Tota Ram @ Boni vs The State

S.P. Garg, J.—Tota Ram @ Boni (A-1), Ramesh Kumar (A-2), Ravinder Singh (A-3) and Ashwani Kumar @ Ashu were arrested by the police of Police Station Sarai Rohilla and were challaned to the Court for trial for committing offence punishable under Sections 393 /394 /397 /34 IPC. In nutshell the prosecution case is under:-Daily Diary (DD) No. 63B (Ex. 6/P) was recorded at Police Station Sarai Rohilla on 28.09.1996 at 11:40 P.M. on getting information from Constable Pavinder Singh (PW-3) that Manoj Kumar had admitted Deepak in injured condition at Hindu Rao Hospital. The investigation was assigned to Head Constable Suraj Bhan who with Constable Pavinder Singh went to the hospital. In his statement, injured Deepak disclosed that when he was coming back to his house at 10:30 P.M. after taking juice, at the corner of his house in Gali No. 3, 3/4 boys were present. A-1, who was known to him, asked him to stop and inquired from him as to how much money he had. He replied in the negative. On that A-1 put his hand in his pocket and grappled with him. A-1 inflicted injury on his back with some sharp object. His three associates who were present there also caught hold of him. The incident was witnessed by Manoj Kumar. The assailants fled the spot. During the course of investigation A-1, A-2, A-3 and Ashwani Kumar were arrested and their disclosure statements were recorded. The IO recorded the statements of the witnesses conversant with facts and after completion of investigation submitted a charge-sheet against them in the court. They were duly charged and brought to trial. The prosecution examined seven witnesses. In their 313 statements, the accused pleaded false implication. On appreciating the evidence and considering the rival contentions of the parties, the Trial Court by the impugned judgment convicted A-1 to A-3 and acquitted Ashwani Kumar. Being aggrieved, the appellants have preferred the appeals.

I have heard the learned Additional Public Prosecutor and the learned counsel for the appellants and have examined the record. On scrutinizing the testimony of witnesses it reveals that there are vital discrepancies and contradictions. The conviction is based upon the sole testimony of the complainant. PW-1 (Deepak) in his statement (Ex. PW-1/A) categorically mentioned that the incident was witnessed by his friend Manoj Kumar who admitted him in the hospital. However, Manoj Kumar was not examined. No explanation has been offered by the prosecution for withholding material witness Manoj Kumar. PW-1 (Deepak) gave a contradictory version in his testimony and stated that his friend Manoj Kumar came at the spot after he fell down due to injuries and admitted him in the hospital. He did not claim that the incident was seen by Manoj Kumar. The prosecution failed to reconcile the two version.

In his statement (Ex. PW 1/A) the complainant did not reveal exact number of assailants. The police apprehended A-1 to A-3 and one Ashwani Kumar during investigation and charge-sheeted them. PW-1 (Deepak), however, exonerated Ashwani Kumar completely and did not identify him to be one of the assailants. Learned Additional Public Prosecutor, after seeking court''s permission, cross-examined him on this aspect. In the cross-examination, he denied that Ashwani was one of the assailants. The prosecution failed to convince as to how and under what circumstances Ashwani''s name surfaced in the incident. The prosecution failed to offer any explanation as to why PW-1 (Deepak) resiled from his previous statement to give clean chit to Ashwani. After recording the statement of PW-1 (Deepak), Rukka (Ex. PW-6/B) was prepared and First Information Report for commission of offence u/s 324 /34 IPC was recorded. It is not clear as to when and why Sections 393 /394 /397 were added. The victim at the first instance did not attribute any specific role to A-2 and A-3 and Ashwani Kumar. They were not known to him. No application for Test Identification Parade was moved for their identification. No weapon of offence was recovered at the instance of any accused. The complainant was not deprived of any money. It is highly unbelievable that A-1, who was already known to the complainant, would attempt to commit robbery particularly when the victim had no money with him. It appears that there was a quarrel between the complainant and the assailants in which he was injured. It seems that the victim did not present true facts.

In the court the victim gave wavering statement. When he was examined on 19.01.1998, he implicated A-1 to A-3 but exonerated Ashwani Kumar completely. He did not assign any role to Ashwani Kumar in the incident. He did not depose that the occurrence was witnessed by Manoj Kumar. He did not hand over his blood stained clothes to the police. When he was examined on 20.09.1999, he admitted that due to darkness, he was unable to identify the assailants. His further examination was deferred on his request. When he again appeared on 12.10.2009, he introduced another version and stated that nobody came to rescue him and subsequently, his friend Manoj Kumar admitted him in the hospital. He further deposed that he had given his earlier statement in the court on the asking of the Police Officer/Investigating Officer and was tutored outside the court. It seems that the complainant is changing his version time and again and no implicit reliance can be placed on his sole testimony to convict the accused for serious offence u/s 393 /394 /397 IPC. The ingredients of robbery has not been established against all the accused.

In the light of the above discussion, I am of the view that the prosecution has failed to adduce cogent and reliable evidence to establish the guilt of the accused persons beyond reasonable doubt. Giving benefit of doubt, the appeals are allowed and the conviction and sentence of the appellants are set aside. Bail bonds and surety bonds of the appellants stand discharged. Trial Court record be sent back forthwith.