MOHD KHADIM HUSSAIN Vs. STATE

JUDGEMENT

(1.) By the present appeal, Mohd. Khadim Hussain challenges the impugned judgment dated 4th November 2016 convicting him for the offences punishable under Sections 394/411/458 IPC in FIR No. 602/2015 registered at PS Seelampur and the order on sentence dated 10th November 2016 directing him to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 2,000/- and in default whereof to undergo simple imprisonment for a period of 30 days for the offence punishable under Section 394 IPC , rigorous imprisonment for a period of five years and to pay a fine of Rs. 2,000/- and in default whereof to undergo simple imprisonment for a period of 30 days for the offence punishable under Section 458 IPC and rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,000/- and in default whereof to undergo simple imprisonment for a period of 15 days for the offence punishable under Section 411 IPC.

(2.) Learned counsel for the appellant submits that the conviction of the appellant is based on the sole testimony of the complainant coupled with the recovery of the surgical blade and scissor. The alleged incident took place at 4:00 A.M., when there was no light so it was impossible for the complainant to have seen the appellant commit the said crime. Furthermore, the complainant has stated that he handed over his underwear to the police while the same ought to have been seized by the police from the doctor who conducted the MLC. The investigating agency has not sent the seized articles that is blood stained underwear, surgical blade and scissors to FSL to ascertain whether the blood present on it was of the complainant. Furthermore, as per the statement of the Investigating Officer, no blood was found on the blade. Therefore, the recovery of the alleged weapon cannot be connected to the present crime. Reliance is placed upon the decision of the Supreme Court reported as (2012) 4 SCC 722 Govindraju @ Govinda v. State and the decision of the Delhi High Court in Crl. L.P. 745 of 2016 State v. Suresh Kumar @ Sunny and Ors. He further submits that the place of arrest of the appellant is also highly doubtful. As per the arrest memo he was apprehended from his residence at Bihari Building, Shastri Park whereas as per the testimony of the complainant he was apprehended at the Tea Stall of Sardarji in Bihari Building.

(3.) Per contra, Learned APP for the State submits that the MLC clearly mentions that physical assault has been done by the neighbour. Further the time on the MLC is 5:16 A.M., which shows that the incident occurred in the wee hours of the morning. The complainant is also consistent in his testimony and has identified the appellant as the person who inflicted injuries on him. Furthermore, the mobile phone and surgical blade have been recovered from the appellant linking him to the offences committed by him.