Pradeep Kumar vs State
2011 Latest Caselaw 6275 Del

*       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

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

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

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

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

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'