Rahis v. State

17. The Trial Court Record anil,the,impugned judgrhent dated 22.02.2020 indicate to the ef^ct.that|hq-fectum ofthe incident of robbery on 03.06.2016 is eorrpborafrffin relation to all material particularsthroughthestatementsof|ha|.tSingh,thecomplainantof theFIRNo.244/2016,PSWefeqg^C^Wed Ahabarak Haqexamined asPW-3,tteotfelgslf^ theTSRbearingNo. DLIRQ1537drivenby StoJameelAkhtar. PRnSECUTff"^EVIDENCELED

18. However, whereas,;®rper.Ae,^^,^ complainant Bhagat Singh had stated thatone boy had satonthe rearseat with him and one boy had satonthe leftsideofthe driverand one boy had saton therightsideofthedriverandhadboardedtheTSRa little aheadof the Moujpur Red-Lightand through his deposition on oath asPW-1 throughhisexaminationinchief,BhagatSinghhadstatedthatoneof theboyssatwiththe driveroftheTSRandthe othertwoboyssatat Page10 of38 the back, one on his side and the other on the side of the other passenger alreadyseatedintheTSR.

19. As per the statement made by the complainant,BhagatSingh whichformsthe basisoftheFIR,the boy seated ontherightside of the driver and as perthe depositionon oath ofBhagatSingh,the boy seatedalong withthe driverhad gotstoppedtheTSR. AftertheTSR stopped as pertheFIR,the boyseated ontheleftofthecomplamant BhagatSingh who was shortin height,fat and ofdark complexion, took outthe ustarafrom hispocketandshowedthesameto boththe complainantand the other passenger and apprehended them andthe boy seated onthe leftofthtrdriver?if#e TSR was wearing a blue colour T-Shirt had robbed the cohipTaih'ant ofhis cash,ATM Card, mobilephonefromtherearpocketofth%antofthecomplainantand the Samsung phone from the froht;#cket of the pant of the complainant, and the c0tp#iap|B|agat Singh ttoough his depositiononoathhasstat^thi|%#|fRh-1beengotstopped bytheboyssittingalongwi&tll^fPthethreeboysputfonves onthem and had taken outhis purse with its contents mcludmghis Aadhar Card,PAN Card,tVotcr;J^Ca,^: ^"cence,SBI ATM Card,otherdocumentsandcashofRs.6,000/-andhistwomobilesan hadrun away. Thecomplainantin his depositiononoath had stated thathewasilliteratethathedidnotaccompanytotheplaceofmcident andthatafterlodgingoftheFIR,heleftforthenativeplaceandthat hehadsubsequentlygonetothepolicestationwhenhewascalledby thepoliceofficialswhotoldhimoftherecoveryofhis,mobilephone and on reaching there,he identified his mobile phone ofthe ma e Page11of38 CELA344/2020,CRL.A,567/2020,CEL.A.568^020 ^3' Samsung. Interalia he had stated thathe could notidentify the auto driver atit wasdark and also stated thatnone ofthe accused persons whowerepresentinCourthadcommittedtherobbery.,

20. The complainantexamined asPW-1 on being cross pamined bythelearned APPforthe State admittedthatoutofthetiiree boys, the boy who asked the auto driver to stop the auto on side wasthin, tail and ofsanwala(dark) complexion, but the complainant PW-i denied thatthe boy seated on his left side was ofshort height,fatty and ofa 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 APE for,th?^ this witness i.e. the complainant denied categorically tgitte.:three accused.were the persons who had committed|he,robberywithhim and deniedthathe wasdeliberatelynotidentifyiiigthea|cu|:dpersonshavingbeenwon over by their family metnbgrs.(i!^;ii(W^^ denied that,the mobile phone ofthe makeSams«ng;t^p|fpiM bearingIMEINos. 354212/07/341157/4 and 354|i^7|ffW7/2 exhibit PI did not belongtohim andratherstatedthatitbelongedtohim.

21. TheotherpassengeriiiApTSRL|:^P3arakHaqexaminedas pW-3statedthatthepersonseated ontherightsideofthedrivertook outthe ustara/knifeandputiton hisneckandasked him,tohandover his valuable articles and identified the accused/ appellant herein named Rahis as being that boy who had robbed him ofhis mobile phone and purse on the point ofan ustara/knife and this witness identified the other two accused persons present in Court as being those whohadcaughtholdoftheeo-passengerandrobbedhimofhis Page12of38 CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 I mobile phone and purse. PW-3,AltabarakHaqjustas wasstated by PW-1,Bhagat Singh stated that all the three accused had run away after committing the robbery butthatthey had overpowered the auto driver. ThiswitnessAltabarakHaqi.e.PW-3hadalsostated^thatafter some days,he had gone to the police station to enquire whether his mobile phone had beenrecovered ornotandon 14.06.2016hejoined the investigation with SI Brij Mohan and other police officials and started searching forthe accused personsand whenthey reached near the Tent Wala School,he saw thatalfthe three accused persons were presentthere and onhisidentificationthey were overpowered and an usta.a//cnife was recovered from »^d a mobile phone of the make Samsung was recovered,fromjtt^;possession ofthe accused Jakir@ Chuhi but nothing.was recpyeted from the accused Javed. This witness categorically was a tutored witness and deniedthathe hadsignedaH^b|hlcpapCTSoand deniedthatno ustara wasrecoveredfromtheacGusdd.'^a^is. | ' i

22. The driver ofthe auteui|iK^ii^med asPW-6,Shahrukh identified the accused Jakir @ Chuhi as being the person who was seated on hisleftside ahd:#ved:apbeinethyiperson who wasseated onthe rear seat. Hestatedthatthesetwo persons,one sittingon his left and one sitting behind him had put a knife on his back. He howeverstatedthathecouldnotseethefaceofthethirdboyandthus he was unable to identify him. On being cross-examined by the learned APPfortheState,thiswitness,PW-5,theautodriverhowever identified the accused/ appellant named Rahis as being the person 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/appellantsRahis,Javed&Jakir@Chuhi.

CONTENTJONSOF APPELLANTS

24. Onbehalfofthe appellantRahisfrom whomthe ustaraisstated to haverecovered and whoaspertheprosecution version istheperson who utilized the ustara and pointed ittowards both the complainant Bhagat Singh and the co-passenger Altabarak Haq calling upon to hand over whatever goodswere in'theirpossession. It wassubmitted on behalfofthe said appellant-Rahl?v^e;written s^ dated 25.09.2020to the effectthatthe convlctibnofthe appellant.could not besustained,inasmuchas,thecomplainanthadnotidentifiedthesaid appellantanditwasonlytheothertwb'publicwitnessesi.e.Altabarak Haq,the other passengerof and the TSR driver Mohd. Shahrukh who had identi|edtfie||pellanf;^d thatthe factum that Bhagat Singh,the complainant personswerepresentandhadnotidentifiedanyoftheaccused,makes the alleged recovery oftheJHS(dra;fronptlie^pellant and any other role attributed to him,wholly circumspect. Ithas been submitted on behalf ofthe appellant-Rahis that even though PW-5 identified the appellant,itwasonlyonbeingcrossexaminedbythelearned APPfor the Statethathe wasso identified bythe driver oftheTSRin which thecomplainantandtheco-passengerwererobbedandthatthismakes the entiretestimony ofthe prosecution doubtful. The said appellant had further submitted that the discrepancies in the prosecution I Page14of38 % witnesses are wholly fatal in the instant case whereas as per the prosecution versionPW-1,3&5 werepresentintheTSR xyhenthey 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 particutos with it havingbeensubmittedthatwhereasaspertheirstatements,the person who was sitting on the leftside ofBhagatSingh on the back seat of the TSR had taken outthe ustara and whilstshowingthe same,they were robbed and the other two,accused,persons were overpowered duringthe course ofthe robbery,hotvever,in his deposition on oath before the Court,PW-1 stated.thatall&ihree accused persons puta knifeuponthemandontheotehan0W-3AltabaraqHaqsaysthat the boy who was sitting on the ripht(side of the TSR took out ustarMfeandputthesame his;|c|whilePW-5Shidirukhsays thatonewhosittingonhis(l^;4d||5i^^sittingbehindputthe knifeonhisneck.ThesaidapfiAiSi^B'^ thatthestatements of all the three witnesses are read together then it can easily be presumedthattheywerilying,ahAthat|^ personshadnot 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 wasused bythe assailants.

25. The appellantfurther submitsthat allthe accused persons were liftedfromtheirrespectivehousesandfalselyimplicatedinthepresent casepursuanttotheinitialstatementofthepublicwitnessesandacall to number 100 was made by the employer ofthe complainanthutin Page15 of38 that call there was no mention ofuse ofany weapon and thateven in the PCR form exhibited as Ex.PWU/A,there is no mention of the same. Interalia, ithasbeen submitted on behalfofthe said appellant that the recoveries in the instant case are planted as at the time of robbery noIME orownership proofwasgiven by the complamantto theInvestigationOfficerandthemobilephonewasworkingevenafter the robbery as per the CDR ofthe mobile phone ofthe eomplainant exhibited asEx.PW-9/A and thus,the possibility ofthe mobile phone beingplantedbythepolicelateroncouldnotberuledout. Ithasbeen submitted on behalfofthe said appellantthat despite the availability of public persons no sincere effort w^ by the Investigation Officer tojoin the public persons;af|ie;time ofsearch,seizure and arrest ofthe accused person^fpm the imblic place and^as per the prosecutionstory allthe documentswerejprepared by SIBnj Mohan but the handwriting and infc.o^Jl»e|||:-were different which has suggested that the documents|^^v||»^^ by different police officials,and thatthesignaferegS^iM Haq wasnotpresenton theseizure memo&sketchoftherecovered Vstara. Interalia,itwas submitted on behalf of thersaidmppellsnt whereas PW-7 ASI KrishanPal hadstatedthatthe seal ofBM wasaffixed and the ustara was having blood on it, wasrecovered. It wasfurther submitted on behalfofthe said appellantthatthere was no injury sustained by the complainantandtheotherco-passengernorbytheautodriver.

26. A contention was raised on behalfofthe appellantRahis that the ustaraisnotadeadly weaponinrelationtowhichitisessentialto observethattheverdictofthisCourtin"Abhishek@Pritam Vs.State Page16of38 o ofNCT ofDelhi"CRL.A.388/2012 dated 12.02.2015 categorically makes mention ofthe mtara falling within the ambit of a deadly weapon which aspect is also so delineated in "Wasim Pahadi K$. State"CRL.A.588/2012reportedinILR(2013)VIDELHI4269.

27. On behalf of the appellant Javed, the appellant of CRL.A. 567/2020, it has been submitted that the complainant had hot supportedtheprosecutionversionhavingnotidentifiedtheaccused,m as much as,the complainant had not identified the accused in Court and had denied identifying them ear|ier before the police and also denied that the other co-passenger I-WrS was robbed. It has been submitted on behalf of thefsaid that there are major discrepanciesinthetestimoniesofthe^^witnessesinrelationtothe roleofthe accused personsandthedispfepanciessubmitted aretothe effect:- ^ '' f;; ' With resnec**" nnsiliof"<•*'-ihree accused:. Asper the Complammt/Mi^'0l^(hree boys wh^ the TSR,oneofthenimiiM^f^ t twoboyssaton hissideandoW-theothersideofPW- ■. As pJpW-3, two boys sat on the left and right ofthe TSR driver,and the third boysaton^ergtipfeat"on theside ofa ■ per^PW-5,two boyssaton hisleftandrightside,whileone boysaton therearseatalongwith thetwopassengers. U nnth tn the Der«""who wielded the weapon: Asper the Complainant/PW-1."all three boysputknives upon As perPW-3,the boy who wassitting on the rightside ofthe ^idZputustara/knifeonhisneck.Heidentifiedsaidboy as Accused No.3Rahees. Page17of38 ■ As verPW-5 the boy sitting on his leftand one sitting behind pJaZe on his Lk.He identified them as Jakirand the Appellant."

28. Inter alia, it was submitted on behalfofthe said appeliantthat 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 appeUant-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. Afurthersubmission madeonbehalfoftheappellantJaved was totheeffectthattheperson whohadhs^^edeadlyweaponcanonly be punished under Section 397 ofthe Indian Penal Code,1860 and reliance in relation thereto waS; placed on the observations in paragraph19oftheverdictof;the1lon;bleSupremeCourtin Dilawar Singh V. State of which reads to the effect:- ' ^ "19. The essential ingredients ofSection 397IPC are as follows:

1. Accusedcommittedrobbery, ■ -..

2 While committing robbery or dacoity (i) accused used deadly weapon(11)to cause grievous hurt to anypersm (Hi) attempted to cause death or grievous hurt, to any T^vifender" refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon others cannot be awarded the minimum punishmentIt only the indmduaim^^^ notanyconstructive liability.Section 397IPC oXagainst theparticular accused who uses the deadly Page18of38 weapon ordoesanyofthe acts mentionedin theprovision. But other accused are not vicariously liable under that Sectionfor actsofco-accused."

30. It was further submitted on behalfofthe said appellantthatthe verdictsofthis Courtin"Dinesh Raiv.State"2013SCCOnlineDel 3503and "TejSingh@Goldy v.State"2017SCCOnlineDel7236 also adhered totheratio inDilawarSingh(supra).

31. On behalfofthe accused/appellantJakir@Chuhi,the appellant ofCRL.A.568/2020,itwasinteralia submittedthatthere are material contradictions in the eye witnesses accounts, reiterating thus the contention raised on behalfofthe:other two/appellants named Javed and Rahis submitting to the efifect.M^^ has not bben able to identifythe appellantin Courfand st^es;;thatonly one boy satatthe sideofthe Auto driverandtwowdreshtipgatthebackandthatPW 1 also stated merely that one thatPW-3 states that Raheesshowed him an UstmM^ valuables andthatthe alleged Ustara was also ™ further submittedonbehalfofthesaidappellantJakir@ChuhithatPW-5,the AutoDriverstatedthatthpApP^hantwa|pigonhisri^hthandside and that at no point does he ^tate'fhat^ithfe Appellant had taken out a knifeintheentireincident. Interalia,itwassubmittedthatPW-5also mentionsaknifeanddoesnotmentionan Ustaraandthattheustarais notadeadly,weapon,inas muchas,the ustara doesnothaveablade and that the ustara is a common tool used by bdrbers and is completelyharmlessunlessabladeexists. Page19 of38

32. Inter alia, the said appellant submits that the prosecution had failedtoshowthatthe mobilephonerecoveredfrom him wasthesame mobile phone as was allegedly robbed from PW-1. It hasthus been submitted on behalf of the said appellant adopting the submissions made on behalf ofthe other two accused/appellants I.e. Rahis, the appellant of CRL.A.344/2020 and Javed,the appellant of CRL.A. 567/2020thatIn view ofmaterial contradictionsInthe 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 sentencedated28.02.2020,haveessentiallytobesetaside.. CONTENTTONSOFTHESTATE

33. On behalfofthe State,it,wascontended thatthetestimonies of theprosecutionwitnesseswerecpnslstent.inrelationtoallthematerial particulars and that there exists nd:ground whatsoever for the modificationoftheImpugnedjuip||^ed22.02.2020,norforthe modificationoftheImpugpedofrtegnsentencedated28.02.2020.

34. Onaconsideration oftheentire availablerecord andrival pleas addressedonbehalfofeitherside,.itlsesentiaj/toobservethatasheld herelnabove vide paragraph 17, the testimonies of all prosecution witnesses examined In the matter are consistent In relation to all materialparticulars quatheoccurrenceofrobbery havingtaken place on 03.06.2016 at the66 Foota Road near the Idgah Pulla, Welcome Delhi at about 11:00PM and ofthere beingthe userofan ustara for thecommissionoftherobberyfromthepassengersIntheTSRbearing No.DL IRQ 1537,which wasdoneatthe pointofan ustara. CRL.A.344/2020,CRL.A.567/2020,-CRL.A.568/2020

35. As regards the contention raised on behalf of the accused/appellants that no public witness hadjoined the proceedings onthedate 14.06.2016whentheaccused/appellantswereapprehended bythepolicepersonnelatthepointingoutofPW-3Altabar^Haq,it isessentialtoobservethattheInvestigationOfficerofthecsiseSIBrij Mohan,PW-14 has categorically stated that he had tried tojoin the public witnesses but none agreed. The factum that members ofthe publicdonotjoininvestigations,isnotunknown andthesamecannot detract from the veracity of the prosecution version which is corroborated through the statements ofPW-3 i.e. Altabarak Haq and the Investigation Officer ofthe eaft-SIBrij Mohan,as well as the testimonyofASIKishanPalvPW-7fheil'pbstedasHCon 14.06.2016, PS Welcome when the.three accused/appellants herein were apprehended onthe identificatjOpvanlpqinting outofAltabarak Haq asbeingthethreepersonswhoM4rptife[4].^

36. As regards the:CoMeffli!|i! accused/appellants thatthePpitliMl^iSnotidentify the accused persons,the observationsofthelearned Trial Courttothe effectthat PW-3 Altabarak Haq,thexorpaSsenget&PWfS Shahrukh,the TSR driverinwhoseTSRtheincidentofrobbeo-hadoccurredhaddeposed abouttheroles ofthe accused in the commission ofthe offence in a cogent manner,have essentially to be accepted quathe observations thatthesmd witnesses have supported the prosecution version on all material aspects.

37. Though,there are undoubtedly discrepanciesinthetestimomes ofPW-1,PW-3&PW-5 interse,the testimony ofPW-3 as already Page21of38 observed elsewhere hereinabove brings forth the prosecution version, whollyinrelationto all materialparticulars.

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

24 Asperprosecution case,PW-1 BhagatSingh andPW- 3AltabarakHaq 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 robbedthePW-1 &PW-3while using ustara/knives.PW-3 Altabrak Haq ha deposed the entire incident in cogent manner and pointed gut specific role of each of the accused. As per testimony of PW-3 Altabarak Haq, accused Rahis robbed Ms rridbile phone andpurse on the pointofUstara/knife andothetlfwo^accused i.e. Javedand Jakir caught hold cof)afsenger^:and robbed his mobile phoneandpurse.PW-3deposefthatoutofthe three boys two boyssatonleftandri^sii^M^Rdriver^hilethird boysaton the rearseM:af0e,p0gf^ Shahrukh who waf. drm^^dut^^^ has also corroborated the pointing out towardsaccusedJakirandJave^Ps thepersons^w^^ were sitting on his left side and on rear seat. He further confirmed thataccusedRahis was alsg^tmgon his right hand side in the &ym-f mgdt'Singh on^ose statement present case FIR was registered although corroborated the case ofprosecution on material aspects but he did notsupport the case ofprosecution regarding descriptionofaccusedpersonsaswellastheiridentity,Ld^ Amicus curie cross-examined PW-3 & PW-5 at a length but nothing which may diminish the evidentiary value of their testimoniescame on record. Their testimonies appear to be reliable and trustworthy and there is no reason o disbelieve the same.Reliance ofHon'ble Supreme Court in AIR 2012 SC 3157, K Page22 of38 ^\\o Sandeep @Deepu vs State ofNCT ofDelhi with Han Singh VStateofNCTofDelhi,wherein whilelayingdown thequalityofa witness,Hon'ble 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 statementright from the time when the witness makes the initial statement and;^ultimately before the Court...The witness should b^^^^ a position to withstand the cross emnim^pn ofany length and strenuous it mdfrbd^ circumstance sfipuld giveJoomfor any doubt as to the fdctum c^ occurrence, the person involved, as well as, 0Jsequence of it. It should be akin to tlie testapplied in the case of circumstantial thereshould not be any mNsirig ^ circumstances,to Mdtl^g^usedguilty ofthe offence alleged against him.....To be more precise, the version ofthe said mtness on the core spectrum of the crime fhpuld remain intact while all (jither mendant material namely,oraldocumentary and materialobjects should match the said version in material particulars in order to enable the court trying theoffencetorelyon thecore version tosieve. PW-3&PW-5 both have specifically deposedabout the individualrole ofall the accusedin the commission of offenceinacogentmanner.PW-3&PW-5appearto bea Page23of38 witness pf very high quality on the basis of whose testimonyalone conviction can be based.

25 First contention of Ld. Amicus curie was that complainant who made a call at 100 number has not supportedthecaseofprosecution.In thisregardperusalof testimonyofprosecution witnesses i.e.PW-1BhagatSingh PW-3 Altabarak Haq and PW-5 Shahrukh show that all three witnesses have supported the case ofprosecution on materialaspects. Although,complainanthas notidentified 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 wentto WelcqmepwherFhe.called his employer and call at 100 number wasljnddcpby. employer, This fact is also corroboratedby,P0MPW-5 thatc^er the incident PW-5 took them neakyihe house of relative of complainant where he.calledIm employer and made call at 100 number. ComplqindrU fihs^ confirmed in his cross-examination thatname(^cpfpassenger wasrevealed as Altabarak Haq mmShdr^^ U.P His presence atthespdtfsalkbpQproborated by CUK of his mobile phdmf^-0^^rid Cell Location ExPW9/DA When PW^SpMtafmdlfHaq, who was also robbedin theincidentandPW-5Shahrukh the TR driverin whose TSR incident of robbery occurred supported the case ofprosecution mdfd^fi^ three accused, thecaseofprosecutionfdhriotbefhrown awayonlydue to non-identification ofaccusedpersons bycomplainant.

26 Ld.Amicus Curiefor accusedpersonsfurther argued that there is no evidence on record thatPW-3camefrom Amroha toDelhion thedayofincidentor thathe boarded the TSR for going to Seelampur. In this regard complainantBhagatSingh hasalsoadmittedthatthename ofco-vassenger who boarded TSR with him atthe time of revealed as Altabarak Ha,. PW-3further Page24of38 clarified in this regard that he camefrom Amroha on a private busandticketwasalso taken bythe conductorand that he de-boarded the bus at Anand Vihar. When as,per PW-3 his ticket was also taken back by the conductor oj the private bus there was no occasionfor10 to seize the said ticket.

28. PW-3 Altabarak Haq & PW-5 Shahrukh have specifically deposed aboutthe 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 admittedin her cross-examination thatshe did not tryJo know as to why accused was taken by police,Hi appears that she has deposedtosaveaccusedJavedh^righerneighbour.,have essentially to betaken iiito.account.,

39. The testimonies thus,ofthe prpseoution witnesses as observed hereinabove undoubtedly bttng||# "f'^e offence punishable under Section|Mi|«|i;||JP™ againstallthethree accused/appellantsf■^

40. As regards the commission of the offence punishable under Section 397 ofthe Indianidnalgpd^SSSO;'though undoubtedly,it has been detailed and observed bythelearned Trial Couhthatallthe three accused persons i.e.the appellants herein infurtherance oftheir common intention robbed PW-3 Altabarak Haq when they hired the auto rickshaw ofPW-5 Shahrukhto gotoSeelampur and used ustam and knives whilstcommitting a robbery,thefactum ofknives having beenutilized is nowhere detailedintheFIR. • Pagfi25 of38

41. However,PW-1,the complainant-Bhagat Singh who as per the FIRhadstatedthattheboyseated onhisleftontherearseathadtaken outthe ustaraand pointed ittowardshim andthe co-passenger calling uponthemto hand over alltheir goodsand inthe meantimethe other twoboysseatedwiththedrivercameandapprehendedthem.' Thesaid witness in histestimony on oath however,stated that whenthetempo reached under the Metro Station near Eidgah Pulia at about 10.30 - 11.00pm,thereaftertheboywho wassittingalongwiththedriver,got stopped the TSR and thereafter all thpe boys put knives upon them andtook outhispurse and histwo mpbilesofmakeZencompanyand Samsung Company and accoMingTp|t^e:coinplainant, in his purse there wasan Adharcard,PAN card,^^^drHcard,hisdrivinglicense, SBI ATM card, some documents and cash Rs.6000/- and that the SamsungMobilephonewasoik6SlWm599,whilehisotherphone was without a SIM card arid:a|eMomm robbery,all the three accusedran awayfrom the;|3C)t.:;£

42. The witness PW-3 Altab^iiitfiii relation to the mcident stated thatwhentheautoreached attheredlightWelcome,threeboys had boarded the TSR arid,;thtd bed. boys,two boys sat insidethetempo on the leftand ri^tside oftheTSR driver andthe thirdboysatontherearseatonthesideofapassenger. Hehasfurther stated that whenthe said TSR reached Jafrabad pulia nearthe metro construction work,the TSR driver was asked by one boyto stopthe same at about 10.00 pm and astheTSR driverstoppedtheTSR,the boywhowassittingontherightsideoftheTSRdriversuddenlytook out one ustarMfe and put the same on his neck and asked to Page26of38 CRL.A.344/2020,CRL.A.56112020,CRL.A.568/2020 handover valuable articles and thatthe said boy took out his mobile phone make ofIntex in golden color and his wallet containmg his card,Adharcard,visitingcard andRs.lOOO/-forcefully. Thesaid boy i.e. the aecused/appellant Rahis, the appellant of CRL.A. who waspresentin Court,waspointed outbythe witnessasbeingthe person who had robbed his mobile phone and purse on the pointof ustara/knife. The said witness PW-3 had pointed out the'remaining two accused persons(present in Court)and stated thatthe said both accused persons caught hold of the co-passenger and robbed his mobilephoneand walletandthereafter,allthree accusedpersonsfled away from the spot buttheyW-1 overpowered the auto driver PW-5. \ i '

43. As per the testimony of Altabarak Haq thus, the ustara/knifeareapparentlyinte^an^ab)ewordsusedfortheweapon utilized. This witness also^(ftlCT^efeii|yw?to^Ex.P[2] as being the same recovered from the:5acbuiift|^l|&i^ appellant,of CRL.A. 344/2020. "

44. PW-S,Shahrukh,the auto driver in his deposition on oath has statedtotheeffectthat6n.0fti0ffi2OJ.6,.^^:arivin^hisAutoonthe routeofGagan Cinemato Seelampur and onthatday,atabout 10.35 pm,two passengers boarded hisauto andthey were alighted at Shiv Mandir and from Shiv Mandirtwo passengers boarded his Auto and threeboysboardedfromtheRedlightofMoujpurandtwoofthemsat onhisleftandrightside whileoneboysatontherearseatoftheauto alongwithtwootherpassengers. Hehasfurtherstatedthatatabout11 pm,whenhisautoreachednearTentWalaSchool,whereconstruction Page27of38 work ofMetro 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 thattwo of them i.e. one who was sitting on his left and one who was sitting behind,putaknife on hisback andthattwoofthem werealso present inthe Court. This witness also pointed outtowardsthe 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 thethird boy andthushe wasunableto identify him mthe Courtand has further stated that those boys,robbed the other two ipassengers whilst showing knife and asked themftp,hand over their:belongings andthenthey calledthe policebyma^rifea^call at 100number. This witness has further stated thathp tolftIhbse passengers that he would remain with them and that they informed the police that Rs.6,000/and two mobile phones ^re;||^bed from one passenger while Rs.1,000/-andonemobile|)h6nfr^rpbbefr theotherpassenger and afterrobbing,allthethfep^a^(mse%^,away.

45. This witness i.e.PW-5 on being cross examined bythelearned APP for the State whenithe- attption^,^^ witness was drawn towards the accused Rahees further stated that the accused Rahees presentintheCourt,wasalsosittingonhisrighthandsidemtheAuto andwasoneofthosethreeboys,whoboardedhisAutoandrobbedthe passengers and hasstatedthathehas correctlyidentifiedthe accused Rahees.

46. It is essential to observe thatthe incriminating evidence putto thethreeaccused intheirstatementsunderSection313oftheCr.P.C., Page28of38 1973 which were allrecorded on03.07,2019In relationtothe userof theknife and ustam detailsthesamethrough question nos.3&4qua the appellantJaved,whichreadtothe effect.- "Q[3].Itis inevidenceagainstyouthatwhenatabout11.00 pm auto rickshaw reached near tent wala school where construction work ofmetro station was going on you as wellasyourco-accusedJakirputknife on the hackofPW- 5Shahrukh andasked him tostop the auto rickshaw. What haveyou tosay?

04. It is in evidence against you that your co-accused Rahis took out one ustara/knife and put the same on the neckofPW-3AltabarakHaq_androbbedhis mobilephone, ofIntex ofgolden colour and hisfwallet containing his Card,Aadhar Card,visifingcdrdfMPl^ Whathaveyou to say?:: ff'f' and quathe accused Jaklr@Ghuhl|qiiestlon nos.3&4read to the effect:- ■ "03 It is in evidence "'""f pm auto rickshaw construction work ofmetro stdtibn was ^ weltasyourco-accusedJavedputknifeon the backofPW- 5Shahrukh andasjcedhimjostopjhe.^o rickshaw. What haveyou tosay? t j v,:.:

04 Itis inevidenceagainstyouthatyourco-accusedRahs took out one ustara/knife andput the same on the neck of PW-3AltabarakHaq androbbedhis mobilephone ofIntex ^ ofgoldencolourandhiswalletcontaininghisCard rladhar Card,visitingcardandRs.lOOO/-forcefully. Whathaveyou to say? Page29of38 47, On behalfofthe accused/appellants i.e.Javed,the appellantof CRL.A. 567/2020 and Jakir @ Chuhi, the appellant of CRL.A. 568/2020,it was contended whilst placing reliance on the verdictof the Hon'ble Supreme Court in "Dilawar Singh v. State ofDelhi" (2007)12see641 and the verdicts ofthis Courtin "Dinesh Rat v. State"2013SeeOnlineDel3503and"TejSingh@Goldy v.State" 2017see OnlineDel 7236that it is only the offender who usesthe deadly weapon who can be awarded the minimum punishment of seven(7)years whilst invoking the provision of Section 397 ofthe Indian Penal Code,1860 and no vicarious liability in relation thereto can be attributed to them,invas much'as;the essential ingredients of Section397oftheIndianPenalCode^:;rt66readasunder;- "597. Robbery,or dacoity, with attempt to cause death or grievous hurt.—If at:thertim^ robbery or dacoity, the ojferider us^;Cmy deadly weapon, or causes grievous hurt)^g;^,person/^or attempts to cause death or grievous 0tt(r<my person, the imprisonment with which such less than seven years:y;y:ffgy^^:i;: and are as observed in Dilawar Singh (supra) m paragraph 19 reproduced elsewhere heremaboypwiMfchfe^ been observed by theHon'bleSupremeCourtthereinthatasnotedin"PhoolKumar Vs. DelhiAdministration"(1975)1 SCC 797,the term offender under Section 397 ofthe Indian Penal Code, 1860 is confined to be the offender who uses any deadly weapon and the observations ofthe Hon'ble Supreme CourtinDilawarSingh(supra)videparagraph20 thereof,which readstothe effect;- Page30of38 ''20. As noted by this Court in Phool Kumar v. Delhi Admn.[(1975)1 SCC 797:1975SCC(Cri)336.AIR 1975 SC 905]the term "offender" under Section 397 IPG is confined to the offender who uses any deadly weapon. Use ofdeadly weapon by one offender at the time ofcommitting robbery cannot attract Section 397 IPG for the imposition of minimum punishment on another offender who had not used any deadly weapon. There is distinction between "uses"as used in Sections 397 IPG and 398 IPG. Section 397 IPG connotes something more than merely being armed with deadly weapon.", has essentially to be borne in mind.

48. The learned Trial Court has undoubtedly observed to the effect that allthethree accused in furtherance.oftheir common intention had robbedPW-3 AltabarakHaq when hefiiredthe autorickshaw ofPW-5 Shahrukh to go to Seelampur and used an ustara and knives whilst committing a robbery and thqy A^ere thus convicted for the commission ofthe offenceipuni^lej^fe Sections 392/34 ofthe Indian Penal Code, 1860 rtadi^lSed^ ofthe Indian Penal Code,1860.

49. The deposition ofPW-3 Altabarak Haq,the co-passenger who has corroborated the prosecution;dbrsidhras sbfforth through the FIR intoto has been adverted to hereinabove and his deposition putsforth that the boy who was sitting on the right side of the TSR driver suddenly took out one ustara/knife and putthe same on the neck of Altabarak Haq and asked to hand over the valuable artmles and the said boy took out his mobile phone ofthe make ofIntqx m golden colour and his purse containing his ID Card, Aadhar Card, Visiting CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 ® Card and asum ofRs.1,000/-forcibly andthatthe said accusedRahis was identified by Altabarak Haq as being the boy who robbed his mobile phone and purse atthe pointing ofustara/knife and Altabarak Haq pointed outto the remainingtwo accused persons namely Javed and Jakir @ Chuhi and stated that those two accused persons had caught hold ofthe co-passenger and robbed his mobile phone and purse. In his deposition dated 18.05.2018, Altabarak Haq does not make mention ofuser ofany knife/ustara by Javed,the appellant of CRL.A. 567/2020 and Jakir @ Chuhi, the appellant of CRL.A. 568/2020. "

50. Asobserved bytheHon'ble Suprerne in Ratan Vs.State ofMadhya Pradesh"2021 SCC OnmheSC1279 whilst making a reference to the observations^of thb Hon'ble Supreme Court in ''Ganesan Vs. State Rep. by Siatiqri tiouse Officer" 2021 SCC OnLineSC1023,ithasbeenpbsefvedjl^;,^^Hon'bleSupremeCourt videparagraphs16&17 totheeffeqt:- "16.In the decision referred to by the learned counsel for the appellant, the above noted decisions ofthis Court has been r^red 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 atthe time ofcommitting robbery cannotattractSection 39/ IPCfortheimposition ofminimumpunishmenton another offender who has not used any deadly weapon. Even there is distinction and difference Pa2632of38 between Section 397 and Section 398 IPC. The word usedin Section 397IPCis 'uses'any deadly weapon and the word used in Section 398IPC is 'offender is armed with any deadly weapon'. Therefore,for the purpose ofattracting Section 397 IPC the 'offender' who 'uses' any deadly weaponSection 397IPCshall beattracted. 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 asper the case oftheprosecution and even considering the evidence on record it can beseen that the present accused A[1] and A[3] are not alleged to have usef afiyvveappn. The allegation of use of any weppop'M^ds^jdgainst Benny and Prabhakaran. Therefore in _ absence of any, allegations ofuse^gf-any dedfly weapon by the appellants herein,Acgused Nds. 1 and 3 Section 397IPC shall not be dttrqcted:and to that extent the Learned Counsel:appearing on behalfofthe appellants-accusefare. submitting that they ought notf6flj0^llid0.c(^ 1^^ offencepunishablyunder IPC."

17. From the position oflaw as enunciated by this Court and noted above,,firstly, it is clear tl^ the ^ weapon to constiiuter:the tfience.mder,fi If does not require that the 'offender'should actuallyfire from thefirearm oractuallystab ifitisaknifeeradagger 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 otheraspectis thatifthechargeofcommittingtheoffence is alleged againstallthe accusedandonly oneamongthe 'offenders'had used thefirearm or deadly weapon only such ofthe 'offender'who has used thefirearm or deadly Page33of38 weapon alone would be liable to be charged underSection 397IPC."

51. Itis also essential to observe thatthe Hon'ble Supreme Courtin Ram Ratan(supra)has further observed vide paragraphs 18'& 19 to the effect:- "75. Though the above would be the effect and scope of Section 397 IPC as a standalone provision, the application ofthe same will arise in the totality ofthe allegation and the consequentcharge that willbeframed 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 willtdls:o have to be noted ifthe charge against the acdused under-Sections 34,149IPC and such other provisions of faw, which may become relevant, is also invoked along^ 397IPC.In such event, it will have to be looked at differently i^ the totality ofthefacts,evidence and circumstancesinvolved in thatcase and theprovisionsInvpked in thatparticular casetoframea chargfagdiftst-thepc^ I^ instant case, the charge undpr^^ctfphf3f;,iPC notframed against the cqjpellantfnmj^s^^u^^ allegation faised and proved against th£^uppeiMM.IIence, benefit pfthe interpretation raised on the scope ofSection 397IPCto holdthe aggressor alone as beingguilty,,willbe available to the appellant ifthere is po spe0^Megation against him.

19. Keepingthisaspectin view,itisnecessary to examine the manner in which PWl has alleged again^ the appellantso 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 complicitto the incident,moreparticularly whenSection 34IPChas notbeen invokedin theinstantcase.. CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020 P^ge34of38 Thus, undoubtedly, in terms ofthe verdict ofthe 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 amongthe 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 allegationsand consequentchargesthatareframed and ofthe accused being tried for such charge has essentially to be considered with the aspectofthe vicariability ofthe offericepqnishable underSection397 of the Indian Penal Code, 1^60 to be noted if the charge againstthe accused ui^ejSections34,149oftheIndianPenal Code,1860and otherprovisionsoflawfstinvoked which maybecome relevantifinvoked along wi^;§^iQ|:3|f^'o IndianPenalCode, 1860in which eventitwodd-ti^q^lto ^tdifferently mthe totality ofthe facts, involved inthatcase and the provisions involved in that particular case to frame a charge againstthe accused.Inthe,caseJ)^|pre|h^:HQh'ble Supreme Courtm Ram Ratan(supra),the charge under Section 34 oftheIndianPenal Code,1860wasnotframedagainsttheappellantthereinnorwassuch an allegation raised and proved against the appellant and hence the benefitofthe interpretation raised onthe scope ofSection 397ofthe Indian Penal Code,1860to 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 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 againstthe appellantRam Ratan inthatcase 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. Intheinstantcase,the chargeshavebeenframed underSections 392/34 ofthe Indian Penal Code,1860r/w Section 397 ofthe Indian Penal Code, I860,- yet, it cannot be overlooked as observed hereinabovethatthere is no user ofany mentioned intheFIR by the complainant and though the word/, has been u^ed as an interchangeableterm byPW-3 Altab^akFiaq,the co-passenger,itis the deposition of this PW-3-Wmself v4hc attributes user of the ustara/knife only to the accused/appellant Rahis even at the time of therobberycommitted quatheotherp^§senger. !

53. In these circumstahces,='fej4#tiih^ of PW-5,jthe driver named Shahrukh whichmakes'anbi^hhi'statementtothejeffect:- ''Those boys robbed the other two passengers while showing knife and asked them ml^and over their belongings. They mlled pfdlce hyi « number.Itold those passengers thatI will remain with them. They informed the police that Rs.6,000/- and two mobilephones wererobbedfrom onepassenger whileRs. 1000/- and one mobile phone was robbedfrom other passenger.Afterrobbing,allthe three accusedran away. One of the passengers told me that his relatives were residingin the nearby area ofJafrabad.Athisrequest,I took them to their relative's housein my auto where they made a callat100number. CRLA 344/2020,CRL.A.567/2020,CRL.A.568/2020 is insufficientto bring forth any vicariousliability againstthe accused/ appellants i.e. Javed,the appellant ofCRL.A.567/2020 and Jakir@ Chuhi,the appellant ofCRL.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 of robbery 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 Puha 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 withthe recovery ofthe ustarafrom the accused Rahis,the appellant ofCRL.A.344/2020,recovery ofthe mobile phone ofthe make Samsung phone belonging to the complainant from the accused/appellant i.e. Jakir @ Chuhi, the appellant of CRL.A. 568/2020, the conviction of the accused/appellants 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@Chuhiin relation thereto isthussetaside.

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 37of38 learned ASJ-02, E-Court, Shahdara, KKD,Delhi in relation to FIR No.244/16, PS Welcome qua the sentence impeded of Rigorous Imprisonmentforaperiodofseven(7)yearsunderlections392/34of theIndianPenalCode,1860r/w Section397ofthe,IndianPenalCode, 1860 and a fine ofRs.5,000/- and in default ofpayment ofthe said fine to further undergo SimpleImprisonmentfor 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 3,97 oftheIndianPenal Code,1860 against the accused person namely Jayed, the appellant of CRL.A. 567/2020and Jakir@Chuhi,;foe apj^ahtofCRL.A.568/2020isset aside, and the sentence imposed oh the said two appellants under Sections 392/34 of the Indian:PenalCode, 1860 is modified and reduced to be a sentence of^l^lrpus Irhprisonment for a period of five (5) years with the fmefo|l^jOOP^ and in default of paymentofthe said fine,tofui^h^lihSi^ Imprisonmentfor a period ofthree(3)months with the benefit ofSection 428 ofthe Cr.P.C.,1973beinggraritedhothesetwrnappellantsas well.

56. Copy ofthisjudgment be supplied to the appellants and be also senttothe SuperintendentJail,Delhiforinformation. ANU MALHOTRA,J. JULY 06,2022 nc CRL.A.344/2020,CRL.A.567/2020,CRL.A.568/2020, 38of38