Mehfooj @ Monu vs State (Govt. Of Nct) Delhi
2014 Latest Caselaw 1198 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                                Date of Decision: 06.03.2014

+       CRL.A. 1144/2013

        SANJAY                                                  ..... Appellant

                                  Through:   Mr. Inderpal Khokhar, Adv.

                                  Versus

        STATE NCT OF DELHI                                   ..... Respondent
                      Through:               Ms. Ritu Gauba, APP for State

+       CRL.A. 1261/2013

        MEHFOOJ @ MONU                                         ..... Appellant
                    Through:                 Mr. Ashish Kumar, Adv.

                                  Versus

        STATE (GOVT. OF NCT) DELHI          ..... Respondent
                      Through: Ms. Ritu Gauba, APP for State

+       CRL.A. 1324/2013

        PRAVEEN MALIK & ORS.                                   ..... Appellant
                    Through:                 Mr. Chetan Anand, Adv.
                    versus

    STATE (GOVT. OF NCT) DELHI          ..... Respondent
                   Through: Ms. Ritu Gauba, APP for State
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                                       JUDGEMENT

V.K.JAIN, J. (Oral)

On 27.09.2009, the Police Control Room (PCR) was informed of the

passengers in Himalayan Queen Train having been robbed between Narela

and Holambi Kalan Railway Station. The information when conveyed to the

Police Station Old Delhi Railway Station, was recorded vide DD No.20, copy

of which is Ex.PW19/A, and its copy was given to ASI Rameshwar Dass for

investigation. When the Investigating Officer reached the spot, he found a

crowd gathered at the train. He recorded statement of the complainant -

Shashi Kant, who inter alia, stated that on the aforesaid date, as soon as the

train left Sonepat, 6-7 boys aged between 20-30 years boarded the train from

the other side of the platform. Out of them, one was a bulky boy with dark

complexion having a cut on his right cheek whereas the other boys were slim

or medium built. As soon as the train reached Narela, they covered the whole

of the coach. One of them had a country made pistol with him whereas the

others have knives and razors. They started beating the passengers and robbed

them of their valuables. One passenger - Udhal Singh pulled the chain. When

the train was about to reach H.K. Railway Station, those persons jumped from

the train and fled towards the fields. The complainant alleged that he had been

robbed of Rs.8,000/- on the point of a country made pistol whereas Anil

Kumar Jha, who was sitting with him was robbed of his mobile phone number

9805671907, and Rs.2,000/- in cash whereas another passenger Bimla Devi

was robbed of her chain and Rs.10,000/- in cash. He claimed that a number of

other passengers had been robbed of their cash and valuables etc.

2. This is also the case of the prosecution that on 20.09.2009, the accused

Sandeep, Ashok and Praveen were arrested on the basis of secret information

and a toy pistol (country made pistol) was recovered from Sandeep, whereas

razors were recovered from Ashok and Praveen. They were interrogated and

during interrogation, they named the other co-accused persons and admitted

their involvement in the crime. They led them to the house number C-24, JJ

Colony, Shahbad Dairy where one mobile phone make Nokia 1650 was

produced by the accused Ashok from his room. The IMEI number of the said

mobile phone matched with the mobile phone of one of the victims namely

Prince Gupta. The accused Sandeep also produced a polythene bag containing

six mobile phones and a black colour purse from his room. The said purse

contained photocopy of the driving license of Naresh Kumar besides two

visiting cards etc. Out of the six mobile phones, IMEI number of one phone

make Samsung 3314 matched with the phone of another victim namely Ashok

Kumar Trivedi, which was stolen from him during the aforesaid dacoity. All

the three above named accused persons were produced before the Magistrate

in muffled face, but they refused to join TIP proceedings. On 22.10.2009, the

accused Rohit surrendered in the Court and was arrested. He also refused to

join TIP. However, nothing could be recovered from him.

3. On 10.11.2009, an information was received from SHO/GRP, Sonepat

with respect to arrest of the accused Mehfooz by them. After obtaining his

production warrants, Mehfooz was arrested and was produced before a

Magistrate. He, however, refused to join TIP. Nothing could be recovered

from him despite his police custody having been taken. On 20.11.2009,

accused - Sanjay surrendered before the concerned Magistrate. He was then

arrested in this case and was produced before the Magistrate in muffled face.

He also refused to join TIP. Nothing was recovered from him. One of the

mobile phones which were recovered from accused Sandeep belonged to the

victim Anil Kumar Jha as was discovered by matching its IMEI number.

Initially, the charge-sheet was filed against the accused Sandeep, Ashok,

Pravin, Rakesh, Mehfooz and Sanjay. Accused Rohit was arrested at a later

date and a supplementary charge-sheet was filed against him.

4. On 30.03.2010, all the seven accused were charged under Section

395/397/34 of IPC. They having pleaded not guilty to the charge, as many as

24 witnesses were examined by the prosecution. No witness, however, was

examined in defence.

5. PW1 - Mr. Uddal Singh was one of the passengers who were

travelling in Himalayan Queen Express on 27.09.2009. He, inter alia, stated

that about 10-12 persons came to the compartment armed with firm arms,

knives and when the train reached Sonepat Railway Station, they started

snatching monies and other articles from the passengers. He along with other

passengers informed the PCR and pulled the chain. When the slowed down

near Holambi Kalan Railway Station, all those persons got down from the

train and fled away. He, however, claimed that he was not robbed of any

article. He identified the accused - Sanjay as the person who was carrying

firm arm with him. He, however, could not identify the other accused persons.

PW3 - Ashutosh Trivedi is another passenger who was travelling in

Himalayan Queen Express on the aforesaid date. He also deposed with respect

to dacoity in train by about ten persons. He stated that one of them was armed

with a gun whereas some were carrying razors and knives. He also claimed

that one of the robbers had put razor on the neck of his friend Hem Vardhan.

He claimed that the robbers took his mobile as well as the mobile of Hem

Vardhan. He also produced the copy of the purchase bill of his mobile phone.

He identified the accused Sandeep as the person who was carrying a gun at

the time of incident, but was not able to identify the person who had put razor

on the neck of his friend and had taken away their mobiles. He identified

Ex.P1 as his mobile bearing IMEI number 354118031269188, which was

snatched from him.

6. PW4 - Mr. Shashi Kant is also a victim of the aforesaid dacoity. He

claimed that he was robbed of Rs.8,000/- by showing him a country made

pistol. He identified all the accused persons as the boys who were involved in

the incident of train robbery.

7. Smt.Bimla Devi who came in the witness box as PW8 and, inter alia,

stated that someone had taken away her gold chain which she was wearing

around her neck besides a leather bag which contained Rs.10,000/- in cash.

She, however, could not see the culprits since she at that time was looking

outside the window. She did not identify any of the accused persons.

8. PW9 - Mr. Prince Gupta also deposed with respect to commission of

dacoity in the train on the aforesaid date. He claimed that the persons

involved in the robbery were armed with knives and razors and one of them

was having a country made pistol with him. He alleged that one of the persons

involved in the robbery had put razor against his neck and taken away his

mobile phone make Nokia 1650. According to him, the said mobile phone

was got issued in the name of his friend Hem Vardhan. He identified Ex. PX

as the mobile phone which was stolen from him. He identified only the

accused Ashok from amongst the accused persons who were present in the

court. According to him, it was Ashok who had taken his mobile phone from

him.

9. Mr. Hemwardhan is yet another victim of dacoity. He came in the

witness box as PW -14 and, inter alia, stated that the assailants were equipped

with knives and fire arms. According to him, he was robbed of his mobile

make Nokia - N-72. He identified the appellant - Mehfooj as the person who

had robbed him of his mobile phone.

10. PW21 - Mr. Anil Kumar Jha was also travelling in Himalayan Queen

Express on the aforesaid date. He claimed that one boy having a cut mark on

his nose was armed with a revolver, whereas his companions were armed with

weapons such knives and razors. According to him, he was robbed of his

mobile phone and cash amounting to Rs.2,000/-. He identified the accused -

Sandeep as the person who was armed with a revolver and accused Rohit as

the person who had placed razor against him at the time of commission of

robbery.

11. PW24 - Ram Brikesh deposed with respect to snatching of a gold

chain, gold ring and currency from him. He, however, did not identify any of

the accused persons and claimed that none of the accused persons was

amongst the 5-6 persons who had committed crime in the train on that date.

12. PW2 - Ramesh Singh is the owner of the house number C-246,

Shahbad Dairy. He, inter alia, stated that two rooms on the second floor of

the aforesaid house were let out by him to the appellants - Sandeep, Ashok

and Praveen. According to him, Ashok and Praveen were sharing one room

whereas Sandeep had occupied another room. He further stated that on

29.09.2009, the police came to his house along with Ashok and Sandeep and

went to the second floor of the house which was in their possession.

According to the witness, he also had accompanied them to the aforesaid

room. He claimed that one mobile phone was recovered from the room

occupied by Ashok whereas a polythene bag containing 5-6 mobile phones,

purse, camera and two gold chains were recovered from the room occupied by

Sandeep. He, however, did not identify any of the articles which were

recovered from the said room.

13. PW10 - Shri Tarun Khurana is the Nodal Officer, Bharti Airtel Ltd.

and he produced the copy of the Consumer Application Form in respect of

application number 9805871907 which is Ex.PW10/A. The copy of the ID

Proof is Ex.PW10/b whereas the copy of the declaration is Ex. PW10/C.

PW11 - Mr. Shishir Malhotra is the Nodal Officer of Aircel Ltd. who

produced CDR in respect of mobile phone number 9716871166. He claimed

that the connection was released in the name of Rajpal Singh Kasana.

14. PW12 - HC Ram Kumar, inter alia, stated that on 28.09.2009, he

joined the investigation of this case along with SI Rajinder Dabas, ASI

Rameshwar and Constable Vikas. On the basis of a secret information

received by them, they went to Narela Railway Station where the accused

Sandeep, Ashok and Praveen were apprehended, on being pointed out by the

secret informer. Sandeep was found in possession of a pistol, whereas the

others were found in possession of one razor each. He further stated that

thereafter all the accused were interrogated and they made disclosure

statement Ex.PW12/M, PW12/N and PW12/O. Thereafter, all the three

accused led them to the house number C-24, JJ Colony, Shahbad Dairy where

Ashok and Praveen got recovered one mobile phone which was seized vide

memo Ex.PW2/A whereas Sandeep got recovered five mobile phones, driving

license, two visiting cards and two gold chains which were seized vide memo

Ex.PW2/B and PW2/C. However, during the cross examination by learned

APP, he admitted that six mobile phone were recovered out of which one was

make Samsung 3310. The said phone is Ex.P2.

15. PW13 - Mr. Gaurav Rao is the Metropolitan Magistrate before whom

the appellant - Rakesh Kumar refused to join TIP on 22.10.2009. The

appellant - Mehfooz also refused to join TIP before him on 20.11.2009. The

appellant - Sanjay was also produced before him in muffled face and he also

refused to join TIP on 23.11.2009. According to the witness, the accused

Rohit had refused to join TIP before him on 14.01.2010.

PW16 - Ms. Twinkle Wadhwa is another MM who, inter alia, stated

that on 29.09.2009, accused Sandeep, Ashok and Praveen had refused to join

TIP before her.

16. PW19 - Vikas Kumar has deposed with respect to the arrest of the

accused Sandeep, Ashok and Praveen from Narela Railway Station. He also

deposed with respect to the aforesaid three accused taking them to house

bearing number C-246, JJ Colony, Shahbad Dairy where the accused

Sandeep took out a polythene bag containing six mobile phones, camera, etc

and the same were handed over to them whereas the accused Ashok took out a

mobile phone from behind a pillow.

PW-20 SI Rajinder Dabas inter alia stated that on 28.09.2009, at

about 6.50 PM, he received a secret information that the persons

involved in the commission of train dacoity in Himalyan Queen Express

would assemble at Narela Station to commit dacoity in Uchahar

Express. He thereupon reached Narela Railway Station, along with other

police officials, and apprehended the appellants Sandeep, Ashok and

Parveen at a place between Railway track and Swantanter Nagar on

being identified by the secret informer. He claimed that one country-

made toy pistol was recovered from the left dub of Sandeep, whereas

one razor was recovered from the other accused namely, Ashok and

Parveen. He further stated that the aforesaid three accused were brought

to Police Station and were interrogated. It transpired from their

disclosure statements that Sandeep was living as a tenant in House

No.C-246, Shahbad Dairy, J.J. Colony, Delhi while Ashok and Parveen

were living together as tenant in another room in the same house.

According to the witness, the aforesaid accused disclosed to him that

they could get the robbed items pertaining to this case recovered from

the aforesaid rooms. Thereafter, they reached the house in which the

above referred accused persons were living on rent and met the landlord

Ramesh Singh who was joined with the investigation. Ashok and

Parveen led them to their room on the second floor. Ashok took out one

Nokia mobile from under a pillow and after checking its IMEI number

and confirming it that it belonged to Prince Gupta, it was seized vide

memo Ex.PW2/A. Sandeep opened the room under his tenancy and

took out a polythene bag containing six mobile phones, besides one

camera, two gold chains and one purse containing two visiting cards and

a driving licence. On confirming the IMEI numbers of the aforesaid

phones, it was discovered that out of them, one mobile phone make-

Samsung S-3310 which belonged to the victim Ashutosh and was seized

vide memo Ex.PW2/C after noting down its IMEI number in the seizure

memo. The remaining articles were also duly seized.

PW-22 S.I. Rameshwar Dass has corroborated the deposition of

PW-20 S.I. Rajender Dabas with respect to the arrest of the accused

Ashok, Parveen and Sandeep as well as recovery of the mobile phones

from the rooms which they had taken on rent at C-246, Shahbad Dairy,

J.J. Colony.

17. In their respective statements under Section 313 Cr.P.C., the

appellants denied the allegations against them and claimed to be

innocent.

18. As far as the appellant Sanjay is concerned, it has come in the

deposition of PW-1 Udhal Singh that he was having a fire arm with him

and had a cut on his face. Though according to PW-3 Ashutosh Trivedi

and PW-21 Anil Kumar Jha, it was Sandeep who had a gun with him,

considering the fact that in the FIR itself it was alleged that one of the

persons involved in the dacoity had a cut on his face, the involvement of

the appellant Sanjay in the dacoity cannot be disputed. This was not the

case of the appellant Sanjay that he had not have a cut mark on his face.

Considering the cut mark on the face of the said appellant, the witnesses

could not have committed a mistake in identifying him during the course

of trial.

19. As far as the appellant Mehfooz is concerned, it has come in the

deposition of PW-14 Hemwardhan Singh that he was the person who

had robbed him of his mobile on the aforesaid date. The appellant

Mehfooz being the person who must have come into close contact with

the witness at the time of snatching his mobile phone, the witness could

not have forgotten his face, since it is not everyday that one faces

incident such as armed dacoity in a moving train and, therefore, the face

of the person who robs him of a valuable would always come before his

eyes whenever he recalls the incident. Therefore, I see no reason to

disbelieve the deposition of PW-14 Hemwardhan Singh with respect to

identification of appellant Mehfooz.

20. As far as the appellant Rakesh is concerned, he has been

identified by only one witness, namely, PW-4 Shashi Kant who

identified all the appellants. However, he did not claim that Rakesh was

the person who had robbed him of Rs.8000/-. According to him, it was

the person carrying a gun who had snatched Rs.8000/- from him by

showing a country made pistol to him. He also identified the appellant

who, according to him, was having gun. However, there is contradiction

in the deposition of the witnesses as to who actually was carrying a gun

at the time of dacoity; according to one witness, it was Sanjay and

according to two witnesses it was Sandeep. As noted earlier, it has

come in the deposition of one of the eye witnesses that some of the

robbers had covered their faces with handkerchief. Considering PW-4

Shashi Kant does not claim to have been robbed of his cash by the

appellant Rakesh, identification by him alone, in the facts and

circumstances of the case, would not be sufficient for maintaining his

conviction, when it has come in evidence that some of the accused

persons had covered their faces with handkerchief and according to

some of the witnesses, only 7-8 persons were involved in the incident.

The appellant Rakesh, therefore, needs to be given benefit of doubt.

21. As far as the appellant Parveen is concerned, he has been

identified by only one witness PW-4 Shashi Kant. As noted earlier, Rs.

8,000/- from the possession of PW-1 Udhal Singh were removed by a

person who was carrying a gun with him and this is not the case of the

prosecution that the appellant Parveen had a gun with him.

Though according to the police officials, the appellants Parveen,

Sandeep and Ashok had together taken them to house No. C-246,

Shahbad Dairy, J.J. Colony, PW-2 Ramesh Singh claimed that only

Ashok and Sandeep were brought by the police to his house on

29.09.2009. In view of the deposition of PW-2 Ramesh Singh, it would

not be safe to believe the testimony of the police officials as far as the

appellant Parveen is concerned. Evne otherwise, according to police

officials also, it was Ashok who produced one mobile from the room

which he had taken on rent and Sandeep had produced six mobiles as

well as some other articles kept in a polythene bag in the room which he

had taken on rent. No recovery has been attributed to the appellant

Parveen even by the police officials. In these circumstances, benefit of

doubt needs to be extended to the appellant Parveen as well.

22. Coming to the appellant Sandeep and Ashok, both of them have

been identified by the witnesses. It has come in the deposition of PW-3

Ashutosh Trivedi that it was the appellant Sandeep who was carrying a

gun with him though as noted earlier, according to another witness, it

was Sanjay who had a gun with him. However, the fact remains that he

identifies the appellant Sandeep as one of the persons involved in the

dacoity. PW-4 Shashi Kant, as noted earlier, identified all the appellants,

including Sandeep. According to PW-21 Anil Kumar Jha also, it was

Sandeep who was armed with a revolver. Despite contradictions as to

whether Sandeep was carrying a revolver or only Sanjay was, the fact

remains that this witness also identified the appellant Sandeep.

23. As noted earlier, the appellant Sandeep produced as many as six

mobile phones from the room, which he had taken on rent in the house

of PW-2 Ramesh Singh. One of the mobile phones, which the appellant

Sandeep produced from the aforesaid house, belonged to the witness

Ashutosh Trivedi. When Ashutosh Trivedi came in the witness-box as

PW-3, not only he deposed with respect to the theft of the mobile phone

from his possession, he also identified the said mobile phone Ex.P-1

having IMEI No.354118031269188. A perusal of the seizure memo

Ex.PW-2/C would show that one of the mobile phones which the

appellant Sandeep produced from his room was having IMEI No.

354118031269188. It thus stand proved that the appellant Sandeep was

found in possession of the stolen mobile phone of the witness Ashutosh

Trivedi, soon after its theft. Since the appellant Sandeep has not given

any explanation for his having possession of the aforesaid mobile phone,

his case being that no phone at all was produced by him to the police, a

statutory presumption can be drawn under Section 114 of the Evidence

Act that either he had committed theft of the aforesaid mobile phone or

he had received or retained it knowing or having reason to believe the

same to be stolen property. In the facts and circumstances of the case,

particularly the recovery immediately after the theft, the presumption

should be that he had committed a theft of the mobile phone from the

possession of the witness Ashutosh Trivedi, meaning thereby that he

was one of the persons involved in the aforesaid dacoity.

24. Coming to the appellant Ashok, it has come in the deposition of

PW-9 Prince Gupta that he was the person who had robbed him of his

mobile bearing IMEI No. 359337/02/20/096/4. As noted earlier, the

appellant Ashok had produced a mobile phone to the Investigating

Officer from the room which he along with Parveen had taken on rent in

the house of PW-2 Ramesh Singh. The mobile phone was produced by

him in the presence of Ramesh Singh and was seized vide memo

Ex.PW-2/A. A perusal of the seizure memo would show that IMEI

number of the mobile phone which the appellant Ashok produced from

his room was 359337/02/20/096/4. It thus proved that the appellant

Ashok had come into possession of the stolen mobile, soon after its theft

from PW-9 Prince Gupta. Therefore, in his case also, a statutory

presumption can be drawn that either he had committed theft of the

aforesaid phone or he had received or retained it knowing or having

reason to believe the same to be stolen property. Considering the

emphatic deposition of PW-9, identifying the appellant Ashok as the

person who committed theft of the mobile phone from him, the

presumption should be that he had snatched the said phone from Prince

Gupta during the train dacoity on 27.09.2009.

25. As far as the appellant Rohit is concerned, he has been

specifically identified by PW-21 Anil Kumar Jha as the person who had

put a razor against him and removed a mobile phone as well as cash

amounting to Rs 2,000/- from his custody. Since the appellant Rohit

must have come into close contact of PW-21 at the time he robbed him

of his mobile phone, the witness could not have committed any mistake

in identifying him during trial. Therefore, his identity was duly

established.

Ex.PW-10/C is the scanned copy of the call details of mobile

No.9805871907 having IMEI No. 35426901-5193270. The above-

referred mobile connection was obtained in the name of Anil Kumar Jha

vide application Ex.PW-10/A which has been duly proved by an official

from Airtel, namely, Tarun Khanna. A perusal of the seizure memo

Ex.PW-2/B would show that one of the phones which the appellant

Sandeep produced from the room which he had taken on rent was of

Soni Ericson having IMEI No.35426901-5193272. Thus, the stolen

mobile phone of the witness Anil Kumar Jha was recovered from the

possession of the appellant Sandeep. The case of the prosecution, as

noted earlier, is that all the appellants, including Rohit and Sandeep

were involved in the dacoity. Therefore, there is a likelihood of the

phone which the appellant Rohit snatched from the witness having been

handed over by him to Sandeep from whom it was later recovered along

with other mobile phones.

26. It has come in evidence that all the appellants had refused to join

TIP during the course of investigation. They refused to join the TIP on

the ground that their photographs had been taken by the IO and either

they or their photographs were shown to the witnesses. However, there

is no evidence of any of the witnesses having seen any of the appellants,

before they refused to join TIP nor have the appellants shown existence

of circumstances from which it can be inferred that they were shown to

the witnesses. It is thus evident that the appellant refused to join TIP

without any reasonable justification. An adverse inference can be drawn

that had they participated in the TIP, they would have been identified by

the witnesses and that precisely was the reason they refused to join the

said proceedings. It would also be appropriate to note here that all the

appellants were produced with their faces muffled and the application

for holding their TIP was made at the earliest opportunity.

27. For the reasons stated hereinabove, I see no good ground to

interfere with the conviction of the appellants Sanjay, Mahfooz,

Sandeep, Ashok and Rohit under Section 395 of IPC. However, no

separate conviction under Section 412 of IPC is justified when they have

been convicted under Section 395 of IPC. As far as the appellant

Rakesh and Parveen are concerned, for the reasons stated hereinbefore,

they need to be given benefit of doubt. They are accordingly acquitted.

28. As regards the sentence awarded to the appellants Sanjay,

Mahfooz, Sandeep, Ashok and Rohit, it cannot be said to be excessive

or harsh. Therefore, the sentence calls for no reduction. It is, however,

directed that in the event of failure to deposit the fine, the appellants

Sanjay, Mahfooz, Sandeep, Ashok and Rohit shall go undergo SI for 15

days as against one month each, awarded by the Trial Court.

MARCH 06, 2014                                            V.K. JAIN, J.
rd/BG