Mohd. Imran vs State (Nct) Of Delhi
2011 Latest Caselaw 84 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 Judgment reserved on: January 04, 2011
                                 Judgment delivered on: January 07, 2011

+      CRIMINAL APPEAL No.454/2008

       MOHD. USMAN @ SONU                              ....APPELLANT

                      Through:    Mr. Vikas Padora, Advocate with Ms. Rita
                                  Hingmang, Advocate.

                             Versus

       STATE (NCT) OF DELHI                   .....RESPONDENT
               Through: Ms. Fizani Husain, APP.

                                  WITH


       CRIMINAL APPEAL NO.524/2008

       MOHD. IMRAN                                    ....APPELLANT
               Through:           Ms. Rakhi Dubey, Advocate.

                             Versus

       STATE (N.C.T.) OF DELHI           .....RESPONDENT
                Through: Ms. Fizani Husain, APP.

       CORAM:
       HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?

AJIT BHARIHOKE, J.

1. Above referred appeals are directed against the impugned

judgment dated 4th April 2007 in Sessions Case No.5/2006 FIR

No.361/2001 under Sections 392/394/397/34 IPC P.S. Bhajan Pura and

the consequent order on sentence dated 10th April 2007 whereby the

appellants Mohd. Usman and Mohd. Imran have been convicted for the

offences under Sections 394 and 397 IPC read with Section 34 IPC and

respectively sentenced to undergo RI for a period of 10 years and also

to pay a fine of `20,000/- each and in default of payment of fine, to

respectively undergo SI for a further period of one year.

2. Briefly stated, facts relevant for these appeals are that on 18th

October 2001 at about 9.30 p.m., Head Constable Ramesh Chand (PW-

2), while on motorcycle patrol along with Constable Narender Kumar

came across the injured Satish Kumar (PW-4) surrounded by a group of

people on a 66 feet wide road in front Gali No.14, Adarsh Mohalla,

Maujpur, Delhi. Head Constable Ramesh Chand (PW2) stopped his

motor cycle and on enquiry, injured Satish Kumar (PW4) told him that

while he was coming back on his motor cycle DL-5S-N4590 make

Yamaha, he was waylaid by four boys near Gali No. 14, Adarsh Mohalla,

Maujpur Turning and two boys out of them took out knives and asked

him to hand over his motor cycle. When he resisted their attempt,

those boys inflicted knife wounds on his person i.e. abdomen and back.

One of those boys snatched a gold chain from his neck and thereafter,

said four boys left the spot along with the motor cycle and the chain.

The injured also stated that those boys were aged 20-22 years. Head

Constable Ramesh Chand thereafter took the injured to GTB Hospital in

a TSR and conveyed the information about the incident to the police

station on wireless. On the basis of said information, DD No. 22A dated

18.10.2001 was recorded at P.S. Bhajan Pura at 9.47 p.m. and it was

marked to SI Arjun Singh (PW7) for verification.

3. On the receipt of the copy of DD report, SI Arjun Singh reached

GTB Hospital along with Constable Rajesh. By that time, injured Satish

Kumar had been administered anaesthesia, as such, his statement

could not be recorded. SI Arjun Singh recorded the statement of Head

Constable Ramesh Chand Ex.PW2/A and sent it to the police station

after appending his endorsement Ex.PW7/B on the same. On the basis

of said rukka, formal FIR was registered. At GTB Hospital, Constable

Devender handed over a sealed packet of clothes of injured to SI Arjun

Singh, which was taken into possession vide memo Ex.PW3/A.

4. On 19th October, 2001, SI Arjun Singh visited the place of

occurrence and prepared the rough site plan Ex.PW7/C. He also

recorded the statement of the injured as well as of the witnesses.

Investigation remained with SI Arjun Singh till 29th October, 2001 when

it was taken over by Inspector Rohtash, PW13.

5. It is further the case of prosecution that on 26th October, 2001,

appellant Mohd. Usman @ Sonu was arrested in an Arms Act case,

being case FIR No. 392/2001 under Section 27 of the Arms Act, by the

officials of P.S. Seelam Pur. When interrogated in that case, Mohd.

Usman made a disclosure statement Ex.PW13/J regarding his

involvement in this case along with his co-accused Shahnawaj, Faizan

and Mohd. Imran (appellant). This information was conveyed to P.S.

Bhajan Pura and the Investigating Officer Inspector Rohtash, on 29th

October, 2001 moved an application seeking permission to formally

arrest the appellant in this case. Pursuant to said application,

appellant Mohd. Usman was formally arrested in this case and on

interrogation, he made a disclosure statement. The disclosure

statement however, did not lead to any recovery.

6. It is also the case of the prosecution that appellant Mohd. Imran

was arrested by the officials of P.S. Seelam Pur in an Arms Act case

being FIR No. 434/2001 on 05th December, 2001. On interrogation in

the aforesaid case of P.S. Seelam Pur, the appellant Imran made

disclosure about his involvement along with the other three co-accused

persons in the incident relating to this case. This information was also

conveyed to P.S. Bhajan Pura and pursuant to the information,

Inspector Rohtash formally arrested the appellant Mohd. Imran in this

case and he also, on interrogation, made a disclosure statement

related to the incident which is the subject matter of this case but the

disclosure led to no recovery.

7. The Investigating Officer Inspector Rohtash applied for holding

Test Identification Parade (TIP) to fix the identity of the appellants.

Appellant Mohd. Usman joined the TIP and he was correctly identified

by the victim Satish Kumar. Appellant Mohd. Imran however, declined

to participate in the TIP proceedings on the ground that he had been

shown to the witnesses by the police.

8. On completion of the formalities of investigation, appellants were

challaned along with their co-accused Shahnawaj @ Mohd. Shalu and

Faizan (P.O.).

9. The learned Additional Sessions Judge charged the appellants for

the offences punishable under Section 392 read with Section 397/34

IPC. The appellants pleaded not guilty to the charged and claimed to

be tried.

10. In order to bring home the guilt of the appellants, prosecution has

examined 13 witnesses in all. PW2 ASI Ramesh Chand is the

complainant. He has testified that on 18.10.2001, while on motor cycle

patrol along with Constable Narender Kumar near Gali No. 14, Adarsh

Mohalla, Maujpur, he noticed a crowd of people surrounding the injured

Satish Kumar (PW4), who was bleeding. On inquiry, injured told him

that he was waylaid at the corner of Gali No. 14, Adarsh Mohalla by

four young boys aged 20-22 years and they had taken away his motor

cycle make - Yamaha and his gold chain after stabbing him on his

abdomen and on his back. The witness claimed that he conveyed this

information to senior officers on wireless and took the injured to GTB

Hospital in a Three Wheeler Scooter. He stated that at the hospital, his

statement Ex.PW2/A was recorded by the Investigating Officer.

11. PW4 Satish Kumar is the victim. He has stated that on 18th

October, 2001, he was returning home on his motor cycle after

meeting Shaukat Ali. At about 8.15 p.m., when he reached near

Adarsh Mohalla, the appellants and two other accused persons stopped

his motor cycle and started beating him. They tried to snatch his

motor cycle as well as the gold chain which he was wearing at that

time. When he resisted, two boys took out knives and stabbed him on

his belly. He was also stabbed on his back. This witness identified the

appellants Mohd. Usman and Mohd. Imran and stated that Mohd. Imran

had given the knife blow to him.

12. PW13 Inspector Rohtash Kumar conducted further investigation

of this case. He testified that on 29th October, 2001, he took over

investigation of this case. On the same day, an information was

received from P.S. Seelam Pur that the appellant Mohd. Usman was

arrested by them in case FIR No. 392/2001, P.S. Seelam Pur and in that

case, he has made disclosure about his involvement along with others

in the present case. He applied for production warrants of Mohd.

Usman in the court concerned and on 30th October, 2001, he formally

arrested Mohd. Usman. He further stated that he interrogated

appellant Mohd. Usman with the permission of the court and he made a

disclosure statement Ex.PW13/C. The witness claimed that the

appellant was kept in muffled face and that he applied for fixing a date

for TIP. TIP was conducted on 06th November, 2001 wherein the

appellant was correctly identified by the victim Satish Kumar. He has

proved the copy of the TIP proceedings Ex.PW13/D. Inspector Rohtash

Kumar further stated that he also arrested the appellant Mohd. Imran

and co-accused Shahnawaj. Both of them were produced in court in

muffled face and a request for holding TIP to fix their identity was

made. Appellant Mohd. Imran and co-accused Shahnawaj refused to

participate in TIP. He has proved the copy of the TIP proceedings

related to appellant Mohd. Imran as Ex.PW13/E. He has also stated

that appellant Mohd. Imran made disclosure statement regarding his

involvement in the incident in question and he has proved Ex.PW13/H.

Witness further stated that he also seized photocopies of the disclosure

statements made by the appellants Mohd. Usman and Mohd. Imran at

the time of their interrogation in the other cases in which they were

arrested, being Ex.PW13/J and Ex.PW13/K respectively.

13. PW5 Dr. Banarasi, CMO, GTB Hospital examined the victim Satish

Kumar on 18th October, 2001. He has proved the MLC of PW4 Satish

Kumar Ex.PW5/B and stated that on examination of the injured, he

found stab injury on the right hypochondrium 2 c.m./0.5 c.m. and stab

wound at right lumber region 2 c.m./0.5 c.m. and that he referred the

victim to Senior Resident (Surgery).

14. Statements of the appellants Mohd. Usman as well as Mohd.

Imran were recorded under Section 313 Cr.P.C., who, in their

respective statements denied the prosecution story in totality. As

regards the TIP, appellant Mohd. Usman admitted that he had

participated in the TIP and appellant Mohd. Imran stated that he had

refused to participate in TIP as he had been shown to the witnesses.

15. Mohd. Usman has examined two witnesses in defence. Both of

them have stated that about 8 or 9 months prior to recording of their

statements, the police had visited the house of Mohd. Usman and

taken him to the police station Bhajan Pura. Both of them declined

having any knowledge about the facts of this case.

16. Learned Additional Sessions Judge, on consideration of record,

found the prosecution evidence reliable and held the appellants Mohd.

Usman as well as Mohd. Imran guilty of the offences punishable under

Section 394/397 IPC read with Section 34 IPC and convicted and

sentenced them accordingly.

17. Learned Shri Vikas Padora, advocate for the appellant Mohd.

Usman and learned Ms. Rakhi Dubey, advocate appearing for the

appellant Mohd. Imran have assailed the impugned judgment and

consequent order on sentence on almost similar lines. They contended

that the prosecution has miserably failed to prove the guilt of the

appellants in this case. Expanding on the argument, learned counsels

submitted that the trial court has wrongly relied upon the testimony of

PW4 Satish Kumar (victim) ignoring the fact that his version is not

corroborated by the statement of any other witness, nor is it

corroborated by the evidence regarding recovery of the stolen goods or

the weapon of offence from either of the appellants or at their instance.

18. I am not impressed with the above contention. There is no law

which provides that in a case of theft or robbery, recovery of the

weapon of offence or stolen goods is sine qua non for proving the guilt

of the accused person. If, for any reason whatsoever, the accused,

after committing the offence has been able to dispose of, destroy or

conceal the stolen property or the weapon of offence, it cannot be

taken as a reason to disbelieve the testimony of the victim if it is

otherwise found reliable. No doubt, as per the version of Head

Constable Ramesh Chand(PW2), he found injured Satish Kumar

surrounded by a group of people but, this by itself, does not mean that

the aforesaid public persons had actually witnessed the occurrence. A

possibility cannot be ruled out that those public persons reached at the

spot after the occurrence.

19. Section 134 of the Indian Evidence Act provides that "no

particular number of witnesses shall be required for the proof of a

fact". From this, it is clear that finding of guilt of an accused can be

based on the testimony of a single witness, if he/she is found to be

reliable. It is the quality of evidence and not the quantity which is

required to prove a fact. Plurality of evidence is only a rule of

prudence but not a requirement of law. In a trial, evidence is required

to be weighed and appreciated on the anvil of reliability of the

witnesses.

20. PW4 Satish Kumar (victim) has categorically stated that he was

waylaid on the night of 18.10.2001 near Gali No.14, Adarsh Mohalla,

Mauzpur, Delhi on a 66 feet wide road by four persons, including the

appellants and they robbed him of his Yamaha Motorcycle and gold

chain. He also claimed that in the process, he was stabbed on his

abdomen and the back. His aforesaid version finds corroboration from

his MLC Ex.PW5/B wherein it is recorded that on 18.10.2001, PW Satish

was brought to Guru Teg Bahadur Hospital at 9:55 pm with the alleged

history of assault (stab) and on examination, he was found to have

suffered two stab injuries, namely, (1) stab injury on the right

hypochondrium 2 c.m./0.5 c.m. and (2) stab on right side lumber region

2 c.m./0.5 c.m. At the bottom of the MLC, Dr. Krishna Prasad has

endorsed that the injury suffered by the victim was of grievous nature

and it is also recorded on the MLC that the injuries were caused by a

sharp object. From this, it is evident that the aforesaid injuries could

not have been self-inflicted. This circumstance itself is an assurance of

the fact that the witness Satish Kumar (PW4) is telling the truth about

his having been robbed by four persons. PW4 Satish Kumar has been

cross-examined at length by the defence counsel, but there is nothing

in his cross-examination to suspect the correctness of his version.

Thus, I am of the view that undoubtedly PW4 Satish Kumar was robbed

of his motorcycle and gold chain on 18.10.2001 and in the process, he

was stabbed on his abdomen and his back.

21. The question for determination is the identity of the persons who

had robbed the victim Satish Kumar. PW4 Satish Kumar in his

testimony has identified Mohd. Usman as well as Mohd. Imran as the

persons who had robbed him of his motorcycle and gold chain along

with other accomplices. He further stated that he identified Mohd.

Usman in Test Identification Parade at Tihar Jail and according to him,

Mohd Imran was the person who stabbed him with a knife.

22. Learned counsel for the appellant Mohd. Usman contended that

solitary witness of occurrence PW4 Satish Kumar was examined by the

prosecution on 15.04.2005 i.e. approximately three and a half years

after the occurrence. In absence of any evidence of recovery of

incriminating articles i.e. the weapon of offence or the stolen property

from the possession of the appellant Mohd. Usman or at his behest, it is

not safe to rely upon the dock identification of the appellant Mohd.

Usman by PW4 Satish Kumar because, after a lapse of almost three

and a half years, the witness, under the natural course of

circumstances, is not expected to remember the faces of the robbers.

Regarding the identification done in TIP, learned counsel submitted

that aforesaid identification is also of no avail to the prosecution for the

reason that Mohd. Usman was admittedly arrested by the officials of

P.S. Sultan Puri in an Arms Act case on 26.10.2001 and he made a

disclosure statement about the incident in question on the same day.

Learned counsel submitted that despite that, he was formally arrested

in this case on 30.10.2001 as is apparent from his arrest memo

Ex.PW13/A. Learned counsel argued that a possibility cannot be ruled

out that during the intervening period of four days between his arrest

in Seelampur case and the arrest in this case, the police might have

shown the appellant Mohd. Usman to the witness Satish Kumar.

23. I am not impressed with the above argument, which appears to

be an afterthought. On perusal of testimony of PW4 Satish Kumar it

transpires that appellant Mohd. Usman did not suggest to this witness

in his cross-examination that the appellant was shown to him (witness)

by the police during the period intervening 26.10.2001 to 30.10.2001.

Even in his statement under Section 313 Cr.P.C., Mohd. Usman, when

confronted with the evidence that he was identified by PW4 Satish

Kumar in the Test Identification Parade conducted on 06.11.2001

admitted this fact and did not come out with any explanation in his

defence. Thus, I find no reason to disbelieve the testimony of PW4 as

regards the identity of the appellant Mohd. Usman as one of the

culprits who robbed him, particularly when he was able to identify the

appellant in the TIP within a few days of the occurrence. Thus, I find no

infirmity in the finding of learned trial Judge holding the appellant

Mohd. Usman guilty of robbing PW Satish Kumar along with his

associates.

24. Learned counsel for the appellant Mohd. Imran also contended

that in absence of any recovery at the instance of the appellant Mohd.

Imran, it is not safe to rely upon the dock identification of appellant

Mohd. Imran done by PW4 Satish Kumar in the court approximately

three and a half years after the occurrence. Learned counsel

contended that the learned trial Judge has committed a grave error in

drawing adverse presumption against the appellant in his refusal to

participate in TIP, ignoring the fact that the appellant had explained

that he was not inclined to participate in TIP as he had been shown by

the police to the witness.

25. It is true that as a general rule, dock identification of an accused,

who was not previously known to the witness, without holding a

previous identification Parade does not carry much weight.

Substantive evidence in a criminal trial is the statement made by the

witness in the court. However, as a rule of prudence, identification

proceedings are held during investigation in order to fix the identity of

the accused and provide corroboration to the testimony of a witness in

the court as regards the identity of the accused. As per the case of

prosecution, appellant Mohd. Imran was arrested in case FIR

No.434/2001 under Arms Act by the officials of P.S. Seelam Pur and on

interrogation, he made a disclosure statement Ex.PW13/K regarding

the occurrence in question. This intimation was conveyed to P.S.

Bhajan Pura and Inspector Rohtash, the Investigating Officer, formally

arrested appellant Mohd. Imran. He was produced in the trial court in a

muffled face with a request for holding Test Identification Parade.

Exhibits PW 10/A to PW10/C is the record of TIP proceedings proved by

the then ACMM, Shahdara, Delhi Shri Dilbag Singh. As per this record,

appellant Mohd. Imran was produced in the court in muffled face and

he refused to participate in TIP on the ground that he had been shown

to the witnesses by the police. Learned Additional Sessions Judge has

drawn an adverse presumption against appellant Mohd. Imran on

account of his refusal to participate in the TIP and accepted the

evidence of PW4 relating to the dock identification of the appellant in

the court. The explanation given by the appellant Mohd. Imran for

refusal to participate in TIP is unacceptable. On perusal of testimony of

PW4 Satish Kumar, it transpires that no suggestion in this regard was

given to the witness in his cross-examination. Had the explanation of

appellant Mohd. Imran for refusal to participate in TIP been true, he

would have suggested this to the witness to bring out true facts on

record. Otherwise also, PW4 Satish Kumar has identified Mohd. Imran

as one of the culprits and categorically stated that it was Mohd. Imran

who had stabbed him. There is no reason to suspect the correctness of

aforesaid version, particularly when injured Satish Kumar had no

motive to falsely implicate the appellant. Thus, in my considered view,

the trial court has rightly held that Mohd. Imran was also party to the

crime and convicted him.

26. Learned counsel for the appellant Mohd. Usman, in the

alternative, has argued that even if Mohd. Usman is held to be party to

the crime, his conviction under Section 397 IPC is unwarranted for the

reason that there is no evidence against him that he was carrying or

used a deadly weapon.

27. Section 397 IPC comes into play only if the offender, while

committing robbery or dacoity (a) uses a deadly weapon or (b) causes

grievous hurt to any person or (c) attempts to cause death or grievous

hurt to any person. This is an individual offence for which vicarious

liability with the aid of Section 34 IPC cannot be foisted on the co-

accused. PW4 Satish Kumar, the sole eye witness in this case, in his

testimony has not attributed any of the above three roles to the

appellant Mohd Usman. Therefore, in my considered view, his

conviction under Section 397 IPC is unwarranted and is liable to be set

aside.

28. Learned counsel for the appellant Mohd. Usman has also pressed

for reduction of the sentence awarded to the appellant Mohd. Usman

from 10 years RI to the period already undergone by him in custody.

He submits that at the time of commission of offence, Mohd. Usman

was a young boy without any criminal record against him. He realises

his mistake and deserves at least one chance to correct himself and

become a useful member of the society.

29. Taking into account the aforesaid factors and the nature of the

offence committed by the appellant Mohd. Usman, I feel that rigorous

imprisonment of 10 years awarded to him for the offence under Section

394 IPC is too harsh. Therefore, while maintaining the sentence of fine,

the sentence of imprisonment awarded to the appellant is reduced

from 10 years to 07 years RI.

30. Learned counsel for the appellant Mohd. Imran has also pressed

for reduction of sentence awarded to him. She contended that at the

time of commission of offence, appellant was a young boy of 22 years

and he is the sole earner of his family comprising of his wife, aged

parents and three unmarried sisters. Learned counsel submitted that

the appellant Mohd. Imran deserves a chance to mend his ways and

prove himself to become useful member of the society.

31. Taking into account aforesaid factors and the nature of the

offence committed by the appellant Mohd. Imran, I feel that rigorous

imprisonment of 10 years awarded to him for the offences under

Section 394 as well as Section 397 IPC is too harsh. Therefore, I modify

the sentence awarded to the appellant and while maintaining the

sentence of fine, sentence awarded to the appellant Mohd. Imran for

the offences punishable under Sections 397 and 394 IPC is reduced

from 10 years RI to 07 years RI respectively. Both the sentences shall

run concurrently.

32. The result of above discussion is that Crl.A. No.454/2008 of Mohd.

Usman is partially accepted. His conviction and sentence for the

offence under Section 397 IPC is set aside and for the offence under

Section 394 IPC, the sentence of imprisonment is reduced from 10

years RI to 07 years RI.

33. The Crl.A. No.524/2008 of Mohd. Imran is also partially accepted

and while maintaining the conviction of the appellant for the offences

under Sections 394 and 397 IPC, the sentence awarded to the

appellant under Sections 394 and 397 IPC is reduced from 10 years RI

to 07 years RI respectively for each of the offence, with both sentences

to run concurrently.

34. Appeals are disposed of accordingly.

(AJIT BHARIHOKE) JUDGE JANUARY 07, 2011 ks/pst