VIKRAM @ BABLOO Vs. STATE

JUDGEMENT

(1.) By this appeal the Appellant challenges the judgment dated 16th May, 2011 convicting him for offences punishable under Sections 458/307/397/34 IPC and the order on sentence dated 19th May, 2011 whereby he has been directed to undergo Rigorous Imprisonment for a period of 7 years for offence punishable under Section 397 IPC, Rigorous Imprisonment for 10 years and fine of Rs. 3000/- and in default of payment of fine simple imprisonment for three months for offence punishable under Section 307 IPC, and Rigorous Imprisonment for 7 years and fine of Rs. 2000/- and in default of payment of fine to undergo simple imprisonment for four months for offence under Section 458 IPC.

(2.) Learned counsel for the Appellant contends that the co-accused from whom recovery of pistol and the looted articles was made has been acquitted, however, the Appellant has been convicted though there was no evidence against him. There is no recovery at the instance of the Appellant. It is alleged that the Appellant had shown a pistol, however the injuries inflicted on the injured are by sharp edged weapon and thus, the same cannot be at the instance of the Appellant. For an offence punishable under Section 307 IPC mensrea is an essential requirement. However, there is no evidence that the Appellant had the intention to commit the said offence. The impugned judgment is bereft of any discussion as to how the prosecution has proved its case beyond reasonable doubt. In the absence of theft or extortion being proved, the Appellant could not have been convicted for offence under Section 397 IPC. The Appellant himself expressed his desire for getting the TIP conducted and even as per the Learned Metropolitan Magistrate a long date was given at the request of the Investigating Officer, however, in the meantime, the Appellant was shown to the witnesses in Tis-Hazari. The recovery of the allegedly looted property has not been proved. There is no evidence that the Appellant used the deadly weapon. Thus the charge of offence under Section 397 IPC is not proved against the Appellant. Reliance is placed on Krishna Kumar vs. State of Delhi,2009 157 DLT 121. There is an inordinate delay in examining the witnesses. Further, the incriminating evidence has not been put to the Appellant under Section 313 Cr. P. C.

(3.) Learned APP on the other hand contends that PW-7 has made specific allegations against the Appellant. The TIP of the accused was conducted at Tihar Jail where they were identified. PW-9 Dr. Rajan Madan has proved the injuries caused as dangerous. Thus, there is no merit in the present appeal and the application, and the same be dismissed.