The importance of partial darkness, identification during TIP, and the presumption under Section 114 of the Evidence Act in establishing guilt for robbery.

V.K. Jain, J.

1. On 22nd September, 2011 at about 7.05 am, ASI S. Dayal of Police Post Tis Hazari informed Police Station Kashmiri Gate that Constable Hukum Prakash of BSF, who was coming on a rickshaw to Mori Gate had been stabbed in front of Sarvodaya Vidyalaya and 3-4 persons had run away with his belongings. The information was recorded at the police station vide DD No.8A, which was handed over to SI Anuj Kumar for investigation. On reaching the spot, the Investigating Officer came to know that the injured had been taken to Aruna Asaf Ali Hospital. He reached the aforesaid hospital and recorded the statement of the injured. The complainant told him that on that day, he got down at Old Delhi Railway Station at about 4.30 am and engaged a rickshaw for going to Mori Gate. At about 4.45 am when the rickshaw reached the Gokhle Marg opposite Sarvodaya School, three boys came there all of a sudden. Two of those boys were waiving knives. One of them picked up his bag and when he resisted, the other boy gave him a knife blow which he tool on his right palm. The third boy then gave a knife blow on his right thigh and thereafter they ran away towards Mori Gate, along with his bag containing two pair clothes, railway warrant and some documents, photograph of his child as well as his purse which contained Rs.300/- in cash besides railway ticket and some documents.

2. This is also the case of the prosecution that on 1.10.2011, the police officials, on receipt of some information laid a trap near Kashmiri Gate and apprehended two persons at Metro Station, Gate no.3, on the pointing out of the said informer. One of those boys was the appellant – Rahul @ Parcha and the other was one Mohit Kumar.

As per the case set out by the prosecution, a brown purse containing passport size photograph of the complainant as well as his other photographs and the documents was recovered at the instance of the appellant from the bushes of Agrasen Park.

3. Vide impugned judgment and order on sentence dated 2.2.2013, the appellant was convicted under Section 392/394/34 read with Section 397 as well under Section 411 of IPC. He was sentenced to undergo RI for seven years and to pay a fine of Rs.1,000/-, in default SI for two months under Section 397 of IPC. Identical punishment was awarded to him under Section 392/394 of IPC. He was also sentenced to undergo RI for two years under Section 411 of IPC. Being aggrieved from his conviction and sentence awarded to him, the appellant is before this Court by way of this appeal.

4. The complainant came in the witness box as PW2 and stated that on the fateful day, he hired a rickshaw to reach Mori Gate bus stand for taking a bus for Chawla. He was carrying his bag and baggage with him at that time. At about 4.45 am, when his rickshaw reached opposite Sarvodaya Vidyalaya, Mori Gate, three boys suddenly appeared before the rickshaw, stopped it and started snatching his bag. The rickshaw puller ran away and the rickshaw was stopped by those boys. He caught hold of his bag, but, one of the boys who was on the left side hit him with a knife which he (complainant) got over his right hand. At the same time, the other boy who was standing on his right side stabbed him with the knife on the back side of his right thigh and removed the wallet from his back pocket. They took away his bag which had been kept on the footrest of the rickshaw. According to the witness, the brown colour purse removed from his pocket contained railway ticket, Rs.300 in cash, passport size photograph and photograph of his Identity Card. The witness identified the appellant Rahul as the person who had stabbed him with knife on the back side of his thigh from the right side. He further stated that he had identified the appellant Rahul during Test Identification Parade (TIP) conducted in the jail on 13.10.2011. He also identified his signatures on the TIP proceedings Ex.PW2/D. The witness further identified his photograph, the photocopy of identity ca