Javed @ Bhura vs The State (Nct Of Delhi)
2013 Latest Caselaw 910 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                                RESERVED ON : February 05, 2013
                                DECIDED ON : February 22, 2013

+      CRL.A. 624/2011


       JAVED @ BHURA                               ..... Appellant
                   Through :           Mr.Gautam Khazanchi, Advocate
                                       with Mr.Aditya Wadhwa &
                                       Mr.Adit S.Pujari, Advocates.


                          VERSUS


       THE STATE (NCT OF DELHI)          .... Respondent
                     Through : Mr.M.N.Dudeja, APP.


        CORAM:
        MR. JUSTICE S.P.GARG


S.P.GARG, J.

1. The appellant Javed @ Bhura impugns the judgment dated

11.03.2010 in Sessions Case No.48/2009 arising out of FIR No.12/2007

registered at Police Station New Usman Pur by which he was convicted

for committing offence punishable under Sections 394/397/34 IPC and

sentenced to undergo RI for seven years with total fine of `6,000/-.

2. Allegations against the accused were that on 05.01.2007 at

about 09:30 P.M. in House No.T-187, Gali No.2, Gautam Puri, he with his

associate Naeem committed robbery and deprived Ram Niwas and his

wife of `2,000/- and ear-rings. The case was registered on the statement of

the victim Ram Niwas. During the course of investigation, both the

accused were arrested on different dates. One country made pistol was

recovered from co-convict Naeem. Pursuant to disclosure statement, he

recovered ear-rings. The Investigating Officer recorded statements of the

concerned witnesses conversant with facts. On completion of the

investigation, a charge-sheet was submitted against the accused and co-

convict Naeem. The prosecution examined 13 witnesses to prove the

charges. In his statement under Section 313 Cr.P.C., the accused pleaded

innocence and stated that he was falsely implicated when he declined to

be the informer of the police. On appreciating the evidence and

considering the rival contentions of the parties, the appellant and co-

convict Naeem were held guilty under Sections 394/397 IPC and

sentenced accordingly. Being aggrieved, the appellant has preferred the

present appeal. It is relevant to note that co-convict Naeem had also

preferred a separate appeal challenging the impugned judgment. Learned

Additional Public Prosecutor informed that the appeal preferred by co-

convict Naeem has since been dismissed by this court.

3. Learned counsel for the appellant urged that the Trial Court

did not appreciate the evidence in its true and proper perspective. The

accused was arrested after about six months of the incident. No recovery

was effected from his possession or at his instance. The prosecution

witnesses were uncertain about the exact number of assailants who

entered the premises. Name of the appellant emerged only in the

disclosure statement of co-convict Naeem. The accused explained the

circumstances in his statement recorded under Section 313 Cr.P.C. as to

how he was implicated in this case. No application for conducting Test

Identification Parade was moved. The witnesses had seen him in the

police station. Learned Additional Public Prosecutor urged that the

conviction is based on fair appraisal of the evidence and no interference is

called for. The victim had no motive to falsely rope in the accused in the

incident.

4. I have considered the submissions of the parties and have

examined the record. The incident occurred on 05.01.2007 at about

09:30 P.M. in the house of the complainant-Ram Niwas. He sustained

injuries and was taken to Guru Teg Bahadur hospital. Daily Dairy (DD)

No.27A (Ex.PW-7/A) was recorded at police station New Usman Pur at

10.12 P.M. on getting an information that 3-4 assailants fled after

snatching money from House No. T-187, Gali No.2, Gautam Puri. The

investigation was assigned to ASI Jawahar Singh. He recorded the

statement of the complainant-Ram Niwas and sent rukka on the night

intervening 5/6.01.2007 at 01:15 A.M. In the statement the victim

disclosed that three assailants in the age group of 22-25 entered in the

house and robbed them at the point of kattas and ustra (razor). They also

caused injuries to him. There was no delay in lodging the First

Information Report with the police. It rules out fabrication of any false

story.

5. While appearing as PW-1, Ram Niwas proved the version

given to the police at the first instance without any variation. He deposed

that on 05.01.2007 at 10:30 P.M. someone knocked at the door. When he

opened the door, three assailants entered into the house. Two of them

were having katta and one of them was having razor. He identified Javed

who pointed katta on his chest and demanded `5,000/- from him. When

he refused to pay the money, another assailant took `2,000/- from his pant

hanging on the wall. He identified co-convict Naeem to be the assailant

who snatched ear-rings (kundals) from his wife. He implicated Javed who

hit him on his head with the butt of the katta and caused injuries. In the

cross-examination, he stated that the incident lasted for 15-20 minutes.

He fairly admitted that the accused did not make efforts to take articles

from any other place. Night bulb was 'on' at the time of occurrence.

Cash of `2,000/- consisted of `100 denomination currency notes. He was

taken to the hospital at 12:00 midnight and remained there for one and a

half hour. The 'kundals' were identified after it were recovered. PW-2

(Smt.Mala), Ram Niwas's wife, corroborated his version in its entirety.

She also deposed the detailed sequence in which the accused with his

associates robbed them at the point of deadly weapons and caused injuries

to her husband. She identified ear rings (kundals) in Test Identification

Proceedings. In the cross-examination, she denied that the kundals were

not of gold. PW-3 (Amar Pal), who was residing as a tenant in the

premises was also robbed by the same group of assailants at the point of

katta and razor. He was also injured and taken to hospital. The testimony

of PWs-1, 2 and 3 is beyond any discrepancies or inconsistencies. They

all have attributed specific roles to each accused in committing robbery

and causing injury. No ulterior motive was attributed to any of the

witnesses for falsely implicating the accused and identifying them in the

court. The assailants were not having any acquaintance with them. In the

absence of any animosity, these witnesses having no criminal background

are not expected to falsely implicate an innocent person and let the real

culprit go scot free. Their ocular testimony is in consonance with medical

evidence. PW-1 and PW-3 were taken to Guru Teg Bahadur hospital on

05.01.2007 and were medically examined at 11:55 P.M. One incised

wound in the left Pinna was noticed on the body of PW-3 (Amar Pal) in

MLC (Ex.PW-4/A). One clean lacerated wound was found on the body of

Ram Niwas in MLC (Ex.PW-4/B). PW-4 (Dr. Siddharth) proved two

MLCs and the accused did not cross-examine him. PWs-1 and 3 were not

expected to self-inflict the injuries for no reasons.

6. The robbed ear-rings (kundals) were recovered pursuant to

the disclosure statement of co-convict Naeem and were identified by the

complainant and his wife in Test Identification Proceedings conducted by

PW-8 (Sh.Ravinder Singh, Ld.MM). The accused did not examine any

witness to falsify the positive testimony of the prosecution witnesses. He

did not name the police officer who compelled him to be the police

informer. No such suggestion was put to the Investigating Officer in this

regard. The defence deserves out-right rejection.

7. The conviction of the appellant is based upon fair appraisal

of the testimony of independent and natural witnesses and no interference

is called for. The appeal is without merits and is dismissed. The

conviction and sentence of the appellant are maintained.

8. Trial Court record be sent back forthwith.

(S.P.GARG) JUDGE February 22, 2013 sa