Raj Kumar & Anr. vs State
2012 Latest Caselaw 4828 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Reserved on : 13th August,2012
                        Pronounced on : 17th August, 2012

+      CRL.A.581/2009

       RAJ KUMAR & ANR.                       ..... Appellants
                      Through :     Ms.Nandita Rao, Adv.
                                    (DHCLSA)

                  versus

       STATE                                   .... Respondent
                        Through :   Mr.Navin Sharma, APP for
                                    State.

       CORAM:
       HON'BLE MS. JUSTICE PRATIBHA RANI

%
PRATIBHA RANI, J.

1. The facts leading to the filing of the present appeal by convicts Raj Kumar and Jitesh @ Tie are that on 13.10.2006 vide DD No.48-B Ex.PW2/A information was received at PS Hauz Qazi at 11.15 PM about a quarrel taking place at House No.855, Gali Beri Wali, Kucha Pati Ram, Bazaar Sita Ram. SI Sombir Singh alongwith HC Shiv Ram reached the spot where he found number of public persons gathered. The complainant Sachin Gupta (PW-1) handed over appellant Raj Kumar alongwith one knife claiming that knife was recovered by the public persons from the hand of Raj Kumar.

2. Sachin Gupta made statement Ex.PW1/A to the effect that on that day he alongwith his cousin Dheeraj Nath Gupta returned from his workplace and got down at Ramlila Ground where the Wagon-R in which they were travelling, was parked. Dheeraj picked his scooter from there and dropped him outside his gali. At 10.30 PM, while he was walking towards his house and reached near his house, he was surrounded by Jitesh @ Tie, Ajeet, Raj

Kumar and one other person, whom he could identify. He knew these persons as they were residing in the adjoining gali. They asked for some money and on his refusal, they decided to teach him a lesson for refusal.

3. At the behest of Jitesh @ Tie, appellant Raj Kumar and his other companion started beating him with kicks and blows. Jitesh @ Tie snatched his chain with pendant. Ajeet snatched his bracelet. As per the complainant Sachin Gupta, when he was trying to flee from there, appellant Raj Kumar took out a knife and attacked on his right hand. He suffered injury on his right hand little finger. In the meantime, public persons gathered there and managed to overpower Raj Kumar alongwith knife and started beating him. Jitesh @ Tie, Ajeet and their associate managed to flee from there. Somebody informed the police and after arrival of the police, he handed over appellant Raj Kumar alongwith the knife.

4. After filing of the chargesheet, the trial concluded and appellant Raj Kumar and his co-accused was convicted for the offences punishable under Section 392/394/34 IPC and sentenced to undergo RI for five years with fine of Rs.5000/-. Appellant Raj Kumar was further convicted for the offence punishable under Section 397 IPC and sentenced to undergo RI for seven years with fine of Rs.10,000/-.

5. The appellant Jitesh, who was convicted under Section 392/34 IPC and sentenced to undergo RI for five years with fine of Rs.5000/-, vide order dated 27.09.2011 passed by this Court, was sentenced to the period already undergone by him in custody after he spent four years (including remission period of five months and eighteen days) out of the total sentence of five years awarded to him. The sentence of fine was also waived in view of his poor financial condition.

6. On behalf of appellant, it has been submitted that it is a case where occurrence is claimed to have been taken place in full

public view but not even a single public witness has been joined either to prove the occurrence or recovery of knife or its use. Ms.Nandita Rao, learned counsel for the appellant has further submitted that the appellant is not challenging his conviction under Section 392/34 IPC. His only grievance is that the persons who allegedly committed the robbery have been awarded lesser sentence while he has been convicted under section 397 IPC and sentenced to undergo RI for seven years with fine of Rs.10,000/- without the ingredients of Section 397 IPC being satisfied.

7. Mr.Navin Sharma, learned APP for State has submitted that from the statement of the complainant, it is proved that the appellant Raj Kumar used the knife at the time of commissions of robbery and even caused injury on the right hand of the victim. Learned APP for State has further submitted that non-joining of the public witness is insignificant in view of the statement made by the complainant. Learned APP has relied upon Ashfaq vs. State (Govt. of NCT of Delhi) AIR 2004 SC 1253 and Phool Kumar vs. Delhi Administration AIR 1975 SC 905 in support of his contentions and submitted that appellant Raj Kumar has rightly been convicted for committing the offence punishable under Section 397 IPC and minimum sentence has been awarded to him.

8. I have considered the rival contentions. First of all, I would like to mention that as per complainant, the offenders were his neighbours well known to him residing in the adjoining gali. Even as per the complaint Ex.PW1/A, the role assigned to appellant Raj Kumar is that he started giving kicks and blows. Chain and bracelet have been snatched by Jitesh and Ajeet and not by Raj Kumar. The offence of robbery was complete much before the knife was stated to have been used by appellant Raj Kumar.

9. The time of occurrence as per the complaint is 10.30 pm. DD No.48-B Ex.PW2/A was recorded at 11.16 pm and information received was not about robbery at knife point but about a quarrel

at House No. 855, Gali Beri Wali, Kucha Pati Ram, Bazaar Sita Ram, which is the residential address of the complainant himself. It is surprising that despite the incident taking place at the house of PW-1 Sachin Gupta and so many public persons gathered at the time of quarrel in a congested area in walled city in Gali Beri Wali, Kucha Pati Ram, Bazaar Sita Ram, none of the family member of the complainant or immediate neighbour came out to the rescue of the complainant.

10. Even if this aspect is ignored by this Court, the MLC prepared at LNJP Hospital is sufficient to create a dent in the case of prosecution. Vide DD No.48-B dated 13.10.2006, PS Hauz Qazi, Sachin Gupta was sent for medical examination for the injuries on both the knees and right hand finger. Request for medical examination is by HC Shiv Ram Singh who reached the spot and he does not mention in this application that injuries on his hand is due to the knife used by Raj Kumar while committing robbery. The medical examination report prepared by Medical Officer, Casualty & Emergency, Lok Nayak Hospital, New Delhi is to the following effect :-

'DD No.48-B, dt. 13/10/06 PS Hauz Qazi, Sachin Gupta, S/o Late Rishi Ram Gupta, R/o H.No.855, Gali Beri Wali, Kucha Pati Ram, Sita Ram Bazaar.

B/B : Ct. Shahid Ahmed, 1095/C h/o Assault at Gali Beri Wali at his home at 10.30 pm, 13/10/06 O/E - Pt. Conscious oriented P/R - 88/m Chest CVS NAD; L/E - Mild Abrasions over right small finger P/A - Mild Abrasions right knee

-Tenderness left ring finger'

11. The above medical history of Sachin Gupta rules out the possibility of use of knife for committing the robbery. Even there is nothing on record to suggest that the abrasions on the right small finger was with the knife stated to be recovered by the

police at the spot or by any sharp object.

12. Taking into consideration the entire facts and circumstances of the case, I find that the case of the prosecution that it was the appellant Raj Kumar who used the knife at the time of commission of robbery is not proved. Even from the documents which were prepared immediately after the occurrence, it is established that neither appellant Raj Kumar used any knife at the time of commission of robbery nor the injuries suffered by PW-1 Sachin Gupta - the complainant were opined to be caused by a knife. He only suffered some abrasions and right from the time of recording DD No.48-B Ex.PW2/A till his medical examination, even as per the complainant, it was a case of assault.

13. It is settled legal position that to bring home the guilt, the prosecution must lead evidence of such unimpeachable character that rules out the innocence of the accused.

14. In the instant case, the evidence adduced by the prosecution to prove the guilt of the accused for the offence punishable under Section 397 IPC is full of dents. Thus, the appellant Raj Kumar cannot be convicted for the offence punishable under Section 397 IPC.

15. The appeal is partly allowed. The conviction and sentence of the appellant Raj Kumar for the offence punishable under Section 392/34 IPC is maintained. Since, appellant Jitesh @ Tie has been sentenced under Section 392/34 IPC to the period already undergone by him vide order dated 27.09.2011 passed by this Court, on parity, appellant Raj Kumar is also sentenced to the period already undergone by him under Section 392/34 IPC and fine is also waived. Hence, while maintaining the conviction of the appellant Raj Kumar under Section 392/34 IPC and reducing the sentence to the period already undergone by him in judicial custody, his conviction and sentence under Section 397 IPC is set aside. The appellant Raj Kumar be released forthwith, if not

wanted in any other case.

16. Copy of the order be sent to Jail Superintendent for necessary compliance. Trial Court Record be sent back alongwith copy of the order.

PRATIBHA RANI, J August 17, 2012 'st'