Decided on February 07,2007



SHIV NARAYAN DHINGRA, J. - (1.) This appeal has been preferred by the appellant against the judgment dated 26.4.1999 in Sessions case No. 350/97, FIR 425/1991 under Sections 392/397/34 of IPC, P.S Kashmiri Gate whereby the appellant was convicted by the learned Additional Sessions Judge for offences under section 392 read with section 397 IPC and Section 25 of the Arms Act. The appeal is also against the order dated 28.4.1999 whereby the appellant was sentenced to undergo RI of 7 years and to pay a fine of Rs.500/-, in default of payment of fine, to further undergo RI for a further period of one month.
(2.) The prosecution's case before the trial Court was that on 31.10.91at about 8.30 p.m, a robbery took place at Shop No.186/72, Prem Gali, Punja Sharif, Kashmiri Gate. Four boys including appellant entered into the shop. They took out daggers and disconnected telephone wires and removed Rs.17,000/- from the cash box. Vinod Malik, the owner of the shop was sitting at the shop with his brother Suresh Malik and Vijay Malik at the time of robbery. Vijay Malik raised alarm after the robbers ran away with the cash. One of the robbers i.e appellant was overpowered by the patrolling policemen who had arrived at from the side of the ganda naala bazar. A sum of Rs.9898/- and a dagger were allegedly recovered from the appellant's hand . The other companions of the robbers were arrested in pursuance of information given by the appellant. They were put to TIP. One Jitender refused to join TIP while two other agreed to take part in the TIP. In TIP they were not identified by the complainant. Appellant Deepak and Jitender were put to trial and the other two accused were discharged, since there was no evidence available against them and they were not even identified by the complainant. After the trial, Jitender was acquitted as there was no evidence against him except refusal to participate in the TIP. However, the appellant was convicted by the trial Court and sentenced.
(3.) The prosecution had examined 8 witnesses to bring home the charge against the appellant. PW-2 and PW-3, Vinod Malik and Suresh Malik, the owners of the shop and PW-6 Praveen Kapoor, a friend who was allegedly present at the shop, did not support the prosecution case. All three witnesses were declared hostile by the prosecution. They did depose to the factum of a robbery taking place at the shop, but the date of the robbery was not given by them as 31st October 1991. They refused to identify the appellant as the robber or the person nabbed by police on spot and did not subscribe to the story of the police that the appellant was arrested while running away with the booty and dagger or recovery of any amount was made from the appellant. Learned Additional Sessions Judge convicted the appellant on the basis of testimony of the police officials who allegedly overpowered the appellant observing that the timidity is the trait of our character and this is one handicap with which the investigating agency has to function. This reality of life has to be kept in mind while appreciating evidence. The leaned Additional Sessions Judge observed that the complainant was even scared to admit that he raised an alarm.;

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