RADHEY SHAYAM Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) BRIEFLY the prosecution case is that on 1st October, 1994, at about 11 pm, the Appellant along with Bharat, Katik and Laxmi Narain @ Pappu committed robbery upon Gauri Shankar and Dharam Pal of '200/- and '100/- respectively on the point of knife. The Appellant and two others i.e., Bharat and Katik were apprehended from the spot immediately after the incident by the complainant and his 'neighbours who took them to the nearby police post and handed over them over to the police. Co-accused Laxmi Narain managed to escape and on the disclosure statement made by the Appellant vide Ex.PW3/G and the pointing out of the complainant, Gauri Shankar was arrested on 14.10.1994. As per the complainant Gauri Shankar PW3, the Appellant put knife and the other two accused removed '200/- from his pocket and 100/- from that of Dharam Pal. On the statement of the said Gauri Shankar, FIR No. 322/94 under Sec. 397/ 392/34 IPC read with Sec. 25/27 Arms Act was registered at PS Ashok Vihar. During the course of trial, Bharat and Katik absconded and were thus declared proclaimed offenders. After recording of the prosecution evidence and statement of the accused, the Appellant was convicted for offences punishable under Secs.397/392/34 IPC and 25/27 Arms Act and was awarded Rigorous Imprisonment for a period of seven years for Section 397/ 34; five years for Section 392 and two years for Section 25/27 Arms Act respectively. Co- accused Laxmi Narain was convicted for offences punishable under Sec.392/34 IPC and was awarded Rigorous Imprisonment for a period of five years. This judgment for conviction dated 1st July, 1999 and the order on sentence dated 9th July, 1999 in Sessions Case No. 56/95 is impugned in the present appeal by the Appellant. During the pendency of the present appeal, sentence of the Appellant was suspended vide order dated 16th November, 2000. However, when the appeal came up for hearing neither the Appellant nor his counsel was present and hence warrants were issued against the Appellant. Despite bailable warrants being issued repeatedly the same could not be executed and thus non-bailable warrants were issued and finally the Appellant was taken into custody. The Appellant is presently in judicial custody.

(2.) LEARNED Amicus Curiae appearing for the Appellant states that the version of the witnesses PW1, PW2 and PW3, who is also the complainant in the case is highly improbable. Though PW3, has alleged that the Appellant put knife on him, but he has not alleged that the Appellant removed '200/ - from his pocket and '100/- from the pocket of Dharam Pal. In the absence of the necessary ingredients of robbery being attracted no offence can be said to be committed by the Appellant by merely showing knife. The other alleged victim i.e., Dharam Pal has not appeared in the witness box. The witnesses have admitted that it was dark at the spot and thus they could not identify the Appellant as the person who had showed the knife. Six currency notes i.e., four recovered from one accused and two from another were all sealed in a parcel. Neither the number of the recovered currency notes was noted nor any mark on the said notes was made. Moreover, PW3 has also not deposed anything in regard to any special mark of identification on the currency notes which were allegedly robbed from him. PW2 says that all the persons who went to apprehend the Appellant and his co- accused were armed with lathis whereas PW1 says that only two persons i.e. Gauri Shankar and Som Pal were armed with lathis/ dandas. It is not possible that a person who had allegedly robbed at the point of knife was easily threatened by the lathis and permitted PW3 and his neighbours to snatch the knife from him. All the witnesses i.e., PW1, PW2 and PW4 are the neighbours of PW3 and thus interested witnesses. In the absence of proof of robbery or recovery of robbed articles, the provisions of Sec. 397 IPC is not attracted. Reliance is placed on Chinnadurai Vs. State of T.N. 1995 Supp (3) SCC 686. In the alternative it is prayed that the sentence of the Appellant be modified to the period of imprisonment already undergone.

(3.) THE testimony of PW3 is corroborated by the testimonies of PW1, PW2 and PW4 ail of whom have stated that they had gone with PW3 and Dharam Pal for chasing the accused with lathis/ Dandas in their hands while they had moved slightly ahead, Gauri Shankar PW3 identified them. THE Appellant was having a Buttoned knife in his hand. PW3 took away the knife from the Appellant. THEy also identified memos prepared in their presence. In view of the overwhelming testimony of these witnesses which is duly corroborated by contemporaneous documents Ex. PW6/C i.e. DD No. 32 recorded at the Police Station Ashok Vihar at 11:45 P.M. i.e. soon after the incident, I find no reason to disbelieve them. THE minor contradiction as to the number of persons who were armed with lathis/Dandas or that the currency notes were tied together in one parcel does not discredit the entire prosecution case.