The main legal point established in the judgment is the requirement for sufficient evidence to uphold a conviction and the consideration of time elapsed and past criminal record in determining an appropriate sentence.

R.K. Gauba, J.

The appellant was arrested in case arising out of first information report (FIR) no.322/2000 of police station Vasant Vihar on 10.10.2000 and on the basis of report (charge-sheet) under Section 173 of the Code of Criminal Procedure, 1973 (Cr. PC) was sent up for trial, the case (no.27/2001) having been committed to the court of sessions wherein charges were framed against him for offences under Sections 394 and 397 read with Section 34 of the Indian Penal Code, 1860 (IPC) and Section 25 of Arms Act, 1959. On the conclusion of the trial, by judgment dated 15.07.2002, he was held guilty and convicted by the Additional Sessions Judge for offences under Section 397 IPC and Section 25 of Arms Act. By separate order passed on the same day, punishment in the form of rigorous imprisonment for seven years was awarded for offence under Section 397 IPC with fine of Rs.5000/-, with rigorous imprisonment for two years and fine of Rs.500/- for offence under Section 25 of Arms Act. Both the substantive sentences were directed to run concurrently, the benefit of set off under Section 428 Cr. PC having been accorded.

2. The present appeal was filed in August 2002. By order dated 08.04.2004, the sentence was suspended and the appellant was released on bail pending hearing on the appeal. The appeal was admitted, to come up in due course. When its turn came, the appellant failed to appear. This led to non-bailable warrants being issued against him with notice to his surety by order dated 16.01.2019. He was arrested on 04.03.2019 in execution of the said warrant of arrest and sent to custody.

3. Earlier, the trial court record had been requisitioned. It came to be lost by the registry, having gone missing. Pursuant to directions issued on the administrative side, the said record has been reconstructed. It is conceded by both sides that the appeal can be decided on the basis of reconstructed record.

4. Arguments on both sides have been heard and the record has been perused.

5. It is pointed out by the counsel for the appellant that there is no evidence worth the name showing the appellant to have used any deadly weapon in commission of the offence of robbery. It is his submission that, in this view, the conviction under Section 397 IPC cannot be upheld. It is argued that at best the conviction may be returned by modifying the order of the trial court, for offence under Section 394 IPC. The counsel for the appellant submitted that given the long period that has elapsed, the offence having been committed more than eighteen years ago, there being no other case faced by the appellant either prior to the case at hand or thereafter, he may be treated leniently in the matter of punishment.

6. The trial court record would show that the robbery was committed on 10.10.2000 sometime around 10.30 a.m. in the office of S. Balaji (PW-2) who runs a proprietary business in the name and style of Epic Forex and Travels at 31, Vasant Enclave, Vasant Vihar, New Delhi. He was assisted during the said period by his employee (peon) Vijay Kumar (PW-7). Both PW-2 and PW-7 speak about entry of four persons, one after the other, into the office of former, on the pretext of exchanging eleven (US) dollars into Indian currency. It is at that stage when one of the four intruders whipped out a firearm described as a country-made pistol, at pointing of which, PW-2 was relieved of his purse which contained cash Rs.1,35,000/- besides certain sterling pounds and dollars and personal effects. At the time of he being relieved of such valuables, the robbers got hold of PW-7, one of them having hit him on his head with fists. PW-2 was petrified and he requested for his employee to be spared. The robbers tied up both PW-2 and PW-7 and went out bolting the door from outside. It is on PW-2 freeing himself from the wires with which he had been tied up and banging on the door, that Ganesh Kumar (PW-3), an employee of neighbouring office came and opened the door from outside