KAMLESH KUMAR @ K.K. Vs. STATE

JUDGEMENT

(1.) Kamlesh Kumar @ K.K. (A-1), Sher Singh @ Lal (A-2), Sudesh @ Tyson (A-3), Raj Kumar (A-4) & Sarfraz (A-5) were arrested in case FIR No. 278/98 for committing offences punishable under Sections 458/392/394/397/34 IPC and 25 Arms Act registered at PS D.B.G. Road and sent for trial on the allegations that on the night intervening 13/14.09.1998 at about 02.45 A.M. at House No. L-19A, Loco Shed Railway Colony, Kishan Ganj, Delhi, they while armed with deadly weapons committed dacoity and robbed Rs. 45,000/-, 1 kg silver ornaments, one gold ring and other gold ornaments after inflicting injuries to Vijay Shankar and his nephew Babloo. Police machinery was set in motion when Daily Diary (DD) No.8 was recorded at Police Post Shidi Pura on getting information from duty constable about admission of Vijay Shankar and Babloo in injured condition in Hindu Rao Hospital. The investigation was assigned to HC Rakesh Kumar who with Const. Sohan Lal went to the hospital and collected their MLCs. After recording Vijay Shankar's statement (Ex.PW-1/A), he lodged First Information Report by making endorsement (Ex.PW-11/A) thereon. SI Ram Chander took over the investigation of the case. The crime team inspected the spot and took photographs. Soon thereafter, the Investigating Officer received secret information that the culprits were hiding on a roof of a double storey building at Railway colony, Kishan Ganj near Shiv Mandir. Acting on the secret information, SI Ram Chander apprehended A-5 from the roof of House No. L-126, Loco Shed, Railway Colony, Kishan Ganj, Delhi and recovered a bag which contained a desi katta, dagger, currency notes, articles of gold and silver. Pursuant to A-5's disclosure statement, A-1 to A-4 were apprehended and arrested. Statements of the witnesses conversant with the facts were recorded. After completion of investigation, a charge-sheet was filed against them for committing the aforesaid offences in the Court. They all were duly charged and brought to trial. The prosecution examined sixteen witnesses to prove its case. In their 313 statements, the appellants pleaded false implication and refuted the prosecution's allegations of their complicity in the crime. DW-1 (Const. Dev Narain) and DW-2 (Shiv Shankar) were examined in defence. The trial resulted in conviction of all under Section 397/458/34 IPC vide judgment dated 20.03.2003. Various prison terms with fine were awarded by an order dated 25.03.2003. Being aggrieved, they have preferred the appeals.

(2.) I have heard learned counsel for the parties and have examined the record. The appellants have not seriously challenged the incident in which complainant Vijay Shankar and his nephew Babloo were assaulted and deprived of their valuable articles but have denied their complicity in the crime. The complainant Vijay Shankar had no ulterior motive to fake the incident of robbery in which not only he and his nephew Babloo were injured but they were robbed of their cash and jewellery articles. The incident was reported to the police promptly without any delay and the First Information Report was lodged at 05.30 A.M. Vijay Shankar and Babloo were taken to Hindu Rao Hospital and were medically examined. PW-8 (Jai Bhagwan), Medical Record Technician proved MLCs (Ex.PW-8/A and Ex.PW-8/B) prepared by Dr.Dinesh Kumar Sharma. Daily Diary (DD) No. 8 was recorded at Police Post Sidhi Pura on getting information about their admission in the hospital from the duty constable posted there. In the complaint (Ex.PW- 1/A), Vijay Shankar gave graphic detail of the occurrence without naming the assailants. Neither the complainant nor any other inmate in the house suspected the involvement of any acquaintance in the occurrence. Statements of Vijay Shankar, Deepa and Babloo were recorded prior to the apprehension of the culprits but none of them named the culprits as suspect. They also did not describe broad physical features/description of the assailants. The complainant claimed to identify culprits but did not disclose as to how, he would be capable to recognise them in the absence of any specific features observed by him. The police on the basis of secret information received at about 07.00 / 07.30 A.M. allegedly apprehended and arrested A-5 and recovered the robbed articles from his possession. Subsequently, at his behest, A-1 to A-4 were taken into custody.

(3.) Indisputably, A-1 is the close relation of the complainant being the brother-in-law (Dever) of his daughter. It has come on record that there was a marriage proposal of Pinki (daughter of complainant's brother Suresh Chand) with Mithlesh Kumar, A-1's brother. It is not denied that on the day of marriage Mithlesh Kumar ran away and the marriage could not be celebrated. Pinki was married to Upender, younger brother of the complainant's Behnoi. Apparently, A-1 was acquainted with the complainant and his family members prior to the incident. The complainant though narrated the incident minutely in the statement (Ex.PW-1/A) and assigned specific role to the each assailant but omitted to name A-1 to be one of the assailants. The complainant had direct confrontation with the culprits for sufficient duration and had sufficient and clear opportunity to see them, however, A-1 was not at all named as suspect in the First Information Report. It has come on record that A-2 to A-5 were also residing in the said locality / vicinity since long. Even none of them was suspected to be the assailant. PW-2 (Babloo) in his Court statement categorically declined to identify and recognise any of the appellants as assailants. He claimed that his uncle Vijay Shankar knew three intruders but he was not aware of their identity. Strange enough, Addl. Public Prosecutor did not opt to cross-examine the witness after seeking Court's permission as he resiled from the previous statement made to the police under Section 161 Cr.P.C. during investigation. PW-2 (Babloo), complainant's nephew had no extraneous reasons to demolish the prosecution case. PW-7 (Deepa), complainant's wife gave a wavering statement regarding identification of the appellants in the Court. She deposed that on the night of occurrence, she had identified Kamlesh (A-1) as one of the assailants being their relative. About other assailants, at first instance, she expressed inability to recognise them. She admitted that when the police had shown all the accused persons she was able to identify only A-1. She identified A-2 to A-5 in the Court simply because the police had arrested them in this case and she was satisfied that they must have been rightly apprehended by the police. She again reiterated that she was not sure regarding identification of A-2 to A-5. She did not offer any explanation as to why in her statement recorded on the day of incident under Section 161 Cr.P.C. she did not name A-1 though he was known to her being close relative. A-1 was not apprehended at the instance of this witness. In the cross-examination, she disclosed that A-1 was not named due to fear. Since the police machinery had come into motion soon after the occurrence, there was no occasion for the witness to be under fear not to name the assailants particularly A-1 in her statement. PW-1 is the complainant who identified A-1 to A-5 as assailants in his Court statement. He admitted that on the night of occurrence he could identify only A-1 out of the five assailants. The identity of A-2 to A-5 was not known to him. In the cross-examination, he admitted that A-1 and A-2 were known to him before the incident. He further admitted that his brother Maharaj Pujari was a tenant under A-3's father. However, he did not submit any plausible reason for not naming them in the statement (Ex.PW-1/A). He also did not give description of the assailants for identification purpose. He further admitted that A-1, A-2 and A-5 lived in the same locality i.e. Railway Colony and he had seen them by face before the occurrence. He further admitted that none of the assailants was in muffled face at the time of incident. Thus, there was no occasion for the complainant to omit the name of the assailants known to him prior to the occurrence in the First Information Report.