Research › Search › Judgment

Delhi High Court · body

2014 DIGILAW 1165 (DEL)

Sheikh Hussain @ Gatku v. State

2014-04-04

V.K.JAIN

body2014
Judgment V.K. Jain, J. 1. On 13.5.2009, at about 5:09 p.m. Police Station Jahagirpuri was informed that a thief had been caught in W-Block, Ramleela Ground, Mangal Bazar. The information was recorded vide DD No.37A and Head Constable Ram Kumar was instructed on telephone to investigate the matter. The aforesaid police officer reached Mangal Bazar Road near Ramleela Ground, Jahagirpuri, where the complainant Sheikh Ansar met him. Sheikh Ansar produced the appellant Sheikh Hussain along with a scissor. On search of the appellant, a purse containing Rs.250/- in cash and driving licence of the complainant as well as his PAN card was recovered from the right pocket of his pant. The statement of Sheikh Ansar was recorded by the Head Constable. The complainant told him that on that day, at about 4:40 p.m. when he reached Ramleela Ground, H2 Block, Jahagirpuri, on the way to this shop, the appellant Sheikh Hussain came to him and demanded money to take liquor and threatened to give scissor blow to him in case money was not paid. A scissor was taken out by the appellant and put on the abdomen of the complainant. His purse containing cash, driving licence and PAN card was removed by the appellant who then fled from the spot. On alarm being raised by the complainant, he was apprehended by the members of the public and given beating. Head Constable Ram Kumar having reached there in the meanwhile the appellant was handed over to him along with the scissor. 2. After completion of investigation, the appellant was prosecuted under Sections 392/397/411 of IPC. On 26.8.2009, he was charged under Sections 392/397 of IPC for committing robbery of the purse of the complainant by putting him in fear of instant death and wrongful restraint. Since the appellant pleaded not guilty to the charge, four (4) witnesses were examined by the prosecution. No witness was examined in defence. 3. The complainant Sheikh Ansar came in the witness box as PW3 and inter alia stated that on 13.5.2009 at about 4:40 p.m. when he was going from his house to his shop and reached near Ramleela Ground, Jahagirpuri, the appellant came there and asked him to give money for drinking liquor. He (the appellant) brought out a scissor and put the same on his (complainant’s) stomach, threatening to kill him. He (the appellant) brought out a scissor and put the same on his (complainant’s) stomach, threatening to kill him. Simultaneously the appellant took out the purse of the complainant containing Rs.250/- in cash besides his driving licence and PAN card. On alarm being raised by him, the appellant was apprehended with the help of the public which also started beating him. He informed Police Control Room and Head Constable Ram Kumar reached the spot. The appellant was handed over to him along with scissor. The purse containing Rs.250/- in cash besides his driving licence and PAN card was recovered from the pocket of the pant of the appellant. The witness identified the scissor Ex.P1 which the appellant had put on his abdomen as well as his purse Ex.P2, driving licence Ex.P4 and his PAN card Ex.P5. 4. PW2 Constable Ramesh stated that he along with Head Constable Ram Kumar reached Mangal Bazar near Ramleela Ground. The complainant produced the appellant Sheikh Hussain along with a scissor. On search of the appellant a purse containing Rs.250/- in cash besides driving licence and PAN card of the complainant was recovered from the pocket of the appellant and was seized. The witness identified the scissor Ex.P1 which the complainant had handed over to them as well as the purse Ex.P2, driving licence Ex.P4 and PAN card Ex.P5. PW4 Head Constable Ram Kumar corroborated the deposition of PW2 Constable Ramesh and he also identified the scissor as well as the purse, PAN card and driving licence of the complainant. 5. In his statement under Section 313 of Cr.P.C., the appellant denied the allegations against him and claimed to be innocent. He claimed that he had gone to the house of his in-laws and was playing on the road with children when police officials took him to police station and implicated him in a false case. 6. Vide impugned judgment dated 21.11.2009, the appellant was convicted under Sections 392/397 of IPC and vide impugned Order on Sentence dated 26.11.2009, he was sentenced to undergo imprisonment for seven (7) years and pay fine of Rs.2,000/- or to undergo RI for two (2) months in default. 7. Being aggrieved from his conviction and the sentence awarded to him, the appellant is before this Court by way of this appeal. 7. Being aggrieved from his conviction and the sentence awarded to him, the appellant is before this Court by way of this appeal. The learned counsel for the appellant has assailed the impunged judgment primarily on the ground that: (i) no public witness has been examined by the Investigating Officer though the incident took place in broad day light at a public place and it has also come in evidence that the appellant was apprehended by the members of the public, who had also given beatings to him, (ii) the scissor is not a deadly weapon. 8. There is no reason to disbelieve the complainant Sheikh Ansar. The appellant does not claim any previous enmity or ill-will between him and the complainant. Therefore, the complainant had absolutely no reason or motive to implicate the appellant in a false case. The complainant had nothing to gain by concocting a story of armed robbery or by implicating an innocent person in the said robbery. As regards not examining the members of the public, reluctance of the members of the public to join search proceedings conducted by the police officers is well-known. No one wants to take the trouble of visiting firstly the police station and then the courts by becoming witness in a criminal case, without any advantage to him. Therefore, no adverse inference against the prosecution can be drawn on account of the members of the public witnessing the incident not being examined. 9. The deposition of the complainant leaves no reasonable doubt that the appellant demanded money from him for taking liquor and when he did not oblige him (the appellant), the appellant took out a scissor, put it on his abdomen and threatened the complainant so as to intimidate him to meet his demand. When the complainant did not oblige him he went to the extent of taking out his purse which the complainant was carrying which contained his driving licence, PAN card. The deposition of PW2 Constable Ramesh and PW4 Head Constable Ram Kumar also corroborated the deposition of the complainant. The purse containing cash, driving licence and PAN card was recovered by these police officials from the pocket of the appellant. There is no explanation from the appellant as to how the purse of the complainant came to be found in his pocket. The purse containing cash, driving licence and PAN card was recovered by these police officials from the pocket of the appellant. There is no explanation from the appellant as to how the purse of the complainant came to be found in his pocket. Obviously he had removed it from the possession of the complainant and kept the same with him before he was apprehended by the members of the public and later handed over to the police. 10. Coming to the question as to whether the scissor is a deadly weapon or not, I am in agreement with the learned APP that the sketch Ex.PW2/A has been prepared putting the scissor on the paper and, therefore, gives actual size of the scissor. That appears to be the reason why no dimensions of the scissor have been given in the sketch Ex.PW2/A. A scissor of this size would certainly be a deadly weapon since if used as a weapon of offence, particularly at a vital part of the body, it is likely to cause death of the person to whom the injury is caused. In Crl. A. No.1403/2011 titled Javed Vs. State (Govt. of NCT of Delhi) decided on 11.7.2012, this Court rejected the contention that scissor was not a deadly weapon. 11. In these circumstances, the conviction of the appellant under Section 392 of IPC read with Section 397 thereof cannot be faulted. The conviction is accordingly sustained. Since the substantive sentence awarded to the appellant is the minimum sentence prescribed under Section 397 of IPC, there is no scope for its reduction. It is, however, directed that in the event of failure to deposit fine, the appellant shall undergo SI for fifteen (15) days as against imprisonment of three (3) months awarded by the trial court. The appeal stands disposed of. One copy of this order be sent to the concerned Jail Superintendent for information and necessary action. LCR be sent back along with a copy of this order.