Haseen Miya vs State
2014 Latest Caselaw 1978 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : March 28, 2014
                               DECIDED ON : April 21, 2014

+                        CRL.A. 1037/2011
       HASEEN MIYA
                                                           ..... Appellant
                         Through : Mrs.Nandita Rao, Advocate.

                         versus

       STATE
                                                         ..... Respondent
                         Through : Mr.M.N.Dudeja, APP for the State.
                                  SI Raj Pal Singh, PS Anand Vihar.

        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellant-Haseen Miya impugns his conviction under

Section 392 read with Section 397 IPC recorded by a judgment dated

10.11.2010 of learned Additional Sessions Judge (East) in Sessions Case

No.29/10 arising out of FIR No.560/09 registered at police station Anand

Vihar. By an order dated 16.11.2010, the appellant was sentenced to

undergo RI for seven years with fine `1,000/-

2. Allegations against the appellant, as set up in the charge-

sheet, were that on 29.12.2009 at about 03.00 p.m. at Birla Land near

Karkardooma Metro Station, he and his three associates (who faced

proceedings before Juvenile Justice Board) in furtherance of common

intention robbed Bhuvneshwar of `12,000/- and mobile phone at knife

point. The police machinery was set into motion when information about

the incident was conveyed and Daily Dairy (DD) No.18A was recorded at

15:06 hours at Police Station, Anand Vihar. It was recorded therein that

four assailants had fled after snatching `12,000/- near Karkardooma

Metro Station. The investigation was marked to HC Pushpender Singh

(PW-11) who went to the spot and came to know that the injured had

already been taken to Hedgewar hospital by PCR. He lodged First

Information Report after recording complainant-Bhuvneshwar's

statement (Ex.PW1/A). The complainant disclosed as to how and under

what circumstances, he was robbed of `12,000/- by four assailants at knife

point. He further disclosed that he and his cousin Pintu were injured by

the assailants and claimed to identify them. The occurrence took place at

around 03.00 p.m. and FIR was lodged in promptitude at about 05.40 p.m.

Efforts were made to find out the culprits. The appellant and his

associates were apprehended on 30.12.2009 at about 05.30 p.m on the

basis of secret information during their presence at Sharab Theka,

Karkardooma Village. An ustra (Ex.P-3) and one mobile phone make

Nokia 1209 (Ex.P-1) were recovered from his possession. Statements of

witnesses conversant with the facts were recorded. After completion of

investigation, a charge-sheet was submitted against the appellant; he was

duly charged and brought to trial. In 313 statement, the accused denied

his involvement in the crime and stated that he and his friends were

picked up by the police at Sharab Theka on 29.12.2009 at about 2 p.m.

They were shown to the witnesses in the police station. He did not prefer

to lead any evidence in defence. The trial resulted in his conviction as

aforesaid. Being aggrieved and dissatisfied, the appellant has preferred

the appeal.

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

examined the record. Appellant's counsel urged that the trial court did not

appreciate the evidence in its true and proper perspective. The

complainant has admitted in cross-examination that appellant's photo was

shown to him in the police station. The prosecution witnesses have given

inconsistent version about the colour of the mobile phone recovered. The

appellant has remained in custody for about four and a half years.

Learned Additional Public Prosecutor urged that there are no sound

reasons to disbelieve the complainant.

4. Crucial testimony to infer the appellant's guilt is that of

PW-1A (complainant-Bhuvneshwar), author of the FIR, who categorically

deposed that on 29.12.2009 at about 03.00 p.m. he was robbed of cash

`12,000/- and a mobile phone when he was going along with his cousin

Pintu after collecting `12,000/- from his cousin Ganesh. When they

reached just in the middle of the way, they were surrounded by four

individuals. One of them assaulted him by an 'ustra' on his face and he

became semi-unconscious. He identified the appellant- Haseen Miya to

be the assailant who inflicted injuries to him by an 'ustra'. He further

deposed that mobile phone and cash were removed from his shirt and the

assailants fled the spot. He further deposed that he identified the appellant

in Tihar Jail in Test Identification Parade. Mobile phone (Ex.P-1) was

purchased by him from one Vijay Kumar and he had given copy of the bill

to the police. In the cross-examination, he disclosed that the assailants

remained at the spot for 2-3 minutes. The assailants were not shown to

him by the police. He fairly admitted that he was shown some

photographs after two days of the incident and out of those photographs,

he suspected Haseen Miya who could be one of the assailants. He denied

the suggestion that on the basis of photograph shown to him, the accused

was identified. On scanning the testimony of the complainant, it reveals

that he had proved the version narrated to the police at the first instance

without any variation. He had no extraneous consideration to fake the

incident of robbery and to falsely implicate the accused with whom he had

no prior acquaintance. The complainant not only identified the appellant

in court during his deposition but also recognized him in TIP proceedings

conducted at Tihar Jail. The appellant had voluntarily participated in the

Test Identification Proceedings and was correctly identified by the

complainant as one of the assailants. At that stage, the appellant did not

inform the concerned Metropolitan Magistrate conducing TIP proceedings

that his photo was shown to the witness and he could identify him on that

basis. PW-7 (Pintu) also supported the complainant to the extent that four

boys had demanded money from him. Since he was not having any

money, he was stabbed on his back. The statement of this witness

remained unchallenged in the cross-examination. Complainant's version

is in consonance with the medical evidence. PW-4 (Dr.Abhishek)

medically examined Bhuvneshwar on 29.12.2009 by MLC (Ex.PW-4/A)

and found three incised wounds of various dimension on left cheek, lower

left lip and right hand. Injuries were caused by sharp object. He also

examined Pintu by MLC (Ex.PW-4/C) and one stab wound about 3cm x

1cm was found on his body.

5. Mobile phone (Ex.P-1) recovered from the appellant was

identified by the complainant. The prosecution also examined PW-5

(Arun Sharma) who proved that cash memo No.720380737 dated

25.04.2009 pertaining to mobile phone make nokia 1209 was issued for

the sale of mobile phone to one Vijay and its IMEI number was

353224031784514. The complainant had no ulterior reasons to identify

mobile (Ex.P-1). Recovery of crime weapon ustra (Ex.P-3) also connects

the appellant with the crime. The appellant did not give plausible

explanation to the incriminating circumstances. He did not examine any

witness to prove his defence. Nothing has come on record to show that

the appellant and his friends were lifted by the police on 29.12.2009 at

about 02.00 p.m. from Sharab Theka, Karkardooma. The appellant did

not examine his friends Darshan and Babloo who were allegedly lifted

along with him at that time. No such suggestion was put to the

prosecution witnesses.

6. All the relevant contentions of the appellant have been dealt

with by the learned trial court in the impugned judgment which is based

upon fair appraisal of the evidence and no interference is warranted. An

innocent victim was robbed of his hard earned money by the appellant and

his associates while they were armed with deadly weapons. Not only

that, injuries were also caused to the complainant and his companion

Pintu. The minimum sentence prescribed under Section 397 IPC is seven

years which cannot be altered or modified.

7. In the light of the above discussion, the appeal being

unmerited is dismissed. The appellant is directed to surrender before the

Trial Court on 29th April, 2014 to serve the remaining period of sentence.

The Registry shall transmit the Trial Court records forthwith along with

the copy of this order.

(S.P.GARG) JUDGE APRIL 21, 2014 sa