Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Del) 757

IN THE HIGH COURT OF DELHI AT NEW DELHI
MANOJ KUMAR OHRI, J.
In the matter of: Mohd. Asif & Ors. - Appellants
Versus
State - Respondent
Crl. A. No. 513 of 2020 and Crl.M.(Bail) No. 8183 of 2020 and Crl. A. No. 557 of 2020
Decided On : 22-12-2021

Advocates Appeared:
For the Appellant : Mr. Salim Malik.
For the Respondent: Mr. Ashok Kumar Garg, A.P.P.

Point of Law: Recovery of the weapon of offence is not a sine qua non for convicting an accused. Albeit under Sections 302/34 IPC, the Court in this case also opined that it was not possible to reject the ocular evidence of eye-witnesses to the incident, who were reliable and trustworthy.

Headnote:
Criminal Procedure Code, 1973 - Section 428 and 313 - Indian Penal Code, 1860 - Sections 392/397/506/34 and 302 - Punishment for criminal intimidation - Period of detention undergone by the accused to be set off against the sentence or imprisonment - Police officials went to place of incident where they met complainant who gave his statement that he along with his three friends were going towards ‘Ever bake in their car for purchasing cake for party - Ankit was driving car - Before purchasing cake they stopped car near corn vendor - After taking corn when they were moving towards ‘Everbake’, at around 8.30 pm, two boys came in front of their car and forcefully made them open mirror of driver side of their car - Then said boy pointed gun towards Ankit, who was driving car - Whether non-recovery of robbed articles or of weapons of offence is material for proving offence under Section 397 IPC, Court deems it apposite to refer to decision rendered in CRL.A wherein it was observed that non-recovery of weapon of offence is not fatal to prosecution case.
Finding of the Court: Court concurs with conclusion arrived at by Sessions Court - Testimonies of eye-witnesses are consistent trustworthy and reliable - Appellants have been correctly identified by eye-witnesses Manish and Ankit and all eye-witnesses have consistently deposed that appellants ‘used’ guns to rob gold chain and kadas from victims - Court deems it apposite to refer to decision rendered in State, CRL.A wherein it was observed that non-recovery of weapon of offence is not fatal to prosecution case - In said case, reference was made to decision in where Supreme Court has held that word in Section 397 IPC is satisfied if accused at relevant time was armed with a deadly weapon which was visible to victim and put him under fear - Appellants that Investigating Officer did not make any efforts to seize CCTV footage from near site of incident - In Court regard, it is noted that it has come in cross-examination of Ankit and Utkarsh that only a suggestion was given to police officials to verify from CCTV cameras near spot of incident - However, no material has been placed on record to suggest, much less establish, that CCTV cameras were installed near place of incident.
Result: Appeals dismissed.

JUDGMENT :

Manoj Kumar Ohri, J.

1. As both the above-noted appeals have been preferred against a common judgment on conviction, they are taken up for hearing together and shall be disposed of vide a common judgment.

2. By way of the present appeals, the appellants have assailed the judgment on conviction dated 29.02.2020 and the order on sentence dated 18.08.2020 passed by the learned Addl. Sessions Judge-03, North-West District, Rohini, Delhi in SC No. 33/18 arising out of FIR No. 216/2017 registered under Sections 392/397/506/34 IPC at P.S. Shalimar Bagh, Delhi, whereby the appellants were convicted for the offences punishable under Sections 397/392/34 IPC and sentenced as follows:-

(i) for the offence punishable under Sections 397/34 IPC, to undergo RI for a period of 07 years, alongwith payment of fine of Rs.30,000/- each, in default whereof, to further undergo RI for 06 months each, and

(ii) for the offence punishable under Sections 392/34 IPC, to undergo RI for a period of 07 years, alongwith payment of fine of Rs.30,000/- each, in default whereof, to further undergo RI for 06 months each.

Both the sentences were directed to run concurrently and the benefit of Section 428 Cr.P.C. was also granted to the appellants.

3. Briefly stated, the facts of the case, as summarized in the impugned judgment, are as under:-

“2. The case of prosecution in nutshell is that on 11.06.2017, DD no. 56A was received at PS-Shalimar Bagh that robbery has been committed at gun point near ‘Everbake’ Shalimar Bagh. On receiving the DD entry, the police officials went to the place of incident, where they met complainant Manish Garg, who gave his statement that he alongwith his three friends namely Ankit, Utkarsh and Etanshu were going towards ‘Everbake’, Shalimar Bagh in their car for purchasing the cake for the party. Ankit was driving the car. Before purchasing the cake, they stopped the car near corn vendor. After taking the corn, when they were moving towards ‘Everbake’, at around 8.30 pm, two boys came in front of their car and forcefully made them open the mirror of the driver side of their car. Then the said boy pointed gun towards Ankit, who was driving the car. The other boy came on the left side and they both pointed gun towards them and threatened them that they would shoot them. Then they took the golden chain and kadas worn by Utkarsh and Manish. The said boys went away. After some time, they called the police at number 100 number and on the basis of the statement of Manish Garg, FIR u/S 392/397/506/34 IPC was lodged against unknown persons.

2.1 That on 25.08.2017, DD no. 36B was received from Special Staff West District that accused persons who have been arrested in case FIR no. 211/17 dated 12.06.2017 PS-Moti Nagar, have disclosed the commission of the offence in the present FIR no. 216/17. Accordingly, both the accused persons were arrested. One pistol and three cartridges were recovered from their possession. TIP proceedings were conducted and they were duly identified by the complainant Manish Garg during TIP. After investigation charge-sheet was filed against both the accused persons u/s 392/397/506/34 IPC.”

4. After completion of investigation, the charge sheet was filed against both the appellants under Sections 392/397/506/34 IPC. After hearing arguments on point of charge, charges were framed under Sections 392/397/34 IPC to which the appellants pled not guilty and claimed trial.

5. Learned counsel for the appellant/Mohd. Asif raised the following contentions:-

(i) The identification of the appellant during the judicial TIP is of no relevance as the appellant was shown to the complainant/Manish Garg in the Police Station prior to the TIP and his identification took place on the basis of his photograph shown to the complainant in the police station.

(ii) Two eye-witnesses, namely Utkarsh Aggarwal (PW-6) and Etanshu Garg (PW-8), did not identify the appellant during the trial.

(iii) That the prosecution has failed to establish the ingredien