Asif vs State
2014 Latest Caselaw 2558 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Judgment reserved on :15.05.2014.
                                      Judgment delivered on :20.05.2014.

+      CRL.A. 238/2006
       ASIF
                                                            ..... Appellant
                             Through       Mr.Azhar Qayum, Adv.
                             versus
       STATE
                                                             ..... Respondent
                             Through       Mr. Navin K. Jha, APP
+      CRL.A. 240/2006
       NADEEM
                                                             ..... Appellant
                             Through       Mr. M.L. Yadav, Adv.
                             versus
       STATE
                                                             ..... Respondent
                             Through       Mr. Navin K. Jha, APP
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 These are two appeals directed against the impugned judgment

and order of sentence dated 03.04.2006 & 07.04.2006 respectively

wherein appellant Asif and appellant Nadeem have been convicted

under Section 395 read with Section 397 of the IPC besides a separate

conviction under Section 25 of the Arms Act. Accused Asif has been

additionally convicted under Section 412 of the IPC as well. Each of the

appellants has been sentenced to undergo RI for a period of 7 years for

the offence under Section 395 read with Section 397 of the IPC besides

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

6 months; for the offence under Section 25 of the Arms Act, each of

them has been sentenced to undergo RI for a period of 1 year and to pay

a fine of Rs.500/- and in default of payment of fine, to undergo SI for

one month. For the offence under Section 412 of the IPC, the convict

Asif has been sentenced to undergo RI for a period of 1 year and to pay

a fine of Rs.1,000/- and in default of payment of fine, undergo SI for 3

months.

2 The version of the prosecution is that on 18.12.2001 at about

09:45 PM, Jayant Vivek (PW-4) while coming from the side of

Kingsway Camp and going to his hostel room was accosted in front of

the Law Faculty by some persons who were sitting in white Maruti van

which was parked opposite side of the road. One boy was standing

outside the van; he stopped PW-4 on the pretext of asking him way to

the ISBT; meanwhile two boys alighted from maruti van; all of them

snatched one rucksack bag in which he was carrying his ATM card of

HDFC Bank, some books, personal notes and about Rs.3,000- 4,000/-.

On the resistance of PW-4, he was attacked on both his thighs by knife

blow by the person who had stopped him (later on identified as

Nadeem). The accused persons managed to flee.

3 Information was given to the PCR which was recorded in DD

No.68-B (Ex.PW-3/A). The statement of the victim (Ex.PW-4/A) was

recorded. He was medically examined. His MLC (Ex.PW-1/A) was

conducted by Dr. J.N. Chakrobarty (PW-1) noting two incised wounds

of 10 cms X 3 cms over right thigh and 5 cm X 0.5 cm over the left

thigh. The victim was discharged on the same day; the opinion given on

the injuries were 'simple'. PW-4 has corroborated this version and the

contents of his complaint on oath in Court. He has further deposed that

on 18.02.2002, he had gone to Jail No. 4, Tihar where he had identified

Nadeem; he was the same person who had slashed the 'ustara' for the

cut marks upon him. Further deposition of PW-4 being that on

27.02.2002, he had gone to Tis Hazari Court along with his friend where

outside the Court of Mr. Deepak Garg, MM, he had identified Asif as

another of the co-accused who had attacked him on that day; he was

however not sure about the presence of Gulam Mustafa (accordingly

acquitted). Relevant would it be to state that both the accused persons

Asif and Nadeem had been put to TIP through Mr. Ashwani Sarpal

(PW-13).

4 Accused Asif had been arrested on 11.02.2002 by HC Yashpal

(PW-10) along with SI Sunil Srivastava (PW-15) and constable Rakesh

(PW-6); PW-10 had deposed that on the basis of a secret information,

Asif was apprehended; he was having a 'NIKE' made bag and was

wearing a jacket. He had disclosed that this bag related to the case

property of the present FIR. From his right pant pocket, one razor was

recovered. His disclosure statement (Ex.PW-6/E) was recorded and the

books were taken into possession vide memo Ex.PW-6/A. It was in this

disclosure statement that the role of the second accused i.e. Nadeem had

surfaced. On 15.02.2002, Nadeem who had been arrested in another FIR

and was in judicial custody in Tihar Jail had been seen by the

complainant. On a production warrant ordered at the request of PW-15,

accused Nadeem was produced in Court in muffled face. It was on this

date that the TIP was conducted where he was identified by the

complainant. He had given his disclosure statement (Ex.PW-10/A) and

pursuant to his disclosure statement, he led the police party to his house

at D-482, Buland Masjid, Shastri Park and from his house, he had

produced one razor which was lying in a box. This was on 19.02.2002.

This razor was taken into possession vide memo (Ex.PW-10/D).

5 The maruti vehicle number No. HR-29, 4175 had also been

recovered pursuant to the number having been disclosed by Nadeem in

his disclosure statement. The owner of the vehicle Islamuddin (PW-7)

had come into the witness box and had disclosed that this vehicle was

borrowed by the mother of Allauddin (one of the co-accused who since

stood acquitted). This witness was declared hostile on the date when this

vehicle had been borrowed by the mother of Allauddin; PW-7 stating

that this was taken on 12-13.12.2001 and not on 18.12.2001 which is the

date of the incident.

6 The TIP of the case property was conducted by PW-15; the bag

and books which had been seized pursuant to the recovery from Asif had

been identified by the complainant correctly in proceedings Ex.PW-

15/E.

7 On the basis of aforenoted evidence collected by the prosecution,

the accused persons were convicted and sentenced as aforenoted.

8 On behalf of the accused persons, it has been argued that both the

accused persons are innocent; they have been falsely implicated in the

present case. On behalf of accused Asif, arguments have been addressed

by learned amicus-curiae Mr.Azhar Qayum. It is submitted that Asif was

arrested on 11.02.2002 and the bag and the books heavily relied upon by

the prosecution was admittedly recovered from his personal search and

not being a recovery having been effected pursuant to the disclosure

statement of accused Asif, it cannot be read as evidence under Section

27 of the Indian Evidence Act. It is pointed out that Asif had refused

TIP for a valid reason; all along his defence was that he had been shown

to the complainant earlier and this is the reason why he had refused TIP.

No adverse inference can be drawn against him on this count. There is

no evidence to connect Asif with this offence.

9 On behalf of appellant Nadeem arguments have been addressed

by the learned amicus-curiae Mr. M.L. Yadav. It is pointed out that

although Nadeem had been identified in the TIP proceedings yet

admittedly the name of Nadeem had surfaced for the first time only in

the disclosure statement of Asif and this incident was more than two

months old at that point of time; it was only by incident that the

complainant was able to recognize Nadeem as not only is the fact that

the incident is more than two months old but the incident having

occurred at 09:30-09:45 PM and in the winter December month, it is

difficult to believe that there was sufficient light for the complainant to

have retained in memory the features of Nadeem. Even otherwise, the

identity in TIP is only a corroborative piece of evidence; it is not a

substantive evidence. Further submission of the learned counsel being

that the razor which is purported to have been got recovered pursuant to

the disclosure statement of Nadeem is clearly falsely planted for the

reason that even as per the case of the prosecution, he was in judicial

custody on 18.02.2002 when his disclosure statement was recorded and

it would be difficult to believe that the razor which had been used in the

offence more than two months ago was still being kept in secrecy in a

box of his room. Recovery is planted. Benefit of doubt has to accrue in

favour of Nadeem.

10 Arguments have been refuted by the learned APP for the State. It

is pointed out that on no count, does the impugned judgment call for any

interference. Non-joining of TIP leads to drawing of an adverse

inference against Asif. Nadeem had been correctly identified. Further

submission being that the version of the complainant is also fortified by

his MLC (Ex.PW-1/A). Additional submission being that the recovery

of the books and bag which had been identified by PW-4 in the TIP

proceedings is another circumstance against accused Asif.

11 Arguments have been heard. Record has been perused.

12 Both the accused persons have been convicted under Section 395

read with Section 397 of the IPC. For a conviction under Section 397

(which is an individual offence), the weapon must necessarily qualify as

a 'deadly weapon'. Testimony of PW-4 is relevant. He has stated that

when the accused persons accosted him, one out of them had given knife

blows on his thighs. This was the role attributed to Nadeem. No role has

been attributed to co-accused Asif that he had also used deadly weapon.

The conviction of Asif under Section 397 is not legal.

13 Let us now examine the role of Nadeem qua the use of deadly

weapon. Admittedly as per Ex.PW-1/A (the MLC of PW-4), injuries

were on the thighs but they were simple injuries. Victim had been

discharged on the same day. Accused Nadeem had been arrested on

18.02.2002; he was in judicial custody in Tihar in another case at that

point of time. Pursuant to his disclosure statement, he had got recovered

a razor which was kept in a box of his room on the ground floor of his

house. This was on 19.02.2002. This recovery memo has been proved as

Ex.PW-10/D. This document has been attested by HC Yashpal (PW-10).

He does not whisper a word about any recovery having been got

effected at the instance of Nadeem on 19.02.2002. This recovery has

necessarily to be disbelieved. Moreover, the sketch of the knife (Ex.PW-

10/B) shows that the length of the blade was 15.5 cm; this weapon was

never shown to the doctor (PW-1) for obtaining any opinion as to

whether the injuries which had been suffered by the victim (PW-4) had

in fact been caused by this razor. However, this Court need not go any

further into this question as the recovery itself is wholly worthless as the

only attesting witness (PW-10) has not whispered a word about this

recovery.

14 The next question which arises for decision is as to whether in

this background when both the accused persons have admittedly been

arrested two months after the date of the offence, can they be connected

with the crime? Testimony of PW-4 is clear and cogent. He had no

doubt suffered injuries on both of his thighs when he was accosted by

some persons who had come out of a maruti van on 18.12.2001 when he

was returning to his campus room. Asif had been arrested on

11.02.2002. He had refused TIP. His reason for refusal of TIP was that

he had been shown to the complainant earlier. However, this version of

Asif appears to be clearly incorrect and his defence which has been

taken later in time as no such suggestion has been given to PW-4 by the

defence counsel at the time when he was cross-examined. Version of

PW-4 is also clear. It is does not in any manner reflect that the

complainant had ever gone to the police station prior in time in order

that he could have been shown to accused Asif. This is also clear from

the version of the Investigating Officer (PW-15). Thus this defence

sought to be projected by Asif that he had refused TIP for a valid reason

i.e. because he had been shown to the complainant is clearly an

afterthought and is a defence without any merit. Asif having refused TIP

for no cogent reason, this Court is inclined to draw an adverse inference

against him. The books and the bag which were found upon the person

of Asif at the time of his arrest had also been correctly identified by PW-

4 in the TIP proceedings (Ex.PW-15/E). These books and bag which

were found in the personal search (Ex.PW-6/G) of Asif, belonged to the

complainant. This is an additional accentuating circumstance against

Asif.

15 Nadeem was arrested pursuant to the disclosure statement of Asif.

He was in custody on that date. He was arrested on 18.02.2002. It was in

his disclosure statement that the vehicle No. HR-28 4175 was revealed.

It belonged to Islamuddin (PW-7) which has been corroborated by the

version of registration clerk who had been summoned from the transport

authority Ramesh Lal (PW-9). Admittedly even as per the version of

Islamuddin, this vehicle had been borrowed by the mother of Allaudin;

PW-7 has also admitted that Asif and Nadeem were also living in the

same locality along with Allaudin and the house of Allaudin was 15-16

houses away from his house. Police had made inquiries from him 2-3

days after the taking away of his vehicle. The recovery memo (Ex.PW-

7/A) bearing the signatures of PW-7 substantiate that this vehicle which

has been seized had thereafter been returned to PW-7.

16 Although PW-7 is partly hostile yet from his version it is

abundantly clear that this vehicle which was used in the offence i.e. HR-

28 4175 and which number was disclosed in the disclosure statement of

accused Nadeem belonged to PW-7 and it had been borrowed sometime

in the month of December by the mother of Allaudin; accused Asif and

Nadeem were also living in the same locality. Nadeem had also been

correctly identified by PW-4 in the TIP proceeding which were held on

18.02.2002. The complainant even in his complaint had stated that he

was in a position to recognize the accused persons. Nadeem was the

person who had inflicted the injuries on his thighs. Although the

recovery of the razor has been disbelieved by this Court and in the

absence of which conviction of Nadeem cannot be sustained under

Section 397 of the IPC, yet his role is otherwise not free from guilt.

17 Section 397 postulates only the individual act of accused to be

relevant to attract Section 397; this Section is not based on the principle

of constructive or vicarious liability engrafted in Section 34 of the IPC.

18 The observations of the Supreme Court in AIR 2004 SC 1253

Ashfaq Vs. State are relevant:-

"Thus, what is essential to satisfy the word „Uses‟ for the purpose 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 the victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting as the case may by." 19 The legislative mandate prescribes that to convict a person under

Section 397 of the IPC, it must be established as a fact that the weapon

was in fact deadly. In the absence of any such evidence, conviction of

both the appellants under Section 397 of the IPC cannot be sustained. In

view of the above discussion, the accused persons are acquitted of the

charge under Sections 395/397 of the IPC. Both the accused persons are

also acquitted of the offence under Section 25 of the Arms Act. There is

however ample evidence to convict them under Section 394 of the IPC.

Asif is also held guilty of Section 412 of the IPC as the books and bag

belonging to the complainant and identified by him in the TIP

proceedings were admittedly recovered from his person.

20 Accordingly the sentence is also modified. Both the accused

persons having been convicted for the offence under Section 394 of the

IPC, this Court is inclined to interfere in the sentence as the offence

relates to the year 2001 i.e. more than 13 years old; the accused being on

bail since the year 2007; injuries on the person of the victim being

'simple' and he having been discharged on the same day, this Court

thinks it fit to sentence both the accused persons to RI for a period of 3

years. The sentence of fine remains unaltered. Asif is additionally

convicted under Section 412 of the IPC and is sentenced to undergo RI

for a period of one year. Both the sentences of Asif shall run

concurrently. Benefit of Section 428 of the Cr.PC be granted to him.

21 Nominal rolls of both the appellants have been requisitioned.

They reflect that as on date when Asif had been granted bail, he has

suffered incarceration of about 3 years & 17 days including remissions.

Convict Nadeem has also suffered incarceration of more than three years

on the date when he had been granted bail. Accordingly both the

appellants, having undergone the period of sentence imposed upon

them, their bail bonds be cancelled; sureties discharged.

22     Appeals disposed off in the above terms.



                                              INDERMEET KAUR, J
MAY 20, 2014
A