SATISH KUMAR Vs. STATE

JUDGEMENT

(1.) The present appeals are directed against the judgment dated 1 st June 1999 and order on sentence dated 4 th June, 1999 convicting the Appellants for offences punishable under Sections 397/394/34 IPC and sentencing them to undergo Rigorous Imprisonment for a period of 7 years and pay a fine of Rs. 500/-, in default of payment of fine to further undergo simple imprisonment for 15 days respectively.

(2.) Briefly the prosecution case is that on 27 th April, 1997, DD NO. 9A was received at PS Timar Pur which was marked to ASI Jeet Singh who alongwith Constable Pal Singh and Constable Bharat Bhushan reached near Wazirabad Pul. On reaching at the spot, they met Constable Ram Avtar and Constable Narender, who were present there alongwith Complainant Ram Bihari Thakur and one Subhash Chand. Constable Ram Avtar produced one gararidar knife and one HMT Kohinoor watch alongwith accused Satish and stated that the knife and the watch were recovered from accused Satish Kumar. Constable Narender produced one identity card of DD Industries Limited, B-30, G T Karnal Road Industrial Area alongwith some papers and Rs.95/-. Accused Rajesh and one chhuri alongwith other articles recovered were handed over and it was stated that these articles were recovered from accused Rajesh Kumar. Statement of Ram Bihari Thakur was recorded on the basis of which it transpired that he was robbed by accused Satish, Rajesh Kumar alongwith Aas Mohd. on the point of knife. In the meantime, one boy namely Subhash Chand passed through that way and he was also robbed by these three persons on the point of knife. He stated that accused, after robbing them, asked them to leave the place quietly and after going to a short distance, they raised alarm. All the three boys ran towards Shiv Mandir. Satish and Rajesh were apprehended by cattle grazers and were beaten by them while accused Aas Mohd. managed to escape. Constable Ram Avtar and Constable Narender in the meantime reached at the spot and apprehended the two boys and cattle grazers left the place. On the basis of the said statement of Ram Bihari Thakur, FIR under Sections 392/394/34 IPC and 25/54/59 Arms Act was registered against the accused persons. During investigations, Aas Mohd. was also arrested. After completion of investigation, charge-sheet was filed. After recording the statement of prosecution witnesses and statement of accused persons under Section 313 Cr.P.C., learned Additional Sessions Judge convicted and sentenced the accused persons as mentioned above. The judgment and order on sentence passed by the learned Addl. Sessions Judge are impugned in the present appeals.

(3.) Learned counsels for the Appellants contend that the impugned judgment is bad in law as well as on facts. Learned Additional Sessions Judge has ignored the factual matrix of the case and passed the impugned judgment based on conjectures and surmises. The entire prosecution story is full of contradictions and lapses. The investigation is tainted and biased and thus conviction of the Appellants is unsustainable. The contemporaneous document i.e, DD NO. 9A records that at 4.38 p.m. only one person was apprehended. Different timings have been given by the witnesses, Constable Anju at PCR has not been examined by the prosecution. There are contradictions in the statement of Ram Bihari Thakur and the Investigating Officer in regard to the money recovered from accused Rajesh. There is no injury on the person of the victims so as to make out a case under Section 397 IPC. Ram Bihari Thakur, the Complainant has stated that at the time of incident, 50-60 persons were present at the spot but none has been made/examined as a prosecution witness. Learned counsel for the appellants further states that the appellants have already undergone substantial period awarded to them i.e, appellant Satish Kumar has already undergone imprisonment for 5 years and appellant Rajesh Kumar has undergone imprisonment for 4 years, thus, it is prayed that they be released on the period already undergone.