Delhi High Court
Jitender @ Jeetu vs State (Nct Of Delhi) on 15 January, 2015
Author: A.K. Pathak
Bench: A.K. Pathak
$~19 & 20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 79/2011 and Crl. M. (Bail) No. 511/2014
Reserved on 13th January, 2015
Delivered on 15th January, 2015
JITENDER @ JEETU ..... Appellant
Through : Mr. S.H. Ansari, Adv.
Versus
STATE (NCT OF DELHI ) .... Respondent
Through :Mr. Yogesh Verma, APP with SI
Amit Rathee, P.S. Model Town
AND
+ CRL.A. 233/2011
ZAAKIR ..... Appellant
Through : Mr. Umardeen, Adv.
Versus
STATE NCT OF DELHI ..... Respondent
Through Mr. Yogesh Verma, APP with SI
Amit Rathee, P.S. Model Town
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK
1. Both the appeals arise from the same incident, FIR and judgment,
thus, are being disposed of together.
2. Appellants have been convicted under Section 392 read with Section
CRL. A No. 79/2011 Page 1 of 10
34 of the Indian Penal Code, 1860 (IPC) and sentenced to undergo rigorous
imprisonment of two years with fine of `2,000/- each and in default of
payment of fine to undergo rigorous imprisonment of three months by the
trial court vide judgment dated 15th December, 2010 and order on sentence
dated 20th December, 2010. Appellant Jitender has also been convicted
under Section 397 IPC and sentenced to undergo rigorous imprisonment of
seven years with fine of `2,000/- and in default of payment of fine to
undergo rigorous imprisonment of three months. Benefit of Section 428 of
the Code of Criminal Procedure, 1973 (Cr.P.C.) has also been extended to
the appellants.
3. Aggrieved by this conviction as also the sentences awarded to them
appellants have preferred above appeals. Prosecution story, as unfolded, is
that complainant Shri Dheeraj Chand was going from Model Town to his
house on 22nd April, 2010 after completing his duty and when he reached
near Azadpur Metro Station at about 10 pm, appellants, namely, Jitender and
Zaakir caught hold of him. Jitender took out a knife from his pocket and
showed it to complainant, while Zaakir took out the purse from the pocket of
complainant. Purse contained `20/-, passport size photograph of
complainant and some visiting cards. After removing purse from the pocket
CRL. A No. 79/2011 Page 2 of 10
of complainant, Jitender and Zaakir started running towards Azadpur.
Complainant chased them and also raised alarm "pakdo pakdo". Constable
Sachin who was coming from the opposite direction, apprehended Zaakir.
In the meanwhile, one or two passersby also arrived there. Zaakir was
searched and purse of complainant was recovered from him. Someone
informed the police at no.100, pursuant whereof DD no. 27A was recorded
at police station Kingsway Camp/Model Town and handed over to ASI
Jaivir Singh, who along with Constable Mahrajuddin reached the spot and
recorded statement of complainant Shri Dheeraj Chand Ex. PW3/A. ASI
Jaivir Singh wrote rukka Ex. PW5/A, pursuant whereof FIR No.154/2010
Ex. (PW1/A) was registered in the Police Station Kingsway Camp/Model
Town, New Delhi. ASI Jaivir Singh prepared site plan Ex. PW5/B and also
arrested Zaakir vide personal search memo Ex. PW3/D and arrest memo Ex.
PW3/C. Purse, `20/-, photograph and visiting cards were taken in
possession vide seizure memo Ex. PW3/B. Disclosure statement Ex.
PW4/A of Zaakir was recorded, wherein he disclosed the name of his
accomplice as Jitender @ Jeetu.
4. On 25th April, 2010 Zaakir led the police party to the house of
Jitender, bearing no. 487, Village Azadpur, Delhi. Jitender was arrested
CRL. A No. 79/2011 Page 3 of 10
vide personal search memo Ex. PW5/D and arrest memo Ex. PW5/C. Knife
could not be recovered as Jitender stated that he had thrown the same in a
naala. On 29th April, 2010 Test Identification Parade (TIP) of Jitender was
fixed but he refused to participate in the TIP. He made a statement in this
regard before Shri G.K. Nirman, Metropolitan Magistrate.
5. After completion of investigation, charge-sheet was filed in the court
of Metropolitan Magistrate, Delhi, who after making compliances under
Section 207 Cr.P.C., committed the case to Sessions Court since offence
under Section 397 IPC was triable by the Sessions Court.
6. Charges under Sections 392/34 IPC were framed against Zaakir and
Jitender on 18th August, 2010 to which they pleaded not guilty and claimed
trial. Separate charge under Section 397 IPC was framed against Jitender to
which he pleaded not guilty and claimed trial. Prosecution examined six
witnesses in all before the trial court. Duty Officer/Head Constable Shiv
Kumar was examined as PW1. He deposed about recording of DD no. 27-A
on receipt of information on phone about the incident. He further deposed
that DD no. 27-A was assigned to ASI Jaivir Singh for investigation. He
proved copy of the FIR as Ex. PW1/A. His testimony has remained
unchallenged on the material points. Shri G.K. Nirman, Metropolitan
CRL. A No. 79/2011 Page 4 of 10
Magistrate, Delhi was examined as PW2, and has proved the application for
TIP as Ex. PW2/A, statement of Jitender recorded by him as Ex. PW2/B and
the TIP proceedings as Ex. PW2/C. He deposed that Jitender refused to join
the TIP proceedings. His testimony has also remained unchallenged.
Complainant Dheeraj Chand was examined as PW3. He supported the
prosecution story as narrated in the preceding paras hereinabove. Constable
Sachin Kumar was examined as PW4. He has also corroborated the version
of PW3 as regards to apprehension of Zaakir at the spot. ASI Jaivir Singh
was examined as PW5, who deposed about the investigations conducted by
him. Constable Mahrajuddin was examined as PW6. He has also
corroborated the proceedings conducted by PW5 ASI Jaivir Singh during the
investigation. Their statements have remained unshattered in their cross-
examinations on material points. Trial court has rightly found their
testimonies to be trustworthy and reliable so as to conclude that Zaakir and
Jitender had waylaid PW3 Dheeraj Chand near Azadpur Metro Station on
22nd April, 2010 and robbed his purse. PW3 has identified Zaakir as well as
Jitender as the same persons, who had robbed his purse containing `20/-,
one passport size photograph of complainant and some visiting cards.
Zaakir was apprehended at the spot itself by PW4 Constable Sachin Kumar
CRL. A No. 79/2011 Page 5 of 10
in presence of PW3 Dheeraj Chand. He was apprehended immediately after
the incident, inasmuch as robbed purse was also recovered from him. PW3
has correctly identified his purse and the articles as contained therein. PW-3
and PW-4 are material witnesses to prove the incident as also apprehension
of Zaakir at the spot. Their testimonies on material points have remained
unshattered in their cross-examination. Accordingly, I am of the view that
trial court has rightly accepted their testimonies to conclude that prosecution
had succeeded in proving beyond the shadow of reasonable doubt that
appellants had robbed Shri Dheeraj Chand of his purse containing `20/- and
certain other articles as detailed hereinabove.
7. Learned counsels for the appellants have vehemently contended that
no public person was joined in the investigation despite the fact that PW3
has admitted in the FIR that some passersby had gathered at the spot after
the incident. It is contended that non-joining of any independent public
witness makes the whole prosecution story doubtful and suspicious. I do not
find any force in this contention of learned counsel for the appellants.
Judicial notice of the fact can be taken that public persons avoid to join the
investigation in order to avoid their subsequent harassment by the accused
persons and also to avoid inconvenience of subsequent appearance in Court
CRL. A No. 79/2011 Page 6 of 10
as witnesses. Apathy of public persons to join the investigation in the
metropolitan town like Delhi is not unknown. Accordingly, merely because
no public person came forward to join investigation regarding apprehension
and arrest of Zaakir and recovery of robbed articles from him will by itself,
be not sufficient to disbelieve PW-3 and PW-4. There is no reason to
discard trustworthy and reliable testimonies of PW3 Shri Dheeraj Chand,
which has been duly corroborated by PW4 to PW6. It may further be noted
that Zaakir and Jitender were not known to PW3 Shri Dheeraj Chand. They
were strangers to complainant. There was no past enmity between them.
Accordingly, there is no reason as to why PW3 would have falsely
implicated Zaakir and Jitender, had they not robbed him on the fateful day.
8. For the foregoing reasons, conviction of the appellants under Sections
392/34 IPC is upheld. Section 392 IPC envisages rigorous imprisonment for
a term which may extend to 10 years, in case robbery is not committed on
the highway between sunset and sunrise. In case robbery is committed on
the highway between sunset and sunrise, imprisonment may extend to 14
years. Admittedly, in this case robbery has not been committed on the
highway. In this case, trial court has already taken a lenient view and has
awarded only sentence of two years, which requires no interference.
CRL. A No. 79/2011 Page 7 of 10
9. Next question which needs attention is as to whether, ingredients of
offence under Section 397 IPC are made out against Jitender, in the facts
and circumstances of this case. Section 397 IPC reads as under:-
"Section 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."
10. A perusal of the afore-quoted provision makes it clear that if an
accused, at the time of committing robbery or dacoity, 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 an accused
shall be punished, shall not be less than seven years. The aforesaid
provision envisages a minimum sentence to be awarded to an accused, who
uses any "deadly weapon" or causes grievous hurt to any person or attempts
to cause death or grievous hurt to any person at the time of committing
robbery or dacoity. In this case, admittedly, no grievous hurt has been
caused to the complainant Shri Dheeraj Chand by Jitender while committing
robbery nor any evidence has come that Jitender had attempted to cause
death or grievous hurt to the complainant Shri Dheeraj Chand by using any
CRL. A No. 79/2011 Page 8 of 10
"deadly weapon".
11. Before fastening the punishment under Section 397 IPC on an
accused, prosecution has to prove that the accused had used "deadly
weapon". PW3 has simply deposed that Jitender had taken out a knife from
his pocket and pointed at him. Shape and size of the knife was not
disclosed, inasmuch as no such knife was recovered so as to show that same
was a "deadly weapon". There are knives of hundreds of types available of
different length and width. Each and every knife cannot be said to be a
"deadly weapon" within the meaning of Section 397 IPC. What would
make a knife deadly is its design or the method of its use such as is
calculated to or is likely to cause death; it is, therefore, a question of fact to
be proved by the prosecution that the knife used by the accused was a
"deadly weapon". In the absence of such an evidence and particularly, the
non-recovery of the weapon would certainly bring the case out of the ambit
of Section 397 IPC.
12. In Charan Singh Vs. The State, 1988 Crl. L.J. NOC 28 (Delhi), Single
Judge has held as under:-
"At the time of committing dacoity one of the
offenders caused injury by knife on the hand of the
victim but the said knife was not recovered. In order
to bring home a charge under S.397, the prosecution
CRL. A No. 79/2011 Page 9 of 10
must produce convincing evidence that the knife
used by the accused was a deadly weapon. What
would make knife deadly is its design or the method
of its use such as is calculated to or is likely to
produce death. It is, therefore, a question of fact to
be proved by the prosecution that the knife use by the
accused was a deadly weapon. In the absence of
such an evidence and particularly, the non-recovery
of the weapon would certainly bring the case out of
the ambit of S.397. The accused could be convicted
under S.392."
13. Accordingly, conviction of appellant Jitender under Section 397 IPC
is set aside. Consequently, sentence awarded to Jitender under Section 397
IPC also goes. Appellant Jitender is in Jail and has completed more than
two years, thus, he be released forthwith, if not wanted in any other case.
14. Appellant Zaakir, is on bail. His bail bond and surety bond are
cancelled. He shall surrender before the Jail Superintendent forthwith to
undergo his remainder sentence. In case he fails to surrender, he be taken
into custody by the trial court and sent to jail for serving the remainder
sentence.
15. Both the appeals are disposed of in the above terms.
A.K. PATHAK, J.
JANUARY 15, 2015 rb CRL. A No. 79/2011 Page 10 of 10