Raj Kumar vs State
2014 Latest Caselaw 2057 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : 23rd April, 2014
                               DECIDED ON : 24th April, 2014

+             CRL.A. 1308/2011 & CRL.M.B.No. 626/2014

         RAJ KUMAR
                                                        ..... Appellant
                         Through :   Mr.Saurabh Kansal, Advocate with
                                     Ms.Pallavi Kansal, Advocate.

                         versus

         STATE
                                                     ..... Respondent
                         Through :   Mr.Lovkesh Sawhney, APP.

         CORAM:
         MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Raj Kumar (the appellant) challenges the correctness and

legality of a judgment dated 28.07.2011 of learned Additional Sessions

Judge-I (East) in Sessions Case No.26/2011 arising out of FIR

No.664/2007 registered at Police Station Kalyanpuri by which he was

convicted under Section 392 read with Section 397 IPC; 411 IPC; and 25

Arms Act. By an order dated 29.07.2011, he was awarded various prison

terms.

2. The prosecution case, as set up in the charge-sheet, was that

on 25.09.2009 at around 09.30 pm near Telco T-Point, Gazipur, the

appellant robbed complainant Shailender Rathore of his purse containing

`500/-, RC of motor cycle No.DL-7SAH-2101 and documents at knife

point. When the complainant raised alarm, the appellant was apprehended

by public and was given beatings. The Investigating Officer lodged First

Information Report after recording complainant-Shailender Rathore's

statement (Ex.PW-2/A). Statements of witnesses conversant with the facts

were recorded. After completion of investigation, a charge-sheet was

submitted against the accused; he was duly charged and brought to trial.

The prosecution examined six witnesses to substantiate its case. In 313

statement, the appellant denied his complicity in the crime and claimed

that he was falsely implicated by HC Raj Kumar when he declined to pay

`5,000/- demanded by him as illegal gratification. He, however, did not

examine any witness in defence. The trial resulted in his conviction as

aforesaid. Being aggrieved and dissatisfied, the appeal has been filed.

3. I have heard the learned counsel for the parties and have

examined the record. The occurrence took place at around 09.30 pm and

the appellant was apprehended at the spot by public and was given

beatings soon thereafter. FIR was lodged promptly after recording

complainant's statement by sending rukka. The robbed articles were

recovered from appellant's possession. While appearing as PW-2, the

complainant-Shailender Rathore proved the version given to the police at

the earliest available opportunity without any variation. He identified the

appellant as the assailant who robbed him of his purse containing `500/-

(5 notes in the denomination of `100 each), RC of his bike No.DL-7SAH-

2101 and Pan Card at knife point. These articles were handed over to the

appellant when he was put in fear. When he raised alarm, the accused was

apprehended at the spot and was beaten by the public. In the cross-

examination, the witness produced the bus ticket to show that he had

travelled from Muradabad to Delhi that day. He denied the suggestion

that he was having previous enmity with the accused. It reveals that no

material contradictions or discrepancies could be elicited or extracted in

the cross-examination to disbelieve the version narrated by the witness

who had no prior acquaintance with the accused and had travelled from

Muradabad on the day of incident. The accused was apprehended at the

spot and the robbed articles were recovered from his possession along

with crime weapon i.e. knife. PW-3 (HC Raj Kumar) and PW-4

(Ct.Rajesh Kumar) have corroborated the version given by the

complainant. Their statements are consistent. PW-3 (HC Raj Kumar)

denied the suggestion that `5,000/- were demanded by him from the

appellant to 'drop' the proceedings. In the absence of prior enmity, the

complainant had no ulterior consideration to falsely implicate the accused.

The appellant has taken inconsistent and conflicting defence. In 313

satmeent, he pleaded that he had consumed liquor with HC Raj Kumar,

thereafter, he demanded `5,000/- from him. When he did not accede to

his demand, he was falsely implicated. However, no such suggestion was

put when PW-3 (HC Raj Kumar) appeared in the witness box. Rather it

was suggested that he demanded `5,000/- to 'drop' the proceedings. The

appellant did not examine any witness to substantiate his plea. Minor

contradictions highlighted by the appellant's counsel are not enough to

shake or discredit the complainant's version. The impugned judgment is

based upon proper and fair appraisal of the evidence and no interference is

warranted.

4. Since the appellant was convicted under Section 392 read

with Section 397 IPC for robbing the purse containing cash and other

articles, conviction under Section 411 IPC to receive or retain those

robbed articles dishonestly was not permissible and is set aside.

5. In the light of the above discussion, appeal is partly allowed.

The conviction and sentence of the appellant under Section 392 read with

Section 397 IPC and 25 Arms Act is upheld. Conviction and Sentence

under Section 411 IPC is set aside. The appeal stands disposed of in the

above terms. Trial Court record be sent back forthwith along with the

copy of this order.

(S.P.GARG) JUDGE 24th April, 2014 sa