Mukesh @ Vicky v. State

order on sentence.

¶19Appeal is accordingly dismissed.

¶20Copy of this order be sent to Superintendent Central Jail Tihar for updation of the Jail record.

¶21TCR be returned.

(MUKTA GUPTA) JUDGE JANUARY 10, 2020 'sk'/'vn'

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on: 14thAugust, 2019 Decided on: 10th January, 2020 + MUKESH @ VICKY ..... Appellants Represented by: Aditya Wadhwa and Harshitha K. Reddy, Advocates versus STATE ..... Respondents Represented by: Amit Gupta, APP for the State with SI Madan Lal CORAM: HON'BLE MS. JUSTICE MUKTA GUPTA 1. By this appeal, appellant Mukesh @ Vicky challenges the impugned judgment dated 7th December 2011 wherein he was convicted for offence punishable under Section 397 IPC in FIR No. 190/2009 registered at PS Dwarka and the order on sentence dated 7th December 2011 whereby the appellant was directed to undergo rigorous imprisonment for a period of seven years and to pay a fine of ₹10,000/-, in default whereof to undergo simple imprisonment for a period of three months. 2. Assailing the conviction, learned counsel for the appellant contends that the differing statements of the complainant belies the case of the prosecution. There are various contradictions in her complaint, her statement before the police and her statement before the court. He contends that the complainant has increased the articles looted from her and her friend Deepak in each of her statements. The complainant in her complaint mentioned about a girl who was tall, thin and fair complexioned while in her later statements there is no mention of the said girl. He further contends that there was no mention of the use of knife in the complaint and it was only a later improvement which casts a doubt on the credibility of the version regarding use of knife. Seizure of the knife took place in the police station, whereas the arrest of the appellant as per the prosecution was from the jhuggi, which also casts doubt on the case of the prosecution. Eyewitness Deepak turned hostile and did not support the case of the prosecution. He further contends that the proceedings with respect to the seizure of cheque and knife from the accused are suspicious. The cheque was seized from a jhuggi at Sanjay Basti, Timarpur. There is no mention of the cheque in the complaint. Lack of site plan from where the seizure of the cheque was made and absence of public witness at the time of seizure casts a serious doubt regarding the said recovery. Even recovery of the gold bangle and alleged pointing out by the accused Amarjeet is highly suspected. He further contends that no adverse inference can be drawn from the refusal of the appellant to join the TIP. 3. Per contra, learned APP for the State submits that the complainant in her testimony has explained the so-called contradictions in the statement made before the police and the complaint made. He further contends that the complainant has explicitly identified the appellant in the court. The recovery of cheque was duly proved by PW-11 and PW-13. Further, the cheque belonged to the complainant which fact has also been duly proved. The jewellery items were duly identified by the complainant in TIP proceedings. 4. Brief facts of the case are that on 1st April 2009, at about 4:28 P.M., information was received that "Plot No. 51, MIG Flat, Sector 14, Pocket -B, gadi vala phone aur paise lekar bhaag gaya". Aforesaid information was recorded vide DD No.22 (Ex.PW-6/A) and was assigned to ASI Ashok Kumar. He along with Ct. Chhotey Lal Singh reached at the house of the complainant and thereafter he along with the complainant reached at the spot. He recorded the statement of the complainant wherein she stated that she works as a teacher in R.P. Memorial School, Mohan Garden and after completion of her duty at around 2:30 P.M. she took a bus from Dwarka Mor and got down from it near NSIT corner. She started walking towards her house and reached near Sector 15 at about 3:05 P.M. After crossing the road leading towards Sector 14, she started walking alongside the footpath and when she reached the bus stand, she saw one white colour Maruti Van parked over there. She stated that one man was sitting on the driver's seat and anot