CRL.A. 155/2016 Page 1 of 7

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Reserved on: 20^th April, 2017

Decided on: 25^th May, 2017

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CRL.A. 155/2016

ASHWANI KUMAR

..... Appellant

Represented by:

Mr. Krishan Kumar and Ms.

Sunita Arora, Advocates.

versus

THE STATE

..... Respondent

Represented by:

Mr. Hirein Sharma, APP for the

State with ASI Om Prakash, PS

Hauz Khas.

CORAM:

HON'BLE MS. JUSTICE MUKTA GUPTA

1.

Convicted for offences punishable under Section 307 IPC and Section

25 of the Arms Act, 1959, Ashwani Kumar challenges the impugned

judgment dated 31^st October, 2015 and the order on sentence dated 23^rd

November, 2015 directing him to undergo rigorous imprisonment for a

period of four years and to pay a fine of `5,000/- for offence punishable

under Section 307 IPC and rigorous imprisonment for a period of two years

for offence punishable under Section 25 of the Arms Act.

2.

Assailing the conviction, learned counsel for Ashwani Kumar submits

that the recovery of knife is highly improbable and is not admissible under

Section 27 of Indian Evidence Act. The alleged recovery of knife is also not

admissible because it was recovered from an open place accessible to all and

sundry and this fact has been admitted by PW-10 Constable Anil Kumar in

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his testimony. Reliance is placed upon the decision of Division Bench of this

Court reported as 2014 SCC OnLine Del 7126 Heera Lal @ Heera v. State

of NCT of Delhi. It was further submitted that nature of injury cannot be

ascertained when there is no mention about the dimension of the injury in the

MLC. Mere mentioning of 'grevious' in the MLC without dimension is not

enough to convict the appellant for offence punishable under Section 307

IPC. The arrest of Ashwani Kumar is also doubtful. Hence the appellant be

acquitted.

3.

Learned APP for the State on the other hand submits that the

impugned judgment of conviction and order on sentence suffer from no

illegality. Appellant was apprehended at the spot. The knife was recovered

from the heap of garbage.

4.

Process of law was set into motion on 23^rd September, 2013 when

three DD entries were received at PS Hauz Khas. DD No. 50A received at

11:35 P.M. stated about a quarrel at C-106, Panchsheel Park which was

assigned to PW-9 Constable Pritam. DD No. 56A was also received at 11:35

P.M. informing about a quarrel near Verma Paranthewala behind AIIMS

which was assigned to PW-14 SI Babu Ram. DD No. 57A was received

around 11:40 P.M. informing that the caller has been stabbed by a knife by

some boys behind Sudarshan Cinema at Gautam Nagar. The said entry was

assigned to PW-8 HC Harkesh. When PW-14 SI Babu Ram along with PW-

9 Constable Pritam reached the spot at Gautam Nagar, they found the injured

Keshav Saini PW-1 with an injury on the right side of his chest. Keshav

pointed out towards the two boys on the motorcycle who had assaulted him

with a knife. On seeing the police, those two boys tried to flee away

however, they were apprehended by the police. In the meantime, Keshav was

CRL.A. 155/2016 Page 3 of 7

sent to AIIMS hospital for medical examination. Names of the two boys

were revealed as Ashwani Kumar and Manish Tiwari. Both the accused

persons were also taken to the hospital for medical examination. FIR No.

398/2013 was registered under Sections 307/34 IPC at PS Hauz Khas on the

statement of SI Babu Ram. Motor cycle bearing No. DL3S BZ 8866 was

seized by SI Babu Ram. Blood stained clothes of Keshav and blood sample

of accused persons were sent to FSL for