Delhi High Court
Salim vs The State (Govt. Of Nct) Delhi on 12 October, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 29th August, 2022
Pronounced on: 12th October, 2022
+ CRL. A.189/2018
SALIM ..... Appellant
Represented by: Mr. Manu Sharma, Mr. Kartik
Khanna, Mr. Abhyuday Sharma
and Mr. Kartikay Mathur, Advs.
versus
STATE GOVT. OF NCT OF DELHI ....Respondent
Represented by: Mr. Prithu Garg, APP for State
with Insp. Ravindra Dagar, PS
Kamla Market.
+ CRL.A. 395/2018
[email protected] MADARI @ ASGAR ALAM ..... Appellant
Represented by: Mr. Piyush Pathak, Adv.
versus
THE STATE (GOVT. OF NOT DELHI) ..... Respondent
Represented by: Mr. Prithu Garg, APP for State
with Insp. Ravindra Dagar, PS
Kamla Market.
+ CRL.A. 396/2018
MOHD. UVESH ..... Appellant
Represented by: Mr. Manu Sharma, Mr. Kartik
Khanna, Mr. Abhyuday Sharma
and Mr. Kartikay Mathur,
Advs.
versus
STATE ..... Respondent
Represented by: Mr. Prithu Garg, APP for State
with Insp. Ravindra Dagar, PS
Kamla Market
Signature Not Verified
Digitally Signed
By:MANISH KUMAR CRL.A.189/2018 & other connected matters Page 1 of 33
Signing Date:13.10.2022
14:58:36
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
HON'BLE MR. JUSTICE ANISH DAYAL
JUDGMENT
ANISH DAYAL, J.
1. These connected appeals assail the following:
(i) Impugned judgment dated 14th December, 2017 passed by the
learned Trial Court convicting the appellants Salim, Mohd. Uvesh and
Alam for the offence punishable under Section 394 read with Section
34 IPC; appellant Salim and Mohd. Uvesh for offence punishable
under Section 302 read with section 34 IPC, Section 397 read with
Section 34 IPC and Sections 25/27 of the Arms Act; appellants Salim,
Mohd. Uvesh and Alam for the offence punishable under Section
120B read with Section 394/397/302 IPC; and
(ii) Order on sentence dated 15th December, 2017 awarding the
following sentences to the three appellants:
1. Appellant Salim
Sl. Section Sentence Fine Sentence in default
No. of payment of fine.
1. 394 r/w Imprisonment Rs. 1000/- Simple
Section for life. imprisonment for
397/34 IPC one month.
2. 302/34 IPC Imprisonment Rs. 1000/- Simple
for life. imprisonment for
one month.
3. 25 Arms Act Rigorous Rs. 1000/- Simple
Imprisonment imprisonment for
for 3 years one month.
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4. 27 Arms Act Rigorous Rs. 1000/- Simple
Imprisonment imprisonment for
for 7 years one month.
5. 120B r/w Imprisonment Rs. 1000/- Simple
Section for life. imprisonment for
394/397/302 one month.
IPC
2. Appellant Mohd. Uvesh
Sr. Section Sentence Fine Sentence in default
No. of payment of fine.
1. 394 r/w Imprisonment Rs. Simple
Section for life. 1000/- imprisonment for
397/34 IPC one month.
2. 302/34 IPC Imprisonment Rs. Simple
for life. 1000/- imprisonment for
one month.
3. 25 Arms Act. Rigorous Rs. Simple
Imprisonment 1000/- imprisonment for
for 3 years one month.
4. 27 Arms Act. Rigorous Rs. Simple
Imprisonment 1000/- imprisonment for
for 7 years one month.
5. 120B r/w Imprisonment Rs. Simple
Section for life. 1000/- imprisonment for
394/397/302 one month.
IPC
3. Appellant Alam @ Madari @ AsgarAlam
Sr. Section Sentence Fine Sentence in default
No. of payment of fine.
1. 394/34 IPC Imprisonment Rs. Simple
of life. 1000/- imprisonment for
one month.
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2. 120B r/w Imprisonment Rs. Simple
for life.
Section 1000/- imprisonment for
394/397/302 one month.
IPC
All sentences of all the convicts were to run concurrently.
Two other accused viz. Munavvar and Mehboob were acquitted by the
impugned judgment dated 14th December, 2017 by the learned Trial
Court
The Incident
2. As per the case of prosecution, Mohd. Shakeel (the
complainant) carried on the business of handicraft on 3rd Floor of a
rented house bearing P-165, Zakir Hussain College, Shakur ki Dandi,
Delhi where he used to reside along with his co-workers Mohd.
Hasibul Alam, Devanand Kumar Sharma, Mohd. Feroz, Govind and
Mohd. Shahid. On 8th October, 2012, at about 11:30 a.m. while all
these persons were doing their work, one person 22-23 years of age
came into the room and went away and later during the day was
accompanied along with three other persons who entered the room and
closed the door by bolting it from inside. One of the persons took out
his pistol, pointed it at them and asked them to give whatever was with
them. Mohd. Shakeel and the other occupants stated that they had
nothing with them. Upon hearing this, the intruders started beating
them and snatched mobile phones of Mohd. Shakeel, Mohd. Hasibul
Alam and Govind and beat up Mohd. Shakeel due to which he
received injuries on his left foot. The intruders searched the clothes
which were hanging in the room and took out around Rs. 7,000 or
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8,000/- and left the house after closing the door from outside. Mohd.
Shahid, one of the occupants came out from the window, unbolted the
door from outside and raised a hue and cry. Many public persons
collected in the street and tried to catch the intruders. One of the
public persons chased the intruders and caught one of them but was
shot in the head by them, due to which he fell, and the intruder was
able to run away while firing. SI Pradeep (PW-42) was posted at PS
Kamla Market and around 11:45 a.m. received DD No.14A that
brother of the caller had received a bullet injury. He reached Shakur
Ki Dandi along with PW- 10 Constable Lokpal and found a crowd of
people. He found that blood was scattered on the street near the chowk
at Shakur ki Dandi and found two empty cartridges and one live
cartridge. PW-42 called the Crime Team and later found another
empty cartridge near the wall of MTNL office at a distance of 5-6 ft.
from the spot. When he reached LNJP Hospital he came to know that
one injured namely Mohd. Sultan had died whereas another injured
PW-27 Nawab Ali was admitted in the emergency ward. After
collecting the MLCs, when PW- 42 reached the spot, he found that
Crime Team was already there and conducting their inspection. PW-
42 recorded the statement of PW- 19 Mohd. Shakeel and after making
an endorsement handed it over for registration of FIR to PW-10, on
the basis of which FIR No. 116 of 2212 was registered. The
investigation was assigned to Inspector (Investigation) Binod Kumar.
While the investigation was continuing SI Pramod Anand PW-35
received secret information on the basis of which PW-35 along with
PW-36 conveyed the information at the office Inspector, Special Staff
upon which ACP (Operation), Central District formed a raiding party.
At around 3:50 p.m. they reached DDU Park, DDU Marg and
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surrounded the park where they apprehended the appellant Salim
while he was trying to flee. He took out a country made pistol and
pointed it towards Constable Satbir PW-36 but before he could fire,
the constable caught hold of him. Constable Rakesh PW-37
apprehended the appellant Mohd. Uvesh while he was fleeing from the
other side of park. He too took out a pistol and was about to fire when
the constable caught hold of him. Two other associates were
apprehended by the members of the raiding party whose names were
revealed as Mohd. Shadiq and Mohd. Shamim and from their
possession one country made pistol and live cartridges were
recovered. However, since they were not the accused in the present
case, recovery from them is not relevant. Later, on information
provided by appellant Salim, Munavvar was arrested from the location
behind Delite Cinema and cashbox was recovered from him. After
completion of the investigation, chargesheet was filed and charges
were framed against all the accused. The prosecution during trial led
evidence of 43 witnesses, statements of the accused were recorded
under Section 313 Cr.P.C. and the evidence of one witness was led in
defence.
Submissions by the Appellant
3. The appellants through their counsel submitted that credibility
of the eyewitness PW-19 Mohd. Shakeel was doubtful since crime
scene report prepared on 8th October, 2012 in PW-19's presence didn't
mention any offence of robbery/dacoity. The counsel for the
appellants contended that even as per the case of the prosecution, the
firing happened by only one assailant when the incident of robbery
was over and when the accused persons were making good their
escape. Therefore, shots were fired at the point of time of when Alam
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and Manzar were caught and not when the offence was committed and
thus common intention under Section 34 IPC would not apply since
there was no pre-meditated plan to fire. Further there were
discrepancies in the ballistic evidence and the chain of the custody
since crime visit report mentioned 3 empty and 1 live cartridge
whereas the seizure memo of the bullets mentions 2 empty and one
live cartridge and bullets recovered from the body of the deceased and
the appellants are of different dimensions. Besides, the chain of
custody of firearm was vitiated because there was no record of safe
custody between 18th October, 2012 to 1st November, 2012, between
seizure and deposit in the maalkhana and between 18th March, 2013 to
2nd April, 2013 between return of the firearms to the PS with FSL
report and deposit in the makhana. The appellant contended that they
had been convicted solely based on constructive liability and the
prosecution was unable to prove beyond reasonable doubt as to how
Section 397/302/304 would be applicable to Mohd. Uvesh and Salim
as their presence on the spot itself was not proven. The counsel for the
appellant Alam argued in addition that there was serious doubt as to
who had opened fire which had killed the deceased and therefore
benefit of doubt should be given to the appellant Alam. The counsel
contended that prosecution has failed to establish a coherent story
regarding involvement of appellant and it could be safely concluded
that PW-19 and his other co-workers, as also PW-27 Nawab Ali, were
not eyewitnesses to the incident of firing. Reliance was placed on the
first information recorded in Call Report Ex. PW-16 which notes that
Sultan's brother Rizwan had called mentioning that Asif and Fahad
had shot his brother Sultan with whom he had an earlier quarrel. Since
no investigation regarding Asif and Fahad had been carried out, their
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participation in the situation cannot be ruled out. Prosecution was not
sure with respect to number of persons involved in the incident of
shooting as well as about the fact that who had fired. A perusal of the
testimonies of PW-18 and PW-25 would show that PW-19 was not the
witness of the incident of firing and that it was quite improbable that
having bolted the door from outside to flee the spot, Shahid was able
to unbolt the room and then go down from the 4 th floor where the
room was situated and then chase the assailants. Besides there was no
recovery effected from the appellant Alam.
Submissions by the Prosecution
4. Learned APP for the State has contended, countering the
arguments led by the appellants' counsel that post mortem report of
the deceased categorically opined that death was consequent upon
firearm ammunition injuries to the head and the chest which were
sufficient in the ordinary course of nature to cause death and that
injuries were sustained by PW-19 and PW-27; PW-19 sustained
simple injury on the left foot while PW-27 sustained grievous injury
on the forearm. PW-19 was the main eyewitness and he had deposed
that he was at the place where the armed robbery took place where he
ran the workshop. PW-25 is also an eyewitness, being co-worker of
PW-19, and identified the appellants Salim, Alam and Mohd. Uvesh
as the assailants who committed the armed robbery. The fact that
Alam had opened fire from his revolver and so had another fourth
companion of the assailants was confirmed in the deposition of PW-
19. There was recovery of weapon from appellant Salim and ballistic
evidence showed firing from the same weapon which resulted in the
death of the deceased. There was also a recovery of weapon from the
appellant Mohd. Uvesh, also forensically connected with the death of
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the deceased. Learned APP for the State stated that the armed robbery
was pre-meditated and pre-planned, and all the three appellants were
armed. During commission of robbery and their escape from the crime
scene when their fourth companion was caught by the deceased, the
appellants fired shots at the deceased and this was the cause of death
of the deceased and grievous injury to PW-27 Nawab Ali. All three
appellants have common intention of killing the deceased since they
all opened fire after seeing that their fourth companion had been
caught by the deceased. PW-19 was an injured eyewitness and
therefore his deposition ought to be given additional weight and
prosecution sought conviction of appellant Alam under the same
provisions as the other two appellants and sentence to be awarded
accordingly.
The Evidence
5. The evidence, as gleaned from the records and relevant for the
assessment of this matter, is inter alia as under:
5.1 PW-19, Mohd. Shakeel deposed that on 8th October, 2012 when
he was working with his co-workers at the 3rd floor premises, one boy
(identified as appellant Alam) came to that room and upon PW-19
enquiring on purpose of his visit, appellant Alam left. About 25-30
minutes later, appellant Alam accompanied by three others came to
that room, and PW-19 identified two of them as appellants Salim and
Mohd. Uvesh, whereas he did not identify the fourth companion who
was not present in Court. He stated that the appellants bolted the room,
started beating them and asked them to deliver whatever they had and
also threatened to kill them. He further stated that they were armed
with kattas (country made weapons) and appellant Alam was armed
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with a revolver. He suffered injuries on his left toe as a result of
beating and the assailants left with money worth Rs. 7,000/- to Rs.
8,000/- and four mobile phones taken from them. While leaving they
bolted the door from outside which was opened by Shahid by climbing
out of the window and thereafter, they rushed down the stairs and
raised an alarm. A person in the locality had caught hold of the fourth
companion (who was not present in the Court for identification).Then,
appellant Alam opened fire from his revolver at the person who had
captured their companion and the fourth companion also opened fire at
the person who had nabbed him. The person who had caught hold of
the fourth companion of the appellant was later identified as Sultan
(deceased) who died subsequently. In his cross-examination PW-19
stated that when the appellants entered the room, they were not
holding weapons but while they were beating, they had weapons. He
stated that the appellants ran away towards Zakir Hussain College and
the crossing where the incident happened was about 100 steps from
the building where the robbery had taken place.
5.2 PW-25, Mohd. Shahid corroborated the version of the incident
as was narrated by PW-19 and stated that when he went down the
stairs with PW-19 and reached the street they found one person lying
on the ground with bullet injury. He identified appellant Alam and
Salim as those who had committed the crime of robbery at their
room/factory. PW-25 was cross-examined by the APP since he was
resiling from the statement he had made to the police. In his cross-
examination he stated that the assailants so apprehended had opened
fire at the person who had captured one of them and the shot had hit
that person whereupon the assailants escaped and that he could
identify the said assailants when produced.
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5.3 PW-26, Mohd. Feroz was also one of the occupants of the room
where the robbery was committed and was an eyewitness who
corroborated the version of the incident narrated by PW-19. He also
stated that a person from the public had tried to capture the assailants
and was shot by one of the assailants, who he was not able to identify
in the Court. Learned APP cross-examined him since he was resiling
from his earlier statement. In his cross-examination he stated that he
was unable to identify the assailants because the occurrence had taken
place in a very short time.
5.4 PW-42, SI Pradeep deposed that upon receiving DD No. 14A he
reached the spot and found blood scattered on the street as well as two
empty cartridges and one live cartridge, and one empty cartridge was
found later near the wall of the MTNL office. He had summoned the
Crime Team who did their inspection and he made endorsement of the
statement by PW-19 based on which FIR was registered. Parts of the
blood-stained earth control had been taken by the Inspector Binod
Kumar and duly sealed.
5.5 PW-32, Sh. Hasibul Alam was also one of the co-workers of
PW-19 who corroborated what had been stated by PW-19. While he
testified to the events relating to the robbery at the room, he could not
provide any account relating to what had happened in the street during
the chase since he was inside the room.
5.6 PW-12, Dr. Anju Rani senior resident of Maulana Azad
Medical College conducted the post mortem of the deceased Sultan
and in her opinion the cause of death was due to cranio-cerebral
damage (head injury) consequent upon firearm ammunition injuries to
the head and chest which were individually and collectively sufficient
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to cause death in the ordinary course of the nature. She stated that all
injuries were ante mortem in nature and the injuries to the head and
chest were caused by ammunition of a rifled firearm.
5.7 PW-14, Dr. Shweta Senior Resident of Lok Nayak Hospital had
conducted the MLC of Shakeel PW-19 and stated that she had found a
wound measuring 1cm x 0.5 cm on the dorsum aspect of the left foot
and opined that the injury was simple.
5.8 PW-1, Dr. Yusuf Azad working as Junior Resident Lok Nayak
Hospital had medically examined PW-19 and observed two injuries on
PW-19 including a lacerated wound on the left foot.
5.9 PW-4, Dr. Anshul Goyal Senior Resident Lok Nayak Hosptial
testified that MLC of injured Nawab Ali had been prepared by Dr.
Aman Goyal who had left services of the hospital, but he could
identify the handwriting of Dr. Aman Goyal and as per the injury on
forearm of Nawab Ali was grievous in nature.
5.10 PW-5, Manoj Kumar Martolia also had medically examined
Nawab Ali and noted a wound on the forearm and another one on the
right thigh.
5.11 PW-24, Constable Nitesh Kumar was on duty in the CCTV
room of PS Kamla Market as CCTV operator. On being enquired by
the police team regarding CCTV footage of the area outside Zakir
Hussain College he stated that three CCTV cameras had been installed
and he provided the CCTV footage to Inspector Binod Kumar Singh
in the form of a CD. The CCTV footage on being displayed showed
four boys running away and crossing the road with the cash box with
one of them.
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5.12 PW-21, Mohd. Rizwan the brother of the deceased stated that at
about 11:15 a.m. on 8th October, 2012 when he reached Dhalan Chowk
he heard the noise of firing and saw public people running helter-
skelter. He then noticed his brother had sustained injuries and he took
him to the LNJP Hospital in a cycle rickshaw. On the way, his brother
passed away.
5.13 PW-43, Sh. Puneet Puri Assistant Director, Ballistics, FSL
deposed that he had received the parcels with the cartridges and
weapons recovered. The relevant part of his opinion is as under:
a) The improvised pistol 9 mm bore marked Ex.F1 was in
working order. Test fire was conducted successfully using the
cartridges marked A1, A2.
b) The improvised pistol 7.65 mm bore marked Ex. F2 was
in working order. Test fire was conducted successfully by using
cartridges A7, A8.
c) The improvised magazine marked Ex. M1 could be used
in the improvised pistol 9 mm marked Ex. F1.
d) The 7.65 mm cartridge case marked EC1, EC3 were fired
empty cartridges and had been fired through the improvised
pistol 7.65 mm bore marked Ex. F2. The individual
characteristics of firing pin marks and breech face marks present
on Ex. EC1, EC3 and on the test fired cartridges cases marked
A7 and A8 were found identical.
e) The 9 mm cartridge case marked Ex. EC2 was a fired
empty cartridge and had been fired through the improvised pistol
9mm bore marked Ex. F1 as the individual characteristics of
firing pin marks and breech face marked on Ex. EC2 were same
as those tests fired through cartridges A1 and A2.
The detailed report of the PW-43 was exhibited as Ex.43/A.
Further he opined that on opening of parcel No. 9, one bullet and one
deformed bullet were taken out. The deformed bullet marked Ex.EB2
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were corresponding to the bullet of 9 mm cartridge discharged through
the improvised pistol 9 mm bore while the bullet mark was
corresponding to the bullet of 7.65 mm cartridge could not be
identified with the discharge of improvised pistol 7.65 mm bore since
the individual characteristics were found insufficient for comparison.
It was further opined that gunshot residue particles were detected in
hole marked H1 on the backside of the T-shirt marked C1, hole
marked H2 on the back side of the baniyan Ex.C2, holes marked H4
and H5 on the lungi marked Ex. C6 and hole marked H6 on the front
side of the right sleeve of kurta marked Ex. C5 and H8 on the front
side of underwear marked Ex. C7.
5.14 DW- 1, Suhaib Hassan Khan stated that he did not know any of
the accused person except Munnavar whom he had met in the end of
2014 or beginning 2015 when he had come to his property to enquire
about his owner. There is nothing else in his evidence which is
relevant or useful for the case of the appellants.
Analysis
6. Having examined in detail the evidence on record and on an
assessment and appreciation of the contentions of the parties, the
following points are relevant in order to reach a conclusion by this
Court:
6.1 The incident which was prior in time is the armed robbery
which occurs at 3rd Floor of a House bearing No.P-165, Zakir Hussain
College, Shakur Ki Dandi, Delhi where PW-19, Md. Shakeel was
doing business of handicraft alongwith six co-workers. PW-19 and
PW-25 are the main eyewitnesses on which the case of the prosecution
rests. PW-19 has given a detailed account of the sequence of events
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which occurred on 8th October, 2012 at about 10:30 a.m. when four
persons came to that room armed with weapons i.e. kattas and
revolver. PW-19 categorically identifies appellant Alam in the Court
and appellants Salim and Mohd. Uvesh as companions of appellant
Alam. PW-25, Md. Shahid, one of the co-workers corroborates the
testimony of PW-19 and identifies appellants Alam and Salim in the
Court. As regards appellant Mohd. Uvesh, PW-25 stated that he
appeared to be one of the offenders who were involved in the
commission of crime but on the day of the occurrence Mohd. Uvesh
had a small beard. The fourth offender Manzar was a proclaimed
offender and therefore the issue of his identification did not arise.
PW-25 also confirmed that the offenders had weapons and had aimed
the same at PW-19.
6.2 As regards the other co-workers viz. PW-29 Govind, PW-32
Hasibul Alam and PW-33 Devanand, they resiled from their earlier
statements and were therefore declared hostile. PW-26 Md. Feroz,
also a co-worker and present on that day testified to the extent of the
robbery having occurred on that day however refused to identify the
accused appellants. PW-32 did testify that on the day of the incident
five people had entered into the room and put pistol upon them, started
beating PW-19 who was their employer and looted the money of PW-
19 before fleeing away from there. However, he also refused to
identify the accused appellants in the Court.
On the issue of Section 394/34 and 397 IPC
6.3 It is also evident from the testimony of prosecution witnesses
that assault by the robbers on that day resulted in injuries to PW-19.
This is corroborated by the testimonies of PW-25, PW-26 and PW-32,
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all of them having confirmed the act of the robbers beating PW-19.
PW-1, the doctor who examined PW-19 and prepared the MLC (Ex.
PW-1/A) on 8thOctober, 2012 reported the following two injuries on
PW-19: (a) lacerated wound measuring 1cm x 0.2 cm situated
medially on the left foot, and (b) swelling over upper lip i.e. towards
the right side of the face. PW-14 also submitted her report, the other
doctor who had examined PW-19 on that day (noted as part of her
report Ex. PW-14/A) that injury on PW-19 was simple in nature.
6.4 As regards the items which have been stolen during the said
robbery, PW-19 stated that the robbers took out Rs.7,000/- to
Rs.8,000/- in cash from their clothes which were hanging from the
pegs and in addition took away a cashbox containing coins and also
four mobile phones from the occupants of the room. This is
corroborated by PW-25 (to the extent of the cash from the clothes and
the cashbox). The cashbox is later identified in TIP proceedings by
PW-19 (Ex. PW-39/D) conducted before the learned Metropolitan
Magistrate PW-39 on 21st November, 2012. PW-24, Constable Nitesh
Kumar, who was on duty in CCTV room of PS Kamla Market
deposed that the CCTV footage from which a CD Ex. P-6 was
prepared showed four boys running away and crossing the road with a
cashbox with one of them. The time stamp on the recording was from
11:40 a.m. to 11:42 a.m. of 8th October, 2012.
6.5 Support for the testimonies of the eyewitnesses to the armed
robbery is also provided by the testimony of PW-18 Momin Khan who
ran a workshop of fancy lights at the first floor of the same building
where the robbery had occurred. He testified that about 11:00-11:15
a.m. on that day, four people had come to the first floor. When he
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asked them about the purpose of the visit one of them mentioned that
they had come to meet PW-19 Mohd. Shakeel and then went to the
fourth floor. About 15 minutes thereafter, PW-18 saw those four
persons going downstairs and 2-3 minutes thereafter, PW-19 came
rushing down and crying that they had been robbed and that he had an
injury on the toe.
6.6 On the basis of the above evidence on record and consistent,
cogent and credible testimony principally of the injured eyewitness
PW-19, Mohd. Shakeel, corroborated to the extent of robbery by PW-
25, PW-32, PW-26 and as regards identification of at least 2 of the
appellants, by PW-25, this Court is of the considered view that the
three appellants identified namely Salim, Mohd. Uvesh and Alam
were all collectively and with common intent guilty of the offence of
armed robbery. Therefore, they are liable to be convicted for offences
punishable under Sections 394 read with Section 34 IPC. The
prosecution has proved beyond reasonable doubt that there was
common intent to commit robbery, and voluntarily causing hurt in
committing the robbery. In addition, they were all brandishing deadly
weapons i.e. kattas and a revolver and had threated to kill the victims
if they raised an alarm, as per the eyewitnesses. This fact of being in
possession of a deadly weapon and using it to terrorize the victims
would bring in within the scope of Section 397 IPC. Section 397 IPC
is relatable to an "offender" who "uses" a "deadly weapon" during a
robbery and attempts to cause death or grevious hurt to any person.
Each of the offenders who were in possession of such a deadly
weapon and "used" it so in the robbery, would individually be liable
to be convicted for offence punishable under Section 397, Common
intent under Section 34 IPC would not therefore apply to an offence
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under Section 397 IPC. These aspects are clear from the decision of
the learned Hon'ble Supreme Court in Phool Kumar v Delhi
Administration (1975) 1 SCC 797, where the Hon'ble Court in
dealing with a robbery at a petrol pump where the appellant was
brandishing a knife, held that:
4. The last submission on behalf of the appellant was that
sentencing him to undergo rigorous imprisonment for seven
years under Section 397 of the Penal Code was illegal and
he ought to have been convicted under Section 392
simpliciter which would have enabled the Court on the facts
of this case to pass a lesser sentence of imprisonment.
Reliance was placed upon the majority opinion of the Full
Bench of the High Court of Punjab & Haryana in the case
of State v. Chand Singh [ILR (1970) 2 Punj and Har 108].
The argument was attractive at the first sight but did not
stand our careful scrutiny
5. Section 392 of the Penal Code provides:
"Whoever commits robbery shall be punished with rigorous
imprisonment for a term which may extend to ten years, and
shall also be liable to fine; and, if the robbery be committed
on the highway between sunset and sunrise, the
imprisonment may be extended to fourteen years."
The sentence of imprisonment to be awarded under Section
392 cannot be less than seven years if at the time of
committing robbery the offender uses any deadly weapon or
causes grievous hurt to any person or attempts to cause
death or grievous hurt to any person: vide Section 397. A
difficulty arose in several High Courts as to the meaning of
the word "uses" in Section 397. The term "offender" in that
section, as rightly held by several High Courts, is confined
to the offender who uses any deadly weapon. The use of a
deadly weapon by one offender at the time of committing
robbery cannot attract Section 397 for the imposition of the
minimum punishment on another offender who had not used
any deadly weapon. In that view of the matter use of the gun
by one of the culprits whether he was accused Ram Kumar
or somebody else, (surely one was there who had fired three
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shots) could not be and has not been the basis of sentencing
the appellant with the aid of Section 397. So far as he is
concerned he is said to be armed with a knife which is also
a deadly weapon. To be more precise from the evidence of
PW 16 "Phool Kumar had a knife in his hand". He was
therefore carrying a deadly weapon open to the view of the
victims sufficient to frighten or terrorize them. Any other
overt act, such as, brandishing of the knife or causing of
grievous hurt with it was not necessary to bring the offender
within the ambit of Section 397 of the Penal Code.
6. Section 398 uses the expression "armed with any deadly
weapon" and the minimum punishment provided therein is
also seven years if at the time of attempting to commit
robbery the offender is armed with any deadly weapon. This
has created an anomaly. It is unreasonable to think that if
the offender who merely attempted to commit robbery but
did not succeed in committing it attracts the minimum
punishment of seven years under Section 398 if he is merely
armed with any deadly weapon, while an offender so armed
will not incur the liability of the minimum punishment under
Section 397 if he succeeded in committing the robbery. But
then, what was the purport behind the use of the different
words by the Legislature in the two sections viz. "uses" in
Section 397 and "is armed" in Section 398. In our judgment
the anomaly is resolved if the two terms are given the
identical meaning. There seems to be a reasonable
explanation for the use of the two different expressions in
the sections. When the offence of robbery is committed by an
offender being armed with a deadly weapon which was
within the vision of the victim so as to be capable of creating
a terror in his mind, the offender must be deemed to have
used that deadly weapon in the commission of the robbery.
On the other hand, if an offender was armed with a deadly
weapon at the time of attempting to commit a robbery, then
the weapon was not put to any fruitful use because it would
have been of use only when the offender succeeded in
committing the robbery.
7. If the deadly weapon is actually used by the offender in
the commission of the robbery such as in causing grievous
hurt, death or the like then it is clearly used. In the cases
of Chandra Nath v. Emperor [AIR 1932 Oudh 103] ;Nagar
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Singh v. Emperor [AIR 1933 Lah 35] and Inder
Singh v. Emperor [AIR 1934 Lah 522] some overt act such
as brandishing the weapon against another person in order
to overawe him or displaying the deadly weapon to frighten
his victim have been held to attract the provisions of Section
397 of the Penal Code. J.C. Shah and Vyas, JJ. of the
Bombay High Court have said in the case of Govind Dipaji
More v. State [AIR 1956 Bom 353] that if the knife
"was used for the purpose of producing such an impression
upon the mind of a person that he would be compelled to
part with his property, that would amount to „using‟ the
weapon within the meaning of Section 397."
In that case also the evidence against the appellant was that
he carried a knife in his hand when he went to the shop of
the victim. In our opinion this is the correct view of the law
and the restricted meaning given to the word "uses" in the
case of Chand Singh [ILR (1970) 2 Punj and Har 108] is
not correct.
(emphasis supplied)
6.7 Therefore, each of the appellants in this case who were
brandishing a deadly weapon during the robbery and within the visual
sight of the victims who were terrorized into not resisting, ought to be
convicted for the offence punishable under Section 397 IPC. However,
the learned Trial Court, while convicting appellant Salim and Mohd.
Uvesh for the offence punishable under Section 397 (maybe because
weapons were recovered from them later when arrested) convicted
appellant Alam for conspiracy under Section 120(B) inter alia for the
offence under Section 397 IPC but not the offence itself. This Court is
of the considered view that considering that that PW-19 specifically
identified that Alam had wielded a revolver, and which was a deadly
weapon during the act of robbery, it would attract the substantive
offence punishable under Section 397 IPC as well and not merely with
the aid of Section 120B IPC, for which substantive offence charge
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under Section 397 IPC was also framed. The conviction of Salim and
Mohd. Uvesh is sustained under Section 25/27 of the Arms Act for
being found in possession of the weapons and having used the
weapons at the time of commission of offence.
On the issue of separation of the robbery and the firing
6.8 As regards the second incident of the firing in the street by
some of the robbers in order to make good their escape and in the
process killing the deceased Sultan and injuring another Nawab Ali,
both passersby, the contention of the learned counsel for the appellants
that the act of robbery and the act of firing in the street should been
seen as two separate transactions and events does not, in the facts and
circumstances of this case, find approval of this Court. There was a
ceaseless, inexorable continuum in the act of robbing by the appellants
armed with deadly weapons and then decamping with the loot and in
the process of being resisted by persons in the street, using their
weapons to cause injury and death in order to make their escape
successful. In such a situation, it would be difficult for this Court to
accept that these two acts of robbery and firing be severed and
examined with two different lenses. The definition of "robbery" in
Section 390 IPC itself provides that the act of robbery includes within
its scope the act of carrying away or attempting to carry away the
stolen property and causing or attempting to cause in that process
death/hurt/wrongful restraint or fear thereof. For ease of reference
Section 390 IPC is extracted hereunder:
"390. Robbery. - In all robbery there is either theft or extortion.
When theft is robbery. -- Theft is "robbery" if, in order to the
committing of the theft, or in committing the theft, or in carrying
away or attempting to carry away property obtained by the
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theft, the offender, for that end, voluntarily causes or attempts
to cause to any person death or hurt or wrongful restraint, or
fear of instant death or of instant hurt, or of instant wrongful
restraint.
When extortion is robbery.--Extortion is "robbery" if the
offender, at the time of committing the extortion, is in the
presence of the person put in fear, and commits the extortion by
putting that person in fear of instant death, of instant hurt, or of
instant wrongful restraint to that person or to some other
person, and, by so putting in fear, induces the person so put in
fear then and there to deliver up the thing extorted.
Explanation.--The offender is said to be present if he is
sufficiently near to put the other person in fear of instant death,
of instant hurt, or of instant wrongful restraint."
(emphasis supplied)
6.9 In this case, therefore, the act of stealing property from the
victims premises and then decamping with the loot is a single
continuous process and if death/hurt/wrongful restraint is causes or
fear created thereof, then it would certainly come within the rubric of
"robbery" and in its wake, offences punishable under inter alia
Sections 392, 393, 394, 397, 398, 401 IPC depending on the fact and
circumstances. In a decision by the Single Bench of this Hon'ble
Court (delivered by one of us) viz. Tasleem v. State NCTof Delhi,
2018 SCC Online Del 7541, while deciding an appeal for offence
punishable under Section 392/397/34 IPC, it was held as under:
"15. Section 390 IPC which defines robbery thus provides
that in order to commit theft or while carrying away or
attempting to carry away property obtained by theft, if the
offender voluntarily causes or attempts to cause to any
person death or hurt or wrongful restraint or fear of instant
death or of instant hurt or instant wrongful restraint, the
same would be robbery and not theft. In the facts of the
present case while the appellant and co-accused while
fleeing away with the stolen goods i.e. rickshaw and rehri
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were being chased, the weapon of offence which is a deadly
weapon was shown and an instant fear of hurt was caused
to the complainant and other person. Thus the offence falls
within the ambit of Robbery as defined under Section 390
IPC punishable under Section 392 IPC.
Further, this Court relied upon a judgment of the Division Bench of
Bombay High Court in State of Maharashtra v.Vinayak Tukkaram
Utekar 1997 Cri LJ 3988 where it was held that:
„25. In our judgment inasmuch as during his act of taking
away the property obtained by the theft Respondent Vinayak
caused hurt to the informant, his act would fall within the
ambit of section 390, Penal Code, 1860."
26. Our view is fortified by the decision of the Apex Court
reported in 1980 Supp SCC 344 : AIR 1980 SC 788, Kusho
Mahton v. The State of Bihar cited by S.R. Borulkar learned
counsel for the appellant in both the appeals. We intend
reproducing the relevant portion from the same. It reads
thus:
„After hearing counsel for the parties, we are of the opinion
that the appellants have been rightly convicted under
section 395, Penal Code, 1860, because while carrying
away the stolen property they exploded cracker to frighten
the inmates of the house who wanted to pursue them‟.
27. We are in respectful agreement with the said judgment
of the Apex Court."
(emphasis supplied)
On the issue of Section 302/34 IPC
6.10 As regards the issue of whether the act of shooting the
deceased would additionally come within the rubric of Section 300
IPC and amount to murder or otherwise be an act of culpable homicide
not amounting to murder, this Court is of the view that not only did
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against the persons trying to resists the escape, but also was fired from
close range and not in air or the leg (which could have potentially
scared the apprehender) but in the head and chest causing death. A
bare perusal of the post mortem report would make it quite evident
that both the firearm injuries on the deceased were grave and had
caused severe internal damage leading to death. The question of it
being justified under any of the exceptions in Section 300 would also
not arise. Exception 4 cannot come to the rescue of the appellants
since there was no sudden fight or a sudden quarrel in a heat of
passion, but instead a deliberate attempt to escape and then voluntary
use of weapon for the purposes of making the escape with the
proceeds of crime. The conviction by the learned Trial Court of the
appellants, therefore, for the offence punishable under Section 302
IPC was appropriate and correct. In a decision of this Court in
Ramesh v State 2013 SCC OnLine Del 1885 in a case of similar
facts, it was observed and held as under:
10. We find that the facts in the case of Mohd. Aslam @ Aslam
v. State (supra) and the facts of the present case bear a degree
of similarity. In the said case, the Appellant and his alleged
accomplices had entered the premises of the family of the
deceased with the intention to commit robbery and were armed
with deadly weapons. Their entry was noted resulting in hue
and cry being raised. The robbery got aborted. The accomplices
of the Appellant managed to flee. The Appellant was
apprehended at the spot by the crowd but before he could be
finally pinned down, he fired at the deceased and his younger
brother from a close range. The former died and the latter was
injured. The Court held that though the Appellant may have had
no intention to kill but it could safely be said that he voluntarily
caused the death. Dwelling upon and highlighting the definition
of the word „Voluntary‟ as per Section 39 of the Penal Code,
1860 and the illustration thereunder, the Court held that the
fact that the accused was armed with dangerous weapon and
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the deceased was unarmed was sufficient to indict the accused
with the offence of murder. For the sake of ready reference,
Section 39 of the Penal Code, 1860 with the illustration are
reproduced hereunder:--
"39. "Voluntarily" - A person is said to cause an effect
"voluntarily" when he causes it by means whereby he intended
to cause it, or by means which, at the time of employing those
means, he knew or had reason to believe to be likely to cause it.
Illustration
A sets fire, by night, to an inhabited house in a large town, for
the purpose of facilitating a robbery and thus causes the death
of a person. Here, A may not have intended to cause death; and
may even be sorry that death has been caused by his act; yet, if
he knew that he was likely to cause death, he has caused death
voluntarily."
12. In the instant case, the ocular evidence of the two eye
witnesses PW 3 and PW 6, in our considered opinion,
sufficiently shows that there was no sudden fight. The
Appellant was armed with a katta for the purpose of
robbery. There was a scuffle for the bag from the hand of
the deceased and when deceased objected, the Appellant
fired with the country made pistol which hit the deceased on
the back side of the deceased. Thereafter, the deceased fell
down and Appellant ran towards Ghazipur village after
snatching his bag. When PW 3 Rajpal alongwith other
persons tried to apprehend the Appellant, the Appellant
made fire on him, which hit on his left hand in the wrist. The
PCR officials reached the spot and the Appellant was
overpowered by the public persons and the PCR officials. As
reiterated by the Hon'ble Supreme Court from time to time,
what has to be seen is the circumstances taken as a whole
for the purpose of judging whether there was a sudden fight
between the deceased and the accused. True, only a single
gun shot was inflicted but there is no denying the fact that
the wound was inflicted in the course of armed robbery. The
autopsy report Ex. PW 1/A showed a firearm entry wound .5
× .5 cm was present on the lower middle back over the
second lumbar vertebra. The edges of the wound was
showing blackening. The injury had gone to the underlying
vertebra and entered the abdominal cavity. The cause of
death was opined as ante-mortem injuries produced by a
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firearm projector and sufficient to cause death in the
ordinary course of nature. The blackening of the wound
clearly goes to show that the shot was fired from a short
distance. The accused was armed with a dangerous weapon
which he fired from close range resulting in the death of the
deceased. Thus, it could safely be said that he voluntarily
caused the death of the deceased, in as much as if his
intention was only to run away with the booty, he could have
fired the shot in the air to facilitate escape and if at all
needed, to fire on a non-vital part of the body such as leg of
the victim, but instead of doing so he fired from a close
range on the lower middle back over the second lumbar
vertebra, which proved fatal. As such, in our opinion,
considering the evidence on record the appropriate
conviction would be under Section 302 of the IPC. We are,
therefore, not inclined to alter the order on conviction of the
learned trial judge into one under Section 304, Part II IPC
or Section 304 Part I.
(emphasis supplied)
6.11 As regards the contention of the appellants that there was no
common intention on part of all appellants, since at best only one or
two of them had fired, and that too it was not clear as to which of the
appellants had fired, this Court notes the reliance of the counsel for the
appellant in this regard on a decision by Division Bench of this Court
in Fayaz Ahmed v. State (NCT of Delhi) (2018) SCC OnLine Del
9969. Even in a situation where the offenders are armed while
committing robbery but only one uses it to prevent resistance to their
escape and caused death, this Court held:
"55. It is a settled law that intention and knowledge to do a
certain act has to be gathered from the facts and
circumstances brought on record. The instant case is a case
of direct eye witness evidence, and not of circumstantial
evidence. The eye witnesses (PW9 & PW12) have
specifically deposed against the appellants that on the day
of the incident, they all were armed with deadly weapons i.e.
one was armed with a sword and other accused persons
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were armed with knives. Both these witnesses have deposed
that when deceased Nagender tried to resist the robbery
being committed by the appellants, he was stabbed with a
knife in his abdomen and as per the postmortem report, the
injury sustained in the abdomen of the deceased was the
cause of his death. It is also a settled proposition of law that
while ascertaining intention and knowledge to commit an
offence, the Court is required to see the type of weapon
used, nature of injury caused, blows given to the injured and
the severity of such blows, to reach to a conclusion whether
it is a case of murder, or culpable homicide not amounting
to murder. In the instant case, as per the deposition of PW9
and PW12, all the appellants came armed with deadly
weapons at the time of committing the offence. As per post
mortem report Ex. PW17/A of the deceased, the deceased
had sustained three incised wounds on his body and the
severity of the blow caused to his abdomen was such that it
resulted into not only the cutting of the abdomen area, but
perforation of inferior vena cava. The measurement of the
said wound was 27 cm in length. PW17-who conducted the
postmortem specifically stated that the patient may or may
not have survived, as in the present case, major blood vessel
had been injured and the wound was quite big which was
sufficient to drain out the whole blood of the body within a
few minutes. So, in these circumstances, we are of the view
that the appellants had the intention and knowledge in
committing murder of the deceased, and they cannot seek
resort to Section 304 IPC. The prosecution has been able to
establish its case against the appellants that they committed
the robbery, and when they were resisted by the deceased,
they have committed the murder of the deceased. Thus, the
present case falls within the meaning of „murder‟ as defined
in Section 300 IPC, and punishable under Section 302 IPC.
56. In view of the above discussion, we do not find any merit
in the present appeals. The prosecution has successfully
established its case against the appellants that they have
committed the robbery in the factory premises of PW3 on
the day of the incident. The prosecution has also established
beyond reasonable doubt that the appellants in furtherance
of their common intention, committed the murder of the
deceased. It has also been established beyond reasonable
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doubt that at the time of commission of robbery, the
appellants were armed with deadly weapons and they used
the same while committing the robbery, so as to cover the
case within the four corners of Sections 302/392/34 IPC,
397 IPC and under Sections 25/27 of the Arms Act. The
appellants have failed to make out any case in support of
their appeals."
(emphasis supplied)
6.12 Assessing the evidence available on record in relation to the
incident of firing and resultant death of Mohd. Sultan, it is evident
from the depositions of the eyewitnesses to the robbery PW-19, PW-
25 and the neighbour PW-18 that immediately after the incident of
robbery PW-19 and PW-25 had rushed down in pursuit of the robbers.
PW-19 specifically states that he met PW-18 on the staircase when he
rushed out of his room and told him regarding the robbery and
beatings and then PW-18 accompanied him to go after the robbers.
PW-25, despite confirming that he was the one who unbolted the door
by coming out through the window, and that he and PW-19 came
down the stairs to reach the street, did not confirm the presence of
PW-18 on the staircase when he and PW-19 were rushing down the
stairs. However, in the considered opinion of this Court this would be
a minor discrepancy in the otherwise consistent testimonies that PW-
25 along with others did go down the stairs to the street after the
robbers. A perusal of the scaled site plan Ex. PW-13/A would show
that the distance between the building where the robbery had taken
place and the spot where the deceased Sultan and the injured Nawab
Ali were found, is about 66 meters. This is the same spot where later
two empty cartridges and one live cartridge were found by the police
team. It is also evident from the site plan that at another point which
was further down along the lane running perpendicular to the spot
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where the firing had taken place, another empty cartridge was found at
a distance of about 50-100 meters. This would show that the
assailants ran down from the building along the lane and continued to
fire while they were running away.
6.13 The contention of the appellants that it was not clear as to who
had fired the bullet which led to the fatality of Sultan and the injury of
Nawab Ali needs to be examined in some detail. PW-19 in his
testimony states that when he came downstairs, he noticed a person of
the same locality having caught hold of the fourth companion of the
robbers, besides the three identified appellants. He specifically points
out towards appellant Alam as the one who opened fire from his
revolver at the person who captured their fourth companion and the
fourth companion also opened fire at the person who nabbed him.
Pursuant thereto, the said person from the public, later identified as
Sultan fell down at the spot. PW-19 further stated that both Alam and
the fourth companion continued to fire and yet another passer-by later
identified as injured Nawab Ali also fell. PW-25 only states that when
they went down, they found one person lying on the ground with a
bullet injury and then returned back to his room. PW-25 to this extent
was resiling from his statement made earlier and therefore was
examined further by the learned APP. In his further examination, he
stated that it was these four offenders which were fleeing and the
fourth companion who was apprehended by the person passing-by was
the one who had opened fire. Later in his continued examination by
the learned APP, he again confirmed the use of a pistol by the person
who opened fire though he stated that since the occurrence took place
in such a short time, he was unable to identify the offenders. PW-26
stated that he chased the boys upto Dhalan Chowk alongwith PW-19
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and one of the offenders was captured by a person from the public
who was armed with a pistol and opened fire and resultantly the
person suffered the shot and fell down, whereupon the robber who
was being captured ran away through a narrow street by the side of the
office of MTNL. However, he could not identify the person who
opened the fire. PW-27 Nawab Ali, the injured eyewitness became
hostile and refused to identify his assailants in the street. His
testimony therefore is of no value to this Court except that he was
injured in an incident on that day in the afternoon at that place. On the
conspectus of the testimonies assessed as above, it is quite clear that
while PW-25 and PW-26 do not give any specifics or identify the
person who used the weapon and fired at Sultan or Nawab Ali, PW-19
clearly deposed that it was appellant Alam who had fired as well as
the fourth companion who was not in the Court to be identified.
6.14 The counsel for the appellants heavily relied upon testimony of
PW-16 who recorded the PCR call PW-16/A, which noted that
Sultan's brother Rizwan said that the person who fired was Asif and
Fahad who lived at Mata Sundari and they have had an old enmity.
Rizwan deposed as PW-21 and stated that when at about 11:15 a.m. on
that day, he reached Dhalan Chowk he heard the noise of firing and
saw public persons running here and there. Then he saw his brother
Sultan having sustained injuries in the firing and took his brother to
LNJP Hospital in a cycle rickshaw. As regards the identification of
those who had fired, on further examination, he stated that when he
reached the spot his brother was already lying injured. In fact, in one
of his cross-examinations he states that he was getting his clothes
ironed when he heard the shots being fired and the place of occurrence
was about 100 steps from where he was and not visible from the said
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shop. His testimony that he suspected Asif and Fahad as persons
responsible for the attack on his brother Sultan therefore cannot be
accepted as trustworthy, credible or even remotely accurate.
6.15 It is therefore evident that since all four robbers had tried to
decamp with the robbed goods as had been seen on the CCTV footage,
at least two of them had fired at the passers-by who had tried to
apprehend them and ran from the spot while continuing to fire. This is
evident from the recovery of two empty (fired) cartridges and one live
cartridge from near Dhalan Chowk where the incident had occurred
and a further recovery of another empty (fired) cartridge from near the
boundary wall of MTNL building. This recovery was evident from
the testimony of PW-42, SI Pradeep, PW-9 SI Pankaj Kumar, PW-10
Constable Lokpal Singh and PW-30 Constable Shubh Ram.
6.16 It is therefore evident that the three appellants along with their
fourth companion had attempted to make good their escape with the
stolen goods from the place of robbery and each of them were armed
with a weapon, and while at least two of them had fired to cause the
death of Sultan and injury to Nawab Ali, the other two were part of the
common intention to escape with the goods.
6.17 The ballistics evidence in this regard, post recovery of the
weapons from appellant Salim and Mohd. Uvesh on 18th October,
2012 further reconciles with the recovery of the bullets and the
weapons. The ballistics expert PW-43 Puneet Puri gave his report Ex.
PW-43/A which established that the two pistols, one of 9 mm bore and
the other of 7.65 mm bore recovered from appellant Salim and Mohd.
Uvesh matched the fired empty cartridges recovered by the police
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team from the place of incident. Details of the relevant part of his
opinion have already been extracted above in para 25.
6.18 This Court finds that the reliance by the learned APP on the
decision of learned Hon'ble Supreme Court in State of A.P. v. M.
Sohan Babu, (2010) 15 SCC 69 discussing Section 34 IPC in the
context of armed robbery and murder is appropriate and supports the
case of the prosecution. The learned Hon'ble Supreme Court held as
under:
9. We find that in the facts of the case, the observations
given above are not correct. It cannot be ignored that the
two accused had entered the premises at midnight duly
armed with the intention of committing robbery. They were
also charged under Section 460 IPC on that account. It is
also in evidence that the deceased had managed to pin A-2
down to the ground and A-2 had caused one injury in the
stomach of the deceased while he lay on top of him. Two
injuries were thereafter caused on the thigh of the deceased
by A-2 and the other accused. It is also in evidence that
when the neighbours arrived on the scene they too were
caused injuries and threatened with dire consequences. To
say, therefore, that there was no intention on the part of the
accused to cause death would be carrying the matter a little
too far.
10. The High Court has been influenced by the fact that
there was no common intention on the part of the accused to
commit murder. We see, however, that the common intention
can be inferred from the circumstances of the case and that
the intention can be gathered from the circumstances as
they arise even during an incident. The initial purpose was
to commit robbery, but as the accused were armed with
knives which they had used repeatedly and effectively, they
were willing to kill as well and that they could not cause
more damage as they were overwhelmed and pinned down.
11. We, therefore, feel that the High Court's observation
that the matter fell under Section 304 Part I and not under
Section 302 IPC is erroneous. We, accordingly, set aside
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this part of the High Court judgment and restore that of the
trial court. The appeal is allowed..
(emphasis supplied)
Conclusion
7. In light of the above discussion and analysis, this Court finds
that the prosecution has been able to prove the guilt of the appellant
beyond reasonable doubt and the conviction of the three appellants is
therefore sustained. In addition, appellant Alam is also convicted for
offence punishable under Section 397 IPC. Sentences awarded by the
learned Trial Court are sustained and Alam's sentence for offence
punishable under Section 397 IPC would be the same as that for
offence punishable under Section 394 IPC. This Court finds no other
error in the impugned judgment of conviction and order on sentence
by the learned Trial Court. Appeals are accordingly dismissed.
8. Copy of this judgment be uploaded on website and be also sent
to Superintendent, Tihar Jail for intimation to the appellant and
updation of records.
(ANISH DAYAL)
JUDGE
(MUKTA GUPTA)
JUDGE
OCTOBER 12, 2022/rk
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Digitally Signed
Signing Date:13.10.2022
14:58:36
