Zarar Khan @ Mulla vs State (Govt. Of Nct Of Delhi)
2013 Latest Caselaw 5123 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 RESERVED ON : 30th OCTOBER, 2013
                                  DECIDED ON : 8th NOVEMBER, 2013

+                                    CRL.A. 706/2000
       ZARAR KHAN @ MULLA                                  ..... Appellant
                            Through :     Mr.Ajay Malviya, Advocate.

                            versus

       STATE (GOVT. OF NCT OF DELHI)           ..... Respondent
                     Through : Mr.M.N.Dudeja, APP.

AND

+                                    CRL.A. 652/2000

       MOHD. NAZIR                                         ..... Appellant
                            Through :     Mr.Ajay Malviya, Advocate.

                            versus

       THE (GOVT. OF N.C.T. OF DELHI)           ..... Respondent
                      Through : Mr.M.N.Dudeja, APP.


       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Shankar, Sahid Khan, Atiq Ahmed, Zarar Khan @ Mulla (A-

1) and Mohd. Nazir (A-2) were arrested in case FIR No. 246/94 by the

police of PS Roop Nagar and sent for trial for committing offences

punishable under Sections 394/397/307/34 IPC / 120B IPC and 25/27

Arms Act. Allegations against them were that on 15.11.1994 at about

05.30 P.M. at shop No. 12/21, Shakti Nagar, they committed dacoity

using revolvers and daggers and injured complainant - Chander Kant

while depriving him of cash ` 17,000/-, cheques and other documents

contained in a leather bag. After the occurrence, the complainant -

Chander Kant gave a chase to the assailants. Shankar fired with the

revolver in his hand and the police officials present at Nagia Park were

able to overpower and apprehend him. During the course of investigation,

statements of the witnesses conversant with the facts were recorded.

Pursuant to Shankar's disclosure statement, the other assailants were

apprehended on different dates and weapons were recovered from their

possession. The robbed articles were also recovered. After completion of

investigation, a charge-sheet was submitted against all of them in the

Court. They were duly charged and brought to trial. The prosecution

examined seventeen witnesses to establish their guilt. In their 313

statements, the assailants denied their complicity in the offence and

pleaded false implication. On appreciating the evidence and after

considering the rival contentions of the parties, the Trial Court, by the

impugned judgment dated 26.09.2000 in Sessions Case No. 144/96

convicted Shankar, A-1 and A-2 for committing offence punishable under

Section 392/34 IPC. Shankar and A-1 were further held guilty for

committing offence under Section 397 IPC. Shankar was also held guilty

under Section 307 IPC. By an order dated 27.09.2000 various

imprisonment terms detailed therein with fine were imposed. Sahid Khan

and Atiq Ahmed were acquitted of all the charges. The State did not

challenge their acquittal. Being aggrieved, A-1 and A-2 have preferred the

appeals.

2. I have heard the learned counsel for the parties and have

examined the record. Appellants' counsel strenuously urged that the Trial

Court did not appreciate the evidence in its true and proper perspective.

The appellants were shown to the witnesses in the police station after their

arrest and were compelled to decline to participate in the Test

Identification Proceedings. The cash and cheques recovered from the

appellants were not in their exclusive possession and these articles were

not sealed. The prosecution did not collect any evidence to ascertain as to

when and how the cheques in question came in the custody of the

complainant. PW-6 Raj Pal Singh was a stock witness of the police and no

reliance can be placed on his testimony. Learned Addl. Public Prosecutor

urged that the Trial Court findings are based upon the fair appraisal of the

evidence of the complainant who identified the appellants in the Court.

Recovery of the robbed articles from their possession is an additional

circumstance to connect them with the crime.

3. The main assailant Shankar who fired with the revolver in his

hand and injured the complainant did not prefer to challenge the

conviction and purportedly, has already served the sentence awarded to

him. Shankar was apprehended soon after chase by the complainant with

the assistance of police officials present nearby. A-1 was arrested on

16.11.1994 and pursuant to his disclosure statement cash ` 12,000/- was

recovered from his house on 19.11.1994. A-2 was arrested on 29.11.1994

and two cheques with cash were recovered from his possession. Crucial

testimony is that of the complainant - Chander Kant who had no

extraneous consideration to fake the incident of robbery / dacoity. He was

not acquainted with the assailants and did not nurture any grievance

against them. The assailants were not named in the FIR. On the day of

incident i.e. 15.11.1994, Chander Kant, Sales Assistant with Vinod

Enterprises, 12/21, Shakti Nagar, since 1986 as usual was present at his

office. At 05.30 P.M., Shankar and A-1 came in the office pretending to

be customers and conversed with him to purchase 'joining sheets'. Soon

thereafter, their companions also entered inside the shop. Shankar armed

with a revolver and A-1 who had a knife pointed their arms towards

Chander Kant and demanded whatsoever he had. When he expressed his

ignorance about cash in his custody, he was hit by Shankar on his head

with the butt of the revolver. Chander Kant assigned specific role to A-2

who after entering inside the shop cut the telephone wires. A-1 snatched

the hand bag containing ` 17,000/-, ration card, some cheques and papers.

In the cross-examination, his testimony could not be shattered and no

infirmity emerged to disbelieve him. After the apprehension of the

assailants, the Investigating Officer moved applications for Test

Identification Proceedings. However, the assailants declined to participate

in the TIP proceedings alleging that they were shown to the witnesses in

the police station. They however, did not elaborate as to when and to

whom the police had shown them in the police station. Nevertheless,

complainant - Chander Kant who had given description of the assailants

in his statement (Ex.PW-1/A) to the police at the first instance identified

A-1 and A-2 in the Court without any hesitation. The complainant who

had direct confrontation with the assailants for sufficient duration had

ample opportunity to observe and grasp the broad features of the culprits.

No ulterior motive was assigned to the complainant for falsely identifying

A-1 and A-2 in the Court. It is well settled that substantive evidence of

the witness is his evidence of identification in the Court. Complainant

who was injured in the incident and was taken to Hindu Rao Hospital was

medically examined by PW-3 (Arun Jain) on 15.11.1994 at 09.00 P.M.

Clear Lacerated Wound (CLW) 1 cm over left parietal region, abrasion

over left thumb, abrasion over right thumb were found on the body vide

MLC (Ex.PW-3/A). There is no conflict between the ocular and medical

evidence and testimony of PW-1 stands corroborated. The recovery of the

robbed articles from the possession of the assailants is a vital

incriminating circumstance to connect them with the crime. The police

was not expected to plant substantial amount ` 12,000/- upon the

appellants to falsely implicate them. The cheques which had distinct

features were also recovered from their possession.

4. Minor contradictions and discrepancies highlighted by the

appellants' counsel are not material to discredit the cogent and reliable

version of the complainant who was the victim / injured in the incident.

His presence at the spot was natural and probable. Shankar's apprehension

soon after the incident after chase lends credence to the version narrated

by him. The Trial Court has dealt with all the relevant contentions of the

appellants minutely and has discarded them with valid reasons. The

findings are based upon proper and fair appreciation of the evidence and

require no interference. Acquittal of co-accused - Sahid Khan and Atiq

Ahmed has no bearing on the conviction of the appellants for which the

prosecution was able to produce clinching evidence. Sentence awarded

under Section 397 IPC to A-1 is the minimum sentence prescribed and

cannot be modified. A-2's Nominal Roll dated 27.10.2010 reveals that he

was awarded RI for four years with fine ` 5,000/-. He remained in

custody for six months and fifteen days besides earning remission for two

months as on 11.04.2001. The under-trial period in custody was not

traceable. It further reveals that A-2 had no previous criminal background

/ antecedents and was not involved in any other criminal case. His overall

jail conduct was satisfactory. His age has been recorded as twenty years in

the Nominal Roll. Considering the fact that he was a first offender and did

not use any arm in the incident, his sentence requires modification. Taking

into consideration the mitigating circumstances, the substantive sentence

is reduced to two years. Other terms and conditions of the sentence order

are left undisturbed.

5. Appeal preferred by A-1 is unmerited and is dismissed. A-2's

appeal is disposed of in the above terms whereby maintaining conviction

under Section 392 IPC the substantive sentence is reduced from RI four

years to RI two years.

6. Appellants (A-1 & A-2) are directed to surrender and serve

the remainder of their sentence. For this purpose, they shall appear before

the Trial Court on 15.11.2013. The Registry shall transmit the Trial Court

records forthwith to ensure compliance with the judgment.

(S.P.GARG) JUDGE NOVEMBER 08, 2013 tr