Alim @ Allo vs The State (N.C.T. Of Delhi)
2009 Latest Caselaw 1908 Del

*                  HIGH COURT OF DELHI : NEW DELHI

                    Date of hearing: April 23, 2009
                     Date of Order: May 06, 2009

+                        Crl. Appeal No. 821 of 2006

%       Alim @ Allo                  ...         Appellant
                 Through: Mr. Vijay Singh Charak, Advocate

                                  versus

        The State (N.C.T. of Delhi)          ...  Respondent
                  Through: Mr. R.N. Vats, 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. This appeal is directed against the judgment and

order dated 17th May, 2006 and 23rd May, 2006, of

Additional Sessions Judge, Delhi in FIR No.148 of 2003

under Sections 394/397/34 of IPC, registered at Police

Station New Usmanpur, Delhi, vide which appellant- Alim

@ Allo has been convicted for commission of offences

under Section 392/394 read with Section 397 of IPC and

sentenced to rigorous imprisonment for a period of seven

Crl. Appeal No. 821 of 2006 Page 1 years each with fine of Rs.5000/- in all, with default clause

for committing aforesaid offences. All the substantive

sentences have been ordered to run concurrently.

2. The facts on which the prosecution of the appellant

was envisaged, are that on 15th June, 2003, on receipt of a

call at the PCR regarding assault and robbing, DD No. 46-A

was registered by Constable Ram Pal Singh (PW-12) and

on receipt of the same, ASI Rakesh (PW-15) reached GTB

Hospital and collected MLC of injured- Mohd. Islam (PW-2)

and Sanjay (PW-1). Since both the injured, out of fear did

not give any statement on that day and their statements

could only be recorded after a few days. On the complaint

made by both the injured (PW-1 and PW-2), ASI Rakesh

(PW-15) reached at the spot and prepared the site plan

(EX. 15/B). On coming to know that one of the co-accused

of the appellant had been arrested in some other case, ASI

Rakesh (PW-15) along with the complainant - Sanjay,

reached Seelampur Police Station, Delhi, who identified

co-accused Pradeep and Alim @ Allo. On the identification

of both the accused by the complainant, they were

arrested in this case. Disclosure statement (EX.PW-6/A)

was made by accused Alleem @ Allo and one of the

robbed articles was recovered from his possession. Other

Crl. Appeal No. 821 of 2006 Page 2 two accused involved in this case, namely Sanju @ Sudhir

and Sonu @ Sudhir, were also arrested and made their

disclosure statements (EX. PW15/C and EX. 15/D). Upon

completion of investigation, charge-sheet for the offences

under Sections 394/397/34 of the Indian Penal Code

against appellant/accused - Alim @ Allo and co-accused

Sanju @ Sudhir and Sonu @ Sudheer, was filed in the

court. Vide order of 26th August, 2003, Metropolitan

Magistrate transferred the case of accused Sonu @

Sudheer to Juvenile Court, while case against

appellant/accused Alim @ Allo and co-accused Sanjay @

Sudhir, was forwarded to the court of Sessions for trial.

3. The trial Court vide order of 10th December, 2003,

framed charges under Sections 392/394/397/34 of the IPC,

against both the accused. Present appeal has been

preferred only by accused- Alim @ Allo, who had pleaded

not guilty to the aforesaid charges, framed against him

and claimed trial.

4. Prosecution adduced the evidence of fifteen

witnesses. It primarily includes, the testimony of two

injured Sanjay Pandey (PW-1) and Mohd. Islam (PW-2),

Head Salluddin (PW-4) was a member of the investigating

team, Constable Subhash (PW-6) deposes qua disclosure

Crl. Appeal No. 821 of 2006 Page 3 statement (EX.PW-6/A) made by appellant/ accused- Alim

@ Allo and was also a witness to the recovery of robbed I-

card made from him, Sub- Inspector Manmohan Kumar

(PW-8) and Sub- Inspector K.P. Shah (PW-9) have deposed

regarding the disclosure statement of appellant/ accused

in the instant case whereas Inspector Dharam Vir Joshi

(PW-13) deposes qua disclosure statement of co-accused

of the appellant. Doctor Prashant Kumar (PW-7) and

Doctor Abhishek Yadav (PW-10) have proved the MLCs

(Ex. PW7/A) and Ex. PW-10/A of injured- Mohd. Islam and

Sanjay Pandey. ASI Rakesh (PW-15) is the Investigating

Officer of this case.

5. The sum and substance of prosecution narration, as

noticed by trial court, is as under:-

On 15th June, 2003, at about 10:30 p.m., complainant- Sanjay Pandey (PW-1), driver of TSR No. DL-1R-F-0682, first boarded two passengers from ISBT, Kashmiri Gate, and after some time three more passengers were boarded. While the TSR reached Khajuri Khas, he had to stop the TSR on the request of one of the passengers. In the meanwhile, one passenger gave knife blow on his cheek and kept it on his neck, and another passenger- Alim, snatched the cash and identity card from front pocket of his shirt. The other two passengers, stabbed the fifth passenger- Mohd. Islam (PW-

2) and snatched Rupees five-six hundred and wrist watch from his person. After committing this robbery, all the four accused fled away from the spot, threatening them not to

Crl. Appeal No. 821 of 2006 Page 4 inform the police. However, Sanjay Pandey (PW-1) later on gathered courage and made a call to the PCR. On receipt of call, police officials swung into action, carried out necessary investigation and filed a charge-sheet against the accused persons, which was the basis for prosecution of the appellant herein.

6. Once the prosecution evidence was completed, the

material evidence was put to the appellant/accused in his

statement under Section 313 of the Code of Criminal

Procedure, 1973, wherein appellant denied the entire

prosecution case projected against him and stated that

he had been falsely implicated in this case and to prove

his innocence, he led one witness in his defence, i.e. Smt.

Anisa (DW-1), his mother, who deposed that her son was

lifted from his jhuggi, by the police, in order to falsely

implicate him in this case.

7. Oral submissions have been heard and the impugned

judgment rendered by the trial court and the relevant

evidence on record, have been perused.

8. On behalf of the Appellant, three-fold submissions

have been made. First submission is that there is delay of

fourteen days in lodging of the FIR in this case and this

delay is fatal to the prosecution case. The second

submission is that the refusal of the Appellant to

Crl. Appeal No. 821 of 2006 Page 5 participate in Test Identification Parade was justified as

the Appellant was already shown to the witnesses. The

third submission is that there is no recovery from the

Appellant to establish his involvement in the commission

of this offence and in fact, the Appellant was lifted from

his house and was falsely implicated in this case. Lastly, it

is submitted that Appellant has already undergone

sentence of four years and seven months and the

sentence imposed upon the Appellant deserves to be

reduced to the period already undergone by him, as the

Appellant is not a previous convict and was aged about

twenty two years only at the time of this incident and he is

the only son of his mother and is the bread earner of the

family. Nothing else is urged on behalf of the Appellant.

9. According to the learned Additional Public Prosecutor

for the State, identification of the appellant/accused by

the injured (PW-1) as well as by Complainant - Mohd. Islam

(PW-2), as one of the assailants and the recovery of the

identity card of injured (PW-1) at the instance of the

Appellant is sufficient to justify the conviction and the

sentence imposed upon the Appellant and the delay in

lodging of the FIR in this case stands explained by the

Complainant (PW-2) who has stated that this incident was

Crl. Appeal No. 821 of 2006 Page 6 not reported to the police because of fear and upon

learning from newspaper 'Punjab Kesari' of 29th June,

2003, that the culprit who used to rob passengers and

drivers of TSRs in Delhi have been caught, this matter was

reported to the police. Thus, it is submitted that the

conviction and sentence imposed upon the Appellant is

duly supported by the evidence on record and this appeal

lacks merit.

10. Six years ago, in the late morning of mid-June, a

three wheeler scooter rickshaw (hereinafter referred to as

TSR) driven by Sanjay (PW-1) with passenger Mohd. Islam

(PW-2) reached Khajuri Khas in the area of Police Station

New Usmanpur, Delhi, and appellant with co-accused

boarded it. Co-accused of appellant were armed with

'ustras' and they injured TSR driver (PW-1) and passenger

(PW-2) while they were robbed and, thereafter, fled away

while extending threats.

11. The delay aspect needs to be dealt with first. Injured

(PW-1) has been cross-examined on this aspect and he

has stated that after this incident, he was threatened by

the assailants not to report this matter to the police and

for this reason, he did not lodge any complaint with the

police and when he learnt from the newspaper that Crl. Appeal No. 821 of 2006 Page 7 culprits, who used to rob passengers and TSR drivers have

been caught, he gathered courage to tell the true facts of

this case to the police. Complainant (PW-2) in his evidence

has stated that after this incident, the assailants had

extended a threat not to lodge any complaint regarding

this incident and there is no cross-examination by the

defence on this aspect except that he had learnt from his

relative that it had appeared in the newspaper that the

assailants, who used to rob passengers and TSR drivers in

Delhi, have been caught.

12. It is quite natural that the victims are quite reluctant

to report such like incidents to the police and there is

nothing unusual in Mohd. Islam (PW-2) reporting this

matter to police only after coming to know that the

assailants, who indulge in such like incidents, have been

caught. The delay occasioned in reporting this incident to

the police is not fatal to the prosecution case as there is

no worthwhile examination of this aspect by the defence.

Otherwise also, the aforesaid explanation put forth for the

delay sounds to be quite plausible.

13. It would be factually incorrect to state that nothing

has been recovered from at the instance of the

appellant/accused. It stands established from the evidence Crl. Appeal No. 821 of 2006 Page 8 of injured (PW-1), i.e., Electoral Identity Card (Ex.P-1) of

the victim/injured (PW-1) was got recovered by the

Appellant from his house and the evidence of the

aforesaid recovery remains unshaken in the cross-

examination by the defence.

14. So far as the Test Identification Parade refusal by the

Appellant is concerned, I find that it is very easy to allege

that Test Identification Parade refusal is justified because

accused has been shown to the witnesses but this plea

has to be put to the witnesses to elicit an answer from

them. After having gone through the evidence of the

material witnesses, i.e., (PW-1) and (PW-2), I find that from

their cross-examination by the defence, it cannot be made

out that appellant/accused was shown to these witnesses

prior to his Test Identification Parade refusal. Not only this,

no such suggestion has been given to these material

witnesses on behalf of the appellant/accused. In fact,

appellant/accused was shown to Complainant (PW-2) in

the Police Station, only after Test Identification Parade

refusal by him.

15. The plea taken by the appellant/accused of his being

lifted from his house and of his being falsely implicated in

this case, is supported by his mother (DW-1) but this plea Crl. Appeal No. 821 of 2006 Page 9 is an afterthought because no such plea has been taken

by the appellant/accused in his statement under section

313 of Cr. P.C. before the trial court, nor any such

suggestion has been given to the material prosecution

witnesses on behalf of the appellant/accused.

16. The conviction of the appellant/accused for the

offences under section 392/394/34 of the Indian Penal

Code is well borne out from the evidence on record and

the impugned judgment convicting the Appellant for the

aforesaid offences, does not suffer from any illegality or

infirmity and is thus, hereby sustained.

17. As far as the offence under section 397 of Indian

Penal Code is concerned, I find that in the FIR (Ex.PW-2/A),

it is clearly stated that the assailant who was sitting on the

right side of Complainant Mohd. Islam (PW-2) had

brandished 'ustra' and had exhorted him to take out

whatever he had, otherwise he would be killed.

Complainant (PW-2) in his evidence has clearly stated that

appellant/accused was sitting in the TSR by his left side

and the assailant, who was sitting on his right side, had

inflicted 'ustra' blow on the right side of his face. It is a

matter of record that the accused who was sitting on the

right side of the Complainant (PW-2) is Sanjay @ Sudhir Crl. Appeal No. 821 of 2006 Page 10 who is facing trial before the Juvenile Justice Board.

18. To fasten the liability for the offence under section

397 of Indian Penal Code, a direct role has to be attributed

and an accused cannot be vicariously held liable for

commission of an offence under section 397 of Indian

Penal Code.

19. In the case of Dilawar Singh Vs. State of Delhi,

reported in AIR 2007 SC 3234, the Apex Court has dealt

with this aspect, in the following words:-

"Use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who had not used any deadly weapon. There is distinction between 'uses' as used in Sections 397 IPC and 398 IPC.

20. After having scrutinized the evidence of Complainant

(PW-2) as well as the injured (PW-1), I find that none of

these material witnesses have stated in their evidence

that appellant/accused was carrying any weapon or that

he had shown any weapon to them to commit the offence

of robbery or had inflicted an injury to any one of them.

21. In view of the aforesaid factual and legal position, it

becomes crystal clear that vicarious liability for the

Crl. Appeal No. 821 of 2006 Page 11 offence under section 397 of the Indian Penal Code cannot

be fastened upon the appellant/accused and the trial court

has erred in doing so. Therefore, the conviction of the

appellant/accused for the offence under section 397 of the

Indian Penal Code is rendered unsustainable and is

accordingly set aside. However, his conviction for the

offences under section 392/394/34 of Indian Penal Code is

well merited and is upheld.

22. On the quantum of sentence, it becomes evident

from the nominal roll of the Appellant that as on 19th

August, 2008, he had already undergone sentence of

three years, ten months and some days. Since the

sentence imposed upon the Appellant has not been

suspended during the pendency of this appeal, therefore,

by now, appellant/accused has already undergone

sentence of four years and seven months (with

remissions). At the time of this incident, the

appellant/accused was aged about 22 years and he has

already faced the agony of trial and appeal proceedings in

this case since June, 2003 and he is said to be a poor

person and sole bread earner of his family and the only

son of his mother, therefore, the substantive sentence

imposed upon the Appellant for the offences under section

Crl. Appeal No. 821 of 2006 Page 12 392/34 is reduced to rigorous imprisonment for four years

and six months. However, the sentence of fine is

maintained and in default of the payment of the fine,

Appellant is directed to undergo simple imprisonment for

one month. Likewise, the substantive sentence imposed

upon the appellant/accused under section 394/34 of Indian

Penal Code is also reduced to rigorous imprisonment for

four years and six months and sentence of fine imposed

upon him is maintained and in default thereof, the

Appellant has to undergo simple imprisonment for one

month. Both these sentences shall run concurrently.

23. This appeal stands partly allowed to the extent

indicated above.

24. Appellant is in custody. He be apprised of this order

through the concerned jail superintendant.

25. This Appeal stands disposed of with aforesaid

direction.

Sunil Gaur, J.

May 06, 2009
Rs/pkb




Crl. Appeal No. 821 of 2006                                      Page 13