, he has preferred the appeal. It is significant to note that Kalu, Raju and Pappu @ Chuha were also arrested during investigation, however, the eye-witnesses could not identify them in the Test Identification Proceedings and they were discharged.

(3.) Appellant's counsel urged that the Trial Court did not appreciate the evidence in its true and proper perspective. No incriminating article was recovered from appellant's possession. The prosecution witnesses have given contradictory version as to the number of assailants and the role played by them in the incident. PWs 3, 5 and 6 did not identify the appellant as one of the assailants who committed robbery/decoity at E-65, Bhagwati Garden, Uttam Nagar. The appellant was shown to the witnesses in the Police Station and for that reason he did not participate in the TIP proceedings. The prosecution witnesses have given divergent statements as to what cash and other articles were robbed. No independent public witness was associated at any stage of the investigation. Chance prints lifted from the spot did not match. Appellant's disclosure statement was not recorded and he was not named by co-accused persons in their disclosure statements. Learned Additional Public Prosecutor urged that there are no sound reasons to discard the testimony of injured witnesses who had no prior animosity with the appellant to falsely implicate him in the incident.