Delhi High Court
Muddasir vs State (Nct) Of Delhi on 18 January, 2011
Author: Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: January 18, 2011
+ CRL.A. NO. 496/2008 & CRL.M.B. 210/2010
MUDDASIR ....APPELLANT
Through: Mr.Ajay Verma, Advocate with Mr.
Gaurav Bhattacharya, Advocate & Ms.
Swati Gupta, Advocate.
Versus
STATE (NCT) OF DELHI .....RESPONDENT
Through: Mr.R.N.Vats, APP.
CORAM:
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers
may be allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be
reported in Digest ?
AJIT BHARIHOKE, J.(ORAL)
1. This appeal is directed against the impugned judgment of the
Additional Sessions Judge dated 29th October, 2007 and consequent
order on sentence dated 02nd November, 2007 in Sessions Case No.
69/2006, FIR No. 48/2006, P.S. Gokal Puri whereby the appellant
Muddasir has been convicted for the offences punishable under
Sections 452, 392 & 397 IPC. For the offence punishable under
Section 452 IPC, the appellant has been sentenced to undergo RI for
the period of 04 years and to pay fine of ` 5000/-, in default to
undergo RI for further period of six months. Appellant has also been
sentenced for offence punishable under Section 392 IPC to undergo
RI for the period of 04 years and to pay a fine of ` 10,000/-, in
default to undergo RI for one year and for the offence punishable
under Section 397 IPC, the appellant has been sentenced to undergo
RI for the period of 07 years. It was ordered that substantive
sentences awarded to the appellant shall run concurrently.
2. Briefly stated, case of the prosecution is that on 20 th January,
2006, complainant Ms. Afsana Praveen was alone in her house. At
about 1.30 p.m., her son Suhail returned home. When he entered
the house, four robbers including the appellant Muddasir followed
him. The robbers caught hold of the complainant Afsana Praveen.
One of them gagged her mouth, other offender caught hold of Suhail
and the third one threatened the complainant with a dagger and
demanded keys of almirah from her but the complainant maintained
silence. One of them then started searching the house and took out
the keys of the almirah from the drawer. They opened the almirah
and removed cash ` 1,50,000/-, one gold necklace, two gold rings,
two other ear-rings and some other ornaments from the house.
They had tied the thumbs of both the hands of the complainant with
a shoe lace. When the robbers left, complainant managed to untie
her thumbs, came out of the house and raised alarm. Someone
informed the husband of the complainant Vakil Ahmed who reached
there and informed the police.
3. Statement of complainant Afsana Praveen Ex.PW1/A was
recorded by the Investigating Officer SI S.B.Gautam, on the basis of
which formal FIR was registered. During investigation, accused
Saleem was arrested on 28th January, 2006 in an Arms Act case and
on interrogation, he made a disclosure statement about his
involvement in the robbery in this case and stated that the appellant
Muddasir, Ashraf and one other were his associates. The appellant
Muddasir and his co-accused Ashraf were arrested on 30th January,
2006. On interrogation, they made disclosure statements, pursuant
to which they got recovered the stolen ornaments of the
complainant. On completion of investigation, charge sheet against
the appellant and others was filed.
4. The appellant was charged for the offences punishable under
Sections 452, 392 read with Section 120B IPC and Section 397 IPC.
The appellant pleaded not guilty to the chare and claimed trial.
5. In order to bring home the guilt of the appellant and others,
prosecution examined 12 witnesses including the complainant.
6. In order to afford an opportunity to explain circumstances
appearing in evidence against the appellant, he was examined
under Section 313 Cr.P.C. wherein he claimed that he has been
framed in this case. He, however, failed to lead evidence in
defence.
7. Learned Additional Sessions Judge, on consideration of record
acquitted co-accused Saleem and convicted the appellant Muddasir
for offence under Section 452, 392 and 397 IPC and his co-accused
for the offence punishable under Section 452 and 392 IPC.
8. Learned Sh. Ajay Verma, Advocate appearing for the appellant
has not challenged the conviction and sentence of the appellant for
the offences punishable under Section 392 and 452 IPC. He,
however has challenged the conviction of the appellant under
Section 397 IPC.
9. Learned counsel for the appellant contended that Section 397
IPC provides punishment for aggravated form of the offence of
robbery and this Section is attracted only if the person guilty of
robbery, uses any deadly weapon, or causes grievous hurt to any
person or attempts to cause death or grievous hurt to any person.
Therefore, in order to bring the appellant Muddasir within the
purview of Section 397 IPC, the prosecution was required to prove
either of the aforesaid three ingredients, which are lacking in this
case. Learned counsel further contended that learned Additional
Sessions Judge has committed a grave error in convicting the
appellant Muddasir under Section 397 IPC on the strength of
testimony of PW1 Afsana Praveen wherein, she claimed that the
appellant, during robbery, had placed a country-made pistol on the
head of her son. Learned counsel argued that learned Trial Judge
failed to appreciate that aforesaid version of PW1 Afsana Praveen is
unreliable being a major improvement upon her previous statement
Ex.PW1/A, which is the basis of registration of the case. He
submitted that there is no mention in Ex.PW1/A of user of country-
made pistol by the appellant Muddasir during the course of robbery.
Thus, learned counsel has urged for rejection of that part of
testimony as unreliable and quashing of conviction of the appellant
under Section 397 IPC.
10. Learned APP, on the contrary, has argued in support of the
impugned judgment. He contended that the Trial Court has rightly
relied upon the testimony of PW1 Afsana Praveen because a
possibility cannot be ruled out that due to fear and trauma of
robbery, the complainant might have forgotten to mention about the
user of country-made pistol by the appellant Muddasir in her
statement Ex.PW1/A made to the Investigating Officer.
11. I have considered the rival contention and perused the
evidence on record. There appears to be merit in the contention of
learned counsel for the appellant. On perusal of complaint
Ex.PW1/A, it transpires that the complainant Afsana Praveen in her
statement made to the Investigating Officer, did not mention about
the user of country-made pistol either by the appellant Muddasir or
any other co-accused though she mentioned about use of a dagger
by one of the accused persons. If she could narrate about user of
dagger, it is highly improbable that she would have forgotten to tell
about use of the country-made pistol by the appellant in her
statement made to the Investigating Officer. The version of the
complainant regarding use of country-made pistol by the appellant
definitely is a major improvement on her previous statement,
therefore, I do not find it safe to rely upon that part of testimony of
the complainant. Thus, in my considered view, the prosecution has
failed to prove beyond doubt that the appellant Muddasir used a
deadly weapon during robbery. There is no evidence on record to
show that the appellant either caused grievous hurt to anyone
during robbery or he attempted to cause death or grievous hurt to
anyone during the course of robbery, as such, it is apparent that
necessary ingredients of Section 397 IPC are lacking in this case.
Therefore, I find it difficult to sustain the conviction of the appellant
under Section 397 IPC. Accordingly, I partly accept the appeal and
while maintaining the conviction and sentence awarded to the
appellant for the offences punishable under Sections 392 and 452
IPC, set aside the conviction and sentence of the appellant under
Section 397 IPC.
12. Appeal along with pending Criminal Miscellaneous Bail
Application No. 210/2010 are disposed of accordingly.
13. Copy of this judgment be sent to the Jail Superintendent
concerned.
(AJIT BHARIHOKE)
JUDGE
JANUARY 18, 2011
akb
