Gulam Jilani v. Govt. of NCT of Delhi

16. 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 ofthe 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 thathe/had state^v the police that he could identify all the accused,ifshown to him. On 27.02.2007,the police had broughtfour persons withthem and he and Sonuidentified allthe four persons who had committedfhe robbery and their names were revealed to be those ofthe appellants. He affirmed that Sandeep had shown them the katta.He affirmed thathe knew the accused Sandeep and Pradeep by face. He later changed his statement to state that he hadseenthe gunin Khokhan's hand and notinthe accused Sandeep's hand.In his cross-examination,he stated that he could not tell ifthe assailant guarding them was holding a gun or a knife or a sword. o o 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 ofthe assailants had called him and said "Khokhanjaldi aajaa".He stated that he had told the police that the person guarding them had a weapon like a knife. However, the same was notrecorded in his statementto the police.He stated thatthe police arrived at about 03:45/4:00 am on 17.01.2007 and remained there for about one hour,thereafter. Reasons and Conclusion )

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

18. Insofar as recovery ofarticles is concerned,the Trial Courtheld that the prosecution had Mlpd:itG any reasonable doubt that the articles recwre^;^brp th^^^ ofthe accused were the same articles that were robbed. The court reasoned that the articles recovered were in small quantity;there,were no identification marks ontherecovered articles andthe sarhe werereadily available m the market.The said reasoning cannot be faulted. Vmod Kumar(the brother ofthe complainant and the son ofthe owner ofthe 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 ofthe goods in question.It is also relevantto CRL.A.Nos.619,620,621&900of2017 Page14of26 o o notethatnone ofthe said doeuments pertain to Om TransportAgency. Ex.PW5/2 is the consignor's copy of a document generated by Krishna Brothers Transport Company and it mentions the number of packages as23 and the contents as"cosmetic Boroplus".The weightis 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 ofthe consignee as self. The said document refers to three Bgs of"EL Wire". Ex.PW5/5 is a retail invoice/cash memo^ill ofPowercell Electronics in respect ofthree separate articles including 24 pieces of "Home UPS 'bOO VA". Ex.PW5/6 is a document generated,by KrishnaTransport 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 ofthe consignee is referred to as "Garg Bartan Bhandar". The said document also mentions thafit isi'a driy copy. Ex.PW5/7 is a document generated by Lion Transport Co.mentioning the description ofthe 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 TransportAgency.

19. As noticed above,the document pertaining to sewing machines is a "repairing slip". None of the documents refer to any specific CRL A. Nos.619,620,621& 900 of2017 Page ISof26 markings of packaging details including batch numbers or serial: numbersoftheproductsbeingtransported.Clearly,onthebasisofthe aforesaid documents,thegoodsallegedlyrecovered from theaccused cannot be stated to be those that were allegedly robbed from Om j TransportAgency. I I 20. One Sh. Amit Dhawan was examined as PW-8. He testified ! thathe wasengagedinthebusinessofdealinginsewing machinesby ■ thenameofDhawanElectTonics.Hetestifiedthathehadpurchased 15 sewing machines ofbrand Kajal from Ludhiana and out ofthe said machines,he had sold five machinesTrom hisshop and he had booked 10 machinesforPalwal with Lion Transportfor one Sanjay.Hestated ^ ^ thattheprivatemarkofSanjaywasRI^PLandhehadputthesameon 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 ifshown to him. At that stage,a sealed parcel was opened and one sewing machine ofthe make Kajal alqng with the cardboard box was taken out. The said witness identified the sewing machine. ■ However, in his cross-examination, he conceded that this carton did j not have any private mark as testified by him earlier. He was O I confronted withthe documentexhibited asEx.PW5/8and heclarified that it was not a bill but only a slip. He also conceded that there was no mention ofany name ofthe purchaser or the serial numbers in the said slip or in the builty (Ex.PW5/7). He also stated that the CRL.A.Nos.619,620,621&900of2017 Page16of26 o V J transportershad notissuedanydocumentinrespectofthe bookingof the goods to him.

21. In view ofthe 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 oftheIPG.This Courtconcurs with thesaid view asthereislittle evideneetoestablish that the goods allegedly recovered from the accused were the same thatwererobbed from Om TransportAgency.Further,the quantityof goods recovered is a small fraction ofthe goods that were allegedly robbed. The disclosure statements made by the accused during the course ofinvestigation 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 ofthe crime does not copform to the number ofpersons 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 ofthe aceused, goods such as speakers, DVD Players are also mentioned and it is not anybody's case thatthe said goods were robbed on the date ofthe ineident.

22. The accused Sandeep was also charged with committing an offence punishable under Section 397 ofthe 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 CRL.A. Nos.619,620,621& 900of2017 Page 17of26 Sif o o Section 397oftheIPC.Accordingly,the courtacquitted him ofthe saidcharge.ThisCourtfindsnofaultinthesaiddecisionaswell.

23. To benoted,the State hasnotprefeired any appeal againstthe accused being acquitted ofan offence under Section 411 ofthe IPC and the accused Sandeep being acquitted ofan offence punishable under Section 397 ofthe IPC. Thus,in substance,the Trial Court's finding that the prosecution had not proved the recovery ofstolen articles beyond reasonable doubt and that the accused Sandeep had usedadeadly weaponincommittingtherobberyhasbeenaccepted by the State.

24. Theonly question thatremainsto beaddressed is whetherthere IS sufficient evidence to establish thatthe:appellants were involved in committing the offence of robbery punishable under Section 392 of the IPC.,..

25. Mr Piyari, learned cbun&^ii^p^afing^ accused Sandeep (the appellant in CRL.A. 6i20 of 2017), submitted that the identification ofthe 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 courtidentifying 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 CRL A.Nos.619,620,621& 900of2017 Page 18of26 O had given ajustifiable 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 ofthis'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 subsequentto the TIP proceedings and therefore,theli-.i^tiiiidny W the accused in court could not be relied upon.

26. Next, he submitted that the entire'pro^ adopted by the investigation agency offiling an application under Section 267 ofthe Cr.PC for production of the accused and for the purposes of interrogating them,formally arresting them and conducting their TIP wascontrarytotheprovisionsoflaw. Hesubmittedthatpowersunder Section 267 ofthe Cr-PC could be used only whenthe accused person was required to answer before a court to a charge or for any Page19of26 o r) proceedings against him orto examine such person as a witness.He relied upon the decision of a Coordinate Bench of this Court in HarshadS. Mehta v. CentralBureau ofInvestigation:(1992)24 mj392.insupportofhiscontentionthatthepolicecould notusethe procedureunderSection267ofthe Cr.PCforensuring theattendance ofanaccusedinonecaseinordertoarresthimin anothercase.

27. MrMadhukar,learnedcounselappearedforKhokhan@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 thatin 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.

28. 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 ofa 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. CRL.A.Nos.619,620,621& 900of2017 Page20of26 o

29. Mr Pujari's contention that the procedure adopted by the mvestigating agencyoffiling an application underSection267ofthe Cr.PC for production ofan accused before the learned MM,their formal arrestand therequestfor conducting the TIP was contrary to the provisions oflaw and therefore, the appellants are liable to be acquitted, is unpersuasive. It is contended that the provisions of Section267oftheCr.PCcannotbeinvokedforproducingtheaccused beforethecourtforthepurposesofarrestingthem inanothercase.

30. First ofall, no such contention was advanced before the Trial Court and the same is clearly an afterthought. Secondly,even ifthe contention that the procedure,under Section 267 ofthe Cr.PC ought notto have been invoked to produce the appellants before the learned MMforthepuiposesoftheirarrestinthe presentcase,is accepted,the appellants have failed to establish thafthey 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 ofany irregularity in procedure unless it is established thatthe same resulted in the failure of justice. In the present case, the procedure ofproducing the appellhhts befdre the learned MM for the purposes ofthis FIR and arresting them when they were produced has notresulted in failure ofjustice in any manner.

31. 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 behalfofthe appellants that their refusal to participate in the TIP were justified as CRL.A.Nos.619,620,62I& 900of2017 Page21 of26 O they had been shown to the witnesses atthe police station and in the court. However,there is no evidence on record that the appellants wereshown to the witnessesin the policestation orin the courtprior to the TIP proceedings. The TIP proceedings were conducted on 24.02.2007 and the appellants were specifically warned that their refusaltojoin the TIP proceedings maylead to drawing ofan 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 effectfrom any ofthe witnesses who had identified them. None of the said witnesses had been specifically asked whether they had seenthe aeeused prior to the TIP proeeedings..

32. 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 ofthe ineident

33. PW-6 had identified the accused Pfadeep and the aeeused Gulam Jilani as two ofthe 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 ofthe owner. There is no reason for CRL A. Nos.619,620,621& 900of2017 Page22of26 V o o him to be present at the spot at the given time. Ftrthermore, his testimony is materially inconsistent with the testimony ofthe other witnesses. Noneofthe otherwitnesseshavetestified thattheaeonsed PradeepandaccusedGulamJilani were wieldingswords. Hehad also testified that at the material time, he was working for another transporter named LaxmiPanditand his place ofwork was aboutone kilometerfrom the office ofOm TransportAgency. In his statement recorded onthe dateoftheincident(Ex.PW6/DA),hehad notalleged that the accused were wielding swords. He testified that he had seen the accused in courtforthe firsttimeafterthe date oftheincident. 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 ofidentification ofthe accused.

34. 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 ifshown to him. However,he volunteered that he could not identify the assailants due to lapse oftime. Clearly, his testimony can be oflittle assistance to the prosecution insofar as the identification ofthe accused are concemed.

35. 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 ofthem was carrying a knife and the other was carrying a revolver. They had CRL.A.Nos.619,620,621& 900 of2017 Page23of26 o o putablanketon his headand hecategoricallystatedthathecould 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. Hedeniedthesuggestion thathe wasnotdoing to sodueto fear. In his cross-examination bytheleamed counselfortheaccused hecategorically stated thathe had notseen theaccusedpresentin the court on the day ofthe incident.

36. 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 wasinvolved. He alleged thatKhokhan had shown him a country made pistol. However,it is notthe prosecution's case thatthe 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 oflapse oftime or that he had been won over by all the accused persons other than the accused Khokhan.

37. 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 CRL A.Nos.619,620,621& 900 of2017 Page24of26 4( O O state which ofthe accused was carrying a knife. However,if is also importantto state thathetestified thatoneortwo personshad covered thenfaces.Healsostatedthathecouldnotidentifythepistolifitwas shown to him.

38. PW-13(Ishwar) identified all the accused. He identified the accusedKhokhanasthepersonwhowascarryingtheweapon(country madekatta)buthedeniedthathecouldIdentifytheotheraccused who were associates ofthe 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 statedthathehadnotdonesoearlierbecauseoflapseofmemory.

39. PW-10(Sonu)identified,all the accused. However,he did not supportthe prosecution'scase thatthe accusedPradeep wascarryinga pistol.Hestated thatthe accusedKiokhan wascarryingthe pistol.

40. 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. Even ifPW-13's testimony,insofar as the identification ofthe 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 CRL.A.Nos.619,620,621& 900of2017 Page25of26 o o dechnadjoiningtheTIP,thisCourtfindsnofaultinthedecisionofthe Trial Courtin accepting thattheprosecution had established thatthe appellants had beenidentified asthepersonsinvolvedin committing the crime.

41. Inviewoftheabove,thisCourtfindsnoreasontointerferewith the impugnedjudgment convicting the appellants ofcommitting an offencepunishableunderSection392oftheIPC. However,thisCourt IS unable to concur with the view that,the appellants deserved no leniency. None ofthe appellants had been convicted ofany offence prior to the impugnedjudgment. This Courthas also been informed thatthey have been acquitted in all other cases. The appellants were veiy young at the material time. All of the appellants have minor children and theirfamiliesto support.

42. Considering the abo:ve,-this Coi^vconsiders it apposite to reducethesentence awarded tP the'a|iipeilantstofour yearsofrigorous imprisonment along with the fihSof'#,000/- each and in the eventof failure of payment of fine, to undergo simple imprisonment for a further period ofthree months.Ifis,so directedi

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

NOVEMBER 09,2020 RK VIBHU BAKHRU,J CRL.A.Nos.619,620,621& 900of2017 Page26of26