Munir @ Chota vs State (Govt. Of Nct Of Delhi)
2014 Latest Caselaw 1850 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : 31st MARCH, 2014
                                DECIDED ON : 4th APRIL, 2014

+                          CRL.A.No. 555/2012
      MUNIR @ CHOTA                                     ..... Appellant
                           Through :   Mr.S.S.Ahluwalia, Advocate.
                           versus

      STATE (GOVT. OF NCT OF DELHI)                     ..... Respondent
                           Through :   Mr.Lovkesh Sawhney, APP.

                               RESERVED ON : 21st MARCH, 2014
                                DECIDED ON : 4th APRIL, 2014

+                          CRL.A.No. 556/2012
      DULAL                                             ..... Appellant
                           Through :   Mr.Saurabh Kansal, Advocate with
                                       Ms.Pallavi Kansal, Advocate.
                           versus

      STATE (GOVT. OF NCT OF DELHI)                     ..... Respondent

                           Through :   Mr.Lovkesh Sawhney, APP.

AND
+         CRL.A.No. 557/2012 & CRL.M.B.No. 435/2014
      HARUN                                    ..... Appellant
                           Through :   Mr.Saurabh Kansal, Advocate with
                                       Ms.Pallavi Kansal, Advocate.
                           versus

      STATE (GOVT. OF NCT OF DELHI)                     ..... Respondent

                           Through :   Mr.Lovkesh Sawhney, APP.

Crl.A.Nos.555 - 557/2012                                      Page 1 of 10
        CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Munir @ Chota (A-1), Dulal (A-2) and Harun (A-3)

challenge the legality and correctness of a judgment dated 19.12.2011 of

learned Addl. Sessions Judge in Sessions Case No. 37/10 arising out of

FIR No. 91/09 PS Harsh Vihar by which they were held perpetrators of

the crime under Section 395 IPC. By an order dated 24.12.2011, they were

sentenced to undergo RI for ten years with fine ` 20,000/-, each.

2. The prosecution case as revealed in the charge-sheet was that

on 23.05.2009 at about 01.50 a.m. at House No.A-181, Gali No.6,

Mandoli Extension, the appellants and their associates Aftab @ Daboo

and Yamin @ Kalia committed dacoity. Daily Diary (DD) No. 7B was

recorded at PS Mehrauli on getting information about the occurrence from

PCR. The investigation was assigned to ASI Rakesh Tyagi who with HC

Rishi Raj went to the spot. He lodged First Information Report after

recording complainant - Satender Kumar's statement (Ex.PW-3/A) under

Sections 394/34 IPC. Injured - Satender Kumar was taken to GTB

hospital where he was medically examined. The complainant disclosed

that three / four individuals who had entered inside the house by jumping

over the wall robbed ` 19,500/-, gold ring and purse containing his school

I-card. The intruders were armed with weapons and on his resistance, he

was caused injuries. Efforts were made to find out the culprits but in vain.

Further case of the prosecution is that on 25.05.2009, Sakir, Mohd.Rahim,

Mohd.Harun (A-3), Mohd.Munir Bada, Dulal (A-2), Munir Chota (A-1)

and Kamal were arrested by the police of Special Staff, South District, in

case FIR No. 267/2009 under Sections 399/402 IPC and 25 Arms Act, PS

Mehrauli. Various weapons were recovered from them. Their involvement

in the instant case emerged in the disclosure statements made by them.

Intimation was given to the Investigating Officer of this case and DD no.

2B was recorded. PW-21 (SI Rakesh Tyagi) arrested Rahim, Sakir, Bada

Munir, Chota Munir, Kamal, Yamin @ Kalia, Aftab, Harun and Dulal as

suspects. After Court's permission, their disclosure statements Ex.PW-

21/I [of A-3 (Harun)], Ex.PW-21/J [of A-1 (Chota Munir)], Ex.PW-21/K

[of A-2 (Dulal)], Ex.PW-21/L (of Yamin @ Kalia) and Ex.PW-21/M (of

Aftab) were recorded. In Test Identification Proceedings, complainant -

Satender identified A-1 and A-3. Yamin @ Kalia declined to participate in

the TIP. On 09.06.2009 during police remand, Rahim, Bada Munir, Sakir

and Aftab led the police party to the place of occurrence and pointing out

memos (Ex.PW-13A to Ex.PW-13/D) were prepared. Aftab pursuant to

the disclosure statement, recovered school I-card of the complainant

which was seized vide seizure memo Ex.PW-13/E. Statements of the

witnesses conversant with the facts were recorded. The exhibits were sent

to Forensic Science Laboratory. Rahim, Sakir, Bada Munir and Kamal

were got discharged. After completion of investigation, a charge-sheet

was filed against A-1 to A-3, and Yamin @ Kalia and Aftab; they were

duly charged and brought to trial. The prosecution examined twenty-one

witnesses to substantiate the charges against them. In 313 statements, the

accused persons denied their complicity in the crime and pleaded false

implication. After considering the rival contentions of the parties and

appreciating the evidence and other materials, the Trial Court, by the

impugned judgment, held A-1 to A-3 guilty under Section 395 IPC. Aftab

and Yamin @ Kalia were acquitted of the charges. State did not prefer any

appeal against their acquittal. Being aggrieved and dissatisfied, A-1 to A-3

have preferred the appeals.

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

examined the record. The incident in which complainant - Satender

Kumar was robbed of ` 19,500/- and other valuable articles on the night

intervening 22/23.05.2009 at House No.A-181, Gali No.6, Mandoli

Extension is not under challenge. Only plea of the appellants is that they

were not the perpetrators of the crime and were falsely implicated in this

case. The complainant had no extraneous consideration to fake or concoct

the incident of robbery at night time at his residence. He was not only

deprived of cash and other valuable articles but was also injured while

committing robbery by the assailants. He was taken to GTB hospital and

was medically examined. He suffered injuries 'simple' in nature. The

occurrence took place at around 01.50 A.M. The First Information Report

was lodged at 03.50 A.M. in promptitude after recording complainant's

statement (Ex.PW-3/A). The complainant at the first available opportunity

disclosed to the police as to how and under what circumstances, three /

four boys had entered inside the house and had committed robbery. On

raising an alarm, many neighbourers including PW-1 (Naresh Kumar)

gathered at the spot and pelted stones at the intruders. To scare them, the

assailants fired in retaliation and managed to escape. PW-3 (Satender

Kumar), PW-4 (Vimlesh), PW-5 (Rekha) and PW-6 (Rinki) have all given

consistent version about the incident of robbery.

4. The appellants were arrested along with their associates in

FIR No. 267/2009 under Sections 399/402 IPC and 25 Arms Act, PS

Mehrauli, by the police of Special Staff, South District on 25.05.2009.

Their involvement emerged in the instant case on their disclosure

statements recorded therein. The Investigating Officer of this case moved

applications for holding Test Identification Proceedings. PW-16

(Ms.Suchi Laler), learned Metropolitan Magistrate, conducted Test

Identification Proceedings at Tihar Jail in which the complainant

identified A-1 and A-3 correctly. Yamin @ Kalia refused to participate in

the Test Identification Proceedings. While appearing as PW-3, in Court

statement, Satender Kumar identified A-1 and A-3 without hesitation and

specifically deposed that they were among the assailants who had entered

inside the house and committed robbery. He denied that both these

assailants were shown to him in the police station prior to the Test

Identification Proceedings. This submission of the appellants is devoid of

merit. They have not given any specific date as to when and where they

were shown to the complainant. They had voluntarily agreed to join the

Test Identification Proceedings. At that time, no such complaint was

lodged with the learned Metropolitan Magistrate conducting TIP. They

cannot be permitted to challenge their identification by the complainant in

TIP simply because he was able to recognise them as the assailants. PW-3

(Satender Kumar) was fair enough not to recognise and identify Aftab and

Yamin @ Kalia in his Court statement stating that they had covered their

faces and primarily it resulted in their acquittal.

5. The complainant identified A-2 in his Court statement and

pointed towards him stating that he was also the assailant involved in the

occurrence. In the cross-examination, he denied the suggestion that A-2

was present outside the house at the time of incident. He volunteered to

add that A-2 was inside the house in the room where the robbery was

committed. It is true that the Investigating Officer did not move

application for conducting TIP for A-2 during investigation. For that lapse

of the Investigating Officer, otherwise cogent and reliable testimony of

the complainant who had no prior animosity with A-2 cannot be

discredited. It is trite to say that the substantive evidence is the evidence

of identification in the Court. 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. 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. ('Amitsingh Bhikamsing Thakur vs. State of

Maharashtra', AIR 2007 SC 676). In the instant case, the Trial Court

observed that the cartridges recovered from the spot were connected with

the pistol recovered from the accused in the proceedings in FIR No.

267/2009 under Sections 399/402 IPC and 25 Arms Act, PS Mehrauli.

Neither of the appellants claimed their presence at any other particular

place on the relevant time and date. They did not examine any of their

family members or employers to prove their presence in their respective

houses or places of work. The appellants had no reason to be present

inside the victim's house at odd hours. Non-recovery of the robbed

articles is of no consequence. PW-3 (Satender Kumar), PW-4 (Vimlesh),

PW-5 (Rekha) and PW-6 (Rinki) have all deposed about the robbery of

the valuable articles from the house. PW-4 (Vimlesh), PW-5 (Rekha) and

PW-6 (Rinki) were unable to identify the assailants as they could not see

their faces due to fear. Minor contradictions, discrepancies and

improvements highlighted by the appellants' counsel do not stake the

basic structure of the prosecution case due to clear identification by the

complainant who had direct confrontation with the assailants for about ten

minutes inside the house and had clear and reasonable opportunity to note

their broad features.

6. Initially in the statement (Ex.PW-3/A), complainant -

Satender Kumar had not given the exact number of intruders and

described that they were three or four. In his Court statement also, he

disclosed their number as three / four. PW-1 (Naresh Kumar), a

neighbourer, gave the number of the assailants as five or six but he was

unable to identify any of the assailants. PW-4 (Vimlesh) did not state the

number of the assailants in her examination-in-chief. Only, in the cross-

examination, she disclosed that the intruders were six or seven. She was

not able to identify any of the culprits. PW-5 (Rekha) merely stated that

her brother was caught hold by three / four individuals. PW-6 (Rinki)

gave the number of the assailants four / five. It reveals that exact number

of assailants who were involved in the incident could not be ascertained

during investigation. Nine individuals were arrested during investigation

and four of them were discharged for lack of evidence. The Trial Court

did not find cogent evidence against Aftab and Yamin @ Kalia and

acquitted them of the charges. Minimum number of assailants required for

conviction under Section 395 IPC is five which the prosecution failed to

prove beyond doubt. Conviction under Section 395 IPC was not

permissible. Since the victim was injured in committing the robbery by

the assailants, the offence proved against A-1 to A-3 would be under

Section 394 IPC. The conviction is accordingly altered to Section 394

IPC.

7. Nominal roll dated 17.07.2012 reveals that A-1 and A-2 have

suffered custody for three years, one month and seven days besides

remission for three months as on 17.07.2012. A-3's nominal roll dated

10.02.2014 reveals that he has suffered custody for four years, eight

months and eight days besides remission for eleven months as on

10.02.2014. None of them has any previous conviction though they are

involved in some other criminal cases. Taking into consideration all the

facts and circumstances, the sentence order is modified and substantive

sentence of the appellants is reduced to eight years with fine ` 10,000/-,

each and failing to pay the fine to undergo SI for three months, each under

Section 394 IPC.

8. Appeals stand disposed of in the above terms. Pending

application also stands disposed of. Trial Court record be sent back

forthwith with the copy of the order. A copy of the order be sent to

Superintendent Jail for information.

(S.P.GARG) JUDGE APRIL 04, 2014 / tr