Sheikh Munna @ Munna Sheikh vs State
2013 Latest Caselaw 4097 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : 29th August, 2013
                                DECIDED ON : 11th September, 2013

+      CRL.A. 1298/2012

       SHEIKH MUNNA @ MUNNA SHEIKH           ..... Appellant
                   Through : Ms.Anita Abraham, Advocate.

                          VERSUS

       STATE                                          ..... Respondent
                          Through :   Mr.Feroz Khan Ghazi, APP.

        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Sheikh Munna @ Munna Sheikh (the appellant) impugns a

judgment dated 07.07.2012 of learned Additional Sessions Judge in

Sessions Case No.57/2011 arising out of FIR No.64/2011 registered at

Police Station N.D.R.S. by which he was convicted under Section 394

read with Section 397 IPC. By an order dated 09.07.2012, he was

directed to undergo Rigorous Imprisonment for eight years with fine

`50,000/- under Section 394 IPC and Rigorous Imprisonment for seven

years with fine `10,000/- under Section 397 IPC.

2. Allegations against the appellant were that on 12.03.2011 at

about 04.00 P.M. under a pucca flyover in front of platform No.8/9 of

New Delhi Railway Station, he with his associates Saddam and Bhura (not

arrested) in furtherance of common intention robbed Smt.Asha Rani of

her gold chain and caused injuries to her husband B.Udayraj with surgical

blade. Daily Diary (DD) No.19A (Ex.PW-1/A) was recorded at Police

Station N.D.R.S. at 05.28 P.M. on getting information that an army man

has been stabbed with knife. The investigation was assigned to ASI

Ashok Kumar who with Ct.Bheem Singh went to LNJP hospital and

collected the MLC of B.Udayraj. Asha Rani (PW-2) recorded her

statement (Ex.PW-2/A). The Investigating Officer made endorsement

(Ex.PW-6/A) and lodged First Information Report. Attempts were made

to find out the culprits but in vain. On 17.10.2011 Sheikh Munna @

Munna Sheikh was arrested in case FIR No.252/2011 under Section

307/34 IPC and his involvement surfaced in the disclosure statement

(Ex.PW-5/C). He declined to participate in Test Identification

Proceedings. The Investigating Officer recorded the statements of

witnesses conversant with the facts and after completion of investigation

filed a charge-sheet in the court. The appellant was duly charged and

brought to trial. The prosecution examined ten witnesses to prove the

charges. In his 313 statement, the appellant pleaded false implication due

to refusal to do cleaning work in the police station. 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

offences mentioned previously and sentenced him. Being aggrieved, he

has filed the present appeal.

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

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

did not join TIP as his photo was shown to the complainant. Appellant‟s

identification by PWs-2 and 3 after a gap of about seven months is highly

doubtful. No weapon of offence and robbed article was recovered from

the appellant‟s possession or at his instance. The Trial Court did not pay

attention to the discrepancies emerging in the evidence about the exact

number of assailants. PWs have given divergent versions and have made

improvements. It is also not certain whether the weapon used was a razor

or knife. Identification by photograph is not valid. Learned Additional

Public Prosecutor urged that there are no sound reasons to discard the

testimony of victim and her husband who was injured at the time of

committing robbery. Minor discrepancies highlighted by the appellant‟s

counsel are not fatal.

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

examined the record. Occurrence took place at around 04.00 P.M. DD

No.19/A (Ex.PW-4/A) was recorded at 05.28 P.M. at Police Station

N.D.R.S. PW-1 (HC Davis B.J.) Duty Officer, disclosed in the cross-

examination that on the basis of PCR call received at about 05.28 P.M. he

recorded DD No.19/A. The injured was taken to JPN hospital and MLC

(Ex.PW-8/A) records the time of arrival of the patient at 05.09 P.M. PW-

6 (ASI Ashok Kumar) recorded Asha Rani‟s statement (Ex.PW-2/A) and

sent the rukka for lodging First Information Report at 07.15 P.M. It

reveals that there was no delay in lodging the FIR. FIR in a criminal case

is a vital and valuable piece of evidence for the purpose of appreciating

the evidence led at the trial. The object of insisting upon prompt lodging

of the FIR is to obtain the earliest information regarding the circumstance

in which the crime was committed, including the names of the actual

culprits and the parts played by them, the weapons, if any, used, as also

the names of the eyewitnesses, if any. Earliest reporting of the occurrence

by the informant with all its minute details gives assurance regarding truth

of its version. In the instant case, the FIR was lodged on the complaint of

Smt.Asha Rani in which she gave detail account as to how and under what

circumstances she was robbed of her golden chain and when her husband

B.Udayraj intervened, he was inflicted injuries with knife/razor. While

appearing as PW-2 in her Court statement, she proved the version given to

the police at the earliest without any major variations/improvements. She

deposed that on 12.03.2011 when they reached near bridge located at

Hanuman Temple, an individual came near to her and attempted to snatch

her gold chain. She raised alarm to call her husband who was going 15

mts. ahead of her. On that, the said individual fled the spot. In the

meantime, another assailant came and attempted to snatch her gold chain.

However, he was caught hold by her husband. When her husband had a

scuffle with the snatcher, someone picked up their baby and they rushed

towards her. Her husband was thereafter assaulted with some sharp object

i.e knife/razor. There were two assailants; one had run away and the other

assaulted her husband with sharp object. She identified Sheikh Munna @

Munna Sheikh as the assailant who assaulted her husband. She proved

statement (Ex.PW-2/A) lodged by her. In the cross-examination, she

denied that after the first snatcher fled away, two more assailants reached

the spot. She clarified how in her statement (Ex.PW-2/A) she had referred

to two assailants i.e. one the snatcher who had fled and other the appellant

who assaulted her husband. She admitted that after the incident, she had

no occasion to see the appellant. It transpires that material facts deposed

by the witness remained unchallenged and uncontroverted in the cross-

examination. The accused did not deny his presence at the spot. No

ulterior motive was assigned to the witness for falsely implicating him in

the incident. PW-3 (B.Uday Raj) corroborated PW-2‟s testimony on all

relevant facts and deposed that there were two assailants; one was able to

flee after making attempt to snatch golden chain from her wife and the

other (the appellant present before the court) attempted to snatch the

„mangal sutra‟ of his wife. When he caught hold of him, he took out a

knife and assaulted him. He sustained injuries on his left arm and face.

He was forced to release the appellant due to multiple injuries sustained

by him on his face. The accused succeeded in taking away half

part/portion of the mangal sutra. He further deposed that he was called by

the police to identify the appellant in Tihar Jail. However, the appellant

refused to participate in the TIP proceedings. On 29.11.2011, when he

visited the police station to make inquiries about the case, he saw the

photograph of the accused and identified him. In the cross-examination,

he denied the suggestion that he was assaulted by three individuals or that

on 17.10.2011 the police had shown him the photograph of the accused in

the police station. Again the witness was not confronted on core issues

whereby the appellant inflicted injuries on his body when he intervened in

the incident.

5. PWs-2 and 3 had no prior acquaintance with the appellant to

falsely implicate him in the case. In the absence of prior animosity or ill-

will both these independent witnesses were not expected to falsely rope in

the accused for the injuries caused to the victim. Their ocular testimony

has been fully corroborated by medical evidence. PW-8 (Dr.Vijay

Kumar) medically examined the victim at 05.09 P.M. and prepared MLC

(Ex.PW8/A). He found multiple injuries on his body as under:-

(i) 8 cm incised wound on anterior aspect of left elbow.

(ii) 3 cm incised wound on medial aspect of left hand writs.

     (iii)    7 cm incised wound on left side chin.

     (iv)     2 cm incised wound on nose.

     (v)      4 cm incised wound on lower aspect of nose.

PW-9 (Dr.Sanjay) after examining and re-examining the

patient along with the documents was of the opinion (Ex.PW-9/A) that the

injuries were „grievous‟ in nature and there was facial disfigurement also.

He proved his opinion as Ex.PW-9/A.

6. Both PWs 2 and 3 had direct confrontation with the assailants

for long and had ample opportunity to observe and note their features.

They identified the present appellant as one of the assailants in the court

and attributed specific role to him whereby in an attempt to snatch the

golden chain, he assaulted PW-3 (B.Udayraj) with knife/razor and

inflicted injuries to him. The Investigating Officer moved application for

holding TIP after appellant‟s arrest in case FIR No.252/2011 under

Section 307/34 IPC but he declined to participate in the TIP proceedings.

Adverse inference is to be drawn against him for not participating in the

TIP proceedings. When PW-3 visited the police station on 29.11.2011

and was shown the photograph, he immediately identified him. The

appellant had declined to participate in the TIP proceedings prior to that.

It is settled legal preposition that Identification Parade is a tool of

investigation and is used primarily to strengthen the case of the

prosecution on the one hand and to make doubly sure that accused in the

case are actual culprits. It is trite to say that substantive evidence is the

evidence of identification in court. In Prem Singh Vs.State of Haryana

2011 (10) SCALE 102 the Supreme Court held 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 Shyam Babu Vs.State of Haryana AIR 2009 SC 577 the

accused persons had refused to participate in the TIP parade. It was held

that it would speak volumes, about the participation in the commission of

the crime. In Rabinder Kumar Pal @ Dara Singh Vs.Republic of India

(2011) SCC 490 the Supreme Court held that "photo identification and

TIP are only an aides in the investigation and do not form substantive

evidence. The substantive evidence is the evidence in the court on oath.

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."

8. There are no good reasons to discard the statement of PW-3

who was badly injured in the incident. It is settled legal proposition that

normally an injured witness would enjoy greater credibility because he is

the sufferer himself and thus there will be no occasion for such a person to

state incorrect version of the occurrence or to involve anybody falsely in

the bargain to protect the real culprit.

9. Minor discrepancies and contradictions referred to above by

appellant‟s counsel are not enough to discard the testimony of PWs 2 and

3 in its entirety. It makes no difference if the assailants were two or three

in number, the fact remains that the appellant was one of the assailants

who attempted to snatch the mangal sutra and when PW-3 intervened, he

was assaulted repeatedly on his body. Non-recovery of the stolen

property is insignificant as the appellant was arrested after a long gap of

seven months. It is inconsequential if weapon used was knife or razor.

PW-8 observed five incised wounds on the body of the victim and the

nature of injuries was „grievous‟ in nature to attract Section 397 IPC.

10. In the light of the above discussion, I am of the view that

there are no valid reasons to interfere with the impugned judgment which

was delivered after proper appreciation of the evidence on record. The

sentence order is modified to the extent that default sentence for non-

payment of fine of `50,000/- under Section 394 IPC shall be three months

and for non-payment of `10,000/- under Section 397 it shall be one

month. Other terms and conditions of the sentence order are left

undisturbed.

11. The appeal stands disposed of. Trial Court record be sent

back forthwith.

(S.P.GARG) JUDGE September 11, 2013 sa