Delhi High Court
Bhulley Singh vs State N.C.T. Of Delhi on 20 December, 2013
Author: S. P. Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : October 01, 2013
DECIDED ON : December 20, 2013
+ CRL.A. 716/2000
BHULLEY SINGH ..... Appellant
Through : Mr. Haneef Mohammad, Advocate
with Mr.Kishore Kumar &
Mr.Imran Ahmad, Advocates
versus
STATE N.C.T. OF DELHI ..... Respondent
Through : Mr.Lovkesh Sawhney APP for the
State.
+ CRL.A. 754/2000
ARUN KUMAR @ MUNNA ..... Appellant
Through : Mr.K.B.Andley, Sr.Advocate with
Mr.M.L.Yadav, Advocate.
versus
STATE N.C.T. OF DELHI ..... Respondent
Through : Mr.Lovkesh Sawhney APP for the
State.
+ CRL.A. 648/2000
AVDESH KUMAR ..... Appellant
Through : Mr.K.K.Sud, Sr.Advocate with
Mr.R.D.Rana, Advocate.
Crl.A.No.716/2000 & connected appeals Page 1 of 38
versus
STATE N.C.T. OF DELHI ..... Respondent
Through : Mr.Lovkesh Sawhney APP for the
State.
+ CRL.A. 681/2000
SURESH KUMAR ..... Appellant
Through : Mr.K.B.Andley, Sr.Advocate with
Mr.M.L.Yadav, Advocate.
versus
STATE N.C.T. OF DELHI ..... Respondent
Through : Mr.Lovkesh Sawhney APP for the
State.
+ CRL.A. 651/2000
VIMAL CHANDRA ..... Appellant
Through : Mr.K.B.Andley, Sr.Advocate with
Mr.M.L.Yadav, Advocate.
versus
STATE N.C.T. OF DELHI ..... Respondent
Through : Mr.Lovkesh Sawhney APP for the
State.
Crl.A.No.716/2000 & connected appeals Page 2 of 38
+ CRL.A. 645/2000
ANIL KUMAR .... Appellant
Through : Mr. Haneef Mohammad, Advocate
with Mr.Kishore Kumar &
Mr.Imran Ahmad, Advocates
versus
STATE N.C.T. OF DELHI ..... Respondent
Through : Mr.Lovkesh Sawhney APP for the
State.
CORAM:
MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. Bhuley Singh @ Nirbhaya Singh (A-1), Arun Kumar @
Munna (A-2), Avdash Kumar Sharma (A-3), Suresh Kumar (A-4), Vimal
Chandra (A-5) and Anil Kumar (A-6) challenge the correctness and
legality of a judgment dated 14.10.2000 in Sessions Case No.259/1988
arising out of FIR No.200/86 registered at Police Station Kotla Mubarak
Pur by which A-1 to A-5 were convicted for committing offences under
Section 395 IPC read with Section 397 IPC. A-1 was also held guilty
under Section 25/27 Arms Act. A-6 was held guilty for committing
offence punishable under Section 412 IPC. By an order dated 17.10.2000,
they were awarded Rigorous Imprisonment for seven years with fine
`2,000/- each. A-1 was further sentenced to undergo Rigorous
Imprisonment for three years with fine `2,000/- under Section 25/27 Arms
Act. The substantive sentences were to operate concurrently. The facts
emerging out of the charge-sheet are as under:-
2. On 02.09.1986, DD No.22A (Ex.PW-6/A) was recorded at
Police Station Kolta Mubarak Pur on getting information from SI Darshan
Singh of PCR at about 09.10 P.M. regarding some incident at House
No.E-6, INA Colony. The investigation was assigned to SI Joginder
Singh who with Ct.Ravinder Singh went to the spot. The Investigating
Officer lodged First Information Report after recording Sujan Kumar
Saraswati's statement (Ex.PW-9/A) who informed that at about 07.45 pm
when he, his wife and two children were present inside the house, five
intruders armed with weapons barged into the house and committed
decoity. They robbed his wife of various gold ornaments. They were
taken inside the bed room and from the almirah, various articles including
cash, jewellery, camera, watches etc. were robbed. Someone rang the
doorbell and his friend Vijay Panwar and his friend Ashok Kumar Singh
were taken inside the house. The assailants did not spare them and robbed
Vijay Panwar of gold ring, wrist watch and wallet containing `100/-.
After some time, they all fled the spot with the robbed articles after tying
their hands and feet. The complainant gave detailed description of the
assailants and claimed to identify them. The IO summoned the crime
team and dog squad; got the crime scene photographed and lifted finger
prints on various articles. The statements of witnesses conversant with the
facts were recorded. Efforts were made to find out the assailants but in
vain. On 03.09.1986 the complainant and his family members left for
Rohtak and returned after 4/5 days. After about 10 days of the incident,
they were asked to identify the culprits apprehended during investigation.
The complainant, his wife and Vijay Panwar went to police station
Defence Colony and identified A-1 to A-4 as culprits. On 18.09.1986,
they went to Kotla Mubarak Pur police station and identified A-5.
Pursuant to their disclosure statements, A-1 and A-3 led the police to the
shop of A-6 and recovered gold and silver ornaments in melted
condition/form. A-1 toA-5 declined to participate in the Test
Identification Proceedings (TIP). The articles recovered were identified
by the complainant, his wife and PW-15 (Vijay Panwar) in Test
Identification Proceedings in the court. After completion of investigation
a charge-sheet was filed against the appellants; they were charged and
brought to trial. The prosecution examined 23 witnesses to establish their
guilt. In their 313 statements, the accused persons denied their complicity
in the crime and pleaded false implication. After considering rival
contentions of the parties and appreciating the evidence on record, the
Trial Court by the impugned judgment convicted all of them for the
offences mentioned previously, giving rise to the filing of the present
appeals.
3. I have heard the learned counsel for the parties and have
examined the record. Learned counsel for the appellants urged that the
Trial Court did not appreciate the evidence in its true and proper
perspective and fell into grave error in relying upon the testimonies of
PW-8 (Mala Saraswati) and PW-9 (Sujan Kumar Saraswati) who nurtured
grudge against A-3 for supporting S.R.Gautam who contested elections of
Members of Executive Committee for Super Bazar in 1986 against his
opponent Mukesh Bhatt, General Secretary of Congress Party to whom
PW-9 (one of the shareholders among 31 shareholders to elect) favoured.
Their statements were not corroborated by any independent witness.
PW-15 (Vijay Panwar) and PW-18 (Shiv Raj Singh) completely turned
hostile and did not implicate them. The accused persons were shown to
the witnesses after their apprehension and were justified to decline
participation in TIP. DW-5 (Paramjit Kaur), A-1's wife, had sent a
telegram to the concerned authorities on 09.09.1986 when her husband
lifted by the police on 06.09.1986 was not released due to her failure to
pay bribe amount of `50,000/-. The Trial Court ignored the testimony of
defence witnesses Lalit Kumar (DW-1), S.K. Sirivastava (DW-2) and
Purshotam Lall (DW-9) who categorically established and proved that A-
1 and A-2 were not present at the spot being on their respective duty in
their offices on the relevant date and time. A-6 urged that the robbed
gold or silver ornaments were not recovered from his possession. He was
complelled by the police to part with the gold and silver bars weighting
140 and 170 gms respectively. The case property was released on
'superdari' to him by the Trial Court. Vital discrepancies, improvements
and contradictions were ignored without valid and sound reasons. Counsel
further contended that A-3 had clean antecedents, studied at Ram Lal
Anand College and had contested various elections as office bearer. He
was acquainted with the complaint and had visited his residence at INA
colony where he had gone to campaign for his friend S.R.Gautam. DW-4
(Vijay Kumar) categorically stated that in 1985 A-3 was falsely
implicated in Arms case to debar him from contesting elections. He could
not file nomination on 12.09.1986 due to false implication in this case.
Learned Additional Public Prosecutor urged that the impugned judgment
is based on fair appraisal of evidence and needs no interference. Adverse
inference is to be drawn against the appellants for declining to participate
in the TIP proceedings. The robbed articles were recovered from their
possession and at their instance.
4. The police machinery was set into motion when PW-9 (Sujan
Kumar Saraswati) made telephone call to PCR at 100 regarding the
occurrence at his House No.E-6, INA Colony. SI Darshan Singh of PCR
on telephone informed the duty officer at police station Kotla Mubark Pur
who lodged DD No.22A (Ex.Pw-6/A) and assigned the investigation to SI
Joginder Singh. SI Joginder Singh after recording statement of complaint
(Sujan Kumar Saraswati) lodged First Information Report by sending
rukka (Ex.PW-22/A) at 11.00 P.M. In the complaint Sujan Kumar
Saraswati gave graphic detail as to how and under what circumstances
they were robbed at the point of revolver, knife and 'gupti' and deprived
of their valuable articles including gold and silver ornaments, watches,
camera etc. and cash. There was no delay to inform the police about the
occurrence. It is not believable that the complainant would fake an
incident of decoity at his house to set the police machinery into motion
particularly when he had not named any culprit/assailant. Since the First
Information Report was lodged in promptitude, it cannot be inferred that
the incident of robbery was concocted by the complainant. In the case of
Jail Prakash Singh v.State of Bihar & Anr. 2012 CRI.L.J.2101 the
Supreme Court held:-
"The FIR in criminal case is vital and valuable piece of
evidence though may not be substantive piece of evidence. The
object of insisting upon prompt lodging of the FIR in respect of
the commission of an offence is to obtain early information
regarding the circumstances in which the crime was
committed, the names of actual culprits and the part played by
them as well as the names of eye-witnesses present at the scene
of occurrence. If there is a delay in lodging the FIR, it looses
the advantage of spontaneity, danger creeps in of the
introduction of coloured version, exaggerated account or
concocted story as a result of large number of
consultations/deliberations. Undoubtedly, the promptness in
lodging the FIR is an assurance regarding truth of the
informant's version. A promptly lodged FIR reflects the first
hand account of what has actually happened, and who was
responsible for the offence in question."
5. While appearing as PW-9 in the court, complainant-Sujan
Kumar Saraswati proved the version given to the police at the earliest
available opportunity without major variations or improvements. He
deposed that on 02.09.1986 at about 07.30/07.45 P.M. he was present in
his house with his wife and two children. The drawing room was bolted
from inside. When he answered the call bell, five boys pushed the door
and forced their entry inside the room. A-1 took out a pistol and put it on
his temple threatening him to kill if he raised noise. The other accused
persons started closing curtains of the window. In the meanwhile, his
wife who was in the bed room, arrived in the drawing room and was
robbed of her gold chain, ear-ring, gold bangle (kara type), gold plated
iron kara at the point of knife by A-5. Thereafter, they were taken inside
the bed room. He identified A-2, A-3 and A-4 to be the persons present
among the assailants (A-1 and A-5). A-2 was armed with a 'gupti' and
the two others (A-3 and A-4) did not have any weapon. Keys of almirah
were handed over to them by his wife. They removed silver and gold
jewellery lying in the boxes, one camera, five watches and `1200/- cash.
Out of the watches, two were gents and three were ladies. In the
meantime, a call bell rang from outside and after opening the door by
some of the accused persons, his friend Vijay Panwar and his friend
Ashok Kumar Singh were brought inside the house. They robbed Vijay
Panwar of his gold ring, wrist watch and purse containing `100/-. They
all were taken to bed room and were tied with clothes. Thereafter another
call bell rang. The accused persons opened the door, went out and bolted
it from outside. At about 08.00 P.M. the sound of water falling from the
tap started coming. His wife managed to come outside in the drawing
room and found that they all had left. The assailants had already cut off
the telephone wires. He went downstairs and made a telephone call at
100. After about 20-25 minutes the police reached and recorded his
statement (Ex.PW-9/A). The complainant identified revolver (Ex.P3),
gupti (Ex.P4) which were in the hands of the accused A-1 and A-2
respectively and used by them. He also identified wrist watches (Ex.P5 to
P9), camera (Ex.P10), record player (Ex.P11). He also recognized Ex.P-1
and Ex.P2, gold/silver masses which showed traces of the melted
ornaments.
The witness was cross-examined at length by the counsel for
the accused persons. He disclosed that he was posted and working at
Palam Airport in National Airport Authority as Deputy Director and was
on duty from 09.30 A.M. to 05.30 P.M. He had taken leave for 4-5 days
w.e.f. 04.09.1986 to go to Rohtak. He admitted that during his presence at
Rohtak, he was not contacted by Delhi police and was not aware if the
culprits were apprehended. When they returned to Delhi, the police asked
them to identify the culprits. The police had inquired from them about the
general structure or description of the culprits. He was not asked about
the basic or minute details of the assailants i.e. colour, hair, ear, nose etc.
The police inquired from them about the complexion of the culprits. He
further informed that he, his wife and PW-15 had gone to the court to
participate in the proceedings for identification of the case property
recovered during investigation. He denied the suggestion that Ex.P-1 and
Ex.P-2 were identified by them out of greed and it did not belong to them.
Complainant denied if any photograph of any assailant was shown to him
and his wife any time. He was not aware if A-1 was arrested on
06.09.1986 and any telegram was sent by his wife to the higher police
authorities regarding his wrongful confinement in the police station. He
disclosed that he and his wife had first gone to police station Defence
Colony for identifying the culprits. Later on, they visited police station
Kotla Mubarakpur for identifying A-5. The witness further explained
that when they identified the accused persons in the police stations, the
names and addresses of assailants were told to them by the Investigating
Officer after their identification and before that they were not aware of it.
He denied the suggestion that he identified the culprits/accused persons at
the instance of the police or that they were not involved in the crime.
On perusal of the statement, it reveals that despite searching
and lengthy cross-examination, no material inconsistency/discrepancy
could be elicited to discredit the testimony of the witness who had no
prior familiarity with the assailants and at the earliest opportunity had
mentioned identifying features of the culprits. Soon after the
apprehension of the culprits, he identified them while they were in police
custody. He volunteered to participate in the Identification Proceedings,
which were conducted without any delay soon after the apprehension of
the assailants, however, the accused persons declined to participate
alleging that they were shown to the witnesses by the police. PW-21
(M.K.Gupta), learned Metropolitan Magistrate conducted Test
Identification Proceedings (Ex.PW-21/B) qua A-1 to A-4 on 11.09.1986
and recorded their statements (Ex.PW-21/C to Ex.PW-21/F). Again on
18.09.1986, he conducted TIP (Ex.PW21/9) for A-5 and recorded his
statement (Ex.PW21/K). He further deposed that A-1 to A-4 were
produced before him in muffled faces.
In his court deposition, the victim had no hesitation to
identify and recognize A-1 to A-5 for participating in the crime. The
complainant had direct confrontation with the assailants at the time of
occurrence and had clear and proper opportunity for sufficient length of
time to observe their features carefully with greater intensity and
vividness and recognize them. He had no animosity/enmity with any of
them to wrongly identify them as culprits and to spare the real culprits. He
identified A-1 disclosing that he had beard at the time of occurrence. Not
only the complainant identified and recognized the assailants, he came to
pick out the particular accused person and the details of the part which the
accused had played in the crime with reasonable particularity and further
informed as to which of the assailants was in possession of which specific
weapon. He was categorical to state that A-1 had a country made pistol.
A-5 robed them at the point of knife and A-2 had 'gupti'. He was fair to
say that other two accused persons (A-3 and A-4) did not have any
weapon. In their deposition, he further elaborated that the fourth and fifth
accused were the assailants who had closed curtains on the windows. The
description given by the complainant tallied/matched with the general
description of the assailants arrested during investigation. No suggestion
was put to him in the cross-examination if he had any familiarity with any
of the assailants or had come into contact with them at any point of time
in any connection whatsoever.
6. A-1 and A-2 were arrested on 10.09.1986 whereas A-3 and
A-4 were taken into custody on 11.09.1986. The Investigating Officer
moved an application for holding Test Identification Proceedings before
the Metropolitan Magistrate on 11.09.1986 and A-1 to A-4 were produced
in the court in muffled faces where they declined to participate in the Test
Identification Proceedings alleging that they were shown to the witnesses.
Prosecution case is that on 12.09.1986 after A-1 to A-4 declined to
participate in the TIP, PWs 8, 9 and 15 were asked to identify the culprits.
The accused persons did not produce any cogent material to infer that
prior to 12.09.1986 they were shown to PWs-8, 9 and 15 in the police
station. A-5 was arrested on 17.09.1986 and was sent before the learned
Metropolitan Magistrate to participate in the TIP proceedings on
18.09.1986. He also declined to join the TIP parade allging that during
his custody he was shown to number of persons. A-5 did not reveal if he
was shown to PWs 8,9 and 15 during custody. His arrest was effected on
17.09.1986 by PW-12 (SI Siri Ram), from police station Vinay Nagar who
had no concern with the investigation of this case. None of the eye-
witnesses visited police station Vinay Nagar to recognize A-5.
Apparently, A-1 to A-5 had no reasonable explanation to refuse
participation in TIP. In Prem Singh Vs.State of Haryana 2011 (10)
SCALE 102, the Supreme Court observed as under:-
"The two eye-witnesses PW-11 and PW-12 have given a
graphic description of the incident and have stood the test of
scrutiny of cross-examination and had also stated that they
could identify the assailants, but the accused had declined to
participate in the test identification parade on the ground
that he had been shown to the eye-witnesses in advance. In
my considered view, it was not open to the accused to refuse
to participate in the T.I. parade nor it was a correct legal
approach for the prosecution to accept refusal of the accused
to participate in the test identification parade. If the
accused-Appellant had reason to do so, specially on the plea
that he had been shown to the eye-witnesses in advance, the
value and admissibility of the evidence of T.I. Parade could
have been assailed by the defence at the stage of trial in
order to demolish the value of test identification parade. But
merely on account of the objection of the accused, he could
not have been permitted to decline from participating in the
test identification parade from which adverse inference can
surely be drawn against him at least in order to corroborate
the prosecution case."
7. In Rabindra Kumar Pal @ Dara Singh Vs.Republic of India
AIR 2011 SC 1436 discussing the evidentiary value of photo identification
the Supreme Court held as under:-
"Now let us discuss the evidentiary value of photo
identification and identifying the accused in the dock for the
first time. Learned Addl. Solicitor General, in support of the
prosecution case about the photo identification parade and
dock identification, heavily relied on the decision of this
Court in Manu Sharma (supra).11:37 AM 3/2/20115 It was
argued in that case that PW 2 Shyan Munshi had left for
Kolkata and thereafter, photo identification was got done
when SI Sharad Kumar, PW 78 went to Kolkata to get the
identification done by picking up from the photographs
wherein he identified the accused Manu Sharma though he
refused to sign the same. However, in the court, PW 2 Shyan
Munshi refused to recognise him. In any case, the factum of
photo identification by PW 2 as witnessed by the officer
concerned is a relevant and an admissible piece of evidence.
In para 254, this Court held:
Even a TIP before a Magistrate is otherwise hit by Section
162 of the Code. Therefore to say that a photo identification
is hit by Section 162 is wrong. It is not a substantive piece of
evidence. It is only by virtue of Section 9 of the Evidence Act
that the same i.e. the act of identification becomes admissible
in court. The logic behind TIP, which will include photo
identification lies in the fact that it is only an aid to
investigation, where an accused is not known to the
witnesses, the IO conducts a TIP to ensure that he has got
the right person as an accused. The practice is not borne out
of procedure, but out of prudence. At best it can be brought
under Section 8 of the Evidence Act, as evidence of conduct
of a witness in photo identifying the accused in the presence
of an IO or the Magistrate, during the course of an
investigation.
It was further held:
It is trite to say that the substantive evidence is the evidence
of identification in court. Apart from the clear provisions of
Section 9 of the Evidence Act, the position in law is well
settled by a catena of decisions of this Court. The facts,
which establish the identity of the accused persons, are
relevant under Section 9 of the Evidence Act. As a general
rule, the substantive evidence of a witness is the statement
made in court. The evidence of mere identification of the
accused person at the trial for the first time is from its very
nature inherently of a weak character. The purpose of a
prior test identification, therefore, is to test and strengthen
the trustworthiness of that evidence. It is, accordingly,
considered a safe rule of prudence to generally look for
corroboration of the sworn testimony of witnesses in court as
to the identity of the accused who are strangers to them, in
the form of earlier identification proceedings. This rule of
prudence, however, is subject to exceptions, when, for
example, the court is impressed by a particular witness on
whose testimony it can safely rely, without such or other
corroboration. The identification parades belong to the stage
of investigation, and there is no provision in the Code which
obliges the investigating agency to hold or confers a right
upon the accused to claim a test identification parade. They
do not constitute substantive evidence and these parades are
essentially governed by Section 162 of the Code. Failure to
hold a test identification parade would not make
inadmissible the evidence of identification in court. The
weight to be attached to such identification should be a
matter for the courts of fact. In appropriate cases it may
accept the evidence of identification even without insisting
on corroboration.
It was further held that "the photo identification and TIP are
only aides in the investigation and do not form substantive
evidence. The substantive evidence is the evidence in the
court on oath.
8. The purpose of TIP is to test the statement of the witness
made in the court, which constitutes substantive evidence. The TIP
proceedings during investigation serve to prove the authority with
material to assure themselves if the investigation was proceeded on right
lines and therefore it was desirable to hold them at the earliest
opportunity. A further reason is that an earlier opportunity to identify also
tends to minimize the chances of the memory of the identifying witnesses
fading away due to long lapse of time.
9. In State of Maharashtra Vs.Suresh (2000) 1 SCC 471 the
Supreme Court observed:-
"identification parades are not primarily meant for the
court. They are meant for investigation purposes. The object
of conducting test identification parade is two fold. First is to
enable the witnesses to satisfy themselves that the prisoner
whom they suspect is really the one who was seen by them in
connection with the commission of the crime. Second is to
satisfy the investigating authorities that the suspect is the
real person whom the witnesses had seen in connection with
the said occurrence. So the officer conducting the test
identification parade should ensure that the said object of
the parade is achieved. If he permits dilution of the modality
to be followed in a parade, he should see to it that such
relaxation would not impair the purpose for which the
parade is held."
Adverse inference can be drawn against the accused persons
for declining to participate in the Test Identification Proceedings.
10. Another crucial witness who witnessed the horrible incident
is PW-8 (Smt.Mala Saraswati), complainant's wife. She corroborated the
version given by her husband on all material facts and deposed that when
they were present in the house at about 07.30 P.M., her husband was made
to stand near the entrance door of the drawing room and a country made
pistol was put on his temple. She identified A-1 to be the assailant who
had placed a pistol on the temple of her husband. She distinctly and
definitely stated that A-3 and A-4 were the assailants who closed the
curtains of the window of both the sides. She recognised A-5 being
tallest of all the intruders, holding a knife who removed golden chain from
her neck; golden kada and two gold bangles from one hand and gold
plated iron kada from the other hand besides removing ear-rings. A-5
threatened her husband not to raise alarm or else they would shot him
dead. She further deposed that all the five intruders commanded her to
hand over cash to them in the drawing room. When she told that they did
not have any cash in the house and to take whatever they wanted from the
almirah lying in the bed room, they were taken to the bed room and she
was made to open the almirah. From inside the almirah, they took her
jewellery i.e. one necklace, ear-ring (of gold), silver ornaments i.e.
Payajaib, kamarband of a child, silver toys, sindoor daani, five watches
(two gents and three ladies) and `1200/-. She also described as to which
of the assailant was having which weapon. In the cross-examination, she
elaborated that after 10 days of the occurrence, she along with her
husband went to the police station for the identification of four assailants
and they were identified by them. After six days or so the police was able
to arrest the fifth assailant and she identified him in some other police
station near Kotla. She denied the suggestion that the police had shown
A-3 and others in the police station on 11.09.1986. She further deposed
that she and her husband had gone to Rohtak and remained there for three
or four days after the incident and when they returned, they were asked to
identify the culprits by the police on phone. She once went with her
husband to police station Defence Colony and then after five or six days
to police station Kotla Mubarakpur for identification of the assailants.
She fairly admitted that no inquiries were made by her from the police as
to from where the accused persons were arrested and since how long they
were with them. She further reiterated two assailants had put curtains on
the window. The facial feature of that person was in her memory and she
could definitely identify him. She had given rough description of those
boys in her statement. She recalled that she visited police station Defence
Colony on 12th September, 1986. She denied the suggestions that the
accused persons were identified by her at the instance of the police.
On scanning the testimony of this witness whose presence
inside the house was quite natural and probable, it transpires that she has
supported the case of the prosecution in its entirety and has recognized the
accused A-1 to A-5 to be the assailants who committed decoity. No
ulterior motive was assigned to this witness to falsely rope in the accused
persons with whom she had no prior familiarity or acquaintance. The
testimony of PWs 8 and 9 is not at variance and both have stood the test of
cross-examination and their version given to the police at the first instance
could not be shaken. In the absence of prior enmity or ill-will these
witnesses were not expected to let the real culprits go scot-free and to
implicate innocent ones. The culprits were not named by them in the First
Information Report. None of them was a suspect. They were not arrested
at their instance. After the occurrence, they had gone to visit their relatives
at Rohtak and stayed there for three or four days. After about ten days of
the incident, they were asked by the police to recognize the culprits
arrested by them to ensure that the innocent ones are not involved. When
both PWs 8 and 9 visited the police station Defence Colony and Kotla
Mubarakpur on 12.09.86 and 18.09.86 respectively they were able to
recognize them. Prior to that, they had agreed to participate in the Test
Identification Proceedings which were declined by the accused persons
for the reasons known to them. Both the witnesses attributed similar role
to each of the assailants and narrated the sequence of event by which they
were robbed of their valuable articles at the point of deadly weapons
without any major variations.
11. PW-15 is Vijay Panwar who happened to visit the
complainant at 07.45 P.M. when the assailants were committing the
decoity inside the house. Unaware as to what was happening inside the
house, he and his guest Ashok Kumar went inside the house in question.
PW-15 deposed that when they entered, a boy 'holding' a knife placed it
on his back and threatened him not to raise alarm. He saw Mrs.Saraswati
and his family members sitting on the floor of the drawing room. They
were also ordered to sit by the side of Mrs.Saraswati. When he looked
around, he found five persons in the house besides the family of
Mrs.Saraswati. One of them was holding a weapon which looked like a
revolver and that person hit him on his head with his hand. He was
robbed of his gold ring, wallet containing `100/- and wrist watch. All of
them were thereafter taken to bed room. The assailants tied their hands
and legs and started ransacking the house. The witness, however was not
certain regarding identify of the accused person and merely stated that
they looked 'familiar' to him but did not remember their faces exactly as
the incident had occurred about five years ago. In the cross-examination
by learned Additional Public Prosecutor after seeking Court's permission,
the witnesses stated that one of the assailants had a 'gupti' in his hand. He
had given details of the five intruders in his statement recorded on
03.09.1986 and had informed that the intruder who had 'beard' was
holding the revolver. He further admitted that on 12.09.1986, he had
visited the police station Defence Colony and had identified the A-1 to
A-4 clearly. He identified A-2 who had 'gupti' with him on the day of
incident. A-4 had tied his hands and A-3 had ransacked the house. He
further admitted that A-5 was identified by him in the police station
Defence Colony on 18.09.1986 and he was the intruder who had a knife
on the day of occurrence. He was, however, unable to say with certainty
that five accused persons present in the court were the assailants though
he stated that they looked 'familiar'. PW-15's testimony is in consonance
with the version narrated by PWs 8 and 9 recording the sequence of
events inside the house. PW-15 was, however, not sure regarding the
identity of the accused present in the court. He had opted to participate in
the Test Identification Proceedings but it could not be conducted due to
the refusal of the accused persons to participate in it. Nonetheless, he has
not given clean chit to A-1 to A-5. His testimony to the extent he
supported the prosecution can be relied upon. In the latest judgment in
Bhajju @ Karan Singh vs. State of M.P. 2012 Crl.L.J.1926 the Supreme
Court held:
"Now, we shall discuss the effect of hostile witnesses as
well as the worth of the defence put forward on behalf of
the appellant/accused. Normally, when a witness deposes
contrary to the stand of the prosecution and his own
statement recorded under Section 161 of the Code of
Criminal Procedure, the prosecutor, with the permission of
the Court, can pray to the Court for declaring that witness
hostile and for granting leave to cross-examine the said
witness. If such a permission is granted by the Court then
the witness is subjected to cross-examination by the
prosecutor as well as an opportunity is provided to the
defence to cross-examnine such witness, if he so desires. In
other words, there is a limited examination-in-chief, cross-
examination by the prosecutor and cross-examination by
the counsel for the accused. It is admissible to use the
examination-in-chief, as well as the cross-examination of
the said witness in so far as it supports the case of the
prosecution. It is settled law that the evidence of hostile
witnesses can also be relied upon by the prosecution to the
extent to which it supports the prosecution version of the
incident. The evidence of such witnesses cannot be treated
as washed off the records, it remains admissible in trial and
there is no legal bar to base the conviction of the accused
upon such testimony, if corroborated by other reliable
evidence. Section 154 of the Act enables the Court, in its
discretion, to permit the person, who calls a witness, to put
any question to him which might be put in cross-
examination by the adverse party. The view that the
evidence of the witness who has been called and cross-
examined by the party with the leave of the court, cannot be
believed or disbelieved in part and has to be excluded
altogether, is not the correct exposition of law. The Courts
may rely upon so much of the testimony which supports the
case of the prosecution and is corroborated by other
evidence. It is also now a settled cannon of criminal
jurisprudence that the part which has been allowed to be
cross-examined can also be relied upon by the
prosecution."
12. In the case of Rameshbhai Mohanbhi Koli & Ors v. State of
Gujrat (2011) 11 SCC 111, the Supreme Court held:
"It is settled legal proposition that the evidence of a
prosecution witness cannot be rejected in toto merely because
the prosecution chose to treat him as hostile and cross-
examined him. The evidence of such witnesses cannot be
treated as effaced or washed off the record altogether but the
same can be accepted to the extent that their version is found
to be dependable on a careful scrutiny thereof."
13. PW-11 (Ravinder Singh) also visited the house of the victim.
When he gave a call bell twice there was no response. When he was
about to leave he was held back by someone who caught hold of him from
collar from back side and was dragged inside the house at the point of
some sharp weapon. He deposed that after he was taken inside the house,
he was commanded to raise arms and look down. He was robbed of his
money `1,000/- and identity card. He was, however, unable to identify
any of the assailants as everything had happened with him on his back.
The testimony of this witness lends credence to the complainant's version
regarding the happening of incident of decoity in his house. Since this
witness had no direct confrontation with the assailants, his inability to
identify them in the court is of no consequence.
14. The complainant in his statement (Ex.PW9/A) given to the
police at the earliest opportunity described details of the articles robbed by
the assailants. He specifically gave description of the gold and silver
ornaments with weight, camera make 'Praktika', five wrist watches-two
gents and three ladies make Citizen, Timex, HMT Blue dial, Kelton, and
Citizen and cash `1200/-. He further dislcosed that his friend Vijay
Panwar was deprived of his gold ring, watch make Citizen and cash
`100/-. The prosecution examined PW-13 (SI Mannu Sharma), PW-17
(K.L.Kapoor) and PW-22 (SI Joginder Singh) to prove recovery of these
articles at the instance of the accused persons. PW-13 (SI Mannu
Sharma) deposed that pursuant to A-1's disclosure after arrest on
10.09.1986, he led the police party to quarter No.N-221, Sarojani Nagar
and recovered record player (Ex.P-11), wrist watch (Ex.P-5) and cash
`4000/- out of box lying on parchappi (mazanine) seized vide seizure
memo Ex.PW13/F. A-2 also led the police team to his house E-1201,
Netaji Nagar and recovered camera (Ex.P-10), wrist watch (Ex.P-6) and
'Gupti' (Ex.P-4) taken into possession vide seizure memo (Ex.PW13/G).
A-3's involvement in the crime surfaced in the disclosure statements of A-
1 and A-2. A-4 recovered a lady watch (P-7), gents watch (P-8) and cash
`800/- from his house. A-1 and A-3 thereafter led the police team to
Madangir Market, at shop No.P9, Central Market Madangir and pointed
out the shop of A-6 where they had sold the robbed ornaments to him.
A-6 produced the melted mass of gold and silver ornaments. Gold mass
weighing 140 gms (Ex.P-1) and silver mass weighing 170 gms (Ex.P-2)
were seized vide seizure memo Ex.PW-13/M. A-5 was arrested on
17.09.1986 and according to PW-12 SI Siri Ram, from police station
Vinay Nagar, he recovered a polythene bag after digging earth from the
bushes near railway station, Sarojani Nagar and it contained two wrist
watches one make 'Kelton' and the other having a plastic dial (Ex.P-8 and
Ex.P-9). These were seized vide seizure memo (Ex.PW-12/B). Similar is
the testimony of PW-17 (SI K.L.Kapoor) and PW-22 (SI Joginder Singh).
All these witnesses were cross-examined but nothing material could be
elicited to suspect the recovery of these articles at the instance of the
assailants PW-21 (Sh.M.K.Gupta) conducted Test Identification
Proceedings of the recovered articles on 18.11.1986. PW-8 (Mala
Saraswati), PW-9 (Sujan Kumar Saraswati) and PW-15 (Vinay Panwar)
participated in the Test Identification Proceedings (Ex.PW-21/M) and
identified the articles robbed from their possession. PW-8 (Mala
Saraswati) in her testimony after looking the case property i.e. gold mass
(Ex.P-1) and silver mass (Ex.P-2) deposed that Ex.P-1 was mass of gold
which had been partly melted together. The witness stated that there were
bangles which had been bent and melted in the mass of gold. The links of
the gold chain and necklace were there besides ear rings. All have been
melted partly into one mass. Similarly there was melted mass of silver,
which also showed links of the payajaib hanging down. She also
identified ladies wrist watches (Ex.P-5 to Ex.P-7), gents watches (Ex.P-8
and Ex.P-9). Ex.P-10 (camera) and Ex.P-11 ( record player). In the
cross-examination, she fairly admitted that the police had made inquiries
about the watches but they were unable to produce the cash memos as the
articles were given as gifts. She further disclosed that all the wrist
watches recovered were imported and were not easily available. Wrist
watch make 'kelton' had some peculiarity and was not easily available in
the market. Wrist watch make 'Timex' though available in the market but
the model recovered was not easily available. She further reiterated that
in her first statement to the police she had given description of each and
every ornament and articles robbed. She was confronted with her
statement (Ex.PW-8/A) where the name of the ornament and weight was
described. She denied the suggestion that Ex.P-1 and Ex.P-2 did not
contain her ornaments or that the police under coercion and pressure took
140 grams of gold and 170 grms of silver in a bar/dali form from A-6 and
planted it in this case. PW-9 (Sujan Kumar Saraswati) also identified the
articles recovered by the police in his court statement. He explained that
gold mass (Ex.P-1) showed traces of ornaments unmelted. The silver
mass of metal Ex.P2 was identified in which chain of payajaib was
hanging. He denied the suggestion that Ex.P-1 and Ex.P-2 were identified
by him due to greediness. PW-15 (Vijay Panwar) recognized and
identified wrist watch (Ex.P-5) make 'citizen' robbed from him. The
assailants did not seriously contest the recovery of these articles at their
instance. When the motive was to commit robbery, it was not expected
that the assailant would return empty handed. A-6 during trial moved an
application for release of gold/silver mass Ex.P-1 and Ex.P-2 on
'superdari'. The Trial Court reversed its previous order to release the case
property on superdari to him when it was claimed by the complainant.
Vide order dated 07.10.86 the matter was left to be decided after getting
the evidence of the parties. It was imperative for A-6 to prove that
gold/silvar bars weighing 140 and 170 gms were taken under coercion by
the police from his possession. No worthful evidence has come on record
if on any specific date A-6 was forced to part with Ex.P-1 and Ex.P-2. No
complaint was lodged by him against any particular police officer. The
police was not aware about the sale of ornaments to A-6 prior to the arrest
of A-1 and A-3. Only pursuant to their disclosure statements, the police
discovered that these ornaments were sold to A-6 a jeweller/gold smith
running a shop in Madangir. A-6 in 313 statement did not claim
ownership but came up with the plea that his customers had entrusted their
old gold and silver jewelry to convert into new jewellery of latest design
and he had melted those ornaments into Ex.P-1 and Ex.P-2. The recovery
of gold and silver mass was not effected by the police from his shop. He,
however, did not produce any evidence to substantiate his defence and did
not reveal the names of the customers who had entrusted old gold and
silver jewellery to him to make new ornaments. No such customer was
examined in defence. The police is not expected to plant all these articles
of significant value just to falsely implicate the accused persons with
whom they nurtured no enmity. Minor discrepancies in the statement of
the witnesses regarding recovery of articles are of no consequence.
Recovery of the robbed articles at the instance of the accused persons is
an incriminating circumstance to connect them with the crime.
15. A-1 and A-2 made futile attempt to set up plea of alibi during
trial which did not find favour and was out-rightly rejected with reasons
A-1 claimed that on the day of incident, he was present on his official
duty in Ashok Yatri Niwas, Hotel of ITDC at Ashoka Road, New Delhi
from 02.00 pm to 10.00 pm. and examined DW-1 (Lalit Kumar) and DW-
2 (S.K.Sirivastava). A-1, however was unable to produce cogent and
authentic record to prove his presence at the said place. DW-5(Paramjit
Kaur), his wife, did not claim in her deposition if A-1 had gone to attend
duty on 02.09.1986 and remained there from 02.00 pm to 10.00 pm. She
did not reveal at what time, A-1 had left for his office that day or when he
returned after performing his duty. No such suggestion was put to PW-8,
PW-9 and PW-15 in cross-examination. In fact plea of alibi was not set
up during their cross-examination. DW-1 (Lalit Kumar) admitted that an
employee had to punch card before time keeper to indicate the time and
date of arrival/departure. No such punching card record was produced
before the court to ascertain the duration during which A-1 remained
present in the office for duty. DW-1 admitted that he was unable to
produce such card punching record as it pertained to the year 1986 and
has since been destroyed. No attempt was made by A-1 to get the record
preserved. No such record was produced or collected during
investigation. Admittedly, during his duty hours, DW-1 had gone to
attend complaints in ITDC hotel having 556 rooms. DW-2
(S.K.Sirivastava) disclosed that on 02.09.1986 A-1 attended his duty from
02.00 pm to 10.00 pm and had marked his presence in attendance register
(Mark DW2/A). From 03.09.1986 to 05.09.1986 he was also on duty
from 02.00 pm to 10.00 pm. On 06.09.1986, he came in the morning duty
from 07.00 am to 03.00 pm and he did not attend the office thereafter. On
07.09.1986, some staff members informed him that he had been taken
away by the police. In the cross-examination, he admitted that he could
not produce attendance register of the year 1983 to 1988 (expect of the
year 1986). He did not produce the register Mark PX during investigation
to the police or informed the higher police officials about the presence of
A-1 on duty at the relevant time. As a Supervisor, he did not use to sign
the attendance register (Mark PX) It was not counter-signed by any other
officer. He admitted that this register used to remain lying on the table all
the 24 hours. After the attendance register was complete and not in use, it
was kept in the shelves in the room. He further admitted that attendance
column from 07.09.1986 to 08.09.1986 were blank and he did not mark
'absent' of the employee for those days. He was unable to give reasons
for not marking A-1 absent on 07th or 08th September, 1986 when he had
not attended the office. It transpires that register Mark PX has not come
from proper custody and was not maintained in due course of business.
A-2 in his 313 statement claimed that he was working as
Airconditioning Technician with A.I.I.M.S. Hospital and was on duty
from 02.00 pm to 10.00 pm on 2nd September, 1986. He examined DW-9
(Purshotam Lall) who deposed that as per attendance register Mark PZ
(Marked DW-9/A) of September 1986 A-2 was on duty from 01.09.1986
to 06.09.1986. He, however, admitted that this attendance register was
kept by him for his personal record. The correct procedure was to mark
attendance in a muster roll sheet which was given to Jr. Engineer and after
every month, it was deposited with Accounts Branch. The attendance in
muster roll sheet was filled up daily and counter signed by him. Muster
roll sheet of date 02.09.1986 must be there in the Accounts branch of
A.I.I.M.S. but he was unable to produce it. In the cross-examination, he
admitted that A-2's name was in different ink and hand then the name of
his father in Ex.DW9/A. Duty timings were not mentioned in the register.
Register Mark PZ was an unofficial record. Apparently the register
(Ex.DW9/A) produced by the witness was not an official and authentic
record to be relied on to establish the presence of A-2 in the office. Again
in the cross-examination of PWs 8, 9 and 15, A-2 did not put any such
suggestion regarding his presence in the office at the relevant time. The
defence witnesses examined by the A-1 and A-2 after a considerable delay
inspire no confidence and cannot be believed.
A-3 examined DW-3 (S.R.Gautam), DW-4 (Vijay Kumar)
and DW-6 ( G.L. Suri) to establish that he was an active supporter of DW-
3 who had contested elections for Super Bazaar fixed for 15.06.1986 at
INA Super Bazar. DW-4 (Vijay Kumar) disclosed that A-3 was a student
in Ram Lal Anand College in 1985 and passed B.A. from Delhi
University in the year 1988-89. He had contested election for the Central
Council. He was selected as one of the 11 members of EC. DW-6
(G.L.Suri) also produced documents to show that A-3 was a student in
Ram Lal Anand College. These witnesses, however, did not depose as to
where A-3 was present on the day of incident. PWs 8,9 and 15 had no
concern with the activities of A-3 prior to the incident.
16. The impugned judgment is based upon fair appraisal of
evidence and warrants no interference. All the relevant contentions of the
appellants have been dealt with minutely with cogent reasons. When a
dacoity is committed, the victims and inmates of the house are normally
and naturally in a state of extreme excitement with a heavy sense of fear.
In the instant case, the court can understand the trauma of inmates of the
house who had encounter with five armed strangers and were threatened
of dire consequences in the presence of their children. Minor
discrepancies, improvements, contradictions and inconsistencies
highlighted by the counsel for the appellants are of no consequence as
they do not affect the core of the prosecution case that A-1 to A-5
participated in the crime and were identified by PW-8 and PW-9. The
police was able to recover robbed articles from their possession or at their
instance soon after the occurrence pursuant to their disclosure statements.
In the absence of any prior animosity, the testimony of the police officials
cannot be disregarded. The findings of the Trial Court on conviction are
upheld.
17. Counsel for the appellants adopted alternative argument to
take lenient view as the incident had occurred about 25 years ago and the
appellants have no criminal antecedents. A-1, A-2 and A-5 were
convicted under Section 395 read with Section 397 IPC each and were
awarded Rigorous Imprisonment for seven years each under Section 397
IPC. The minimum sentence prescribed for the use of deadly weapons is
seven years. The sentence awarded thus cannot be modified/reduced or
altered. Their conviction and sentence are maintained.
18. A-3 and A-4 were given Rigorous Imprisonment for 7 years
each with fine `2,000/- each. They have suffered agony of trial for more
than 25 years. A-3 was not armed with any weapon. Robbed articles
were not recovered from his possession. He was earlier involved in case
FIR No.367/1985 under Section 25 Arms Act and was acquitted by the
court vide judgment dated 31.07.1986. His nominal roll dated 25.10.2010
reveals that he remained in custody for four months and four days and
earned remission for one month and fifteen days. He was enlarged on
bail and his substantive sentence was suspended vide order dated 31 st
January 2001. His involvement in any other case has not surfaced.
Considering the mitigating circumstances, sentence order requires
modification and the substantive sentence (of A-3) is reduced from seven
years to three years. Other terms and conditions of the order are left
undisturbed.
19. A-4's nominal roll dated 25.10.2010 reveals that he remained
in custody for one year and eighteen days as on 13.11.2001 besides
earning remission for one month and 20 days. He is not a previous convict
and was not involved in any criminal case. After his enlargement on bail
during the pendency of the appeal his involvement in any other criminal
case did not emerge. He is aged about 50 years and has an old, aged
mother suffering from chronic old age ailments. His father and wife have
expired. He is to look after his twin children. It is stated that he is at
present working in a printing press. Considering these mitigating
circumstances, the substantive sentence (of A-4) is reduced to three years.
Other terms and conditions of the order are left undisturbed.
20. A-6 was a jeweler and was held guilty as receiver of robbed
property under Section 412 IPC. He is 48 years old and has two sons to
take care of them. He is to look after his aged mother who is 75 years old.
He is the only bread earner of the family. As per nominal roll dated
07.12.2010, he remained in custody for two months, five days besides
earning remission for five days. He is not a previous convict and was not
involved in any other criminal case. The substantive sentence of A-6 is
reduced to two years. Other terms and conditions of the order are left
undisturbed.
21. The appeals stand disposed of in the above terms. The
appellants are directed to surrender before the Trial Court on 3rd January,
2014 to serve the remaining period of substantive sentence. The Registry
shall transmit the Trial Court records forthwith.
(S.P.GARG)
JUDGE
December 20, 2013
sa
