Pappan Kasana vs The State (Nct Of Delhi)
2013 Latest Caselaw 844 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : 31st January, 2013
                               DECIDED ON : 20th February, 2013

+                        CRL.A. 1020/2011

      PAPPAN KASANA                                ....Appellant
              Through :        Ms.Anita Abraham, Advocate.

                               versus

      THE STATE (NCT OF DELHI)              ....Respondent
               Through : Ms.Fizani Husain, APP.
                         ASI Rajender Singh, PS Sangam Vihar.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The present appeal is directed against the impugned

judgment dated 02.04.2011 in Sessions Case No.38/2009 arising out of

FIR No.876/2004 PS Sangam Vihar by which the appellant- Pappan

Kasana was convicted for committing offences punishable under Sections

392/394/34 IPC and sentenced to undergo RI for five years with fine `

2,000/- under Section 392/34 IPC and in default of payment of fine to

further undergo SI for six months. He was also sentenced to undergo RI

for five years with fine ` 2,000/- under Section 394/34IPC and in default

of payment of fine to further undergo SI for six months. Both the

sentences were to operate concurrently.

2. Allegations against the accused were that on 25.11.2004 at

about 11.30 P.M. near Karnni Singh shooting range gate towards Sangam

Vihar he with co-accused Nasruddin @ Bhura, Sanjay @ Naresh and

Mahipal Singh (PO) committed robbery and deprived complainant Ranvir

Singh of ` 8,000/-, wrist watch make Titan, mobile phone (Nokia). They

also caused injuries with sharp object to Ranvir Singh while committing

robbery. The prosecution examined sixteen witnesses. In his 313 Cr.P.C.

statement, the accused pleaded innocence. On appreciating the evidence

and considering the rival contentions of the parties, the Trial Court, by the

impugned judgment held the accused and his associates guilty and

sentenced them. Being aggrieved, the accused has preferred the appeal.

3. Contention of the learned counsel for the appellant is that the

Trial Court did not appreciate the evidence in its true and proper

perspective and fell into grave error to base conviction on the sole

testimony of the complainant-Ranvir Singh. He categorically admitted

that it was dark at the spot. The Test Identification Parade was conducted

on 09.02.2005 after a gap of six weeks from the date of incident. Nothing

was recovered at the instance of the accused. He was arrested in case FIR

No.78/2005 and was falsely implicated in this case on the basis of

disclosure statement recorded therein. There are major contradictions and

improvements in the testimonies of the prosecution witnesses. The

prosecution failed to explain about fourth suspect Mahipal Singh. Learned

APP urged that the testimony of the complainant who is an injured

witness inspires implicit confidence and there are no good reasons to

disbelieve him. The accused was identified in Test Identification

Proceedings as well as in the Court.

4. I have considered the submissions of the parties and have

examined the record. Daily Diary (DD) No.27 (Ex.PW-14/A) was

recorded at 11.15 P.M. at Police Post H-block, Police Station Sangam

Vihar on getting information that a boy has been stabbed. The

investigation was assigned to HC Rameshwar. ASI Prem Prakash also

reached the spot. Statement of Ranvir Singh was recorded on 26.11.2004

at his residence in Faridabad. In his statement (Ex.PW-1/A), Ranvir

Singh gave detailed account as to how and under what circumstances, he

was robbed at the point of knife and country-made pistol and deprived of

` 8,000/-, watch and mobile phone. When he raised alarm, he was injured.

He gave description of the assailants and claimed to identify them. He

further explained the delay in lodging report with the police as due to

injury and pain, he was unable to lodge the report that day.

5. While appearing as PW-1 he proved the version given to the

police at the first instance without any variation. He deposed that when he

was going to his house on his motorcycle No. DL 7S 7549 on 25.11.2004

at about 10.30 P.M. and reached near Karnni Singh shooting range gate,

one Maruti Zen No. DL 6C 0454 white colour struck his motorcycle from

behind and he fell down on the ground. In the meantime, three boys got

down from the car; one of them was having a country-made pistol and

other was having a knife. He identified the three assailants and stated that

accused Nasruddin had put a knife at him and inflicted injury with the

knife. He pointed towards accused Pappan who had put a country-made

pistol at him and caused injury with its 'butt'. He attributed specific role

to co-convict Sanjay who robbed the articles. He further stated that he

identified the accused Pappan and Nasruddin in judicial TIP in Tihar Jail.

In the cross-examination, he stated that police recorded his statement at

his residence in Faridabad. He was unconscious in Batra Hospital. He did

not go to the police station to lodge report as he had a deep wound in his

leg. He denied that police had shown photographs of the accused to him.

He fairly admitted that he did not remember the number of the Zen car.

He explained that though it was dark but he could see face of the accused

persons from close quarters and could identify them. He was discharged

from the hospital the next day at 01.00 or 01.30 A.M. He sustained knife

blow on his thigh and 'butt' blow on his nose.

6. On scrutinizing the testimony of the complainant/ victim, it

reveals that despite lengthy cross-examination, no material discrepancy or

contradiction emerged to disbelieve his cogent version. No ulterior motive

was assigned to the complainant for implicating the accused falsely. The

complainant had no prior acquaintance with the assailants and had no

motive to falsely implicate them. His ocular testimony is consistent with

the medical evidence. PW-5 (Dr.Mohit Kapila) from Batra Hospital

proved the MLC (Ex.PW-5/A) and stated that the nature of injuries

sustained by the victim was simple caused by sharp edged weapon. The

victim was medically examined at 11.45 P.M. The MLC records that he

was hit by a car and injuries were caused with knife and pistol over his

body. The injured witness is not expected to let the real culprit go scot

free for the injuries caused to him.

7. Maruti Zen bearing No. L 6C 0454 used in the incident was

found abandoned and seized vide DD No.43 dated 21.12.2004 under

Section 66 Delhi Police Act, PS Badarpur & seized in this case on

16.02.2005. It further lends credence to the version given by the

complainant.

8. I find no merit in the submission of the counsel for the

appellant that the identification of the accused by the complainant is

suspect as due to darkness at the spot, he was unable to see the faces of

the assailants. The complainant specifically elaborated that though there

was darkness but he had seen the faces of the assailants from close

quarters and was able to identify them. He denied the suggestion of the

accused that due to complete darkness, he was unable to see the face of

any of the accused. He volunteered to add that it was not complete

darkness and he was able to see their faces at the time of incident. I have

no reasons to disbelieve the complainant as he had direct confrontation

with the assailants for sufficient long time and was injured in the process.

The Test Identification Proceedings was conducted after the arrest of the

accused in which he identified the accused Pappan and Nasruddin in

judicial TIP proceedings. Accused Sanjay did not participate in the TIP

proceedings. In the absence of any material discrepancy, the identification

by the complainant of the accused in judicial TIP and in the Court cannot

be doubted.

9. Non-recovery of the robbed articles is not fatal to the case of

the prosecution as the accused persons were arrested in some other case

and they did not recover the robbed articles.

10. Law regarding the weightage to be given to the statement of

injured is very crucial. In 'State of U.P. vs. Naresh & ors.', 2011 (4) SCC

324, the Supreme Court held :

"The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein."

11. In 'Abdul Sayeed vs. State of Madhya Pradesh', (2010) 10

SCC 259, the Supreme Court held :

"The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes

with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness"."

12. The conviction of the appellant is based upon fair appraisal

of the evidence and no interference is called for. The appeal lacks merits

and is dismissed. The conviction and sentence of the appellant are

maintained.

13. It is relevant to note that as per nominal roll dated 21.09.2011

the appellant had already undergone four years, six months and eight days

as on 16.09.2011. He earned remission for one month and ten days.

Apparently, the appellant has undergone the sentence period awarded to

him.

14. Trial Court record be sent back forthwith.

(S.P.GARG) JUDGE FEBRUARY 20, 2013 tr