Delhi High Court
Vijay @ Balkhan vs State Of Delh on 20 August, 2019
$~ 25
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 20th August, 2019
+ Crl. Appeal no. 911/2002
VIJAY @ BALKHAN ..... Appellant
Through: Mr. Maninder Singh, Ms. Ekta
Vats, Mr.Anuj Singh, Mr.
Dinhar Takiar, Mr. Sankalp
Kohli Mr. Sarthak Garg, Advs.
versus
STATE OF DELH ..... Respondent
Through: Mr. Kewal Singh Ahuja, APP
for the State with SI Vainay, PS
Anand Parbat.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGEMENT (ORAL)
1. The appellant herein was put on trial, along with one Bishan
Kumar, on charge for offence under Section 307 read with Section 34
of Indian Penal Code, 1860 (IPC) in sessions case no. 39/1999
registered on the basis of report (charge-sheet) under Section 173 of
the Code of Criminal Procedure, 1973 (Cr.P.C.) which was submitted
upon conclusion of investigation into first information report (FIR) no.
345/1997 of police station Anand Parbat. The gravamen of the charge
essentially was of attempt to commit murder of Krishna Devi (PW-6)
in the early morning hours at 4.30 a.m., on 09.11.1997, in the area of
Than Singh Nagar, Anand Parbat. It appears that PW-6 had alighted
from a bus after outstation journey and was accosted by the appellant
and co-convict Bishan Kumar, the latter having a fire arm (revolver) in
his hand, the appellant herein statedly wielding a dagger. It is stated
that Bishan Kumar had put the fire arm on the temple of PW-6 and
had fired with it, but somehow PW-6 escaped from being injured the
projectile discharged by the said fire getting entangled in her wearing
apparel (shawl), it eventually being handed over to the police during
investigation. It was alleged that the appellant had also attempted to
use the knife/dagger in his hand to cause injuries but upon PW-6
raising alarm, both the assailants including the appellant had fled away
from the scene.
2. The case was registered on the statement (Ex.PW-6/A) of the
victim; the appellant and co-convict Bishan Kumar being arrested in
the course of investigation.
3. During the trial, the prosecution examined seventeen witnesses
including Dr. A. Bhasin (PW-1), who had examined the x-ray plates of
complainant and proved his report (Ex.PW-1/A) in this regard;
Constable Virender Singh (PW-2), who had accompanied ASI Prabhat
Singh on receipt of DD No. 23-A and got the FIR registered; Smt.
Kaushlaya (PW-3), an eye witness, who did not support the case of
prosecution; Sant Ram (PW-4), record clerk of DDU Hospital who
proved the MLC of complainant; Constable Balwan Singh (PW-5),
who had intimated PS Anand Parbat about the complainant being
taken to hospital in an ambulance; Smt. Krishna (PW-6), the
complainant/injured; Constable Bhim Singh (PW-7), Constable
Mahabir Singh (PW-9) and SI Rajbir Singh (PW-10), who were the
witnesses to the recovery of the dagger at the instance of the appellant;
Head Constable Gyan Singh (PW-8), who had recorded the formal
FIR and proved the FIR of the case; J.C. Vashisht (PW-11), record
clerk from DDU hospital, who proved the MLC of the appellant; Head
Constable Jai Narain (PW-12), who had handed over the cartridge to
ASI Prabhat Singh; Constable Surender (PW-13), who had taken one
sealed parcel and one sample seal and deposited the same at CFSL; SI
Mohinder Singh (PW-14), who had obtained final result on the MLC
of the complainant; ASI Parbhat Singh (PW-15), IO of the case; Head
Constable Ram Niwas (PW-16), who was working as MHC (M), and
had deposited the sealed parcel containing the dagger in malkhana;
and SI Vasudev (PW-17), to whom the investigation was temporarily
entrusted.
4. As has been noted above, Kaushalya (PW-3) was presented as a
witness, but she failed to support the prosecution case, she being
declared hostile and having been cross-examined by the public
prosecutor though nothing useful or supportive to its case could be
brought out through the said exercise.
5. The trial Judge found the evidence of PW-6 credible and by
judgment dated 15.02.2002, convicted both the appellant and Bishan
Kumar under Section 307/34 IPC. It is noted that a separate charge
under Section 27 of the Arms Act against the appellant had been
framed but it failed, he having been acquitted on the said charge by the
impugned judgment.
6. The learned counsel appointed as amicus curiae for the
appellant Vijay @ Balkhan submitted that he does not press the appeal
on merits conceding that the evidence of PW-6 about the assault by
the appellant armed with a cutting instrument on her person has been
consistent. He, however, pleaded that given the long time that has
lapsed, there being no other criminal antecedents of the appellant, a
lenient view on the question of sentence may be taken.
7. There is no clarity in the evidence on record as to the motive
attributable to the appellant. The only material adduced on this
subject concerned the co-convict Bishan Kumar who had some
litigation in which he, on one hand and the complainant or members of
her family, on the other, were involved. It does appear that the
appellant was with Bishan Kumar at the time of the assault. Though
he was armed with a cutting instrument, no injury was actually caused
by such weapon to PW-6. There is nothing in the evidence showing
he to have aided or assisted Bishan Kumar in the use of the fire arm by
the latter.
8. In the above factual matrix, as indeed in view of the fact that a
long time (22 years) has lapsed after commission of the offence, there
being no other criminal record of the appellant, a case for reduction of
sentence is made out. In these circumstances, while maintaining the
conviction of the appellant, the sentence is modified and reduced to
rigorous imprisonment for two years with fine of Rs. 1,000/-.
9. Needless to add, the appellant shall continue to be entitled to the
benefit of set off under Section 428 Cr.P.C. for the period of detention
already undergone during investigation, trial and appeal.
10. The appeal is disposed of in above terms.
11. A copy of this judgment shall be sent to Superintendent Jail for
necessary compliance.
R.K.GAUBA, J.
AUGUST 20, 2019
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