Delhi High Court
Gulam Jilani @ Kallu vs Govt Of Nct Of Delhi on 9 November, 2020
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 09.11.2020
+ CRL. A. 619/2017 and CRL.M.A. 6306/2020
GULAM JILANI @ KALLU .....Appellant
Versus
GOVT. OF NCT OF DELHI ..... Respondent
Advocates who appeared in this case:
For the Appellant :Mr Kanhaiya Singhal, Mr Prasanna and
Mr Ajay Kumar, Advocates.
For the Respondent :Mr Amit Gupta, APP for State.
AND
+ CRL.A. 620/2017 & CRL.M.A. 34451/2019, CRL.M.A.
9008/2020, CRL.M.A. 9009/2020 && CRL.M.A. 9010/2020
SANDEEP .....Appellant
Versus
GOVT. OF NCT OF DELHI ..... Respondent
Advocates who appeared in this case:
For the Appellant :Mr Adit S. Pujari, Advocate (DHCLSC),
Mr Chaitanya Sundriyal and Ms Tusharika
Mattoo, Advocates.
For the Respondent :Mr Amit Gupta, APP for State.
AND
+ CRL. A. 621/2017 and CRL.M.(BAIL)1794/2019
PRADEEP .....Appellant
Versus
GOVT. OF NCT OF DELHI ..... Respondent
Signature Not Verified
digitally signed CRL. A. Nos. 619, 620, 621& 900 of 2017 Page 1 of 26
by:DUSHYANT
RAWAL
Advocates who appeared in this case:
For the Appellant :Mr Kanhaiya Singhal, Mr Prasanna and
Mr Ajay Kumar, Advocates.
For the Respondent :Mr Amit Gupta, APP for State.
AND
+ CRL. A. 900/2017 and CRL.M.(BAIL) 249/2019
KHOKAN @ GUDDU .....Appellant
Versus
STATE (G.N.C.T. OF DELHI) ..... Respondent
Advocates who appeared in this case:
For the Appellant :Mr Anwesh Madhukar and Ms Prachi
Nirwan, Advocates.
For the Respondent :Mr Amit Gupta, APP for State.
CORAM
HON'BLE MR JUSTICE VIBHU BAKHRU
JUDGMENT
VIBHU BAKHRU, J
1. The appellants have filed these appeals impugning a judgment
dated 24.05.2017 passed by the learned ASJ-04, Rohini Courts,
whereby they were convicted for committing an offence punishable
under Sections 392/34 of the Indian Penal Code, 1860 (hereinafter
„IPC‟). The appellants also impugn an order on sentence dated
27.05.2017, whereby they were sentenced to undergo rigorous
imprisonment for a period of seven years along with a fine of ₹3,000
each and in default of payment of fine, to undergo simple
imprisonment for a period of three months.
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RAWAL
2. The appellants were charged with committing offences
punishable under Sections 392/411/34 of the IPC. In addition,
Sandeep (the appellant in Crl. A. 620/2017) was also charged with
committing an offence punishable under Section 397 of the IPC. The
Trial Court acquitted the appellants of all charges, other than the
charge of committing an offence punishable under Section 392 of the
IPC, as the court did not believe that the prosecution had established
that the goods recovered from the appellants were those that were
stolen. Further, the complainant (who was also the eyewitness) resiled
from his earlier statement that he had seen the accused Sandeep with
the pistol. Before the court, he testified that he had seen the said
weapon in the hands of the accused Khokhan @ Guddu (the appellant
in Crl.A 900/2017). Accordingly, the accused Sandeep was acquitted
of the charge for committing an offence punishable under Section 397
of the IPC
3. Whilst the appellants do not contest that a robbery had been
committed, they urge that the prosecution has failed to prove their
involvement in commission of the said offence, as the testimonies of
the material witnesses identifying them are inconsistent. The
appellants further contend that, in any event, the testimonies of the
witnesses identifying them as the offenders, are unreliable, as they
were shown to the witnesses in the police station and the court
premises prior to the TIP proceedings.
4. In the early hours of 17.01.2007, a PCR call was received
regarding a robbery at A-12, Industrial Area, Phase-1, Mangolpuri,
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RAWAL
Delhi. The information was transmitted to PS Mangolpuri and was
received at 3.30 AM by Ct. Surya Prakash, who was on duty at the
material time. He entered the same as DD no. 10B (Ex. 4/A). The
same was marked to ASI Kewal Singh and Ct Ravinder. They
proceeded to the spot (A-12, Industrial Area, Phase-1, Mangolpuri,
Delhi) where they met the complainant (Sonu) and recorded his
statement (Ex.PW10/A). He stated that he was employed as a Manager
with the Transport Agency located at A-12, Industrial Area, Phase - 1
Mangolpuri and his father, Om Prakash, was the owner of the said
Transport Agency. He stated that in the intervening night of
16.01.2007 and 17.01.2007, he along with three [sic] of his workers,
namely, Krishan, Ishwar @ Mintoo and Rajesh Kumar @ Bangali
were sleeping on the duchhati in the office room. In addition, two
security guards named Arvind and Devnath were on duty outside the
office. They were armed with lathis. He alleged that at about 02:00
am, one person was seen bringing the two security guards inside the
premises on a gunpoint. He brought the guards near them at the
duchhati. He stated that the shutter of their office was open and both
the security guards were inquiring from the said person as to why they
were removing the goods. At that time, they noticed that the said
person was aged about 20 to 25 years. He was of a medium built and
height and was wearing a black jacket. He pointed the pistol towards
them and demanded that all of them to continue lie down where they
were and threatened that he would shoot them, if they did not do so.
The complainant further stated that the three miscreants, who were
loading goods in the tempo in front of the office, were also aged
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between 20 and 25 years. He stated that while they were doing so,
another tempo (bearing registration No. HR-56-2576), which was
driven by one Bansi, arrived there for transporting goods to Rohtak.
He stated that one of the miscreants took the keys of the said tempo
and also brought Bansi to them. Thereafter, the said miscreants took
away three of their mobile phones with nos. 9312281758, 9213565850
and 9215800964 as well as the mobile phone of the tempo driver,
Bansi (No. 09215800953). He alleged that the said miscreants loaded
forty-two bags of the silver karahis of the make Sunrise, eighteen
cartons of inverter parts, four cartons of Action shoes and twenty-three
boxes of Boroplus. The robbers then closed the shutter of the office
from outside and fled after looting the goods. He also stated that the
said accused deflated the tyres of the tempo, which was driven by
Bansi. He stated that he could recognize the accused, if they were
brought before him.
5. On the basis of this information, a rukka was prepared. And, the
FIR in question - FIR no. 135/2007, under Sections 392/397/411/34 of
the IPC was registered with PS Mangolpuri.
6. On 17.02.2007, the accused (appellants) were apprehended by
the Special Staff, South District, on the basis of a secret information.
Inspector Naresh Kumar (PW-18) testified that on 17.02.2007, he had
a secret information, on the basis of which, they had taken their
positions at the given spot. He stated that at about 08:00 pm, three of
the accused, namely, Sandeep, Khokhan @ Guddu and Gulam Jilani
came to the spot on foot and had stood near the corner of the road
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RAWAL
towards the forest. Five minutes later, one Tata tempo 407 (bearing
Registration No. DL-1LE-0041) came to the spot from the direction of
MB Road and had halted there. Two persons alighted from the said
tempo including the accused Pradeep. Thereafter, all the five persons
proceeded towards the forest area. On being pointed out by the secret
informer, the four accused (the appellants herein) were apprehended.
However, their accomplice managed to escape.
7. The accused were arrested in FIR No. 135/2007, under Sections
399/402 of the IPC, registered with PS Okhla Industrial Area. He
further stated that during the course of investigation relating to the
said FIR, the accused disclosed their involvement in a number of cases
including the present case. On the basis of the disclosure statements,
certain recoveries were made. In all, two sewing machines of the make
Kajal, twenty-eight packets of Boroplus cream and three Power Link
UPS were recovered. The Boroplus packets were allegedly recovered
at the instance of the accused Pradeep; one sewing machine and one
Power Link Home UPS were recovered at the instance of the accused
Gulam Jhilani; one sewing machine was recovered at the instance of
the accused Sandeep; and one Power Link Home UPS was recovered
at the instance of the accused Khokhan @ Guddu.
8. On 19.02.2007 at about 07:20 pm, information was received
over telephone from the Special Staff that the accused had been
arrested in FIR No. 135/07, registered with PS Okhla Industrial Area.
Their disclosure statements had been recorded and recoveries had
been made pursuant thereto. The said information was entered as DD
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No. 62B. On receipt of the said DD, the IO went to the office of the
Special Staff, South District, New Delhi and collected a photocopy of
the FIR bearing No. 135/07, under Sections 399/402/34 of the IPC and
Sections 25/54/59 of the Arms Act, 1959 registered with PS Okhla,
New Delhi on 17.02.2007. Along with the same, he also collected
copies of the arrest memos of the accused; the photocopies of the
disclosure statements; pointing out memos of the accused person; and
seizure memos of the recovered articles and tempo bearing number
DL-1LE-0041. The statement of one of the officials of the Special
Staff was recorded under Section 161 of the Cr.PC. The production
warrants were sought from the concerned court. The accused were
then produced in court on 24.02.2007 and they were formally arrested.
Their separate disclosure statements were recorded. On the same day,
the IO also filed an application for conducting the TIP of the accused
but they refused to participate in the TIP proceedings. Thereafter, the
IO sought for police custody of the accused for a single day, which
was granted. The IO took the accused to the place of occurrence on
27.02.2007. He recorded the pointing out memo and also recorded the
supplementary statements under Section 161 of the Cr.PC. The
complainant and Ishwar (PW13) identified the accused as the persons,
who had committed the crime, on 27.02.2007.
Evidence
9. In order to prove its case, the prosecution examined twenty-one
witnesses. The defence did not examine any witnesses. The evidence
of the witnesses that were at the spot (A-12, Industrial Area, Phase-1,
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Mangolpuri, Delhi) at the material time are relevant and briefly noted
below.
10. Krishan was examined as PW-6. He stated that in the
intervening night of 16.01.2007 and 17.01.2007, he was present at the
office of Om Transport Agency along with Rajesh, Mintu and Sonu.
All four were at the ground floor. Two security guards were also
present. At about 2/2:15 a.m., two persons came upstairs along with
the guards and one of those persons had a revolver in one hand and a
sword in the other. The other person also had a sword in his hand. The
two persons pointed the revolver and told him (PW-6) and the other
persons to remain quiet. One driver named Bansi came with his
tempo. The other persons brought Bansi upstairs and snatched the
keys of the tempo. They also deflated the tyres of that tempo. He (PW-
6) identified the four accused in court. He testified that the accused
Pradeep had a revolver and sword and the accused Gulam had a sword
in his hand. He stated that accused persons took some cartons of
Boroplus, aluminium karahi, inverters and other cartons, which he
could not recall. The accused also took their mobile phones. In his
cross-examination, he affirmed that he was not working at the said
transport office and he would sleep there at night since the agency
belonged to his uncle (fufa). He would help his uncle with his work.
He affirmed that the guards did not lock the shutter since they sit near
them. The guards were armed with lathis. He was confronted with his
statement (Ex. PW6/DA), where the fact of the sword was not
recorded in the same. He stated that Bansi had come after about 15
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minutes after the accused persons had started loading the goods. He
affirmed that Bansi was brought down from his tempo on knifepoint.
He could not recall if he had stated this in his statement to the IO. He
stated that Sonu informed the police on a mobile that he had borrowed
from the neighbour and that person was present, when the police was
informed. He affirmed that he had seen the accused persons in court
after the incident and not before that.
11. Arvind, the security guard, deposed as PW-7. He stated that in
the intervening night of 16.01.2007/17.01/2007, he was on duty along
with Devnath. At about 2-2:30 a.m., four persons came to the gate of
the godown. One person had a revolver and pointed the same at him
and Devnath, and thereafter, told them to take the four persons inside
the godown. Inside the godown, three workers were sleeping and they
were awoken by the assailants. The assailants took their phones. One
of the assailants took out a knife and threatened them that if they
raised an alarm they would kill them. He stated that he could not
identify the assailants as their faces were muffled. At this stage, the
learned PP cross-examined PW-7, as he was resiling from his earlier
statement. PW-7 affirmed that the person holding the revolver was
wearing a black coloured jacket. At the time of the incident, Sonu,
Krishna, Ishwar and Rajesh were sleeping on the second floor of the
godown. He affirmed that Bansi, a tempo driver, came there and his
mobile was also taken away by the assailants. He affirmed that he had
told the police that he could identify the assailants but could not do so
anymore due to lapse of time.
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12. Bansi Lal deposed as PW-9. He stated that on
16.01.2007/17.01.2007, he had come to Mangolpuri at Om Transport
for loading parchune in his tempo, at about 2-2:30 a.m. Two persons
asked him to come down from his tempo. One of them had a knife and
one had a revolver. They took him to the roof of the agency where
there is one room. There, a blanket was put on him and they snatched
his mobile. The chowkidar was also present there. In his cross-
examination, by the PP, he affirmed that the persons who asked him to
get down from the tempo, were about 20 to 25 years of age. One of
their associates was inside the agency, when they took him inside. He
was wearing a black jacket. He could not identify the accused present
in court, on the day of his deposition. In his cross-examination, he
stated that he had not seen the accused persons present in court prior
to the date of his deposition.
13. Sonu (the complainant) deposed as PW-10. He stated that in the
intervening night of 16.01.2007/17.01.2007, he along with three of his
workers namely Krishan, Rajesh and Ishwar were sleeping on the
duchatti of the transport agency. Two security guards were on duty
outside the office. At about 2/2:10 am, he heard one of the guards
saying "why you are loading goods". He woke up and saw that one
person was bringing both the security guards, on the duchatti, towards
him on gunpoint (revolver). Thereafter, that person pointed the
revolver at him and threatened him. Three other persons were loading
the goods from the transport into a tempo. They loaded the goods and
went away. While loading the goods, one tempo driven by Bansi
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came. The accused snatched his mobile and brought him to where
PW-10 and the others were. He stated that he went to the nearby
Chaudhary Transport and made a call at 100 number. He also called
his brother, Vinod. PW-10 identified the accused in open court. He
stated that on 27.02.2007, the police had come to their office and all
four accused were in their custody. After seeing them, he told the
police that they had taken the goods from the office. In his cross-
examination, by the PP, he stated that he had not told the police that
on 27.02.2007, the accused Sandeep was carrying a pistol. He then
stated that he had told the police that the accused Khokhan was
carrying the pistol on the day of the incident. In his cross-examination,
he stated that he did not maintain any register regarding the booking
and dispatch of goods. He stated that the shutter of their agency was
kept open. He stated that the local police had prepared the site plan at
his instance. On 27.02.2007, the police officials had come along with
the accused to his office, at about 04:00 pm.
14. Devnath was examined as PW-11. He stated that in the
intervening night of 16.01.2007/17.01.2007, he along with his nephew
were on duty at Om Transport Office, Industrial Area, Mangolpuri, as
security guards through Vishal Security. At about 02:30 am, four
persons entered the factory premises with weapons. They took him
inside the office. The assailant showed his pistol and threatened them.
The assailants covered the faces of those present in the office with
blankets and snatched their mobile phones. One driver brought a Tata
truck into the premises for loading the material. One of the assailants
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confined the driver of that truck in the same room and punctured the
tyre of the truck. He stated that he could only identify the assailant,
who was holding the pistol. PW-11 identified the accused Khokhan in
court and stated that he was the person who had shown him the pistol.
He stated that he could not identify the others since they had covered
their faces with a cloth. In his cross-examination, conducted by the PP,
he denied that he could identify all the robbers. He stated that he had
told the police that the robbers had their faces covered. He denied that
the accused Pradeep, Sandeep and Ghulam were the same persons
who came with the accused Khokhan. He stated that it would be
wrong to suggest that the description of the accused Pradeep, Sandeep
and Ghulam are matching with the robbers who had come along with
accused Khokhan. In his cross-examination, he stated that he saw a
weapon only in the hand of one person, the accused Khokhan and the
other accused were empty handed. He stated that the transport office
has only one floor and there was nothing constructed on its roof. He
stated that the police came to the agency at about 05:30/06:00 am.
15. Rajesh Kumar deposed as PW-12. He stated that in January,
2007, he was working at Om Transport Agency as a sweeper. On the
intervening night of 16.01.2007/17.01.2007, five-six persons entered
the agency and out of them, one person had a country made pistol and
two had knives in their hands. The assailants showed the gun to the
guards and brought them towards the duchatti. PW-12 identified the
accused in court and stated that the accused Khokhan had a country
made pistol in his hand. He stated that one or two persons had covered
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their faces. In his cross-examination, he affirmed that the police never
recorded his statement. He stated that the police came at about 02:30
am.
16. Ishwar @ Mintu deposed as PW-13. He stated that in January,
2007 he was working as a supervisor at Om Transport Agency. He
stated that at 02/02:30 am they were asleep on the parchati. The
guards were brought there by the assailants and they were covered
with a blanket and were made to sit in a corner. One of the assailants
had a knife in his hand. He stated that he could identify the assailants.
The accused person who was carrying the weapon was called by one
of the other assailants („Khokhan jaldi aa jaa‟). He identified the
accused Khokhan in court as the person who had a country made
katta. He could not identify the accused other than Gulam and
Khokhan. In his cross-examination, by the PP, he affirmed that his
statement was recorded by the police twice - on 17.01.2007 and on
27.02.2007. He affirmed that he had stated to the police that he could
identify all the accused, if shown to him. On 27.02.2007, the police
had brought four persons with them and he and Sonu identified all the
four persons who had committed the robbery and their names were
revealed to be those of the appellants. He affirmed that Sandeep had
shown them the katta. He affirmed that he knew the accused Sandeep
and Pradeep by face. He later changed his statement to state that he
had seen the gun in Khokhan‟s hand and not in the accused Sandeep‟s
hand. In his cross-examination, he stated that he could not tell if the
assailant guarding them was holding a gun or a knife or a sword.
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When he saw the assailants, their faces were not covered with any
cloth. He stated that the person who remained with them guarding
them had a katta in his hand. One of the assailants had called him and
said "Khokhan jaldi aa jaa". He stated that he had told the police that
the person guarding them had a weapon like a knife. However, the
same was not recorded in his statement to the police. He stated that the
police arrived at about 03:45/4:00 am on 17.01.2007 and remained
there for about one hour, thereafter.
Reasons and Conclusion
17. The Trial Court evaluated the testimony of all the witnesses and
held that it was evident from the testimony of the various witnesses
that the incident of robbery had taken place as alleged.
18. Insofar as recovery of articles is concerned, the Trial Court held
that the prosecution had failed to establish beyond any reasonable
doubt that the articles recovered from the possession of the accused
were the same articles that were robbed. The court reasoned that the
articles recovered were in small quantity; there were no identification
marks on the recovered articles and the same were readily available in
the market. The said reasoning cannot be faulted. Vinod Kumar (the
brother of the complainant and the son of the owner of the Transport
Agency) had furnished bills/GR, which were seized by ASI Kewal
Singh (PW-21) and the seizure memo (Ex.PW2/A) was prepared.
However, the said documents (Ex.PW5/1 to PW5/8) do not clearly
established the identity of the goods in question. It is also relevant to
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note that none of the said documents pertain to Om Transport Agency.
Ex.PW5/2 is the consignor‟s copy of a document generated by
Krishna Brothers Transport Company and it mentions the number of
packages as 23 and the contents as "cosmetic Boroplus". The weight is
mentioned as 230 Kgs. Ex.PW5/1 is a cash/credit memo issued by
M/s B.C. & Sons for 8160 pieces of "BORO PLUS AN.CREAM 19
GM" and 1680 pieces of "BORO PLUS AN. CREAM 40 GM".
Ex.PW5/3 is a document generated by Krishna Transport Company
(Titu) indicating the name of the consignee as self. The said document
refers to three Bgs of "EL Wire". Ex.PW5/5 is a retail invoice/cash
memo/bill of Powercell Electronics in respect of three separate articles
including 24 pieces of "Home UPS 600 VA". Ex.PW5/6 is a
document generated by Krishna Transport Company (Titu) in respect
of "Fourty Two Katta Alu Kadhai". The name of the sender is
referred to as "Keshav Kumar C/o Duli Chand Om Prakash" and the
name of the consignee is referred to as "Garg Bartan Bhandar". The
said document also mentions that it is a driver‟s copy. Ex.PW5/7 is a
document generated by Lion Transport Co. mentioning the description
of the goods as "S.Machine". Ex.PW5/8 is a document captioned as a
"repairing bill" issued by M/s Dhawan Electronics in respect of 10
machines (Kajal). None of the documents mention the name of Om
Transport Agency and there is no document to indicate that the said
consignment was being transported by Om Transport Agency.
19. As noticed above, the document pertaining to sewing machines
is a "repairing slip". None of the documents refer to any specific
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markings of packaging details including batch numbers or serial
numbers of the products being transported. Clearly, on the basis of the
aforesaid documents, the goods allegedly recovered from the accused
cannot be stated to be those that were allegedly robbed from Om
Transport Agency.
20. One Sh. Amit Dhawan was examined as PW-8. He testified
that he was engaged in the business of dealing in sewing machines by
the name of Dhawan Electronics. He testified that he had purchased 15
sewing machines of brand Kajal from Ludhiana and out of the said
machines, he had sold five machines from his shop and he had booked
10 machines for Palwal with Lion Transport for one Sanjay. He stated
that the private mark of Sanjay was RK/PL and he had put the same on
the cartons containing the sewing machines. The Additional PP had
sought permission to put certain leading questions to the witness,
which were allowed and he confirmed the serial numbers of the
sewing machines. He also stated that he could identify the sewing
machines if shown to him. At that stage, a sealed parcel was opened
and one sewing machine of the make Kajal along with the cardboard
box was taken out. The said witness identified the sewing machine.
However, in his cross-examination, he conceded that this carton did
not have any private mark as testified by him earlier. He was
confronted with the document exhibited as Ex.PW5/8 and he clarified
that it was not a bill but only a slip. He also conceded that there was
no mention of any name of the purchaser or the serial numbers in the
said slip or in the builty (Ex.PW5/7). He also stated that the
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transporters had not issued any document in respect of the booking of
the goods to him.
21. In view of the patchy evidence relating to the goods recovered
from the accused, the Trial Court had acquitted the said accused of
committing an offence punishable under Section 411 of the IPC. This
Court concurs with the said view as there is little evidence to establish
that the goods allegedly recovered from the accused were the same
that were robbed from Om Transport Agency. Further, the quantity of
goods recovered is a small fraction of the goods that were allegedly
robbed. The disclosure statements made by the accused during the
course of investigation pertaining to FIR No. 135/07 (Ex.PW17/A to
Ex.PW17/D) also does not inspire any confidence. This is for the
reason that the number of persons disclosed to be involved in
commission of the crime does not conform to the number of persons
alleged to have committed the robbery. Further, the goods allegedly
robbed and those as disclosed in the disclosure statement, are also not
the same. In the disclosure statements of the accused, goods such as
speakers, DVD Players are also mentioned and it is not anybody‟s
case that the said goods were robbed on the date of the incident.
22. The accused Sandeep was also charged with committing an
offence punishable under Section 397 of the IPC. However, since none
of the witnesses had identified the accused Sandeep wielding a
pistol/country made katta, the Trial Court found that there was no
evidence to convict him for committing an offence punishable under
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Section 397 of the IPC. Accordingly, the court acquitted him of the
said charge. This Court finds no fault in the said decision as well.
23. To be noted, the State has not preferred any appeal against the
accused being acquitted of an offence under Section 411 of the IPC
and the accused Sandeep being acquitted of an offence punishable
under Section 397 of the IPC. Thus, in substance, the Trial Court‟s
finding that the prosecution had not proved the recovery of stolen
articles beyond reasonable doubt and that the accused Sandeep had
used a deadly weapon in committing the robbery has been accepted by
the State.
24. The only question that remains to be addressed is whether there
is sufficient evidence to establish that the appellants were involved in
committing the offence of robbery punishable under Section 392 of
the IPC.
25. Mr Pujari, learned counsel appearing for the accused Sandeep
(the appellant in CRL.A. 620 of 2017), submitted that the
identification of the accused person in court could not be relied upon
because it was not corroborated by any independent evidence. He
stated that none of the witnesses had described the accused or
provided any evidence as to their identity prior to their identification
in court and therefore, their deposition in court identifying the accused
was insufficient to convict them. Next, he submitted that the Trial
Court had erred in drawing an adverse inference on the count that the
accused had not participated in the TIP. He submitted that the accused
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had given a justifiable reason for not doing so as they had been shown
to the witnesses in the police station as well as in the Rohini Court
Complex. He submitted that this was evident from the fact that the IO
had moved an application for their TIP on the same day when they
were produced in court. He submitted that this would clearly indicate
that the witnesses, who were to identify the accused, were present in
the court at the time when they were produced and had seen them. He
stated that although the faces of the accused for the TIP may have
been muffled but they were brought to the lock-up and from there to
the court room and during this period, their faces were not muffled.
Thus, the witnesses had the opportunity to see their faces. He relied on
the decision of a Coordinate Bench of this Court in State (GNCT of
Delhi) v. Sandeep: CRL. L.P. 620/2019, wherein this Court had
observed that if an accused person has a justifiable reason to refuse
TIP, no adverse inference can be drawn. He further stated that the
accused were also shown to PW-10 and PW-13 subsequent to the TIP
proceedings and therefore, their testimony identifying the accused in
court could not be relied upon.
26. Next, he submitted that the entire procedure adopted by the
investigation agency of filing an application under Section 267 of the
Cr.PC for production of the accused and for the purposes of
interrogating them, formally arresting them and conducting their TIP
was contrary to the provisions of law. He submitted that powers under
Section 267 of the Cr.PC could be used only when the accused person
was required to answer before a court to a charge or for any
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proceedings against him or to examine such person as a witness. He
relied upon the decision of a Coordinate Bench of this Court in
Harshad S. Mehta v. Central Bureau of Investigation: (1992) 24
DRJ 392, in support of his contention that the police could not use the
procedure under Section 267 of the Cr.PC for ensuring the attendance
of an accused in one case in order to arrest him in another case.
27. Mr Madhukar, learned counsel appeared for Khokhan @ Guddu
(the appellant in CRL.A. 900/2017) contended that the present case
was a blind case and the prosecution had no leads to apprehend the
persons involved in committing the said offence. He stated that in the
said circumstances, the appellants had been falsely implicated and
articles alleged to have been recovered from them were planted. He
read the testimonies of various witnesses and contended that their
testimonies could not be relied upon to establish that the appellants
were involved in committing the alleged offence.
28. Mr Singhal, learned counsel appearing for Gulam Jilani @
Kallu and Pradeep (the appellants in CRL.A. 619/2017 and CRL.A.
621/2017) reiterated the contentions advanced by Mr Pujari and Mr
Madhukar. He further submitted that even if the conviction of the
appellants were upheld, the sentence awarded to them was severe and
the Trial Court had overlooked the mitigating circumstances. He
submitted that the appellants were of a very young age; they had no
other criminal antecedents as they had been acquitted in all other
cases; and had minor children and families to support.
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29. Mr Pujari‟s contention that the procedure adopted by the
investigating agency of filing an application under Section 267 of the
Cr.PC for production of an accused before the learned MM, their
formal arrest and the request for conducting the TIP was contrary to
the provisions of law and therefore, the appellants are liable to be
acquitted, is unpersuasive. It is contended that the provisions of
Section 267 of the Cr.PC cannot be invoked for producing the accused
before the court for the purposes of arresting them in another case.
30. First of all, no such contention was advanced before the Trial
Court and the same is clearly an afterthought. Secondly, even if the
contention that the procedure under Section 267 of the Cr.PC ought
not to have been invoked to produce the appellants before the learned
MM for the purposes of their arrest in the present case, is accepted, the
appellants have failed to establish that they were unfairly prejudiced
by the same. In terms of Section 465 of the Cr.PC, the impugned
judgment convicting the appellants cannot be called into question on
account of any irregularity in procedure unless it is established that the
same resulted in the failure of justice. In the present case, the
procedure of producing the appellants before the learned MM for the
purposes of this FIR and arresting them when they were produced has
not resulted in failure of justice in any manner.
31. The Trial Court had proceeded on the basis that an adverse
inference is required to be drawn against the accused on account of
their refusal to participate in the TIP. It is contended on behalf of the
appellants that their refusal to participate in the TIP were justified as
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they had been shown to the witnesses at the police station and in the
court. However, there is no evidence on record that the appellants
were shown to the witnesses in the police station or in the court prior
to the TIP proceedings. The TIP proceedings were conducted on
24.02.2007 and the appellants were specifically warned that their
refusal to join the TIP proceedings may lead to drawing of an adverse
inference against them. The appellants have not led any evidence in
their defence to establish that they have been shown to the witnesses
prior to the TIP proceedings. More importantly, they have also not
elicited any evidence to the aforesaid effect from any of the witnesses
who had identified them. None of the said witnesses had been
specifically asked whether they had seen the accused prior to the TIP
proceedings.
32. The prosecution had examined seven witnesses - PW-6, PW-7,
PW-9, PW-11, PW-12, PW-13 and PW-10 - for the purposes of
identifying the appellants as the offenders who were involved in
committing the robbery on the date of the incident
33. PW-6 had identified the accused Pradeep and the accused
Gulam Jilani as two of the accused who were involved in committing
the robbery. He had stated that the accused Pradeep was carrying a
sword in hand and a revolver in the other and the accused Gulam had a
sword in the hand. His testimony was not accepted by the Trial Court
as it was even doubted whether he was present at the spot. PW-6 was
not employed with the Transport Agency in question and had no
concern with it. He was a nephew of the owner. There is no reason for
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him to be present at the spot at the given time. Furthermore, his
testimony is materially inconsistent with the testimony of the other
witnesses. None of the other witnesses have testified that the accused
Pradeep and accused Gulam Jilani were wielding swords. He had also
testified that at the material time, he was working for another
transporter named Laxmi Pandit and his place of work was about one
kilometer from the office of Om Transport Agency. In his statement
recorded on the date of the incident (Ex.PW6/DA), he had not alleged
that the accused were wielding swords. He testified that he had seen
the accused in court for the first time after the date of the incident. He
was examined on 16.12.2011, which was almost five years after the
date of the incident. Thus, the Trial Court rightly ignored his
testimony for the purposes of identification of the accused.
34. PW-7 (Arvind) had categorically stated in his examination-in-
chief that he "cannot identify the assailants as they were muffled
faces". He was cross-examined by the learned APP. In his cross-
examination, he conceded that he had told the police that he could
identify the assailants if shown to him. However, he volunteered that
he could not identify the assailants due to lapse of time. Clearly, his
testimony can be of little assistance to the prosecution insofar as the
identification of the accused are concerned.
35. PW-9 (Bansi) testified that he had come to Mangolpuri at Om
Transport Agency for loading some goods on his tempo. He stated that
the two accused had asked him to alight from his tempo, one of them
was carrying a knife and the other was carrying a revolver. They had
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put a blanket on his head and he categorically stated that he could not
identify those persons. He was cross-examined by the learned APP.
However, he was firm in his stand that he could not identify the
accused. He denied the suggestion that he was not doing to so due to
fear. In his cross-examination by the learned counsel for the accused,
he categorically stated that he had not seen the accused present in the
court on the day of the incident.
36. PW-11 (Sh. Dev Nath) also did not support the prosecution‟s
case entirely. He did not identify the accused Sandeep, Pradeep or
Gulam Jilani. He stated that their faces were covered with a cloth.
However, he did identify the accused Khokhan to be one of the
persons who was involved. He alleged that Khokhan had shown him a
country made pistol. However, it is not the prosecution‟s case that the
accused Khokhan was wielding any firearm. He was cross-examined
and in his cross-examination, he denied the suggestion that the
accused Pradeep, Sandeep and Gulam had accompanied the accused
Khokhan. He also denied the suggestion that their description was
matching the description of the robbers, who had accompanied the
accused Khokhan, on the said date. He further denied the suggestions
that he had not deliberately identified them because he was threatened
or because of lapse of time or that he had been won over by all the
accused persons other than the accused Khokhan.
37. PW-12 (Sh. Rajesh Kumar) identified all the accused in Court.
He also testified that the accused Khokhan was carrying a country
made pistol and had threatened them with it. However, he could not
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state which of the accused was carrying a knife. However, it is also
important to state that he testified that one or two persons had covered
their faces. He also stated that he could not identify the pistol if it was
shown to him.
38. PW-13 (Ishwar) identified all the accused. He identified the
accused Khokhan as the person who was carrying the weapon (country
made katta) but he denied that he could identify the other accused who
were associates of the accused Khokhan and Gulam. In his cross-
examination, he was confronted with the statement recorded on
27.02.2007 and he identified the accused Pradeep and Sandeep. He
stated that he had not done so earlier because of lapse of memory.
39. PW-10 (Sonu) identified all the accused. However, he did not
support the prosecution‟s case that the accused Pradeep was carrying a
pistol. He stated that the accused Khokhan was carrying the pistol.
40. It is seen from the above that four witnesses (PW-10, PW-11,
PW-12 and PW-13) had identified the accused Khokhan to be one of
the perpetrators of the offence. The accused Gulam Jilani has been
specifically identified by PW-10 as well as by PW-13. The accused
Sandeep and Pradeep were identified by PW-10. PW-13 had also
identified them albeit in his cross-examination by the learned APP.
Even if PW-13‟s testimony, insofar as the identification of the accused
Sandeep and Pradeep is ignored, the testimony of PW-10 is
unambiguous and he had clearly identified the said accused.
Considering the above, coupled with the fact that the appellants had
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declined joining the TIP, this Court finds no fault in the decision of the
Trial Court in accepting that the prosecution had established that the
appellants had been identified as the persons involved in committing
the crime.
41. In view of the above, this Court finds no reason to interfere with
the impugned judgment convicting the appellants of committing an
offence punishable under Section 392 of the IPC. However, this Court
is unable to concur with the view that the appellants deserved no
leniency. None of the appellants had been convicted of any offence
prior to the impugned judgment. This Court has also been informed
that they have been acquitted in all other cases. The appellants were
very young at the material time. All of the appellants have minor
children and their families to support.
42. Considering the above, this Court considers it apposite to
reduce the sentence awarded to the appellants to four years of rigorous
imprisonment along with the fine of ₹3,000/- each and in the event of
failure of payment of fine, to undergo simple imprisonment for a
further period of three months. It is so directed.
43. The appeals are disposed of in the aforesaid terms. All pending
applications are also disposed of.
VIBHU BAKHRU, J
NOVEMBER 09, 2020
RK
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