VICKEY Vs. STATE (GNCT OF DELHI)

JUDGEMENT

(1.) Convicted for offence punishable under Sections 395/34 Penal Code Vicky and Harish @ Zahar challenge the impugned judgment dated 10th May, 2016 and the order on sentence dated 16th May, 2016 directing them to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 20,000.00 each.

(2.) Assailing the conviction, Learned Counsel for Vicky submits that there is contradiction in the examination-in-chief and cross examination of PW-7 Pawan Bishnoi. He stated that he saw the accused persons for the first time in PS Ashok Vihar on 30th Aug., 2014 in morning hours. He belied the time of arrest as it was shown as 7:30 P.M. on 30th Aug., 2014 in the arrest memo. No public witness was associated at the time of arrest though the area wherefrom Vicky was allegedly arrested is a crowded area. Vicky and Harish were forcibly removed from their respective houses and falsely implicated. The MLC does not specify the probable time of injury. Further as per the opinion of the doctor injury could be by fall as well. Alternatively, it is prayed that the appellants be released on the period already undergone.

(3.) Learned Counsel for Harish @ Zahar submits that the offence punishable under Sec. 395 Penal Code is not made out as the prosecution has failed to prove that there were five persons. In the FIR presence of 4-5 persons is mentioned. Onus was on the prosecution to prove that five or more persons were involved in the alleged offence. Thus, benefit of doubt be granted to the appellants. There are material improvements in the testimony of Pawan Bishnoi with respect to the amount of money and description of the accused persons. Harish did not refuse to undergo test identification parade. The alleged recovery from Harish and his identification are doubtful.