Delhi District Court
St. vs . Taslim on 5 February, 2018
IN THE COURT OF MS. SUNENA SHARMA, ADDITIONAL
SESSIONS JUDGE-03, SOUTH DISTRICT, SAKET COURTS, NEW
DELHI
SC No.7326/16 (Old No.14/15)
ID No. 02406R0073402015
FIR No.924/14
U/s: 394/397 IPC
Police Station : Saket
State
Vs.
Taslim s/o Sh. Salim Khan
R/o 172/9, Kishan Garh,
Vasant Kunj, New Delhi .... Accused
Date of Committal : 20.03.2015
Final arguments concluded on :30.01.2018
Judgment pronounced on :05.02.2018
JUDGMENT
1. In this case, accused faced trial on the allegations that on 05.12.2014 at 5:15 pm, in front of House no. 23/5, Sector-1, Pushp Vihar, Saket, New Delhi, he attempted to commit robbery of the car no. DL-4CND-2350 belonging to the complainant Sandeep Chauhan and in the process, he also voluntarily caused hurt to complainant with the use of L-shape sharp object and thereby committed offences punishable u/s 394/397 IPC.
Prosecution case as per charge sheet
2. Briefly stated the facts of the case as per charge sheet are that on 05.12.2014, while IO SI Rakesh Kumar was on emergency duty, he received DD no.28A, regarding apprehension of a thief and pursuant thereto, he alongwith Ct. Kavinder reached the spot i.e. House no. 23/5, Sector-1, Pushp Vihar, Saket, New Delhi where he met FIR No.924/14 Page No.1/20 St. Vs. Taslim the complainant Sandeep Chauhan who handed over one L-shape sharp iron rod and one person whose name was revealed as Taslim saying that said person after breaking the lock of his car DL-4CND- 2350, attempted to take away the car and when complainant tried to stop him, said person who was sitting in the car, came out of the car and attacked him with the aforementioned iron rod.
3. The apprehended boy was also reported to have been beaten up by the public after his apprehension. Thereafter, complainant went to Neelu Angel hospital for his treatment. After sometime, IO, Ct. Kavinder and accused Taslim also reached Neelu Angel hospital where they came to know that the injured had been referred to some Government hospital. Thereafter, IO and Ct. Kavinder alongwith injured reached AIIMS, Trauma Centre and got the injured Sandeep admitted there vide MLC No. 464587.
4. After his treatment, complainant/injured gave his written complaint to the IO narrating the facts that on 05.12.2014, at about 5:40 pm, he noticed from the balcony of his house at the first floor that one person was trying to steal his Verna car bearing no. DL- 4CND-2350 which was lying parked in front of his residence. After seeing this, when complainant rushed towards his car, the person sitting in the car immediately came out and stabbed him with a sharp weapon on his chest and resultantly complainant started bleeding. After assaulting the complainant, said person (accused) tried to run away but with the help of public person who also gathered at the spot, accused was apprehended and was beaten up. In the meantime, FIR No.924/14 Page No.2/20 St. Vs. Taslim the police was informed and SI Rakesh Kumar arrived at the spot and complainant was advised to move to the hospital for immediate treatment as he was bleeding from the injuries inflicted by the accused. At AIIMS Trauma Centre, complainant was given treatment by the doctors. In the complaint, complainant requested the police to register the FIR and to take legal action against the thief. On the aforementioned complaint of complainant and on the basis of MLC of injured collected from the hospital, FIR u/s 394 IPC was got registered at the police station.
5. During investigation, IO prepared the site plan of the place of occurrence at the identification of the complainant, recorded statement of witnesses u/s 161 Cr.P.C., collected MLC of injured as well as the exhibits from the AIIMS hospital, sent the exhibits to the FSL for expert opinion, deposited seized case property in the Malkhana, arrested the accused and recorded his disclosure statement. After discussing the matter with the senior police officer, section 397 IPC was added in the FIR. After completing the investigation, IO filed the charge sheet against the accused u/s 394/397 IPC before the court of Ld. MM on 03.03.2015 upon which, cognizance was taken and after compliance of Section 207 Cr.P.C., the case was committed to the court of Sessions on 17.03.2015. Thereafter, the same came to be assigned to this court on 20.03.2015. As per record, the FSL report Ex. PW8/D also came to be filed on record vide supplementary charge sheet, on 14.10.2016.
6. Vide order dated 13.05.2015, charges for the offences FIR No.924/14 Page No.3/20 St. Vs. Taslim punishable u/s 394/397 IPC were framed against the accused to which he pleaded not guilty and claimed trial.
7. In order to prove its case, prosecution examined as many as 10 witnesses namely PW1 ASI Dharambir, PW2 HC Ishwar Singh, PW3 Ct. Praveen Kumar, PW4 Sandeep Chauhan, PW5 Ct. Kavinder, PW6 Sh. Tasnimuddin Siddiqui, PW7 Dr. Javed Ali, PW8 SI Rakesh, PW9 Islam Ahmad and PW10 Dr. Muthukumaran.
Prosecution Evidence
8. PW1/ASI Dharamvir is the duty officer who proved the FIR as Ex. PW1/A. As per his deposition, the same was recorded on the basis of rukka received from SI Rakesh, whereupon, he made the endorsement Ex. PW1/B and registered the FIR Ex. PW1/A and thereafter, handed over copy of FIR with original rukka to SI Rakesh for investigation. PW1 also placed on record certificate under Section 65-B of Indian Evidence Act, in support of computer generated copy of FIR and same is Ex. PW1/C.
9. PW2/HC Ishwar Singh is also the duty officer who on 05.12.2014, was posted at PS Saket and during his duty hours, he received a wireless call at 6:02 pm, from S-53 operator regarding apprehension of a thief by the caller at house no. 23/5, Sector-1, Pushp Vihar, Saket, New Delhi and he recorded said message vide DD no.28A Ex. PW2/A and informed SI Rakesh Meena about said call on his mobile phone.
FIR No.924/14 Page No.4/20St. Vs. Taslim
10. PW3 is Ct. Pawan Kumar. As per his deposition, on 03.02.2015, he was posted at PS Saket and on the directions of IO of present FIR, he obtained exhibits from MHC(M) vide RC no. 29/21/15 and deposited the same with FSL, Rohini and returned the copy of acknowledgment to MHC(M). As per his version, the exhibits remained intact till the same were in his possession.
11. PW4/Sandeep Chauhan is the complainant and he is the most material witness of the prosecution case. As per his examination in chief, on 05.12.2014, at about 5:40 pm, he was present at his house and his car bearing no. DL-4CND-2350 Hyundai Verna, silver colour was lying parked in front of his house. Suddenly, he heard the siren of his car. On hearing the same, he came out and noticed the inner light of his car lying on. He also noticed one person i.e. the accused whom he correctly identified in the court, was inside his car. On seeing this, he rushed downstairs to check who was there in the car and while he was going downstairs, he informed his family members also that someone was there inside his car. By the time, he reached near his car, his family members raised alarm from the balcony of his house. When PW4 reached at the spot where his car was parked, accused came out from his car and attacked on him with some object which hit on his left side chest and thereafter, accused tried to run away from the spot but he was overpowered by the public persons of the locality who had reached there after hearing the alarm raised by PW4 and his family members. After apprehending the accused, the public persons started beating him. In the meantime, someone called the police. After police arrived at the spot, the FIR No.924/14 Page No.5/20 St. Vs. Taslim weapon used by the accused in causing injury to PW4, was handed over to the police.
12. PW4 further deposed that on enquiry by the police, the name of the accused was revealed as Taslim. Further that, since he (PW4) was bleeding, he went to a nearby clinic and after sometime, police also reached there and from the clinic, at about 9:00 pm he was taken to AIIMS Trauma Centre. There he remained in the hospital till 11:00 pm. Thereafter, he got his complaint Ex. PW4/A bearing his signature at point A recorded with the police and on the basis of his statement, FIR was registered. PW4 further deposed that his blood stained T-shirt of black colour having print of 'sisley' was also taken into police possession vide seizure memo Ex. PW4/B bearing his signature at point A. The sketch of weapon of offence Ex. PW4/C recovered from the accused was also prepared in his presence and same was also taken into police possession vide seizure memo Ex. PW4/D. Further as per PW4, accused was arrested vide arrest memo Ex. PW4/E, his (accused) personal search was also conducted in his (PW4's) presence vide personal search memo Ex. PW4/F and during his personal search, one mobile phone of red colour and a black colour wallet having cash of Rs.1010/- were also recovered. PW4 further testified that thereafter, he alongwith police reached at the spot and his aforesaid car was taken into police possession vide seizure memo Ex. PW4/G. PW4 had also pointed out the place of incident and site plan was prepared by the police at his instance. Further that, PW4 had moved an application for release of his car on superdari and got the same released vide superdaginama Ex. PW4/H. FIR No.924/14 Page No.6/20 St. Vs. Taslim At the time of release of said car, photographs Ex. PW4/I-1 to 5 of said car were also taken by the police. PW4 correctly identified his T-shirt as Ex. P1 and weapon of offence i.e. one piece of L shape iron rod as Ex. P2 in the court. PW4 also brought his car Ex. P1 which was parked in the parking area.
13. PW5/Ct. Kavinder deposed that on 05.12.2014, while he was posted at PS Saket and was on emergency duty with SI Rakesh, at about 6:00 pm, on receipt of a call by SI Rakesh vide DD No.28A that a thief had been caught at house no.23/5, Sector-1, Pushp Vihar, he (PW5) alongwith SI Rakesh reached at the spot. On reaching there, they found that a boy namely Sandeep Chauhan was in injured condition having injury mark on left side of his chest and some public persons were beating accused whose name was revealed as Taslim ( present in the court and correctly identified). PW5 further deposed that they rescued the accused from the public persons. Injured Sandeep Chauhan handed over one sharp object in L shape to SI Rakesh which was sealed in a cloth parcel with the seal of RK and same was seized vide seizure memo Ex.PW4/D.
14. Further as per PW5, injured was asked to go to the hospital and injured was taken to a nearby hospital by his family members. Thereafter, PW5 alongwith SI Rakesh and accused went to the same hospital where doctor had referred the injured to AIIMS hospital. Subsequently, injured Sandeep was taken to AIIMS and during that period, accused Taslim was also with them in their custody. PW5 further testified that injured and accused were FIR No.924/14 Page No.7/20 St. Vs. Taslim medically examined at AIIMS. Injured remained in the hospital till 11.30 pm. PW5 further testified that injured Sandeep gave his statement to SI Rakesh and thereafter, PW5 alongwith injured Sandeep, SI Rakesh and accused reached at PS Saket. Further that, SI Rakesh prepared rukka on the statement of Sandeep for registration of FIR and handed over the same to duty officer.
15. PW5 further testified that at about 1:00 am, accused Taslim was arrested vide arrest memo Ex.PW4/E. Thereafter, PW5 alongwith IO SI Rakesh and complainant Sandeep Chauhan reached at the spot where site plan was prepared by SI Rakesh. The car of the complainant make Hyundai Verna of silver colour, number of which he did not remember was also taken into police possession vide seizure memo Ex.PW4/G. Further as per PW5, he alongwith IO returned to the police station and IO deposited the car in malkhana. Further that, accused was sent to lockup after taking his personal search. PW5 again stated that on reaching at police station from the hospital, injured Sandeep Chauhan also handed over his blood stained T-shirt to the IO which was sealed in a parcel and taken into police possession vide seizure memo Ex.PW4/B. PW5 further deposed that the seal of RK after sealing the T shirt in cloth parcel was handed over to him and he handed over the same to MHCM.
16. Upon being put a leading question by Ld. Addl. PP with the permission of the court, PW5 admitted that when they returned to police station from hospital, FIR was got registered by the IO. Thereafter, sketch of the weapon of offence was prepared in the FIR No.924/14 Page No.8/20 St. Vs. Taslim police station vide Ex. PW4/C. PW5 admitted that the weapon of offence was sealed in the police station. He voluntarily stated that when they reached the spot, the injured had handed over the weapon of offence to the IO and IO wrapped it in a piece of cloth. PW5 correctly identified the case property i.e. T-shirt of black colour with half sleeve as Ex.PW5/P1 and one curved metallic piece with sharp pointed ends as Ex.PW5/P2.
17. PW6/Sh. Tasnimuddin Siddiqui deposed that he was government approved surveyor & loss assessors working for the last about 40 years. As per his version, on 08.12.2014, upon request of SI Rakesh, PS Saket, he mechanically inspected Hyundai Verna car bearing registration no. DL-4CND-2350 and upon inspection, he found left side front door key lock levers damage. He further deposed that the brakes were OK and the vehicle was in running condition and his detailed report in this regard Ex. PW6/A was bearing his signatures at point A.
18. PW7/Dr. Javed Ali deposed that on 05.12.2014, he was posted at Sawan Neelu Angels Hospital, J-Block, Saket, New Delhi and on that day, injured Sandeep Chauhan was brought to said hospital in injured condition having injuries on the chest near heart and blood was oozing out from that point. He further deposed that after giving first aid, he had referred the patient to AIIMS Trauma Centre for further treatment and MLC.
19. PW8/SI Rakesh Kumar is the IO of the case. As per his FIR No.924/14 Page No.9/20 St. Vs. Taslim version, on 05.12.2014 on receipt of DD No.28A Ex.PW2/A regarding a thief being caught at House No.23/5, Sector-1, Pushp Vihar, New Delhi, he alongwith Ct. Kavinder reached at the spot. When they reached outside aforementioned house, complainant Sandeep Chauhan met them and he produced the accused alongwith one iron object pointed from both ends. The complainant had sustained injury on the left side of his chest. On inquiry, complainant told that he had caught hold of the accused while he was trying to steal his car bearing number DL-4C-ND-2350 and accused had attacked upon him with the aforesaid iron object. Further that, the injured left the spot alongwith his family members for his treatment at Neelu Angel hospital, where he was given first aid and then he was referred to government hospital. Then, he (PW8) took complainant/injured to AIIMS Trauma Centre on his (PW8's) motorcycle. The MLC of complainant as well as that of accused was prepared since accused was beaten up by the public persons. PW8 recorded the statement of complainant Ex.PW4/A and on the said statement prepared rukka Ex.PW8/A.
20. PW8 further deposed that he had also prepared sketch of the aforesaid iron object Ex.PW4/C which was produced before him by the complainant. The iron object was sealed in a cloth parcel with the seal of RK and taken into police possession vide seizure memo Ex.PW4/D. The blood stained T-shirt of complainant was also sealed and then taken into police possession vide memo Ex.PW4/B. PW8 further deposed that after registration of FIR, Duty officer handed over him the copy of FIR and original rukka, accused was arrested FIR No.924/14 Page No.10/20 St. Vs. Taslim vide arrest memo Ex.PW4/E, his personal search was conducted vide memo Ex.PW4/F and seal with the thumb impression RK after use was handed over to Ct. Kavinder vide memo Ex.PW8/B and thereafter, case property was deposited in malkhana and PW8 alongwith the complainant returned to the spot, the car was taken into possession vide seizure memo Ex.PW4/G and at the instance of complainant site plan Ex.PW8/C was prepared. He further deposed that he also recorded the supplementary statement of complainant and other witnesses, who had joined the investigation. PW8 further deposed that during investigation, he had sent the case property to FSL Rohini and collected the FSL report Ex.PW8/D and Ex. PW8/E and filed the same in court. PW8 also correctly identified the T-shirt of injured and iron object pointed at both the ends produced by MHC(M) at the time of his examination as Ex.P1 and P2 respectively.
21. PW9/Mr. Islam Ahmad, Medical Record Technician, AIIMS Trauma Centre, was deputed by Medical Superintendent, AIIMS to appear in this matter and to identify the signatures of Dr. Madhuri who had already left the services of hospital and her current address was not available in the record. PW9 could identify her signatures as he had seen her (Dr. Madhuri) signing. PW9 proved the MLC bearing no. 464587 dated 05.12.2014, Ex. PW9/A of injured Sandeep Chauhan s/o Sh. Moolchand.
22. PW10/Dr. Muthukumaran was also deputed by Medical Superintendent, AIIMS, to appear in this matter to prove the injuries on the MLC Ex. PW9/A of injured Sandeep Chauhan s/o Sh. Moolchand.
FIR No.924/14 Page No.11/20St. Vs. Taslim After seeing the MLC Ex. PW9/A, PW10 deposed that injured Sandeep Chauhan had suffered one injury i.e. abrasion 1X1 cm on left side, anterior chest wall and on the MLC, the alleged history of hit on the chest with a sharp object was given.
Statement u/s 313 Cr.P.C.
23. After completing prosecution evidence, statement of accused u/s 313 Cr.P.C was recorded wherein accused denied the case of prosecution as incorrect and pleaded his innocence by saying that he has been falsely implicated in the present case. He stated further that before his implication in the present case, there were 3-4 more criminal cases against him and the present case was also planted upon him. He further stated that he was apprehended from his home and police officials took his signatures on some blank papers.
Arguments of Ld. Addl. Public Prosecutor
24. On behalf of the prosecution, Ld. Addl. PP Sh. Rakesh Mehta argued that complainant Sandeep Chauhan who is the victim of the offence has come up with a clinching evidence and nothing has come out in his cross-examination to discredit his version, which is also supported with the medical evidence corroborating his version to the extent that during the incident, accused had attacked him with a sharp L shape iron rod and caused him injuries on his left side chest. It is further submitted that the version of victim has been duly corroborated by other police witnesses who had reached the spot after receipt of DD no.28A regarding apprehension of a thief and after reaching there, they were handed over both the accused as well as L FIR No.924/14 Page No.12/20 St. Vs. Taslim shape rod.
Defence arguments
25. Per contra, it is vehemently argued on behalf of accused that the version of complainant suffers from discrepancies and same also does not get any corroboration from any independent witness as despite the availability of the independent witnesses, IO did not cite any to support the prosecution case. It is further argued that as per the MLC of the injured, he had suffered only simple injury therefore, no offence of Section 397 IPC is made out.
26. I have given my thoughtful consideration to the rival contentions raised from both the sides and also carefully perused the entire material on record.
27. Before adverting to respective contentions of parties and the evidence adduced on record, I deem it appropriate to glance through the relevant provisions of law relating to the charges framed against the accused. As noted above, the accused faced trial for the charges of the offence of robbery punishable u/s 394/397 IPC. Section 390 defines robbery and first part of said provision describes the circumstances in which theft becomes robbery and same reads as under:-
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 FIR No.924/14 Page No.13/20 St. Vs. Taslim restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
Section 392 IPC reads as under:-
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.
Section 394 IPC reads as under:-
394. Voluntarily causing hurt in committing robber. - If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Section 397 IPC reads as under:-
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.
28. As is evident from the section itself that theft becomes robbery when in order to committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property FIR No.924/14 Page No.14/20 St. Vs. Taslim 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.
29. In the instant case, as per version of complainant, he had seen the accused sitting in his car from the balcony of his house and when he (complainant) came downstairs and reached near his car, the accused who was sitting in the car, came out of the car and hit the complainant on his left side chest with a sharp edged L-shape rod which he was carrying in his hand and tried to run away from the spot. Although, the accused was overpowered by the public person of the locality who had gathered at the spot after hearing the alarm raised by the victim and his family members. As per the MLC of the complainant/victim Ex. PW9/A, the victim was brought to the hospital by police official Kavinder on 05.12.2014 at 9:39 pm and the injured was found having injuries of abrasion of 1 X 1 cm in size on left side interior chest wall.
30. The MLC has been duly proved on record by PW9 who identified the signatures of concerned doctor Dr. Madhuri on said MLC saying that he had seen said doctor signing during the course of her duties. The nature of injuries were also proved on record by PW10 Dr. Muthukumaram who deposed that as per MLC Ex. PW9/A, the injured had suffered aforementioned injuries with sharp object. Further that, as per MLC, complainant had given alleged history of hit on his chest with sharp object. In the cross-examination, PW10 however, admitted FIR No.924/14 Page No.15/20 St. Vs. Taslim that the injury mentioned in the MLC could not be suffered in stabbing but he further clarified that said injury could be possible if the person tried to save himself from stabbing.
31. MLC Ex. PW9/A, mentions that the injured was brought by police official Kavinder who has been examined in this case as PW5 and he was the one who after receipt of DD no.28A regarding apprehension of a thief at house no.23/5, Sector-1, Pushp Vihar had reached the spot alongwith IO/SI Rakesh. PW5 in his examination in chief has duly corroborated the version of the complainant to the extent that the complainant had sustained injuries on the left side of his chest and one person whose name was revealed as Taslim i.e. the accused was found apprehended at the spot and the public persons were beating said accused. The MLC of the accused is also on record.
As per said MLC, accused was also brought at the same time in the hospital by the same police official Ct. Kavinder and he had suffered various injuries in the nature of abrasions and bruises on different parts of his body and said MLC also seems to be bearing signatures of same doctor who had examined complainant, though the MLC of the injured was not proved on record by the prosecution during trial.
32. Prosecution has also examined one more witness PW6 Sh. Tasnimuddin Siddiqui, surveyor & loss assessors who mechanically inspected the complainant's Hyundai Verna car bearing registration no. DL-4CND-2350 and as per his testimony, upon inspection, he had found left side front door key lock levers damage and his report in this regard is Ex. PW6/A. The said car of the complainant was seized by FIR No.924/14 Page No.16/20 St. Vs. Taslim the IO vide seizure memo Ex. PW4/G which has been duly proved on record by the witnesses to said seizure memo i.e. complainant and Ct. Kavinder whose testimonies are well in tandem with each other. The version of the surveyor clearly shows that the accused who was found sitting in the car had entered into the car after breaking the lock of the car as the key lock of the left side front door was found damaged. After entering into the car, the accused was trying to steal the car as is evident from the fact that he was also carrying one iron rod of L shape which was sharp from both the sides. While, the accused was attempting to break the steering lock, he was noticed by the complainant from his balcony, the complainant came downstairs and rushed towards his car and after seeing him, the accused came out of the vehicle and attacked him with the L-shape sharp object which he was carrying in his hand.
33. From the above facts and circumstances of the case, it is clear that though the accused tried to steal the car but, before he could take away the car, he was seen by the complainant and thereafter, when complainant rushed towards his car, the accused came out of the car and in order to clear his escape from the spot, he hit the complainant with the metallic instrument/rod because the complainant was standing outside the door of the car and was thereby posing obstruction to the escape of the accused. Now the question that falls before this court for consideration is whether the act of the accused falls in the category of attempt to theft or it became robbery after the accused caused hurt to the complainant.
FIR No.924/14 Page No.17/20St. Vs. Taslim
34. Section 390 IPC says that the theft is robbery only if, in order to committing of theft, or in committing the theft, the offender, for that ends (emphasis supplied), voluntarily causes hurt to any person. Whereas, in the instant case, from careful perusal of the testimony of complainant, it appears that accused had caused hurt to the complainant because he (complainant) had seen him (accused) making an attempt to steal his car and after seeing the complainant, when the accused tried to come out of the car, he saw the complainant standing outside the door of the car and in order to flee away from the spot, the accused caused injuries to the complainant on his chest with the iron rod. The version of the complainant nowhere suggests that the hurt was caused to the complainant in the process of committing theft or attempting to commit theft so as to attract Section 390 IPC. Since Section 390 IPC is not attracted therefore, there does not arise any question of applicability of Section 394 IPC or 397 IPC. To buttress my point, I rely upon the judgment of Hon'ble Bombay High Court in State of Maharashtra vs. Joseph Mingel Koli, (1997) 2 Crimes 228 wherein it was held as under:
"In order that theft may constitute robbery, prosecution has to establish -
(a) if in order to the committing of theft; or
(b) in committing the theft; or
(c) in carrying away or attempting to carry away property obtained by theft;
(d) the offender for that end i.e. any of the ends contemplated by (a) to (c);
(e) 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 instant wrongful restraint. In other words, theft would FIR No.924/14 Page No.18/20 St. Vs. Taslim only be robbery if for any of the ends mentioned in (a) to (c) 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 instant wrongful restraint. If the ends does not fall within (a) to (c) but, the offender still causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint, the offence would not be robbery. We wish to emphasize that (a) or
(b) or (c) have to be read conjunctively with (d) and (e). it is only when (a) or (b) or (c) co-exit with (d) or (e) or there is a nexus between any of them and (d), (e) would amount to robbery"
35. After analyzing the version of complainant in the light of aforementioned proposition of law, I am of the view that the act of accused only falls in the category of attempt to theft punishable u/s 379 IPC read with Section 511 IPC. Since, the accused had also voluntarily caused injuries to the complainant in the nature of simple hurt with a sharp edged weapon recovery of which has been duly proved on record, he is also liable to be convicted for the offence punishable u/s 324 IPC.
36. The contention raised by the defence counsel that no independent witness was joined to corroborate the version of victim is also not convincing because in my view, it is the quality of the evidence and not the quantity that matters. Here, the victim has come up with the clinching evidence and he also successfully withstood the test of cross-examination and mere fact that the public witnesses, who were present at the spot, were not cited or examined by the prosecution will not be ground to discard the clinching version FIR No.924/14 Page No.19/20 St. Vs. Taslim of complainant who has no motive to falsely implicate the accused who was a total stranger to him.
37. In the backdrop of aforementioned discussion, I feel no hesitation in holding that the prosecution has though, failed to prove the charges of offence u/s 394/397 IPC but, the offences u/s 379 IPC r/w Section 511 IPC & Section 324 IPC have been successfully proved on record beyond reasonable doubt. In view of Section 222 Cr.P.C., there is no bar for the court to convict the accused for lessor/minor offences even if the charges were framed only for graver offences. Accordingly, the accused is convicted for the offences u/s 379 IPC r/w Section 511 IPC & Section 324 IPC.
38. Put up for arguments on sentence at 2:00 pm. Announced in open Court on 05.02.2018 (Sunena Sharma) Additional Sessions Judge-03(South) Saket Courts/New Delhi/05.02.2018 FIR No.924/14 Page No.20/20 St. Vs. Taslim