SRI RAM @ JAIRAM Vs. STATE (NCT OF DELHI)

JUDGEMENT

(1.) Vide impugned judgment dated July 07, 2015 Sri Ram @ Jairam has been convicted for the offence punishable under Section 392/34 IPC whereas Manoj Verma has been convicted for THE offence punishable under Section 411 IPC. The other accused arrested in the case, that is, Manoj @ Appu was acquitted and no appeal has been preferred by the State in this regard. Vide order on sentence dated July 09, 2015 Sri Ram @ Jairam has been awarded rigorous imprisonment for a period of four years and a fine of Rs.5,000/ - in default whereof to undergo simple imprisonment for a period of six months whereas Manoj Verma was directed to undergo rigorous imprisonment for a period of two years with a fine of Rs.5,000/ - in default whereof to undergo simple imprisonment for a period of six months.

(2.) Challenging the conviction learned counsel for Sriram contends that the appellant has been convicted solely on the testimony of the so called eye witnesses. There is no recovery whatsoever either from Sri Ram or at his instance. Co -accused Manoj @ Appu, at whose instance the gold chain and pair of tops were recovered, has been acquitted. In view of the acquittal of Manoj @ Appu, Sri Ram could not have been convicted for offence punishable under Sections 392/34 IPC as per the decision of the Supreme Court reported as 1994 SCC (Cri) 1422 Malkhan Singh vs. State of Haryana. The testimony of the four alleged eye witnesses is not trustworthy and is unreliable. All four of them have narrated different version of the commission of offence and the role assigned to Sri Ram. There are material improvements and contradictions in the testimony of the witnesses. Though it is the case of the prosecution that Ram Kumar, PW -5 identified Sri Ram in the Test Identification Parade (TIP) however, the original Test Identification Parade proceedings were lost and pursuant to the order of the District and Sessions Judge, proceedings were reconstructed. Despite record of the TIP proceedings being reconstructed, original signatures of the participants of the test identification parade, Sri Ram and Ram Kumar PW -5 and the learned Metropolitan Magistrate are available on the document. Further the photocopy of this reconstructed test identification parade proceedings shows tampering of the record as the same does not contain the endorsement by Ram Kumar that he has identified Sri Ram in the proceedings. There is no order sheet reflecting as to how and when the original test identification proceedings were brought back on record. Thus the test identification parade cannot be relied upon. Sri Ram was shown to the witnesses by the police officials as admitted by PW -5 Ram Kumar who stated that after Sri Ram was arrested in FIR No.33/2010 of PS Sunlight Colony under Section 25 Arms Act, he was called to see Sri Ram on March 19, 2010. Thus the TIP proceedings even if relied upon are meaningless. Entire investigation appears to have been done in a clandestine manner by the police officials of Crime Branch. Though chance prints were taken but the same were not sent to FSL. In any case, no report thereof has been placed on record. Only Ram Kumar, PW -5 states that 200 gram of gold and Rs.1.50 lakhs were looted which were not recovered. The worker who untied the family members has not been examined in the Court. Though Archana Gaikwad, PW -2 and Shivangi, PW -3 deposed about a ring and a pair of tops of Archana and pair of gold ear ring and Mangalsutra of Shivangi being looted however, no description, weight etc. of the properties were given. Though the pair of tops and ring allegedly recovered belonged to Archana Gaikwad, but were identified by Ram Kumar.

(3.) Learned counsel for Manoj Verma contends that though the alleged robbery took place on February 08, 2009 however two accused were arrested on March 19, 2010. It is highly unbelievable that a jeweller will keep stolen jewellery with him and that too for more than one year. The recovery from the shop of Manoj Verma was fabricated. No public witness was associated with the recovery. Manoj Verma was apprehended by Crime Branch officials at around 3.30/4.00 PM on March 19, 2010 in which regard a PCR call was made. Thus the arrest of Manoj Verma shown at 9'O clock on March 19, 2010 is falsified. Further Manoj @ Appu, at whose instance the recovery has been made has been acquitted. In view thereof Manoj Verma could not be convicted for offence punishable under Section 411 IPC.