ASHWANI KUMAR Vs. STATE

JUDGEMENT

(1.) Briefly, the prosecution case is that on the night of 19th and 20th August, 1992 at around 2:45 a.m., the accused along with the co-accused Shamshad Ali and Bhushan, robbed one Ram Kishore of his purse containing '1500/- by using a knife. At the time of the incident, SI Karam Chand and Constable Rajinder Singh were patrolling the area and when they reached near the Flag Staff Road, they heard a noise of chor-chor and they saw two persons running. On chasing, the two persons were apprehended, one being the Appellant and the other Bhushan Kumar. In the meanwhile, the Complainant also reached there and on search of the Appellant, a black leather purse containing '1500/- in the denomination of '50/- each and a visiting card of Bashiruddin, were recovered which were duly identified by the Complainant. As per the Complainant, he along with his nephew Ram Rattan had boarded a TSR at ISBT for going to Zakir Nagar, however, the driver was asking '60/- but he told the driver that he only had '30/-. The driver agreed to take them for '30/- on the condition that he will take other passengers also in the scooter. After driving around, the above named two persons also boarded the scooter, however, when the scooter reached North End Road, the driver took out a knife and threatened Ram Kishore and his nephew not to raise any alarm and the Appellant Ashwani Kumar searched the pocket of Ram Kishore and the accused Bhushan searched the pocket of Ram Lakhan. The driver ran away from the spot. On a trial being conducted, the Appellant was convicted for an offence under Section 392 IPC and sentenced for a period of RI of one year and a fine of '5,000/-. The co-accused Bhushan was also convicted for an offence under Section 392 IPC, however, since he had undergone a period of five years during the pendency of trial, he was sentenced to imprisonment for the period already undergone and a fine of '1,000/-; and co-accused Shamshad Ali who was the scooter driver was convicted for an offence under Section 398 IPC as he was armed with knife and had used the same to rob the Complainant and was sentenced to Rigorous Imprisonment for a period of seven years.

(2.) Learned counsel for the Appellant contends that the recovery from the Appellant has not been proved as neither the black purse was sealed nor was the number of the currency notes noted. There are discrepancies in the statement of the PW2 Ram Kishore the Complainant and that of the I.O as to the place where the statement of the Complainant was recorded. The investigation of the case is mala fide and according to the defence, the Appellant was found gambling and thus the money was planted on him and he has been falsely implicated in the present case.

(3.) The Appellant has examined his wife as DW1 in the present case, who has stated that on the day of the incident two police officials, who were in uniform, came to her house accompanied by her husband. The said police officials demanded '2,000/- from her which she was not having and thus, she gave a pair of gold ear rings to them and thereafter they left the house along with her husband on the pretext that they were to obtain his signatures in the police station. She also stated that her husband has been falsely implicated in the present case. PW4, owner of the TSR was examined who was not even aware as to who was driving the scooter on the day of the incident. It is stated that the testimony of the Complainant cannot be relied upon, as neither his nephew, travelling with him, nor Constable Rajinder Singh was examined and thus, the Appellant deserves to be acquitted. In the alternative, it is stated that the Appellant was 20 years of age on the date of the incident and has a mentally ill mother and thus he should be let out on probation.