MUNIR @ CHOTA Vs. STATE

JUDGEMENT

(1.) MUNIR @ Chota (A -1), Dulal (A -2) and Harun (A -3) challenge the legality and correctness of a judgment dated 19.12.2011 of learned Addl. Sessions Judge in Sessions Case No. 37/10 arising out of FIR No. 91/09 PS Harsh Vihar by which they were held perpetrators of the crime under Section 395 IPC. By an order dated 24.12.2011, they were sentenced to undergo RI for ten years with fine Rs. 20,000/ -, each.

(2.) THE prosecution case as revealed in the charge -sheet was that on 23.05.2009 at about 01.50 a.m. at House No.A -181, Gali No.6, Mandoli Extension, the appellants and their associates Aftab @ Daboo and Yamin @ Kalia committed dacoity. Daily Diary (DD) No. 7B was recorded at PS Mehrauli on getting information about the occurrence from PCR. The investigation was assigned to ASI Rakesh Tyagi who with HC Rishi Raj went to the spot. He lodged First Information Report after recording complainant ­ Satender Kumar's statement (Ex.PW -3/A) under Sections 394/34 IPC. Injured ­ Satender Kumar was taken to GTB hospital where he was medically examined. The complainant disclosed that three / four individuals who had entered inside the house by jumping over the wall robbed Rs. 19,500/ -, gold ring and purse containing his school I -card. The intruders were armed with weapons and on his resistance, he was caused injuries. Efforts were made to find out the culprits but in vain. Further case of the prosecution is that on 25.05.2009, Sakir, Mohd.Rahim, Mohd.Harun (A -3), Mohd.Munir Bada, Dulal (A -2), Munir Chota (A -1) and Kamal were arrested by the police of Special Staff, South District, in case FIR No. 267/2009 under Sections 399/402 IPC and 25 Arms Act, PS Mehrauli. Various weapons were recovered from them. Their involvement in the instant case emerged in the disclosure statements made by them. Intimation was given to the Investigating Officer of this case and DD no. 2B was recorded. PW -21 (SI Rakesh Tyagi) arrested Rahim, Sakir, Bada Munir, Chota Munir, Kamal, Yamin @ Kalia, Aftab, Harun and Dulal as suspects. After Court's permission, their disclosure statements Ex.PW - 21/I [of A -3 (Harun)], Ex.PW -21/J [of A -1 (Chota Munir)], Ex.PW -21/K [of A -2 (Dulal)], Ex.PW -21/L (of Yamin @ Kalia) and Ex.PW -21/M (of Aftab) were recorded. In Test Identification Proceedings, complainant ­ Satender identified A -1 and A -3. Yamin @ Kalia declined to participate in the TIP. On 09.06.2009 during police remand, Rahim, Bada Munir, Sakir and Aftab led the police party to the place of occurrence and pointing out memos (Ex.PW -13A to Ex.PW -13/D) were prepared. Aftab pursuant to the disclosure statement, recovered school I -card of the complainant which was seized vide seizure memo Ex.PW -13/E. Statements of the witnesses conversant with the facts were recorded. The exhibits were sent to Forensic Science Laboratory. Rahim, Sakir, Bada Munir and Kamal were got discharged. After completion of investigation, a charge -sheet was filed against A -1 to A -3, and Yamin @ Kalia and Aftab; they were duly charged and brought to trial. The prosecution examined twenty -one witnesses to substantiate the charges against them. In 313 statements, the accused persons denied their complicity in the crime and pleaded false implication. After considering the rival contentions of the parties and appreciating the evidence and other materials, the Trial Court, by the impugned judgment, held A -1 to A -3 guilty under Section 395 IPC. Aftab and Yamin @ Kalia were acquitted of the charges. State did not prefer any appeal against their acquittal. Being aggrieved and dissatisfied, A -1 to A -3 have preferred the appeals.

(3.) THE appellants were arrested along with their associates in FIR No. 267/2009 under Sections 399/402 IPC and 25 Arms Act, PS Mehrauli, by the police of Special Staff, South District on 25.05.2009. Their involvement emerged in the instant case on their disclosure statements recorded therein. The Investigating Officer of this case moved applications for holding Test Identification Proceedings. PW -16 (Ms.Suchi Laler), learned Metropolitan Magistrate, conducted Test Identification Proceedings at Tihar Jail in which the complainant identified A -1 and A -3 correctly. Yamin @ Kalia refused to participate in the Test Identification Proceedings. While appearing as PW -3, in Court statement, Satender Kumar identified A -1 and A -3 without hesitation and specifically deposed that they were among the assailants who had entered inside the house and committed robbery. He denied that both these assailants were shown to him in the police station prior to the Test Identification Proceedings. This submission of the appellants is devoid of merit. They have not given any specific date as to when and where they were shown to the complainant. They had voluntarily agreed to join the Test Identification Proceedings. At that time, no such complaint was lodged with the learned Metropolitan Magistrate conducting TIP. They cannot be permitted to challenge their identification by the complainant in TIP simply because he was able to recognise them as the assailants. PW -3 (Satender Kumar) was fair enough not to recognise and identify Aftab and Yamin @ Kalia in his Court statement stating that they had covered their faces and primarily it resulted in their acquittal.