Ikrar vs State Govt. Of Nct Of Delhi
2015 Latest Caselaw 8377 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


                               RESERVED ON : 30th OCTOBER, 2015
                               DECIDED ON : 5th NOVEMBER, 2015

+                     CRL.REV.P. 454/2014
      IKRAR                                               ..... Petitioner
                           Through :   Mr.Javed Ahmad, Advocate with
                                       Mohd.Ovais, Advocate.

                           Versus
      STATE GOVT. OF NCT OF DELHI                         ..... Respondent
                           Through :   Mr.Amit Ahlawat, APP.
       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.

1. The instant Revision Petition has been filed by the petitioner

- Ikrar to challenge the legality and correctness of a judgment dated

16.05.2014 of learned Addl. Sessions Judge in Crl.A.No.45/14 whereby

findings of the learned Chief Metropolitan Magistrate on conviction and

sentence in case FIR No.153/2006 under Sections 392/34 IPC vide orders

dated 11.03.2014 and 16.04.2014 were upheld. The petitioner was

sentenced to undergo Rigorous Imprisonment for five years with fine

`15,000/- under Sections 392/34 IPC. It is relevant to note that the

petitioner was acquitted of the charge under Section 411 IPC and the State

did not challenge the said acquittal.

2. Briefly stated, the prosecution case as reflected in the charge-

sheet was that on 20.04.2006 at 08.34 pm at road No. 56, Railway bridge,

Talcum Colony, Vivek Vihar, the petitioner in furtherance of common

intention with his associates Shakir and Wasim committed robbery upon

Sukh Lal and deprived him of his valuable articles and cash `6,000/-

when he was travelling in TSR No. DL-1RG-5780. The accused was

arrested at the spot whereas his associates succeeded to flee. Wrist

watches, purse and other documents belonging to the complainant were

thrown on the footpath and were collected by the complainant

subsequently. Subsequently Shakir and Wasim were apprehended in some

other case and on the basis of their disclosure statements, they were

implicated in this case. Statements of the witnesses conversant with the

facts were recorded and after completion of investigation, a charge-sheet

was filed against the appellant and his associates for committing offences

under Sections 392/411/34 IPC. To establish its case, the prosecution

examined twelve witnesses in all. In 313 Cr.P.C. statements, the accused

persons denied their involvement in the crime and pleaded false

implication; no evidence in defence was produced. The trial resulted in

conviction. The appellant challenged the conviction and sentence in

Crl.A.No.45/14 which resulted in its dismissal. Hence, the present

revision petition.

3. On perusal of the statements of the complainant - Sukh Lal

and his wife - PW-2 (Muktiyari) it stands established that while travelling

in the TSR belonging to the accused Wasim, they were deprived of their

valuable articles and cash lying in a brief case which they were carrying

with them that time. The petitioner was arrested at the spot and the articles

taken out of the brief case were thrown on the road which were collected

and seized. Both PW-1 (Sukh Lal) and PW-2 (Muktiyari) had no prior

animosity against the petitioner to falsely implicate him in this case. He

was duly identified in the Court as the perpetrator of the crime. Merely

because the petitioner and his associate were acquitted of the charge under

Section 411 IPC, prosecution case cannot be thrown away overboard. This

Court has no reason to take a different view from the concurrent findings

recorded by the Courts below about the role attributed to the petitioner in

the commission of crime. It stands established that the complainant and

his wife were travelling in the said TSR. Cash and other articles lying in

brief case were taken out during the journey by the petitioner and his

associates. It was apparently a case of 'theft'. PW-1 (Sukh Lal), the

complainant, admitted in the cross-examination that on checking the suit

case, he found that his purse and wrist watches were missing from it.

After alighting at the flyover due to jam, they informed about it to the

police. He found certain articles i.e. wrist watches and purse lying on the

road; lifted them and handed over to the police. He further admitted that

the accused persons had not extended any threat to them. PW-2

(Muktiyari), in the cross-examination, admitted that after they had

alighted from the TSR, they suspected something amiss. On opening the

suit case, they found that certain articles had been taken out of it. She had

seen the accused taking out the articles from the purse. She caught hold of

the petitioner Ikrar at the spot while others in the TSR fled away throwing

the articles there.

4. Nothing has emerged in the statements of the prosecution

witnesses if any force whatsoever was used by the petitioner to deprive

them of their valuable articles and cash in the TSR. No threat was

extended at any stage at the time of alleged incident. The petitioner along

with his associates had 'stolen' certain articles from the brief case which

the complainant was carrying in the TSR. When they became suspicious

and checked/opened it, they found certain articles 'missing'. On raising

the alarm, petitioner was arrested at the spot and the others succeeded to

run away. From the facts and circumstances of the case, it can be

concluded that the petitioner was guilty of the offence under Section 379

IPC. Ingredient of Section 392 IPC are not attracted and proved in this

case. When no force or show of force is found to have been used in the

committing of theft etc., the offence of robbery cannot be said to have

been committed.

5. In the light of above discussion, conviction is altered from

392/34 IPC to Section 379/34 IPC. Nominal Roll dated 28.10.2014

reveals that the petitioner has already undergone eight months and

nineteen days incarceration besides remission for one month and ten days

as on 27.10.2014. It further reveals that he is not a previous convict and is

not involved in any other criminal case. His overall jail conduct is

satisfactory. The conviction has been altered to Section 379 IPC which is

punishable with maximum imprisonment for three years. Considering the

facts and circumstances of the case, sentence order is modified and the

petitioner shall undergo RI for two years with fine `1,000/- under Section

379 IPC. In case of non-payment of fine, the petitioner shall suffer default

sentence i.e. SI for three months.

6. The appeals stands disposed of in the above terms. Trial

Court record be sent back forthwith with the copy of the order. A copy of

the order be sent to the Superintendent Jail for information.

(S.P.GARG) JUDGE NOVEMBER 05, 2015 / tr