Delhi District Court
State vs 1) Mohd. Tanveer on 23 September, 2019
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
DISTRICT & SESSIONS JUDGE, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
SC-222/18
CNR No. DLNE01-002944-2018
State Versus 1) Mohd. Tanveer
S/o Mohd. Nishad
R/o Alvi Nagar, Fatima Masjid
Loni, UP.
2) Shahnawaz
S/o Mohd. Haneef
R/o Alvi Nagar, Fatima Masjid
Loni, UP.
3) Rahul s/o Manoj Gupta
R/o H. No. D-72, Balram Nagar,
Loni, Ghaziabad, UP.
FIR No: 129/18
PS: Karawal Nagar
Under Section : 392/397/34 IPC
Date of institution of case : 17.07.2018
Date of passing of Judgment : 13.09.2019
JUDGMENT
1. In brief, the case of the prosecution is that on 22.03.2018 on receiving DD No.5B, ASI Ashok Kumar alongwith Ct. Laxmi Narayan proceeded to the spot at Shahdatpur, Pehchan Patra Office, Karawal Nagar, wherein statement of complainant Rajeev Kumar was recorded.
Briefly, the complainant alleged that on 22.03.2018 about SC 222/18-State vs. Mohd. Tanveer & Ors. Page no. 1 04:00 AM after finishing duty at Noida, the call centre vehicle had dropped him at Sadatpur, Pehchan Patra Office, Karawal Nagar. As he was proceeding towards his residence, three persons on a motorcycle came near him and placed a pistol like object on his body and snatched his mobile phone bearing IMEI no.863217031712744, 86321703171275 containing Vodafone SIM card no.9711391746 alongwith a sum of Rs.1500/-, a purse containing his license, RC and his bag. FIR was accordingly registered under Section 392/34 IPC at PS: Karawal Nagar.
2. During the course of investigation, on 03.04.2018 in FIR No.135/18 under Section 302/34 IPC, PS: Karawal Nagar, accused Rahul Gupta alongwith Tanveer @ Tannu and Shahnawaz were arrested. Accused made disclosure statement regarding their involvement in the present case and as such they were formally arrested in the present FIR i.e. 129/18, PS:
Karawal Nagar. However, the case property including the mobile phone could not be recovered. Further, all the three accused refused to participate in TIP proceedings on an application filed by the Investigating Officer before the ld. Metroplitan Magistrate. Charge sheet was accordingly filed under Section 392/397/34 IPC.
3. On appearance, in compliance of Section 207 Cr.P.C, SC 222/18-State vs. Mohd. Tanveer & Ors. Page no. 2 copies were supplied to all the three accused and as offence punishable under Section 392/397/34 IPC is triable by the Court of Sessions, present case was committed to the Sessions Court.
4. Charge was framed against accused Rahul Gupta, Mohd.Tanveer and Shahnawaz under Section 392/397/34 IPC, to which they pleaded not guilty and claimed trial.
5. In support of its case, prosecution examined five witnesses, namely, PW-1 Rajeev Kumar, PW-2 ASI Ishwar Singh, PW-3 Inspector Narender, PW-4 ASI Ashok Kumar and PW-5 Ct. Laxmi Narayan.
(i) PW-1 Rajeev Kumar (complainant) deposed that on 22.03.2018 about 04:00AM he was returning home after performing his duty and call centre vehicle had dropped him near Shahdatpur. Thereafter, when he was proceeding towards his residence, three persons on a motorcycle firstly went ahead of him and then returned back. Further, they pointed a weapon like country made pistol towards him and removed his purse, mobile phone and bag from his possession. The purse was containing Rs.1500/-, his driving license, RC and ATM card and the SC 222/18-State vs. Mohd. Tanveer & Ors. Page no. 3 mobile phone was make MI of brown colour. He further deposed that one of the aforesaid three persons had again shown him pistol, but he could not see as to what the remaining two persons were carrying. The offenders thereafter fled from the spot. He called his father after obtaining mobile phone from an auto driver, who was passing by. Thereafter, his father reached the spot and he dialed at number 100 from mobile phone of his father.
He further identified all the three accused present in the Court, who had robbed him of his articles on the day of incident. He further pointed out towards accused Rahul Gupta and stated that he had shown him pistol and also pointed towards accused Shahnawaz as the person, who was driving motorcycle. Further, he pointed towards accused Tanvir as the person, who had robbed his articles. He further identified his signatures on his statement Ex. PW1/A. PW1 further deposed that he had identified all the three accused on 01.05.2018, but none of his articles were recovered by the police. He further identified his signature on site plan Ex.PW1/B which was prepared by the police at his instance.
ii) PW2 ASI Ishwar Singh deposed that on the intervening night of 21st and 22nd, March, 2018, he was SC 222/18-State vs. Mohd. Tanveer & Ors. Page no. 4 deputed as Duty Officer from 12:00 midnight to 8:00 AM at PS Karawal Nagar. Further on the aforesaid day about 5:55 AM, he received rukka sent by ASI Ashok Kumar through Ct. Laxmi Narayan for registration of the case. Accordingly, an FIR no.129/18 was registered and after obtaining computerized copy of FIR, he signed the same. Further, he recorded his endorsement on the rukka regarding registration of case which is Ex. PW2/A bearing his signature at point A. Thereafter, he handed over copy of FIR and original rukka to Ct.Laxmi Narayan for handing over the same to IO ASI Ashok Kumar. He further proved the copy of FIR as Ex.PW2/B.
iii) PW5 Ct. Laxmi Narayan deposed that on 22.03.2018, he had accompanied ASI Ashok Kumar to the spot at Shahdatpur near Pehchan Patra wali gali, Bhagat Vihar after DD no.5B was marked to ASI Ashok Kumar. Further, statement of complainant was recorded by IO and he took rukka to the police station for registration of the FIR. Thereafter, he returned back to the spot after getting the FIR registered and handed copy of FIR and original rukka to the IO.
iv) PW3 Inspector Narender deposed that on SC 222/18-State vs. Mohd. Tanveer & Ors. Page no. 5
03.04.2018 he was posted at PS Khajuri Khas. Accused Rahul Gupta, Tanveer and Shahnawaz were arrested in FIR No.135/18 under Section 302/34 IPC PS Khajuri Khas. During investigation, accused made disclosure statement (Mark PW3/A, PW3/B and PW3/C) regarding their involvement in this case. Thereupon, he had informed PS Karawal Nagar regarding the same. Further, he had given copy of disclosure statement of accused recorded by him in FIR 135/18 to ASI Ashok Kumar. He further identified accused present in the Court.
v) PW4 ASI Ashok Kumar (IO) deposed that on 22.03.2018 on receiving DD no. 5B Ex.PW4/A, he alongwith Ct. Laxmi Narayan reached at Sadatpur, Pehchan Patra Office wali gali, wherein they met complainant Rajeev Kumar. He recorded statement of complainant Ex.PW1/A and rukka was handed over to Ct. Laxmi Narayan for registration of case. Site plan (Ex.PW1/B) was prepared at the instance of the complainant. Further, copy of rukka and FIR were obtained from Ct. Laxmi Narayan and efforts were made to trace the accused, but no clue was found.
He further deposed that on 04.04.2018, he received an information from Inspector Narender, PS SC 222/18-State vs. Mohd. Tanveer & Ors. Page no. 6 Khajuri Khas regarding disclosure statement made by accused. Accordingly, he alongwith Ct.Sandeep reached at PS Khajuri Khas and obtained disclosure statement of accused Rahul Gupta Mark PW3/A, Tanvir Mark PW3/B and Shahnawaz Mark PW3/C from Inspector Narender. Accused were interrogated and arrested in the present case vide arrest memo Ex.PW4/C, Ex.PW4/D and Ex.PW4/E. The disclosure statement of accused were recorded, but no recovery could be effected. He further deposed that accused were produced before the Court in muffled face and their TIP was fixed. However, all the three accused refused to participate in TIP proceedings on 13.02.2018 and copy of TIP refusal is Mark PW4/A, PW4/B and PW4/C respectively. Further, he recorded supplementary statement of complainant Rajeev Kumar regarding confirmation of identity of accused and prepared the charge-sheet after the investigation.
6. The prosecution evidence was thereafter closed by ld. Public Prosecutor. Statement of accused was recorded wherein all the accused denied the prosecution version but did not lead evidence in defence.
7. I have heard counsel for the accused, ld. Addl. Public SC 222/18-State vs. Mohd. Tanveer & Ors. Page no. 7 Prosecutor for the State and perused the record carefully.
Counsel for the accused contended that testimony of the complainant does not appear to be trustworthy since in the FIR he described the phone of golden colour while in his statement before the court he described the same of brown colour. Further, no efforts were made by the IO for tracing the IMEI number and no witness was joined from the nearby dairy which was open at the time of incident. It was further contended that neither the auto driver from whose phone the complainant had made a call nor the father of the complainant had been made as a witness. Also, the driver of the vehicle who had left the complainant after his duty had not been joined as a witness. It was further urged that there is discrepancy in recording DD No.5B wherein it was reflected that the boys on foot had committed robbery whereas in the FIR, the accused are alleged to have come on a motorcycle. It was also submitted that no recovery of articles/pistol had been effected and accused had been shown to the complainant, due to which they refused the TIP proceedings.
Per contra, ld. Addl. PP for the State contended that testimony of the complainant as well as other witnesses is reliable and trustworthy and the discrepancies pointed out by the counsel for accused are inconsequential and minor in nature.
SC 222/18-State vs. Mohd. Tanveer & Ors. Page no. 8
8. Law was set into motion with the initial information recorded vide DD No.5B dated 22.03.2018 at 04:22AM to the effect that near Karawal Nagar-Shadatpur Main Road, Gali No.5 near Pehchan Patra Office, three boys on foot had snatched a mobile phone, purse and bag at the point of country made pistol. On the basis of the same, IO ASI Ashok Kumar (PW4) along with Ct. Laxmi Narayan (PW45) reached the spot wherein the statement of the complainant Rajeev Kumar (PW1) was recorded. In his initial statement recorded by the police on the basis of which FIR was registered, complainant failed to give a description of the accused and neither any specific role was assigned to the respective accused. However, in the evidence recorded before the court, PW1 Rajeev Kumar apart from identifying the accused, attributed that Rahul had shown him the pistol while accused Shahnawaz was driving the motorcycle and accused Mohd. Tanveer had robbed the articles. The aforesaid variation in the statement of the complainant needs to be noticed to assess whether the testimony of the complainant is reliable and trustworthy and the impact of the same qua the offence under Section 397 IPC since only the accused using the deadly weapon can be convicted for the aforesaid offence under Section 397 IPC.
It may be observed that admittedly the complainant had SC 222/18-State vs. Mohd. Tanveer & Ors. Page no. 9 no prior acquaintance and familiarity with the accused and there is no plausible reason of his fabricating any false story qua the incident which was reported and recorded vide DD No.5B dated 22.03.2018. There also does not appear to be any reason for the complainant to falsely identify the accused and let the real culprits go free. Neither any evidence has come on record in case the complainant had any animosity or enmity against the accused.
It may further be observed that PW1 Rajeev Kumar in examination-in-chief duly explained that he had made a phone call from the phone of an auto driver, who had thereafter left the spot. Further, at aforesaid time about 04:22 AM there does not appear to be any possibility of availability of persons from the public in vicinity. The prosecution version cannot be disbelieved merely on the ground that the complainant did not raise any alarm at the time of the incident as normally the reaction of any person who is robbed in loneliness is to save his life in the first instance. It is pertinent to note that no substantive contradictions, discrepancies and infirmities in the investigation could be brought out in the short cross-examination of the complainant and other witnesses. Merely because description and role of the accused had not been specified in the rukka, does not lead to an inference that the version given by the complainant was untrustworthy. However, definitely at the same SC 222/18-State vs. Mohd. Tanveer & Ors. Page no. 10 time when the use of weapon is alleged for the first time by the complainant attributing to one of the accused i.e. Rahul Gupta, the same may remain in a shadow of doubt since the weapon alleged to be used in the commission of offence could not be recovered. The aforesaid aspect qua Section 397 IPC shall be deliberated upon in the subsequent paragraphs.
It may also be observed that attribution of role to the respective accused along with description also depends upon the competency of the IO to elicit the requisite information. Merely because the same has not been recorded or given in the rukka, does not automatically lead to an inference that the accused may have been falsely implicated.
9. It may next be observed that the accused were arrested on 03.04.2018 in another case and only on the basis of the disclosure made in the aforesaid case, they were formally arrested in the present FIR. As such, it cannot be said that the investigating agency acted in an unfair manner or had any reason to implicate the accused.
10. Now coming to the point of identity, it may be observed that the accused refused to participate in TIP proceedings which were marked before the learned Metropolitan Magistrate, on the ground that the photographs of the accused had been taken by SC 222/18-State vs. Mohd. Tanveer & Ors. Page no. 11 the police officials in the police station. However, nothing could be elicited in cross-examination of PW1 Rajeev Kumar, PW4 ASI Ashok Kumar and PW5 Ct. Laxmi Narayan in case the accused had been shown to the complainant prior to conduct of TIP proceedings. During cross-examination, PW1 denied the suggestion that the accused had been shown to him by the IO due to which he had identified the accused. There is not even a whisper or a suggestion in case the complainant had been shown any photograph of the accused prior to fixing of TIP proceedings. Even in cross-examination of PW3 Inspector Narender, no suggestion had been given in case photographs of the accused were taken by the police officials. Further, no suggestion was given to PW4 ASI Ashok Kumar to the effect that photographs of accused had been taken during the course of investigation and prior to conduct of TIP proceedings. The only suggestion which was given to PW4 is that he had shown the accused to the complainant prior to TIP proceedings or because of said reason accused refused to participate in the TIP proceedings. However, the suggestion remains bald as neither the time nor the date on which the accused had been shown to the complainant has been referred.
It may be observed that purpose of TIP is to ensure that the investigation is going on the right track and it is merely corroborative evidence. Actual identification must be done in SC 222/18-State vs. Mohd. Tanveer & Ors. Page no. 12 the court and that is the substantive evidence. It is the identification in the court which is of utmost importance. In Rabinder Kumar Pal @ Dara Singh vs. Republic of India (2011) SCC 490, the Hon'ble Supreme Court held as under:-
"......Photo identification and TIP are only an aides in the investigation and do not form substantive evidence. The substantive evidence is the evidence in the court on oath. The logic behind TIP, which will include photo identification lies in the fact that it is only an aid to investigation, where an accused is not known to the witnesses, the IO conducts a TIP to ensure that he has got the right person as an accused. The practice is not borne out of the procedure, but out of prudence. At best it can be brought under Section 8 of the Evidence Act, as evidence of conduct of a witness in photo identifying the accused in the presence of an IO or the Magistrate, during the course of an investigation."
It may further be observed that admittedly the accused had refused to join the TIP proceedings proposed by the IO as conducted by the learned Metropolitan Magistrate. The TIP proceedings were refused on the ground that IO had taken the photographs of the accused, which has found no merit as discussed above. Thus, the ground taken by the accused for refusing to join the TIP proceedings does not appear to be bonafide and as such an adverse inference needs to be drawn against the accused to the effect that had they joined the TIP SC 222/18-State vs. Mohd. Tanveer & Ors. Page no. 13 proceedings, they would have been identified by the complainant. Similar view was taken by the Hon'ble Supreme Court in Suraj Pal vs. State of Haryana (1995) 2 SCC 64.
In view of above, the identification of accused in the court coupled with their refusal to join the TIP proceedings without any reasonable ground is sufficient to establish their identity. It may also be seen that there was only a short time lag between the date of commission of robbery and arrest of the accused in other case. The accused have absolutely not come up with any explanation in case they were not present at the aforesaid time at the relevant place. It could have also been investigated with reference to their phone particulars, if any, given during investigation. PW1 during his cross-examination has categorially deposed that it was not dark at the time when the crime was committed and the street light was glowing at the spot. As such, it cannot be doubted that the complainant had due opportunity to observe and see the accused. PW1 during cross-examination denied the suggestion made on behalf of the accused that there was insufficient light at the spot.
11. In the light of the aforesaid discussion, it may be relevant to observe that the discrepancy in the initial version as recorded in DD No.5B regarding the robbery being committed by three persons on foot appear to be minor in nature. It cannot be ruled SC 222/18-State vs. Mohd. Tanveer & Ors. Page no. 14 out that at times in the heat of incident, the version as recorded telephonically may be slightly discrepant but the fundamental remains that the incident of robbery by three persons stands duly reflected both in DD No.5B as well as in the statement of the complainant. It is likely that at the time of the incident the complainant may not have got an opportunity to observe the model number or the registration number of the motorcycle and the version of the complainant cannot be disbelieved merely on this account.
It may further be observed that it was duly explained by the complainant that the auto driver from whose phone he had made a call had left thereafter. Also, there does not appear to be any relevance of the driver of the company to have been examined who had dropped the complainant at the spot and only thereafter the incident had taken place. The non- examination of the father of the complainant also does not give rise to any suspicion that the incident may have been fabricated since he reached the spot only after he was informed of the incident from the phone of a passing auto driver by the complainant.
12. For the foregoing reasons, I am of the considered opinion that ingredients of the offence punishable under Section 392 IPC stand fully established on record against all the accused SC 222/18-State vs. Mohd. Tanveer & Ors. Page no. 15 beyond reasonable doubt. Accused Mohd. Tanveer, Shahnawaz and Rahul are accordingly convicted for the offence punishable under Section 392 IPC.
13. However, so far as the offence punishable under Section 397 IPC is concerned, at the outset, it may be appropriate to reproduce Section 397 of IPC, which reads as under:-
"Section 397. Robbery, or dacoity, with attempt to cause death or grievous hurt.- If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."
Perusal of aforesaid section reveals that in order to prove the guilt of the accused for the offence punishable under Section 397 of IPC, the offender must use (a) a deadly weapon or (b) cause grievous hurt to any person or (c) attempts to cause death or grievous hurt to any person. The burden lies on the prosecution to prove that the offender used a deadly weapon or caused grievous hurt or attempted to cause death or grievous hurt to any person.
SC 222/18-State vs. Mohd. Tanveer & Ors. Page no. 16
14. In the present case, admittedly, the pistol allegedly used in the commission of offence could not be recovered. It is also pertinent to observe that in his initial statement recorded by the police, the complainant alleged that the accused had placed on his body a "pistolnuma cheez". However, in his deposition before the court, he stated that accused pointed weapon like country like pistol towards him. Thereafter, he also pointed out towards accused Rahul and stated that the pistol had been pointed by him though in his initial statement, the complainant failed to specify the role of respective accused as to by whom the weapon of offence had been used. In the absence of recovery of weapon at the instance of the accused during the course of investigation, it cannot be concluded with certainty in case the weapon used in commission of offence was a pistol or "a pistolnuma cheez".
15. In 'Crl.A.515/2010 Gulab @ Bablu vs. The State (NCT of Delhi)', it was held by the Hon'ble High Court of Delhi as under:
"8. A perusal of the aforesaid provision makes it clear that if an offender at the time of committing robbery or dacoity, uses any deadly weapon or causes grievous hurt or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall not be less than seven years. This provision prescribes minimum sentence which shall SC 222/18-State vs. Mohd. Tanveer & Ors. Page no. 17 be handed down to such an offender. In this case neither the victim has sustained grievous hurt nor there is an evidence that attempt was made to cause death or grievous hurt to the victim nor is there any evidence to show that the knife used at the time of committing robbery was a "deadly weapon". Simple injuries have been sustained by the victim on his thigh.
9. In Charan Singh vs. The State, 1988 Crl.L.J. NOC 28 (Delhi), Single Judge has held as under :-
"At the time of committing dacoity one of the offenders caused injury by knife on the hand of the victim but the said knife was not recovered. In order to bring home a charge under Section 397, the prosecution must produce convincing evidence that the knife used by the accused was a deadly weapon. What would make knife deadly is its design or the method of its use such as is calculated to or is likely to produce death. It is, therefore, a question of fact to be proved by the prosecution that the knife use by the accused was a deadly weapon. In the absence of such an evidence and particularly, the non-recovery of the weapon would certainly bring the case out of the ambit of Section 397. The accused could be convicted under Section 392."
10. In Samiuddin @ Chotu vs. State of NCT of Delhi,175 (2010) Delhi Law Times 27, a Bench of co-ordinate jurisdiction has held that when a knife used in the commission of crime is not recovered the offence would not fall within the ambit of Section 397 IPC. In „Rakesh Kumar vs. The State of NCT of Delhi 2005 (1) JCC 334 and Sunil @ Munna vs. The State (Govt. of NCT), 2010 (1) JCC 388, it was observed that in the absence of recovery of the knife used by the appellant at the time of SC 222/18-State vs. Mohd. Tanveer & Ors. Page no. 18 commission of robbery charge under Section 397 IPC cannot be established. In the present case, indubitably the knife used for commission of crime was not recovered. Accordingly, in my view, appellant could not have been sentenced under Section 397 IPC and Trial Court has erred on this point."
16. In the facts and circumstances, it is difficult to return a specific finding that Rahul was armed with a deadly weapon and the benefit of doubt needs to be extended to the accused with reference to Section 397 IPC.
17. For the foregoing reasons, all the accused are convicted for the offence punishable under Section 392/34 IPC only. Announced in the open Court on 13th September, 2019 (ANOOP KUMAR MENDIRATTA) DISTRICT & SESSIONS JUDGE, NORTH-EAST DISTRICT, KARKARDOOMA COURTS, DELHI.
SC 222/18-State vs. Mohd. Tanveer & Ors. Page no. 19