Kundan Lal @ Chhottu vs State (Govt. Of Nct Of Delhi)
2009 Latest Caselaw 1636 Del

                HIGH COURT OF DELHI : NEW DELHI

              Judgment reserved on: April 16, 2009
            Judgment pronounced on: April 24, 2009

+                              Crl. A. No.261/1999

%      Kundan Lal @ Chhottu             ... Appellant
                     Through: Ms. Purnima Sethi, Advocate

                               Versus

   State (Govt. of NCT of Delhi)       ...  Respondent
                   Through: Mr. Amit Sharma, Additional
                             Public Prosecutor for State
COARM

HON'BLE MR. JUSTICE SUNIL GAUR

1.     Whether the Reporters of local
       papers may be allowed to see the
       judgment?

2.     To be referred to Reporter or not?

3.     Whether the judgment should be
       reported in the Digest?

SUNIL GAUR, J.

1. Appellant- Kundan Lal @ Chhotu is aggrieved of the

impugned judgment/order of 7th August, 1997, vide which he

has been held guilty of trespassing into house of

complainant and of causing injuries to Smt. Kanika (PW-1),

while committing the offence of robbery and the trial court

vide impugned order, has sentenced the appellant to

undergo rigorous imprisonment for three years with fine of

Crl. A. No. 261/1999 Page 1 Rs.500/- and in default thereof, to undergo simple

imprisonment for one month for committing offence under

Section 452 of the Indian Penal Code and to a further RI for

seven years and fine of Rs.500/- and in default thereof to

undergo rigorous imprisonment for four months for

committing offence under Sections 397 of the Indian Penal

Code. Besides it, appellant has also been convicted to

rigorous imprisonment for one year and fine of Rs.100/- for

committing offence under Section 25 of the Arms Act. These

substantive sentences are to run concurrently.

2. Concisely put, the background facts emerging from the

record of this case are as follows:-

On 21st April, 1995, on receipt of information through PCR, DD No.7-A was got registered at Police Station Krishna Nagar, Delhi and Sub-

Inspector D.V. Gautam (PW-6), reached at the spot where he was told that the injured lady was got admitted in Monga Medical Centre, Krishna Nagar, Delhi. On reaching there, he recorded statement of injured- Kanta (PW-1) and got the case FIR No. 172 of 1995 registered against the appellant/accused for committing offence under Section 452/394/397 of the IPC. Sub Inspector Mathan Singh (PW-10) arrested the accused, recovered the knife/dagger and robbed gold chain

Crl. A. No. 261/1999 Page 2 at his instance. After conclusion of the investigation, charge-sheet was filed in the court.

3. Appellant/accused was put to trial on the offence under

Sections 452/394/397 of the IPC, as he had not pleaded

guilty to the charges framed by trial court under the

aforesaid provisions of law.

4. At trial, prosecution had got examined twelve witnesses

to establish its case. Injured - Kanika (PW-1), on whose

complaint FIR in question was got registered, deposed in her

evidence about the details of this incident and the sum and

substance of her version is as follows:-

On 21st April, 1995, at about 10:15 a.m., while injured-Kanika (PW-1) was alone at her home as her children had gone to the school and her husband had gone on duty, she closed the door of her house after her maid servant left and came to her room. There she saw the appellant/accused, who was armed with a knife, hiding behind the curtain. Appellant/accused kept the knife on her neck and asked her to take off her jewellery and gave knife blows on her chest, hips and right leg and snatched gold chain from her neck. She was made to lie on the bed and the appellant /accused tried to stab in her abdomen. As she raised alarm, the assailant ran away from there via the main entrance gate. She was got admitted in the hospital by her neighbours.

Crl. A. No. 261/1999 Page 3

5. The other material witnesses, who were examined by

the trial court were Sanjay PW-2, husband of injured and Dr.

V.K. Monga (PW-7), Sub Inspector Dharam Vir Gautam (PW-

6) and Sub-Inspector Mathan Singh (PW-10) had carried out

the investigation of this case.

6. Appellant/accused in his statement under section 313

Cr. P.C., had denied the prosecution case put to him and

pleaded that he was innocent and was falsely implicated in

this case. However, appellant/accused had not led any

evidence in his defence before the trial court.

7. After the trial, Appellant/accused stood convicted and

sentenced as reflected above.

8. In this appeal, both the sides have been heard and with

their assistance, the evidence on record has been perused.

9. Learned counsel for the appellant has drawn the

attention of this court to the testimony of injured (PW-1) to

point out that this witness has stated in her evidence that

she had regained consciousness in the hospital and she

stands contradicted by the initial Investigating Officer/PW-6,

who has stated in his evidence that he had recorded the

statement of the injured (PW-1) in the Nursing Home at

about 12.00 noon. In this context, attention of this court is

Crl. A. No. 261/1999 Page 4 also drawn to the evidence of Dr.P.K. Monga (PW-7), who has

stated in his evidence that after anesthesia, patient is unfit

for statement for a period of about four hours.

10. Learned counsel for the appellant has drawn the

attention of this court to the evidence of Head Constable

Gurjant Singh (PW-9) to point out that this police official is a

witness to the arrest of the appellant/accused and to the

recovery of the knife and his evidence is incomplete and so

the same cannot be relied upon. It is also pointed out that

the evidence of Sanjay (PW-2) husband of the injured is also

incomplete and his evidence too, cannot be relied upon and

the trial court has erred in doing so and, therefore, the

conviction and the sentence imposed upon the appellant is

unsustainable and deserves to be set aside. It is argued that

the recoveries are planted and have been illegally relied

upon by the trial court. Lastly, it is submitted on behalf of

the appellant that the appellant has been falsely implicated

in this case, at the instance of his land-lord, who has got the

appellant trapped in this case through the complainant (PW-

1) and her husband (PW-2).

11. Learned Additional Public Prosecutor for the State

submits that the impugned judgment is based upon the

Crl. A. No. 261/1999 Page 5 evidence of the complainant/first informant of this case,

which inspired the confidence of the trial court and it needed

no corroboration. It is submitted that the prosecution case

stands firmly proved from the evidence of the complainant

(PW-1) and from the evidence of the Investigating Officer

(PW-10). It is pointed out that recovery of robbed gold chain

and weapon of offence stands amply proved from evidence

on record and corroborates prosecution case. Thus, it is

submitted that there is no merit in this appeal.

12. After considering the rival submissions of the parties, I

find that even if incomplete evidence of Head Constable

Gurjant Singh (PW-9) is excluded from consideration, it does

not cause any dent in the prosecution case, because, this

witness had remained with S.I. Mathan Singh, Investigating

Officer of this case. Infact, the Investigating Officer of this

case has clearly deposed about the arrest of the

appellant/accused and about the recovery of knife from him.

At best, it can be said that the evidence of the Investigating

Officer does not stand corroborated from the evidence of

Head Constable Gurjant Singh (PW-9). Learned counsel for

the appellant is not correct in urging that the evidence of

Sanjay (PW-2) is incomplete. It is matter of record that the

evidence of this witness (PW-2) was recorded on 7th March,

Crl. A. No. 261/1999 Page 6 1996, and he was recalled and was cross-examined by

defence on 11th September, 2006.

13. After having analyzed the evidence of injured/

complainant (PW-1) in great detail, I find that she has clearly

stated in her evidence that she was given knife blows on the

day of the incident, by the accused present in the court i.e.

appellant/accused herein and her gold chain was snatched

from her neck by the appellant/accused and she was

removed to the hospital by her neighbours. She has not

stated in her evidence that she had become unconscious

immediately after this incident. The ocular version stands

firmly established from her deposition. It is only on reaching

the Nursing Home, injured (PW-1) had become unconscious

and she has stated in her evidence that she had regained

consciousness in the hospital, but she does not give the time

of regaining consciousness.

14. Learned counsel for the appellant has laid much

emphasis on the fact that the FIR of this case has been ante-

timed and has relied upon the evidence of the Doctor (PW-

7), initial Investigating Officer (PW-6). It is true that there is

some overlapping of the timings given by these two

witnesses, but it has not been suggested to the initial

Crl. A. No. 261/1999 Page 7 Investigating Officer (PW-6) that he has ante-timed the FIR of

this case. In any case, even if the FIR had been recorded

after four or six hours of this incident, this could not have

made any difference, and the prosecution would not have

gained anything by ante-timing of the FIR. In my considered

view, nothing material turns on this aspect.

15. The evidence of injured/complainant/PW-1 is of prime

importance. This witness has clearly identified appellant/

accused as the assailant and has attributed specific role to

him. Nothing worthwhile has come in the cross-examination

of this material witness, by the defence, to disbelieve her

version. I have found the version of the injured/complainant/

PW-1 to be truthful and reliable and the trial court has rightly

relied upon her deposition.

16. The deposition of Sanjay Kumar/PW-2, husband of

injured/complainant sufficiently corroborates the version of

the injured (PW-1). There is no infirmity in the evidence of

recovery of robbed gold chain (Ex.P-1) and weapon-knife

(Ex.P-6) at the instance of appellant/accused and it further

corroborates testimony of injured (PW-1). The specific stand

taken by the Appellant/accused before this court is of being

falsely implicated at the instance of his landlord through the

Crl. A. No. 261/1999 Page 8 Complainant (PW-1) and her husband (PW-2) in this case, for

getting him evicted from the tenanted premises.

17. Appellant in his statement under section 313 Cr. P.C.

has not taken the aforesaid stand and the suggestion put by

the defence to the injured/Complainant is of her having

inimical relations with the Appellant/accused. The suggestion

put to the husband (PW-2) of the injured/Complainant (PW-

1) is of Complainant's husband falsely implicating him in this

case to get him evicted from his house.

18. The aforesaid suggestions given by the defence to the

prosecution witnesses are without any foundation. It has not

been suggested to Sanjeev (PW-2), husband of the

injured/Complainant of this case that Appellant/accused is

his tenant. Such like suggestion has not given to the

injured/Complainant (PW-1). It needs to be emphasized that

appellant/accused has not taken any such stand in his

statement under section 313 Cr. P.C. nor has led any

evidence in support of his aforesaid stand, which is neither

probable nor plausible.

19. In the case of Shekhar and another vs. State of NCT of

Delhi, 2008 Crl. LJ 3258, relied upon by the Appellant, a

division bench of this court had given benefit of doubt in the

Crl. A. No. 261/1999 Page 9 peculiar facts and circumstances of the said case and it has

not been shown as to how the afore cited decision is of any

help to the case of the Appellant/accused.

20. Upon close scrutiny of the entire evidence on record, I

persuaded to uphold the conviction and the sentence

imposed upon the Appellant by the trial court as I find that

this appeal lacks merit. Resultantly, impugned judgment and

order on sentence is hereby upheld and this appeal is

dismissed as such.

21. During the pendency of this appeal, the sentence

imposed upon the Appellant was suspended. He is on bail.

His bail bond and surety bonds are cancelled. He is directed

to surrender forthwith, failing which, trial court is directed to

ensure that he is put behind bars, to serve out the remainder

of the sentence as awarded by the trial court.

22. Trial court be apprised of this order, to ensure its

compliance.

23. With aforesaid directions, this appeal stands disposed

of.

Sunil Gaur, J.

April 24, 2009
rs/n/pkb




Crl. A. No. 261/1999                                        Page 10