Crl. A. No. 397/2006 Page 1 * HIGH COURT OF DELHI : NEW DELHI Judgment reserved on : December 17, 2008 Judgment delivered on : January 06, 2009 + Crl. A. No.397/2006 Shafiq ... Appellant Through: Mr. R.K. Srivastava, Advocate versus The State ... Respondent Through: Mr. Amit Sharma, Additional Public Prosecutor for State CORAM: HON'BLE MR. JUSTICE SUNIL GAUR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? SUNIL GAUR, J. 1. In this appeal, Appellant is challenging impugned judgment of 11th May 2006 of learned Additional Sessions Judge, Karkardooma Courts, Delhi, vide which he has been convicted for committing offences under Section 455/392/394 and 397 of Indian Penal Code and also under Section 25 of the Arms Act and order of the trial court of the same day, vide which he has been sentenced to undergo rigorous imprisonment for four years and Crl. A. No. 397/2006 Page 2 to pay a fine of Rs.1,000/- separately on two counts, i.e., for the offences under Section 392 and 455 of the Indian Penal Code. In default of payment of fine he has been directed to undergo rigorous imprisonment for six months each. 2. Appellant is further sentenced by the trial court to undergo rigorous imprisonment for seven years with fine of Rs.1,000/-, separately on two counts, i.e., for the offence punishable under Section 394 and 397 of Indian Penal Code. In the event of default of payment of fine, Appellant has been directed to undergo rigorous imprisonment for six months each. 3. The above said substantive sentences have been ordered, by the trial court, to run concurrently. 4. The factual background which needs to be noticed is as follows:- “On 9th November, 2005, DD No.30-A (copy Ex.PW5/A) was assigned to Sub Inspector Lal Chand Yadav at Police Station Welcome, Delhi for investigation who alongwith Constable Des Raj went to Prachin Hanuman Mandir, Welcome, Delhi at about 4.00 pm where Sushil Kumar Tiwari met them. Sub Inspector Lal Chand Yadav, Investigating Officer recorded the statement of Sushil Kumar Tiwari and after making endorsement thereon sent the same to police station for registration of this case. Sushil Kumar Tiwari produced appellant as well as dagger and mobile phone, besides a sum of rupees 150/- before the investigating officer. The aforesaid objects were converted into separate parcels and sealed with the seal of LC and were taken into possession vide memo Ex.PW1/E and Ex.PW1/A respectively. The Crl. A. No. 397/2006 Page 3 sketch of the dagger was prepared before converting it into a parcel. Appellant was arrested. Sushil Kumar Tiwari was having stab injuries on first finger of his right hand and was sent to Hospital for medical examination. Investigating officer inspected the site and prepared the site plan Ex.PW5/B, recorded the statements of witnesses, got the appellant medically examined and thereafter he was produced before the court concerned. After completion of investigation, charge sheet for the offence under Section 379/382/506/ 411/394/ 397/393 of IPC and Section 25/27 of Arms Act was filed against the accused/appellant.” 5. Since the Appellant/accused had claimed trial in this case, by pleading not guilty to the charges framed against him for the offences punishable under Section 455/392/394/397/506 of Indian Penal Code and for offence punishable under Section 25 of the Arms Act, before the trial court, evidence of six witnesses was recorded during the trial in support of the charges framed against the Appellant. Out of them, the main witnesses are the injured/first informant – Sushil Kumar (PW-4); eye witness Dhiraj Shukla (PW-2); Dr. Prabhakar (PW-6), who has proved the MLC – Ex.PW6/A of injured (PW-4) and the Investigating Officer SI Lal Chand, (PW-5). 6. Appellant in his statement under Section 313 of Cr. P.C., before the trial court, denied the prosecution case and stated that he was going to Ghazipur Mandi and Constable Desh Raj (PW-1) met him at Welcome turn and told him that he was called by SHO, Police Station Welcome and took him there and framed Crl. A. No. 397/2006 Page 4 him in this case. However, Appellant did not lead any evidence in his defence before the trial court. After the trial, Appellant stands convicted and sentenced as noticed above. 7. Contention advanced by both the sides have been pondered over and the evidence on record has been scrutinised. 8. In short, the prosecution case is that on the night intervening 8th and 9th November 2005, during the night at about 3.30 AM, Appellant/accused alongwith his associate trespassed into Pracheen Kuainwala Mandir at A-1 Block, Welcome, Delhi and removed cash of Rs.150/- and a mobile phone from the pocket of the shirt of Sushil Kumar (PW-4) and the said shirt was hanging on a peg on the wall inside the aforesaid temple. While associate of Appellant / Accused was searching for the goods in the other room of the temple, Dheeraj Shukla (PW-2) woke up to urinate and he noticed the Appellant/accused in the temple and raised alarm of „thief-thief‟. Then, Sushil Kumar (PW-4) also woke up and rushed towards the Appellant/accused, who gave a knife/ dagger blow on the right hand of Sushil Kumar (PW-4). However, Appellant/accused was overpowered by Sushil Kumar (PW-4) and from the possession of the Appellant/accused cash of Rs.150/- and mobile phone of Sushil Kumar (PW-4) and the knife/dagger was recovered. 9. Learned counsel for appellant has sought to dislodge the aforesaid prosecution case by contending that even if it is Crl. A. No. 397/2006 Page 5 assumed that prosecution case is true, without admitting it to be so, still the offence made out, would be of attempted theft because as per the MLC of injured Sushil Kumar (PW-4), the injury on the index finger of the right hand has been found to be simple and blunt, which rules out, the prosecution case of Appellant/accused assaulting injured (PW-4) with a knife/dagger. It has been contended on behalf of the Appellant that injured (PW-4) had sustained the injury while apprehending the accused and not while the alleged offence was being committed. 10. Trial Judge has rendered the impugned judgment in narrative form and upon its perusal it is difficult to make out if the aforesaid contention was raised before the trial court. In any case, it has not been dealt with by the trial court. However, trial judge has concluded that the knife/dagger Ex.P-1 was used by accused/appellant, when he attempted to carry away the stolen property and hurt was caused to injured Sushil Kumar (PW-4) while committing robbery. 11. A bare perusal of the testimony of the injured (PW-4) makes it clear that injured (PW-4) got up upon hearing the alarm of ‘Thief-Thief” being raised by eye witness (PW-2) and he had seen that eye witness (PW-2) and accused/appellant were grappling and when injured (PW-4) went to rescue eye witness (PW-2), then appellant/ accused gave knife blow to injured (PW- 4) as soon as he reached near the injured. It has also come in Crl. A. No. 397/2006 Page 6 the evidence of injured (PW-4) that he had snatched the knife of the hands of accused/appellant. Possibility of injured (PW-4) sustaining 1/2x1/2 Cm injury on index finger of his right hand, in the process of injured (PW-4) snatching the knife from the hand of accused/appellant, cannot be ruled out. It has not come in the evidence of the injured (PW-4) or the eye witness (PW-2) that accused/appellant had caused hurt to the injured (PW-4) while committing robbery or that accused/appellant had used knife/dagger Ex.P-1 while attempting to carry away the stolen property. Thus, it is evident from the evidence on record that the aforesaid finding of the trial court is factually incorrect. Apparently, there is misreading of the evidence by the trial judge, which renders the conviction of accused/appellant for the offence under Section 392/394/397 of the Indian Penal Code illegal and is hereby set aside. 12. Simply because the injury/lacerated wound on the index finger of the hand has been opined to be blunt/simple in the MLC Ex.PW6/A, it cannot be said that the aforesaid injury is not possible by the knife/dagger Ex.P-1 as it has not come in the evidence on record about knife/dagger Ex.P-1 being blunt on one side. In any case, nothing turns on it as the accused/appellant was arrested at the spot and the aforesaid knife/dagger Ex.P-1 was recovered from him at the spot only. The offence made out against accused/appellant falls under Section 379 and 324 of the Crl. A. No. 397/2006 Page 7 Indian Penal Code which is lesser offence than those under Section 392/394/397 of the Indian Penal Code, for which accused/appellant had faced the trial. 13. Appellant/accused has been now found guilty for the offences under Section 324 and under Section 379 of the Indian Penal Code which are punishable for a term extendable up to three years. In the facts and circumstances of this case, sentence of RI for three years each with a fine of rupees one thousand each is imposed upon the appellant for the offence under Section 324 and under Section 379 of the Indian Penal Code respectively. In default of the payment of aforesaid fine, appellant shall undergo SI for three months each. However, conviction and the sentence imposed upon the appellant for offences under Section 455 of the Indian Penal Code and Section 25 of the Arms Act by the trial court is well justified and calls for no interference by this Court. 14. This appeal stands partly allowed to the extent indicated above. Appellant be informed of this order through the concerned Jail Superintendent. SUNIL GAUR, J January 06, 2008 dkg/pkb