PAPPU Vs. STATE

JUDGEMENT

(1.) The facts leading to the filing of the present appeal are that on 16th June, 1999, the Complainant PW1 Raj Kumar boarded the bus from Nand Nagri for Seelampur and as the bus reached Durgapuri Chowk at 4.00 P.M., two or three persons in the bus started fighting with him and tried to snatch his briefcase. One of them was carrying a sword like weapon which he aimed at the Complainant but the Complainant warded off the attack with the help of the briefcase. One other person who had the revolver or country made pistol, forced the driver of the bus to stop, on which all of them got down and ran away after some scuffle. The Complainant and the public ran after the culprits and one of them, identified as Pappu the Appellant herein, was apprehended whereas the others managed to escape. The Appellant was carryings word in his hand which was seized by SI Satya Prakash. On the statement of the Complainant FIR No. 279/1999 under Sections 393/397/34 IPC was got registered at PS Shahdara. The Appellant was sent to GTB hospital for his medical examination as when he was being apprehended, he was beaten by the public. On the disclosure statement of the Appellant herein, co-accused Jagdish was arrested. After completion of investigation the charge sheet was filed.

(2.) The Appellant and the co-accused were charged for commission of offences punishable under Section 393/34 and 397 IPC. The Appellant was additionally charged for offence punishable under Section 27 Arms Act. During the trial, the Complainant PW1 Rajkumar though supported the prosecution case, turned partially hostile and deposed that he could not identify the Appellant Pappu. However PW8 Ram Kumar identified the Appellant. Since no prosecution witness identified co-accused Jagdish, he was acquitted when the case was taken up for recording of statement sunder Section 313 Code of Criminal Procedure . The statement of the Appellant was recorded under Section 313 Code of Criminal Procedure and thereafter the Appellant was convicted for offences punishable under Sections 392/34 and 397 IPC and was awarded a sentence of rigorous imprisonment for a period of seven years and a fine of 2,000/-, and in default of payment of the fine to undergo simple imprisonment for a period of three months. Since the Appellant was convicted for the offence under Section 397 IPC, which was more serious in nature, the Appellant was not separately convicted for offence under Section 27 Arms Act.

(3.) Learned Counsel for the Appellant contends that there is no evidence against the Appellant and the learned trial court erred in imposing the conviction and sentence on the Appellant. The Complainant, PW1 has not identified the Appellant in the Court. PW 3 Sudhir Kumar and PW2 Om Singh, the conductor and the driver of the Bus, have also not identified the Appellant in the Court. Thus, it is a case of no evidence against the Appellant. There is contradiction in the testimony of the witnesses in regard to the arrest of the Appellant. Moreover, even as per the charge against the Appellant he along with the co-accused has attempted to rob and thus, he cannot be convicted for offence punishable under Section 392 IPC. As regards the conviction for offence punishable under Section 397 IPC, the Appellant is not alleged to have used the sword to commit robbery, hence no case for commission of offence of robbery with attempt to cause death or grievous hurt under Section 397 IPC is made out. Even if the use of weapon stands proved, it is only a case of attempt to robbery and hence the Appellant cannot be convicted for the offence punishable under Section 397 IPC.