SANWAR @ RAZZAK Vs. STATE

JUDGEMENT

(1.) THIS appeal has been preferred by Sanwar @ Razzak to challenge the legality of a judgment dated 15.11.2011 in Sessions Case No. 60/08 arising out of FIR No. 72/08 registered at Police Station Alipur by which he and his associates were held perpetrators of the crime under Section 395/398 IPC. The appellant was also convicted under Section 27 Arms Act. By an order dated 19.11.2011, he was awarded RI for eight years with fine Rs. 2,000/ - under Section 395/398 IPC and RI for three years under Section 27 Arms Act. Both the sentences were to run concurrently.

(2.) THE prosecution case in brief as projected in the charge -sheet was that on the night intervening 03/04.04.2008, Sanjeev Kumar (PW -1) security guard was deputed outside the godown of East India Transport Company located at the Theke Wali gali, Alipur, Delhi and was on duty from 08.00 p.m. to 08.00 a.m. (next morning). At around 02.15 a.m., when he was taking round of the godown, he saw two tempos parked near the shutter. When he put on the torch, he saw four individuals trying to open it. On being challenged, three more individuals got down from the tempos; they were armed with swords, iron rod and knives and threatened him to run away. He raised alarm 'daku -daku ' and ran away towards the back side. However, two of the assailants caught hold of him after chase and attacked him. Other miscreants also attacked him with a knife, which struck him on his left thigh and blood started oozing out. In the meanwhile, two police/beat officers arrived there on a motorcycle. On seeing them, the assailants fled the spot and ran towards G.T.Karnal Road. At Singhu Border, those tempos were stopped after chase and four accused persons after alighting from the tempo started running away; they were overpowered and apprehended. The appellant (Sanwar @ Razzak) was one of them and was caught with a knife along with Amzad Khan, Sheikh Sharaft and Imran @ Rikki. Two tempos bearing registration No.HR55 -D -0508 & UP14 -AE -9143 were seized. The investigating officer lodged First Information Report after recording statement of the complainant -Sanjeev Kumar. During investigation, statements of the witnesses conversant with the facts were recorded and a charge -sheet was submitted under Section 395/397/398 IPC read with Section 25/27 Arms Act. Subsequently, Sikandar @ Raja and Jan Mohd.@ Bhola were also arrested and supplementary charge -sheet was filed against them. All of them were duly charged and brought to trial for committing offences under Sections 395/397/398 IPC. The prosecution examined seventeen witnesses to substantiate their charges. In 313 statements, the accused persons pleaded false implication. After considering the rival contentions of the parties, the Trial Court by the impugned judgment convicted Amzad Khan, Imran @ Rikki, Sheikh Sharafat and Sanwar @ Razzak (the appellant) and acquitted Sikandar @ Raja and Jaan Mohd. of all the charges. It is pertinent to note that the State did not challenge their acquittal.

(3.) THE prosecution was able to establish that the appellant and his associates arrived at the spot in tempos while armed with various weapons. When they were found endeavouring to break into the godown, Complainant -Sanjeev Kumar (PW -1) challenged and prevented them from doing so. On that, the complainant was assaulted and injured. Even if the prosecution case is taken on its face value, ingredients of 395/397/398 for which the appellant and his associates were charged, are not attracted or proved. In the cross -examination, the complainant admitted that no 'theft ' had taken place and nothing was taken away by the culprits. He also admitted that no cutting material like hammer or any other thing which could cut the shutter was found or recovered. He volunteered to add that the assailants were found present near the shutter and were trying to open it. The locks were not broken and were intact. He further admitted that there were no marks of hammer on the shutter. Apparently, it was a mere preparation or at the most an attempt to commit house -breaking with an intention to commit theft in which they did not succeed. They did not command the complainant to hand over any valuable property at the point of knife or any other deadly weapon. They simply caused injuries when he dared to challenge them to foil their plan. Needless to say, violence or hurt was entirely unconnected with the offence of theft. Where no force or show of force is found to have been used in the committing of the theft, the offence of robbery/decoity cannot be said to have been committed. In the present case, the prosecution was unable to establish commission of theft or robbery as no movable property was taken out of the possession of the complainant. No property was delivered to the assailants by the complainant under fear of instant hurt etc. If no property is carried off, there is no decoity. The essentials of the offence of decoity are that the theft should be perpetrated by means of either of actual violence or of threatened violence which are lacking in the instant case.