Delhi District Court
State vs Irfan And Anr on 29 April, 2024
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
SC No. 28922/2016 CNR No. DLCT01-013259-2016
FIR No. 276/2016
U/Sec. 392/394/397/411/34 IPC &
25/54/59 of Arms Act
P.S: I.P. Estate
STATE VERSUS IRFAN & ANR.
(i) SC No. of the case : 28922/2016
(ii) Date of commission of offence : 22.05.2016
(iii) Name, parentage and address : (1) Irfan
of accused S/o Islamuddin
R/o J-180, Jhuggi,
Takia Kale Khan,
Mirdard Road, Delhi-02
(2) Anish (T/f to JJB
vide order dated
03.04.2019)
(iv) Offence complained of : Under Sections
392/394/397/34 IPC
& Section 25/54/59 of
Arms Act.
(v) Plea of the accused : Pleaded not guilty
(vi) Final order : Accused Irfan is acquitted
for the offence u/Sections
392/394/397/34 IPC
& Section 25/54/59 of
Arms Act.
SC No. 28922/2016
FIR No. 276/2016
State Vs. Irfan & Anr. Page 1 of 33
Date of Institution : 26.09.2016
Date of Judgment reserved on : 29.04.2024
Date of Judgment : 29.04.2024
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. The present case was registered on the complaint of Sh. Salim / PW-5 and the complaint is Ex.PW5/A. The complainant is a rickshaw driver. On 22.05.2013 the complainant went with his friend Irfan at Elephant Park. They were sitting under a tree when around 12:00 Noon two boys came near them. One of the boy had caught collar of PW-5 and asked him to hand over his valuables. When PW-5 and his friend Irfan had protested then the other boy had taken out a knife and had hit on left side of stomach and also on thigh of PW-5 on which PW-5 and his friend got shocked. The boy who had caught the collar had snatched the mobile phone from the hands of PW-5 and his friend Irfan on which PW-5 and his friend started shouting and running behind those two boys. At vegetable market Mata Sundri Road they had caught both the boys and scuffle between them had started. One of the accused had freed himself and ran away. After some time police came there and one of the accused caught at the spot was handed over to the police. The name of the accused who was caught had disclosed his name as Irfan S/o Islamuddin.
He had further disclosed the name of his accomplice as Anish. PCR had taken PW-5 to hospital. SI Manoj Kumar/PW-11 on receipt of DD No.19PP LNJP which is Ex.PW2/A had reached at Subzi Market, Mata Sundri Road, DDA Flats, Delhi alongwith Ct. Satish/PW-1 where they SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 2 of 33 had found PW-5 in injured condition and his friend Irfan was also present. Irfan @ Farman had produced accused Irfan before the police. PW-11 had sent PW-5 to LNJP Hospital in PCR Van and on cursory search of accused caught at the spot two mobile phone from left pocket of the pant of accused were recovered. One knife was also recovered from right pocket of pant of the accused. The friend of victim /PW-5 was present whose name is Irfan @ Farman and whose mobile phone was also robbed by the accused at the same time. The sketch of knife is Ex.PW1/B which was seized by memo Ex.PW1/C. The mobile phone of make Nokia and Samsung were seized vide memo Ex.PW1/A.
2. PW-11 had reached at hospital and had recorded statement of PW- 5 as Ex.PW5/A when the Doctor had declared PW-5 fit for statement. PW-11 reached back at the spot and prepared Rukka Ex.PW11/A (Mark- X) which was sent through Ct. Satish /PW-1 to the Police Station for registration of FIR. The site plan/ Inspection of place is Ex.PW11/B. Ct. Satish came back and handed over original Rukka with copy of FIR on which accused was arrested vide memo Ex.PW1/D. The disclosure statement of accused is Ex.PW1/F and the personal search of accused is Ex.PW1/E.
3. PW-11 on the next day at LNJP Hospital had seized blood stained pant and shirt of PW-5 vide memo Ex.PW11/C which was duly sealed with the seal of PK. On 25.05.2016 the blood samples of PW-5 were collected and seized vide memo Ex.PW4/A. The nature of injuries were reported as simple in MLC. PW-11 had collected FSL result, completed the investigation, prepared chargesheet and filed the chargesheet before SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 3 of 33 the Court. The blood stained shirt and blood stained full pant are Ex.PW3 & Ex.P-4 which belongs to PW-5. The two mobile phone are Ex.P-1 and Ex.P-2 which are of make Nokia and Samsung Duo. The knife is Ex.P-5.
4. Charge was given to accused Irfan under Section 392/397/394/411/34 IPC and under Section 25/54/59 of Arms Act. The co-accused Anish who was declared juvenile on the date of commission of crime. He was directed to be sent to concerned Juvenile Justice Board vide order dated 09.03.2019 of the present Court. Accused has pleaded not guilty to all the charges levelled against him. The prosecution has examined PW-1 to PW-13 as evidence against the accused and the statement of accused Irfan was recorded under Section 313 Cr. P. C. on 24.01.24. Accused has preferred not to lead any evidence in defence. Accused has claimed in his statement under Section 313 Cr. P. C. that police has falsely implicated him on disclosure statement juvenile accused Anish.
5. Final arguments are heard on behalf of both the parties and record perused.
6. Section 395 IPC provides punishment for dacoity. It was held in case titled State of Maharashtra v. Joseph Mingel Koli (1997) 2 Crimes 228 (Bom) that when robbery is either committed or an attempt to commit it is made by five or more person than all such persons, who are present or aiding in its commission or in an attempt to commit it, would commit the offence of dacoity. The said definition is laid down SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 4 of 33 u/Sec. 391 IPC. It is laid down in case titled Ganesan v. State represented by Station House Officer in Crl. Appeal no. 903/2021 from Hon'ble Supreme Court of India dated 29.10.2021 at para no. 12.3 that as per Section 397 IPC 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. It was further held at para no. 12.4 that the only difference between robbery and dacoity would be number of persons involved in co-jointly committing or attempt to commit a robbery. It was further held that the word used u/Sec. 390, 392 to 395, 397 and 398 of IPC is 'offender'. It was further held that for the aforesaid act the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon......' can be punished. However u/Sec. 391 IPC 'dacoity' and Section 396 IPC which is dacoity and murder then the accused can be convicted on the basis of constructive liability. The necessary ingredients of dacoity u/Sec. 397 IPC were laid down at para no. 12.6 of the above judgment titled Ganesan v. State (supra) and the relevant para is reproduced hereasunder:
12.2 To appreciate the aforesaid submissions the relevant provisions with respect to 'robbery' and 'dacoity' are required to be referred to. The relevant provisions would be Section 390 IPC to Section 398 IPC which read as under:
"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 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 SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 5 of 33 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.
391. Dacoity.--When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present 1.Subs. by Act 26 of 1955, s. 117 and the Sch., for "transportation for life" (w.e.f. 1-1-1956). 99 and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
392. Punishment for robbery.--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.
393. Attempt to commit robbery.--Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
395. Punishment for dacoity.--Whoever commits dacoity shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
396. Dacoity with murder.--If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or 1 [imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 6 of 33397. Robbery, or dacoity, with attempt to cause death or grievous hurt.
--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
398. Attempt to commit robbery or dacoity when armed with deadly weapon.--If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years."
12.3 As per Section 390 IPC, for 'robbery' there is either theft or extortion. When in the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, 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 of instant wrongful restraint the theft can be said to be 'robbery'. In similar situation the 'extortion' can be said to have committed 'robbery'. As per explanation to Section 390 IPC 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.
Section 391 IPC defines 'dacoity'. When five or more persons conjointly commit or attempt to commit a robbery, the accused then can be said to have committed the 'dacoity'.
As per Section 392 IPC 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. However, if the robbery is committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. As per Section 393 IPC even an attempt to commit robbery is punishable with rigorous imprisonment for a term which may extend to seven years with fine. As per Section 394 IPC if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
Section 395 IPC provides for punishment for 'dacoity'. Whoever commits dacoity shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. In case of dacoity with murder if any one of five or more persons, who are conjointly committing dacoity, SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 7 of 33 commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years with fine.
As per Section 397 IPC 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. Similarly, if, at the time of committing robbery or dacoity the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years.
12.4 On conjoint reading of the aforesaid provisions, commission of 'robbery' is sine qua non. The 'dacoity' can be said to be an exaggerated version of robbery. If five or more persons conjointly commit or attempt to commit robbery it can be said to be committing the 'dacoity'. Therefore, the only difference between the 'robbery' and the 'dacoity' would be the number of persons involved in conjointly committing or attempt to commit a 'robbery'. The punishment for 'dacoity' and 'robbery' would be the same except that in the case of 'dacoity' the punishment can be with imprisonment for life. However, in the case of 'dacoity with murder' the punishment can be with death also. However, in a case where 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. Learned Counsel appearing on behalf of the appellants have rightly submitted that to bring the case within Section 397 IPC, the offender who uses any deadly weapon, or causes grievous hurt to any person shall be liable for minimum punishment under Section 397 IPC. Section 392 and Section 390 IPC are couched in different words. In Sections 390, 394, 397 and 398 IPC the word used is 'offender'. Therefore, for the purpose of Sections 390, 391, 392, 393, 394, 395, 396, 397, 398 IPC only the offender/person who committed robbery and/or voluntarily causes hurt or attempt to commit such robbery and who uses any deadly weapon or causes grievous hurt to any person, or commits to cause death or grievous death any person at the time of committing robbery or dacoity can be punished for the offences under Sections 390, 392, 393, 394, 395 and 397 and 398 IPC. For the aforesaid the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon....' can be punished. However, so far as Section 391 IPC 'dacoity' and Section 396 IPC - 'dacoity with murder' is concerned an accused can be convicted on the basis of constructive liability, however the only requirement would be the involvement of five or more persons conjointly committing or attempting to commit a robbery - dacoity/dacoity with murder.
12.5 At this stage, the decision of this Court in Shri Phool Kumar (Supra) is SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 8 of 33 required to be referred to. In the aforesaid decision this Court has observed and considered Sections 397 and 398 IPC and on interpretation of the aforesaid provisions, it is observed and held in paragraphs 5 to 7 as under:
"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 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 SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 9 of 33 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 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."
12.6. The aforesaid view has been subsequently reiterated by this Court in the case of Dilawar Singh (Supra) and in paragraphs 19 to 21 it is observed and held as under:
"19. The essential ingredients of Section 397 IPC are as follows:
1. The accused committed robbery.
2. While committing robbery or dacoity
(i) the accused used deadly weapon
(ii) to cause grievous hurt to any person
(iii) attempted to cause death or grievous hurt to any person.
3. "Offender" refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But the SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 10 of 33 other accused are not vicariously liable under that section for acts of the co-accused.
20. As noted by this Court in Phool Kumar v. Delhi Admn. [(1975) 1 SCC 797 : 1975 SCC (Cri) 336 : AIR 1975 SC 905] the term "offender" under Section 397 IPC is confined to the offender who uses any deadly weapon. Use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who had not used any deadly weapon. There is distinction between "uses" as used in Sections 397 IPC and 398 IPC. Section 397 IPC connotes something more than merely being armed with deadly weapon.
21. In the instant case admittedly no injury has been inflicted. The use of weapon by offender for creating terror in mind of victim is sufficient. It need not be further shown to have been actually used for cutting, stabbing or shooting, as the case may be. [See Ashfaq v. State (Govt. of NCT of Delhi) [(2004) 3 SCC 116 : 2004 SCC (Cri) 687 :
AIR 2004 SC 1253]."
7. The prosecution has to prove that the accused has committed robbery. Robbery is only an aggravated form of the offence of theft or extortion in the use of violation of death, hurt or restraint in the same process. Even the attempt to commit such violence is punishable as robbery. The robbery is defined u/Sec. 390 IPC and essential ingredients of which were laid down in citation titled Venu @ Venugopal & Ors. v.
State of Karnataka (2008) 3 SCC 94=AIR 2008 SC 1199 as under:
(i) Accused committed theft
(ii) Accused voluntarily caused or attempted to cause
(a) death, hurt or wrongful restraint
(b) Fear of instant death, hurt or wrongful restraint.
(iii) He did either act for the end
(a) to commit theft
(b) while committing theft
(c) In carrying away or in the attempt to carry away property obtained by theft.SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 11 of 33
The relevant para 8 to 13 are reproduced hereasunder:
8. Section 392 IPC provides for punishment for robbery. The essential ingredients are as follows:
1. Accused committed theft;
2. Accused voluntarily caused or attempted to cause.
(i) death, hurt or wrongful restraint.
(ii) Fear of instant death, hurt or wrongful restraint.
3. He did either act for the end.
(i) to commit theft.
(ii) While committing theft.
(iii) In carrying away or in the attempt to carry away property obtained by theft.
9. It is to be noted that the Section 392 provides punishment for robbery. It is punishment for the offence defined in Section 390. Punishment is higher if it is committed on a highway and between sunset and sunrise.
Section 390 which defines "robbery" reads as follows:
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 theft, the offender, for the end, voluntarily causes or attempts to cause to any person death or hurt 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 put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."
10. The provision defines robbery which is theft or extortion when SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 12 of 33 caused with violence of death, hurt or wrongful restraint. When there is no theft committed, then as a natural corollary there cannot be robbery. Robbery is only an aggravated form of offence of theft or extortion. Aggravation is in the use of violence of death, hurt or restraint. Violence must be in course of theft and not subsequently. It is not necessary that violence actually should be committed but even attempt to commit it is enough.
11. The authors of the Code observed as follows:
"In one single class of cases, theft and extortion are in practice confounded together so inextricably, that no judge, however, sagacious, could discriminate between them. This class of cases, therefore, has, in all systems of jurisprudence ... been treated as a perfectly distinct class ... we have, therefore, made robbery a separate crime.
There can be no case of robbery which does not fall within the definition either of theft or of extortion; but in a practice it will perpetually be a matter of doubt whether a particular act of robbery was a theft or an extortion. A large proportion of robberies will be half theft, half extortion. A seizes Z, threatens to murder him, unless he delivers all his property, and begins to pull off Z's ornaments. Z in terror begs that A will take all he has, and spare his life, assists in taking off his ornaments, and delivers them to A. Here, such ornaments as A took without Z's consent are taken by theft. Those which Z delivered up from fear of death are acquired by extortion. It is by no means improbable that Z's right arm bracelet may have been obtained by theft, and left-arm bracelet by extortion; that the rupees in Z's girdle may have been obtained by theft, and those in his turban by extortion. Probably in nine-tenths of the robberies which are committed, something like this actually takes place, and it is probable that a few minutes later neither the robber nor the person robbed would be able to recollect in what proportions theft and extortion were mixed in the crime; nor is it at all necessary for the ends of justice that this should be ascertained. For though, in general, the consent of a sufferer is a circumstance which very materially modifies the character of the offence, and which ought, therefore, to be made known to the Courts, yet the consent which a person gives to the taking of this property by a ruffian who holds a pistol to his breast is a circumstance altogether immaterial".
12. The words "for that end" in Section 390 clearly mean that the hurt caused must be with the object of facilitating the committing of the theft or must be caused while the offender is committing theft or is carrying away or is attempting to carry away property obtained by the theft.
SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 13 of 3313. As the provision itself provides when the highway robbery is committed, deterrent punishment is called for.
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8. The first ingredient which has to be proved by the prosecution is that the accused has committed theft. It is deposed by PW-5 that he is illiterate rickshaw puller. Sunday was the day of incident which is Subherat. Around 12:00 Noon he was sitting with his friend Irfan in the shadow of a tree in a park near Subzi Market. At that time two person came running towards them and they had apprehended PW-5 and his friend. They had snatched mobile phone of PW-5 and his friend. The mobile phone of make Samsung Company belongs to PW-5 and the mobile phone of make Nokia belongs to the friend of PW-5 namely Irfan S/o Bundu. The accused is Irfan S/o Islamuddin. PW-5 shouted for help where public person were present in the park but none came forward to help them. When PW-5 had demanded his SIM Card from accused to be returned embedded in the mobile phone on which the accused person had demanded money. PW-5 had only Rs.30/- on which accused was annoyed and said that "Ye Saala Bahut Bolta Hai". After that accused took out knife and inflicted injury on the stomach and thigh of PW-5. PW-5 caught hold of knife but somehow the accused managed to flee taking away with them mobile phone of PW-5 and his friend. Blood was coming out from the injury suffered by PW-5 however PW-5 chased the robbers. Learned Addl. P. P. declared PW-5 hostile and in cross examination by learned Addl. P. P. it is admitted as correct that his friend remained at the spot and PCR Van had taken PW-5 to the hospital. It is admitted as correct that accused had manhandled them. The PW-5 was confronted with his statement under Section 161 Cr. P. C. by the State SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 14 of 33 that PW-5 and his friend had chased and caught one of the accused at the spot from point C to C in the statement Ex.PW5/A to which the witness had denied. The witness had refused to identify accused Irfan who had caused injury with knife and robbed his mobile phone. A mobile phone of make Nokia was produced as Ex.P-2 which is identified by PW-5 that it belongs to his friend and one mobile phone of make Samsung was identified by PW-5 that it belongs to him. Now the seized case property is clearly identified by PW-5. The occurrence of incident is duly proved in the deposition of PW-5 that when PW-5 and his friend were sitting in the park then their mobile phones were so snatched by two person. The cross examination of PW-5 is nil by the accused person after grant of opportunity. Now when PW-5 had turned hostile only in respect of identity of accused person then it has to be seen that whether the identity of accused person could be proved by other corroborative evidence available on the record.
9. PW-1 on receipt of DD No.19PP had reached at the spot on 22.05.2016 which is Mata Sundri Road, Subzi Market, DDA Flat. After reaching there PW-1 had found the complainant Salim having apprehended with the help of his friend Irfan and caught the accused Irfan S/o Islamuddin. PW-1 had correctly identified the accused Irfan before the Court and had also proved the fact that police officials took injured Salim to LNJP Hospital. PW-1 had deposed that in his presence the IO had conducted the personal search of accused Irfan and recovered two mobile phone of make Nokia and Samsung. The mobile phone was recovered from the left side pocket of the pant of the accused. However PW-5 had correctly identified mobile phone of make Samsung belonging SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 15 of 33 to him as Ex.P-1 and mobile phone of make Nokia belonging to his friend Irfan as Ex.P-2. The said mobile phone were recovered from the left side pant pocket of the accused and the same is recovered in the presence of PW-1 vide seizure memo Ex.PW1/A. PW-1 had identified his signature at point A in seizure memo. PW-11 SI Manoj Kumar the IO in this case who had conducted cursory search of the accused and recovered two mobile phone from left pocket of his pant vide seizure memo Ex.PW1/A. The spot of incident is proved by PW-11 vide site plan Ex.PW11/B bearing his signature at point A. In the site plan A is the place under the tree where the mobile phone was snatched and PW-5 was got hit with a knife. B is the place in the site plan Ex.PW11/B where the accused was caught by the victim after running behind the accused person. PW-5 had turned hostile to the fact that he had caught the accused by running behind them. PW-8 in his deposition had proved that he had heard noise chor-chor on 22.05.2016 at 12:00 Noon and he saw Salim the rickshaw puller chasing two person. The person who had robbed the mobile phone of Salim had entered into a garage which was surrounded by public person. Salim was bleeding from his thigh and abdomen and the robber inside was apprehended and correctly identified by PW-8 before the Court. It is also deposed that the associate of accused Irfan had managed to flee from the spot. Hence PW-8 has proved that PW-5 was chasing the accused Irfan shouting chor-chor behind him. PW- 8 had deposed that he knew PW-5 the rickshaw puller before hand. Therefore it cannot be said that PW-8 had any doubt in his mind. PW-8 had deposed that PW-5 was bleeding from his thigh and abdomen. The robber had entered inside the garage who was apprehended and his name was disclosed as Irfan. The accused is correctly identified by PW-8 SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 16 of 33 before the Court. One of the accused had managed to flee whose name was disclosed as Amjad. PW-8 had correctly identified the button actuated knife/Ex.P-5 which was recovered from accused Irfan. It is deposed by PW-8 in cross examination by Addl. P. P. that knife was recovered from the possession of accused in the presence of PW-8 and Mr. Shekhar Gola / PW-10 had called the PCR from mobile phone of PW-8. DD No.19PP which is Ex.PW2/A was registered on 22.05.2016 around 12:15 PM with the report that one snatcher was caught at the spot who had also hit the victim with knife. Mobile number of injured is also mentioned. There is no cross examination of this witness by the accused. The knife was button actuated knife. He had seen PW-5/victim running after the accused shouting chor-chor. PW-10 had deposed that he had asked PW-8 the barber to call at 100 number and PW-8 had called at 100 number on which police came there. The police met PW-8 and PW-10 at the spot.
10. PW-11 has deposed that two mobile phone were recovered from left pant pocket of the accused and one knife was recovered from right pant pocket of the accused. PW-11 had made cursory search of the accused. PW-11 had prepared sketch of knife which is Ex.PW1/B which was sealed with the seal of PK. The knife was seized vide memo Ex.PW1/C. The seized mobile phone are proved by PW-11 as Ex.P-1 which is Nokia mobile phone and Ex.P-2 which is Samsung Duo mobile phone. When PW-11 had reached at the spot then accused was already found in custody of public person. PW-9 ASI Satyavir Singh had received the said two mobile phone from SI Manoj Kumar and deposited them in Malkhana which were duly sealed with the seal of PK. A sealed SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 17 of 33 pullanda containing knife was also deposited. He had received the said articles on 22.05.2016. Ct. Yogesh on 15.07.2016 had deposited the sealed exhibits at FSL, Rohini and acknowledgement of FSL, Rohini is Ex.PW7/B. The knife was recovered in the presence of PW-8. PW-1 had reached at the spot with IO/ SI Manoj in whose presence the personal search of accused Irfan was conducted and the above two mobile phone were recovered from the left side pocket of accused and the knife was recovered from the right side pocket of the accused. PW-2 had made an entry in Roznamcha on information received from Duty Officer PS I. P. Estate vide DD No.19 which is Ex.PW2/A which was assigned to SI Manoj through Ct. Satish. The Roznamcha was regarding one snatcher had been apprehended at Mata Sundri Road, DDA Flat, Opp. Subzi Mandi. The snatcher had stabbed during such snatching of mobile and mobile number recorded is 9958670621. The knife was sent for FSL examination after about two months. There is delay in sending the sample for no valid reason with the prosecution. It had to be sent at the earliest which therefore creates doubt in the case of the prosecution.
11. PW-3 ASI Satbir Singh was Duty Officer at PS I. P. Estate after 4:00 PM. In his presence Ct. Satish came and produced rukka Mark-X sent by SI Manoj Kumar for registration of FIR on which FIR No.267/16 was recorded vide DD No.25A Ex.PW3/A. He had made endorsement vide Ex.PW3/B on the rukka and gave a print out of FIR Ex.PW3/C with rukka alongwith certificate under Section 65B of Indian Evidence Act which is Ex.PW3/D. He gave it to Ct. Satish who handed it over to SI Manoj. PW-4 ASI Narender Rana had joined the investigation on 25.05.2015 with IO/SI Manoj where they had got blood sample of victim SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 18 of 33 taken by Dr. Pammy which was duly sealed and handed over to IO vide memo Ex.PW4/A.
12. It is noted that the prosecution has failed to bring any evidence to prove on record that the recovered mobile phone of make Nokia and Samsung Duo belongs to PW-5 or his friend Irfan @ Farman. The PW-5 has claimed that his phone was Samsung Duo and the phone of Irfan @ Farman was of Nokia company. However in the charge-sheet filed it is admitted case of the prosecution that when the victim was asked to produce ownership proof/bills of their mobile phone which they had failed to produce. The notice under Section 91 Cr. PC was also given to the Nodal Officer for obtaining certified copy of CDR and CAF of robbed mobile phone but the prosecution could not produce them on record in the evidence. Neither the location of mobile phone was produced by the prosecution to ascertain that whether these mobile phone were in possession of the victim at the relevant time or that call from such mobile phone was made to the person related to the victim. In such view of the matter it is held that prosecution has failed to prove that the said mobile phone allegedly recovered from the accused person were stolen by them from the possession of the victims. Even the SIM if they were there in the mobile phone are not proved in the name of victim. Hence doubt has arisen in the case of the prosecution that the said mobile phone were recovered from the custody of the accused or that the accused has stolen them from the victims. No invoice of the alleged two recovered phone from the accused are produced.
13. Further, prosecution has also to prove that the possession of knife SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 19 of 33 with the accused and use to such knife by them. The relevant Section 25 of the Arms Act 1959 is reproduced hereasunder for ready reference.
25. Punishment for certain offences.―1[(1) Whoever--(a) manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6;
or 2** * * *
(d) brings into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
3[(1A)Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine.
(1AA) whoever manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer or has in his possession for sale, transfer, conversion, repair, test or proof, any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.] 4[(1AAA)] Whoever has in contravention of a notification issued under section 24A in his possession or in contravention of a notification issued under section 24B carries or otherwise has in his possession, any arms or ammunition shall be punishable with imprisonment for a term which shall not be less than 2[three years, but which may extend to seven years] and shall also be liable to fine.
(1B) Whoever--(a) acquires, has in his possession or carries any firearm or ammunition in contravention of section 3; or
(b) acquires, has in his possession or carries in any place specified by notification under section 4 any arms of such class or description as has been specified in that notification in contravention of that section;
SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 20 of 33or
(c) sells or transfers any firearm which does not bear the name of the maker, manufacturer's number or other identification mark stamped or otherwise shown thereon as required by sub-section (2) of section 8 or does any act in contravention of sub-section (1) of that section; or
(d) being a person to whom sub-clause (ii) or sub-clause (iii) of clause
(a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section; or
(e) sells or transfers, or converts, repairs, tests or proves any firearm or ammunition in contravention of clause (b) of sub-section (1) of section 9; or
(f) brings into, or takes out of, India, any arms or ammunition in contravention of section 10; or
(g) transports any arms or ammunition in contravention of section 12; or
(h) fails to deposit arms or ammunition as required by sub-section (2) of section 3, or sub-section (1) of section 21; or
(i) being a manufacturer of, or dealer in, arms or ammunition, fails, on being required to do so by rules made under section 44, to maintain a record or account or to make therein all such entries as are required by such rules or intentionally makes a false entry therein or prevents or obstructs the inspection of such record or account or the making of copies of entries therefrom or prevents or obstructs the entry into any premises or other place where arms or ammunition are or is manufactured or kept or intentionally fails to exhibit or conceals such arms or ammunition or refuses to point out where the same are or is manufactured or kept, shall be punishable with imprisonment for a term which shall not be less than 3[one year] but which may extend to three years and shall also be liable to fine:
Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than 3[one year].
[(1C) Notwithstanding anything contained in sub-section (1B), whoever commits an offence punishable under that sub-section in any disturbed area shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 21 of 33
Explanation.―For the purposes of this sub-section, "disturbed area"means any area declared to be a disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order, and includes any areas specified by notification under section 24A or section 24B.] (2) Whoever being a person to whom sub-clause (i) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both. 1[(3) Whoever sells or transfers any firearm, ammunition or other arms--
(i) without informing the district magistrate having jurisdiction or the officer in charge of the nearest police station, of the intended sale or transfer of that firearm, ammunition or other arms; or
(ii) before the expiration of the period of forty-five days from the date of giving such information to such district magistrate or the officer in charge of the police station, in contravention of the provisions of clause (a) or clause (b) of the proviso to sub-section (2) of section 5, shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.] (4) Whoever fails to deliver-up a licence when so required by the licensing authority under sub-section (1) of section 17 for the purpose of varying the conditions specified in the licence or fails to surrender a licence to the appropriate authority under sub-section(10) of that section on its suspension or revocation shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.
(5) Whoever, when required under section 19 to give his name and address, refuses to give such name and address or gives a name or address which subsequently transpires to be false shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to two hundred rupees, or with both.
14. The relevant Section 27 of the Arms Act 1959 is reproduced hereasunder for ready reference.
SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 22 of 3327. Punishment for using arms, etc.--(1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
(2) Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.
(3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with imprisonment for life, or death and shall also be liable to fine.
15. Next ingredient the prosecution has to prove is that while committing such theft the accused had voluntarily caused or attempted to cause hurt or wrongful restraint or fear of such in order to commit theft. It is already discussed above that prosecution has failed to prove that the accused had snatched mobile phone from PW-5 and his friend when they were sitting under a tree at Hathi Park near Subzi Market on 22.05.2016 around 12:05 PM. It is deposed by PW-5 that the accused had demanded money from them and when they found that PW-5 had only Rs.30/- with him then the accused got annoyed. The accused had taken out knife and inflicted injuries on the stomach and thigh of PW-5 by the said knife. PW-5 had caught hold of the knife but the accused managed to flee. PW- 5 had raised alarm and then the accused started to run away. PW-10 had heard loud noise on which he had asked Munna Lal to call at 100 number. PW-10 is Sh. Shekhar Gola. PW-8 had seen PW-5 the rickshaw puller chasing two person by shouting chor-chor. There was one more person with PW-5. The accused had entered inside a garage and the public person had surrounded him. The said robber was having a small knife. PW-8 had given his mobile phone number for informing police SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 23 of 33 at 100 number. PW-5 had bleeding from thigh and abdomen. The robber was apprehended whose name was revealed as accused Irfan. PW-8 had correctly identified the accused. Associate of accused had managed to flee. The button actuated knife was correctly identified by PW-8 as the same knife which was recovered from the possession of accused Irfan. The knife is Ex.P-5. In his presence knife was recovered from the possession of accused. It is deposed by PW-8/ Jitender Prasad @ Munna that PW-10 had called PCR from his mobile phone. The PW-5 and his friend were running after accused. PW-8 had also seen that the accused was caught at the spot by public person and the accused and knife was correctly identified by him. He had also seen that PW-5 was bleeding from his stomach and thigh. The sketch of knife is Ex.PW1/A and the seizure memo of knife is Ex.PW1/C to recovery of which the victim Irfan S/o Bundu is the public witness. The said public witness is not examined in this case despite grant of several opportunities to the prosecution. Hence the said witness has not proved the recovery of buttondar knife from the accused. PW-1 is the then Ct. Satish who has deposed that no public witness has witnessed the seizure memo which were prepared by the IO. It is deposed by PW-1 in cross-examination dated 31.10.2019 that no handing over memo of seal was prepared by IO in his presence. However the seal was handed over to him. Hence as per own deposition of PW-1 no public witness was joined and PW-1 is witness to sketch of knife Ex.PW1/B. PW-1 has not proved the seizure memo and sketch of knife in his examination in chief and hence on above account the recovery of knife is doubtful.
16. Other than this the sketch of knife Ex.PW1/B and the witness to SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 24 of 33 recovery was Irfan s/o Bundu who was not produced in the witness box. No other public witness was joined. The police had reached at the spot later in time when the accused was already apprehended by public person. In these circumstances of the case the recovery of knife remains unproved on record. The site plan Ex.PW11/B was prepared at the instance of Irfan @ Farman. However the said witness could not be produced by the prosecution in evidence despite issuance of bailable warrants against the said witness. Hence the site plan is also not proved on record by the prosecution if the accused was arrested at such and such place. Where the incident had occurred had remained unproved on record. With such submission by learned Counsel for the accused it is found that the prosecution has failed to prove if this knife was used in commission of offence by the accused person.
17. Hence the prosecution has failed to proved if the knife Ex.PW1/B / Ex.P-5 was at all recovered from the accused. Further it is admitted by the prosecution in the chargesheet filed that the victim had failed to produce the proof of bill of mobile phone despite issuance of notice under Section 91 Cr. P. C. The prosecution has also produced on record the CDR and CAF from the concerned Nodal Officer if the said mobile which is of make Nokia and Samsung Duo was at all used by PW-5 and his friend Irfan S/o Bundu. Hence there is no proof on record that said mobile phone belong to PW-5 and his friend Irfan S/o Bundu in absence of which it cannot be said that the said mobile phone were used by victim and his friend. Thereby the prosecution has failed to prove if the accused had committed theft from the victim by voluntarily causing hurt or that they had attempted to carry away property obtained by theft.
SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 25 of 3318. PW-12 is Dr. Monika Chakrawarti, Sr. Scientific Assistant FSL Rohini Delhi who had received the sealed parcel on 15.07.2016. After opening the parcel she had examined it. Her FSL Report is Ex.PW12/A. The sealed parcel was duly sealed with the seal of PK containing Ex.1 which is one folding knife. Parcel 2 duly sealed with the seal of PK contained Ex.2a which is one cut /torn shirt having brown stains and Ex.2b is one pant having brown stains. Parcel 3 contained dark brown liquid in two tubes as blood samples. After examining all the exhibits it was found by PW-12 that DNA profile generated from Ex.2a and Ex.2b which are shirt and pant matched with the sample of blood of injured. However the DNA profile did not match with the blood found on the knife. The alleles match in Ex.2a, Ex.2b and Ex.3 in parcel 3 which is sample of blood. Learned Counsel for the accused has submitted that the DNA profile of the blood did not match with the knife. The FSL report Ex.PW12/A is perused which is dated 30.09.2016. Another FSL examination report is Ex.PW13 which is dated 23.09.2016. The forwarding letter dated 15.07.2016 sent by SHO PS I. P. Estate mentions the query No.2 at page 2 that whether the cut marks on the shirt and pant in Ex.2 are possible from the knife Ex.1. Since the letter is not exhibited and for the purpose of identification exhibit mark is put as Ex.P-4 which is so put at the stage of judgment. In reply to this in forensic report Ex.PW13 it is reported by Asst. Director Physics Sh. Parshuram from FSL Rohini that no cut mark found on Ex.2a and Ex.2b could be possible by knife Ex.1. Ex.2a and Ex.2b are the shirt and the pant respectively of the injured. Hence it is not possible to say that the said knife is the same knife from which injuries could be done by the accused on PW-5. PW-12 SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 26 of 33 Dr. Monika Chakrawarti has admitted as correct that DNA profile generated from Ex.3 the blood sample are not found matching with DNA profile generated from the knife Ex.1. It is deposed in her examination in chief that blood was detected on Ex.1 which is one folding knife. Hence it is proved by scientific evidence that though the blood was deducted on Ex.1 the knife however the said blood does not match with the blood of the accused and therefore it is not the same knife which was allegedly used in causing injuries to victim PW-5. The same is the deposition of PW-13. There is no other evidence by the prosecution to say that such injury was caused on the victim by the said knife. It is mentioned in Ex.PW-13 that no cut mark was found in Ex.2A and Ex.2B which could be possible by Ex.1.
19. Hence it is held that the prosecution has failed to prove the knife Ex.1 allegedly recovered from the accused if it was the same knife which was allegedly used in stabbing the PW-5 and his friend Irfan @ Farman. There is no connecting link of the knife with the accused in reference to the injuries caused to the victim. Other than this the knife was sent belatedly for FSL examination with no valid reason with the prosecution and this also creates doubt in the case of the prosecution that why so much time was taken which is a period of about two months in sending the sample for examination before FSL.
20. Another fact to be noted is that the accused person were already apprehended by the public person and police had reached at the spot later in time and it cannot be believed that the public person would not have seized the knife from the possession of the accused or continue. The SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 27 of 33 public person would not continue to keep that knife in the pocket of the accused in the ordinary course of nature. The true facts have therefore has not appeared on record. Hence the way the knife was allegedly recovered from the accused person is doubtful. In such view of the matter it is held that accused is entitled to acquittal for the offence under Section 25 r/w Section 27 of Arms Act, 1959.
21. Since the ownership of mobile phone is not proved on record by the prosecution therefore it cannot be said that what mobile phone was allegedly recovered from the possession of the accused is a stolen property which is to be received by the accused as a stolen property under Section 411 IPC.
22. The necessary ingredients of which are detailed in the citation titled as Shiv Kumar vs. The State of Madhya Pradesh Criminal Appeal No.153 of 2022.
13. Section 411 IPC:
"411. Dishonestly receiving stolen property.- Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
The penal Section extracted above can be broken down into four segments namely: Whoever, I. Dishonestly; II. Receives or retains any stolen property; III. Knowing; or IV. Having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
14. "Dishonestly" is defined under Section 24 of the IPC as, "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly". The key ingredient for a crime is, of course, SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 28 of 33 Mens Rea. This was nicely explained by Justice K. Subba Rao in the case of Dr. Vimla v. Delhi Administration4 in the following paragraphs: -
"9A. A Full Bench of the Madras High Court, in Kotamraju Venkatraadu v. Emperor [(1905)ILR 28 Mad 90, 96, 97] had to consider the case of a person obtaining admission to the matriculation examination of the Madras University as a private candidate producing to the Registrar a certificate purporting to have been signed by the headmaster of a recognized High School that he was of good character and had attained his 20th year. It was found in that case that the candidate had fabricated the signature of the headmaster. The court held that the accused was guilty of forgery. White, C.J., observed:
"Intending to defraud means, of course, something more than deceiving." He illustrated this by the following example: "A tells B a lie and B believes him. B is deceived but it does not follow that A intended to defraud B. But, as it seams to me, if A tells B a lie intending that B should do something which A conceives to be to his own benefit or advantage, and which, if done, would be to the loss or detriment of B, A intends to defraud B." The learned Chief Justice indicated his line of thought, which has some bearing on the question now raised, by the following observations:
"I may observe, however, in this connection that by Section 24 of the Code person does a thing dishonestly who does it with the intention of causing wrongful gain or wrongful loss. It is not necessary that there should be an intention to cause both. On the analogy of this definition, it might be said that either an intention to secure a benefit or advantage on the one hand, or to cause loss or detriment on the other, by means of deceit is an intent to defraud."
But, he found in that case that both the elements were present. Benson, J. pointed out at p. 114:
"I am of opinion that the act was fraudulent not merely by reason of the advantage which the accused intended to secure for himself by means of his deceit, but also by reason of the injury which must necessarily result to the University, and through it to the public from such acts if unrepressed. The University is injured, if through the evasion of its bye-laws, it is induced to declare that certain persons have fulfilled the conditions prescribed for Matriculation and are entitled to the benefits of Matriculation, when in fact, they have not fulfilled those conditions for the value of its examinations is depreciated in the eyes of the public if it is found that the certificate of the University that they have passed its examinations is no longer a SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 29 of 33 guarantee that they have in truth fulfilled the conditions on which alone the University professes to certify them as passed, and to admit them to the benefits of Matriculation."
Boddam, J., agreed with the learned Chief Justice and Benson, J. This decision accepts the principle laid down by Stephen, namely, that the intention to defraud is made up of two elements, first an intention to deceive and second the intention to expose some person either to actual injury or risk of possible injury; but the learned Judges were also inclined to hold on the analogy of the definition of "dishonestly" in Section 24 of the Code that intention to secure a benefit or advantage to the deceiver satisfies the second condition."
15. To establish that a person is dealing with stolen property, the "believe" factor of the person is of stellar import. For successful prosecution, it is not enough to prove that the accused was either negligent or that he had a cause to think that the property was stolen, or that he failed to make enough inquiries to comprehend the nature of the goods procured by him. The initial possession of the goods in question may not be illegal but retaining those with the knowledge that it was stolen property, makes it culpable.
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21. In Trimbak vs. State of Madhya Pradesh5, this Court discussed the essential ingredients for conviction under Section 411 of the IPC. Justice Mehr Chand Mahajan, in his erudite opinion rightly observed that in order to bring home the guilt under Section 411 IPC, the prosecution must prove, "5. (1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property...."
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23. That apart, the disclosure statement of one accused cannot be accepted as a proof of the appellant having knowledge of utensils being stolen goods. The prosecution has also failed to establish any basis for the appellant to believe that the utensils seized from him were stolen articles. The factum of selling utensils at a lower price cannot, by itself, lead to the conclusion that the appellant was aware of the theft of those articles. The essential ingredient of mens Rea is clearly not established for the charge under Section 411 of IPC. The Prosecution's evidence on this aspect, as they would speak SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 30 of 33 of the character Gratiano in Merchant of Venice, can be appropriately described as, "you speak an infinite deal of nothing."6
24. In a case like this, where the fundamental evidence is not available and the law leans in appellant's favour, notwithstanding the concurrent finding, the Court has to exercise corrective jurisdiction as the circumstances justify. As such, taking a cue from Haryana State Industrial Development Corporation vs. Cork Manufacturing Co7., the exercise of extraordinary jurisdiction under Article 136 is found to be merited to do justice to the appellant who was held to be guilty, without the requisite evidence to establish his mens rea in the crime.
23. In such view of the matter it is held that the prosecution has failed to prove that the case property which is mobile phone of make Nokia and Samsung Duo are received by accused as a stolen property knowingly that it is an incident of theft. Hence accused is held entitled to acquittal under Section 411 IPC in view of the fact that the prosecution has failed to prove that the mobile phone make Nokia and Samsung Duo were in possession or ownership of another person before they reached the hands of the accused.
24. One another fact to be noted is that MLC of Salim / PW-5 is available on record where nature of injuries is recorded as simple. This MLC is not produced in the evidence of PW-5. However without putting exhibit mark this MLC was brought in the evidence of PW-6. The wound on PW-5 was found sub-cutaneous deep and no abnormality is deducted in ultrasound abdomen and X-ray report. However the nature of injuries in MLC is not pointed out in his evidence. In MLC it records CW over left thigh and CW over abdomen without discussing the nature of length of such injury and what type of weapon could be used when such injury was inflicted.
SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 31 of 3325. Further it is noted that the incident has occurred around 12:05 PM on 22.05.2016. Vide Ex.PW2/A intimation was given to Duty Officer PS I. P. Estate and it is so recorded in DD entry No.19PP LNJP that at Mata Sundri Road, DDA Flats, Subzi Market knife was hit on some person. The said information was received at mobile phone. The prosecution witness PW-8 had deposed in cross examination that Sh. Shekhar Gola had called PCR from the mobile phone of PW-8. Sh. Shekhar Gola had told PW-10 that he had asked PW-8/ Munna Lal to call at 100 number and PW-8 had called at 100 number. Hence PW-10 and PW-8 are deposing contradictorily to each other that who had given the information to the police. Reading jointly the testimony of PW-8 and PW-10 it comes out that they had immediately informed the police when the incident had occurred around 12:05 PM and when the information have been received by the police at 12:15 PM then there is no reason to register FIR at 4:45 PM. Hence there is delay in recording of FIR in that why it had taken 4½ hours in recording the FIR. PW-8 has deposed that Sh. Shekhar Gola/PW-10 had made phone call to PCR from his mobile phone whereas PW-10 has deposed that he had asked PW-8 to call at 100 number and in front of PW-10, PW-8 had replied to the police that on asking of PW-10 the PW-8 had called the police. Hence there is contradiction in the deposition of PW-8 and PW-10 that who had actually called the police and how the investigation has begun which therefore creates doubt in the case of the prosecution. Hence doubt has arisen in the case of the prosecution if the facts are correctly presented and recorded earliest benefit of which must be given to the accused.
26. In such view of the matter, it is held that prosecution has SC No. 28922/2016 FIR No. 276/2016 State Vs. Irfan & Anr. Page 32 of 33 failed to prove all the charges levelled against the accused Irfan S/o Islamuddin. Hence the accused Irfan S/o Islamuddin stands acquitted of all the above offences. The earlier personal bond of accused stands cancelled and surety bond stands discharged. The documents, if any, be returned to the surety and endorsement on security documents is allowed to be de-endorsed. In terms of Section 437A Cr. PC, accused has furnished his bail bond as directed which will be in force for period of six months from the date of this judgment. Case property be confiscated to the State.
File be consigned to Record Room.
Announced in the open Court Digitally signed by
JOGINDER
on 29.04.2024. PRAKASH
JOGINDER PRAKASH
NAHAR
Date: 2024.04.29
NAHAR 16:38:50 +0530
(JOGINDER PRAKASH NAHAR)
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL/TIS HAZARI COURT
DELHI
SC No. 28922/2016
FIR No. 276/2016
State Vs. Irfan & Anr. Page 33 of 33