Rahis Ahmed vs State
2009 Latest Caselaw 4876 Del

              HIGH COURT OF DELHI: NEW DELHI
+              CRL. APPEAL NO. 144/2001


RAHIS AHMED                                     ..... Appellant
                           Through: Mr. A.J. Bhambhani,
                                    Ms. Nisha Bhambhani and
                                    Ms. Lakshita Sethi, Advs.

                           Versus

STATE                                         .....Respondent
                           Through: Mr. M.P. Singh, APP for the
                                    State.

%              Judgment reserved on: 23RD November, 2009
               Judgment delivered on: 30th November, 2009


Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers
          may be allowed to see the judgment?          No

       2. To be referred to Reporter or not?           No

       3. Whether the judgment should be
          reported in the Digest?                      No

A.K. PATHAK, J.

1. The appellant has been convicted under Sections

392/397 of the Indian Penal Code (for short hereinafter

referred to as "IPC") by the learned Additional Sessions

Judge, New Delhi and has been sentenced to face rigorous

imprisonment for a period of three years and to pay fine of

Rs. 5,000/-; in default of payment of fine, to further

undergo simple imprisonment for two months for the

offence under Section 392 IPC; sentence to undergo

rigorous imprisonment for a period of seven years for the

offence under Section 397 IPC. Both the sentences have

been ordered to run concurrently.

2. Aggrieved by his conviction and sentence appellant

has filed this appeal.

3. In brief, prosecution case is that complainant Dilshad

Ahmed was sleeping in front of factory premises bearing

No. B-114, Mohadpur Village, R.K. Puram, New Delhi in the

night intervening 18th/19th June, 1994. He was working in

a leather factory. Aneez Ahmed, brother of the proprietor

of leather factory, was also sleeping nearby him. At about

2:30 am, Dilshad Ahmed woke up, on hearing some noise

of breaking of lock, complainant saw appellant Rahis

Ahmed carrying away two suit cases. When he asked as to

what was he doing Rahis Ahmed gave a knife blow on his

chest. Dilshad Ahmed raised alarm at which Aneez

Ahmed, who was sleeping nearby, also woke up. In the

meanwhile, the appellant gave another knife blow to

Dilshad Ahmed on his leg. Thereafter, Rahis Ahmed ran

away, leaving the said two suit cases behind. Dilshad

Ahmed was removed to All India Institute of Medical

Sciences (for short hereinafter referred to as "AIIMS")

where he was medically examined.

4. Information regarding incident was received in the

Police Station R.K. Puram vide D.D. No. 4B, dated 19th

June, 1994 and was handed over to SI Mohan Singh

(Investigating Officer) for enquiry, who reached AIIMS

along with Constable Jagbir Singh and recorded statement

of Dilshad Ahmed wherein the incident was described by

him in the manner as narrated in para No. 3 hereinabove.

Pursuant to his statement, FIR No. 339/1994 was

registered. Site plan was prepared. Aneez Ahmed, who

was present in AIIMS, handed over blood stained baniyan

of Dilshad Ahmed, which was seized by the Investigating

Officer. Investigating Officer went to the spot with Anees

Ahmed and Constable Jasbir Singh and seized two suit

cases and one plass which was lying outside the house.

He also found door of the said house broken. At the

instance of Aneez Ahmed appellant was apprehended and

arrested.

5. Appellant made a disclosure statement and got

recovered the knife used in the crime. Knife was taken in

possession and its sketch was prepared and thereafter, it

was seized.

6. After completion of investigation charge sheet was

filed before the learned Metropolitan Magistrate, who in

turn took cognizance of the offence and committed the

case to the sessions court.

7. Charge under Sections 392 and 397 IPC was framed

against the appellant on 9th January, 1997 to which he

pleaded not guilty and claimed trial. Prosecution

examined six witnesses in all. Dilshad Ahmed was

examined as PW1. Aneez Ahmed was examined as PW2.

Mohd. Hanif was examined as PW3. Constable Jagbir

Singh was examined as PW4. Dr. S.K. Gupta of AIIMS was

examined as PW5 and SI Mohan Singh (Investigating

Officer) was examined as PW6.

8. After prosecution closed evidence, statement under

Section 313 Cr.P.C. of the appellant was recorded on 13th

July, 2000 wherein entire incriminating evidence, which

had come on record, was put to him. Appellant denied his

complicity in the crime and claimed himself to be

innocent. He stated that he was having his own leather

factory within the premises. He used to manufacture

leather goods for Hanif and Aneez Ahmed. That Hanif and

Aneez Ahmed owed him Rs.50,000/-. Dilshad Ahmed

received injuries at the hands of his brother Sarfaraz.

Taking advantage of this fact, Dilshad Ahmed and Mohd.

Hanif involved the appellant in this false case in order to

avoid payment of outstanding dues of the appellant.

However, no evidence was led by the appellant in his

defence.

9. Learned trial court found the testimony of PW1

Dilshad Ahmed and PW2 Aneez Ahmed, trustworthy and

reliable. From the testimony of PW5 and the MLC on

record, the trial court was satisfied that injuries received

by Dilshad Ahmed on his chest and his lower thigh were

caused by a sharp object and were duly supported by the

statement of Dilshad Ahmed coupled with the factum of

recovery of knife pursuant to the disclosure statement of

the appellant. Recovery was believed to be correct.

Consequently, learned trial court held that the prosecution

had succeeded in proving its case against the appellant.

10. I have heard learned counsel for the parties and have

perused the entire record including the record of the

learned trial court. I have carefully gone through the

testimonies of star witnesses of prosecution namely

Dilshad Ahmed and Aneez Ahmed, who have been

examined as PW 1 and PW2 respectively. I am satisfied

that from their testimonies, it is proved that the appellant

had stolen suit cases after breaking the lock of the door of

the factory and when Dilshad Ahmed noticed this fact and

challenged the appellant, he gave a knife blow on his

chest and thigh after which he ran away. Testimony of

PW1 Dilshad Ahmed has remained unshattered in his

cross-examination, on material points and has rightly been

accepted by the learned trial court. Testimony of PW1

Dilshad Ahmed has also been corroborated by PW2 Aneez

on material points. PW2 has deposed that on hearing

alarm raised by Dilshad Ahmed he woke up and saw

appellant grappling with Dilshad Ahmed and thereafter

running away.

11. Learned counsel for the appellant has contended that

PW2 Aneez was declared hostile by the learned APP for

the State and was cross examined. Since PW2 was

declared hostile, his testimony cannot be looked into for

any purpose whatsoever. In absence of his testimony only

testimony of PW1 was available, which was not sufficient

to base the conviction more so, when PW1 was an

interested witness. No independent witness was joined

during the investigation. Accordingly, it would not be safe

to place reliance on the sole testimony of PW1 for

convicting the appellant.

12. I do not find any force in this contention of the

learned counsel for the appellant. It is well settled that

even testimony of hostile witness can be read to the

extent it supports the prosecution case. PW2 Aneez

Ahmed has corroborated the incident. He has deposed

that he was sleeping outside the factory along with

Dilshad Ahmed. In the intervening night of 18th or 19th

June, 1994 at about 2:30 am he heard a call from Dilshad

Ahmed and got up and saw appellant grappling with

Dilshad Ahmed and thereafter running away. He also

noticed Dilshad Ahmed had sustained knife injuries on his

chest and leg. He removed Dilshad Ahmed to AIIMS and

got him admitted there. The Police arrived there and

recorded statement of Dilsahd Ahmed. His this version

clearly show that he has corroborated PW1 regarding the

main incident. PW2 has also deposed about the two suit

cases being taken into possession by the Police, vide

seizure memo Ex. PW2/A. He has identified his signatures

on the said seizure memo. To this extent, his testimony

can be accepted.

13. Merely because PW2 had deposed that he did not see

any knife in the hand of appellant will not make much

difference in the peculiar facts of this case. PW2 has

categorically deposed that he saw the appellant grappling

with Dilshad and that he noticed knife injuries on the chest

and leg of Dilshad Ahmed immediately after the incident.

This version of PW2 clearly supports statement of PW1

that he had received injuries by a knife and the same were

inflicted by the appellant.

14. In his cross examination by the learned APP for the

State, PW2 had admitted that after the accused was

arrested he made disclosure statement and got recovered

the knife from the flush of the toilet of B-114, Mohadpur,

R.K.Puram, New Delhi. He had also deposed that sketch of

the knife Ex. PW2/C was prepared and the same bears his

signatures. He has categorically deposed that the knife

was sealed in a packet and was taken into possession vide

seizure memo Ex. PW2/D, which also bears his signatures.

He also identified the knife in the Court. His version is

also supported by the statement of the Investigating

Officer. Recovery of the knife at the instance of the

appellant had been duly proved. Merely because PW2 was

declared hostile and cross examined by learned APP for

the State, his testimony cannot be thrown away from

consideration as a whole. The portion which supports the

prosecution case can be read in evidence against the

appellant.

15. Accordingly, I am of the view that learned trial court

had rightly accepted the testimony of PW1 Dilshad Ahmed

and PW2 Aneez Ahmed in concluding that the appellant in

the intervening night of 18th/19th June, 1994 had stolen

two suit cases, after breaking the lock of the factory of

Hanif Ahmed and when he was taking away the same with

him, PW1 Dilsahd Ahmed woke up and challenged him, at

which appellant gave knife blows to Dilshad Ahmed on his

chest and leg causing injuries to him.

16. Section 390 of the Indian Penal Code provides that

theft is "robbery" if, in order to the committing of the

theft, or in committing the theft, or in carrying away or

attempting to carry away property obtained by the theft,

the offender, for that end, voluntarily causes or attempts

to cause to any person death or hurt or wrongful restraint,

or fear of instant death or of instant hurt, or of instant

wrongful restraint. In this case the appellant had

committed the theft and while he was carrying away the

property obtained by theft he was noticed by Dilshad

Ahmed and was challenged, pursuant to which, appellant

voluntarily caused hurt to him by a knife. Thus, his this

act falls within the ambit and scope of robbery, as defined

under Section 390 of the Indian Panel Code and is

punishable under Section 392 of IPC.

17. Section 397 of the Indian Penal Code further provides

that if at the time of committing robbery or dacoity, the

offender uses any deadly weapon, or causes grievous hurt

to any person, or attempts to cause death or grievous hurt

to any person, the imprisonment with which such offender

shall be punished shall not be less than seven years.

18. In this case, the appellant, at the time of committing

robbery, used a knife, which is a deadly weapon within the

meaning of Section 397, and the same had caused hurt to

the complainant Dilshad Ahmed, thus, appellant was liable

to be punished under Section 397 IPC.

19. In the light of the above discussions, I am of the view

that learned trial court has rightly convicted the appellant

under Section 392 as well as 397 of the Indian Penal Code

and has awarded proper sentence to him which needs no

interference by this Court.

20. Dismissed.

A.K. PATHAK, J

November 30, 2009 ga