Vipin vs State (Nct Of Delhi)
2014 Latest Caselaw 1817 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : March 20, 2014
                                DECIDED ON : April 03, 2014

+                         CRL.A. 166/2012

       VIPIN                                              ..... Appellant

                          Through :    Mr.Anwesh Madhukar, Advocate.

                          versus

       STATE (NCT OF DELHI)                               ..... Respondent

                          Through :    Mr.Lovkesh Sawhney, APP.

        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Vipin ( the appellant) questions the legality and correctness

of a judgment dated 13.05.2011 of learned Additional Sessions Judge in

Sessions Case No.21/10 arising out of FIR No.03/10 registered at Police

Station Rani Bagh by which he was convicted under Section 394/397 IPC;

27 Arms Act and sentenced to undergo RI for seven years with fine

`5,000/- each under Sections 394/397; and RI for three years with fine

`3,000/- under Section 27 Arms Act. All the sentences were to operate

concurrently.

2. The prosecution case, as revealed in the charge-sheet, was

that on 06.01.10 at about 09.00 a.m. in a running bus on route No.901 at

Madhuban Chowk, Pitam Pura, the appellant-Vipin along with his

associates in furtherance of common intention inflicted injuries by a knife

to the complainant-Abhinav Kumar and robbed a purse containing `350/-,

I card, voter card and some papers. Information regarding the occurrence

was conveyed to PCR at 100 which led to the registration of Daily Dairy

(DD) No.10A (Ex.PW-5/A) at 09.30 a.m. at Police Station Rani Bagh. It

records about apprehension of a pick-pocket at Madhuban Chowk, Bus

stand. The investigation was assigned to SI Ved Prakash who with

Ct.Dolas went to the spot. The victim had already been taken to Bhagwan

Mahavir hospital by ASI Rohtash of PCR. The Investigating Officer

lodged First Information Report after recording complainant's statement

(Ex.PW-2/A) by sending rukka (Ex.PW-7/A). Statements of witnesses

conversant with the facts were recorded. The accused was apprehended

and was medically examined. After completion of investigation, a charge-

sheet was filed against the accused; he was duly charged; and brought to

trial. The prosecution examined seven witnesses to establish his guilt. In

313 statement, the accused pleaded false implication. He examined

Guddo (DW-1) in defence. After appreciating the evidence and

considering the rival contentions of the parties, the trial court by the

impugned judgment held the appellant perpetrator of the crime mentioned

previously. Aggrieved and dissatisfied, the appeal has been preferred

questioning the validity of conviction.

3. I have heard the learned counsel for the parties and have

examined the file. Appellant's counsel urged that the trial court did not

evaluate the evidence in its true and proper perspective and fell into grave

error in relying upon wavering testimony of the complainant. The

witnesses have given inconsistent and conflicting version about the

recovery of the purse and knife. No independent public witness including

the driver and conductor of the bus were associated at any stage of the

investigation. Ingredients of Section 394/397 IPC are not attracted and

proved. The victim did not sustain any injury by the knife. Learned

Additional Public Prosecution urged that the judgment is based upon fair

appraisal of the evidence and there are no sound reasons to discard the

credible testimony of the complainant.

4. The occurrence took place at around 09.00 a.m and

information to PCR was conveyed soon thereafter. PW-4 (ASI Rohtash)

of PCR on receipt of call at about 09.30 a.m. rushed to the spot within

three minutes with PCR vehicle. He found both the victim and the

appellant in injured condition at the spot and admitted them at Bhagwan

Mahavir hospital. Daily Dairy (DD) No.10A (Ex.PW-5/A) was recorded

at 09.30 a.m. MLC (Ex.PW-1/A) records the arrival time of the patient

Abhinav Kumar at the hospital as 09.55 a.m. PW-1 (Dr.Manideepa)

medically examined the patient Abhinav Kumar and prepared MLC

(Ex.PW-1/A). Nature of injuries was opined as 'simple'. In the complaint

(Ex.PW-2/A), the complainant gave detailed account of the incident and

disclosed as to how and under what circumstances, he was robbed by the

appellant along with his two or three associates at knife point and was also

given beatings. He further disclosed that the appellant's associates

succeeded to flee the spot. He was able to catch hold of the appellant with

the assistance of the public who also thrashed him. While appearing as

PW-2, Abhinav identified Vipin as one of the assailants who had robbed

him of his purse at knife point. He assigned a specific and definite role to

the appellant who was armed with a knife and was the first individual to

assault him; he also criminally intimidated passengers in the bus. In the

cross-examination, he was confronted with the statement (Ex.PW-2//A)

where some facts narrated by him in the court were not mentioned earlier.

Despite lengthy and searching cross-examination, no material discrepancy

could be elicited to disbelieve or discredit the statement of the

complainant who had no prior animosity or ill-will with the appellant.

Minor discrepancies highlighted by the appellant's counsel are

inconsequential as they do not affect the basic structure of the prosecution

case. He specifically deposed that he was robbed at the knife point and

was physically assaulted by the appellant and his associates as a result of

which he sustained injuries on his body. The medical evidence is in

consonance with the ocular testimony of the complainant. PW-4 (ASI

Rohtash) also corroborated his testimony on all material aspects without

major deviation. When he went to the spot pursuant to the receipt of call

at 100, he found many public persons present at the spot. He deposed that

the complainant had caught hold of Vipin and the pubic had given

beatings to him. The complainant produced a 'buttandar' knife snatched

from the appellant and it was handed over later on by him to the

Investigating Officer who seized it vide seizure memo (Ex.PW-2/C). The

complainant identified the purse collectively exhibited (Ex.P-1) snatched

by the appellant and which he was able to get it back. He also identified

knife (Ex.P-2) used to extend threats. The accused did not give plausible

explanation to the incriminating circumstances. In 313 statement, the

accused claimed that he was lifted from his house and brought at the spot.

The accused failed to explain as to how and under what circumstances, he

sustained injuries on his body. It confirms his presence at the spot. Non-

examination of independent public witnesses is not fatal to the prosecution

case as the prosecution was able to produce the cogent and reliable

testimony of the victim who had no ulterior motive to falsely implicate

him. The impugned judgment is based upon fair appreciation of the

evidence and warrants no interference. Since minimum sentence

prescribed under Section 397 IPC is seven years, the substantive sentence

awarded to the appellant cannot be altered or modified. Nominal roll

dated 13.01.2014 reveals that the unexpired portion of sentence was two

years, one month and seventeen days on that date. The appellant is not

involved in any criminal case and is a first offender. Considering these

circumstances, the sentence order is modified to the extent that the

sentence under Section 394 IPC will be five years with fine `1,000/- and

failing to pay the fine, to undergo SI for fifteen days. Since Section 397

IPC does not regulate imposition of fine, `5,000/- imposed as fine is set

aside and substantive sentence would be RI for seven years; under Section

27 Arms Act, the sentence will be three years with fine `500/- and default

sentence would be ten days for non-payment of fine. All the substantive

sentences shall run concurrently.

5. The appeal stands disposed of in the above terms. Trial Court

record along with a copy of this order be sent back forthwith.

(S.P.GARG) JUDGE April 03, 2014 sa