Ramesh Kumar @ Sonu vs State (Nct Of Delhi)
2010 Latest Caselaw 4186 Del

                       HIGH COURT OF DELHI AT NEW DELHI

                              Crl. A. No. 210/2001

                                         Reserved on: 30.07.2010

                                         Date of Decision: 09.09.2010

       RAMESH KUMAR @ SONU.                                ... Appellant

                                   Through: Mr. Sumit Verma, Adv.

                                   Versus

       STATE (NCT OF DELHI)                              ... Respondent
                                   Through: Mr. Navin Sharma,
                                   counsel for the State.

       CORAM:
       HON'BLE MR. JUSTICE S.L. BHAYANA

       1.      Whether reporters of local paper may be allowed
               to see the judgment?                    Yes

       2.      To be referred to the reporter or not?        Yes
       3.      Whether the judgment should be referred in the
               Digest?                              Yes

S.L. Bhayana, J.

This appeal has been filed by the appellant Ramesh Kumar @

Sonu under Section 374(2) of Cr.P.C against the judgment of the

Trial Court dated 08.7.2000 and the order of sentence dated

12.7.2000 whereby the appellant had been convicted and

sentenced to undergo 7 years RI u/s 392 of IPC with a fine of

Rs.3000/- and in default, to undergo further RI of one year. The

appellant was further awarded RI of 7 years u/s 394 of IPC and fine

of Rs.3000/-, in default to further undergo RI of one year. The

appellant was further awarded RI of 7 years u/s 397 of IPC. All the

sentences were ordered to run concurrently and the convict was

entitled for the benefit of Section 428 Cr.P.C.

2. I have heard the learned counsel for the appellant. It is

submitted by learned counsel for the appellant that the knife, which

was used at the time of commission of the offence is not recovered

and, therefore, Section 397 IPC is not attracted. The appellant is,

therefore, liable to be convicted under Section 392/394 IPC only.

Learned counsel for the appellant further submits that the appellant

has already undergone the sentence for 4 years in jail and that he

may be released for the sentence already undergone by him in jail.

It is further submitted that the appellant is a patient of HIV positive

and, thus, a lenient view may be taken for him in this case.

3. Learned counsel for the appellant, in support of his case, has

relied upon the judgment of this Court titled 'Fateh Singh vs. State',

93 (2001) DLT 377.

4. On the other hand, learned counsel for the State has

submitted that PW-6, Pramod Kumar Sharma in his statement has

categorically stated that the accused Ramesh by showing a knife

threatened the complainant/PW-6 to hand over to him whatever

belongings he had, and when the complainant refused to do so, he

gave a knife blow on the left thigh of the complainant and both the

accused persons removed cash of Rs.2100/- and a HMT Watch by

force from him. Learned counsel for the State further submits that

the victim/complainant was stabbed with a knife and, therefore,

Section 397 IPC is attracted. He has relied upon a judgment of this

Court titled 'Vinod Kumar & Ors. Vs. State' reported at 2007(2) JCC

1011.

5. Arguments heard.

6. I have gone through the statement of the complainant/PW-6,

Pramod Kumar Sharma wherein he has deposed that at about 8.30

p.m he boarded in a TSR from the bus stop Kashmere Gate. In the

TSR besides him, 3-4 persons were already in the TSR. When the

TSR went towards Usmanpur, accused Ramesh having a knife in his

hand told the driver to stop the TSR and also told the complainant

by showing a knife that whatever he had, should be handed over to

him and if he failed to give the same, he would stab him with a

knife. On that, the complainant told that he would not give him

anything as he had brought his salary on that day and he did not

give them the money. Thereafter, co-accused Anil told the accused

Ramesh to give a knife blow to the complainant. On that, the

accused Ramesh gave a knife blow on the left thigh of the

complainant and both the accused removed cash of Rs.2100/- and

also a HMT wrist watch.

7. I have gone through the impugned judgment dated 08.7.2000

and the order of sentence dated 12.7.2000 passed by the learned

Trial Court. I have also gone through the testimony of the witnesses.

All the PWs have supported the case of the prosecution.

8. I do not agree with the contention of learned counsel for the

appellant that Section 397 IPC is not attracted in the present case

as the knife, which was used at the time of commission of the

offence has not yet been recovered. PW-6, Pramod Kumar Sharma

has stated that he was robbed at the point of knife and when he

refused to part with his belongings, he was stabbed by the accused.

It is established that knife was used in commission of crime. It does

not matter whether the knife was recovered or not from the

accused. This view finds support from the law laid down by this

Court in the case of Vinod Kumar & Ors. (supra).

9. Keeping in view the aforesaid legal position and the fact that

the complainant was robbed at the point of knife and stabbed, no

leniency can be shown to the appellant.

10. I do not find any merit in the appeal and the same is,

therefore, liable to be dismissed.

11. Dismissed.

12. The appellant is directed to surrender before the Jail

authorities immediately. A copy of this judgment be sent to trial

Court and Jail authorities for compliance.

S.L.BHAYANA,J

SEPTEMBER 09,2010 KA