A.K. PATHAK, J. - (1.) THIS appeal is directed against the judgment dated 18th February, 2008 of the Trial Court, whereby appellant no.1 has been convicted under Section 392 IPC read with Section 397 IPC; sentenced to undergo rigorous imprisonment for seven years and fine of Rs. 5,000/-; in default of payment of fine to undergo simple imprisonment for three months. Appellant nos. 2 and 3 have been convicted under Section 392 IPC and sentenced to undergo rigorous imprisonment for five years and fine of '5,000/-; in default of payment of fine to undergo simple imprisonment for three months.
(2.) IT is this judgment which is under challenge in this appeal. As per the prosecution, complainant Vikas Gulati (PW3) was going on his motorcycle, along with his friend Santosh Kumar Pandey (PW4) from Noida to Paschimpuri on 10th January, 2003. At about 9:30 pm when they reached at Shankar Road, complainant stopped his motorcycle in order to ease himself. In the meanwhile, appellants came there. Appellant no. 1 was armed with a knife. He commanded the complainant to hand over to them whatever he was having in his possession. While appellant nos. 2 and 3 surrounded the complainant, appellant no. 1 forcibly took out the purse of complainant from his pocket, which contained '3800/- in cash besides his driving license. Complainant had a scuffle with appellants and in the process his ring fell down on the road. While the incident was going on, a PCR Van was noticed coming towards them. On seeing the police appellant nos. 2 and 3 ran away. Appellant no. 1 tried to escape on the motorcycle of complainant, however, complainant pushed the motorcycle as a consequence whereof appellant no.1 fell down and his leg came under the motorcycle. By that time police van had arrived there and appellant no.1 was apprehended. Appellant nos. 2 and 3 were arrested on the next day of incident. Appellant no. 1 got recovered a knife from the bushes on the next day of incident, pursuant to his disclosure statement. Complainant has been examined as PW3. He has fully supported the prosecution story. PW4 has fully corroborated the version of PW 3. Their testimony had been found trustworthy and reliable by the Trial Court, consequently, appellant no.1 has been convicted under Section 392 IPC read with Section 397 and appellant nos. 2 and 3 under Sections 392 IPC.
(3.) I have carefully perused the statements of PW3 and PW4 and find them to be trustworthy and reliable witnesses. From their testimony it is proved beyond the shadow of reasonable doubt that incident did happen in which appellants had robbed the complainant. No material discrepancy could be pointed out by the learned counsel, in their statements so as to discard their version with regard to the incident of robbery. In my view, offence under Section 392 IPC is made out against all the appellants and they had been rightly convicted by the Trial Court under this provision of law. The next question which needs consideration is as to whether ingredients of offence under Section 397 IPC are attracted in this case qua the appellant no. 1. Admittedly, no knife was recovered from him immediately after the incident even though he had been apprehended at the spot. From the statement of PW 3, it is clear that while appellant nos. 2 and 3 managed to escape, appellant no. 1 could not do so since his leg was stuck under the motorcycle and he was apprehended at the spot itself. He neither had any occasion to run away nor throw the knife as PW 3 had remained present there all along. In his statement, complainant had not whispered a single word that appellant no.1 had thrown the knife in the bushes before sitting on the motorcycle in a bid to escape. Thus, recovery of knife on the next day becomes suspicious. For this reason, appellant no.1 is entitled to benefit of doubt on this count.;