The Delhi High Court allowed an appeal filed under Section 374 Cr.P.C. by the appellant seeking to set aside the judgment and order dated 08.03.2002 passed by the learned ASJ in Session Case arising out of FIR registered under Sections 395/397/412 IPC.
The Court observed that the recovery of the leather bales was from the house of co-accused Prakash; concededly, no recovery of leather bales was affected from the house of the present appellant.
Brief Facts:
The trial in the aforesaid two FIRs was clubbed together as the accused persons were alleged to have committed two different incidents of robbery at the factory premises of the complainant. During the investigation, only the accused persons namely Ram Bilas, Prakash, and Tek Chand came to be arrested whereas the remaining two accused namely Suresh and Juggi could never be arrested and resultantly, the chargesheet came to be filed only against the present appellant and Prakash, as Ram Bilas absconded after obtaining bail and could not be arrested.
For both incidents, the trial court framed separate charges under Section 395 and under Sections 412/34 IPC. It is noteworthy that the appeal preferred by co-accused Prakash was disposed of by a Coordinate Bench of this Court vide order dated 22.05.2019. It was observed in the said appeal that an appeal filed by the present appellant had been dismissed in default for non-prosecution. In these circumstances, the appeal of the co-accused came to be considered and his conviction was modified from one under Section 398 IPC to one under Section 392 IPC. The sentence of the appellant was also reduced to the period already undergone by him. The Coordinate Bench of this Court considered the appeal of co-accused Prakash only on the basis of the impugned judgment as the trial court record was untraceable.
Observations of the Court:
The Court noted that the recovery of the leather bales was from the house of co-accused Prakash. Concededly, no recovery of leather bales was affected from the house of the present appellant. The only witness of the incident examined namely, Girish Chander, did not even identify the appellant. The trial court failed to appreciate that except for Ram Bilas, the present appellant was not identified by anyone else. He was not even alleged to have carried any weapon, let alone using the same.
The Court observed that the offence under Section 398 IPC cannot be invoked with the aid of Section 34 IPC on the basis of constructive liability. The trial court in one swipe has convicted both the accused persons under Section 398 IPC
The Decision of the Court:
The Delhi High Court, allowing the appeal, held that since the appellant has neither been identified nor has it come in the evidence that he carried any dangerous weapon, the appellant’s conviction under Section 398 IPC is set aside.
Case Title: Tek Chand v State N.C.T. of Delhi
Coram: Hon’ble Mr. Justice Manoj Kumar Ohri
Case No.: CRL.A. 208/2002 and CRL.M.A. 33870/2019
Advocate for the Appellant: Mr. S.D. Singh, Mr. K. Prasad, Ms. Shweta Sinha and Mr. Siddharth Singh
Advocate for the Respondents: Mr. Laksh Khanna, APP for State with SI Ashish Kumar
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