Kishori @ Nawal Kishore vs State (Nct Of Delhi)
2011 Latest Caselaw 4411 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+         Crl. Appeal No. 442/2011 & Crl. M.B. 583/2011

%                                          Reserved on: 16th August , 2011

                                           Decided on: 9th September, 2011

KISHORI @ NAWAL KISHORE                                    ..... Appellant
                   Through:             Ms. Sahila Lamba, Adv.
               versus
STATE (NCT OF DELHI)                                      ..... Respondent
                   Through:             Mr. Manoj Ohri, APP for State with
                                        Mr. Satinder Mohan, SI, P.S. IGI
                                        Airport.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may        Not Necessary
   be allowed to see the judgment?

2. To be referred to Reporter or not?               Yes

3. Whether the judgment should be reported          Yes
   in the Digest?

MUKTA GUPTA, J.

1. By this appeal the Appellant challenges the judgment dated 30th April,

2010 convicting him for offences punishable under Section 394/397/34 IPC

and the order on sentence dated 7th May, 2010 directing him to undergo

Rigorous Imprisonment for 7 years for offences punishable under Section 394

IPC and 397 IPC and fine of Rs. 2,000/-, further in default of payment of fine

to undergo Simple Imprisonment for 1 month for offence punishable under

Section 394 IPC.

2. Learned counsel for the Appellant contends that the Appellant has been

falsely implicated. No TIP of the Appellant was conducted and there was no

light at the place where the alleged incident occurred. Hence the witnesses

could not have been in a position to identify the Appellant. The Appellant

was not apprehended at the spot. Further the application of TIP of the

Appellant was meaningless as the Appellant was first taken in Police custody

and shown to the witnesses. Moreover, the Appellant was not brought in

muffled face before the Learned Metropolitan Magistrate. The witnesses have

not been able to identify the person who was apprehended at the spot. Thus,

the identification of the Appellant, of whom only a glimpse if at all was

available to the witnesses, was insufficient for identification. Since the main

accused has already been acquitted, the Appellant is also entitled to be

acquitted. Further there are major contradictions in the statement of the

witnesses regarding recovery of the weapon of offence that is knife. It is

contended that in the absence of test identification parade and recovery of

weapon of offence having not been proved there is no evidence placed on

record against the Appellant and hence he is entitled to be acquitted.

3. Learned APP for the State on the other hand contends that the alleged

incident took place on the 17th November, 2006 and the Appellant was

arrested at the instance of the co-accused on the 18th November, 2006. On

19th November, 2006 an application for TIP was moved when the Appellant

was brought before the Learned Metropolitan Magistrate in muffled face. The

Appellant refused to join the TIP proceedings on the ground that photos of the

Appellant were taken from his wife and shown to the witnesses. No witnesses

have been given this suggestion. Further after refusal of the TIP PW1 Rajesh

identified the Appellant in the Court. Pursuant to the disclosure of the

Appellant recovery of knife was effected and the same was blood stained.

PW2 Dr. Sayyed Hassan has proved the MLC and the opinion thereon has

been proved by PW4. As per the FSL report proved by PW19 and PW20 the

blood on the knife was of 'B' group. There is no contradiction in the

testimony of PW2, PW14 and PW18 the recovery witnesses and hence no

case for acquittal is made out.

4. I have heard learned counsel for the parties. PW1 Rajesh Kumar the

injured complainant in his testimony has stated that on 17th November, 2006

while he was working as a casual labour after finishing his work he took Rs.

2,000/- from his friend and with the other money he was having, a total Rs.

3,200/- were in his pocket. At about 5.30 PM while he was passing through

the jungle area of IGI Airport he saw three boys standing in the bushes. They

came forward towards him and asked him to stop. He started running but one

of the boys apprehended him and the said boy struck him with knife (meat

katne wala chaku) on his head resulting in minor injury. Thereafter the same

boy put his knife upon his cheek. In the meantime other two boys also

arrived. The said boy started beating him with fists and leg blows. Thereafter

one of them being a juvenile M who was tried before the Learned Juvenile

Justice Board searched his pocket whom he identified in the TIP proceedings

had taken out Rs. 3200/- from his pocket. In the meantime another boy

stabbed him with the knife on his left side rib. On the complainant's raising a

cry, the said assailant again struck on his left shoulder side. However, M and

the present Appellant managed to flee away from the spot. Thus, the

Appellant has been clearly identified as the assailant who gave injury to PW1

below his left rib portion and on the shoulder while committing robbery, while

other accused robbed him of his belongings. I find no force in the contention

of the learned counsel for the Appellant that since there was no electricity and

the Police witnesses have stated that when they reached there it was dark, the

witness could not have identified the assailants. PW1 in his testimony has

clarified that though there was no electricity, however it was the time when

the sun was setting. Thus, visibility in the absence of street light was not poor

at the time of incident and PW1 could have clearly identified the Appellant.

5. I also do not find any force in the contention of the learned counsel for

the Appellant that no TIP was conducted. The Appellant was arrested on 18 th

November, 2006 at the instance of the co-accused. An application for the TIP

of the Appellant was filed before the Learned Metropolitan Magistrate.

However, he refused to take part in the TIP. It is on the refusal of the

Appellant to take part in the TIP that PW1 identified him in Court premises.

The explanation of the Appellant in his statement under Section 313 Cr.P.C.

for refusal to join the TIP proceedings was that he was shown to the witnesses

by the Police before TIP after he was picked up from his house. A perusal of

the testimony of the complainant PW1 shows that no such suggestion has

been given to the complainant when he was examined by learned counsel for

the Appellant. All that is suggested is that the Appellant was identified by the

complainant at the instance of the Police. Thus, the defence made out is

clearly an after-thought. A perusal of the cross-examination of PW1 the

complainant reveals that it has been elicited from him that it is only after 5

days that the complainant visited the Police Station for half an hour when he

was called to the Court for TIP. The Appellant had already refused the TIP by

that time.

6. The Appellant was arrested pursuant to the disclosure made by the co-

accused Sunny Dev. Pursuant to the disclosure of the Appellant the knife was

recovered from near the bushes at the IGI Airport which was blood-stained at

its tip. The opinion of the Doctor in this regard has also been received. The

weapon of offence recovered is also connected to the offence committed as

PW1 in his testimony has identified the knife Ex.P1 recovered at the instance

of the Appellant to be the same knife with which he was injured by him.

7. The testimony of the injured witnesses is further corroborated by the

FSL result Ex.PA (3). As per the result obtained the blood Group found on

the weapon of offence recovered from the Appellant was of 'B' group of

human origin which was the same blood group as found on the vest, shirt and

pant of the injured and the guaze clothes pieces of the injured. Thus, in view

of this unimpeachable evidence on record I find that the prosecution has

proved its case beyond reasonable doubt against the Appellant for commission

of offences punishable under Section 394/397 IPC. Merely because there is

no recovery of amount of Rs. 3200/- robbed from the complainant, the same

does not render false the otherwise unimpeachable evidence placed on record.

8. I find no merit in the appeal. The appeal and the application for

suspension of sentence are accordingly dismissed.

9. The Appellant who is in custody be informed through Superintendent

Tihar Jail.

(MUKTA GUPTA) JUDGE SEPTEMBER 09, 2011/'ga'