Trilok Kapoor & Anr. vs The State
2009 Latest Caselaw 4967 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      Crl.A.No. 934/2005

#     TRILOK KAPOOR & ANR.                  ..... Appellant
                       Through: Mr. Shakti Chand Sharma
                  Versus
      THE STATE                                   ..... Respondent

Through: Mr. O.P. Saxena, APP

* CORAM:

HON'BLE MR. JUSTICE V.K. JAIN

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

2. To be referred to the Reporter or not? Yes

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

: V.K. JAIN, J. (oral)

1. This is an appeal against the judgment dated 22nd

October, 2005 and the order of sentence dated 26 th October,

2005 whereby, the appellant has been convicted under

Section 392 of IPC read with Section 397 thereof and has

been sentenced to undergo R.I. for 7 years.

2. The case of the prosecution is that on 12 th November,

2003 at about 12.30 PM, complainant Vijay Wahane, driver

of car No. DL-9CC-4687 parked his car near the gate of the

house of the car owner, 37, Paschim Marg, Vasant Vihar,

New Delhi. Since he had to go to the school to bring the

children of his employer, the keys of the car were left by

him in the ignition. Two boys came and stood near the car.

One of them then opened the front door and sat on driver

seat, whereas the other one sat on the rear seat. The car

was started using the key, which had already been put in

the ignition. The complainant ran towards the car, opened

its front gate and dragged out the boy on the driving seat.

The boy, who was sitting on the rear seat got down the

vehicle and started beating the complainant. The person,

who was sitting on the driver seat also joined him in beating

the complainant. When the complainant raised alarm, the

boy who was sitting on the rear seat managed to run away,

whereas the boy, whom the complainant had dragged out of

the driver's seat was apprehended. One tooth of the

complainant was broken in the beating given to him. On

enquiry, the name of the boy, who was apprehended on the

spot was found to be Trilok.

3. Though two persons, the appellant Trilok and his co-

accused Subhash were prosecuted in this case, Subhash

was acquitted on the ground that the prosecution had failed

to establish his identity.

4. The complainant Vijay Wahane came in the witness box

s PW-1 and fully supported the case as set out in the FIR

lodged by him. He stated that on the day of this incident,

he had put keys in the ignition of the car and was waiting

for the wife of his employer to come, outside house No. 37

Paschim Marg, Vasant Vihar, New Delhi. Both the accused,

who were seen by him, were standing opposite the driver

gate of the car. The appellant Trilok opened the front gate

of the car and started the engine, whereas Subhash opened

the rear door and sat behind him. As the car was started by

Trilok, he ran towards him and pulled him outside the car.

Subhash also came outside the car and they started beating

him. In the process, he lost one tooth. Subhash managed to

ran away from the spot, but Trilok was apprehended by him.

In cross-examination, he admitted that car had not been

moved, since hand break had been pulled by him while

parking the car, though the appellant had put the car into

gear.

5. PW-5 Dr. Rekha Tirkey has proved the MLC of the

complainant Ex. PW5/A. As per the MLC upper right canine

was broken and lower right canine was loose.

6. PW-7 Gaurav has stated that on the day of the incident,

he saw the complainant dragging out the appellant Trilok

from the driver seat of TATA Qualis vehicle. He also ran

towards the vehicle and caught Trilok.

7. Though a number of other witnesses were produced by

the prosecution, their testimony does not require any

disclosure.

8. In his statement under Section 313 Cr.P.C. the

appellant denied the allegations against him and stated that

he was alone and passing from near the car when Vijay

Wahane hit him and for this reason he was falsely

implicated in this case.

9. There is no material on record to prove the plea taken

by the appellant that he was hit by the complainant. During

cross-examination of the complainant, it was suggested to

him that Trilok hit him with his foot, when he was passing

from near the car. A perusal of the MLC of the appellant

Trilok Kapoor Ex. PW 5/B would show that he had received

a lacerated wound behind left eye pinna. Such an injury

could not have been caused from the foot of the

complainant. When the appellant was taken for medical

examination, he alleged that he had been assaulted.

Obviously when the appellant and his accomplice were

beating the complainant, he may also have retaliated and

the wound behind the left eye pinna was sustained by the

appellant during that process. More importantly, the

version given by the appellant does not explain the serious

injuries, including loss of tooth suffered by the complainant

and, therefore, even otherwise it does not inspire

confidance. Therefore, the nature of the injury found on his

person rules out his having been assaulted by the

complainant or his foot. Even otherwise, the testimony of

PW-7 Gaurav fully corroborates the testimony of the

complainant. This witness saw the complainant dragging

the appellant out of the car, which rules out the version

given by the appellant in his statement under Section 313 of

Cr.P.C.

10. There is no reason to disbelieve the complainant and

PW-7 Gaurav Kumar. There is no enmity or ill-will between

these witnesses on one hand and the appellant Trilok on the

other hand. Therefore, there was no motive for either of

them to implicate the appellant in a false case of robbery.

11. The testimony of the complainant proves that grievous

injury was caused to him by those, who were involved in the

incident. According to the complainant, he was beaten by

the appellant Trilok as well as by his co-accused Subhash,

who has been acquitted by the trial court. The complainant

did not tell the court as to who had given blow on his tooth.

The testimony does not show, who was responsible for the

loss of his upper tooth. The loss of upper tooth being the

only grievous hurt suffered by the complainant, there is no

evidence to prove which of the two persons involved in the

incident had caused grievous hurt to the complainant. It

cannot be said from the facts and circumstances of the case

that both the persons involved in the incident shared a

common intention to cause grievous hurt the complainant.

The prosecution was required to prove either that both the

accused persons shared a common intention to cause

grievous hut to the complainant or it had to prove which out

of the two culprits was responsible for causing grievous

hurt to him. It can be safely said that when the appellant

was dragged out of the car by the complainant and he

started beating him and the other culprits, who was sitting

on the rear seat also joined him in beating the complainant,

both of them shared common intention to cause hurt to the

complainant, but it cannot be said that both of them shared

a common intention to cause grievous hut to the

complainant. In fact, during cross-examination, the

complainant stated that when he had caught hold of the

appellant Trilok Kapoor, Subhash started bearing him so

that Trilok could be released and the both of them could run

away. This part of his deposition indicates that in fact

beating was given to him mainly by the other culprit and not

by the appellant. In these circumstances, I hold that the

prosecution has failed to prove that the appellant had

caused grievous hurt to the complainant, though it has been

able to prove that he shared a common intention to cause

hurt to the complainant.

12. The next question, which comes up for consideration is

as to what evidence against the appellant Trilok is made out

from his entering the car, starting it and causing hurt to the

complainant. Section 397 of IPC is clearly not attracted as

neither any deadly weapon was used by the appellant nor

the prosecution has been able to prove that he had caused

grievous hurt to the complainant.

13. Section 394 of IPC provides that if any person in

committing or in attempting to commit robbery voluntarily

causes hurt such person and any other person jointly

concerned in committing or attempting to commit robbery,

shall be liable to punishment. Even if I accept the

contention that since the car did not move and was only

started, there was no robbery and it was only an attempt to

commit robbery, the offence under Section 394 of IPC is

nevertheless made out against the appellant. I, therefore,

need not go into the question as to whether the act

committed by the appellant amounted to robbery or only an

attempt to commit robbery. In either case, he is liable to be

convicted under Section 394 of IPC.

14. For the reasons given in the preceding paragraphs, the

appellant is convicted under Section 394 of IPC and is

sentenced to undergo R.I. for three years and to pay a fine

of Rs.1000/- or to undergo S.I. for one month, in default.

With this modification, the appeal has been disposed

of.

(V.K.JAIN) JUDGE DECEMBER 03, 2009 AG