Delhi High Court
Shafiq vs The State on 6 January, 2009
Author: Sunil Gaur
* HIGH COURT OF DELHI : NEW DELHI
Judgment reserved on : December 17, 2008
Judgment delivered on : January 06, 2009
+ Crl. A. No.397/2006
Shafiq ... Appellant
Through: Mr. R.K. Srivastava,
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. In this appeal, Appellant is challenging impugned judgment
of 11th May 2006 of learned Additional Sessions Judge,
Karkardooma Courts, Delhi, vide which he has been convicted
for committing offences under Section 455/392/394 and 397 of
Indian Penal Code and also under Section 25 of the Arms Act and
order of the trial court of the same day, vide which he has been
sentenced to undergo rigorous imprisonment for four years and
Crl. A. No. 397/2006 Page 1
to pay a fine of Rs.1,000/- separately on two counts, i.e., for the
offences under Section 392 and 455 of the Indian Penal Code. In
default of payment of fine he has been directed to undergo
rigorous imprisonment for six months each.
2. Appellant is further sentenced by the trial court to undergo
rigorous imprisonment for seven years with fine of Rs.1,000/-,
separately on two counts, i.e., for the offence punishable under
Section 394 and 397 of Indian Penal Code. In the event of
default of payment of fine, Appellant has been directed to
undergo rigorous imprisonment for six months each.
3. The above said substantive sentences have been ordered,
by the trial court, to run concurrently.
4. The factual background which needs to be noticed is as
follows:-
"On 9th November, 2005, DD No.30-A (copy
Ex.PW5/A) was assigned to Sub Inspector Lal
Chand Yadav at Police Station Welcome, Delhi
for investigation who alongwith Constable Des
Raj went to Prachin Hanuman Mandir, Welcome,
Delhi at about 4.00 pm where Sushil Kumar
Tiwari met them. Sub Inspector Lal Chand
Yadav, Investigating Officer recorded the
statement of Sushil Kumar Tiwari and after
making endorsement thereon sent the same to
police station for registration of this case. Sushil
Kumar Tiwari produced appellant as well as
dagger and mobile phone, besides a sum of
rupees 150/- before the investigating officer.
The aforesaid objects were converted into
separate parcels and sealed with the seal of LC
and were taken into possession vide memo
Ex.PW1/E and Ex.PW1/A respectively. The
Crl. A. No. 397/2006 Page 2
sketch of the dagger was prepared before
converting it into a parcel. Appellant was
arrested. Sushil Kumar Tiwari was having stab
injuries on first finger of his right hand and was
sent to Hospital for medical examination.
Investigating officer inspected the site and
prepared the site plan Ex.PW5/B, recorded the
statements of witnesses, got the appellant
medically examined and thereafter he was
produced before the court concerned. After
completion of investigation, charge sheet for
the offence under Section 379/382/506/
411/394/ 397/393 of IPC and Section 25/27 of
Arms Act was filed against the
accused/appellant."
5. Since the Appellant/accused had claimed trial in this case,
by pleading not guilty to the charges framed against him for the
offences punishable under Section 455/392/394/397/506 of
Indian Penal Code and for offence punishable under Section 25
of the Arms Act, before the trial court, evidence of six witnesses
was recorded during the trial in support of the charges framed
against the Appellant. Out of them, the main witnesses are the
injured/first informant - Sushil Kumar (PW-4); eye witness Dhiraj
Shukla (PW-2); Dr. Prabhakar (PW-6), who has proved the MLC -
Ex.PW6/A of injured (PW-4) and the Investigating Officer SI Lal
Chand, (PW-5).
6. Appellant in his statement under Section 313 of Cr. P.C.,
before the trial court, denied the prosecution case and stated
that he was going to Ghazipur Mandi and Constable Desh Raj
(PW-1) met him at Welcome turn and told him that he was called
by SHO, Police Station Welcome and took him there and framed
Crl. A. No. 397/2006 Page 3
him in this case. However, Appellant did not lead any evidence
in his defence before the trial court. After the trial, Appellant
stands convicted and sentenced as noticed above.
7. Contention advanced by both the sides have been
pondered over and the evidence on record has been scrutinised.
8. In short, the prosecution case is that on the night
intervening 8th and 9th November 2005, during the night at about
3.30 AM, Appellant/accused alongwith his associate trespassed
into Pracheen Kuainwala Mandir at A-1 Block, Welcome, Delhi
and removed cash of Rs.150/- and a mobile phone from the
pocket of the shirt of Sushil Kumar (PW-4) and the said shirt was
hanging on a peg on the wall inside the aforesaid temple. While
associate of Appellant / Accused was searching for the goods in
the other room of the temple, Dheeraj Shukla (PW-2) woke up to
urinate and he noticed the Appellant/accused in the temple and
raised alarm of „thief-thief‟. Then, Sushil Kumar (PW-4) also woke
up and rushed towards the Appellant/accused, who gave a knife/
dagger blow on the right hand of Sushil Kumar (PW-4). However,
Appellant/accused was overpowered by Sushil Kumar (PW-4) and
from the possession of the Appellant/accused cash of Rs.150/-
and mobile phone of Sushil Kumar (PW-4) and the knife/dagger
was recovered.
9. Learned counsel for appellant has sought to dislodge the
aforesaid prosecution case by contending that even if it is
Crl. A. No. 397/2006 Page 4
assumed that prosecution case is true, without admitting it to be
so, still the offence made out, would be of attempted theft
because as per the MLC of injured Sushil Kumar (PW-4), the
injury on the index finger of the right hand has been found to be
simple and blunt, which rules out, the prosecution case of
Appellant/accused assaulting injured (PW-4) with a knife/dagger.
It has been contended on behalf of the Appellant that injured
(PW-4) had sustained the injury while apprehending the accused
and not while the alleged offence was being committed.
10. Trial Judge has rendered the impugned judgment in
narrative form and upon its perusal it is difficult to make out if
the aforesaid contention was raised before the trial court. In any
case, it has not been dealt with by the trial court. However, trial
judge has concluded that the knife/dagger Ex.P-1 was used by
accused/appellant, when he attempted to carry away the stolen
property and hurt was caused to injured Sushil Kumar (PW-4)
while committing robbery.
11. A bare perusal of the testimony of the injured (PW-4)
makes it clear that injured (PW-4) got up upon hearing the alarm
of 'Thief-Thief" being raised by eye witness (PW-2) and he had
seen that eye witness (PW-2) and accused/appellant were
grappling and when injured (PW-4) went to rescue eye witness
(PW-2), then appellant/ accused gave knife blow to injured (PW-
4) as soon as he reached near the injured. It has also come in
Crl. A. No. 397/2006 Page 5
the evidence of injured (PW-4) that he had snatched the knife of
the hands of accused/appellant. Possibility of injured (PW-4)
sustaining 1/2x1/2 Cm injury on index finger of his right hand, in
the process of injured (PW-4) snatching the knife from the hand
of accused/appellant, cannot be ruled out. It has not come in the
evidence of the injured (PW-4) or the eye witness (PW-2) that
accused/appellant had caused hurt to the injured (PW-4) while
committing robbery or that accused/appellant had used
knife/dagger Ex.P-1 while attempting to carry away the stolen
property. Thus, it is evident from the evidence on record that the
aforesaid finding of the trial court is factually incorrect.
Apparently, there is misreading of the evidence by the trial
judge, which renders the conviction of accused/appellant for the
offence under Section 392/394/397 of the Indian Penal Code
illegal and is hereby set aside.
12. Simply because the injury/lacerated wound on the index
finger of the hand has been opined to be blunt/simple in the MLC
Ex.PW6/A, it cannot be said that the aforesaid injury is not
possible by the knife/dagger Ex.P-1 as it has not come in the
evidence on record about knife/dagger Ex.P-1 being blunt on one
side. In any case, nothing turns on it as the accused/appellant
was arrested at the spot and the aforesaid knife/dagger Ex.P-1
was recovered from him at the spot only. The offence made out
against accused/appellant falls under Section 379 and 324 of the
Crl. A. No. 397/2006 Page 6
Indian Penal Code which is lesser offence than those under
Section 392/394/397 of the Indian Penal Code, for which
accused/appellant had faced the trial.
13. Appellant/accused has been now found guilty for the
offences under Section 324 and under Section 379 of the Indian
Penal Code which are punishable for a term extendable up to
three years. In the facts and circumstances of this case,
sentence of RI for three years each with a fine of rupees one
thousand each is imposed upon the appellant for the offence
under Section 324 and under Section 379 of the Indian Penal
Code respectively. In default of the payment of aforesaid fine,
appellant shall undergo SI for three months each. However,
conviction and the sentence imposed upon the appellant for
offences under Section 455 of the Indian Penal Code and Section
25 of the Arms Act by the trial court is well justified and calls for
no interference by this Court.
14. This appeal stands partly allowed to the extent indicated
above. Appellant be informed of this order through the
concerned Jail Superintendent.
SUNIL GAUR, J
January 06, 2008
dkg/pkb
Crl. A. No. 397/2006 Page 7
