AMARPAL & ANR. Vs. STATE & ORS.

JUDGEMENT

(1.) The present appeal is directed against the judgment dated 12 th December, 2000 and order on sentence dated 14 th December, 2000 passed by the learned Addl. Sessions Judge convicting Appellant No.1 under Section 392/34 IPC and Appellant No.2 for offences punishable under Section 392/397/34 IPC and sentencing them to undergo Rigorous Imprisonment for five years and a fine of Rs.3000 each under Section 392 of IPC. In default of payment of fine to further undergo Rigorous Imprisonment for six months. Appellant No.2 Sanjeev was also awarded Rigorous Imprisonment for seven year for offences punishable under Section 397 IPC.

(2.) Briefly, the facts of the case are that on 5 th March, 1999 on receipt of DD No. 2A, ASI Rajbir Singh along with Const. Om Vir reached 100 ft. Road, Primary School, E- Block, Nand Nagri where he met the in-charge of PCR Van R-75, ASI Rajinder Singh with staff and complainant Dinesh, a juvenile and Sanjeev Appellant No.2 herein. PCR Van in-charge ASI Rajinder Singh handed over to him accused Sanjeev and Complainant Dinesh with Rs.300 and one dagger stating all the facts of the case and that money and chura were recovered from the accused which were taken from the Complainant Dinesh. ASI Rajbir Singh recorded the statement of the Complainant, who stated that he was going with his rickshaw rehri to buy vegetables and at about 6:30 A.M. when he reached at the spot, the chain of the rickshaw rehri had fallen so he was putting the chain back. In the meantime, one TSR No. DL 1-RA-5099 passed by and stopped at some distance. From that TSR four boys came out including one juvenile. Appellant No.2 Sanjeev asked him as to where was he going, another boy caught hold of him and one other boy gave him slap and fist blows. When the complainant asked the reason, Appellant No.2 took out a dagger and ordered him to stand keeping his hands up. Thereafter the juvenile started taking his search and removed Rs.300/- from the pocket of his pant and handed over the same to Appellant No.2. In the meantime, the Complainant saw PCR Van and raised alarm. By seeing the police vehicle, two boys ran away in the TSR, however two boys were apprehended. The local police was called and the Investigating Officer arrested them. At the instance of the Complainant, Appellant No.2, the juvenile and other two accused persons Amarpal and Amar were also arrested. On the basis of the statement, FIR No. 147/1999 was recorded. After completion of investigation, chargesheet was filed. The juvenile was produced before the Juvenile Justice Board. After recording the statement of prosecution witnesses and the statement of the accused persons under Section 313 Cr.P.C., the Learned Trial Court convicted and sentenced the Appellants as mentioned above.

(3.) Learned counsel for the Appellants state that the impugned judgment convicting the Appellants is based on conjectures and surmises. The judgment is bad in law and on facts. Learned Trial Court has failed to appreciate that there are contradictions in the testimony of PW3, ASI Rajinder the eye-witness. PW3 has stated that Rs.300 were recovered from the left pocket of the shirt of Appellant No.2 which is contradictory to the testimony of PW5 HC Surinder Kumar who has stated that the looted money was recovered from the pocket of the pant of Appellant No.2. There is also discrepancy in the statements of the witnesses regarding recovery of knife. PW5 has deposed that the chura/knife recovered from Sanjeev was without button whereas PW2 on the other hand has deposed that the recovered knife was a buttoned knife.