* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. Appeal No. 586/1999
% Reserved on: 21st November, 2011
Decided on: 21st December, 2011
PRADEEP KUMAR ..... Appellant
Through: Mr. S.K. Srivastava, Adv.
versus
STATE ..... Respondents
Through: Mr. Manoj Ohri, APP for the State.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. In the present appeal the Appellant lays a challenge to the judgment dated 29th September, 1999 convicting him for offence under Section 307 IPC and the order on sentence dated 30th September, 1999 directing him to undergo Rigorous Imprisonment for a period of 7 years and fine of Rs. 1000/- and in default of payment of fine to further undergo Simple Imprisonment for three months.
2. Learned counsel for the Appellant contends that on the same set of facts allegedly proved by the prosecution the co-accused has been acquitted. The name of the Appellant is not mentioned in the FIR. Also in the MLC the victim was found to be conscious, however the complainant does not Crl.A. 586/1999 Page 1 of 6 implicate the Appellant or the other accused. Even S.I. Phool Singh, who took the complainant to the hospital in PCR, does not state anything about the involvement of the Appellant. The allegations in the FIR were that the co-accused allegedly caught hold of the complainant PW1 and the Appellant gave knife blows. The witnesses have not supported this version and have turned hostile. It is contended that once the co-accused who caught hold of the victim has been acquitted, it is not possible that the Appellant would have inflicted the knife blows. The prosecution case rests on the testimony of PW1, the injured complainant, PW2, his brother and PW7, the manager of the cinema hall. It is averred that these witnesses are interested witnesses hence their testimony cannot be relied upon. Only one witness has been examined qua the arrest and alleged seizure at the instance of the Petitioner. PW2 Rambir was not present at the spot, however still the seizure memo has been signed by him. Thus, the Appellant is liable to be acquitted.
3. Learned APP on the other hand contends that the Appellant has been named in the FIR. PW1, PW2 and PW7 have fully supported the prosecution case. The co-accused Uma Shankar was acquitted because the witnesses could not correctly identify him. As regards the Appellant he was identified and his role was clearly described by the witnesses. Further at the Crl.A. 586/1999 Page 2 of 6 instance of the Appellant, a chhuri was recovered which was duly identified by PW1 and PW2. As per PW3 Dr. A.K. Jain who prepared the MLC Ex.PW3/A, the injury was opined to be dangerous and surgery was advised. PW4 Ct. Narender Pal is the witness of arrest and recovery of chhuri at the instance of the Appellant who has also supported the prosecution case. PW5 SI Rambhool Singh is the witness who had taken the injured in the PCR to the SDM hospital. This witness has not been cross-examined and thus his testimony has gone unchallenged. PW7 Surjit Singh is an independent witness who has identified the assailants. PW7 has further corroborated that the Appellant indulged in entering the hall without ticket which was not permitted by PW1 resulting in him being assaulted. Thus, on the basis of the evidence placed on record the prosecution has been able to prove beyond reasonable doubt that the Appellant has committed an offence under Section 307 IPC and is thus liable to be convicted and sentenced thereon.
4. I have heard learned counsel for the parties. Briefly the case of the prosecution as stated by PW1 Ram Asre, the injured is that on 1st January, 1992 he was on duty at Chand Cinema, Kalyanpuri as a gate keeper. His duty was from 11.00 AM to 10.00 PM. After finishing his duty when he was coming to his house with his brother Rambir, the Appellant met them on the Crl.A. 586/1999 Page 3 of 6 way. They boarded a bus route No. 351 from the bus stop of Chand Cinema which was also boarded by the Appellant. The Appellant had an altercation with the PW1 and he stabbed PW1 in his abdomen with a chhuri. As PW1 tried to hold the chhuri he received injuries on his hand also. The Appellant alighted from the bus and ran away. At the time of incident, PW1, the Manager Surjit Singh was also with them as he had also boarded the same bus from the same stop. According to PW1 the Appellant injured him because he was not allowed to enter the cinema hall without ticket and he used to sell tickets in black at Chand Cinema. Earlier also PW1 and the Appellant had a quarrel. According to PW1 there was one more boy with Pradeep who had caught hold of him when Pradeep stabbed him, however he could not identify the other boy. The witness has been cross-examined by the learned APP with regard to the identity of co-accused Uma Shankar, however the witness failed to identify him. This witness was cross- examined, however, nothing could be elicited from his cross-examination. This version of PW1 is corroborated by PW2 Rambir Singh, his brother and PW7 Surjit Singh, the Manager of the Cinema hall.
5. I find no merit in the contention of the learned counsel for the Appellant that on the same facts since the co-accused has been acquitted, the Crl.A. 586/1999 Page 4 of 6 Appellant could not have been convicted. A perusal of the testimonies of the witnesses PW1, PW2 and PW7 prove that the Appellant was the assailant though they have failed to identify the other person, who was present along with the Appellant on the day of incident. Though PW7 has stated that the two accused persons grappled with the PW1 but has stated that he does not know which of the accused gave injury to PW1 on the abdomen, however on all other points he has corroborated the version of PW1. Further the non- mentioning of the names of the assailants by the PW1 in the MLC though he was well oriented and conscious does not cast any dent on his otherwise cogent and clear testimony. Suffice it is to say that the PW1 was immediately taken to the hospital and admitted there at 10.15 PM on 1 st January, 1992. At the instance of the Appellant there is recovery of chhuri. Both PW1 and PW2 have identified the knife to be the same with which the Appellant gave the injuries on the abdomen of PW1. Thus, the recovery of knife stands proved and the weapon of offence is connected to the injuries caused. Further the prosecution has examined PW4 Constable Narender Pal, who is a witness to the arrest and seizure of chhuri at the instance of the Appellant, besides PW8 the Investigating Officer SI Rajpal Singh. Further the chhuri recovered from the Appellant was sent to the FSL for examination Crl.A. 586/1999 Page 5 of 6 wherein it opined presence of human blood though the particular group to which the blood belonged could not be given. Thus, the evidence of PW1 is duly corroborated by that of PW2, PW7 and the MLC. Keeping in view the evidence placed on record. I find no infirmity in the impugned judgment.
6. The appeal is dismissed. The Appellant is in custody. He would undergo the remaining sentence.
(MUKTA GUPTA) JUDGE DECEMBER 21, 2011 'ga' Crl.A. 586/1999 Page 6 of 6