Ikram and Another vs State

Mukta Gupta, J.—Briefly the prosecution case is that on 23rd December, 1998 on receipt of DD No. 25-A regarding robbing of a person by 3-4 persons and one of the robbers being apprehended at the spot, ASI Suresh Pal with Constable Hari Kishan reached the spot where they met Complainant Tinku Sharma who had apprehended Ikram along with one Raj Kumar. The statement of Tinku Sharma, PW8 was recorded vide Ex. PW11/A. He stated that he was in private service at Ghaziabad and was living in a rented accommodation in Dilshad Garden. In the evening after returning from duty, he had gone to his cousin''s house and was coming back at about 9:15 P.M. When he reached near the corner of the park, three boys who were standing there, caught hold of him. One of the boys was holding scissors in his hand and the other two boys started taking his search. One of them took out Rs. 500/- from the front pocket and the other Rs. 195/- from the rear pocket of his pant. When he protested, the boy holding the scissors gave him blows by the scissors. He, however, managed to save himself from the first blow. Then, one of the boy exhorted "CHOTTU PET MEIN MAAR" and he started inflicting scissors blows on his abdomen. He caught hold of the scissors and did not leave the same and raised the alarm. Due to this, he sustained injury on his hand. The three boys started running on his raising alarm and the scissors remained in his hand. One of the boys ran into the park and fell down. he was overpowered by the complainant who ran after him. In the meanwhile, public persons also came there. The boy after freeing himself started running, on which the public started beating him. The Complainant and one Raj Kumar Sharma saved him from the public and caught him. Rs. 195/- were found in the hand of this boy which he had taken out from the pocket of the Complainant. Thereafter, the PCR came and the boy who was apprehended identified himself as Ikram son of Chottu Khan. Rs. 195/- and the scissors were taken into possession by the police. On this statement of the Complainant, FIR was registered. The Appellant No. 1 Ikram was arrested and on his disclosure and pointing out the two other co-accused, Salim @ Chottu and Mursalim were arrested. Since, the Appellant No. 2 Mursalim and co-accused Salim @ Chottu refused to join the T.I.P., statements of witnesses were recorded who duly identified them. After completion of investigation, charge-sheet was filed. All the accused were charged for offence punishable under Sections 392/394 read with Section 34 IPC. In addition, accused Salim was also charged for offence punishable u/s 397 IPC. After recording of the prosecution evidence, the statements of the accused u/s 313 Code of Criminal Procedure and the defense witnesses, the Appellants along with co-accused Salim @ Chottu were convicted for offences punishable u/s 392/394/34 IPC. Co-accused Salim was also convicted for offence punishable u/s 397 IPC. The Appellants were awarded sentence of Rigorous Imprisonment for a period of five years with a fine of Rs. 2000/- and in default of payment of fine, to further undergo Rigorous Imprisonment for six months for offence punishable u/s 392 IPC and Rigorous Imprisonment for a period of 7 years and a fine of Rs. 5000/- and in default of payment of fine, to further undergo Rigorous Imprisonment for one year for offence punishable u/s 394 IPC. Co-convict Salim had filed Criminal Appeal No. 550/2001, however, during the pendency of the said appeal, he had undergone the entire sentence and thus his appeal was dismissed as in fructuous vide order dated 14th May, 2010.

Learned Counsel for the Appellants contended that this is a case of no evidence against the Appellants. Nothing was recovered from the Appellant No. 1 Ikram in the course of search by the Police. As per the statement of PW8 to the Police Rs. 195/- were handed over by PW8 to ASI whereas in his statement before the Court, he has deposed that the PCR officials recovered Rs. 195/- from the pocket of the Appellant No. 1. Further, no public person has stated that Rs. 195/- were taken from the back pocket of the Complainant by the Appellant No. 1 Ikram. The testimony of PW8 cannot be relied as he has made material improvements. PW1 has deposed that PW8 had told the police that it was dark and he could not identify the assailants, and thus, the Appellants cannot be convicted on such evidence. PW1 Raj Kumar has turned hostile and he spoke the truth that no cash was recovered in his presence and the fact of the matter is that no cash was recovered. Thus, the conviction u/s 392 is unjustified in view of absence of proof of the recovery of Rs. 195 from the Appellant No. 1. Reliance is placed on Ajit Singh v. State of Haryana 1996 SCC (Crl.) 481 to contend that the conviction of the Appellant u/s 394 IPC is unjustified as from the testimony of the alleged eye-witnesses PW1 and PW8 it is clear that no injury was inflicted by the scissor and further the scissor having not been sent to CFSL, it cannot be said that the injury on the hand of the complainant was caused by that scissors by the co-accused. There is no evidence on record in support of the fact that Appellants Ikram and Mursalim had played any role with the scissors. Moreover, the scissors were not recovered from any of the Appellants and as per the statement of PW8, the scissors were handed over by PW8 to the Police. Reliance is also placed on Shri Phool Kumar Vs. Delhi Administration, and Pyare Singh v. State of M.P., 1992 Supp.(3) SCC 45

As regards the Appellant No. 2 Mursalim, it is further contended that nothing has been recovered at his instance and it cannot be inferred that he had robbed Rs. 500/- and thus, conviction u/s 392 IPC is bad in law. The scissors was not sent to the CFSL and hence there is no evidence that injury was caused by the said scissors. Moreover, there is no evidence that threat was extended at the time of the alleged robbery and hence from the evidence adduced by the prosecution, the ingredients of Section 394 IPC are not made out against the Appellant Mursalim. Thus, both the Appellants are entitled for acquittal.

Per contra, learned APP for the State contends that the three accused robbed the Complainant in furtherance of their common intention. The scissors was used to threaten the Complainant and thereafter the Appellants in the present appeal took out the money. The Appellant No. 1 Ikram was apprehended at the spot. PW8 Complainant has stated that Rs. 195/- was taken out from his back pocket by Ikram which were recovered from him. He had also snatched the scissors. PW1 is not an eye-witness as PW8 has stated that he reached the spot only after the incident. The story put up by PW1 who had been declared hostile is falsified by DD No. 25-A Ex.PW4/A recorded at 10:25 p.m. which is a contemporaneous document wherein it is recorded that one person has been robbed by 3-4 persons and an amount of Rs. 500/- is snatched from him, it is also mentioned that one person is apprehended at the spot. The testimony of PW8 is corroborated by his MLC Ex.PW9/A which shows sharp injury. No suggestion has been made to PW11, the investigating officer that this case was planted on the Appellants or that he influenced the witnesses to identify the accused. Thus, the prosecution has proved the case beyond reasonable doubt and the appeal deserves to be dismissed being devoid of merit.

I have heard learned Counsel for the parties and perused the record. PW8, Tinku Sharma, the Complainant and injured victim in his testimony has stated that when he reached near the corner of park of Dilshad Garden, he found all the three accused persons who are present in the Court. All of them took his personal search and one of them was holding the scissors. At that time Rs. 195/- were taken from his back pocket by the Appellant Ikram and Rs. 500/- were taken from his front pocket by Appellant Mursalim and the scissor was in the hand of Salim @ Chottu. When he resisted, Salim @ Chottu attacked him with the scissors, but he resisted the first blow of the scissors and saved himself. When Chottu gave him the second blow with the scissors, he caught hold of the scissors resulting in the injury on his hand while saving himself. He did not leave the scissors and snatched the same from Salim @ Chottu. Thereafter, the three of them ran away. However, Ikram fell down in a drain and he was caught hold by the Complainant. On his razing the alarm "Bachao Bachao", the public persons reached at the spot and before Appellant No. 1 Ikram could free himself from PW8, the public persons overpowered him. This witness is an injured witness. His testimony is duly corroborated by his MLC Ex.PW9/A which shows "multiple linear or scratch abrasion over dorsum of right hand, left ring finger, left index finger, left middle finger, over face". The nature of injuries have been opined to be simple caused by sharp weapon. This witness has also identified the scissors Ex. P-8 and the cash recovered from him Ex. P1 to P7. In view of the identification of the scissors by PW8 who is an injured eye-witness, the contention of the learned Counsel for the Appellant that the scissors was not sent to CFSL looses ground as the identification of scissors by PW8, eye witness identifying the weapon of offence, the scissors is connected to the injury caused and the offence committed. Similar view was taken by this Court in Crl. A. 152/2001 Nanko Devi v. State.

The testimony of PW8 cannot be belied by the testimony of PW1 because PW1 is not an eye-witness. PW8 has stated that when the incident took place, no other person except the accused persons were present. His brother Raj Kumar i.e. PW1 came after one or two minutes after catching the Appellant No. 1 Ikram and during that time he and the public persons caught hold of the Appellant No. 1 Ikram. Thus, the testimony of PW1 is of no avail. Learned Counsel for the Appellant has laid much emphasis on the testimony of PW1. However, the testimony of this witness on the face of it is a false testimony, as he has gone to the extent of saying that the police did not get the Complainant PW8 and the Appellant No. 1 Ikram medically examined in his presence. The MLC of PW8 i.e. PW9/A, records the time of arrival as 3:45 A.M. on 24th December, 1998. The incident is of around 9:15 P.M. on 23rd December, 1998. After the incident happened, the PCR Van came and after apprehending the Appellant No. 1 Ikram and completing the formalities, PW8 was taken to the hospital. Even the reliance on the statement of PW1 that PW8 had told the Police that it was dark and he could not identify the accused persons is misconceived and this statement is not admissible in evidence being hearsay evidence. Thus, I find no merit in the contention of the learned Counsel drawing contradictions in the testimony of PW8 from that of PW1 and contending that PW8 should not be relied upon.

The Appellant No. 2 Mursalim was arrested and an application for his T.I.P. was moved. However, he refused to participate in the T.I.P. on the ground that his photographs have been taken and he was shown to the witnesses. No suggestion has been given to PW8 on behalf of Appellant No. 2 Mursalim that he was shown to him or his photo was shown to him prior to the refusal of the TIP thus the testimony of PW8 on this aspect has gone unchallenged. Relying on Ajit Singh (Supra), the learned Counsel for the Appellant has laid much stress on the point that the conviction of the Appellant for offence punishable u/s 394 is not made out. From the evidence of PW8, it is clear that he was robbed of the money by not only showing the scissors but also by inflicting injuries on his resistance in furtherance of their common intention. The entire sequence of events is continuous and when PW8 showed his resistance, Salim @ Chottu inflicted the scissors blow on him which he warded off. The second blow was also sought to be warded off and in the process, he caught hold of the scissors resulting in injuries on his hands. In the meantime, the Appellants robbed the money from his pocket. An offence u/s 394 is punishable even with the aid of Section 34 IPC unlike Section 397 IPC. Hence I find no infirmity in the impugned judgment on that count.

Reliance of the Appellants on Phool Kumar (Supra) is misconceived, as in the said case the Hon''ble Supreme Court was dealing with offence u/s 397 IPC the criminal liability of which cannot be fastened vicariously with the aid of Section 34 IPC. Since Salim @ Chottu only used the weapon of offence, learned trial court rightly convicted him for the offence punishable u/s 397 IPC.

The Appellants have been awarded sentence of Rigorous Imprisonment for a period of 7 years u/s 394 IPC and 5 years u/s 392 IPC. The Appellant No. 1 Ikram has remained in custody for three years four months and twenty three days and has paid the fine. The Appellant No. 2 Mursalim has been in custody for a period of four years one month and eighteen days. The Appellants have already suffered the ordeal of trial and appeal for 13 years. It would, thus, be in the interest of justice to modify the sentence of the Appellants to the period of imprisonment already undergone.

The Appeal is, accordingly, disposed of maintaining the conviction for offences punishable under Sections 392/394/34 IPC, however modifying the sentence of imprisonment to the period already undergone. The bail bonds and the surety bonds are discharged.