Md. Rizwan vs State

Sunil Gaur, J.—In this appeal, judgment dated 18th May, 1999, of the learned Additional Sessions Judge, Delhi, convicting the appellant for commission of offence u/s 393/398/307 of the IPC and the order on sentence dated 19th May, 1999, sentencing the appellant to RI for seven years each and to a fine of Rs. 250/- each for commission of offences u/s 393 read with Section 398 of the IPC and u/s 307 of the IPC has been assailed.

The crux of the prosecution case is that on the fateful day i.e. on 24th July, 1995, at about 11.00 AM, Wazir Chand and Baldev were travelling in a rickshaw with cash of Rs. 2,75,000/- in a bag and in front of Natraj Cinema in DLF area, Nazafgarh Road, Delhi, they were assaulted by the appellant as his co- accused and appellant has said to have fired from his country made pistol and the bag containing the money was snatched from the victims and, thereafter, the appellant and his co-accused tried to flee away and after a while, appellant was apprehended by the police, whereas his co-accused managed to escape. The law was set into motion and after completion of investigation, the charge-sheet was filed against the appellant and his co-accused for commission of offence u/s 393 read with Section 398 of the IPC and also u/s 307 of the IPC and u/s 27 of the Arms Act.

Appellant before the trial court had claimed trial as he had not pleaded guilty to the charges framed against him u/s 393/398/307 of the IPC and u/s 27 of the Arms Act.

During the trial, nineteen witnesses were examined and the prosecution case rests upon the shoulders of complainant/1st informant Wazir Chand PW.1 and his companion Baldev PW.2. Appellant in his statement u/s 313 of the IPC had denied the prosecution case before the trial court and took the following stand:

I had come to Delhi on 22-7-94 because I was to take money from one person named Sultan who lived in jhuggies near Floor Mill, Kirti Nagar. As I use to get embroidery work done from him, Sultan did not pay my dues and a quarrel followed. Sultan called the police and I was taken to P.S. and was falsely implicated in this case. No pistol was recovered from me. I had not fired at Baldev and had never tried to snatch bag from him. I am innocent.

However, appellant chose not to lead evidence in defence in the trial court. After the trial, the appellant has been convicted and sentenced as reflected in the opening paragraph of this judgment.

Both the sides have been heard and with their assistance, the evidence on record has been scanned.

To recapitulate, Appellant Mohd. Rizwan and his co-accused Shamim Alam and Sahawar were tried for attempting to rob Baldev Raj and Balbir Chand of a bag containing Rs. 2,75,000/- (rupees two lac seventy five thousand) and appellant was found to have used country made pistal, while attempting to commit robbery on 24th July, 1995, at about 11.00 AM in front of Natraj Cinema in DLF area at Nazafgarh Road, Delhi, and at the time of this incident, the victims i.e. Wazir Chand and Baldev were in a rickshaw while they were going to Syndicate Bank in Kirti Nagar, New Delhi, for depositing the aforesaid cash.

It is pertinent to notice at the cost of the repetition that Appellant has been convicted for committing the aforesaid offence by the trial court vide impugned judgment dated 18th May, 1999, and vide order dated 19th May, 1999, appellant has been sentenced for commission of offence u/s 393 read with Section 398 of Indian Penal Code to RI for seven years and to pay a fine of Rs. 250/- and in default thereof, to SI for six months. In addition, a sentence of seven years RI and a fine of Rs. 250/- has also been imposed upon the appellant for commission of offence u/s 307 of Indian Penal Code. However, both the sentences have been ordered to run concurrently. However, co- accused of appellant have been given benefit of doubt by the trial court.

The grievance of the appellant is that on the basis of the very same evidence, Shamim Alam and Sahawar, co-accused of the appellant have been acquitted by the trial court, whereas the appellant has been convicted. It has been pointed out on behalf of the appellant that when two views are possible on the same evidence, then the view in favour of the accused has to be preferred. Furthermore, it is urged by learned Counsel for the appellant that the amicus curiae provided to the appellant was a lawyer of just one year of standing and he has cross-examined the material witnesses of the prosecution just in one and a half pages and has not properly defended the appellant/accused and in the light of the evidence recorded, a good case is made out for retrial with direction to the trial court to provide an experienced lawyer for conducting the cross-examination on behalf of the appellant. On the other hand, learned Additional Public Prosecutor submits that there is no basis to reach to such a conclusion and supports the impugned judgment and sentence while urging that there is no illegality or infirmity in it. Nothing else is urged by either side.

Upon perusal of the record of this case, I find that the appellant cannot claim parity with co-accused, who have been granted the benefit of doubt by the trial court on the identity aspect. I say so because the appellant was apprehended within a short period of taking place of this incident. Although, it is not established from the material on record that the amicus curiae counsel provided to the appellant by the trial court was of one year standing and was unexperienced, but it goes without saying that it is the duty of the courts to ensure that the amicus curiae counsel provided to the poor accused, should be having experience of handling cases like the present one in the Sessions Court.

To appreciate the aforesaid stand taken on behalf of the appellant, I had carefully scrutinized the evidence of the star witness of the prosecution i.e. Wazir Chand PW.1 with the assistance of both the sides. A bare reading of the evidence of Wazir Chand, PW.1, reveals that he has graphically narrated this incident. However, this witness PW.1 has identified the appellant as the one who was apprehended by the police while he was holding a pistol in his hand. It has not been clearly brought out in the evidence of this material witness that the appellant was one who had fired at Baldev Raj, PW.2, while committing the offence in question. Furthermore, the evidence of Baldev Raj PW.2 has been scrutinized and it is found that his evidence does not incriminate the appellant.

This Court is of the considered view that the use of the weapon i.e. the country made pistol while commission of the offence by the appellant does not stand satisfactorily proved from the solitary evidence of Wazir Chand PW.1. Anyhow, from the aforesaid evidence the commission of offence u/s 393 of the Indian Penal Code does stand proved. Meaning thereby, it stands firmly established from the evidence on record that the appellant had attempted to commit robbery but the use of the country made pistol by the appellant in doing so does not stand proved from the evidence on record. Since, Baldev Raj PW.2, on whom attempt to murder was made, has not deposed against the appellant, therefore, the conviction of the appellant u/s 307 of the Indian Penal Code is rendered unsustainable.

It is a matter of record that the trial court has not convicted the appellant u/s 25 or u/s 27 of the Arms Act for the illegal possession or use of the recovered country made pistol.

In my considered opinion, the trial court has gravely erred in convicting the appellant for the commission of offence u/s 398 of the Indian Penal Code and also for committing an offence u/s 307 of the Indian Penal Code. Resultantly, the conviction of the appellant u/s 398 of the Indian Penal Code and u/s 307 of the Indian Penal Code cannot be sustained and is thus set aside. However, the conviction of the appellant for the commission of offence u/s 393 of the Indian Penal Code is sustainable and is upheld.

It is noticed in the impugned order of sentence that appellant was a teenager at the time of commission of this offence and was not having any previous criminal record. He has faced the trial and appeal proceedings for over a decade. As per the nominal roll of the appellant, he has already undergone sentence of four years and two months and no minimum sentence is provided for the offence u/s 393 of the Indian Penal Code.

While taking into consideration the evidence on record in its totality and the aforesaid background of the appellant, I feel that the ends of justice would be met by reducing the sentence of the appellant to the period already undergone by him for the commission of offence u/s 393 of the Indian Penal Code. During the pendency of this appeal, the appellant was released on bail. His bail bond and surety bonds stand discharged.

This appeal is partly allowed to the extent indicated above.