Mohd. Iqbal vs State
2013 Latest Caselaw 4609 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                           RESERVED ON : 27th SEPTEMBER, 2013
                           DECIDED ON : 4th OCTOBER, 2013

+                        CRL.A. 781/2001

       MOHD. IQBAL                                 ....Appellant
                Through :      Mr.Deepak Tyagi, Advocate.

                               versus

       STATE                                         ....Respondent
                   Through :   Mr.M.N.Dudeja, APP.

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

S.P.GARG, J.

1. Mohd. Iqbal (the appellant) challenges correctness of a

judgment dated 09.10.2001in Sessions Case No. 3/2000 arising out of FIR

No.108/2000 PS Tilak Marg by which he was held guilty for committing

offence punishable under Section 392/34 IPC. By an order dated

10.10.2001, he was awarded RI for four years.

2. Allegations against the appellant were that on the night

intervening 25/26.02.2000 at about 01.45 A.M. he and his associates (not

arrested) robbed Nahar Singh of ` 15,215/-, gold chain, gold ring and

wrist watch when he was travelling in TSR No. DL-1R-1351 driven by

him. The police machinery was set in motion when Daily Diary (DD) No.

23A (Ex.PW-2/A) was recorded at PS Lajpat Nagar on information that 4

or 5 boys had fled after robbing an individual from TSR No. DL-1R-1351.

The investigation was assigned to HC Gopi Chand who with

Const.Mahesh went to the spot and found the complainant and PCR

officials present there. The complainant - Nahar Singh gave detailed

account of the incident. HC Gopi Chand recorded DD No. 24A (Ex.PW-

1/C) and sent the complainant to PS Tilak Marg in whose jurisdiction the

incident had taken place. PW-8 (Ravinder Malik) took over the

investigation. PW-1 (Harvinder Singh) was found to be the registered

owner of the vehicle which he had been given to Mohd. Iqbal on hire. It

lead to Mohd.Iqbal's arrest. Application for Test Identification

Proceedings was moved and Mohd. Iqbal declined to participate in it. The

Investigating Officer recorded statements of the witnesses conversant with

the facts. Attempts were made to find out the appellant's associates but in

vain. After completion of investigation, a charge-sheet was filed in the

Court against the appellant. He was duly charged and brought to trial. In

his 313 statement, he pleaded false implication. On appreciating the

evidence and after considering the rival contentions of the parties, the

Trial Court, by the impugned judgment, held the appellant guilty for the

offence mentioned previously.

3. Appellant's counsel urged that the Trial Court did not

appreciate the evidence in its true and proper perspective. The appellant

was falsely implicated on suspicion and was not driving the TSR at the

time of incident. There was no occasion for the complainant to have

substantial cash with him on his first trip to Delhi to meet his brother in

Delhi Police. The Trial Court did not appreciate that robbed article were

not recovered from the appellant and the identity of the other assailants

could not be established. Mohd. Iqbal was not kept in muffled face at the

time of arrest and was justified to decline to participate in Test

Identification Proceedings and was shown to the witness before he was

produced in the Court. The delay in lodging the FIR was not explained.

Complainant's brother who was posted in Delhi Police was instrumental

in implicating him. Learned Addl. Public Prosecutor urged that the

complainant had no prior animosity with the appellant to falsely implicate

him in the case. PW-1 (Harvinder Singh) has corroborated his version.

4. I have heard the submissions of the parties and have

examined the record. Complainant - Nahar Singh who was coming to

Delhi for the first time to take exam of Delhi Police where his brother was

a constable in Delhi Police is not expected to fake a false incident of

robbery. Daily Diary (DD) No. 23A (Ex.PW-2/A) was recorded at 01.40

A.M. at PS Lajpat Nagar. It records the incident of robbery in TSR No.

DL-1R-1351 by 4 or 5 boys. This DD was assigned to PW-2 (HC Gopi

Chand) who with Const.Mahesh went near Tara Taxi Stand and met

Nahar Singh, the complainant there. Statement of the complainant

(Ex.PW-1/B) was recorded and Nahar Singh was brought to the Police

Station. It transpired that the occurrence had taken place within the

jurisdiction of Police Station Tilak Marg. DD No. 24A (Ex.PW-1/C) was

recorded at 03.30 A.M. (night) and the complainant was sent to Police

Station Tilak Marg. The contents of both the DD entries lend credence to

the complainant's version that he was robbed by 4 or 5 boys when he was

travelling in TSR No. DL-1R-1351. The investigation was taken over by

PW-8 (SI Ravinder Malik, PS Tilak Marg). He lodged First Information

Record on making endorsement (Ex.PW-3/A). Attempts were made to

find out the registered owner of TSR whose number was disclosed by the

complainant at the first instance and it revealed that Harvinder Singh S/o

R.D.Ahuja was its registered owner. PW-1 (Harvinder Singh) in his Court

statement revealed that the TSR No. DL-1R-1351 was given on hire in the

month of February, 2000 to the appellant and he used to pay ` 90/- per

day. Mohd. Iqbal used to park the scooter at his house and it was seized

from there. The testimony of PW-1 (Harvinder Singh) remains

unchallenged. No suggestion was put to him that on that night Mohd.

Iqbal was not having the possession of the TSR. There is no denial that

the appellant did not use to ply TSR on hire. Subsequently, this TSR was

released on superdari to the registered owner Harvinder Singh.

5. Complainant - Nahar Singh in his statement (Ex.PW-1/A)

made to the police at the first instance narrated vivid description of the

incident and disclosed as to how and under what circumstances, he was

robbed of cash and gold articles when he was travelling in TSR No. DL-

1R-1351. He claimed to identify the assailants. While appearing in the

Court he fully proved the version given to the police without any major

variation. He identified Mohd.Iqbal to be an individual who was among

the assailants and was driving the TSR. He ascribed a specific role to him

about pushing him. Despite searching cross-examination, the appellant

was unable to elicit any material discrepancy / contradiction in his version

to disbelieve him. No ulterior motive was assigned to the complainant to

falsely implicate him in the incident. He explained that Mohd. Iqbal was

seen by him, firstly, on the day of incident, secondly in the Police Station

on 04.03.2000 and thereafter, in the Court on the date of his examination.

Prosecution examined PW-6 (Sh.G.S.Gupta, MM) who conducted Test

Identification Proceedings. Application (Ex.PW-6/A) reveals that the

appellant was produced in muffled face before the Magistrate but he

declined to participate in the Test Identification Proceedings (Ex.PW-

6/B). The appellant did not offer reasonable explanation for not

participating in the Test Identification Proceedings. The application for

holding TIP was moved on 29.02.2000 before the Magistrate soon after

his arrest on 28.02.2000 and was produced in muffled face. It makes no

difference that after the police got his police remand, on 04.03.2000, he

was identified in the Police Station by the complainant. An adverse

inference is to be drawn against the appellant for refusing to participate in

Test Identification Proceedings. In his 313 statement, the appellant could

not give plausible explanation to the incriminating circumstance proved

against him. He did not controvert that the TSR No. DL-1R-1351was not

hired by him from PW-1 (Harvinder Singh). It is not believable that PW-1

(Harvinder Singh) would falsely claim that this TSR was on hire with the

appellant on the night of incident. There is no substance in the appellant's

plea that TSR number was noted on guess basis. He did not examine any

witness from his family or in the neighbourhood to show his presence at

any other specific place at the time of incident. Non-recovery of robbed

articles is not material as the appellant alone could be arrested on

28.02.2000. Delay in lodging the FIR has been explained. The

complainant had approached the police soon after the incident and DD

No. 23A (Ex.PW-2/A) was recorded at 01.40 A.M. itself. Since there was

some controversy as to the jurisdiction, lodging of FIR was delayed.

There is no substance in the plea that complainant's brother had

influenced the investigation and falsely implicated him. It has come on

record that complainant's brother was a constable in Delhi Police and

apparently, had no role to play to influence the investigation. He had no

prior acquaintance or animosity with the appellant to drag him in a false

case. The complainant's brother was not going to be benefited by false

implication as no robbed article was even recovered from the appellant.

The conviction of the appellant is based upon fair appreciation of the

evidence and requires no interference.

6. Appellant's counsel in the alternative adopted an argument to

release him on probation as he has remained in custody for about six

months and has clean antecedents. The facts and circumstances of the case

show that the crime committed by the appellant is serious and grave. An

innocent visitor to Delhi for the first time was robbed not only of his

valuable articles and cash but educational certificates. The complainant

was to appear in an exam on the next day. Court can well understand his

mental condition after the incident. The appellant who was a TSR driver

betrayed the trust of the passenger. His associates could not be identified/

arrested to bring them to justice. Taking into consideration the period of

detention already undergone by the appellant, his age and previous

antecedents and the fact that the occurrence took place about thirteen

years before, Sentence order is modified to the extent that substantive

sentence under Section 392/34 IPC RI for four years is reduced to RI for

two years.

7. The appellant - Mohd.Iqbal is directed to surrender before

the Trial Court on 14th October, 2013 to serve the remainder of his

sentence. The Registry shall transmit the Trial Court record forthwith to

ensure compliance with the judgment. The appeal stands disposed of in

the above terms.

(S.P.GARG) JUDGE OCTOBER 04, 2013/tr