Rizwan v. State (NCT of Delhi)

15. Furthermore, PW-2 Ct. Pramod, PW-3 Ct. Vinod Kumar and PW-5 Anil Sharma deposed that no public witness was present at the time incident, while PW-6 SI Nishant had stated that due to odd hours not many persons were present and only one or two public persons were present, who were asked to join but they refused to join. There is material contradiction in this regard as well.

16. It is further contended that the Complaint on which rukka was prepared, as well as the site plan which was prepared on the spot, based on which the FIR 0438/2016 dated 27.09.2016 was registered. It is evident that the FIR 0438/2016 was recorded subsequent to the preparation of the rukka. Thus, it is contended that there are material contradictions in the prosecution case making the entire case not believable.

17. It is further contended on behalf of Appellant-Nadeem that at best, the case made out against him is under Section 397 IPC and by no interpretation of law can they be convicted under Section 392 IPC. It is submitted that recovery of knife has not been proved beyond reasonable doubt and therefore, the offence committed at best can be said to have been committed under Section 397 IPC.

18. Reliance has been placed on the judgement of this Court in Mohan Singh v. State, 1987(13) DRJ 176, wherein it was observed that in order to bring home a charge under Section 397 the prosecution is duty bound to produce convincing evidence that the knife used by the accused in this case was a deadly weapon, it is no doubt true that knives are weapons available in various sizes and may just cause little hurt or may be a deadliest.

19. It is further contended that the two Appellants, Rizwan and Nadeem had worked as labour for the Complainant, Anil Sharma and there was money dispute and the Complainant, Anil Sharma who had forced them to sign blank papers. Thereafter, they both were falsely implicated in the present case, which has also been stated in their statements recorded under Section 313 Cr.P.C.

20. It is argued that they have been falsely implicated in this case and the Impugned Judgment dated 26.11.2024 and Order on Sentence and 29.01.2025, deserves to be set aside.

21. Learned Additional Public Prosecutor for Respondent-State has submitted that the testimony of the Complainant, Anil Sharma is fully corroborated by two Constables who happened to be present at the time of incident and apprehended two appellants. Moreover, not only they were apprehended, but also the recovery was also made there and then.

22. Ld. Additional Public Prosecutor has further argued that the testimony of recovery of money from the purse is sufficiently explained during evidence as four notes of Rs.100 and ten notes of Rs.10 was recovered, which has been rightly appreciated by the Ld. ASJ.

23. It is further argued that the robbed articles do not found part of the personal search, but are separately reflected in the Seizure Memo and therefore, the judgment relied upon, does not assist the case of the Appellants, Rizwan and Nadeem.

24. Furthermore, the defence as alleged by the Appellants, Rizwan and Nadeem in the statement under Section 313 Cr.P.C. has not been suggested to any of the Prosecution Witnesses.

25. The testimony of the Complainant, Anil Sharma is fully reliable. Though he was partly cross- examined and could not be completed on account of his demise, but the Ld. ASJ has rightly observed that non completion of cross-examination may impact the evidentiary value but it does not make such statement of the complainant, inadmissible in law.

26. It is therefore, submitted that there is no merit in the present Appeal and it is liable to be dismissed. Submissions heard and record perused.

27. The star witness of the Prosecution was PW-5 Anil Sharma, the Complainant, who deposed that he was running the business of building material. On 27.09.2016 at about 12.15 AM, while he was returning from his shop after deloading the building material, when he reached near Ahinsa Jewelers, Raghubarpura, the Appellant-Rizwan came and placed a knife on his abdomen, while Appellant-Nadeem threatened that if he raised an alarm, they would stab him in the abdomen. Appellant-Nadeem took out his purse and mobile phone from the pockets of his clothes. Thereafter, both the Appellants, Rizwan and Nadeem started running but the Complainant gave them a chase and also made a call at number 100 from his other mobile phone.

28. While the Appellants, Rizwan and Nadeem were running through Gali No. 4, Raghubarpura with Complainant, Anil Sharma chasing them, two Police officials came from the backside on the motorcycle and the Complainant told the Police officials about the Appellants having committed robbery. Both the Police officials chased the Appellants and apprehended them at some distance.

29. He further deposed that in the meanwhile, the Complainant, Anil Sharma also reached at the spot. The Appellant-Rizwan was holding the knife in his hand. On the search of Appellant-Nadeem, his purse and mobile were recovered from the right pocket of his pants. SI Nishant, IO, also reached the spot and the two Appellants along with the recovered purse and mobile phone, were handed over to him. His statement PW5/A was recorded by SI Nishant. The knife, purse and mobile phone were seized vide memo Ex. PW1/B and C, respectively. The site plan Ex. PW5/B was also prepared. The two Appellants were arrested. Their disclosure statements were recorded by the IO. The knife was sealed in a parcel before being seized.

30. The two Appellants, Rizwan and Nadeem were identified by him in the Court. He also identified his purse found containing Rs.500/- in the denomination of four notes of Rs.100 each and ten notes of Rs.10 each and also photocopy of his Voter ID Card Ex.P-2 and the robbed articles were identified by him. The mobile phone make Nokia of black color of the Complainant, Anil Sharma was identified by him as Ex.P-3.

31. The Complainant was partially cross-examined by the Counsel on behalf of both the Respondents, wherein he explained that he was running the business of building material since 2011. On the date of incident, he had come to his Shopat about 11-11.30 PM on the previous night and was present for work in the shop. He explained that his shop opens at about 9.00 AM. Labour work till about 6-7 PM and thereafter, the building material gets deloaded at the site. Truck driver and Conductor left the site after deloading. Some truck drivers over-engaged in the work, were paid immediately and at times, after a few days. He did not remember if he had made the payment to the truck driver on the date of incident. He further explained that he managed and purchased the requisite material and supplied the same to the destination given by the contractor and also guide and helped the concerned truck driver to reach the destination with the direction to unload the material. For the said work, he used to get the commission from the contractor concerned.

32. The Complainant explained that he used his motorcycle for his movement but on the date of incident, his motorcycle was punctured, which had been left by him at the side of the contractor, near Indira Gali. He was going back to his house on the foot when the incident happened. He further explained that the distance between the place of incident near Ahinsa Jeweler and the destination of the contractor where the material was unloaded, was about half a kilometer. The Appellants were on foot at that time. He further stated that the entire incident may have taken 5-7 minutes.

33. The further cross-examination of the Complainant, Anil Sharma was deferred due to paucity of time. However, in the meantime, before his crossexamination could be completed, he died.

34. The question arose whether his testimony whereby part crossexamination was deferred, could be considered as testimony on behalf of the prosecution.

35. In the case of Krishan Dayal v. Chandu Ram, 1969 SCC OnLine Del 134, Coordinate Bench of this Court, held that the examination-in-chief of a witness would not become inadmissible due to his death before the crossexamination could be completed. However, it was observed that the degree of weight to be attached, would depend upon the circumstances of the case.

36. Similar observations were made by the High Court of Judicature at Allahabad in Ahmad Ali vs. Jyoti Pershad, AIR 1944 ALL 188A and by High Court of Calcutta in Devar Park Building Ltd. vs. Smt. Madhuri Jalan, AIR 2002 Cal 281.

37. Therefore, though his cross-examination was not completed, his testimony was admissible in evidence and has been rightly relied upon by the Ld. Trial Court.

38. Moreover, his testimony got corroborated by PW-1 HC Satpal and PW-3 Vinod Kumar, who deposed that they were patrolling in the area when they found the Complainant shouting and chasing two persons, on foot. The Complainant informed them that the aforesaid persons had robbed him of his mobile and purse, on the point of a knife. They both chased and apprehended the two Appellants, Rizwan and Nadeem.

39. From Rizwan, the knife which he was holding in his right hand was recovered, the sketch of which was prepared and thereafter, sealed in a pulanda and seized vide memo Ex.PW1/B and the mobile of the Complainant, Anil Sharma was recovered, which was seized vide memo Ex. PW1/C. The two witnesses were cross-examined, but nothing material could be elicited to create a doubt about their testimony.

40. The Appellants, Rizwan and Nadeem had vehemently contended that there were material contradiction in the testimony of the three material witnesses in regard to the presence of public witnesses. PW-1 HC Satpal had said that there were 2-3 persons present at the time of incident, but they refused to join the investigations. Likewise, PW-6 SI Nishant, IO stated that one or two public persons were present. PW-5, the Complainant, however, in his cross-examination had stated that there were no public witnesses present. This aspect cannot be considered of any consequence or a contradiction on material aspect. The gravamen of the testimony of the 03 witnesses, only confirmed that no public persons had joined the investigations. Beyond this, there is no contradiction in their respective testimonies, which is essentially consistent.

41. The Appellants, Rizwan and Nadeem were apprehended on the spot and the robbed articles were recovered from the possession of Nadeem. The Ld. ASJ has rightly convicted the Appellants, Rizwan and Nadeem under Sections 392/34 IPC.

42. However, once the conviction had been made under Section 392 IPC, further conviction under Section 411 IPC of Appellant-Nadeem was not warranted, which is hereby set aside.

43. Insofar as Appellant-Rizwan is concerned, it is consistently proved that he had kept the knife on the abdomen of the Complainant, Anil Sharma while committing the robbery and the Appellants, Rizwan and Nadeem had threatened to stab him in case he raised an alarm.

44. In the case of Dilawar Singh vs. State of Delhi, 2007 SCC OnLine SC 1086 while interpreting Section 397 IPC, it was observed that term “offender” used in Section 397 IPC refers to only the culprit who actually uses deadly weapon. When only one has used the weapon, others cannot be awarded the minimum punishment as this Section envisages only individual liability and not constructive liability. Section 397 IPC is attracted only against the particular accused who uses the weapon or does any of the acts as mentioned in this Section. Other accused cannot be vicariously held liable for the acts of the co-accused. Similar observations had been made in the case of Phool Kumar vs. Delhi Admn., (1975) 1 SCC 797.

45. Another important aspect which emerges in Section 397 IPC is that only such offender, who “uses” the weapon. The term “use” was interpreted in the case of Phool Kumar (supra) wherein it was observed that the use of weapon by the offender if used for creating terror in mind of victim, is sufficient to constitute “use”. Similar observations were made in the case of Ashfaq vs. State of NCT of Delhi, AIR 2004 SC 1253. In the case of Murlidhar vs. State, 2018 SCC OnLine Del 9401, reliance was placed on the aforesaid judgments to conclude that the term “use” would include threatening and would be sufficient to constitute offence under Section 397 IPC.

46. Appellant-Rizwan has been rightly convicted under Section 397 IPC, which is established by the recovery of knife from him on the spot.

47. The Appellants had taken a plea that they had a dispute over labour charges with the Complainant and they have been falsely implicated in this case. However, this defence was never suggested to any of the prosecution witnesses. Moreover, aside from raising a claim in their statements under Section 313 Cr.P.C., no independent evidence was led by the Appellants, Rizwan and Nadeem to prove that there was any dispute in regard to payment of the labour charges or that they had been implicated falsely in this Case. Conclusion:

48. The Complainant, Anil Sharma had categorically deposed that the knife was put on his abdomen and he was threatened against raising an alarm or else he would be stabbed. The testimony of the Complainant, Anil Sharma corroborated by two Police Officials who apprehended the Appellants on the spot and recovered the robbed articles, has proved the case of the prosecution beyond doubt. The Appellants have been rightly convicted and sentenced.

49. There is no merit in the present Appeals, which are hereby dismissed along with the pending Applications, if any.

JUDGE JUNE 30, 2025 N