Delhi District Court
St. vs Mohd. Hasim Etc. on 24 January, 2011
St. Vs Mohd. Hasim etc.
FIR No.434/07, PS: Sadar Bazar
U/s 394/397/411/34 IPC
25/27/54/59 Arms Act
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE (WEST02), DELHI
SC No. : 100/1/08
State
Versus
1. Mohd. Hasim
S/o Mohd. Akram
R/o H. No. BB273
Nabi Karim, Delhi.
2. Mohd. Akil @ Aurangjeb@ Horn
S/o Mohd. Kadir
R/o H. No.6446, Gali Ishwari Prasad
Bara Hindu Rao, Delhi.
3. Parvez
S/o Nabi Ahmed
R/o H.No. A505, Gali No.2
Krishna Basti, Nabi Karim, Delhi.
Case arising out of :
FIR No. : 434/07
U/s : 394/397/411/34 IPC
25/27/54/59 Arms Act
P.S. : Sadar Bazar
Date of FIR : 17.12.2007
Date of Institution : 15.02.2008
Date of Final Arguments : 17.01.2011
Judgment reserved on : 17.01.2011
S.C. No.100/1/08 Page 1 of 29
St. Vs Mohd. Hasim etc.
FIR No.434/07, PS: Sadar Bazar
U/s 394/397/411/34 IPC
25/27/54/59 Arms Act
Date of judgment : 19.01.2011
JUDGMENT
1. The case FIR No. 34/07, PS Sadar Bazar under section 394/397/411 IPC and 25/54/59 Arms Act committed to the court of sessions for trial of the accused Mohd. Hasim S/o Mohd. Akram, Mohd. Akil @ Aurangjeb @ Horn S/o Mohd. Kadir and Parvez S/o Nabi Ahmed.
The allegations made against the accused persons are that on 17.12.2007 at about 07:25 PM in Gali No.11, near house no.1232, Sadar Bazar, the accused Mohd. Hasim and Akil @ Aurangjeb @ Horn in furtherance of their common intention along with other three associates committed dacoity of articles i.e. one briefcase containing a sum of Rs.2,50,000/, one credit card, one petroleum card, keys of shop and some other documents from the possession of complainant Badri Narain Grover. The above named accused persons also caused bullet injury to Ram Lalit with country made pistol with such intention or knowledge under such circumstances that in case of his death, they would have been liable for committing his murder.
On 21.12.2007, at ground floor of H. No.BB273, Ashoka Basti, Nabi Karim, Delhi, accused Mohd. Hasim got recovered one country made pistol and a sum of Rs.11,000/ belonging to complainant Badri Narain Grover which had been received/retained by the accused Mohd. Hasim knowing to believe a part of looted property. On 25.12.2007, Accused Mohd. Akil @ Aurangjeb @ Horn S.C. No.100/1/08 Page 2 of 29 St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act at a place near Wall of Majjar, Jhandewalan Road, Delhi got recovered a sum of Rs.3,500/ belonging to complainant Badri Narain Grover.
2. The case as revealed by the complainant is that on 17.12.2007, PW5 Badri Narain was present at his shop and after closing the same at about 07:30 PM had come out on main Sadar Thana Road, PW4 Ram Lalit was with him. PW5 Badri Nrain Grover was having a briefcase which contained cash of Rs.2,50,000/, HDFC Credit Card and a petroleum card and other papers. He noticed five persons on the road and when he reached near house no, 1232 in the gali, they overpowered him. One of them hit him on his face and he became a little unconscious. They asked him to leave the suitcase. They forcibly snatched the said briefcase. He shouted for help and even Ram Lalit also shouted as what they were doing. The accused persons fired a shot on them which hit Ram Lalit on his left upper portion of chest. Police had come at the spot and Ram Lalit was taken to Hindu Rao Hospital and statement of PW5 Badri Narayan was recorded by police vide Ex.PW5/A. Neither the said briefcase nor the amount of money was got recovered by police. PW5 had identified two accused persons i.e. Mohd. Akil and Mohd. Hasim. The third accused i.e. Parvesh has been seen first time by him after the incident.
PW20 Insp. Rajesh stated that on 17.12.2007, on receipt of DD no.29A, he along with Ct. Ramkesh reached at Sadar Than road near house no.1232 where he came to know that an incident of shooting took place and injured had gone to Hindu Rao Hospital. He S.C. No.100/1/08 Page 3 of 29 St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act met Badri Narayan Grover the employer of injured and recorded statement of Badri Narayan vide Ex.PW5/A and prepared tehrir Ex.PW20/A and gave rukka to Ct. Ramkesh. He also prepared site plan Ex.PW20/B at the instance of Badri Narayan and inspected the spot. No blood stains found at the spot. In the meantime, Ct. Ramkesh came with the copy of FIR and thereafter he went to the Hindu Rao Hospital and collected MLC of injured PW4 Ram Lalit who had already gone to some private hospital for treatment. Duty Constable at the hospital handed over to him a sealed Pulanda prepared by doctor on duty which was sealed with the seal of HRH vide memo Ex.PW20/C. Then they came back to the spot where met one witness Mohsin and he was taken to Dossier Cell where the sketches of suspects got prepared. Badri Narayan informed that injured was in City Hospital. PW20 SI Rajesh Malhotra along with HC Rishipal reached City Hospital and found injured Ram Lalit under medical treatment. The doctor of City Hospital handed over to him a sealed bottle of sample which contained the bullet which was removed from the shoulder of injured, the same was seized vide seizure memo Ex.PW9/A and the pulandas were deposited in the Malkhana.
On 21.12.2007 on the basis of secret information accused Mohammad Hashim was apprehended from near Qutub road Railway line, he disclosed about the incident, he was arrested vide arrest memo Ex.PW8/A, personal search conducted vide memo Ex.PW8/B, his disclosure statement Ex.PW8/C recorded. Accused Mohd. Hashim S.C. No.100/1/08 Page 4 of 29 St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act pointed out the place of incident vide memo Ex.PW8/D. He also disclosed the name of other accused persons as Mohammad Akil and Parvesh and also informed that the money which came to his share was Rs.15,000/ out of which Rs.11,000/ were lying at his house and he could get recover the same. Thereafter, they reached with accused Hashim at house no. BB273 Ashoka Vasti, Nabi Karim from where at the ground floor from the bed box he got out Rs.11,000/ which were all Rs.100/ notes with two notes of Rs.500/. On the packet of Rs.100/ on the first note name Badri Narayan was written. The currency notes were seized vide memo Ex.PW8/E. Accused also got recovered from the same box one country made katta. Sketch of katta is Ex.PW8/F. It was kept in a Pulanda and sealed with the seal of RM and seized vide memo Ex.PW8/G. On 22/12/2007 accused produced in court and TIP of recovered currency notes was made. PW20 SI Rajesh Malhotra recorded statement of injured and other witnesses.
On 25.12.2007, on the basis of secret information from Eidgaah park one Mohammad Akil apprehended and he was arrested vide arrest memo Ex.PW14/A, his personal search Ex.PW14/B conducted and disclosure statement Ex.PW14/C recorded. Accused Akil disclosed that he also received Rs.15,000/ out of which Rs.10,000/ he had paid to somebody in Meerut and Rs.3,500/ he had secretly kept in a place near Mazaar Mama Bhanja and he got recovered Rs.3,500/ which were five notes of Rs.500 each and ten notes of Rs.100/ each which were seized vide memo Ex.PW14/D. S.C. No.100/1/08 Page 5 of 29 St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act Accused pointed out the place of incident vide memo Ex.PW14/E. On 03.01.2008, TIP of Mohammad Hasim was got conducted at Tihar Jail which is Ex.PW20/E. The TIP of accused Akil was got conducted on 08.01.2008 where complainant Badri Narain Grover had identified the accused persons. One Shirt and one sweater of the injured are seized and same is collectively Ex.P6. The currency notes of Rs.3500/ are collectively Ex.P2. The currency note of Rs.100/ containing the signatures of Badri Narayan is Ex.P3 and the other currency notes are collectively Ex.P4. The country made Katta seized from Mohammad Hasim is Ex.P5.
PW23 SI Sewak Ram moved an application through SHO along with FSL result of Biological and ballistic section and also obtained sanction under 39 of Arms Act. He prepared the supplementary chargesheet which was filed in the court.
3. After assignment of the case file, the charge against the accused persons was framed under section 395/307/34 IPC on 15.05.2008. A separate charge under section 25 Arms Act was framed against the accused Mohd. Hasim. The charge under section 412 IPC was also framed against the accused Mohd. Hasim and Mohd. Akil for recovery of amount of Rs.3,500/ out of the looted property. The accused Parvesh was named in the chargesheet for offence under section 395/307/34 IPC on 16.02.2009.
4. The prosecution in all, to bring home the guilt of the accused persons examined 25 witnesses including the complainant PW5 Badri S.C. No.100/1/08 Page 6 of 29 St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act Narayan and PW4 Ram Lalit injured. PW1 Santoki is also an employee of Badri Narain Grover who stated in his deposition that he heard a noise of firing and after hearing the noise, came near Badri Narain Grover and Ram Lalit, he saw that Lalit was injured at his right shoulder by fire and blood was oozing out. Badri Narain Grover told about the incident. He tried to chase the assailants but no one was found there. The police came at the spot in his presence. He was examined by the police. In the cross examination on behalf of accused persons he stated that there is no documentary proof of working with Capital Chhata Udyog. He cannot tell the exact amount of daily sale at the said shop. He does not remember as to how many times police recorded his statement. He cannot tell the exact date when his statement was recorded.
PW4 Ram Lalit stated in his examination that he did not see those persons after the incident. He did not give any statement to the police. He cannot identify the assailants. He was also cross examined by Ld. APP for state as he has not supported the case of the prosecution. In the cross examination by Ld. APP for state, he stated that he had gone to Tihar Jail and joined Judicial TIP but he could not identify any person there. It is denied that he had made statement on 05.01.2008 of his own and had identified the accused Mohd. Hasim. He has not identified the accused Mohd. Hasim present in court. It is denied that the accused Mohd. Hasim was present in the S.C. No.100/1/08 Page 7 of 29 St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act incidence of robbery when he was injured. It is also denied that he had identified accused Mohd. Akil on 10.01.2008. Accused Akil present in court today is shown to the witness to whom witness is not able to identify and says that he has not identified the accused Akil present in court. It is denied that accused Akil was present in the incidence of robbery when he was injured. It is also denied that he had been threatened by the accused persons or their relative and therefore he is deposing falsely.
PW5 Badri Narain Grover in his examination identified only three accused persons out of five assailants who have committed the offence of robbery and stated that he has seen the accused Parvesh for the first time after the incident. He cannot identify the currency notes as the currency notes are of similar design and description.
PW6 Ashu Pandey is the driver of the car of complainant Badri Narain Grover. He stated in his deposition that he heard some noise in Gali No.11, Sadar Bazar, so he went there and found Badri Narain Grover who informed that some boys have snatched his bag. Ram Lalit was found in injured condition. He was removed to Hindu Rao Hospital.
PW10 Mohd. Mousin is turned hostile and cannot identify the accused persons and stated in his deposition that none of the assailants are present in the court. Police has not made enquiries from him. He is also stated that the accused Mohd. Hasim is not among those persons from whom the katta was recovered. The person from S.C. No.100/1/08 Page 8 of 29 St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act whom the katta was recovered was speaking Haryanavi language.
PW21 Pancham Kumar took the injured Ram Lalit to Hindu Rao Hospital in the vehicle of Badri Narain.
PW11 Dr. P.C. Dass examined the injured Ram Lalit at Hindu Rao Hospital and prepared the MLC vide Ex.PW11/A. PW12 Dr. Sarabjeet Singh Sachdeva also proved the medical documents pertaining to the injured Ram Lalit, same are Ex.PW12/A. PW17 Sh. Lokesh Kumar, Ld. ACMM proved the TIP proceedings which were conducted on 03.01.2008 vide Ex.PW17/A with respect to the identification of accused Mohd. Hasim. On 08.01.2008, he also conducted the TIP proceedings in respect of accused Mohd. Akil @ Aurangjeb vide Ex.PW17/B. PW22 Manisha Upadhyay proved the biological report and examined one jacket, one dirty shirt and one dirty bullet, vide his detailed report Ex.PW22/A. The detailed report of serological examination is Ex.PW22/B. PW24 Sh. Raj Kumar Jha, DCP accord the sanction under section 39 Arms Act against the accused Mohd. Hasim for recovery of country made pistol vide Ex.PW24/A. PW25 Puneet Puri, Senior Scientific Officer proved the FSL report vide Ex.PW25/A. Other witnesses are the police officials who joined the investigation for one reason or the other during the course of preparation of documents regarding disclosure statements, S.C. No.100/1/08 Page 9 of 29 St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act arrest of the accused persons and recovery.
5. After completion of the prosecution evidence, the statements of the accused persons recorded under section 313 Cr.P.C. and all the incriminating evidence led by the prosecution put to the accused persons one after the other to which they denied as false and incorrect with the submission that they are innocent and falsely implicated in the present case and they do not want to lead any defence evidence.
6. I have heard the submissions of Ld. APP for state and counsel for the accused and carefully gone through the material on record.
Ld. APP for state submitted that the prosecution examined all the material witnesses to prove the allegations against the accused persons. The testimony of the prosecution witnesses are trustworthy, believable and cogent. The accused persons are correctly identified by the complainant during the course of judicial TIP in Central Jail as well as in the court. The case property i.e. the part of the looted amount has also been proved to be recovered from the possession and at the instance of the accused Mohd. Hasim and Mohd. Akil. The country made pistol was recovered from the possession of the accused Mohd. Hasim and he has also got recovered a sum of Rs.11,000/ as admitted in the disclosure statement. The weapon of offence also sent to ballistic expert in FSL Rohini. The bullet as recovered from the body of PW4 Ram Lalit has been proved to be fired from the pistol which was recovered from the possession of the accused Mohd.
S.C. No.100/1/08 Page 10 of 29St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act Hasim. The blood stained shirt was also been seized during the course of investigation as handed over by the doctor concerned who medically examined the patient Ram Lalit. The documents with respect to the medical treatment and injuries sustained by the injured Ram Lalit are proved by the prosecution witnesses. Under these circumstances, the accused persons are liable to be convicted for the charges as levelled against them.
7. Per contra, Ld. counsel for the accused persons submitted that the prosecution failed to prove the allegations against the accused persons. PW4 Ram Lalit is himself in the company of PW5 Badri Narain Grover at the time of occurrence and failed to identify the accused persons. He was declared hostile by the prosecution and in cross examination on behalf of state, he confronted from his statement recorded under section 161 Cr.P.C. and he has not supported the case of the prosecution at any point of time. He admitted that he has gone to Tihar Jail for the judicial TIP but he could not identify the assailants. It is denied that he identified the accused Mohd. Akil on 10.01.2008 and his statement was recorded. It is also denied that the accused persons were present at the place of occurrence or that he has been threatened by the accused persons as such he is deposing falsely.
It is further stated by Ld. Counsel for the accused persons that PW5 Badri Narain Grover in his examination neither identified the currency notes nor the accused persons. The other public witness is PW10 Mohd. Mousin who also declared hostile and despite cross S.C. No.100/1/08 Page 11 of 29 St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act examination by Ld. APP did not support the case of the prosecution. PW21 Santoki employee of PW5 Badri Narain Grover, did not say anything about the incident since he has also come later on. It is further contended that the accused persons in their statement under section 313 Cr.P.C. denied all the incriminating evidence with the contention that it is a false case and the case property as shown to be recovered from the possession of the accused persons is planted. They are innocent and falsely implicated in this case. It is further contended that the police officials in connivance with the complainant made a false case against the accused persons. In these circumstances, the accused persons are liable to be acquitted from the charges framed against them.
8. Keeping in view of the submissions of Ld. APP for state and counsels for the accused persons and material on record. The charge under section 395/307/34 was framed against the accused persons. The definition for the purpose of punishment for robbery is defined under section 390 IPC "Th eft is "r obbery" 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 instant hurt, or of instant wrongful restraint.
9. The charges against the accused Mohd. Hasim and Mohd.
Akil are framed under section 395/307/412/34 IPC and under section S.C. No.100/1/08 Page 12 of 29 St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act 25, 27 Arms Act exclusively against the accused Mohd. Hasim whereas, it has been alleged that on 17.12.2007 at about 07:35 PM in Gali No.11, near house no. 1232, Sadar Bazar, the above named accused persons committed dacoity upon the complainant PW5 Badri Narain Grover. The accused persons also fired in which Ram Lalit sustained bullet injuries. The sum of Rs.11,000/ and country made pistol was recovered from the possession of the accused Mohd. Hasim and Rs.3,500/ was recovered from the possession of the accused Mohd. Akil.
10. In order to prove the offence under section 395 IPC, the evidence available is of three categories in case of dacoity viz.
(i) The culprits are caught red handed on the spot.
(ii) Discovery of the incriminating facts such as looted property, weapons used in the commission of the offence. Such circumstantial evidence is of different probative value.
(iii) Identification of the culprits when they are later arrested during investigation.
Where the substantive evidence of informant i.e. victim of dacoity and his parents implicated the accused in the commission of dacoity and their evidence is corroborated from the recovery of the stolen articles from the possession of the accused which were duly identified, the conclusion was irresistible that the prosecution had established the charge under section 395 IPC. Where the fact that more than five persons were involved in the offence, and valuable S.C. No.100/1/08 Page 13 of 29 St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act articles were taken were proved, the conviction of accused under section395/34 IPC was proper. The circumstances are inadequate when the conviction of the accused persons was passed only on the recovery of some currency notes or some articles like darant used in the commission of the offence. Identification of the articles were not satisfactorily proved as forming part of corpus delicti and complainant failed to identify the accused in TIP. The stolen articles were alleged to have been recovered from the house of the accused, the investigating officer failed to take respectable inhabitants of the locality as witness while conducting the search. The test identification was failed in respect of the recovered valuable articles, the material recovered cannot be deemed as stolen property and the accused persons cannot be convicted.
Similarly, when the accused persons were arrested 20 days after the dacoity and the country made pistol was recovered, no reasonable presumption of use of pistol by the accused would be drawn at the time of occurrence as the gun could easily change hands. In case titled as Paras 1978 Cri LJ634 (All), it is observed that where the accused were not named in the first information report and the evidence of the identifying witnesses was interested and not reliable as the accused were already shown to the accused in kotwali, the money recovered from accused was not the amount which was looted, acquittal of the accused was ordered.
11. In the present case, only two important witnesses i.e. PW4 S.C. No.100/1/08 Page 14 of 29 St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act Ram Lalit and PW5 Badri Narain Grover of the prosecution witnesses. The occurrence took place when PW5 Badri Narain Grover was going along with PW4 Ram Lalit who is an employee of Badri Narain Grover (Proprietor of M/s Capital Chhaya Udyog), along with his brief case, containing Rs.2,50,000/, credits card and other important documents. The alleged brief case was snatched by the assailants on the point of pistol and one fire shot was fired towards Ram Lalit and hit him on his shoulder. However, PW4 Ram Lalit has not supported the case of the prosecution and failed to identify the accused persons. It is also admitted by PW4 Ram Lalit in his cross examination that he could not identify the accused persons during the course of their TIP in Tihar Jail. PW5 Badri Narain Grover also failed to identify the currency notes which were looted from him and found in the possession of the accused persons. He identified only two accused persons out of five accused persons. Third accused Parvesh was seen for the first time in court after the incident.
12. Doctor concerned proved the MLC and the nature of injury on the person of PW4 Ram Lalit. PW17 Sh. Lokesh Kumar, Ld.ACMM proved the TIP proceedings vide Ex.PW17/A and Ex.PW17/B. The identification of the accused Mohd. Hasim and Mohd. Akil is corroborated by PW5 Badri Narain Grover, PW17 Sh. Lokesh Kumar, Ld. MM and PW20 SI Rajesh Malhotra who has arrested the accused persons as well as recorded their disclosure statements. PW5 Badri Narain Grover correctly identification of the S.C. No.100/1/08 Page 15 of 29 St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act two accused persons i.e. accused Mohd. Hasim and Mohd. Akil.
13. The offence of robbery is punishable U/s 392 IPC. When fear is used to enable any person to carry away booty, it amounts to robbery, theft is robbery when in committing theft or in order that theft by committing or in carrying away the booty force is used. Similarly robbery involve extortion hence person cannot be convicted both for the extortion and for robbery which is a special aggrievated from the extortion. The dacoity consisting of 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 person present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "da coity" .
So far as, in respect of the charge U/s 397 IPC, it is essential to satisfy the word " uses" for the purpose of section 391 IPC, robbery being committed by an offender who was armed with a deadly weapon which was then in the vision of the victim shown as to create a terror in the mind of victim and in that it should be further shown, have been used for cutting, stabbing, shooting as the case may be. In Phool Kumar Vs Delhi Administration AIR 1925 SC 905 and Jung Singh Vs State of Rajasthan 1984 Crl. J. 1135, in these two cases it was held that "u se of deadly weapon by one offender at the time of committing robbery does not attract section 397 for imposition of any S.C. No.100/1/08 Page 16 of 29 St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act minimum punishment for another offender who did not use such weapon and when the accused is charged under section 395 r/w 397 IPC for committing dacoity with attempt to cause grievous hurt, he cannot be convicted u/s 397 IPC only because one revolver had been recovered from the accused. This is no proof that he used the revolver while committing dacoity was charge under section 397 will not attract. The provision postulates on, only individual act of the accused to be relevant to attract section 397 IPC and thereby inevitably neglects the use of the contradictive or vacarious liability engrafted in section 34 IPC.
14. In case titled Sh. Shravan Dashratha Vs State of Maharashtra 1998 Crl. J. 1196 Bombay. The Bombay High Court has held that liability under section 397 IPC he individually and not contradictive and this would become crystal clear and analysis of the section 397 IPC, it is only when a person while committing dacoity or attempting to commit dacoity uses any deadly weapon or caused grievous hurt or attempts to cause death or grievous hurt to any person then that person will be guilty of section 397 IPC. When there is no evidence at the time of committing robbery the accused used any deadly weapon or caused any grievous hurt or made any attempt to cause death or grievous to any person who cannot be convicted under section 397 IPC. The prosecution case is that it is the coaccused who inflicted the major injuries to the victim by committing high way robbery. Even though the accused participated in the case of robbery S.C. No.100/1/08 Page 17 of 29 St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act he did not commit any offence under section 397 IPC and committing the offence under section 392 and 394 IPC.
15. Every honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals as held by the Apex Court in case titled as State of U.P. Vs. M.K. Anthony" reported in AIR 1985 SC 48. As per the judgment passed in a case titled as " Shivappa Vs. State of Mysore"
cited in AIR 1971 SC 196 the Apex Court has observed that :" If there is other evidence to connect the accused with the crime itself, however, small, the finding of stolen property with him is a piece of evidence against him. In such a case presumption under Section 114(a) of the Evidence Act cannot be invoked. It is only when the accused cannot be convicted with the crime with the other evidence, then the presumption of Section 114(a) of the Evidence Act is attracted."
In another case titled as " Public Prosecutor Vs. Yerra Arjuna"
cited in 1998 Cr. LJ 179 (AP) it was held that :"R ecovery of ornaments of the deceased at the instance of the accused having been proved and there is nothing to connect him with dacoity and murder, the presumption under Section 114(a) can be raised against the accused to prove that it was the accused who was receiver of stolen goods knowing it to be stolen"
16. In view of the deposition made by PW4 Ram Lalit, PW5 Badri Narayan as well as public witnesses, it is crystal clear that the dacoity/robbery has taken place and the briefcase containing the cash S.C. No.100/1/08 Page 18 of 29 St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act amount was also looted. The part of currency notes were also recovered from the accused Mohd. Hasim and Mohd. Akil and both of them have not claimed their interest or title over the currency notes i.e. case property. PW5 Badri Narain Grover had not identified as to whether the currency as recovered from the possession of the accused persons are part of the looted amount. It is a fact that the amount is not belonging to the accused persons. The accused persons have also not made suggestions that this amount is planted upon them. The presumption under section 114A Evidence Act with regard to the recovery and does not claim any title or interest goes against the accused Mohd. Hasim and Mohd. Akil with respect to the recovery of the part of the Govt. currency notes. All the accused persons have been identified in the court by the complainant PW5 Badri Narain Grover. The accused Mohd. Hasim and Mohd. Akil also identified in the judicial TIP, same is proved by PW17 Sh. Lokesh Kumar, Ld. MM. This has not been stated by any witness which of the accused has used the pistol in the commission of offence. In these circumstances, the evidence on record, at the most the prosecution can bring home the guilt of the accused persons under section 392/411/34 IPC against the accused Mohd. Hasim and Mohd. Akil @ Aurangjeb.
17. So far as with respect to the charges under section 307 IPC, PW4 Ram Lalit injured failed to identify the assailants, who stating that " ...I did not see those persons after the incident... I cannot identify the assailants today." Even though in Tihar Jail, he joined the TIP but S.C. No.100/1/08 Page 19 of 29 St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act he cannot identify the accused persons. The complainant has not said anything anything regarding the fire shot hit on the person of PW4 Ram Lalit. The other public witnesses PW10 Mohd. Mohsin and PW21 Pancham Kumar have not stated regarding the description of the assailants or any fire was took place in their presence. PW10 Mohsin has been declared hostile as he has not supported the case of the prosecution and confronted from his statement recorded under section 161 Cr.P.C.
To charge a person under section 307 IPC, it has to be shown as to what was the actual intention of the assailant and also as to what is the nature of injury i.e. the extent of damage caused to body or any organ thereof. Simply because the injury was caused with the sharp edged weapon and was on the vital part of the body, the said fact by itself, in absence of any evidence about existence or any fracture in support or evidence about the injury by the doctor, would not be sufficient to declare the said injury to be dangerous to life so as to justify the conviction. The liability of the accused must be limited to the act which they in fact did and should not be extended so as to embrace consequence of another act, which they might have done. Where the accused persons have shown the similar intention to shoot at the victim, is not shown or any oral or documentary evidence and the injuries as per the MLCs proved to be received by the same weapon as recovered from the possession of accused Mohd. Hasim.
PW22 Manisha Upadhyay, senior scientific officer gave the S.C. No.100/1/08 Page 20 of 29 St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act detailed report Ex.PW22/A and Ex.PW22/B and testified that the exhibits ' 1a' is one jacket having dark brown stains, '1b' one dirty shirt having brown stains, exhibit ' 2' one dirty bullet. Blood was detected on exhibits ' 1a' , '1b' and '2' and the same is found of human. Sample of the blood was also taken from the injured but the same was neither sent for comparison studies with the blood lying on the bullet and the clothes as seized by the investigating officer. The investigating officer has also not taken any expert opinion from the doctor concerned on the weapon of offence who examined the patient and also recovered the blood from the body of the PW4 Ram Lalit.
PW25 Puneet Puri senior scientific officer examined the country made pistol and blood and filed his report Ex.PW25/A. But he has also not given any opinion whether the blood was of the same pistol as examined or the injuries as found on the person of PW4 Ram Khiladi or the bullet was fired from the same pistol which was recovered from the possession of the accused persons. PW25 admitted in the cross examination on behalf of the accused persons that the investigating officer had not asked whether the injury was caused due to fire shot or not. There is no eye witness or injured PW4 Ram Lalilt to support the case of the prosecution under section 307 IPC. The PW4 Ram Lalit is totally hostile and failed to identify the accused persons. Any other witness including the complainant has not stated that which of the accused fired and hit the bullet to the injured.
S.C. No.100/1/08 Page 21 of 29St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act
18. It was observed by the Apex court in case titled as Merambhai Punjabhai Khachar 1996 Cri LJ 2465 (SC), that where the injury caused by pellet, only grazed the head of the victim, the ingredients of section 307 cannot be held to have been satisfied. There was not sufficient evidence to connect the accused persons with the commission of the fire shot upon the PW4 Ram Lalit by the accused persons. There is only one country made pistol, however, three accused persons are facing the trial. The complainant stated that there were five persons in the commission of the crime but only three accused persons have been booked in this case. The accused Parvesh was arrested on 06.11.2008 on the basis of the disclosure statement. No judicial TIP of accused Parvesh was conducted nor any incriminating recovered against him. Only the complainant PW5 Badri Narain Grover identified the accused Parvesh for the first time in the court. In these circumstances the prosecution has not been able to prove the ingredients of section 307/34 IPC against the accused persons.
19. So far as with respect to the offence under section 25 and 27 of the Arms Act, the same have been recovered from the possession of the accused Mohd. Hasim S/o Mohd. Akram from BB273, Ashoka Basti, Nabi Karim on 21.12.2007. The sanction was obtained on 26.04.2010. The incident took place on 17.12.2007. At the time of granting of sanction, the case property was not sent along with the police file. The PW24 R.K. Jha, DCP who accorded the sanction S.C. No.100/1/08 Page 22 of 29 St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act admitted in his cross examination on behalf of the accused persons that the recovered pistol was not produced before him. He cannot tell any particular document, however the sanction was granted after perusal of the bunch of documents which have been produced by the investigating officer. He took 3/4 hours for perusal of documents. He cannot say how many statements under section 161 Cr.P.C. have been perused by him.
Even at the time of recovery of the pistol at the instance of the accused Mohd. Hasim, no family member of the accused Mohd. Hasim was joined in the investigation nor any independent public witness was joined. Even the provisions of Cr.P.C. have not been complied with. The Ex.PW8/G is seizure memo of the country made pistol, which does not bear any signatures of any independent witness and the seizure memo is written from top to bottom in one single hand writing including the particulars of the case and date of the registration of the FIR.
PW16 Ct. Virender in his cross examination admitted that the accused Mohd. Hasim was taken to the place of incident. Several public witnesses met to the investigating officer but he did not ask any public person to join in the investigation. It is also admitted that the investigating officer did not ask any neighbour at the time when accused took them at the place of recovery and even not asked to any public person to join in the investigating after he got recovered the case property.
S.C. No.100/1/08 Page 23 of 29St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act PW8 Ct. Pradeep Kumar has also made contradictory statement while stating in the cross examination on behalf of the accused persons that the accused was caught hold by the Ct. Virender. No site plan was prepared with respect to the arrest of the accused. The denomination of the currency notes were not noted down nor any signatures were obtained on the currency notes/katta. The deposition made by both the witnesses with respect to the recovery does not inspire confidence and made a lot of material improvements and contradictions. In these circumstances, the charge under section 25/27 Arms Act could not be able to prove by the prosecution.
20. Keeping in view of the aforesaid discussion, facts and circumstances, the testimony of the prosecution witnesses brought home the guilt only for the offence under section 392/411/34 IPC against the accused Mohd. Hasim and Mohd. Akil. No incriminating evidence found against the accused Parvez to bring home the charge, as such accused Parvez is acquitted. In these circumstances, only accused Mohd. Hasim and Mohd. Akil are found guilty for the offence section 392/411/34 IPC.
Dictated & Announced (SATINDER KUMAR GAUTAM)
in the open court today ADDITIONAL SESSIONS JUDGE
i.e. on 19.01.2011 (WEST02):DELHI
S.C. No.100/1/08 Page 24 of 29
St. Vs Mohd. Hasim etc.
FIR No.434/07, PS: Sadar Bazar
U/s 394/397/411/34 IPC
25/27/54/59 Arms Act
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE (WEST02), DELHI SC No. : 100/1/08 State Versus
1. Mohd. Hasim S/o Mohd. Akram R/o H. No. BB273 Nabi Karim, Delhi.
2. Mohd. Akil @ Aurangjeb@ Horn S/o Mohd. Kadir R/o H. No.6446, Gali Ishwari Prasad Bara Hindu Rao, Delhi.
Case arising out of :
FIR No. : 434/07 U/s : 392/411/34 IPC P.S. : Sadar Bazar ORDER ON SENTENCE:
Present: Sh. Subhash Chauhan, Ld. APP for state.
Both convicts Mohd. Hasim and Mohd. Akil @ Aurengjeb @ Horn on court bail.
Sh. Pujya Kumar Singh, counsel for the convicts.
I have heard the submissions of Ld. APP for state and counsel for the convicts and carefully gone through the material on record. The prosecution succeeded to prove its csae against the S.C. No.100/1/08 Page 25 of 29 St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act accused Mohd. Hasim and Mohd. Akil under section 392/411/34 IPC and they are convicted for the same vide separate detailed judgment dt. 19.01.2011.
Ld. APP for state submitted that the prosecution proved the guilt of the accused persons beyond all reasonable doubts. The looted amount also recovered from the possession of the accused persons. The deposition of PW4 Ram Khiladi and PW5 Badri Narain Grover is duly corroborated by statements of other prosecution witnesses. PW5 Badri Narain Grover identified both the accused persons in the TIP proceedings as well as he also identified the currency notes. The testimony of the prosecution witnesses are trustworthy, believable and reliable. Under these circumstances, the accused persons deserve maximum punishment prescribed under the law.
On the contrary, Ld. counsel for the accused persons submitted that the accused persons have clean antecedents, they have not been previously convicted and they are young persons and remained in judicial custody for sufficient period of time. The accused Mohd. Hasim remained in judicial custody for more than five months and Mohd. Akil remained in judicial custody for about more than 23 months in this case. They are belonging to socially and economically weaker section of society. The accused persons are belonging to very poor family and they are only earning member in their family. Therefore, prayed to take lenient view by releasing them on probation.
In view of the submissions made and the provision of law, it S.C. No.100/1/08 Page 26 of 29 St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act has been very aptly indicated in Dennis Councle MCG Dautha Vs State of Callifornia (402 US 183: 28 L.D. 2d 711) that no formula of foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
In 2008 X AD (S.C.) 645 in case titled as Siriya @ Shri Lal Vs State of Madhya Pradesh, it has been held that, "in operation of Sentencing System, law should adopt corrective machinery or the deterrence based on factual matrix facts and given circumstances in each case, the nature of the crime, in manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, nature of weapons used and all other attending circumstances are relevant in award of sentence. Sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy in law. .......... In each case, there should be proper balancing of aggravating and mitigating circumstances on the basis of relevant circumstances in a dispassionate manner.
The contagion of lawlessness would undermine social order S.C. No.100/1/08 Page 27 of 29 St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of " order" should meet the challenges confronting the society. Friedman in his " Law in Changing Society" stated that, " State of criminal law continues to be as it should be decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.
In Sevaka Perumal etc. Vs State of Tamil Nadu (1991 (3) SCC 471 " It is therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. Therefore to consider the aforesaid discussion as well as contention raised by the Ld. APP for state and the counsel for the convicted, the convict Mohd. Hasim S/o Mohd. and Mohd. Akil @ Aurangjeb@ Horn S/o Mohd. Kadir are hereby sentenced to already undergone imprisonment and fine of Rs.25,000/ each in default of six months simple imprisonment for the offence under section 392/411/34 IPC.
I think the sentence awarded to the convicted will meet the end of justice. Copy of this order be given to the convicted free of cost forthwith.S.C. No.100/1/08 Page 28 of 29
St. Vs Mohd. Hasim etc. FIR No.434/07, PS: Sadar Bazar U/s 394/397/411/34 IPC 25/27/54/59 Arms Act Dictated & Announced (SATINDER KUMAR GAUTAM) in the open court today ADDITIONAL SESSIONS JUDGE i.e. on 24.01.2011 (WEST02):DELHI S.C. No.100/1/08 Page 29 of 29