Messar Ali vs The State
2017 Latest Caselaw 1674 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI
                                   Date of Decision : March 30th, 2017
+   CRL.A. 455/2000
    MESSAR ALI
                                                            ..... Appellant
                              Through:   Mr. Chetan Lokur, Mr. Nitish
                                         Chaudhary, Advocates


                     versus

    THE STATE
                                                             ..... Respondent
                              Through:   Mr. Panna Lal Sharma, Additional
                                         Public Prosecutor for the State

    CORAM:
    HON'BLE MR. JUSTICE P.S.TEJI

                                    JUDGMENT

P.S.TEJI, J

1. The present appeal has been filed being aggrieved by the

judgment of conviction dated 25.05.2000 convicting the

appellant under Section 397 r/w Section 34 IPC and also

Section 411 IPC and order on sentence dated 26.05.2000

vide which the appellant was sentenced to undergo seven

years rigorous imprisonment with fine of Rs.5,000/- for the

offence under Section 397 read with 34 IPC, in default of

payment of fine, the appellant had been ordered to further

undergo simple imprisonment for six months. The appellant

was sentenced to undergo rigorous imprisonment for one

year and a fine of Rs.1,000/- and in default of payment of

fine 3 months simple imprisonment for the offence

punishable under Section 411 IPC. Appellant was further

sentenced to undergo rigorous imprisonment for two years

and a fine of Rs.1,000/-, and in default of payment further SI

for three months for the offence punishable under Section

27/54/59 Arms Act.

2. The factual matrix emerging from the record is that on

12.05.1998, Constable Ajai Kumar along with SI Sanjiv

Sharma and Constable Giriraj was present in Yamuna Vihar

for the purpose of checking vehicles. At about 9.30 PM,

TSR No. DL 1R 8643 came from the side of Seelampur and

an alarm was being raised in the T.S.R of "bachao bachao"

and on hearing the same, the vehicle was stopped by the

police. The driver of the TSR, accused Saleem (juvenile),

tried to flee the spot but was apprehended by Const. Ajai

Kumar. Accused Kishore @ Kalu (juvenile) was sitting

beside the driver while other occupants were found to be

accused Messar Ali and Mehboob. Accused Messar Ali was

found to possess a buttondar knife whereas accused

Mehboob was found to possess a khukhri on his person.

Upon inquiry of the accused, it was found that they had

robbed one Rakesh Kumar Bhatnagar of two currency notes

of Rs. 100 each, which were recovered from the pocket of

the shirt of accused Messar Ali, whereas robbed wrist watch

was recovered from co-accused Mehboob.

3. Subsequently, on the recording of statement of complainant

Rakesh Kumar, FIR No.251/98 was lodged under Sections

394/412/34 IPC. A separate FIR No.252/1998 was lodged

against accused Messar Ali under Section 27/54/59 Arms

Act. Thereafter, accused was arrested and upon completion

of investigation, charge sheet was filed against accused

Messar and Mehboob under Sections 397 r/w Section 34

IPC, along with Section 411 IPC (S.C. No.88/1998). A

separate charge sheet was also filed u/s 27/54/59 Arms Act

against accused Messar Ali (S.C. No. 88/1998). The learned

Trial Court clubbed both the cases and passed a common

judgment which is under challenge.

4. Charges under Section 397 read with Section 34 IPC and

411 IPC were framed against both the accused. A charge

under Section 27/54/59 Arms Act was framed against

accused Messar Ali. Both the accused persons pleaded not

guilty and claimed trial.

5. The prosecution in order to prove the charges had examined

11 witnesses, namely PW1 HC Dharam Singh, PW2 Nizam,

PW3 Ruksar, PW4 HC Hardev Singh, PW5 Const Giriraj,

PW6 Const Ajai Kumar, PW7 Amit Aggarwal, PW8 Const

Sushil Kumar, PW9 Rakesh Kumar Bhatnagar, PW10 SI

Sanjeev Verma and PW11 HC Lokender Singh.

6. After completion of prosecution evidence, the statements of

the accused persons were recorded under Section 313 of the

Cr.P.C. The appellant did not prefer to examine any witness

in his defence.

7. The appellant and co-accused Mehboob were held guilty by

the learned Additional Sessions Judge vide judgment of

conviction dated 25.05.2000 and order on sentence was

passed on 26.05.2000.

8. Proceedings against juveniles Salim (juvenile) and Kishore

@ Kalu (juvenile) were initiated before the Juvenile Justice

Board and they were convicted vide judgment dated

19.01.2007 under Section 392/397/34 IPC read with 394/34

IPC. Against the judgment of conviction, co-accused

Mehboob preferred an appeal before this Court vide Crl.A.

No.389/2000. During the pendency of appeal, accused

Mehboob had expired and consequently the proceedings

against him stood abated vide order dated 14.09.2010.

9. Argument advanced by the learned counsel for the appellant

is that the appellant has been wrongly convicted under

Sections 27/54/59 of the Arms Act as the "buttonder knife"

alleged to have been found on the person of the accused does

not fall within the ambit of the said sections. It was also

alleged that Section 397 and Section 411 are not made out in

the present matter. Further, the injury caused to the

complainant was of a minor nature and not caused on the

vital part of the body, even if it is assumed that the accused

caused the said injury. The learned counsel for the appellant

has also submitted that there are material contradictions in

the statements of the prosecution witnesses.

10. Per contra, argument advanced by learned Additional Public

Prosecutor for the State is that the appellant has been rightly

held guilty under 397 r/w Section 34 IPC and also under

Section 411 IPC by the trial court. The complainant and

other witnesses have deposed against the appellant and

narrated the role played by him at the time of commission of

offence. There is sufficient evidence against the appellant to

hold him guilty and there is no infirmity in the judgment of

conviction.

11. Arguments advanced by the counsel for the appellant as well

as learned APP for the State were heard. It is apparent from

the record that after filing of the present appeal, the sentence

awarded to the appellant was suspended vide order dated

18.09.2000.

12. To appreciate the arguments advanced by both the sides, I

have gone through their submissions and material available

on record meticulously.

13. The complainant in the present case is PW9 Rakesh Kumar

Bhatnagar. In his testimony, PW9 had deposed that on

13.05.1998 at about 9/9.15 PM after finishing work; he came

at Seelam Pur and hired a TSR for going to Yamuna Vihar.

Three boys were already sitting in that TSR which the

complainant also boarded. Upon crossing the red light of

Mojpur, one of the boys in the TSR placed a knife while the

other placed a khukri on the complainant and tried to snatch

his money. This witness then raised an alarm and one of the

boy gave him a knife blow in the palm of his right hand

upon which it started to bleed. This witness further stated

that at some distance some police personnel were checking

vehicles due to which the TSR driver stopped the TSR near

the police checking. One of the boys managed to flee while

the others were apprehended. This witness narrated his story

to the police at the spot and thereafter accompanied them to

the police station to file a report. This witness further

deposed that robbed currency notes were recovered from

accused Messer in his presence, whereas his wrist watch was

recovered from accused Mehboob. He identified the

recovered currency notes as Ex.P3 (1 to 2) and wrist watch

as Ex.P5 which was seized by the police. He also identified

the recovered knife as Ex.P2 and khukhri as Ex.P4 which

was seized by the police.

14. The other material witness to the incident is PW10 SI

Sanjeev Sharma. PW10 had deposed that on the day of

incident i.e. 12.05.1998, he was present along with Const.

Giriraj on patrolling duty around Yamuna Vihar and was

checking vehicles. At about 9.30 PM, a TSR No. DL 1R

8643 which was coming from Seelam Pur side and from

which a noise "bachao bachao" was coming, was made to

stop by him. On checking thereafter, PW 9 the complainant

was found to be seated inside along with four other persons

including the driver. One of the boys started running but was

apprehended and the accused Messer was apprehended by

Const Giriraj. This witness further stated that the

complainant PW 9 informed him that the accused persons

had committed robbery with him and looted him of Rs. 200

and a wrist watch, upon which he carried out a search of the

appellant and recovered two currency notes of denomination

Rs. 100 each and a buttondar knife which were identified by

the complainant on the spot.

15. PW 5 Const Giriraj corroborated the testimony of PW 10 in

as much as stopping the TSR and apprehending the accused

persons travelling therein, along with SI Sanjeev Kumar.

The said witness seized the articles found on the person of

accused Mehboob , i.e. a wrist watch and a khukri, being Ex.

PW5/A and 5/B respectively. The witness further stated in

his testimony that both accused were arrested via arrest

memo Ex. PW 5/F and 5/G, which bore his signatures.

16. From the testimony of the complainant PW9 Rakesh Kumar

Bhatnagar, PW10 SI Sanjeev Sharma and Const Giriraj

(PW5), it has duly been established that on the day of the

incident, appellant Messar Ali along with co-accused

persons robbed the complainant of two currency notes of Rs.

100 each, along with a wrist watch. The complainant duly

identified the appellant as one of the robbers and has also

stated that he was armed with a "buttonder knife" at the

relevant time of the alleged incident. There is nothing to

disbelieve the testimony of these witnesses. The defence

had cross-examined these witnesses at length, but failed to

put any dent to their testimony.

17. From the testimony of the above mentioned witnesses, it has

duly been established beyond any reasonable doubt that on

the day of the incident, the appellant along with co-accused

persons has committed the robbery of cash worth Rs.200 and

a wrist watch of the complainant while being armed with a

deadly weapon i.e. a buttondar knife in the present matter. It

has also been established beyond reasonable doubt that the

robbed money was recovered from the person of the

appellant when he was apprehended at the spot. There is no

justification for disbelieving the statement of PW 9, the

complainant who is the victim of robbery and his statement

inspires confidence and is entirely reliable and acceptable.

18. Contention raised by the counsel for the appellant that the

knife allegedly recovered from the appellant does not fall

within the meaning of deadly weapon or weapon so as to

cover the case under Section 27 of the Arms Act. There is

no force in this contention of the learned counsel for the

appeal for the reasons that he prosecution has also placed on

record the notification dated 17.02.1979 Ex.PW4/J according

to which acquisition, possession and carrying of spring

actuated knives, gararidar knives or buttondar knives which

open or close with any of the mechanical device with a blade

in size or gararidar knives with a blade of 7.62 cm or more

than in length and 1.72 cm or more than in breadth in public

place should be regularized. In the instant case, the knife was

a buttondar knife which was in contravention of the

aforesaid notification. As per the seizure memo and sketch

of the knife, the blade was of 10.8 cm in length and its

breadth was 2.6 cm. Therefore, the appellant was rightly

convicted under Section 27/54/59 of the Arms Act.

19. From the totality of evidence discussed above, the

prosecution has successfully established its case against the

appellant that he along with his co-accused persons had

committed the robbery of Rs.200/- and wrist watch of the

complainant. The offence under Section 397 IPC has also

been duly proved against the appellant as it has come in

evidence that at the time of robbery, he was armed with a

deadly weapon i.e. knife which is prohibited as per

notification Ex.PW4/J and he used the same while causing

injury to the complainant. The recovery of robbed money

from the appellant has also been duly established from the

evidence led by the prosecution.

20. From the perusal of testimony of the complainant (PW9) and

other eye witnesses (PW5 and PW10), it is apparent that the

accused did use a deadly weapon, the same being a buttondar

knife in the present matter and the same was recovered by

PW 5 and PW 10 upon apprehending the accused. The said

knife was also identified by the complainant present on the

spot along with two currency notes of Rs. 100 each and

complainant's wrist watch found on the person of the

appellant.

21. From the totality of the discussion made above, this Court is

of the considered opinion that the prosecution has

successfully established its case against the appellant for the

commission of robbery under Section 392/34 IPC and use of

a deadly weapon at the time of robbery punishable under

Section 397 IPC. Since, Section 397 IPC is an aggravated

form of Section 392, there was no need to separately

sentence the appellant under Section 392 IPC and he has

been rightly convicted under Section 397 IPC apart from

under Section 411 IPC and 27/54/59 of the Arms Act.

Therefore, the conviction of the appellant and sentence

awarded to him are upheld.

22. Appellant is on bail. His personal bond and surety bond

stands cancelled. He is directed to surrender within a period

of 15 days before the trial court concerned to serve the

remainder of sentence.

23. With the above observations, the present appeal stands

disposed of.

(P.S.TEJI) JUDGE MARCH 30, 2017 dd