Kamal vs State
2009 Latest Caselaw 4313 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL.A. 338/1999

                                    Reserved on: October 13, 2009

                                 Pronounced on: October 26, 2009

#      KAMAL                                       ..... Appellant

!                        Through: Mr. Vikas Sharma, Advocate.

                  Versus

$      STATE                                 .....Respondent

^                        Through: Mr.Amit Sharma, Addl. P.P.
                                   for the State.

CORAM:

    HON'BLE MR. JUSTICE V.K. JAIN

       1. Whether Reporters of Local newspapers may be allowed to
          see the Judgment?

       2. To be referred to the Reporter or not?

       3. Whether the Judgment should be reported in the
          Digest?


V.K.Jain, J.

This is an appeal against the Judgment dated 5th June, 1999

and the Order of Sentence dated 21st June, 1999, whereby the

appellant was convicted u/s 397/34 of Indian Penal Code and Section

27 of Arms Act and was sentenced to undergo rigorous imprisonment

for 7 years and to pay a fine of Rs.2000/- or to undergo simple

imprisonment for 6 months in default u/s 397/34 IPC and was further

sentenced to undergo rigorous imprisonment for 1 year and to pay a

fine of Rs.500 or to undergo simple imprisonment for 1 month in

default u/s 27 of the Arms Act.

2. The case of the prosecution in nutshell is that on 27 th August,

1993 at about 5.20 p.m. when the complainant, Smt. Meena was

present in her house alongwith her son Deepak aged about 7 years at

that time, the appellant accompanied by two more persons including

his co-accused Subhash entered her house. Two of them, including

the appellant were armed with revolvers whereas the third one was

armed with a knife. On entering the house, the appellant fired a shot

from his revolver. The complainant was caught from her hair and

taken to the kitchen, where one of the boys put a knife on her

stomach and asked for the keys of the house. On her refusal, her

hands were tied and a piece of cloth was stuffed in her mouth. One

of them removed the her Mangal Sutra and ring whereas another

one removed bangles which she was wearing. The son of the

complainant ran out of the house and was taken to the nearby police

post by a passer-by. Two policemen accompanied the son of the

complainant to her house. When there was noise outside the house,

the assailants fired one more shot and ran outside. Two police

officials, accompanied by the son of the complainant were coming

from the opposite side. The appellant fired a shot towards the police

officials, but, one of them gave a stick blow to him and he was

apprehended, though his companions managed to run away. The

revolver used by the appellant was seized from his possession. One

live cartridge was recovered on the search of the appellant, besides

Mangal Sutra and ring of the complainant.

3. The complainant, Smt. Meena and her son Prakash are the star

witnesses of the prosecution, whose testimony has been fully

corroborated by PW-8, Constable Veer Pal and PW-11, Constable

Ram Babu. The complainant, Smt. Meena has stated that on 27th

August, 1993 while she was sitting in the courtyard of her house at

about 5 p.m., alongwith her son Deepak @ Pradeep, 3 boys including

the appellant entered her house. The appellant was having a

revolver in his hand and he fired a shot from that revolver. His co-

accused Subhash was having a knife in his hand. The third person

accompanying them was also having a revolver in his hand. They

dragged her to kitchen, gave beatings to her and sought the

valuables lying in the house. They removed her ear-rings and gold

ring which she was wearing at that time besides her Mangal Sutra

and four bangles. She did not notice when her son ran out of the

house, but, he returned alongwith the police and appellant Kamal

Singh was apprehended by the police on the spot. The police

recovered one countrymade revolver from the appellant and seized it

vide memo Exhibit PW-2/C which bears her signatures. Her gold-

ring, silver Mangal Sutra and one live cartridge were also recovered

from him and were seized by the police. She also identified the

jewellery which was removed from her person as well as the pistol

which was recovered from the appellant.

4. PW-1, Pradeep is the son of the complainant. He has stated

that on 27th August, three years before his deposition in the court,

three persons all of a sudden entered his house at about 5 p.m. He

identified appellant Kamal Singh as the person who fired a shot on

his mother and stated that he ran out of the house and raised alarm.

One boy took him to police station. He informed the police that three

persons had entered his house and fired at his mother. Two

policemen took him to his house on their motorcycle. The boy

identified appellant Kamal Singh as the person who fired at the

policeman and was apprehended by the police. He stated that the

police also gave a danda blow to the appellant who was then

overpowered by a few persons and apprehended by the police.

5. PW-8, Constable Veer Pal stated that on 27 th August, 1993 he

was on duty at police station Chowki Usman Pur when a boy aged

about 7-8 years came there and informed them that some persons

were beating his mother. He alongwith Constable Ram Babu went to

his house alongwith him. As son as they reached the corner of the

street, three boys were seen coming from the opposite direction.

Two of them were having kattas (countrymade pistols) in their hands,

whereas the third one was carrying a knife. One of them fired at

them. He gave a danda blow on the hand of the boy who had opened

fire and constable Ram Babu caught hold of him. They then went to

the house of the complainant, who was found lying in the passage

with her hands tied on the back and a piece of cloth stuffed in her

mouth. He opened with hands and removed the clothes from her

mouth. The witness has identified appellant Kamal as the person,

who was apprehended at the spot and stated that on his search, one

live cartridge, one ring and one Mangal Sutra was recovered from

his pocket. According to him, one empty cartridge was taken out

from the katta. The witness has identified the countrymade pistol,

which was recovered from the appellant as well as her Mangal Sutra

Exhibit P-9 and the ring Exhibit P-10.

PW-11, Constable Ram Babu fully corroborated the deposition

of PW-8 and identified appellant Kamal Singh as the person who was

carrying a countrymade pistol in his hand and was apprehended on

the spot. He has also identified the countrymade pistol and articles

of jewellery which were recovered from the pocket of the appellant.

The prosecution had also examined one public witness, Atal Bihari as

PW-3 but he did not support the prosecution.

6. In his statement u/s 313 of Cr.P.C., the appellant has denied

the allegations against him and stated that no such incident took

place in the house of the complainant and that he was forcibly picked

up from his house.

7. The first contention raised by the learned counsel for the

appellant is that though the countrymade pistol alleged to have been

recovered from the appellant was sent to the laboratory as stated by

PW-5, H.C. Asha Ram and PW-4, Constable Narender Singh, report

of CFSL has not been produced by the prosecution. In my view, in

the facts and circumstances of this case, nothing turns on the failure

of the prosecution to produce the report of CFSL in the court. In the

present case, the testimony of PW-1 Pradeep and PW-2, Smt. Meena

clearly shows that the appellant had fired from the countrymade

pistol which he was carrying in his hand. The testimony of PW-8,

Constable Veer Pal and PW-11, Constable Ram Babu also shows that

the appellant had also fired at the police officials from the

countrymade pistol which he was carrying in his hand. The very

same pistol was seized from him, there and then. The purpose of

obtaining report of the Ballistic Expert, in such cases, is to ascertain

whether the arm recovered from the accused was in a working

condition or not and whether it was actually a firearm or not. Since

there is positive testimony of PW-1, PW-2, PW-8 and PW-11 which

proves that the weapon being carried by the appellant was in

working condition since the appellant had fired from it firstly on

entering the house of the complainant and then towards the police

officials. Thus, the use of firearm by the appellant and its being in

working condition stands established even without the report of the

ballistic expert. This is not the case of the appellant that though he

was involved in the robbery, he was not carrying any weapon with

him. This is also not his case that the weapon which he was carrying

was not a fire-arm and was some toy gun. Therefore, failure of the

prosecution to produce the report of CFSL cannot be said to be fatal

in the facts and circumstances of this case.

8. The learned counsel for the appellant has referred to the

decision of the Hon'ble Supreme Court in Mohinder Singh Vs. State

AIR 1953 SC 415 where the Hon'ble Supreme Court observed that in

a case where death is due to injuries or wounds caused by a lethal

weapon, it is always the duty of the prosecution to prove by expert

evidence that it was likely or at least possible for the injuries to have

been caused with the weapon with which and in the manner in which

they are alleged to have been caused. In that case, the allegation

against the appellant Mohinder Singh was that he had fired at the

deceased from a distance of about 4-5 feet. The injuries proved to be

fatal causing his death on the spot. The appellant Mohinder Singh

was arrested later on and when asked whether he possessed a gun,

he produced a 12 bore gun for which he held a licence. The Director

of Laboratory opined that he could not say when that gun was fired

last. He could not say whether cartridges recovered from the spot

were actually fired from that particular gun or a similar gun. He did

not make any experiment by firing any cartridge from the gun of the

appellant nor did he compare the markings on the empty cartridges.

It was in these circumstances that the above noted observations

were made by the Hon'ble Supreme Court during the course of the

judgment. The present case before this court is, however, not a case

of injuries having been caused to the complainant from the weapon

of the appellant. The appellant has been prosecuted and convicted

for robbery and using a fire-arm in commission of the robbery. Even

if a person simply carries a fire-arm with him and it is seen by the

victim at the time of commission of the robbery that amounts to use

of the fire-arm in commission of robbery. It was held by the Hon'ble

Supreme Court in Phool Kumar Vs. Delhi Administration, AIR 1975

SC 905 if the accused armed with a knife and his associate armed

with a small gun terrorise the employees of a service station to hand

over the keys and after opening the office, they decamped with cash,

it was sufficient to bring the case within the purview of Section 397

of IPC. Therefore, failure of the prosecution to examine the ballistic

expert was not necessary in this case. The learned counsel for the

appellant has also referred to Kulwant Singh Vs. State of Punjab,

(1995) 4 SCC545 and State of Punjab Vs. Jagga Singh, AIR 1988 SC

3113. In the case of Kulwant Singh (Supra), there was omission to

seal the pistol at the time of seizure and to send the cartridges for

testing whereas in the case of Jagga Singh, there was no evidence of

sending the arms and cartridges to CFSL and no report was

produced to prove that the gun alleged to have been recovered from

the accused was in a working condition and the cartridge alleged to

have been recovered from him were live. The conviction of the

accused in these circumstances was not approved by the Hon'ble

Supreme Court. However, in the present case, we have direct

evidence of use of a fire-arm by the appellant. PW-1, PW-2, PW-8

and PW-11 have deposed about use of firearm by the appellant. In

view of their positive evidence, it cannot be disputed that the weapon

used by the appellant was a fire-arm and, therefore, failure of the

prosecution to produce the report of the CFSL would be immaterial

in the facts of the present case. The learned counsel for the

appellant has also referred to State of M.P. Vs. Surpa, AIR 2001 SC

2408. This was also a case of murder where the loaded gun seized

from the place of occurrence and the bullets removed from the chest

cavity of the deceased were not sent to ballistic expert though the

case of the prosecution was that the deceased had received pallet

injuries on his chest and jaws. IO, on the other hand, stated that the

deceased received pallet injuries on tongue, chest, chin etc. In these

circumstances, not sending them to the ballistic expert was held to

be a serious infirmity in the case of the prosecution as there was no

reconciling of the recovery of pallet from the chest cavity of the

deceased and the presence of the pallet injuries as deposed to by the

witnesses. Since, we have positive evidence of a number of

witnesses regarding use of weapon by the appellant, failure to

produce the report of the CFSL would not be material in the present

case.

9. It was pointed out by the learned counsel for the appellant that

according to PW-8 and PW-11, they were in civil dress whereas

according to PW-10, SI Sunder Lal, who is the IO of the case, they

were in uniform. It was further pointed out that according to PW, he

came to spot on motorcycle of police officials, according to PW-8 and

PW-11, they had come on foot. When viewed against the positive

testimony of PW-1 & PW-2, which stands fully corroborated by the

testimony of PW-8, Constable Veer Pal and PW-11, Constable Ram

Babu, this contradiction cannot be said to be material. The presence

of PW-8, Constable Veer Pal and PW-11, Constable Ram Babu at the

spot has been confirmed by the complainant as well as by her son.

They have also signed the seizure memos of the weapon as well as of

the jewellery of the complainant. Therefore, it would be immaterial

whether they were in the civil dress as or were in uniform and

whether they came on foot or on a motorcycle.

10. It has to be kept in mind that the incident took place in August,

1993. PW-1 who is a small child was examined in October, 1996.

PW-8 was examined in February, 1998 and the Investigating Officer

was examined in November, 1998. The I.O. was cross-examined more

than 5 years after this incident took place.

Memory fades with the passage of time and it is not possible

for the witnesses, when examined after such a long period, to fully

recollect all the facts of an incident which took place many years

ago. If there are normal discrepancies on matters which are

peripheral or are trivial and do not form the core of the case, it is not

proper to reject the testimony of a witness on the ground of minor

variation or infirmities in trivial details. As observed by the Hon'ble

Supreme Court in Krishna Mochi vs. State, 2002 IV AD (SC) 45,

normal discrepancies are those which are due to normal errors of

observation, normal errors of memory due to passage of time due to

mental disposition such as shock and horror and are always present,

however, truthful witness may be. The court must appreciate that

not everyone has equal capacity of observation, retention and

reproduction, which varies from individual to individual. Therefore,

it is quite natural if even honest and otherwise reliable witnesses,

while giving their respective version of a incident, differ on some

minor details which are not directly related to the main incident

witnessed by them. If the trial court, which had the opportunity to

observe the demner of the witness, has believed a witness, the

Appellate Court should not take a contrary view on the reliability of

such a witness, except for strong reasons. It is observed by Hon'ble

Supreme Court in Leela Ram (Dead) through Duli Chand Vs. State of

Haryana and Anr. , AIR 1999 SC 3717 that the discrepancies unless

they are vital in nature cannot by itself affect the credibility of a

witness and unless contradictions are on material dimension they

should not be used to Jettison the evidence in its entirety and trivial

discrepancies ought not to obliterate otherwise acceptable testimony

of a witness. It was observed in Dhanvir and Others vs. The State,

85(2000) DLT 711, human memory is not mere a computer where

memory can be fed or restored for all times to come and later on

when retrieved it would be verbatim the same. A human being,

when he describes some incident in natural course, some variation is

bound to take place so long as the variations are not natural they

ought to be ignored.

11. It was next pointed out by the learned counsel for the

appellants that as per the case of the prosecution, 3 shots were fired

by the assailants out of which at least two shots are alleged to have

been fired by the appellant but only one empty cartridge has been

seized by the police. That cartridge was found in the pistol being

carried by the appellant. No doubt, according to the complainant it

was the appellant Kamal who fired a shot in her house and according

to PW-8, Veer Pal and PW-11, Ram Babu, the shot towards them was

also fired by him, and therefore, even if it is accepted, as contended

by the learned Additional Public Prosecutor that one empty cartridge

may be in the pistol being carried by the co-accused of the appellant,

two empty cartridges could have been seized. I, however, find that

there has been no cross-examination of the IO on this aspect of the

case. He was not asked as to whether he had made any effort to

trace the second empty cartridge at the spot or not. It was also

contended by the learned counsel for the appellant that only two

pieces of bullet were seized by the IO, one amongst the broken

bangles and the other lying on the floor, whereas the case of the

prosecution is that three bullets were fired; one when the robbers

entered the house, second when there was noise outside the house

and the third towards the policemen. Again, there has been no

cross-examination of the IO on this aspect also. The Court doesn't

know whether the IO did not make any effort to recover all the three

bullets and both the empty cartridges or he could not trase them

despite efforts. In the absence of cross examination on these

aspects, the Investigating Officer had no opportunity to explain why

only one empty cartridge and pieces of only 2 bullets were seized by

him. Therefore, no adverse inference in this regard can be drawn

against the prosecution. Even if it is presumed that there has been

negligence on the part of the IO in not making effort to trace the

second empty cartridge, and third bullett, the case of the prosecution

which otherwise stands fully proved cannot be discarded on this

ground alone. In Karnal Singh Vs. State of M.P. , JT 1995 (6) SC 437,

the Hon'ble Supreme Court found that the approach of I.O. was

casual and defective. It was needed trial, it is not proper to acquit

the accused on account of defective investigation if the case

otherwise stands established. Acquitting accused on account of

defective or negligent investigation would be falling into the hands of

an erring IO. In Ram Behari Yadav v. State of Bihar & Ors, JT 1998

(3) SC 290, where it was found that the I.O. had created a mess, to

bail out the culprit, the Hon'ble Supreme Court observed that in such

cases the story of the prosecution is to be examined de hors

contaminated conduct of the IO, otherwise the mischief deliberately

done would be perpetuated.

In any case nothing really turns on non seizure of other empty

cartridges and fired bullets, when viewed in the light of positive

statements of complainant, her son and two constables, coupled by

recovery of pistol, and stolen property from the possession of the

appellant.

12. It was also pointed out by the learned counsel for the appellant

that the seal of SLP used by the IO for the purpose of sealing is

stated to have been given to Constable Brahm Pal, who has not been

examined and the IO himself has not spoken about sealing. The

examination of Constable Brahm Pal was not necessary in the facts

of this case as the appellant was apprehended on the spot and the

weapon which he had used during the commission of robbery was

also seized from him there and then in the presence of three

witnesses including the complainant, Smt. Meena. This is not a case

of case property being recovered at a later date. Therefore, it was

not necessary for the prosecution to examine Constable Brahm Pal to

prove that the seal remained with him till the time the case property

was deposited in Malkhana of the police station, and therefore, there

was no possibility of tampering with the case property. The entry in

register No.19 Exhibit PW-5/A also shows that these parcels were

sealed with the seal of SLP when they were deposited in the

malkhana of the police station. Another important aspect in this

regard is that the appellant does not claim the stolen property i.e.

ring and mangal sutra, which were removed from the possession of

the complainant and were found with him when he was apprehended

on the spot. The complainant on the other hand has specifically

identified her articles of jewellery. It was held by the Hon'ble

Supreme Court in Erabhadrappa alias Krishnappa vs. State of

Karnataka, AIR 1983 SC 446, that where a lady witness identifies the

stolen articles such as ornaments and sarees at the trial without

prior Test Identification Parade, the testimony of such a witness was

not inadmissible in evidence for want of prior Test Identification

Parade, as ladies have uncanny sense of identifying their own

belongings, particularly the articles of personal use. A particular

article may be identified by any advance mark on it or by frequent

use or observation which causes a permanent impression on the

mind of identifier, that leads to recognition of the article. In the

present case, not only the stolen articles have been identified by the

complainant, they were seized from the appellant on the spot in her

presence.

The learned counsel for the appellant has referred to State of

Rajasthan Vs. Daulat Ram, AIR 1980 SC 1314 where in a prosecution

under OPM Act, the prosecution had not examined the police officials

and Assistant Public Analyst to prove that while in their custody, the

seals were not tampered with. It was held that the effect of the

omission was that the prosecution had failed to rule out the

possibility of the case property being changed or tampered with

during this period. As noted earlier, not only do we have positive

testimony of the witnesses regarding use of firearm and theft of

jewellery by the appellant from the person of the complainant, the

stolen property itself has been recovered from the appellant in the

presence of complainant and other witnesses. The jewellery has

been identified by the complainant and the appellant has not claimed

any of the articles recovered from his possession. In these

circumstances, failure to examine the Constable Brahm Pal to whom

the seal was handed over is not at all material. There is no merit in

the contention that the IO has not spoken about sealing. I find that

he has specifically stated that he prepared the sealed pulinda of

katta and taken the katta and cartridge into possession. He further

stated that on search of the appellant, one silver locket, one golden

ring and one live cartridges were recovered from the left side pocket

of his pant and separate pulandas were prepared for these articles,

which were taken into possession vide memo exhibit PW-2/D. The

seizure memo specifically records that the parcels were sealed with

the seal of SLP. A perusal of the judgment of the trial court shows

that no such contention was raised before it.

The learned counsel for the appellant has referred to the

decision to the Hon'ble Supreme Court in Mukhtiar Ahmed Ansari

Vs. State (NCT of Delhi) (2005) 5 SCC 258. In that case while

examining whether prior approval of Deputy Commissioner of Police

required u/s 20A of TADA (P) Act was obtained or not, the court

noted that according to PW-11, Mehar Singh, Deputy Commissioner

had come on the spot and had given an oral direction to register a

case under TADA against the accused. The prosecution contended

that prior approval had, thus, been granted u/s 20A(1) of TADA(P)

Act. The argument was rejected by the Hon'ble Supreme Court

noticing that the Deputy Commissioner of Police had been

summoned and he had not stated that he had given any such

direction to PW-11 to register the case under TADA. On the

contrary, he had clearly stated that he had granted sanction Exhibit

PW4/1, which the Hon'ble Court noted was under Arms Act and not

under TADA. In these circumstances, it was held that prior approval

as required u/s 20A(1) had not been accorded and, therefore, the

proceedings were vitiated. This judgment absolutely has no bearing

at all to the facts of the present case where no statutory sanction

was required for prosecution of the appellant.

13. The defence taken by the appellant is that in fact no such

incident took place and he was picked up from his house and

implicated in a false case. During the course of arguments, it was

contended by the learned counsel for the appellant that a bravery

award has been given to PW-1 and in fact this whole story of robbery

was cooked up by PW-2 in connivance with the police officials, only

in order to get bravery medal for her child. The defence taken by the

appellant, to my mind is highly improbable and unlikely. It is

inconceivable that a lady would concoct a story of this nature and

would also involve her son into it merely for the purpose of claiming

an award for her child. I fail to appreciate how the complainant

could have been sure that her child would be given a bravery award

in case she came up with such a story, in connivance with police

officials and that too of the rank of constables. In fact, giving of

award to the son of the complainant indicates that the incident must

be true and that is why he was rewarded with bravery award. No

reason has been given by the appellant for the police officials to

connive with the complainant, so as to get an award for her child.

This police officials were not related to her or otherwise friendly with

her. Though the case of the appellant is that the complainant is a

social worker, she has specifically stated in her cross-examination

that she is not a social worker and no evidence has been led by the

appellant to prove that complainant is in fact a social worker and

was closely associated with police officials. Moreover, the matters of

giving bravery award are not decided at the level of junior police

officials, and therefore, it cannot be accepted that two constables

had joined hands with the complainant to get a bravery award to her

child.

14. The appellant has not given any reason as to why the

complainant, her son and police constables have chosen to implicate

him in this case, presuming that they wanted a bravery medal for the

son of the complainant. This is not the case of the appellant that

there was any enmity between him and the complainant or between

him and the police constables. He also does not claim to be a bad

character of the locality. Therefore, there could have been no reason

either for the complainant and her son or for the police officials to

implicate the appellant in a false case of armed robbery.

Though according to the appellant, he was taken from his

house and implicated in this case, I find that during cross-

examination of PW-2, it was suggested to him that the appellant was

caught at a distance of about 2 to 4 feet from his house. Thus,

contrary defence has been taken as regards the place from where

the appellant was apprehended.

15. It was pointed out by the learned counsel for the appellant that

PW-1 Pradeep had been tutored by his mother as he has admitted in

his cross-examination that he had deposed whatever he was told by

her mother. In my view, PW1 cannot be said to be a tutored witness.

He has specifically denied the suggestion that he would not have

deposed if he had not been told so by his mother. This implies that

though the mother may have asked him to tell as to what he was

expected to depose in the court, his deposition in the court was even

otherwise true. The trial court put certain preliminary questions to

the child before he was examined on oath. He was asked in which

school he was studying. The child gave the name of the school. He

also told the court that he knew that he must speak truth because

truth is good and telling a lie is very bad. From the questioning of

the child, the trial court was satisfied that he understood sanctity of

the oath. Thus, it cannot be disputed that this particular witness was

capable of understanding the nature of the questions that were put

to him and of giving rationale answers to them. He was subjected to

cross-examination but on the merits of the case, his testimony could

not be impeached during cross-examination. Therefore, he appears

to be a reliable and trustworthy witness. In any case, even if the

testimony of PW1 Pradeep is altogether excluded, the deposition of

the complainant corroborated by PW-8 and PW-11 and further

corroborated by the recovery of countrymade pistol and stolen

jewellery from the search of the appellant otherwise prove the case

of the prosecution beyond any reasonable doubt.

16. For the reasons given in the preceding paragraphs, I hold that

the appellant has rightly been convicted u/s 394 r/w Section 397 of

IPC. Subhash, co-accused of the appellant, who was also convicted

alongwith him did not prefer any appeal and, therefore, must have

undergone the sentence imposed upon him. Though the appellant

has been convicted u/s 397 of Indian Penal Code, the right course

would have been to convict him u/s 394 of IPC r/w Section 397

thereof, as Section 397 of the Indian Penal Code by itself does not

create any specific offence and only prescribes a minimum sentence

if a deadly weapon is used or grievous hurt is caused to any person

in committing robbery or dacoity or an attempt to cause death or

grievous hurt to any person is made.

17. Since the appellant also used a firearm in commission of a

robbery, he has also been rightly convicted u/s 27 of the Arms Act.

As the appellant has been awarded minimum prescribed sentence of

7 years, there is no scope for interfering with the sentence awarded

to him.

The appeal being devoid of any merits, the same is hereby

dismissed. One copy of this order be sent to the trial court and the

other be sent to the Jail Superintendent, Tihar for information of the

appellant and for record.

(V.K. JAIN) JUDGE October 26 , 2009/sk