SHEKHAR @ CHHOTU Vs. STATE (NCT OF DELHI)

JUDGEMENT

(1.) SHEKHAR @ Chhotu (A -1) and Hari Om (A -2) question the legality and correctness of a judgment dated 13.12.2010 in Sessions Case No. 80/10 arising out of FIR No. 45/10 PS Gandhi Nagar by which they were held guilty for committing offences punishable under Sections 452/394/398/34 IPC. A -1 was also held guilty under Section 25 Arms Act. By orders on sentence dated 15.12.2010, A -1 was awarded RI for three years with fine Rs. 200/ - under Section 452 IPC; RI for five years with fine Rs. 500/ - under Section 394 IPC; RI for seven years with fine Rs. 500/ - under Section 398 IPC and RI for one year with fine Rs. 200/ - under Section 25 Arms Act. A -2 was awarded similar prison terms under Sections 452/394/398 IPC. The substantive sentences were to operate concurrently.

(2.) ALLEGATIONS against the appellants were that on 21.02.2010 at about 08.30 P.M. at Swastik Hosiery, 9/6563, Nehru Gali, Gandhi Nagar, they in furtherance of common intention with their associates (not arrested) committed house trespass and attempted to commit robbery. In the process, they caused injuries to Darshan Jain by a 'deadly' weapon. Both the appellants were apprehended at the spot. Daily Diary (DD) No. 31A was recorded at 2044 hours at PS Gandhi Nagar about the apprehension of two assailants having knives. Daily Diary (DD) No. 32A was recorded at 2048 hours on getting information that the owner of the shop was assaulted with a knife by some assailants. The investigation was assigned to ASI Zile Singh who with Const. Jaswant went to the spot. Bhushan Jain produced both the assailants to him. Darshan Jain had already been taken to SDN Hospital by PCR. The Investigating Officer lodged First Information Report after recording Darshan Jain's statement (Ex.PW -1/A). During investigation, statements of the witnesses conversant with the facts were recorded. After completion of investigation, a charge -sheet was filed against both the appellants; they were duly charged and brought to trial. The prosecution examined seven witnesses to substantiate the charges. In 313 statements, the accused persons pleaded false implication and claimed that on that day they had gone to purchase pants. A -2 had consumed liquor and was under its influence. They, however, did not examine any witness in defence. The trial resulted in their conviction as aforesaid.

(3.) ON scrutinizing the testimonies of PW -1 and PW -5, it reveals that they have given consistent version regarding the incident and have proved the role played by each of the assailants in the occurrence without major variation. Despite cross -examination, no material discrepancies could be elicited or extracted to disbelieve or discard their statements. No ulterior motive was assigned to any of these public witnesses for falsely implicating the appellants with whom they had no prior acquaintance or animosity. The victim who had sustained injuries with a sharp weapon was not expected to let the real culprit go scot free and to falsely implicate and identify innocent ones. The appellants were arrested at the spot and were given beatings by the public. They were taken for medical examination. They have not denied their presence at the spot. They did not adduce any evidence to prove that prior to arrival at the spot, they had purchased pants from a specific shop. No such shopkeeper was examined in defence. Nothing was revealed as to when and where A -2 had consumed liquor as alleged.