Rajeev Kumar & Anr. vs State
2009 Latest Caselaw 803 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Date of reserve : 03.03.2009
                                          Date of decision : 13.03.2009

+       Crl.App.159/1998

RAJEEV KUMAR & ANR.                                   ...APPELLANT
                               Through: Mr. S.P. Singh Chaudhari with Mr.
                                         Y.R. Sharma and Navdeep Kumar,
                                         advs. for appellants.     Mr. K.B.
                                         Andley, sr. adv. with Mr. Shamikh,
                                         adv. for Appellant no.2

                                       Versus

STATE                                                ...RESPONDENT
                              Through: Mr. Navin Sharma, APP for the State.

+       Crl.App.198/1998

AMIT KUMAR                                            ...APPELLANT
                               Through: Mr. S.P. Singh Chaudhari with Mr.
                                         Y.R. Sharma and Navdeep Kumar,
                                         advs. for appellants.     Mr. K.B.
                                         Andley, sr. adv. with Mr. Shamikh,
                                         adv. for Appellant no.2

                                       Versus

STATE                                                ...RESPONDENT
                              Through: Mr. Navin Sharma, APP for the State.



CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether the Reporters of local papers
       may be allowed to see the judgment?                 No

2.     To be referred to Reporter or not?                  No

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

MOOL CHAND GARG, J.

1. This judgment shall dispose of the aforesaid two criminal

appeals, one filed by the appellants Rajeev Kumar and Harish @

Hari and the other filed by the appellant Amit Kumar under

Section 374 of the Cr.P.C. seeking reversal of a judgment of the

Addl. Sessions Judge in sessions case no. 46/96 whereby the

appellants were convicted for the offence under Section 392 as

well as under Section 397 IPC and were sentenced to undergo R.I.

for 3 years for an offence under Section 392 IPC and payment of

fine of Rs. 2,000/- and in default of payment to undergo R.I. for 6

months and further to undergo R.I. for 7 years to pay a fine of Rs.

7,000/- each under Section 397 of IPC and in default of payment

of fine to further undergo R.I. for 1 year.

2. The appellants also filed an application under Section 389 of

Cr.P.C. The sentence awarded to appellants were suspended

vide orders dated 04.08.2000.

3. The appellants have already undergone sentence awarded

to them for a period of more than 2 years and 6 months.

4. Briefly stating the case of the prosecution was that an FIR

was registered against the appellant on a complaint made by one

Surender Gupta alleging commission of a robbery at his

residential premises when he came home for his lunch. It was

also alleged that while committing robbery a wire and a knife

lifted from the kitchen of the house was also used and a sum of

Rs. 2.5 lakhs were taken by five persons including the appellants

from the almirah of the complainant.

5. Later on the appellant Rajiv Kumar was arrested along with

Ramesh Kumar his co-accused in case FIR No. 191 & 192 of 1994

and on their interrogation appellant Amit Kumar and Harish

Kumar were also arrested in this case from Hapur. After

completing the investigation challan was filed and the appellants

were sent for trial under Section 394/395 IPC read with Section

34 of IPC. Charges were framed against them for the offences

punishable under Section 395/397 read with Section 34 of IPC to

which the appellants pleaded not guilty. Number of witnesses

were examined by the prosecution based upon evidence so

recorded and after recording statement of the appellants under

Section 313 Cr.P.C. the appellants and their co-accused were held

guilty and convicted for the offences punishable under Section

392 & 397 read with Section 34 of IPC vide judgment dated

24.03.1998 and have been sentenced to undergo various

punishments as stated above.

6. As per the judgment delivered by Addl. Sessions Judge

impugned before this Court, the role assigned to the appellants is

that they attacked the complainant after he reached his house

and tried to strangulate him and after putting him under the

threat of instant death they extorted a sum of Rs. 2.5 lakh from

him. It is alleged that while convict Amit Kumar was standing

outside and was helping others to commit, the other appellants

were involved in the actual robbing in a broad day light and, thus,

the Addl. Sessions Judge finding no mitigating circumstance

punished them as stated above.

7. Arguments were heard on 26.02.2009. The learned counsel

for the appellants submitted that the appellants does not press

the conviction part of the order passed by the Addl. Sessions

judge but only press for either granting benefit of Probation of

Offenders Act as all the appellants were of less than 21 years of

Age at the time when the offence was committed or in the

alternative to reduce the punishment awarded to them to the

period already undergone because they have already spent more

than 2 years and presently in judicial custody. Since their

release they are now well settled in their life. They have not

been involved in any criminal matter since their involvement in

this case.

8. In view of the aforesaid there is no necessity to analyze the

judgment delivered by the Addl. Sessions Judge on the point of

conviction but the only question which is to be gone into is as to

whether the sentence awarded to the appellant needs to be

reduced to the period already undergone or the appellants are

entitled to the benefit of Probation of Offenders Act or under

Section 360 of Cr.P.C.

9. Section 360 Cr.P.C. reads as under:

360. Order to release on probation of good conduct or after admonition.

(1) When any person not under twenty-one years of age is convicted of an offence punishable fine, or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not Punishable with death or

imprisonment for life, and no previous conviction is proved against the offender, if it, appears to the court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the court may, instead of sentencing, him at once to any Punishment, direct that he be released on his entering into a bond, with or without sureties to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace find be of' good behaviour :

Provided that where first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect. and submit the proceedings to a Magistrate of the first class forwarding the accuses to or taking, bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub-section (2).

(2) Where proceeding are submitted to the Magistrate of the 1st class as provided in sub-section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and if thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.

(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860) punishable with not more than two years imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentences him to any punishment, release him after due admonition.

(4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its power of revision.

(5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law:

Provided that the High Court or Court of Session shall not under this sub-section inflict a greater punishment than might have been inflicted by the court by which the offender was convicted.

(6) The provisions of sections 121, 124 and 373 shall, so far as may be apply in the case of sureties offered in pursuance of the provisions of this section.

(7) The court, before directing the release of an offender under sub- section (1) shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the court acts or in which the offender is likely to live during the period named for the observance of the conditions.

(8) If the court, which convicted the offender, or a court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension.

(9) An offender, when apprehended on any such warrant, shall be brought forthwith before the court issuing the warrant, and such court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such court may after hearing the case, pass sentence.

(10) Nothing in this section shall affect the provisions of the Probation of offenders Act, 1958 (20 of 1958), or the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.

10. It may be observed here that on the submission made by

the counsel for the appellant, the public prosecutor was called

upon to file a report about the antecedents of the appellant and

also to verify their present addresses. As per the statement

made by the learned APP appearing for the State, it has been

stated that the addresses given by the appellants have been

verified. Nothing has been pointed out that the appellants were

involved in any other case. As per the nominal roll which has

been received earlier, the appellants are not involved in any

other case and their conduct in the jail was satisfactory.

11. In terms of the order dated 04.08.2000 it has been noticed

that the appellant Rajiv Kumar and Harish had been in custody

for a period of about 2 years and 6 months. Similarly, about

appellant Amit also it has been observed that he was also in

judicial custody for a period of more than 2 years and 6 months.

12. A perusal of the judgment goes to show that the appellant

were arrested in this case on the basis of a disclosure statement

made by Rajiv Kumar and Ramesh Kumar who were arrested in

FIR No. 191 & 192 of 1994 nothing was recovered at their

instance. Admittedly, Amit was standing out & the knife was

lifted from kitchen, which probably was used to cause injuries to

Rajeev Kumar. Conviction, however, is based upon the statement

given by the complainant. It is, however, true that the appellants

have refused to participate in the TIP (Test Identification Parade).

It is on record that the complainant also received injuries on his

left hand but no blood was found lying outside the house whereas

Rajeev Kumar was also injured as stabbed injuries were given

even by the complainant to Rajeev Kumar at his stomach with the

same knife which is stated to have been used by the appellant

Rajeev Kumar which was lifted from the kitchen of the said

house.

13. It is a matter of record that the Addl. Sessions Judge while

awarding sentence for an offence committed by the appellants

under Section 392 of IPC has awarded 3 years R.I. even though

no such sentence could have been imposed under Section 392

IPC but on account of use of a knife by one of them has also

awarded sentence under Section 397 of IPC to the tune of R.I. for

7 years to all of them.

14. In the present case the user of knife which has been

assigned to appellant Rajiv Kumar was not a knife which he

brought from his house but is a knife which was lifted from the

kitchen and which knife was also used by the complainant to stab

the appellant.

15. In these circumstances, it is apparent that the appellants

who are not involved in any other crime in terms of the nominal

roll received from the Jail Superintendent nor have any bad

antecedents but have been arrested on a disclosure statement

made by one of the co-accused & taking into consideration that

the FIR pertains to the year 1993 and the appellants were

sentenced to undergo in 1998 and they have already undergone

sentences of more than 2 and a half years each and were aged

less than 21 years when they committed the offences it would be

in the interest of justice to reduce the sentence awarded to them

to the period already undergone as no purpose would be served

to send them to Jail again.

16. This is more so because except one of the appellants,

namely, Rajeev Kumar who was also hurt by the complainant no

other person is stated to have used any deadly weapon which

may held him personally liable under Section 397 IPC which is an

independent liability and is not a constructive liability in the light

of a Division Bench judgment delivered by Bombay High Court

1992 (2) Crimes 47, it is not a fit case where the minimum

punishment prescribed under Section 397 of IPC is attracted

towards one and all.

17. In another judgment delivered by the Apex Court in Ajit

Singh Vs. State of Haryana 1996 (3) SCC 335 wherein a case a

robbery was committed by using a pistol but the pistol was not

used to hurt the victims and the fire was opened presumably in

self-defence, the conviction of the appellant under Section 397

IPC was converted in a sentence under Section 392 IPC and the

sentence imposed were reduced. The relevant discussion which

appears in Para 4 to 5 are reproduced hereunder:

4. Mr. Sushil Kumar, learned Senior counsel appearing as amicus curiae for the appellant in this case, has submitted that an accused cannot be convicted under Section 397 IPC if he had not used a weapon. In support of such contention, a decision of this Court in Phool Kumar V. Delhi Admn, 1 was cited. Mr. Sushil Kumar has also submitted that conviction under Section 397 IPC of co-accused who was unwarned (sic unarmed), only indicates that there has been non-application of mind to the facts of the case in convicting the accused Mr. Sushil Kumar has also submitted that against the appellant, Ajit, no conviction under Section 397 was warranted even if the prosecution case is accepted on its face value. He has indicated that it appears from the evidence of the witnesses for the prosecution that for committing alleged robbery, the said pistol was not used but when a milk can was thrown by Suresh on the accused Ajit, he had opened fire from his countrymade pistol presumably by way of self-defence which hit the thumb and finger of the left hand of Suresh, PW 7. Accordingly, the conviction of Ajit under Section 397 is also unjustified. Mr. Sushil Kumar has submitted that the evidences adduced in this case do not inspire confidence. It also does not appear how and when the said countrymade pistol was recovered from the possession of the appellant Ajit. There is no reliable and unimpeachable evidence which may connect the appellant with the no reliable and unimpeachable evidence which may connect the appellant with the commission of the offence alleged against him. So far as the identification of the accused is concerned, it is an admitted position that in the presence of PW 7, the accused were taken out from police lock-up and they were interrogated. Hence no reliance can be based on identification of the accused in court. Mr. Sushil Kumar has submitted that the accused should be acquitted by giving benefit of doubt. Mr. Sushil Kumar has further submitted that in any event, since from the date of their arrest, the appellant is in custody and by this time he has suffered detention for more than five years. The appellant should be released even if his conviction under Section 392 is sustained by this Court.

5. It appears to us that there is force and justification in the contention of Mr. Sushil Kumar. In the facts and circumstances of the case, we do not think that the appellant should be convicted under Sections 397 and 394 IPC. But in our view, on the basis of depositions of PWs 7 and 8 the appellant's conviction under Section 392 IPC should be sustained. The convictions under Sections 394 and 397 IPC do not appear to be justified. Such convictions are set aside. We therefore allow the appeal in part by setting aside the convictions and sentences under Sections 394 and 397 IPC but conviction under Section 392 is affirmed. The appellant is stated to have undergone sentence for more than five years. In the facts of the case, justice will be met if the sentence for offence under Section 392 IPC is reduced to the period of five years. The appellant would be released forthwith if he is not wanted in connection with any other criminal case provided by this time he has undergone detention for five

years.

18. Applying the ratio of the aforesaid judgment to the facts of this case it is apparent that weapon which is alleged to have been used by one of the appellant, namely, Rajeev Kumar is a knife which he picked up from the kitchen and which knife was also used against him by the complainant, it cannot be said that the appellants were liable to be punished by imposing higher sentences as provided under Section 397 Cr.P.C.

19. Even though one could have considered releasing the appellant on probation but in the peculiar facts of this case, kind of offence committed by them and taking into consideration the public safety and also some kind of deterrence which is required to be placed against on such kind of accused persons, the second course of action is not warranted in the facts of this case.

20. In view of the aforesaid and there being nothing against the appellants in so far as their antecedents are concerned which may go to show that they are hardened criminals nor there is any other material to show that they are involved in any other case and keeping in view that they have already undergone R.I. for 2 and a half years, I find it a fit case to reduce the sentence awarded to the appellants to the period already undergone. While maintaining their conviction in view of statement made by the learned counsel for the appellant, both the appeals are disposed of accordingly. In view of the aforesaid, bail bond of the appellant will stand discharged. A copy of the order be sent to the Jail Superintendent for information.

MOOL CHAND GARG, J.

March 13, 2009 ag