Delhi District Court
Faizal Ahmed vs State on 7 April, 2014
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
Criminal Appeal No.9/14
Faizal Ahmed,
S/o Mr. Fahim Ahmed,
R/o 3885, Gali Neemwali,
Kala Mahal Daryaganj,
New Delhi - 2. ......Appellant
Versus
State .......Respondent
Date of institution : 22.03.2014
Date of Judgment : 07.04.2014
J U D G M E N T
Faizal Ahmed (appellant herein) was accused before Trial Court in case FIR no.72/11 registered at PS Lahori Gate. Accusation levelled against the accused is that on 21.05.2011, at 1.30 a.m., on a thoroughfare in front of Novelty Cinema, he rubbed chillies powder on the eyes of Amit Pandey in presence of his employee Jagjivan Kumar - complainant and committed theft of Rs.28,500/ and some documents, which he was carrying at that time.
2. Vide impugned judgment dt.22.02.2014, Learned Metropolitan Magistrate held the accused guilty of offences U/s 327 and 379 IPC and vide 1 order on sentence dt.28.02.2014, sentenced him as under : Offence Sentence Fine In default U/s 327 IPC SI for 3 years Rs.10,000/ 3 months U/s 379 IPC SI for 3 years Both the substantive sentences of imprisonment have been ordered to run concurrently.
3. While appearing in court as PW2 Amit Pandey narrated the manner in which occurrence took place. According to him, on 21.05.2011, after having closed his dairy shop, which is at 641, Church Mission Road, Fatehpuri, he was returning to his house situated near Novelty Cinema. At that time, his servant Jagjivan Kumar was accompanying him. He himself was carrying cash to the tune of Rs.28,500/ and some documents, in a bag. At abut 1.30 a.m. when they reached in front of Novelty Cinema, a boy came from behind and rubbed red chilly powder on his eyes and snatched some cash and documents. The offender then went across the road and ran towards ODRS. His employee chased the offender. Both of them raised noise. He too chased the offender. After 23 minutes, he saw that his employee and PCR van had apprehended Faizal Ahmed the offender.
4. During trial, the complainant correctly identified the accused person, present in court. He also brought to the court the case property which was recovered from the accused and ultimately, got released on superdari. 2
5. Learned counsel for appellant has submitted that no reliance can be placed on the testimony of PW2 on the point of identity of the offender when the complainant was not able to see and identify the offender at the spot. The arguments raised by learned counsel for appellant appears to be attractive, but is liable to be rejected.
As noticed above, complainant was not alone at the time occurrence took place. He was accompanied by his employee Jagjivan Kumar. Even if the offender came from behind and the complainant could not see the offender, when his employee could easily see him and soon after the occurrence, he was apprehended with the case property and then brought back, it cannot be said that the complainant could not identify the accused - appellant as the offender.
According to PW1 Jagjivan Kumar, complainant - employee of Amit Pandey, the occurrence took place on 21.05.2012, at 1.30 a.m. when he was accompanying the employer, and both of them were in front of Novelty Cinema. Further according to him, a boy came from behind, rubbed red chilly powder on the eyes of his employer and started running away with the bag containing Rs.28,500/ and some documents from his employer. Then both of them raised alarm.
So PW1 has fully supported the case of prosecution. As regards identity of the accused, PW1 also correctly identified him as the offender. It is in his 3 statement that police reached there in a PCR van and apprehended the accused with the stolen property. The case property, when produced in court was also identified by PW1 Jagjivan Kumar and exhibited as Ex.P1 to Ex.P4.
6. Present case came to be registered on the statement of Jagjivan Kumar. Rukka was dispatched by SI Bijender Singh at 3.30 a.m. FIR came to be registered at 3.50 a.m. on the same night. As to how ASI Bijender happened to reach the spot, prosecution proved on record DD no.5A dt.21.05.2011 recorded at PS Lahori Gate at 1.45 p.m. It stands recorded in it that a person had been apprehended while running after having thrown chilly powder in the eyes of shopkeeper. Name of ASI Bijender finds mention in the DD entry as the officer who was immediately sent from the spot. On reaching the spot ASI Bijender Singh seized the case property i.e. the bag containing currency notes and documents Ex.P1 to Ex.P4 when produced before him in presence of PW Jagjivan Kumar. Seizure memo Ex.PW1/B bears attestation of SI Prem Singh and Jagjivan Kumar as the attesting witness. Even personal search memo and arrest memo Ex.PW1/2 and Ex.PW1/C bear attestation of these two witnesses. The place of arrest of the accused, as per arrest memo is near Novelty Cinema.
7. In the course of arguments, it has been submitted that SI Prem Singh could not be examined before Trial Court he having left this world on 20.09.2013.
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ASI Bijender Singh appeared before the Trial Court and supported the case of prosecution regarding his arrival at the spot on receipt of DD no.5A, regarding production of the accused and the case property, before him by SI Prem Singh, recording of statement of Jagjivan Kumar (employee of Amit Kumar), dispatch of rukka from the spot to the police station through Ct. Ravinder (who happened to reach the spot in the meanwhile).
8. In the course of arguments, learned counsel for accused - petitioner has not been able to point out single contradiction in the statements of the prosecution witnesses either regarding the manner in which the occurrence took place or in respect of arrest of the accused and recovery of the case property from him. From the cogent and convincing evidence led before the Trial Court, this court finds that learned Metropolitan Magistrate rightly observed that prosecution duly established that prosecution proved its case against the accused beyond shadow of reasonable doubt.
9. Learned counsel for appellant has argued with that prosecution failed to establish before the Trial Court charge for offence U/s 327 IPC, as no medical evidence was led to prove the fact that chilly powder was used while committing theft.
Sec.327 IPC provides punishment when one voluntarily causes hurt for the purpose of extorting from the victim or any person interested in the sufferer, any property.
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A perusal of record would reveal that prosecution did not examine the concerned doctor to prove medicolegal examination of Amit Pandey victim.
As noticed above, Sec.327 IPC applies simply when accused causes hurt and that too in order to extort property. Herein, when it stands established that it is the accused who caused hurt to the victim, nonexamination of doctor who conduced medicolegal examination of the victim, does not come to the aid of the accused or adversely affects the case of prosecution, so far as commission of theft is concerned.
10. In the given facts and circumstances when the accused - appellant himself removed the property from the possession of the victim and it is not a case where the victim was induced to deliver the property, it cannot be said that it was a case of extortion or causing of injury to extort the property from the victim. Rather, it is a case where the accused - appellant committed theft having made preparations to cause hurt to the victim for the purpose of committing theft and accordingly did cause him hurt. Therefore, provisions of Sec.382 IPC are attracted instead of the provisions of Sec.327 & 379 IPC, which pertain only to the offence to person and not to the offence to property, but at this stage, court does not deem proper to remand the case for trial afresh.
From the evidence led by the prosecution, when it was duly proved that the accused committed theft by dishonestly removing currency notes and the other movable property from the victim, Learned Metropolitan Magistrate rightly held the 6 accused guilty of commission of theft but erred in holding him guilty of the offence U/s 327 IPC. He is acquitted of the offence U/s 327 IPC.
11. On the point of sentence, learned counsel for appellant has prayed for release of the appellant on probation on the ground that he is 21 years of age and is not a previous offender. In support of his submission, learned counsel has referred to decision in Surender Kumar V. State of Rajasthan, AIR 1979 SC 1048; Musa Khan V. State of Maharashtra, AIR 1976 SC 2566 and Masrullah V. State of Tamil Nadu, AIR 1983 SC 654.
In Surender Kumar's Case (supra), the appellant, aged 21 years, was convicted of only an offence U/s 411 IPC and allowed concession of provisions of Sec.360 Cr.P.C.
Provisions of Sec.360 Cr.P.C. are not applicable where Probation of Offenders Act has come into force. Furthermore, herein the accused - appellant committed theft, after having made preparations to cause hurt and actually caused hurt by applying red chillies powder.
In Musa Khan case (supra), appellant no.4 was convicted only of the offence u/s 425 read with Sec.149 IPC, charge for the offence U/s 395 IPC having failed and as such, he was allowed benefit of Probation of Offenders' Act.
In Masarullah's case (supra), the appellant, aged 20 years, committed offence U/s 392 read with Sec.397 and 452 IPC was allowed benefit of Probation of Offenders' Act. Having regard to the peculiar fact that he had fallen into 7 undesirable company and come under the evil influence of movie accentuated the dormant criminal propensity and proclivity in him.
Herein, it is true that there is nothing on record to suggest previous involvement of the accused - appellant, who is 21 years of age but still he is not entitled to benefit of Probation of Offenders' Act, having regard to the manner in which and the odd hours at which he committed theft causing hurt to the victim while he was on his way back to his house with earnings of the day.
However, this court finds that sentence awarded by Trial Court is excessive and deems it to be a fit case to take a lenient view on the point of sentence having regard to the age of accused and that he is not a previous convict. While modifying the sentence awarded by learned Metropolitan Magistrate, he is hereby sentenced to SI for nine months and to pay fine of Rs.10,000/ or in default of payment of fine to undergo SI for one month.
Benefit of Sec.428 Cr.P.C. extended to appellant - accused.
12. With the aforesaid modification on the point of sentence, this appeal is hereby partly allowed.
Trial Court Record be returned and appeal file be consigned to Record Room.
Announced in Open Court
on 07.04.2014 (Narinder Kumar)
Additional Sessions Judge(Central)
Delhi.
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