SANJAY SHANKAR SWAMI Vs. STATE

JUDGEMENT

(1.) By these appeals the Appellants lay a challenge to the judgment dated 3 rd October, 2009 whereby they have been convicted for offences punishable under Section 392 read with Sections 34 IPC and 397 IPC and the order dated 7th October, 2009 whereby they have been directed to undergo rigorous imprisonment for 10 years along with fine of Rs. 5000/- each and in default of payment of fine to undergo rigorous imprisonment for six months for the offence punishable under Section 397 IPC. No separate sentence was awarded for offence under Section 392 IPC as Section 397 covers Section 392 IPC itself.

(2.) Learned counsel for the Appellant Sanjay Kumar states that the version of PW5 is concocted as he makes a PCR call at 11.45 PM with regard to alleged incident of taking away of his mobile phone and motorcycle whereas at 9.45 PM at Najafgarh a PCR call is already made with regard to an accident of motorcycle. In the said accident that took place at Najafgarh there was no collide and still it is alleged that the public persons beat Appellant Ramesh. The Appellant was allegedly arrested after 3-4 days of the arrest of the co-convict Ramesh, allegedly on the disclosure statement. PW5 on the one hand states that Sanjay was arrested at his instance on the other hand he states that he came to know about the arrest of Sanjay after 3-4 days. Since no recovery of any weapon of offence has been made from the Appellant Section 397 IPC is not attracted. No TIP of the Appellant was got conducted and thus the identity has not been established. The statement under Section 313 Cr.P.C. is wholly defective and the role assigned to coconvict Ramesh has been put to the Appellant. Hence the Appellant be acquitted or in the alternative he be released on the period already undergone which is more than 7 and a half years.

(3.) Learned counsel for the Appellant Ramesh contends that the Appellant was justified in refusing the TIP as the Appellant was shown to the witnesses in the Police station which fact has been admitted by the complainant PW5 in his testimony. The Police custody remand of the Appellant was taken on 25th December, 2005 and he was kept in two days Police remand. There is no evidence on record to suggest that when the Appellant was produced before the Magistrate for TIP, he was produced in a muffled face. The Appellant has been acquitted of the charge under Section 25 Arms Act.