Sheikh Hussain @ Gatku vs The State
2014 Latest Caselaw 1852 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                 Date of Decision: 04.04.2014
+                            CRL. A.38 of 2010
SHEIKH HUSSAIN @ GATKU                       ..... Appellant
             Through: Mr. Ashish Kumar, Adv.
                                     versus
THE STATE                                                 ..... Respondent
                        Through:   Mr. Feroz Khan Ghazi, APP.
CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
                                     JUDGEMENT

V.K. JAIN, J. (Oral)

On 13.5.2009, at about 5:09 p.m. Police Station Jahagirpuri was

informed that a thief had been caught in W-Block, Ramleela Ground,

Mangal Bazar. The information was recorded vide DD No.37A and Head

Constable Ram Kumar was instructed on telephone to investigate the matter.

The aforesaid police officer reached Mangal Bazar Road near Ramleela

Ground, Jahagirpuri, where the complainant Sheikh Ansar met him. Sheikh

Ansar produced the appellant Sheikh Hussain along with a scissor. On

search of the appellant, a purse containing Rs.250/- in cash and driving

licence of the complainant as well as his PAN card was recovered from the

right pocket of his pant. The statement of Sheikh Ansar was recorded by the

Head Constable. The complainant told him that on that day, at about 4:40

p.m. when he reached Ramleela Ground, H2 Block, Jahagirpuri, on the way

to this shop, the appellant Sheikh Hussain came to him and demanded

money to take liquor and threatened to give scissor blow to him in case

money was not paid. A scissor was taken out by the appellant and put on the

abdomen of the complainant. His purse containing cash, driving licence and

PAN card was removed by the appellant who then fled from the spot. On

alarm being raised by the complainant, he was apprehended by the members

of the public and given beating. Head Constable Ram Kumar having

reached there in the meanwhile the appellant was handed over to him along

with the scissor.

2. After completion of investigation, the appellant was prosecuted under

Sections 392/397/411 of IPC. On 26.8.2009, he was charged under Sections

392/397 of IPC for committing robbery of the purse of the complainant by

putting him in fear of instant death and wrongful restraint. Since the

appellant pleaded not guilty to the charge, four (4) witnesses were examined

by the prosecution. No witness was examined in defence.

3. The complainant Sheikh Ansar came in the witness box as PW3 and

inter alia stated that on 13.5.2009 at about 4:40 p.m. when he was going

from his house to his shop and reached near Ramleela Ground, Jahagirpuri,

the appellant came there and asked him to give money for drinking liquor.

He (the appellant) brought out a scissor and put the same on his

(complainant's) stomach, threatening to kill him. Simultaneously the

appellant took out the purse of the complainant containing Rs.250/- in cash

besides his driving licence and PAN card. On alarm being raised by him,

the appellant was apprehended with the help of the public which also started

beating him. He informed Police Control Room and Head Constable Ram

Kumar reached the spot. The appellant was handed over to him along with

scissor. The purse containing Rs.250/- in cash besides his driving licence

and PAN card was recovered from the pocket of the pant of the appellant.

The witness identified the scissor Ex.P1 which the appellant had put on his

abdomen as well as his purse Ex.P2, driving licence Ex.P4 and his PAN card

Ex.P5.

4. PW2 Constable Ramesh stated that he along with Head Constable

Ram Kumar reached Mangal Bazar near Ramleela Ground. The

complainant produced the appellant Sheikh Hussain along with a scissor.

On search of the appellant a purse containing Rs.250/- in cash besides

driving licence and PAN card of the complainant was recovered from the

pocket of the appellant and was seized. The witness identified the scissor

Ex.P1 which the complainant had handed over to them as well as the purse

Ex.P2, driving licence Ex.P4 and PAN card Ex.P5.

PW4 Head Constable Ram Kumar corroborated the deposition of

PW2 Constable Ramesh and he also identified the scissor as well as the

purse, PAN card and driving licence of the complainant.

5. In his statement under Section 313 of Cr.P.C., the appellant denied the

allegations against him and claimed to be innocent. He claimed that he had

gone to the house of his in-laws and was playing on the road with children

when police officials took him to police station and implicated him in a false

case.

6. Vide impugned judgement dated 21.11.2009, the appellant was

convicted under Sections 392/397 of IPC and vide impugned Order on

Sentence dated 26.11.2009, he was sentenced to undergo imprisonment for

seven (7) years and pay fine of Rs.2,000/- or to undergo RI for two (2)

months in default.

7. Being aggrieved from his conviction and the sentence awarded to

him, the appellant is before this Court by way of this appeal.

The learned counsel for the appellant has assailed the impunged

judgement primarily on the ground that: (i) no public witness has been

examined by the Investigating Officer though the incident took place in

broad day light at a public place and it has also come in evidence that the

appellant was apprehended by the members of the public, who had also

given beatings to him, (ii) the scissor is not a deadly weapon.

8. There is no reason to disbelieve the complainant Sheikh Ansar. The

appellant does not claim any previous enmity or ill-will between him and the

complainant. Therefore, the complainant had absolutely no reason or

motive to implicate the appellant in a false case. The complainant had

nothing to gain by concocting a story of armed robbery or by implicating an

innocent person in the said robbery. As regards not examining the members

of the public, reluctance of the members of the public to join search

proceedings conducted by the police officers is well-known. No one wants

to take the trouble of visiting firstly the police station and then the courts by

becoming witness in a criminal case, without any advantage to him.

Therefore, no adverse inference against the prosecution can be drawn on

account of the members of the public witnessing the incident not being

examined.

9. The deposition of the complainant leaves no reasonable doubt that the

appellant demanded money from him for taking liquor and when he did not

oblige him (the appellant), the appellant took out a scissor, put it on his

abdomen and threatened the complainant so as to intimidate him to meet his

demand. When the complainant did not oblige him he went to the extent of

taking out his purse which the complainant was carrying which contained

his driving licence, PAN card.

The deposition of PW2 Constable Ramesh and PW4 Head Constable

Ram Kumar also corroborated the deposition of the complainant. The purse

containing cash, driving licence and PAN card was recovered by these

police officials from the pocket of the appellant. There is no explanation

from the appellant as to how the purse of the complainant came to be found

in his pocket. Obviously he had removed it from the possession of the

complainant and kept the same with him before he was apprehended by the

members of the public and later handed over to the police.

10. Coming to the question as to whether the scissor is a deadly weapon

or not, I am in agreement with the learned APP that the sketch Ex.PW2/A

has been prepared putting the scissor on the paper and, therefore, gives

actual size of the scissor. That appears to be the reason why no dimensions

of the scissor have been given in the sketch Ex.PW2/A. A scissor of this

size would certainly be a deadly weapon since if used as a weapon of

offence, particularly at a vital part of the body, it is likely to cause death of

the person to whom the injury is caused. In Crl. A. No.1403/2011 titled

Javed Vs. State (Govt. of NCT of Delhi) decided on 11.7.2012, this Court

rejected the contention that scissor was not a deadly weapon.

11. In these circumstances, the conviction of the appellant under Section

392 of IPC read with Section 397 thereof cannot be faulted. The conviction

is accordingly sustained. Since the substantive sentence awarded to the

appellant is the minimum sentence prescribed under Section 397 of IPC,

there is no scope for its reduction. It is, however, directed that in the event

of failure to deposit fine, the appellant shall undergo SI for fifteen (15) days

as against imprisonment of three (3) months awarded by the trial court.

The appeal stands disposed of.

One copy of this order be sent to the concerned Jail Superintendent

for information and necessary action.

LCR be sent back along with a copy of this order.

APRIL 04, 2014                                              V.K. JAIN, J.
b'nesh/BG