Sanwar @ Razzak vs State
2014 Latest Caselaw 868 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 RESERVED ON : February 04, 2014
                                 DECIDED ON : February 17, 2014

+                             CRL.A. 1579/2011

       SANWAR @ RAZZAK                                  ..... Appellant
                   Through :           Mr.Sanjay Kumar, Advocate.

                          VERSUS
       STATE                                               ..... Respondent
                          Through :    Mr.Lovkesh Sawhney, APP.
                                       SI Jaibir, PS Alipur.

        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. This appeal has been preferred by Sanwar @ Razzak to

challenge the legality of a judgment dated 15.11.2011 in Sessions Case

No. 60/08 arising out of FIR No. 72/08 registered at Police Station Alipur

by which he and his associates were held perpetrators of the crime under

Section 395/398 IPC. The appellant was also convicted under Section 27

Arms Act. By an order dated 19.11.2011, he was awarded RI for eight

years with fine ` 2,000/- under Section 395/398 IPC and RI for three years

under Section 27 Arms Act. Both the sentences were to run concurrently.

2. The prosecution case in brief as projected in the charge-sheet

was that on the night intervening 03/04.04.2008, Sanjeev Kumar (PW-1)

security guard was deputed outside the godown of East India Transport

Company located at the Theke Wali gali, Alipur, Delhi and was on duty

from 08.00 p.m. to 08.00 a.m. (next morning). At around 02.15 a.m.,

when he was taking round of the godown, he saw two tempos parked near

the shutter. When he put on the torch, he saw four individuals trying to

open it. On being challenged, three more individuals got down from the

tempos; they were armed with swords, iron rod and knives and threatened

him to run away. He raised alarm 'daku-daku' and ran away towards the

back side. However, two of the assailants caught hold of him after chase

and attacked him. Other miscreants also attacked him with a knife, which

struck him on his left thigh and blood started oozing out. In the

meanwhile, two police/beat officers arrived there on a motorcycle. On

seeing them, the assailants fled the spot and ran towards G.T.Karnal Road.

At Singhu Border, those tempos were stopped after chase and four

accused persons after alighting from the tempo started running away; they

were overpowered and apprehended. The appellant (Sanwar @ Razzak)

was one of them and was caught with a knife along with Amzad Khan,

Sheikh Sharaft and Imran @ Rikki. Two tempos bearing registration

No.HR55-D-0508 & UP14-AE-9143 were seized. The investigating

officer lodged First Information Report after recording statement of the

complainant-Sanjeev Kumar. During investigation, statements of the

witnesses conversant with the facts were recorded and a charge-sheet was

submitted under Section 395/397/398 IPC read with Section 25/27 Arms

Act. Subsequently, Sikandar @ Raja and Jan [email protected] Bhola were also

arrested and supplementary charge-sheet was filed against them. All of

them were duly charged and brought to trial for committing offences

under Sections 395/397/398 IPC. The prosecution examined seventeen

witnesses to substantiate their charges. In 313 statements, the accused

persons pleaded false implication. After considering the rival contentions

of the parties, the Trial Court by the impugned judgment convicted

Amzad Khan, Imran @ Rikki, Sheikh Sharafat and Sanwar @ Razzak (the

appellant) and acquitted Sikandar @ Raja and Jaan Mohd. of all the

charges. It is pertinent to note that the State did not challenge their

acquittal.

3. Conviction of the appellant is based upon the sole testimony

of the complainant-Sanjeev Kumar (PW-1) who identified him in the

court as one of the assailants having a knife at the spot. When he

challenged the assailants, he was inflicted injury by the appellant by a

knife on the thigh. He further deposed that after chase on motorcycle, the

accused amongst others was apprehended at Singhu Border and his

statement (Ex.PW-1/A) was recorded. Knife recovered from the appellant

was seized. Similar is the testimony of the police witnesses. The

complainant who had no prior animosity with the appellant had no ulterior

motive to falsely identify and implicate him. The complainant had no

reasons to let the real culprit go scot free. The victim had sustained

injuries and was taken to Satyavadi Raja Harish Chander hospital, Narela.

MLC (Ex.PW11/A) was prepared and injuries were opined 'simple caused

by sharp weapon.' PW-3 (Dr.Ved Pal) Indrawati Poly clinic, Khasra

No.1734, Alipur, Delhi, examined the patient at first instance at around

06.40 p.m. brought by Const.Bhopal Singh with the alleged history of 'a

sharp injury by knife on the knee joint and left thigh'. After providing

first aid, he referred the patient to a government hospital. The history of

the said patient recorded in Ex.PW3/A was in his writing. PW-11

(Dr.Rajesh Kumar) medically examined the complainant-Sanjeev Kumar

and prepared MLC (Ex.PW-11/A). The testimony of the injured

witness cannot be discarded without cogent reasons. Recovery of tempos

from the possession of the assailants further connects him with the crime.

The accused did not give specific explanation for his presence at odd

hours with tempos at the spot.

4. The prosecution was able to establish that the appellant and

his associates arrived at the spot in tempos while armed with various

weapons. When they were found endeavouring to break into the godown,

Complainant-Sanjeev Kumar (PW-1) challenged and prevented them from

doing so. On that, the complainant was assaulted and injured. Even if the

prosecution case is taken on its face value, ingredients of 395/397/398 for

which the appellant and his associates were charged, are not attracted or

proved. In the cross-examination, the complainant admitted that no 'theft'

had taken place and nothing was taken away by the culprits. He also

admitted that no cutting material like hammer or any other thing which

could cut the shutter was found or recovered. He volunteered to add that

the assailants were found present near the shutter and were trying to open

it. The locks were not broken and were intact. He further admitted that

there were no marks of hammer on the shutter. Apparently, it was a mere

preparation or at the most an attempt to commit house-breaking with an

intention to commit theft in which they did not succeed. They did not

command the complainant to hand over any valuable property at the point

of knife or any other deadly weapon. They simply caused injuries when

he dared to challenge them to foil their plan. Needless to say, violence or

hurt was entirely unconnected with the offence of theft. Where no force or

show of force is found to have been used in the committing of the theft,

the offence of robbery/decoity cannot be said to have been committed. In

the present case, the prosecution was unable to establish commission of

theft or robbery as no movable property was taken out of the possession of

the complainant. No property was delivered to the assailants by the

complainant under fear of instant hurt etc. If no property is carried off,

there is no decoity. The essentials of the offence of decoity are that the

theft should be perpetrated by means of either of actual violence or of

threatened violence which are lacking in the instant case.

5. The conviction of the appellant under Section 395/398 IPC is

not permissible; cannot be sustained and is set aside. Nominal roll dated

31.01.2014 reveals that the appellant has undergone five years, eight

months and twenty days incarceration besides earning remission for nine

months and twenty two days. Since the appellant has already undergone

substantial period of substantive sentence for the offences for which he

was not legally required to be charged, no further sentence is required to

be awarded to the appellant for the offences under Section 379 read with

Section 511 IPC and Section 324 IPC proved against him.

6. Appeal is disposed with the direction to set the appellant-

Sanwar @ Razzak at liberty forthwith, if not required to be detained in

any other case.

7. Trial Court record along with a copy of this order be sent

back forthwith. A copy of the order be sent to Jail Superintendent, Tihar

Jail for intimation.

(S.P.GARG) JUDGE February 17, 2014 sa