Yusuf @ Bindu @ Bashir vs State (Nct Of Delhi)
2014 Latest Caselaw 235 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                                      Date of Decision: 13.01.2014

+                                CRL. A. No.65/2013

ANNISUDDIN @ ANNISH                                                   ..... Appellant
             Through:                    Mr S.B. Dandapani, Adv.

                                              versus

STATE (GOVT. OF NCT OF DELHI)            ..... Respondent
              Through: Mr. Feroz Khan Ghazi, APP.

+                                CRL. A. No.553/2013

YUSUF @ BINDU @ BASHIR                         ..... Appellant
             Through: Ms Inderjeet Sidhu, Adv.

                                              versus

STATE (NCT OF DELHI)                                  ..... Respondent
              Through:                   Mr. Feroz Khan Ghazi, APP.

+                                CRL. A. No.1137/2012

NAFEES                                                          ..... Appellant
                         Through:        Ms Nazima Siddiqui, Adv.

                                              versus

STATE                                                        ..... Respondent
                         Through:        Mr. Feroz Khan Ghazi, APP.


CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                                     JUDGEMENT

V.K.JAIN, J.

On the night intervening 10-11th September, 2006, on receipt of

information from Police Control Room with respect to use of knife in an

incident near MV-I red light on the national highway, SI Rupesh Khatri

of Police Station Mandawali reached the spot, where two home guard

officials, namely, Pankaj and Parikshit produced the appellants Yusuf

and Anisuddin along with a knife stained with blood. The injured

Jitender Singh Bist was stated to have been taken to hospital. When the

Investigating Officer reached Kailash Hospital, the complainant

Sandeep Negi met him there and made a statement Ex.P-1-1/A, alleging

therein that he along with Jitender was going on motorcycle DL7SAB-

3836 towards DDA flat, Ghazipur and the motorcycle was being driven

by Jitender. At about 10.30 PM, when they reached NH-24 near

Khichripur Bridge, the motorcycle was parked by Jitneder on the slip

road, so as to ease himself. When Jitender was easing himself, two boys

came from the side of a stationary Maruti van. One of them was

carrying a country-made pistol which he put on the temple of Jitender

and asked him to handover whatever he had. He thereupon intervened,

asking him to take whatever they had, whereupon the other person took

out a knife, threatened to kill him and removed his Nokia mobile phone,

a purse containing about Rs.50-60/- and some documents from him.

When Jitender refused to handover his articles to the boy carrying knife,

he attacked him with the knife. Jitender, however, kept on resisting him.

In the meanwhile, two more companions of the robbers reached there.

Seeing Jitender being injured, the complainant apprehended the boy

who was carrying knife and raised alarm. In the meanwhile, the boy

who was carrying country-made pistol and another boy fled away from

motorcycle and the members of the public started beating the two

persons who were apprehended on the spot. They were also joined by

two home guard constables. The names of the persons who were

apprehended on the spot were later found to be Yusuf and Anisuddin,

both of whom are appellants before this Court.

2. Thus, the case as set out in the FIR is that four persons were

involved in the incident, out of whom, one person who was carrying a

country-made pistol with him, managed to run away from the spot and

the person who was carrying a knife and had injured Jitender was

apprehended on the spot. One more person who was not armed, namely,

Anisuddin was also apprehended on the spot, whereas the fourth person

also managed to run away.

3. This is also the case of the prosecution that on search of the

appellant Anisuddin on the spot, the purse of the complainant along with

articles contained therein was recovered from him. This is also their

case that during the course of investigation, one of the convicts, namely,

Naseem, who has not challenged the conviction, got recovered the key

of motorcycle belonging to Jitender from his flat in Gali No. 6, Mustafa

Bad, Gokul Puri, Delhi on 21.12.2006. One razor was also alleged to

have been got recovered from Naseem.

4. Charges under Section 395 IPC read with Section 34 thereof were

framed against all the four convicts, whereas charges under Section 397

read with Section 34 thereof were framed against Yusuf and Naseem

and charges under Section 412 read with Section 34 thereof were framed

against Anisuddin and Nafees to which they pleaded not guilty and

claimed trial.

5. The prosecution examined as many as 18 witnesses in support of

its case. No witness was examined in defence. The complainant Sandeep

Negi came in the witness box as PW-1 and stated that on 11.09.2006, he

along with Jitender who was working as a Constable in Delhi police,

was going on the motorcycle being driven by Jitender. At about 10.00

PM when they reached Khichripur Bridge, NH-24, Jitender stopped the

motorcycle, and went aside the road, for easing himself. In the

meanwhile, two boys came there from the side of a stationary Maruti

van. One of them was having a country-made pistol with him. The

person carrying the country-made pistol put it on the temple of Jitender.

When he intervened and volunteered to handover whatever they had, the

other boy took out a knife, put the same on his neck, threatened to kill

him and took out his mobile made of Nokia as well as his purse

containing currency notes of Rs 60/-, his identify card and some other

documents. Those boys tried to take the articles which Jitender was

carrying with him, to which Jitender has objected. The boy who was

carrying the knife with him attacked Jitender, as a result of which

received injuries. In the meanwhile, two other companions of those

boys also reached the spot. According to the complainant, he then came

to the rescue of Jitender and apprehended the boy who was carrying the

knife with him. One of the assailants was apprehended by Jitender. He

raised an alarm and the boy who was having country-made pistol with

him and his other companion fled away from there taking motorcycle of

Jitender with them. The names of the assailants who were apprehended

on the spot were later revealed to be Yusuf and Anisuddin. The witness

identified both Yusuf and Anisuddin in the Court during trial and also

stated that Yusuf was the person who was having knife with him. This

witness also identified the remaining two accused, namely, Nafees and

Naseem as the persons who along with Yusuf and Anisuddin and

committed robbery from their person and claimed that Nafees and

Naseem were the persons who had joined the commission of robbery

later on. He also stated that his purse containing Rs 60/-, his identity

card and some documents were recovered from the possession of

Anisuddin, whereas one knife was found with Yusuf.

6. Jitender, who was injured during commission of the robbery came

in the witness box as PW2 and stated that when they reached near

Khichripur and he was easing himself after parking the motorcycle, one

boy came there, put a countrymade pistol on his head and asked him to

hand over whatever he had with him. He further stated that three-four

more boys came and started beating his brother who was with him at

that time and one of the assailants gave a knife blow in his abdomen.

Thereafter the assailants started pushing him down, whereas he started

pushing them up. In the meanwhile, the person from the public helped

them and apprehended the two persons. In the examination-in-chief,

this witness identified the appellants Yusuf and Nafees as the persons

who were apprehended on the spot but during cross-examination by the

learned Additional Public Prosecutor he admitted that the second person

who apprehended on the spot was Annisuddin and not Nafees who was

earlier wrongly identified by him. He also stated that he could not

identify the other assailants. Thus, finally the appellant-Nafees was not

identified by this witness, who claimed that it was Annisuddin and not

Nafees who along with Yusuf was apprehended on the spot.

7. PW12, P.C. Parikshit, who was working as Constable in Delhi

Home Guard on 11.9.2006 stated that on being informed about a

stabbing incident on the road of NH-24, he along with Constable

Narender of Delhi Home Guard went to the spot and found that the

public had apprehended three persons, whereas two had fled away. He

further stated that the names of the two apprehended persons were

disclosed as Yusuf and Annisuddin, but he was unable to recollect the

name of third person. He further stated that one knife having blood

stain was also recovered from the hand of Yusuf. The other Home

Guard Constable Narender came in the witness box as PW15 and stated

that when he reached the spot they found that the appellant Yusuf and

Annisuddin had been apprehended by the police.

8. Though it has come in the deposition of PW2, Jitender Singh that

3-4 other boys had come to the spot and three out of them had managed

to run away from the spot while two were apprehended on the spot, this

part of his deposition does not inspire confidence for two reasons.

Firstly, the case set out in the FIR is that only four persons were

involved in the incident out of which three were apprehended on the

spot and the remaining two managed to flee away. The second reason

why this part of the deposition of Jitender cannot be accepted is that

according to the complainant Sandeep only four persons were involved

in the incident and the aforesaid witnesses identified all the four in the

Court. Since only four persons were involved in the incident of robbery,

no offence punishable under Section 395 of IPC is made out because a

robbery becomes dacoity only if five or more persons participate in the

robbery.

9. As far as appellant Yusuf is concerned, he was apprehended on

the spot and has been identified by both the eye-witnesses of the

incident, namely, Jitender and Sandeep. There is no contradiction in

their deposition as far as this appellant is concerned. According to

Home Guard Constable, namely, PW12 P.C. Parikshit and PW15

Narender Kumar also he was one of the persons found apprehended by

public and a blood-stained knife was recovered from his possession.

In his statement under Section 313 Cr.P.C., the appellant Yusuf

did not explain his presence on the spot and rather claimed that he was

picked up from his house and implicated in this case. The appellant

does not claim any previous enmity between him on the one hand and

the witnesses Jitender and Sandeep on the other. Therefore, there could

be no reason that either of them to depose falsely against him and

impute commission of robbery to him. The recovery of blood-stained

knife from him on the spot also corroborates depositions of PW1 and

PW2 as regards his involvement in the incident.

10. In Phool Kumar Vs. Delhi Admn. AIR 1975 SC 905 the accused

was carrying a knife in his hand at the time the robbery was committed.

It was found from the deposition of PW-16 that the appellant/accused

Phool Kumar had a knife in his hand. The Hon'ble Supreme Court held

that he was therefore carrying a deadly weapon. In Salim Vs. State

1987 (3) Crimes 794 the Hon'ble High Court of Delhi held that to

categorise knife or to fix its size for it to be a deadly weapon may not be

appropriate. It was held that to say that a knife to be a deadly weapon

should be of a particular size would not be a correct statement. In State

of Maharasthra Vs. Vinayak 1997 Cr.L.J. 3988 Bombay High Court

held that knife is a deadly weapon within the ambit of expression

'deadly weapon' used in section 397 of IPC. Therefore, irrespective of

the size, any knife is a deadly weapon and therefore, accused Rajesh is

liable to be punished under Section 392 of IPC read with Section 397

thereof.

PW1/D is the sketch of the knife recovered from the possession of

the appellant-Yusuf. The knife has a 26.7 cms. long blade and the

length of the handle of the knife is 11.5 cms. This is not a kitchen knife

and it was actually used in the commission of the robbery by causing

injury to Jitender Singh. It can hardly be disputed that a knife having a

blade of 26.7 cms. would be a deadly weapon. The appellant Yusuf,

who not only was carrying it during the commission of robbery, but

actually used it by threatening PW1 and injuring PW2, is, therefore,

clearly guilty of offence punishable under Section 394/397 of IPC.

11. As far as appellant Annisuddin is concerned, the deposition of

PW1 Sandeep Negi and PW2 Jitender, which find corroboration from

the deposition of PW12 P.C. Parikshit and PW15 Narender Kumar

would show that he was also apprehended from the spot along with

appellant Yusuf. Though the case of the prosecution is that the stolen

purse containing identity card, documents and cash belonging to the

complainant was also recovered from his possession, the aforesaid part

of the case of the prosecution appears to be doubtful considering that

according to PW1 Sunil Negi and PW2 Jitender, only two persons were

involved in actual commission of robbery out of whom, one who was

armed with a countrymade pistol had managed to run away. There is no

evidence that the appellant, Yusuf having handed over the purse, which

he had removed from the possession of the complainant to the appellant,

Annisuddin. In fact, considering the manner in which this incident took

place, there was hardly any scope for the appellant Yusuf to hand over

the purse of the complainant to Annisuddin. It would be appropriate to

note here that according to PW1 Sandeep Negi and PW2 Jitender it was

Yusuf who had made the complainant part with his purse. Therefore,

the probability is that the stolen purse of the complainant was recovered

from the possession of Yusuf and not from the possession of

Annisuddin. However, considering that Annisuddin has been

apprehended on the spot, there is no escape from the conclusion that he

was one of the persons who had later joined the two boys who had

committed the actual robbery. The overt act on the part of Annisuddin

in coming to the help of Yusuf and the other culprit, clearly shows that

he shared a common intention with others to commit the robbery of the

articles belonging to complainant and Jitender Singh. The fact that one

of the culprits was also armed with a countrymade pistol and the other

was armed with a knife also shows that the appellant Annisuddin also

shared a common intention with other accused to cause hurt to the

victims in the commission of the robbery.

He cannot be the person carrying a gun with him, because, the

case of the prosecution, as set out in the FIR, is that the person armed

with a pistol had managed to run away. To the same effect is the

deposition of PW1 Sandeep in the Court. Moreover, no weapon was

actually recovered from him and this is not the case of the prosecution

that he had passed on the gun to some other accomplice. The appellant

Annisuddin is, therefore, liable to be convicted under Section 394 of

IPC read with Section 34 thereof.

12. As far as the appellant Nafees is concerned, he has not been

identified by the injured, Jitender, though he has been identified by the

complainant Sandeep. It has also come in the deposition of PW2

Jitender that there was no electric pole near the place of incident which

was somewhat dark. Therefore, it would be difficult to accept that the

witnesses were in a position to identify appellant, Nafees, who

admittedly did not participate in actual commission of robbery and

joined at a later point of time. Had Nafees been one of the persons

involved in the commission of robbery, his name would have been

disclosed by the appellant Yusuf and Annisuddin during interrogation

by the police. Admittedly the name of Nafees was not disclosed either

by Annisuddin or by Yusuf during the course of their interrogation and

he was arrested later, on account of his involvement in some other case

and the case of the prosecution is that when he was interrogated in that

case he disclosed his involvement in the present case as well. In these

circumstances, the appellant Nafees needs to be given benefit of doubt.

13. For the reasons stated hereinabove, the appellant Nafees is

acquitted of the charges framed against him. The appellant, Yusuf, is

convicted under Section 394 read with Section 397 of IPC and is

sentenced to undergo RI for seven (7) years and to pay fine of

Rs.1,000/- or to undergo SI for fifteen (15) days in default. The

appellant Annisuddin is convicted under Section 394 IPC read with

Section 34 thereof and is sentenced to undergo imprisonment of three

(3) years and to pay fine of Rs.1,000/- or to undergo SI for fifteen (15)

days in default. The appellants Yusuf and Annisuddin are entitled to

benefit of Section 428 of the Code of Criminal Procedure.

The appeals stand disposed of accordingly. One copy of the order

be immediately sent to the Jail Superintendent for conveying the same to

the appellants. The Trial Court Record be sent back along with a copy

of this order.

JANUARY 13, 2014                                      V.K. JAIN, J.
BG