Vikram vs State
2007 Latest Caselaw 411 Del

JUDGMENT

S. Ravindra Bhat, J.

1. This revision petition is directed against the judgment and order of the Additional Sessions Judge dated 15.7.2006 affirming the conviction and sentence of the appellant, for commission of offences under Sections 356/411 IPC, and directing him to undergo R.I. for six months and pay fine of Rs. 10,000/- (under Section 411 IPC) and R.I. for three months under Section 356 IPC. The court had also directed the sentences to run concurrently.

2. The prosecution version was that on 30.5.2000, the complainant Sunita Kapoor while returning from school on foot was accosted by a scooterist with pillion rider; the registration number of the Scooter was 2386. It was alleged that the pillion rider snatched her gold chain and the culprits fled from the spot. The prosecution version was further that the complainant raised an alarm; the police reached there within half an hour. It was alleged that the complainant identified Narender Kumar, the pillion rider as the person who had snatched the chain; she also identified the chain. The prosecution relied mainly on the testimony of the complainant (PW-1), a public witness Vinod Joshi (PW-2) and Anil Pathak (PW-7), a Constable. On the basis of evidence led and the material produced the trial court convicted and sentenced the petitioner. His appeal was dismissed by the Additional Sessions Judge.

3. Ms. Priyanka Aggarwal, learned Counsel submitted that the identity of the petitioner was not established. She relied upon the testimony of PW-1. It was contended that the complainant/witness at one stage in her examination-in- chief stated that she had identified the accused who had snatched the chain but subsequently in the course of the cross-examination deposed that the accused were not shown to her and that she was also unable to see the face of the driver as he was wearing a helmet. It was further contended that lone public witness Vinod Joshi candidly mentioned that he was unable to identify the accused/petitioner.

4. Learned Counsel contended that on the face of such a major contradiction, the trial court could not have convicted the petitioner as the prosecution had not established its allegations beyond reasonable doubts. She relied upon the judgment of the Supreme Court in State of Punjab v. Balraj Singh @ Chhajju to say that benefit of doubt ought to be given where the identity of the accused is suspect.

5. Mr. Malik, learned Counsel for the respondent resisted the petition and submitted that the order of the trial court as well as the appellate court do not call for any interference in exercise of revisional jurisdiction. He submitted that the contradictions pointed out were not major, that they were natural and occurred due to lapse of time. It was contended that one of the accused was chased and arrested near the site of the occurrence, the chain was recovered from him; as a result of his disclosure statement, the petitioner was arrested. These circumstances coupled with the testimony of the complainant and the public witness give a complete picture pointing to the guilt of the petitioner.

6. The Appellate Court which was approached by the present petitioner in its judgment had inter alia recorded as follows:

10. Anil Pathak, constable, and Anikesh Kumar, Constable present that they were on patrolling duty on a motorcycle on 30.5.2000. When they reached near Hargobind Enclave, they say two boys running after snatching a gold chain of one lady. They were chased and one of them was apprehended near DESU Office, Karkardooma Courts, Delhi. The person, who was apprehended, was Vikram. Therefore, facts testified by these two police officials substantiate the testimony of Vinod Joshi and Smt. Sunita Kapoor. It is evident that the appellant was running on his two wheeler along with Narender Kumar, after snatching chain from the neck of the complainant. Testimony of Vinod Joshi, Anikesh Kumar, constable and Anil Pathak, Constable make it clear that when appellant and his associate were running after snatching chain of Smt. Sunita Kapoor, public persons raised an alarm of thief thief. Appellant was chansed and overpowered at some distance away. These facts make out that the incident of snatching chain, alarm by Sunita Kapoor and public persons and then chase of appellant and his associate by the aforesaid police officials and apprehension of the appellant form part of one of the same transaction. These facts are so connected together as to be referred by a single name, such as the crime of chain snatching. Therefore, these facts bring it over the record that it was the appellant and his associate, who snatched chain from the neck of Sunita Kapoor, in furtherance of their common intention.

11. The appellant was charged for offences punishable under Section 411 and 356 of the Penal Code. Here in the case, offence punishable under Section 379 read with Section 34 of the Penal Code is made out against the appellant. No failure of justice has occasioned on account of omission of framing of charge for offence punishable under Section 379 read with Section 34 of the Penal Code, since the appellant had a reasonable opportunity to defend himself of the said charge. Considering the provisions contained in Section 464 of the Code, I conclude that an offence punishable under Section 379 read with Section 34 of the Penal Code is made out against the appellant, besides an offence punishable under Section 356 read with Section 34 of the Penal Code. Consequently, I convict the appellant for an offence punishable under Section 379 read with Section 34 oif the Penal Code, in stea dof an offence punishable under Section 411 of the Penal Code, besides an offence punishable under Section 356 read with Section 34 of the Penal Code.

7. The isolated reading of the testimony of the complainant no doubt suggest that she deposed as to identifying the accused persons in the examination-in-chief and subsequently made a slightly contradictory statement by stating that the scooter driver was wearing a helmet. Similarly, PW-2 conceded that he was unable to identify the accused in Court, but due to lapse of time. However, what emerges from an overall reading of the depositions is that PW-1 categorically mentioned about the incident, recording of her statement by the Police contemporaneously and the noting of the scooter number involved. If these circumstances are taken together 'as was done by the courts below' with the statements of the official witnesses, and the further fact about the recovery is kept in mind, the conclusions drawn by the courts below could not be characterised as incorrect or perverse.

8. Having regard to the limited nature of revisional jurisdiction, i.e. existence of material irregularity in the exercise of jurisdiction by the courts or that any order being palpably in error of law, (neither of which element being absent in this case), I am satisfied that the judgments of the court below do not call for any interference.

9. In view of the above findings, the revision petition and CRLM.B. 1973/06 are dismissed. No costs.