Ikram & Anr. vs State
2011 Latest Caselaw 2221 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


+                     Crl. Appeal No. 564/2000

%                                            Reserved on: 27th January, 2011

                                             Decided on: 27th April, 2011

IKRAM & ANR.                                                  ..... Appellants
                               Through:   Mr. S.C. Gupta, Amicus Curiae along
                                          with the Appellants in person

                      versus

STATE                                                      ..... Respondent
                               Through:   Mr. Pawan Bahl, APP for the State

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA


1. Whether the Reporters of local papers may          Not Necessary
   be allowed to see the judgment?

2. To be referred to Reporter or not?                 Yes

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

MUKTA GUPTA, J.

1. Briefly the prosecution case is that on 23rd December, 1998 on receipt

of DD No. 25-A regarding robbing of a person by 3-4 persons and one of the

robbers being apprehended at the spot, ASI Suresh Pal with Constable Hari

Kishan reached the spot where they met Complainant Tinku Sharma who had

apprehended Ikram along with one Raj Kumar. The statement of Tinku

Sharma, PW8 was recorded vide Ex. PW11/A. He stated that he was in

private service at Ghaziabad and was living in a rented accommodation in

Dilshad Garden. In the evening after returning from duty, he had gone to his

cousin's house and was coming back at about 9:15 P.M. When he reached

near the corner of the park, three boys who were standing there, caught hold

of him. One of the boys was holding scissors in his hand and the other two

boys started taking his search. One of them took out `500/- from the front

pocket and the other `195/- from the rear pocket of his pant. When he

protested, the boy holding the scissors gave him blows by the scissors. He,

however, managed to save himself from the first blow. Then, one of the boy

exhorted "CHOTTU PET MEIN MAAR" and he started inflicting scissors

blows on his abdomen. He caught hold of the scissors and did not leave the

same and raised the alarm. Due to this, he sustained injury on his hand. The

three boys started running on his raising alarm and the scissors remained in

his hand. One of the boys ran into the park and fell down. he was

overpowered by the complainant who ran after him. In the meanwhile, public

persons also came there. The boy after freeing himself started running, on

which the public started beating him. The Complainant and one Raj Kumar

Sharma saved him from the public and caught him. `195/- were found in the

hand of this boy which he had taken out from the pocket of the Complainant.

Thereafter, the PCR came and the boy who was apprehended identified

himself as Ikram son of Chottu Khan. `195/- and the scissors were taken into

possession by the police. On this statement of the Complainant, FIR was

registered. The Appellant No.1 Ikram was arrested and on his disclosure and

pointing out the two other co-accused, Salim @ Chottu and Mursalim were

arrested. Since, the Appellant No.2 Mursalim and co-accused Salim @

Chottu refused to join the T.I.P., statements of witnesses were recorded who

duly identified them. After completion of investigation, charge-sheet was

filed. All the accused were charged for offence punishable under Sections

392/394 read with Section 34 IPC. In addition, accused Salim was also

charged for offence punishable under Section 397 IPC. After recording of the

prosecution evidence, the statements of the accused under Section 313 CrPC

and the defence witnesses, the Appellants along with co-accused Salim @

Chottu were convicted for offences punishable under Section 392/394/34 IPC.

Co-accused Salim was also convicted for offence punishable under Section

397 IPC. The Appellants were awarded sentence of Rigorous Imprisonment

for a period of five years with a fine of `2000/- and in default of payment of

fine, to further undergo Rigorous Imprisonment for six months for offence

punishable under Section 392 IPC and Rigorous Imprisonment for a period of

7 years and a fine of `5000/- and in default of payment of fine, to further

undergo Rigorous Imprisonment for one year for offence punishable under

Section 394 IPC. Co-convict Salim had filed Criminal Appeal No. 550/2001,

however, during the pendency of the said appeal, he had undergone the entire

sentence and thus his appeal was dismissed as infructuous vide order dated

14th May, 2010.

2. Learned counsel for the Appellants contended that this is a case of no

evidence against the Appellants. Nothing was recovered from the Appellant

No.1 Ikram in the course of search by the Police. As per the statement of PW8

to the Police `195 were handed over by PW8 to ASI whereas in his statement

before the Court, he has deposed that the PCR officials recovered `195/- from

the pocket of the Appellant No.1. Further, no public person has stated that

`195/- were taken from the back pocket of the Complainant by the Appellant

No.1 Ikram. The testimony of PW8 cannot be relied as he has made material

improvements. PW1 has deposed that PW8 had told the police that it was dark

and he could not identify the assailants, and thus, the Appellants cannot be

convicted on such evidence. PW1 Raj Kumar has turned hostile and he spoke

the truth that no cash was recovered in his presence and the fact of the matter

is that no cash was recovered. Thus, the conviction under Sec. 392 is

unjustified in view of absence of proof of the recovery of `195 from the

Appellant No.1. Reliance is placed on Ajit Singh vs. State of Haryana 1996

SCC (Crl.) 481 to contend that the conviction of the Appellant under Sec. 394

IPC is unjustified as from the testimony of the alleged eye-witnesses PW1 and

PW8 it is clear that no injury was inflicted by the scissor and further the

scissor having not been sent to CFSL, it cannot be said that the injury on the

hand of the complainant was caused by that scissors by the co-accused. There

is no evidence on record in support of the fact that Appellants Ikram and

Mursalim had played any role with the scissors. Moreover, the scissors were

not recovered from any of the Appellants and as per the statement of PW8, the

scissors were handed over by PW8 to the Police. Reliance is also placed on

Phool Kumar vs. Delhi Administration, 1975 (1) SCC 797 and Pyare Singh vs.

State of M.P., 1992 Supp.(3) SCC 45.

3. As regards the Appellant No. 2 Mursalim, it is further contended that

nothing has been recovered at his instance and it cannot be inferred that he

had robbed ` 500/- and thus, conviction under Sec. 392 IPC is bad in law.

The scissors was not sent to the CFSL and hence there is no evidence that

injury was caused by the said scissors. Moreover, there is no evidence that

threat was extended at the time of the alleged robbery and hence from the

evidence adduced by the prosecution, the ingredients of Section 394 IPC are

not made out against the Appellant Mursalim. Thus, both the Appellants are

entitled for acquittal.

4. Per contra, learned APP for the State contends that the three accused

robbed the Complainant in furtherance of their common intention. The

scissors was used to threaten the Complainant and thereafter the Appellants in

the present appeal took out the money. The Appellant No.1 Ikram was

apprehended at the spot. PW8 Complainant has stated that `195/- was taken

out from his back pocket by Ikram which were recovered from him. He had

also snatched the scissors. PW1 is not an eye-witness as PW8 has stated that

he reached the spot only after the incident. The story put up by PW1 who had

been declared hostile is falsified by DD No.25-A Ex.PW4/A recorded at 10:25

p.m. which is a contemporaneous document wherein it is recorded that one

person has been robbed by 3-4 persons and an amount of `500/- is snatched

from him, it is also mentioned that one person is apprehended at the spot. The

testimony of PW8 is corroborated by his MLC Ex.PW9/A which shows sharp

injury. No suggestion has been made to PW11, the investigating officer that

this case was planted on the Appellants or that he influenced the witnesses to

identify the accused. Thus, the prosecution has proved the case beyond

reasonable doubt and the appeal deserves to be dismissed being devoid of

merit.

5. I have heard learned counsel for the parties and perused the record.

PW8, Tinku Sharma, the Complainant and injured victim in his testimony has

stated that when he reached near the corner of park of Dilshad Garden, he

found all the three accused persons who are present in the Court. All of them

took his personal search and one of them was holding the scissors. At that

time `195/- were taken from his back pocket by the Appellant Ikram and

`500/- were taken from his front pocket by Appellant Mursalim and the

scissor was in the hand of Salim @ Chottu. When he resisted, Salim @ Chottu

attacked him with the scissors, but he resisted the first blow of the scissors and

saved himself. When Chottu gave him the second blow with the scissors, he

caught hold of the scissors resulting in the injury on his hand while saving

himself. He did not leave the scissors and snatched the same from Salim @

Chottu. Thereafter, the three of them ran away. However, Ikram fell down in

a drain and he was caught hold by the Complainant. On his rasing the alarm

"Bachao Bachao", the public persons reached at the spot and before Appellant

No.1 Ikram could free himself from PW8, the public persons overpowered

him. This witness is an injured witness. His testimony is duly corroborated by

his MLC Ex.PW9/A which shows "multiple linear or scratch abrasion over

dorsum of right hand, left ring finger, left index finger, left middle finger, over

face". The nature of injuries have been opined to be simple caused by sharp

weapon. This witness has also identified the scissors Ex. P-8 and the cash

recovered from him Ex. P1 to P7. In view of the identification of the scissors

by PW8 who is an injured eye-witness, the contention of the learned counsel

for the Appellant that the scissors was not sent to CFSL looses ground as the

identification of scissors by PW8, eye witness identifying the weapon of

offence, the scissors is connected to the injury caused and the offence

committed. Similar view was taken by this Court in Crl. A. 152/2001 Nanko

Devi vs. State.

6. The testimony of PW8 cannot be belied by the testimony of PW1

because PW1 is not an eye-witness. PW8 has stated that when the incident

took place, no other person except the accused persons were present. His

brother Raj Kumar i.e. PW1 came after one or two minutes after catching the

Appellant No.1 Ikram and during that time he and the public persons caught

hold of the Appellant No.1 Ikram. Thus, the testimony of PW1 is of no avail.

Learned counsel for the Appellant has laid much emphasis on the testimony of

PW1. However, the testimony of this witness on the face of it is a false

testimony, as he has gone to the extent of saying that the police did not get the

Complainant PW8 and the Appellant No.1 Ikram medically examined in his

presence. The MLC of PW8 i.e. PW9/A, records the time of arrival as 3:45

A.M. on 24th December, 1998. The incident is of around 9:15 P.M. on 23rd

December, 1998. After the incident happened, the PCR Van came and after

apprehending the Appellant No.1 Ikram and completing the formalities, PW8

was taken to the hospital. Even the reliance on the statement of PW1 that

PW8 had told the Police that it was dark and he could not identify the accused

persons is misconceived and this statement is not admissible in evidence being

hearsay evidence. Thus, I find no merit in the contention of the learned

counsel drawing contradictions in the testimony of PW8 from that of PW1

and contending that PW8 should not be relied upon.

7. The Appellant No. 2 Mursalim was arrested and an application for his

T.I.P. was moved. However, he refused to participate in the T.I.P. on the

ground that his photographs have been taken and he was shown to the

witnesses. No suggestion has been given to PW8 on behalf of Appellant No.2

Mursalim that he was shown to him or his photo was shown to him prior to

the refusal of the TIP thus the testimony of PW8 on this aspect has gone

unchallenged. Relying on Ajit Singh (Supra), the learned counsel for the

Appellant has laid much stress on the point that the conviction of the

Appellant for offence punishable under Section 394 is not made out. From

the evidence of PW8, it is clear that he was robbed of the money by not only

showing the scissors but also by inflicting injuries on his resistance in

furtherance of their common intention. The entire sequence of events is

continuous and when PW8 showed his resistance, Salim @ Chottu inflicted

the scissors blow on him which he warded off. The second blow was also

sought to be warded off and in the process, he caught hold of the scissors

resulting in injuries on his hands. In the meantime, the Appellants robbed the

money from his pocket. An offence under Section 394 is punishable even

with the aid of Section 34 IPC unlike Section 397 IPC. Hence I find no

infirmity in the impugned judgment on that count.

8. Reliance of the Appellants on Phool Kumar (Supra) is misconceived, as

in the said case the Hon'ble Supreme Court was dealing with offence under

Sec. 397 IPC the criminal liability of which cannot be fastened vicariously

with the aid of Section 34 IPC. Since Salim @ Chottu only used the weapon

of offence, learned trial court rightly convicted him for the offence punishable

under Section 397 IPC.

9. The Appellants have been awarded sentence of Rigorous Imprisonment

for a period of 7 years under Section 394 IPC and 5 years under Section 392

IPC. The Appellant No.1 Ikram has remained in custody for three years four

months and twenty three days and has paid the fine. The Appellant No. 2

Mursalim has been in custody for a period of four years one month and

eighteen days. The Appellants have already suffered the ordeal of trial and

appeal for 13 years. It would, thus, be in the interest of justice to modify the

sentence of the Appellants to the period of imprisonment already undergone.

10. The Appeal is, accordingly, disposed of maintaining the conviction for

offences punishable under Sections 392/394/34 IPC, however modifying the

sentence of imprisonment to the period already undergone. The bail bonds

and the surety bonds are discharged.

(MUKTA GUPTA) JUDGE

APRIL 27, 2011/dk