Delhi District Court
State vs Yogendar@ Montu on 31 October, 2023
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
SC No. 174/2017 CNR No. DLCT01-003912-2017
FIR No. 383/2016
U/Sec. 392/395/397/307/34 IPC &
25/27 of Arms Act
P.S. Burari
STATE VERSUS YOGENDER @ MONTU & ORS.
(i) SC No. of the case : 174/2017
(ii) Date of commission of offence : 05.08.2016
(iii) Name, parentage and address : 1) Yogender @ Montu
of accused S/o Sh. Ramchander
R/o E-901, Jahangirpuri
Delhi
2) Vijaypal
S/o Sh. Munshi Lal
R/o Gali No. 2, Samta
Vihar, Part-II
Mukundpur, Delhi
3) Bhim
S/o Hari Chand
R/o G-191, Jhuggi No. 181
Jahangirpuri, Delhi
4) Sunny
S/o Sh. Kashmiri Lal
R/o G-Block, Jhuggi No.
253, Jahangirpuri, Delhi
5) Kamal
S/o Sh. Ajit Singh
R/o H.No. 130, Gali
No. 1/8, Janta Vihar
Mukundpur, Delhi-42
SC No. 174/2017
FIR No. 383/2016
State Vs. Yogender @ Montu & Ors. Page 1 of 29
(iv) Offence complained of : 392/395/397/307/34 IPC
& 25/27 Arms Act
(v) Plea of the accused : Pleaded not guilty
(vi) Final order : Accused Yogender @
Montu, Vijay Pal, Sunny
and Kamal are acquitted
for the offence
U/sec. 395/397/307/34 IPC
and Section 25/27 of Arms
Act.
(vii) Date of such order : 31.10.2023
Date of Institution : 27.02.2017
Date of Judgment reserved on : 10.10.2023
Date of Judgment : 31.10.2023
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. In the present case on 05.08.2016 PW-10 while on QRT Duty at Pump House Nala Road heard a sound of bullet around 7.15 p.m. On hearing of bullet sound he rushed to the place where from noise came.
There he met Monty who produced accused Yogender @ Montu. Ct. Giriraj / PW-11 had also reached there. Public persons had also gathered. One country made 'Katta' was snatched from the possession of Yogender @ Montu and complaint of Monty was recorded. Rukka Ex.PW10/A was prepared which was handed over to Ct. Giriraj. Ct. Giriraj went to PS and returned back to the spot with SI Pawan Kumar/PW-12 after registration of FIR on which PW-12 SI Pawan Kumar had conducted investigation. It is the case of the prosecution that on 05.08.2016 around 7.00 p.m. at Nala SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 2 of 29 Road within the jurisdiction of PS Burari the four accused had committed the dacoity of four pigs against the complainant Monty. Accused Yogender, Sunny and Kamal used deadly weapon which are country made pistols and fired upon Dilip. One country made pistol with one live cartridge was recovered from the possession of accused Yogender @ Montu.
2. Charge under Section 395, 397 and 307 IPC was framed against all the accused and additional charge was also made against accused Yogender @ Montu under Section 25 of Arms Act having found in possession of loaded country made pistol with one live cartridge. A further charge under Section 27 of Arms Act was also framed against accused Yogender @ Montu, Sunny and Kamal who used country made pistol. The case against accused Bhim has already stood abated vide order dated 17.05.2023 who had expired on 11.04.2023 after due verification from PS Burari, Delhi. The accused no. 3 Bhim has already stood discharged in view of such abatement vide order dated 17.05.2023.
3. All the accused are charged u/Sec. 395 IPC and u/Sec. 307/34 IPC. Accused Yogender @ Montu, Sunny and accused Kamal are charged u/Sec. 397 IPC.
4. The prosecution has examined PW-1 to PW-13 and PW-1 is the complainant / Monty. The statement of all the accused was recorded under Section 313 Cr. P C on 08.01.2020. All the accused have preferred not to lead any evidence in defence. Final arguments are heard from both the parties.
SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 3 of 295. Parties are heard and record perused.
5.1 Ld. APP for State has relied on following citations:
(i) Khujji @ Surendra Tiwari v. The State of Madhya Pradesh in Criminal Appeal No. 413 of 1982 = (1991) 3 SCC 627 dated 16.07.1991
(ii) Vinod Kumar v. State (GNCT of Delhi) in Crl. A. 419/2022 dated 18.04.2023 5.2 Ld. Counsel for accused has relied on following citations:
(i) Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450 at para 18,22 and 36
(ii) Islam v. State 2019 (4) JCC 3902 at para 24
(iii) Kailash Mehto v. State 2019 (4) JCC 4095 at para 36 & 37
(iv) State v. Amil Ahmed @ Imran & Anr. 2019 (1) JCC 171 (Delhi) at para 8, 10 & 11
(v) Randhir & Ors. v. State of Haryana (2017) 12 SCC 761
(vi) Amrish Rana v. State of Himachal Pradesh AIR 2018 SC 4604
(vii) The State v. Lakshmidhar Das & Anr. 1999 CRI. L. J.2839
(viii) Baliraj Singh v. State of Madhya Pradesh AIR 2017 SC 2114 at para 10, 11 & 13
6. Charge wise findings are as follows:
7. Section 395 IPC provides punishment for dacoity. It was held in case titled State of Maharashtra v. Joseph Mingel Koli (1997) 2 SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 4 of 29 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 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:SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 5 of 29
"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 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.
SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 6 of 29396. 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.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
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 SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 7 of 29 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, 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 SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 8 of 29 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 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 SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 9 of 29 offender is armed with any deadly weapon. This has created an anomaly. It is unreasonable to think that if the offender who merely attempted to commit robbery but did not succeed in committing it attracts the minimum punishment of seven years under Section 398 if he is merely armed with any deadly weapon, while an offender so armed will not incur the liability of the minimum punishment under Section 397 if he succeeded in committing the robbery. But then, what was the purport behind the use of the different words by the Legislature in the two sections viz. "uses" in Section 397 and "is armed" in Section 398. In our judgment the anomaly is resolved if the two terms are given the identical meaning. There seems to be a reasonable explanation for the use of the two different expressions in the sections. When the offence of robbery is committed by an offender being armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. On the other hand, if an offender was armed with a deadly weapon at the time of attempting to commit a robbery, then the weapon was not put to any fruitful use because it would have been of use only when the offender succeeded in committing the robbery.
7. If the deadly weapon is actually used by the offender in the commission of the robbery such as in causing grievous hurt, death or the like then it is clearly used. In the cases of Chandra Nath v.
Emperor [AIR 1932 Oudh 103] ;Nagar 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:SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 10 of 29
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 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]."
8. The first ingredient 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 SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 11 of 29 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.
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.
SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 12 of 29Section 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 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 SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 13 of 29 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.
13. As the provision itself provides when the highway robbery is committed, deterrent punishment is called for.
xxxxxxx
9. The first ingredient which has to be proved by the prosecution is that the accused persons have committed theft. PW-1 is the complainant and his complaint is Ex.PW1/A. It is deposed by PW-1 that on 05.08.2016 he came to his vacant plot around 7.00 pm to 7:30 pm to take care of his 7-8 pigs. He had seen 3-4 persons roaming around the pigs. When PW-1 had reached near such persons then one of them caught hold of PW-1 and the other accused had put pistol/revolver on abdomen of PW-1 and said that 'agar chilayega to tujhe maar denge'. One silver colour EECO vehicle was stationed nearby. Two person got down from the said vehicle one of whom had put 3-4 pigs into the EECO vehicle. In the meanwhile Sh. Dilip Singh grandfather of PW-1 reached at the spot SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 14 of 29 on his motorcycle. On seeing PW-3/grandfather of PW-1 the PW-1 had shouted for help from his grandfather that 'dada ji ye chor hain, inko pakdo'. On such shouting by PW-1 all the accused person had started running out of which two of them had opened fire on PW-3. PW-1 had managed to apprehend one person and rest of the accused person had run away from the spot in their EECO vehicle. On hearing the sound of firing public person gathered at the spot and police had also arrived. The apprehended person was handed over to police. It is deposed by PW-1 that his stolen pigs have still not been recovered and the empty cartridge were recovered from the spot. The site plan Ex.PW1/B was prepared at the instance of PW-1. Seizure memo of pistol and live cartridge is Ex.PW1/C. Seizure memo of empty cartridge is Ex.PW1/D. Sketch of pistol and live cartridge is Ex.PW1/E and sketch of empty cartridge is Ex.PW1/F. The accused Yogender @ Montu was correctly identified by PW-1 before the Court and the arrest memo of accused Yogender @ Montu is Ex.PW1/G. The personal search memo of accused Yogender is Ex.PW1/H and disclosure statement of accused Yogender is Ex.PW1/I. Accused Vijay Pal, accused Bhim, accused Sunny and accused Kamal were correctly identified by PW-1 before the Court. It is deposed by PW- 1 that accused Kamal and Sunny had fired while running away from the spot upon grandfather/PW-3 of PW-1.
10. On 06.08.2016 PW-1 had accompanied police person and at the instance of accused Yogender another accused Vijay Pal was arrested vide arrest memo Ex.PW1/J, his personal search memo is Ex.PW1/K, his disclosure statement is Ex.PW1/L. On pointing out by accused Yogender another accused Vijay Pal was arrested and the EECO vehicle was SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 15 of 29 recovered. The seizure memo of EECO vehicle is Ex.PW1/M. Accused Kamal, Sunny and Bhim were identified by PW-1 at police station. Accused Kamal was arrested vide memo Ex.PW1/N, accused Sunny was arrested vide memo Ex.PW1/O. The accused Bhim was arrested vide memo Ex.PW1/P and the pointing out memo of the spot at the instance of accused was Ex.PW1/Q. The PW-1 has correctly identified country made pistol and cartridge recovered from accused Yogender as Ex.P-1(colly). However PW-1 during cross-examination has deposed that the EECO vehicle was seized by the police is not the same EECO car used in the commission of offence. The colour of the EECO car was silver. During cross-examination the PW-1 had turned hostile who did not recollect the day and date of incident. He failed to recollect that how many person were sitting in EECO car and the suggestion is admitted that the accused present in the Court were not involved in the incident. It is deposed as correct that nobody had fired upon PW-1. It is deposed as correct that PW-1 had identified the accused in the Court at the instance of IO.
11. PW-3 has deposed that on 05.08.2016 around 7:00 pm when he reached the spot of incident then one boy was apprehended by PW-1. The said boy was handed over to police. The PW-1 could not identify the boy as he has not seen the face of the boy. Ld. APP has cross-examined the PW-3. PW-3 has denied that any of the accused person had taken out their pistol or fired 3-4 gunshots towards him. PW-3 has denied recording of his statement u/Sec. 161 Cr. PC before the police and supplementary statement dated 10.10.2016 u/Sec. 161 Cr. PC recording of which is denied by PW-3. PW-3 had deposed that no such incident has occurred in his presence and the arrest memo Ex.PW1/G of accused Yogender, the SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 16 of 29 seizure memo of country made pistol were not prepared in his presence and he had signed them blank. It is deposed that no recovery was effected in his presence. It is deposed that no fire arm or cartridge was recovered from accused persons in presence of PW-3. It is deposed as correct that no memo was prepared in his presence.
12. On turning hostile by PW-1 during his cross-examination and turning hostile by PW-3 in its entirety ld. APP for State has relied on citation titled Khujji @ Surendra Tiwari v. The State of Madhya Pradesh in Crl. Appeal No. 413 of 1982 dated 16.07.1991=(1991) 3 SCC 627 at relevant para no. 6, 7 and 12. It was laid down at para no. 6 that the evidence of a hostile witness is not wholly effaced from the record and that part of evidence which is otherwise acceptable can be acted upon to the extent of their version found to be dependable on a careful scrutiny thereof. The relevant para are reproduced hereasunder:
6. We have given our anxious consideration to the submissions made by the learned Counsel for the contesting parties. The fact that an incident of the type alleged by the prosecution occurred on May 20, 1978 at about 8.20 p.m. is not seriously disputed nor is the location of the incident doubted. The evidence of PW 3 Kishan Lal and PW 4 Ramesh came to be rejected by the trial court because they were declared hostile to the prosecution by the learned Public Prosecutor as they refused to identify the appellant and his companions in the dock as the assailants of the deceased. But counsel for the State is right when he submits that the evidence of a witness, declared hostile, is not wholly effaced from the record and that part of evidence which is otherwise acceptable can be acted upon. It seems to be well settled by the decisions of this Court Bhagwan Singh v. State of Haryana, [1976] 2 SCR 921 ; Rabinder Kumar Dey v. State of Orissa, [1976] 4 SCC 233 and Syed lqbal v. State of Karnataka, [1980] 1 SCR 95 that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-
examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 17 of 29 careful scrutiny thereof.
In the present case the evidence of the aforesaid two eye-witnesses was challenged by the prosecution in cross-examination because they refused to name the accused in the dock as the assailants of the deceased. We are in agreement with the submission of the learned Counsel for the State that the trial court made no effort to scrutinise the evidence of these two witnesses even in regard to the factum of the incident. On a careful consideration of their evidence it becomes crystal clear that PW 4 had accompanied the deceased in PW 3''s rickshaw to the place of incident. In the incident that occurred at the location pointed out by the prosecution, PW 4 sustained an injury. His presence in the company of the deceased at the place of occurrence, therefore, cannot be doubted. Immediately after the incident within less than an hour thereof PW 4 went to the police station and lodged the first information report. It is true that the first information report is not substantive evidence but the fact remains that immediately after the incident and before there was any extraneous intervention PW 4 went to the police station and narrated the incident. The first information report is a detailed document and it is not possible to believe that the investigating officer imagined those details and prepared the document Exh. P 3. The detailed narration about the incident in the first information report goes to show that the subsequent attempt of PW 4 to dis-own the document, while admitting his signature thereon, is a shift for reasons best known to PW 4. We are, therefore, not prepared to accept the criticism that the version regarding the incident is the result of some fertile thinking on the part of the investigating officer. We are satisfied, beyond any manner of doubt, that PW 4 had gone to the police station and had lodged the first information report. To the extent he has been contradicted with the facts stated in the first information report shows that he has tried to resile from his earlier version regarding the incident. So also the presence of PW 3 at the scene of occurrence cannot be doubted once the presence of PW 4 is accepted. The trial court did not go so far as to say that both these witnesses were not present at the scene of occurrence or that PW 4 was not injured in the incident but refused to look into their evidence treating their evidence as non-est on their being declared hostile by the prosecution. We think that the approach of the trial court insofar as the evidence of these two witnesses is concerned, is legally unacceptable. The High Court has not endeavoured to assess their evidence since it thought that the conviction of the appellant could be sustained on the evidence of PW 1 Komal Chand. We are satisfied on a close scrutiny of the evidence of the aforesaid two eye-witnesses, PWs 3 and 4, that the deceased and PW 4 came to the place of occurrence in the rickshaw pulled by PW 3. On reaching the spot where the incident occurred they were surrounded by certain persons who were lying in wait and a murderous assault was launched on them. The first to SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 18 of 29 receive the injury was PW 4. When they gauged the intention of their assailants they jumped out of the rickshaw and both ran in different directions. The appellant first tried to chase PW 4 but later he turned to the deceased as he was informed by one of his companions Gopal that the person he was pursuing was not Gulab. Therefore, from the evidence of these two eye-witnesses the fact that the deceased and PW 4 came to the place of occurrence in the rickshaw of PW 3 is established. So also the fact that on their reaching the place of occurrence they were surrounded by some persons and an assault was launched on them in which PW 4 received an injury and Gulab died is clearly established. The only area where they have not supported the prosecution and have resiled from their earlier statements is regarding the identity of the assailants. We will deal with that part of the evidence a little later but the fact remains that the deceased had received three injuries as narrated by PW 12 Dr. Nagpal, to which he succumbed on the spot. Once these facts are accepted as proved, the only question which really survives for consideration is whether the appellant was an assailant of the deceased.
7. That brings us to the evidence of PW 1 Komal Chand. Komal Chand''s evidence was not accepted by the trial court on the ground that he was not a natural witness and was only a chance witness. PW 1 explained his presence by stating that he had gone to the market to purchase vegetables and while he was returning therefrom on foot with his cycle in hand he heard a commotion and saw the incident from a short distance. Being a resident of Suji Mohalla, the place of occurrence was clearly in the vicinity thereof and, therefore, his presence at the market place could not be considered to be unnatural. It is not unnatural for working people to purchase vegetables at that hour and, therefore, his explanation regarding his presence cannot be ruled out as false. The sketch map prepared by PW 11 Gaiser Prasad shows that he had seen the incident from a short distance of hardly 22 feet although PW 1 says he saw it from the square. Since the incident occurred at a public place with a lamp-post nearby, the possibility of his having identified the assailants could not be ruled out. The examination-in-chief of this witness was recorded on November 16, 1976 when he identified all the assailants by name. He stated that he knew the six accused persons in court and they were the persons who had surrounded the rickshaw and launched an assault on PW 4 and the deceased Gulab. Of them Gopal struck PW 4 with a chain. He also stated that the appellant Khujji and his companions Gudda and Parsu were armed with knives and when Khujji tried to assault PW 4 with a knife, Gopal shouted "Khujji that man is not Gulab". Thereupon Khujji and his companions ran after the Gulab, overtook him and the appellant, Parsu and Gudda assaulted Gulab with their weapons. Gudda struck Gulab from the front on his chest, Parsu stabbed him on the side of the stomach while Ram Kishan and SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 19 of 29 Gopal held him and the appellant attacked him from behind with a knife whereupon Gulab staggered shouting ''save-save'' and fell in front of the house of Advocate Chintaman Sahu. Thereafter all the six persons ran away. His cross examination commenced on 15th December, 1978. In his cross-examination he stated that the appellant Khujji and Gudda had their backs towards him and hence he could not see their faces while he could identify the remaining four persons. He stated that he had inferred that the other two persons were the appellant and Gudda. On the basis of this statement Mr. Lalit submitted that the evidence regarding the identity of the appellant is rendered highly doubtful and it would be hazardous to convict the appellant solely on the basis of identification by such a wavering witness. The High Court came to the conclusion and, in our opinion rightly, that during the one month period that elapsed since the recording of his examination-in-chief something transpired which made him shift his evidence on the question of identity to help the appellant. We are satisfied on a reading of his entire evidence that his statement in cross-examination on the question of identity of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in his examination-in-chief. Since the incident occurred at a public place, it is reasonable to infer that the street lights illuminated the place sufficiently to enable this witness to identify the assailants. We have, therefore, no hesitation in concluding that he had ample opportunity to identify the assailants of Gulab, his presence at the scene of occurrence is not unnatural nor is his statement that he had come to purchase vegetables unacceptable. We do not find any material contradictions in his evidence to doubt his testimony. He is a totally independent witness who had no cause to give false evidence against the appellant and his companions. We are, therefore, not impressed by the reasons which weighed that the trial court for rejecting his evidence. We agree with the High Court that his evidence is acceptable regarding the time, place and manner of the incident as well as the identity of the assailants.
12. The ratio of the decision of this Court in Brathi''s case may be noticed at the outset to appreciate the contention urged by counsel for the appellant. In that case, the appellant and his uncle were tried u/s 302/34, IPC. The Trial Court acquitted the appellant''s uncle but convicted the appellant u/s 302, IPC. The order of acquittal became final because the State did not choose to challenge it in appeal. The appellant, however, preferred an appeal against his conviction to the High Court. The High Court on a reappreciation of the evidence held that the fatal blow was given by the appellant''s uncle and since the appellant was charged u/s 302/34, IPC, he could not be convicted substantively u/s 302, IPC. However, for assessing the credibility of the prosecution case, the High Court incidentally considered the SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 20 of 29 involvement of the appellant''s uncle and held that the eye witnesses had given a truthful account of the occurrence and the appellant''s uncle had actually participated in the commission of the crime along with the appellant. In other words, the High Court came to the conclusion that the acquittal of the appellant''s uncle was erroneous but since there was no appeal preferred by the State it could not interfere with that order of acquittal. It, however, came, to the conclusion that the crime was committed by the appellant and his uncle in furtherance of their common intention and accordingly maintained the conviction of the appellant u/s 302, IPC, with the aid of Section 34, IPC. Before this Court the appellant contended that on the acquittal of his uncle the sharing of common intention disappeared and the High Court was not justified in invoking Section 34 for maintaining the conviction against him u/s 302, IPC. This Court while dealing with this submission held that in the matter of appreciation of evidence the powers of the Appellate Court are as wide as that of the Trial Court and the High Court was, therefore, entitled in law to review the entire evidence and to arrive at its own conclusion about the facts and circumstances emerging therefrom. To put it differently, this Court came to the conclusion that the High Court was not bound by the appreciation of the evidence made by the Trial Court and it was free to reach its own conclusions as to the proof or otherwise of the circumstances relied upon by the prosecution on a review of the evidence of the prosecution witnesses. This Court, therefore, held that when several persons are alleged to have committed an offence in furtherance of their common intention and all except one are acquitted, it is open to the Appellate Court under Sub-section (l)(b) of Section 386 of the code to find out on a reappraisal of the evidence who were the persons involved in the commission of the crime and although it could not interfere with the order of acquittal in the absence of a State appeal it was entitled to determine the actual offence committed by the convicted person. Where on the reappreciation of the evidence the Appellate Court comes to the conclusion that the appellant and the acquitted accused were both involved in the commission of the crime, the Appellate Court can record a conviction with the the aid of Section 34 notwithstanding the acquittal of the co-accused. While the appellate Court cannot reverse the order of acquittal in the absence of a State appeal, it cannot at the same time be hedged by the appreciation of the evidence by the lower court if that appreciation of evidence is found to be erroneous. This Court, therefore, pointed out that in such a fact-situation it is open to the Appellate Court to record a finding of guilt with the aid of Section 34 notwithstanding the acquittal of the co-accused since the English doctrine of repugnancy on the face of record has no application in this country as we are governed by our own statutory law. On this ratio this Court confirmed the conviction of the appellant u/s 302, IPC, but with the aid of Section 34, IPC. The fact-situation before us is SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 21 of 29 more or less similar.
13. PW-1 had deposed that one of three to four accused person roaming around the pigs caught hold of PW-1 and other put a pistol/revolver on the abdomen of PW-1 with the threat. The person who had caught hold of PW-1 was later on caught by PW-1 when all the accused started running after seeing the grandfather of PW-1 who is PW-3/Sh. Dilip Singh. Accused Yogender was caught at the spot with his pistol. It is recorded in Ex.PW1/J that there were 10-12 pigs which were owned by PW-1 and the vacant land near the pump house is the place where the pigs were eating grass. It is recorded in Ex.PW1/A that 4 pigs were taken away by the accused persons. It is deposed by PW-1 that 3-4 pigs were put into EECO vehicle by the accused person. It is deposed by PW-1 that when the accused person were running then two of them had opened fired on PW-3 Sh. Dilip Singh. Hence PW-1 had deposed that accused Kamal and accused Sunny who had fired upon his grandfather Sh. Dilip Singh while running away from the spot. Hence it is nowhere the case of the PW-1 that accused Yogender had fired the pistol or that accused Yogender had ever made use of the pistol. Accused Yogender could not have made use of pistol when he was holding PW-1 from behind and other accused had put pistol on the abdomen of PW-1. Hence there is no evidence to the effect that accused Yogender had ever used pistol against either PW-1 or PW-3. In fact accused Yogender was caught on the spot while he was running when PW-3 Dilip Singh/grandfather of PW-1 had reached at the spot to help PW-1. Hence there is no evidence that accused Yogender had used countrymade pistol at any point of time while committing the alleged theft.
SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 22 of 2914. There is only one countrymade pistol which is recovered is from accused Yogender. PW-11 had seized the Katta found loaded with one live cartridge in its barrel. Sketch of which is Ex.PW1/E. The countrymade pistol and live cartridge are collectively Ex.P-1 and the two used fired cartridge are Ex.P-2. It is deposed by PW-10 that the crime team Incharge had inspected the place of occurrence and lifted two fired cartridge and handed over the same to SI Pawan Kumar/PW-12 who had prepared the sketch. PW-4 Sh. Avinash Srivastava, Senior Scientific Officer (Ballistic), FSL Rohini has deposed that the countrymade pistol point .315 inch/8 mm bore marked as Ex.F-1 and the cartridge Ex.A-1 are found as firearm/ammunition under Arms Act, 1959. The report of PW-4 is Ex.PW4/A. Further, PW-4 has not deposed that the empty cartridge were fired from Ex.F-1 therefore it cannot be said that accused Yogender had at all used any firearm against PW-1 or PW-3.
15. PW-1 had deposed that accused Kamal and Sunny had fired upon his grandfather Dilip when they were running away from the spot. PW-3 has deposed that when he had reached at the spot then one boy was apprehended by his relative/PW-1. It is nowhere deposed by PW-3 that accused persons had fired at him. It is denied by PW-3 in cross- examination by ld. APP for the State that 3-4 gunshots were fired at him by the accused persons while running away. Hence the empty cartridge allegedly recovered from the spot were not fired from the gun available on the record Ex.F-1. Hence no gun is recovered by the prosecution from which the alleged empty cartridge were fired. PW-10 had reached the spot later in time and he had not seen the remaining accused doing any act on the spot.
SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 23 of 2916. There is no other evidence except deposition of PW-1 that firearm was used by accused Kamal and Sunny against his grandfather Dilip while running away from the spot. 3-4 shots were allegedly fired by them and only two empty cartridge were recovered from the spot. The prosecution has not proved by any ballistic expert that what kind of pistol from the empty cartridge would have been fired. PW-3 had denied the entire case of the prosecution that accused Kamal and Sunny had at all fired at him. PW-3 had deposed that he came later at the spot. Though in his statement Ex.PW3/A u/Sec. 161 Cr. PC it is deposed by PW-3 that 3- 4 shots were fired at him and he had turned hostile during his deposition before the Court. PW-1 has turned hostile during cross-examination. In view of citation titled Khujji @ Surendra Tiwari (supra) the complete evidence is not effaced from the record and that part of evidence which is otherwise acceptable and dependable on a careful scrutiny can be acted upon. Hence there is no evidence on record that the Katta which is found in possession of accused Yogender was ever used by him and the other firearm could not be recovered by the prosecution during investigation. The PW-3 has turned hostile. The deposition of PW-1 were oral during examination-in-chief and he has turned hostile during cross-examination by stating that he has identified the accused person in the Court at the instance of IO. Hence there is no evidence against any of the accused persons regarding use of firearm by them against PW-1 or PW-3 in absence of recovery of any arm from possession of accused Kamal and Sunny. Hence it cannot be said that accused Yogender @ Montu, accused Sunny and accused Kamal have used the countrymade pistol in contravention of Section 5 of Arms Act by firing upon PW-3 Dilip and SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 24 of 29 therefore the accused Yogender, Sunny and Kamal are acquitted u/Sec. 27 of Arms Act.
17. The necessary ingredients regarding offence of theft are laid down u/Sec. 378 IPC and its punishment is prescribed under Section 379 IPC.
Section 378 IPC states that "Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft." The punishment is detailed under section 379 IPC. Following are the necessary ingredients to be satisfied beyond reasonable doubt before an accused is held guilty:
(a) The accused removed the movable property;
(b) He removed it out of the possession of another person without his consent; and
(c) He did so with a dishonest intention.
18. It has to be seen that whether the accused person have committed the theft of pigs. PW-1 had deposed that he had 10-12 pigs in the vacant land vide his complaint Ex.PW1/A whereas in his deposition dated 01.12.2018 it is deposed that he had 7-8 pigs in the vacant plot. It is complained by PW-1 in Ex.PW1/A that his 4 pigs were stolen and in deposition dated 01.12.2018 it is deposed that his 3-4 pigs were taken away in the EECO vehicle. However prosecution has not proved on record that how many pigs were remaining left with PW-1 to ascertain the exact nature of theft committed if any. No pigs were recovered from accused persons. PW-3 had deposed that pigs of his relative Monty/PW-1 were eating grass. By the time PW-3 had reached at the spot the incident was over. It is denied by him that he had seen putting of pigs in a silver colour EECO vehicle. It is suggested to PW-3 by the prosecution that he had alarmed PW-1 regarding the said theft of pigs when the offenders SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 25 of 29 started running away whereas PW-1 had deposed that he himself had seen that 3-4 persons were roaming around the pigs. Hence there is no record that how many pigs were left at the spot in the alleged theft. Prosecution has also failed to prove the possession or ownership of said pigs in proper numbers. No evidence is shown that PW-1 was having licence/NOC from Competent Authority to rear such number of pigs or that he had such number of pigs at the relevant time. The PW-1 has improved his version regarding total number of pigs he was possessing from Ex.PW1/A the complaint in reference to his deposition. Hence in absence of recovery of any pigs from the accused persons and looking at the above circumstance with the unproved fact of exact number of pigs possessed by PW-1 it cannot be said with any certainty that of what pigs theft was committed by the accused persons. Hence prosecution has failed to prove that the theft of such number of pigs were committed by the accused persons.
19. The accused Yogender @ Montu is charged with having found in possession of countrymade pistol loaded with one live cartridge without any licence punishable u/Sec. 5 of Arms Act, 1959. The sanction to prosecute for such illegal possession of Arms was granted by PW-2 Sh. Harender Kumar Singh the then Addl. DCP-1, North District Delhi. He was satisfied about one countrymade pistol alongwith one live cartridge recovered from accused Yogender in contravention of Section 3 of Arms Act, 1959. The accused was in conscious possession and for such possession sanction to prosecute was granted u/Sec. 39 of Arms Act, 1959 punishable u/Sec. 25 of Arms Act, 1959. The sanction is Ex.PW2/A. PW-4 is Sh. Avinash Srivastava, Senior Scientific Officer SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 26 of 29 (Ballistic), FSL Rohini, Delhi whose ballistic report is Ex.PW4/A. The pistol is Ex.F-1 and one cartridge is Ex.A-1 which he found are fire arm and ammunition defined under Arms Act, 1959. In his report PW-4 has stated that the test fire from pistol Ex.F-1 was conducted successfully. It is deposed that Ex.A-1 is live cartridge which was successfully test fired. However the PW-4 has not proved on record that the pistol Ex.F-1 was used successfully for test firing the live cartridge Ex. A-1. PW-4 had failed to prove and depose on record that whether the lining on the empty shell of the live cartridge Ex.A-1 test fired were same which are present in the pistol from the other test fired cartridge, if any. The empty cartridge shell of test fired live cartridge of Ex.A-1 is also not produced in evidence by PW-4 and therefore it is not proved on record that Ex.A-1 was successfully test fired from the pistol Ex.F-1. On non-production of empty shell of Ex.A-1 by PW-4 in the evidence therefore it cannot be said that Ex.A-1 was live cartridge at all. Thereby it also remains unproved that a cartridge could be successfully fired from the pistol Ex.F-1. It was held in 2001 AIR SCW 4810 (4811) that evidence of testing arms and ammunition found with the accused is necessary to prove that it is a weapon falling within purview of penalizing sections of Arms Act. It was held in 1995 AIR SCW 1501 (1502, 1503) that when there is no evidence on record that the weapon/revolver seized were in working condition then accused would be entitled to benefit of doubt. It was held in 1997 SCC (Cri.) 1217 that when the revolver and the live cartridge seized from the accused were not sent to ballistic expert and that when there is no evidence showing that the objects recovered satisfied definition of 'Arm' and 'Ammunition' or 'Fire Arm' then the conviction of the accused under Arms Act would not be proper. In such SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 27 of 29 view of the matter the prosecution has failed to prove on record that the revolver Ex.F-1 and the cartridge Ex.A-1 is a fire arm or ammunition under Arms Act, 1959. What PW-4 has done in four corners of his testing area is not proved on record by way of evidence. Deposition alone of PW-4 in this regard is not sufficient to held that the Ex.F-1/revolver and the cartridge/Ex.A-1 is a fire arm or ammunition. Hence it cannot be said that accused Yogender has committed offence under Section 25 of Arms Act, 1959. Hence accused Yogender is acquitted of the offence under Section 25 of Arms Act, 1959.
20. Further, PW-10 HC Vijay Kumar who reached at the spot immediately after the occurrence of the crime had found 7-8 persons gathered at the spot. He did not made any inquiry from the said public witnesses. PW-11 had reached at the spot and found 15-20 persons gathered at the spot and he has deposed that PW-10 had made inquiries from said public witness. Hence it is seen that public witnesses were available at the spot from whom inquiries were made but they were not joined in the investigation. Hence it goes against the case of prosecution.
21. In view of the above discussion held above it is found that the prosecution has failed to prove the commission of robbery by all the accused persons. Further, prosecution has also failed to prove that the accused Yogender had countrymade pistol with live cartridge with him in contravention of Sec. 25 of Arms Act, 1959. The prosecution has also failed to prove use of fire arm by accused Yogender, accused Sunny and accused Kamal in contravention of Sec. 5 of Arms Act, 1959 punishable u/Sec. 27 of Arms Act, 1959. Hence all the accused are acquitted of the SC No. 174/2017 FIR No. 383/2016 State Vs. Yogender @ Montu & Ors. Page 28 of 29 offence charged against them and it is held that prosecution has failed to prove the charge levelled against all the accused persons. Accordingly, all the accused stands acquitted. Their earlier personal bond are cancelled and surety are discharged and 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 have furnished their bail bonds 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
on 31.10.2023. JOGINDER Digitally signed by
JOGINDER PRAKASH
PRAKASH NAHAR
Date: 2023.10.31 14:57:07
NAHAR +0530
(JOGINDER PRAKASH NAHAR)
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL/TIS HAZARI COURT
DELHI
SC No. 174/2017
FIR No. 383/2016
State Vs. Yogender @ Montu & Ors. Page 29 of 29