Delhi District Court
State vs . (1) Abdul Shahid S/O. Sh. Jaki Ahmad on 19 November, 2013
IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
ASJ02 (EAST), SPL. JUDGE, NDPS KKD COURTS, DELHI
Unique ID No. 02402R0064022003
Sessions Case No.102/13
Date of Institution: 25.11.03
Date of transfer to this court: 24.07.13
Date on which reserved for orders: 07.10.13
Date of delivery of order: 23.10.13
State v/s. (1) Abdul Shahid S/o. Sh. Jaki Ahmad
R/o. Mohalla Rishal Daran, Sikandarabad,
Distt. Bulandshahar, U.P.
(2) Tahir @ Rashid S/o. Sh. Mashook Ali
R/o. Village Dhiroli, PS. Bulandshahar, U.P.
(3) Rajjak S/o. Sh. Shamshad
R/o. A873, Shalimar Garden,
Shahibad, Distt. Ghazibad, U.P.
(4) Ali Mohammad S/o. Alla Diya
R/o. Mohalla Madarsha, Garh Mukteshwar
Distt. Gaziabad, U.P. (Expired)
FIR No. 91/03
PS. Geeta Colony
U/s. 392/397/411/34 IPC
JUDGMENT: FIR No. 91/03, PS. Geeta Colony Page 1 of 25 St. Vs. Abdul Shahid etc.
1. On 06.05.03 a complaint was given by one Usha Rani at PS Geeta Colony stating that around 5.40 am her both sons had gone to park to play cricket and had left the main entrance open. At that time her husband was away but she was sleeping in the room. Around 5.55 am she saw three boys standing near her bed and one boy standing outside the gate of the room. The boys woke her up; they had tied the hands of her husband and started threatening her. One of the boys asked for the keys of Almirah from her on which she said that the keys were with her son. Thereafter, one of the boys kept a Kuttanuma weapon and the other boy took her gold jewellary i.e a locket chain, chain, two gold kadas, two gold Jhumkies and four rings. They also took Rs.80,000/ and a gold chain, a pair of tops, one pair of ear rings and also her mobile phone number 9810403664. The boys closed the door behind them. All the boys were aged 2526 years and that she could identify them, if shown. On the basis of this complaint a case u/s. 392/411/34 IPC was registered. The accused persons were arrested during investigation.
2. The chargesheet was filed before the Ld. MM Court u/s. 392/411/34 IPC.
Ld. Trial Court framed charge u/s. 392/34 IPC against four accused Abdul Shahid, Ali Mohammad (died during trial), Tahir and Razak and separate charge u/s. 411 IPC was framed against the accused persons for the respective recoveries from them.
The trial started before the Ld. MM Court and continued there till 09.03.07. In 2007 Ld. MM Court passed an order stating that the complainant had stated in her evidence that one gun was put on her temple while commission of offence and the FIR No. 91/03, PS. Geeta Colony Page 2 of 25 St. Vs. Abdul Shahid etc. offence u/s. 398 IPC was triable by Court of Sessions. The matter was accordingly committed to the Sessions Court on 20.03.07. Charge was framed again after arguments, u/s. 392/34 and 397/34 against all the accused and separate charge u/s.411 IPC for respective recoveries against each accused.
3. The prosecution examined 12 witnesses to prove its case.
4. PW 2 HC Rishi Pal had received the information, which was recorded by him vide DD no. 9A and was entrusted to SI Kishan Chand Dahia, who along with PW3 Ct. Jaffar went to the place of incident. PW3 has deposed that SI Kishan Dahia had recorded the statement of the complainant Usha Rani and he took the same for registration of the FIR and came back with copy of FIR and rukka at the spot.
5. PW 2 HC Rishi pal has proved the DD no 9A, copy of which is Ex. PW2/C and the FIR, copy of which is Ex. PW2/A. He has deposed that he himself had recorded both and had also made endorsement on the rukka, Ex. PW2/B.
6. PW 1 & 4 are the witnesses of facts. PW 5 was a member of mobile crime team and had taken the photographs of the spot, which have been exhibited as Ex. PW B1B8 and negatives of which are Ex. PW A1A8. PW 10 Ct. Rakesh was the finger print expert of Crime Team East District. He has deposed that he had lifted the chance prints and has proved the SOC report as Ex. PW 10/A. PW 11 Inspector Ajay FIR No. 91/03, PS. Geeta Colony Page 3 of 25 St. Vs. Abdul Shahid etc. Kumar was the incharge mobile crime team.
7. PW 6, 7, 8, 9 & 12 are the witnesses of investigation. PW 8 SI Krishan Chand is the initial IO and alongwith PW Ct. Zafar had gone to the place of incident on receiving the information from PW2. He had recorded the statement of complainant Ex. PW1/A and had made endorsement on it Ex. PW8/A, which he had handed over to Ct. Zafar for the registration of FIR. He prepared the site plan; summoned the crime team; recorded the statement of complainant's husband and got prepared the sketch of the accused at the instance of the complainant. In his cross examination he stated that he had recorded the statement of one more woman but did not remember her name. He says that he had not seen any article or weapon of offence used in the commission of offence. The witness did not say in his chief examination that he recorded any statement except for the statement of PW1 and her husband. He has not named the woman, whose statement he allegedly recorded and also says that he does not know her address. For this irresponsible statement of the person of the cadre of SI, the prosecution case cannot be doubted and in absence of any statement on record and any particulars given by the witness, there is no reason with the court to believe that any such statement was recorded by this police officer as there is no explanation for why he did not mention about it in his chief examination and how the accused came to know about it. This part of the testimony of witness is discarded as unsubstantiated.
FIR No. 91/03, PS. Geeta Colony Page 4 of 25 St. Vs. Abdul Shahid etc.
8. Remaining investigation headed by PW12 ASI Raj Kumar was joined by the other four witnesses mentioned above on different dates.
9. PW 12 had taken over the investigation on 28/09/2003. He deposed that on 29/09/2003 on the direction of the S.H.O he had gone to Khureji Bus Stop, where the secret informer told him about one accused Abdul Shahid as the person involved in the commission of offence in the present case, who was in custody in a matter of PS Seema Puri at that time, accordingly he went to PS Seema Puri and obtained the dossier of accused Abdul Shahid from the records of PS Seema Puri. He showed the dossier to the complainant Usha, who identified the accused. Next day the production warrants of accused were issued on his application Ex. PW12/A and the witness was also called. The witness identified accused Abdul Shahid as the person involved in the commission of robbery in her house. The accused was taken in police custody; he was interrogated after moving formal application Ex. PW12/B; application for police custody was allowed for three days; disclosure of accused Ex PW6/ B was recorded. The witness Usha had also come to the police station when he was interrogating the accused in his room and in her presence the accused had disclosed about the possibility of finding coaccused near Delite cinema. He has deposed about the recoveries etc. from accused Ali, who has died. On 4/10/03 he along with complainant had gone for the recovery of the robbed articles to the house of accused Abdul Shahid and the accused had got recovered two gold rings from a box in the room from his first floor house. The rings were seized vide memo Ex. PW1/C. He FIR No. 91/03, PS. Geeta Colony Page 5 of 25 St. Vs. Abdul Shahid etc. deposed that accused Ali had disclosed about the arrival of accused Tahir at Petrol Pump Geeta Colony. The accused coming to the CNG petrol pump side was identified by the complainant sitting in the vehicle. A country made pistol was recovered from the possession of this accused for which a separate FIR was registered. He was wearing a chain, which was identified by the complainant as hers. The chain was seized vide memo Ex. PW1/D. His disclosure Ex. PW12/F was recorded. The accused persons had pointed to the place of incident vide memos Ex. PW12/ D&E. Accused Razzak was arrested on 28/10/2003 on secret information vide memo Ex. PW7/A and was searched vide memo Ex. PW7/B. His disclosure pursuant whereto earrings of the complainant were recovered from the house of the accused Razzak, is Ex. PW 9/A. This accused pointed to the place of incident vide memo Ex. PW1/K and the jhumkis recovered at his instance were seized vide memo Ex. PW1/E. The witness in his cross examination has admitted that the complainant did not give the bills of the articles recovered though he had demanded the same from her. The witness admitted that he had not made any DD entries regarding his visits to PS Seema Puri & to Karkardooma Court on 29 & 30/09/2003. He had given the details of what all he had seen at the house of the accused Abdul Shahid, when he visited there. He says that eight persons, who joined the investigation had gone by Tata 407, this was on 04/10/2003.
On 05/10/2003 when they went for investigation qua Ali Mohd, they went by a Tata Sumo vehicle arranged by the SHO. He deposed that a separate case FIR No. 91/03, PS. Geeta Colony Page 6 of 25 St. Vs. Abdul Shahid etc. regarding the recovery of country made pistol was registered against the accused in which he was a witness. He categorically said that in the said case the fact of recovery of the chain was not mentioned as it was not the subject matter of the said case. He replied regarding the recoveries effected from the possession of the accused on his personal search and also stated that these recoveries were not mentioned in the second personal search conducted in the case under section 25 Arms Act as the same had already been mentioned in this case and the accused had nothing with him at the time of personal search conducted in the said case and that the IO of the said case might have put the photocopy of the search memo of this case in his case also.
He stated that at the time of arrest of accused Razzak a DD entry was made in the PS of concerned jurisdiction at Shahid Naga UP intimating his arrival in the jurisdiction. Nothing in the cross examination challenges the version of witness in chief examination.
10. PW 6 ASI Inder Pal was with the IO PW12 on 02/10 2003 when accused Abdul Shahid was arrested and has proved his arrest memo as Ex. PW6/A. He was with the IO on 05/10/03 at the time of arrest of accused Ali Mohammad also, and has deposed on the same line as PW12. In cross, however he stated that they had gone for the recovery by a Tata 407, though PW12 stated that on this day they had gone by Tata Sumo. He has stated that they all were sitting in Tata 407 when accused Rashid @ Tahir was seen and the complainant saw the accused wearing her chain, which was identified by her. He could not tell where complainant had identified the accused FIR No. 91/03, PS. Geeta Colony Page 7 of 25 St. Vs. Abdul Shahid etc. apparently because he was not with IO on 29th or 30th, the dates of identification. The wrong mentioning of vehicle appears a typographical mistake as the witnesses through out have maintained that Tata 407 was used in investigation.
11. PW 7 HC Bisham Rana was with the IO on 28/10/2003 at the time of arrest of accused Razzak and has deposed on the same lines. There is nothing in his cross examination except for an ignorance statement regarding the joining of public witnesses in the proceedings.
12. PW9 Ct. Yashbir Singh joined the investigation with IO on 29/10/2003 and has deposed about the investigation carried on the said date. He says that they had gone by a Tata 407 .
13. PW1 deposed that on 06.05.03 she was present in her house alongwith her family; about 5.55 am three persons came to her house and beat her husband and asked about her. Her husband informed them that she was sleeping. One of the persons was holding knife in his hand, seeing which he sent those three boys inside the house. Those persons woke her up. Fourth person was standing outside the house. The persons closed the door and disconnected the telephone and tied her hands and legs and also the hands of her husband. They put clothes in the mouth of complainant and demanded key. She stated that the key was with her son. One of the persons was having kutta and two others were having knives with them. The persons, who had the kutta put the same on her temple and took away her wearing ornaments. FIR No. 91/03, PS. Geeta Colony Page 8 of 25 St. Vs. Abdul Shahid etc. They also took away Rs.80,000/ and other jewelery and two mobile phones. The persons had raised the volume of T.V and left after bolting the door from outside. She managed to connect the telephone,which was disconnected by the accused persons and narrated the incident to her brother inlaw. Her brother inlaw came down and opened the door. Police was called. Her statement was recorded which is Ex.PW1/A and site plan Ex.PW1/B was prepared. The witness identified accused Razak as the person, who had earlier worked with her and Shahid as the person, who had come alongwith Razak earlier to her house once.
She further deposed that four months after the incident police showed her dossier of some accused persons on seeing which she identified Razak but told her that Razak had not come to her house at the time of incident. 810 days later she saw accused Abdul Shahid at Patiala House Court as the person, who had removed her ornaments. She identified accused Tahir also. She proved the recoveries and the seizure memos but could not name which accused had got recovered what. She was crossexamined by Ld. Addl. PP. In her crossexamination she stated that on seeing the dossier she had identified the persons who had committed robbery in her house and in the dossier the name of the persons was mentioned as Abdul Shahid. She had identified Abdul Shahid in KKD Courts on 20.09.03. She had joined the investigation on 04.10.03 and two gold rings were got recovered from the possession of Abdul Shahid. On 05.10.03 she identified Ali Mohammad, who got recovered two more rings. Same day at 11 am Tahir was got arrested on her identification and he got recovered one countrymade pistol. Accused was wearing a gold chain, which was FIR No. 91/03, PS. Geeta Colony Page 9 of 25 St. Vs. Abdul Shahid etc. identified by her as her own. She says that on 29.10.03, accused Razak was brought to her house and thereafter, she went with the police to his house in Shahibabad, where one pair of Jhumki belonging to her was recovered.
14. It was argued by Ld. Counsel that the complainant initially had stated that a kuttanuma weapon was used while in her statement before Ld. ACMM on 09.03.07, she stated that a gun was put on her temple and in her statement before the Sessions Court she added the use of knives also. She, however, has not identified which accused had used which weapon.
The complainant has given three statement one to the police and two in the court (one before Ld. ACMM and one before the Sessions Court after committal). All the three statements are corroborative of each other on material aspect. Complainant stated initially that three persons had entered her house and she did not speak of the fourth person. Later on she has explained that fourth person was outside and so she had not seen him. She identified two persons, accused Shahid, Tahir as the persons involved in the commission of robbery. The third accused Ali Mohammad had expired and so was not present in the court at the time of recording of statement. About Razak the witness is consistent that she did not see him at the time of commission of offence.
15. It is a relevant fact that the witness gave three statements at different points of time. There is no apparent contradiction in the statement recorded by the IO Ex. FIR No. 91/03, PS. Geeta Colony Page 10 of 25 St. Vs. Abdul Shahid etc. PW1/A and the statement given before the Ld ACMM except for the fact that in one statement she said Kattanuma weapon and in second she said Katta (country made pistol). This cannot be said to be a contradiction at all and depends on how the version of the complainant was perceived and recorded at different forums. In her evidence before sessions court also the witness has given a categoric evidence regarding use of pistol on her temple. Though the witness has not identified which of the accused persons had country made pistol in his hands, used in the commission of offence. The mentioning of use of knife before the court of sessions for the first time seems an improvement but ignorable in view of the fact that the witnesses tend to exaggerate the incident while deposing in the court but that cannot be considered a ground to discard the entire testimony of the witness.
The witness has remained consistent on other part of her testimony. She has given consistent statement regarding the robbed articles. The witness has also given a corroborative testimony on the investigation part. She deposed that she saw Abdul Shahid in Patiala House Court, mentioning of wrong name of the court does not take away the effect of the statement that the accused was seen by her in a court. She identified all the accused in the court during evidence. She said that accused Shahid was the one, who kept standing by her side and had taken off her ornaments, but did not say that who was the one with Katta in his hand. The prosecution also did not get this fact clarified and, therefore, it never came in unequivocal term that which accused had used the country made pistol. She stated that police had joined her in investigation regarding the recovery of the robbed articles, thus corroborating the FIR No. 91/03, PS. Geeta Colony Page 11 of 25 St. Vs. Abdul Shahid etc. prosecution case on the issue. Though she could not give all the details at first instance but her testimony corroborates the prosecution case on all material aspects. It otherwise cannot be expected that a public witness would remember all things in minutest details when deposing after six years of the incident.
16. PW 4 Harish Kumar has deposed about the incident but has not specified which accused had the knife in his hand and had used it. The witness gave a little confused testimony when he said that all the three accused were seen by him entering the house and were involved in the offence. The witness, however, in his cross examination stated that he was shown the accused persons on a previous date by the police. He having identified the accused on that influence cannot be ruled out. In any case PW 1 has remained consistent in her testimony, she was not given any suggestion regarding influence of police and, therefore, on the basis of statement of PW4 the testimony of PW1 cannot be discarded. The testimony PW4 can be ignored in view of the specific suggestion given by Ld Counsel suggesting that his evidence was influenced.
17. Ingredients of section 397 IPC i.e the identification of the person, who used the kutta is not satisfied. It, however, stands proved that three of the accused persons, two out of whom had been identified by the complainant in the court, were involved in the commission of offence. It has been argued that TIP was required to be conducted and judgments have been cited in support of the contention. The FIR No. 91/03, PS. Geeta Colony Page 12 of 25 St. Vs. Abdul Shahid etc. prosecution case, however, is that the complainant had already identified the accused persons from dossiers. The recoveries were effected from the possession of accused persons at the instance of complainant and therefore, there was no purpose for conducting TIP. The recoveries from each of the accused has been proved duly by the complainant. The complainant has given a clear deposition regarding recoveries and has signed the seizure memos.
18. Ld. Counsel has relied upon the judgment in 2010 (3) JCC 1826, Md Aslam Vs State, where the Hon'ble High Court had held that where there was no explanation from the complainant as to why he did not name appellant in the FIR though he was previously known to him, being friend of his children, the appellant was entitled to benefit of doubt.
19. Ld. Counsel argued that two of the accused were known to the complainant, however, their names are not mentioned in the FIR. The witness has stated that Razzak, who was known to her, having worked for her, had not entered the room and she did not see him. He, therefore, could not have been named him in the FIR. The name of this accused was perhaps given by the complainant on discovery of the fact later on as she was a part of investigation all through. Regarding Abdul Shahid she stated that this person came only once to her house along with Razak and therefore, she having not identified him at the time of offence is probable. She appears to be giving a truthful testimony regarding the incident though deviating a FIR No. 91/03, PS. Geeta Colony Page 13 of 25 St. Vs. Abdul Shahid etc. little bit here and there.
20. Ld. Counsel has also relied upon the judgment of Hon'ble Supreme Court in AIR 1981 SC 1392, Wakil Singh & others Vs State of Bihar.
In the cited judgment Hon'ble Supreme Court held that the witnesses had not given any identification marks, such as stature of accused or whether they were fat or thin or or of fair colour or black colour. The conviction could not be based on the identification of dacoits much later in TIP.
In the instant case, however, PW1 and 8 have stated that the complainant had got the sketches of the accused prepared on the day of the complaint itself. The judgment, therefore, does not help accused in any manner.
21. Ld. Counsel has relied upon the judgment of Hon'ble High Court in 2005 (1) RCR (Criminal) 224, titled Gopal Krishnan Vs Sadanad Nayak. In this judgment, however, the Hon'ble Supreme Court held that there was no statutory guidelines in the matter of showing photographs to the witness during the stage of investigation. But nevertheless the police is entitled to show the photographs to confirm that the investigation is going on in the right direction.
Though in the said matter the Hon'ble Supreme court did not approve of the manner in which the photographs were shown, the facts of said case are not applicable here because in the instant case the witness already got the sketches prepared and the photographs were shown only to confirm the identity. The FIR No. 91/03, PS. Geeta Colony Page 14 of 25 St. Vs. Abdul Shahid etc. photographs were dossier obtained from other Police Station, and were shown after the preparation of sketches.
Hon'ble Supreme Court in 2012 (2) RCR (Criminal) 231, Sampath Kumar Vs. Inspector of Police Krishangiri referring to Vadivelu Thevar v State of Madras AIR 1957SC614 spoke of three category of witnesses: " those that are wholly reliable, those that are wholly unreliable and who are neither wholly reliable nor wholly unreliable. In the case of the first category the courts have no difficulty in coming to the conclusion either way. It can convict or acquit the accused on the deposition of single witness if it is found to be fully reliable. In the second category also there is no difficulty in arriving at an appropriate conclusion for there is no question of placing any reliance upon a deposition of a wholly unreliable witness. It is only in the case of witnesses who are neither wholly reliable nor wholly unreliable that the Courts have to be circumspect and have to look for corroboration in material particulars by reliable testimony direct or circumstantial."
The Hon'ble Supreme Court thus held that the testimony of a witness who is not wholly reliable or wholly unreliable, can be relied if it is corroborated on material aspects. PW1 is the witness of third category but has given a consistent statement on material aspects, which is corroborated by the evidence of witnesses of investigation.
Similarly in Inder Singh & Anr. Vs. The State (Delhi Administration), (1978) 4 SCC 161 at page 162 the Hon'ble Supreme Court held:
"Credibility of testimony, oral and circumstantial, depends considerably FIR No. 91/03, PS. Geeta Colony Page 15 of 25 St. Vs. Abdul Shahid etc. on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof of beyond reasonable doubts should be adduced in all criminal cases, it is not necessary that it should be perfect. If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitably because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty men must be callously allowed to escape. Proof beyond reasonable doubts is a guideline, not a fetish, and guilty man cannot get away with it because truth suffers from infirmity when projected through human processes. Judicial question for perfect proof often accounts for police presentation of tool proof concoction. Why take up? Because the court asks for manufacture to make truth look true? No, we must be realistic?"
Applying the guideline as laid down above, the evidence of complainant seems believable. She has been consistent in all her statements on material facts. Throughout she has maintained that she was sleeping inside her room and her husband was out and her children had gone to play; three persons had entered her room; one person had put Kattanuma weapon/ country made pistol/ pistol on her temple. She has mentioned the jewellery/ cash/ ornaments (which she was wearing) consistently the same. It was argued that she mentioned about one mobile having been robbed in her initial statement but later made it two mobiles. Relevantly the witness has explained in her cross examination that she did not see the accused removing the second mobile, which was picked by them from the other room. Thus FIR No. 91/03, PS. Geeta Colony Page 16 of 25 St. Vs. Abdul Shahid etc. the fact of robbing of second mobile was discovered by her later and so was not disclosed by her in her initial statement. In all her statements the witness mentioned that she was asked by the accused persons about the keys and she had told them that the keys were with her son, who had gone to play. There are minor inconsistencies regarding how were the hands and legs tied; how she managed to open and how she called her brother in law, but she is consistent that all this had happened. The inconsistencies are ignorable in view of the time gap between the date of incident and recording of evidence. She categorically said in her cross examination that her statement was first recorded on the day of incident at her home and thereafter whenever she joined investigation. It was argued that the witness deposed that her house was three storyed and she was living on first and second floor and no one was residing on the third floor, then how come her brother in law came from the upper floor as stated by her in chief examination. The witness did not say that the first & second floor were occupied by her independently and that her brother in law was not living with them jointly. There is no confusion in the evidence of the witness.
22. It was also argued that there were some dues of accused Razak on complainant and therefore, he has been falsely implicated, which was the stand of this accused in his statement under section 313 Cr.P.C & also of accused Shahid. If the complainant intended to falsely implicate accused Razak & Shahid, who is his friend, nothing stopped her from giving clear statement to the police naming them as the accused, who committed offence in her house. The defence is not believable at FIR No. 91/03, PS. Geeta Colony Page 17 of 25 St. Vs. Abdul Shahid etc. all.
23. Ld. Counsel has relied upon the judgments in 2012 (2) Criminal Court Cases, Girdhari vs State; 1998 (2) CCC 46 (HC), Dinesh Kumar vs State; AIR 1976 SC 483, Md. Intyaullah v State of Maharashtra, where it has been held that the recoveries in absence of public witness should not be read against the accused & that the place of recovery should also be mentioned in the disclosure statement. The fact, however, remains that in the instant matter, all the recoveries were effected in presence of the complainant and police witnesses were not alone at the time of recoveries, the articles recovered are jewellery and not easily available cheap articles, which the police could have arranged for false implication; further the recoveries have been effected from respective houses of the accused and not from public place as such the last judgment is also not of any help to the accused.
24. On the applicability of section 397 IPC Ld. Counsel argued that none of the eye witnesses has named the person, who used the katta, the knife is not considerable as it is an improvement from the initial statement. Admittedly the witnesses are silent on the issue. PW 1 though she says that accused Shahid was the one, who stood by her and forced her to remove her jewelery; she does not say that he was the one who had the pistol in his hand. The fact cannot be presumed by the court in absence of specific averment. Similarly PW4 is silent on, who had the knife in his hand.
FIR No. 91/03, PS. Geeta Colony Page 18 of 25 St. Vs. Abdul Shahid etc.
25. Hon'ble Delhi High Court in 2010(3)JCC 1826, Md. Aslam Vs State "it is by now settled proposition of law that Section 397 of IPC, which by itself does not create an offence and which only prescribes a minimum punishment, can be applied, while awarding sentence, only in respect of that person, who uses a deadly weapon at the time of commission of the offence or who causes grievous hurt or attempts to cause death of or grievous hurt to any person".
Balik Ram Vs. State 1983 Cr.L.J 1438 " Though the knife that was recovered from the accused a few hours of the occurrence was no doubt a deadly one on account of its size and design but it was not shown to the victim when he came to depose nor has he given any description of the knife so that it could be held that the knife alleged to have been placed by the accused on his abdomen was the one recovered or the one similar to that one. The accused can, therefore, legitimately claim that the weapon used by him has not been proved to be a deadly one". In the instant case no knife has been found or shown to the witnesses at all.
Chaman Singh Vs. The State 1988 Cr.L.J. No. C 28, where it was not established that the knife used for committing the robbery was in fact a deadly weapon within the meaning of section 397 IPC, the court had held that in the absence of recovery of the knife, which was allegedly used at the time of commission of the offence/dacoity, it could not be presumed that the knife so used was a deadly weapon. It was observed as under:
" At the time of committing dacoity one of the offenders caused injury by FIR No. 91/03, PS. Geeta Colony Page 19 of 25 St. Vs. Abdul Shahid etc. knife at the hand of the victim but the said knife was not recovered. In order to bring home a charge under section 397, the prosecution must produce convincing evidence that the knife used by the accused was a deadly weapon. What would make knife deadly is its design or the method of its use such as is calculated to or is likely to produce death. It is, therefore, a question of fact to be proved by the prosecution that the knife used by accused was a deadly weapon. In the absence of such an evidence and particularly, the nonrecovery of the weapon would certainly bring the case out of the ambit of section 397 IPC. The accused shall be convicted under section 392 IPC.
175 (2010) DLT 27 Samuddin Vs. State of NCT, " It is undisputed fact that the knife in question was not recovered, much less produced in the course of trial. In such circumstances, this court is inclined to agree with the submissions of the counsel for the appellant that the appellant could be sentenced under section 392 IPC alone and the offence does not fall within the ambit of section 397 IPC".
26. In view of above, the prosecutionn though it has established that accused Tahir and Shahid alongwith one other had entered in to the house of complainant and had committed robbery, a part of robbed articles were recovered at their instance in presence of the complainant and the witnesses of investigation; it has failed to prove the presence of accused Razzak outside the house of the complainant and thus his involvement in the commission of offence. The prosecution has also not been able to establish the involvement of any accused for the offence u/s. 397 IPC. There being FIR No. 91/03, PS. Geeta Colony Page 20 of 25 St. Vs. Abdul Shahid etc. clear and categoric evidence regarding involvement of accused Tahir and Shahid in the commission of offence u/s. 392/34 IPC, they are convicted accordingly. Prosecution has also successfully proved its case u/s. 411 IPC against accused Razzak for the recoveries effected at his instance from his house as established by the witnesses. The accused persons are convicted accordingly. Let the accused be heard on the point of sentence.
Announced in the open court on 23.10.13 (ANURADHA SHUKLA BHARDWAJ) ASJ03, (EAST) KKD COURTS, DELHI/23.10.13 FIR No. 91/03, PS. Geeta Colony Page 21 of 25 St. Vs. Abdul Shahid etc. IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ ASJ02 (EAST), SPL. JUDGE, NDPS KKD COURTS, DELHI Unique ID No. 02402R0064022003 Sessions Case No.102/13 State v/s. (1) Abdul Shahid S/o. Sh. Jaki Ahmad R/o. Mohalla Rishal Daran, Sikandarabad, Distt. Bulandshahar, U.P. (2) Tahir @ Rashid S/o. Sh. Mashook Ali R/o. Village Dhiroli, PS. Bulandshahar, U.P. (3) Rajjak S/o. Sh. Shamshad R/o. A873, Shalimar Garden, Shahibad, Distt. Ghazibad, U.P. (5) Ali Mohammad S/o. Alla Diya R/o. Mohalla Madarsha, Garh Mukteshwar Distt. Gaziabad, U.P. (Expired) FIR No. 91/03 PS. Geeta Colony U/s. 392/397/411/34 IPC Pr: Sh. S.K.Dass, Ld. PP for the State.
All the convicts in person.
Sh. F.A.Banisriel, Ld. Counsel for accused Shahid and Tahir. ORDER ON SENTENCE: FIR No. 91/03, PS. Geeta Colony Page 22 of 25 St. Vs. Abdul Shahid etc.
1. The accused have been convicted by order/judgment of this court dt. 23.10.13.
2. Heard on point of sentence.
3. Ld. Counsel argued that convicts have rehabilitated. While convict Tahir does not have any case against him apart from this case, the other two also have not shown any involvement subsequent to the present case. He has relied upon the judgment of Hon'ble Delhi High Court in 213 (3) JCC 1881, Qayum Vs. State of Delhi, where the appellant convicted u/s. 392 IPC was sentenced for the period already undergone which was of three years nine months and nineteen days; 2011 IV AD (Delhi) 590, Kaushlender Vs. State, where the accused convicted u/s. 392 IPC was sentenced for the period of three years & three months and 2010 (4) JCC 3091, Samiuddin Vs. State of NCT of Delhi, where accused convicted u/s. 392 IPC was sentenced for four years.
4. Arguments heard. Record perused.
5. It was argued by Ld. Counsel for convict Tahir that convict has no previous or subsequent involvement apart from the present case. He is suffering with ailment FIR No. 91/03, PS. Geeta Colony Page 23 of 25 St. Vs. Abdul Shahid etc. in his left leg, which is under treatment since 2010 for clotting. He has old parents and school going children to support. He has already been in Judicial Custody for four years and two months. He is having his own work of construction and is running a company. The crime involvement record of convict Tahir was called, which says that he has not been involved in any case before or after the present case.
6. The applicant does not have any involvement prior or subsequent to the present case. He has remained in Judicial Custody for a period of more than three years. In view of above facts, I am of the opinion that ends of justice would be sub served if the convict Tahir is sentenced U/s. 392 IPC for the period already undergone by him. He is also sentenced to pay a fine of Rs.10,000/. In default of payment of fine, he shall further undergo SI for one month.
7. It was argued by Ld. Counsel for accused Abdul Shahid that he has remained in JC for three year ten months. There is no case against him subsequent to his involvement in the present case. He has been convicted u/s. 392 IPC. Crime involvement record of accused shows that he has been involved in 17 cases from 1997 till 2003. After 2003, no case was registered against the convict Shahid. All the cases registered against him were u/s. 379/411 IPC, whereas the present case is u/s. 392/397 IPC. He has been convicted u/s. 392 IPC only. He has remained in JC for a period of more than three years. Considering the fact that the applicant has shown reformative pattern and has not been involved in any unlawful activity for last ten FIR No. 91/03, PS. Geeta Colony Page 24 of 25 St. Vs. Abdul Shahid etc. years, I am of the opinion that ends of justice would be subserved if the convict Abdul Shahid is sentenced for the period already undergone by him. He is also sentenced to pay a fine of Rs.20,000/. In default of payment of fine, he shall further undergo SI for one month.
8. Accused Razzak has been convicted u/s. 411 IPC only. Crime involvement record reveals that he has been involved in four cases of theft between 2007 to 2010. No case has been registered against him since 2010. I am of the opinion that ends of justice would be subserved if the convict Razzak is sentenced for the period already undergone by him. He is also sentenced to pay a fine of Rs.10,000/. In default of payment of fine, he shall further undergo SI for one month.
9. The period of detention already undergone by them during investigation, inquiry or trial may be set off against the sentence awarded in this case, in view of section 428 Cr.PC.
10. A copy of this order as well as of judgment be given to convicts free of cost. Copy be also sent to Jail Superintendent for information and necessary action.
Announced in the open
court on 19.11.13 (ANURADHA SHUKLA BHARDWAJ)
ASJ03, (EAST) KKD COURTS, DELHI/19.11.13
FIR No. 91/03, PS. Geeta Colony Page 25 of 25 St. Vs. Abdul Shahid etc.