IZZAZUL JIYA ULL Vs. STATE OF DELHI

JUDGEMENT

(1.) By this judgment I shall dispose four appeals arising out of the judgment of Additional Sessions Judge dated 22nd February, 1999 whereby all the four appellants were convicted under Section 392/34 IPC and the appellant Saleem was also convicted under Section 397 of the IPC and against order of sentence dated 25.2.1999 whereby appellant Salim was sentenced to undergo Rigorous Imprisonment of Seven Years and a fine of Rs.500/- and other appellants were sentenced to undergo Rigorous Imprisonment for five years and fine of Rs.250/- each.

(2.) The brief facts leading to the conviction of the accused persons by the trial court are as under: On the night intervening 25th February and 26th February, 1998 at about 11.30 p.m. complainant Rakesh Kumar, after finishing his duty, was going to his house. He was looking for a scooter. He found a scooter in which three passengers were already there. He asked if the scooter will go to Seemapuri. He was told that he may board the scooter and pay Rs.5/- as fare for Seemapuri. He boarded the scooter. When the scooter reached near Dilshad Garden, the three passengers, who were already sitting in the scooter, over-powered him and he was robbed of his watch, cash Rs.800/- and driving license and was thrown out of the scooter on the road. He was able to notice the number of the TSR. During robbery, one of the appellants had put a pistol on his temple and also gave a butt blow, while another had gagged his mouth and the third one had caught his hands. While he was lying on the road, one PCR van happened to pass that way and police of PCR Van made inquiries from him and he narrated the incident. Local Police was called by PCR and his statement was recorded. In the statement, given by him on the same night, he gave the TSR number as DL 1R 0423and description of the culprits who had robbed him and thrown him out of the TSR. On the basis of the statement of the victim Rakesh Kumar, FIR No. 137/98 was registered at Police Station Seema Puri on 26th February, 1998 at 2.30 a.m. The police, from the registration number of the scooter, traced out the owner of the scooter Mr. Raj Kumar, who told the police that he had sold away his scooter and gave the name and address of the purchaser of the TSR as Mr. Sabir Ali. The police served a notice under Section 133 on 5.3.1998 Ex.PW10/C under Motor Vehicles Act, to Mr. Sabir Ali and asked him to disclose the name of the person who was driving the scooter on the night intervening 25th February and 26th February, 1998. Sabir Ali replied to the notice by making endorsement Ex.PW 8/A on the notice and stated that the scooter was being driven by his son-in-law Mohammad Akram on that night. He was asked to produce Mohammad Akram before the police. He produced Mohammad Akram, who was interrogated by police and produced in muffled face before the Metropolitan Magistrate and a request for his Test Identification Parade (TIP) was made, but he refused to participate in TIP, taking the stand that he was shown to the witnesses. He had disclosed the names of other three accused persons in his disclosure statement, who were later on arrested by the police. Recovery of robbed wrist watch was made from accused Shakil and a country-made pistol was recovered from the appellant Salim. It was told by the appellants that the amount of Rs.800/- looted from the victim, was evenly distributed and spent. The other three accused persons were also produced before MM Mr. Kanwaljeet Arora, PW5 for TIP proceedings but they also refused to participate in TIP stating that they had been shown to witnesses. TIP proceeding in respect of the accused Salim and Izzazul is Ex.PW 5/A and in respect of accused Mohammad Akram, Ex.PW5/C. PW5 also proved the applications for TIP made by the IO and refusal statements made by the accused persons. The accused persons were duly warned by the MM PW5 that their refusal would raise a presumption against them and an adverse inference could be drawn for refusing to participate in the TIP but still they refused to join TIP Proceedings. Before the Sessions Court, complainant Rakesh Kumar, PW1 was examined and in his examination-in-chief he narrated the incident as it happened. He identified all the accused persons and described their roles and testified that Shakil had gagged his mouth, accused Izzazul had taken out Rs.8,00/- and driving license from his dub pocket and accused Shakil had removed his wrist watch, besides closing his mouth. He identified accused Salim as the one, who had put katta (country-made pistol) on his temple and accused Mohammad Akram as the one, who was driving the scooter. He also testified that after robbing him, the accused Salim gave a butt blow on his temple and threw him out of the scooter. After that all the accused had run away in TSR. The PCR Van arrived and the police officials recorded his statement. His cross examination was recorded in pre- lunch period on 17.10.98 and when he appeared after lunch, he stated he was not well so, he was cross examined after about a week. When he appeared for cross examination, he confirmed that he had read the number of TSR when he was thrown out of the TSR. He could recall the number on the day of deposition as 432 or 433. He also stated that he had given the description of the persons who robbed him to the police in his statement but stated that the accused persons were of the similar descriptions, he was not sure if they were the same, while in examination-in-chief he had identified each accused and given his role. He further stated that he had not seen the accused persons prior to the last date of hearing before the Court. He had not read the contents of his statement Ex.PW1/A before signing it. He did not notice what cloths were being worn by the persons who robbed him. He also stated that the wrist watch, produced in the Court, was similar to the wrist watch which was robbed from him. It was a HMT Quartz as produced in the Court but it was having red strap and not black strap. He was cross examined by APP and in cross examination he admitted that before he signed PW1/A, police had told him that whatever he had told, the same was written. About his fumbling during cross examination, he stated that he could not depose correctly on previous hearing since he was not feeling well while he denied any compromise with the accused persons. It is apparent that after he supported the prosecution case in examination-in-chief some extraneous circumstances intervened and he tried to wriggle out his earlier statement.

(3.) This witness had participated in the TIP of case properly before the MM on 16.3.1998. He correctly identified the wrist watch robbed from him at TIP out of several wrist watches. The TIP proceedings Ex. PW 5/D, and the statement of PW1, identifying the wrist watch were proved by PW4, the MM.