Delhi High Court
Mohd. Guddu Shah vs State Nct Of Delhi on 21 September, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment :21.09.2015
+ CRL.A. 166/2013
MOHD. GUDDU SHAH
..... Appellant
Through Mr. Krishan Kumar, Adv.
versus
STATE NCT OF DELHI
..... Respondent
Through Ms. Meenakshi Dahiya, APP
+ CRL.A. 717/2014
ASHOK PATEL @ LAMBU
..... Appellant
Through Ms. Meera Bhariok, Adv.
versus
STATE NCT OF DELHI
..... Respondent
Through Ms. Meenakshi Dahiya, APP
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1 These appeals are directed against the impugned judgment and
order on sentence dated 27.09.2012 and 28.09.2012 respectively
wherein both the appellants i.e. Mohd. Guddu Shah and Ashok Patel had
been convicted under Section 392 read with Section 397/34 of the IPC.
Each of them had been sentenced to undergo RI for a period of 7 years
and to pay a fine of Rs.20,000/- and in default of payment of fine to
undergo SI for 6 months. Benefit of Section 428 of the Cr.PC had been
granted to the appellants.
2 Nominal rolls of the appellants have been requisitioned. Nominal
roll of appellant Mohd Guddu Shah reflects that as on date, he has
undergone incarceration of 5 years and 3 months which includes the
period of remission. Nominal roll of appellant Ashok Patel also reflects
that he has undergone incarceration of about the same period i.e. 5 years
and 3 months. Their jail conduct is also satisfactory.
3 The version of the prosecution is that on 19.05.2011 at about
07:00 am, a complaint (Ex.PW-1/A) was received in the local police
station which was to the effect that four persons were going by train
from Hazrat Nizammuddin railway station towards Khurja and just
when the train was about to leave, four persons aged 20-25 years entered
a boggie of the train and started quarrelling with each other; they asked
the passengers sitting in the boggie to vacate the seats; they took out
their knives and asked all the passengers to give their valuables or else
they would be stabbed. The complaint was lodged. The complainant was
Sonu (PW-1). His co-passenger Deva was examined as PW-2. Two
other persons were also travelling along with them in the train namely
Jagdev Prasad (PW-3) and Roopa Devi (PW-6). Accused persons
however managed to flee. The present two accused (out of four) were
arrested on 11.06.2011 i.e. after a gap of almost more than three weeks.
The weapon of offence could not be recovered. The mangalsutra
belonging to PW-6 was recovered from accused Ashok Patel.
4 On the basis of the aforenoted evidence, both oral and
documentary, collected by the prosecution, the accused persons were
convicted and sentenced as aforenoted.
5 On behalf of the appellants, the learned amicus curiae has argued
that the offence under Section 397 of the IPC is not made out as
admittedly the weapon of offence was not recovered and in the absence
of which it cannot be established whether it was a „deadly weapon‟ or
not within the meaning of Section 397 of the IPC. His second
submission being that the offence under Section 392 of the IPC is also
not made out as there are contrary version given by PW-1, PW-2, PW-3
and PW-6; it is not clear as to where exactly the offence had taken place
whether it was at railway platform or after the train had started moving;
there is discrepancy in the train number; who had shown the knife to
whom is also not clear and the conflicting version of the aforenoted
alleged eye-witnesses throws doubt on the veracity of the version of the
prosecution. Accused persons are entitled to an acquittal.
6 Needless to state that the learned Public Prosecutor has refuted
these submissions.
7 PW-1 was the complainant. He has on oath deposed that on the
fateful day when he along with his friend Deva (PW-2) come to
Nizamuddin Railway Station to go to Khurja; they were in the general
coach and they had boarded the train; four persons entered their boggie;
took out their knives and at the point of their knives asked all the
passengers to give their valuables; Ashok Patel had pointed the knife on
PW-1 and searched his pocket. Mangalsutra of his co-passenger Roopa
(PW-6) and mobile phone of Deva (PW-2) were also taken away.
8 In his cross-examination, he stuck to his stand stating that the
other co-passengers whose mangalsutra was robbed (PW-6) was sitting
in the same coach and he had not seen the incident; he denied the
suggestion that he is deposing falsely.
9 PW-2 (Deva) was the friend of PW-1 who has accompanied him
in the same boggie. PW-2 deposed that on the fateful day when he along
with PW-1 were at the railway station and had boarded the train to
Khurja and while in the general coach, four persons between 20-25
years of age came to their boggie armed with knives, they threatened
PW-2 and his co-passenger as also other passengers sitting in the coach.
PW-2 pointed out towards Guddu who had pointed out the knife towards
him. His mobile phone of Nokia make was also robbed. The
mangalsutra of their co-passenger was also taken away. In his cross-
examination, he admitted that there was light in the compartment but he
could not see the knife in the hand of accused Ashok Patel. He denied
the suggestion that he was deposing falsely.
10 PW-3 was another co-passenger and the husband of PW-6. He
was in different boggie. He has also deposed that four persons entered
their coach armed with knives, one of them placed knife on his neck and
took away his bag; he pointed towards accused Mohd. Guddu Shah. His
wife‟s mangalsutra was also stolen. In his cross-examination, this
witness stuck to his stand.
11 PW-6 was the wife of PW-3. She has deposed that 3-4 persons
have entered the train and they started snatching their goods; her
husband‟s briefcase and her mangalsutra was taken away. She identified
the mangalsutra which was shown to her as her own mangalsutra. TIP
proceedings of the said mangalsutra conducted before the concerned
Magistrate were proved as Ex.PW-6/A.
12 Testimony of the aforenoted witnesses clearly show that four
persons had entered their boggie (two persons arrested and two not
arrested) armed with knives they had attacked PW-1, PW-2, PW-3 &
PW-6 and their co-passengers. The accused persons had admittedly
robbed PW-3 of his briefcase and mangalsutra of PW-6. The Nokia
phone of PW-2 was also robbed. The accused persons were admittedly
arrested on 11.06.2011 and their refusal to join TIP for un-justifiable
reason lead the Court to rightly draw an adverse inference against the
accused persons.
13 The second Investigating Officer was examined as PW-18 namely
Inspector Ram Mehar Singh and it was in the course of his investigation
that the mangalsutra had been recovered pursuant to the disclosure
statement of accused Ashok Patel. The recovery was witnessed by an
independent witness namely PW-13.
14 However, the weapon of offence was not recovered and as such
whether the weapon i.e. the knife which was used in the commission of
crime was a "deadly weapon" within the meaning of Section 397 of the
IPC does not stand established. There is no gain saying that every knife
is a deadly weapon; its design, diameter, size, width, breadth and length
would all be the essential factors which have to be take into account to
arrive at such a fact finding; thus where the weapon of offence was not
recovered, the plea of the prosecution that the weapon was indeed a
deadly weapon did not stand established and in this regard, relevant
extract of the judgment of a coordinate Bench of this Court reported as
Rajender Yadav vs. State of NCT of Delhi 2013 VII AD Delhi 359 reads
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 use 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.
15 The factual matrix as narrated above persuades this Court to hold
that the conviction of the appellants under Section 397 of the IPC
requires a modification as the prosecution has failed to show that what
was used by the offender was in fact a deadly weapon. The conviction of
the appellants is accordingly modified from Section 397 to one under
Section 392 of the IPC.
16 This Court also notes that both the appellants have already
suffered a substantive period of incarceration i.e. 5 years and 3 months
which in view of this Court would be the sufficient sentence for their
conviction under Section 392/34 of the IPC. Thus the incarceration
undergone may accordingly be treated as the sentence imposed upon
them. Both the appellants be released forthwith, if not required in any
other case.
17 Appeals disposed of in the above terms.
INDERMEET KAUR, J
SEPTEMBER 21, 2015
A
