Veena Birbal, J.@mdashBy way of present appeal, a challenge has been made to the judgment dated 25th May, 2010 passed by ld. Addl. Sessions Judge, Delhi whereby the appellant and the co-accused have been convicted for the offence punishable u/s. 394 & 397 IPC read with section 392 IPC and the order of sentence dated 26th May, 2010 whereby the appellant has been sentenced to undergo RI for 7 years for the offence u/s. 397 r/w 392 IPC and a fine of Rs. 10,000/- and in default to undergo SI for one year. Appellant and co-accused have been further sentenced to undergo RI for seven years u/s. 394 IPC and a fine of Rs. 10000/- and in default of fine, to further undergo SI for one month. It has further been ordered that both the sentences will run concurrently. The allegations against the appellant are that on 21st February, 2008, one Nitin Mehta lodged FIR Ex. PW 6/B in police station Ashok Vihar wherein it is stated that on the aforesaid day at about 5 pm, he was sitting in the Ashoka Park after having stroll. A neighbourer Mr. Manmohan Bhasin, PW-2 came there and asked for availability of his car and told that Mr. S.K. Chadha i.e., victim of the present case had received injuries. As he was not having keys of the car, Mr. Bhasin, PW-2 brought his car. The injured S.K. Chadha was taken to the clinic of Dr. Singla. On the way, Mr. S.K. Chadha told that near Maharaja Agarsen School, two boys came from behind and assaulted him with a blade and robbed him of his wallet containing Rs. 800/-. As the clinic of Dr. Singla was closed, they had taken him to Sunder Lal Jain Hospital. Police also arrived there on receipt of information vide DD no. 21, Police Post JJ Colony, Wazirpur. The deceased at that time was in ICU. On the basis of statement Mr. Nitin Mehta, PW-4m FIR Ex. PW 6/B was registered u/s. 394/34 IPC Police Station Ashok Vihar.
2. Sh. S.K. Chadha had died in the hospital on 23.2.2008 before giving statement to the police. Thereupon Section 304 IPC was also added in the FIR. After completion of investigation, charge sheet was filed against the present appellant as well as co-accused for having committed offences punishable u/s. 394/397/304/34 IPC before the concerned ld. M.M. Delhi. The ld. M.M. committed the case to the court of Sessions.
3. Before the Sessions court, charges were framed against the appellant and the co-accused for having committed offence punishable u/s. 394/34 IPC, 397 read with section 392 IPC. Alternatively charge u/s. 304 Part II IPC was also framed. Appellant pleaded not guilty and claimed trial.
4. The prosecution in all had examined 16 prosecution witnesses. Out of which material witnesses are Tilak Dhari, PW-5, Mansoor, PW-7, Ritu Sarin, PW-1, Manmohan Bhasin, PW-2 and Nitin Mehta, PW-4. Remaining witnesses pertain to police and medical evidence.
5. After closure of prosecution evidence, incriminating evidence was put to the appellant as well as to the co-accused u/s. 313 Cr.P.C. wherein they had denied the same and stated that there were innocent persons and were falsely implicated. However, no evidence was led in defence.
6. After hearing the counsel for parties, learned ASJ convicted the appellant as well as co-accused as has been stated above. Aggrieved with the same, the present appeal is filed.
7. Learned counsel for the appellant has submitted that as per material on record, deceased S.K. Chadha had died due to Myocardial Ischaemia as a result of coronary insufficiency and the learned trial court has held that charge u/s. 304 Part 11/34 IPC is not made out.
8. Learned counsel for the appellant, on instructions from appellant who is present in custody, has submitted that appellant is not challenging his conviction u/s 392/394 IPC. It is stated that the offence u/s 397 IPC is not made out as there is no evidence against the appellant of having used the weapon of offence. It is submitted that victim had died after two days of incident due to Myocardial Ischaemia as such his statement could not be recorded during the investigation. It is stated that there are two eye witnesses to the alleged occurrence i.e., Tilak Dhari, PW-5 and Mansoor, PW-5. It is submitted that Mansoor PW-5 is hostile to the case of prosecution. It is stated that PWs 1, 2, 4 and 9 are not eye witnesses to the alleged occurrence as their evidence is only hearsay evidence. Learned counsel has further submitted that there is no evidence that the present appellant has used the '' deadly weapon'' i.e., surgical blade at the time of occurrence. It is submitted that ingredients of Section 397 IPC are not fulfilled in the present case. It is submitted that in these circumstances, the offence u/s. 397 IPC is not established against the appellant. It is submitted that the ld. trial court has awarded sentence of 7 years out of which, appellant has already undergone 6 years and 4 months of sentence. He is 26 years of age. At the time of incident, he was quiet young. It is stated that the sentence undergone by the appellant will meet the ends of justice in respect of other offences for which he has been convicted.
9. On the other hand, learned APP submits that the sentence awarded is commensurate with the offence committed by the appellant. Learned APP has argued for dismissal of the appeal.
10. I have heard the submissions made.
11. Section 397 IPC reads as under:-
Robbery, or dacoity, with attempt to cause death or grievous hurt:-
If at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
A perusal of the section would show that an act would only fall within its mischief if at the time of committing robbery or dacoity the offender:-
(a) uses any deadly weapon; or
(b) causes grievous hurt to any person; or
(c) attempts to cause death or grievous hurt to any person.
12. I have gone through the statement of eye witness i.e., Tilak Dhari, PW-5 who has deposed that on 21st August, 2008 he had gone to the house of his brother LIG Flats, Ashok Vihar Phase IV at about 4 pm. When he reached at road opposite Gate no. 2 Maharaja Agrasen School, he had seen that 2 boys were scuffling with an old man and they were snatching something. At that time, the old man was bleeding from his hand. He had informed the matter to the police. He has deposed that he told the old person to stay there as police would be reaching. Thereafter, he left the spot. He has identified the appellant in court. From his evidence, it cannot be said that appellant had used any deadly weapon caused grievous hurt to the deceased. His act does not fall within the ambit of sub-section (a) nor (b) (c) of section 397. The other witness Mansoor, PW-5 has turned hostile and has not supported the case of the prosecution. As noted, the other witnesses are not eye witnesses to the occurrence and their evidence is not of much help to the prosecution. The liability u/s. 397 IPC is individual and not constructive. The same is clear from an analysis of the text of section 397 IPC. In view of the evidence on record, the conviction of the appellant u/s. 397 IPC cannot be sustained. Accordingly, his conviction u/s. 397 IPC is set aside.
13. The conviction of the appellant u/s. 394 IPC r/w section 392 IPC is not challenged. There is also sufficient evidence as has been discussed above to substantiate the same. As per evidence on record i.e., MLC Ex. PW 8/A, injury on the hand of the victim was superficial as has been opined as ''simple''. Accordingly, the conviction of the appellant u/s. 394 read with section 392 IPC is maintained. Perusal of the nominal roll shows that on 10th October, 2013, appellant has already undergone sentence of 6 years, 4 months and 20 days. Accordingly his substantive sentence of 7 years RI is reduced to the sentence already undergone by him. The sentence of fine of Rs. 10,000/- is maintained. In default of payment of fine, appellant shall undergo SI for 7 days.
Appeal stands partly allowed.
A copy of this order be sent to the Jail Superintendent today itself.
