Mohd. Noor v. State

1 These are two appeals filed by Mohd. Arif and Mohd. Noor. Mohd. Arif is a convict under Section 397 of the IPC. He has been sentenced to undergo RI for a period of 7 years and to pay a fine of Rs.2,000/- and in default of payment of fine to undergo SI for 15 days. His nominal roll has.beenrequisitioned.It reflects that as on date, he has Crl. AppealNOS.1337/2012& 386/2012 Page1of[7] /B undergone incarceration of about 5 years and 6 months including remission. Hisjail conduct is satisfactory. The second appellant namely Mohd. Noor is a convict under Section 392 of the IPG. He has been sentenced to undergo RI for a period of 3 years, and to pay a fine of Rs.2,000/- and in default ofpayment offine to undergo SI for 15 days. His nominal roll reflects that as on date,he has undergone incarceration of[2] years and almost 3 months including remission. Hisjail conduct is also satisfactory.

2 The version ofthe prosecution was unfolded in the testimony of the complainant(Dinesh). He was examined as PW-4.He has deposed that on the fateful day i.e. on 01.06.2011 at about 08:30 to 08:45 PM when he was returning from his work and alighted at Punjabi Bagh power house, he took lift in auto No. 8231 in which t\yo persons were already there as also the driver of the auto. When they reached near Britannia bridge,one ofthe person namely Mohd.Arifputa knife on his neck and snatched his Samsumg mobile; accused Azim took Rs.480/-. He was thrown out of the auto. He informed the police who were nearby. Accused persons were apprehended after chasing the TSR.This witness was subjectto a lengthy cross-examination.He admitted thatthe Crl.AppealN6S.1337/2012& 386/2012 Page2of? knife which was taken out by Mohd. Arifwas in the pocket ofthe pant worn by him.It was not a buttondar knife; it was a sim]^le knife. When he had sat in the TSR, it Was moving slowly. The mobile had been purchased by him 8 months ago and this had been recovered from the ^ accused Mohd. Arif. He had also been robbed ofRs.4'80/- which had subsequently been recovered from the third accused Mohd. Azim. This Court has been informed that Mohd. Azim has undergone incarceration imposed upon him. As such he has not filed any appeal, PW-4 was categorical on the identification. Submission being that he had identified # ' the accused persons atthe spotitselfasthe TSR had been apprehended by the police party who had chased the TSR and caught them near the Britannia bridge, '

3 The knife was seized vide memo Ex.PW-3/Bj and it sketch (Ex.PW-3/A)was prepared.The Investigating Officer SI Radhey Shyam was examined as PW-7.He had been accompanied by HC Ram Rattan (PW-3)and constable TejPal(PW-6).iPW-3 and PW-6 had also signed lH Ex.PW-3/AandEx.PW-3/B. • -

4 On the basis ofthe aforenoted evidence which had been collected bythe prosecution,the accused persons were convicted and sentenced as Crl.AppealNOS.1337/2012& 386/2012 Pagfe3of[7]... aforenoted.

5 The foremost submission of the learned counsel for appellant Mohd.i^ifis that the sketch ofthe knife clearly shows.that it is a long knife,it was a simple knife and not being buttondar,it was notfoldable; ^ this long knife could not have been put in the pocket ofthe accused Mohd. Arif as is the version ofthe PW-4. There is a clear doubt on the recovery of the weapon which was allegedly'used and that which has been produced in the Court as presuming that the version ofPW-4 is correct and a knife had been used and had been recovered from the pant ^ pocket ofMohd.Arif,the knife which had been produced in Court and the sketch of which had been prepared (Ex.PW-3/A and Ex.PW-3/B) clearly shows that such a long knife which measures 27 cms in length and not being foldable could not have been placed in the pant pocket.It ' is impossible to believe that a person having such a long knife could keep it in his pan pocket and that too while sitting in the TSR as is the further version ofPW-4. P 6 This Submission ofthe learned counsel for appellant Mohd. Arif appears to be largely correct. The seizure memo and the sketch ofthe knife disclose that it was a long knife; blade measures 16.[5] cms and Crl. Appeal NOS.1337/2012&386/2012 Page4of? o. handle was 10.[5] cms;the total length ofthe knife is 27 cms.Such a long knife which is not foldable at the cost ofrepetition cannot be put in a pantpocket;even presuming thatthe pocketis very long,even then such a knife ifput in a pant pocket would definitely not pemiit the holder to sit. Thus the version ofthe complainant(PW-4)on this count that the knife was recovered from the pant pocket ofMohd.Arifwho was sitting in the TSR and he had taken it out from his pant pocket but considering the length ofthe knife which is 27cms does not corroborate this version as it would be wholly impossible to believe that such a long knife could be put in a pant pocket and that too when the person was sitting. The recovery ofthe weapon clearly becomes doubtful.

7 A conviction under Section 397 ofthe IPG can be sustained only if it is established by the prosecution beyond all reasonable doubt that the offender had used the 'deadly weapon' at the time of committing robbery or dacoity.This Courtis ofthe view thatthe alleged recovery of the deadly weapon has become doubtful in view ofthe size ofthe knife and the testimony ofPW-4 which has been discussed supra.

8 This Court is accordingly inclined to modify the conviction of appellant Mohd.Ariffrom Section 397 ofthe IPG to one under Section Crl.Appeal Nos.1337/2012&386/2012 Page5of[7] V n. 392oftheIPG.The ingredients ofSection 392oftheIPG stand satisfied as admittedly a robbery had been committed on the complainant by the accused person;they had been apprehended atthe spot and from Mohd. Arif apart from the aforenoted knife, the Samsung mobile of the complainant was also recovered and the fact that this mobile was purchased by the complainant was further established from the proofof purchase ofthe rriobile which has been proved as Ex.PW-3/Hl. From accused Mohd.Azim,a sum ofRs.480/- was recovered. From the third accused Mohd.Noor,no recovery was effected butthe factthathe was a co-dccomplice and was a partofthis crime stands established bythe fact that all ofthem were admittedly together at the time when this offence i of robbery was committed upon the victim; they had also been apprehended atthe spotjust minutes afterthe incident.

9 Accordingly, while maintaining the conviction of both the appellants under Section 392 of the IPG and noting the period of I inc^ceration already suffered by each of them; Mohd. Arif having ^ suffered incarceration of 5 years and 6 months and Mohd. Noor also having suffered incarceration of 2 years and 3 months (out of total period of 3 years which has been imposed upon him, the sentence Crl.AppealNbs.l337/2012&386/2012 Page6of? I i' % already suffered by them be treated as the sentence imposed upon ofthem.Fine amountremains unaltered. Subject to deposit offine, be released forthwith,ifnotrequired in any othercase.

10 Both the appeals are disposed ofin the above terms. each they INDERMEET KAUR,J OCTOBER 01,2015 A ■ Crl. AppealNos.1337/2012&386/2012 Page 7of[7].