Delhi High Court
Hussain Ahmed vs State (Nct) Of Delhi Through Chief … on 5 August, 2025
Author: Manoj Kumar Ohri
Bench: Manoj Kumar Ohri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 30.07.2025
Pronounced on : 05.08.2025
+ CRL.A. 632/2024
HUSSAIN AHMED
Through: Mr. Kanhaiya Singhal, Mr. Prasanna,
Mr. Rahul Bhaskar, Ms. Ankita
Makan, Mr. Binwant Singh and Ms.
Shringarika, Advs.
versus
STATE (NCT) OF DELHI THROUGH
CHIEF SECRETARY
.....Respondent
Through: Mr. Pradeep Gahalot, APP for the
State. SI Satish Bhati, PS Sarita
Vihar.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT
1. The present appeal has been preferred under Section 415 read with
Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) by the
appellant challenging the judgment of conviction dated 27.04.2024 and the
order on sentence dated 01.06.2024 passed by the learned ASJ-03, South
East District, Saket Courts, New Delhi in Sessions Case No. 128/2022
arising out of FIR No. 328/2021 registered at Police Station Sarita Vihar,
Delhi under Sections 394/397/411/34 IPC and Section 25 of the Arms Act.
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Vide the impugned judgment, the appellant was convicted for the
offences punishable under Sections 394/397/411/34 IPC and Section 25
Arms Act. By the order on sentence, he was sentenced to undergo rigorous
imprisonment (RI) for 10 years under Section 394/34 IPC, RI for 10 years
under Section 397 IPC, and simple imprisonment (SI) for 1 year under
Section 25 of the Arms Act. All sentences were directed to run concurrently.
The benefit of Section 428 Cr.P.C. was also extended to the appellant.
2. The brief facts of the case, is that on 20.09.2021 at about 7:30 p.m.,
the complainant (PW-5) was sitting outside his house along with his minor
son and his cousin Md. Sultan Alam (PW-7) when four unknown boys
arrived and attempted to snatch his mobile phone. On intervention by PW-7,
one of the assailants stabbed him with a knife, while another assailant
snatched the complainant’s mobile phone. Thereafter, the assailants fled
from the spot, abandoning their motorcycle. The appellant and one CCL ‘A’
were apprehended nearby by a police patrolling team. A knife was recovered
from the possession of the appellant and the mobile phone of the
complainant was recovered from CCL ‘A.’ The arrested persons disclosed
the involvement of the other co-accused, namely Sultan Ahmed and Faizan.
The appellant was stated to be the person who inflicted the stab injury on
PW-7. After completion of investigation, a chargesheet was filed under the
aforesaid provisions. During the course of proceedings, co-accused Sultan
Ahmed’s trial was abated vide order dated 18.09.2023 on account of his
death and co-accused ‘CCL A’ was declared a juvenile and the fourth
accused, Faizan, remained untraced. Charges were framed against the
appellant under Sections 397/394/34 IPC and Section 25 Arms Act. In his
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statement under Section 313 CrPC, the appellant denied all incriminating
evidence put to him and claimed that he had been falsely implicated. The
appellant led no evidence nor examined any witness in his defence.
3. In total, the prosecution examined 11 witnesses. Mohd. Shamshad, the
complainant was examined as PW5. The injured eyewitness Mohd. Sultan
Alam was examined as PW7. Akash, a resident of the locality, who was an
eyewitness to the immediate aftermath of the incident, deposed as PW10.
Dr. Shah Aakash Harakhchand (PW1), Sr. Resident, AIIMS Trauma Center,
and Dr. Akshay Kumar (PW2), Junior Resident, deposed regarding the
medical treatment and MLC of the injured victim. ASI Surender Pal and HC
Dharambir, who apprehended two of the assailants, were examined as PW6
and PW8. The rest of witnesses were formal in nature who deposed as to
various aspects of the investigation.
4. Learned counsel for the appellant assailed the conviction by
contending that the recovery was vitiated and it was argued that the
prosecution failed to establish the ownership of the allegedly robbed mobile
phone, as no documentary proof or ownership records were brought on
record. The testimony of PW-7 indicates that the act of snatching the mobile
phone was committed by the juvenile co-accused, CCL ‘A’, and not by the
appellant. It was further submitted that no forensic examination was
conducted on the recovered knife to detect blood traces. Learned counsel for
the appellant also raised a legal contention that Section 397 IPC, could not
be invoked in conjunction with Section 34 IPC. In the alternative, learned
counsel for the appellant, on instructions, prays that since the appellant has
already undergone a substantial portion of the sentence, and considering his
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young age, family circumstances, and overall conduct in custody, a lenient
view may be taken by the Court and his sentence may be reduced to the
statutory minimum period of 7 years prescribed under Section 397 IPC.
5. Per contra, Learned APP for the State, supported the impugned
judgment, and submitted that all essential ingredients of the offences
punishable under Sections 394/34 IPC, 397 IPC, and Section 25 of the Arms
Act stand duly proved against the accused. It was further submitted that both
PW-5 and PW-7 had correctly identified the appellant, and that the
testimony of PW-7–being the injured witness–remained consistent in
cross-examination. The MLC supported the version of injury and the use of
a sharp weapon. The knife recovered at the instance of the appellant further
corroborated the prosecutions’ case.
6. A perusal of the Trial Court Record would show that the complainant
PW5 has supported the prosecution version. He has deposed that he was
sitting outside his house with his son and PW7 when four persons came and
started beating him and attempted to snatch his blue coloured mobile phone
of make ‘TECNO’ and one of the accused person gave a knife blow to PW7.
He further stated that they attempted to escape on a motorcycle which
however did not start. They tried escaping on foot but two of them were
apprehended by the police. He identified the appellant as the one who
stabbed PW-7 and co-accused Sultan Ahmad against whom proceedings
were abated due to his death. He further identified the knife (Ex. P2) and
mobile phone (Ex. P1), and confirmed their recovery from Hussain Ahmad
and CCL ‘A’ respectively. He corroborated that PW-7 was injured while
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trying to prevent the robbery. Nothing came out in his cross examination
which could shake his testimony.
7. The injured eye-witness Sultan Alam deposed as PW-7 and stated that
while intervening to prevent the robbery, he was stabbed on his right thigh
by the appellant by a buttondar knife. He also identified the appellant in
Court and attributed the role of inflicting injury with a knife to him.
8. PW6 and PW8 deposed that when they were on duty in ERV vehicle
they saw four persons running and some people chasing them. They
managed to apprehend two people, the appellant and CCL ‘A’. They further
deposed that from the appellant a knife was recovered which the
complainant identified to be the one used in the incident. The complainant
also identified one mobile phone of make ‘TECNO’ which was recovered
from the CCL.
9. The MLC (Ex.PW1/A) described the injury as a stab of approx. 5×4
cm over right mid-thigh which was simple in nature and caused by a sharp
weapon. The examining doctor (PW-1) proved the MLC. The sketch memo
of the knife (Ex. PW5/D) shows that the total length of the knife was 21 cm,
and the length of the blade was 11 cm.
10. The testimonies of PW-5 and PW-7, which remained unshaken in
cross-examination, unequivocally established that a knife was used by the
appellant to inflict injury during the commission of robbery. The testimonies
are supported by the MLC and the recovery of the knife from the appellant
and the phone from the co-accused. In the present case, the prosecution has
duly proved that the appellant, in the course of his co-accused forcibly
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taking away the mobile phone of the complainant, used a knife to inflict
injury on the intervening witness, thereby causing fear and hurt to facilitate
the escape. A Co-ordinate Bench of this Court in Asif v. State (NCT of
Delhi)1 has held that the use of a deadly weapon even during the escape
with the stolen property brings the act within the ambit of Section 397 IPC.
It holds as under:-
“It is trite law that even if the weapon of offence is shown after snatching had
taken place for running away along with snatched article, offence under
Section 397 IPC is attracted… Section 390 IPC provides that in a robbery,
there is either theft or extortion. It is further provided that theft is ‘robbery’ if,
in order to committing of the theft or in committing the theft, or in carrying
away or attempting to carry away property obtained by theft, the offender, for
that end, voluntarily causes or attempts to cause to any person death or hurt
or wrongful restraint, or fear of instant death or of instant hurt, or of instant
wrongful restraint… Thus, if the offender uses the deadly weapon at the time
of committing robbery or dacoity which would include even the fear of instant
death or instant hurt or wrongful restraint or an attempt to cause death or
hurt or wrongful restraint even while carrying away or attempting to carry
away the property obtained by theft, the act of the offender will fall within the
four corners of Section 397 IPC.”
The said precedent reinforces the settled legal position that the use of a
deadly weapon, even during the escape with the stolen property, brings the
act within the ambit of Section 397 IPC. The sequence of events, involving
both the snatching and the use of the weapon during the attempted flight, is
squarely covered by the principles laid down in Asif v. State (supra). Thus,
the conviction under Section 397 IPC in the present case is fully justified
and stands upheld in law.
11. In view of the consistent ocular testimony, corroborative medical
evidence, and recovery of weapon, no infirmity is found in the judgment of
1
2022 SCC OnLine Del 270
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conviction or the order on sentence. Though learned counsel for the
appellant has prayed for a reduction of the sentence, a perusal of the nominal
roll indicates that he has previously been convicted under Section 307/34
IPC in proceedings arising out of FIR No. 302/11 registered at PS. Jamia
Nagar where he was sentenced to undergo RI for 03 years & fine of
Rs.5,000/-. In addition, the nominal roll shows involvement of the appellant
in FIR No. 282/21 under Sections 393/397/398/34 IPC and FIR No. 31/21
under Section 394/397/411/34 IPC, both registered at PS. Sarita Vihar.
12. In view of the nature and gravity of the offence, the evidence duly
proved on record, and taking into consideration the fact that the appellant is
involved in other pending criminal cases, no grounds are made out for any
leniency in sentencing. Accordingly, the prayer for reduction of sentence is
rejected.
13. Consequently, the judgment of conviction dated 27.04.2024 and the
order on sentence dated 01.06.2024 are upheld. Accordingly, the appeal is
dismissed.
14. Let a copy of this judgment be communicated to the concerned Jail
Superintendent as well as the learned Trial Court for information and
necessary compliance.
MANOJ KUMAR OHRI
(JUDGE)
AUGUST 05, 2025
k
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