Delhi High Court
Salauddin vs State Nct Of Delhi on 3 September, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:03.09.2015
+ CRL.A. 1365/2013 & Crl. M.A. No.18554/2014
SALAUDDIN ..... Appellant
Through Mr. Saurabh Kansal and Ms.
Pallavi S. Kansal, Advs.
Versus
STATE NCT OF DELHI ..... Respondent
Through Mr.Kewal Singh Ahuja, APP for
the State
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1 This appeal is directed against the impugned judgment and order
on sentence dated 15.02.2011 and 25.02.2011 respectively wherein
appellant Salauddin stands convicted under Section 392 read with
Section 397, Sections 411/186 and Section 353 read with Section 332 of
the IPC. For his conviction under Section 397 read with Section 392 of
the IPC, he has been sentenced to undergo RI for a period of 7 years and
to pay a fine of Rs. 2,000/- and in default of payment of fine, to undergo
SI for 15 days. For his conviction under Section 186 of the IPC, he has
been sentenced to undergo RI for a period of 3 months. For his
conviction under Section 353 read with Section 332 of the IPC, he has
been sentenced to undergo RI for a period of 2 years and for his
conviction under Section 411 of the IPC, he has been sentenced to
undergo RI for a period of 1 year. All the sentences were to run
concurrently.
2 Nominal roll of the appellant reflects that as on date, he has
completed incarceration of about 6 years and 4 months.
3 Learned counsel for the appellant at the outset submits that the
conviction of the appellant under Section 397 read with Section 392 of
the IPC is ill-founded. Admittedly Section 397 is an individual offence
and in the absence of the prosecution having failed to prove its case to
the hilt that the "use" of the "deadly weapon" was done by the appellant,
his conviction could not have been called for.
4 Attention has been drawn to the record.
5 Record shows that there were four persons who had been
apprehended pursuant to the complaint made by Vibhuti Kumar (PW-9).
Version of PW-9 was that on the fateful day i.e. on 19.01.2010 at about
08:40 pm when he was coming from his factory towards Azad Pur and
on reaching near the red light Mahendra Park, four boys aged 20-22
years come towards him and one boy showed him a knife and other boy
had a big sword like thing; they snatched his mobile phone. He raised
alarm. Boys started to flee. A police officer who was on patrol duty was
going on his bike. PW-9 narrated the incident to him (PW-5). PW-5
chased the boys and one was apprehended. As per further version of
PW-9, this boy was the person who had caught hold of him by his collar
and was the present appellant Salauddin. The other three boys armed
with iron rod, danda and baseball bat were also apprehended. One of
them hit that policeman on his head (PW-5) as a result of which he fell
down. The injured police officer was lifted and taken to the hospital.
The statement of PW-9 (Ex.PW-9/A) was recorded. Further version of
PW-9 was that four boys were carrying arms; one boy was having a
talwar; the other was having a knife; another boy was having a danda
and the 4th boy was having a rod. In his cross-examination, he had stated
that appellant Salauddin was the boy who had shown him the sword.
6 Constable Sombir (PW-5) was the injured policeman. He has
corroborated the version of PW-9 to the extent that PW-9 had told him
that four boys who had committed robbery upon him were attempting to
flee; the first person apprehended by him was one Aslam; out of the four
boys, one boy was having danda; the other was having iron rod and third
was having sword like object. PCR was called. His statement (Ex.PW-
5/A) was recorded.
7 Relevant would it be to note that whereas PW-9 had stated that
the person who was first apprehended was appellant Salauddin, PW-5
had stated that he had first apprehended Aslam. The role attributed by
PW-9 to Salauddin was that Salauddin had caught hold of him by his
collar; in a later part of his deposition, he stated that Salauddin was the
person who had shown him the sword. Admittedly the sword has not
been recovered. There were three weapons of offence which were
recovered and they were one knife, iron rod and danda. The vehement
submission of the learned counsel for the appellant is that the role
attributed to the appellant is confusing; whereas PW-9 had stated that
Salauddin was the person who was first apprehended and caught hold of
him by his collar and shown him a sword like object, deposition of PW-
5 was to the effect that it was Aslam who had been apprehended first.
Admittedly, the sword like object which was shown by Salauddin was
not recovered.
8 In this context, the following observations of a Bench of this
Court in MANU/DE/2866/2013 Dinesh Rai Vs. State are relevant; they
read 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 S. 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 S. 397. The accused could be convicted under S. 392." (emphasis
added)".
9 Reliance by the learned counsel for the appellant on this judgment
works in his favour as in the absence of recovery of the weapon on the
basis of which the conviction under Section 397 has been founded, calls
for a modification of his conviction. This is more so in view of the fact
that in the entire judgment passed by the Trial Court, the Court has not
discussed even a single line as to what was the special role attributed to
the present appellant to convict him under Section 397 whereas all other
co-accused have been convicted under Section 392 of the IPC. In fact
the recovery of all the three weapons i.e. danda, iron rod and knife were
from three other co-accused and they have been separately convicted
under Section 25 of the Arms Act. The sword like object allegedly used
by the appellant was never recovered. Moreover in the first part of the
version of PW-9, the only role attributed to the appellant was that he had
caught hold of him by his collar; as per PW-5 the first person who had
been apprehended was Aslam and not Salauddin which is in conflict
with the version of PW-9 who had stated that the first person
apprehended was Salauddin.
10 Accordingly, benefit of doubt must accrue in favour of the
appellant and his conviction under Section 397 is modified to one under
Section 392 of the IPC. Noting the above facts as also the nominal roll
of the appellant which reflects that he has already undergone
incarceration of 6 years and 4 months, the sentence already suffered by
the appellant be treated as the sentence imposed upon him. No
modification is called for in the fine which has been imposed upon him.
Subject to deposit of fine, the appellant be released forthwith, if not
required in any other case.
11 With these directions, appeal disposed of.
12 A copy of this order be sent to the Jail Superintendent for
intimation to the appellant.
INDERMEET KAUR, J
SEPTEMBER 03, 2015
A
