Thu. Apr 22nd, 2021

Shamshad vs State on 1 June, 2017

2 min read

2. Learned counsel for appellant Mehboob contends that one co-accused
Bashir Ahmed allegedly involved in the incident was never arrested nor
tried, hence conviction of the appellant for offence punishable under Section

CRL.A. 150/2015 & Ors. Page 2 of 15
395 IPC i.e. dacoity is liable to be set aside. Appellant Mehboob has not
been convicted for offence punishable under Section 412 IPC hence it can
safely be held that the prosecution has not proved his involvement in the
dacoity as well. No recovery was made pursuant to the arrest of Mehboob.
He has been falsely implicated.
3. Learned counsel for Shamshad contends that an alleged offence
punishable under Section 356 IPC has been converted into offence
punishable under Section 395 read with Section 120B IPC by roping in
Mohd. Abdul Qayum who was only plying the rickshaw, as a conspirator to
take the number of accused persons to five. In the FIR, complainant stated
that chain of the rickshaw was getting disengaged frequently, so he asked
them to take the tonga. However Nand Lal, the complainant improved his
version in Court to show the complicity of Mohd. Qayum and stated that he
forcefully kept their bags in the Tonga. Neither rickshaw of Mohd. Qayum
was recovered nor the same was sent for mechanical inspection. In the FIR,
it was not stated that threat of giving knife blow was made however the same
was deposed to in Court. Though from Ajmeri Gate, the complainant and
his brother were to go to Sarafa Bazar, Chandni Chowk, one fails to
understand how they landed up in front of Hanuman Mandir, Jamuna Bazar.
No description of the accused has been mentioned in the FIR. As per the
notes in the site plan, four persons were involved. No previous involvement
of the appellant has been proved. Thus even if the case of the prosecution is
accepted, at best the appellants can be convicted for offence punishable
under Section 356 IPC or 392 IPC and they be thus released on the period
already undergone. Reliance is placed on the decisions of this Court in
Shafiq Vs. State (Crl.A. 397/2006 decided on 6th January, 2009), Sammi &

CRL.A. 150/2015 & Ors. Page 3 of 15
Anr. Vs. State (Crl.Rev. P. 565/2014 decided on 27th April, 2015) and Ikrar
Vs. State Govt. of NCT of Delhi (Crl.Rev. P. 454/2014 decided on 5th
November, 2015).

Source: Indian Kanoon

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