Raj Kumar vs State & Another
2009 Latest Caselaw 776 Del

*            HIGH COURT OF DELHI : NEW DELHI

           Judgment reserved on : February 12, 2009
            Judgment delivered on : March 06, 2009

                       Criminal Appeal No. 289/1999

%     Raj Kumar                        ...         Appellant
                           Through:   Mr. R.P. Shukla, Advocate

                                  versus

      State & Another                       ..Respondents
                           Through:    Mr. R.N. Vats, Additional Public
                                      Prosecutor for State.

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported
   in the Digest?

SUNIL GAUR, J.

1. The challenge in this appeal, is to the impugned judgment

of 15th April 1999, vide which Appellant - Raj Kumar was held

guilty for offences punishable under Sections 186, 332, 392 and

397 of the Indian Penal Code and under Section 25 of the Arms

Act and also to the order on sentence of 20th April, 1999, vide

which the Appellant/accused had been sentenced to undergo

rigorous imprisonment for an offence punishable under Section

392 of the Indian Penal Code and in default of payment of fine he

Crl. A. No. 289/1999 Page 1 was ordered to undergo further rigorous imprisonment for four

months. He has also been sentenced to undergo rigorous

imprisonment for seven years and to pay a fine of Rs.1,000/- for

an offence punishable under Section 397 of Indian Penal Code

and in default of payment of fine he has been ordered to undergo

further rigorous imprisonment for eight months. In addition, he

has been also sentenced to undergo rigorous imprisonment for

two months and a fine of Rs.250/- for an offence punishable

under Section 186 of the IPC and in default of payment of fine he

was ordered to further undergo rigorous imprisonment for two

months.

2. Appellant - Raj Kumar also sentenced to undergo rigorous

imprisonment for two years and to pay a fine of Rs.1,000/- for an

offence punishable under Section 332 of the IPC and in default of

payment of fine he was ordered to further undergo rigorous

imprisonment for eight months. For an offence punishable under

Section 25 of the Arms Act, Appellant - Raj Kumar has been

sentenced to undergo rigorous imprisonment for one years with a

fine of Rs.250/- and in default of payment of fine he was ordered

to undergo further rigorous imprisonment for two months.

However, all these substantive sentences were ordered to run

concurrently and the Appellant - Raj Kumar was given the benefit

under Section 428 of Cr.P.C. by the trial court.

Crl. A. No. 289/1999 Page 2

3. In the aforesaid order on sentence, trial court has also

ordered that out of the fine, if recovered, a sum of Rs.1,000/-

shall be paid as compensation to Constable Gulab Singh and a

sum of Rs.1,500/- shall be paid to Complainant - Todarmal.

4. The facts emerging from the record of this case are as

follows:

On 27th October 1997, Complainant - Todarmal was robbed by the Appellant/accused, while he was boarded the Bus bearing registration No.DL-1P-0157, plying on route No.491 from Noida to Nehru Place, New Delhi, to have journey upto Sarai Kale Khan, New Delhi. When the said bus reached Delhi UP Boarder, at about 2.30 pm, one boy, aged 20-25 years, stout built and having wheatish complexion took out a knife while abusing complainant and asked him to hand over his money to them. In the meantime, Appellant/accused's associates, had removed a sum of Rs.3,500/- out of the inner pocket of complainant's wearing pant.

During this period, complainant was cordoned by two other boys, who were also having knives in their hands. The Appellant/accused and his associates were being addressed by each other with the names of Babloo, and Raj Kumar who had taken out the knife, while abusing the complainant. The other boy with a smaller height was being addressed as Vicky and the fourth one was being addressed as Javed during the course of their conversation. A hue and cry was raised by the commuters, which invited the attention of

Crl. A. No. 289/1999 Page 3 passersby and the police. Police Constables chased the said bus in some vehicle and when the said bus reached at the red light near Samachar Apartment, the offenders alighted the bus and started running. They were challenged by the Constables to stop, upon which Appellant - Raj Kumar lifted a stone and threw it on the Constables, which hit against the face of one of them and he fell down. The offenders tried to flee away in a three wheeler scooter towards Chillah Village and were chased by a Constable on a motor cycle. Complainant - Todarmal also alighted from the bus and reached near injured Constable-Gulab Singh. In the meantime, on receipt of DD No.18 Sub-Inspector Ram Mehar reached the spot and Complainant - Todarmal reported about this crime to him. When statement of complainant was being recorded, Constable Sushil Kumar alongwith the other police officials brought the accused persons there and they were identified by Complainant - Todarmal immediately as the persons who had robbed him. Thereafter, case was registered and investigation was taken up. During the investigation, Babloo and Javed could not be arrested. Both the arrested offenders - Hira Lal and Raj Kumar (Appellant/accused herein) were charged for the offence punishable under Section 392 and 397 read with section 34 of the Indian Penal Code. Besides the said charge, a separate charge was framed against Appellant - Raj Kumar for the offence punishable under Section 186 and 332 of the IPC and under Section 25 of the Arms Act.

Crl. A. No. 289/1999 Page 4

5. Trial began with framing of charges under Section 392 &

397 read with section 34 of Indian Penal Code against the

offenders - Hira Lal and Raj Kumar (Appellant/accused herein),

besides this, a separate charge was framed against Appellant -

Raj Kumar for the offence punishable under Section 186 and 332

of the IPC and under Section 25 of the Arms Act, and they did not

plead guilty and claimed trial.

6. To substantiate the charges framed against the Appellant -

Raj Kumar, the prosecution got examined eleven witnesses, out

of them material witnesses are Complainant - Todarmal (PW-2),

Constable Jagbir Singh (PW-4), Constable Gulab Singh (PW-5),

Constable Sushil Kumar (PW-8), Sub-Inspector Prem Singh (PW-9)

and Sub-Inspector Ram Mehar (PW-11).

7. Constable Jagbir Singh (PW-4), Constable Gulab Singh (PW-

5) and Constable Sushil Kumar (PW-8) are the witnesses who

heard the hue and cry of the commuters from the bus No.DL-1P-

0517 and they chased the bus on a private vehicle and the

assailants alighted from the bus at red light. Constable Sushil

Kumar had chased the assailants, over powered two of them and

had produced them before the initial Investigating Officer (PW-

11). Constable Gulab Singh (PW-5) received injuries on his face

and was removed to the hospital by Constable Jagbir Singh (PW-

4).

Crl. A. No. 289/1999 Page 5

8. In the case under the Arms Act, Head Constables Satish

Chand, Amit Aggarwal and Constable Sushil Kumar have

deposed. Sub-Inspector Prem Singh (PW-9) is the Investigating

Officer of this case. Sub-Inspector Ram Mehar (PW-11) had

conducted the initial investigation of this case.

9. Before the trial court, the Appellant - Raj Kumar in his

statement recorded under Section 313 of Cr.P.C., has denied all

the allegations against him. His case was of denial simplicitor.

According to him, he had been falsely framed in this case and he

claimed himself to be an innocent. In his defence, the

Appellant/accused examined Smt. Maya and Smt. Tulsi in his

defence.

10. Upon conclusion of trial, Appellant - Raj Kumar stood

convicted and sentenced as indicated above. Learned counsel for

the parties have been heard and with their assistance, I have

gone through the evidence on record.

11. This is a case of robbery taking place in a running bus on

route number 491, near Chilla Village, in Delhi, in broad day light

on 27th October, 1997. The victim is a passenger- Todarmal (PW-

2) and his evidence is of prime importance in this case. As per

evidence of this witness (PW-2), Appellant/accused - Raj Kumar

had pointed a knife at him and his co-accused Hira Lal had taken

Crl. A. No. 289/1999 Page 6 away Rs.35,00/- from his pocket and information regarding this

incident was given at Chilla Check Post by one public person,

which alerted Constable Gulab Singh (PW-5) and Constable Sushil

Kumar (PW-8), who with the help of Constable Jagbir Singh (PW-4)

had after a chase, apprehended the Appellant/accused and his

co-accused Hira Lal, when they had alighted from the bus at the

red light, near Chilla Village. A knife was recovered from

Appellant but the robbed amount could not be recovered as it

was taken away by co-accused Zahid (Proclaimed Offender).

Constable Gulab Singh (PW-5) was injured as Appellant/accused

had hit him with stone.

12. The aforesaid prosecution case is assailed by the defence

by contending that the Complainant (PW-2) did not raise any hue

and cry and no details of the person who had given information

to the police about this incident is forthcoming and there are

contradictions inter se the evidence of police witnesses regarding

the bus and its driver and passengers being present at the spot,

when the Investigating Officer (PW-11) reached there and about

Constable Jagbir Singh (PW-4) travelling on foot or on scooter. It

is pointed out that the particulars of the vehicle, in which the

assailants were chased, is not forthcoming and the prosecution

case of the assailants boarding the bus from the front door

stands negatived by the Complainant (PW-2), who had stated in

Crl. A. No. 289/1999 Page 7 his evidence that no passenger had boarded the bus from the

front gate. It is pointed out that there is evidence of the mother

of the Appellant/accused that he was apprehended from his

house and in fact, the Appellant has been falsely implicated in

this case and this conviction on the basis of which inconsistent

prosecution evidence, is unwarranted and therefore, the

impugned judgment deserves to be set aside and

Appellant/accused deserves to be acquitted. Nothing else has

been urged on behalf of the Appellant/accused.

13. Learned Additional Public Prosecutor for the State submits

that the so-called discrepancies pointed out in the prosecution

case are not of any consequence and the prosecution case is

worthy of reliance and the same has been rightly accepted by the

trial court and there is no merit in this appeal.

14. Upon consideration of the rival submissions made, and after

having gone through the evidence of the Complainant (PW-2) and

the material witnesses, (PW-4), (PW-5) and (PW-8) who had

apprehended the Appellant/accused at the spot and had

recovered the weapon of offence, i.e., knife from him, I find that

the Complainant (PW-2) was taken aback by this incident and he

has stated in his evidence that he did not get any opportunity to

raise any alarm and he has maintained in his evidence that the

Crl. A. No. 289/1999 Page 8 assailants had boarded the bus from the front gate. The

infirmities pointed out by the defence in prosecution case are

inconsequential and have been dealt with by the trial court in the

right perspective.

15. The testimony of the Complainant (PW-2) coupled with the

evidence of the police officials (PW-4), (PW-5) and (PW-8) firmly

establish the prosecution case against the Appellant/accused.

The plea of the Appellant/accused of his false implication in this

case after being lifted from his house is not at all plausible and

does not appeal to reason. The version of the Complainant (PW-2)

receives ample corroboration from the evidence of witnesses

(PW-4), (PW-5) and (PW-8), who had apprehended the

Appellant/accused alongwith his co-accused Hira Lal at the spot.

16. Since the conviction of the co-accused HIra Lal was for the

offence under Section 392 of the Indian Penal Code, therefore,

keeping in view his age and antecedents, he had been granted

the benefit of probation in the separate appeal filed by him. Since

the Appellant/accused is found guilty for the offence punishable

under Section 397 of the Indian Penal Code which carries

minimum sentence of seven years, therefore, he cannot be

treated at par with his co-accused Hira Lal.

Crl. A. No. 289/1999 Page 9

17. In view of the above narration, I do not find any merit in this

appeal. The conviction and sentence imposed upon the

Appellant/accused is well supported by the evidence on record

and is hereby upheld.

18. This appeal is accordingly dismissed. Appellant is on bail.

His bail bonds are cancelled and he is directed to surrender

forthwith before the trial court/successor court to serve out the

remainder of the sentence as awarded to him. Trial court be

apprised of this order, to ensure compliance of this order.

19. With aforesaid directions, this appeal stands disposed of.

Sunil Gaur, J.

March 06, 2009
rs




Crl. A. No. 289/1999                                          Page 10