ASHFAQ Vs. STATE GOVT OF NCT OF DELHI

JUDGEMENT

(1.) Leave granted in SLP (Crl.) No. 1676/2003.

(2.) Criminal Appeal No. 1296/2002 has been filed by A-4 (Ashfaq) and criminal appeal arising out of SLP (Crl.) No. 1676/2003 has been filed by A-3 (Haroon) who stood charged along with two others in Sessions Case No. 274/96 on the file of the Additional Sessions Judge, Shahdara.

(3.) The above appellants were tried before the learned Additional Sessions Judge along with two others by name Ikrar (A-1) and Shahid (A-2) for charges under S. 452, I.P.C. Section 392, I.P.C. and S. 397, I.P.C. read with S. 34, I.P.C. A-3 (Haroon) was also charged for an offence under S. 25 of the Arms Act. The sum and substance of the prosecution case was that on 9-11-1991 at about 7.15 p.m. when P.W. 3 (Bal Kishan) was witnessing a TV programme in the inner room of his house in the company of his wife, P.W. 10 (Smt. Raj Rani), the accused persons entered their house and when P.W. 3 (Bal Kishan) came out of the room and was told by one of the four persons that they were sent by one Mahabir Thekedar for white-washing of their house, P.W. 3 (Bal Kishan) was said to have told one of them that he only had already white-washed the house and enquired about the need for it again. As the conversation was said to be going on like that the accused closed the door and one of the boys took out a country-made pistol and other took out their knives and by using such threat with such weapons they pushed P.W. 3 (Bal Kishan) and P.W. 10 (Smt. Raj Rani) inside and demanded the keys of the almirah. P.W. 10 (Smt. Raj Rani) the wife seems to have told them that the keys were with her daughter who resides at a different place. But she was not believed and they started searching all around inside for the keys and as this was in progress P.W. 2 one of the relatives also arrived there. At that point of time one of the boys opened the door and brought the new comer also inside and ordered them all to hand over their belongings which included a sum of Rs. 1400/- and Rs. 200/- from Manoj Kumar P.W. 2. When the search was being made by them one of the accused asked for the sten gun and in the process they were able to lay their hands on the sten gun belonging to the father of P.W. 3 (Bal Kishan). Thereupon, the sten gun with the magazine and cartridges were also taken away by them after bolting the door outside. On an alarm raised by the inmates, it appears the neighbours came and opened the door. It appears that the accused also removed the gold chain in the temple which was also said to be missing. Thereafter police report was said to have been lodged and on completion of investigation during which the sten gun, magazine and cartridges were said to have been recovered, charges were laid against the accused as noticed above. A-2 (Shahid), absconded and was also declared as proclaimed offender, after following procedure under Ss. 82 and 83 of the Cr. P.C.