Rahis v. State; Javed v. State; Jakir @ Chuhi v. State

16. Vide order dated 19.02.2020 ofthe Trial Court, it is indicated that the amended charge was framed as there was no reference in the charge initially framed on 23.11.2016 qua the witness Altabarak Haq. The Amicus Curiae for all the accused persons Mr. Mohd. Hasan on 19.02.2020 submitted that he did not want to examine any witness after framing ofthe amended charge..

17. The Trial Court Record and,the impugned judgment dated 22.02.2020 indicate to the effect that the'factum of the incident of robbery on 03.06.2016 is corroborated.in relation to all material particulars through the statements6fBliagat Singh,the complainant of the FIR No.244/2016,PS Welconie examined as PW-1,Sh. Altabarak Haq examined as PW-3,the other passenger in the TSR bearing No.

PROSECUTIONEVIDENCELED

18. However, whereas, as per=The,FIR, the complainant Bhagat Singh had stated that one boy had sat on the rear seat with him and one boy had sat on the left side ofthe driver and one boy had sat on the right side ofthe driver and had boarded the TSR a little ahead of the Moujpur Red-Light and through his deposition on oath as PW-1 through his examination in chief, Bhagat Singh had stated that one of the boys sat with the driver ofthe TSR and the other two boys sat at CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 Page 10 of38 Ml V the back, one on his side and the other on the side of the other passenger already seated in the TSR.

19. As per the statement made by the complainant, Bhagat Singh which forms the basis ofthe FIR,the boy seated on the right side of the driver and as per the deposition on oath ofBhagat Singh,the boy seated along with the driver had got stopped the TSR. After the TSR stopped as per the FIR,the boy seated on the left ofthe complainant Bhagat Singh who was short in height, fat and of dark complexion, took out the ustara from his pocket and showed the same to both the complainant and the other passenger and apprehended them and the boy seated on the left of the driver pf the TSR was wearing a blue colour T-Shirt had robbed the coihplairiant of his cash, ATM Card, mobile phone from the rear pocket of,the pant ofthe complainant and the Samsung phone from the front pocket of the pant of the complainant, and the complairiant-Bhagat Singh through his deposition on oath has stated that after:th^-TSR had been got stopped by the boys sitting along with the"^driyet,M the three boys put knives on them and had taken out his purse with its contents including his Aadhar Card, PAN Card, Voter I-Cardj driying licence, SBI ATM Card,other documents and cash ofRs.6,000/- and his two mobiles and had run away. The complainant in his deposition on oath had stated that he was illiterate that he did not accompany to the place ofincident and that after lodging ofthe FIR,he left for the native place and that he had subsequently gone to the police station when he was called by the police officials who told him ofthe recovery ofhis mobile phone and on reaching there, he identified his mobile phone of the make CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 Page 11 of38 % Samsung. Inter alia he had stated that he could not identify the auto driver at it was dark and also stated that none ofthe accused persons who were presentin Courthad committed the robbery.

20. The complainant examined as PW-1 on being cross examined by the learned APP for the State admitted that out ofthe three boys, the boy who asked the auto driver to stop the auto on side was thin, tall and of sanwala (dark) complexion, but the complainant PW-1 denied that the boy seated on his left side was ofshort height, fatty and of a dark complexion and stated that he could not recollect the stature and complexion of the third boy. Even on being cross examined by the learned APP for the State, this witness i.e. the complainant denied categorically that the three accused were the persons who had committed the,robbery with him and denied that he was deliberately not identifying the accused persons having been won over by their family members,.i He hb^^ denied that the mobile phone of the make SamsungWith:.the;i:Hual^ bearing IMEI Nos. 354212/07/341157/4 and 354213/0fy34ff67/2 exhibit PI did not belong to him and rather stated that it belonged to him.

21. The other passenger in the TSR i.e. Altabarak Haq examined as PW-3 stated that the person seated on the right side ofthe driver took out the ustara/knife and put it on his neck and asked him to hand over his valuable articles and identified the accused/ appellant herein named Rahis as being that boy who had robbed him of his mobile phone and purse on the point of an ustara/knife and this witness identified the other two accused persons present in Court as being those who had caught hold ofthe co-passenger and robbed him ofhis CRLA.344/2020,CRL.A.567/2020,CRL.A.568/2020 Page 12of38 t mobile phone and purse. PW-3,Altabarak Haqjust as was stated by PW-1,Bhagat Singh stated that all the three accused had run away after committing the robbery but that they had overpowered the auto driver. This witness Altabarak Haq i.e.PW-3 had also stated that after some days, he had gone to the police station to enquire whether his mobile phone had been recovered or not and on 14.06.2016 hejoined the investigation with SI Brij Mohan and other police officials and started searching for the accused persons and when they reached near the Tent Wala School,he saw that all the three accused persons were present there and on his identification they were overpowered and an ustara/knife was recovered from Rahis.and a mobile phone of the make Samsung was recovered from:th[6] possession of the accused Jakir @ Chuhi but nothing was recovered from the accused Javed. This witness categorically denied that he was a tutored witness and denied that he had signed any blai^ papefs and denied that no ustara was recovered from the accusedRahis.>T T:;;

22. The driver ofthe auto-riQkslia%fexaih as PW-5,Shahrukh identified the accused Jakir @ Chuhi as being the person who was seated on his left side and Javed as beingfhefperson who was seated on the rear seat. He stated that these two persons, one sitting on his left and one sitting behind him had put a knife on his back. He however stated that he could notsee the face ofthe third boy and thus he was unable to identify him. On being cross-examined by the learned APP for the State,this witness,PW-5,the auto driver however identified the accused/ appellant named Rahis as being the person CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 Page13of38 % sitting on his right-hand side who had boarded the auto and had robbed the passengers.

23. Written submissions were submitted on behalf of the accused/appellants Rahis,Javed&Jakir@Chuhi.

CONTENTIONSOFTHEAPPELLANTS

24. On behalfofthe appellant Rahisfrom whom the ustara is stated to have recovered and who as perthe prosecution version is the person who utilized the ustara and pointed it towards both the complainant Bhagat Singh and the co-passenger Altabarak Haq calling upon to hand over whatever goods were in their possession. It was submitted on behalf ofthe said appellant-Rahis wide written submissions dated 25.09.2020 to the effect that the conviction.ofthe appellant could not be sustained,in as much as,the complainanthad notidentified the said appellant and it was only the other'two public witnesses i.e. Altabarak Haq, the other passenger of the TSR and the TSR driver Mohd. Shahrukh who had identified the appellaiitiand that the factum that Bhagat Singh, the complainant" none of the accused persons were present and had not identified any ofthe accused,makes the alleged recovery of the fi-om the iappellant and any other role attributed to him, wholly circumspect. It has been submitted on behalf of the appellant-Rahis that even though PW-5 identified the appellant,it was only on being cross examined by the learned APP for the State that he was so identified by the driver ofthe TSR in which the complainant and the co-passenger were robbed and that this makes the entire testimony ofthe prosecution doubtful. The said appellant had further submitted that the discrepancies in the prosecution CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 Page 14of38 M witnesses are wholly fatal in the instant case whereas as per the prosecution version PW-1,[3] & 5 were present in the TSR when they were robbed and their statements were recorded by the Investigating Agency, though the statements of all the witnesses were verbatim similar, but the statements made before the Court were at much variance with each other in relation to all material particulars with it having been submitted that whereas as per their statements,the person who was sitting on the left side ofBhagat Singh on the back seat of the TSR had taken out the ustara and whilst showing the same,they were robbed and the other two accused persons were overpowered during the course ofthe robbery, howeyer,in his deposition on oath before the Court,PW-1 stated that allThe three accused persons put a knife upon them and on the other hand,PW-3 Altabaraq Haq says that the boy who was sitting on the right/side of the TSR took out ustara/knife and put the same on his heck,while PW-5 Shahrukh says thatone who sitting on hisleft ahd ppe%hdT^as sitting behind putthe knife on his neck.The said appdfahtfohil^s^^ thatthe statements of all the three witnesses are read together then it can easily be presumed that they were lying and thatThes:e;.|bcused persons had not committed any offence and thus the witnesses were not able to ascertain their roles exactly and were not sure whether the ustara or the knife was used bythe assailants.

25. The appellant further submits that all the accused persons were lifted fi-om their respective houses and falsely implicated in the present case pursuant to the initial statement ofthe public witnesses and a call to number 100 was made by the employer ofthe complainant but in CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 Page 15 of38 t that call there was no mention ofuse ofany weapon and that even in the PGR form exhibited as Ex.PW12/A, there is no mention of the same. Inter alia, it has been submitted on behalfofthe said appellant that the recoveries in the instant case are planted as at the time of robbery no IME or ownership proofwas given by the complainant to the Investigation Officer and the mobile phone was working even after the robbery as per the CDR ofthe mobile phone ofthe complainant exhibited as Ex.PW-9/A and thus,the possibility ofthe mobile phone being planted by the police later on could not be ruled out. It has been submitted on behalfofthe said appellant that despite the availability of public persons no sincere effort was made by the Investigation Officer to join the public persons at the:time of search, seizure and an-est of the accused persons from the public place and as per the prosecution story all the documents were;prepared by SI Brij Mohan but the handwriting and ink of.the pens;,were different which has suggested that the documents:w^e spfep^ed by different police officials, and that the signature"of'Altabaf^^^ Haq was not present on the seizure memo & sketch ofthe recovered Ustara. Inter alia, it was submitted on behalf of the said appellant that whereas PW-7 ASI Krishan Pal had stated that the seal ofBM was affixed and the ustara was having blood on it, was recovered. It was further submitted on behalf ofthe said appellant that there was no injury sustained by the complainant and the other co-passenger nor by the auto driver.

26. A contention was raised on behalf of the appellant Rahis that the ustara is not a deadly weapon in relation to which it is essential to observe thatthe verdict ofthis Courtin "Abhishek@Pritam Vs.State CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 Page16of38 b)T % ofNCT ofDelhi" CRL.A.388/2012 dated 12.02.2015 categorically makes mention of the ustara falling within the ambit of a deadly weapon which aspect is also so delineated in "Wasim Pahadi Vs. State"CRL.A.588/2012reported mILR(2013) VIDELHI4269.

27. On behalf of the appellant Javed, the appellant of CRL.A. 567/2020, it has been submitted that the complainant had not supported the prosecution version having notidentified the accused,in as much as, the complainant had not identified the accused in Court and had denied identifying them earlier before the police and also denied that the other co-passenger PW-3 was robbed. It has been submitted on behalf of the said appellant that there are major discrepancies in the testimonies,ofthe:;eye witnesses in relation to the role ofthe accused persons and the discrepancies submitted are to the effect:- ' ■ / "a. With respect to the positionkofthe three accused: ■ As per the Complainant/PWrl, q)(fheAhree boys who hoarded the TSR, one ofthemlsqt along^wii^Mhe driver, while the other two hoyssaton his side and on the other side ofPW-3. ■ As per PW-3, two hoys sat on the left and right of the TSR driver, and the third hoy sat on the rear seat "on the side ofa passenger". ' " ■ Asper PW-3, two hoys sat on his left and right side, while one hoysaton the rearseatalong with the twopassengers. b. With respect to the person who wielded the weapon: ■ As per the Complainant/PW-1, "all three hoys put knives upon us". ■ As per PW-3, the hoy who was sitting on the right side ofthe TSR driverput ustara/knife on his neck. He identified said hoy as Accused No. 3Rahees. CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 ' Page17of38 % ■ Asper PW-5, the boy sitting on his left and one sitting behind put a knife on his back. He identified them as Jakir and the Appellant."

28. Inter alia, it was submitted on behalfofthe said appellant that the observations of the learned Trial Court that the statements of witnesses PW-3 & PW-5 were of "sterling quality" were wholly erroneous. On behalf of the appellant-Javed, it has been further submitted that there was nothing recovered from him and that the. appellant had been picked up by the police from his house on 14.06.2016.

29. A further submission made on-behalfofthe appellant-Javed was to the effect thatthe person who had used the deadly weapon can only be punished under Section 397 of the Indian Penal Code, 1860 and reliance in relation thereto was pilaced on the observations in paragraph 19 ofthe verdictofthe Hoh|bioSupreme Courtin "Dilawar Singh V. State of Delhi*f(2007ff^S€C 641 which reads to the effect:- A-'L' ' "19. The essential ingredients ofSection 397IPC are as follows:

1. Accused committedrobbery, f

2. While committing robbery or dacoity (i) accused used deadly weapon (11) to cause grievous hurt to any person (Hi) attempted to cause death or grievous hurt to any person.

3. "Offender" refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment It only envisages the individual liability and not any constructive liability. Section 397IPC is attracted only against the particular accused who uses the deadly CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 Page 18of38 Ml t t weapon or does any ofthe acts mentioned in theprovision. But other accused are not vicariously liable under that Sectionfor acts ofco-accused."

30. It was further submitted on behalfofthe said appellant that the verdicts ofthis Court in "Dinesh Rat v. State"2013SCC OnLineDel 3503 and ''TejSingh @Goldy v. State"2017SCC OnLine Del 7236 also adhered to the ratio inDilawarSingh(supra).

31. On behalfofthe accused/appellant Jakir@Chuhi,the appellant ofCRL.A.568/2020,it was inter alia submitted thatthere are material contradictions in the eye witnesses..accounts, reiterating thus the contention raised on behalf ofthe-other two appellants named Javed i and Rahis submitting to the effect that-PW-1 has not been able to identify the appellant in Court and statesjthat only one boy sat at the side ofthe Auto driver and two were sittipg atthe back and thatPW-1 also stated merely that one ustara shown, that PW-3 states that Rahees showed him an L/ytora aifd^ valuables and that the alleged Ustara was also recoverpdtftpm M only. It was further submitted on behalfofthe said appellant Jakir@ChuhithatPW-5,the Auto Driver stated thatthe Appellant was sittihg on his right hand side and that at no point does he state that the Appellant had taken out a knife in the entire incident. Inter alia, it was submitted thatPW-5 also mentions a knife and does not mention an Ustara and thatthe ustara is not a deadly weapon,in as much as,the ustara does not have a blade and that the ustara is a common tool used by barbers and is completely harmless unless a blade exists. CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 Page19of38 t «

32. Inter alia, the said appellant submits that the prosecution had failed to show thatthe mobile phone recovered from him wasthe same mobile phone as was allegedly robbed from PW-1. It has thus been submitted on behalf of the said appellant adopting the submissions made on behalf of the other two accused/appellants i.e. Rahis, the appellant of CRL.A. 344/2020 and Javed, the appellant of CRL.A. 567/2020 that in view of material contradictions in the testimonies of the prosecution witnesses as well as the material on record, and the impugned judgment dated 22.02.2020 and the impugned order on sentence dated 28.02.2020,have essentially to be set aside.

CONTENTIONSOFTHEST ATE

33. On behalfofthe State, it was contended that the testimonies of the prosecution witnesses were consistentin relation to all the material particulars and that there exists no ground whatsoever for the modification ofthe impugnedjudgment dated 22.02.2020,nor for the modification ofthe impugned order pn sentence dated 28.02.2020.

34. On a consideration ofthe entire available record and rival pleas addressed on behalfofeither side,it is essentialto observe that as held hereinabove vide paragraph 17, the testimonies of all prosecution witnesses examined in the matter are consistent in relation to all material particulars qua the occurrence ofrobbery having taken place on 03.06.2016 at the 66 Foota Road near the Idgah Pulia, Welcome Delhi at about 11:00 PM and ofthere being the user of an ustara for the commission ofthe robbery from the passengers in the TSR bearing No.DL IRQ 1537,which was done atthe point ofan ustara. CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 Page20of38 %

35. As regards the contention raised on behalf of the accused/appellants that no public witness had joined the proceedings on the date 14.06.2016 when the accused/appellants were apprehended by the police personnel at the pointing out ofPW-3 Altabarak Haq,it is essential to observe thatthe Investigation Officer ofthe case SI Brij Mohan,PW-14 has categorically stated that he had tried to join the public witnesses but none agreed. The factum that members of the public do notjoin investigations,is not unknown and the same cannot detract from the veracity of the prosecution version which is corroborated through the statements ofPW-3 i.e. Altabarak Haq and the Investigation Officer of the case SI Brij Mohan, as well as the testimony ofASI Kishan Pal,.PW-2then posted as HC on 14.06.2016, PS Welcome when the.thr§e accused/appellants herein were I apprehended on the identification and pointing out of Altabarak Haq as being the three persons who had robbed/him.

36. As regards the contentipn,rql%d on behalf of the accused/appellants that the compMnahit md not identify the accused persons, the observations ofthe learned Trial Court to the effect that PW-3 Altabarak Haq,the co-passenger & P"?^w[5] Shahrukh, the TSR driver in whose TSR the incident ofrobbery had occurred had deposed about the roles ofthe accused in the commission ofthe offence in a cogent manner, have essentially to be accepted qua the observations that the said witnesses have supported the prosecution version on all material aspects.

37. Though,there are undoubtedly discrepancies in the testimonies ofPW-1,PW-3 & PW-5 inter se, the testimony ofPW-3 as already CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 Page 21 of38 observed elsewhere hereinabove brings forth the prosecution version, wholly in relation to all material particulars.

38. The observations of the learned Trial Court which take into account the testimonies of all the prosecution witnesses detailed as under:- %

24. Asperprosecution case, PW-1 BhagatSingh andPW- 3Altabarak Haq both boarded the TSR ofPW-5Shahrukh for going to Seelampur and on the way all the three accusedpersons also boarded the said auto rickshaw and robbed thePW-1 &PW-3 while using ustara/knives.PW-3 Altabrak Haq ha deposed the entire incident in cogent manner and pointed out specific role of each of the accused. As per testimony of PW-3 Altabarak Haq, accused Rahis robbed his.mobilephone andpurse on the point ofUstara/knife and other two'accused i-c. Javed and Jakir caught hold co-paSsenger and robbed his mobile phone andpurse.PW-3 deposed that out ofthe three boys, two boyssaton leftandrightside ofTSR driver while third boy sat on the rear seat ofthe auto with passengers.PW-5 Shahrukh who was driv.mgl. aUtQ iyickshaw has also corroborated the veksion cf^PW^fi while pointing out towards accused Jakir and Javed as thepersons who were sitting on his left side and on rear seat. He further confirmed that accused Rahis was alsofitting on his right hand side in the auto, PW-1 Bhagat Singh on whose statement present case FIR was registered although corroborated the case ofprosecution on material aspects but he did not support the case ofprosecution regarding description ofaccusedpersons as wellas their identity,Ld. Amicus curie cross-examined PW-3 & PW-5 at a length but nothing which may diminish the evidentiary value of their testimonies came on record. Their testimonies appear to be reliable and trustworthy and there is no reason to disbelieve the same. Reliance is placed upon thejudgment of Hon'ble Supreme Court in AIR 2012 SC 3157, Rat CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 Page22of38 b[3] % $ Sandeep @ Deepu vs State ofNCT ofDelhi with Hart Singh VState ofNCTofDelhi, wherein while layingdown the quality ofa witness,Hon'hle Courtheldas under: "Sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version ofsuch witness should be in a position to accept itfor itsface value without hesitation. To test the quality ofsuch a witness, the status of the witness would be immaterial and what would be more relevant would be the consistency ofthe statement right from the time when the witness makes the initial statement and ultimately before the Court...The witness should be in a position to withstand the cross examination ofany length and strenuous it may be and under no circumstance should give roomfor any doubt as to the factum of occurrence, the person involved, as well as, tlie sequence of it. It should be akin to the test applied in the case of circumstantial evideiicd Where there should not be any missing link fin chain of the circumstances,to hpldthfaccusedguilty ofthe offence alleged against him To be more precise, the version ofthe said witness on the core spectrum of the crime, should remain intact while all other attendant material namely, oral documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve." PW-3&PW-5 both have specifically deposed about the individual role ofall the accused in the commission of offence in a cogent manner.PW-3&PW-5 appear to be a CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 Page23of38 I? % $ witness pf very high quality on the basis of whose testimony alone conviction can he based.

25. First contention of Ld. Amicus curie was that complainant who made a call at 100 number has not supported the case ofprosecution.In this regardperusalof testimony ofprosecution witnesses i.e.PW-1 BhagatSingh, PW-3 Altabarak Haq and PW-5 Shahrukh show that all three witnesses have supported the case ofprosecution on material aspects. Although, complainant has not identified the accused persons, however, other two witnesses have explained the role of each of the accused during the incident as well as identified them. Complainant has deposed that after the incident he alongwith co-passenger and driver went to Welcome, where he called his employer and call at 100 number was made by his employer. This fact is also corroborated,by PW-3.& PW-5 that after the incident PW-5 took them near:the house of relative of complainant where he.called his employer and made call at 100 number. Complainant has also confirmed in his cross-examination that name ofco-passenger was revealed as Altabarak Haq S/o. MdlSharifRio. Lakhimpur Khiri, U.P. Hispresence at the spdtl'ifalso,corroborated by CDR of his mobile phone Ex.liW9/Wcahd Cell Location Ex.PW9/DA. When PW-3:jLUafdrak Haq, 'who was also robbed in the incident andPW-5Shahrukh the TR driver in whose TSR incident of robbery occurred supported the case ofprosecution and identified,:qlT.I^ three accused, the case ofprosecution cdnhot be:thrown away only due to non-identification ofaccusedpersons by complainant.

26. Ld. Amicus Curiefor accusedpersonsfurther argued that there is no evidence on record that PW-3 camefrom Amroha to Delhi on the day ofincident or that he boarded the TSR for going to Seelampur. In this regard complainantBhagatSingh has also admitted that the name ofco-passenger who boarded TSR with him at the time of incident was revealed as Altabarak Haq. PW-3 further CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 Page24of38 % t clarified in this regard that he camefrom Amroha on a private bus and ticket was also taken by the conductor and that he de-boarded the bus at Anand Vihar. When as per PW-3 his ticket was also taken back by the conductor of the private bus there was no occasionfor 10 to seize the said ticket.

28. PW-3 Altabarak Haq & PW-5 Shahrukh have specifically deposed about the role ofeach ofthe accused and thataccusedRahis robbedPW-3AltabarakHaq while using Ustara while other two accused robbed the copassenger. PW-5 Shahrukh specifically pointed out towards accused Jakir & Javed as the persons who put knives on his back. DW-1 Smt. Jubeda has admitted in her cross-examination that she did not try.to know as to why accused was taken by police.^ It appears that she has deposed to save accusedJaved being her neighbour. have essentially to be taken into account.,

39. The testimonies thus, ofthe prpsepution witnesses as observed hereinabove undoubtedly bring.hart^^ of the offence punishable under Sectionsx392y34i^^'M Penal Code, 1860 against all the three accused/appeliantsV-'

40. As regards the commission of the offence punishable under Section 397 of the Indian Penal Godcj'1860^though undoubtedly, it has been detailed and observed by the learned Trial Court that all the three accused persons i.e. the appellants herein in furtherance oftheir common intention robbed PW-3 Altabarak Haq when they hired the auto rickshaw ofPW-5 Shahrukh to go to Seelampur and used ustara and knives whilst committing a robbery, the factum of knives having been utilized is nowhere detailed in the FIR; CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 Page25 of38 \

41. However,PW-1,the complainant-Bhagat Singh who as per the FIR had stated thatthe boy seated on his left on the rear seat had taken outthe ustara and pointed it towards him and the co-passenger calling upon them to hand over all their goods and in the meantime the other two boys seated with the driver came and apprehended them. The said witness in his testimony on oath however,stated that when the tempo reached under the Metro Station near Eidgah Pulia at about 10.30 -

11.00 pm,thereafter the boy who was sitting along with the driver,got stopped the TSR and thereafter all three boys put knives upon them and took out his purse and his two mobiles ofmakeZen company and Samsung Company and according to the complainant, in his purse there was an Adhar card,PAN card, Moter I- card,his driving license, SBI ATM card, some documents and cash Rs.6000/- and that the Samsung Mobile phone was ofNo;97,17821599,while his other phone was without a SIM card and afterxdmmitting robbery, all the three accused ran away from the:3p6t. ^ i i

42. The witness PW-3 Altabafak-^ relation to the incident stated that when the auto reached atthe red light Welcome,three boys had boarded the TSR and that butxfrthe,three boys, two boys sat inside the tempo on the left and right side ofthe TSR driver and the third boy sat on the rear seat on the side ofa passenger. He has further stated that when the said TSR reached Jafrabad pulia near the metro construction work, the TSR driver was asked by one boy to stop the same at about 10.00 pm and as the TSR driver stopped the TSR,the boy who was sitting on the right side ofthe TSR driver suddenly took out one ustara/knife and put the same on his neck and asked to CRLA 344/2020,CRL.A.567/2020,CRL.A.568/2020 Page 26 of38 t t handover valuable articles and that the said boy took out his mobile phone make of Intex in golden color and his wallet containing his card,Adhar card,visiting card and Rs.lOOO/- forcefully. The said boy i.e. the accused/appellant Rahis, the appellant of CRL.A. 344/2020 who was presentin Court,was pointed out by the witness as being the person who had robbed his mobile phone and purse on the point of ustara/knife. The said witness PW-3 had pointed out the remaining two accused persons (present in Court) and stated that the said both accused persons caught hold of the co-passenger and robbed his mobile phone and wallet and thereafter, all three accused persons fled away from the spot but they PW-1 arid PW-3 overpowered the auto driver PW-5.

43. As per the testimony of PW-3. Altabarak Haq thus, the ustara/knife are apparently interchangeable words used forthe weapon utilized. This witness also identified4he. W5tora Ex.P[2] as being the same recovered from the:accused..Rahis,^/ appellant of CRL.A. 344/2020. '•

44. PW-5, Shahrukh, the auto driver in his deposition on oath has stated to the effect that on 03.06.2016,,hp was driving his Auto on the route of Gagan Cinema to Seelampur and on that day, at about 10.35 pm,two passengers boarded his auto and they were alighted at Shiv Mandir and from Shiv Mandir two passengers boarded his Auto and three boys boarded from the Red light ofMoujpur and two ofthem sat on his left and right side while one boy sat on the rear seat ofthe auto alongwith two other passengers. He has further stated that at about 11 pm,when his auto reached near Tent Wala School,where construction CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 Page27of38 S[8] % work of Metro Station was going on and there was darkness,two of the three boys, who had boarded his auto from the Red light of Moujpur, asked him to stop the auto at a side and stated that two of them i.e. one who was sitting on his left and one who was sitting behind,put a knife on his back and that two ofthem were also present in the Court. This witness also pointed out towards the accused Jakir and Javed as the person, who were sitting on his left side and on the rear seat and has stated that due to fear, he could not see the face of the third boy and thus he was unable to identify him in the Court and has further stated that those boys,robbed the other two passengers whilst showing knife and asked therni to hand over their belongings and then they called the police by making;a call at 100 number. This witness has further stated that he told,those passengers that he would remain with them and that they informed the police that Rs.6,000/and two mobile phones were:;robbed ftom one passenger while Rs.1,000/- and one mobilephond:wag roiB.ledifrom the other passenger and after robbing,all the three aceuseidrrarf

45. This witness i.e. PW-5 on being cross examined by the learned APP for the State when the.attention^:.of this witness was drawn towards the accused Rahees further stated that the accused Rahees presentin the Court,was also sitting on his right hand side in the Auto and was one ofthose three boys,who boarded his Auto and robbed the passengers and has stated that he has correctly identified the accused Rahees.

46. It is essential to observe that the incriminating evidence put to the three accused in their statements under Section 313 ofthe Cr.P.C., CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 Page28of38 % 1973 which were all recorded on 03.07.2019 in relation to the user of the knife and ustara details the same through question nos.[3] & 4 qua the appellant Javed,which read to the effect:- "Q[3].It is in evidence againstyou that when atabout 11.00 pm auto rickshaw reached near tent wala school where construction work ofmetro station was going on, you as well as your co-accusedJakirput knife on the back ofPW- 5Shahrukh and asked him to stop the auto rickshaw. What have you tosay? Q[4]. It is in evidence against you that your co-accused Rahis took out one ustara/knife and put the same on the neckofPW-3AltabarakHaqandrobbed his mobilephone, ofIntex ofgolden colour and his wallet containing his Card, Aadhar Card, visiting card dhdiRs.1000/-forcefully. What haveyou to say?:, i: I and qua the accused Jakir @ Ghuhi question nos.[3] & 4 read to the effect:- "Q[3].It is in evidence agamsifyodx^ at about 11.00 pm auto rickshaw redcfiAp§apf school where construction work of metro station was going on, you as wellas your co-accused Javedput knife on the back ofPW- 5Shahrukh and asked him to stop the guto rickshaw. What haveyou to say? - 7: Q[4].Itis in evidence againstyou thatyour co-accusedRahis took out one ustara/knife and put the same on the neck of PW-3AltabarakHaq and robbed his mobilephone, ofIntex ofgolden colourand his walletcontaining his Card,Aadhar Card, visiting card andRs.lOOO/-forcefully. What have you to say? CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 Page 29of38 6V % I

47. On behalfofthe accused/ appellants i.e. Javed,the appellant of CRL.A. 567/2020 and Jakir @ Chuhi, the appellant of CRL.A. 568/2020, it was contended whilst placing reliance on the verdict of the Hon'ble Supreme Court in "Dilawar Singh v. State ofDelhi" (2007)12see 641 and the verdicts ofthis Court in "Dinesh Rai v. State"2013See OnLineDel3503and "TejSingh@Goldy v. State" 2017see OnLine Del 7236that it is only the offender who uses the deadly weapon who can be awarded the minimum punishment of seven (7) years whilst invoking the provision of Section 397 of the Indian Penal Code, 1860 and no vicarious liability in relation thereto can be attributed to them, in as rnuch as,the essential ingredients of Section 397 ofthe Indian Penal Code;1860 read as under:- "3P[7]. Robbery, or dacoity, with attempt to cause death or grievous hurt.—If, at the time ofcommitting robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurtto any.person/or attempts to cause death or grievous hurt tofcfiffldksgn, the imprisonment with which such cf^jiderjishallhdpm shall not be less than sevenyears."yf '''- '' '.i.'.y' and are as observed in Dilawar Singh (supra) in paragraph 19 reproduced elsewhere hereinabove^witb it -tiaving been observed by the Hon'ble Supreme Courttherein that as noted in "PhoolKumar Vs. Delhi Administration"(1975) 1 SCC 797, the term offender under Section 397 of the Indian Penal Code, 1860 is confined to be the offender who uses any deadly weapon and the observations of the Hon'ble Supreme Court in Dilawar Singh (supra) vide paragraph 20 thereof,which reads to the effect:- CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 Page30of38 L\ \ t

48. The learned Trial Court has undoubtedly observed to the effect that all the three accused in furtherance oftheir common intention had robbed PW-3 Altabarak Haq when he hired the auto rickshaw ofPW-5 Shahrukh to go to Seelampur and used an ustara and knives whilst committing a robbery and tliey,,were thus convicted for the commission of the offence punishable:uhder Sections 392/34 of the Indian Penal Code, 1860 read Avithp/Sectm of the Indian Penal Code,1860.

49. The deposition ofPW-3 Altabarak Haq,the co-passenger who has corroborated the prosecution vdrsidh as set forth through the FIR in toto has been adverted to hereinabove and his deposition puts forth that the boy who was sitting on the right side of the TSR driver suddenly took out one ustara/knife and put the same on the neck of Altabarak Haq and asked to hand over the valuable articles and the said boy took out his mobile phone of the make of Intex in golden colour and his purse containing his ID Card, Aadhar Card, Visiting CRLA,344/2020,CRL.A.567/2020,CRL.A.568/2020 Page31of38 (o % t Card and a sum ofRs.1,000/- forcibly and that the said accused Rahis was identified by Altabarak Haq as being the boy who robbed his mobile phone and purse at the pointing of ustara/knife and Altabarak Haq pointed out to the remaining two accused persons namely Javed and Jakir @ Chuhi and stated that those two accused persons had caught hold of the co-passenger and robbed his mobile phone and purse. In his deposition dated 18.05.2018, Altabarak Haq does not make mention of user of any knife/ustara by Javed, the appellant of CRL.A. 567/2020 and Jakir @ Chuhi, the appellant of CRL.A. 568/2020.

50. As observed by the Hon'ble Supreme in ''Ram Ratan Vs. State ofMadhya Pradesh" 2021 SCC OnLirie SC 1279 whilst making a reference to the observations of the Hon'ble Supreme Court in "Ganesan Vs. State Rep. by Station: House Officer" 2021 SCC OnLlneSC1023,it has been obsefyed'bythe Hon'ble Supreme Court vide paragraphs 16& 17 mRdm^Rqtpnfi^i^f^to the effect:- "16.In the decision ofGdpjdajyfpiifra)referred to by the learned counsel for the appellant, the above noted decisions ofthis Court has been referred and this Court has held as hereunder:-^...;.,^ ^. "12.7. Thus, as per the law laid down by this Court in the aforesaid two decisions the term 'offender' under Section 397IPC is confined to the 'offender' who uses any deadly weapon and use ofdeadly weapon by one offender at the time ofcommitting robbery cannot attract Section 397 IPCfor the imposition ofminimum punishmenton another offender who has not used any deadly weapon. Even there is distinction and difference CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 Page32of38 p % t between Section 397 and Section 398 IPC. The word used in Section 397IPC is 'uses'any deadly weapon and the word used in Section 398IPC is 'offender is armed with any deadly weapon'. Therefore, for the purpose of attracting Section 397 IPC the 'offender' who 'uses' any deadly weapon Section 397IPCshall be attracted. In light ofthe above observations and the law laid down by this Court in the aforesaid two decisions the case on behalfofthe accused in the present appeals is required to be considered. Even as per the case ofthe prosecution and even considering the evidence on record it can be seen that the present accused A[1] and A[3] are not alleged to have used any weapon. The allegation of use of any weapon was against Benny and Prabhakaran. Therefore, in absence of any allegations of use ofany^deadly weapon by the appellants herein-Accused Nos. 1 and 3 Section 397IPC shall not be attracted and to that extent the Learned Counsel appearing on behalfofthe appellants-accused are right in submitting that they ought not to hPveibeen,convicted for the offencepunishable uhdefSectW^^^ IPC."

17. From the position oflaw as enunciated by this Court and noted above, firstly, it is clear that the use of the weapon to constitute the offence,under Section 397IPC does not require that the 'offender' should actually fire from thefirearm or actuallystab ifit is a knife or a dagger but the mere exhibition of the same, brandishing or holding it openly to threaten and create fear or apprehension in the mind ofthe victim is sufficient. The other aspect is that ifthe charge ofcommitting the offence is alleged against all the accused and only one among the 'offenders' had used thefirearm or deadly weapon, only such ofthe 'offender'who has used thefirearm or deadly CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 Page33of38 % t weapon alone would be liable to be charged under Section 397IPC."

51. It is also essential to observe that the Hon'ble Supreme Court in Ram Ratan (supra) has further observed vide paragraphs 18 & 19 to the effect:- Though the above would be the effect and scope of Section 397 IPC as a standalone provision, the application of the same will arise in the totality of the allegation and the consequent charge that will beframed and the accused would be triedfor such charge.In such circumstance, in the teeth ofthe offence under Section 397 IPC being applicable to the offender alone, the vicariability ofthe same will also have to be noted ifthe charge against the accused under Sections 34, 149 IPC and such other provisions of law, which may become relevant, is also invoked along with Section 397IPC.In such event, it will have to be looked at differently in the totality ofthefacts, evidence and circumstances involved in that case and the pronsipnSinvoked in thatparticular case toframe a charge againstiheM In the instant case, the charge under Section 34IPC was notframed against the appellant'norpyqs suchfin allegation raised and proved against the appellant. Hence, benefit ofthe interpretation raised on the scope ofSection 397IPC to hold the aggressor alone as being guilty, will be available to the appellant ifthere is no specific allegation against him.

19. Keeping this aspectin view,it is necessary to examine the manner in which PWl has alleged against the appellant so as to consider whether the appellant is also an 'offender^ who used thefirearm so as to be charged under both. Section 392 and 397 IPC even if he is complicit to the incident, moreparticularly when Section 34IPChas not been invoked in the instant case.. CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 Page 34of38 \ % Thus, undoubtedly, in terms of the verdict of the Hon'ble Supreme Court in Ram Ratan (supra), though the invocation of the offence punishable under Section 397 of the Indian Penal Code, 1860 in relation to the charge ofcommitting the offence is alleged against all the accused and where only one among the offenders has used the fire arm or deadly weapon, it is only such ofthe offenders who has used the fire arm or deadly weapon who would liable to be charged under Section 397 of the Indian Penal Code, 1860. The totality of the allegations and consequent charges that are framed and ofthe accused being tried for such charge has essentially to be considered with the aspect ofthe vicariability ofthe offence punishable under Section 397 of the Indian Penal Code, 1860 being required to be noted if the charge against the accused under Sections 34, 149 ofthe Indian Penal I Code,1860 and other provisions oflawisTnvoked which may become relevant ifinvoked along with Sectioii-397 ofthe Indian Penal Code, 1860 in which event it wpuid have:torbe'^lopked at differently in the totality ofthe facts, evidence and'cirdnhistances involved in that case and the provisions involved in that particular case to frame a charge against the accused.In the case before,the Hop'ble Supreme Court in Ram Ratan (supra), the charge under Section 34 ofthe Indian Penal Code, 1860 was not framed against the appellant therein nor was such an allegation raised and proved against the appellant and hence the benefit ofthe interpretation raised on the scope of Section 397 ofthe Indian Penal Code, 1860 to hold the aggressor alone as being guilty, was held to be available to the appellant therein if there was no specific allegation against him. The evidence in that case was thus CRLA 344/2020,CRL.A.567/2020,CRL.A.568/2020 Page 35 of38 (J^ % % taken into account which indicated that it was only one accused who had used the fire arm and there was no allegation apart from a stray sentence against the appellant Ram Ratan in that case ofhaving used any fire arm with it thus having been held that the charge under Section 397 ofthe Indian Penal Code, 1860 could not be held to be proved.

52. In the instant case,the charges have been framed under Sections 392/34 ofthe Indian Penal Code, 1860 r/w Section 397 ofthe Indian Penal Code, I860,- yet, it cannot be overlooked as observed hereinabove that there is no user ofany knife mentioned in the FIR by the complainant and though the wqrd has been used as an interchangeable term by PW-3 Altabarak Haq,the co-passenger, it is the deposition of this PW-3 himself which attributes user of the ustara/knife only to the accused/appellant Rahis even at the time of the robbery committed quathe other passenger.

53. In these circumstances,'the -fe'stimbn^ of PW-5, the driver named Shahrukh which makesUh%mrirb]Lisstatementto the effect:- "Those boys robbed the other two passengers while showing knife and asked them to hand over their belongings. They called police by making a call at 100 number.I told those passengers that I will remain with them. They informed the police that Rs.6,000/- and two mobilephones were robbedfrom onepassenger while Rs. 1,000/- and one mobile phone was robbed from other passenger. After robbing,all the three accused ran away. One of the passengers told me that his relatives were residing in the nearby area ofJafrabad. At his request,I took them to their relative's house in my auto where they made a callat100number.", CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 Page36of38 \ \ is insufficientto bring forth any vicariousliability againstthe accused/ appellants i.e. Javed,the appellant ofCRL.A.567/2020 and Jakir@ Chuhi,the appellant of CRL.A. 568/2020 qua the commission of an offence punishable under Section 397ofthe Indian Penal Code,1860. Thus, though the conviction of all the three appellants qua the commission of the offence punishable under Section 392/34 of the Indian Penal Code, 1860 for the commission ofrobbery on the date 03.06.2016 in the auto rickshaw bearing no.

DL IRQ 1537 near the under construction metro station of Jafrabad before the Idgah Pulia whereby the articles in possession ofBhagat Singh,the complainant and the co-passenger Altabarak, Haq were robbed on the,accused/appellant Rahis having shown,an ustara to them stands established withtherecovery,ofthe ustarafromthe accused Rahis,the appellant ofCRL.A.344/2020,recoyeryrofthe mobile phone ofthe make Samsung phone belonging to.^he complainant from the accused/appellant i.e. Jakir Chuhi,;tte appellant of CRL.A. 568/2020, the conviction of,the -kqcm^^ Javed, the appellant of CRL.A. 567/2020 and Jakir @ Chuhi,the appellant of CRL.A. 568/2020 qua the alleged....commission of an offence punishable under Section 397 ofthe Indian Penal Code,1860 in the facts and circumstances of the instant case, is not held to be vicariously made out and the conviction of the accused/appellants Javed and Jakir@Chuhiinrelationtheretoisthussetaside.

CONCLUSION

54. The sentence imposed qua the accused/appellant Rahis vide the impugned order on sentence dated 28.02.2020 of the Court of the CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 learned ASJ-02, E-Court, Shahdara, KKD, Delhi in relation to FIR No.244/16, PS Welcome qua the sentence imposed of Rigorous Imprisonmentfor a period ofseven(7)years under Sections 392/34 of the Indian Penal Code,1860 r/w Section 397 oftheIndian Penal Code, 1860 and a fine of Rs.5,000/- and in default of payment ofthe said fine to further undergo Simple Imprisonment for a period ofthree(3) months with the benefit of Section 428 of the Cr.P.C., 1973 is sustained.

55. Thus, the minimum mandatory sentence of seven years for the offence punishable under Section 397 ofthe Indian Penal Code,1860 against the accused person namely Javed, the appellant of CRL.A. 567/2020 and Jakir@Chuhi,the appeliantofCRL.A.568/2020 is set aside, and the sentence imposed on the said two appellants under Sections 392/34 of the Indian Penal Code, 1860 is modified and reduced to be a sentence ofRigorous Imprisonment for a period of five (5) years with the fine of I^.SjOOO/^leach and in default of paymentofthe said fine,to fiiiifef-undergo SimpleImprisonmentfor a period ofthree(3)months with the benefit of Section 428 ofthe Cr.P.C.,1973 being granted to these,two appellants as well.

56. Copy ofthis judgment be supplied to the appellants and be also senttothe SuperintendentJail,Delhiforinformation. \ ANU MALHOtK^ ^ JULY 06,2022 nc CRLA.344/2020,CRL.A.567/2020,CRL.A.568/2020 P^ge38of38