Back
2018 Supreme(Del) 2078
IN THE HIGH COURT OF DELHI AT NEW DELHI
MUKTA GUPTA, J.
Javed @ Chikna – Appellant
Versus
State – Respondent
CRL. A. Nos. 497, 541, 653, 785 of 2016
Decided On : 05-09-2018
For the Appellants : Mr. Rajiv Mohan, Mr. Abhimanyu Kampani, Mr. M.A. Karthik, Mr. Akshay Kumar.
For the Respondents: Mr. Ashok Kumar Garg, Kamaljeet Singh.
The main legal point established in the judgment is that the prosecution must prove beyond reasonable doubt that the accused assembled for the specific purpose of committing dacoity under Section 402 IPC, and the mere presence with arms is not sufficient evidence. Verbatim evidence, credible witness testimonies, and ruling out the possibility of assembling for any other offence are crucial in establishing guilt.
Headnote:
Javed @ Chikna - Conviction under Section 402 IPC and Section 25 Arms Act - 402 IPC, 25 Arms Act
Fact of the Case:
The appellants were convicted for the offence punishable under Section 402 IPC and Section 25 Arms Act based on the prosecution's evidence of assembling for the purpose of committing dacoity and possession of arms. The appellants challenged the conviction on the grounds of lack of specific evidence, material inconsistencies in testimonies, and non-examination of material witnesses.
Finding of the Court:
The court found that the prosecution failed to prove beyond reasonable doubt that the appellants assembled for the purpose of committing dacoity and possessed arms with the intention of committing the said offence. The court noted the lack of verbatim evidence of the alleged conversation and the testimony of a chowkidar, Ali Hasan, which raised doubts about the prosecution's case.
Issues: The issues revolved around the sufficiency of evidence to prove the appellants' guilt under Section 402 IPC and Section 25 Arms Act, the credibility of witness testimonies, and the interpretation of the appellants' actions as preparation for dacoity.
Ratio Decidendi: The court emphasized that mere presence with arms or assembling is not sufficient to establish guilt under Section 402 IPC. It highlighted the importance of verbatim evidence and the need to rule out the possibility of assembling for any other offence. The court also stressed the requirement of credible and consistent witness testimonies.
Final Decision: The court set aside the conviction of the appellants for offences punishable under Sections 402/34 IPC and Section 25 Arms Act, granting them the benefit of doubt. The appeals were disposed of, and the appellants were ordered to be released forthwith if not required in any other case.
MUKTA GUPTA, J.
1. By these appeals, appellants Javed @ Chikna, Ayyub, Samsuddin @ Raju and Mohd. Wahid challenge the impugned judgment dated 28th April, 2016 convicting them for the offence punishable under Section 402 IPC and Javed @ Chikna, Ayyub and Mohd. Wahid also being convicted for the offence punishable under Section 25 Arms Act in FIR No. 69/2011 registered at PS Kashmere Gate and the order on sentence of dated 4th May, 2016 directing the appellants to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 5,000/- each and in default whereof to undergo simple imprisonment for a period of two months for the offence punishable under Section 402 IPC and Javed @ Chikna, Ayyub and Mohd. Wahid were further directed to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,000/- each and in default whereof to undergo simple imprisonment for a period of fifteen days for the offence punishable under Section 25 Arms Act.
2. Assailing the conviction, Learned Counsel for Javed @ Chikna submits that there is difference between preparation and planning. The case of the prosecution is assembling for planning to commit offence and not for the purpose as required under Section 402 IPC. Though Javed @ Chikna is involved in 30 cases, however, none of the cases against him relate to dacoity and other co-accused are not Javed's associates. Since Javed has been acquitted for the offence punishable under Section 399 IPC, thus, preparation is disproved. On same facts, conviction cannot be sustained for offence punishable under Section 402 IPC. There is only one witness ASI Mahender Singh (PW-5) who overheard five persons. ASI Mahender Singh, in fact, laid the trap, seized and sealed the weapons i.e. conducted the entire investigation. Further, ASI Mahender Singh heard the alleged conversation from behind the statue which was very big, thus it was not possible to hear the conversation as alleged. Reliance is placed upon the decision of Supreme Court reported as (2008) 11 SCC 153 State of Uttar Pradesh v. Punni and Others.
3. Learned Counsel for Ayyub and Mohd. Wahid submits that appellants cannot be convicted solely on the basis of alleged conversation heard by one witness. Furthermore, the Learned Trial Court categorically held that there was no specific evidence to prove that accused persons were making preparation for dacoity and hence acquitted them for offence punishable under Section 399 IPC however, held them guilty under Section 402 IPC. It is urged that the appellants cannot be held liable for the offence punishable under Section 402 IPC since there was no overt act on the part of the appellants. There are material inconsistencies in the testimonies of the witnesses and non-examination of material witness creates sufficient doubt on the prosecution version.
4. Learned Counsel for Samsuddin @ Raju submits that there was no recovery from the appellant hence he is liable to be acquitted.
5. Per contra, Learned APP for the State submits that even though the appellants have been acquitted for preparation to commit dacoity however the prosecution led evidence beyond reasonable doubt to prove that appellants assembled for the purpose of committing dacoity and appellants Javed, Ayyub and Mohd. Wahid were in possession of arms.
6. Prosecution case springs out from the secret information received on 18th April, 2011 at about 5:50 P.M. that one person by the name of Javed @ Chikna would go to Maharaja Agrasen Park, Kashmere Gate along with 4-5 persons between 7:00-8:00 P.M. with intention to commit dacoity in the buses going to Shahadara from Mori Gate and they would be armed with weapons. Aforesaid information was recorded vide DD no. 18 (Ex.PW-5/A). Thereafter, ASI Mahender Singh along with HC Dinesh (PW-7), Ct. Gurcharan and informer went to PS Kashmere Gate. A raiding party was constituted consisting of ASI Mahender Singh, HC Dinesh, HC Ram Dayal (PW-6), HC Vijay, HC Upender (PW-4)
