Appeal against a conviction for dacoity and sentencing. The Court held that recovery of articles is not essential for conviction if witness testimony is cogent. The sentence of seven years under Section 397 IPC was found appropriate.
Appeal and application dismissed; Appellant to undergo the remaining sentence.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. A. No. 606/2011 and Crl.M.B. 833/2011
% Reserved on: 1st December, 2011 Decided on: 4th January, 2012
ISHTKAR @ INTJAR ..... Appellant Through: Mr. Rajender Yadav, Adv. versus
STATE GOVT. OF NCT OF DELHI ..... Respondents Through: Mr. Manoj Ohri, APP for State with SI Sunny Kumar PS Adarsh Naggar.
Coram: HON'BLE MS. JUSTICE MUKTA GUPTA
Crl.A.No.606/2011
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effected at the instance of the Appellant. Besides the Appellant no other person was charge-sheeted or tried for the offence. The recovery of the country-made pistol cannot be used against the Appellant as the same was not put to the witnesses. The incident is of the intervening night of 2nd and 3rd September, 2007 at 1.30 AM when the dacoity is allegedly committed with the help of arms and cash & jewellery were removed. The Appellant was arrested on 3rd September at 4.30 PM. The manner and style of arrest of the Appellant is shrouded in mystery. Further the witnesses have stated that the Appellant was arrested from G.T. Karnal Road, By-Pass, however as per the arrest memo the Appellant was arrested from the outer Ring Road slope. The relevant witnesses like the mother of the complainant were not produced. Nobody except the husband and wife were examined, despite the entire family including the parents, elder brother’s wife being present. Further no public witness has been examined. There are further contradictions between the testimonies of PW2 and PW5. One states that three mobile phones have been stolen and the other states that four mobile phones have been stolen. Further the complainant has not produced the bills of the jewellery showing the ownership.
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the purse. The prosecution has proved its case beyond reasonable doubt and the appeal is liable to be dismissed.
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checking, they found Rs. 50,000/- and some silver utensils were removed from the Diwan lying in the room of his mother. One purse was also found lying in the room of the complainant which contained one voter I card, some photographs, one E Trans card, 23 visiting cards, one small diary and Rs. 20/30. He identified the purse which contained the election ID card & other things to be the one which fell down when the Appellant was fleeing with other accused. He handed over the purse with the articles to the Police who recorded statement Ex.PW-5/A on which the FIR was registered.
Crl.A.No.606/2011 Page 4 of 6
learned counsel for the Appellant on the fact that besides the husband and wife no other witness has been examined. It may be noted that in the present case the initial incident took place inside the room of complainant and his wife which was not witnessed by the sister-in-law or the parents and, thus, they could not have been eye-witnesses to the incident. There was thus no need to examine them as such. Further, while fleeing from the spot the Appellant’s purse fell down which also had his I-card and his photographs besides other things. This fact is also mentioned in the rukka Ex.PW-5/A. Thus, there is sufficient evidence on record to connect the Appellant with the offence committed. Merely because the Police has not been able to arrest the other co-accused and there is no recovery at the instance of the Appellant of the looted articles, it cannot be said that the Appellant was not involved. There is no reason whatsoever for the complainant and his wife to have falsely implicated the Appellant. Further though there is a minor contradiction as regards the place from where Rs.50,000/- were robbed from the house, as PW5 says that the same were removed from the Diwan of his mother, however PW2 says from the almirah, however this is a minor contradiction which does not go to the root of the matter. Further, though it is not specifically stated that with which weapon the Appellant was armed but the witnesses have clearly stated that all accuseds were armed with pistol, and knives. Thus it is clear that the Appellant also used a deadly weapon in order to commit dacoity. Recovery of the robbed articles is not a sina-qua-non for conviction for offence under Sections 395/397 IPC. The conviction can be based on the cogent and reliable testimony of the eye-witnesses.
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(MUKTA GUPTA) JUDGE
JANUARY 04, 2012 ‘ga’
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2 issues framed by the court
Whether the conviction for dacoity is sustainable in the absence of recovery of stolen articles and full cross-examination of the complainant.
Whether the sentence of seven years imprisonment under Section 397 IPC can be reduced.
1 provisions across 1 enactments
ISHTKAR @ INTJAR
STATE GOVT. OF NCT OF DELHI
MUKTA GUPTA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
