Delhi High Court
Kundan Lal @ Chhottu vs State (Govt. Of Nct Of Delhi) on 24 April, 2009
Author: Sunil Gaur
Bench: Sunil Gaur
HIGH COURT OF DELHI : NEW DELHI
Judgment reserved on: April 16, 2009
Judgment pronounced on: April 24, 2009
+ Crl. A. No.261/1999
% Kundan Lal @ Chhottu ... Appellant
Through: Ms. Purnima Sethi, Advocate
Versus
State (Govt. of NCT of Delhi) ... Respondent
Through: Mr. Amit Sharma, Additional
Public Prosecutor for State
COARM
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local
papers may be allowed to see the
judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be
reported in the Digest?
SUNIL GAUR, J.
1. Appellant- Kundan Lal @ Chhotu is aggrieved of the impugned judgment/order of 7th August, 1997, vide which he has been held guilty of trespassing into house of complainant and of causing injuries to Smt. Kanika (PW-1), while committing the offence of robbery and the trial court vide impugned order, has sentenced the appellant to undergo rigorous imprisonment for three years with fine of Crl. A. No. 261/1999 Page 1 Rs.500/- and in default thereof, to undergo simple imprisonment for one month for committing offence under Section 452 of the Indian Penal Code and to a further RI for seven years and fine of Rs.500/- and in default thereof to undergo rigorous imprisonment for four months for committing offence under Sections 397 of the Indian Penal Code. Besides it, appellant has also been convicted to rigorous imprisonment for one year and fine of Rs.100/- for committing offence under Section 25 of the Arms Act. These substantive sentences are to run concurrently.
2. Concisely put, the background facts emerging from the record of this case are as follows:-
On 21st April, 1995, on receipt of information through PCR, DD No.7-A was got registered at Police Station Krishna Nagar, Delhi and Sub- Inspector D.V. Gautam (PW-6), reached at the spot where he was told that the injured lady was got admitted in Monga Medical Centre, Krishna Nagar, Delhi. On reaching there, he recorded statement of injured- Kanta (PW-1) and got the case FIR No. 172 of 1995 registered against the appellant/accused for committing offence under Section 452/394/397 of the IPC. Sub Inspector Mathan Singh (PW-10) arrested the accused, recovered the knife/dagger and robbed gold chain Crl. A. No. 261/1999 Page 2 at his instance. After conclusion of the investigation, charge-sheet was filed in the court.
3. Appellant/accused was put to trial on the offence under Sections 452/394/397 of the IPC, as he had not pleaded guilty to the charges framed by trial court under the aforesaid provisions of law.
4. At trial, prosecution had got examined twelve witnesses to establish its case. Injured - Kanika (PW-1), on whose complaint FIR in question was got registered, deposed in her evidence about the details of this incident and the sum and substance of her version is as follows:-
On 21st April, 1995, at about 10:15 a.m., while injured-Kanika (PW-1) was alone at her home as her children had gone to the school and her husband had gone on duty, she closed the door of her house after her maid servant left and came to her room. There she saw the appellant/accused, who was armed with a knife, hiding behind the curtain. Appellant/accused kept the knife on her neck and asked her to take off her jewellery and gave knife blows on her chest, hips and right leg and snatched gold chain from her neck. She was made to lie on the bed and the appellant /accused tried to stab in her abdomen. As she raised alarm, the assailant ran away from there via the main entrance gate. She was got admitted in the hospital by her neighbours.
Crl. A. No. 261/1999 Page 3
5. The other material witnesses, who were examined by the trial court were Sanjay PW-2, husband of injured and Dr. V.K. Monga (PW-7), Sub Inspector Dharam Vir Gautam (PW-
6) and Sub-Inspector Mathan Singh (PW-10) had carried out the investigation of this case.
6. Appellant/accused in his statement under section 313 Cr. P.C., had denied the prosecution case put to him and pleaded that he was innocent and was falsely implicated in this case. However, appellant/accused had not led any evidence in his defence before the trial court.
7. After the trial, Appellant/accused stood convicted and sentenced as reflected above.
8. In this appeal, both the sides have been heard and with their assistance, the evidence on record has been perused.
9. Learned counsel for the appellant has drawn the attention of this court to the testimony of injured (PW-1) to point out that this witness has stated in her evidence that she had regained consciousness in the hospital and she stands contradicted by the initial Investigating Officer/PW-6, who has stated in his evidence that he had recorded the statement of the injured (PW-1) in the Nursing Home at about 12.00 noon. In this context, attention of this court is Crl. A. No. 261/1999 Page 4 also drawn to the evidence of Dr.P.K. Monga (PW-7), who has stated in his evidence that after anesthesia, patient is unfit for statement for a period of about four hours.
10. Learned counsel for the appellant has drawn the attention of this court to the evidence of Head Constable Gurjant Singh (PW-9) to point out that this police official is a witness to the arrest of the appellant/accused and to the recovery of the knife and his evidence is incomplete and so the same cannot be relied upon. It is also pointed out that the evidence of Sanjay (PW-2) husband of the injured is also incomplete and his evidence too, cannot be relied upon and the trial court has erred in doing so and, therefore, the conviction and the sentence imposed upon the appellant is unsustainable and deserves to be set aside. It is argued that the recoveries are planted and have been illegally relied upon by the trial court. Lastly, it is submitted on behalf of the appellant that the appellant has been falsely implicated in this case, at the instance of his land-lord, who has got the appellant trapped in this case through the complainant (PW-
1) and her husband (PW-2).
11. Learned Additional Public Prosecutor for the State submits that the impugned judgment is based upon the Crl. A. No. 261/1999 Page 5 evidence of the complainant/first informant of this case, which inspired the confidence of the trial court and it needed no corroboration. It is submitted that the prosecution case stands firmly proved from the evidence of the complainant (PW-1) and from the evidence of the Investigating Officer (PW-10). It is pointed out that recovery of robbed gold chain and weapon of offence stands amply proved from evidence on record and corroborates prosecution case. Thus, it is submitted that there is no merit in this appeal.
12. After considering the rival submissions of the parties, I find that even if incomplete evidence of Head Constable Gurjant Singh (PW-9) is excluded from consideration, it does not cause any dent in the prosecution case, because, this witness had remained with S.I. Mathan Singh, Investigating Officer of this case. Infact, the Investigating Officer of this case has clearly deposed about the arrest of the appellant/accused and about the recovery of knife from him. At best, it can be said that the evidence of the Investigating Officer does not stand corroborated from the evidence of Head Constable Gurjant Singh (PW-9). Learned counsel for the appellant is not correct in urging that the evidence of Sanjay (PW-2) is incomplete. It is matter of record that the evidence of this witness (PW-2) was recorded on 7th March, Crl. A. No. 261/1999 Page 6 1996, and he was recalled and was cross-examined by defence on 11th September, 2006.
13. After having analyzed the evidence of injured/ complainant (PW-1) in great detail, I find that she has clearly stated in her evidence that she was given knife blows on the day of the incident, by the accused present in the court i.e. appellant/accused herein and her gold chain was snatched from her neck by the appellant/accused and she was removed to the hospital by her neighbours. She has not stated in her evidence that she had become unconscious immediately after this incident. The ocular version stands firmly established from her deposition. It is only on reaching the Nursing Home, injured (PW-1) had become unconscious and she has stated in her evidence that she had regained consciousness in the hospital, but she does not give the time of regaining consciousness.
14. Learned counsel for the appellant has laid much emphasis on the fact that the FIR of this case has been ante- timed and has relied upon the evidence of the Doctor (PW-
7), initial Investigating Officer (PW-6). It is true that there is some overlapping of the timings given by these two witnesses, but it has not been suggested to the initial Crl. A. No. 261/1999 Page 7 Investigating Officer (PW-6) that he has ante-timed the FIR of this case. In any case, even if the FIR had been recorded after four or six hours of this incident, this could not have made any difference, and the prosecution would not have gained anything by ante-timing of the FIR. In my considered view, nothing material turns on this aspect.
15. The evidence of injured/complainant/PW-1 is of prime importance. This witness has clearly identified appellant/ accused as the assailant and has attributed specific role to him. Nothing worthwhile has come in the cross-examination of this material witness, by the defence, to disbelieve her version. I have found the version of the injured/complainant/ PW-1 to be truthful and reliable and the trial court has rightly relied upon her deposition.
16. The deposition of Sanjay Kumar/PW-2, husband of injured/complainant sufficiently corroborates the version of the injured (PW-1). There is no infirmity in the evidence of recovery of robbed gold chain (Ex.P-1) and weapon-knife (Ex.P-6) at the instance of appellant/accused and it further corroborates testimony of injured (PW-1). The specific stand taken by the Appellant/accused before this court is of being falsely implicated at the instance of his landlord through the Crl. A. No. 261/1999 Page 8 Complainant (PW-1) and her husband (PW-2) in this case, for getting him evicted from the tenanted premises.
17. Appellant in his statement under section 313 Cr. P.C. has not taken the aforesaid stand and the suggestion put by the defence to the injured/Complainant is of her having inimical relations with the Appellant/accused. The suggestion put to the husband (PW-2) of the injured/Complainant (PW-
1) is of Complainant's husband falsely implicating him in this case to get him evicted from his house.
18. The aforesaid suggestions given by the defence to the prosecution witnesses are without any foundation. It has not been suggested to Sanjeev (PW-2), husband of the injured/Complainant of this case that Appellant/accused is his tenant. Such like suggestion has not given to the injured/Complainant (PW-1). It needs to be emphasized that appellant/accused has not taken any such stand in his statement under section 313 Cr. P.C. nor has led any evidence in support of his aforesaid stand, which is neither probable nor plausible.
19. In the case of Shekhar and another vs. State of NCT of Delhi, 2008 Crl. LJ 3258, relied upon by the Appellant, a division bench of this court had given benefit of doubt in the Crl. A. No. 261/1999 Page 9 peculiar facts and circumstances of the said case and it has not been shown as to how the afore cited decision is of any help to the case of the Appellant/accused.
20. Upon close scrutiny of the entire evidence on record, I persuaded to uphold the conviction and the sentence imposed upon the Appellant by the trial court as I find that this appeal lacks merit. Resultantly, impugned judgment and order on sentence is hereby upheld and this appeal is dismissed as such.
21. During the pendency of this appeal, the sentence imposed upon the Appellant was suspended. He is on bail. His bail bond and surety bonds are cancelled. He is directed to surrender forthwith, failing which, trial court is directed to ensure that he is put behind bars, to serve out the remainder of the sentence as awarded by the trial court.
22. Trial court be apprised of this order, to ensure its compliance.
23. With aforesaid directions, this appeal stands disposed of.
Sunil Gaur, J.
April 24, 2009 rs/n/pkb Crl. A. No. 261/1999 Page 10