Delhi High Court
Avid Ali vs State (Govt Of Nct) Of Delhi on 2 July, 2013
Author: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 313/2011
% Reserved on: 8th April, 2013
Decided on: 2nd July, 2013
AVID ALI
..... Appellant
Through Mr. Yash Tandon, Adv. with
Appellant in custody.
versus
STATE (GOVT OF NCT) OF DELHI
..... Respondent
Through Mr. Manoj Ohri, APP with SI Yashbir
Singh, PS New Usmanpur.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. By the present appeal, the Appellant challenges the judgment dated 4 th
October, 2010 convicting the Appellant for offences punishable under
Section 394/397 IPC and the order on sentence dated 5th October, 2010
awarding rigorous imprisonment for a period of 6 years and a fine of Rs.
5000/- for offence punishable under Section 394 IPC and rigorous
imprisonment for a period of 7 years for offence under Section 397 IPC.
2. Learned counsel for the Appellant contends that the alleged incident
took place in residential area on 21st December, 2006 at about 7.50 PM when
public witnesses would have been around, however no public witness was
associated. Even as per the case of the prosecution, in view of the statement
of PW1 and PW2, nothing has been robbed from the complainant and thus
the sentence for imprisonment as imposed is disproportionately higher.
Further, as per the MLC the injury was also simple in nature. The Appellant
has by now undergone 6 years 8 months imprisonment with remissions out
of the 7 years awarded and thus in the alternative the sentence in default of
payment of fine i.e. simple imprisonment of six months be set aside.
3. Learned APP for the State on the other hand contends that from the
testimonies of PW1 and PW2, the offence committed by the Appellant is
proved beyond reasonable doubt. The Appellant injured PW1 with a hasia
(knife). The testimony of PW1 and PW2 is further corroborated by the
testimony of PW3 Dr. Banarsi who has exhibited the MLC Ex. PW3/A.
PW1 and PW2 despite detailed cross-examination were recalled vide order
dated 11th August, 2010 passed by the learned Trial Court and a suggestion
of previous enmity was put to them. However, PW1 and PW2 denied the
same. In view of the testimony of eye-witnesses, particularly the injured
eye-witnesses, the prosecution has proved its case beyond reasonable doubt
and thus no case for acquittal is made out.
4. Heard learned counsel for the parties. Briefly the case of the
prosecution as per the statement of PW1 Sunil Kumar, the complainant is
that on 21st December, 2006 between 6.00 to 7.00 PM he was returning to his
house after purchasing a book along with his friend Janardhan Singh PW2.
When they were passing through DDA park, Shastri Park he received a
mobile phone call and to attend the same he sat down on a bench, while his
friend was standing. In the meantime two persons came and demanded
cigarette, match stick, tobacco etc. One of the two persons came from
behind, who was pointed out as Abid, the present Appellant. It is further
stated that the Appellant took out a knife type object and placed it on his
neck and asked him to hand-over his belongings to him. The other boy, who
accompanied the Appellant, remained standing at a distance. PW1 caught
hold of the hand of the Appellant followed by PW2 catching hold of him. In
the meantime the other boy accompanying the Appellant fled away. PW1
and PW2 brought the Appellant in the area of Shastri Park and called the
Police. PW1 sustained an injury on his right hand with the knife when he
tried to catch it. The Appellant was handed over to the Police and the
statements were duly recorded. Since PW1 and PW2 did not identify the
accused Nasir in the Court, he was acquitted by the learned Court. However,
a perusal of the evidence shows that the material evidence of showing the
knife and demanding the belongings relates to the present Appellant, as the
role attributed to Nasir was that he was standing at a distance. Both the
witnesses have been cross-examined by the learned APP and the learned
counsel for the Appellant. During cross-examination, no material
improvements or contradictions have been shown. The Appellant was
apprehended at the spot. The testimony of PW1 and PW2 is further
corroborated by the testimony of PW3 Dr. Banarsi who prepared the MLC of
PW1, Ex.PW3/A. As per the MLC, PW1 received an incised wound on the
right index finger.
5. A perusal of the evidence of PW1 and PW2 shows that no robbery
was committed and it was case of attempt to robbery only. Section 394
provides that if any person in committing or in attempting to commit robbery
voluntarily causes hurt, such a person and any other person jointly concerned
in committing or attempting to commit such robbery shall be punished with
imprisonment for life or with rigorous imprisonment for a term which may
extend to 10 years and shall also be liable to fine. In the present case it has
been proved beyond reasonable doubt on record that the Appellant attempted
to commit robbery by voluntarily causing hurt to PW1. Thus, the learned
Trial Court committed no error in convicting the Appellant for offence under
Section 394 IPC. Further Section 397 IPC 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 attempt to cause death or grievous hurt
to any person, the imprisonment with which such offender shall be punished
shall not be less than 7 years. In the present case robbery has not been
committed, only an attempt to robbery was made which was foiled. Thus,
Section 398 IPC would be attracted in the facts of the case, as the same
provides that if at the time of attempting to commit robbery or dacoity the
offender is armed with any deadly weapon, the punishment would be
imprisonment not less than 7 years. The Appellant was charged for offence
under Section 397 IPC and convicted thereof. However, from the facts of
the case offence under Section 398 IPC is made out and the same being a
minor offence of Section 397 IPC, no prejudice will be caused to the
Appellant if the conviction is altered from Section 397 IPC to Section 398
IPC. The minimum sentence prescribed under Section 398 IPC is also 7
years imprisonment. In the facts and circumstances of the case, the
conviction of the Appellant is altered to one under Section 394/398 IPC.
6. Learned counsel for the Appellant has contended that in default of
payment of fine, sentence of imprisonment for six months be waived.
Section 394 IPC provides for punishment with imprisonment for life or with
rigorous imprisonment for a term which may extend to 10 years and also to
pay a fine. Thus, payment of fine is mandatory under Section 394 IPC. In
the present case the fine imposed is Rs. 5000/-. However, for non-payment
of fine, the default sentence provided is simple imprisonment for six months
which in my opinion is on the higher side. It is therefore directed that in
case fine of Rs. 5000/- is not paid by the Appellant, he would undergo
Simple imprisonment for a period of three months. The appeal is disposed
of with the modifications in the judgment of conviction and order on
sentence accordingly. Appellant be informed through the Superintendent
Tihar Jail.
(MUKTA GUPTA)
JULY 02, 2013
'ga'
