Disposed

Darshana and Ors. v. Prashant Vasudeva

Delhi HC15 Mar 2018CONT.CAS(C)/619/2017

Case brief

AI extract

What is this about?

Robbery convictions were upheld on identification evidence and refusal to participate in TIP. The court rejected the procedural challenge to production and arrest, but reduced imprisonment from seven to four years, retaining the fine and default imprisonment. The appeals and pending applications were disposed of.

What did the court decide?

Rigorous imprisonment reduced from seven years to four years for each appellant; fine and three months' default simple imprisonment retained.

Darshana and Ors. Vs Prashant Vasudeva — Criminal Trial and Appeal | Delhi HC (2018)

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Signature Not Verified Signing Date:20.01.2025 17:09:35 Certify that the digital and physical file have been compared and the digital data is as per the physical file an d no page is missing. CRL A. Nos. 619, 620, 621& 900 of2017

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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, AFP for State.

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AND

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CRL. A. 900/2017 and CRL.M.(BAIL) 249/2019

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KHOKAN @ GUDDU .....Appellant

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Versus

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STATE (G.N.C.T. OF DELHI) Respondent

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Advocates who appeared in this case For the Appellant ;Mr Anwesh Madhukar and Ms Prachi Nirwan, Adyocates. For the Respondent :Mr Amit Gupta;APP for State.

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CORAM

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HON'BLE MR JUSTICE VIBHU B^KHRU

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JUDGMENT

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VTRHU BAKHRU, J -

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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 'IPG'). 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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CRL. A. Nos. 619, 620, 621& 900 of 2017

The appellants were charged with committing offences punishable under Sections 392/411/34 of the IPG. In addition, Sandeep (the appellant in Crl. A. 620/2017) was also charged with committing an offence punishable under Section 397 of the IPG. The Trial Gourt acquitted the appellants of all charges, other than the charge of committing an offence punishable under Section 392 of the IPG, 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 Grl.A 900/2017). Accordingly, the accused Sandeep was acquitted of the charge for committing an offence punishable under Section 397 of the IPG ; ^

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3 Whilst the appellaitts 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 o the material ivitnesses identifying them are inconsistent. The appellants fiirther contend that, in any event, the testimonies of the witnesses identifying them as the offenders, are unreliable, as they were shown to the wimesses in the police station and the cou premises prior to the TIP proceedings. 4 In the early hours of 17.01.2007, a PGR call was received regarding a robbery at A-12, Industrial Area, Phase-I, Mangolpuii,

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of 2017

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. lOB (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.PWlO/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 [5zc] of his workers, namely, Krishan, Ishwar @ Mintbo and Rajesh Kumar @ Bangali were sleeping on the duchhati m the office ropm. In addition, two security guards named Arvind and Devnath were on duty outside the office. They were armed with MA.. He alleged that at about 02:00 am, one person was seen bringing Jdie jt^o^?^ guards inside the premises on a gunpoint. He brbughi thh 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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CRL. A. Nos. 619, 620, 621& 900 of2017

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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, Wved 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 ot the make Sunrise, eighteen cartons of inverter parts, fourcartons of Action shoes and twenty-three boxes of Boroplus. The robbers then clpsed the shutter of the office from outside and fled after looting the gbods. He also stated that the said accused deflated the tyres.pf the tempo, which was driven by Bansi. He stated that he could recognize the accused, if they were brought before him. , • ;

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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.

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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 comer of the road

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CRL. A. Nos. 619, 620, 621& 900 of2017

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towards the forest. Five minutes later, one Tata tempo 407 (bearing Registration No. DL-lLE-0041) came to the spot ftom 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.

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The accused were arrested in FIR No. 135/2007, under Sections 399/402 of the IPG, 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 ba,sis of the disclosure statements, certain recoveries were made. In all, two sewing machines of the make Kajal, twenty-eight packets of'Bqroplus cream and three Power Link UPS were recovered. The Bordpltas packets ^ w 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.

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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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CRL. A. Nos. 619, 620, 621& 900 of2017

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No. 62B. On receipt of the said DD, the 10 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 IPG 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-lLE-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 10 also filed an application for eonducting the TIP of the accused but they refused to participate in the TIP proceedings. Thereafter, the 10 sought for police custqd;^ ohlhe .aGCus^ for a single day, which was granted. The 10 took the hcchsed'tb'^f^ place of oeeurrenee 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.

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Evidence

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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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CRL. A. Nos. 619, 620, 621& 900 of 2017

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Mangolpuri. Delhi) at the material time are relevant and briefly noted below.

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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 (PW6) 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 affinned 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 I recorded in the same. He stated that Bansi had come after about 15

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CRL. A. Nos. 619, 620, 621& 900 of2017

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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 lO. He stated that Sonu informed the police on a mobile that he had bon-owed 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.

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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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CRL. A. Nos. 619, 620, 621& 900 of2017

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Bansi Lai 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 crossexamination, 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 ageiicy, 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. , • f

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Sonu (the complainant) depbsed-a^/^W-10. He stated that in the intervening night of 16.01.i007|g.pf£0^ along with three of his workers namely Krishan, Rajesh and lshwar 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 fi-om 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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CRL. A. Nos. 619, 620, 621 & 900 of 2017

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came. The aceused snatehed 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 hts 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 crossexamination, 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 pqliCe officials had come along with the accused to his office, atmbodf:04:Joapipir: < ^ I A". iV..'

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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 Cm 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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CRL A. Nos. 619, 620, 621& 900 of2017

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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, i 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 Khokhaii. He stated that it would be wrong to suggest that the description,of the accused Pradeep, Sandeep and Ghulam are matching with the robbdra 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 h^dedj,^; s^ed that the transport office has only one floor and there w& h^irig;C(Silstructed on its roof He stated that the police came to the, agency at about 05:30/06:00 am.

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Rajesh Kumar deposed as PW-12. He,stated that in January, 2007, he was working at Om Transport Agendy 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 I 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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CRL A. Nos. 619, 620, 621& 900 of2017

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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.

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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 comer. 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 .Ihe accused other than Gulam and Khokhan. In his cross-examination, |y the PP, he affirmed that his statement was recorded by the pohce twice - on 17.01.2007 and on 27.02.2007. He affirmed that he/had state^v 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 fhe 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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CRL. A. Nos. 619, 620, 621& 900 of 2017

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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.

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Reasons and Conclusion

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) 17. The Trial Court evaluated the testimony of all the witnesses and held that it was evident from , the testimbny of the various witnesses that the incident of robbery had taken place as alleged.

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Insofar as recovery of articles is concerned, the Trial Court held that the prosecution had Mlpd:itG any reasonable doubt that the articles recwre^;^brp th^^^ 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 sarhe were readily available m the market. The said reasoning cannot be faulted. Vmod 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 i Singh (PW-21) and the seizure memo (Ex.PW2/A) was prepared. 1 However, the said documents (Ex.PW5/l to PW5/8) do not clearly established the identity of the goods in question. It is also relevant to

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Page 14 of 26 CRL. A. Nos. 619, 620, 621 & 900 of 2017

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note that none of the said doeuments 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/l 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^ill of Powercell Electronics in respect of three separate articles including 24 pieces of "Home UPS 'bOO 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 / ' i f referred to as "Keshav Kumar G/o Diili Qhand Om Prakash" and the name of the consignee is referred to as "Garg Bartan Bhandar". The said document also mentions thaf it isi'a driy copy. Ex.PW5/7 is a document generated by Lion Transport Co. mentioning the description of the goods as "S.Machine''. EXiPWS/S- is alddcument eaptioned as a "repairing bill" issued by M/s Dhawan Electronics in respect of 10 machines (Kajal). None of the doeuments 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.

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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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j III ! I

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.

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III 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 I the name of Dhawan ElectTonics. He testified that he had purchased 15 sewing machines of brand Kajal from Ludhiana and out of the said machines, he had sold five machinesTrom 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 RI^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 c6h|irm'efr;the serial numbers of the sewing machines. He also rstated/that he -pduld identify the sewing machines if shown to him. At that stage, a sealed parcel was opened and one sewing machine of the make Kajal alqng with the cardboard box was taken out. The said witness identified the sewing machine. I However, in his cross-examination, he conceded that this carton did j not have any private mark as testified by him earlier. He was I 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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CRL. A. Nos. 619, 620, 621& 900 of 2017

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transporters had not issued any document in respect of the booking of the goods to him.

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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 IPG. This Court concurs with the said view as there is little evidenee 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 copform to the number of persons alleged to have eommitted the i^bbery./Imrther, the goods allegedly robbed and those as disclosed in the disclosure statement, are also not the same. In the disclosure statements of the aceused, 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 ineident.

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The accused Sandeep was also charged with committing an offence punishable under Section 397 of the IPG. 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.

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To be noted, the State has not prefeired 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.

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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. ,. .

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Mr Piyari, learned cbun&^ii^p^afing^ accused Sandeep (the appellant in CRL.A. 6i20 of 2017), submitted that the identification of the accused person in court eould 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 10 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 Betich 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 further stated that the accused were also shown tp PW-10 ;an^' P subsequent to the TIP proceedings and therefore, theli-. i^tiiiidny W the accused in court could not be relied upon.

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Next, he submitted that the entire'pro^ 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 mj 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.

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¶129

¶130

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 variqus' witnesses and contended that their testimonies could not be relied upon ,to establish that the appellants were involved in committing the; alleged offence.

¶131

Mr. Singhal, learned cof[^dh%ipe^ing 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 I 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.

¶132

CRL. A. Nos. 619, 620, 621& 900 of2017

¶133

Page 20 of26

¶134

Mr Pujari's contention that the procedure adopted by the mvestigating 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.

¶135

¶136

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 puiposes of their arrest in the present case, is accepted, the appellants have failed to establish thaf they were unfairly prejudiced by the same. In terms of Sectioif^^bSitjf the Cr.PC, the impugned judgment convicting the appeHhhtsl^eannphbV ealled 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 appellhhts befdre 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.

¶137

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

¶138

CRL. A. Nos. 619, 620, 62I& 900 of2017

¶139

Page 21 of26

¶140

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 aeeused prior to the TIP proeeedings. .

¶141

The proseeution had examined/seven witnesses - PW-6, PW-7, PW-9, PW-11, PW-12, - for the purposes of identifying the appellants as the/;.dffende^^^ who were involved in eommitting the robbery on the dke of the ineident

¶142

¶143

PW-6 had identified the accused Pfadeep and the aeeused 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 Ageney in question and had no coneem with it. He was a nephew of the owner. There is no reason for

¶144

CRL A. Nos. 619, 620, 621& 900 of2017

Page 22 of26

him to be present at the spot at the given time. Ftrthermore, his testimony is materially inconsistent with the testimony of the other witnesses. None of the other witnesses have testified that the aeonsed 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 Triar Court rightly ignored -his testimony for the purposes of identification of the accused.

¶149

PW-7 (Arvind) had categorically stated in his examination-inchief that he cannot identify ihe} dssdilants as they were muffled faces'". He was cross-examined^y-ithe.T^ APP. In his crossexamination, he conceded that Ihe had fold 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 concemed.

¶150

¶151

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

¶152

CRL. A. Nos. 619, 620, 621& 900 of2017

Page 23 of26

put a blanket on his head and he categorically stated that he could not tdentify those persons. He was cross-examined by the learned APP. However, he was finn 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 leamed counsel for the accused he categorically stated that he had not seen the accused present in the court on the day of the incident.

¶157

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 o country made pistol. However, it is not the prosecution's case that the accused Khokhan was wielding uny fyeaiin. He was cross-examined and in his cross-examination,; ie vdenied the suggestion that the accused Pradeep, Sandeep and (^ulam 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 o accused persons other than the accused Khokhan.

¶158

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

¶159

CRL A. Nos. 619, 620, 621& 900 of 2017 Page 24 of26

¶160

¶161

¶162

state which of the accused was carrying a knife. However, if is also important to state that he testified that one or two persons had covered then faces. He also stated that he could not identify the pistol if it was shown to him.

¶163

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 crossexamination, 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.

¶164

¶165

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 Kiokhan was carrying the pistol.

¶166

It is seen from the ^ove^ih^vioii^^fe^^ (PW-10, PW-li, 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. O 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

¶167

CRL. A. Nos. 619, 620, 621& 900 of 2017 Page 25 of26

¶168

¶169

dechnad 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.

¶170

¶171

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 veiy young at the material time. All of the appellants have minor children and their families to support.

¶172

Considering the abo:ve, -this Coi^vconsiders it apposite to reduce the sentence awarded tP the'a|iipeilants to four years of rigorous imprisonment along with the fihSof'#,000/- each and in the event of failure of payment of fine, to undergo simple imprisonment for a further period of three months. If is,so directed i

¶173

The appeals are disposed of in the aforesaid terms. All pending applications are also disposed of.

VIBHU BAKHRU, J

NOVEMBER 09, 2020

CRL. A. Nos. 619, 620, 621& 900 of2017

¶179

Page 26 of26

Darshana and Ors. v. Prashant Vasudeva

Case brief

What is this about?

What did the court decide?

Darshana and Ors. v. Prashant Vasudeva

Case brief

What is this about?

What did the court decide?

What the court decided

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