Abhay Raj Mishra vs State

Mukta Gupta, J.

1 This is an Appeal against the judgment of conviction and sentence dated 22nd September, 1999 whereby the Appellant has been convicted for offences punishable under Sections 392/397/34 IPC and directed to undergo a sentence of rigorous imprisonment for seven years and a fine of Rs. 5,000/-. In default of payment of fine the Appellant is to undergo simple imprisonment for five months.

2 The facts leading to the prosecution filing the charge sheet are that on 24th October, 1997 at about 1.45 P.M. PW2 Sri Niwas Pandey who was working in R.N. Distributor at Mehrauli had gone to supply the medicines. While he along with Subhash Chand Pandey were returning towards Mehrauli on their respective bicycles, and reached at Vasant Kunj red light, Sri Niwas Pandey crossed over but SubhashChand Pandey could not do so in view of the red light and followed him on the next green light. When PW2 reached at B1, Vasant Kunj out of the two boys going on foot ,one desired to sit on his cycle. However, PW2 Sri Niwas Pandey refused saying that there was a bundle of medicines on the carrier of his cycle. Thereafter, the Appellant herein gave a push to his cycle and PW2 along with his cycle fell down. The Appellant took out a knife and asked him to hand over the money. Srinivas Pandey resisted and answered that he had no money with him but later on took out Rs. 3,500/- from the right side pocket of his pant which the Appellant took away and handed over to his co-accused Kaushlender. Thereafter, both the accused ran away. In the meantime, Subhash Chand Pandey also came and both of them on their cycles chased the accused persons. As they had raised the alarm, at the gate of B-7,Vasant Kunj, public persons apprehended the Appellant, however, the co accused managed to escape. Some public person informed the police about the said incident on which the police reached the spot and apprehended the Appellant. The statement of PW2 Sri Niwas Pandey was recorded vide Exhibit PW2/A on the basis of which F.I.R. was got registered. The Appellant was arrested and in pursuance of his disclosure statement and pointing out co-accused Kaushlender was arrested from his house in Village Nawada. Kaushlender got recovered a total of Rs. 1,500/- from beneath the boxin his room. After completion of investigation the charge sheet was filed.

Pursuant to the trial the learned judge convicted the Appellant and the co-accused for the aforementioned offences. The co-accused Kaushlender has also filed an appeal however, since he has not been appearing, non-bailable warrants have been issued against him. Thus, the present appeal has been heard.

Learned Counsel for the Appellant contends that there are inherent contradictions in the testimony of PW2 and the spot witnesses. In the FIR PW2 Sri Niwas Pandey had stated that accused Kaushlender showed the knife to him however, he has totally reversed the role and deposed in the Court that it was the Appellant Abhay Raj Mishra who pushed him down and showed knife. Thus, it is a material contradiction and in view of this material contradiction no reliance can be placed on the testimony of this witness and the same has to be discredited. Also the prosecution has failed to place on record any other cogent evidence against the Appellant and in absence of any corroborative evidence to show that the Appellant showed knife, he cannot be convicted for offence u/s 397 IPC. Reliance''s placed on Bhajan Singh Vs. State of Punjab, .

It is further contended that when PW3 Constable Shyam Lal appeared in the witness box only Rs. 1,500/- were produced whereas the currency notes recovered from the co-accused Kaushlender and earlier produced were Rs. 1,515/-. The witnesses have stated that the currency was not sealed. No independent witness has been associated from the spot at the time of apprehension. Reliance is placed on Naba Kumar Das Vs. State of West Bengal, . Learned Counsel states that inconsistent statements have been made by the witnesses as to the Navada spot and thus, the Appellant is entitled to the benefit of doubt. Reliance is placed on Suraj Mal Vs. State (Delhi Administration), .

Learned APP on the other hand contends that the recovery in the present case relates to the co-accused. The Appellant was apprehended on the spot by the public persons and since at the time of apprehension he was beaten by the public, he was got medically examined and his MLC has been proved vide Ex. PW4/A. The Appellant in his reply to a question in the statement u/s 313 Code of Criminal Procedure has admitted his presence on the spot. The variations in the identity of the person who had shown the knife to the complainant is a minor variation and the prosecution case cannot be thrown out in its entirety on this count.

I have heard learned Counsels for the parties and perused the records. The deposition of PW2 Sri Niwas Pandey who is the victim is cogent and convincing. He has explained the entire incident. The testimony of PW2 is corroborated from the fact that the Appellant was apprehended on the spot and since he was beaten by the public, he was medically examined and his MLC has been proved vide Ex. PW4/A. The Appellant has also admitted his presence on the spot in his statement u/s 313 CrPC. The prosecution has also proved by way of receipts the money collected by PW2 from the customers on that date thus showing the availability of Rs. 3,500/- with him which was robbed by the Appellant and his co-accused. The defence taken by the Appellant is baseless and an afterthought as no suggestion in this regard has been given to the material witnesses. The decisions relied upon by learned Counsel for the Appellant have no application to the facts of the present case. In Bhajan Singh (supra), the Hon''ble Court came to the conclusion that the prosecution witnesses contradicted their earlier statements u/s 164 Code of Criminal Procedure and the contradictions suggest that the defence version might be true and thus the infirmities cast a legitimate doubt on the truth of the prosecution version. In Suraj Mal (supra), the Appellant therein was convicted for offence punishable u/s 5(2) of the Prevention of Corruption Act and Section 161 IPC read with Section 34 IPC. The Hon''ble Supreme Court held that mere recovery of the money from the bush-shirt of the Appellant divorced from the circumstance under which it was paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable.

The only confusion is as to whether the Appellant or his co-accused showed the knife to him and thus, whether Section 397 IPC would be attracted. PW2in his statement Exhibit PW2/A on the basis of which FIR has been registered, had alleged that it was the co-accused Kaushlender who had shown the knife whereas in his testimony before the Court he says the knife was shown by the present Appellant. When witnesses are overtaken by event there can be no doubt that confusion can be caused and in that confusion to be able to retain who the actual assailant was, may vary from witness to witness. Section 397 IPC is a substantive offence and the liability u/s 397 IPC cannot be fastened with the aid of Section 34 IPC. In Shri Phool Kumar Vs. Delhi Administration, the Hon''ble Supreme Court held that Section 397 IPC is attracted against the person who had shown the deadly weapon. Thus, in my opinion the learned Trial Court erred in convicting the Appellant and his co-convict for offences punishable u/s 397/34 IPC. In view of the discrepant testimony of PW2 to the extent as to who showed the knife to the complainant PW2, there is certainly a doubt cast. However merely for this contradiction, the otherwise cogent and convincing testimony of PW2 cannot be doubted. There is no discrepancy in the testimony of this witness to the extent that the Appellant pushed his bicycle with the result PW2 and his bicycle fell down and thereafter the Appellant took away Rs. 3,500/- from PW2 and gave it to the co-accused Kaushlender. In view of the discrepancy, the Appellant is only entitled to the benefit of doubt to the fact as to whether PW2 was shown the knife by him or his co-accused. In view of this doubt the Appellant cannot be convicted for offence punishable u/s 397 IPC, however, a case for conviction for offence punishable u/s 392/34 IPC is made out against the Appellant and thus, his conviction for the said offence is upheld.

The Appellant was awarded a sentence of seven years as the minimum sentence prescribed for an offence punishable u/s 397 IPC is seven years. Since the Appellant has been given the benefit of doubt for offence punishable u/s 397 IPC and convicted for offence u/s 392/34 IPC, in my opinion the interest of justice would be met if the sentence of the Appellant is modified to the period already undergone which is nearly four years and 5 months including remission.

The Appeal is accordingly allowed modifying the conviction of the Appellant to one u/s 392/34 IPC and the sentence to the period already undergone. The bail bond and the surety bond are discharged.