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High Court of Delhi
SANJIV KHANNA & G.P. MITTAL, JJ.
Mohd Shakir & Another
Versus
State
Criminal Appeal Nos. 600 & 689 of 2011
Decided on: 24-03-2014
Indian Penal Code - Conviction under Sections 302, 364, and 201 - [302, 364, 201] - The court acquitted the appellants from the charge under Sections 302, 364, and 201 of the Indian Penal Code, 1860, and convicted them under Section 404 for dishonest misappropriation of the property possessed by the deceased at the time of his death.
Fact of the Case:
The appellants were convicted under Sections 302, 364, and 201 of the Indian Penal Code for conspiring to abduct and murder the deceased. The prosecution alleged that the appellants had conspired to abduct the deceased and subsequently murdered him, causing his body and evidence of the murder to disappear. The deceased's body was not found, and the appellants were arrested more than six months after the alleged occurrence.
Finding of the Court:
The court found that there was insufficient evidence to prove the charges under Sections 302, 364, and 201. The court granted the appellants the benefit of doubt and acquitted them from these charges. However, the court found the appellants guilty of dishonest misappropriation of the deceased's property under Section 404 of the Indian Penal Code.
Issues: The main issue was whether the appellants were guilty of the charges under Sections 302, 364, and 201 of the Indian Penal Code. Additionally, the court considered the applicability of Section 404 for dishonest misappropriation of the deceased's property.
Ratio Decidendi: The court held that there was insufficient evidence to prove that the appellants had committed the alleged offences under Sections 302, 364, and 201. The court granted the appellants the benefit of doubt and acquitted them from these charges. However, the court found the appellants guilty of dishonest misappropriation of the deceased's property under Section 404 of the Indian Penal Code.
Final Decision: The court acquitted the appellants from the charges under Sections 302, 364, and 201 of the Indian Penal Code and convicted them under Section 404 for dishonest misappropriation of the property possessed by the deceased at the time of his death. The appellants were released as they had already undergone imprisonment for more than the maximum term of 3 years stipulated under Section 404.
Sanjiv Khanna, J.
1. The aforementioned appeals arise out of a common judgment dated 20th April, 2011 in Sessions Case No. 70/2008 arising out of FIR No. 484/2007, Police Station Gokul Puri.
2. The three appellants, namely, Mohd. Shakir, Mohd. Javed and Mehfooz, by the impugned judgment dated 20th April, 2011 have been convicted under Sections 302, 364 and 201 read with Sections 120B of the Indian Penal Code, 1860 (IPC, for short). By order on sentence dated 26th April, 2011, they have been sentenced for the offence punishable under Section 302 read with Section 120B IPC to rigorous imprisonment for life and fine of Rs.2,000/-each, in default of payment to undergo simple imprisonment for six months. They have been also sentenced to imprisonment for ten years for the offence under Section 364 read with Section 120B IPC and fine of Rs.2,000/-each. In default of payment of fine for the said offence, they have to undergo Simple Imprisonment for three months. For the offence under Section 201 read with Section 120B IPC, they have been sentenced to imprisonment for three years and fine of Rs.1,000/- each. In default of payment of fine, to undergo simple imprisonment for thirty days. Benefit of Section 428 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) has been granted. The fourth accused, namely, Mohd. Ashfaq was acquitted from the charge under Section 302 and 364 read with Section 120B IPC, but was convicted under Section 411 IPC. Ashfaq was sentenced for the term of sentence already undergone and to pay fine of Rs.200/- and in default of which, he was to undergo simple imprisonment for fifteen days. The order on sentence records, fine stands paid by Ashfaq. Ashfaq was also asked to execute a bond, which was to remain in force for a period of six months.
3. It is stated at the Bar by the counsel for the appellants that Ashfaq has not filed any appeal and has accepted his conviction and sentence.
4. The charge against the appellants is that they had conspired to abduct Mohd. Idrish on 24th June, 2007 at about 2.45 P.M. at red light near Gokul Puri flyover and thereafter had murdered Mohd. Idrish and caused his body and other evidence of commission of murder to disappear.
5. At the outset, we notice that the dead body of Mohd. Idrish has not been located and found. Secondly, the three appellants were arrested, as per the prosecution version, more than six months after the date of occurrence on 15th January, 2008 at 7 P.M. As per the prosecution version, disappearance of Mohd. Idrish was on 24th June, 2007 between 3 and 4 P.M. This fact is deposed to by Mohd. Iqbal (PW-3) brother of Mohd. Idrish. PW-3 has stated that his brother Mohd. Idrish aged between 25-26 years had gone missing on 24th June, 2007. On 26th June, 2007 he had made missing report at Police Station Gokul Puri vide DD No. 27A (Exhibit PW-3/A). Thereafter, the FIR in question was registered on 30th June, 2007 as Mohd. Idrish did not return. In his cross-examination, PW-3 has accepted that he had seen his brother Mohd. Idrish upto 3-4 P.M. on 24th June, 2007 in the house and thereafter PW-3 had gone to sleep. At this stage, we only notice that the appellants were not named in the DD No. 27A or in the FIR. They were not the suspects.
6. PW-3 has deposed that deceased Mohd. Idrish was having mobile No. 9911135484 and mobile telephone instrument of Motorola make. PW-3 had made repeated attempts to contact Mohd. Idrish on the said number but the number was switched off. He had submitted receipt/bill for purchase of the mobile instrument number marked Exhibit PW-3/B. The said mobile instrument bill mentions the IMEI No. as 358916003233892. The last digit is redundant and the first fourteen digits are relevant in a GSM phone as was held by the Supreme Court in State (NCT of Delhi) versus Navjot Sandhu and Others, (2005) 11 SCC 600.
7. As it was a blind case, the police had kept mobile SIM No. 9911135484 as well as mobile instrument bearing IMEI No. 358916
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