DILSHAD Vs. STATE

JUDGEMENT

(1.) THE prosecution case in brief is that on 1 st May, 2006 an information was received vide DD No. 8A Ex.P1 on which SI Om Prakash PW13, Head Constable Babu Lal and Constable Sher Singh reached at the spot i.e. House No. K-13/C, Khirki Extension, Malviya Nagar, New Delhi and met Mohd. Mursaleen, the Complainant in the case and Head Constable Surender Singh PW8 who had apprehended Mustakeen along with knife in his possession and found Mohd. Mursaleen injured. Mohd. Mursaleen was sent to AIIMS and was examined vide MLC Ex.PW13/A. He was certified fit for statement by the doctor. THE statement of the Complainant was recorded vide Ex. PW1/A in which it was alleged that on 1st May, 2006 at about 10:50 A.M., two persons entered inside the gate of his house which was already open. Immediately on entering they showed country-made pistols to the ladies and the children and said in case they made noise, they will shoot them. On seeing that, as he stood up, three more persons came inside from the gate at the back side and out of them one person who had a country-made pistol went towards the women and took the ladies and children inside whereas the other two had knives in their hand and cornered the Complainant and abused him and threatened that if he makes noise, they will shoot him. THEreafter, they tied his mouth with the dupatta of his daughter and threatened that if he did not take out the entire money and jewellery of the house, he would be finished. While they were tying the dupatta on his mouth and hand, the Complainant showed courage and gave a fist blow on which one of them inflicted a knife injury which he caught hold of by the left hand resulting in a injury on the index finger of his left hand. He and his family shouted and as the gate was open, people got collected. Four of the accused persons ran away showing the country-made pistols however the person whose knife was caught by the Complainant. THE Complainant caught his feet and did not leave him and the people gave fist and leg blows to him. In the meantime, the beat Constable who had passed through this place a short while ago, returned back and apprehended this person. His name came to be known as Mustakeen. THE Complainant stated that he could identify the four persons who ran away and action be taken against all the five who attempted to loot him and his family by showing country-made pistols and knives.

(2.) THE Appellant Mustakeen was apprehended on the spot, however the co-accused could not be arrested. When on 15th May, 2006 the Appellants Dilshad and Kishore were arrested in FIR 538/2006 under Sections 186/353/307/411/34 IPC and Sections 25/27 Arms Act, they made disclosure about the commission of offence in the present case and also led to the arrest of one Ehsaan. THE Appellants Dilshad and Kishore were produced for T.I.P. however, they refused to get the T.I.P. conducted. Dr. Malik @ Shokeen, co- accused was not identified by the Complainant and thus he was discharged. THE other two accused Zahir and Yasim could not be traced and thus they were declared proclaimed offenders. On filing of the charge-sheet, the Appellants were initially charged for offences under Section 394/398 IPC and Sections 25/54/59 Arms Act and subsequently for offences punishable under Sections 395/397/398 IPC and Sections 25/54/59 Arms Act. After recording the prosecution evidence, statements of the accused under Section 313 Cr.P.C. and the defence witnesses, the Appellants were convicted for offences punishable under Section 395 read with Section 398 IPC and awarded a sentence of imprisonment for a period of seven years and a fine of '5,000/- each in default of payment of fine to undergo further simple imprisonment for a period of six months. Appellant Mustakeen was also convicted for offences punishable under Sections 25/54/59 Arms Act and awarded Rigorous Imprisonment for a period of one year and a fine of '1,000/- and in default of payment of fine to further simple imprisonment for a period of one month. THE judgment dated 20th November, 2009 and order dated 26th November, 2009 in Sessions Case No. 10/2008 are impugned in these appeals.

(3.) AS regards the Appellant Kishore Kumar @ Panditji, learned amicus curiae states that he was arrested after two weeks of the alleged incident and despite Mustakeen being in custody and having made the disclosure, he was not apprehended. No description of the Appellant has been given in the FIR and he has been named only in the testimony of PW1 in the court, hence the testimony of PW1 is not reliable. There are glaring illegalities in the impugned judgment. AS per PW13, Investigating Officer, it is stated that two other persons could not be arrested, however, finding of the learned trial court is that it is proved that five persons entered the house for committing dacoity. The offence of attempt to dacoity is not punishable under Section 395 IPC as has been held by the learned trial court. The Appellants were simultaneously charged for offences punishable under Section 398/397 IPC which is impermissible. The Appellant Mustakeen has been acquitted for offence under Section 397 IPC not because of technical reasons, but because the version of the Complainant was not believed as it was contradictory in nature. Since no recovery of any knife was made from the Appellant Kishore Kumar so the charge of armed with knife is not proved. It has not been proved that the Appellants either used or were armed with the weapon recovered and thus, the Appellants cannot be convicted for offence under Section 398 IPC. Reliance is placed on Sunil @ Munna vs. State 2010 (1) JCC 388 and Rakesh Kumar vs. State of NCT of Delhi 2005 (1) JCC 334, to contend that in absence of recovery of the knife, allegedly used at the time of commission of dacoity, it cannot be presumed that the knife used was a deadly weapon. Even if the prosecution case is taken at the best, only a case under Section 395/511 IPC is made out and the Appellants have already undergone substantial sentences. The maximum sentence which can be awarded for an attempt is five years and the Appellants have already undergone more than five years imprisonment.