Rizwan @ Bhura vs State Of Delhi
2014 Latest Caselaw 2656 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : May 15, 2014
                                DECIDED ON : May 23, 2014


+                         CRL.A. 362/2012


        RIZWAN @ BHURA
                                                         ..... Appellant
                          Through : Mr.K.B.Andley, Sr.Advocate with
                                    Mr.M.Shamikh, Advocate.


                          VERSUS


        STATE OF DELHI
                                                        ..... Respondent
                          Through : Mr.Lovkesh Sawhney, APP.
                                   SI Raj Kumar, PS Kalyan Puri.

        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Challenge in this appeal is to a judgment dated 25.02.2012 of

learned Additional Sessions Judge-02 in Sessions Case No.28/08 arising

out of FIR No.296/06 registered at police station Krishna Nagar by which

the appellant was convicted under Section 392/397 IPC and 25 Arms Act.

By an order dated 29.02.2012, he was awarded various prison terms with

fine.

2. Briefly stated, the prosecution case as reflected in the charge-

sheet was that on 03.11.2006 at about 11:45 AM, in front of Himgiri

Automobile, Kanti Nagar, Road No.57, Delhi, the appellant and his

associates Asif and Dhillu Phurkan (since acquitted) robbed complainant-

Sanjay Mahajan of `30,000/- at pistol point. On raising alarm by the

complainant, the appellant was apprehended at a short distance and the

robbed articles were recovered from his possession. He was also found in

possession of a country-made pistol with live cartridges. Statements of

witnesses conversant with the facts were recorded. During investigation,

Asif and Dhillu Phurkan were arrested and put to Test Identification

Proceedings. After completion of investigation, a charge-sheet was

submitted against the appellant and his associates; they were duly charged

and brought to trial. The prosecution examined 11 witnesses to prove

their guilt. In 313 statement, the accused persons denied their complicity

in the crime and pleaded false implication. The trial resulted in the

appellant's conviction as aforesaid. Asif and Dhillu Phurkan were

acquitted of the charges. It is relevant to note that State did not challenge

their acquittal.

3. Learned Sr.Counsel for the appellant urged that the trial court

did not appreciate the evidence in its true and proper perspective and

ignored the vital discrepancies and improvements in the statements of the

prosecution witnesses without valid reasons. The appellant and the

complainant were not medically examined. The prosecution witnesses

gave inconsistent version about the exact place of recovery of katta from

appellant's possession. On the same set of evidence, co-accused Asif and

Dhillu Phurkan were acquitted. Learned Additional Public Prosecutor

urged that the conviction is based upon fair appraisal of evidence and no

sound reasons exist to disbelieve the complainant.

4. The incident in which the complainant-Sanjay Mahajan was

robbed of `30,000/- took place at around 11:45 AM on 03.11.2006. The

complainant had come to Delhi in connection with his business and was

also robbed of a blank cheque bearing signatures of his wife-Rajni

Mahajan. The appellant-Rizwan @ Bhura was apprehended soon on the

complainant's raising alarm when the TSR in which the assailants had

fled after the crime was chased. The Investigating Officer lodged First

Information Report in promptitude after recording complainant-Sanjay

Mahajan's statement (Ex.PW-2/1) by sending rukka at 02:45 pm. In the

complaint Sanjay Mahajan gave detailed account of the incident as to how

and under what circumstances the three assailants in the TSR robbed him

of `30,000/- and cheque of State Bank of India at pistol point. He further

disclosed about the apprehension of the appellant and recovery of the

country-made pistol used to put him in fear. Since the FIR was lodged in

promptitude without any delay, there was least possibility of the

complainant to falsely implicate the appellant with whom he had no prior

animosity. The appellant was not even resident of Delhi and had travelled

from Himachal Pradesh in connection with his business. In his Court

statement, he supported the prosecution in its entirety and proved the

version given to the police at the earliest available opportunity without

any major deviation. He identified Rizwan @ Bhura to be the assailant

who was armed with a pistol and used it to rob him of `30,000/- and a

cheque. In the cross-examination, the complainant was confronted with

the statement (Ex.PW-2/1) where some of the facts mentioned in the

examination-in-chief were omitted to be recorded. He further disclosed

that after the incident, he had called the police at 100 and the PCR had

arrived after 30/45 minutes. Rizwan @ Bhura was given beatings by the

public. He, HC Sompal and 5/7 public persons had given chase to the

TSR. Scanning the complainant's testimony as a whole, it reveals that

despite in-depth cross-examination, no material discrepancies or

contradictions could be extracted to shatter it. Of course, the complainant

made some improvements in his deposition before the court and the facts

stated by him did not find mention in the statement (Ex.PW-2/1)

However, these improvements are minor in nature and do not affect the

basic structure of the prosecution case. So far as the identity of the

appellant and the role attributed to him in the crime is concerned, he was

certain that the appellant was the author of the crime. No ulterior motive

was assigned to the complainant to falsely recognize and identify the

appellant. The complainant had travelled on the day of his examination

from Himachal and had produced a ticket (Ex.2/D1) in that regard. He

was not going to be benefited by making false statement to implicate the

appellant. Since the appellant was apprehended at a short distance after

the incident, there was no necessity to put him to Test Identification

Proceedings as the complainant identified him at the spot. The police also

recovered TSR No. DL1RJ 1594 in which the assailants were travelling.

This TSR (Ex.P-5) was released to PW-7 (Sunil Kumar Tyagi) on

superdari. The appellant failed to explain as to how and under what

circumstances, the TSR which was in their possession came to be seized

by the police. PW-7 thus corroborates the version given by the

complainant. Minor contradictions and discrepancies highlighted by the

appellant's counsel do not affect the core of the prosecution case to

discredit the cogent and unimpeachable testimony of the complainant.

Acquittal of co-accused Asif and Dhillu Phurkan for reasons detailed in

the judgment does not result the appellant's acquittal when there are

specific and cogent evidence to establish his involvement in the crime. It

is always open to a court to differentiate the accused who had been

acquitted from those who was/were convicted. Simply because the

complainant and the appellant were not medically examined, it won't

affect the prosecution case.

5. All the relevant submissions of the appellant have been dealt

cogently by the prosecution in the impugned judgment and no deviation is

called for. Minimum sentence prescribed under Section 397 IPC is seven

years, which cannot be reduced or modified. The appellant has been

sentenced to pay `5,000/- under Section 392 IPC; `10,000/- under Section

397 IPC and `1,000/- under Section 25 Arms Act. Section 397 IPC does

not regulate imposition of fine. It only prescribes minimum sentence of

imprisonment which cannot be less than seven years. Hence fine sentence

imposed under Section 397 IPC is not permissible and is set aside.

Default sentence for non-payment of fine under Sections 392 IPC and 25

Arms Act is reduced to SI for fifteen days and ten days respectively.

Other terms of the sentence order are left undisturbed.

6. The appeal stands disposed of in the above terms. Trial

Court record be sent back forthwith along with the copy of this order.

(S.P.GARG) JUDGE May 23, 2014 sa