Abdul Gani @ Gini vs State Govt. Of Nct Of Delhi
2014 Latest Caselaw 4973 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of Decision: 1st October, 2014

+       CRL.A. 262/2013
        ABDUL GANI @ GINI                                       ..... Appellant
                        Through:             Mr. M.L. Yadav, Advocate

                                versus

        STATE GOVT. OF NCT OF DELHI                     ..... Respondent
                        Through:    Mr. M.N. Dudeja, Additional Public
                                    Prosecutor for the State along with SI
                                    Kamlesh Kumar Police Station Vivek
                                    Vihar

+       CRL.A. 638/2013
        RITESH @ PANDEY @ NITU                                   ..... Appellant
                        Through:             Mr. Ankur Sood and Mr. Shoumender
                                             Mukherji, Advocates

                                Versus

        STATE (GOVT. OF NCT OF DELHI)                  ..... Respondent
                         Through:  Mr. M.N. Dudeja, Additional Public
                                   Prosecutor for the State along with SI
                                   Kamlesh Kumar, Police Station Vivek
                                   Vihar.

+       CRL.A. 326/2013
        SUNIL @ BABLU @ BALU @ RAHUL              ..... Appellant
                        Through: Ms. Nandita Rao & Ms. Srilina Roy,
                                 Advocates

                                Versus

        STATE                                                    ..... Respondent
                                Through:     Mr. M.N. Dudeja, Additional Public
                                             Prosecutor for the State along with SI
                                             Kamlesh Kumar Police Station Vivek
                                             Vihar.

%



Crl. A. No.262/2013,638/2013 & 326/2013                                   Page 1 of 32
 CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

                                JUDGMENT

: SUNITA GUPTA, J.

1. Vide this common judgment, I shall dispose of three Criminal

appeals bearing No.262/2013, 326/2013 and 638/2013 as all the appeals

have been filed challenging the judgment dated 5 th November, 2012 and

order on sentence dated 7th November, 2012 passed by the learned

Additional Sessions Judge in Sessions Case No.94/2011 arising out of FIR

208/2011 under Section 392/397/452/34 IPC registered with Police Station

Vivek Vihar.

2. Prosecution case succinctly stated is as follows:-

On 12th July, 2011 at about 11:20 AM, accused Ritesh @ Pandey,

Abdul Gani and Sunil came at the house of complainant at Jwala Nagar

and took him inside the godown at ground floor of his house. Accused

Abdul Gani caught him, accused Ritesh Pandey put revolver at him and

accused Sunil took out Rs.3750/- and PAN Card from the pocket of the

complainant. In the meanwhile, Satish s/o complainant reached outside the

godown and saw accused robbing his father and raised alarm. Accused

Sunil @ Bablu managed to run away but accused Ritesh @ Pandey and

Abdul Gani were apprehended by the complainant and his son with the

help of public. They were beaten by the public. Police was informed who

reached the spot. Accused Abdul Gani and Ritesh Pandey were handed

over to the police. On the formal search of accused Abdul Gani, two live

cartridges were recovered from the right pocket of his pant and on formal

search of accused Ritesh @ Pandey, a country made revolver was

recovered from his right dub. On the statement of the complainant, FIR

under Section 452/392/397/34 IPC and under Section 27/54/59 of Arms

Act was registered. During investigation, vide D.D. No. 22A dated 12th

July, 2011, it was informed that accused Sunil @ Bablu was apprehended

with illicit Gaanja and Rs.3550/- and PAN Card of complainant were

recovered from his possession. He was arrested in this case. After

completing investigation, charge sheet was submitted against the accused

persons.

3. After the case was committed to the Court of Sessions, charge under

Section 452/392/34 IPC r/w Section 397 IPC was framed against all the

accused. Separate charge under Section 25/54/59 Arms Act against

accused Abdul Gani, u/s 25/27/54/59 Arms Act against accused Ritesh @

Pandey and under Section 411 IPC against accused Sunil @ Bablu were

framed.

4. In order to substantiate its case, prosecution examined 9 witnesses.

All the incriminating evidence was put to the accused persons while

recording their statement under Section 313 Cr.P.C. wherein they denied

the case of prosecution and alleged their false implication.

5. According to accused Ritesh, he was lifted from DLF, Bhopura,

Sahibabad and was brought to police Station Vivek Vihar. Accused Abdul

Gani and Sunil were already present in the police station. He was severely

beaten by the police both at the police station as well as at the spot of

alleged occurrence. Accused Abdul Gani also pleaded that he was not

present at the spot. Nothing was recovered from his possession and the

same was planted upon him by the police to falsely implicate him in this

case. Accused Sunil took a plea that on 11th July, 2011, he had gone to

Court No. 27 for filing an application for release of his jamatalashi. Some

police officials in plain clothes, who were known to him as they had

involved him in previous case also, took him at the gate of the Court where

police gypsy was parked. He was put into the gypsy and was assured that

he would be released in five minutes. Thereafter, he was taken to the

police station and was beaten up and was told that his mother has lodged a

complaint against them, therefore, she should be asked to withdraw the

same. He agreed. Still he was beaten up and his signatures were taken on

plain papers. He was abused in police station and got medically examined

and then falsely implicated in this case.

6. In support of his defence, he examined DW1 Sanjeev who was

running a photo studio on the ground floor of his house at Gali No. 6,

Jwala Nagar. According to him, he did not see any quarrel taking place in

front of his house and that he never handed over the accused Sunil to the

police or gave beatings to him at any point of time.

7. The entire evidence was meticulously examined by learned

Additional Sessions Judge. Vide impugned judgement dated 5th November,

2012 and order on sentence dated 7th November, 2012, all the appellants

were convicted for offence under u/s 452 IPC and sentenced to undergo

three years RI with fine of Rs.5,000/-, in default of payment of which, they

were to undergo six months SI. They were also separately convicted and

sentenced as under:-

(a) Abdul Gani -

(i) Sentenced to undergo RI for three years with fine of Rs.3000/-, in default to undergo SI for three months under Section 25 of Arms Act;

(ii) Sentenced to undergo RI for seven years with fine of Rs.5000/-, in default to undergo SI for six months u/s 392/34 Indian Penal Code.

(b) Ritesh Pandey

(i) Sentenced to undergo RI for seven years with fine of Rs.5000/-, in default to undergo SI for six months for offence u/s 392/34 r/w 397 Indian Penal Code;

(ii) Sentenced to undergo RI for three years with fine of Rs.3000/-, in default to undergo SI for three months u/s 25/27 Arms Act.

(c) Sunil

(i) He was sentenced to undergo RI for seven years with fine of Rs.5000/-, in default to undergo SI for six months u/s 392/34 Indian Penal Code.

All the sentences were ordered to be run concurrently and the convicts were granted benefit of Section 428 Cr.P.C.

8. Feeling aggrieved, separate appeals have been preferred by the

convicts.

9. Assailing the findings of the learned Trial Court, Sh. M.L. Yadav,

Advocate for the appellant-Abdul Gani submitted that the complainant and

his son Satish did not identify the accused. However, conviction of the

accused was based on the testimony of the police officials. In the absence

of identification by the complainant and his son, complicity of accused in

crime is not established beyond reasonable doubt, as such, he was entitled

to benefit of doubt. In the alternative, it was submitted that the accused is

in jail for the last about 2 years and 8 months. As such, he be released on

the period already undergone.

10. Ms. Nandita Rao, Advocate appearing for accused-Sunil submitted

that the accused was not arrested from the spot but as per the prosecution

case, he was arrested in some other case where money and Pan Card of the

complainant was recovered from his possession. It was submitted that

according to the complainant and his son, all the accused were known to

them from before since they were bad character of the area and it is alleged

that immediately after the incident, the public gathered at the spot.

However, no public witness has been examined by the prosecution.

Learned counsel also referred to different MLCs of the accused for

showing that in the initial MLC, it was mentioned that accused was given

public beatings, however, the same is contrary to the case of prosecution as

it is alleged that accused had run away from the spot after the incident.

The complainant is a Special Police Officer and is not an ordinary citizen.

As per his case, he is running the business without obtaining any licence,

as such, he is at the mercy of the police officials and got the accused

falsely implicated in this case. On the other hand, the accused has

examined PW1 Sanjeev who is a totally independent witness and has

belied the case of prosecution. As such, the findings of the learned Trial

Court deserve to be set aside and the accused is entitled to be acquitted of

the offence alleged against him. Alternatively, it was submitted that

accused has remained in jail for a period of about 3 years. As such, he be

released on the period already undergone.

11. Sh. Ankur Sood, counsel for the accused-Ritesh submitted that the

prosecution case rests on the testimony of the complainant and his son.

Although it is alleged that public had gathered at the spot and had given

beatings to this accused as well as Abdul Gani, however, no independent

person has been examined by the prosecution. Moreover, it is also alleged

that wife of the complainant also reached the spot, however, she was also

not made a witness. Non-examination of the wife of the complainant as

well as any independent witness cast a serious doubt on the prosecution

version. Moreover, as per the case of prosecution, the accused was

holding a pistol with which he scared the complainant. If that is so, it is

highly improbable that he would not scare the public with the pistol, which

gathered at the spot and gave him beatings. In any case, as per the report

of FSL, the pistol was not in working condition and, therefore, offence

under Section 397 IPC is not made out.

12. Reliance was placed on Kiran Mehlawat v. State, 2010 CriLJ2614;

Babulal Jairam Maurya and Anr. v. The State of Maharashtra, 1993 Cri.

LJ281; State of UP vs. Noorie (Smt.) @ Noor Jahan, (1996) 9 SCC 104

and Rakesh v. State of NCT of Delhi, Crl. Appeal No. 208/2003 decided

by this Court on 20th July, 2010.

13. Countering the submissions of learned counsel for the appellants, it

was submitted by the learned Additional Public Prosecutor for the State

that there is no material on record to show that the complainant was a

special police officer. A suggestion given to this effect has been denied by

the complainant. It was further submitted that in the initial statement made

by the complainant, he gave names of three accused who were known to

him from before and the same assumes significance. Although, during

their deposition, the complainant and his son did not identify the accused

Abdul Gani but this accused was arrested at the spot by the complainant

and his son with the help of public. His arrest memo was prepared at the

spot and both these witnesses are signatory to the arrest memo. Moreover,

two live cartridges were recovered from the pocket of the accused Abdul

Gani which were also seized and both these witnesses are also signatories

to the seizure memo. On the same day, the accused was taken for medical

examination and his MLC has been duly proved by Dr. Sachin Harit,

PW10. Under the circumstances, it was submitted that the attendant

circumstances clearly proved the involvement of the accused in the crime

and, therefore, his conviction is justified.

14. As regards the deficiency pointed out by the learned counsel for the

accused regarding non-examination of any independent witness or wife of

the complainant, it was submitted that as per Section 133 of the Evidence

Act, it is the quality of the evidence which matters and not the number of

the witnesses. Although public persons should have been examined by the

IO but this short coming does not give any premium to the accused and

there is no reason to discard the testimony of the complainant and his son

which finds corroboration from the testimony of the police officials. As

regards the submission that the pistol was not in working order, it was

submitted that the same is in-consequential, inasmuch as, the actual user of

the deadly weapon is not necessary. It has come on record that the

complainant was scared when he was shown the pistol and on the point of

pistol he was robbed of his money and PAN Card. As such, it was

submitted that the impugned judgment does not suffer from any infirmity

which calls for interference. He also referred to the antecedents of the

accused persons regarding their previous involvements and, therefore, it

was submitted that they do not deserve any leniency. Accordingly, appeals

are liable to be dismissed.

15. I have given my considerable thoughts to the respective submissions

of the learned counsel for the parties and have perused the record.

16. Before taking up the case of each individual accused, it will be in

the fitness of things to have a glance at the evidence led by the

prosecution.

17. PW-4 Suresh Gupta is the complainant and unfolded that he is

dealing in the business of old cardboards and his godown was on the

ground floor of the house. On 12th July, 2011 at about 11:00-11:30 AM,

he was working in his godown. Three boys, namely, Pandey, Ballu and

third boy, whom he knew by face, came at the godown. All the three boys

were known to him as they used to indulge in snatching and other criminal

activities in gali. Accused Pandey was having a revolver and pointed out

the revolver on him. Accused Ballu asked him to hand over the money

failing which Pandey would shoot him. The third boy caught him. Ballu

took out Rs.3750/- and PAN Card from the pocket of his shirt. In the

meanwhile, his son Satish came at the godown. He raised noise from

outside the godown. On hearing the noise, Ballu who had taken out money

and PAN Card from his pocket, fled away from there. Accused Pandey

and the third boy also tried to run away but the people of the gali gathered

and both of them were apprehended by his son with the help of the public.

Public also gave beatings to accused Pandey and that third boy. He

informed the police who reached the spot. Accused Pandey and the third

boy were handed over to the police. His statement Ex.PW4/A was

recorded by the police. On search of accused persons, two cartridges were

recovered from the right pocket of the pant of the third boy while revolver

was concealed by accused Pandey in the dub of his pant which was

recovered with two cartridges loaded in the revolver. Sketch of the

revolver and cartridges Ex.PW4/B and PW4/C was prepared by the police

and the same were seized. He identified the pistol Ex.P1 and cartridges

Ex.P2 and Ex.P3 recovered from the possession of accused Pandey. He

also identified the cartridges Ex.P4 and Ex.P5 which were recovered from

the possession of third boy. He also identified the currency notes of

Rs.3550/-, Ex.P6 and PAN Card Ex.P7 which were taken out by accused

Ballu from his possession.

18. His testimony finds substantial corroboration from PW5 Satish who

also deposed regarding the incident and apprehension of accused Ritesh

Pandey and a third boy from the spot and recovery of revolver and

cartridges from them. However, as regards identity of the accused Abdul

Gani, both these witnesses turned hostile.

19. PW8 ASI Mohd. Ali, on receipt of DD No.8A Ex.PW1/A, went

along with Head Constable Satish and Constable Ashwini to house

No.211, Gali No.6, Jwala Nagar, Shahdara where he met complainant

Suresh Kumar Gupta and his son Satish Kumar Gupta along with some

public persons who had apprehended the accused Abdul Gani and Ritesh

@ Pandey. He also deposed regarding recovery of two live cartridges

from right side pocket of pant of accused-Abdul Gani and pistol and

cartridges from the possession of the accused Ritesh Pandey which were

taken into possession after preparing their sketch. He also deposed

regarding recording the statement of complainant and getting the case

registered.

20. It has further come in the statement of PW7-SI Manu Kumar that on

the same day, i.e., 12th July, 2011, he arrested accused Sunil @ Bablu in

case FIR 209/2011 under Section 20/61/85 NDPS Act, Police Station

Vivek Vihar. In that case accused made a disclosure statement Ex.PW7/A

pertaining to this case, as such, he informed the police station about the

same. ASI Mohd. Ali reached the spot and arrested the accused in this

case. Rs.3550/- and PAN Card in the name of the complainant was

recovered from the possession of accused Sunil which was seized vide

memo Ex.PW7/D. Accused Abdul Gani and Ritesh Pandey were taken to

Dr. Hedgewar Hospital on 12th July, 2011 and were medically examined

vide their MLCs Ex.PW10/A and Ex.PW10/B. This, in nutshell, is the

case of prosecution.

21. Now, I shall advert to the case of each appellant separately.

Abdul Gani

22. Police machinery was set in motion on sending an information by

the complainant Suresh Gupta which resulted in recording of DD-8A, Ex.

PW1/A whereby he informed the police officials that some bad characters

had come to his house in order to rob him and two of them were caught

hold by him, police be sent. Thereafter, ASI Mohd. Ali along with Head

Constable Santosh and Constable Ashwini Tyagi reached the spot where

accused Abdul Gani and Ritesh @ Pandey were handed over to the police.

Statement of the complainant Suresh Gutpa, Ex.PW5/A was recorded by

the investigating officer of the case and at the very initial juncture, the

complainant had disclosed that three boys, namely, Pandey, Gani and

Ballu R/o Jwala Nagar, Delhi who were known to him from before as they

used to indulge in snatching and bad activities in the area came and robbed

him of his money and PAN Card on the point of revolver. As such, at the

earliest available opportunity, the complainant had named "Gani" as one of

the assailant of the crime. However, for reasons best known to them, the

complainant and his son chose not to identify the accused in the Court.

However, the same does not cast any dent on the prosecution version,

inasmuch as, the contemporaneous record establishes beyond reasonable

doubt that it was accused Abdul Gani who was apprehended at the spot

and was handed over to the police as it has come in the statement of PW8

ASI Mohd. Ali that when he reached the spot, accused Abdul Gani @ Gini

and Ritesh @ Pandey were produced before him by the complainant and

his son. On personal search of accused Abdul Gani, two live cartridges

were recovered from the right side pocket of his pant. Sketch of the

cartridges was prepared vide Ex.PW4/C and the same were seized vide

seizure memo Ex.PW2/A. The accused was arrested vide memo Ex.PW2/C

and his personal search was conducted vide memo Ex.PW2/E. The seizure

memo as well as the arrest memo bears the signatures both of complainant

Suresh Kumar Gupta as well as his son Satish. The complainant has

admitted that the FIR was registered on his statement which also bears his

signatures at Point-A. In his statement, he has referred the name of

accused Abdul Gani as „Gani‟. He also admits that the arrest memo and

the seizure memo bear his signatures. He also admitted that Ex.PW2/A,

Ex.PW4/C and Ex.PW2/C bears the thumb impression of accused Abdul

Gani. Not only that, after the arrest of the accused, he was also sent for his

medical examination to Dr. Hedgewar Hospital where he was examined by

PW10 Dr. Sachin Harit who prepared the MLC Ex.PW10/A and found

swelling over left foot and right thumb. Under the circumstances,

participation of the accused in the crime was established beyond

reasonable doubt and prosecution had succeeded in establishing that in

furtherance of his common intention, the accused robbed the complainant

Suresh Gupta of his money and PAN Card. As such, he was rightly

convicted under Section 452/392/34 IPC.

23. Even as regards offence under Section 25 of Arms Act, it stands

proved from the testimony of prosecution witnesses that two cartridges

were recovered from the possession of the accused which were live

cartridges and the same were sent to FSL and as per the report given by

Sh.K.C.Varshney, Assistant Director, Ballistic, the cartridges were live

ones and can be fired through .32" bore firearm. The exhibits are

firearm/ammunition as defined in the Arms Act, 1959. Necessary sanction

was obtained from PW9 Sh. Asif Mohd. Ali, Additional DCP (East). In

view of this voluminous evidence coming on record against accused Abdul

Gani, the mere fact that the complainant and his son chose not to identify

him during their deposition in the Court, accused does not get any benefit.

Under the circumstances, he was rightly convicted by the learned

Additional Sessions Judge and the same does not call for any interference.

24. Coming to the quantum of sentence, as per the nominal roll of the

appellant, he has undergone sentence including under trial period as on 25th

September, 2014 for a period of 2 years 7 months and 9 days besides

earning remission of 7 months and 27 days. His conduct is reported to be

satisfactory. Keeping in view the totality of the facts and circumstances of

the case, the substantive sentence of the appellant is modified to the period

already undergone while the sentence of fine remains unaltered.

Sunil @ Ballu

25. In the initial statement Ex.PW4/A made by the complainant to the

police, he had specifically named all the three accused by referring them as

Pandey, Gani and Ballu who were residents of the same colony and were

bad character of the area. He has also specified the role of each and every

accused. As regards [email protected] he had deposed that he asked him to

take out whatever he has otherwise he will be killed by Pandey who was

having revolver with him. Thereafter, this accused took out money

approximately Rs.3750/- and his PAN Card from his pocket. When his

son Satish came and raised alarm then on seeing the public this accused

managed to escape from the spot. This fact was reiterated by the

complainant when he appeared in the witness box and his testimony was

substantially corroborated by his son PW5 Satish.

26. It has further come on record that after escaping from the spot on the

same day he was apprehended by SI Manu Kumar and was arrested in case

FIR No.209/2011 under Section 20/61/85 NDPS Act registered with Police

Station Vivek Vihar. He made a disclosure statement Ex.PW7/A

pertaining to this case and thereafter information was given to Police

Station whereupon ASI Abdul Gani arrested him and recovered Rs.3550/-

and PAN Card, belonging to the complainant, from his possession. A

suggestion was given to PW-7 SI Manu Kumar that the accused was

having Rs.4000/- which was shown as the case property of this case which

was denied by him. Even if it is taken that currency notes had no

identification marks and, therefore, it is not established that this money

belongs to complainant but the fact remains that the accused was also

found in possession of PAN Card belonging to the complainant for which

no explanation has been given by accused.

27. Much emphasis was laid by learned counsel for the appellant by

referring to the MLCs of accused prepared at different hospitals.

However, the same also does not help the accused, inasmuch as, after the

arrest, accused was taken to Dr. Hedgewar Hospital where his MLC was

prepared on 12th July, 2011 with history of swelling and tenderness of right

foot. Subsequently when he was produced in the Court, he himself moved

an application for getting his medical examination done and, as such, the

learned Metropolitan Magistrate directed to get his medical examination

done from GTB Hospital. A perusal of the MLC goes to show that it

refers to the earlier MLC prepared at Dr. Hedgewar Hospital on 12th July,

2011. When subsequent MLC on 13th July, 2011 was prepared under the

orders of the Court at that time, history was given of swallowing of

surgical blade two days back. In this MLC also there is mention of

swelling and tenderness of right foot. As such, from the MLCs, the

accused does not get any benefit.

28. Although, it is true, that as per the case of prosecution after the

incident, public had gathered at the spot, however, no public person has

been examined by the prosecution. PW2 Head Constable Satish and PW8

ASI Mohd. Ali have deposed that public persons were asked to join the

proceedings, however, none agreed. In Kiran Mehlawat (supra) relied

upon by the learned counsel for the appellant Ritesh, the effect of non-

examination of witness on the veracity of the case set up by the

prosecution against the accused was considered and reliance was placed on

the observations made by Hon‟ble Supreme Court in the decision reported

as Takhaji Hiraji v. Thakore Kubersing Chamansing, AIR 2001 SC 2328

where it was observed as under:-

"32....So is the case with the criticism levelled by the High Court on the prosecution case finding fault therewith for non-examination of independent witnesses. It is true that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding

that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the Court ought to scrutinise the worth of the evidence adduced.

The Court of facts must ask itself -- whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it uninfluenced by the factum of non-examination of other witnesses."

29. Tested on the aforesaid anvil of law, can it be said that non-

examination of public person was fatal to the case of prosecution. In that

case also, the mother of the deceased was not examined by the prosecution

and a plea was taken that non-examination of mother of deceased led to

adverse inference against the prosecution. It was observed that merely

because a material witness is not examined by the prosecution, a criminal

court would not lean to draw an adverse inference that if he was examined,

he would have given a contrary version. The illustration (g) appended to

Section 114 of the Evidence Act is only a permissible inference and not a

necessary inference. Unless there are other circumstances also to facilitate

the drawing of an adverse inference, it should not be a mechanical process

to draw the adverse inference merely on the strength of non- examination

of a witness even if the witness is a material witness. The afore-noted

observations of Supreme Court in Takhaji's case (supra) also bring out

that the non-examination of a material witness is not fatal in every case. It

is only in cases where there is an infirmity or doubt in the case set up by

the prosecution, that the non-examination of material witness assumes

significance. Even if it is assumed that the mother of the deceased was a

material witness, the same would not be fatal to the case of the prosecution

if the prosecution is able to establish the guilt of accused Sunil beyond any

reasonable doubt.

30. Moreover, it is settled principle of law that, it is not the number of

witnesses but quality of their evidence which is important, as there is no

requirement under the Law of Evidence that any particular number of

witnesses is to be examined to prove/disprove a fact. It is a time-honoured

principle that evidence must be weighed and not counted. The test is

whether the evidence has a ring of truth, is cogent, credible and

trustworthy or otherwise. The legal system has laid emphasis on value

provided by each witness, rather than the multiplicity or plurality of

witnesses. It is quality and not quantity, which determines the adequacy of

evidence as has been provided by Section 134 of the Evidence Act. Thus,

conviction can even be based on the testimony of a sole eye witness, if the

same inspires confidence. (Vide: Vadivelu Thevar & Anr. Vs. State of

Madras; AIR 1957 SC 614; Kunju @ Balachandran Vs. State of Tamil

Nadu, AIR 2008 SC 1381; Bipin Kumar Mondal Vs. State of West

Bengal AIR 2010 SC 3638; Mahesh & Anr. Vs. State of Madhya Pradesh

(2011) 9 SCC 626; Prithipal Singh & Ors. Vs. State of Punjab & Anr.,

(2012) 1 SCC 10; Kishan Chand Vs. State of Haryana JT 2013(1) SCC

222 and Gulam Sarbar Vs. State of Bihar (now Jharkhand), 2014 IX AD

(SC) 459.

31. In the instant case, both the witnesses have fared well during cross

examination and nothing material could be elicited to discredit their

testimony. None of the accused is alleging any enmity ill will or grudge

against the complainant or his son for which reason they would falsely

implicate them in this case allowing the real culprit to go scot free. The

submission of learned counsel for the appellant that the complainant was

SPO does not find support from any material available on record and

complainant has categorically denied the suggestion that he is SPO of the

area. Similarly the submission that complainant is running his business at

the mercy of police officials as he is not holding any licence for the

business, has no legs to stand.

32. In the aforesaid scenario merely because the wife of the complainant

or any public person of the locality was not examined by the prosecution,

no adverse inference can be drawn as the case of the prosecution stands

established from the testimony of complainant himself duly corroborated

by his son PW5 Satish and the police officials.

33. The accused Sunil took a plea that on 11th July, 2011, he came to

Court No.27 for filing application for release of Jamatalashi but some

police official in plain clothes took him in gypsy to police station where he

was beaten up. According to him, his mother has lodged a complaint

against the police officials. He was asked to withdraw the same to which

he agreed yet he was falsely implicated in this case. Although he has

examined DW1 Sanjeev in his defence but testimony of this witness is

very vague, inasmuch as, he has merely deposed that no quarrel ever took

place in front of his house nor he gave beatings to accused Sunil at any

point of time. It is not even the case of prosecution that accused Sunil was

given any beatings by the public at the spot as the case of prosecution is

that when son of the complainant raised alarm then this accused fled away

along with the robbed money and PAN Card belonging to the complainant.

Therefore, his testimony does not help the accused in any manner.

Moreover, he has not been able to prove his defence that he was picked up

from the Court. No complaint allegedly made to the police by his mother

has been proved on record. As such, this appellant was rightly convicted

for offence under Section 452/392/34 IPC and no interference is called for.

34. As per the nominal roll of appellant-Sunil, he has undergone

sentence including under trial period as on 25 th September, 2014 for a

period of 3 years 2 months and 12 days besides earning remission of 3

months and 18 days. His conduct is reported to be satisfactory. Keeping

in view the totality of the facts and circumstances of the case, the

substantive sentence of the appellant is modified to the period already

undergone. However, the sentence of fine remains unaltered.

Ritesh @ Pandey

35. Basically two fold submissions were made by the counsel for this

appellant:-

i) Non-examination of wife of the complainant and any independent witness;

ii) No offence under Section 397 IPC is made out as, as per the FSL report, pistol was not in working condition.

36. As regards the first limb or argument, the same has been dealt with

above by observing that non-examination of wife or any independent

witness does not cast any dent on the prosecution version.

37. The only question remains for consideration is whether the

conviction of the appellant can be sustained under Section 397 IPC as the

weapon in question was not in working order.

38. Section 397 of the Indian Penal Code states:

"Sec 397 - Robbery or dacoity, with attempt to cause death or grievous hurt.-- If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."

39. Learned Counsel for the appellant has relied upon a judgement by a

Division Bench of the Bombay High Court in Babulal Jairam Maurya

and Anr. v. State of Maharashtra, 1993 Crl.LJ 281, where the question

for consideration was whether a toy gun can be regarded as a deadly

weapon and it was observed:

"The weapon used must have a deadly potential. A toy pistol can never be said to be a deadly weapon whatever the impression it seeks on the frightened victims. In other words, a fake pistol though used as a deadly weapon and assumed to be one by the victims is not a deadly weapon as contemplated by S. 397, I.P.C. A toy pistol continues to be a toy pistol whatever be its impact on the frightened victims. The learned Public Prosecutor disputes this contention saying that a weapon becomes deadly when it is used as such a weapon and has that effect upon the victims. The language of Sections 397 and 398 which deal with ― "deadly weapons" indicates the correctness of Learned Public Prosecutor's submission. The weapon used has to be a deadly weapon and not assumed or mistaken to be a deadly weapon. Michael was using a toy pistol and that is the end of the matter so far as the applicability of S.397 I.P.C. is concerned."

40. However, this decision is not applicable to the present case as the

weapon in question was a real weapon and not assumed or mistaken to be

deadly weapon. Although the weapon was not in a working condition and

required repair but the same cannot be termed as „toy‟. In fact, the revolver

was found to be loaded with two live cartridges.

41. The learned counsel for the Appellant has also relied upon Rakesh

versus State of NCT of Delhi, Crl. Appeal No. 208/2003 decided by this

Court on 20th July, 2010, however, this case is not applicable to the present

case as the Court was dealing with a case u/s 398 and 458 IPC. The

learned Single Judge referred to the definition of „deadly weapon‟ as

defined in Black‟s Law Dictionary which is as under:

"any fire arm or other weapon, device, instrument, material or substance", whether animate or inanimate, which in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury. Such weapons or instruments are made and designed for offensive or defensive purposes or for destruction of life or inflation of injury, one which, from the manner used, is calculated or likely to produce death or serious bodily injury."

42. It also observed:-

"17. The purpose of using a deadly weapon at the time of committing robbery, dacoity or attempting one, is obviously to overawe and instill a sense of fear in the victim. However, when the so called weapon is in a non working condition, used merely as a camouflage, whether such weapon could fall within the definition of 'deadly weapon' is a matter of debate. It can be urged that the victim who is put in fear of life or grave injury, lest he parts with his belongings, has no way of knowing that the weapon being pointed at him is not in working condition or is fake. The victim in such situation will not resist the offence

thinking that his/her life is in danger. The fear for life/hurt created in the mind of the victim is a direct result of the act of the accused."

43. The question whether a weapon which otherwise is „deadly‟ but not

in working order can apply to accused u/s 397 IPC was left open.

44. However, the expression - "offender uses any deadly weapon" used

in Section 397 IPC was examined by the Supreme Court in Phool Kumar

versus Delhi Administration, AIR 1975 SC 905 and it was observed as

under:-

"6. Section 398 uses the expression "armed with any deadly weapon" and the minimum punishment provided therein is also seven years if at the time of attempting to commit robbery the offender is armed with any deadly weapon. This has created an anomaly. It is unreasonable to think that if the offender who merely attempted to commit robbery but did not succeed in committing it attracts the minimum punishment of seven years under Section 398 if he is merely armed with any deadly weapon, while an offender so armed will not incur the liability of the minimum punishment under Section 397 if he succeeded in committing the robbery. But then, what was the purport behind the use of the different words by the Legislature in the two sections viz. "uses" in Section 397 and "is armed" in Section 398. In our judgment the anomaly is resolved if the two terms are given the identical meaning. There seems to be a reasonable explanation for the use of the two different expressions in the sections. When the offence of robbery is committed by an offender being armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. On the other hand, if an offender was armed with a deadly weapon at the time of attempting to commit a robbery, then the weapon was not put to any fruitful use because it would have been of use only when the offender succeeded in committing the robbery.

7. If the deadly weapon is actually used by the offender in the commission of the robbery such as in causing grievous hurt, death or the like then it is clearly used. In the cases of Chandra Nath v. Emperor; Nagar Singh v. Emperor and Inder Singh v. Emperor some overt act such as brandishing the weapon

against another person in order to overawe him or displaying the deadly weapon to frighten his victim have been held to attract the provisions of Section 397 of the Penal Code. J.C. Shah and Vyas, JJ. of the Bombay High Court have said in the case of Govind Dipaji More v. State that if the knife was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property, that would amount to 'using' the weapon within the meaning of Section 397."

45. The Supreme Court while interpreting Section 397 IPC took notice

of the language of Section 398 IPC wherein the words used are ―the

offender is armed with any deadly weapon. The Supreme Court has

observed that, for the purpose of Section 397 IPC actual use of the deadly

weapon is not required, even brandishing and showing the deadly weapon

so as to instil fear and threat in the mind of the victim so that he does not

resist, fearing danger, is sufficient. The Supreme Court has reiterated this

view and has further observed in Ashfaq v. State (Govt. of NCT of Delhi)

AIR, 2004 SC 1253:

"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.

46. Thus, from the ratio in Phool Kumar (supra) and Ashfaq (supra), it

is clear that in order to sustain conviction under Section 397 IPC it is not

essential that the deadly weapon is actually put to use.

47. This is further fortified by the fact that the term "fire arm" as

defined in Section 2(e) of the Arms Act means:

"(e) "firearms" means arms of any description designed or adapted to discharge a projectile or projectiles of any kind by the action of any explosive or other forms of energy, and includes,-

(i) artillery, hand-grenades, riot-pistols or weapons of any kind designed or adapted for the discharge of any noxious liquid, gas or other such thing,

(ii) accessories for any such firearm designed or adapted to diminish the noise or flash caused by the firing thereof,

(iii) parts of, and machinery for manufacturing, firearms, and

(iv) carriages, platforms and appliances for mounting, transporting and serving artillery."

48. The definition of the term "fire arm" includes, cartridges. For the

purpose of Section 2 (e) of the Arms Act, pistol or weapon or arm though

not working is still a fire-arm if it can be used with some repairs. A fire-

arm which is defective or unworkable is a fire-arm within the meaning of

Section 2(e) of the Arms Act if it has not lost its specific character and has

not ceased to be a fire-arm. In Queen-Empress v. Jayarami Reddi, (1898)

ILR 21 Mad 360 the Full Bench opined:

"1. We think there is no doubt that the revolver in the case is a fire-arm within the meaning of the Act. The question is not so much whether the particular

weapon is serviceable as a fire-arm, but whether it has lost its specific character and has so ceased to be a fire-arm. In referring to the serviceable character of the arm we think the decision in The Queen v. Siddappa I.L.R. 6 Mad. 60 was not correct and that the proper test was lost sight of. Whether in any particular case the instrument is a fire-arm or not, is a question of fact to be determined according to circumstances. We answer the question in affirmative."

49. Thus a defective fire arm which can be used after repair and has not

lost its character of fire arm is a fire arm within the meaning of Section

2(e) of the Arms Act. Even as per Ballastic report, the country made

revolver .32" bore recovered from the possession of appellant Ritesh is

designed to fire a standard .32" cartridge. It is not in working order in its

present condition and requires repair of the fire mechanism to bring it in

working order. However, the revolver was loaded with two cartridges

which were found to be live one. Possibility of accused himself being not

aware of the fact that it was not in working order at that point of time

cannot be ruled out otherwise he would not have loaded it with live

cartridges. Moreover, it has come on record that victim was put in fear of

instant hurt when revolver was put on his neck by accused Ritesh and was

threatened by accused Sunil to part with his belongings failing which he

would be killed by accused Ritesh. Under the circumstances, it was

established that accused was armed with a deadly weapon which was

within the vision of complainant so as to be capable of creating a terror in

his mind. As such, offence under Section 397 IPC was clearly made out.

It seems that such a plea was not taken by accused before the learned Trial

Court and is being taken for the first time at the appellate stage. Even if it

is so, no fault can be found in this finding of learned Trial Court which

warrants interference.

50. As per the nominal roll of appellant-Ritesh, he has undergone

sentence including under trial period as on 25th September, 2014 for a

period of 3 years 2 months and 13 days besides earning remission of 7

months and 27 days. His conduct is reported to be satisfactory. However,

the minimum sentence prescribed under Section 397 IPC is 7 years. Under

the circumstances, no interference is called for even regarding quantum of

sentence.

51. All the appeals stand disposed of accordingly.

A copy of this judgment be also sent to concerned Jail

Superintendent for information and compliance.

Trial Court record be sent back along with a copy of this judgment.

(SUNITA GUPTA) JUDGE OCTOBER 01, 2014 rs