Vikas @ Johny vs State
2014 Latest Caselaw 1832 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : April 02, 2014
                                DECIDED ON : April 03 , 2014

+                         CRL.A. 659/2012

       VIKAS @ JOHNY                                    ..... Appellant
                    Through :          Ms.Raj Kumari, Advocate.

                          versus

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


        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellant-Vikas @ Johny has preferred the present

appeal against a judgment dated 24.09.2011 of learned Additional

Sessions Judge in Sessions Case No.08/10 arising out of FIR No.67/10

registered at Police Station Vasant Kunj by which he was convicted under

Section 307/34 IPC. By an order dated 27.09.2011, he was sentenced to

undergo RI for five years with fine `5,000/-.

2. The prosecution case, as set up in the charge-sheet, was that

on 27.02.2010 in between 08.30 p.m. to 10.00 p.m., on the way from DLF

mall to Kushum Pahari within the jurisdiction of Police Station, Vasant

Kunj, the appellant and his associate Vijay @ Gorkha in furtherance of

common intention inflicted injuries by a sharp weapon to Pramood in an

attempt to murder him. Daily Dairy (DD) No.9A was recorded at 8.28

p.m. in Police Station Vasant Kunj about the incident and investigation

was assigned to ASI Rai Singh who with ASI Rakesh Kumar went to the

spot. On receipt of DD No.11A, they went to AIIMS and collected the

MLC of injured Pramood. Statements of witnesses conversant with the

facts were recorded. Both Vikas @ Johny and Vijay @ Gorkha were

apprehended. After completion of investigation a charge-sheet was

submitted against both of them; they were duly charged; and brought to

trial. The prosecution examined 13 witnesses to establish their guilt. In

313 statements, they denied their involvement in the crime. The trial

resulted in their conviction as aforesaid.

3. During the hearing of the appeal, appellant's counsel, on

instructions stated at the Bar that the appellant has opted not to challenge

the findings of the trial court recorded under Section 307 IPC and accepts

it voluntarily. She, however, prayed to modify the sentence order as the

appellant has clean antecedents and is not involved in any other criminal

case. He has remained in custody for about 34 months. The appellant

volunteered to pay `25,000/- as compensation to the victim. Learned

Additional Public Prosecutor has no objection to consider the mitigating

circumstances.

4. Since the appellant-Vikas @ Johny has opted not to

challenge the findings on conviction under Section 307/34 IPC in the

presence of overwhelming evidence of the victim coupled with medical

evidence, conviction recorded by the trial court under Section 307 IPC is

affirmed. Appellant's nominal roll dated 10.07.2012 reveals that custody

period undergone by him was one year, five months and 29 days besides

remission of three months and three days as on 10.07.2012. The custody

period has since gone to more than three and a half year including

remission. The overall jail conduct of the appellant is satisfactory. He is

not involved in any other criminal case and is a first offender. Though the

injuries have been opined to be 'dangerous' in nature, the evidence reveals

that from the spot the victim went to his house and was taken to the

hospital on the next morning. During this period, he did not get any

medical treatment or lodge the report with the police. It further reveals

that initial confrontation had taken place with co-convict Vijay @ Gorkha

and the appellant had arrived at the spot subsequently. The victim and the

appellant were known to each other prior to the incident and they lived in

the same locality. The quarrel took place over a trivial issue. The

appellant had not anticipated the arrival of the victim at the spot.

Considering these mitigating circumstances, the sentence order is

modified and the period already undergone in custody by the appellant is

taken as substantive sentence. He shall, however, pay compensation of

`40,000/- to the complainant; deposit it within five days before the Trial

Court; and it will be released to the complainant after due notice. He

shall also deposit the unpaid fine (if any) by that date.

5. The appeal stands disposed of in the above terms. Copy of

this order be sent to the concerned Jail Superintendent for information.

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

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