VIRENDER KUMAR Vs. STATE

JUDGEMENT

(1.) By the present appeal, Virender Kumar @ Bittoo challenges the impugned judgment dated 6th May 2017 convicting him for the offences punishable under Sections 392/411/34 IPC in FIR No. 35/2009 registered at PS Karawal Nagar and the order on sentence dated 29 th September 2016 directing him to undergo rigorous imprisonment for a period of four years and to pay a fine of 5,000/- and in default whereof to undergo simple imprisonment for a period of one year for the offence punishable under Section 392 IPC and undergo rigorous imprisonment for a period of three years for the offence punishable under Section 411 IPC.

(2.) Assailing the conviction, Learned Counsel for the appellant contended that the information was received regarding the co-accused Satpal, but the appellant was arrested without any information. Complainant knew co- accused Satpal but did not know the appellant. There is no information as to how the appellant was identified. He further contended that as per the testimony of the Investigating Officer (IO), the complainant was present at the time of the recoveries which were made from the house of the appellant and the co-accused Satpal, but the complainant in his testimony stated that the recovered articles were shown to him later on. He further contends that he did not go to the house of the co-accused and the appellant and no arrest was made in his presence. He contends that PW-3, PW-4 and PW-10, official witnesses to the recovery, have given different addresses of the house of the appellant. Two other accused persons arrested upon the disclosure statements of the appellant and co-accused Satpal, have been acquitted as complainant failed to identify them. Co-accused Ravinder who was arrested was discharged as TIP failed. No TIP of the appellant was conducted. He further contends that version of the complainant in examination-in-chief cannot be relied upon as in his cross-examination he admits that appellant and Ravinder were shown to him in police station, still he did not identify Ravinder but identified appellant in the court. He contends that Milan (PW-2) eyewitness has not been fully cross-examined. Thus his evidence cannot be looked into. However, he claims that even if taken into consideration Milan does not support the prosecution case. He further prays that the appellant be acquitted or in the alternative released on the sentence already undergone.

(3.) Per contra, Learned APP for the State submits that the purported improvements in the statement of the complainant are the detailed explanation of facts which could not be narrated in detail in the FIR and deposed to in the Court. He states that the complainant was examined four years after the date of incident, thus there cannot be exact recollection of the incident, thus, his evidence should be given credence. He further contends that the complainant affirms his signature on the arrest memo of the appellant and duly identified the gold bangles which were recovered from the house of the appellant. He contends that the appellant was arrested at the instance of the complainant, thus the question of TIP of the appellant does not arise.