Document Fragment View

Matching Fragments

1. By these appeals, the Appellants impugn the judgment dated 4th March, 2011 whereby they have been convicted for offences punishable under Section 394/34 IPC, 457/34 IPC and 411 IPC and in addition Appellants Mohsin and Bahadur were also convicted for offence punishable under Section 397 IPC. As per the order on sentence dated 11 th March, 2011 Appellant Mohd. Shahid was directed to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 20,000/- for offence under Section 394 IPC and in default of payment of fine to further undergo rigorous imprisonment for a period of one year, rigorous imprisonment of five years and a fine of Rs. 10,000/- for offence punishable under Section 457 IPC and in default of payment of fine to further undergo rigorous imprisonment for a period of six months and rigorous imprisonment for a period of two years and a fine of Rs. 5000/- for offence punishable under Section 411 IPC and in default of payment of fine to further undergo rigorous imprisonment for three years. Appellants Mohsin and Bahadur were in addition to the above, directed to undergo sentence of rigorous imprisonment for a period of 7 years under Section 397 IPC.

4. Learned counsel for the Mohsin states that it was the defence of the Appellant that his photos were shown, thus he was correctly identified in the judicial TIP. The TIP conducted was meaningless and no reliance can be placed thereon. Further PW3 Mukesh states that he was hit on the mouth due to which his tooth came out, however he was not medically examined and thus there is no medical evidence on record to corroborate this version. The MLC was not proved as doctor was not produced in witness box. The jewellery was not described in the FIR or thereafter in the statements and thus the TIP of the jewellery was meaningless. Due weightage was not given to the defence evidence. The details of the knife were not given by the witnesses and thus the knife was a planted one. Testimony of PWs1, 2 & 4 has been dictated by the Police officers and thus cannot be relied upon. The learned Trial Court wrongly held the contradictions to be not major. Thus, benefit of doubt needs to be extended to the Appellants. Further Section 394 IPC mandates hurt, however as the MLC has not been proved, so Section 394 IPC cannot be invoked and Appellants cannot be convicted for the offence under Section 394 IPC.

5. Learned APP on the other hand contends that the incident took place on 30th December, 2006. The TIP of all the three accused were conducted on 18th January, 2007 wherein though PW1 identified none, however in the Court she identified Bahadur and Mohsin. Further in the TIP PW3 identified Bahadur and Mohsin, and in the Court he identified all the three Appellants. PW4 in his TIP though identifies only Shahid, however in the Court he identifies all the Appellants. The identification by the witnesses in the Court is substantive evidence and since the Appellants have been identified in Court by the natural witnesses, conviction can be safely based on their testimony. PW1 has given the complete narration of facts and has clarified that in the TIP she could not identify the Appellants due to the fear. PW3 corroborates the version of PW1. The contention that the Appellants cannot be convicted for offence under Section 394 IPC is incorrect as PW9 Dr. Sameer Sethi has been examined who has proved the MLC Ex.PW9/A which shows injury on the neck portion. Further under Section 394 IPC such person and all other persons who are in conspiracy and participating with him are liable. The TIP of the articles was done properly and thus the same proves that the Appellants indulged in trespass and robbery. In the statement under Section 313 Cr.P.C. the explanation given is that the photos were taken and shown. However, no such version has been put to the witnesses in the cross-examination. The prosecution has proved the case beyond reasonable doubt and the appeals be dismissed.

10. I find no merit in the contention of the learned counsel for the Appellants that in view of the fact that MLC of PW3 Mukesh has not been exhibited and hurt has not been proved, Section 394 IPC is not attracted. Though MLC of PW3 Mukesh has not been proved, however the MLC of PW1 Reeta Verma has been proved and exhibited as Ex.PW9/A. As per the MLC, PW1 received two superficial incised wounds one on the right side of the neck and other on the thumb bone right palm. It is thus apparent that hurt has been received while committing robbery. Section 394 IPC provides that if any person in committing or in attempting to commit robbery voluntary causes hurt, such a person and any other person jointly concerned in committing or attempting to commit such robbery shall be punished with a term which may extend to 10 years and shall also be liable to fine. Causing of hurt to PW1 has been proved by the prosecution beyond reasonable doubt. The Appellants herein were jointly concerned in committing the robbery in which hurt was caused to PW1. Thus all the three Appellants are liable for conviction under Section 394/34 IPC.