Sameer Hussain vs State
2015 Latest Caselaw 820 Del

$~17 & 18
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+       CRL. A. No. 1589/2011
                                             Reserved on 21st January, 2015

                                             Decided on 30th January, 2015

        SAMEER HUSSAIN                                 ..... Appellant
                    Through:          Ms. Rakhi Dubey, Adv.

                          Versus

        STATE                                          ..... Respondent
                          Through:    Mr. Amit Ahlawat, APP along with
                                      SI Vinay Kumar, P.S. Neb Sarai.

                                     AND

        CRL. A. 22/2012

        GOPAL                                           ..... Appellant
                          Through:    Mr. D.K. Pandey, Adv.

                          Versus

        STATE                                          ..... Respondent
                          Through:    Mr. Amit Ahlawat, APP along with
                                      SI Vinay Kumar, P.S. Neb Sarai.

CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J.

1. Both the above-mentioned appeals arise from the same incident, FIR

and judgment, hence, are disposed of together.

2. Both the appellants have been convicted under Sections 393/34 of the

Indian Penal Code, 1860 (IPC) and sentenced to undergo rigorous

imprisonment for three years each with fine of `5,000/- and in default of

payment of fine to undergo simple imprisonment for six months. Appellant-

Sameer Hussain has also been convicted under Section 398 IPC and

sentenced to undergo rigorous imprisonment for seven years with fine of

`10,000/- and in default of payment of fine to undergo simple imprisonment

for one year. Sentences of appellant-Sameer Hussain have been directed to

run concurrently. Aggrieved by their conviction as also the sentences

handed down to them by the trial court, appellants have preferred these

appeals.

3. Prosecution case, as unfolded, is that on 6th November, 2009 at about

02:30 pm, appellants along with one Raju (who could not be apprehended

and was declared proclaimed offender) knocked the door of the house of

complainant-Ms. Khashti Bisht and when complainant opened the door, they

represented that they wanted to see the room which she was proposing to let

out. Complainant took them to first floor and showed the room. After

seeing the room, appellants along with their third accomplice went away.

After about half an hour, appellants again returned and expressed their

desire to see the room again before finalising the deal. Complainant took

them to first floor. Gopal asked for some drinking water which

complainant brought and offered him. After drinking water, Gopal and Raju

caught hold of complainant while Sameer Hussain pointed a country made

pistol towards her and asked her to handover all the valuables to them.

Complainant raised alarm at which she was dragged towards the toilet. In

the meanwhile, on hearing the alarm raised by the complainant, her father

Shri Bhopal Singh Negi arrived there and intervened as a result whereof a

scuffle took place between the complainant's father and Sameer Hussain.

During the scuffle Sameer Hussain fell down; while Gopal and Raju ran

away. Police control room was informed by making a call at number 100.

Police officials arrived at the spot and Sameer Hussain was handed over to

them along with the loaded country made pistol. Two more live cartridges

were recovered from the pocket of Sameer Hussain.

4. On the basis of information received in the police station Neb Sarai

DD No. 26-A (Ex.PW4/B) was recorded and handed over to SI Karamvir

Singh for investigation, who along with Ct. Rajaram reached the spot and

arrested Sameer Hussain vide arrest memo Ex. PW1/D. He recorded the

statement of complainant (Ex.PW1/A) wherein complainant narrated the

incident in the manner as has been described in the preceding paras

hereinabove. Sketch (Ex.PW1/C) of country made pistol was prepared.

Thereafter, weapon of offence was seized vide seizure memo Ex. PW1/B.

SI Karamvir wrote rukka (Ex. PW5/A) and sent the same to police station

per hand Const. Rajaram, pursuant whereof FIR (Ex.PW4/A) was registered.

Sameer Hussain disclosed the names of his accomplices as Gopal and Raju.

5. Gopal surrendered in court and was arrested by ASI Babu Lal. His

TIP was conducted wherein complainant identified him as one of the

accomplices of Sameer Hussain. After completion of investigation,

appellants were sent up to face trial by filing the charge-sheet in the court of

Metropolitan Magistrate, Delhi who committed the case to Sessions Court

since offence under Section 398 IPC is exclusively triable by the Sessions

Court, after supplying the documents to the appellants in terms of Section

207 of the Code of Criminal Procedure, 1973 (Cr.P.C.).

6. Charges under Sections 393/398/34 were framed against the

appellants on 19th March, 2010 to which they pleaded not guilty and claimed

trial. Separate charge under Section 25 of The Arms Act, 1959 (the Act, for

short) was framed against Sameer Hussain on the same day to which also he

pleaded not guilty and claimed trial.

7. Prosecution examined eight witnesses in all to prove its case.

Complainant was examined as PW1. Eye witness Shri Bhopal Singh Negi

was examined as PW2. They are the material witnesses to prove the

incident of attempt to robbery. SI Karamvir (Investigating Officer) was

examined as PW5. He is also a material witness to prove the arrest of

appellant at the spot. Shri S.P.S. Laler, Metropolitan Magistrate, Delhi has

been examined as PW7 and has proved the TIP proceedings of Gopal as

Ex.PW7/C. Other witnesses are formal in nature. PW6 HC Hariom had

recorded DD Entry No. 26-A Ex. PW4/B. PW4 HC Ravinder Singh had

recorded the FIR on the basis of rukka sent by SI Karamvir Singh and has

proved the copy thereof as Ex. PW4/A. PW3 Const. Datta Darare had taken

the case property to FSL Rohini and has deposed in this regard. PW8 SI

Babu Ram had arrested Gopal after he surrendered in court and has proved

the arrest memo as Ex. PW8/A.

8. After prosecution closed its evidence, statements of appellants under

Section 313 Cr.P.C. were recorded. Appellants denied their complicity in

the crime and claimed themselves to be innocent. Gopal took a plea that he

was employed as a packer with a courier company. He along with Sameer

Hussain and Raju had gone to see the room and thereafter, he went to his

work place. He did not accompany Raju and Sameer Hussain again to the

said premises. When he returned in the evening he was informed by his

landlord that police had come with Sameer Hussain. Out of fear he went to

his native place. He examined DW1 Bablu to support his plea that he was in

his office from 03:00 pm of 6th November, 2009 till 9:00 pm of 8th

November, 2009. DW1 also produced copy of attendance register which

was exhibited as Ex. DW1/DA. Appellant Sameer Hussain set up a defence

that on 6th November, 2009 at 02:00 pm he along with his friend Hari Kewal

had gone to Hi-Tech Institute, Khanpur Extension, Main Road, New Delhi

to enquire about the fee schedule as he intended to do a technical course

from the said institute. When he came out of the institute he was

apprehended by the police and implicated in this case. He claimed that he

met Gopal for the first time in court. Sameer Hussain produced Hari Kewal

in the witness box as DW2 in order to support his above version.

9. Trial court scrutinised the testimony of the witnesses at thread bare

and found the statements of PW1 and PW2 trustworthy and reliable so as to

conclude that appellants along with one Raju had gone to the house of

complainant on 6th November, 2009 at about 02:30 pm and attempted to

commit robbery and at that time Sameer Hussain was armed with a deadly

weapon, that is, a country made pistol (Ex. P-1). Accordingly, appellants

have been convicted under Sections 393/34 IPC. Sameer Hussain has also

been convicted under Section 398 IPC since he was armed with a deadly

weapon while attempting to commit robbery. As regards charge under

Section 25 of the Act is concerned, Sameer Hussain has been acquitted for

want of sanction under Section 39 of the Arms Act. Trial court has noted

that Section 39 of The Arms Act provides that no prosecution shall be

instituted against any person in respect of any offence under Section 3

without the previous sanction of the District Magistrate. Since no previous

sanction under Section 39 of the Act was taken, Sameer Hussain was

entitled to acquittal of charge under Section 25 of the Act.

10. I have heard learned counsel for the appellants and have perused the

trial court record carefully. Learned counsel for the appellants have

vehemently contended that testimony of PW1 and PW2 suffer from material

contradictions and is inconsistent with the prosecution case as set up in the

charge-sheet. Trial court has erred in placing reliance on their statements. It

is contended that in the DD Entry, it has been mentioned that three boys had

entered in the house bearing no. A-29/2, Durga Vihar, Devli, New Delhi and

were misbehaving. It is contended that this DD Entry was recorded pursuant

to the information received from the complainant and there is no mention of

robbery therein. Subsequently, incident of misbehaviour has been given

colour of attempt of robbery. I do not find any force in this contention of

learned counsel. Merely because details of incident have not been

mentioned in the DD Entry, it would not make the statement of complainant,

recorded by the Investigating Officer immediately on reaching the spot as

also her deposition in court doubtful and suspicious. DD entry has been

recorded on the basis of telephonic call made to Control Room wherein no

details have been mentioned. As against this, statement Ex. PW1/A has

been recorded in detail by the Investigating Officer, immediately after the

incident. In her statement complainant has described the incident in detail

and in the same manner as has been described by her while deposing in the

court. Her statement in court is in line with what was stated by her in Ex.

PW1/A. Her statement has also been corroborated by PW2 Bhopal Singh

Negi, who was also present in the house at the time of incident. Appellants

were stranger to PW1 and PW2, thus, there is no reason as to why they

would have falsely implicated the appellants with whom they had no

previous enmity. It is also highly improbable that appellants, who were

strangers to the complainant, would have entered in the house that too with a

weapon only in order to molest the complainant. Accordingly, statement of

PW1, as contained in the FIR and duly supported by her while deposing in

court, has to be accepted, more so when it has been duly corroborated by the

PW2. Trial court has rightly accepted their statements to conclude that

Sameer Hussain armed with a country made pistol along with Gopal and

other accomplice entered in the house of complainant in order to rob her.

11. I also do not find any force in the contention of learned counsel that

Sameer Hussain has been falsely implicated by the Investigating Officer

after picking him from Hi-Tech Institute. Appellant was apprehended at the

spot by the PW2 and handed over to Investigating Officer. PW1 and PW2

have categorically deposed in this regard. PW5 SI Karamvir Singh had

reached the spot immediately after the incident and arrested Sameer

Hussain. Time of arrest has been mentioned as 05:00 PM. This supports the

version of PW1 and PW2 that Sameer Hussain was apprehended by them

and handed over to PW5 SI Karamvir Singh. Rukka (Ex. PW5/A) was sent

by SI Karamvir Singh from the spot. In the rukka itself, PW5 has recorded

that Sameer Hussain was handed over to him by PW1 and PW2. Reference

of country made pistol and live cartridges has also been mentioned in the

rukka. FIR (Ex. PW4/A) was registered at 05:35 pm pursuant to said rukka.

Accordingly, arrest of Sameer Hussain prior to registration of FIR also does

not raise any suspicion. As against the statements of PW1, PW2 and PW5,

trial court has rightly not accepted the statement of DW2.

12. I also do not find any force in the contention of learned counsel that

Gopal was present at his work place from 03:00 pm of 6th November, 2009

till 09:00 pm of 8th November, 2009. DW1 has deposed to this effect but his

statement cannot be accepted being inconsistent with the copy of attendance

register (Ex. DW1/DA) produced by him, which otherwise, appears to be a

manipulated document. Name of the appellant appears at last serial number

and appears to has been interpolated. Though DW1 has deposed that Gopal

remained in the office from 03:00 pm of 6th November, 2009 till 9:00 pm of

8th November, 2009, however, attendance register shows that Gopal was

absent on 8th November, 2009. Gopal absconded after the incident and his

this conduct also goes against him. He surrendered in court on 27th

November, 2009 and was put to TIP wherein he has been correctly identified

by the complainant. PW7-Shri S.P.S. Laler, Metropolitan Magistrate, Delhi

has proved the TIP proceedings as Ex. PW7/C. Subsequently, Gopal has

been identified by PW1 and PW2 in court as well. Thus, his identity is also

established beyond shadow of any reasonable doubt.

13. Section 398 IPC envisages that if at the time of attempting to commit

robbery or dacoity, the offender is armed with any deadly weapon, the im-

prisonment with which such offender shall be punished shall not be less than

seven years. Sameer Hussain was armed with a country made pistol which

fact is duly established from the statements of PW1 and PW2. PW1 and

PW2 have also identified the country made pistol in court. There can be no

doubt that the 'country made pistol' would fall within the ambit and scope of

a 'deadly weapon'. Accordingly, Sameer Hussain has rightly been convicted

under Section 398 IPC besides under Sections 393/34 IPC. Mere acquittal of

Sameer Hussain under Sections 25/54/59 of the Act will not make any

difference as regard to offence under Section 398 IPC is concerned.

Appellant has been acquitted for the charge under Section 25 of the Act on

technical grounds but that would not mean that factum of his being in

possession of a country made pistol at the time of crime has also to be

doubted.

14. For the foregoing reasons, both the appeals are dismissed.

A.K. PATHAK, J.

JANUARY 30, 2015/ga