Full Text
HIGH COURT OF DELHI
SALIM ….. Appellant
Represented by: Mr. Manu Sharma, Mr. Kartik Khanna, Mr. Abhyuday Sharma and Mr. Kartikay Mathur, Advs.
Represented by: Mr. Prithu Garg, APP for State with Insp. Ravindra Dagar, PS
Kamla Market.
ALAM@ MADARI @ ASGAR ALAM ..... Appellant Represented by: Mr. Piyush Pathak, Adv.
Represented by: Mr. Prithu Garg, APP for State with Insp. Ravindra Dagar, PS
Kamla Market.
MOHD. UVESH ..... Appellant Represented by: Mr. Manu Sharma, Mr. Kartik Khanna, Mr. Abhyuday Sharma and Mr. Kartikay Mathur, Advs.
Kamla Market 2022:DHC:4220-DB
HON'BLE MR. JUSTICE ANISH DAYAL
JUDGMENT
1. These connected appeals assail the following:
(i) Impugned judgment dated 14th December, 2017 passed by the learned Trial Court convicting the appellants Salim, Mohd. Uvesh and Alam for the offence punishable under Section 394 read with Section 34 IPC; appellant Salim and Mohd. Uvesh for offence punishable under Section 302 read with section 34 IPC, Section 397 read with Section 34 IPC and Sections 25/27 of the Arms Act; appellants Salim, Mohd. Uvesh and Alam for the offence punishable under Section 120B read with Section 394/397/302 IPC; and
(ii) Order on sentence dated 15th December, 2017 awarding the following sentences to the three appellants:
1. Appellant Salim
┌────────────────────────────────────────────────────────────────────────────────────────────┐ │ Sl. Section Sentence Fine Sentence in default │ │ No. of payment of fine. │ ├────────────────────────────────────────────────────────────────────────────────────────────┤ │ 1. 394 r/w Imprisonment Rs. 1000/- Simple │ │ Section for life. imprisonment for │ │ 397/34 IPC one month. │ │ 2. 302/34 IPC Imprisonment Rs. 1000/- Simple │ │ for life. imprisonment for │ │ one month. │ │ 3. 25 Arms Act Rigorous Rs. 1000/- Simple │ │ Imprisonment imprisonment for │ │ for 3 years one month. │ │ CRL.A.189/2018 & other connected matters Page 2 of 33 │ │ 2022:DHC:4220-DB │ │ 4. 27 Arms Act Rigorous Rs. 1000/- Simple │ │ Imprisonment imprisonment for │ │ for 7 years one month. │ │ 5. 120B r/w Imprisonment Rs. 1000/- Simple │ │ Section for life. imprisonment for │ │ 394/397/302 one month. │ │ IPC │ │ 2. Appellant Mohd. Uvesh │ │ Sr. Section Sentence Fine Sentence in default │ │ No. of payment of fine. │ │ 1. 394 r/w Imprisonment Rs. Simple │ │ Section for life. 1000/- imprisonment for │ │ 397/34 IPC one month. │ │ 2. 302/34 IPC Imprisonment Rs. Simple │ │ for life. 1000/- imprisonment for │ │ one month. │ │ 3. 25 Arms Act. Rigorous Rs. Simple │ │ Imprisonment 1000/- imprisonment for │ │ for 3 years one month. │ │ 4. 27 Arms Act. Rigorous Rs. Simple │ │ Imprisonment 1000/- imprisonment for │ │ for 7 years one month. │ │ 5. 120B r/w Imprisonment Rs. Simple │ │ Section for life. 1000/- imprisonment for │ │ 394/397/302 one month. │ │ IPC │ │ 3. Appellant Alam @ Madari @ AsgarAlam │ │ Sr. Section Sentence Fine Sentence in default │ │ No. of payment of fine. │ │ 1. 394/34 IPC Imprisonment Rs. Simple │ │ of life. 1000/- imprisonment for │ │ one month. │ │ CRL.A.189/2018 & other connected matters Page 3 of 33 │ │ 2022:DHC:4220-DB │ │ 2. 120B r/w Imprisonment Rs. Simple │ │ for life. │ │ Section 1000/- imprisonment for │ │ 394/397/302 one month. │ │ IPC │ └────────────────────────────────────────────────────────────────────────────────────────────┘
6. Having examined in detail the evidence on record and on an assessment and appreciation of the contentions of the parties, the following points are relevant in order to reach a conclusion by this Court: 6.[1] The incident which was prior in time is the armed robbery which occurs at 3rd Floor of a House bearing No.P-165, Zakir Hussain College, Shakur Ki Dandi, Delhi where PW-19, Md. Shakeel was doing business of handicraft alongwith six co-workers. PW-19 and PW-25 are the main eyewitnesses on which the case of the prosecution rests. PW-19 has given a detailed account of the sequence of events CRL.A.189/2018 & other connected matters which occurred on 8th October, 2012 at about 10:30 a.m. when four persons came to that room armed with weapons i.e. kattas and revolver. PW-19 categorically identifies appellant Alam in the Court and appellants Salim and Mohd. Uvesh as companions of appellant Alam. PW-25, Md. Shahid, one of the co-workers corroborates the testimony of PW-19 and identifies appellants Alam and Salim in the Court. As regards appellant Mohd. Uvesh, PW-25 stated that he appeared to be one of the offenders who were involved in the commission of crime but on the day of the occurrence Mohd. Uvesh had a small beard. The fourth offender Manzar was a proclaimed offender and therefore the issue of his identification did not arise. PW-25 also confirmed that the offenders had weapons and had aimed the same at PW-19. 6.[2] As regards the other co-workers viz. PW-29 Govind, PW-32 Hasibul Alam and PW-33 Devanand, they resiled from their earlier statements and were therefore declared hostile. PW-26 Md. Feroz, also a co-worker and present on that day testified to the extent of the robbery having occurred on that day however refused to identify the accused appellants. PW-32 did testify that on the day of the incident five people had entered into the room and put pistol upon them, started beating PW-19 who was their employer and looted the money of PW- 19 before fleeing away from there. However, he also refused to identify the accused appellants in the Court. On the issue of Section 394/34 and 397 IPC 6.[3] It is also evident from the testimony of prosecution witnesses that assault by the robbers on that day resulted in injuries to PW-19. This is corroborated by the testimonies of PW-25, PW-26 and PW-32, CRL.A.189/2018 & other connected matters all of them having confirmed the act of the robbers beating PW-19. PW-1, the doctor who examined PW-19 and prepared the MLC (Ex. PW-1/A) on 8th October, 2012 reported the following two injuries on PW-19: (a) lacerated wound measuring 1cm x 0.[2] cm situated medially on the left foot, and (b) swelling over upper lip i.e. towards the right side of the face. PW-14 also submitted her report, the other doctor who had examined PW-19 on that day (noted as part of her report Ex. PW-14/A) that injury on PW-19 was simple in nature. 6.[4] As regards the items which have been stolen during the said robbery, PW-19 stated that the robbers took out Rs.7,000/- to Rs.8,000/- in cash from their clothes which were hanging from the pegs and in addition took away a cashbox containing coins and also four mobile phones from the occupants of the room. This is corroborated by PW-25 (to the extent of the cash from the clothes and the cashbox). The cashbox is later identified in TIP proceedings by PW-19 (Ex. PW-39/D) conducted before the learned Metropolitan Magistrate PW-39 on 21st November, 2012. PW-24, Constable Nitesh Kumar, who was on duty in CCTV room of PS Kamla Market deposed that the CCTV footage from which a CD Ex. P-6 was prepared showed four boys running away and crossing the road with a cashbox with one of them. The time stamp on the recording was from 11:40 a.m. to 11:42 a.m. of 8th October, 2012. 6.[5] Support for the testimonies of the eyewitnesses to the armed robbery is also provided by the testimony of PW-18 Momin Khan who ran a workshop of fancy lights at the first floor of the same building where the robbery had occurred. He testified that about 11:00-11:15 a.m. on that day, four people had come to the first floor. When he CRL.A.189/2018 & other connected matters asked them about the purpose of the visit one of them mentioned that they had come to meet PW-19 Mohd. Shakeel and then went to the fourth floor. About 15 minutes thereafter, PW-18 saw those four persons going downstairs and 2-3 minutes thereafter, PW-19 came rushing down and crying that they had been robbed and that he had an injury on the toe. 6.[6] On the basis of the above evidence on record and consistent, cogent and credible testimony principally of the injured eyewitness PW-19, Mohd. Shakeel, corroborated to the extent of robbery by PW- 25, PW-32, PW-26 and as regards identification of at least 2 of the appellants, by PW-25, this Court is of the considered view that the three appellants identified namely Salim, Mohd. Uvesh and Alam were all collectively and with common intent guilty of the offence of armed robbery. Therefore, they are liable to be convicted for offences punishable under Sections 394 read with Section 34 IPC. The prosecution has proved beyond reasonable doubt that there was common intent to commit robbery, and voluntarily causing hurt in committing the robbery. In addition, they were all brandishing deadly weapons i.e. kattas and a revolver and had threated to kill the victims if they raised an alarm, as per the eyewitnesses. This fact of being in possession of a deadly weapon and using it to terrorize the victims would bring in within the scope of Section 397 IPC. Section 397 IPC is relatable to an “offender” who “uses” a “deadly weapon” during a robbery and attempts to cause death or grevious hurt to any person. Each of the offenders who were in possession of such a deadly weapon and “used” it so in the robbery, would individually be liable to be convicted for offence punishable under Section 397, Common intent under Section 34 IPC would not therefore apply to an offence CRL.A.189/2018 & other connected matters under Section 397 IPC. These aspects are clear from the decision of the learned Hon’ble Supreme Court in Phool Kumar v Delhi Administration (1975) 1 SCC 797, where the Hon’ble Court in dealing with a robbery at a petrol pump where the appellant was brandishing a knife, held that:
4. The last submission on behalf of the appellant was that sentencing him to undergo rigorous imprisonment for seven years under Section 397 of the Penal Code was illegal and he ought to have been convicted under Section 392 simpliciter which would have enabled the Court on the facts of this case to pass a lesser sentence of imprisonment. Reliance was placed upon the majority opinion of the Full Bench of the High Court of Punjab & Haryana in the case of State v. Chand Singh [ILR (1970) 2 Punj and Har 108]. The argument was attractive at the first sight but did not stand our careful scrutiny
5. Section 392 of the Penal Code provides: “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.” The sentence of imprisonment to be awarded under Section 392 cannot be less than seven years if at the time of committing robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person: vide Section 397. A difficulty arose in several High Courts as to the meaning of the word “uses” in Section 397. The term “offender” in that section, as rightly held by several High Courts, is confined to the offender who uses any deadly weapon. The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon. In that view of the matter use of the gun by one of the culprits whether he was accused Ram Kumar or somebody else, (surely one was there who had fired three CRL.A.189/2018 & other connected matters shots) could not be and has not been the basis of sentencing the appellant with the aid of Section 397. So far as he is concerned he is said to be armed with a knife which is also a deadly weapon. To be more precise from the evidence of PW 16 “Phool Kumar had a knife in his hand”. He was therefore carrying a deadly weapon open to the view of the victims sufficient to frighten or terrorize them. Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offender within the ambit of Section 397 of the Penal Code.
6. Section 398 uses the expression “armed with any deadly weapon” and the minimum punishment provided therein is also seven years if at the time of attempting to commit robbery the offender is armed with any deadly weapon. This has created an anomaly. It is unreasonable to think that if the offender who merely attempted to commit robbery but did not succeed in committing it attracts the minimum punishment of seven years under Section 398 if he is merely armed with any deadly weapon, while an offender so armed will not incur the liability of the minimum punishment under Section 397 if he succeeded in committing the robbery. But then, what was the purport behind the use of the different words by the Legislature in the two sections viz. “uses” in Section 397 and “is armed” in Section 398. In our judgment the anomaly is resolved if the two terms are given the identical meaning. There seems to be a reasonable explanation for the use of the two different expressions in the sections. When the offence of robbery is committed by an offender being armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. On the other hand, if an offender was armed with a deadly weapon at the time of attempting to commit a robbery, then the weapon was not put to any fruitful use because it would have been of use only when the offender succeeded in committing the robbery.
7. If the deadly weapon is actually used by the offender in the commission of the robbery such as in causing grievous hurt, death or the like then it is clearly used. In the cases of Chandra Nath v. Emperor [AIR 1932 Oudh 103];Nagar Singh v. Emperor [AIR 1933 Lah 35] and Inder Singh v. Emperor [AIR 1934 Lah 522] some overt act such as brandishing the weapon against another person in order to overawe him or displaying the deadly weapon to frighten his victim have been held to attract the provisions of Section 397 of the Penal Code. J.C. Shah and Vyas, JJ. of the Bombay High Court have said in the case of Govind Dipaji More v. State [AIR 1956 Bom 353] that if the knife “was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property, that would amount to „using‟ the weapon within the meaning of Section 397.” In that case also the evidence against the appellant was that he carried a knife in his hand when he went to the shop of the victim. In our opinion this is the correct view of the law and the restricted meaning given to the word “uses” in the case of Chand Singh [ILR (1970) 2 Punj and Har 108] is not correct. (emphasis supplied) 6.[7] Therefore, each of the appellants in this case who were brandishing a deadly weapon during the robbery and within the visual sight of the victims who were terrorized into not resisting, ought to be convicted for the offence punishable under Section 397 IPC. However, the learned Trial Court, while convicting appellant Salim and Mohd. Uvesh for the offence punishable under Section 397 (maybe because weapons were recovered from them later when arrested) convicted appellant Alam for conspiracy under Section 120(B) inter alia for the offence under Section 397 IPC but not the offence itself. This Court is of the considered view that considering that that PW-19 specifically identified that Alam had wielded a revolver, and which was a deadly weapon during the act of robbery, it would attract the substantive offence punishable under Section 397 IPC as well and not merely with the aid of Section 120B IPC, for which substantive offence charge CRL.A.189/2018 & other connected matters under Section 397 IPC was also framed. The conviction of Salim and Mohd. Uvesh is sustained under Section 25/27 of the Arms Act for being found in possession of the weapons and having used the weapons at the time of commission of offence. On the issue of separation of the robbery and the firing 6.[8] As regards the second incident of the firing in the street by some of the robbers in order to make good their escape and in the process killing the deceased Sultan and injuring another Nawab Ali, both passersby, the contention of the learned counsel for the appellants that the act of robbery and the act of firing in the street should been seen as two separate transactions and events does not, in the facts and circumstances of this case, find approval of this Court. There was a ceaseless, inexorable continuum in the act of robbing by the appellants armed with deadly weapons and then decamping with the loot and in the process of being resisted by persons in the street, using their weapons to cause injury and death in order to make their escape successful. In such a situation, it would be difficult for this Court to accept that these two acts of robbery and firing be severed and examined with two different lenses. The definition of “robbery” in Section 390 IPC itself provides that the act of robbery includes within its scope the act of carrying away or attempting to carry away the stolen property and causing or attempting to cause in that process death/hurt/wrongful restraint or fear thereof. For ease of reference Section 390 IPC is extracted hereunder: “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 CRL.A.189/2018 & other connected matters 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.” 6.[9] In this case, therefore, the act of stealing property from the victims premises and then decamping with the loot is a single continuous process and if death/hurt/wrongful restraint is causes or fear created thereof, then it would certainly come within the rubric of “robbery” and in its wake, offences punishable under inter alia Sections 392, 393, 394, 397, 398, 401 IPC depending on the fact and circumstances. In a decision by the Single Bench of this Hon’ble Court (delivered by one of us) viz. Tasleem v. State NCTof Delhi, 2018 SCC Online Del 7541, while deciding an appeal for offence punishable under Section 392/397/34 IPC, it was held as under:
26. Our view is fortified by the decision of the Apex Court reported in 1980 Supp SCC 344: AIR 1980 SC 788, Kusho Mahton v. The State of Bihar cited by S.R. Borulkar learned counsel for the appellant in both the appeals. We intend reproducing the relevant portion from the same. It reads thus: „After hearing counsel for the parties, we are of the opinion that the appellants have been rightly convicted under section 395, Penal Code, 1860, because while carrying away the stolen property they exploded cracker to frighten the inmates of the house who wanted to pursue them‟.
27. We are in respectful agreement with the said judgment of the Apex Court.” On the issue of Section 302/34 IPC
6.10 As regards the issue of whether the act of shooting the deceased would additionally come within the rubric of Section 300 IPC and amount to murder or otherwise be an act of culpable homicide not amounting to murder, this Court is of the view that not only did the assailants used a deadly weapon which was used voluntarily to fire CRL.A.189/2018 & other connected matters against the persons trying to resists the escape, but also was fired from close range and not in air or the leg (which could have potentially scared the apprehender) but in the head and chest causing death. A bare perusal of the post mortem report would make it quite evident that both the firearm injuries on the deceased were grave and had caused severe internal damage leading to death. The question of it being justified under any of the exceptions in Section 300 would also not arise. Exception 4 cannot come to the rescue of the appellants since there was no sudden fight or a sudden quarrel in a heat of passion, but instead a deliberate attempt to escape and then voluntary use of weapon for the purposes of making the escape with the proceeds of crime. The conviction by the learned Trial Court of the appellants, therefore, for the offence punishable under Section 302 IPC was appropriate and correct. In a decision of this Court in Ramesh v State 2013 SCC OnLine Del 1885 in a case of similar facts, it was observed and held as under:
10. We find that the facts in the case of Mohd. Aslam @ Aslam v. State (supra) and the facts of the present case bear a degree of similarity. In the said case, the Appellant and his alleged accomplices had entered the premises of the family of the deceased with the intention to commit robbery and were armed with deadly weapons. Their entry was noted resulting in hue and cry being raised. The robbery got aborted. The accomplices of the Appellant managed to flee. The Appellant was apprehended at the spot by the crowd but before he could be finally pinned down, he fired at the deceased and his younger brother from a close range. The former died and the latter was injured. The Court held that though the Appellant may have had no intention to kill but it could safely be said that he voluntarily caused the death. Dwelling upon and highlighting the definition of the word „Voluntary‟ as per Section 39 of the Penal Code, 1860 and the illustration thereunder, the Court held that the fact that the accused was armed with dangerous weapon and CRL.A.189/2018 & other connected matters the deceased was unarmed was sufficient to indict the accused with the offence of murder. For the sake of ready reference, Section 39 of the Penal Code, 1860 with the illustration are reproduced hereunder:— “39. “Voluntarily” - A person is said to cause an effect “voluntarily” when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it. Illustration A sets fire, by night, to an inhabited house in a large town, for the purpose of facilitating a robbery and thus causes the death of a person. Here, A may not have intended to cause death; and may even be sorry that death has been caused by his act; yet, if he knew that he was likely to cause death, he has caused death voluntarily.”
12. In the instant case, the ocular evidence of the two eye witnesses PW 3 and PW 6, in our considered opinion, sufficiently shows that there was no sudden fight. The Appellant was armed with a katta for the purpose of robbery. There was a scuffle for the bag from the hand of the deceased and when deceased objected, the Appellant fired with the country made pistol which hit the deceased on the back side of the deceased. Thereafter, the deceased fell down and Appellant ran towards Ghazipur village after snatching his bag. When PW 3 Rajpal alongwith other persons tried to apprehend the Appellant, the Appellant made fire on him, which hit on his left hand in the wrist. The PCR officials reached the spot and the Appellant was overpowered by the public persons and the PCR officials. As reiterated by the Hon'ble Supreme Court from time to time, what has to be seen is the circumstances taken as a whole for the purpose of judging whether there was a sudden fight between the deceased and the accused. True, only a single gun shot was inflicted but there is no denying the fact that the wound was inflicted in the course of armed robbery. The autopsy report Ex. PW 1/A showed a firearm entry wound.[5] ×.[5] cm was present on the lower middle back over the second lumbar vertebra. The edges of the wound was showing blackening. The injury had gone to the underlying vertebra and entered the abdominal cavity. The cause of death was opined as ante-mortem injuries produced by a CRL.A.189/2018 & other connected matters firearm projector and sufficient to cause death in the ordinary course of nature. The blackening of the wound clearly goes to show that the shot was fired from a short distance. The accused was armed with a dangerous weapon which he fired from close range resulting in the death of the deceased. Thus, it could safely be said that he voluntarily caused the death of the deceased, in as much as if his intention was only to run away with the booty, he could have fired the shot in the air to facilitate escape and if at all needed, to fire on a non-vital part of the body such as leg of the victim, but instead of doing so he fired from a close range on the lower middle back over the second lumbar vertebra, which proved fatal. As such, in our opinion, considering the evidence on record the appropriate conviction would be under Section 302 of the IPC. We are, therefore, not inclined to alter the order on conviction of the learned trial judge into one under Section 304, Part II IPC or Section 304 Part I.
6.11 As regards the contention of the appellants that there was no common intention on part of all appellants, since at best only one or two of them had fired, and that too it was not clear as to which of the appellants had fired, this Court notes the reliance of the counsel for the appellant in this regard on a decision by Division Bench of this Court in Fayaz Ahmed v. State (NCT of Delhi) (2018) SCC OnLine Del
9969. Even in a situation where the offenders are armed while committing robbery but only one uses it to prevent resistance to their escape and caused death, this Court held:
6.12 Assessing the evidence available on record in relation to the incident of firing and resultant death of Mohd. Sultan, it is evident from the depositions of the eyewitnesses to the robbery PW-19, PW- 25 and the neighbour PW-18 that immediately after the incident of robbery PW-19 and PW-25 had rushed down in pursuit of the robbers. PW-19 specifically states that he met PW-18 on the staircase when he rushed out of his room and told him regarding the robbery and beatings and then PW-18 accompanied him to go after the robbers. PW-25, despite confirming that he was the one who unbolted the door by coming out through the window, and that he and PW-19 came down the stairs to reach the street, did not confirm the presence of PW-18 on the staircase when he and PW-19 were rushing down the stairs. However, in the considered opinion of this Court this would be a minor discrepancy in the otherwise consistent testimonies that PW- 25 along with others did go down the stairs to the street after the robbers. A perusal of the scaled site plan Ex. PW-13/A would show that the distance between the building where the robbery had taken place and the spot where the deceased Sultan and the injured Nawab Ali were found, is about 66 meters. This is the same spot where later two empty cartridges and one live cartridge were found by the police team. It is also evident from the site plan that at another point which was further down along the lane running perpendicular to the spot CRL.A.189/2018 & other connected matters where the firing had taken place, another empty cartridge was found at a distance of about 50-100 meters. This would show that the assailants ran down from the building along the lane and continued to fire while they were running away.
6.13 The contention of the appellants that it was not clear as to who had fired the bullet which led to the fatality of Sultan and the injury of Nawab Ali needs to be examined in some detail. PW-19 in his testimony states that when he came downstairs, he noticed a person of the same locality having caught hold of the fourth companion of the robbers, besides the three identified appellants. He specifically points out towards appellant Alam as the one who opened fire from his revolver at the person who captured their fourth companion and the fourth companion also opened fire at the person who nabbed him. Pursuant thereto, the said person from the public, later identified as Sultan fell down at the spot. PW-19 further stated that both Alam and the fourth companion continued to fire and yet another passer-by later identified as injured Nawab Ali also fell. PW-25 only states that when they went down, they found one person lying on the ground with a bullet injury and then returned back to his room. PW-25 to this extent was resiling from his statement made earlier and therefore was examined further by the learned APP. In his further examination, he stated that it was these four offenders which were fleeing and the fourth companion who was apprehended by the person passing-by was the one who had opened fire. Later in his continued examination by the learned APP, he again confirmed the use of a pistol by the person who opened fire though he stated that since the occurrence took place in such a short time, he was unable to identify the offenders. PW-26 stated that he chased the boys upto Dhalan Chowk alongwith PW-19 CRL.A.189/2018 & other connected matters and one of the offenders was captured by a person from the public who was armed with a pistol and opened fire and resultantly the person suffered the shot and fell down, whereupon the robber who was being captured ran away through a narrow street by the side of the office of MTNL. However, he could not identify the person who opened the fire. PW-27 Nawab Ali, the injured eyewitness became hostile and refused to identify his assailants in the street. His testimony therefore is of no value to this Court except that he was injured in an incident on that day in the afternoon at that place. On the conspectus of the testimonies assessed as above, it is quite clear that while PW-25 and PW-26 do not give any specifics or identify the person who used the weapon and fired at Sultan or Nawab Ali, PW-19 clearly deposed that it was appellant Alam who had fired as well as the fourth companion who was not in the Court to be identified.
6.14 The counsel for the appellants heavily relied upon testimony of PW-16 who recorded the PCR call PW-16/A, which noted that Sultan’s brother Rizwan said that the person who fired was Asif and Fahad who lived at Mata Sundari and they have had an old enmity. Rizwan deposed as PW-21 and stated that when at about 11:15 a.m. on that day, he reached Dhalan Chowk he heard the noise of firing and saw public persons running here and there. Then he saw his brother Sultan having sustained injuries in the firing and took his brother to LNJP Hospital in a cycle rickshaw. As regards the identification of those who had fired, on further examination, he stated that when he reached the spot his brother was already lying injured. In fact, in one of his cross-examinations he states that he was getting his clothes ironed when he heard the shots being fired and the place of occurrence was about 100 steps from where he was and not visible from the said CRL.A.189/2018 & other connected matters shop. His testimony that he suspected Asif and Fahad as persons responsible for the attack on his brother Sultan therefore cannot be accepted as trustworthy, credible or even remotely accurate.
6.15 It is therefore evident that since all four robbers had tried to decamp with the robbed goods as had been seen on the CCTV footage, at least two of them had fired at the passers-by who had tried to apprehend them and ran from the spot while continuing to fire. This is evident from the recovery of two empty (fired) cartridges and one live cartridge from near Dhalan Chowk where the incident had occurred and a further recovery of another empty (fired) cartridge from near the boundary wall of MTNL building. This recovery was evident from the testimony of PW-42, SI Pradeep, PW-9 SI Pankaj Kumar, PW-10 Constable Lokpal Singh and PW-30 Constable Shubh Ram.
6.16 It is therefore evident that the three appellants along with their fourth companion had attempted to make good their escape with the stolen goods from the place of robbery and each of them were armed with a weapon, and while at least two of them had fired to cause the death of Sultan and injury to Nawab Ali, the other two were part of the common intention to escape with the goods.
6.17 The ballistics evidence in this regard, post recovery of the weapons from appellant Salim and Mohd. Uvesh on 18th October, 2012 further reconciles with the recovery of the bullets and the weapons. The ballistics expert PW-43 Puneet Puri gave his report Ex. PW-43/A which established that the two pistols, one of 9 mm bore and the other of 7.65 mm bore recovered from appellant Salim and Mohd. Uvesh matched the fired empty cartridges recovered by the police CRL.A.189/2018 & other connected matters team from the place of incident. Details of the relevant part of his opinion have already been extracted above in para 25.
6.18 This Court finds that the reliance by the learned APP on the decision of learned Hon’ble Supreme Court in State of A.P. v. M. Sohan Babu, (2010) 15 SCC 69 discussing Section 34 IPC in the context of armed robbery and murder is appropriate and supports the case of the prosecution. The learned Hon’ble Supreme Court held as under:
9. We find that in the facts of the case, the observations given above are not correct. It cannot be ignored that the two accused had entered the premises at midnight duly armed with the intention of committing robbery. They were also charged under Section 460 IPC on that account. It is also in evidence that the deceased had managed to pin A-2 down to the ground and A-2 had caused one injury in the stomach of the deceased while he lay on top of him. Two injuries were thereafter caused on the thigh of the deceased by A-2 and the other accused. It is also in evidence that when the neighbours arrived on the scene they too were caused injuries and threatened with dire consequences. To say, therefore, that there was no intention on the part of the accused to cause death would be carrying the matter a little too far.
10. The High Court has been influenced by the fact that there was no common intention on the part of the accused to commit murder. We see, however, that the common intention can be inferred from the circumstances of the case and that the intention can be gathered from the circumstances as they arise even during an incident. The initial purpose was to commit robbery, but as the accused were armed with knives which they had used repeatedly and effectively, they were willing to kill as well and that they could not cause more damage as they were overwhelmed and pinned down.
11. We, therefore, feel that the High Court's observation that the matter fell under Section 304 Part I and not under Section 302 IPC is erroneous. We, accordingly, set aside CRL.A.189/2018 & other connected matters this part of the High Court judgment and restore that of the trial court. The appeal is allowed.. Conclusion
7. In light of the above discussion and analysis, this Court finds that the prosecution has been able to prove the guilt of the appellant beyond reasonable doubt and the conviction of the three appellants is therefore sustained. In addition, appellant Alam is also convicted for offence punishable under Section 397 IPC. Sentences awarded by the learned Trial Court are sustained and Alam’s sentence for offence punishable under Section 397 IPC would be the same as that for offence punishable under Section 394 IPC. This Court finds no other error in the impugned judgment of conviction and order on sentence by the learned Trial Court. Appeals are accordingly dismissed.
8. Copy of this judgment be uploaded on website and be also sent to Superintendent, Tihar Jail for intimation to the appellant and updation of records.
(ANISH DAYAL) JUDGE (MUKTA GUPTA)
JUDGE OCTOBER 12, 2022