SHER SINGH @ SHERU Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) SHER Singh @ Sheru (A-1), Harish @ Bunty (A-2) and Vinod @ Ajay (A-3) impugn a judgment dated 09.08.2011 in Sessions Case No. 25/10 arising out of FIR No. 63/10 PS Bharat Nagar by which they were held perpetrator of the crime under Sections 392/34 IPC. A-3 in addition was convicted with the aid of Section 397. By an order on sentence dated 11.08.2011, A-1 and A-2 were awarded RI for five years with fine Rs.2,000/- and A-3 was awarded RI for seven years with fine Rs. 3,000/-. The substantive sentences were to operate concurrently.

(2.) ALLEGATIONS against the appellants were that on 05.03.2010 at about 03.30 P.M. near gate of Ismail Khan park, GTK road, Delhi, they in furtherance of common intention committed robbery and deprived complainant - Brij Mohan of a purse containing Rs. 100/ - and documents; cash Rs. 5,600/ -. A -3 was armed with a 'churi ' at the time of commission of robbery. Daily Diary (DD) No. 23A (Ex.PW -1/A) was recorded at PS Bharat Nagar at about 04.08 P.M. on getting information of the incident. The investigation was marked to HC Sudhir who went to the spot and lodged First Information Report after recording complainant - Brij Mohan 's statement (Ex.PW -2/A). The complainant was able to apprehend A -1 at the spot after some chase; A -2 and A -3 succeeded to flee the spot. They were subsequently arrested pursuant to A -1 's disclosure statement; a knife was recovered at A -3 's instance; Rs. 400/ - were recovered from A -2 's possession. Statements of the witnesses conversant with the facts were recorded. After completion of investigation, a charge -sheet was submitted against all the accused persons; they were duly charged and brought to trial. The prosecution examined six witnesses. In 313 statements, the appellants pleaded false implication and denied their complicity in the crime. The trial resulted in their conviction as aforesaid.

(3.) SINCE the appellants have given up challenge to the findings recorded by the Trial Court under Section 392/34 IPC in view of the clinching evidence of PW -2 (Brij Mohan) coupled with recovery of the robbed / stolen articles, their conviction under Section 392/34 IPC is affirmed. A -3 has been awarded punishment with the aid of Section 397 IPC as he allegedly used a knife at the time of committing robbery. Daily Diary (DD) No. 23A (Ex.PW -1/A) recorded on the basis of the information given by the complainant does not record use of any weapon by the assailants. When the Investigating Officer went to the spot, the complainant handed over him A -1 's custody. He was not in possession of any knife that time. The crime weapon i.e. knife (Ex.P -6) is alleged to have been recovered pursuant to A -3 's disclosure statement. However, prosecution witnesses have given divergent and conflicting version in this regard. The complainant - Brij Mohan in the examination -in -chief identified A -3 to be the assailant who used the knife and it was recovered at his instance after his arrest. However, in the cross -examination, he gave entirely contradictory version and stated that the knife was recovered by A -1 near railway lines. The prosecution did not seek necessary clarification. It is unclear at whose instance the crime weapon was recovered. PW -2 (Brij Mohan) was unable to give the measurement of the knife used in the incident. Admittedly, no injuries were caused to the complainant with any weapon. It is not clear which of the assailant was in possession of a deadly weapon at the time of incident. If knife (Ex.P -6) was recovered at A -1 's instance, it is difficult to believe that it was used by A -3. No independent public witness was associated at the time of alleged recovery of knife. In the statement (Ex.PW -2/A), complainant did not give description of the assailant who used the knife at the time of occurrence. A -3 's conviction with the aid of Section 397 IPC cannot be sustained as the prosecution failed to establish beyond doubt that it was A - 3 who was in possession of a deadly weapon and it was used by him. Resultantly, while maintaining conviction under Section 392/34 IPC, conviction with the aid of Section 397 IPC is set aside.