Ram Kumar vs State
2013 Latest Caselaw 4766 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  DECIDED ON : 11th October, 2013

+                                 CRL.A.520/2000
       RAM KUMAR
                                                            ..... Appellant
                         Through : None.
                         versus
       STATE
                                                         ..... Respondent
                         Through : Mr.M.N.Dudeja, APP for the State.
CORAM:
MR. JUSTICE S.P.GARG

S.P.GARG, J. (ORAL)

1. Ram Kumar (the appellant) and Udai Bhan were arrested

and sent for trial in case FIR No.298/1997 registered at Police Station

Pahar Ganj with the allegations that on 21.04.1997 at about 07.30 a.m. at

staircase of Pul Pahar Ganj they along with two other companions robbed

Anil of `45,000/- at knife point. During the course of investigation, the

police was able to apprehend and arrest only Udai Bhan and Ram Kumar.

After completion of investigation, a charge-sheet was submitted against

them and they were duly charged and brought to trial. The prosecution

examined eleven witnesses. In their 313 statements, the accused persons

denied their complicity in the offence. The Trial Court by the impugned

judgment dated 04.08.2000 found them guilty for committing offence

under Section 392 read with Section 397 IPC and sentenced them to

undergo Rigorous Imprisonment for seven years with fine `100 each. It

appears that Udai Bhan did not challenge the judgment.

2. During the course of arguments, Ram Kumar opted to give

up his challenge to conviction under Section 392 IPC and confined

argument to urge that Section 397 IPC was not attracted and proved.

Learned Additional Public Prosecutor conceded absence of sufficient

material for conviction with the aid of Section 397 IPC. The prosecution

witnesses have given inconsistent version as to which of the assailants

was armed with deadly weapon or who actually used it at the time of

committing robbery. The complainant in the statement (Ex.PW-2/A),

recorded soon after the incident, disclosed that two of the assailants put

knives on his stomach. The other two assailants put knives on the chest of

Chander Mohand and Mahavir. PW-4 (Mahavir Singh), however,

contradicted him and deposed that no knife was put on his person by any

of the assailants. He identified only Udai Bhan as one of the assailants in

the court and was unable to identify Ram Kumar (the appellant). In the

cross-examination by learned Additional Public Prosecutor, with court's

permission, he informed that Udai Bhan was identified by him at the

instance of police officials. PW-3 (Chander Mohan) was not specific as to

which of the assailants used the knife to rob the complainant. He gave a

general and vague statement that two of the boys put knife on the stomach

of Anil and did not assign any specific role to Ram Kumar. In the cross-

examination he clarified that the Nepali boy (who could not be arrested)

had put knife on Anil's abdomen. PW-2 (Anil Kumar), the complainant,

merely deposed that all the four assailants had come along with long

knives. He, however, was not specific if Ram Kumar had used the knife

to rob him. In the cross-examination he implicated Ram Kumar and one

Nepali boy who put knives on his abdomen. Ram Kumar was arrested

after more than three months of the incident with a knife a separate case

under Section 25 Arms Act was registered which has resulted in acquittal.

Moreover, no worthful evidence was collected to ascertain if the knife

recovered was the crime weapon and was 'used' at the time of committing

robbery. No such knife was shown to the complainant for identification.

Ram Kumar was not even implicated under Section 25 Arms Act in this

case for using a deadly weapon. No such weapon was recovered from co-

convict Udai Bhan who was arrested after three days of the incident. The

prosecution has thus miserably failed to establish if Ram Kumar used a

deadly weapon at the time of committing robbery. Conviction with the

aid of Section 397 IPC, thus, cannot be sustained and is set aside.

3. Since the appellant (Ram Kumar) has opted not to challenge

the findings of the Trial Court under Section 392 IPC and the complainant

and other prosecution witnesses have attributed specific role to him in

snatching the bag containing `45,000/- the findings of the Trial Court on

conviction under Section 392 IPC are affirmed. Ram Kumar was

sentenced to undergo Rigorous Imprisonment for seven years with fine

`100/-. Nominal roll dated 21.05.2001 reveals that he remained in

custody for one year, eight months and two days as on 18.05.2001,

besides earning remission for one month and twenty days. At the time of

enlargement on bail and suspension of sentence on 08.10.2001 he had

already spent more than two years in custody. He has clean antecedents is

not involved in any other criminal case and has a family with four small

children to take care of them. He is suffering from HIV (+ive) and has

produced medical documents on record. Taking into consideration the

mitigating circumstances, Ram Kumar is sentenced to undergo the period

already spent by him in custody in this case.

4. The appeal stands disposed of in the above terms. Trial

Court record along with copy of this order be sent back to the Trial Court.

A copy of the order be also sent to Jail Superintendent, Tihar Jail.

(S.P.GARG) JUDGE OCTOBER 11, 2013 sa