GAURAV @ VICKY Vs. STATE

JUDGEMENT

(1.) Gaurav @ Vicky (A-1), Pankaj Kumar Verma (A-2), Rahul (A-3) and Dilpal (facing trial before Juvenile Justice Board) were arrested in case FIR No.217/2003 registered at Police Station Mandawali and sent for trial on the allegations that on 14.06.2003 at about 02.00 P.M. in front of CBSE building, Preet Vihar, they abducted Yogesh Kumar and Javed Ahmed and took them to Main Road near Hasan Pur Depot. At about 2.30 P.M. they robbed Rs. 60/- and mobile phone make Nokia by putting them in fear of instant death and inflicted injury with stone on Yogesh's head. The police machinery was set in motion when Daily Diary (DD) No.13A (Ex.PW-4/A) was recorded at police station Mandawali at 15.00 hours on getting information from Head Constable Jaibir about apprehension of four assailants and recovery of mobile phone and Rs. 60/- from their possession. The investigation was assigned to ASI Jahir Ahmed who with Ct.Geetesh went to the spot. HC Jaibir handed over custody of all the assailants along with case property to him. During the course of investigation, the investigation officer lodged First Information Report (FIR No.217/2003) after recording victim Yogesh Kumar's statement (Ex.PW-2/A) under Sections 394/411/34 IPC. By an order dated 28.04.2007 Dilpal's age was ascertained 16 years on the date of incidence and he was sent to Juvenile Justice Board for trial. Vide order dated 21.11.2007, A-1 to A-3 were charged for committing offences under Section 367/341/392/394 IPC. A-1 was charged in addition under Section 397 IPC. To substantiate the charges, the prosecution examined 7 witnesses. In their 313 statements, A-1 to A-3 pleaded false implication. They, however, did not prefer to lead any evidence in defence. The Trial Court by the impugned judgment dated 13.04.2009 in Sessions Case No.08/2007 convicted the appellants for the offences under Section 367/341/392/394/34 IPC and acquitted A-1 for offence under Section 397 IPC. By an order dated 27.04.2009, they were sentenced to undergo RI for three years with fine Rs. 3,000/- each under Section 367 IPC; RI for four years with fine Rs. 4,000/- each under Section 392 IPC; and RI for five years with fine Rs. 5,000/- each under Section 394 IPC. Being aggrieved, the appellants have preferred the appeals.

(2.) I have heard the learned Additional Public Prosecutor and counsel for the appellants and have examined the record. Yogesh Kumar in his statement (Ex.PW-2/A) disclosed to the police that on 14.06.2003 he and his friend Javed had gone to CBSE office to fill up forms for re- checking of answer sheets. The office was closed due to second Saturday. At that juncture, three boys came there and one of them suspected them to have beaten his brother. On their denial to have done so, they asked to accompany them for identification from their brother. Thereafter, they were taken to Bus Stand, Karkari Mode where their friend met them and confirmed that they were the individual to have given beatings to their brother. The assailants forced them to accompany them in a bus. After travelling some distance in the bus, they were made to get down near Ganda Nala, Hasanpur at Bus Stand, Road No.57. They took them to a deserted place and robbed cash and mobile phone in their possession and he was hit with a stone on his head by Gaurav @ Vicky (A-1). The complainant further informed that they were threatened not to disclose the incident. At about 02.40 P.M. they found a PCR Gypsy at a nearby place and informed them about the occurrence. The PCR officials took them in the PCR van and were able to apprehend all the four assailants at some distance. The mobile phone and cash Rs. 60/- were recovered from their possession.

(3.) In his statement (Ex.PW-2/A), Yogesh Kumar gave graphic detail as to how and under what circumstances they were forced to accompany by the assailants. He attributed specific role to each of the assailants by name. The name of the assailants along with their complete addresses find mention in the complaint (Ex.PW-2/A). DD No.13A (Ex.PW-4/A) was recorded at 03.00 P.M. where there was information about the apprehension of four assailants with recovery of Rs. 60/- and mobile phone. The prosecution did not examine any PCR official who had accompanied the victims in search of the assailants and were able to apprehend them. There is no explanation as to why complainant Yogesh Kumar who had sustained injuries with a stone on head was not taken immediately to hospital for treatment. MLC (Ex.PW-5/A) reveals that Yogesh Kumar was taken to LBS hospital at 06.00 P.M. It contains reference of DD No.13A and not FIR number. The delay in getting Yogesh Kumar examined medically has not been explained. Apparently, the investigating officer has already lodged First Information Report by sending rukka at 04.30 P.M. It is unclear why MLC (Ex.PW-5/A) does not contain FIR number and creates doubt if the FIR was ante-timed. The injury i.e. swelling (1 cm X 2) over left occipital region was found on the victim which was simple in nature caused by a blunt object. It rules out use of any 'deadly' weapon. The stone/brick allegedly used to inflict injury was not seized. The bloodstained clothes of the victim were also not taken into possession.