Delhi High Court
Ali Hussain S/O Mohd. Ali vs The State Nct Of Delhi on 16 January, 2024
Author: Sudhir Kumar Jain
Bench: Sudhir Kumar Jain
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: December 04, 2023
Decided on: January 16, 2024
+ CRL.A. 708/2023&CRL.M.(BAIL) 1229/2023
ALI HUSSAIN S/O MOHD. ALI ..... Appellant
Through: Ms. Astha, Advocate
(DHCLSC)
V
THE STATE NCT OF DELHI ..... Respondent
Through: Mr. Utkarsh, APP for State
with Insp. Vikas Pannu, P.S.
Nizamuddin
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The present criminal appeal is filed under sections 374(2) read
with section 383 of the Code of Criminal Procedure, 1973
(hereinafter referred to as "the Code") to set aside the judgement
dated 10.03.2023 (hereinafter referred to as "the impugned
judgment") and order on sentence dated 03.07.2023 (hereinafter
referred to as "the impugned sentence order") passed by the court
of Sh. Sachin Sangwan, Additional Sessions Judge-01 (Fast Track
Court), South-East, Saket Courts, New Delhi (hereinafter referred to
Signing Date:19.01.2024 CRL.A.708/2023 Page 1
as "the trial court") in sessions case bearing number 1550/2016
titled as State V Mohibul Islam & Ors arising out of FIR bearing no
0374/2013 registered at P.S. Hazrat Nizamuddin.
2. The factual background of the case is that SI Ajay Kumar along
with Ct. Baldev on 25.11.2013 after receipt of DD No.12A regarding
robbery in House no. 6, 1st Floor, Sunder Nagar, New Delhi
involving assault and confinement of a housemaid namely Sushma
(hereinafter referred to as "the complainant") reached there and met
with owner Kapil Advani and his mother Kavita Advani. The house
was found to be in ransacked condition. SI Ajay Kumar recorded
statement of the complainant wherein the complainant stated that
owner Kapil Advani had employed Islam for doing cleaning of house
who used to come around 9/10 am every day. The complainant on
25.11.2013 at about 8.30 am was preparing breakfast for Kavita
Advani who was sitting on a chair outside the kitchen. The doorbell
was rung about 9 am and door was opened by Islam. Two unknown
persons aged about 21/22 years entered into house and Islam claimed
that those boys were known to him. The short heighted boy took out
knife from his pocket and another tall boy caught hold of the
Signing Date:19.01.2024 CRL.A.708/2023 Page 2
complainant and placed a knife at neck of the complainant. Those
persons and Islam gave beatings to the complainant and her legs and
hands were tied with crepe bandage. The tall boy placed knife on
neck of Kavita Advani and threatened to kill her. The short heighted
person and Islam went upstairs and after sometime came downstairs.
Islam removed chain and bangle (kara) which were worn by the
Kavita Advani. They also threatened Kavita Advani to kill her and
family. They again beat the complainant and thereafter ran away
from the spot. The complainant managed to untie her and informed
owner Kapil Advani. Kapil Advani came at the spot and informed the
police by calling at 100 number. Kapil Advani on checking found
that cash amount of Rs.25 lacs and other valuable articles were
missing. The mobile phone of the complainant was also found
missing. FIR under sections 394/397/34 IPC was got registered and
SI Ajay conducted investigation. SI Ajay seized one knife and crepe
bandage from the spot. The nature of injuries stated to be received by
the complainant was opined to be simple.
2.1 Mohd.Mohibul Islam and MA (who was determined as juvenile
during trial) were arrested during further investigation and they
Signing Date:19.01.2024 CRL.A.708/2023 Page 3
refused to participate in TIP. During investigation one bag containing
Rs.16 lakhs and one chain with locket was recovered at instance of
Mohd. Mohibul Islam. Rs.7,68,750/-, gold ring and knife recovered
at instance of juvenile. The offence punishable under section 411 IPC
was also added during investigation. Mohd. Ali Hussain could not be
traced. The charge sheet after conclusion of investigation was filed
against Mohd. Mohibul Islam and juvenile for offences punishable
under sections 394/397/411/34 IPC before the court of concerned
Metropolitan Magistrate. The case was committed to court of
sessions vide order dated 15.03.2014 passed by the court of Ms.
Neha, Metropolitan Magistrate-03, South-East, Saket.
2.2 Mohd. Ali Hussain surrendered on 06.03.2014 before the
concerned court and was accordingly arrested. He refused to
participate in TIP. During investigation one bangle (kara) and one
pearl chain kept in a green coloured purse were recovered which
were identified by Kapil during TIP of the case property. The
supplementary charge sheet after conclusion of investigation was
filed against Mohd. Ali Hussain (hereinafter referred to as "the
appellant") for offences under sections 394/397/411/34 IPC.
Signing Date:19.01.2024 CRL.A.708/2023 Page 4
2.3 The court of Sh. Jitendra Mishra, Additional Sessions Judge-06,
South-East, Saket Courts, New Delhi vide order dated 21.07.2014
framed the charges for the offences punishable under sections
394/397/411/34 IPC against Mohd. Mohibul Islam and MA
(juvenile) to which they pleaded not guilty and claimed trial. The
charges for offences punishable under sections 394/397/34 IPC were
framed against the appellant to which he pleaded not guilty and
claimed trial. The court of Dr. Neera Bharihoke Additional Sessions
Judge-06, South-East, Saket Courts, New Delhi vide order dated
08.03.2019 also framed for the offence punishable under section 411
IPC against the appellant to which he pleaded not guilty and claimed
the trial. Subsequently MA was determined to be juvenile on date of
commission of offence vide order dated 01.08.2016 passed by the
court of Sh. Sudhir Kumar Sirohi, Metropolitan Magistrate-03,
South-East, Saket and accordingly was referred to Juvenile Justice
Board vide order dated 22.08.2016 passed by the court of Sh. Raj
Kumar Tripathi, Additional Sessions Judge-02, South-East, Saket.
3. The prosecution in support of its case examined 17 witnesses
including the complainant as PW1. The complainant as PW1
Signing Date:19.01.2024 CRL.A.708/2023 Page 5
supported the case of the prosecution and deposed that she was
working as a cook on 25.11.2013 at house no.6, 1st Floor, Sunder
Nagar, New Delhi being employed by owner Kapil Advani. She was
present in the house with Kanta Advani, the mother of Kapil Advani
and was present in kitchen. The doorbell rang around 9 am and Islam
who was working as cleaner was present at door. The doorbell again
rang after few minutes and two persons were present at the door and
they inquired about Islam after she opened the door. Suddenly one of
the two persons took out one knife and threatened to kill her. The two
persons along with Islam started assaulting her with fists and blows.
The complainant fell down and sustained injuries to her face and
head. They also tied her hands and legs with crepe bandage and
gagged her with cloth to silence her. They also tied Kavita Advani
and one of them put knife at neck of Kavita Advani to threaten her.
Thereafter they started to commit theft and snatched jewelry from
Kavita Advani. The complainant/PWI correctly identified the all
three accused i.e. Islam and his two associates including the
appellant. The complainant PW1 also identified juvenile MA and
appellant who had shown knife to threaten her and Kavita Advani at
Signing Date:19.01.2024 CRL.A.708/2023 Page 6
time of commission of offence. The complainant PW1 further
deposed they fled away from the spot and she could manage to untie
her and Kavita Advani and called Kapil Advani who reached at spot.
The complainant PW1 detailed incident to Kapil Advani. Kapil
Advani called the PCR and checked the valuables in the house and
found that around Rs.25 lakhs had been stolen along with other
valuables. They also took away mobile phone of the complainant
PW1. The police came at the spot and recorded statement Ex.PW1/A
of the complainant. The complainant was taken to AIIMS for medical
examination. The complainant PW1 also correctly small knife as
Ex.P1 which was used to threatened Kavita Advani and long knife as
Ex.P2 which was used to threaten her.
3.1 The prosecution also examined the police witnesses who
remained connected or associated with the investigation including
first Investigating Officers SI Ajay Kumar as PW12 and Inspector
Ajay Kumar who filed supplementary charge sheet qua the appellant
as PW17. PW17 Inspector Ajay Kumar who conducted investigation
qua the appellant deposed that the appellant on 05.03.2014
surrendered before the court and he interrogated the appellant on
Signing Date:19.01.2024 CRL.A.708/2023 Page 7
06.03.2014 with the permission of the court. The appellant during
interrogation has disclosed his involvement in the present case vide
disclosure statement Ex. PW15/C. The appellant was arrested vide
arrest and personal search memos Ex. PW15/A and PW15/B. The
appellant refused to participate in TIP proceedings. Inspector Ajay
Kumar PW17 also prepared pointing out memo Ex. PW1/D at
instance of the appellant. The complainant being the eye witness also
identified the appellant as the person who committed the offence with
his friends/co-associates. Inspector Ajay Kumar PW17 07.03.2014
again recorded disclosure statement Ex. PW17/B of the appellant
wherein he stated that he can get recovered some of the articles from
his jhuggi. The appellant led the police party to jhuggi no 86 of
Mustkin at Sunder Nagar, New Delhi and got recovered one pearls
neckless having gold colour hook (kunda) on one side which was
kept inside a small green colour purse and one kara similar to Astha
Dhatu which was having golden colour on both edges of the kara
kept under the newspaper from the corner of the said jhuggi and these
articles were seized vide seizure memo Ex. PW17/C after converting
into a pullanda sealed with seal of AK. PW3 Kapilendu Advani
Signing Date:19.01.2024 CRL.A.708/2023 Page 8
identified neckless of pearls and small green colour purse during the
TIP. Inspector Ajay Kumar PW17 after completion of investigation
filed supplementary charge sheet against the appellant. The
prosecution evidence was ordered to be closed vide order dated
16.01.2020.
3.2 The appellant was examined under section 313 of the Code
wherein he denied incriminating evidence and pleaded false
implication and innocence. The appellant stated that he had no
concern with the alleged offence. He did not make any disclosure
statement and the IO obtained his signatures on blank papers. He had
not committed any robbery. The appellant preferred to lead defence
evidence. The appellant examined his wife Mehrul Nisha as DW1
who deposed that no police came at her residence in year 2013.
3.3 The appellant was convicted for the offence punishable under
sections 394/34 IPC and for offence punishable under section 411
IPC vide impugned judgment. The appellant was also convicted for
offence punishable under section 397 IPC as he used knife to
threatened Kavita Advani. The appellant vide impugned order on
sentence was sentenced to undergo simple imprisonment for a period
Signing Date:19.01.2024 CRL.A.708/2023 Page 9
of 07 years for the offence punishable under sections 394/34 read
with offence punishable under section 397 IPC along with fine of
Rs.10,000/- and in default of the payment of fine to further undergo
simple imprisonment for a period of 04 months. The appellant was
also sentenced to undergo simple imprisonment for the offence under
section 411 IPC along with fine of Rs. 5,000 and in default to
undergo simple sentence for two months. Both sentences were
ordered to be run concurrently. The benefit under section 428 of the
Code was extended to the appellant. The appellant has not paid the
fine.
4. The appellant being aggrieved filed the present appeal to challenge
the impugned judgment dated 10.03.2023 and impugned order on
sentence dated 03.07.2023 primarily on the grounds that the
impugned judgment is wrong, erroneous and deserves to be set-aside.
The trial court has over looked the material contradictions,
manipulations, non-corroboration of facts and circumstances which
had created doubts about prosecution case and has not extended
benefit of doubt to the appellant. The prosecution has failed to prove
its case beyond reasonable doubts as statements of the witnesses are
Signing Date:19.01.2024 CRL.A.708/2023 Page 10
not consistent and not corroborative with the case of the prosecution.
The knife alleged to be used in the crime was not a deadly weapon
which can attract section 397 IPC. The evidence of prosecution is
filled with discrepancies, contradictions and improbable versions
which cannot lead to the conviction of the appellant. The complainant
has not sustained grievous hurt and there is no evidence to prove that
the attempt was made to cause death or grievous hurt to the victim.
The knife stated to be used at the time of alleged crime was not a
deadly weapon. The prosecution could not prove its case beyond any
reasonable doubt. It was prayed that the impugned judgment and
order on sentence be set aside.
5. The trial court while passing the impugned judgment has primarily
relied upon the testimony of the complainant PW1 and observed that
the complainant PW1 has deposed categorically against the appellant
as well as co-convict Mohibul Islam and has described the role of
each of them in detail. The trial court also observed that the
testimony of the complainant also supported by other evidence and
placed reliance on MLC Ex. PW-10/A of the complainant PW1
which reflects that the complainant PW1 received injuries. The trial
Signing Date:19.01.2024 CRL.A.708/2023 Page 11
court also observed that the testimony of Ct. Ashwini PW11 also
reflects that the entire house was ransacked as appearing from the
photographs taken by the Ct. Ashwini PW11. The complainant also
identified the appellant as well as co-convict Mohibul Islam as the
persons who committed the robbery. The complainant PW1 also
deposed that the appellant has threatened the Kavita Advani with a
knife and also identified said knife as Ex.P-1. The appellant refused
to participate in the TIP as such the trail court drawn adverse
influence against the appellant for refusing to participate in TIP. The
trial court also observed that the jewellery recovered from the
possession and at the instance of the appellant was duly identified by
the concerned witness i.e. PW3. The trial court as such relied upon
the testimony of the complainant PW-1 which is also supported by
other evidence led by the prosecution.
6. The counsel for the appellant argued the appellant is a 35 years
old young man having responsibility of his aged parents, wife, and
two kids. The appellant was not named in FIR and surrendered
himself before the court. Neither the weapon nor any currency notes
was recovered from the appellant. The complainant PW1 and PW3
Signing Date:19.01.2024 CRL.A.708/2023 Page 12
did not give any list of stolen articles. The manner in which the case
property was recovered itself cast serious doubts about prosecution
case. The identification of the appellant by PW1 was not devoid of
doubts. The counsel for the appellant argued that the impugned
judgment and order on sentence be set aside as the prosecution has
failed to prove its case beyond reasonable doubt.
6.1 The Additional Public Prosecutor for the respondent/State argued
that from the evidence led by the prosecution particularly in the light
of testimony of the complainant PW1, the prosecution is able to
prove its case beyond reasonable doubt. The impugned judgment and
impugned sentence order were passed by the trial court after proper
appreciation of the evidence and cannot be set aside. The present
appeal is liable to be dismissed.
7. The careful perusal of the testimony of the complainant PW1
proved that the appellant was present at the spot at the time of
commission of robbery and had participated in the commission of
robbery. The testimony of the complainant PW1 has proved that the
appellant has threatened Kavita Advani by using a knife Ex. P1 at the
time of commission of offence. It is also proved that during the
Signing Date:19.01.2024 CRL.A.708/2023 Page 13
robbery, the complainant PW1 also received injuries as reflected
from the MLC Ex. 10/A. The evidence led by the prosecution also
proved that at the instance of the appellant, few jewellery articles
were recovered which were taken into possession vide seizure memo
Ex. PW17/C and were duly identified by PW3 Kapil Advani during
TIP.
7.1 There is no reason to disbelieve the evidence led by the
prosecution qua the appellant which is consistent, coherent and the
respective testimony of various prosecution witnesses is
corroborating each other immaterial particulars. The prosecution
witnesses were also cross-examined by the counsel for the appellant
during trial and there is nothing in the cross-examination of the
witnesses which can raise any doubt about credibility of the
testimony of the prosecution witnesses. The prosecution is able to
prove that on 25.11.2013 the appellant committed robbery at the
house bearing no. 6, 1st Floor, Sunder Nagar, New Delhi belonging to
Kapil Advani, and while doing so, injuries were caused to the
complainant PW1 and Kavita Advani was also threatened by the
appellant with a knife during the robbery.
Signing Date:19.01.2024 CRL.A.708/2023 Page 14
7.2 The counsel for the appellant argued that weapon of offence was
not recovered at the instance of the appellant. However, it was
surfaced during the evidence that the knife Ex. P1 was recovered at
the spot which was taken into possession vide seizure memo Ex.
PW17/C and the said knife was identified by the complainant as Ex.
P1 and knife Ex. P1 was stated to have been used to threaten Kavita
Advani. Accordingly, the said arguments advanced by the counsel for
the appellant is without any force. The appellant in the grounds of the
appeal also stated that there are material contradictions, manipulation
and discrepancies in the evidence led by the prosecution which are
good enough to raise doubt about the prosecution case. The careful
perusal of the evidence led by the prosecution reveals no material
contradiction, discrepancy or variation which can affect the case by
the prosecution. If there is any variation, discrepancy or contradiction
in the evidence led by the prosecution being marginal and minor in
nature does not affect the case of the prosecution.
7.3 The counsel for the appellant also argued that the Ex. P1 i.e. the
knife is not a deadly weapon as such the offence punishable under
section 397 IPC is not made out. It is for the prosecution to prove that
Signing Date:19.01.2024 CRL.A.708/2023 Page 15
the weapon used in commission of offence as per section 397 IPC
was a deadly weapon by producing or leading convincing evidence.
In the present case, the appellant is stated to have used knife Ex.P1
and it was for the prosecution to prove that knife Ex.P1 was a deadly
weapon. The issue which needs judicial consideration is that whether
the prosecution could prove that the knife Ex P1 was a deadly
weapon within the meaning of section 397 IPC. The perusal of sketch
Ex.PW4/B of knife Ex. P-1 reflects that the knife was having a blade
measuring 22 cm and handle measuring 12 cm and was capable of
inflicting fatal injury being sharp edged weapon. The prosecution as
such is able to prove that the knife Ex.P2 was a deadly weapon
within the meaning of section 397 IPC. There is no force in the
arguments advanced by the counsel for the appellant that the knife
Ex. P-1 was not a deadly weapon within the meaning of section 397
IPC.
8. The judgment passed by the trial court is based on sound
reasoning and was passed after proper appreciation of evidence. The
trial court has also considered in detail the defence taken by the
appellant during the trial. The trial court has rightly relied upon the
Signing Date:19.01.2024 CRL.A.708/2023 Page 16
testimony of the complainant PW1 and there is no reason to
disbelieve her testimony. The testimony of the complainant PW1
inspires confidence and cannot be disbelieved. The trial court has
rightly held that the prosecution is able to prove the guilt of the
appellant for the offences punishable under sections 394/397/411/34
IPC qua the appellant. The impugned judgment and order on sentence
do not call for any interference.
9. The present appeal along with pending applications if any is
dismissed.
10. Copy of this judgment be sent to the appellant through concerned
Jail Superintendent for information and be also sent to the trial court
for information.
CRL.M.(BAIL) 1229/2023
11. In view of the above, the present application stands dismissed
being infructuous.
DR. SUDHIR KUMAR JAIN
(JUDGE)
JANUARY 16, 2024
J/ABK
Signing Date:19.01.2024 CRL.A.708/2023 Page 17
