Noor Mohd. vs State (G.N.C.T.) Of Delhi
2011 Latest Caselaw 271 Del

             IN THE HIGH COURT OF DELHI: NEW DELHI

+               CRL. A. No.479/2009

%               Judgment decided on: 18th January, 2011

NOOR MOHD.                                      .....APPELLANT

                                Through: Mr. Siddharth Aggarwal,
                                         Adv.
                           Versus

STATE (G.N.C.T.) OF DELHI                      .....RESPONDENT

                                Through: Mr. M.P.Singh, APP

                                    AND
Crl. A. No. 574/2009

GULZAR                                          .....APPELLANT

                                Through: Ms. Ritu Mishra,
                                          Amicus Curiae

                           Versus

STATE (G.N.C.T.) OF DELHI                      .....RESPONDENT

                                 Through: Mr. M.P.Singh, APP

                                    AND
Crl. A. No. 67/2010

YUNUS                                           .....APPELLANT

                                Through: Mr. Riaz Mohd., Adv.

                           Versus

STATE (G.N.C.T.) OF DELHI                      .....RESPONDENT

                                 Through: Mr. M.P.Singh, APP

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

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



Crl. A. No. 479-2009                                      Page 1 of 8
         2. To be referred to Reporter or not?           No

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

A.K. PATHAK, J. (Oral)

1. All the above referred Appeals are being disposed of together

by this judgment as these arise from the same incident, FIR and

judgment of the Trial Court.

2. Appellants have been convicted under Sections 394/34 and

397/34 IPC; sentenced to undergo rigorous imprisonment for ten

years with fine of `10,000/- each and in default of payment of fine,

each of the Appellants to further undergo simple imprisonment for

six months. Appellant Noor Mohd. has also been convicted under

Section 27 of the Arms Act, 1959 and sentenced to undergo

rigorous imprisonment for three years with fine of `5,000/-; in

default of payment of fine to undergo simple imprisonment for

three months. Both the sentences of Noor Mohd. had been

directed to run concurrently. Benefit of section 428 Cr.P.C. has

also been given to the Appellants.

3. Factual matrix as unfolded is that complainant Jai Narayan,

on 29th May, 2005, hired a three-wheeler scooter (TSR) driven by

Yunus for going to Seemapuri from Maujpur. On the way, Noor

Mohd. and Gulzar also boarded the TSR. When the TSR reached

near Afsara border, Yunus abruptly stopped his TSR; he got down

from it and took out a knife hidden beneath the seat and handed

over to Noor Mohd. Yunus slapped the complainant and asked

him to handover whatever he was having in his possession. Gulzar

forcibly took out mobile phone of the complainant from his shirt's

pocket and `2400/- from his pants' pocket. Complainant raised

alarm, on which Noor Mohd. gave a knife blow to him, causing

injuries on his elbow. While Gulzar caught hold of the

complainant, Noor Mohd. aimed a knife blow on his abdomen,

however, he saved himself by catching the knife with his left hand,

consequently, sustained injuries on his fingers. In the meanwhile,

Head Constable Giliya Ram and Constable Naresh arrived there

and on seeing them Appellants boarded the TSR and started

moving towards the flyover. Police officials along with one passer-

by Maninder Singh chased Appellants and apprehended them.

Knife was recovered from the possession of Noor Mohd.

4. Complainant Jai Narayan has been examined as PW1.

Maninder Singh has been examined as PW2. Constable Naresh

and Head Constable Giliya Ram have been examined as PW7 and

PW10, respectively. These are the material witnesses to prove the

incident. All other witnesses are formal in nature having been

joined in the investigation, at one or the other stage. PW2

Maninder Singh had turned hostile and his testimony is of no help.

5. PW1 Jai Narayan has deposed that he had boarded the TSR

driven by Yunus on 29th May, 2005 at about 2/2:30 AM for going

to Seemapuri. Noor Mohd. and Gulzar also boarded the same TSR.

On the way Yunus stopped the TSR and got down from it. He took

out a churra and handed over to Gulzar. He slapped him. `70/-

and one mobile were taken from him. `2400/- was also taken

from his pants' pocket under threat. He again said that Yunus

gave chura to Noor Mohd. who put it on his abdomen while Gulzar

caught hold of him. He again said that Gulzar tried to give chura

blow on his abdomen and when he tried to save himself he

sustained injuries on the three fingers of his left hand. On seeing

police officials he raised alarm. Appellants started running away

with the TSR. Police officials chased the TSR and apprehended the

appellants with the help of driver of another TSR. PW7 Constable

Naresh Kumar and PW10 Head Constable Giliya Ram have

corroborated PW1 with regard to the apprehension of appellants.

6. As regards incident of robbery is concerned, his testimony is

in line with the prosecution case as set-up in the charge-sheet. He

has fully corroborated his earlier version as contained in the FIR to

the effect that the Appellants had robbed him of his mobile phone

and `2470/- on the point of knife. No material discrepancy could

be pointed out in his testimony on this point. Appellants were

apprehended at the spot by the PW7 and PW10, whose testimonies

have remained unshattered in their cross-examination on this

point. MLC Ex. PW9/A shows that the complainant had suffered

simple injuries on the date of incident. A perusal of Section 394

IPC provides that if any person in committing or in attempting to

commit robbery, voluntarily causes hurt, such person, and any

other person jointly concerned in committing or attempting to

commit robbery shall be punished under the said provision.

Section 394 IPC envisages that not only the person, who causes

hurt but accomplices would also be liable for punishment under

this provision. On the face of clinching evidence on record, Trial

Court has rightly held that it is the Appellants who had robbed the

complainant on the fateful day i.e. on 29th May, 2005 at about

2/2:30 AM and had also caused simple injuries on his person,

thus their conviction under Sections 394/34 IPC does not suffer

from any irregularity or illegality.

7. The next question which arises for consideration is as to

whether the Trial Court was right in convicting the Appellants

under Section 397 IPC. Section 397 IPC provides that if, at the

time of committing robbery, 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. The

word "such offender" used in this Section clearly indicates that it is

only the accused who uses deadly weapon at the time of

committing robbery, would be liable for punishment under Section

397 IPC.

8. In Dilawar Singh Vs. State of Delhi 2007 (12) SSC 641

Supreme Court observed that "Offender" refers to only culprit who

actually used deadly weapon. When only one has used the deadly

weapon, others cannot be awarded the minimum punishment. It

only envisages the individual liability and not any constructive

liability. Section 397 IPC is attracted only against the particular

accused who uses the deadly weapon or does any of the acts

mentioned in the provision. But other accused are not vicariously

liable under that Section for acts of co-accused. Similar view has

been taken by the Supreme Court in Phool Kumar v. Delhi

Administration (AIR 1975 SC 905). It was held that the term

"offender" under Section 397 IPC is confined to the offender who

uses any deadly weapon. 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.

9. In this case, inconsistent stand has been taken by the

complainant with regard to use of knife by the accused persons. In

the FIR, complainant had stated that Yunus had taken out the

knife after removing his seat and handed over the same to Noor

Mohd. Subsequently, Noor Mohd. had caused injuries to him by

this knife. However, in his examination-in-chief, recorded on 13th

October, 2005 complainant deposed that Yunus took out knife and

handed over the same to Gulzar. Examination-in-chief of PW1

could not be completed on that day and had been deferred. On

22nd December, 2006 further examination-in-chief was recorded,

when he changed his version and deposed that Yunus gave chura

to Noor Mohd., who had put the same on his abdomen. However,

subsequently he again changed his version by saying that accused

Gulzar was trying to give chura blow and when he tried to save

himself, he sustained injuries on his fingers of left hand. In view of

the shifting stand taken by him with regard to use of knife,

Appellants are entitled to benefit of doubt, as regards offence

under Section 397 IPC is concerned. Accordingly, Appellants are

acquitted of the charge under Section 397 IPC.

10. Recovery of knife from Noor Mohd. has been duly proved. All

the Appellants were apprehended at the spot itself. Seizure memo

of knife has been duly proved. However, in view of the statement

of PW1, it cannot be concluded beyond the shadow of reasonable

doubt that it is the Appellant Noor Mohd., who had used the same

while committing robbery. As per the complainant himself

Appellants had been passing on the knife to each other. It has also

come on record that after the incident, Appellants tried to escape

in the TSR and were apprehended by the police officials after giving

chase to them. Since, use of this knife by Noor Mohd. has

remained inconclusive, he is entitled to benefit of doubt with

regard to his conviction under Section 27 of the Arms Act.

However, since the knife has been recovered from his possession,

he is convicted under Section 25 of the Arms Act.

11. The result of above discussion is that Appellants are

convicted under Section 394/34 IPC, however, they are acquitted

under Section 397 IPC. Their sentences, as awarded by the Trial

Court under Sections 394/34 IPC, are reduced to five years from

ten years. Appellant Noor Mohd. is convicted under Section 25 of

the Arms Act also but his sentence is reduced to two years.

Sentences of fine, as awarded by the Trial Court, are maintained as

it is. As regards Appellant Noor Mohd. is concerned, his sentences

shall run concurrently. Needless to add that the Appellants shall

be entitled to benefit of Section 428 Cr.P.C.

12. Fee of Ms. Ritu Mishra, Amicus Curiae for the Appellant

Gulzar is fixed as `5000/- to be paid by the Delhi High Court Legal

Services Committee.

13. All the three Appeals are disposed of in the above terms.

14. Copy of this order be sent to Superintendent Jail for serving

it on the Appellants and for due compliance.

A.K. PATHAK, J.

JANUARY 18, 2011 rb