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Conviction for offence under section 302 and 392 read with section 34 IPC

Diganta Paul ,
  30 April 2013       Share Bookmark

Court :
SUPREME COURT OF INDIA
Brief :
The genesis of the case of the prosecution was that one Shama Parveen was living in House No.A-32/15, Main Road No.66, Maujpur, that while she was using the first floor as her residential premises she had her own shop in the ground floor where she was dealing with air-coolers and the business of real-estate. She had three sons living with her apart from her mother. In another portion of the same premises her maternal uncle one Mohd. Jamil (Mammu) was having his own business. One Salvinder alias Kake friend of Shama Parveen used to frequently visit her house. On 27.10.1998 Shama Parveen returned back to her house along with Salvinder after making certain purchases from the market and after her return appellant and two other persons entered her house and they were armed with revolvers and also a knife. After entering the house they enquired about Mammu and when Shama Parveen replied that he had gone to fetch vegetables the accused snatched a gold ring, locket and cash amounting to Rs.100/150 from Salvinder. They demanded the keys of the almirah of Shama Parveen and out of force when she handed over the keys the accused opened the almirah and removed sum of Rs.15000/- kept in the almirah apart from sum of Rs.2,50,000/- kept in the locker. They also removed a mobile phone and some other ornaments apart from ear rings and a necklace from the person of Shama Parveen. While so, Mohd. Jamil alias Mammu also entered the house and another friend of Shama Parveen, namely, Nasreen and her husband Jeeta also came there. Shama Parveen’s mother was already present in the house. After committing robbery, the appellant stated to have attempted to molest Shama Parveen and when Salvinder protested to such an attempt of the appellant questioning as to why even after removing the valuables they are indulging in such molestation, the appellant stated to have retarded towards him asking him to shut up and also simultaneously fired a shot on his forehead. Salvinder stated to have fell down on the bed. The three accused thereafter stated to have left the place with the robbed items and cash by locking the door outside the house. After 10-15 minutes one of the sons of Shama Parveen, namely, Danish entered the house who untied all the victims and thereafter the injured Salvinder was taken to the hospital where he was declared ‘brought dead’. Based on the statement of Shama Parveen the police registered a crime under Sections 392/354/302 read with Section 34 IPC at Police Station Seelampur, Delhi.
Citation :
Akil @ Javed …Appellant VERSUS State of NCT of Delhi …Respondent

 

Reportable

 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINA L APPEA L NO.173 5 OF 200 9

 

Akil @ Javed …Appellant

VERSUS

State of NCT of Delhi …Respondent

 

J U D G M E N T

 

Fakkir Mohamed Ibrahim Kalifulla, J.

 

1. First accused is the appellant before us. The challenge is to the judgment of the Division Bench of the High Court of Delhi in Criminal Appeal No.134/2003 dated 16.09.2005. The High Court by its common judgment in Criminal Appeal No.166/2003 preferred by the second accused and Criminal Appeal No.134 of 2003 preferred by the appellant before us confirmed the conviction of the appellant for offences under Section 302 as well as under Section 392 read with Section 34 IPC.

 

2. The genesis of the case of the prosecution was that one Shama Parveen was living in House No.A-32/15, Main Road No.66, Maujpur, that while she was using the first floor as her residential premises she had her own shop in the ground floor where she was dealing with air-coolers and the business of real-estate. She had three sons living with her apart from her mother. In another portion of the same premises her maternal uncle one Mohd. Jamil (Mammu) was having his own business. One Salvinder alias Kake friend of Shama Parveen used to frequently visit her house. On 27.10.1998 Shama Parveen returned back to her house along with Salvinder after making certain purchases from the market and after her return appellant and two other persons entered her house and they were armed with revolvers and also a knife. After entering the house they enquired about Mammu and when Shama Parveen replied that he had gone to fetch vegetables the accused snatched a gold ring, locket and cash amounting to Rs.100/150 from Salvinder. They demanded the keys of the almirah of Shama Parveen and out of force when she handed over the keys the accused opened the almirah and removed sum of Rs.15000/- kept in the almirah apart from sum of Rs.2,50,000/- kept in the locker. They also removed a mobile phone and some other ornaments apart from ear rings and a necklace from the person of Shama Parveen. While so, Mohd. Jamil alias Mammu also entered the house and another friend of Shama Parveen, namely, Nasreen  and her husband Jeeta also came there. Shama Parveen’s mother was already present in the house. After committing robbery, the appellant stated to have attempted to molest Shama Parveen and when Salvinder protested to such an attempt of the appellant questioning as to why even after

removing the valuables they are indulging in such molestation, the appellant stated to have retarded towards him asking him to shut up and also simultaneously fired a shot on his forehead. Salvinder stated to have fell down on the bed. The three accused thereafter stated to have left the place with the robbed items and cash by locking the door outside the house. After 10-15 minutes one of the sons of Shama Parveen, namely, Danish entered the house who untied all the victims and thereafter the injured Salvinder was taken to the hospital where he was declared ‘brought dead’. Based on the statement of Shama Parveen the police registered a crime under Sections 392/354/302 read with Section 34 IPC at Police Station Seelampur, Delhi.

3. Be that as it may, based on a secret information the appellant and the second accused were arrested by officials of the Special Cell, Lodhi Colony from Sunlight Colony, Seema Puri while they came there in a vehicle bearing Registration No.DL-2C-B 1381. Pursuant to the arrest when a search was made on the person of the second accused a loaded country-made pistol was recovered from his pant pocket. On the personal search made on the appellant he was also found in possession of another country-made pistol along with live cartridges. Cases were registered against them under the Arms Act vide FIR No.717 and 718/1998 at Police Station Seema Puri. Further recoveries were also made from the person of the appellant, namely, a gold chain and a ‘Rado’ wrist watch. Based on the further investigation it came to light that they were involved in the incident on 27.10.1998 at the residence of Shama Parveen. The investigation further revealed apart from the appellant and second accused two other accused were also involved but they continued to remain absconding and, therefore, they were declared as proclaimed offenders.

 

4. The trial Court framed charges against the appellant and the second accused under Section 392/34, 302/34, 354 and 411/34 IPC. The trial Court ultimately convicted the appellant as well as second accused for offences under Sections 302 read with 34 and 392 read with 34 IPC. They were acquitted of the offence under Section 354 IPC as there was no evidence against them. The appellant and the second accused were imposed with a sentence of life imprisonment for the offence under Section 302 read with 34 IPC apart from a fine of Rs.5000/- each and in default to undergo rigorous imprisonment for one year. They were also imposed with a sentence of 10 years rigorous imprisonment for the offence under Section 392 read with 34 IPC apart from a fine of Rs.5000/- each and in default to undergo rigorous imprisonment for one year.

 

5. The Division Bench having dealt with the appeal of the appellant in extentso ultimately found that the second accused could not be roped in for the offence falling under Section 302 read with 34 IPC though his conviction under Section 392 read with 34 IPC could be confirmed. The Division Bench of the High Court, therefore, partly allowed the appeal of the second accused and he was acquitted of the charge under Section 302 read with 34 IPC while his conviction under Section 392 read with 34 IPC was confirmed. The appeal preferred by the appellant, however, came to be dismissed. Being aggrieved of the said judgment of the Division Bench the appellant has come forward with this appeal.

 

6. We heard Mr. Subramonium Prasad, learned counsel for the appellant and Mr. B. Chahar, learned senior counsel for the respondent. The learned counsel for the appellant submitted that the case of the prosecution was based on the ocular evidence of the eye-witnesses and that almost all of them turned hostile insofar as identification of the accused, that PW.20 who alone identified the accused in his chief examination also turned hostile in the course of the cross examination. The learned counsel, therefore, contended that the evidence of PW.20 could not have been relied upon for the conviction and sentence imposed. The learned counsel then contended that the Courts below relied upon the articles recovered, namely, the jewels and the watch for convicting the appellant. According to learned counsel PW.17, who identified the articles, made it clear that those articles were already shown to her and, therefore, the reliance placed upon such recoveries was not justified. The learned counsel further contended that the recovery of arms from the appellant and the other accused were not connected to the offence and that no weapon was marked before the Court to connect the crime. By referring to the decision of this Court reported in Paramjeet Singh alias Pamma V. State of Uttarakhand - (2010) 10 SCC 439 in particular paragraph 10 of the said decision the learned counsel contended that however gruesome the offence may be, an accused can be

convicted only based on legal evidence. The learned counsel also referred to Section 155 of the Evidence Act and contended that the version of PW.20 in the light of his later version in the cross-examination relating to the identity of the appellant no credence can be given as that

would defeat the very basis of the principle relating to conviction in a criminal case. The learned counsel also relied upon Suraj Mal V. State (Delhi Administration) - (1979) 4 SCC 725 for the proposition that where the witnesses made inconsistent statements in their evidence either at one stage or at different stages, the testimony of such witnesses becomes unreliable and unworthy of credence. The learned counsel, therefore, submitted that the reliance placed upon the version of PW.20 who made inconsistent statement about the identity of the appellant was wholly invalid and unreliable. The learned counsel, therefore, contended that the conviction and sentence imposed on the appellant are liable to be set aside.

 

7. As against the above submission Mr. B. Chahar, learned standing counsel for the State submitted that the relevant fact to be kept in mind is the criminality of the offenders involved in this case where out of four accused two of them continue to abscond even as on date who have been declared as proclaimed offenders. The learned counsel, therefore, submitted that the approach of the trial Court and the High Court in weighing the evidence of the witnesses and relied upon was well justified. The counsel for the State also brought to our notice the attempt of the Investigating Officer by moving the concerned Magistrate, who allowed him to interrogate the accused in the case under the Arms Act for 30 minutes, to hold a Test Identification Parade of the accused which included the appellant and the appellant along with the co-accused refused to participate in the Test Identification Parade. Further it was pointed out that their refusal to participate would result in drawing an adverse inference against them. But yet it is stated that the appellant and the other accused persisted in their refusal by stating that they were shown to the witnesses and that their photographs were also taken. The learned counsel submitted that such a stand of the appellant and the other accused was a lame excuse inasmuch as the information about the arrest of the accused was given to the Investigating Officer only on 4th November 1998 when they were formally arrested in the present case and that the Investigating Officer was thereafter allowed to interrogate the accused for about 30 minutes only and that too in the Court premises. The request of the Investigating Officer to hold Test Identification Parade was stated to be on the very next date, namely, 5th November, 1998. The learned counsel then submitted that the identity of the articles, namely, ‘Rado watch’ and ‘gold chain’ recovered from the appellant was duly identified by PW.14 and PW.17, the S.I. who conducted the search on the accused and the complainant respectively and that both of them were recovered on the same day. The learned counsel, therefore, submitted that the conviction and sentence imposed on the appellant does not call for interference.

 

8. Having heard learned counsel for the appellant as well as the counsel for the State, having bestowed our serious consideration to the respective submissions, the material on record and the relevant provisions, we are convinced that the conviction and sentence imposed on the appellant does not call for interference.

 

9. When we consider the submissions of learned counsel for the appellant the same was two-fold. According to learned counsel the identity of the appellant vis-à-vis the offence alleged was not made out. As regards the recoveries it was contended that here again the same was not proved in the manner known to law. Since, in the impugned judgment the High Court has dealt with both the contentions in extensor and also with minute details, we are of the view that by making reference to various reasoning stated therein the contention of the appellant can be satisfactorily dealt with which we shall do in the later part of this judgment. In that respect it can be stated that the prosecution examined PWs.17, 19, 20, 23 and 25 as eye-witnesses to the crime. In fact such a claim of the prosecution was never in dispute. The  narration of the event that occurred on 27.10.1998 at House No.A-32/15, Main Road No.66, Maujpur, as described by those witnesses was not in controversy.

 

10. The sequence of events were that on that day at about 6:00 p.m three intruders in the age group of 20 to 22 years entered the place of occurrence and that out of the three persons two were armed with revolvers and one was possessing a knife. The description of those persons and their physical features were also mentioned by the complainant by stating that one of them was thin, whitish in complexion and had a cut mark on his right cheek. The other one was described as fair coloured, without moustaches and tall. The third person was described as a person with round face and well built. After entering the house they asked for the whereabouts of Mammu who was examined as PW.20. Thereafter, they snatched a gold ring from the person of deceased Salvinder and also a locket and cash of Rs.100/150 from him. Then they asked the complainant, who was in possession of the keys of the almirah, noticing the keys were in her hand bag, when she opened her hand bag to pay some cash to a juiceman. The intruders forced her to handover the keys of the almirah by threatening to shoot at her as well as her children with the revolver. Thereafter, they robbed cash kept in the almirah to the tune of Rs.15000/- and another sum of Rs.2,50,000/- in the locker and also a mobile phone and jewels kept in the almirah. They also stated to have removed Valiya, a gold

chain and three rings which the complainant was wearing. After robbing of the complainant’s cash and jewels and other materials when the appellant attempted to molest the complainant the deceased stated to have raised a protest at which point of time the appellant stated to have shouted at the deceased by saying that he was talking too much by pointing the revolver towards him and shot him which snatched away the life of the deceased. According to the complainant, thereafter, they bolted the door from outside the house and left the scene of occurrence.

 

11. This sequence was consistently maintained by complainant – PW.17 before the Court which was fully supported by the other eye-witnesses, namely, PWs.19, 20, 23 and 25. When it came to the question of identifying the accused, out of the three only two, appellant and co-accused alone, were apprehended and proceeded against and they were in Court. Since the other accused was absconding and continue to abscond even as on date the trial Court proceeded with the trial. When it came to the question of such identification, the judgment of the trial Court as well as that of the High Court has elaborately considered and found that while the other witnesses could not identify the appellant and the other co-accused even in the Court. PW.20 was able to identify the appellant as the person who attempted to molest the complainant – PW.17 and when the deceased raised a protest the appellant shot him and thereafter the deceased fell down. Unfortunately, on 18.09.2000, the trial Court adjourned the case for cross-examination of PW.20 by two months. His cross-examination was conducted only on 18.11.2000 as the case was adjourned. The reason for the adjournment was a mere request on behalf of the appellant that his counsel was busy in the High Court. The High Court in the impugned judgment has stated that such a long adjournment provided scope for maneuvering.

 

12. In the course of cross-examination PW.20 made a different statement as regards the identity of the appellant by stating that he was tutored by Inspector Rajinder Gautam who met him before his examination-in-chief. In the light of the said development it was contended on behalf of the appellant that irrespective of the crime as described by the eyewitnesses taken place on the fateful day there was absolutely no legally acceptable evidence to connect the appellant with the crime. Learned counsel relied upon Section 155 of the Evidence Act in support of his submission. The learned counsel also relied upon the decisions reported in Paramjeet Singh (supra) and Suraj Ma (supra). We can also refer to some of the decisions reported in Kunju Muhammed alias Khumani and another V. State of Kerala - (2004) 9 SCC 193, Nisar Khan alias Guddu and others V. State of Uttaranchal - (2006) 9 SCC 386, Mukhtiar Ahmed Ansari V. State (NCT of Delhi) - (2005) 5 SCC 258 and Raja Ram V. State of Rajasthan - (2005) 5 SCC 272 in respect of the said proposition of law.

 

13. Both the trial Court as well as the High Court ignored the inconsistency in the statement of PW.20 as regards the identity of the appellant and proceeded to rely upon what was stated by him in the chief-examination while convicting the appellant and ultimately imposing him the sentence. It is relevant to mention that the appellant as well as the co- accused were charged under Section 392 IPC as well apart from the charge under Section 302 read with 34 IPC. In fact, we find from the judgment of the trial Court that specific charge was framed against the appellant for the offences under Sections 302 read with 34 and 392 read with 34 IPC. They were charged under Section 354 read with 34 IPC and were acquitted for the said offence.

 

14. As we come back to the offence alleged against the appellant, as noted earlier, the charge was both under Section 302 read with 34 and 392 read with 34 IPC. Leaving aside the identity aspect dealt with by the Courts below, as far as the appellant and the other accused are concerned, another important factor which weighed with the Courts below to find them guilty was the identity of the materials which were recovered from the appellant and the co-accused on 03.11.1998 when the appellant and the other accused were arrested under the Arms Act. A ‘Rado watch’ and a ‘gold chain’ were recovered from the personal search of the

appellant. Search was conducted by S.I. A.S. Rawat who was examined as PW.14. He testified such fact that the said recovery was made by him from the person of the appellant. PW.17 clearly identified both the articles as belonging to her which were stealthily removed from her possession. In so far as the said part of evidence is concerned (viz), as regards the recovery, it was contended that no public witness was joined at the time of arrest of the accused in spite of prior information which was available with the police. The said contention was rightly rejected by both the Courts below as unsustainable.

 

15. As far as the identity of the recovery of articles was concerned, the version of PW.14 was unassailable. It was only contended that the identity by PW.17, as regards the ‘Rado watch’, cannot be relied upon inasmuch as the same was not mentioned in the FIR. Here again, the Courts below righty rejected the said argument inasmuch as it was a very minor discrepancy and on that score such a diabolic offence committed by the accused cannot be ignored. The other contention that the material objects were shown to PW.17 is also trivial and that does not cause any serious dent in the case of the prosecution. In the said circumstance it was for the appellant to explain as to how he came into possession of the articles whether it was owned by him or in what other manner those articles came into his possession. In this respect it was noted by the Courts below that in his statement under Section 313 Cr.P.C he did not even attempt to explain it away or claim ownership. He stated to have simply denied of the recovery made from him. In such circumstances, recoveries from the appellant along with the

co-accused having been proved in the manner known to law, those were well established incriminating circumstances demonstrated before the Courts below and there was no contra  evidence for the appellant and the co-accused to get rid off the offences alleged. Having regard to the said piece of evidence relating to the recoveries prevailing on record the presence of the appellant along with the co-accused at the place of occurrence in the manner described by the witnesses, namely, PWs.17, 19, 20, 23 and 25 was clinching enough to rope in the appellant along with the co-accused in the commission of the crime as alleged in the complaint and found proved against both of them.

 

16. At this juncture we feel it appropriate to refer certain conclusions of the trial Court as well as the High Court as regards the recoveries from the appellant and the co-accused to add credence to our conclusions. Such conclusions of the trial Court are found in paragraphs 18 to 27. The relevant portions are found in paragraphs 2, 18, 26 and 27. In the rest of the paragraphs, namely, 19 to 24 the trial Judge has referred to the decisions of this Court reported in State of Punjab V. Wassan Singh and others - AIR 1981 SC 697, Sohrab and another V. State of Madhya Pradesh - AIR 1972 SC 2020, Appabhai and another V. State of Gujarat - AIR 1988 SC 696, Bharwada Bhoginbhai Hirjibhai V. State of Gujarat - AIR 1983 SC 753, Sanjay alias Kaka V. State (NCT of Delhi) - 2001- (CR)-GJX-0071-SC, Ezhil & Ors. V. State of Tamil Nadu – 2002 II A.D. (Cr.) S.C. 613, State of Maharashtra V. Suresh -  (2000) 1 SCC 471, Nallabothu Venkaiah V. State of Andhra Pradesh - 2002 VI AD (S.C.) 521. The relevant findings are found in paragraphs 2, 18, 26 and 27 which read as under:

 

“2. ….During personal search of accused Akil one Rado wrist watch and one gold chain were also recovered which were seized vide memo Ex.PW.14/A after being sealed with the seal of ASR. The articles were got identified from Smt. Shama Parveen before Sh. S.K. Sharma, Ld. M.M. on 28.1.99. Thus, the police pinned the murder and robbery upon them and booked them under sections 392/354/302/411/34 IPC. On 5.11.98, I.O. Inspector Rajinder Singh moved an application for holding test identification parade of both the accused persons. Both the accused refused to join TIP.

 

18. ….In the instant case SI A.S. Rawat stated that one country made pistol, two live cartridges, one rado watch and golden watch were recovered from accused Akil @ Javed. However, SI Jasod Singh stated that a golden chain was recovered from accused Muslim. The recovery memo shows that their goods were recovered from the possession of accused Akil.

 

26. The last submission made by the Ld. Defence counsel was that no reliance should be placed on the identification parade of the goods in question because Shama Parveen, PW2, stated that she had identified the goods in the police station before joining the T.I.P.

 

27. If these goods do not belong to Smt. Shama Parveen, why did not the accused claim it?  unequivocally stated that these goods belonged to her. Nobody has disputed this fact. The T.I.P. of goods like watch or chain is not that necessary. Such like goods can be identified by a person who uses it everyday. Identification or non-identification of such like goods before the T.I.P. is meaningless and does not carry much weight.”

 

17. The High Court on its part has stated as under in paragraphs 10, 24, 25, 26, 27, 28 and 30.

 

 “10. Before we proceed to deal with the submissions as referred to above, what needs to be emphasized is that during arguments before us, it was not the case of the appellants that on the day of the commission of the offence, Shama Parveen and deceased Salvinder were not present in house No. A-32/15, Main Road no.66, Mauzpur, Delhi. It was also not their case that no robbery had taken place or Salvinder had not been murdered. We say so since on these aspects the witnesses for the prosecution were not subjected to cross - examination by the appellant s. Even otherwise, the fact that Shama Parveen and Salvinder were present at the above mentioned house, the further fact that three persons had barged into that house, robbed the lady of her jewellery and other items, and thereafter, tried to outrage her modesty which when objected to by Salvinder cost him his life at the hands of one of the intruders, stand proved beyond doubt from the statements of PW- 17- Shama Parveen, PW-19 Gurmeet Singh, PW- 23 Noorjahan and PW-25 Smt. Gurdeep Kaur, all of whom, by and large deposed as per the FIR lodged by Shama Parveen to the police soon after the incident. Thus, to that extent, we would be justified in saying that there was no challenge to the prosecution version. We may say at the cost of repetition that the only defense taken by the accused persons was that they were not the persons who committed either the robbery or the murder of Salvinder.

 

24. It is in evidence that on 3rd November, 1998 when the appellants were arrested under the Arms Act, certain recoveries were made from their persons. We are here concerned with the `Rado wrist’ watch and a `gold chain’ which were recovered from the personal search of accused Akil. It was S.I. A. S. Rawat who had conducted the personal search of the said accused after he was apprehended at Sunlight Colony. He appeared before the Trial Judge as PW-14 and testified to the effect that he recovered a `Rado’ wrist watch and a gold chain from the person of accused Akil. It was not the case of appellant Akil that the said `Rado ’ wrist watch or gold chain were owned by him . Eve n in hi s statement recorded under Sectio n 31 3 Cr . P.C , he mad e no such claim . He simply denie d tha t an y recovery was mad e from him . On the other hand, Sham a Parveen, identified the two articles and claimed that the y belonge d to her. The recovery of articles Therefore stands proved from the evidence of these two witnesses.

 

25. It was next submitted by the learned counsel for the appellants that the prosecution though examined three witnesses namely, SI Satyajit Sareen (PW-3), SI Jasood Singh (PW-18) and SI A. S. Rawat (PW-14) to prove the recovery of ‘Rado’ wrist watch and ‘gold chain’ from accused Akil but it was only SI A.S.Rawat who spoke about the recovery of those articles from the accused. The other two were silent about the same. It was therefore contended that had the recoveries been actually effected as claimed by the prosecution all the three witnesses would have spoken about the same. Responding to the contention, it was submitted by learned counsel for the State, Ms. Mukta Gupta, that after the apprehension of both the appellants, the raiding party got divided into two groups and the search of the two appellants was taken separately. One raiding party was headed by SI Satyajit Sareen and the other by SI A. S. Rawat. It was for this reason that SI Satyajit Sareen was silent about the recovery effected from accused Akil. Learned counsel also pointed out that SI Jasood Singh was in the raiding party headed by SI Satyajit Sareen and that is why, he too was silent with regard to the recovery of a `Rado’ wrist watch and a gold chain. The Explanation so tendered by the counsel is borne out from the evidence of SI Satyajit Sareen and SI Jasood Singh.

 Please check the full judgment in attached file...

 
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