Rama @ Harish v. State

1. The present appeal is filed under section 374 Cr.P.C. read with section 482 Cr.P.C to impugn thejudgment dated 25.05.2019 and order on sentence dated 31.05.2019 passed by the Court of Ms. Raj Rani, ASJ-04, North West, Rohini Courts, Delhi. CRL.A. 741/2019 and CRL.L.P. 597/2019 Page 2

2. The factual background of the case is that, on 10.03.2018, at about 06:30 PM, Komal @ Sunil i.e. the complainant, was coming to his house from tuition and when he reached C-8, near Mother Dairy, Sultanpuri, Delhi, he was stopped by the appellant Rama @ Harish, who caught hold of him. The appellant showed the blade to the complainant Komal @ Sunil and asked him to hand over his mobile phone. Thereafter, the mobile phone was handed over to the appellant. The complainant came to his house and narrated the entire incident to his sister, namely, Neelam and thereafter, a call was made at 100 number and DD No. 74B was got registered. The Head Constable Satyawan along with Constable Karam Pal reached at the spot and statement of the complainant Komal @ Sunil was recorded and thereafter, FIR bearing no. 0166/2018 was got registered under sections 392/397 IPC at PS Sultanpuri.

3. After conclusion of the investigation, the charge sheet was prepared and filed in the Court of concerned Metropolitan Magistrate. The concerned Metropolitan Magistrate, after taking cognizance of offence and after complying with section 207 Cr.P.C, committed the case to the Sessions Court as per section 209 Cr.P.C. CRL.A. 741/2019 and CRL.L.P. 597/2019 Page 3

4. The Trial Court vide order dated 13.08.2018, framed the charges for the offence punishable under sections 392/397 IPC against the appellant, to which he pleaded not guilty and claimed trial.

5. The prosecution in support of the case examined ten witnesses, including the complainantKomal@Sunil as PW-1. PW-1/Komal @ Sunil supported the case of the prosecution and deposed that on 10.03.2018, at about 06:30-06:45 PM, he was returning back to his home after attending tuition at C-5, Sultanpuri, Delhi and when he reached near Mother Dairy of C-8 block, Sultanpuri, Delhi,the appellant called him and showed the blade, after which the mobile phoneOppo A-57 was handed over to the appellant by PW-1/Komal @ Sunil. Thereafter, the appellant ran away from the spot. PW-1/Komal @ Sunil came back to his house and narrated the entire incident to his sister, namely, Neelam i.e. PW-2 who made a call at 100 number. The police officials came and the statement of PW-1/Komal @ Sunil was recorded as Ex. PW-1/A. The PW- 1/Komal @ Sunil also identified the appellant during Test Identification Parade (TIP) vide proceedings recorded as Ex.PW1/B. The prosecution also examined the police witnesses who remained connected or CRL.A. 741/2019 and CRL.L.P. 597/2019 Page 4 associated with the investigation, including the Head Constable as PW-4 and the Investigating Officer SI Amit as PW-10.

6. The statement of the appellant was also recorded under section 313 Cr.P.C., wherein he stated that the Investigating Officer SI Amit had demanded money from his family and on refusal, he was falsely implicated in the present case. The appellant also stated that he was falsely implicated at the instance of the sister of PW-1/Komal @ Sunil who works in Delhi Police. The appellant preferred not to lead defence evidence despite opportunity.

7. The Court of Ms. Raj Rani, ASJ-04, North West, Rohini Courts, Delhi vide judgment dated 25.05.2019 has convicted the appellant for the offence punishable under section 392 IPC and acquitted him for the offence punishable under section 397 IPC. Thereafter, vide orderon charge dated 31.05.2019, the appellant was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 2,000/- for the offence punishable under section 392 IPC and in default of payment of fine, to further undergo SI for two months. The benefit of section 428 Cr.P.C. was also extended to the appellant. CRL.A. 741/2019 and CRL.L.P. 597/2019 Page 5

8. The perusal of judgment dated 25.05.2019 reflects that the Trial Court primarily relied upon the testimony of PW-1/Komal @ Sunil and PW-2/Neelam, who is sister of PW-1/Komal @ Sunil. The Trial Court observed that PW-1/Komal @ Sunil had deposed that on 10.03.2018, at about 06:30-06:45pm, the appellant had taken away his mobile phone after showing a blade to him. The Trial Court has also considered the defence taken by the appellant that he has been falsely implicated in the present case. The Trial Court further considered the argument advanced by the defence counsel that the photographs of the appellant shown to the PW-1/Komal @ Sunil prior to the TIP proceedings, who at the instance of the Investigating Officer had identified the appellant in the TIP proceedings. The Trial Court did not agree with the said arguments.

9. The judgment passed by the Trial Court appears to be based on sound reasoning and after proper appreciation of evidence. The Trial Court has also considered in detail the defence taken by the appellant during the trial. The Trial Court has rightly relied upon the testimony of PW-1/Komal @ Sunil and there is no reason to disbelieve his testimony. The testimony of the complainant inspires confidence and cannot be rejected. The Trial Court has rightly held that the prosecution is able to CRL.A. 741/2019 and CRL.L.P. 597/2019 Page 6 prove the guilt of the appellant for the offence punishable under section 392 IPC.

10. The Trial Court also observed that no offence under section 397 IPC is made out against the appellant as the necessary ingredients of the offence under section 397 IPC are not directed against the appellant. The Trial Court further observed that the blade stated to be used in the commission of offence cannot be said to be a deadly weapon as per the mandate of section 397 IPC.

11. The counsel for the appellant argued that the appellant is aged about 40 years and has to maintain his family comprising of his wife and four children besides his aged parents. The entire family is dependent upon the appellant, who happens to be a driver by profession. The appellant belongs to the lower strata of the society and has already undergone imprisonment of about four months.

12. The Additional Public Prosecutor for the respondent/State argued that the appellant is a habitual offender and more than 15 cases including the heinous offences are pending against the appellant. The appellant after showing the blade had taken away the mobile phone of PW- CRL.A. 741/2019 and CRL.L.P. 597/2019 Page 7 1/Komal @ Sunil and in the given facts and circumstances, no leniency can be shown to the appellant.

13. A coordinate bench of this Court in Santosh @ Mota consider whether the blade is a deadly weapon or not. In the said case, the appellant was convicted for the offences punishable under sections 397/392/34 IPC. The appellant pleaded that the blade which was used as a weapon of offence did not qualify as a deadly weapon. It was observed that by no stretch of imagination a shaving blade can be qualify as a deadly weapon.

14. The Trial Court has already awarded rigorous imprisonment for a period of three years alongwith fine of Rs. 2,000/- for the offence punishable under section 392 IPC and in default of payment of fine, to undergo simple imprisonment for two months. The Trial Court has already taken the lenient view and there is no reason to interfere with the judgment dated 25.05.2019 and order on sentence dated 31.05.2019 passed by the Court of Ms. Raj Rani, ASJ-04, North West, Rohini Courts, Delhi.The appeal is devoid of merit and hence it is dismissed.

15. The present appeal alongwith pending application, if any, stands disposed of. CRL.A. 741/2019 and CRL.L.P. 597/2019 Page 8