RAKESH Vs. STATE OF NCT OF DELHI

JUDGEMENT

(1.) The appellant-Rakesh, by the impugned judgment dated 26th March, 2006 passed by the learned Additional Sessions Judge has been convicted under Sections 398 and 458 of the Indian Penal Code (hereinafter referred to as the IPC, for short). By the impugned Order on sentence dated 27th March, 2006, appellant-Rakesh has been directed to undergo rigorous imprisonment for seven years for the offence under Section 398 IPC, rigorous imprisonment for five years and fine of Rs.2500/- for the offence under Section 458 IPC and in default of payment of fine, to undergo rigorous imprisonment for one month. The appellant- Rakesh has been also sentenced to rigorous imprisonment of three years and fine of Rs.2500/- for the offence under Section 25 of the Arms Act, 1959 and in default of payment of fine to undergo rigorous imprisonment for one month.

(2.) On merits, in view of the statements of the eye-witnesses, Ms.Raj Bala (PW-1), Mr.Manphool Singh (PW-3) and Mr. Lal Chand (PW-4), the appeal on the question of conviction merits dismissal. The said persons are eye-witnesses and victims to the incident on 31st January, 1992 when the accused was caught red handed in the house no.82-A, Rajinder Park, Nangloi, Delhi. The prosecution case is built on the evidence of the three eye-witnesses which is in unison on all the material aspects. Ms. Raj Bala (PW-1) had stated that she got up at night when she heard her dewar saying mujhe maat maaro, sab kuch bata doonga (please do not beat me I shall tell everything). Thereupon she woke up her husband-Manphool Singh (PW-3) and both of them came from their room to the gallery. They saw three persons who initially started beating Mr. Manphool Singh (PW- 3) but then ran away after opening the door. One person was standing outside the house near the main gate. Thereafter, both of them went to the room of Ms. Raja Bala`s dewar, Mr. Lal Chand (PW-4), and saw one person pointing a pistol at him. They over-powered the said person who was identified by them in the court as the appellant-Rakesh. The witnesses also raised noise/alarm and in the meanwhile people from the neighbourhood got collected. The accused was arrested there and then and handed over to the police along with the pistol and two cartridges. There is nothing in the cross-examination to discredit the statement of the three eye-witnesses. The appellant-Rakesh had produced one witness Mr. Krishan Kumar (DW-1). The said witness claimed that on the evening of 30.01.92 when he had gone to the house of the appellant to recover money from him, he found the appellant with an injury on his head. He had stated that the appellant-Rakesh had a milk diary and was of a good moral character. In the cross-examination he had stated that he had to recover Rs.1000/- from the appellant-Rakesh. Mr. Krishan Kumar (DW-1) has been rightly disbelieved by the learned Trial Court. The appellant was nabbed and apprehended in the middle of the night and given a beating by persons from the neighbourhood who had gathered at the spot. Thereafter he was arrested by the police. There is no cause and reason for the three eye-witnesses to falsely and wrongly implicate the appellant-Rakesh.

(3.) Learned counsel for the appellant has submitted that the other accused, namely, Mr. Riyazuddin, Mr. Dinesh, Mr.Ram Naresh and Mr.Rajpal have been acquitted and on parity, the appellant-Rakesh, should be acquitted. The aforesaid four persons were not caught at the spot but were subsequently arrested on the basis of the statement given by the appellant-Rakesh. Learned Trial Court has acquitted them for want of evidence, as test identification parade (TIP) was not held to enable the eye- witnesses to identify them. Acquittal of the said accused stands altogether on a different footing and in view of the statement of Ms. Raj Bala (PW-1), Mr.Manphool Singh (PW-3) and Mr. Lal Chand (PW-4) there is no merit in the said contention.