Vinod Kumar vs State
2013 Latest Caselaw 4856 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : 22nd October, 2013.
                               DECIDED ON : 23rd October, 2013.

+      CRL.A.310/2000

       VINOD KUMAR                                    ..... Appellant
                          Through :   Mr.Sumeet Verma, Advocate.


                          VERSUS

       STATE                                     ..... Respondent
                          Through :   Mr.Lovkesh Sawhney, APP.


        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Vinod Kumar (the appellant) challenges a judgment dated

27.11.1999 in Sessions Case No.74/1995 arising out of FIR No.189/1992

registered at Police Station Shahdara by which he was convicted for

committing offences punishable under Section 397 IPC and 25/27 Arms

Act. By an order dated 29.11.1999 he was awarded Rigorous

Imprisonment for seven years with fine `5,000/- under Section 397 IPC

and Rigorous Imprisonment for two years with fine `2,000/- under

Section 27 Arms Act. Both the sentences were to operate concurrently.

2. Allegations against the appellant-Vinod were that on

03.06.1992 at about 12.10 P.M. at House No.1/7060A, Gali No.5, Vishnu

Park, Shivaji Park, Delhi, he and his associates Naresh Sharma and Pappu

committed robbery using deadly weapons and deprived inmates of golden

ornaments and cash `20,000/-. After the robbery, the assailants attempted

to flee the spot but two of them i.e.Vinod Kumar and Naresh Sharma were

apprehended after chase and recover weapons used in the incident and

robbed articles. Pappu succeeded to escape. The police machinery was set

in motion after recording Sanjeev Walia's statement (Ex.PW-5/A). The

Investigating Officer lodged First Information Report. During

investigation, attempts were made to find out Pappu's whereabouts.

Statements of witnesses conversant with the facts were recorded. After

completion of investigation a charge-sheet was submitted in the court

against Vinod Kumar and Naresh Sharma. The Trial Court separated

Naresh Sharma's trial due to non-production from Lucknow Jail. The

prosecution examined 10 witnesses to substantiate the charges against

Vinod. In his 313 statement, the appellant pleaded false implication after

he was lifted from bus stand Seelam Pur at 09.00 P.M. on 02.06.1992. On

appreciation of the evidence and after considering the rival contentions of

the parties, the Trial Court, by the impugned judgment held Vinod Kumar

perpetrator of the crime mentioned previously. It is relevant to note that

subsequently the proceedings against Naresh Sharma were dropped as

abated due to his death.

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

did not appreciate the evidence in its true and proper perspective and fell

in grave error in relying upon the testimonies of interested witnesses.

PW-8- Sandeep Walia's statement was not recorded under Section 161

Cr.P.C. during investigation. PW-2 (Smt.Pushpa) gave inconsistent

version regarding use and recovery of pistol by the appellant at the time of

committing robbery. The prosecution was unable to establish use of

deadly weapon to sustain the conviction under Section 397 IPC. Learned

Additional Public Prosecutor urged that the Trial Court has appreciated

the statements of the victims with proper reasons and there are not good

grounds to interfere in the impugned judgment.

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

examined the record. The occurrence took place at 12.10 P.M. on

03.06.1992. Naresh Sharma and Vinod Kumar were apprehended at the

spot by the victim with the assistance of public persons soon thereafter.

First Information Report was lodged promptly at 03.00 P.M. without any

delay on the statement of the victim (Ex.PW-5/A). Sanjeev Walia gave

detailed account as to how Vinod Kumar, Naresh Sharma and their

associate Pappu (who succeeded to escape) barged in their house and

committed robbery at the point of pistol and knife. He further disclosed

that his mother Pushpa Walia was deprived of her golden chain and ear-

rings and Pappu took away `20,000/- from the almirah in the house. In

his court statement PW-5 (Sanjeev Walia) proved the version given to the

police at the first instance without any major variation/improvements. He

assigned specific role to each of the assailants in committing robbery and

identified Vinod Kumar to be the assailant who used knife and threatened

to kill if he attempted to raise alarm. Despite lengthy cross-examination,

no material discrepancy emerged to suspect the veracity of his statement.

The accused did not assign any ulterior motive to the witnesses to falsely

implicate him. PW-5 (Sanjeev Walia) had no prior acquaintance with the

accused persons to falsely rope them in the incident. In the absence of

any prior ill-will or animosity the inmates of the house who were the

victims were not expected to fake the incident of robbery. When PW-5

(Sanjeev Walia) raised alarm, the assailants attempted to flee the spot and

were given chase. Naresh Sharma even fired at the chasers to escape.

However, both of them were apprehended at the spot and the robbed

articles along with weapons were recovered from their possession. There

are no sound reasons to discard the testimony of independent public

witness. PW-2 (Pushpa) also identified the present appellant as one of the

robbers. She, however, gave inconsistent statement regarding recovery of

pistol from Vinod. This inconsistency, however, is not significant to give

clean chit to the appellant as his presence along with Naresh Sharma and

Pappu in the house was deposed by the witness. She was examined after a

lapse of about six years and possibility of her describing the role as to

which of the assailants was in possession of which weapon differently

cannot be ruled out. Presence of PW-2 and PW-5 in the house was

natural and probable. PW-6 (Chander Kant) has strengthened the version

of both these witnesses. He was among the chasers and was able to

apprehend both Vinod and Naresh Sharma. He also deposed about the

recovery of the weapons and stolen articles from the possession of Vinod

after his apprehension. Vinod did not produce any evidence in defence to

show if he was lifted from bus stand Seelampur on 02.06.1992. He did

not examine any witness from his place of work to prove his presence on

that day in the factory. Neither he nor his family member ever lodged any

complaint for his illegal detention. Vinod was charged under Section

25/27 Arms Act and was convicted. Apparently, the knife recovered from

his possession was in contravention to the notification whereby possession

of a knife without licence is prohibited. It can safely be inferred that the

knife recovered from Vinod's possession was 'deadly' in nature to base

conviction with the aid of Section 397 IPC. Minor contradictions,

inconsistencies or improvements highlighted by appellant's counsel are

inconsequential as they do not affect the core of the prosecution case. The

judgment is based upon fair appraisal of the evidence and requires no

interference.

5. The appeal is unmerited and is dismissed. The appellant is

directed to surrender before the Trial Court within fifteen days to serve the

remaining period of sentence. The Registry shall transmit the Trial Court

records forthwith.

(S.P.GARG) JUDGE October 23, 2013 sa