Full Judgment Text
2022:DHC:5983
3"^
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on; 21.09.2021
Date of decision; 06.07.2022
+
CRL.A. 344/2020
RAHIS
Appellant
Through:
Mir. U A Khan, Mr. S A Khan & Mr.
Shahrukh Khan, Advocates.
Appellant through VC from JC.
Versus
STATE
Respondent
Through: . Ms. Asha Tiwari, APP for State with
STHimanshu, PS Welcome.
+ CRL.A. 567/2020
JAVED
Appellant
Through: Mr. Gautam Khazanchi, Advocate.
Appellant through VC from JC.
Versus " >
STATE Respondent
Through: Ms. Asha Tiwari, APP for State with
SI Himanshu, PS Welcome.
+ CRL.A. 568/2020
JAKIR @ CHUHI Appellant
Page 1 of 38
CRL.A. 344/2020, CRL.A. 567/2020, CRL.A. 568/2020
2022:DHC:5983
Through: Mr. Mayank Mikhail Mukherjee,
Advocate.
Appellant through VC fr om JC.
Versus
THE STATE (NCT OF DELHI) Respondent
Through: Ms. Asha Tiwari, APP for State with
SI Himanshu, PS Welcome.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
ANU MALHOTRA, J
1. The appellants namely Rahis, the appellant of CRL.A.
344/2020, Javed, the appellantv of and Jakir @
Chuhi, the appellant of CRfei:;*- ^8 assail the impugned
judgment dated 22.02.2020 and the impugned order on sentence dated
® 28.02.2020 of the Court of the learnedr;:ASJr02, E-Court, Shahdara,
KKD, Delhi in relation to FIR No.244/16, PS Welcome registered
under Sections 392/397/411/34 of the Indian Penal Code, 1860 qua
which the three appellants were held guilty and convicted for the
offence punishable under Sections 392/34 of the Indian Penal Code,
1860 read with Section 397 of the Indian Penal Code, 1860 and vide
the impugned order on sentence dated 28.02.2020 were all sentenced
to RI for a period of seven (7) years under Sections 392/34 r/w Section
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397 of the Indian Penal Code, 1860 and to pay a fine of Rs.5,000/-
each and in default of the payment of the said fine to further undergo
SI for a period of three months with the benefit of Section 428 of the
Cr.P.C. having been given to all the convicts. In as much as all the
appeals arise out of the same impugned common judgment dated
22.02.2020 and impugned order on sentence dated 28.02.2020, the
three appeals though filed separately are being taken up together for
consideration in terms of proceedings dated 01.09.2021.
2. Notice of the appeals was issued to the State.
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3. The Trial Court Record was requisitioned and has been received
and perused.
4. The nominal rolls dated 03.07.2022 qua the three appellants are
on the record. T
PROSECUTION VERSION
5. As per the prosecution version .:set^^^^ through the impugned
judgment and as also indicated;:thrbhgfe^^^^^ FIR No.244/20I6, PS
Welcome which was registered at 1.50 hours on 04.06.2016, DD
No.96B was recorded on 03.06.2016 at 11:47 PM on receipt of a call
from a passenger of an auto-ricksliaw that'aitiEakdi Market, Z1 block,
near Usmania Masjid three boys who had boarded the auto-rickshaw
as passengers had beaten the passenger and looted Rs. 12,000/- from
him and had run away on foot, that this call was received from Mobile
No. 9897905054 of which information was given by Constable Sudhir
2913 PCR and was recorded in the Rojnamcha and entrusted to SI Brij
Mohan who along with Constable Vinay 3389 NE left for the spot and
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on reaching there they found a TSR No. DL IRQ 1537 stationed there
and also found the complainant Bhagat Singh S/o Sh. Kuwar Pal
Singh and another passenger of the vehicle who on enquiries gave his
name to be Altabarak Haq S/o Mohd. Sharif at the spot and SI Brij
Mohan recorded the statement of the complainant Bhagat Singh who
stated to the effect that on 03.06.2016, he came to Delhi for his
personal work and at about 10.50 PM, he boarded an auto-rickshaw
bearing No. DL IRQ 1537 from Moujpur Red Light to go to Welcome
in which one passenger was already sitting on the rear seat and he too
sat with him and when the TSR reached a little ahead of the red-light
at Moujpur, three boys of ages hetweeh 20-25 years also boarded the
TSR, of whom two of them sat towards 'the left and right side of the
driver and the third one sat on The rear..seat on the left side of the
I
complainant. It has inter a/Za , been stated through the FIR that at
about 11:00 PM, when the TSR reached near the under construction
metro station of Jafrabad before the/Idgali PuIia, then the boy who was
seated on the right side of the' ft rivef ;W11Q'"w tall, thin and of dark
complexion asked the driver to park the TSR on the side of the road
and as the TSR driver parked the TSR^: on. a side, the boy who was
seated on the left of the complainant who was of a short height, fat and
of dark complexion took out one ustara from his pocket and showed
the same to the complainant and to the other passenger (whose name
was subsequently learnt to be Altabarak Haq) and asked them to give
whatever they had with them and in the meantime, the other two boys
who were seated in the TSR, got down from the TSR and apprehended
both the complainant and the other passenger i.e. Altabarak Haq and
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the boy who was seated on the left side of the TSR driver who was
tall, thin and fair and wearing a blue T-Shirt forcibly took out the
brown colour purse from the rear pocket of the pant of the
complainant- Bhagat Singh and according to the complainant, there
was a sum of Rs.6,000/- in cash, one PAN Card, one DL, Adhar Card,
an SBI ATM Card, a Voter ID Card and other documents and this
person also took out a mobile phone of Zen Company of black colour
without a SIM from the fr ont right pocket of the pant of the
complainant and took out another phone of the make Samsung model
%
no. 350 of black colour with a Vodafone SIM no. 8006623834 and an
Airtel SIM of No.9717821599, forcibly.
6. As per the FIR, the complainant had further stated that in the
same manner, the boy seated on the right side of the driver who was
tall, thin and dark complexioned forcibly Took out the money and the
mobile from the other passenger of the TSR (i.e. Altabarak Haq) and
then all those three boys ran towafd^ the Tdgah. The complainant as
per the FIR has stated that aftot" ehquii^, he learnt of the name of the
other passenger as being Altabarak Haq S/o Md. Sharif R/o Village
Magrena, Post PS Mohammadi Rhiri, Distt;, Lakhimpur Khiri, UP and
the name of the driver as Md. Shahrukh S/o Jamil Akhtar R/o L-427,
Sundar Nagri, Delhi. The complainant through the FIR has stated that
thereafter, he and the other passenger along with the TSR driver went
to the Welcome Pulia and the complainant called his employer and
informed him of the whole incident who informed the police at
number 100. As per the FIR, the complainant had stated that none of
them had been injured and that they did not want to get themselves
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medically examined but that they could identify the three persons if
they came in front of them.
7. As per the FIR, the Investigation Officer, SI Brij Mohan on
enquiries learnt the name of the other passenger of the TSR as being
Altabarak Haq and of the TSR driver as being Mohd. Shahrukh. The
FIR was got registered on the basis of the statement of the
complainant Bhagat Singh under Sections 392/397/34 of the Indian
Penal Code, 1860.
8. As per the charge sheet, the Investigation Officer prepared the
%
site plan at the instance of the complainant, made enquiries from
persons nearby but got no clue about,the accused persons and went in
search of the accused persons along with 'the complainant and the staff
and recorded the statements of witnesses. The Investigation Officer
also obtained the CDR details of the mobile numbers 8006623834,
9643388671 and 9717821599 and.duftng/the course of investigation
on 14.06.2016, the Investigation Officer,/aF the pointing out of the
other eye witness i.e. the other ^passenger ire. Altabarak Haq with the
aid of other police personnel opposite the Tent Wala School near the
dustbin at the 66 Futtta Road apprehended three boys whose names
were learnt to be Javed S/o Riyazuddin i.e. the appellant of CRL.A.
567/2020, Jakir @ Chuhi S/O Wasi Ahmed i.e. the appellant of
CRL.A. 568/2020 and Rahis S/o Shahbuddin i.e. the appellant of
CRL.A. 344/2020. The Investigation Officer conducted the search of
these persons and from the right hand pocket of the pant worn by the
accused/appellant Jakir @ Chuhi, the appellant of CRL.A. 568/2020, a
mobile of the make Samsung Model no.350 of black colour was
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recovered and on opening which the IMEI number of the same was
found to be 35421207341157/4 which was a mobile robbed in relation
to the FIR in question which was seized by the Investigation Officer.
9. As per the charge sheet, on the search of the accused/appellant
Rahis, S/o Shahbuddin (i.e. the appellant of CRL.A. 344/2020) from
the right pocket of the pyjama worn by him, a used us tarn was
recovered which was placed on a white paper and a sketch of the same
was prepared and was placed in a transparent plastic box which was
sealed with the seal of BM and seized and in view of seizure of the
f
mobile phone. Section 411 of the Indian Penal Code, 1860 was also
invoked by the Investigating Agency arid the three accused persons i.e.
the appellants herein namely Rahis,.,Javed & Jakir @ Chuhi were
arrested who allegedly gave Iheir disclosure statements in relation to
the incident. , ;
10. It is further stated .through, -the .charge sheet that during
investigation at the pointing out of the7accused/appellant Javed, a
Samsung Phone was recovered-froni).his^ a mobile phone of
King bell Company was recovered from the house of Jakir @ Chuhi
and two mobile phones of the ri iake of.Tata :Indieom and Micromax
company were recovered at the pointing out of the accused/appellant
Rahis from his house and the accused persons allegedly disclosed that
these mobiles related to other incidents which were also seized by the
Investigating Agency and deposited in the Malkhana.
11. As per the prosecution version, the Investigation Officer
produced the three accused persons on 15.06.2016 in a muffled face
before the Court and also sought the grant of police custody remand
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and the police custody remand for one day was granted in relation to
the three accused i.e. the three appellants herein, whereupon, at the
pointing out of the accused Jakir @ Chuhi, the appellant of CRL.A.
568/2020, one more mobile phone robbed in relation to the incident
which he allegedly disclosed to have robbed in association with the
other two accused persons named Javed and Rahis was recovered from
Jakir @ Chuhi, which was also seized by the police.
12. As per the charge sheet, no other articles robbed in the incident
were recovered. The Investigation Officer is stated to have thereafter,
after the three accused persons i.e. the appellants herein were
remanded to judicial custody, moved applications before the Court for
conducting of the Test Identification; Parade but all the three accused
persons refused to participate in the same. It is further stated through
the charge sheet that after SI Brij Mohan was transferred, the further
. .. rf ^ ,
investigation of the case was entrusted to SI Rajiv Kumar of PS
Welcome and during thei course',, pf/investigation, the subsequent
Investigation Officer collected tlie pekffi^^^ under Section 65B of the
Indian Evidence Act, 1872 qua the PCR Call and PCR form and also
qua the robbed mobile phone Nos. 8,006623,334, 9643388671 and
9717821599 along with their CDR, CAT, ID details which were
obtained from the concerned Nodal Officers.
13. The Trial Court Record indicates that the charges were initially
framed on 23.11.2016 against the three appellants herein qua the
commission of the offences punishable under Sections 392/34/397 of
the Indian Penal Code, 1860 in relation to the user of the deadly
weapon i.e. the ustara for robbing the complainant Bhagat Singh in
CRL.A. 344/2020, CRL.A. 567/2020, CRL.A. 568/2020 Page 8 of 38
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furtherance of their common intention with the charge having been
framed against the accused Jakir @ Chuhi under Section 411 of the
Indian Penal Code, 1860 in relation to his having been found in
possession of the Samsung phone Model No.350 belonging to the
complainant which charges were amended on 19.02.2020 against the
three appellants wherein, they were charged for having in furtherance
of their common intention robbed the complainant Bhagat Singh, S/o
Kunwar Pal Singh of his purse containing cash and two mobile phones
^ of the make Zen Company and Samsung Model no.350 as well as
" Altabarak Haq of his black coloured .purse containing Rs. 1,000/- and
documents and a mobile phone of the make Intex Aqua Y-4 golden
colour with Vodafone SIM bearing :No.9643388671 who were both
passengers of an auto rickshaw driven by Shahrukh by using deadly
weapons i.e. ustara and knives and were thus charged with having
committed offences punishable:. -Me^^ 392/34/397 of the
Indian Penal Code, 1860. ; /
14. The accused persons afe'%idrp^^^ per the Trial Court
Record to have pleaded not guilty to all charges framed. The Trial
^ Court Record indicates that the prosecution .evidence was closed on
27.04.2019 after examination of 14 prosecution witnesses.
15. The statements under Section 313 of the Cr.P.C., 1973 of the
three accused persons i.e. the appellants herein were recorded on
03.07.2019. The accused/ appellants herein named Javed and Rahis
sought to lead defence evidence and one defence witness named Smt.
Zubeda was produced on 21.08.2019 which witness was apparently
produced by the accused/appellant herein Javed, she being stated to be
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his neighbour and had deposed that on 14.06.2016, at about 4.00- 5.00
pm, the police officials came to the house of the accused Javed and
had taken him with them. The defence evidence was closed on
30.09.2019 at the request of the counsel for the accused persons.
16. Vide order dated 19.02.2020 of the Trial Court, it is indicated
that the amended charge was framed as there was no reference in the
charge initially framed on 23.11.2016 qua the witness Altabarak Haq.
The Amicus Curiae for all the accused persons Mr. Mohd. Hasan on
19.02.2020 submitted that he did not want to examine any witness
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after framing of the amended charge. .
17. The Trial Court Record and, the impugned judgment dated
22.02.2020 indicate to the effect that the' factum of the incident of
robbery on 03.06.2016 is corroborated. in relation to all material
particulars through the statements 6f Bliagat Singh, the complainant of
the FIR No.244/2016, PS Welconie examined as PW-1, Sh. Altabarak
Haq examined as PW-3, the other passenger in the TSR bearing No.
DL IRQ 1537 driven by PW-5 AlbHdrSh^ S/o Jameel Akhtar.
PROSECUTION EVIDENCE LED
18. However, whereas, as per=The , FIR, the complainant Bhagat
Singh had stated that one boy had sat on the rear seat with him and
one boy had sat on the left side of the driver and one boy had sat on
the right side of the driver and had boarded the TSR a little ahead of
the Moujpur Red-Light and through his deposition on oath as PW-1
through his examination in chief, Bhagat Singh had stated that one of
the boys sat with the driver of the TSR and the other two boys sat at
CRL.A. 344/2020, CRL.A. 567/2020, CRL.A. 568/2020 Page 10 of 38
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the back, one on his side and the other on the side of the other
passenger already seated in the TSR.
19. As per the statement made by the complainant, Bhagat Singh
which forms the basis of the FIR, the boy seated on the right side of
the driver and as per the deposition on oath of Bhagat Singh, the boy
seated along with the driver had got stopped the TSR. After the TSR
stopped as per the FIR, the boy seated on the left of the complainant
Bhagat Singh who was short in height, fat and of dark complexion,
took out the ustara from his pocket and showed the same to both the
complainant and the other passenger and apprehended them and the
boy seated on the left of the driver pf the TSR was wearing a blue
colour T-Shirt had robbed the coihplairiant of his cash, ATM Card,
mobile phone from the rear pocket of ,the pant of the complainant and
the Samsung phone from the front pocket of the pant of the
complainant, and the complairiant-Bhagat Singh through his
deposition on oath has stated that after: th^-TSR had been got stopped
by the boys sitting along with the"^ driyet, M the three boys put knives
on them and had taken out his purse with its contents including his
Aadhar Card, PAN Card, Voter I-Cardj driying licence, SBI ATM
Card, other documents and cash of Rs.6,000/- and his two mobiles and
had run away. The complainant in his deposition on oath had stated
that he was illiterate that he did not accompany to the place of incident
and that after lodging of the FIR, he left for the native place and that
he had subsequently gone to the police station when he was called by
the police officials who told him of the recovery of his mobile phone
and on reaching there, he identified his mobile phone of the make
CRL.A. 344/2020, CRL.A. 567/2020, CRL.A. 568/2020 Page 11 of 38
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Samsung. Inter alia he had stated that he could not identify the auto
driver at it was dark and also stated that none of the accused persons
who were present in Court had committed the robbery.
20. The complainant examined as PW-1 on being cross examined
by the learned APP for the State admitted that out of the three boys,
the boy who asked the auto driver to stop the auto on side was thin,
tall and of sanwala (dark) complexion, but the complainant PW-1
denied that the boy seated on his left side was of short height, fatty
and of a dark complexion and stated that he could not recollect the
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stature and complexion of the third boy. Even on being cross
examined by the learned APP for the State, this witness i.e. the
complainant denied categorically that the three accused were the
persons who had committed the, robbery with him and denied that he
was deliberately not identifying the accused persons having been won
over by their family members, .i He hb^^ denied that the mobile
phone of the make Samsung With :.the;i :Hual^ bearing IMEI Nos.
354212/07/341157/4 and 354213/0fy34ff67/2 exhibit PI did not
belong to him and rather stated that it belonged to him.
21. The other passenger in the TSR i.e. Altabarak Haq examined as
PW-3 stated that the person seated on the right side of the driver took
out the ustara/knife and put it on his neck and asked him to hand over
his valuable articles and identified the accused/ appellant herein
named Rahis as being that boy who had robbed him of his mobile
phone and purse on the point of an ustara/knife and this witness
identified the other two accused persons present in Court as being
those who had caught hold of the co-passenger and robbed him of his
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mobile phone and purse. PW-3, Altabarak Haq just as was stated by
PW-1, Bhagat Singh stated that all the three accused had run away
after committing the robbery but that they had overpowered the auto
driver. This witness Altabarak Haq i.e. PW-3 had also stated that after
some days, he had gone to the police station to enquire whether his
mobile phone had been recovered or not and on 14.06.2016 he joined
the investigation with SI Brij Mohan and other police officials and
started searching for the accused persons and when they reached near
the Tent Wala School, he saw that all the three accused persons were
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present there and on his identification they were overpowered and an
ustara/knife was recovered from Rahis. and a mobile phone of the
make Samsung was recovered fr om :th6 possession of the accused
Jakir @ Chuhi but nothing was recovered fr om the accused Javed.
This witness categorically denied that he was a tutored witness and
denied that he had signed any blai^ papefs and denied that no ustara
was recovered fr om the accused Rahis. > T T:; ;
22. The driver of the auto-riQkslia%fexaih as PW-5, Shahrukh
identified the accused Jakir @ Chuhi as being the person who was
seated on his left side and Javed as being fhefperson who was seated
on the rear seat. He stated that these two persons, one sitting on his
left and one sitting behind him had put a knife on his back. He
however stated that he could not see the face of the third boy and thus
he was unable to identify him. On being cross-examined by the
learned APP for the State, this witness, PW-5, the auto driver however
identified the accused/ appellant named Rahis as being the person
CRL.A. 344/2020, CRL.A. 567/2020, CRL.A. 568/2020 Page 13 of 38
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sitting on his right-hand side who had boarded the auto and had
robbed the passengers.
23. Written submissions were submitted on behalf of the
accused/appellants Rahis, Javed & Jakir @ Chuhi.
CONTENTIONS OF THE APPELLANTS
24. On behalf of the appellant Rahis from whom the ustara is stated
to have recovered and who as per the prosecution version is the person
who utilized the ustara and pointed it towards both the complainant
Bhagat Singh and the co-passenger Altabarak Haq calling upon to
%
hand over whatever goods were in their possession. It was submitted
on behalf of the said appellant-Rahis wide written submissions dated
25.09.2020 to the effect that the conviction.of the appellant could not
be sustained, in as much as, the complainant had not identified the said
appellant and it was only the other'two public witnesses i.e. Altabarak
Haq, the other passenger of the TSR and the TSR driver Mohd.
Shahrukh who had identified the appellaiit iand that the factum that
Bhagat Singh, the complainant" none of the accused
persons were present and had not identified any of the accused, makes
the alleged recovery of the fi -om the iappellant and any other
role attributed to him, wholly circumspect. It has been submitted on
behalf of the appellant-Rahis that even though PW-5 identified the
appellant, it was only on being cross examined by the learned APP for
the State that he was so identified by the driver of the TSR in which
the complainant and the co-passenger were robbed and that this makes
the entire testimony of the prosecution doubtful. The said appellant
had further submitted that the discrepancies in the prosecution
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witnesses are wholly fatal in the instant case whereas as per the
prosecution version PW-1, 3 & 5 were present in the TSR when they
were robbed and their statements were recorded by the Investigating
Agency, though the statements of all the witnesses were verbatim
similar, but the statements made before the Court were at much
variance with each other in relation to all material particulars with it
having been submitted that whereas as per their statements, the person
who was sitting on the left side of Bhagat Singh on the back seat of
the TSR had taken out the ustara and whilst showing the same, they
were robbed and the other two accused persons were overpowered
during the course of the robbery, howeyer, in his deposition on oath
before the Court, PW-1 stated that all The three accused persons put a
knife upon them and on the other hand, PW-3 Altabaraq Haq says that
the boy who was sitting on the right /side of the TSR took out
ustara/knife and put the same on his heck,while PW-5 Shahrukh says
that one who sitting on his left ahd ppe %hdT^as sitting behind put the
knife on his neck. The said appdfaht fo hil^s^^ that the statements
of all the three witnesses are read together then it can easily be
9
presumed that they were lying and thatThes:e;.|bcused persons had not
committed any offence and thus the witnesses were not able to
ascertain their roles exactly and were not sure whether the ustara or
the knife was used by the assailants.
25. The appellant further submits that all the accused persons were
lifted fi -om their respective houses and falsely implicated in the present
case pursuant to the initial statement of the public witnesses and a call
to number 100 was made by the employer of the complainant but in
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that call there was no mention of use of any weapon and that even in
the PGR form exhibited as Ex.PW12/A, there is no mention of the
same. Inter alia, it has been submitted on behalf of the said appellant
that the recoveries in the instant case are planted as at the time of
robbery no IME or ownership proof was given by the complainant to
the Investigation Officer and the mobile phone was working even after
the robbery as per the CDR of the mobile phone of the complainant
exhibited as Ex.PW-9/A and thus, the possibility of the mobile phone
being planted by the police later on could not be ruled out. It has been
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submitted on behalf of the said appellant that despite the availability
of public persons no sincere effort was made by the Investigation
Officer to join the public persons at the: time of search, seizure and
an-est of the accused persons from the public place and as per the
prosecution story all the documents were;prepared by SI Brij Mohan
but the handwriting and ink of .the pens;, were different which has
suggested that the documents: w^e spfep^ed by different police
officials, and that the signature "of' Altabaf^^^ Haq was not present on
the seizure memo & sketch of the recovered Ustara. Inter alia, it was
9
submitted on behalf of the said appellant that whereas PW-7 ASI
Krishan Pal had stated that the seal of BM was affixed and the ustara
was having blood on it, was recovered. It was further submitted on
behalf of the said appellant that there was no injury sustained by the
complainant and the other co-passenger nor by the auto driver.
26. A contention was raised on behalf of the appellant Rahis that
the ustara is not a deadly weapon in relation to which it is essential to
observe that the verdict of this Court in "Abhishek @ Pritam Vs. State
CRL.A. 344/2020, CRL.A. 567/2020, CRL.A. 568/2020 Page 16 of 38
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b)T
of NCT of Delhi" CRL.A.388/2012 dated 12.02.2015 categorically
makes mention of the ustara falling within the ambit of a deadly
weapon which aspect is also so delineated in "Wasim Pahadi Vs.
State" CRL.A.588/2012 reported mILR (2013) VIDELHI4269.
27. On behalf of the appellant Javed, the appellant of CRL.A.
567/2020, it has been submitted that the complainant had not
supported the prosecution version having not identified the accused, in
as much as, the complainant had not identified the accused in Court
and had denied identifying them earlier before the police and also
%
denied that the other co-passenger PW-3 was robbed. It has been
submitted on behalf of the said appellant that there are major
discrepancies in the testimonies, of the:;eye witnesses in relation to the
role of the accused persons and the discrepancies submitted are to the
I
effect:- ' /
"a. With respect to the positionkof the three accused:
I
As per the Complainant/PWrl, q)(fheAhree boys who hoarded
the TSR, one of themlsqt along^wii^Mhe driver, while the other
two hoys sat on his side and on the other side of PW-3.
I
As per PW-3, two hoys sat on the left and right of the TSR
driver, and the third hoy sat on the rear seat "on the side of a
passenger". ' "
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As per PW-3, two hoys sat on his left and right side, while one
hoy sat on the rear seat along with the two passengers.
b. With respect to the person who wielded the weapon:
I
As per the Complainant/PW-1, "all three hoys put knives upon
us ".
I
As per PW-3, the hoy who was sitting on the right side of the
TSR driver put ustara/ knife on his neck. He identified said hoy
as Accused No. 3 Rahees.
CRL.A.344/2020,CRL.A. 567/2020, CRL.A. 568/2020 ' Page 17 of 38
2022:DHC:5983
I
As per PW-5, the boy sitting on his left and one sitting behind
put a knife on his back. He identified them as Jakir and the
Appellant."
28. Inter alia, it was submitted on behalf of the said appellant that
the observations of the learned Trial Court that the statements of
witnesses PW-3 & PW-5 were of "sterling quality" were wholly
erroneous. On behalf of the appellant-Javed, it has been further
submitted that there was nothing recovered from him and that the.
appellant had been picked up by the police from his house on
%
14.06.2016.
29. A further submission made on-behalf of the appellant-Javed was
to the effect that the person who had used the deadly weapon can only
be punished under Section 397 of the Indian Penal Code, 1860 and
reliance in relation thereto was pilaced on the observations in
paragraph 19 of the verdict of the Hoh| bio Supreme Court in "Dilawar
Singh V. State of Delhi*f(2007f f^ S€C 641 which reads to the
effect:- A-'L' '
"19. The essential ingredients of Section 397 IPC are as
follows:
1. Accused committed robbery, f
2. While committing robbery or dacoity (i) accused used
deadly weapon (11) to cause grievous hurt to any person
(Hi) attempted to cause death or grievous hurt to any
person.
3. "Offender" refers to only culprit who actually used
deadly weapon. When only one has used the deadly
weapon, others cannot be awarded the minimum
punishment It only envisages the individual liability and
not any constructive liability. Section 397 IPC is attracted
only against the particular accused who uses the deadly
CRL.A. 344/2020, CRL.A. 567/2020, CRL.A. 568/2020 Page 18 of 38
2022:DHC:5983
Ml
weapon or does any of the acts mentioned in the provision.
But other accused are not vicariously liable under that
Section for acts of co-accused."
30. It was further submitted on behalf of the said appellant that the
verdicts of this Court in "Dinesh Rat v. State" 2013 SCC OnLine Del
3503 and ''Tej Singh @ Goldy v. State" 2017 SCC OnLine Del 7236
also adhered to the ratio in Dilawar Singh (supra).
31. On behalf of the accused/appellant Jakir @ Chuhi, the appellant
of CRL.A. 568/2020, it was inter alia submitted that there are material
t
contradictions in the eye witnesses ..accounts, reiterating thus the
contention raised on behalf of the-other two appellants named Javed
i
and Rahis submitting to the effect that-PW-1 has not been able to
identify the appellant in Court and states jthat only one boy sat at the
side of the Auto driver and two were sittipg at the back and that PW-1
also stated merely that one ustara shown, that PW-3 states that
Rahees showed him an L/ytora aifd^ valuables and that the
alleged Ustara was also recoverpdtftpm M only. It was further
submitted on behalf of the said appellant Jakir @ Chuhi that PW-5, the
t
Auto Driver stated that the Appellant was sittihg on his right hand side
and that at no point does he state that the Appellant had taken out a
knife in the entire incident. Inter alia, it was submitted that PW-5 also
mentions a knife and does not mention an Ustara and that the ustara is
not a deadly weapon, in as much as, the ustara does not have a blade
and that the ustara is a common tool used by barbers and is
completely harmless unless a blade exists.
CRL.A.344/2020,CRL.A. 567/2020, CRL.A. 568/2020 Page 19 of 38
2022:DHC:5983
32. Inter alia, the said appellant submits that the prosecution had
failed to show that the mobile phone recovered from him was the same
mobile phone as was allegedly robbed from PW-1. It has thus been
submitted on behalf of the said appellant adopting the submissions
made on behalf of the other two accused/appellants i.e. Rahis, the
appellant of CRL.A. 344/2020 and Javed, the appellant of CRL.A.
567/2020 that in view of material contradictions in the testimonies of
the prosecution witnesses as well as the material on record, and the
impugned judgment dated 22.02.2020 and the impugned order on
t
sentence dated 28.02.2020, have essentially to be set aside.
CONTENTIONS OF THE ST A TE
33. On behalf of the State, it was contended that the testimonies of
the prosecution witnesses were consistent in relation to all the material
particulars and that there exists no ground whatsoever for the
modification of the impugned judgment dated 22.02.2020, nor for the
modification of the impugned order pn sentence dated 28.02.2020.
34. On a consideration of the entire available record and rival pleas
«
addressed on behalf of either side, it is essential to observe that as held
hereinabove vide paragraph 17, the testimonies of all prosecution
witnesses examined in the matter are consistent in relation to all
material particulars qua the occurrence of robbery having taken place
on 03.06.2016 at the 66 Foota Road near the Idgah Pulia, Welcome
Delhi at about 11:00 PM and of there being the user of an ustara for
the commission of the robbery from the passengers in the TSR bearing
No. DL IRQ 1537, which was done at the point of an ustara.
CRL.A. 344/2020, CRL.A. 567/2020, CRL.A. 568/2020 Page 20 of 38
2022:DHC:5983
35. As regards the contention raised on behalf of the
accused/appellants that no public witness had joined the proceedings
on the date 14.06.2016 when the accused/appellants were apprehended
by the police personnel at the pointing out of PW-3 Altabarak Haq, it
is essential to observe that the Investigation Officer of the case SI Brij
Mohan, PW-14 has categorically stated that he had tried to join the
public witnesses but none agreed. The factum that members of the
public do not join investigations, is not unknown and the same cannot
detract from the veracity of the prosecution version which is
%
corroborated through the statements of PW-3 i.e. Altabarak Haq and
the Investigation Officer of the case SI Brij Mohan, as well as the
testimony of ASI Kishan Pal,.PW-2 then posted as HC on 14.06.2016,
PS Welcome when the .thr§e accused/appellants herein were
I
apprehended on the identification and pointing out of Altabarak Haq
as being the three persons who had robbed/him.
36. As regards the contentipn ,rql%d on behalf of the
accused/appellants that the compMnahit md not identify the accused
persons, the observations of the learned Trial Court to the effect that
9
PW-3 Altabarak Haq, the co-passenger & P"?^w5 Shahrukh, the TSR
driver in whose TSR the incident of robbery had occurred had deposed
about the roles of the accused in the commission of the offence in a
cogent manner, have essentially to be accepted qua the observations
that the said witnesses have supported the prosecution version on all
material aspects.
37. Though, there are undoubtedly discrepancies in the testimonies
of PW-1, PW-3 & PW-5 inter se, the testimony of PW-3 as already
CRL.A. 344/2020, CRL.A. 567/2020, CRL.A. 568/2020 Page 21 of 38
2022:DHC:5983
5
observed elsewhere hereinabove brings forth the prosecution version,
wholly in relation to all material particulars.
38. The observations of the learned Trial Court which take into
account the testimonies of all the prosecution witnesses detailed as
under:-
24. As per prosecution case, PW-1 Bhagat Singh and PW-
3 Altabarak Haq both boarded the TSR of PW-5 Shahrukh
for going to Seelampur and on the way all the three
accused persons also boarded the said auto rickshaw and
robbed the PW-1 & PW-3 while using ustara/knives. PW-3
Altabrak Haq ha deposed the entire incident in cogent
manner and pointed out specific role of each of the
accused. As per testimony of PW-3 Altabarak Haq,
accused Rahis robbed his. mobile phone and purse on the
point of Ustar a/knife and other two'accused i-c. Javed and
Jakir caught hold co-paSsenger and robbed his mobile
phone and purse. PW-3 deposed that out of the three boys,
two boys sat on left and right side of TSR driver while third
boy sat on the rear seat of the auto with passengers. PW-5
Shahrukh who was driv.mgl. aUtQ iyickshaw has also
corroborated the veksion cf^PW^fi while pointing out
towards accused Jakir and Javed as the persons who were
sitting on his left side and on rear seat. He further
confirmed that accused Rahis was alsofitting on his right
hand side in the auto, PW-1 Bhagat Singh on whose
statement present case FIR was registered although
corroborated the case of prosecution on material aspects
but he did not support the case of prosecution regarding
description of accused persons as well as their identity, Ld.
Amicus curie cross-examined PW-3 & PW-5 at a length
but nothing which may diminish the evidentiary value of
%
their testimonies came on record. Their testimonies appear
to be reliable and trustworthy and there is no reason to
disbelieve the same. Reliance is placed upon the judgment
of Hon'ble Supreme Court in AIR 2012 SC 3157, Rat
CRL.A. 344/2020, CRL.A. 567/2020, CRL.A. 568/2020 Page 22 of 38
2022:DHC:5983
b3
Sandeep @ Deepu vs State of NCT of Delhi with Hart
Singh V State of NCT of Delhi, wherein while laying down
the quality of a witness, Hon'hle Court held as under:
"Sterling witness' should be of a very high
quality and caliber whose version should,
therefore, be unassailable. The Court
considering the version of such witness should
be in a position to accept it for its face value
without hesitation. To test the quality of such a
witness, the status of the witness would be
immaterial and what would be more relevant
would be the consistency of the statement right
from the time when the witness makes the
%
initial statement and ultimately before the
Court...The witness should be in a position to
withstand the cross examination of any length
and strenuous it may be and under no
circumstance should give room for any doubt
as to the factum of occurrence, the person
involved, as well as, tlie sequence of it. It
should be akin to the test applied in the case of
circumstantial evideiicd Where there should not
be any missing link fin chain of the
circumstances, to hpld thf accused guilty of the
offence alleged against him To be more
precise, the version of the said witness on the
core spectrum of the crime, should remain
$
intact while all other attendant material
namely, oral documentary and material objects
should match the said version in material
particulars in order to enable the court trying
the offence to rely on the core version to sieve."
PW-3 & PW-5 both have specifically deposed about
the individual role of all the accused in the commission of
offence in a cogent manner. PW-3 & PW-5 appear to be a
CRL.A. 344/2020, CRL.A. 567/2020, CRL.A. 568/2020 Page 23 of 38
2022:DHC:5983
I?
witness pf very high quality on the basis of whose
testimony alone conviction can he based.
25. First contention of Ld. Amicus curie was that
complainant who made a call at 100 number has not
supported the case ofprosecution. In this regard perusal of
testimony of prosecution witnesses i.e. PW-1 Bhagat Singh,
PW-3 Altabarak Haq and PW-5 Shahrukh show that all
three witnesses have supported the case of prosecution on
material aspects. Although, complainant has not identified
the accused persons, however, other two witnesses have
explained the role of each of the accused during the
incident as well as identified them. Complainant has
deposed that after the incident he alongwith co-passenger
and driver went to Welcome, where he called his employer
and call at 100 number was made by his employer. This
fact is also corroborated, by PW-3. & PW-5 that after the
incident PW-5 took them near: the house of relative of
complainant where he. called his employer and made call
at 100 number. Complainant has also confirmed in his
cross-examination that name of co-passenger was revealed
as Altabarak Haq S/o. Mdl Sharif Rio. Lakhimpur Khiri,
U.P. His presence at the spdtl'if also, corroborated by CDR
of his mobile phone Ex.liW9/Wcahd Cell Location
Ex.PW9/DA. When PW-3: jLUafdrak Haq, 'who was also
%
robbed in the incident and PW-5 Shahrukh the TR driver in
whose TSR incident of robbery occurred supported the
case of prosecution and identified,: qlT.I^ three accused,
the case of prosecution cdnhot be: thrown away only due to
non-identification of accused persons by complainant.
$
26. Ld. Amicus Curie for accused persons further argued
that there is no evidence on record that PW-3 came from
Amroha to Delhi on the day of incident or that he boarded
the TSR for going to Seelampur. In this regard
complainant Bhagat Singh has also admitted that the name
of co-passenger who boarded TSR with him at the time of
incident was revealed as Altabarak Haq. PW-3 further
CRL.A. 344/2020, CRL.A. 567/2020, CRL.A. 568/2020 Page 24 of 38
2022:DHC:5983
clarified in this regard that he came from Amroha on a
private bus and ticket was also taken by the conductor and
that he de-boarded the bus at Anand Vihar. When as per
PW-3 his ticket was also taken back by the conductor of
the private bus there was no occasion for 10 to seize the
said ticket.
28. PW-3 Altabarak Haq & PW-5 Shahrukh have
specifically deposed about the role of each of the accused
and that accused Rahis robbed PW-3 Altabarak Haq while
using Ustara while other two accused robbed the co-
passenger. PW-5 Shahrukh specifically pointed out
towards accused Jakir & Javed as the persons who put
knives on his back. DW-1 Smt. Jubeda has admitted in her
cross-examination that she did not try . to know as to why
accused was taken by police. ^ It appears that she has
deposed to save accused Javed being her neighbour.
%
have essentially to be taken into account. ,
39. The testimonies thus, ofthe prpsepution witnesses as observed
hereinabove undoubtedly bring .hart^^ of the offence
punishable under Sections x392y34i^^'M Penal Code, 1860
against all the three accused/appeliantsV- '
40. As regards the commission of the offence punishable under
t
Section 397 of the Indian Penal Godcj'1860^ though undoubtedly, it
has been detailed and observed by the learned Trial Court that all the
three accused persons i.e. the appellants herein in furtherance of their
common intention robbed PW-3 Altabarak Haq when they hired the
auto rickshaw of PW-5 Shahrukh to go to Seelampur and used ustara
and knives whilst committing a robbery, the factum of knives having
been utilized is nowhere detailed in the FIR;
CRL.A. 344/2020, CRL.A. 567/2020, CRL.A. 568/2020 Page 25 of 38
2022:DHC:5983
41. However, PW-1, the complainant-Bhagat Singh who as per the
FIR had stated that the boy seated on his left on the rear seat had taken
out the ustara and pointed it towards him and the co-passenger calling
upon them to hand over all their goods and in the meantime the other
two boys seated with the driver came and apprehended them. The said
witness in his testimony on oath however, stated that when the tempo
reached under the Metro Station near Eidgah Pulia at about 10.30 -
11.00 pm, thereafter the boy who was sitting along with the driver, got
stopped the TSR and thereafter all three boys put knives upon them
\
and took out his purse and his two mobiles of make Zen company and
Samsung Company and according to the complainant, in his purse
there was an Adhar card, PAN card, Moter I- card, his driving license,
SBI ATM card, some documents and cash Rs.6000/- and that the
Samsung Mobile phone was of No;97,17821599, while his other phone
was without a SIM card and after xdmmitting robbery, all the three
accused ran away from the:3p6t. ^ i i
42. The witness PW-3 Altabafak -^ relation to the incident
stated that when the auto reached at the red light Welcome, three boys
had boarded the TSR and that but xfrthe , three boys, two boys sat
inside the tempo on the left and right side of the TSR driver and the
third boy sat on the rear seat on the side of a passenger. He has further
stated that when the said TSR reached Jafrabad pulia near the metro
construction work, the TSR driver was asked by one boy to stop the
same at about 10.00 pm and as the TSR driver stopped the TSR, the
boy who was sitting on the right side of the TSR driver suddenly took
out one ustara/knife and put the same on his neck and asked to
CRLA 344/2020, CRL.A. 567/2020, CRL.A. 568/2020 Page 26 of 38
2022:DHC:5983
handover valuable articles and that the said boy took out his mobile
phone make of Intex in golden color and his wallet containing his
card, Adhar card, visiting card and Rs.lOOO/- forcefully. The said boy
i.e. the accused/appellant Rahis, the appellant of CRL.A. 344/2020
who was present in Court, was pointed out by the witness as being the
person who had robbed his mobile phone and purse on the point of
ustara/knife. The said witness PW-3 had pointed out the remaining
two accused persons (present in Court) and stated that the said both
accused persons caught hold of the co-passenger and robbed his
t
mobile phone and wallet and thereafter, all three accused persons fled
away from the spot but they PW-1 arid PW-3 overpowered the auto
driver PW-5.
43. As per the testimony of PW-3. Altabarak Haq thus, the
ustara/knife are apparently interchangeable words used for the weapon
utilized. This witness also identified 4he. W5tora Ex.P2 as being the
same recovered from the :accused.. Rahis,^ / appellant of CRL.A.
344/2020. ' •
44. PW-5, Shahrukh, the auto driver in his deposition on oath has
t
stated to the effect that on 03.06.2016,,hp was driving his Auto on the
route of Gagan Cinema to Seelampur and on that day, at about 10.35
pm, two passengers boarded his auto and they were alighted at Shiv
Mandir and from Shiv Mandir two passengers boarded his Auto and
three boys boarded from the Red light of Moujpur and two of them sat
on his left and right side while one boy sat on the rear seat of the auto
alongwith two other passengers. He has further stated that at about 11
pm, when his auto reached near Tent Wala School, where construction
CRL.A. 344/2020, CRL.A. 567/2020, CRL.A. 568/2020 Page 27 of 38
2022:DHC:5983
S8
work of Metro Station was going on and there was darkness, two of
the three boys, who had boarded his auto from the Red light of
Moujpur, asked him to stop the auto at a side and stated that two of
them i.e. one who was sitting on his left and one who was sitting
behind, put a knife on his back and that two of them were also present
in the Court. This witness also pointed out towards the accused Jakir
and Javed as the person, who were sitting on his left side and on the
rear seat and has stated that due to fear, he could not see the face of
the third boy and thus he was unable to identify him in the Court and
%
has further stated that those boys, robbed the other two passengers
whilst showing knife and asked therni to hand over their belongings
and then they called the police by making; a call at 100 number. This
witness has further stated that he told, those passengers that he would
remain with them and that they informed the police that Rs.6,000/-
and two mobile phones were :; robbed ft om one passenger while
Rs. 1,000/- and one mobile phond: wag roiB.ledifrom the other passenger
and after robbing, all the three aceuseidrrarf
45. This witness i.e. PW-5 on being cross examined by the learned
APP for the State when the . attention^:.of this witness was drawn
towards the accused Rahees further stated that the accused Rahees
present in the Court, was also sitting on his right hand side in the Auto
and was one of those three boys, who boarded his Auto and robbed the
passengers and has stated that he has correctly identified the accused
Rahees.
46. It is essential to observe that the incriminating evidence put to
the three accused in their statements under Section 313 of the Cr.P.C.,
CRL.A. 344/2020, CRL.A. 567/2020, CRL.A. 568/2020 Page 28 of 38
2022:DHC:5983
1973 which were all recorded on 03.07.2019 in relation to the user of
the knife and ustara details the same through question nos. 3 & 4 qua
the appellant Javed, which read to the effect:-
"Q3. It is in evidence against you that when at about 11.00
pm auto rickshaw reached near tent wala school where
construction work of metro station was going on, you as
well as your co-accused Jakirput knife on the back of PW-
5 Shahrukh and asked him to stop the auto rickshaw. What
have you to say?
Q4. It is in evidence against you that your co-accused
Rahis took out one ustara/knife and put the same on the
neck of PW-3 Altabarak Haqand robbed his mobile phone,
of Intex of golden colour and his wallet containing his
Card, Aadhar Card, visiting card dhdiRs. 1000/- forcefully.
What have you to say? : , i :
%
and qua the accused Jakir @ Ghuhi question nos.3 & 4 read to the
effect:-
"Q3. It is in evidence agamsif yodx^ at about 11.00
pm auto rickshaw redcfiAp§apf school where
construction work of metro station was going on, you as
well as your co-accused Javed put knife on the back of PW-
5 Shahrukh and asked him to stop the guto rickshaw. What
have you to say? - 7 :
I
Q4. It is in evidence against you that your co-accused Rahis
took out one ustara/knife and put the same on the neck of
PW-3 Altabarak Haq and robbed his mobile phone, of Intex
of golden colour and his wallet containing his Card, Aadhar
Card, visiting card and Rs.lOOO/- forcefully. What have you
to say?
Page 29 of 38
CRL.A. 344/2020, CRL.A. 567/2020, CRL.A. 568/2020
2022:DHC:5983
V
6
47. On behalf of the accused/ appellants i.e. Javed, the appellant of
CRL.A. 567/2020 and Jakir @ Chuhi, the appellant of CRL.A.
568/2020 , it was contended whilst placing reliance on the verdict of
the Hon'ble Supreme Court in "Dilawar Singh v. State of Delhi"
(2007) 12 see 641 and the verdicts of this Court in "Dinesh Rai v.
State" 2013 See OnLine Del 3503 and "Tej Singh @ Goldy v. State"
2017 see OnLine Del 7236 that it is only the offender who uses the
deadly weapon who can be awarded the minimum punishment of
seven (7) years whilst invoking the provision of Section 397 of the
%
Indian Penal Code, 1860 and no vicarious liability in relation thereto
can be attributed to them, in as rnuch as, the essential ingredients of
Section 397 of the Indian Penal Code; 1860 read as under:-
"3P7. 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 tofcfiffldksgn, the imprisonment
with which such cf^jiderjishall hdpm shall not be
'.i.'.y'
less than sevenyears."yf ' ''- ''
and are as observed in Dilawar Singh (supra) in paragraph 19
I
reproduced elsewhere hereinabove^witb it -tiaving been observed by
the Hon'ble Supreme Court therein that as noted in "Phool Kumar Vs.
Delhi Administration" (1975) 1 SCC 797, the term offender under
Section 397 of the Indian Penal Code, 1860 is confined to be the
offender who uses any deadly weapon and the observations of the
Hon'ble Supreme Court in Dilawar Singh (supra) vide paragraph 20
thereof, which reads to the effect:-
CRL.A. 344/2020, CRL.A. 567/2020, CRL.A. 568/2020 Page 30 of 38
2022:DHC:5983
L\
"20. As noted by this Court in Phool Kumar v. Delhi
Admn. [(1975) 1 SCC 797 : 1975 SCC (Cri) 336 : AIR
1975 SC 905] the term "offender" under Section 397
IPG is confined to the offender who uses any deadly
weapon. Use of deadly weapon by one offender at the
time of committing robbery cannot attract Section 397
IPG for the imposition of minimum punishment on
another offender who had not used any deadly weapon.
There is distinction between "uses" as used in Sections
397 IPG and 398 IPG. Section 397 IPG connotes
something more than merely being armed with deadly
weapon.",
\
has essentially to be borne in mind.
48. The learned Trial Court has undoubtedly observed to the effect
that all the three accused in furtherance of their common intention had
robbed PW-3 Altabarak Haq when he hired the auto rickshaw of PW-5
Shahrukh to go to Seelampur and used an ustara and knives whilst
committing a robbery and tliey ,,were thus convicted for the
commission of the offence punishable: uhder Sections 392/34 of the
Indian Penal Code, 1860 read Avithp/Sectm of the Indian Penal
Code, 1860.
t
49. The deposition of PW-3 Altabarak Haq, the co-passenger who
has corroborated the prosecution vdrsidh as set forth through the FIR
in toto has been adverted to hereinabove and his deposition puts forth
that the boy who was sitting on the right side of the TSR driver
suddenly took out one ustara/knife and put the same on the neck of
Altabarak Haq and asked to hand over the valuable articles and the
said boy took out his mobile phone of the make of Intex in golden
colour and his purse containing his ID Card, Aadhar Card, Visiting
CRLA, 344/2020, CRL.A. 567/2020, CRL.A. 568/2020 Page 31 of 38
2022:DHC:5983
(o
Card and a sum of Rs. 1,000/- forcibly and that the said accused Rahis
was identified by Altabarak Haq as being the boy who robbed his
mobile phone and purse at the pointing of ustara/knife and Altabarak
Haq pointed out to the remaining two accused persons namely Javed
and Jakir @ Chuhi and stated that those two accused persons had
caught hold of the co-passenger and robbed his mobile phone and
purse. In his deposition dated 18.05.2018, Altabarak Haq does not
make mention of user of any knife/ustara by Javed, the appellant of
CRL.A. 567/2020 and Jakir @ Chuhi, the appellant of CRL.A.
%
568/2020.
50. As observed by the Hon'ble Supreme in ''Ram Ratan Vs. State
of Madhya Pradesh" 2021 SCC OnLirie SC 1279 whilst making a
reference to the observations of the Hon'ble Supreme Court in
"Ganesan Vs. State Rep. by Station: House Officer" 2021 SCC
OnLlne SC 1023, it has been obsefyed'by the Hon'ble Supreme Court
vide paragraphs 16 & 17 mRdm^Rqtpnfi^i^f^ to the effect:-
"16. In the decision of Gdpjdajyfpiifra) referred to by the
learned counsel for the appellant, the above noted
decisions of this Court has been referred and this Court
has held as hereunder:-^ . ..; . , ^ ^ .
t
"12.7. Thus, as per the law laid down by this
Court in the aforesaid two decisions the term
'offender' under Section 397 IPC is confined to
the 'offender' who uses any deadly weapon and
use of deadly weapon by one offender at the time
of committing robbery cannot attract Section 397
IPC for the imposition of minimum punishment on
another offender who has not used any deadly
weapon. Even there is distinction and difference
CRL.A. 344/2020, CRL.A. 567/2020, CRL.A. 568/2020 Page 32 of 38
2022:DHC:5983
p
between Section 397 and Section 398 IPC. The
word used in Section 397 IPC is 'uses' any deadly
weapon and the word used in Section 398 IPC is
'offender is armed with any deadly weapon'.
Therefore, for the purpose of attracting Section
397 IPC the 'offender' who 'uses' any deadly
weapon Section 397 IPC shall be attracted.
In light of the above observations and the
law laid down by this Court in the aforesaid two
decisions the case on behalf of the accused in the
present appeals is required to be considered.
Even as per the case of the prosecution and even
considering the evidence on record it can be seen
that the present accused A1 and A3 are not
alleged to have used any weapon. The allegation
of use of any weapon was against Benny and
Prabhakaran. Therefore, in absence of any
allegations of use of any ^deadly weapon by the
appellants herein-Accused Nos. 1 and 3 Section
397 IPC shall not be attracted and to that extent
the Learned Counsel appearing on behalf of the
appellants-accused are right in submitting that
they ought not to hPvei been, convicted for the
offence punishable uhde f SectW^^^ IPC. "
%
17. From the position of law as enunciated by this Court
and noted above, firstly, it is clear that the use of the
weapon to constitute the offence, under Section 397 IPC
does not require that the 'offender' should actually fi re
from the fi rearm or actually stab if it is a knife or a dagger
but the mere exhibition of the same, brandishing or
holding it openly to threaten and create fear or
apprehension in the mind of the victim is sufficient. The
other aspect is that if the charge of committing the offence
t
is alleged against all the accused and only one among the
'offenders' had used the firearm or deadly weapon, only
such of the 'offender' who has used the fi rearm or deadly
CRL.A. 344/2020, CRL.A. 567/2020, CRL.A. 568/2020 Page 33 of 38
2022:DHC:5983
weapon alone would be liable to be charged under Section
397IPC."
51. It is also essential to observe that the Hon'ble Supreme Court in
Ram Ratan (supra) has further observed vide paragraphs 18 & 19 to
the effect:-
Though the above would be the effect and scope of
Section 397 IPC as a standalone provision, the
application of the same will arise in the totality of the
allegation and the consequent charge that will be framed
and the accused would be tried for such charge. In such
circumstance, in the teeth of the offence under Section
397 IPC being applicable to the offender alone, the
%
vicariability of the same will also have to be noted if the
charge against the accused under Sections 34, 149 IPC
and such other provisions of law, which may become
relevant, is also invoked along with Section 397 IPC. In
such event, it will have to be looked at differently in the
totality of the facts, evidence and circumstances involved
in that case and the pronsipnS invoked in that particular
case to frame a charge against ihe M In the instant
case, the charge under Section 34 IPC was not framed
against the appellant'norpyqs suchfin allegation raised
and proved against the appellant. Hence, benefit of the
interpretation raised on the scope of Section 397 IPC to
hold the aggressor alone as being guilty, will be available
to the appellant if there is no specific allegation against
t
him.
19. Keeping this aspect in view, it is necessary to examine
the manner in which PWl has alleged against the
appellant so as to consider whether the appellant is also
an 'offender^ who used the firearm so as to be charged
under both. Section 392 and 397 IPC even if he is
complicit to the incident, more particularly when Section
34 IPC has not been invoked in the instant case..
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2022:DHC:5983
Thus, undoubtedly, in terms of the verdict of the Hon'ble Supreme
Court in Ram Ratan (supra), though the invocation of the offence
punishable under Section 397 of the Indian Penal Code, 1860 in
relation to the charge of committing the offence is alleged against all
the accused and where only one among the offenders has used the fire
arm or deadly weapon, it is only such of the offenders who has used
the fire arm or deadly weapon who would liable to be charged under
Section 397 of the Indian Penal Code, 1860. The totality of the
allegations and consequent charges that are framed and of the accused
\
being tried for such charge has essentially to be considered with the
aspect of the vicariability of the offence punishable under Section 397
of the Indian Penal Code, 1860 being required to be noted if the
charge against the accused under Sections 34, 149 of the Indian Penal
I
Code, 1860 and other provisions of law isTnvoked which may become
relevant if invoked along with Sectioii- 397 of the Indian Penal Code,
1860 in which event it wpuid have: to rbe'^lopked at differently in the
totality of the facts, evidence and' cirdnhistances involved in that case
and the provisions involved in that particular case to fr ame a charge
%
against the accused. In the case before, the Hop'ble Supreme Court in
Ram Ratan (supra), the charge under Section 34 of the Indian Penal
Code, 1860 was not fr amed against the appellant therein nor was such
an allegation raised and proved against the appellant and hence the
benefit of the interpretation raised on the scope of Section 397 of the
Indian Penal Code, 1860 to hold the aggressor alone as being guilty,
was held to be available to the appellant therein if there was no
specific allegation against him. The evidence in that case was thus
CRLA 344/2020, CRL.A. 567/2020, CRL.A. 568/2020 Page 35 of 38
2022:DHC:5983
(J^
taken into account which indicated that it was only one accused who
had used the fire arm and there was no allegation apart from a stray
sentence against the appellant Ram Ratan in that case of having used
any fire arm with it thus having been held that the charge under
Section 397 of the Indian Penal Code, 1860 could not be held to be
proved.
52. In the instant case, the charges have been framed under Sections
392/34 of the Indian Penal Code, 1860 r/w Section 397 of the Indian
Penal Code, I860,- yet, it cannot be overlooked as observed
%
hereinabove that there is no user of any knife mentioned in the FIR by
the complainant and though the wqrd has been used as an
interchangeable term by PW-3 Altabarak Haq, the co-passenger, it is
the deposition of this PW-3 himself which attributes user of the
ustara/knife only to the accused/appellant Rahis even at the time of
the robbery committed qua the other passenger.
53. In these circumstances, 'the -fe'stimbn^ of PW-5, the driver
named Shahrukh which makes Uh%mrirb]Lis statement to the effect:-
"Those boys robbed the other two passengers while
showing knife and asked them to hand over their
belongings. They called police by making a call at 100
number. I told those passengers that I will remain with
them. They informed the police that Rs.6,000/- and two
mobile phones were robbed from one passenger while Rs.
1,000/- and one mobile phone was robbed from other
passenger. After robbing, all the three accused ran away.
One of the passengers told me that his relatives were
residing in the nearby area of Jafrabad. At his request, I
took them to their relative's house in my auto where they
made a call at 100 number.",
%
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2022:DHC:5983
is insufficient to bring forth any vicarious liability against the accused/
appellants i.e. Javed, the appellant of CRL.A. 567/2020 and Jakir @
Chuhi, the appellant of CRL.A. 568/2020 qua the commission of an
offence punishable under Section 397 of the Indian Penal Code, 1860.
Thus, though the conviction of all the three appellants qua the
commission of the offence punishable under Section 392/34 of the
Indian Penal Code, 1860 for the commission of robbery on the date
03.06.2016 in the auto rickshaw bearing no. DL IRQ 1537 near the
under construction metro station of Jafrabad before the Idgah Pulia
\
whereby the articles in possession of Bhagat Singh, the complainant
and the co-passenger Altabarak, Haq were robbed on the
, accused/appellant Rahis having shown , an ustara to them stands
established with the recovery , of the ustara from the accused Rahis, the
appellant of CRL.A. 344/2020, recoyeryrof the mobile phone of the
make Samsung phone belonging to. ^he complainant from the
accused/appellant i.e. Jakir Chuhi, ;tte appellant of CRL.A.
568/2020, the conviction of, the -kqcm^^ Javed, the
appellant of CRL.A. 567/2020 and Jakir @ Chuhi, the appellant of
\
CRL.A. 568/2020 qua the alleged. ...commission of an offence
punishable under Section 397 of the Indian Penal Code, 1860 in the
facts and circumstances of the instant case, is not held to be
vicariously made out and the conviction of the accused/appellants
Javed and Jakir @ Chuhi in relation thereto is thus set aside.
CONCLUSION
54. The sentence imposed qua the accused/appellant Rahis vide the
impugned order on sentence dated 28.02.2020 of the Court of the
CRL.A. 344/2020, CRL.A. 567/2020, CRL.A. 568/2020
2022:DHC:5983
learned ASJ-02, E-Court, Shahdara, KKD, Delhi in relation to FIR
No.244/16, PS Welcome qua the sentence imposed of Rigorous
Imprisonment for a period of seven (7) years under Sections 392/34 of
the Indian Penal Code, 1860 r/w Section 397 of the Indian Penal Code,
1860 and a fine of Rs.5,000/- and in default of payment of the said
fine to further undergo Simple Imprisonment for a period of three (3)
months with the benefit of Section 428 of the Cr.P.C., 1973 is
sustained.
55. Thus, the minimum mandatory sentence of seven years for the
offence punishable under Section 397 of the Indian Penal Code, 1860
against the accused person namely Javed, the appellant of CRL.A.
567/2020 and Jakir @ Chuhi, the appeliant of CRL.A. 568/2020 is set
aside, and the sentence imposed on the said two appellants under
Sections 392/34 of the Indian Penal Code, 1860 is modified and
reduced to be a sentence of Rigorous Imprisonment for a period of
five (5) years with the fine of I^.SjOOO/^leach and in default of
payment of the said fine, to fi iiifef -undergo Simple Imprisonment for
a period of three (3) months with the benefit of Section 428 of the
\
sent to the Superintendent Jail, Delhi for information.
Cr.P.C., 1973 being granted to these, two appellants as well.
56. Copy of this judgment be supplied to the appellants and be also
ANU MALHOtK^ ^
JULY 06,2022
nc
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