Mohd Saleem vs State NCT Of Delhi

Madhu Jain, J.

The present appeals have been filed challenging the common judgment dated 23.07.2024 and the consequential order on sentence dated 07.09.2024 passed by the learned Principal District and Sessions Judge in Sessions Case No. 381/2016, arising out of FIR No. 108/2012, registered at Police Station Pandav Nagar, for offences punishable under Sections 395/412/34 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’).

The prosecution's case is that on 11.04.2012, upon receipt of DD No. 21A, SI Sudhir (PW-9), accompanied by Ct. Surender (PW-1), reached Gali No. 3, F Block, Samaspur, Pandav Nagar, Delhi, where Ct. Digpal (PW-5), HC Kanwarpal (PW-6), the complainant Ram Yadav (PW-2), and the three accused, namely, Mohd. Saleem, Arshad and Asmat Ali, were present. Mohd. Saleem and Arshad, who had allegedly been beaten by members of the public, were taken to LBS Hospital for medical examination.

During the search of accused Asmat Ali, seven purple-coloured boxes were recovered, which the complainant identified as the boxes used by the accused persons to offer rewards. The complainant's statement regarding the incident of robbery was recorded, and FIR No. 108/2012 was registered. During the investigation, ₹19,000/- belonging to the complainant and one MTS mobile phone were recovered from accused Mohd. Saleem, while a black Samsung mobile phone was recovered from accused Arshad. One mobile phone and certain documents were also recovered from accused Asmat Ali. The remaining ₹11,000/- allegedly robbed from the complainant could not be recovered, as accused Arshad had allegedly handed it over to his associate Raju, who could not be apprehended. The prosecution alleged that five persons, including the three accused and their associates Raju and Ali, had participated in the commission of the offence.

Upon completion of the investigation, the chargesheet was filed against the three accused for offences punishable under Sections 395/412/34 of the Indian Penal Code, 1860. After compliance with Section 207 Cr.P.C., the matter was committed to the Court of Sessions. A charge under Section 395 IPC was framed against all three accused, while a separate charge under Section 412 IPC was framed against accused Mohd. Saleem. All the accused pleaded not guilty and claimed trial.

The prosecution examined nine witnesses in support of its case.

Statements of accused persons under Section 313 Cr.P.C. were recorded. They all denied the case of the prosecution in entirety. They stated that they are innocent and have been falsely implicated in this case and nothing was recovered from them. However, they did not opt to lead evidence in their defence.

Upon consideration of the evidence adduced on record, the learned Trial Court passed the impugned judgment dated 23.07.2024, convicting the appellants for the offences in question. The relevant portion of the impugned judgment is reproduced hereinbelow:

Vide the consequential order on sentence dated 07.09.2024, the learned Trial Court sentenced the appellants as follows:

Learned counsel for the appellants submits that the impugned judgment of conviction and the consequential order on sentence suffer from material errors of law and appreciation of evidence. It is contended that the learned Trial Court has selectively considered the prosecution evidence while disregarding material contradictions elicited during the cross-examination of prosecution witnesses, thereby rendering the findings against the appellants perverse and unsustainable in law.

It is further submitted that the prosecution has failed to establish the essential ingredients of the offence of dacoity punishable under Section 395 IPC, particularly the involvement of five or more persons in the commission of the alleged offence. It is contended that, although two other persons, namely, Ali and Raju, were allegedly involved in the incident, they were neither charge-sheeted nor brought before the Court for trial, and the prosecution failed to establish their involvement or the alleged concerted action of all five persons.

Learned counsel further submits that the prosecution has failed to establish the commission of robbery in accordance with law, as no weapon was recovered from the appellants and the evidence on record allegedly does not establish that the appellants caused or attempted to cause death, hurt or wrongful restraint in the course of the alleged incident.

It is also contended that the testimony of the complainant, Ram Yadav (PW-2), suffers from material contradictions concerning the amounts allegedly stolen by the accused persons, the recovery and seizure of the currency notes, the purpose for which the money was obtained, and the preparation of the site plan. It is argued that the complainant's testimony regarding the recovery of the alleged stolen amount is inconsistent with the seizure memo bearing his signature and that the failure to record the serial numbers of the currency notes further casts doubt on the alleged recovery.

Learned counsel additionally submits that the medical evidence does not corroborate the prosecution's version regarding the alleged apprehension and beating of the appellants by members of the public, as the MLC of the appellant concerned records no fresh injury. It is further argued that the complainant having turned hostile, the learned Trial Court erred in relying upon his testimony without adequately considering the material inconsistencies therein.

It is further contended that the prosecution failed to establish any reliable evidentiary link between the appellants and the alleged absconding associates, Ali and Raju, and did not examine independent witnesses despite the alleged presence of several persons at the spot. Reliance is placed on the cross-examination of ASI Digpal (PW-5), wherein a suggestion was put that the appellant had been picked up from his residence and beaten by police officials rather than by members of the public.

Lastly, learned counsel submits that the investigation suffers from procedural infirmities, including the alleged recording of General Diary proceedings on plain paper, contrary to the applicable police regulations. On these grounds, it is urged that the impugned judgment of conviction and order on sentence are unsustainable and that the appeals deserve to be allowed.

Learned Additional Public Prosecutor for the State submits that the prosecution has successfully established its case against the appellants beyond reasonable doubt through the consistent testimony of the complainant, Ram Yadav (PW-2), read with the testimonies of ASI Digpal (PW-5) and ASI Kanwar Pal (PW-6). It is submitted that PW-5 and PW-6, who were on patrolling duty in the area, witnessed the complainant alighting from the bus and chasing the accused persons while raising an alarm of “chor-chor”. The complainant apprehended accused Mohd. Saleem, while the remaining accused persons were apprehended with the assistance of the police officials.

It is further submitted that the recovery of ₹19,000/- from accused Mohd. Saleem and seven dibbis from accused Asmat Ali has been duly established through the prosecution evidence and the relevant seizure memos. The prosecution has also established that the remaining amount of ₹11,000/- was taken away by accused Arshad and handed over to his associate, who managed to escape. The mere fact that the other two associates could not be apprehended does not, by itself, negate the prosecution's case regarding their participation in the incident.

Learned Additional Public Prosecutor further submits that the discrepancies highlighted by learned counsel for the appellants are minor variations and do not discredit the prosecution case in its entirety. The testimony of the complainant must be read as a whole and in conjunction with the corroborative evidence of the police witnesses and the recovery of the case property. It is contended that the absence of recovery of the remaining amount or the non-examination of independent public witnesses is not, by itself, sufficient to discard otherwise reliable evidence.

It is accordingly submitted that the learned Trial Court has duly considered the evidence on record and rightly convicted the appellants for the offences charged. The impugned judgment of conviction and order on sentence are, therefore, sought to be sustained, and the appeals are liable to be dismissed.

This Court has heard the submissions advanced by learned counsel for the parties and has perused the material available on record.

At the outset, this Court considers it appropriate to examine the essential ingredients of dacoity as defined under Section 391 of the Indian Penal Code, 1860. The relevant portion of Section 391 of the Indian Penal Code, 1860, is reproduced hereinbelow:

A bare perusal of the provision reveals that the commission or attempted commission of robbery conjointly by five or more persons is an essential ingredient of the offence. The provision also includes persons present and aiding the commission or attempted commission of robbery, provided that the total number of such persons amounts to five or more.

In the present case, admittedly, only three persons, namely, Mohd. Saleem, Arshad and Asmat Ali, were prosecuted and tried. Although the prosecution has alleged the involvement of two other associates, namely, Ali and Raju, the mere assertion that five persons were present at the spot or were involved in the incident is not, by itself, sufficient to establish the offence of dacoity. The prosecution is required to establish, through cogent and reliable evidence, that five or more persons conjointly committed or attempted to commit robbery, or that the total number of persons committing or attempting to commit robbery, together with those present and aiding its commission or attempt, was five or more.

There must be some corroborative evidence to establish that five persons were involved in the commission of the offence. This Court cannot be oblivious to the possibility of false or exaggerated allegations being made to attract graver offences. A mere assertion regarding the involvement of five persons, without supporting evidence, cannot and should not be sufficient to attract the offence of dacoity.

In the present case, the involvement of the alleged associates must be assessed in the light of the evidence actually adduced on record, rather than on the basis of an unsubstantiated allegation. Further, the presence of five persons, even if established, would not by itself fulfil the requirements of Section 391 IPC unless the underlying act is proved to constitute robbery within the meaning of Section 390 IPC. Accordingly, the prosecution must establish both the requisite number of participants and the commission or attempted commission of robbery before the appellants can be held guilty of dacoity under Section 395 IPC. The relevant portion of the complainant's testimony is reproduced hereinbelow:

This Court shall now examine whether the essential ingredients of robbery, as defined under Section 390 IPC, are established in the present case. The relevant portion of Section 390 of the Indian Penal Code, 1860, is reproduced hereinbelow:

Under the said provision, theft amounts to robbery where, for the purpose of committing the theft, while committing the theft, or while carrying away or attempting to carry away the property obtained by theft, the offender voluntarily causes or attempts to cause death, hurt or wrongful restraint, or fear of instant death, instant hurt or instant wrongful restraint.

Upon a careful perusal of the testimony of the complainant, Ram Yadav (PW-2), this Court finds that, in his examination-in-chief, he did not specifically state that the accused persons had caused or attempted to cause him death, hurt or wrongful restraint, or had put him in fear of instant death, instant hurt or instant wrongful restraint. However, during his cross-examination by the learned Additional Public Prosecutor, he stated that the persons who stood beside him and intimidated him, whereupon he became frightened, apprehending that they might be carrying weapons and could cause him harm if he objected. Relevant portion of Examination-in-Chief and Cross-Examination of PW-2 is reproduced hereinbelow:

The aforesaid testimony must be assessed in its entirety and in the context of the statutory requirements of Section 390 IPC. The mere fact that the complainant became frightened would not, by itself, satisfy the requirements of the provision unless such fear was of instant death, instant hurt or instant wrongful restraint and was caused by the offender for a purpose specified therein. In the present case, the complainant has neither stated in his examination-in-chief nor in his cross-examination that the appellants threatened him with instant death, hurt or wrongful restraint. His testimony merely indicates that the appellants approached him while attempting to sell lottery tickets and that he became frightened. There is no specific assertion that the appellants caused or attempted to cause any of the consequences contemplated under Section 390 IPC, or that the complainant apprehended instant death, instant hurt or instant wrongful restraint. In the absence of evidence establishing these essential ingredients, the prosecution has failed to establish that the alleged theft amounted to robbery within the meaning of Section 390 IPC.

The Hon’ble Supreme Court, in Mohd. Wajid and Another v. State of Uttar Pradesh and Others, (2023) 20 SCC 219; elucidated the essential ingredients required to be satisfied before theft can amount to robbery under Section 390 of the Indian Penal Code, 1860. The Court held that the offender must voluntarily cause or attempt to cause death, hurt or wrongful restraint, or fear of instant death, instant hurt or instant wrongful restraint, for one of the purposes specified in the provision. Mere occurrence of hurt or violence during the course of the transaction is insufficient unless the requisite nexus with the commission of theft or the carrying away of the stolen property is established. The relevant portion of the judgment is reproduced hereinbelow:

Accordingly, this Court finds it necessary to determine whether the evidence establishes the commission of robbery within the meaning of Section 390 IPC. Unless the foundational ingredient of robbery is established, the charge of dacoity under Section 395 IPC cannot be sustained. The prosecution must also establish that five or more persons conjointly committed or attempted to commit the robbery, or that the total number of persons jointly committing or attempting to commit the robbery and those present and aiding its commission or attempt amounted to five or more, as required under Section 391 IPC.

In view of the foregoing discussion, this Court finds that the prosecution has failed to establish the commission of dacoity, as defined under Section 391 IPC and punishable under Section 395 IPC. Consequently, the conviction of appellant Mohd. Saleem under Section 412 IPC cannot be sustained, as an essential ingredient of the said offence, namely, that the property in question was stolen in the commission of a dacoity, has not been established by the prosecution. Accordingly, the conviction of appellant Mohd. Saleem under Section 412 IPC is also liable to be set aside.

This Court, however, finds no reason to doubt the recovery of ₹19,000/-from accused Saleem. The evidence on record is sufficient to establish the offence of theft. Section 378 of the Indian Penal Code, 1860, defines theft as the dishonest taking of movable property out of the possession of any person, without that person's consent, by moving such property in order to effect the taking.

In the present case, this Court is satisfied that the ingredients of theft, as defined under Section 378 IPC, stand established. The relevant provisions of Sections 378 and 379 of the Indian Penal Code, 1860, are reproduced hereinbelow:

Upon a consideration of the testimony of the complainant, read with the evidence of the police witnesses and the recovery proceedings, this Court finds that the recovery of ₹19,000/- from appellant Mohd. Saleem stands established. The complainant has specifically deposed that the said amount was taken from his possession without his consent. The evidence, therefore, establishes the dishonest removal of movable property from the complainant's possession, thereby satisfying the essential ingredients of theft under Section 378 IPC. Accordingly, the offence punishable under Section 379 IPC stands established against appellant Mohd. Saleem.

Accordingly, the offence punishable under Section 379 IPC is made out. Section 379 IPC prescribes punishment with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Having regard to the facts and circumstances of the present case, and upon perusal of the nominal rolls of the appellants, this Court notes that the appellants have already undergone a period of incarceration of nearly two years. In view of the period of custody already undergone by them, this Court deems it appropriate to sentence the appellants to the period of imprisonment already undergone by them.

In view of the foregoing discussion, the appeals are partly allowed. The impugned judgment of conviction dated 23.07.2024 and the consequential order on sentence dated 07.09.2024 are set aside insofar as they relate to the conviction of the appellants under Section 395 IPC and the conviction of appellant Mohd. Saleem under Section 412 IPC. However, the appellants are held guilty of the offence punishable under Section 379 IPC, in view of the findings recorded hereinabove, and are sentenced to the period of imprisonment already undergone by them.

The appellants shall be released forthwith, if not required to be detained in any other case, subject to compliance with the applicable provisions of law.

The appeals stand disposed of in the above terms. Pending application(s), if any, also stand disposed of.

A copy of this judgment be transmitted to concerned jail superintendent for information and necessary compliance.