ABRAR Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) THE appellant Abrar in the instant appeal has challenged his conviction under Section 392/34 and 397 IPC and sentence of 3 years rigorous imprisonment and fine of Rs.2000/ - in default, to undergo simple imprisonment for three months under Section 392 IPC and imprisonment for 7 years and fine of Rs.3000/ - in default to undergo simple imprisonment of three months under Section 397 IPC awarded in sessions case No. 16/11 arising out of FIR No. 249/10 Police Station Kashmere Gate imposed by the learned Additional Sessions Judge, Tis Hazari Courts, Delhi.

(2.) SUCCINCTLY stated, the case of prosecution is that on 22.12.2010 complainant Ashok Kumar was going from Old Delhi Railway Station to ISBT Kashmere Gate and when he reached near wine shop Kashmere Gate four persons robbed him of his purse and bag on the point of knife and countrymade pistol. When he raised alarm, public persons gathered there and apprehended three accused with the help of police officials. From the possession of accused Abrar one countrymade pistol and two live cartridges were recovered while knife was recovered from accused Riyasat Ali. On receipt of information regarding quarrel, DD No. 29 -A was recorded which was assigned to SI Ravinder (PW -10) who reached the spot and recorded the statement of complainant and got the FIR registered. The knife and countrymade pistol were seized. Accused persons were arrested. Fourth accused could not be apprehended. As such, chargesheet was submitted against accused Abrar, Riyasat Ali and Shankar. All the three accused persons were charged for the offence under Section 392/397/34 IPC. Accused Abrar and Riyasat Ali were further charged for the offence under Section 25/54/59 of Arms Act. All the accused pleaded not guilty and claimed trial. During the course of trial, accused Riyasat Ali expired and proceedings abated against him vide order dated 05.06.2013. The fourth accused Charanjeet alias Daboo was acquitted vide order dated 16.08.2011. In order to substantiate the charge, prosecution relied upon as many as 10 witnesses. The case of accused was one of denial simpliciter and it was alleged that they were falsely implicated in this case. Challenging the impugned judgment, the present appeal has been preferred by accused Abrar. The Trial Court judgment has been assailed by learned counsel for the appellant inter alia on the following grounds: -

(3.) PER contra, learned Public Prosecutor for the State submitted that all the submissions raised by learned counsel for the appellant were raised before the learned Trial Court and were duly considered. Since the accused were apprehended at the spot there was no requirement of law for conducting their Test Identification Parade. Non -joining of public witnesses is not fatal as besides the police officials there is the testimony of the complainant who had no axe to grind to falsely implicate the accused in this case. The case property could not be recovered since one of the accused managed to flee away from the spot alongwith the robbed articles however mere non -recovery is of no consequence. The appellant has been convicted by a well reasoned judgment which does not call for interference. Furthermore, since the minimum sentence prescribed under Section 397 IPC is 7 years, it cannot be reduced to the period already undergone as such, appeal is liable to be dismissed.