Crl.A.778/2007 Page 1 of 6

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Crl.A.778/2007

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Date of Decision: 04.11.2009

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SONU @ KAPIL

.....Appellant

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Through: Mr. Rajesh Mahajan, Adv.

Versus

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THE STATE (NCT OF DELHI)

..... Respondent

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Through: Mr. Navin Sharma, APP.

CORAM:

HON'BLE MR. JUSTICE MOOL CHAND GARG

1. Whether the Reporters of local papers may be allowed

to see the judgment?

Yes

2.

To be referred to Reporter or not?

Yes

3. Whether the judgment should be reported in the Digest?

Yes

:

MOOL CHAND GARG,J(Oral)

1. Learned counsel for the appellant submits that the appellant

is not interested in challenging the conviction part of the

judgment given against him by the learned ASJ holding him

guilty of the offence under Section 392/397/34 IPC, but

submits that no case is made out against the appellant under

Section 397 IPC inasmuch as the Rukka, EX-PW2/A, shows

that no weapon was used by the appellant or his co-accused

at the time of commission of alleged robbery. As such it is

2009:DHC:4607

Crl.A.778/2007 Page 2 of 6

submitted that the appellant who is in judicial custody for a

period of more than six years is entitled to be released

forthwith by reducing the sentence awarded to him by the

learned ASJ vide order dated 14.09.2007 to the period

already undergone, which is to the tune of R.I. for seven

years. The punishment of seven years has been awarded to

the appellant only because that is the minimum prescribed

under Section 397 IPC.

2. I have examined the Rukka, Ex-PW2/A which reads as

under:

Statement of Sh. Ram Babu, S/o Sh. Jhamman Lal

Saini, H.No.182, Pocket G-30, Sector-3, Rohini Delhi,

Age-54 Years, P.H.25180887(S)

Bayan kiya hai ki main pata uprokt par sapariwar

rahta hoon aur meri Plot NO.43, Pocket-1, Sector 20,

Rohini Delhi me Sanitrywear House ke naam se

dukaan hai jo dukan par mera ladka Manish Saini

baithta hai jo aaj kisi kaam se kahin gaya hua tha.

Dukaan par main apne naukar Ashok, S/o Srinath,

R/o C-1/12, Sector-20, Rohini, age 28 years ke saath

maujud tha ki sham kareeb 5:30 baje do ladke umra

kareeb 24-25 saal. Ek ka sharer patla, rang kala aur

dusra darmayana jism, rang saanwala ek puraani

cycle par aaye jo dukaan ke andar aakar unme se ek

ne saaman dekhne ke bahaane hamara dhyan bata

liya jabki doosre ne dukaan ke counter ke paas khade

hokar daraaj me rakhe mera purse wa ghadi nikal liye

jo mere purse me Rs.5,000/-, mera driving licence,

kuchh dukaan ke visiting cards, jin par aaj ke Date

daali hai wa mere Sign hain tatha meri Ghadi golden

colour hai jo un dono ladkon ke nikalne par main ne dekha

phone kar diya. Un dono ladkon ko main saamne aane

par pehchaan sakta hoon. Kanooni karwai ki jaaye.

Bayan Sun liya, thik hai.

2009:DHC:4607

Crl.A.778/2007 Page 3 of 6

(emphasis supplied)

3. The interesting part is that the so called “kattanuma cheez”

which was not even taken out of the pocket has not even

been recovered from the appellant after his arrest. As far as

the complainant is concerned, who appeared as PW-2, he

has stated as follows:

“PW2, Sh. Ram Babu Saini, S/o Sh. Jhamman Lal

Saini, Age-54 Years, Shopkeeper, R/o182, Pocket G-

30, Sector-3, Rohini Delhi.

On S.A.:-

…………As we tried to resist both the accused took

out desi kattas and pointed out towards us and then

ran away from the shop. They also threatened me not

to chase them………”

4. However, this portion of the statement of the complainant is

contrary to the complaint and shows an improvement made

by him in his earlier statement which rather falsifies the case

of the prosecution.

5.