ANIL KUMAR SHARMA Vs. STATE

JUDGEMENT

(1.) THIS is an appeal against the judgment dated 10.02.2011 whereby instead of Sections 394/ 397/ 506/ 34 IPC Respondent Nos.2 to 4 were convicted for the offences punishable under Section 323/ 506(1) IPC read with Section 34 IPC. The Appellant's (complainant before the Trial Court) plea is that once the prosecution version was accepted by the Trial Court an offence under Section 397/ 394 IPC read with Section 34 IPC was made out against the Respondents. According to the Appellant, appropriately Respondents ought to have been convicted under Sections 397/ 394/ 34 IPC.

(2.) WE would first come to the facts leading to the registration of this case. According to the prosecution version on 22.05.2000 at about 4:55 P.M. the Appellant was proceeding to his house situated in Raghubar Pura-2, Gandhi Nagar on his two wheeler (Scooter). The Appellant took a turn from Gali No.4; he met Respondents Savan @ Sonu and Nafisul Haque (whom he knew earlier) with two of their associates. Respondent Savan @ Sonu threatened him "Kya Tu Jeena Nahin Chahta, Bachcho Sahit Duniya Se Utha Denge". It is alleged that the boy standing on his right side took out a revolver. Respondent Savan @ Sonu obtained the revolver from the said boy and hit the same on his (Appellant's) head. The boy standing to his left, gave three fist blows on the right side of his chest. Nafisul Haque attacked him with a glass bottle on his neck as a result of which blood started oozing out from his neck. The boy standing on his right side caught hold of him. Respondent Savan @ Sonu removed ' 1,500 consisting of 15 currency notes of denomination of 100 each and some documents from his pocket and threatened to kill him. Thereafter, all the four fled away in a red Maruti Car DBA 5384.

(3.) INITIALLY charges for the offences punishable under Section 394/ 506/ 34 IPC were framed by the Metropolitan Magistrate. During the course of trial the case was committed to the Court of Session as the Addl. Chief Metropolitan Magistrate by order dated 22.07.2000 opined that the evidence produced disclosed the commission of offence punishable under Section 398 IPC. A fresh charge for the offences punishable under Sections 394/ 397/ 506/ 34 IPC against Respondents Nos.2 to 4 was framed. A charge for the offence punishable under Section 411 IPC against Respondent Savan @ Sonu and another charge for the offence punishable under Section 25 of the Arms Act against Respondent Rahis were also framed. On Respondent's pleading not guilty to the charge the prosecution examined 23 witnesses. PW-1 Appellant Anil Sharma on whose statement the case was registered is the star witness of the prosecution. PW-5 Rohit Sharma (complainant's son), PW-7 SI Chander Pal (the first IO), PW-12 Constable Sanjeev, a witness to the recovery of the revolver, are other material witnesses examined by the prosecution. The Respondents examined 4 witnesses in their defence; their plea was that the Appellant (complainant) had a quarrel with the father of Respondent Savan @ Sonu in regard to carrying some building material in a bullock cart to the Appellant's house. The Appellant attempted to assault Savan @ Sonu's father. Respondent Nafisul Haque intervened in the quarrel to save Savan @ Sonu's father and he (Nafisul Haque) sustained injuries. He was taken to GTB Hospital and was medically examined. DW-1 Ramesh Kumar, DW-2 Satya Narain and DW-3 Ram Khurana supported the defence version whereas DW-4 Dr. R.K. Nagar proved Respondent Nafisul Haque's MLC as Ex.DW-4/A.