Praveen vs State
2015 Latest Caselaw 8857 Del

$~R-45-A to 45-C

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Judgment reserved on : 24.11.2015.
                             Judgment delivered on : 30.11.2015

+      CRL.A. 1431/2012
       PRAVEEN
                                                                 ..... Appellant
                             Through        Mr. Biswajit Patra, Adv.

                             versus

       STATE
                                                              ..... Respondent
                             Through        Mr. Tarang Srivastava, APP for
                                            the State
+      CRL.A. 1258/2012
       MOHD. IMRAN
                                                               ..... Appellant
                             Through        Ms. Nikita Sharma, Adv.
                             versus
       STATE
                                                              ..... Respondent
                             Through        Mr. Tarang Srivastava, APP for
                                            the State
+      CRL.A. 1288/2012
       MUJIB
                                                               ..... Appellant
                             Through        Ms.Nikita Sharma, Adv.

                             versus
       STATE
                                                            ..... Respondent
                             Through        Mr. Tarang Srivastava, APP for
                                            the State
Crl. Appeal Nos.1431/2012, 1258/2012 & 1288/2012                   Page 1 of 13
 CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 These appeals are directed against the impugned judgment and

order on sentence dated 12.09.2012 and 27.09.2012 respectively

wherein each of the appellants namely Praveen, Mohd. Imran and Mujib

stand convicted under Section 392/394/397 read with Section 34 of the

IPC. Each of them has been sentenced to undergo RI for a period of 10

years and to pay a fine of Rs.1 lac and in default of payment of fine to

undergo SI for one year.

2 The nominal roll of the appellants has been requisitioned. It

reflects that as on date, appellant Praveen has undergone incarceration

of 5 years and 5 months; Mohd. Imran has undergone incarceration of 5

years and 3 months and so also Mujib who has also undergone

incarceration of 5 years and 3 months. This includes the remissions

earned by the appellants.

3 The version of the prosecution was unfolded in the statement of

the complainant namely Anita Soni. She was examined as PW-1. Her

version was to the effect that on the fateful day i.e. on 10.09.2007 at

about 03:30 pm, when she had come back from her nursing job and was

in the house along with her son (PW-7) and her daughter (PW-3), the

door bell rang. She opened the door. One boy aged 25 years was

standing there. He asked about her husband. He along with three other

persons thereafter forcibly entered her house. Three of them were

having knives and one of them was having a pistol. They caught hold of

her children i.e. her son and daughter aged 13 & 10 years respectively.

On the point of knife, her children were directed to sit on the ground.

PW-1 was pushed and her back struck on the wall of the bathroom. They

forcibly removed her gold mangalsutra, her gold chain, four rings, her

Nokia mobile phone as also Rs.1,200/-. Meantime, her husband

returned. The accused persons however managed to flee.

4 Apart from the statement of PW-1, the statement of her daughter

Bhavya (PW-3) was also recorded and so also the statement of her son

Shubankar (PW-7). The husband of the victim Anil Soni was examined

as PW-11. The victim was medically examined by Dr. Siddharth Sankar

Das (PW-14); bruises were found on her body.

5 The Investigating Officer SI Surya Prakash was examined as PW-

16. He had collected the call details of the complainant's mobile number

9811053614 which revealed that after the incident of robbery, one

mobile call had been made on mobile No. 9313565665 which was

ultimately traced out to be one Geeta's phone. Inquiry from said Geeta

revealed that appellant Mujib had called her after the robbery on her

phone; he was residing near the Ganda Nala, Johri Pur. It was this link

in the evidence which has set the investigation into motion and the

Investigating Officer along with his team reached the house of Mujib on

19.09.2007. Mujib was apprehended, interrogated and arrested vide

memo Ex.PW-4/A. He had made a disclosure statement. Pursuant to his

disclosure statement, a Nokia mobile phone (Ex.P-3) and a knife (Ex.P-

4) were recovered. He disclosed the role of Mohd. Imran in the present

crime. Mohd. Imran was subsequently arrested vide memo Ex.PW-4/G.

His disclosure statement was recorded. He got recovered the gold

mangalsutra/gold chain as also a knife both of which were taken into

possession. The disclosure statement of Mohd. Imran had also revealed

the role of co-accused Praveen. Praveen was also arrested on the same

day vide memo Ex.PW-4/N. He also made a disclosure statement and

pursuant thereto, he had got recovered a gold chain and an air pistol

which were taken into possession vide memo Ex.PW-4/R.

6 The accused were produced in a muffled face before the Court of

Magistrate; Mohd. Imran was identified in the TIP proceedings by the

complainant but Mujib and Praveen had refused to join TIP. Their

submission was that they had been shown to the complainant party and

that is why they refused to join TIP.

7 On the basis of the aforenoted evidence collected by the

prosecution, the accused persons were apprehended, arrested, tried,

convicted and sentenced as aforenoted.

8 On behalf of the appellants, arguments have been heard at length.

The foremost submission made by appellant Mohd. Imran is that he is a

juvenile. The plea of juvenility has not been considered in the correct

perspective by the Trial Judge and the testimony of CW-1 and CW-2 i.e.

father of Mohd. Imran and Principal of school who had brought his

school record was illegally ignored. The ration card produced before this

Court on which a verification report had been called and which has been

filed in Court shows that although this ration card had been prepared in

the year 2005 and Mohd. Imran has been shown as 15 years of age in the

year 2005 yet a further verification shows that this ration card was not

accompanied by any document to substantiate the statement of the father

of Mohd. Imran that he was 15 years of age in the year 2005.

Submission on the juvenility of the appellant has vehemently been

argued by the learned counsel for the appellant. Her submission being

that the Juvenile Justice (Care and Protection of Children) Act, 2000 is

social legislation and if at all there is any doubt and there are two views

possible, the benefit must accrue to the appellant and he accordingly be

declared as a juvenile.

9 On merits, all the counsels submit that the identity of the

appellants is not established and there are clear admission in the version

of the eye-witnesses namely PW-1, PW-3, PW-7 and PW-11 that the

faces of the appellants were covered and if they were covered by

handkerchief as is their case, how they were identified in the Court

without giving any description of the appellant has not been answered.

The appellants are entitled to a benefit of doubt and a consequent

acquittal on this ground alone. It is further pointed out that the

recoveries are doubtful and there is no explanation as to why no public

witness had joined these recoveries. On this ground also, the appellants

are also entitled to a benefit of doubt. In the alternate, it has been argued

that if at all the conviction of the appellants is to be maintained, the

sentence be reduced.

10 Needless to state that these arguments have been refuted.

11 This Court shall first deal with the submission of Mohd. Imran i.e.

on his aspect of juvenility. The Trial Court had examined two witnesses

on the aspect of the submission of the learned counsel for the appellant

that he is a juvenile. They were examined as CW-1 and CW-2. CW-1

Mirza Khalid Beg was the Head Master of Shri Jassi Mal Primary

Vidyala who had produced the admission record of Imran showing his

date of birth is 06.08.1991. In his cross-examination, he admitted that

there was no document regarding the date of birth of Mohd. Imran to

support this statement. The father of Mohd. Imran was examined as

CW-2. He had also admitted that he had no document to show that

Mohd. Imran was born in the year 1991. In his cross-examination, he

admitted that he has six children and he does not remember the time,

year and date of birth of any member of his family except for Mohd.

Imran. This evidence has been appreciated by the Trial Judge and the

Trial Judge vide order dated 23.08.2008 had dismissed the plea of

juvenility set up by appellant Mohd. Imran. Admittedly no revision had

been filed against this order. This order has attained a finality. Learned

counsel for the appellant has submitted that the plea of juvenility can be

raised even at the appellate stage and even presuming that no revision

has been filed against the order dated 23.08.2008 the fact that new

documents have been filed in the Court i.e. ration card, the same should

be considered. As noted supra, a verification report had been called on

this document and the Investigating Officer in his report clearly stated

that even this document was without any documentary evidence to

substantiate the fact that Mohd. Imran was 15 years of age in the year

2005. The document relied upon by the appellant before this Court i.e.

the ration card does not advance the submission of the learned counsel

for the appellant any further as even this ration card is unsupported by

any document to substantiate the plea that Mohd. Imran was 15 years of

age as in the year 2005; in fact the admission of CW-2 in his cross-

examination that he does not remember the date, moth or date of birth of

any of his children except that of Mohd. Imran clearly throws a doubt on

the veracity and credibility on his testimony. The Trial Judge had

appreciated the evidence in the correct perspective. There was no

illegality in the order passed by the Trial Judge. This finding of the Trial

Judge does not call for any interference. The appellant Mohd. Imran is

held to be an adult.

12 Having arrived at this conclusion, this Court shall now examine

the merits of the controversy. PW-1 was the eye-witness and so also

PW-3 and PW-7. All of them have narrated the incident in the manner in

which it had occurred. Although in one part of her cross-examination,

PW-1 had stated that out of four persons, two had put handkerchiefs on

their faces but faces of the other two persons were covered. PW-3 had

described them to be between 20-25 years having a dark complexion

and three of them were holding knives and one them was having curly

hair and was healthy. They were identified by her in Court. She

categorically denied the suggestion that she had seen the accused

persons prior to the TIP or their photographs had been shown to them.

So also the version of PW-7 who had also admitted that two boys had

put handkerchiefs on their faces and whey they came near him, he had

seen them. This testimony shows that the said two boys had covered

their faces by handkerchiefs later on. PW-11 who had come at a later

point of time had stated that when these two boys were coming out, they

had covered their faces by handkerchiefs but he could identify them as

they passed through him, he had then identify the accused as Mujib.

13 On the aspect of identification, the TIP proceedings conducted by

the learned MM are also relevant. Learned MM Mr. Balwant Rai was

examined as PW-17. He had conducted the TIP of all the three accused

namely Mohd. Imran, Praveen and Mujib. The appellants Mujib and

Praveen had refused to join TIP. Their TIP Ex.PW-17/D to Ex.PW-17/G

have been noted. They had refused to join TIP for the reasons that they

had been shown to the complainant but the evidence of the complainant

(PW-1) clearly shows that the accused persons had not been shown to

the complainant and in fact PW-1 inspite of categorical suggestion on

this count has denied this and has clearly stated that although some

photographs had been seen by her in the police station yet they were not

the photographs of the appellants. Thus the refusal of Mujib and Praveen

to join TIP was for a unjustified reason.

14 The TIP proceedings of Mohd. Imran have been proved as

Ex.PW-17/B which shows that the complainant (PW-1) had identified

Mohd. Imran in the said proceedings.

15 The recovery from each of the appellants has also been noted.

From appellant Mujib, the mobile phone of the complainant and a knife

had been recovered. From appellant Mohd. Imran, a knife and a gold

mangalsutra had been recovered and from appellant Praveen, one gold

chain and a pistol had been recovered. All these recovered were carried

out by the Investigating Officer (PW-16) and were witnessed by HC

Vinod Kumar (PW-4) and SI Naveen (PW-18). Their signatures on the

recovery memo and their oral deposition has also been noted. Nothing

has been dented in their cross-examination which could dis-credit them.

The submission of the learned counsel for the appellants that these

recoveries were not witnessed by the public persons and the testimony

of the police officials should be ignored is an argument which has little

weight as the testimony of the police witnesses cannot be thrown out

ipso facto on the ground that they are police officials; unless and until,

the accused is able to point out that the version of the police official is

un-worthy of credit or is suspicious or that they have the ulterior motive

for implicating the appellant, their version cannot be ignored.

16 In this context, the observations of the Apex Court in 2012 (3)

SCALE 414 Govindaraju @ Govinda Vs. State of Sriramapuram P.S.

and Anr. had held as under:-

"In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or

evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case."

17 The TIP proceedings of the recovered articles were conducted by

PW-16 and have been proved as Ex.PW-17/K. These proceeding sheets

show that apart from the recovered articles, a gold mangalsutra, a gold

chain and a mobile phone, there were four similar types of articles

which had been mixed along with the recovered articles but the

complainant was able to identify her property which also further

advances the case of the prosecution. TIP of the case property also

stands proved.

18 The conviction of the appellants calls for no interference. Their

conviction is maintained under Sections 392/394/397 read with Section

34 of the IPC.

19 This Court is however inclined to modify the sentence. This is

particularly in view of the fact that each of them is in young years and

all of them have families. Parokars of the appellants were present on the

date of hearing. Praveen is stated to be aged 37 years. His wife is

present. He has two children aged 5 and 2- ½ years respectively. He is a

first time offender. Mohd. Imran and Mujib also have no criminal

history. They both are stated to be in their late 20's and have families to

support. This Court accordingly modifies the sentence of the appellants

and the period of RI 10 years is reduced to RI 7 years for each of the

appellants. The fine of Rs.1 lac which has been imposed upon them is

also reduced to Rs.10,000/- each (noting the financial crunch of each of

the appellants and their families present in Court and they are

substantiating this argument). In default of payment of fine, each of the

appellants shall undergo SI for a period of 3 months.

20     With these directions, appeals disposed of.



                                                   INDERMEET KAUR, J

NOVEMBER 30, 2015
A