Virender Pratap Mourya vs The State
2009 Latest Caselaw 1956 Del

*                  HIGH COURT OF DELHI : NEW DELHI

                          Date of hearing: April 27, 2009
                           Date of Order: May 11, 2009

+                         Crl. Appeal No. 182 of 2009

%       Virender Pratap Mourya         ...       Appellant
                   Through: Mr. Ramesh Rawat and Mr.Narender
                             Sharma, Advocates

                                      versus

        The State                               ...          Respondent
                          Through:   Mr. Amit Sharma, Additional Public
                                     Prosecutor for the 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. Just five days before the Christmas of the year 2006, it was

evening time, when Ms. Deepmala, a Interior Designer, alighted

from a bus at Padmini Enclave bus stop in Hauz Khas, Delhi and

she started walking towards her house. When she was passing

through C-3 Block of Safdarjang Development Area, she was hit

by motorcycle and she fell down. The pillion rider of the motorcycle

came close to her and snatched her purse and thereafter, both the

assailants fled away on their motorcycle.

Crl. Appeal No. 182 of 2009 Page 1

2. Ms. Deepmala was taken to hospital for treatment and

information regarding this incident was received by the local police

but since Ms. Deepmala was not fit for giving her statement,

therefore, no legal action was initiated on the day of the incident

and it could be done on 23rd December, 2006 when Ms. Deepmala

gave a Complaint (Ex.PW-10/C). Thereafter, legal proceedings

commenced. Appellant/accused had refused to participate in the

Test Identification Parade. Once the investigation was completed,

charge sheet for the offences punishable under section 394/397/34

of Indian Penal Code was filed against Appellant and his co-

accused before the court concerned.

3. A charge under section 394/34 of Indian Penal Code was

framed by the trial court against Appellant and his co-accused and

they chose to contest the aforesaid charge. Iqbal Qureshi - co-

accused of the Appellant was also charged for commission of the

offence under section 397 of Indian Penal Code.

4. During the trial, not only the evidence of the Complainant/first

informant Ms. Deepmala (PW-1) was recorded but also of Head

Constables - Ombir Singh (PW-4), Sant Raj (PW-5), Bachu Singh

(PW-9), who had participated in the investigation of this case.

Surinder Singh (PW-7) is the landlord of the accused, who had

deposed before the trial court that Appellant and his co-accused,

alongwith the police and come to their tenanted accommodation

Crl. Appeal No. 182 of 2009 Page 2 on 21st December, 2006 and at the instance of the appellant, a

mobile phone Ex.P-1 (also Ex.P-4) was recovered from his room.

Parvinder Singh (PW-8) deposed that he had sold mobile phone

Ex.P-1 (also Ex.P-4) to Complainant (PW-1). Inspector - Rajesh

Dahiya, (PW-10) is the Investigating Officer of this case.

5. Trial court had put the incriminating evidence to the appellant

and his co-accused and had questioned them in order to find out,

as to why they have been falsely implicated in this case. The stand

of the appellant and his co-accused was of denial and they did not

lead any evidence in their defence. However, co-accused Iqbal

Qureshi had got examined himself as DW-1 in his defence.

6. The trial ended in the conviction of the appellant and his co-

accused for the offence under Section 394/34 of Indian Penal

Code and they have been sentenced to undergo rigorous

imprisonment for three and half years each with fine of Rs.1,500/-

each, which is impugned in this appeal by appellant - Virender

Partap Mourya.

7. After having heard both the sides and upon careful perusal of

the evidence on record, I find that the contentions raised on behalf

of the appellant are primarily relating to MLC of injured (PW-1) not

being proved and of the Test Identification Parade proceedings

being not duly proved and of the recovered articles being produced

in the court in unsealed condition and of site plan of the spot not Crl. Appeal No. 182 of 2009 Page 3 being at the instance of the complainant (PW-1). However, the

principle submissions advanced on behalf of the appellant were

that impugned conviction being bad in law as the star witness, i.e.,

complainant (PW-1) had failed to identify the appellant as an

accused and had also failed to identify the recovered articles as

the one belonging to her and of there being delay of three days in

lodging of the FIR in question. According to the learned Counsel

for the appellant, all this renders the prosecution case doubtful,

impugned conviction illegal and entitles the appellant to a clean

acquittal.

8. On behalf of the respondent-State, it has been asserted by

Additional Public Prosecutor for the State that injured complainant

(PW-1) may not have identified the appellant as an accused and

the recovered articles before the trial court by taking the plea of

lapse of time, but the recovered mobile phone Ex.P-1 (also Ex.P-4)

is proved to be of the complainant (PW-1) and is also proved to

have been recovered from the appellant and therefore, the

presumption under section 114 of the Evidence Act has been

rightly raised against the appellant by the trial court and since the

appellant has failed to rebut the aforesaid presumption, therefore,

his conviction is justified and the sentence imposed upon him is

reasonable one.

9. The question which falls for consideration in this appeal is

Crl. Appeal No. 182 of 2009 Page 4 that when star witness, i.e., injured/complainant (PW-1) expresses

inability to identity the accused as assailant, by taking the plea of

'lapse of time', then, whether it is open to the trial court to convict

the appellant by drawing a presumption under Section 114 of the

Evidence Act upon recovery of mobile phone Ex.P-1 (also Ex.P-4)

of the complainant from him?

10. The contentions raised on behalf of the appellant regarding

Test Identification Parade proceedings, MLC of the injured being

not formally proved and of recovered articles being not identified

by the complainant and there being delay of three days in lodging

of the FIR, are all inconsequential in view of the fact that

complainant (PW-1) is unable to identify the appellant as the

assailant and is also unable to identify the purse containing the

recovered articles.

11. From the evidence of the landlord (PW-7) of the appellant

and from the evidence of the Investigating Officer (PW-10), the

recovery of the mobile phone ( EX. P-1) from the room of the

appellant and at his instance, stand duly proved on record and the

aforesaid evidence remains unassailable. Furthermore, from the

evidence of Arvinder Singh (PW-8), it stands amply proved that

mobile phone EX. P-1 (also EX.P-4) was sold to the complainant

(PW-1).

12. On the basis of the aforesaid evidence, trial court drew a Crl. Appeal No. 182 of 2009 Page 5 presumption under Section 114 of the Evidence Act against the

appellant, by noting that this incident is of 20th December, 2006

and the recovery of the mobile phone in question was effected on

the next day. Trial court has used the circumstance of refusal to

participate in Test Identification Parade by the appellant, to label

the appellant as a thief and because appellant was unable to

explain the possession of the recovered mobile phone, it has been

concluded by the trial court that these circumstances establish that

appellant had robbed the complainant of her mobile Ex. P-1 (also

Ex. P-4) and proceeded to convict the appellant for the offence

under Section 394/34 of the IPC.

13. The aforesaid approach of the trial court is erroneous as theft

would become robbery only when the complainant / injured points

a finger at the accused to pin point that the accused is the

assailant who had robbed the complainant. In the absence of the

incriminating evidence of the complainant/ injured, the offence of

theft will not become robbery and therefore, the conviction of the

appellant for the offence under Section 394/ 34 of the IPC, cannot

be sustained and is hereby set aside. However, since the

possession of the complainant's mobile phone EX. P-1 (also EX.

P-4) with the appellant remains unexplained, therefore, by invoking

presumption under Section 114 of the Evidence Act, what at best,

can be said is that the appellant was found in illegal possession of

Crl. Appeal No. 182 of 2009 Page 6 the mobile phone of the complainant on the next day of this

incident and that the adverse inference which would be drawn

against him is that Appellant was in illegal possession of mobile

phone (Ex.P-1) of the Complainant and the offence committed by

the appellant would fall under Section 411 of the IPC which

provides for a maximum sentence of three years.

14. In the light of the aforesaid narration, the obvious answer is

that by invoking presumption under Section 114 of the Evidence

Act, on the basis of the recovery of complainant's mobile phone

Ex. P-1 (also Ex. P-4) soon after this incident, brings the offence

committed by the appellant, within the sweep Section 411 of the

IPC but it still remains beyond the scope of Section 394 of the IPC.

Resultantly, the conviction of the appellant is altered from Section

394 of the IPC to Section 411 of the IPC, being the lesser offence.

15. On the quantum of sentence, no submissions were

advanced on behalf of the appellant. Incidents like the present

one, are on the rise and the need of the hour is that the sentence

imposed, ought to have deterrent effect. Therefore, while altering

the conviction of the appellant, the sentence which deserves to be

imposed upon the appellant is of two years and nine months for

the altered offence, with fine of Rs.1,500/- and in default of

payment of fine, Appellant shall undergo simple imprisonment for a

period of two months. It is ordered accordingly.

Crl. Appeal No. 182 of 2009 Page 7

16. This appeal is partly allowed to the extent indicated above.

Appellant is in custody. He be apprised of this order through he

concerned Jail Superintendent.

17. This appeal stands disposed of with direction, as aforesaid.

Sunil Gaur, J.

May 11, 2009
rs/pkb




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