Delhi High Court
Nishad vs State on 4 May, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on : May 04, 2017
+ CRL.A. No.562/2000 & Crl.M.A. No.1235/2001
MOHD. KHALID ..... Appellant
Through: Mr.Harsh Prabhakar, Mr.Anirudh
Tanwar, and Mr.Harjeet Singh
Sachdeva, Advocates.
versus
STATE ..... Respondent
Through: Mr.Panna Lal Sharma, Additional
Public Prosecutor for the State with
Sub-Inspector Vineet, PS Anand
Vihar.
+ CRL.A. 594/2000
SITA RAM ..... Appellant
Through: Mr.Aditya Vikram, Mr.Harjeet Singh
Sachdeva, Advocates.
versus
STATE ..... Respondent
Through: Mr.Panna Lal Sharma, Additional
Public Prosecutor for the State with
Sub-Inspector A. Kumar, Police
Station Vivek Vihar.
+ CRL.A. 511/2001
NISHAD ..... Appellant
Through: Mr.Saurabh Kansal, Ms.Pallavi S.
Kansal, Advocates.
versus
STATE ..... Respondent
Through: Mr.Panna Lal Sharma, Additional
Public Prosecutor for the State with
Sub-Inspector A. Kumar, Police
Station Vivek Vihar.
Crl. A. No. 562/2000, 594/2000 & 511/2001 Page 1 of 15
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
JUDGMENT
P.S.TEJI, J.
1. By these three separate appeals filed under Section 374 of Cr.
P.C., the appellants seek to challenge the common judgment and order
on sentence dated 26.08.2000 passed in Session Case No.284/1996, by
the learned Additional Sessions Judge, Delhi in Sessions, whereby the
learned Additional Sessions Judge had convicted the appellants for the
offence punishable under Section 398 of IPC read with Section 25 of
the Arms Act and they have been sentenced to undergo rigorous
imprisonment for seven years and fine of Rs.10,000/- each for the
offence under Section 398 of IPC; and in default of payment of fine
they were ordered to undergo further simple imprisonment for a period
of two months. In addition, the appellants have been sentenced to
undergo rigorous imprisonment for one year each and fine of
Rs.1,000/- each for the offence under Section 25 of Arms Act.
2. Since the trial of all the applicants was commonly conducted
and all the appellants have been acquitted by the common impugned
judgment and have been awarded sentence by the common order on
sentence, therefore, with the consent of the counsel appearing on
behalf of all the appellants, arguments in all the appeals have been
heard together and all the appeals are being disposed of by this
common order.
3. The present case had been registered on the statement of
Kamlesh Garg, who made her statement before Inspector Baljit Singh
on the date of incident stating that she lived in the first floor with her
family. Her husband has a Bura shop in Anaz Mandi, and had left for
the same, her two children had left for school and she was in the house
alongwith a domestic help, Gore Lal. One Narender Kumar was her
tenant on the ground floor. On the day of incident, family of her tenant
Narender Kumar had gone out and her ground floor portion was
locked. At about 12.45 PM door bell rang and Gore Lal opened the
door. The appellant Nishad who had worked in the house as carpenter
for 4/5 days, entered the room alongwith four associates. One of the
intruders caught hold of Gore Lal. Nishad closed the doors of both the
gates of the first floor house. All the five offenders took out knives
and demanded cash and valuables. She gave ear tops and Nishad
pulled gold chain from her neck and snatched four gold bangles from
her wrists. The appellants demanded more money and jewellery but
she tried to put them off, whereupon she was slapped. Appellant -
Nishad told other cohorts that she had been operated upon and her
stomach would be split open if, she does not give more cash and
jewellery. She further stated that her mouth was gagged with a piece
of sari. The appellants opened the almirah lying in the room and
collected silver coins, silver jewellery including pajab and angoothi,
etc. and Idols of Laxmi and Ganesh of silver which were gold plated.
The appellants also took Rs.3,28,000/- kept in almirah in different
packets. The appellants also took a watch HMT mark with black dial
from the fridge. They put some of the articles in a black colored
suitcase on which sticker of her husband's name was pasted. While
leaving they imprisoned the servant in a box of the double bed and
threatened her with her life if she raised noise. Thereafter, they went
away. After recording the statement of Kamlesh Garg, Inspector Baljit
Singh prepared a rukka and sent the same for registration of a case
under Section 395 of IPC. Investigation commenced, crime team and
dog squad were called, statement of witnesses were recorded, site plan
was prepared on the pointing out of Kamlesh Garg. Three accused
persons were arrested on 17.08.1995 by different police parties, two of
the police stations Vivek Vihar and one of Police Station Anand Vihar
under the Arms Act.
4. Recoveries from the accused persons were affected.
Rs.2,50,000/- and gold jewellery in a steel deeba were recovered from
accused Sita Ram and seized under Section 102 of the Code;
Rs.10,035/- with silver coins, gold chain and tops were recovered
from Mohd. Khalid and seized; Silver coins, jewellery, two gold karas
were recovered from the accused Nishad and were seized. In addition
knives were also recovered from all the three accused persons.
Other accused Murslin was juvenile who is facing trial in the Juvenile
Court, Another accused Pappur @ Sahir could not be apprehended
initially and was declared proclaimed offender, who later on was
being tried in the Juvenile Court. All the accused persons refused to
participate in test identification parade. The recovered property
(except silver spoon) was correctly identified by Smt. Kamlesh Garg.
The case property was given to Smt. Kamlesh Garg on superdari.
5. After completion of the investigation, the chargesheet under
Section 395 of IPC were framed against all the three accused on
27.07.1996. Accused Nishad and Mohd. Khalid were also charged
separately for the offence under Section 25 of the Arms Act. It was not
felt necessary by the Trial Court to frame separate charge against
accused Sita Ram but in view of the fact that joint trial was being held
and the facts were well known to him. All the incriminating material
was put before the accused persons to which they pleaded not guilty
and claimed trial.
6. To prove the charges against the appellants, the prosecution
examined 21 witnesses. The relevant witnesses are, HC Abhay Singh
Yadav (PW-2); Smt. Kamlesh (PW-5), Constable Subhash Chand
(PW-6); Constable Ram Diya (PW-7); Gore Lal (PW-10); Sub-
Inspector Pyar Singh (PW-11), Head Constable Jakir Hussain (PW-
12); Constable Jitender (PW-15); Constable Dinesh (PW-16); Rajeev
Jain (PW-17); Head Constable Abay Singh (PW-19); Shri Devender
Kumar Sikri (PW-20); Inspector Baljit Singh (PW-21).
7. After conclusion of prosecution evidence, all incriminating
material was put before the appellants and their statements under
Section 313 Cr.P.C. were recorded. Upon considering the facts,
evidence led and the material on record, the learned Additional
Sessions Judge held the appellants guilty for an offence punishable
under Sections 398 of IPC and under Section 25 of the Arms Act, by
an order dated 26.08.2000, and vide order on sentence on the even
date, appellants were sentenced as indicated above. Hence, the
appellants have filed the instant appeals against the judgment and
order on sentence passed by learned Additional Sessions Judge.
8. The appellant - Nishad has challenged the judgment of
conviction and order on sentence, inter alia, contending that there are
material contradictions in the statements of the prosecution witnesses
which go to the root of the matter and create a substantial doubt in the
truthfulness of the prosecution version and the Trial Court has
overlooked many significant contradiction and irreconcilable
inconsistencies and has termed them as insignificant ones. Apart from
this, there is no independent corroboration and natural witnesses did
not support the prosecution case. As per learned counsel for the
appellant, relying on the testimony of complainant - Kamlesh Garg
and eye-witness Gore Lal who was a domestic help, the learned
Additional Sessions Judge has not considered the deliberate
improvement in their testimonies and other independent witnesses
present at the spot. Regarding not participating in Test Identification
Parade, it is contended that the incident was of 17.08.1995 and the
proceedings for conducting TIP were initiated after more than one
month, coupled with the deposition of the complainant during her
cross-examination that she was called in the police station to identify
the accused persons, at the time of their arrest. It is further contended
on behalf of appellant - Nishad that he had not made any disclosure
statement containing his confessional statement about the crime.
Learned counsel for the appellant further urged that the appellant -
Nishad was not arrested at the spot and unless and until his identity as
a culprit was established beyond doubt, the prosecution could not be
said to have proved its case.
9. Apart from the grounds raised on behalf of the appellant -
Nishad, learned counsel for the appellant- Mohd. Khalid, has
contended that the charge was framed under Section 395 of IPC but
when the learned trial court had fixed the date of 26.08.2000 and he
appeared before the court and as his counsel was not available at the
time of call of the case, the learned trial court without asking any
question from the appellant on the quantum of sentence, proceeded to
hold the appellant guilty of the alleged offence under Section 398 of
IPC and at the same time without giving any opportunity to make any
submission on the point of quantum of sentence proceeded to pass the
impugned order even without passing a formal order of amendment of
charge. Learned counsel for the appellant - Mohd. Khalid further
argued that the learned trial court had exceeded its jurisdiction while
passing the sentence to undergo rigorous imprisonment for seven
years and a fine of Rs.10,000/- for the offence under Section 398 of
IPC, whereas the law does not provide any provision of imposing fine
in the said offence. Further, no independent person was made a
witness to the arrest and recovery from the appellant. Lastly, it was
contended that there was no use of any weapon in the alleged incident
and recovery is also doubtful therefore the offence under Section 398
is not attracted in the facts of the present case.
10. Learned counsel for the appellant - Sita Ram contended that
vide order on sentence dated 26.08.2000, the appellant had been
awarded sentence without asking any question from the appellant on
the quantum of sentence and without giving any opportunity to make
any submission on the point of quantum of sentence and despite the
charge framed under Section 395 of IPC, the appellant has been
convicted under Section 398 of IPC and that too without passing any
formal order on amendment of charge. Therefore, non-compliance of
provisions of Section 216 of Cr. P.C. vitiates the whole proceedings of
the case as well as the order of conviction. Learned counsel for the
appellant - Sita Ram further argued that the learned trial court had
exceeded its jurisdiction while passing the sentence to undergo
rigorous imprisonment for seven years and a fine of Rs.10,000/- for
the offence under Section 398 of IPC, whereas the law does not
provide any provision of imposing fine in the said offence. Even no
independent person was made a witness to the arrest and recovery
from the appellant. It was also contended that there was no use of any
weapon in the alleged incident and recovery is also doubtful therefore
the offence under Section 398 is not attracted in the facts of the
present case. Lastly, it is contended that the appellant - Sita Ram had
remained behind bars for about 33 months and while considering the
facts and circumstances of the case the sentence of the appellant - Sita
Ram be reduced to the period already undergone by him.
11. The appellants have filed the instant appeals challenging the
aforesaid judgment on conviction as well as order on sentence. During
pendency of the present appeal, the sentence imposed upon the
appellant - Mohd. Khalid was suspended on 31.10.2002; appellant -
Sita Ram was suspended vide order dated 03.02.2003; and appellant -
Nishad was suspended on 17.07.2002.
12. Per contra, learned Additional Public Prosecutor for the State
has vehemently opposed the aforesaid contentions raised on behalf of
the appellants and submitted that the offence with which the appellants
have been convicted are the crimes against society. In this case, five
persons committed the dacoity duly armed with dangerous weapon
like knives, out of which two have been tried before the Juvenile
Justice Board. Apart from this, no material substance has been cited
on behalf of the appellants which could show that the statement of the
complainant - Kamlesh Garg was inherently improbable and no
ground has been provided as to why so many police officials conspire
to falsely implicate the appellants. Identification of appellant -
Nishad, Mohd. Khalid and Sita Ram are held satisfactory by the
learned Additional Sessions Judge. Prompt DD entry was made in
respect of the registration of the case, arrest of the accused persons
and the recoveries from accused Sita Ram in particular and other in
general also. Regarding framing of charge against all the appellants, it
is submitted that no doubt, the charge was initially framed under
Section 395 of IPC but all the appellants were carrying knives and
have common intention to commit robbery in the house of the
complainant, therefore, there is no illegality or infirmity in the
impugned judgment and order on sentence as passed by learned
Additional Sessions Judge. Therefore, the appeals filed by the
appellants are liable to be dismissed.
13. I have heard the submissions made on behalf of both the sides
and also gone through the evidence as well as material placed on
record.
14. Since the basis of registration of present case is the statement of
the complainant - Kamlesh Garg (PW-5), let her statement be
scrutinized for the better appreciation of the case. The impugned
judgment records that when Inspector Baljit Singh, on receipt of
information from Police Station Vivek Vihar on 17.08.1995 reached
the place of incident, he found that the household goods were scattered
in room. The complainant - Kamlesh Garg met him and stated that her
husband has a bura shop in Anaz Mandi. When he left for the shop
and her two children had also left for the school, she was in the house
with a domestic help Gore Lal. She stated that at about 12.45 noon
door bell rang, Gore Lal opened it. Appellant - Nishad entered the
room with his other four associates. One of the intruders caught hold
of Gore Lal. Appellant - Nishad closed the door of both the gates of
the first floor house. All the five offenders took out knives and
demanded cash and valuables. Nishad pulled gold chain from her neck
and snatched four gold bangles from her wrists. When she tried to put
them off, she was slapped. Her mouth was gagged with a piece of Sari.
The appellants opened the almirah and collected silver coins, silver
jewellery including pajab and angoothi etc. Idols of Laxmi and
Ganesh of silver which were gold plated. They also took Rs.3,28,000/-
kept in almirah. It is further stated that while leaving, they imprisoned
the servant in the box of the double bed and threatened her that if she
raised noise, she would be killed.
15. So far as recovery is concerned, Rs.2,50,000/- and gold
jewellery in a steel deeba were recovered from accused Sita Ram and
seized under Section 102 of the Code; Rs.10,035/- with silver coins,
gold chain and tops were recovered from Mohd. Khalid and seized;
Silver coins, jewellery, two gold karas were recovered from the
accused Nishad and were seized. In addition knives were also
recovered from all the three accused persons. The complainant as well
as Constable Ram Diya (PW-) have identified the entire case property
in court.
16. Eye witness - Gore Lal (PW-8) deposed in his statement that he
was domestic help to the complainant and was 12 years of age at the
time of incident. This witness clarified that he was put in the box of
double bed when the appellants prepared to leave. So far as the
identification of the appellants are concerned, it has been established
from the deposition of complainant Kamlesh Garg (PW-5) and Gore
Lal (PW-8) on the date of incident.
17. After going through the facts of the present case, this court has
observed that the prosecution has been successful in proving the
identification of the appellants at the time of commission of crime,
recoveries have been effected from the appellants and proved by the
prosecution.
18. After a cumulative reading of the evidence of the complainant
(PW-5) and Gore Lal (PW-8), who have identified the appellants and
the recoveries of robbed articles and the buttondar/giraridar knives
from the appellants, this court is of the considered opinion that the
prosecution has successfully proved the charges beyond all reasonable
doubts, against the appellants herein. Therefore, in the considered
opinion of this court, the impugned judgment dated 26.08.2000,
thereby convicting the appellants for the offence under Section 398
IPC read with section 25 of Arms Act does not suffer from any
illegality or infirmity and the same is accordingly upheld.
19. Coming to the order on sentence, this court has perused the
impugned order on sentence dated 26.08.2000 and observes that the
appellants have been sentenced to undergo rigorous imprisonment for
seven years and a fine of Rs.10,000/- for the offence under Section
398 of IPC despite they were charged under Section 395 of IPC. The
contention on behalf of the appellants thatby convicting the appellants
under Section 398 IPC and imposing fine of Rs.10,000/- the learned
trial court had exceeded its jurisdiction as Section 398 does not
provide for imposition of fine, has no merit in it for the reason that in
fact the trial was conducted for the commission of offence of robbery
under Section 395 of IPC, which does not debar the court to impose
fine alongwith the substantive sentence. It is only after considering the
recoveries of buttondar/giraridar knives from the appellants, the
learned Additional Sessions Judge has convicted the appellants for the
offence under Section 398 of IPC read with section 25 of Arms Act.
20. For better appreciation of the conviction under Section 398 of
IPC, Sections 395, 397 and 398 are reproduced hereunder:-
395. Punishment for dacoity.--Whoever commits dacoity
shall be punished with imprisonment for life, or with
rigorous imprisonment for a term which may extend to
ten years, and shall also be liable to fine.
397. Robbery, or dacoity, with attempt to cause death or
grievous hurt.--If, at the time of committing robbery or
dacoity, the offender uses any deadly weapon, or causes
grievous hurt to any person, or attempts to cause death
or grievous hurt to any person, the imprisonment with
which such offender shall be punished shall not be less
than seven years.
398. Attempt to commit robbery or dacoity when armed
with deadly weapon.--If, at the time of attempting to
commit robbery or dacoity, the offender is armed with
any deadly weapon, the imprisonment with which such
offender shall be punished shall not be less than seven
years."
21. In the light of the aforesaid description of the sections, while
adverting back to the facts of the present case, it is apparent that the
accused persons have committed dacoity having been possessed with
deadly weapon, therefore, they are rightly sentenced for the offence
punishable under Section 398 of IPC. In fact, for convicting the
accused for the commission of offence of robbery or dacoity, the
punishments awarded under Section 397 and 398 are the aggravated
forms of Section 395 IPC.
22. In the considered opinion of this Court, if the robbery or dacoity
is committed by a group of persons the offender shall certainly be
liable to be punished only for the offence under Section 395 of IPC
and when the robbery or dacoity is committed by a group and any
person uses any deadly weapon, or causes grievous hurt to any
person, or attempts to cause death or grievous hurt to any person,
then the offender shall be punished under Section 397 of IPC.
Similarly, section 398 of IPC prescribes for award of sentence for a
period not less than seven years, in case the offenders at the time of
attempting to commit robbery or dacoity, the offender is armed with
any deadly weapon. The embargo of Section 397 or 398 IPC for the
award of sentence is not less than seven years. In a nutshell, Section
398 IPC does not prescribe the sentence separately but it enhances the
sentence and fixes the minimum sentence of seven years for the
persons possessing a deadly weapon during commission of robbery or
dacoity and they are to be sentenced under the sections such as 398
IPC, which is nothing but an aiding section to the substantive offence
putting the bar on the minimum sentence of not less than seven years.
23. In the facts of the present case, the appellants were carrying
deadly weapons at the time of committing the robbery and dacoity and
since section 398 IPC does not constitute an independent offence
inasmuch as it is related to dacoity under Section 395 of IPC.
Basically, the appellants are convicted for the commission of offence
of dacoity (under Section 395 of IPC), which does not bar the court to
impose fine coupled with the substantive sentence.
24. To clarify further, the impugned judgment and order of sentence
is modified to the extent that the appellants are convicted and
sentenced for the offence punishable under Section 395 read with
Section 398 of IPC.
25. In view of the aforesaid discussion, finding no illegality or
infirmity in the impugned judgment and order on sentence dated
26.08.2000, thereby sentencing the appellants to undergo rigorous
imprisonment for seven years with fine of Rs.10,000/- each is
modified to the extent that the appellants are held guilty and convicted
for the offence punishable under Section 395 read with section 398 of
IPC. However, sentence for the offence under Section 25 of Arms Act
thereby sentencing the appellants to undergo rigorous imprisonment
for one year and fine of Rs.1,000/- each and in default, to undergo
simple imprisonment for 15 days each is upheld.
26. A cumulative consideration of the overall evidence on the facts
of the present case, this court does not find any merit in the appeals
filed by the appellants, therefore, the same are dismissed.
27. Appellants are on bail. Their bail bonds are cancelled and
sureties are discharged. Appellants are directed to surrender before the
trial court to serve out the remainder of their sentence.
28. A copy of this order be sent to the Trial Court for information
and necessary steps.
29. With aforesaid directions, the present appeal is disposed of.
(P.S.TEJI)
JUDGE
MAY 04, 2017
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