GAURAV Vs. STATE (NCT OF DELHI)

JUDGEMENT

(1.) By the present appeals the appellants Gaurav, Suraj @ Bhagat and Sanjay @ Amit challenge the impugned judgment dated 22nd November, 2014 convicting Gaurav and Sanjay @ Amit for the offences punishable under Sections 395/186/332/353/34 IPC and Suraj @ Bhagat for the offences punishable under Sections 395/186/332/353/397/34 IPC in FIR No.142/2012 registered at PS Maurya Enclave and the order on sentence dated 29th November, 2014 directing them to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.10,000/ -; in default to undergo simple imprisonment for a period of one month.

(2.) Learned counsel for Gaurav contends that Pradeep, PW - 18 who was the complainant has turned hostile. Further, Pradeep in his cross examination stated that Gaurav was not seen at the spot, hence benefit of doubt should be given to Gaurav. There are contradictions in the testimony of Pradeep and Dinesh. Pradeep stated that Suraj @ Bhagat gave the stab blow on his stomach whereas Dinesh stated that Sanjay @ Amit gave stab blows to Pradeep. Furthermore, Pradeep stated that one person caught hold of him who was apprehended and his name was revealed as Sanjay @ Amit, one person inflicted knife injury and another boy was wearing blue t -shirt and had cut marks on the mouth. The knife injury was inflicted by Suraj @ Bhagat and the person having cut marks on the mouth was acquitted by the learned Trial Court. Therefore, Gaurav was not one of those three boys, thus, was not present at the spot and liable to be acquitted. Conviction cannot be based solely on the testimony of Dinesh because he is not a reliable and trustworthy witness. Dinesh failed to identify the boys who caught hold of him but identified those persons who caught hold of Pradeep and gave him stab injuries. It is totally unbelievable that a person can identify a person who was standing at a distance, on the opposite side of the vehicle whom he had no occasion to see on the other side.

(3.) Learned counsel for Gaurav further contends that the TIP was not conducted through Dinesh but through PW -19 ASI Sheshdhar who failed to identify Gaurav in the TIP proceedings. Further TIP was conducted after two months by PW -20 HC Babu Lal after showing him photographs of the appellant Gaurav, hence under these circumstances, Gaurav refused to participate in the TIP. The identification in Court was rightly not believed by the Trial Court as there is no purpose to conduct TIP after two months. Dinesh claimed that Sanjay @ Amit inflicted knife injury to Pradeep but on the other hand Pradeep identified Suraj @ Bhagat as the person who stabbed him and Sanjay @ Amit caught him hold with another person. The Trial Court believed this statement of Pradeep but did not believe when Pradeep specifically stated that Gaurav was not the other person. Learned Trial Court failed to note that Dinesh stated that he remained in police station for 15 -16 days till his vehicle was not released and he wrongly identified Gaurav under the pressure of police. Thus, Gaurav is liable to be acquitted. Dinesh stated that Sanjay @ Amit was arrested on the spot and a sum of Rs. 1500 - 1600 and the mobile phone of Pradeep was recovered from Sanjay @ Amit and were handed over to him on the same day in the police station. However, the prosecution case was that it was seized by the police and later on same was taken on Superdari. Thus, the testimony of Dinesh cannot be relied upon. Moreover no recovery was effected from the possession or at the instance of Gaurav.