Shahid vs The State
2014 Latest Caselaw 1359 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  RESERVED ON : 7th MARCH, 2014
                                  DECIDED ON : 13th MARCH, 2014

+             CRL.A.144/2012 & CRL.M.B.No. 350/2014

       SHAHID                                         ..... Appellant

                         Through :   Mr.Mohd.Shamikh, Advocate.


                         Versus



       THE STATE                                      ..... Respondent

                         Through :   Mr.Lovkesh Sawhney, APP.


       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Shahid (the appellant), Mohd.Imran @ Kanchi, Mohd.Ali @

Babbu, Mohd. Furkan and Kamran @ Chhotu were suspects in case FIR

No. 367/2008 PS Khajuri Khas, Delhi. Allegations against them were that

on 27.12.2008 at about 02.30 A.M. at C-186, Gali No.15, Khajuri Khas,

Delhi, they committed dacoity and deprived the complainant - Kartar

Singh of ` 52,000/- and two gold chains at pistol point. The police

machinery swung into action when information was conveyed regarding

the incident and Daily Diary (DD) No. 33A (Mark-14/PA) was recorded

on 27.12.2008 at PS Khajuri Khas. The investigation was assigned to SI

Rajender Singh who with Const. Brijpal went to the spot. Complainant -

Kartar Singh, owner of the house, produced A-1 along with one desi katta

(country-made pistol) and four empty cartridges. The Investigating

Officer lodged First Information Report after recording Kartar Singh's

statement (Ex.PW-1/A). Joginder Singh who had sustained gunshot

injuries on hand was taken to GTB hospital and medically examined.

Statements of the witnesses conversant with the facts were recorded.

During investigation, A-2 to A-5 were apprehended and arrested. Some

recoveries were effected from their possession. After completion of

investigation, a charge-sheet was submitted against all of them in the

Court; they were duly charged and brought to trial. The prosecution

examined eighteen witnesses to bring home the charges. The accused

persons denied their complicity in the crime and pleaded false implication.

After appreciating the evidence and considering the rival contentions of

the parties, the Trial Court, by the impugned judgment, held A-1 alone to

be the perpetrator of the crime and acquitted A-2 to A-5 of all the charges.

It is significant to note that State did not challenge their acquittal. Being

aggrieved and unsatisfied, the appellant has preferred the appeal.

2. I have heard the learned counsel for the parties and have

examined the record. The occurrence took place at around 02.30 A.M. on

the night intervening 26/27.12.2008. Daily Diary (DD) No. 33A (Mark-

14/PA) was recorded at 02.40 A.M. Victim Joginder was taken to GTB

hospital and MLC (Ex.PW-8/A) records the arrival time of the patient at

03.20 A.M. He was admitted by ASI Ikramuddin of PCR. The First

Information Report was lodged after recording complainant's statement at

06.00 A.M. Apparently, there was no delay in lodging the report with the

police and the First Information Report was registered in promptitude. In

the statement (Ex.PW-1/A), Kartar Singh gave vivid description of the

incident and disclosed how the assailants four in number robbed `

52,000/- and two gold chains from the almirah in the house by using

country-made pistols. He also disclosed that one of the assailants A-1 was

caught at the spot and a country-made pistol was recovered from his

possession. Complainant had no extraneous consideration to fake the

incident of robbery at his residence at odd hours particularly when PW-4

(Joginder Singh) had suffered gunshot injuries and was taken to GTB

Hospital from the spot. PW-8 (Dr.Ravinder Singh) proved the MLC

(Ex.PW-8/A) prepared by Dr.P.K.Gupta which noticed extensive

lacerated injury over left little finger. A-1 was apprehended at the spot

whereas his associates succeeded to flee the spot. They attempted to get

A-1 released and fired at the inmates of the house while retreating from

the spot. A-1 has not denied his apprehension at the spot at the relevant

time and admitted it in 313 statement. He, however, did not give plausible

explanation for his presence at the spot at odd hours. In 313 statement, he

alleged that on the day of incident, he had gone to meet one muslim lady

who resided in the adjoining house of the place of occurrence and when

he was coming out of her house, due to mistake, he was apprehended by

the complainant. A-1 did not give detailed particulars of the muslim lady

to whom he had gone to see. She was not examined in defence to

substantiate his version. A-1 did not explain the purpose of her visit to the

muslim lady at odd hours. In the cross-examination of PW-1 (Kartar

Singh), no such plea was set up. Rather an inconsistent suggestion was put

that A-1 was crossing the road on the said date and time and went to the

spot after hearing hue and cry. The defence inspires no confidence and

deserves outright rejection particularly when A-1 was identified by the

complainant as one of the assailants who committed robbery at the house.

3. Recovery of the country-made pistol with live cartridges

from A-1's possession is however doubtful and suspect. No cogent

evidence has come on record to establish that at the time of his

apprehension, he was armed with any such country-made pistol and live

cartridges. Prosecution witnesses have given conflicting statements in this

regard. PW-1 (Kartar Singh) did not claim that he recovered the country-

made pistol and live cartridges from A-1 and handed over to the

Investigating Officer. He did not claim if A-1 had put pistol at him or

fired any bullet. He was confronted with the statements (Ex.PW-1/A and

Ex.PW-1/DA) where there was not mention that A-1 was found in

possession of a country-made pistol and four cartridges. In the cross-

examination, he disclosed that A-1 was apprehended by his son Narender.

PW-2 (Narender Kumar) deposed that a katta was lying at the place where

his brother Joginder had hit A-1 with base-ball bat. One live cartridge was

recovered from the katta which had fallen from the possession of A-1.

This inconsistency has not been explained by the prosecution. He was

unable to identify the katta and cartridges recovered from A-1. In the

cross-examination, he categorically admitted that A-1 was not armed

when he was apprehended. He also did not claim that A-1 was in

possession of the country-made pistol and the cartridges when his custody

was handed over to the police. PW-3 (Raj Kumar @ Raju) completely

denied to have witnessed the incident. Cross-examination by learned

Addl. Public Prosecutor with the leave of the Court did not yield any

fruitful result. PW-4 (Joginder Singh) stated that the assailant who had

fallen was apprehended by his brother and came to know that A-1 was in

possession of a country-made pistol. He was unable to identify the katta

produced in the Court. PW-6 (ASI Ikramuddin) from PCR who went to

the spot on getting information about the incident stated that the assailant

who was apprehended by the public was being given beatings. He did not

state that A-1 was in possession of any arm at that time. Since there were

number of other assailants who were armed with various weapons and

who succeeded to flee the spot, it cannot be inferred with certainty that the

country-made pistol and live cartridges recovered in this case from the

spot were in possession of A-1 or that it was used by him. In view of

conflicting statements of the witnesses and contradictory versions narrated

by them, conviction of A-1 under Sections 25/27 Arms Act cannot be

sustained and is set aside.

4. The prosecution witnesses have given divergent version as to

the total number of assailants who participated in the robbery. In the

(Ex.PW-1/A) given to the police at the earliest point of time, the

complainant - Kartar Singh gave the number of assailants only four. He

attributed specific role to them. In his Court statement as PW-1, initially

his version was that there were four assailants who entered inside his

room and two of them put country-made pistols on his temple. He

subsequently disclosed that there were five assailants and one of them had

not entered inside the house and remained outside. The complainant did

not explain as to why there was no mention of fifth assailant in his

statement (Ex.PW-1/A). He did not elaborate as to when he came to know

about the presence of the fifth assailant outside the house. No

supplementary statement to that effect is stated to have been recorded.

PW-2 (Narender Kumar) whose testimony is full of contradictions gave a

contradictory statement that five assailants entered into his room and one

of them pointed a country-made pistol at him and the other put the katta

on the temple of his mother. He did not corroborate PW-1's version that

four assailants had committed trespass and one of the assailants had

remained outside the house. He was confronted with the statement

(Ex.PW-2/DA) where there was no mention that five persons had entered

into the room. PW-4 (Joginder Singh) woke up on hearing the noise of his

father Kartar Singh. As per his testimony, he saw 5 - 6 persons in the

gallery. He was unable to identify even A-1 and pointed at Mohd. Ali, the

co-accused, to have been apprehended at the spot. He was also confronted

with the statement (Ex.PW-4/DA) where there was no mention that he

saw 5 - 6 persons in the gallery. During investigation, on the basis of

disclosure statement by A-1, the police arrested A-2 to A-5 as the

associates / assailants who joined A-1 in committing dacoity. However,

for the detailed reasons in the impugned judgment A-2 to A-5 were

acquitted of the charges. Only A-1 who was apprehended at the spot was

found guilty of committing dacoity. Since there is variance as to the exact

number of assailants and their identity could not be established, it would

not be safe to convict A-1 for the commission of offence of dacoity where

the minimum number of assailants is required to be five. Conviction under

Section 395 IPC thus cannot be sustained. PW-4 (Joginder Singh)

sustained gunshot injuries when the assailants were retreating with the

robbed articles. MLC (Ex.PW-8/A) is in consonance with ocular

testimony. Section 394 IPC speaks of two distinct classes of persons -

those who actually cause hurt and those who do not but are jointly

concerned with the commission of robbery. The guilty act of one is

imputed to all who are joint with him. The offence proved against A-1 is

under Section 394 IPC for which he is liable to be punished.

5. In the light of above discussion while convicting A-1 under

Section 394 IPC, conviction under Sections 25/27 Arms Act and under

Section 395 IPC is set aside. Coming to the sentence order, A-1 was

awarded RI for ten years with fine ` 20,000/- under Section 395 IPC; one

year with fine ` 1,000/- under Section 25 Arms Act; three years with fine

` 5,000/- under Section 27 Arms Act. All the sentences were to operate

consecutively. Nominal roll dated 25.09.2013 reveals that A-1 has

suffered incarceration for four years, eight months and twenty eight days

besides remission for eight months and ten days as on 25.09.2013. It

further reveals that he is not a previous convict though he is involved in

one case ST No. 219/06, FIR No. 1625/05 under Sections 307/302 IPC PS

Hasanpur, UP. His overall jail conduct is satisfactory. Considering all the

circumstances, the sentence order is modified and A-1 is sentenced to

undergo RI for seven years with fine ` 20,000/- under Section 394 IPC

and failing to pay the fine to undergo SI for three months.

6. The appeal stands disposed of in the above terms. Pending

application also stands disposed of. Trial Court record be sent back

immediately with the copy of the order. A copy of the order be sent to

Superintendent jail for information.

(S.P.GARG) JUDGE MARCH 13, 2014/tr