The central legal point established in the judgment is the interpretation and application of the legal provisions related to dacoity, conspiracy, and receiving stolen property in the commission of dacoity under the Indian Penal Code.

MUKTA GUPTA, J.

1. Vide impugned judgment dated 25th August, 2014, Mehboob, Shahadut Hussain, Mohd. Abdul Qayum and Shamshad were convicted for the offence punishable under Section 395 IPC read with Section 120B IPC. Shahadut Hussain, Mohd. Abdul Qayum and Shamshad were also convicted for the offence punishable under Section 412 IPC. Vide order on sentence dated 5th September, 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/- for offence punishable under Section 395 IPC and rigorous imprisonment for period of seven years and to pay a fine of Rs.5,000/- for offence punishable under Section 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/- for offence punishable under Section 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 Section 395 IPC i.e. dacoity is liable to be set aside. Appellant Mehboob has not been convicted for offence punishable under Section 412 IPC 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 Section 356 IPC has been converted into offence punishable under Section 395 read with Section 120B IPC 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 Section 356 IPC or 392 IPC 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 January, 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 November, 2015).

4. Learned counsel for Mohd. Abdul Qayum contends that Constable Vijay Kumar in his deposition stated that he was with the investigating officer from 17th to 19th May, 2012 and in the first disclosure statement, Shamshad did not disclose the name of Mohd. Qayum. Thus only to make out a case of dacoity, name of the appellant has been introduced as a conspirator. Alleged recovery from the house of the appellant is unbelievable. ASI Om Prakash in his deposition stated that the house of Mohd. Qayum was a hut type house having no door. No person was present. No public witness was associated with the recovery. Further when appellant Mohd. Qayum was brought to Delhi by train, he was in unmuffled face. Thus, he refused to undergo the test identification parade rightly. Moreover, Shayam Babu deposed that photograph of Mohd. Qayum was shown to them on the mobile phone.