MEHBOOB Vs. STATE (NCT OF DELHI)

JUDGEMENT

(1.) Vide impugned judgment dated 25th Aug., 2014, Mehboob, Shahadut Hussain, Mohd. Abdul Qayum and Shamshad were convicted for the offence punishable under Sec. 395 Penal Code read with Sec. 120B IPC. Shahadut Hussain, Mohd. Abdul Qayum and Shamshad were also convicted for the offence punishable under Sec. 412 IPC. Vide order on sentence dated 5th Sept., 2014, all the appellants were sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 10,000.00 for offence punishable under Sec. 395 Penal Code and rigorous imprisonment for period of seven years and to pay a fine of Rs. 5,000.00 for offence punishable under Sec. 120B IPC. Shahadut Hussain, Mohd. Abdul Qayum and Shamshad were also sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 10,000.00 for offence punishable under Sec. 412 IPC.

(2.) Learned counsel for appellant Mehboob contends that one co-accused Bashir Ahmed allegedly involved in the incident was never arrested nor tried, hence conviction of the appellant for offence punishable under Sec. 395 Penal Code i.e. dacoity is liable to be set aside. Appellant Mehboob has not been convicted for offence punishable under Sec. 412 Penal Code hence it can safely be held that the prosecution has not proved his involvement in the dacoity as well. No recovery was made pursuant to the arrest of Mehboob. He has been falsely implicated.

(3.) Learned counsel for Shamshad contends that an alleged offence punishable under Sec. 356 Penal Code has been converted into offence punishable under Sec. 395 read with Sec. 120B Penal Code by roping in Mohd. Abdul Qayum who was only plying the rickshaw, as a conspirator to take the number of accused persons to five. In the FIR, complainant stated that chain of the rickshaw was getting disengaged frequently, so he asked them to take the tonga. However Nand Lal, the complainant improved his version in Court to show the complicity of Mohd. Qayum and stated that he forcefully kept their bags in the Tonga. Neither rickshaw of Mohd. Qayum was recovered nor the same was sent for mechanical inspection. In the FIR, it was not stated that threat of giving knife blow was made however the same was deposed to in Court. Though from Ajmeri Gate, the complainant and his brother were to go to Sarafa Bazar, Chandni Chowk, one fails to understand how they landed up in front of Hanuman Mandir, Jamuna Bazar. No description of the accused has been mentioned in the FIR. As per the notes in the site plan, four persons were involved. No previous involvement of the appellant has been proved. Thus even if the case of the prosecution is accepted, at best the appellants can be convicted for offence punishable under Sec. 356 Penal Code or 392 Penal Code and they be thus released on the period already undergone. Reliance is placed on the decisions of this Court in Shafiq Vs. State (Crl. A. 397/2006 decided on 6th Jan., 2009), Sammi & Anr. Vs. State (Crl. Rev. P. 565/2014 decided on 27th April, 2015) and Ikrar Vs. State Govt. of NCT of Delhi (Crl. Rev. P. 454/2014 decided on 5th Nov., 2015).