Chottey Lal vs State

S.P. Garg, J.—The appellant-Chottey Lal challenges conviction u/s 397/34 IPC in Sessions Case No. 97/1998 arising out of FIR No. 166/1994 PS Vivek Vihar. Vide order dated 07.09.1999, he was sentenced to undergo RI for seven years with fine Rs. 5,000/-. On the night intervening 13/14.06.1994, Daily Diary (DD) was recorded at Police Post Anaj Mandi on getting information of dacoity in House No. 5/34, Bara Bazar, Shahdara. SI Surender Dev with police staff went to the spot. He recorded statement of Vinod Kumar Bansal who disclosed that at around 03.00 A.M., five boys entered the house; two were having knives; two were armed with iron rod and one was having iron punja. He named Ram Gopal @ Kalia who used to work in an adjacent shop at Lahori Gate, Delhi as one of the assailants. He assigned specific role to him i.e. he pointed out knife at his neck and demanded keys from his wife. They were threatened by the assailants. Jewellery and cash was robbed. VCP and stereo deck were recovered from Chottey Lal who was apprehended near the spot. Other assailants fled the spot.

During the course of investigation, the police apprehended the assailants. Chottey Lal was apprehended at the spot and from his possession some robbed articles were recovered. On completion of the investigation, a charge-sheet was submitted against six accused persons, Chottey Lal, Ram Gopal, Ram Kilari, Lal Singh, Bal Kishan & Udal. They were duly charged and brought to trial. The prosecution examined fifteen witnesses. In their 313 Cr.P.C. statements, the accused pleaded innocence and false implication. On appreciating the evidence and considering the rival contentions of the parties, the Trial Court, by the impugned judgment, acquitted Ram Kilari, Lal Singh, Bal Kishan and Udal. Chottey Lal and Ram Gopal were convicted and sentenced. Being aggrieved, Chottey Lal has preferred the appeal. It is relevant to note that co-accused Ram Gopal had preferred Crl. A. No. 561/1999 to impugn the judgment in question. Vide order dated 06.03.2013 this Court accepted the appeal and conviction and sentence of Ram Gopal were set aside. Chottey Lal was apprehended at the spot and from his possession some robbed articles were recovered. During the course of arguments, counsel for the appellant on instructions stated at Bar stated that the appellant has opted not to challenge the findings of the Trial Court for conviction u/s 392 IPC. Section 397 IPC is not attracted as no weapon was used by Chottey Lal in the incident. Learned Additional Public Prosecutor states that Section 397 IPC is not applicable qua the appellant as he was not in possession of any deadly weapon and it was not used by him. Since the appellant was not armed with any deadly weapon and it was not used by him in the incident, he cannot be sentenced with the aid of Section 397 IPC. The conviction u/s 397 is set aside while confirming u/s 392 IPC.

Nominal roll dated 19.09.2013 reveals that Chottey Lal has undergone incarceration for six years, three months and seventeen days. He also earned remission for two months and twenty seven days as on 22.08.2013. The unexpired portion of sentence was five months and 16 days as on 22.08.2013. He is not involved in any criminal case and has clean antecedents. His overall jail conduct was satisfactory. He was released on regular bail on 22.08.2013. The offence has since altered to Section 392 IPC only. Considering all these facts and circumstances of the case the appellant-Chottey Lal is sentenced to undergo the period already spent by him in this case. The appeal stands disposed of in the above terms. The bail bond and surety bond of the appellant stand discharged. The Trial Court record along with the copy of this Order be sent back forthwith. The Superintendent Jail be informed.