BABLOO @ UMESH KUMAR Vs. STATE

JUDGEMENT

(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 complainants 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.) 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 appellants 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 Babitas sister -in - laws 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 appellants 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.