Delhi High Court
Aslam vs State on 20 August, 2015
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 13.08.2015
Judgment delivered on: 20.08.2015
+ CRL.A. 883/2012
ASLAM
..... Appellant
Through Mr. Rajat Mathur, Adv.
versus
STATE
..... Respondent
Through Mr. Kewal Singh Ahuja, APP
+ CRL.A. 284/2015
GULZAR
..... Appellant
Through Mr. Sitab Ali Chaudhary, Adv.
versus
STATE
..... Respondent
Through Mr. Kewal Singh Ahuja, APP
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
1 These are two appeals preferred by appellant Gulzar and appellant
Aslam. Appellant Gulzar has been convicted under Sections 392/397 of
the IPC and has been sentenced to undergo RI for a period of 7 years
and to pay a fine of Rs. 5000/- and in default of payment of fine to
undergo SI for 6 months. For his convictions under Section 394 of the
IPC he has been sentenced to undergo RI for a period of 7 years and to
pay a fine of Rs. 5000/- and in default of payment of fine to undergo SI
for 6 months. Appellant Aslam, has been convicted under Sections
392/394/34 of the IPC and has been sentenced to undergo RI for a
period of 5 years and also to pay a fine of Rs. 5000/-; in default of
payment of fine to undergo SI for 6 months. The sentences were to run
concurrently.
2 The version of the prosecution is that on 04.04.2009 at about
10.10 pm, the complainant Utkarsh (PW-4) had hired a TSR from
Seemapuri. One boy was already sitting on the rear seat of the TSR.
PW-4 sat on the TSR and another boy sat next to him. After crossing 10-
15 yards, another boy sat next to the driver. After crossing Seemapuri
both the boys sitting with PW-4 started beating him. One of the boys
pressed his neck and the other stabbed him with a sharp weapon. When
PW-4 tried to save himself, the second boy gave him a fist blow.
Thereafter, PW-4 was robbed of his cash amounting to Rs. 3990/-, a
Motorola Mobile, driving licence, SBI ATM card. PW-4 was then
thrown out of the TSR. PW-4 who had suffered injuries went to the
hospital and got his injuries dressed. On the following date, i.e. on 05-
04-2009 he made a complaint to the police station and the present FIR
was registered. Accused Gulzar and Aslam were arrested vide DD No.
7A where they had made a disclosure statement regarding their
involvement in the present case. They were formally arrested in this case
on 19.04.2009. Both the accused were identified in TIP proceedings by
the complainant. The mobile phone was also recovered from accused
Aslam. The weapon of offence i.e. the knife, was however not
recovered.
3 On the basis of the aforenoted evidence collected by the
prosecution, both oral and documentary, the accused persons were
convicted and sentenced as aforenoted.
4 The star witness of the prosecution was the complainant, PW-4.
PW-4 has on oath deposed that he was working as a fashion designer at
the date of the accident, 04-04-2009 and at about 9.15 pm, PW-4 left his
sister's house and on reaching Dilshad Garden, at 9.30 pm, he boarded
an auto for going to Anand Vihar. One passenger was already sitting on
the rear side; he was told that the auto driver will charge only Rs. 10/-
for dropping him at Anand Vihar and accordingly, PW-4 sat on that
auto. The auto had only covered a distance of 10 feet, when the auto
driver took another passenger who also sat on the rear seat. After
another 10 feet, one more passenger came and sat on the front seat.
PW-4 was sandwiched between two people on the rear seat. After a few
minutes, the boy sitting on the right of PW-4, put his arm around his
neck and started beating him. The said boy showed him a knife and said
'shor mat machana'. The boy sitting with the driver also started giving
him fist blows on his face. The boy sitting on his left also started beating
him and started taking out his belongings which included his black
colour Motorola MING having sim number 9987323868, his wallet
having cash worth Rs. 3900/-, his ATM Card, driving licence, Metro
Pass etc. PW-4 resisted the attack. He was beaten by the boys, as a result
of which he sustained injuries on his chest, right arm and on the left side
of his upper lip. Later, the auto slowed and PW-4 was pushed out. PW-4
noted that the auto number was covered by a polythene. The auto then
ran away from the spot. PW-4 met a police man who took him to
Hedgewar Hospital and went home afterwards he made a complaint at
police station Vivek Vihar on the next day. Since his T-shirt got torn
from various places and was stained with blood, he threw it; it was
blood stained. He has further deposed that in the month of May he had
gone to Tihar Jail to identify the culprits where he identified both the
appellants namely, Gulzar and Aslam. He also identified his mobile
phone which had been recovered a black Motorola Ming proved as
Ex. P-1. PW-4 was subjected to a lengthy cross examination. He stated
that his statement was recorded in the police station. He stuck to his
statement. He denied the suggestion that on 04.04.2009, he was drunk
and was coming from a party and he had a quarrel with his friend as a
result of which he sustained injuries. He denied the suggestion that he
has falsely implicated the accused persons. He also denied the
suggestion that he did not identify the accused persons in Tihar Jail.
5 SI Veerpal Singh, (PW-7) posted in the special staff, deposed that
on 18.04.2009 he had received a secret information that two boys,
Aslam and Gulzar, who were involved in a case of robbery registered at
PS Vivek Vihar, would come at bus stand Zakhira, Chara Mandi,
Najafgarh road at 5.00 pm to sell a stolen mobile. Information was
reduced into writing vide DD no. 10A. A raiding party was thus,
organized and the accused persons were apprehended. They could not
give any satisfactory answer to the queries put to them. Accused Aslam
had produced the Motorola mobile phone which was seized vide memo
Ex. PW-1/A. Accused Gulzar also produced a mobile phone of Sony
Ericson (not related to this case). This was also seized vide memo Ex.
PW-1/B. They disclosed their involvement in the present case pursuant
to which the information had been marked to PW-9, who had formally
arrested the appellants in the instant case.
6 The Investigating Officer, ASI Pritam Singh was examined as
PW-9. He deposed that on 19.04.2009, on the receipt of DD no. 10-A,
he reached the office of Special Staff where the disclosure statements of
the accused persons were recorded in those proceedings i.e. Kalandra
were given to him wherein accused Aslam and Gulzar had disclosed
their involvement in the present case. They were formally arrested vide
memos Ex. PW-9/B and Ex. PW-9/C. They were put to TIP on
02.05.2009 in Tihar Jail.
7 TIP proceedings were conducted by Ms Sunaina Sharma (PW-
10), the learned Magistrate and her proceeding sheets Ex. PW-10/A and
Ex. PW-10/B have been proved. These proceeding sheets reflect that the
witness/complainant (PW-4) identified accused Aslam and Gulzar
correctly.
8 The main thrust of the argument of the learned amicus curiae for
convict Gulzar is that the conviction under Section 397 of the IPC is not
called for; the admitted fact being that the weapon of offence was not
recovered and as such its user could not be proved and thus the
conviction under Section 397 of the IPC is ill founded. Reliance has
been placed on the judgment of the Apex Court Samiuddin @ Chotu Vs.
State 175 (2010) DLT 27 to support this submission. Submission being
that in circumstances where the weapon of offence could not be
recovered, the conviction under Section 397 of IPC was modified to one
under Section 392 of the IPC, which has also been prayed for in the
instant case. This Court has examined this case in the aforenoted
perspective.
9 In the judgment of Samiuddin @ Chotu (supra), a Bench of this
Court had noted that where the knife in question has not been recovered,
it was held that the conviction of the appellant under Section 397 of the
IPC was not called for and it was accordingly modified to one under
Section 392 of the IPC; the period of sentence already undergone by him
was treated as the sentence upon him.
10 In this context, the observations of a Bench of this Court in
Charan Singh Vs State, reported as 1988 Crl. L.J. NOC 28 (Delhi)
which are relevant and are extracted herein as under:
"At the time of committing dacoity one of the offenders caused
injury by knife on the hand of the victim but the said knife was not
recovered. In order to bring home a charge under Section 397, the
prosecution must produce convincing evidence that the knife used by the
accused was a deadly weapon. What would make knife deadly is its
design or the method of its use such as is calculated to or is likely to
produce death. It is, therefore, a question of fact to be proved by the
prosecution that the knife used by the accused was a deadly weapon. In
the absence of such an evidence and particularly, the non-recovery of
the weapon would certainly bring the case out of the ambit of Section
397. The accused could be convicted under Section 392".
11 This Court is of the considered view that in this factual matrix, it
would be appropriate to convict the accused Gulzar under Section 392
of the IPC. Accordingly, the conviction of accused Gulzar is modified
from Section 397 to one under Section 392 of the IPC.
12 Accused Gulzar has already undergone incarceration of 4-½
years.
13 Accused Aslam has already undergone 3 years and 9 months of
incarceration. Conviction of Aslam is not assailed. Prayer is that he
should be let off on the period already undergone by him.
14 Both the appellants were young in years on the date of the
offence. Accused Gulzar was aged about 23 years and accused Aslam
was aged about 25 years. They have already suffered agony of long
protracted trial. Their jail conduct has been satisfactory.
15 Keeping in view the aforenoted factual matrix, this Court deems it
fit to hold that the period of sentence already undergone by both the
appellants be the sentenced imposed upon them. They be released
forthwith, if not required in any other case.
16 Appeals disposed of in the above terms.
INDERMEET KAUR, J
AUGUST 20, 2015
A
