Faimud v. State (NCT) of Delhi

1. By way of present appeal under Section 374(2) of the Code of Criminal Procedure, 1973, the appellant impugns judgment dated 12.12.2007and order on point of sentence dated 13.12.2007 vide which the appellant has been convicted and sentenced for committing offences punishable under Section 392/397 of Indian Penal Code, 1860 („IPC‟).

2. Briefly stated, the facts of the present case are that an information was received at P.S. Kalyan Puri, Delhi, that a thief had been apprehended in A-Block, near Balmiki Mandir, Trilok Puri, Delhi, after which the concerned police official had arrived at the site of incident, where one Subhash Kumar and Ram Singh had detained the accused/appellant Faimud, alongwith a purse and a buttondar knife which they had recovered from the accused. The accused alongwith the said purse and knife had then been handed over to the concerned police official. The complainant Subhash Kumar‟s statement was recorded, who stated that while he was enroute the market to purchase goods and had reached near Aggarwal Sweet House, the accused had pointed a knife at him, threatening to kill him if he raised an alarm, after which, the accused had forcibly taken out the complainant's purse from the pocket of his shirt and had begun to flee from the spot. Thereafter, the complainant had raised an alarm, leading to the apprehension of the accused with the help of other persons present at the spot. During the course of investigation, the identity of the accused was revealed as Faimud and on search, the purse belonging to the complainant, containing Rs. 265/- along with one visiting card of Subhash Chandela and three business cards of Subhash Kumar were recovered, all of which were found in the complainant's purse. The buttondar knife and the case property were duly sealed by the investigating officer, and an FIR was registered under Section 392/397 of IPC and Section 25 of Arms Act. The accused was arrested, and after investigation, chargesheet was filed against the accused and charges were framed.

3. Learned Trial Court had convicted the appellant under Section 392/397 of IPC and sentenced him to rigorous imprisonment for seven years, alongwith payment of fine of Rs. 2000/- and in default of payment of same, he was sentenced to undergo a simple imprisonment for two months. He was further sentenced to rigorous imprisonment for two years for committing offence under Section 25 of Arms Act and payment of fine of Rs.2000/- and in default of payment of same, he was sentenced to undergo a simple imprisonment for two months.

4. Aggrieved by the aforesaid judgment and order on sentence, the present appeal was preferred. The appeal was admitted vide order dated 08.07.2009 and his sentence was suspended vide order dated 22.02.2010.

5. Learned counsel for appellant argues that the judgment had been passed by ignoring the cardinal principles of criminal jurisprudence and the accused was convicted on the basis of presumptions. It is also argued that there was no evidence against the accused to convict him for the alleged offence and the only basis for his conviction is the disclosure statements, which is not permissible in law. It is also stated that there is no independent witness who supports the case of prosecution. It is further argued that the learned Trial Court has failed to appreciate that PW-5 had deposed that the Investigating Officer had completed all the proceedings in the police station instead of the place of occurrence. It is also stated that there are material contradictions in the statements of witnesses in relation to the colour of the purse, wherein PW-3 has testified that the colour of the purse was green whereas PW-5 did not remember the colour of the purse. It is further stated that the purse, that is the main evidence in the entire case of the prosecution, only had Rs.18/- in it at the time of alleged incident. It is also stated that the learned Trial Court has failed to appreciate that as per testimony of PW-2 Ram Singh, the police official had obtained his signatures on 4-5 papers but he did not know the contents of the same. It is thus argued that the present appeal be allowed.

6. Learned APP for the State, on the other hand, has argued that the prosecution had proved its case beyond reasonable doubt and the appellant was rightly convicted by the learned Trial Court, and thus, present appeal be dismissed.

7. This Court has heard arguments and has gone through the case file as well as the impugned judgment. The relevant portion of the judgment impugned before this Court reads as under:

8. Since the appellant has been convicted for offence under Sections 392/397 of IPC, it will be appropriate to discuss the relevant Sections which have been reproduced as under: “Section 390. Robbery.—In all robbery there is either theft or extortion. When theft is robbery.—Theft is “robbery” if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.—Extortion is “robbery” if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation.—The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint. Illustrations (a) A holds Z down and fraudulently takes Z‟s money and jewels from Z‟s clothes without Z‟s consent. Here A has committed theft, and in order to the committing of that theft, has voluntarily caused wrongful restraint to Z. A has therefore committed robbery. (b) A meets Z on the high roads, shows a pistol, and demands Z‟s purse. Z in consequence, surrenders his purse. Here A has extorted the purse from Z by putting him in fear of instant hurt, and being at the time of committing the extortion in his presence. A has therefore committed robbery.

(c) A meets Z and Z‟s child on the high road. A takes the child and threatens to fling it down a precipice, unless Z delivers his purse. Z, in consequence delivers his purse. Here A has extorted the purse from Z, by causing Z to be in fear of instant hurt to the child who is there present. A has therefore committed robbery on Z.

(d) A obtains property from Z by saying—“Your child is in the hands of my gang, and will be put to death unless you send us ten thousand rupees”. This is extortion, and punishable as such; but it is not robbery, unless Z is put in fear of the instant death of his child. Section 392. Punishment for robbery.—Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. Section 397. Robbery, or dacoity, with attempt to cause death or grievous hurt.—If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.”

9. This Court has gone through the testimony of PW-1, Subhash Kumar, who is the complainant in the present case. The testimony of PW-1, as analyzed by the learned Trial Court, reveals that he had not only identified the appellant in the Trial Court but had also apprehended him at the site of incident in the presence of other individuals. In his deposition, PW-1 specifically alleged that the accused had pointed a knife at him, threatening to stab him if he raised an alarm. Thereafter, the accused had forcibly removed purse from the possession of the complainant, after which, accused had been apprehended at the spot with the assistance of members of the public. He had further deposed that the police officials had been called at the site of incident, and they had recovered the case property, including the purse and the articles contained therein, as well as the knife used in committing the offence, from the accused/appellant. PW-1 had also identified both the case property and the weapon used in the commission of offence.

10. The cross-examination conducted by the appellant's counsel failed to undermine the testimony of the complainant, as no discrepancies had emerged in the testimonies of PW-1 and PW-2, or other witnesses. During cross-examination, the complainant steadfastly stood by his testimony. The argument put forth by the appellant‟s counsel, suggesting a discrepancy regarding the color of the purse, lacks significance in light of the fact that not only was the purse identified and produced before the police at the scene on the same day, but it was also identified by the complainant at the scene and in Court. The contention that such purses, as recovered in this case, are readily available in the market cannot be deemed a material contradiction or a basis for suspicion that the purse was planted. During cross-examination, the complainant reiterated his account of the offence in question, the sequence of events related to its commission, the apprehension of the accused, the recovery of the case property, the retrieval of the weapon used in the offence, and the actions taken by the police at the scene. Despite extensive crossexamination, no material discrepancy in the complainant's statement has been found.