SHER KHAN Vs. STATE

JUDGEMENT

(1.) CHALLENGE in this appeal is to a conviction recorded under Sections 392/397/34 IPC by a judgment dated 28.05.2011 of learned Addl. Sessions Judge in Sessions Case No. 118/10 arising out of FIR No. 90/2010 PS Kalyan Puri. By an order dated 01.06.2011, he was sentenced to undergo RI for seven years with fine Rs. 1,000/ -.

(2.) BRIEFLY stated, the prosecution case as projected in the charge -sheet was that on 26.03.2010 at about 11.00 P.M. at Khichripur Main Road, near Community Bhawan, Delhi, he and his associate Sikku (nor attested) robbed Jitender Bhati of Rs. 1,200/ - and a gold chain at knife point. The police machinery came into motion on getting information of the incident at 2316 hours and Daily Diary (DD) No. 94B (Ex.PW -15/A) came into existence. HC Sukhvir Singh to whom the investigation was assigned went to the spot along with Const.Bijender and came to know that the victim had already been taken to Lal Bahadur Shastri Hospital, Khichripur, Delhi. He recorded complainant - Jitender Bhati 's statement (Ex.PW -1/A) there and lodged First Information Report. Efforts were made to find out the culprits but in vain. On 07.04.2010, the appellant was arrested in case FIR No.107/10 PS Kalyanpuri. His involvement in the incident emerged pursuant to disclosure statement recorded therein. The accused declined to participate in the Test Identification Proceedings. 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. To prove its case, the prosecution examined fifteen witnesses. In 313 statement, the appellant pleaded false implication stating that his previous involvement in some criminal cases led the police to apprehend him as suspect in this case. He did not examine any witness in defence. The trial resulted in his conviction as aforesaid. Being aggrieved and dissatisfied, he has preferred the appeal.

(3.) THE incident took place at around 11.00 P.M. on 26.03.2010 when the complainant and his cousin Mahkar Singh were going to see his Bua - Bala residing at house No.147, Village Khichripur. They were waylaid by the assailants who robbed the complainant of Rs. 1,200/ - and gold chain at knife point and also inflicted injuries to him. The injured was taken to Lal Bahadur Shastri Hospital and was medically examined by MLC (Ex.PW -10/A). It records the arrival time of the patient at 11.20 P.M. He was admitted by Deepak Nagar (PW -4). Six incise stab wounds were found on the body. PW -10 (Dr.K.Tyagi) medically examined him and the nature of injuries was given as 'simple ' caused by sharp object. In the First Information Report lodged in promptitude, the complainant gave vivid description of the incident in which he was not only robbed but was also injured. While appearing as PW -1, he fully supported the prosecution and proved the version given to the police at the first instance without any variation. He identified the appellant as one of the assailants who was armed with a knife and inflicted injuries to him while committing robbery on his person. In the cross -examination, his testimony could not be shattered and no discrepancies or contradictions could be elicited to disbelieve him. No ulterior motive was assigned to the complainant to falsely recognise and identify the appellant as one of the assailants. The complainant had no prior animosity or acquaintance with the appellant to falsely rope him as he was a resident of village Khodna Kala outside Delhi. Multiple injuries were sustained by him in the incident and he was not expected to let the real culprit / offender go scot free and to name an innocent one. The appellant declined to participate in the Test Identification Proceedings. Adverse inference is to be drawn against him for that. Nothing has come on record to show if the appellant was shown in the police station. No such suggestion was put to the complainant in the cross -examination if he had visited the spot or the police station at any time after the incident where the appellant was shown to him. Statement of the complainant is in consonance with medical evidence and there is no variance between the two. In the absence of prior enmity, the injured / victim cannot be disbelieved. The Trial Court specifically observed in the statement of the complainant that he was having 4 inches stab injury mark on his left cheek. PW -2 (Mahkar Singh) who fled the spot due to fear brought Deepak Nagar from the residence of complainant 's bua and thereafter, the victim was taken to Lal Bahadur Shastri Hospital. He also identified the appellant as one of the assailants who had taken out a knife to assault Jitender Bhati.