Babloo @ Umesh Kumar vs The State
2014 Latest Caselaw 2293 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                             RESERVED ON : 1st MAY, 2014
                              DECIDED ON : 6th MAY, 2014

+            CRL.A. 958/2012 & CRL.M.B.No. 706/2014

         BABLOO @ UMESH KUMAR                          ..... Appellant

                        Through :    Mr.Vivek Sood, Advocate and
                                     Mr.Jaideep Tandon, Advocate.


                        versus



         THE STATE                                     ..... Respondent

                        Through :    Mr.Lovkesh Sawhney, APP.


         CORAM:
         HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellant - Babloo @ Umesh Kumar impugns

conviction under Section 397 IPC recorded by a judgment dated

16.05.2012 in Sessions Case No. 60/11 arising out of FIR No. 157/11 PS

Sarai Rohilla. By an order dated 21.05.2012, he was awarded RI for seven

years.

2. Briefly stated, the prosecution case as reflected in the charge-

sheet was that on 09.05.2011 at about 04.00 P.M. at H.No. B-1589,

Shastri Nagar, Delhi, he and his associate Khatri (not arrested) in

furtherance of common intention entered inside the house of the

complainant - Babita and attempted to commit robbery while armed with

deadly weapon i.e. knife. When the complainant - Babita raised alarm, the

assailants fled the spot. The appellant was apprehended nearby and was

thrashed by the public. The robbed articles were recovered from his

possession. His associate succeeded to flee the spot. The victim was taken

to Hindu Rao Hospital and was medically examined. After recording

complainant‟s statement, Investigating Officer lodged First Information

Report. Statements of the witnesses conversant with the facts were

recorded. After completion of investigation, a charge-sheet was submitted

against the appellant; he was duly charged and brought to trial. The

prosecution examined eleven witnesses to substantiate the charges. In 313

statement, the appellant pleaded false implication and denied his

complicity in the crime without examining any witness in defence. The

trial resulted in his conviction as aforesaid. Being aggrieved and

dissatisfied, he has preferred the appeal.

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

examined the record. Appellant‟s only contention is that it was a case of

mistaken identity and the appellant had no hand in the crime. The

complainant had described one of the assailants as "sardar". The present

appellant is not "sardar". The prosecution witnesses have given

conflicting statements as to the place where the appellant was

apprehended. Learned Addl. Public Prosecutor urged that the complainant

identified the appellant in the Court without any hesitation and ascribed a

specific role to him.

4. Admitted position is that the appellant was apprehended at

the spot and was given beatings by the public. He was taken to Hindu Rao

Hospital where he was medically examined. MLC (Ex.PW4-/A) records

the arrival time of the patient at 05.00 P.M. Recovery of the robbed

articles from the possession of the appellant are also not under challenge.

The appellant‟s contention is that when he was standing near Lucky

Dairy, Shastri Nagar, an individual having a bag threw it near the dairy

and when he picked up the bag, he was thrashed by the public under the

mistaken impression. This explanation does not inspire confidence. The

appellant had no reasons to pick up a bag which did not belong to him

and the individual who was allegedly in possession of the bag was being

chased by the public. Entirely contradictory and conflicting defence has

been taken in 313 statement where it was pleaded that Babita‟s sister-in-

law‟s brother namely Kuldeep was having some issues with her and since

he was roaming with Kuldeep, he was lifted by the police. No such

defence was put in the cross-examination of the complainant. Rather

throughout, the appellant‟s claim was that he was apprehended due to

mistaken identity. The appellant did not examine Kuldeep to substantiate

his plea. Nothin has come on record to show if the complainant - Babita

had any issue with Kuldeep or for that reasons would falsely implicate the

appellant with whom she had no prior acquaintance and animosity. In her

deposition, she identified the appellant without any hesitation and

attributed specific role to him. She proved the version (Ex.PW-1/A) given

to the police at the first instance without any variation or improvement.

The complainant had direct confrontation with the assailants including the

appellant for about ten minutes during day time and had reasonable and

fair opportunity to recognize and observe his broad features. Her

identification in the Court cannot be faulted. She herself had sustained

injuries „simple‟ in nature by blunt object in the occurrence and was

medically examined by PW-4 (Dr.Anita Singla) vide MLC (Ex.PW-7/C).

There is no variance between the ocular and medical evidence. PW-2

(Manoj Kumar Jain) fully corroborated the version given by the

complainant except that he was unable to identify the appellant as

assailant. Exclusion of his testimony in this regard would not be

discredited the otherwise cogent and reliable testimony of the complainant

who was victim in the incident. The impugned judgment is based upon

fair appraisal of the evidence and needs no interference. Minimum

sentence prescribed under Section 397 IPC cannot be altered or modified.

5. In the light of above discussion, I find no merit in the appeal

and it is dismissed. Pending application also stands disposed of. Trial

Court record be sent back forthwith with the copy of the order. A copy of

the order be sent to the Superintendent Jail for information.

(S.P.GARG) JUDGE MAY 06, 2014 / tr