SUKH RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal under Section 374, Code of Criminal Procedure, on behalf of two accused-appellants, namely, (1) Sukhram S/o Budhram Yadav and (2) Rakesh S/o Shri Mahendra Singh Jat, is directed against the impugned judgment and order dated 4. 6. 2003 passed by the Additional Sessions Judge (Fast Track), Kishangarhbas, District Alwar, in Sessions Case No. 67/02 (17/02), whereby each appellants were convicted and sentenced under Section 397, Indian Penal Code, to undergo 7 years rigorous imprisonment, and a fine of Rs. 5,00/-; in default of payment of fine, to further undergo six months' additional simple imprisonment.

(2.) BRIEFLY stated the facts of the case are that on 7. 1. 2002 at about 8. 00 PM a written-report (Exhibit P-1) was lodged by PW-1 Raju S/o Pratap Singh, at Police Station Kotkasim, Alwar, wherein it was alleged that he is resident of village Shahjahapur and working as driver on Indica Car No. RJ 02 T 0120 of Santra Devi W/o Balwant Singh. On 7. 1. 2002 at about 5. 15 PM two persons came to him and asked the hiring-charges of Indica Car for Badhana, Police Station Kotkasim and it was settled at Rs. 450/- for the said destination. He took both of them in the Car. At village Bawal, these persons purchased bananas and liquor; thereafter he departed with them, taking the Car for Badhana. On arrival at village Badhana, he told them about it. Thereupon, they said that their relatives reside nearby 'dhani' and requested to go ahead. Soon he left Badhana for 'dhani', all of a sudden, one person sitting behind him, put a shawl at his neck and pulled him backside forcibly; he stopped the vehicle; the another person descended from the Car and tried to pull him out therefrom; thereupon started a scuffle between us. It was further alleged in the report that the descended person, lashed with knife, intended to inflict him an injury then he caught hold of his knife and thereby he sustained injury on his right-handfinger and both of them started scuffling and pushed Raju down the earth. Thereafter both of them started his car and fled towards Kotkasim. He shouted loudly and number of persons gathered at the spot. One driving licence was found belonging to one person Sukhram whose photo was also affixed thereon. The another person was Rakesh Jat. On the basis of this written-report, the police registered FIR No. 6/2002 under Section 394 of the Indian Penal Code.

(3.) THE learned counsel for the appellants further contended that prima-facie the offence under Section 397, IPC, is not made out. He contended that accused appellants were arrested on 8. 1. 2002 at 6. 00 PM and information under Section 27 of the Evidence Act was given by accused Sukhram at 6. 20 PM and thereafter recovery of so-called knife was made at the instance of accused Sukhram whereas from the prosecution evidence itself it is clear that on 7. 1. 2002 itself the recovery of so-called knife was made by officials of Daruheda Police Station itself. He further contended that in the information-memo (Exhibit P-10), recorded under section 27 of the Evidence Act, it is not mentioned that he has given the information in respect of knife, which was used for so-called robbery and, in absence of such facts of using of weapon in crime in the information given under Section 27 of the Evidence Act, the same cannot be connected with the crime and the recovery of knife, made in pursuance of such information, is inadmissible in evidence. He further contended that in Exhibit P-11 it is specifically mentioned that no bloodstain was found on the knife. One 'motbir' of Exhibit P-11, namely, Ramswaroop was not examined. Another 'motbir' Tejsingh (PW-9) has not stated that recovery of knife was made in pursuance of the information given under Section 27 of the Evidence Act, but it was found during search of vehicle itself at the time of seizure of the vehicle.