Mukesh Kumar vs State Govt. Of N.C.T. Of Delhi
2013 Latest Caselaw 5394 Del

Citation : 2013 Latest Caselaw 5394 Del
Judgement Date : 22 November, 2013

Delhi High Court

Mukesh Kumar vs State Govt. Of N.C.T. Of Delhi on 22 November, 2013

Author: S. P. Garg

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  DECIDED ON : 22nd November, 2013

+                          CRL.A. 776/2001
       MUKESH KUMAR                                        ..... Appellant
                           Through :       Mr.Sandeep Kumar, Advocate.
                                  versus
       STATE GOVT. OF N.C.T. OF DELHI                      ..... Respondent
                           Through :       Mr.M.N.Dudeja, APP.
CORAM:
MR. JUSTICE S.P.GARG

S.P.GARG, J. (ORAL)

Crl.M.A.17633/2013

For the reasons mentioned in the application, the non-bailable

warrants issued against the appellant vide order dated 13.11.2013 stands

cancelled. The application stands disposed of.

CRL.A. 776/2001

1. With the consent of parties, the appeal is taken up for hearing

today. The date already fixed in the matter i.e. 17.12.2013 stands

cancelled.

1. Mukesh Kumar (the appellant) questions the legality and

correctness of a judgment dated 12.09.2001 in Sessions Case No.81/98

arising out of FIR No.906/1997 registered at Police Station Kalkaji by

which he was held guilty for committing offence under Section 397/34

IPC and sentenced to undergo Rigorous Imprisonment for seven years

with fine `500/-. Allegations against him were that on 08.12.1997 at about

02.00 P.M. at Ma Anendmai Marg, opposite Giri Nagar Masjid, he and

his companions Bhushan and Mahesh (not arrested) robbed Bhupender

Kumar (PW-1) of `1 lac withdrawn by him from Canara Bank, Okhla

Industrial Area after inflicting injuries with knife. The injured was taken

to hospital and was medically examined. The Investigating Officer

lodged First Information Report after recording Bhupender Kumar's

statement (Ex.PW-1/A). During investigation statements of witnesses

conversant with the facts were recorded. Mukesh Kumar was arrested in

FIR No.29/1998 registered at Police Station Okhla Industrial Area and

pursuant to his disclosure statement, he was taken into custody in this

case. In the Test Identification Proceedings, he was identified by the

complainant. After completion of investigation, a charge-sheet was filed

and Mukesh Kumar was duly charged and brought to trial. His associates

could not be apprehended and arrested. The prosecution examined 12

witnesses. In his 313 statement, the appellant denied complicity in the

crime. On appreciating the evidence and after considering the rival

contentions of the parties, the Trial Court by the impugned judgment held

him guilty under Section 397/34 IPC.

2. During arguments, learned counsel for the appellant, on

instructions, stated at Bar that the appellant has not opted to challenge the

findings of the Trial Court on conviction under Section 394 IPC. He,

however, prayed to take lenient view as the appellant had already

undergone custody in this case for more than five years. Learned

Additional Public Prosecutor has no objection to consider the mitigating

circumstances.

3. Since the appellant has given up challenge to the findings of

the Trial Court on conviction under Section 394 IPC where during

robbery PW-1 (Bhupender Kumar) was deprived of a bag containing ` l

lac, he after inflicting injuries and there is overwhelming evidence in the

statement of the complainant whereby he identified him in the TIP

proceedings as well as in the court, the conviction under Section 394 IPC

is affirmed. The prosecution was unable to establish beyond doubt if at

the time of committing robbery, the appellant was in possession of any

deadly arm/weapon or it was used by him. PW-1 (Bhupender Kumar) in

examination-in-chief was unable to disclose as to which of the three

assailants was armed with knife and who inflicted injury to him. He was

not specific if the appellant-Mukesh had caused injuries to him with knife.

The crime weapon was not recovered from the possession of the accused

or at his instance. The Supreme Court in Ashfaq v. State (Govt.of NCT of

Delhi), JT 2004 (5) SC 484 held:

"Section 397, does not create any new substantive offence as such but merely serves as complementary to Section 392 and 395 by regulating the punishment already provided for dacoity by fixing a minimum term of imprisonment when the dacoity committed was found attendant upon certain aggravating circumstances viz. use of deadly weapon, or causing of grievous hurt of attempting to cause death or grievous hurt. For that reason, no doubt the provision postulates only the individual act of the accused to be relevant to attract section 397 IPC and thereby inevitably negates the use of principle of constructive of vicarious liability engrafted in Section 34 IPC. Each one of the accused in this case were said to have been wielding a deadly weapon of their own, and thereby squarely fulfilled the ingredients of Section 397 IPC do hors any reference to section 34 IPC."

In view of it, the individual role of the accused has to be considered

in relation to the use or carrying of a weapon at the time of robbery for

attracting the provisions of Section 397 IPC. In the instant case, the

prosecution could not establish that the appellant was also carrying a

deadly weapon with him at the time of alleged robbery. Hence conviction

with the aid of Section 397 IPC cannot be legally sustained. By an order

dated 12.09.2001 Mukesh Kumar was awarded Rigorous Imprisonment

for seven years with fine Rs.500/- under Section 397 IPC. The substantive

sentence is altered to Section 394/34 IPC. Appellant's nominal roll

reveals that he had already undergone four years, five months and sixteen

days incarceration as on 30.09.2004 besides earning remission for 11

months and six days. His overall conduct in jail was satisfactory and he