Radhey Shayam S/O Sh. Pyare Lal vs The State (N.C.T. Of. Delhi)
2011 Latest Caselaw 2239 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
+                 Crl. Appeal No. 117/2000

%                                            Reserved on: 24th February, 2011

                                             Decided on: 27th April, 2011


RADHEY SHAYAM S/O SH. PYARE LAL               ..... Appellant
                 Through: Ms. Lakshita Sethi, Advocate for A.J.
                          Bhambhani, Advocate

                           Versus

THE STATE (N.C.T. OF. DELHI)                               ..... Respondent
                     Through:            Mr. Manoj Ohri, APP



Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may          Not Necessary
   be allowed to see the judgment?

2. To be referred to Reporter or not?                 Yes

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



MUKTA GUPTA, J.

1. Briefly the prosecution case is that on 1 st October, 1994, at about 11 pm,

the Appellant along with Bharat, Katik and Laxmi Narain @ Pappu committed

robbery upon Gauri Shankar and Dharam Pal of `200/- and `100/- respectively

on the point of knife. The Appellant and two others i.e., Bharat and Katik were

apprehended from the spot immediately after the incident by the complainant

and his neighbours who took them to the nearby police post and handed over

them over to the police. Co-accused Laxmi Narain managed to escape and on

the disclosure statement made by the Appellant vide Ex.PW3/G and the

pointing out of the complainant, Gauri Shankar was arrested on 14.10.1994. As

per the complainant Gauri Shankar PW3, the Appellant put knife and the other

two accused removed `200/- from his pocket and `100/- from that of Dharam

Pal. On the statement of the said Gauri Shankar, FIR No. 322/94 under Sec.

397/392/34 IPC read with Sec. 25/27 Arms Act was registered at PS Ashok

Vihar. During the course of trial, Bharat and Katik absconded and were thus

declared proclaimed offenders. After recording of the prosecution evidence and

statement of the accused, the Appellant was convicted for offences punishable

under Secs.397/392/34 IPC and 25/27 Arms Act and was awarded Rigorous

Imprisonment for a period of seven years for Section 397/34; five years for

Section 392 and two years for Section 25/27 Arms Act respectively. Co-accused

Laxmi Narain was convicted for offences punishable under Sec.392/34 IPC and

was awarded Rigorous Imprisonment for a period of five years. This judgment

for conviction dated 1st July, 1999 and the order on sentence dated 9th July, 1999

in Sessions Case No. 56/95 is impugned in the present appeal by the Appellant.

During the pendency of the present appeal, sentence of the Appellant was

suspended vide order dated 16th November, 2000. However, when the appeal

came up for hearing neither the Appellant nor his counsel was present and

hence warrants were issued against the Appellant. Despite bailable warrants

being issued repeatedly the same could not be executed and thus non-bailable

warrants were issued and finally the Appellant was taken into custody. The

Appellant is presently in judicial custody.

2. Learned Amicus Curiae appearing for the Appellant states that the

version of the witnesses PW1, PW2 and PW3, who is also the complainant in

the case is highly improbable. Though PW3, has alleged that the Appellant put

knife on him, but he has not alleged that the Appellant removed `200/- from his

pocket and `100/- from the pocket of Dharam Pal. In the absence of the

necessary ingredients of robbery being attracted no offence can be said to be

committed by the Appellant by merely showing knife. The other alleged victim

i.e., Dharam Pal has not appeared in the witness box. The witnesses have

admitted that it was dark at the spot and thus they could not identify the

Appellant as the person who had showed the knife. Six currency notes i.e., four

recovered from one accused and two from another were all sealed in a parcel.

Neither the number of the recovered currency notes was noted nor any mark on

the said notes was made. Moreover, PW3 has also not deposed anything in

regard to any special mark of identification on the currency notes which were

allegedly robbed from him. PW2 says that all the persons who went to

apprehend the Appellant and his co-accused were armed with lathis whereas

PW1 says that only two persons i.e. Gauri Shankar and Som Pal were armed

with lathis/ dandas. It is not possible that a person who had allegedly robbed at

the point of knife was easily threatened by the lathis and permitted PW3 and his

neighbours to snatch the knife from him. All the witnesses i.e., PW1, PW2 and

PW4 are the neighbours of PW3 and thus interested witnesses. In the absence of

proof of robbery or recovery of robbed articles, the provisions of Sec. 397 IPC

is not attracted. Reliance is placed on Chinnadurai vs. State of T.N. 1995 Supp

(3) SCC 686. In the alternative it is prayed that the sentence of the Appellant be

modified to the period of imprisonment already undergone.

3. Per contra, learned APP for the State submits that the incident took place

at about 8 P.M. on 1st October, 1994 and the DD No.32 recorded vide Ex.

PW6/C at about 11:45 P.M. itself speaks about the incident and the factum of

three persons having been apprehended on the spot with knife. This

contemporaneous document, thus corroborates the version of PW3, the

complainant and his neighbours PW1, PW2 and PW4. It is contended that to

prove an offence under Sec. 397 IPC it is not essential that the person who

showed weapon should himself commit robbery. When two or more person acts

in furtherance of common intention all acts of one are attributable to the other

persons as well. Thus, there is no infirmity in the judgment of the learned trial

court and the appeal be dismissed being devoid of any merit.

4. I have heard learned counsel for the parties and perused the record. PW3

Gauri Shankar is the victim and complainant of the above mentioned FIR. He

has deposed that on 1st October, 1994, he had gone to ease himself near

Premwari Pul and Dharam Pal was accompanying him. After they reached the

Premwari pul, at about 9:30 P.M. four persons surrounded them. The Appellant

herein was having knife in his hand and he put the same on the abdomen of

PW3 whereafter one of the co-accused named Pappu took his search and

removed `200/- from the back pocket of his pant, co-accused Bharat removed

`100/- from the pocket of Dharam Pal. The Appellant and his co-accused

threatened them to rush from there. Complainant and Dharampal rushed to their

jhuggis and brought back three boys Mahesh PW1, Bhagwan Dass PW2 and

Sompal PW4 with sticks to help them. All of them tried to apprehend the

accused persons and managed to apprehend three of them i.e., the Appellant

Radhey Shyam, Bharat and Katik. However, the fourth person i.e., Laxmi

Narain managed to escape. Knife was recovered from Radhey Shyam.

Thereafter, the accused were taken to the nearby police post. PW3 got recorded

his statement vide Ex. PW3/A and thereafter sketch of the knife was also

prepared and memo of recovery of `300/- i.e. `200/- from Katik and `100/-

from another accused whose name he did not recollect, were prepared. This

witness was also cross examined by the counsel for the Appellant on some

minor aspects wherein he clarified that after putting knife, the Appellant

exhorted to take out whatever was with them and the disclosure memo was

recorded in his presence which was duly signed by him besides the personal

search memos, the recovery memos and the sketch of knife. Despite elaborate

cross examination, nothing material could be elicited from this witness.

5. The testimony of PW3 is corroborated by the testimonies of PW1, PW2

and PW4 all of whom have stated that they had gone with PW3 and Dharam Pal

for chasing the accused with lathis/ Dandas in their hands while they had

moved slightly ahead, Gauri Shankar PW3 identified them. The Appellant was

having a Buttoned knife in his hand. PW3 took away the knife from the

Appellant. They also identified memos prepared in their presence. In view of

the overwhelming testimony of these witnesses which is duly corroborated by

contemporaneous documents Ex. PW6/C i.e. DD No. 32 recorded at the Police

Station Ashok Vihar at 11:45 P.M. i.e. soon after the incident, I find no reason

to disbelieve them. The minor contradiction as to the number of persons who

were armed with lathis/Dandas or that the currency notes were tied together in

one parcel does not discredit the entire prosecution case.

6. There is no merit in the contention of learned counsel that since there is

no recovery from the Appellant, he cannot be convicted for an offence

punishable under Sec. 397 IPC. Reliance placed by the learned counsel for the

Appellant on Chinnadurai (Supra), is misconceived as the Court in that case

was dealing with a situation where the allegation was that the accused

trespassed the house and ransacked the same. Though ransacking appeared to be

as if robbery was to be committed but no robbery was committed. It is in this

reference the Court held that the provision of Section 398 IPC was not

applicable.

7. PW9 HC Bahadur Singh was posted at the police post Premwari Pul

where the complainant had brought the appellant along with his co-accused. He

has also deposed on similar lines as PW3. PW9 had informed PW10 ASI Suresh

Sharma who reached at the spot and conducted the further proceedings, PW10

has also corroborated the version of the PW3 in regard to the recovery of the

robbed money from the co-accused and a Buttoned knife from the Appellant.

8. In the present case, the Appellant was in possession of the buttoned knife

which was recovered from his hand immediately after the incident. During the

commission of offence, money was looted from both the Complainant and his

friend Dharam Pal. Thus, offence punishable under Sec. 397 IPC is clearly

established. The Appellant had used the knife and there is sufficient evidence

placed on record on this count. Thus, I find no reason to disagree with the

learned Trial Court. I also do not find any merit in the contention of learned

counsel that the sentence of imprisonment be reduced to the period already

undergone. For an offence punishable under Sec. 397 IPC the minimum

prescribed sentence is an imprisonment for seven years which has been awarded

to the Appellant. The sentence of the Appellant cannot be reduced any further.

9. The appeal is accordingly dismissed maintaining the conviction and the

sentence. The Appellant is already in custody. He would thus undergo the

remaining sentence.

MUKTA GUPTA) JUDGE APRIL 27, 2011 'raj'