DHARAM @ BANTI Vs. STATE

JUDGEMENT

(1.) Dharam @ Banti (the appellant) challenges a judgment dated 30.05.2009 of learned Additional Sessions Judge in Sessions Case No. 78/1/2008 arising out of FIR No. 194/2008 PS Bindapur by which he was held guilty for committing offence under Section 392/34 read with Section 397 IPC. By an order dated 03.07.2009 he was sentenced to undergo Rigorous Imprisonment for seven years under Section 397 IPC.

(2.) Allegations in the charge-sheet were that on 06.08.2008 at about 01.00 A.M. at 40 Foota Road, near Jagdamba Sweets Palace, Chanakya Palace, Dharma @ Banti and his associates Manish Khanna @ Punjabi and Sanju @ Sandeep @ Tapul committed robbery and deprived Sandeep Kumar of his motorcycle No.DL 9SV 7925 make XCD 125, Purse containing Rs. 150/- and a mobile phone make Nokia. It was further alleged that Dharma @ Banti was armed with a knife and injured Sandeep Kumar while committing robbery. During investigation, the appellant and his associates were arrested. Pursuant to their disclosure statements, the motorcycle and weapon of offence i.e. knife were recovered. Statements of the witnesses conversant with the facts were reduced into writing. After completion of investigation, a charge-sheet was submitted against the appellant and his associates for committing the aforesaid offence. The prosecution examined 7 witnesses. In their 313 statements, the assailants pleaded false implication. On appreciating the evidence and after considering the rival contentions of the parties, the Trial Court, by the impugned judgment, held the appellant perpetrator of the crime for the offences mentioned previously. Being aggrieved, he has preferred the instant appeal.

(3.) During hearing, on instructions, appellant's counsel stated at Bar that the appellant has opted not to challenge the conviction under Section 392 IPC. He argued that offence under Section 397 was not made out as the prosecution could not establish beyond doubt that 'deadly' weapon was used by the appellant while committing robbery. Learned Additional Public Prosecutor urged that the victim has categorically stated that the appellant was armed with a deadly weapon i.e. knife and it was used while committing robbery.