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2004 (1) Crimes 514
Delhi High Court
O.P. Dwivedi, J.
Ramesh @ Tillu —Appellant
versus
State —Respondent
Crl. Appeal No. 91 of 2003
Decided on 28-11-2003
Counsel for the parties:
For the Appellant :Ms. Suman Chauhan, Advocate.
For the Respondent:Mr. Sunil K. Kapoor, Advocate.
Important Point
Where victim complainant had sufficient opportunity to see accused before commission of crime, evidence of identification of accused in absence of test identification parade cannot be rejected.
Headnote:(i) Indian Penal Code, 1860 — Section 397 — Appellant took entry into house of complainant on a pretext to repair cable, remained half an hour busy in work and then took out knife, asked complainant to hand over valuables — Complainant grappled with accused and received grievous injury on her left thumb and accused ran away taking the hand purse of complainant — Conviction on identification of accused by complainant and recovery of hand purse — Accused was arrested after 2 months of incident — Appeal — Identification of accused in Court in absence of test identification — Cannot be rejected per se — Identification in Court is substantive evidence and identification in T.I.P. is only corroboration — Complainant had sufficient opportunity to see accused who had remained inside the house for half an hour, there was grappling when accused caused grievous injury — Non-recovery of weapon was of no consequence as complainant had suffered grievous injury — Conviction could not be interfered with. (Paras 7 to 9, 11 & 12)
(ii) Constitution of India — Art. 21 — Free legal aid to accused — Right to free legal aid is an essential ingredient of reasonable, fair and just procedure and must be held implicit in the guarantee of Art. 21 — If accused is unable to engage services of lawyer on account of poverty or indigence, he is entitled to free legal service at state expense — Where accused had engaged a private counsel who failed to turn up during examination of witnesses, accused cannot complaint of free legal aid being not provided. (Para 5)
Result : Appeal dismissed.
JUDGMENT
O.P. Dwivedi, J.— This appeal is directed against the judgment dated 27.7.2002 and order of sentence dated 6.8.2002 passed by the learned Additional Sessions Judge whereby the appellant was held guilty of the offence under Section 392 read with Section 397, IPC and sentenced to undergo RI for seven years.
2. Briefly stated, the prosecution case is that on 17.9.1997 at about 1.45 P.M complainant Smt. Miti Jain came back to her Flat No. 46, Sector A, Pocket C, Vasant Kunj. At about 2.15 P.M when she was alone in the flat, door bell rang. She opened the door. She found one boy aged about 20-22 years standing on the door. He told her that her cable was out of order and he has come to rectify the cable. She allowed the entry to the boy who remained busy in repairing work for about half an hour. The complainant got busy in conversation with her mother on telephone. After sometime, the boy asked her to bring a glass of water. She went to the kitchen. In the meantime boy closed the main door, whipped out a knife from his pocket and asked her to hand over the money to him. She then grappled with the boy. She sustained injury with the knife on her right hand thumb. She raised alarm and cried for help as a result of which the boy fled away after opening the door. Some neighbours rushed to her residence and removed her to Gitanjali Nursing Home where she was medically examined by Dr. Pramod Kohli who noticed a deep lacerated wound (bone deep) on the level of proximal joint in left thumb. He opined that the nature of injury was grievous. Police was informed. SI Padam Singh along with Constable Makanlal went to the place of occurrence i.e. Flat No. 46, Sector-A, Pocket-C, Vasant Kunj where they came to know that injured/complainant has been taken to hospital. Then they rushed to the hospital and found PW-3/complainant admitted there. SI Padam Singh recorded her statement (Ex. PW-3/1) and made his endorsement thereon and sent the rukka to the police station for registration of the case whereupon FIR No. 490 dated 17.9.1997 under Sections 394/34, IPC was registered. SI Padam Singh went to the spot, prepared a rough site plan and supplementary statement of the complainant was also recorded wherein she stated that when she came back from the hospital, she noticed that her purse which was lying on the table of the drawing room containing some money and her driving licence was missing. Further investigation in this case was conducted by SI Balram Singh who, on the basis of the secret information, apprehended the accused/Ramesh on 18.11.1997. He was found at the residence of one Shri Ram Kumar where the accused was staying with his brother-in-law at Brijvasan. On interrogation, accused made a disclosure statement regarding his involvement in this case. Ladies purse belonging to the complainant was recovered from his house in Village Masoodpur. On his pointing out, co-accused Anil Kumar was also arrested. Driving licence of the complainant was recovered from co-accused Anil Kumar. After completing the investigations, police filed a challan against both the accused persons under Sections 394/397/411/34, IPC. On 27.8.1998, learned ASJ framed charges under Sections 394 and 397, IPC against the accused Ramesh/appellant. Separate charges under Section 411, IPC was framed against the co-accused Anil Kumar who is now a proclaimed offender.
3. In proof of its case, prosecution examined eight witnesses namely Dr. Pramod Kohli, PW-1, Smt. Kamal Rana, PW-2, Smt. Miti Jain, complainant, PW-3, Head Constable Subhash, PW -4, Shri Jai Prakash Narain, Metropolitan Magistrate, PW-5, Constable Joginder Singh, PW-6, SI Balram Singh, PW-7 and SI Padam Singh, PW-8. In his statement under Section 313, Cr.P.C., the appellant denied his involvement in the alleged offence as also the recovery of ladies purse at his instance. He stated that he has been falsely implicated.
4. After considering the material on the record, learned ASJ held the appellant guilty u
