Mohd. Javed Ahmad @ Haseen vs The State
2009 Latest Caselaw 141 Del

*                  HIGH COURT OF DELHI : NEW DELHI


                 Judgment reserved on : January 12, 2009
                 Judgment delivered on : January 19, 2009


+                       Criminal Appeal No.43/2006
          Mohd. Javed Ahmad @ Haseen ...            Appellant
                             Through: Mr. Sumeet Verma,
                                        Advocate
                                 versus
          The State                      ...        Respondent
                             Through: Mr. Amit Sharma,
                                        Additional Public
                                        Prosecutor for State

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

1.        Whether the Reporters of local papers may
          be allowed to see the judgment?

2.        To be referred to Reporter or not?

3.        Whether the judgment should be reported
          in the Digest?

SUNIL GAUR, J.

1. Appellant has been convicted and sentenced for

criminally trespassing into the house of the complainant Raj

Malhotra(PW-2) on 11th September, 2001 at about 1.45pm and

he attempted to commit robbery by pointing country made

pistol towards Raj Malhotra (PW-2) and Roma Malhotra (PW-5),

but the appellant was apprehended at the spot and Sub

Inspector Satish Kumar (PW-17) on receipt of DD No.17-A

reached the spot and thereafter the law was set to motion. Not

Crl.A.No.43.06 Page 1 only the country made pistol but also a kitchen knife was

recovered from the pocket of the appellant/accused. Spot

proceedings were conducted and in pursuance of the

disclosure statement of the appellant/accused, the motorcycle

used in the commission of this offence was got recovered from

the co-accused Rohit. One of the co-accused was sent up for

trial before a juvenile court and after the investigation, two co-

accused of the appellant i.e. Balkishan and Ashok Kumar were

charge-sheeted in this case alongwith the appellant.

2. The facts of this case as detailed by the trial court are as

follows :-

"On 11.09.2001, on receipt of DD No.17-A, SI Satish

Kumar alongwith Ct. Rajesh Kumar reached at the spot

i.e. 8-A/97, WEA Karol Bagh and simultaneously HC

Virender has also reached over there and he found

crowd gathered there and appellant Javed was

produced before him by complainant Rajesh Malhotra

along with one country made pistol which was loaded

and it was told to SI that appellant alongwith his

associates had came there with intention to commit

robbery. On checking, SI found the country made pistol

loaded. He prepared the sketch of pistol Ex.PW.2/B. Live

cartridges were also recovered from the possession of

the appellant with kitchen knife. Sketch of live

Crl.A.No.43.06 Page 2 cartridges was prepared vide memo Ex.PW.2/D and

sketch of kitchen knife was prepared vide memo

Ex.Pw.2/C. The recovered pistol and live cartridges were

sealed in pullanda with the seal of SK and taken into

possession vide memo Ex.PW.2/A and two live

cartridges were taken into possession vide memo

Ex.PW.2/E and knife was taken into possession vide

memo Ex.PW.2/F and sealed with the seal of SK and

seal after use was given to Rajesh Malhotra. Appellant

was having injuries on his person and he was sent for

medical examination through ASI Vijay alongwith other

staff. Investigating Officer recorded statement of Rajesh

Malhotra Ex.PW.2/H and made endorsement thereon

and sent the rukka to police station Karol Bagh for

registration of this case through HC Virender Singh, he

also prepared the site plan at the instance of the

complainant vide Ex.PW.17/C and also recorded

supplementary statement of the complainant. Roma

Malhotra, sister-in-law of the complainant was also

interrogated and her statement was also recorded.

After medical examination, appellant was also

interrogated and made his disclosure statement

ex.PW.13/B. Appellant was arrested vide memo

Ex.PW.13/A and his personal search was conducted vide

memo Ex.PW.2/C. During the PC remand, appellant took

Crl.A.No.43.06 Page 3 the police party to Patel Nagar, K-65 and got one

motorcycle recovered from co-accused Rohit besides

one mobile which were taken into possession vide

memos Ex.PW.12/A and Ex.PW.17/D, co-accused Rohit

was also arrested. During investigation, SI Satish Kumar

received a secret information that one of the accused

wanted in this case would come near Kundan Dhaba

Sarai Rohilla T Point. Accordingly, Investigating Officer

alongwith Ct Sudhir, HC Virender and Ct. Rajesh and

appellant Javed reached at the spot and arrested co-

accused Bal Kishan at the pointing out of the appellant.

Co-accused Ashok was also arrested from there at the

pointing out of co-accused Bal Kishan. Disclosure

statement of co-accused persons were also recorded.

One country made pistol alongwith one cartridge was

recovered from the toilet of 8A block which was also

seized. After completion of investigation, charge-sheet

was filed against these accused in the court concerned.

3. Before the trial court, they pleaded not guilty to the

charges framed against them for the offences under Section

452/393/397 read with Section 120-B of the IPC. Appellant was

also charged for the offence under Section 27 of the Arms Act.

4. During the trial, evidence of seventeen witnesses was

recorded but this case rests mainly upon the testimony of

Crl.A.No.43.06 Page 4 complainant Raj Malhotra (PW-2), his wife Roma Malhotra (PW-

5) and that of Investigating Officer Sub Inspector Satish Kumar

(PW-17). Appellant in his statement under Section 313 Cr.PC

before the trial court had denied the prosecution case and had

stated that Rajesh Malhotra (PW-2) was a builder and he had

worked as a labour contractor with him and because dues were

demanded by the appellant/accused for the construction of

building no.12-B at Patel Nagar, Delhi, he has been falsely

implicated in this case and that, he was not arrested at the

spot but was arrested from the Gymkhana Club, where he was

called by the complainant (PW-2). Although, appellant desired

to lead evidence in his defence but lateron, he had made a

statement before the trial court that he does not want to lead

any evidence in his defence.

5. After the trial, vide impugned judgment of 11 th

November, 2005, appellant stands convicted for commission of

the offences under Section 452/393/398 of IPC and Section 27

of the Arms Act and vide order dated 16th November, 2005 of

the trial court, he stands sentenced to RI for seven years and a

fine of rupees two thousand for the offence u/s 398 of the IPC

and to RI for five years and to a fine of rupees one thousand

for the offence u/s 393 of the IPC. A sentence of RI of three

years and a fine of rupees one thousand has been awarded to

the appellant for the offence u/s 452 of the IPC and for the

offence u/s 27 of the Arms Act, appellant has been directed to Crl.A.No.43.06 Page 5 undergo RI for two years and a fine of rupees five hundred. The

above-said sentences awarded by the trial court also contained

a default clause in respect of fine imposed and substantive

sentences have been ordered to run concurrently.

6. In this appeal, both the sides have been heard and the

evidence on record has been scrutinized.

7. It is evident from the testimony of complainant Rajesh

Malhotra (PW-2) that while the appellant/accused had entered

his house, his co-accused stood outside on the motorcycle and

inside the house, appellant/accused had put the pistol on the

complainant (PW-2) and had asked the complainant and other

family members present there, not to raise alarm and to hand

over the keys of the house and to give the jewellery and cash

which is there in the house as the appellant and his co-accused

had come for committing dacoity. Since appellant/accused was

heavily under the influence of liquor, therefore, he could not

fire from his country made pistol and was apprehended at the

spot.

8. Aforesaid evidence is assailed on behalf of the appellant

by contending that the domestic servant was also in the house

but he has not been got examined. Learned counsel for the

appellant contended that it is highly improbable that the

appellant/accused being apprehended by the complainant

inspite of the fact that he was armed with a country made

Crl.A.No.43.06 Page 6 pistol and was also having a kitchen knife with him and the

version of the appellant of complainant calling him at

Gymkhana Club and of getting him arrested from there on

account of money dispute is probable one.

9. After having carefully gone through the evidence on

record, I find that although appellant/accused was armed with

a country made pistol and a kitchen knife was in his pocket but

he could be apprehended at the spot by the complainant

because he was under the influence of liquor. There is nothing

improbable about it as I find from the MLC of the appellant that

there was smell of alcohol. The story of the appellant of

complainant falsely implicating him on account of some money

dues remains in the air only as there is nothing on record to

probablise it. Infact, there is evidence of complainant (PW-2)

regarding the club starting functioning in September, 2002 i.e.

after a year or so of this incident.

10. Non-examination of the servant or the parents of the

complainant (PW-2) is not of any consequence as I find that the

evidence of the complainant (PW-2) is trustworthy and it

receives ample corroboration from the evidence of his wife

Roma Malhotra (PW-5). Since the parents and servant of the

complainant (PW-2) have not been cited as a witness,

therefore, the best person to explain about it, is the

Investigating Officer (PW-17). However, it appears from the

Crl.A.No.43.06 Page 7 evidence of the Investigating Officer (PW-17) that it has not

been elicited from him as to why the parents and the servant

of the complainant have not been cited as witnesses in this

case. In any case, the evidence of the complainant (PW-2) and

his wife (PW-5) is sufficient to establish the prosecution case

against the appellant/accused. As per FSL report Ex.PW17/A,

the recovered country made pistol was found to be in working

order and it has been opined that the recovered live cartridge

could be fired through it. Therefore, it is sheer chance that the

appellant/accused could not fired from his country made pistol

as he was heavily under the influence of liquor at the time of

this incident.

11. I am of the considered opinion that the conviction of the

appellant by the trial court for the aforesaid offences is very

well justified, in the face of the evidence on record. As regards

the quantum of sentence is concerned, I find that the offence

under Section 398 of the IPC provides for a minimum sentence

of seven years and the trial court has already awarded the

minimum sentence, as provided for this offence. Thus, there is

no scope for any interference on the sentence aspect also.

12. During the course of the arguments, learned counsel for

the appellant had pointed out that the appellant has virtually

undergone the substantive sentence as awarded to him by the

trial court but he cannot be released from jail because he is

Crl.A.No.43.06 Page 8 also undergoing sentence awarded to him in another case by a

court in the State of Haryana. Learned counsel for the

appellant had made a prayer to invoke Section 427 of the Code

of Criminal Procedure, so that the sentence awarded in this

case and another case by a Court in the State of Haryana runs

concurrently. Since the details of the sentence awarded by

another court in the State of Haryana are not on record, so the

aforesaid prayer made cannot be acceded to and it would be

appropriate if the provision under Section 427 of the Cr.PC is

invoked by the appellant by filing a separate petition with

complete particulars.

13. For the aforesaid reasons, impugned judgment and order

is upheld and this appeal stands dismissed accordingly.

14. Appellant is in custody. Criminal Miscellaneous No. 13083

of 2006, filed by the appellant through Jail, has now become

infructuous and is disposed of accordingly. He be informed of

this order through the concerned Jail Superintendent.

15. With the aforesaid directions, this appeal and pending

application(s) stands disposed of.

                                                 SUNIL GAUR, J
January 19, 2009
dkg




Crl.A.No.43.06                                                 Page 9