Naresh Mukhia vs The State (Nct Of Delhi)
2009 Latest Caselaw 313 Del

*                      HIGH COURT OF DELHI : NEW DELHI

               Judgment reserved on : January 22, 2009

               Judgment delivered on : January 30, 2009


+                      (1)   Crl. A. No. 182/2006

%      Naresh Mukhia                              ...          Appellant
                             Through:    Mr. Abinash K. Mishra, Advocate

                                        versus

       The State (NCT of Delhi)                     ...   Respondent
                       Through:          Mr. Amit Sharma, Additional Public
                                         Prosecutor for State.

                       (2)   Crl. A. No. 907/2006

       Mohd. Farid                                 ...         Appellant
                             Through:    Mr. R.N. Jha, Advocate

                                        versus

       The State (NCT of Delhi)                     ...   Respondent
                       Through:          Mr. Amit Sharma, Additional Public
                                         Prosecutor for State.

CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported
   in the Digest?

SUNIL GAUR, J.

1. The above captioned two appeals arise out of the impugned

judgment of 9th December, 2005 vide which the two appellants

herein i.e. Mohd. Farid and Naresh Mukhia stands convicted for the

offence under Section 392/34 of the IPC and appellant Mohd. Farid

also stands convicted for the offence under Section 397 of the IPC

Crl. A. No.182/06 & 907/06 Page 1 and for the offence under Section 25 of Arms Act. Order of 13th

December, 2005 of the trial court sentencing these two appellants to

RI for five years each and to a fine of Rupees One thousand each for

the offence under Section 392/34 of the IPC and RI for seven years

and to a fine of Rupees Two thousand for the offence under Section

397 of the IPC imposed upon appellant Mohd. Farid and RI for one

year and a fine of Rupees Five hundred imposed upon appellant

Mohd. Farid for the offence under Section 25 of the Arms Act, is also

impugned in this appeal.

2. Both these appeals pertain to one incident and arise out of

common impugned judgment, therefore, they were heard together

and are being decided together by this common judgment.

3. The background relevant facts are as follows:-

On 26th November, 2004 at about 6:30 p.m. Mahesh

(PW-5) was sitting with his father in his house and the door

bell rang and when the door was opened, three boys

having pistol and a knife entered the house and had

threatened Mahesh (PW-5) to handover the valuables,

including money and ornaments and one of the culprit took

the wrist watch and a gold ring which Mahesh (PW-5) was

wearing and another culprit took the keys of the almirah

from the father of PW-5 and tried to open the inner safe of

the said almirah but he could not open it and in the

meanwhile, Neelima (PW-3), a maid of the house, came

there from upstairs and on seeing the culprits, she raised

alarm and the culprits tried to flee away and they were

chased and in the lane( gali), two of the culprits i.e.

Crl. A. No.182/06 & 907/06 Page 2 appellant/ accused Mohd. Farid and his co-accused Lalit

were apprehended with the help of neighbour etc. and one

country made pistol and the robbed mobile phone, was

recovered from accused Mohd. Farid and on the written

complaint of Mahesh (PW-5), FIR of this case was

registered. Appellant/ accused Naresh had managed to flee

away. Investigation had commenced and during the course

of the investigation, appellant/ accused Naresh was

arrested but he had refused to participate in the Test

Identification Parade. It stood revealed in the statement of

Smt. Raj (PW-6), mother of the complainant that the

appellant/accused Naresh had snatched her gold ring

having pearl and he had managed to escape after alarm

was raised. The robbed ring of Smt. Raj (PW-6) was got

recovered by appellant/ accused Naresh. After completion

of the investigation, charge sheet was filed against these

two appellants/ accused and their co-accused for the

offences under Section 392/34, 397/34 of the IPC and under

Section 27 of the Arms Act.

4. At trial, appellant/accused did not plead guilty to the aforesaid

charges framed against them and the evidence of fifteen witnesses

was recorded by the trial court, which comprises of the deposition of

the first informant Mahesh (PW-5), of his mother Smt. Raj (PW-6),

and of their maid Neelima (PW-3). There is also evidence of an eye

witness Kulbhushan (PW-2) and of a neighbour Harender Pal Singh

(PW-12). Head Constable Jagdish Raj (PW-7) has deposed regarding

the apprehension of appellant/ accused Mohd. Farid near the spot.

Crl. A. No.182/06 & 907/06 Page 3 Assistant Sub Inspector Sarabjeet Singh (PW-14) is the Investigating

Officer of this Case.

5. Appellant/accused Mohd. Farid before the trial court in his

statement under Section 313 of Cr.P.C. admitted his presence at the

spot by taking the plea that he had gone to house of complainant

(PW-5), with co-accused Naresh and Lalit Mukhia to take money of

Ramu Mukhia from his employer/ first-informant. He alleges false

implication in this case but gives no reason for being falsely

implicated in this case. Appellant / accused Naresh Mukhia had also

taken the similar plea of going to the house of the employer/ first

informant (PW-5) along with co-accused Lalit Mukhia, to collect the

salary of co-accused Ramu Mukhia. However, no evidence was led

by these two appellants/ accused in their defence before the trial

court.

6. After the trial, these two appellants/ accused stand convicted

and sentenced as already noted above.

7. On behalf of the appellants, it has been pointed out that there

is some discrepancy in the evidence of the witnesses interse

regarding the timing of this incident and the variation pointed out is

of just fifteen minutes or so, which to my mind, is not at all a

material discrepancy. During the course of the arguments, as well as

in the written submissions, it has been stressed that the furnishing

of the written typed complaint by PW-5 within a short period of just

half an hour of the occurrence is just not possible and of alleged

seizure of the country made pistol and of arrest of appellant/

accused Mohd. Farid and his two co-accused near the spot, is not at

all possible and the FIR of this case has been ante-timed and the

Crl. A. No.182/06 & 907/06 Page 4 alleged writing work was done later on in the police station. It is a

matter of record that the Rukka for registration of the FIR was sent

at about 9:00 p.m. and the FIR in this case was registered on the

same day promptly at 9:30 p.m. which clearly rules out the plea of

the appellants of investigation of this case being tainted. A bare

perusal of the testimony of the Investigating Officers (PW-14 & PW-

15) reveals that they have not been cross-examined on the aspect

of investigation of this case being tainted or on the aspect of the

recovery of the robbed gold ring and therefore, no benefit accrues to

the appellants on this account.

8. It is true that Smt. Raj (PW-6) in her evidence has stated that

the recovered ring Ex.P-2, weighed three grams, and first informant

(PW-5) has stated in his evidence that the gold ring which was

robbed from him, weighed ten grams, but it will not make any

difference for the reason that there is no pointed cross-examination

of the first informant (PW-5) regarding non recovery of the gold ring

from the appellant/ accused Mohd. Farid upon his apprehension near

the spot. It is a matter of record that the gold ring Ex.P-2 got

recovered by appellant/ accused Naresh belonged to Smt. Raj (PW-

6) and she has duly identified it in her evidence. Even if Mahesh

(PW-5) has identified the recovered Ex. P-2 in his evidence, it would

make no difference because he has clearly stated in his evidence

that the ring Ex. P-2 got recovered by appellant /accused Naresh

belonged to his mother. Thus, it is abundantly clear that there is no

worthwhile controversy regarding the recovered ring Ex. P-2.

9. The so-called discrepancies pointed out by the appellants/

accused in the prosecution case as highlighted in the written

Crl. A. No.182/06 & 907/06 Page 5 submissions, become inconsequential in view of the fact that

appellant/ accused Mohd. Farid was apprehended at the spot and

the weapon of offence used by him in the commission of this crime,

i.e. the country made pistol as well as robbed wrist watch of PW-5

was recovered from him after his apprehension near the spot by the

neighbours/ public persons.

10. The testimony of complainant/ first-informant (PW-5) and of his

mother (PW-6) is found by me to be consistent and reliable and has

been rightly accepted by the trial court. Although neighbour (PW-12)

was declared hostile by the prosecution, but he has stated that wrist

watch and the country made pistol was recovered from appellant/

accused Mohd. Farid at the spot and he has stated that due to lapse

of time, he could not recollect about it. There is also evidence of

Kulbhushan (PW-2) who had witnessed this incident and has

deposed about the apprehension of appellant Mohd. Farid and his

co-accused Ramu and of recovery of county made pistol from one of

them. I find that the evidence of these two witnesses does provide

ample corroboration to the prosecution case. Infact, worthwhile

corroboration to the core of the prosecution case is provided by the

maid Neelima (PW-3) whose testimony remains intact despite

limited cross-examination by the State. Otherwise also, the evidence

of the first informant (PW-5) and of his mother (PW-6) is sufficient to

sustain the conviction of these two appellants/ accused and the plea

taken by these two appellants/ accused of being present at the spot

also reinforces the prosecution case.

11. Now, what remains to be seen is as to the version of these two

appellants/ accused given by them in their statements under Section

Crl. A. No.182/06 & 907/06 Page 6 313 of the Cr.P.C. is plausible one and if it is sufficient to dislodge

the prosecution version. Appellants/ accused wants this court to

believe that they had accompanied their co-accused Ramu ( since

convicted) who was previously servant in the family of the first

informant (PW-5), to realise the salary due towards him. It is not

disclosed as to what were the arrears of the salary and it is not even

stated that the employer/ first informant ( PW-5) or his family had

refused to pay the alleged salary dues. Above all, it is not disclosed

by the appellants/ accused as to why the complainant / first

informant (PW-5) and his mother (PW-6) and their maid (PW-3) and

their neighbour (PW-2 & PW-12) would falsely implicate them in this

case.

12. To say the least, the aforesaid plea taken by the appellants/

accused is quite vague one and is hardly plausible and is not at all

sufficient to discard the prosecution case, which has been found to

be completely worthy of reliance.

13. In view of the aforegoing narration, it is held that the

conviction of these two appellants/ accused by the trial court is well

justified and is based upon the evidence on record and does not

suffer from any illegality or infirmity. Thus, the conviction of these

two appellants/ accused is hereby upheld.

14. On the quantum of sentence also, there is no scope for any

interference, so far as the sentence imposed upon appellant/

accused Mohd. Farid is concerned, as it is found that the sentence

awarded to him for the offence under Section 397 of the IPC is the

minimum sentence. However, the sentence of RI for five years

awarded to appellant/accused Naresh Mukhia for the offence under

Crl. A. No.182/06 & 907/06 Page 7 Section 392/34 of the IPC, leaves some scope for reduction of the

sentence, as no minimum sentence is provided for the aforesaid

offence.

15. The reason put forth for taking a lenient view on the point of

sentence qua appellant/accused Naresh Mukhia is that he was aged

about twenty two years at the time of this incident and he did not

have any criminal record and at the time of the hearing on the point

of sentence, it was found that he was married by then and was

having a wife and a child to support. This stands noted in the

impugned order on sentence. It has been pointed out that as per the

'nominal roll' of appellant/accused Naresh Mukhia, he has already

undergone substantive sentence of two years and two months, out

of the sentence of five years awarded to him and his conduct in jail

has been found to be satisfactory. By virtue of order of 20th March,

2007 of this court, the sentence imposed upon the appellant stood

suspended and as of today, appellant/ accused Naresh is on bail. He

has faced the agony of trial and appeal proceedings since

November, 2004 in this case. He was not arrested at the spot. While

taking into consideration the facts and circumstances of this case, I

find it to be a fit case for reduction of the substantive sentence

imposed upon appellant/accused Naresh to the period already

undergone by him, subject to the enhancement of fine from Rupees

One thousand to Rupees Ten thousand only. It is ordered

accordingly. In case, the fine which is now enhanced to Rupees Ten

thousand only, is not deposited by the appellant/accused Naresh

within three weeks from today, he shall have to undergo simple

imprisonment for a period of ten months only.

Crl. A. No.182/06 & 907/06 Page 8

16. The appeal of appellant Naresh Mukhia stands partly allowed

to the extent indicated above, whereas appeal of appellant Mohd.

Farid stands dismissed.

SUNIL GAUR, J.

January 30, 2009
rs




Crl. A. No.182/06 & 907/06                                   Page 9