Sehzad @ Nadeem vs State
2014 Latest Caselaw 566 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : 27th January, 2014
                                DECIDED ON : 29th January, 2014

+      CRL.A. 1095/2011

       SEHZAD @ NADEEM
                                                          ..... Appellant
                          Through : Mr.A.J.Bhambhani with Ms.Lakshita
                                   Sethi and Mr.Apurv Chandola,
                                   Advocates.

                          versus

       STATE
                                                       ..... Respondent
                          Through : Mr.M.N.Dudeja, APP for the State.

        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Sehzad @ Nadeem questions the legality and correctness of a

judgment dated 22.04.2010 of learned Additional Sessions Judge in

Sessions Case No.58/2009 arising out of FIR No.88/2009 registered at

Police Station Chandni Mahal by which he was convicted under Section

394/398 IPC. By an order dated 24.04.2010 he was awarded rigorous

imprisonment for seven years with fine `10,000/- under Section 398 IPC.

2. Allegations against the appellant were that on 25.09.2009 at

about 11.00 P.M. at shop No.18, DDA Market, Turkman Gate, Delhi, he

while armed with a deadly weapon attempted to rob complainant

Ikramuddin of `20,000/- and injured him. The complainant declined to

give `20,000/- to the appellant and raised alarm. The police officials on

patrolling duty were able to apprehend and recover a country made pistol

with a live cartridge from appellant's possession. First Information

Report was lodged after recording Ikramuddin's statement (Ex.PW-1/A)

by the Investigating Officer on the night intervening 25-26.09.2009 at

1.10 A.M. Statements of witnesses conversant with the facts were

recorded. After completion of investigation a charge-sheet was filed

against the appellant in the court. The prosecution examined 15 witnesses

to substantiate the charges. In 313 statement, the appellant denied the

allegations and pleaded false implication. He examined DW-1 (Naseem

Akhtar) in defence. On appreciating the evidence and after considering

the rival contention of the parties, the trial court by the impugned

judgment convicted the appellant for the offences mentioned previously.

Being aggrieved, the appeal has been preferred.

3. Appellant's counsel urged that the trial court did not

appreciate the evidence in its proper and true perspective and fell in grave

error in relying upon the testimony of interested witness with whom a

quarrel had taken place and all including the appellant had sustained

injuries. The appellant was falsely implicated in connivance with the

police by the complainant who lived in his neighbourhood. Counsel

pointed out various discrepancies and inconsistencies in the statements of

the prosecution witnesses. PW-1 (Ikramuddin), complainant, was unable

to identify the pistol recovered by the police. PW-3 (Mohd.Imran) turned

hostile and did not support the prosecution on vital facts. The weapon of

offence was not produced before the learned Metropolitan Magistrate at

the time of production of the accused in the court. The MLC does not

record the assailant's name. Learned Additional Public Prosecutor urged

that the trial court has observed demeanor of the witnesses and the

accused who was the Bad Character (BC) of the area and was involved in

many criminal cases. There are no sound reasons to discard the testimony

of the complainant.

4. The occurrence took place at about 11.00 P.M. in the

complainant's shop. First Information Report was lodged in promptitude

at 01.10 A.M. on the same night after recording Ikramuddin's statement

(Ex.PW-1/A). In the complaint Ikramuddin gave detailed account of the

incident and narrated as to how and under what circumstances, the

accused at the point of pistol in his hand attempted to extort `20,000/-

from him on the pretext to get release his brother who was involved in a

criminal case and was confined in jail. When he refused to give money,

he was hit with the 'butt' of the pistol. On his raising alarm, the appellant

tried to flee the spot 'but' was caught hold by the police officials on

patrolling duty. The country made pistol was recovered from his

possession and on opening it, a live cartridge was found in it. While

appearing as PW-1 the complainant proved the version given to the police

at the earliest available opportunity without major variations. He deposed

that on 25.09.2009 at about 11.00 P.M. he along with his friend Imran was

present at his shop No.18, DDA Market, Turkman Gate, Delhi. Accused

Nadeem came at his shop, took out a katta, pointed it at him and asked

him to give `20,000/- for getting his younger brother released. He hit the

katta on his face and caused injury below his right eye. Country made

pistol was recovered vide seizure memo (Ex.PW-1/B). Learned

Additional Public Prosecutor sought permission from the Court to cross-

examine the witness as he could not give details of the incident. In the

cross-examination, he admitted that the appellant's brother who was

confined to jail was Naim. He admitted that when he refused to give

money, the accused hit him with the 'butt' of the pistol. His friend Imran

was also pushed on his intervention. The witness explained that he was

under great tension and was not in a position to tell the measurement of

the weapon recovered. In the cross-examination, he elaborated that the

conversation with Nadeem continued for about 5-10 minutes. He fairly

admitted that Nadeem had not told him as to where the money was to be

delivered. He admitted that he was residing at a short distance from the

appellant's house. The police seized the country made pistol from outside

his shop. Apparently, the appellant was unable to extract any material

discrepancy in the statement of the complainant to disbelieve him. His

testimony on relevant and material facts remained unchallenged and

uncontroverted in the cross-examination. The accused did not deny his

presence at the spot. No ulterior motive was assigned to the complainant

to falsely implicate him as he had no prior animosity with him. In the

absence of ill-will or enmity, the complainant who was running his shop

in the area was not expected to suddenly rope in an innocent in the crime.

The complainant assigned specific motive of the appellant to extort money

from him.

5. PW-3 (Mohd Imran) though did not support the prosecution

in its entirety, nevertheless, corroborated the complainant's version about

the presence of the appellant inside the shop at the relevant time. He also

deposed that the complainant and the appellant had conversation inside

the shop and he had seen them quarrelling. He also deposed about

sustaining of injuries by him and the complainant. In the cross-

examination by Additional Public Prosecutor, he admitted that when

Ikramuddin and he shouted 'Pakro Pakro', the police reached the shop and

apprehended Nadeem. He admitted his signatures on various memos i.e.

Ex.PW1/B and Ex.PW-1/C. The appellant did not put any question in the

cross-examination as to why he had visited the shop of the complainant

without any specific purpose at odd hours. It is settled law that the

evidence of a hostile witness can be relied upon at least to the extent it

supported the case of the prosecution.

6. PW-4 (Const.Ajay Rawat) who was on patrolling duty with

ASI Surender and HC Narender in the area deposed about the

apprehension of the accused with 'desi katta' in his right hand at about

11.00 P.M. He further deposed that when he and HC Narender tried to

apprehend him, he fell down and was apprehended with great difficulty

with the assistance of the complainant- Ikramuddin and his friend Imran.

In the cross-examination, he revealed that they had started patrolling the

area at about 06.00 P.M. No material infirmities could be elicited in his

cross-examination. PW-5 (ASI Surender Singh) corroborated his

testimony on all relevant facts. These police officials had no ulterior

motive to falsely implicate the accused who was involved in number of

other cases.

7. The ocular testimony of the complainant is in consonance

with medical evidence. Soon after the occurrence, they all were taken to

Lok Nayak hospital. MLC (Ex.PW-14/A) records the arrival time of the

patient Ikramuddin as 02.02 A.M. (brought by HC Narender Kumar).

Alleged history records 'assault on 25.09.2009 at 11.00 P.M. as told by

the patient'. The injuries were simple in nature. PW-3 (Imran) was also

examined vide MLC (Ex.PW-14/B) and was taken to Lok Nayak hospital

along with complainant at the same time. It shows his presence with the

complainant at the spot. The accused who had sustained injuries due to

fall was taken to the said hospital at 04.58 A.M. and found to have

suffered simple injuries. The accused did not explain as to how and under

what circumstances, he sustained injuries.

8. Minor discrepancies, contradictions or improvements

highlighted by the appellant's counsel are not very material to affect the

core of the prosecution case. The complainant's testimony inspires

confidence and implicates the appellant without any doubt. The accused

did not give plausible explanation to the incriminating circumstances

proved against him. DW-1 did not lodge any complaint against any police

officials for falsely implicating him in the case. The judgment is based

upon fair appraisal of the evidence and all the relevant contentions have

been dealt with. The findings of the trial court on conviction warrants no

interference. The appellant has been granted minimum sentence of seven

years prescribed under Section 398 IPC which cannot be reduced or

altered. The sentence order records that the appellant was involved in as

many as 21 criminal cases. DD No.32/A furnished by the prosecutor

revealed that even his conduct during trial was violent and he fought with

one Const.Ajay on 20.04.2010. Sentence order requires no modification

except that the default sentence for non-payment of fine of `10,000/- will

be one month instead of six months. Other terms and conditions of the

sentence are left undisturbed.

9. The appeal stands disposed of in the above terms. Trial

Court record be sent back immediately. Copy of the order be sent to

Superintendent Jail for information.

(S.P.GARG) JUDGE JANUARY 29, 2014 sa