Vikas @ Kishore vs State
2013 Latest Caselaw 2766 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : April 18, 2013
                                DECIDED ON : July 04, 2013

+      CRL.A.1026/2011

       VIKAS @ KISHORE                           ..... Appellant
                    Through :         Mr.S.K.Sethi, Advocate.

                          versus

       STATE                                    ..... Respondent
                          Through :   Mr.M.N.Dudeja, APP for the State.

        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellant-Vikas @ Kishore impugns judgment dated

31.03.2010 in Sessions Case No.1008/2009 arising out of FIR

No.220/2008 police station Ashok Vihar by which he was convicted under

Section 394/34 read with Section 397 IPC. By an order dated 13.04.2010,

he was sentenced to undergo rigorous imprisonment for seven years with

fine `50,000/-.

2. Allegations against the appellant Vikas @ Kishore were that

on 28.06.2008 at 04.30 A.M. he and his associates Ravinder @ Sudhir and

Raju committed lurking house trespass at Nathu Ram's House No.L-196,

Wazirpur, JJ Colony. They were armed with knives and in the process of

committing robbery injured Nathu Ram when he raised alarm. He was

injured on his head with knife by the appellant. His associates robbed

purse containing `60/- and an identity card. Vikas was apprehended at the

spot. He attempted to flee; jumped from the first floor and sustained

injuries. Ravinder and Raju were chased and apprehended at some

distance. The police was informed. Nathu Ram was taken to hospital for

medical examination. The Investigating Officer lodged First Information

Report. He recorded statements of the witnesses conversant with facts. On

completion of investigation, a charge-sheet was submitted against the

appellant and his associates for committing offences under Section

458/394/34 IPC read with Section 397 IPC. They were duly charged and

brought to trial. The prosecution produced 17 witnesses to establish the

guilt. In statement under Section 313 Cr.P.C., the appellant pleaded false

implication. He examined his mother Imarti Devi (DW-1) in defence. On

appreciating the evidence and after considering the rival contentions of the

parties, the Trial Court, by the impugned judgment convicted the appellant

and his associates. Being aggrieved, the appellant has preferred the

appeal.

3. Learned counsel for the appellant urged that the impugned

judgment is unsustainable as the Trial Court did not appreciate the

evidence in its true and proper perspective and fell into grave error in

relying upon the testimonies of interested witnesses. No independent

public witness was associated at any stage of the investigation. Material

contradictions have emerged in the statements of PWs-1, 2 and 3

regarding the place of incident, location of bathroom and the place from

where the appellant jumped. Site plan does not depict the place from

where the appellant had jumped. Injuries sustained by the appellant have

not been established and explained. Nathu Ram sustained only simple

injuries. Knife allegedly used in the incident was never shown to the

doctor to seek his opinion. The assailants had no motive to commit

robbery as the complainant was a laborour working in subzi mandi and

there were no valuable articles to be robbed. Moreover one of the

associates of the appellant was handicap. The Trial Court ignored the

defence version proved by DW-1. Learned Additional Public Prosecutor

urged that the impugned judgment is based on fair appraisal of the

evidence and needs no interference.

4. I have considered the submissions and have examined the

Trial Court record. Daily Diary (DD) No. 7 (Ex.PW-6/A) was recorded

on the night intervening 27/28.06.2008 at 04.30 A.M. at police station

Ashok Vihar on getting information that the informant's father had been

stabbed. The investigation was assigned to ASI Devraj who with

Constable Dharmender and Constable Uggarsain went to the spot. Victim

Nathu Ram met him there. The appellant Vikas was also found sitting in

the gali. He had sustained injuries as he jumped from the first floor of the

house and the public had given beatings to him. PCR removed Nathu

Ram to the hospital where he was medically examined. In his statement

(Ex.PW-2/A) given to the Investigating Officer, victim Nathu Ram gave

detail account of the incident. He disclosed that on the night intervening

27/28.06.2005 at about 04.30 A.M., he was present on the first floor of his

house and got up for bathroom. At that time, three assailants entered

inside the house and caught him when he came out of the bathroom. When

he attempted to raise alarm, one of the assailants having a knife hit him on

his head. His associates removed purse from the pant lying on the bed

and it contained his identity card and `60/-. On hearing his noise, other

family members got up and caught hold the assailant who inflicted

injuries with knife on his head. His associates fled the spot and were

apprehended at some distance after chase. The police was informed.

While appearing as PW-2, in his court statement, Nathu Ram proved the

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

identified Vikas, the assailant, who inflicted churra blow on his head. He

denied the suggestion in the cross-examination that Vikas was caught in

the gali. He volunteered to add that Vikas was caught in the staircase.

PW-1 (Bunty) his son corroborated him on material facts. He deposed

that at around 04.30 A.M. on hearing his father's noise of 'bachao bachao'

he woke up and saw that his father had caught hold of a boy on the third

floor stairs of the house. He also saw that his father has sustained stab

injuries on his head and forehead. In the meantime, two persons started

running from the stairs. They chased and apprehended them near nala.

The boy who was in his father's custody escaped and jumped from the

first floor and got injuries. He identified Raju and Ravinder @ Sudhir the

assailants who were apprehended after chase. Vikas was the assailant

who had jumped from the first floor. In the cross-examination, he

disclosed that he had no prior acquaintance with the assailants but had

seen them roaming in the area earlier. PW-3 (Mohan Lal), victim's

brother, also corroborated the testimony of PW-1 that after some chase

Sudhir and Raju were apprehended by them. He also deposed about the

presence of Vikas at the spot and he was taken to hospital for medical

examination. It reveals that despite lengthy cross-examination, the

appellant could not elicit any material discrepancies in the testimony of

PWs-1, 2 and 3 to disbelieve them. Minor discrepancies highlighted by

the learned defence counsel are not material to throw the prosecution case

in its entirety. No motive was assigned to any prosecution witnesses to

falsely implicate the appellant with whom none of them had any prior

animosity or acquaintance. The appellant did not explain his presence at

the spot at odd hours on the night intervening 27/28.06.2008. Her mother

DW-1 disclosed in her testimony that due to failure of electricity at her

residence on the day of incident, her son Vikas had gone out of the house.

However, she did not elaborate as to where Vikas had gone. She did not

lodge any complaint when Vikas did not return. Vikas had no valid

reasons to travel to Ashok Vihar. Rather it shows that at the time of

occurrence the appellant was not present at his house. He also did not

explain how and under what circumstances, he sustained injuries. He was

arrested at the spot. To escape and flee, he dared to jump from the first

floor. The injuries sustained by him confirm his presence at the spot.

PW-4 (Dr.Neeraj Chaudhary) proved Nathu Ram's MLC (Ex.PW-4/A).

The injuries sustained by him were opined simple caused by sharp object.

As per local examination, there was sharp incised wound over forehead

and sharp incised wound over parital region. There is no conflict between

ocular and medical evidence. The Trial Court has dealt with all the

relevant contentions of the appellant minutely in the impugned judgment.

I find no irregularity or illegality in the said findings and are affirmed. I

find no substance in the appellant's plea to take lenient view. Nominal roll

reveals that he is involved in another case vide FIR No. 27/2007 under

Section 25 Arms Act, PS Ashok Vihar. The appellant with his associates

committed lurking house trespass at night at the house of the complainant

with an intention to commit robbery. The appellant and his associates

were armed with deadly weapons. The innocent complainant was injured

in the incident in his house for no fault of his. The Court can understand

the trauma of the inmates who had to confront with strangers armed with

weapons at odd hours. The appellant deserves no leniency.

5. In the light of the above discussion, the appeal lacks merits

and is dismissed. The conviction and sentence are maintained. Trial Court

record be sent back forthwith.

(S.P.GARG) JUDGE July 04, 2013 sa