Delhi High Court
Shri Izzazul S/O Jiya-Ull vs State [Along With Crl. A-329, 430 And ... on 20 December, 2006
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
JUDGMENT Shiv Narayan Dhingra, J.
1. By this judgment I shall dispose four appeals arising out of the judgment of Additional Sessions Judge dated 22nd February, 1999 whereby all the four appellants were convicted under Section 392/34 IPC and the appellant Saleem was also convicted under Section 397 of the IPC and against order of sentence dated 25.2.1999 whereby appellant Salim was sentenced to undergo Rigorous Imprisonment of Seven Years and a fine of Rs. 500/- and other appellants were sentenced to undergo Rigorous Imprisonment for five years and fine of Rs. 250/- each.
2. The brief facts leading to the conviction of the accused persons by the trial court are as under:
On the night intervening 25th February and 26th February, 1998 at about 11.30 p.m. complainant Rakesh Kumar, after finishing his duty, was going to his house. He was looking for a scooter. He found a scooter in which three passengers were already there. He asked if the scooter will go to Seemapuri. He was told that he may board the scooter and pay Rs. 5/- as fare for Seemapuri. He boarded the scooter. When the scooter reached near Dilshad Garden, the three passengers, who were already sitting in the scooter, over-powered him and he was robbed of his watch, cash Rs. 800/- and driving license and was thrown out of the scooter on the road. He was able to notice the number of the TSR. During robbery, one of the appellants had put a pistol on his temple and also gave a butt blow, while another had gagged his mouth and the third one had caught his hands. While he was lying on the road, one PCR van happened to pass that way and police of PCR Van made inquiries from him and he narrated the incident. Local Police was called by PCR and his statement was recorded. In the statement, given by him on the same night, he gave the TSR number as DL 1R 0423 and description of the culprits who had robbed him and thrown him out of the TSR. On the basis of the statement of the victim Rakesh Kumar, FIR No. 137/98 was registered at Police Station Seema Puri on 26th February, 1998 at 2.30 a.m. The police, from the registration number of the scooter, traced out the owner of the scooter Mr. Raj Kumar, who told the police that he had sold away his scooter and gave the name and address of the purchaser of the TSR as Mr. Sabir Ali. The police served a notice under Section 133 on 5.3.1998 Ex.PW10/C under Motor Vehicles Act, to Mr. Sabir Ali and asked him to disclose the name of the person who was driving the scooter on the night intervening 25th February and 26th February, 1998. Sabir Ali replied to the notice by making endorsement Ex.PW 8/A on the notice and stated that the scooter was being driven by his son-in-law Mohammad Akram on that night. He was asked to produce Mohammad Akram before the police. He produced Mohammad Akram, who was interrogated by police and produced in muffled face before the Metropolitan Magistrate and a request for his Test Identification Parade (TIP) was made, but he refused to participate in TIP, taking the stand that he was shown to the witnesses. He had disclosed the names of other three accused persons in his disclosure statement, who were later on arrested by the police. Recovery of robbed wrist watch was made from accused Shakil and a country-made pistol was recovered from the appellant Salim. It was told by the appellants that the amount of Rs. 800/- looted from the victim, was evenly distributed and spent. The other three accused persons were also produced before MM Mr. Kanwaljeet Arora, PW5 for TIP proceedings but they also refused to participate in TIP stating that they had been shown to witnesses. TIP proceeding in respect of the accused Salim and Izzazul is Ex.PW 5/A and in respect of accused Mohammad Akram, Ex.PW5/C. PW5 also proved the applications for TIP made by the IO and refusal statements made by the accused persons. The accused persons were duly warned by the MM PW5 that their refusal would raise a presumption against them and an adverse inference could be drawn for refusing to participate in the TIP but still they refused to join TIP Proceedings. Before the Sessions Court, complainant Rakesh Kumar, PW1 was examined and in his examination-in-chief he narrated the incident as it happened. He identified all the accused persons and described their roles and testified that Shakil had gagged his mouth, accused Izzazul had taken out Rs. 8,00/- and driving license from his dub pocket and accused Shakil had removed his wrist watch, besides closing his mouth. He identified accused Salim as the one, who had put katta (country-made pistol) on his temple and accused Mohammad Akram as the one, who was driving the scooter. He also testified that after robbing him, the accused Salim gave a butt blow on his temple and threw him out of the scooter. After that all the accused had run away in TSR. The PCR Van arrived and the police officials recorded his statement. His cross examination was recorded in pre-lunch period on 17.10.98 and when he appeared after lunch, he stated he was not well so, he was cross examined after about a week. When he appeared for cross examination, he confirmed that he had read the number of TSR when he was thrown out of the TSR. He could recall the number on the day of deposition as 432 or 433. He also stated that he had given the description of the persons who robbed him to the police in his statement but stated that the accused persons were of the similar descriptions, he was not sure if they were the same, while in examination-in-chief he had identified each accused and given his role. He further stated that he had not seen the accused persons prior to the last date of hearing before the Court. He had not read the contents of his statement Ex.PW1/A before signing it. He did not notice what cloths were being worn by the persons who robbed him. He also stated that the wrist watch, produced in the Court, was similar to the wrist watch which was robbed from him. It was a HMT Quartz as produced in the Court but it was having red strap and not black strap. He was cross examined by APP and in cross examination he admitted that before he signed PW1/A, police had told him that whatever he had told, the same was written. About his fumbling during cross examination, he stated that he could not depose correctly on previous hearing since he was not feeling well while he denied any compromise with the accused persons. It is apparent that after he supported the prosecution case in examination-in-chief some extraneous circumstances intervened and he tried to wriggle out his earlier statement.
3. This witness had participated in the TIP of case properly before the MM on 16.3.1998. He correctly identified the wrist watch robbed from him at TIP out of several wrist watches. The TIP proceedings Ex. PW 5/D, and the statement of PW1, identifying the wrist watch were proved by PW4, the MM.
4. In statements under Section 313 of Cr. P.C. all the accused persons stated that they were arrested from their houses and they were directly produced before the Magistrate after arrest. It has not been stated by them in the statement under Section 313 that they were shown to any witness after their arrest or that the complaint was brought in their contact. No suggestion was given to PW1, the complainant, that he was shown the accused persons after their arrest, before TIP.
5. In view of categorical identification of the accused persons by the complainant during his examination-in-chief and in view of the fact that the complainant in his first statement made to police on the night of 25th February and 26th February, 1998 had correctly given the scooter number used in the crime and he had identified his wrist watch before the MM, the learned Sessions Judge found that the fumbling during cross examination made by the witness had no effect on the identification of the accused persons and the role played by them as given in examination-in-chief. The subsequent statement of witness in cross examination, trying to wriggle out from his earlier statement was of no help to accused persons. The evidentially value of the statement made in the Court during examination-in-chief would not get washed away by trying to be hostile during cross examination. The learned Sessions Judge therefore, found all the accused persons guilty of the offence under Section 392 IPC and found accused Salim guilty of offence 392 and 397 of IPC for the use of country-made pistol.
6. It is argued by the counsel for appellants that the PW1 has discredited himself by making contradictory statement in examination-in-chief and cross examination, therefore, he was not a trustworthy witness and on his testimony the conviction of the accused persons was bad in law. He relied upon 1981 Crl.LJ 1787 Kumar Majhi v. State. I consider that this argument must fail in this case. The complainant PW1 even during his cross examination did not say that the accused persons were not those who had robbed him. He, even during his cross examination confirmed that the persons, who robbed him, were similar to the accused persons. It seems that the accused persons utilized the gap of one week which was there between the examination-in-chief and cross examination in trying to influence this witness and trying to win him over. Since the witness had already made categorical statement in the Court, identifying the accused persons, he could not easily wriggle out of his earlier statement and, therefore, tried to create some vagueness in the statement. It is normally seen that whenever the cross examination is deferred, the accused persons who realize that since the witness has not turned hostile and they are likely to be convicted, try to win over the witness and gain some ground during cross examination. But here in this case, no such ground could be gained by the accused persons because of other circumstances which supported the case of the prosecution. One of the major circumstances, which supported the case of prosecution is the refusal of the accused persons to participate in TIP. It has come in evidence that the accused persons were produced before the Magistrate in muffled face and they were warned by the MM about the consequences of refusal of TIP but still they refused to participate in the TIP on the ground that they had been shown to the witness. It has been proved during the evidence before the trial Court that none of the accused persons was shown to the witness, but they were directly produced before MM after their arrest. The stand of accused persons is that they were arrested from their houses and produced before MM. If it is believed that they were arrested from their houses and then produced before the magistrate, no suggestion was given to the MM that they were not produced in muffled face and no suggestion was given to PW1, the complainant that they were shown to him. The reliance was placed by the counsel for appellant on Asharfi and Anr. v. State, wherein it was held that it was the duty of the prosecution to show that from the time of the arrest of an accused person to the time of his admission into the jail precautions were taken to ensure that he was not seen by any outsider, is of no help to the accused persons because this condition has been satisfied in this case from the evidence as well as from the statement under Section 313 of Cr.P.C. of the accused persons. Similarly, 1991 Crl. L. J 1381 Mahendera Singh v. State of U.P. relied upon by the appellant is of no help.
7. The other ground taken by the Counsel for the appellant is that no public witness was associated by the police at the time of recoveries from the accused persons and the evidence against the accused persons in respect of recoveries was only of the police officials and therefore, the recoveries could not be believed. In Tahir v. State (Delhi) Supreme Court held that 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 based on the evidence of 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 trustworthy and reliable, the conviction can be based on the testimony of the police officials.
8. The police officials cannot be presumed less or more credible than any other normal public witness. The credibility of each witness is tested in cross examination. Public witnesses who are related to the victims are normally treated as interested witnesses but it has been time and again held by Courts that relative witnesses could be credible and trustworthy. Similarly, police officials can also be credible and trustworthy as any other witness. The police officials do not suffer from any disability to give evidence and mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness. The cross examination of the police witnesses in this case show that they were trustworthy witnesses and nothing incredible could be pointed out from their cross examination.
9. It is argued by the counsel that appellant, Saleem has been wrongly convicted under Section 397 of I.P.C. as role assigned to him was only putting pistol on the temple of the victim and he had not used the pistol it in the sense that he did not fire at the victim. Section 397 reads as under:
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.
10. There can be no doubt that a country made pistol is a deadly and leathal weapon. Use of a lethal weapon like pistol does not lie only in firing. If a loaded country-make pistol is put on the temple of a victim, it equally amounts to the use of the weapon. Firing is an extreme case of the use of pistol. The use of the pistol on the victim's temple and putting him in fear of life while committing robbery would be covered under Section 397 IPC.
11. I find no reason to differ from the conclusion arrived at by the Sessions Judge. I find no merits in the appeals. All the four appeals are dismissed.
12. The counsel also prayed for leniency in the sentence of the accused persons. The accused were waiting at late hour in the night for a prey. It is immaterial that their prey did not turn up to be a rich man and was only a lower middle class person. The gravity of offence cannot be measured by status of victim or the amount of loot. I find no ground to show leniency.