Delhi High Court
Mohd. Saleem @ Salim vs The State on 11 July, 2012
Author: Mukta Gupta
Bench: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 347/2000
% Reserved on: 17th May, 2012
Decided on: 11th July, 2012
MOHD. SALEEM @ SALIM ..... Appellant
Through: Mr. Ravindra Kumar, Adv.
versus
THE STATE ..... Respondent
Through: Mr. Manoj Ohri, APP with SI Arun Kumar PS DBG Road.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. The present appeal is directed against the judgment and order on sentence dated 31st May, 2000 passed by the learned Additional Sessions Judge convicting the Appellant and the co-accused for offences punishable under section 392/397/34 IPC. Learned Additional Sessions Judge sentenced the Appellant and the co-accused to undergo Rigorous Imprisonment for a period of seven years and a fine of Rs. 5,000/- each and in default of payment of fine to further undergo simple imprisonment for six months. The co-accused Mohd. Aslam had already served the sentence awarded to him by the learned Trial Court thus Crl. Appeal No. 503/2000 preferred by him stands disposed of as infructuous vide order dated 17th May, 2012.
2. Learned counsel for the Appellant contends that the impugned judgment passed by the learned Additional Sessions Judge is based upon conjunctures and surmises and is bad in law as well as on facts. The learned CRL.A. 347/2000 Page 1 of 11 Trial Court failed to appreciate the factual matrix of the case and ignored the principles of criminal jurisprudence. The conviction of the Appellant is based solely upon the testimony of PW1 Sumitra Devi. This witness has identified the Appellant and the co-accused on the basis of the photographs shown to her by the police during investigation. The witness has in her cross-examination stated that the Appellant was identified through eyes as seen in the photos. It is further stated that this testimony of PW1 is not corroborated by any other evidence and finds no direct or circumstantial evidence in its support. Further, the testimony of this witness does not inspire confidence. Learned counsel further contends that there is no recovery of the stolen articles from the Appellant and the recovery was made from one Mohd. Hanif, who was charged with offence punishable under Section 411 IPC and is acquitted by the learned Trial Court as no cogent evidence was produced against Mohd. Hanif by the prosecution and hence the prosecution failed to prove the charge against him. The State has not preferred any appeal against the said acquittal. Thus in view of this fact that the person from whom the recovery was made is acquitted and that there is no recovery of stolen articles, the identification of the appellant is also not clear and the other prosecution witnesses have not supported the prosecution case, there is no ground available to convict the Appellant. Hence the impugned judgment and order on sentence passed by the learned Additional Sessions Judge be set aside.
3. Per contra learned APP for the State contends that the impugned judgment suffers from no infirmity and the prosecution witnesses have clearly deposed against the Appellant. His role is described by the witnesses and he has been identified by both PW1 and PW2. PW1 has stated that the CRL.A. 347/2000 Page 2 of 11 Appellant was carrying a knife and co-convict was carrying a revolver at the time of incident. The prosecution has proved its case beyond reasonable doubt against the Appellant. Hence the present appeal has no merit and is liable to be dismissed.
4. I have heard learned counsel for the parties and perused the records.
5. Briefly the prosecution case is that on 29th March, 1992 at about 7.00 P.M. at House No. 5C/11, New Rohtak Road, New Delhi accused Mohd.
Aslam @ Aslam @ Ghora, Mohd. Saleem @ Saleem and Mohd. Hanif @ Kalya along with four other persons namely Tara Chand, Sanjay, Mohd. Tasleem and Khaleed armed with deadly weapons and in furtherance of their common intention and conspiracy, robbed one Daya Nand Gupta of cash, jewellary, silver utensils worth Rs. 6-7 lakhs on the point of pistol and knife. Accused Mohd. Aslam was arrested in some other case and in his disclosure statement he disclosed about his involvement in the present case along with the other accused persons. The other accused persons were also arrested and certain robbed articles of jewellary were recoverd at the instance of accused persons which were taken into possession by the police from the jeweller concerned and the accused persons were then arrested in the present case. FIR No. 85/1992 under Section 392/397/120B/34 IPC was registered at PS D.B.G. Road, Delhi against the accused persons on the basis of statement of Shri Daya Nand Gupta. Charge sheet was filed against all the seven accused persons. On 7th December, 1998 after the arguments on charge prima facie no case could be made against accused Tara Chand, Tasleem, Sanjay Jain and Khaleed (PO). Accordingly charges under Section 392/397/34 IPC were framed against the Appellant and Mohd. Aslam. Mohd. Haneef was charged under Section 411 IPC. After recording the statements of prosecution CRL.A. 347/2000 Page 3 of 11 witnesses and the accused persons under Section 313 Cr.P.C. learned Additional Sessions Judge acquitted Mohd. Haneef of the charges framed under Section 411 IPC and convicted the Appellant herein and Mohd. Aslam for the offences punishable under Section 392/397/34 IPC. Learned Additional Sessions Judge vide order on sentence dated 31 st May, 2000 sentenced the Appellant and co-convict as mentioned above. This judgment and order on sentence passed by the learned Additional Sessions Judge are impugned in the present appeal.
6. PW1 Smt. Sumitra Devi has deposed that on 29th March, 1992 at about 7.00 P.M. she was present in her house along with her husband, daughter Veena and servants Ramu and Bahadur. At that time the main door of the house was little open and two persons entered the house. They told that a murder had taken place in their factory and the police was chasing them. They requested that they should be allowed to remain in the house for about 10 minutes. Her husband then questioned them as to who they were, upon which one of them slapped her husband. Then one of them took out the revolver and the other took out a knife and asked her husband to remain silent. They then cut the wires of the telephone and gave a fist blow on the chest of her husband. Her daughter requested those persons not to beat him as he was a heart patient. Servant Bahadur who was working in the kitchen was brought in the room by the person who was holding the knife. They cut the curtains with the help of the knife and with those pieces of curtains they had tied all of them and also put the cloth in their mouth. They removed all the jewellary from her person and from the person of her daughter. Thereafter they got opened the almirah lying in the store from her husband and removed the silver utensils, coins, jewellary items and cash lying CRL.A. 347/2000 Page 4 of 11 therein. Her jewellary was of about 45 tolas of gold whereas the jewellary of her daughter was 50 tolas of gold. This witness has stated that she did not remember exactly the amount of cash which was removed. At that time one another person (third person) had also joined those two persons and after removing all the cash and articles of jewellary they tied and locked them inside the store room and then the accused persons left the house. This witness has identified accused Mohd. Aslam and Mohd. Saleem as the same persons, who had first entered her house, and accused Mohd. Aslam as a person, who was holding a revolver in his hand. She has further stated that accused Mohd. Saleem was the person who was armed with knife. However, she could not recognize the third person who had joined them. She has further stated that when they were locked inside the store, they managed to untie each other and could come out of the store after about half an hour of the incident. She has deposed that the accused persons remained in their house for about one hour. She has stated that later on some of their articles, that is, one chain, four karas (bangles), one ring and two earrings were recovered by the police which they had received on superdari. She further stated that when the robbers had come, faces of some of them were muffled with black cloth. At that time she was not able to identify them in muffled face and had identified them in the photographs which were not in muffled face. She has stated that the photographs were shown to her after a few month of occurrence. It is stated she identified those persons through the eyes which she had seen in the photograph as well as the time of occurrence. She was shown five or six photographs. She cannot identify other persons whose photographs were shown to her at that time. She has further stated that it is correct that the police had told her that those persons had come to CRL.A. 347/2000 Page 5 of 11 rob her house and they were the same persons who were shown in the photographs.
7. PW2 Veena has stated that on 29th March, 1992 she was present in the house of her parents at about 6.30-7.00 p.m., when her father, mother and servants were also present in the house. At that time one person rang the bell of the house upon which the servant Ramu opened the door and two persons entered inside the house. They were again joined by two other persons and they were armed with chaku chhuri. They demanded keys of the safe from her father and also gave fist blows on the chest of her father. They then gauzed their mouths with cloth pieces and then tied their hands and legs and confined them in a room and had taken away all the valuable articles such as cash and jewellary. It is further stated that she did not remember how much quantity or the weight of jewellary taken by them. She deposed that she cannot give the description of those jewellary items. She could also not tell the exact amount of cash robbed by them. She stated that it took about one hour for those persons to confine them and rob their house. She could not identify any of them since their faces were covered with clothe. She also stated that nothing of the robbed articles were later on recovered. The servants somehow untied them after breaking the door of the bathroom and then they came out. The police came there after about half an hour. This witness was declared hostile by the learned APP. In her cross-examination by the learned APP, she admitted that out of the persons, two were armed with revolver and two were armed with knives. This witness has also stated that she had seen accused Mohd. Aslam and Mohd. Saleem but cannot identify them amongst those four robbers. She further denied the suggestion that she had been won over by the accused persons or that out of fear she CRL.A. 347/2000 Page 6 of 11 was willfully not identifying the accused. It is further stated that it was wrong to suggest that their faces were not covered with any cloth at the time of incident or that she had seen their faces at that time. In her cross- examination this witness has stated that it took about 30-40 minutes to recover the keys of their locker and thereafter they had tied and confined them. Her father had given the keys of almirah/safe to those persons in that very room. After recovering the key from her father, they tied and confined them in a room adjacent to T.V. room nearby the store room. After confinement she could not know as to what articles were robbed by them and from where. She stated that if one is confined in that room nobody can see what is going on outside.
8. PW3 Vaishnav Babbar has stated that he was the president of Jewellar Association which is known as Dariba Saraff Association and is running a shop in the name of Babbar Jewellary Works, which is situated at 1582, Dariba Kalan. The shop of Vijay Kumar who also runs the business of jewellary is situated 10-12 shops ahead of his shop. This witness has been declared hostile by the prosecution as he stated that he did not know anything about the present case and that whether any incident of robbery had taken place at the shop of Vijay Kumar in the year 1992.
9. PW8 Sh. Brijesh Sethi, Metropolitan Magistrate has deposed that on 7th July, 1992 he had gone to Central Jail, Tihar to hold the TIP of accused Mohd. Haneef and Mohd. Saleem on the application moved by the Investigating Officer, SI N.R. Bharti. After the identification of the accused persons by the Assistant Superintendent, Tihar Jail he asked accused Mohd. Saleem regarding his willingness to participate in TIP to which the accused refused on the ground that he had been shown to the witnesses. Accused CRL.A. 347/2000 Page 7 of 11 Mohd. Saleem was explained about his right to participate in the TIP and consequences of his refusal to the effect that his refusal may be taken adversely against him. But he still refused and his statement was accordingly recorded. Accused Mohd. Haneef participated in the TIP conducted. Witness Ramu Prasad was called inside the room to identify the accused out of 11 persons of the parade upon which he failed to identify the accused Mohd. Haneef. Accordingly the proceedings were recorded and signed by the witness and PW8.
10. PW10 Sh. Vijay Kumar, has stated that he is running a jewellary shop by the name of Bhagwati Jewellars at 1652, Dariba Kalan, Chandni Chowk, Delhi. He has further deposed that he has seen Ex. PW3/B, which bears his signature at point „C‟. As per the receipt as far as he could remember he had bought the jewellary brought by some person for Rs. 60,000/-. This witness has failed to identify any of the accused persons and has been declared hostile by the learned APP for the State.
11. PW12 Inspector Ran Singh has deposed that on 24th May, 1992 he was posted at Section-II Crime Branch, Adarsh Nagar as sub-inspector. On that day during investigation of case FIR No. 24/1992 under Section 395/397/120B registered at PS Nand Nagri accused Mohd. Aslam made his disclosure statement regarding his involvement in the present case. On the same day Mohd. Aslam pointed out towards House No. 5C/11, New Rohtak Road and House No. L-110, Kriti Nagar where he along with his accomplice persons had committed robbery. On 25th May, 1992 Mohd. Saleem was arrested in case FIR No. 206/1992 under Section 25 Arms Act registered at PS Kashmere Gate wherein he made a disclosure statement to SI Prithvi CRL.A. 347/2000 Page 8 of 11 Singh. Appellant Mohd. Saleem also pointed out House No. C-5/11, New Rohtak Road.
12. A perusal of the testimony of the prosecution witnesses shows that the recovery of the stolen articles is doubtful in the present case. The only statement in regard to the recovery of stolen articles has been made by PW1 who has deposed that the recovered articles, that is, one chain, four bangles, one ring and two earrings were received by her husband on superdari. This witness has brought the four bangles, the necklace and chain. In the court when she was examined on 24th August, 1999 and had deposed that two earrings and a diamond ring which were released to her husband were not brought in the court. On 8th September, 1999 when she was present before the court for her further cross-examination, she deposed that her husband had given only three articles to her which she had produced and identified on the last day of her examination. No other articles of jewellary was given to her by her husband. Her husband had expired on 28th July, 1993. Further, the seizure memo of the stolen articles Ex. PW3/A records the recovery of six green and six red Meena studded bangles weighing 53 grams and 600 ml. grams, one gold chain weighing around 21 grams 650 ml.grams, one diamond studded gold necklace, two gold earrings studded with diamonds, one diamond studded gold ring. These articles have not been identified by any of the witnesses nor the complete case property was brought in Court. PW2 Veena Aggarwal has stated that nothing from the robbed articles recovered later on. The four bangles produces by PW1 in the Court were not studded with red and green Meena. In view of the contradictions and the fact that no proper TIP of the recovered articles was conducted, the recovery does not stand proved against the accused persons.
CRL.A. 347/2000 Page 9 of 1113. As regards the identification of the Appellant, the Appellant had clearly declined to participate in the TIP proceedings as he had been shown to the complainant in the Police station prior to the test identification parade. PW1 admits that she was shown the photographs. Further PW1 also states that when the accused came to her house, they were muffled and she could identify them by the eyes and she had seen the eyes at the time of incident and in the photographs. No further description of height, built or complexion has been given, nor is the same the basis of identification. The Hon‟ble Supreme Court in C. Muniappan and others vs. State of Tamil Nadu, 2010 (9) SCC 567 has observed:
"40. But the position would be entirely different when the accused or the culprit who stands trial has been seen a number of times by the witness, as it may do away with the necessity of identification parade. Where the accused has been arrested in presence of the witnesses or the accused has been shown to the witness or even his photograph has been shown by the investigating officer prior to test identification parade, holding an identification parade in such facts and circumstances remains inconsequential. (Vide Sk. Umar Dastagir Sab v. State of Karnataka, 2004 (3) SCC 106, Maya Kaur Baldevsingh Sardar vs. State of Maharashtra, 2007 (12) SCC 654 and Aslam vs. State of Rajasthan, 2008 (9) SCC 227.).
41. In Yuvaraj Ambar Mohite vs. State of Maharasthra, 2006 (12) SCC 512 this court placed reliance upon its earlier judgment in D. Gopalkrishnan vs. Sadanand Naik, 2005 (1) SCC 85 and held that if the photograph of the accused has been shown to the witness before the test identification parade, the identification itself looses its purpose. If the suspect is available for identification or for video identification, the photographs should never be shown to the witness."CRL.A. 347/2000 Page 10 of 11
14. There is no recovery of the weapon of offence i.e. the knife used by the Appellant at the time of the alleged commission of the offence. The testimony of PW1 is shaky and not corroborated by any other evidence on record.
15. Keeping in view the facts and circumstances of the present case, I am of the opinion that the prosecution has not been able to prove its case beyond reasonable doubt against the Appellant and he is entitled to the benefit of doubt. The present appeal is accordingly allowed. The appellant is acquitted of the charge framed. The impugned judgment and order on sentence qua the Appellant are set aside.
(MUKTA GUPTA) JUDGE JULY 11, 2012 'vn' CRL.A. 347/2000 Page 11 of 11