ANIL KUMAR YADAV Vs. STATE

JUDGEMENT

(1.) THESE three appeals are directed against the common judgment dated 5th February 2008 passed by the learned Additional Sessions Judge, ( 'ASJ '), Rohini Courts, Delhi in Sessions Case No. 295 of 2006 arising out of FIR No. 64 of 2000 under Sections 379/328/411/203 IPC registered at P.S. Punjabi Bagh convicting the Appellants, Anil Kumar Yadav and Shiv Sagar of the offence punishable under Section 120B IPC read with Section 411 IPC. The Appellant, Anil Kumar Pathak had been convicted for the offence punishable Section 328/120B and 392/120B IPC. The appeals are also directed against the order on sentence dated 8th February 2008 whereby the Appellants, Anil Kumar Yadav and Shiv Sagar were sentenced to undergo six years 'rigorous imprisonment ( 'RI ') for the offence under Section 120 B IPC and fine of Rs. 5,000 each and in default, they would undergo simple imprisonment ( 'SI ') for a period of sixmonths. As regards the offence under Section 411 read with Section 120B IPC, they were sentenced to undergo RI for a period of 3 years and fine of Rs. 10,000 each and in default they would undergo SI for a period of one year. The Appellant, Anil Kumar Pathak, was sentenced to undergo four years 'RI and Rs. 2,000 as fine and in default SI for two months for the offence under Section 328/120B IPC; six years ' RI and fine of Rs. 5,000 andin default SI for six months for the offence under Section 392/120B IPC and six years 'RI and fine of Rs. 5,000 and in default SI for six months for the offence under Section 120B IPC. The sentences were directed to run concurrently.

(2.) THE case of the prosecution was that PW -2, Bhola, a driver, and his helper, Vishwa Nath Mukhia (PW -6) loaded 306 empty cylinders of Indane Gas in truck No. DLG -1205 from Amrit Gas Agency, Shahdara on 29th January 2000 and moved towards Tikri Kalan. According to PW -2, when the truck reached the Punjabi Bagh traffic crossing at around 5.30 pm four boys between 20 -25 years of age sought a lift up to Ghevra Mod. They claimed they were employees of Poonam Gas Agency. When PW -2 reached near Mundka, two of the boys pulled back PW -2 and PW -6 and put a piece of cloth in their mouths. They had difficulty breathing and became unconscious. At about 2 am, when he gained consciousness, PW -2 found himself near Shakurpur in his truck. He found that the loaded empty cylinders were missing. PW -2 suspected that the four boys had stolen the empty cylinders. PW -2 gave a statement which was recorded by Sub - Inspector ( 'SI ') Subhash Kumar and FIR No. 64 of 2000 was registered on 30th January 2000.

(3.) A challan was filed on 24th May 2000 against all the four accused. At the time of filing of the challan, A -1 was in custody and other three co -accused, A -2, A -3 and A -4, were released on bail. Charges were framed on 22nd September 2003 under Section 120B IPC against A -1, A -2 and A -3 stating that A -2 had committed robbery along with co -accused Vijay, Tillu and A -4 of the truck in question containing 306 empty gas cylinders thereby committing an offence punishable under Section 120B IPC. A -1 and A -3 were additionally charged under Section 411 IPC stating that empty gas cylinders were recovered from Gulabi Bagh gas godown of which A -1 was the owner and A -3 was the godown keeper. Further, A -2 and A -4 were separately charged under Section 328 read with Sections 34 and 392 IPC read with Section 34 IPC.