Delhi District Court
State vs . (I) Mohd. Kasim on 29 October, 2014
IN THE COURT OF SH. JITENDRA MISHRA, ASJ-06, SOUTH-EAST, SAKET,
NEW DELHI
Session Case No : 46/14
Date of Institution : 31.08.2013
Received by transfer
to this Court on : 13.02.2014
Judgment reserved : 14.10.2014
Date of Judgment : 29.10.2014
FIR No: 170/13
PS: Hazrat Nizamuddin
U/Sec. 394/397/411 IPC
State Vs. (i) Mohd. Kasim
(ii) Irfan
JUDGEMENT
1) Vide this order, case arising out of FIR No. 170/13 PS Hazrat Nizamuddin, New Delhi under Section 394/397/34 IPC will be decided.
2) Briefly, the case of the prosecution is that on 10.06.2013 at about 1.30 am at Lala Lajpat Marg in Hazrat Nizamuddin Area of Delhi, the accused persons at point of knife committed robbery of mobile phone and cash from complainant Khem Singh and Rs.300/- from Karim. Charge was framed under Section 394 read with Section 397 and 34 IPC against the accused Mohd. Kasim and accused Irfan was charged Usec. 394/34 IPC by the Ld. Predecessor Court on 24.10.2013 to which accused persons pleaded not guilty and claimed trial.
3) Prosecution to prove its case has examined complainant Khem Singh as PW-1, who deposed that he along with one Karim while they were 1 going to Nizamuddin Dargah at about 1.20 am two persons including accused Mohd. Kasim and the other accused whose name the witness could not remember attacked them and accused Karim was having Ustra and they threatened that "Jo Kuch bhi hai Jaldi Se Nikal Do Verna Jaan Se Maar Denge"
upon which the witness handed over his mobile phone and purse and when he tried to make noise accused Karim attacked him on head with Ustra and thereafter the accused persons fled away on their white scooty bearing number 9354. Thereafter, police came and they chased the accused and caught them. Police took him to Government Hospital for treatment and his statement was recorded vide Ex.PW-1/A. The Ustra was recognized by the witness and the identity of scooty DL-13 SL9354 and Mobile phone was not disputed by the accused.
In cross examination by the Ld. Counsel for the accused PW-1 admitted that he is an illiterate person but police recorded what was stated by him as Ex.PW-1/A. He deposed that though there was no street light on spot but there was adequate light to see the accused persons. He claimed that on inquiry made by police they came to know the name of the accused persons. He denied that the accused persons had not committed any offence or nothing was recovered from their possession.
4) PW-2 Karim is the other eye witness, he also deposed on the same line as PW-1 Khem Singh. He further deposed that Rs.1,000 were recovered from accused Irfan and same were seized vide seizure memo 2 Ex.PW-2/A. In cross examination though he admitted that he had gone through the statement U/Sec. 161 Cr.P.C. but he denied that the accused persons had not committed any offence or that nothing was recovered from their possession.
5) PW-3 Ct. Sonu Kumar and he deposed that he along with SHO found the accused beating the victims and on arrival of police they tried to run away on scooty but they were apprehended by the police and in the meantime Ct. Upkar and Ct. Chaman Singh who were on patrolling duty have also reached there. On inquiry accused persons disclosed their name as Kasim and Irfan. PW-4 is SHO Sunil Kumar and he also supported the case of the prosecution. In cross he denied that he was not present at the spot.
PW-5 is Ct. Chaman Singh and he also supported the case of the prosecution, deposing that he was on patrolling duty and accused persons were apprehended by the police.
6) PW-6 is SI Chel Bihari who is the IO and who completed the formalities of investigation. In cross examination he deposed that he has reached at AIIMS Trauma Centre on his private motorcycle but he could not remember if he had recorded the statement of Ct. Chaman Singh. He denied that he has planted the currency notes on the accused to implicate him falsely in this case.
7) In their statement U/Sec. 313 Cr.P.C accused Mohd. Kasim & Irfan 3 denied the case against them as incorrect and claimed that he has been falsely implicated at the instance of SHO to solve a blind case. Accused persons preferred not to lead any DE.
8) Final arguments were advanced. Ld. APP for the state argued that prosecution has successfully proved the guilt of accused persons beyond reasonable doubt. It was submitted that prosecution witnesses have corroborated each other and they have proved the case of prosecution that accused persons have robbed the victim by using ustra. It was accordingly prayed that accused be convicted.
9) On the other hand the Ld. Counsel for the accused persons argued that the accused were falsely implicated in this case and prosecution has miserably failed to prove the charge against the accused persons by evidence as per law. It was argued that prosecution witnesses are planted witnesses and they have deposed at the instance of police to solve a blind case. It was further argued that the testimony of prosecution witness are contradictory to each other. It was accordingly, prayed that accused persons be acquitted.
10) I have carefully gone through the submissions made and record of the case. When we look at the law it provides as under:-
Section :- 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 4 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 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 persons, 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.
11) When we look at law U/Sec. 397 IPC it has been held in case (1997) 2 Crimes 47 (Bom) titled as Shravan Dashrath Datrange Vs. State of Maharashtra that "an act would only fall within the mischief of this section if at the time of committing robbery or dacoity the offender-
(a) Uses any deadly weapon
(b) causes grievous hurt to any person or
(c) attempts to cause death or grievous hurt to any person".
It has also been held in in case AIR 2007 SC 1253 titled as Ashfaq Vs. State (Government of NCT of Delhi) that "what is essential to satisfy the word "uses" for the purposes of Section 397 IPC is the robbery being committed by an offender who was armed with a deadly weapon which was 5 within the vision of the victim so as to be capable of creating a terror in the mind of victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting as the case may be".
12) When we examine the facts of the present case the prosecution witnesses including public witnesses PW-1 and PW-2 have deposed that they were accosted near cremation ground at around 1.15 to 1.30 am on 10.06.2013 by accused persons and the accused Kasim was having a Ustra and he threatened and caused injuries to victim Khem Singh and the accused persons robbed him of mobile phone and cash. The accused persons thereafter tried to run away on a scooty bearing number DL-13SL9354 but they were chased by police team and they were apprehended and from their search the said mobile phone and the currency note was recovered. Even the scooty involved the incident was seized.
13) The testimony of the prosecution witnesses is natural and trustworthy. There is no reason to doubt their testimony accused were caught redhanded after the crime. Even in Statement 313 Cr.P.C. they have simply denied the case against them. Public witness have been corroborated by recovery of robbed goods by police from accused. The version of prosecution also finds corroboration from medical evidence MLC Ex.PW-5/A whereby victim Khem Singh was examined on 10.06.2013 at 2.02 am with alleged history of assault at around 1 am and he was found to have wound on his forehead.
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14) In facts of the case the evidence on record conclusively leads to the guilt of accused persons that they robbed victim wherein accused Mohd. Kasim Used a Ustra and co-accused Irfan helped him in the said robbery. In facts of the case it is clear that prosecution has successfully proved its case against the accused persons. Accordingly, accused Mohd. Kasim is convicted Under Section 397 IPC and accused Mohd. Irfran is convicted Under section 394 IPC.
Put up for order on sentence on 10.11.2014.
Announced in the Open Court (JITENDRA MISHRA)
on 29.10.2014 ASJ-06, South East District,
Saket Court Complex
New Delhi.
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FIR No: 170/13
PS: Hazrat Nizamuddin
U/Sec. 394/397/34 IPC
State Vs. Mohd. Kasim & Anr.
29.10.10.2014
Present:- Sh. Pravin Rahul, Ld. APP for the State Accused Mohd. Kasim and Irfan on bail.
Sh. Pankaj Srivastav, Advocate (Amicus Curiae) for both accused. Vide my separate judgment, announced in the open Court, accused Mohd. Kasim is convicted Under Section 397 IPC and accused Mohd. Irfran is convicted Under section 394 IPC.
Put up for order on sentence on 10.11.2014.
(Judge) 8