IKRAM Vs. STATE

JUDGEMENT

(1.) 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 '500/- from the front pocket and the other '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. '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. '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 under Section 397 IPC. After recording of the prosecution evidence, the statements of the accused under Section 313 CrPC and the defence witnesses, the Appellants along with co-accused Salim @ Chottu were convicted for offences punishable under Section 392/394/34 IPC. Co-accused Salim was also convicted for offence punishable under Section 397 IPC. The Appellants were awarded sentence of Rigorous Imprisonment for a period of five years with a fine of '2000/- and in default of payment of fine, to further undergo Rigorous Imprisonment for six months for offence punishable under Section 392 IPC and Rigorous Imprisonment for a period of 7 years and a fine of '5000/- and in default of payment of fine, to further undergo Rigorous Imprisonment for one year for offence punishable under Section 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 infructuous vide order dated 14th May, 2010.

(2.) 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 '195 were handed over by PW8 to ASI whereas in his statement before the Court, he has deposed that the PCR officials recovered '195/- from the pocket of the Appellant No.1. Further, no public person has stated that '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 under Sec. 392 is unjustified in view of absence of proof of the recovery of '195 from the Appellant No.1. Reliance is placed on Ajit Singh vs. State of Haryana 1996 SCC (Crl.) 481 to contend that the conviction of the Appellant under Sec. 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 Phool Kumar vs. Delhi Administration, 1975 (1) SCC 797 and Pyare Singh vs. State of M.P., 1992 Supp.(3) SCC 45.

(3.) 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 '195/- were taken from his back pocket by the Appellant Ikram and '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 rasing 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 vs. State.