Hanif vs State
2014 Latest Caselaw 3254 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Judgment reserved on :17.07.2014.
                                      Judgment delivered on : 22.07.2014.

+      CRL.A. 388/2006
       HANIF
                                                             ..... Appellant
                             Through        Mr.Riaz Mohd, Adv.
                             versus
       STATE                                           ..... Respondent
                             Through        Mr. Varun Goswami, APP
+      CRL.A. 540/2006
       SANJAY KUMAR
                                                             ..... Appellant
                             Through        Mr.Mayank Goel, Adv.
                             versus
       STATE                                           ..... Respondent
                             Through        Mr. Varun Goswami, APP
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 There are two appellants before this Court i.e. Sanjay and Hanif.

They are both aggrieved by the impugned judgment and order of

sentence both dated 10.05.2006 wherein appellant Sanjay has been

convicted under Sections 392/34 read with Section 397 of the IPC and

Section 25 read with Section 27 of the Arms Act. He has been sentenced

to undergo RI for a period of seven years and to pay a fine of Rs.5,000/-

and in default of payment of fine to undergo SI for two months for the

offence under Section 397 of the IPC. For the offence under Section 25

of the Arms Act, he has been sentenced to undergo RI for a period of

three years. For the offence under Section 27 of the Arms Act, he has

been sentenced to undergo RI for a period of three years and to pay a

fine of Rs.2,000/- and in default of payment of fine to undergo SI for a

period of one month. Appellant Hanif has been convicted under Section

392/34 of the IPC. He has been sentenced to undergo RI for a period of

five years and to pay a fine of Rs.5,000/- and in default of payment of

fine to undergo SI for two months.

2 The version of the prosecution is that on 29.08.2000 at about

07:00 pm at the first floor of premises No. 152, Kucha Ghassi Ram,

Fatehpuri, Delhi, both the accused persons along with their other

accomplices had committed dacoity and had taken away Rs.20,000/-

from the complainant Parkash Ram Bhai (PW-3) and Gulab Bhai (PW-

6) by theft. This incident was witnessed by the brother of PW-3

Devender (PW-5) who was on the second floor and he had witnessed

this incident through the CCTV. He had in fact raised the alarm. People

had gathered there and two of the accused had been apprehended at the

spot. They are the appellants before this Court. From appellant Sanjay,

desi katta along with one live cartridge was recovered. The bag

containing the stolen amount of Rs.20,000/- was recovered from the

possession of Hanif.

3 On behalf of the appellants, arguments have been addressed in

detail by Mr. Mayank Goel and Mr. Riaz Mohammad, Advocates. On

behalf of appellant Sanjay, it has been pointed out that the testimony of

PW-3, PW-5 and PW-6 are full of inherent contradictions and there are

substantial improvements made by the aforenoted alleged eye-witnesses;

wherein PW-3 has stated that the two boys had entered the first floor

and three boys had entered later on. PW-5 had spoken only of two

persons. He had allegedly witnessed this incident on CCTV. The CCTV

footage had not been produced. The pistol and cartridge also could not

be identified by PW-3. The contradictions and improvements pointed

out by the learned counsel for appellant Sanjay have also been detailed

in the written submissions filed by him. They are largely to the effect

that PW-3 was tutored and in his version on oath in Court, there are

improvements qua his version recorded by the Investigating Officer

under Section 161 of the Cr.PC. This Court has noted these

improvements which have been pointed out by the learned counsel for

appellant Sanjay in detail in para 4.7. This embroidery which has been

added to the version of PW-3 can in no manner be said to be

improvements which go to the root of the case. It would not tarnish his

otherwise credible testimony; on oath in Court, PW-3 has stated that on

the packet of currency, there was a stamp of firm Bharat Kumar Praveen

Kumar which did not find mention in his statement recorded under

Section 161 of the Cr.PC. In his statement under Section 161 of the

Cr.PC, he has stated that the revolver had been kept on his head whereas

on oath in Court he has stated that the revolver was shown to him. At

the cost of repetition, this version on oath in Court of PW-3 can in no

manner be said to be improvements which could cast any suspicion on

his honest narration.

4 On behalf of appellant Hanif, learned counsel has not assailed the

conviction of the appellant; his submission is that he has been sentenced

to undergo RI for a period of five years; he has already undergone

incarceration of about 3 years and 6 months; he was 24 years of age on

the date of the offence; the offence relates to the year 2000; more than

one decade has passed; the appellant in this intervening period has got

married and he also has a family to support and sending him back to the

judicial custody would be a grave injustice.

5 Learned APP has refuted these submissions addressed on behalf

of the appellants. It is stated that in no manner can it said that the

conviction of appellant Sanjay under Section 397 of the IPC calls for an

interference as all the ingredients of the aforenoted provision of law

stand fulfilled. It is pointed out that it is an admitted position that desi

katta has been recovered from the possession of appellant Sanjay and

merely because the complainant could not identify this desi katta at the

time when it was shown to him on oath in Court will not take away the

fact that it was recovered from the appellant Sanjay who had been

arrested from the spot. Attention has been drawn to the version of SI

Dharampal (PW-14) who had arrested the appellants and who had also

proved the factum of arrest of Sanjay from the spot along with desi

katta. Reliance has been placed upon (2011) 10 SCC 158 Takdir

Samsuddin Sheikh Vs. State of Gujarat & Anr. to support the submission

that minor contradictions in the version of the witness which are trivial

in nature are not fatal to the case of the prosecution. Further version

being that even on the point of sentence where the offence has been

proved, the minimum sentence cannot be interfered with as in this case

Section 397 specifically postulates that the minimum sentence will be

seven years RI. This is qua the role of Sanjay. Qua the role of Hanif, it

has been pointed out that no leniency can be afforded to him also.

6 Arguments have been heard. Record has been perused.

7 Parkash Ram Bhai (PW-3) was the complainant. He has on oath

deposed that on 29.08.2000, he had come from office along with cash of

Rs.20,000/- and he had entered his house on the first floor of 152,

Kuchha Ghasi Ram. This was in the evening at 06:00 pm. He put the

cash in the Almirah. Both the wads of Rs.100/- denomination had a

stamp of Bharat Kumar and Parveen Kumar. He thereafter went to the

second floor to meet his brother Devender (PW-5). He came down to the

first floor at 07:00 pm. He saw two boys coming on the first floor, one

has a pistol and other was holding a bag; one of the two boys put a

revolver to his head. Three more persons entered his house. His

colleague Gulab Bhai (PW-6) who was also sitting in the room was

lifted from his seat; one of those three boys put a pistol to his head. Cash

of Rs.20,000/- was taken out from the Almirah where he put it.

Meanwhile Devender (PW-5) who was on the second floor and was

watching the CCTV pushed the alarm button. People gathered there.

Accused Sanjay and Hanif were caught at the spot. Other three persons

fled from the spot. Sanjay had one pistol with one live cartridge.

Rs.20,000/- was also recovered from accused Hanif. Sketches of the desi

katta and other documents were prepared.

8 In his cross-examination, he had stuck to his stand. He was

confronted with the improvements which have been recorded in his

statement recorded under Section 161 of the Cr.PC and as noted in the

arguments of learned counsel for appellant Sanjay. These so called

improvements can in no manner be said to be vital enough to effect the

credibility of the witness.

9 The brother of the complainant, Devender, has been examined as

PW-5. He admitted that the police remained at the spot for about two

hours. He admitted that the CCTV was installed on the second floor in

order that the happenings on the first floor could be viewed; this camera

was installed in the room near the second floor; the same was not seized

by the police; he denied the suggestion that there was no CCTV in the

second floor.

10 Gulab Bhai, the colleague of PW-3 who was also present at the

spot and was the eye-witness was examined as PW-6. He was working

with PW-3 in his shop. He has also reiterated the version of PW-3 on

oath in Court. He has deposed that on the fateful day at about 07:00 PM,

two persons entered the first floor; he was sitting on the gaddi; PW-3

was doing the dhoopbatti (prayer); one of the two boys put a revolver to

the temple of PW-3. PW-5 was also threatened. Meanwhile, three more

boys came inside the room. PW-5 had categorically stated that Sanjay

was the person who had put the revolver to the temple of PW-3. He

could not identify the other three persons who had entered the room.

11 PW-6 was also subjected to a lengthy cross-examination. He also

stuck to his stand. He was not shaken in his cross-examination.

12 Devender PW-5 was the brother of PW-3 who was viewing the

CCTV footage on the first floor. He has fully corroborated the version

of PW-3 and PW-6. In his version on oath in Court, he stated that he

was on the second floor at the time of the incident. He saw on CCTV

two persons entering the first floor and he came down stairs. Hanif was

apprehended and from the bag in his possession, Rs.20,000/- were

recovered. Sanjay was having a pistol. He had on the CCTV seen both

PW-3 and PW-5 being threatened by the aforenoted persons before the

other three entered the room. He was also subjected to a lengthy cross-

examination. He denied the suggestion that he had not seen anything on

CCTV. Relevant would it be to point out that no suggestion has been

given to this witness that there was in fact no CCTV installed on the

second floor which was the suggestion given to PW-3.

13 These witnesses were the star witnesses of the prosecution.

Nothing has been elicited either in their examination-in-chief or in their

cross-examination which could create any suspicion on their version.

There was also no reason for false implication of the accused. At the

cost of repetition, it is noted that both the appellants were apprehended

at the spot.

14 SI Dharampal (PW-14) had arrested the accused. He was at the

relevant time posted at PS Lahori Gate. He was along with SI Shailender

and constable Ramesh on patrolling duty; at about 07:05 pm they

received an information that a dacoity had taken place at Kuchha Ghasi

Ram. SHO of PS Lahori Gate was informed. PW-14 reached the spot.

He saw that shutter of the shop was bolted from outside. On opening the

shutter, PW-14 overpowered Sanjay who was holding a katta in his

hand. Accused Hanif who had a thaila containing robbed amount of

Rs.20,000/- was also overpowered by ASI Rajeshwar. Accused persons

were arrested and the aforenoted property i.e. desi katta and the bag

containing the money were taken into possession.

15 The role attributed to Sanjay is clear and categorical. Evidence led

by the prosecution clearly deciphers that it was Sanjay who had put desi

katta on the temple of PW-3. This has been reiterated by both the eye-

witnesses i.e. PW-3 and PW-6 as also by PW-5 who had viewed this

incident on CCTV. The fact that Sanjay was apprehended at the spot is

further corroborated by the version of PW-14. The documentary

evidence to this effect which is the arrest memo and the seizure of the

desi katta (Ex.PW-3/B) and the preparation of its sketch (Ex.PW-3/A)

have also been proved.

16 Ingredients of offence under Section 397 of the IPC which

necessarily entail the use of a deadly weapon at the time of committing

dacoity or robbery stood established. Admittedly there were five persons

at the time of committing crime. As noted supra, out of five persons, two

are the appellants before this Court. The other co-accused namely Ashok

has been awarded sentence already undergone by him by the trial Court.

The other co-accused Satbir also stands acquitted. Accused Ishwar has

expired during the trial. There is no quarrel to this proposition that the

weapon of offence which was recovered from the appellant and which

was a desi katta is a deadly weapon within the meaning of Section 397

of the IPC. No such argument has also been advanced before this Court.

17 Thus the ingredients of offence which is the use of deadly weapon

coupled with the attempt to cause a grievous hurt upon the victim stood

established. It is not necessary that the weapon should actually be used.

The offender being armed with a deadly weapon and which was capable

of creating terror in the mind of the victim would establish the

ingredients of the aforenoted offence. This has been held by the Apex

Court in AIR 2004 SC 1253 Ashfaq Vs. State.

18 Relevant extract of the said judgment reads herein as under:-

"Thus, what is essential to satisfy the word "Uses" for the purposes of Section 397 IPC is the robbery being committed by an offender who was armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in the mind of victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting, as the case may be."

19 The submission of the learned counsel for the appellant that

Section 397 of the IPC can be diluted to Section 392 holds no water.

The use of deadly weapon by Sanjay stood established by oral and

documentary evidence i.e. by the versions of PW-3, PW-5 and PW-6

coupled with the recovery of weapon after the arrest of Sanjay from the

spot and the documents to this effect i.e. arrest memo, sketch of desi

katta (Ex.PW-3/A) and its seizure memo (Ex.PW-3/B).

20 The offence under Section 397 of the IPC imposes a minimum

sentence of seven years RI. Learned counsel for the appellant Sanjay

fairly concedes that there is no judgment to his knowledge where less

than the minimum sentence has been awarded for a conviction under

Section 397. The nominal roll of the appellant Sanjay reflects that as on

date, he has suffered incarceration of about 3 years and 9 months. The

appellant has a family to support; this circumstance has been taken into

account but this Court is left with no option but to send him back to

custody while upholding the conviction of the appellant as there was a

minimum sentence engrafted by the legislature for a conviction under

Section 397 of the IPC.

21 The appeal of Sanjay is dismissed. He is on bail. He be taken into

custody to serve the remaining sentence.

22 Appellant Hanif has a different role. As noted supra, he has been

convicted for the offence under Section 392/34 of the IPC. He has been

sentenced to undergo RI for a period of five years. On merits, learned

counsel for the appellant has not challenged his conviction. He has

prayed for leniency in the sentence. As on the date, when he had been

granted bail, he has suffered incarceration of about 3 years and 6

months. He was present at the time of hearing. He had been queried by

this Court. He was 25 years of age on the date of the offence. He has

since got married. He has a family and three children all of whom are

minor. He is in his early thirties.

23 Keeping in view the period of incarceration already suffered by

the appellant Hanif, this Court in its discretion thinks it fit to release him

on the period already undergone by him. The period of sentence already

undergone by him would be the sentenced imposed upon him. His bail

bond stands canceled. Surety discharged.

24 Appeal of Hanif is also disposed of in the above terms.

INDERMEET KAUR, J JULY 22, 2014

A