MANGAL SAIN @ MONU Vs. STATE

JUDGEMENT

(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 Rs.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 Crl.A.No.216/2012 & connected appeals Page 2 of 9 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.) 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.