SONU ALIAS KAPIL Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) LEARNED counsel for the appellant submits that the appellant is not interested in challenging the conviction part of the judgment given against him by the learned ASJ holding him guilty of the offence under Section 392/397/34 IPC, but submits that no case is made out against the appellant under section 397 IPC inasmuch as the Rukka, EX-PW2/a, shows that no weapon was used by the appellant or his co-accused at the time of commission of alleged robbery. As such it is submitted that the appellant who is in judicial custody for a period of more than six years is entitled to be released forthwith by reducing the sentence awarded to him by the learned ASJ vide order dated 14. 09. 2007 to the period already undergone, which is to the tune of R. I. for seven years. The punishment of seven years has been awarded to the appellant only because that is the minimum prescribed under Section 397 IPC.

(2.) I have examined the Rukka, Ex-PW2/a which reads as under: statement of Sh. Ram Babu, S/o Sh. Jhamman Lal Saini, H. No. 182, pocket G-30, Sector-3, Rohini Delhi, Age-54 Years, P. H. 25180887 (S)Bayan kiya hai ki main pata uprokt par sapariwar rahta hoon aur meri Plot NO. 43, Pocket-1, Sector 20, Rohini Delhi me Sanitrywear House ke naam se dukaan hai jo dukan par mera ladka Manish Saini baithta hai jo aaj kisi kaam se kahin gaya hua tha. Dukaan par main apne naukar Ashok, S/o Srinath, R/o c-1/12, Sector-20, Rohini, age 28 years ke saath maujud tha ki sham kareeb 5:30 baje do ladke umra kareeb 24-25 saal. Ek ka sharer patla, rang kala aur dusra darmayana jism, rang saanwala ek puraani cycle par aaye jo dukaan ke andar aakar unme se ek ne saaman dekhne ke bahaane hamara dhyan bata liya jabki doosre ne dukaan ke counter ke paas khade hokar daraaj me rakhe mera purse wa ghadi nikal liye jo mere purse me Rs. 5,000/-, mera driving licence, kuchh dukaan ke visiting cards, jin par aaj ke Date daali hai wa mere Sign hain tatha meri Ghadi golden colour hai jo un dono ladkon ke nikalne par main ne dekha ki unhone apni paint me katte numa cheezon ko khonsa hua tha jis se main dar gaya aur ghar chala gaya jo ab ghar par main ne salah ki aur waapis dukaan par aakar police ko phone kar diya. Un dono ladkon ko main saamne aane par pehchaan sakta hoon. Kanooni karwai ki jaaye. Bayan Sun liya, thik hai. (emphasis supplied)

(3.) THE interesting part is that the so called "kattanuma cheez" which was not even taken out of the pocket has not even been recovered from the appellant after his arrest. As far as the complainant is concerned, who appeared as PW-2, he has stated as follows: