Parvez Alias Bablu Chikna vs State
2014 Latest Caselaw 2453 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Judgment reserved on : 08.05.2014
                                     Judgment delivered on :15.05.2014

+   CRL.A.188/2006
    PARVEZ alias BABLU CHIKNA                  ..... Appellant
                   Through  Mr.Abhay Kumar, Advocate.
                   versus
    STATE                              ..... Respondent
                   Through  Mr.Varun Goswami, APP.
+   CRL.A.195/2006
    ARUN GUPTA alias MONU                      ..... Appellant
                   Through  Mr.A.S.Rajput, Advocate.
                   versus
    STATE                              ..... Respondent
                   Through  Mr.Varun Goswami, APP.
+   CRL.A.196/2006
    FURKAN alias SONU                  ..... Appellant
                   Through  Mr.A.S.Rajput, Advocate.
                   versus
    STATE                              ..... Respondent
                   Through  Mr.Varun Goswami, APP.
+   CRL.A.227/2006
    DILAWAR alias DILSHAD                      ..... Appellant
                   Through  Mr.A.S.Rajput, Advocate.
                   versus
    STATE                              ..... Respondent
                   Through  Mr.Varun Goswami, APP.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 There are four appellants before this Court i.e. Parvez @ Bablu

Chikna, Furkan @ Sonu, Arun Gupta @ Sonu & Dilawar @ Dilshad.

They are aggrieved by the impugned judgment and order of sentence

dated 18.02.2006 and 20.02.2006 respectively wherein they have been

convicted under Section 392 read with Section 34 of the IPC and each of

them has been sentenced to undergo RI for a period of 5 years and to

pay a fine of Rs.5,000/- and in default of payment of fine, to undergo RI

for one year. Benefit of Section 428 of the Cr.PC had been granted to

the appellants.

2 Nominal rolls of the appellants have been requisitioned. They

reflect that as on date when Arun Gupta @ Sonu, Furkan @ Sonu and

Dilawar @ Dilshad had been granted bail, they had suffered

incarceration for 5- ½ months; co-convict Parvez @ Bablu Chikna, on

the date of grant of his bail, has suffered incarceration for 5 months.

3 Version of the prosecution is that on 26.04.2002 on a PCR call,

the local police of PS Anand Vihar had reached the house of Meena

Goyal (PW-2); robbery had been committed in her house; her household

articles were lying scattered. Her statement (Ex.PW-1/A) was recorded.

She disclosed that at about 11:30 am when she along with her servant

Surender Kumar (PW-3) and Birju were at home, the door bell rang; she

asked PW-3 to open the door through which four boys forcibly entered;

one boy put a pistol on her head and asked her to handover the almirah

keys; the accused persons ransacked her valuables; she was tied down

and confined in the bathroom.

4 It was on this statement (Ex.PW-1/A) that the present FIR

(Ex.PW-4/A) under Sections 392/397 read with Section 34 of the IPC

had been registered through HC Devender (PW-4). Investigation was

initially marked to SI Meghraj (PW-1). Crime team had been called. Site

plan (Ex.PW-1/C) was prepared. Statement of Surender (PW-3) was

also recorded. On 12.05.2002, the subsequent investigating Officer SI

Dinesh Arya (PW-10) along with HC Chandervir (PW-9), on the basis

of a secret information, arrested Dilawar @ Dilshad, Furkan @ Sonu,

Arun Gupta @ Sonu from ISBI Anand Vihar. Their arrest memos

(Ex.PW-9/D, Ex.PW-9/E and Ex.PW-9/F) were prepared. Their

disclosure statements (Ex.PW-9/A1, Ex.PW-9/B1 and Ex.PW-9/C1)

were recorded. Pursuant to the disclosure statements of Arun Gupta @

Sonu and Dilawar @ Dilshad, certain articles of clothing were recovered

which were seized vide separate memos (Ex.PW-9/D1 and Ex.PW-

9/E1).

5 The TIP of the aforenoted three accused persons was conducted

through Rakesh Kumar, learned MM (PW-6) which had initially been

fixed for 15.05.2002 and thereafter re-fixed for 17.05.2002. All the

aforenoted accused persons had refused TIP although they had been

warned that their refusal would lead to drawing of an adverse inference

against them. These TIP proceedings have been proved as Ex.PW-6/B to

Ex.PW-6F. After the date of refusal of TIP, PW-10 had taken one day

police remand of accused Dilawar @ Dilshad; this was on 18.05.2002;

Dilawar @ Dilshad led the police party to the place of incident i.e. the

house of the complainant where the complainant identified Dilawar @

Dilshad as one of the persons who had committed robbery in her house.

6 On 19.07.2002, the fourth accused Parvez @ Bablu Chikna had

surrendered before the Court and he was formally arrested vide memo

(Ex.PW-10/A). His TIP was conducted on 22.07.2002 through PW-6; he

also refused to participate in the TIP although PW-10 had specifically

informed him that his non-joining of TIP would lead to drawing of an

adverse inference against him. These proceedings have been proved as

Ex.PW-6/J to Ex.PW-6/K.

7 The accused persons in their statements recorded under Section

313 of the Cr.PC had denied the allegations made against them stating

that they are innocent and have been falsely implicated in the present

case.

8       No evidence was led in defence.

9       In view of the aforenoted evidence which was brought on record,

all the accused persons were convicted and sentenced as aforenoted.

10 On behalf of the appellants, arguments have been addressed in

detail. It is pointed out that the impugned judgment convicting the

appellants suffers from a grave illegality as the identity of the appellants

was not established and in the absence of which the conviction which

has followed is liable to be set aside. It is pointed out that three of the

accused persons had been arrested on 12.05.2002 and the fourth accused

persons had been arrested on 22.07.2002 but PW-2 and PW-3 who are

the eye-witnesses have categorically stated that they had seen the

accused persons in the police stations prior to their identification and as

such the appellants had rightly refused to join TIP proceedings and the

trial Court drawing an adverse inference for not joining TIP has again

committed an illegality. Learned counsel for the appellants has placed

reliance upon a judgment of the Apex Court reported as AIR 2007 SC

1729 Ravi @ Ravichandran Vs. State as also AIR 1979 SC 1127 Kanan

and others Vs. State of Kerala to support his submission that the test

identification parade is an important piece of evidence and especially in

those cases where the accused are unknown persons; this safeguard is

necessary for the purpose of testing the veracity of the witness with

regard to his capacity to recognize such persons who are otherwise

unknown to him. It is pointed out that in this case the assailants who are

alleged to be robbers were admittedly unknown to the victim and her

servant. Thus these witnesses having identified the accused persons for

the first time in Court and the Court relying upon such an identification

which is a useless identification has committed a great error. Learned

counsel for appellant Parvez @ Bablu Chikna in the alternate has prayed

for leniency in sentence. His submission is that in case this Court is not

inclined to interfere with the order of conviction, this Court may think it

fit to sentence the appellant for the period already undergone by him and

for this proposition, reliance has been placed upon 2004 (1) SCALE

Aslam Vs. State of Uttar Pradesh.

11 Arguments have been refuted by the learned public prosecutor. It

is pointed out that on no count does the impugned judgment call for any

interference. Submission being that there is no doubt that the evidence

of identification in TIP is an important piece of evidence but it is only

for the purposes of corroboration and it is not a substantive piece of

evidence and whether the victim or eye-witness had seen them (as in this

case to note the features of the assailants), their identification for the

first time in Court is valuable. That apart the trial Judge had rightly

drawn an adverse inference against the appellants for not having joined

the TIP; submission being that testimony of PW-2 and PW-3 nowhere

suggests that the accused persons had been shown to the complainant

party prior to holding of the TIP.

12 Arguments have been heard. Record has been perused.

13 PW-2 is the complainant. She has on oath detailed the manner in

which the incident had occurred deposing that on 26.04.2002 at about

11:30 pm when she was present in her house along with her servants

Surender Kumar (PW-3) and Birju, the appellants had rung the bell; on

her servant opening the door, four persons forcibly entered the room;

one had a pistol and placed at her on her temple; the other assailant

caught hold of her servant; remaining two assailants went upstairs. She

was forced to hand over the keys of the almirah; she had deposed that

Parvez @ Bablu Chikna had taken away her gold ornaments; accused

Arun Gupta @ Monu was present and searched the almirah of the

house; he had consumed almonds in her house; accused Dilawar @

Dilshad had slapped her on her resistance. Furkhan @ Sahu has also

committed robbery. In her cross-examination which was lengthy, she

had stuck to her stand. In one part of her cross-examination, she had

stated that the Investigating Officer (PW-10) had brought accused

Dilawar @ Dilshad in custody to her house on 29/30.04.2002. In another

part of her cross-examination, she had stated that this was one week

after the date of the incident meaning thereby that it would

approximately be on 03/04.05.2002. Accused Dilawar @ Dilshad was

not covered when he was brought before her. It is this version of PW-2

which has been highlighted by the learned counsel for the appellants to

substantiate his argument that accused Dilawar @ Dilshad was shown to

the complainant prior to the TIP as the TIP of Dilawar @ Dilshad in this

case was admittedly held on 17.05.2002. In another part of her cross-

examination, PW-2 has stated that she had met many criminals during

the period of investigation but she had identified only the accused

persons now present in Court. She denied the suggestion that she is

identifying the accused persons for the first time in Court.

14 Relevant would it be to state that in her complaint Ex.PW-1/A

while detailing the incident, PW-2 had stated that she could identify the

accused persons if they are brought before her. This is also evident from

her narration which shows that accused persons had stayed in her house

for sometime; they had entered the house at 11:30 pm; they committed

robbery by putting pistol to her head; they also consumed almonds and

were dancing; they had put on the music; they ransacked the house not

only on the ground floor but also on the first floor at leisure. In was in

this context that Ex.PW-1/A had recorded that PW-2 would be in a

position to identify the accused persons if they are brought before her.

15 PW-3 was another eye-witness. He has corroborated the version

of PW-2. In his lengthy cross-examination, he has also stuck to his

stand. In one part of his cross-examination, he has stated that he had

seen Parvez @ Bablu Chikna when he was brought by the police after

his arrest admitting that the police had asked him to identify him and on

the same breath denied the suggestion that he had identified the accused

Parvez @ Bablu Chikna at the instance of the police. He admitted that

the police had not called him to identify the accused persons.

16 It is these versions of PW-2 and PW-3 which have to be

scrutinized to answer the submission of the learned counsel for the

appellants as to whether the appellants had been shown to the

complainant party prior to their TIP.

17 Record further shows that three of the appellants Furkan @ Sonu,

Arun Gupta @ Sonu & Dilawar @ Dilshad had been arrested on

12.05.2002. This is clear from the version of PW-10 (SI Dinesh) who

had been accompanied by HC Chandervir (PW-9). Their arrest memo

Ex.PW-9/D, Ex.PW-9/E and Ex.PW-9/F have also been perused which

show that the arrest had taken place on 12.05.2002. No suggestion has

also been given to any of these witnesses that the aforenoted three

accused persons were not arrested on that day. The fourth accused

Parvez @ Bablu Chikna had been arrested later on; he had surrendered

in the Court and he was formally arrested on 22.07.2002. His arrest

memo has been proved as Ex.PW-10/A. No suggestion has been given

to this witness either that he was not arrested on the said date.

18 The TIP now becomes relevant. The TIP of the appellants Furkan

@ Sonu, Arun Gupta @ Sonu & Dilawar @ Dilshad had been

conducted on 17.05.2002 although the initial date was 15.05.2002.

These proceedings have been proved as Ex.PW-6/B to Ex.PW-6/E. They

evidence that all the appellants have been produced in muffled face. All

of them refused TIP. Arun Gupta @ Sonu refused TIP stating that he

had been shown to the witnesses before; Furkan @ Sonu had refused

TIP stating that his photograph had already been shown to the witnesses

and that is why he was not ready to join the TIP. Dilawar @ Dilshad

also refused TIP on the ground that his face had been shown to the

complainant prior in time. TIP of the fourth appellant Parvez @ Bablu

Chikna had been conducted on 23.07.2002 vide Ex.PW-6/J to Ex.PW-

6/K; he had also refused TIP on the ground that his photograph had been

shown to the complainant.

19 Before this Court, the defence of Arun Gupta @ Sonu and Parvez

@ Bablu Chikna is different; although in the TIP they have both stated

that their photographs had been shown to the complainant party yet

before this Court they have stated that they had been shown to the

complainant prior in time. Be that as it may, this Court is not inclined to

give any credence to this submission of the learned counsel for the

appellants. When three of the accused had been arrested on 12.05.2002

and the TIP had been conducted shortly thereafter i.e. on 17.05.2002

(although the application had been made on 15.05.2002) and there being

nothing on record to suggest that PW-2 & PW-3, during this intervening

period, had even been taken to the police station or the accused persons

had been shown to them either through face or photograph, the refusal

for TIP by all the aforenoted persons was without any valid reason and

for which an adverse inference is likely to be drawn against all the

aforenoted three appellants. So also qua the convict Parvez @ Bablu

Chikna. He had been arrested on 22.07.2002. His TIP was conducted on

23.07.2002. There was no occasion in this intervening one day time for

the complainant party to have seen the convict Parvez @ Bablu Chikna.

In fact no suggestion has been given either to the Investigating Officer

(PW-10) or his accompanying constable (PW-9) suggesting that the

accused persons had either been brought to the Court in this intervening

period or that the complainant party had visited either the police lock-up

or the jail where they could have identified the accused. This defence

has only been set up in the course of arguments. This is clear from the

fact that the additional argument of the learned counsel for the

appellants is that the accused persons had actually been arrested prior to

12.05.2002 but they had thereafter been let off by the Investigating

Officer and re-arrested only on 12.05.2002. This submission of the

learned counsel for the appellants has to be noted only to be rejected.

Apart from the fact that there is no such documentary evidence

supporting this stand, no cross-examination has been effected of any of

the witnesses on this count, even otherwise, it would be a highly

improbable situation that the Investigating Officer who is interested in

the success of his case would arrest the accused persons and then let

them go free hoping that they would come back in his net.

20 This Court is thus of the categorical view that the refusal to join

TIP by all the appellants leads the Court to draw an adverse inference

against them. Ex.PW-1/A had also noted that the incident had continued

for some time. The complainant in her complaint had clearly stated that

if the accused persons are brought before her, she would be able to

identify them. Where the accused persons inspite of request to join TIP

had declined the request, the correct identification of the accused

persons in Court by the complainant (PW-2) and the eye-witness (PW-3)

in this background would suffer from no vice. The accused persons are

not entitled to any benefit on this count.

21 The Apex Court has time and again held that Section 9 of the

Evidence Act which deals with the relevancy of fact presupposes that

the purpose of identification in TIP is to test the observation, grasp,

memory, capacity to recapitulate of a witness and where the witness has

had a chance to distinguish the features of the accused person in the

incident in it had occurred even though the accused was a stranger and

thereafter even in the absence of a TIP, the identification in Court would

attain value (see:- (1998) 3 SCC 625 Ronny @ Ronald James Alwaris &

others Vs. State of Maharashtra).

22 In the present case, the situation is far stronger. It is not as if the

TIP has not been held. TIP has been held but the accused persons

without any valid reasons had refused the TIP. The versions of PW-2

and PW-3 are cogent and clear. The offence under Section 392/34 of the

IPC for which the accused persons had been convicted clearly stand

established. As rightly pointed out by the learned public prosecutor that

these kind of offence are on rise in the society and some kind of

deterrent must be imposed upon such persons who have the audacity to

enter houses in day time and commit robbery on helpless senior citizens

and women.

23 This Court also notes that the crime relates to the year 2002 and

more than 12 years have passed since then. The appellants are on bail

and as noted supra, out of total period of incarceration of 5 years which

has been ordered against each of them, they have suffered incarceration

of 5-- 5- ½ months. The Court also notes that the fine has since been

paid.

24 This Court keeping in mind the object for which a punishment is

to be imposed and balancing both the pros and cons of the factual

scenario is inclined to modify the sentence and the sentence of

incarceration of 5 years is reduced to RI 3 years. The fine is enhanced

and each of the appellants is directed to pay a fine of Rs.20,000/- and in

default of payment of fine, to undergo RI for 6 months.

25 Appellants be taken into custody to serve the remaining sentence.

Their bail bonds cancelled. Sureties discharged.

26      Appeals disposed off in the above terms.



                                                    INDERMEET KAUR, J
MAY 15, 2014
A