Mohd. Imran v. State

1 These appeals are directed against the impugned judgment and order on sentence dated 12.09.2012 and 27.09.2012 respectively wherein each ofthe appellants namely Praveen, Mohd. Imran and Mujib stand convicted under Section 392/394/397 read with Section 34 of the IPG. Each ofthem has been sentenced to undergo RI for a period of10 years and to pay a fine ofRs.l lac and in default ofpayment offine to undergo SI for one year.

2 The nominal roll of the appellants has been requisitioned. It reflects that as on date, appellant Praveen has undergone incarceration of5years ^nd 5months; Mohd. Imran has undergone incarceration of[5] years and,[3] months and so also Mujib who has also undergone incarceration of 5 years and 3 months. This includes the remissions earned by the appellants. • •

3 The yersion of the prosecution was unfolded in the statement of the complainant namely Anita Soni. She was examined as PW-1. Her version was to the effect that on the fateful day i.e. on 10.09.2007 at Crl.AppealNos.1431/2012, 1258/2012 &1288/2012 • ~ Page2ofl3-' u about 03:30 pm, when she hadcome back from her nursing job and was i in the house along' with her son (PW-7) and her daughter (PW-3), the door bell rang. She opened the door. One boy aged 25 years was standing there. He asked about her husband. He along with three other persons thereafter forcibly entered her house. Three of them were having knives and one ofthem was hai/ing a pistol. They caught hold of her children i.e. her son and daughter aged 13 & 10 years respectively, On the point of loiife, her children were directed to sit on the ground. PW-1 was pushed and her back struck on the wall ofthe bathi'oom. They forcibly removed her gold mangalsutra, her gold chain, four rings, her Nokia mobile phone as also Rs.1,200/-. Meantime, her husband returned. The accused persons however managed toflee.

4 Apart from the. statement ofPW-1, the statement ofher daughter Bhavya (PW-3) was also-recorded and so also the statement of her son Shubankai (PW-7). The husband of the victim Anil Soni was examined as PW-11. The victim was medically examined by Dr. Siddharth Sanlcar i Das (PW-14); bruises were found on her body.

5 The Investigating Officer SI Surya Prakash was examined as PW-

16. He had collected the call details ofthe complainant's mobile number ^ Crl.AppealNos.1431/2012, 1258/2012 &1288/2012 Page3ofl[3] 2-3^ 9811053614 widch revealed that after the incident of robbery, one mobile call had been made on mobile No. 9313565665 which was ultimately traced out to be one Geeta's phone. Inquiry from said Geeta revealed that appellant Mujib had called her after the robbery on her phone; he was residing near the Ganda Nala, Johri Pur. It was this link in the evidence which has set the investigation into motion and the Investigating Officer along with his team reached the house ofMujib on 19.09.2007. Mujib was apprehended, interrogated and arrested vide memo Ex.PW-4/A. He had made a disclosure statement. Pursuant to his disclosure statement, aNokia mobile phone (Ex.P-3) and aknife (Ex.P-

4) were recovered. He disclosed the role ofMohd. Imran in the present crime. Mohd. Imran was subsequently aiTested vide memo Ex.PW-4/G. His disclosure statement was recorded. He got recovered the gold mangalsutra/gold chain as also a knife both of which were taken into possession. The disclosure statement ofMohd. Imran had also revealed the role of co-accused Praveen. Praveen was also arrested on the same day vide memo Ex.PW-4/N. He also made a disclosure statement and pursuant thereto, he had got recovered agold chain and an air pistol which were taken into possession vide memo Ex.PW-4/R; Crl. Appeal Nos.1431/2012, 1258/2012 &1288/2012 Page 4of13 6 The accused were produced in a muffled face before the Court of Magistrate; Mohd. Imran was identified in the TIP proceedings by the complainant but Mujib and Praveen had refused to join TIP. Their submission was that they had been shown to the complainant party and that is why they refused to join TIP.

7 On the basis of the aforenoted evidence collected by the prosecution, the accused persons were apprehended, arrested, tried, convicted and sentenced as aforenoted.

8 On behalf ofthe appellants, arguments have been heard at length. The foremost submission made by appellant Mohd. Imran is that he is a juvenile. The plea of juvenility has not been considered in the correct perspective by the Trial Judge and the testimony ofCW-1 and CW-2 i.e. father of Mohd. Imran and Principal of school who had brought his school recordwas illegally ignored. The rationcardproduced beforethis Court on which a verificationreport had been called and which has been -'9- filed in Court shows that although this ration card had been prepared in the year 2005 and Mohd. Imi-an has been shown as 15 years of age in the year 2005 yet a further verification shows that this ration card was not accompanied by any document to substantiate the statement ofthe father Crl. Appeal Nos. 1431/2012, 1258/2012 & 1288/2012 of Mohd. Imran that he was 15 years of age in the year 2005. Submission on the juvenility of the appellant has vehemently been argued by the learned counsel for the appellant. Her submission being that the Juvenile Justice (Care and Protection ofChildren) Act, 2000 is social legislation and if at all there is any doubt and there are two views possible, the benefit must accrue to the appellant and he accordingly be declared as a juvenile.

9 On merits, all the counsels submit that the identity of the appellants is not established and there are clear admission in the version of the eye-witnesses namely PW-1, PW-3, PW-7 and PW-11 that the faces of the appellants were covered and if they were covered by handkerchief as is their case, how they were identified in the Court without giving any description ofthe appellant has not been answered. The appellants are entitled to a benefit of doubt and a consequent acquittal on this ground alone. It is further pointed out that the recoveries are doubtful and there i§ no explanation as to why no public witness had joined these recoveries. On this ground also, the appellants are also entitled to abenefit ofdoubt. In the alternate, it has been argued that if at all the conviction of the appellants is to be maintained, the Crl. Appeal Nos.1431/2012, 1258/2012 &1288/2012 Page6of13 "r—1~ 2sentence be reduced.

11 This Court shall first deal with the submissionofMohd. Imran i.e. on his aspect ofjuvenility. The Trial Court had examined two witnesses on the aspect ofthe submission ofthe learned counsel for the a;ppellant that he is a juvenile. They were examined as CW-1 and CW-2. CW-1 Mirza Khalid Beg was the Head Master of Shri Jassi Mai Primary Vidyala who had produced the admission record of Imran showing his date of birth is 06.08.1991. In his cross-examination, he admitted that there was no document regarding the date of birth of IVlohd. Imran to support this statement. The father of Mohd. Imran was examined as CW-2. He had also admitted that he had no document to show that Mohd. Imran was bom in the year 1991. In his cross-examination, he admitted that he has six children and he does not remember the time, year and date of birth of any member of his family except for Mohd. Imran. This' evidence has been appreciated by the Trial Judge and the Trial Judge vide order dated 23.08.2008 had dismissed the. plea of juvenility set up by appellant Mohd. Imran. Admittedly no revision had been filed against this order. This order has attained a finality. Learned Crl. Appeal Nos.1431/2012, 1258/2012 & 1288/2012.PageTofO counsel for the appellant has submittedthat the plea ofjuvenility can be raised even at the appellate stage and even presuming that no revision has been filed against the order dated 23.08.2008 the fact that new documents have been filed in the Court i.e. ration card, the same should be considered. As noted supra, a verification report had been called on this document and the Investigating Officer in his report clearly stated that even this document was without any documentary evidence to substantiate the fact that Mohd. Imi-an was 15 years of age in the year

2005. The document relied upon by the appellant before this Court i.e. the ration card does not advance the submission of the learned counsel for the appellant any further as even this ration card is unsupported by any document to substantiate the plea that Mohd. Imran was 15 years of age as in the year 2005; in fact the admission of CW-2 in his crossexamination that he does not remember the date, moth or date of birth of any ofhis children except that ofMohd. Imran clearly throws a doubt on !>^ the veracity and credibility on his testimony. The Trial Judge had I t I appreciated !the evidence in the correct perspective. There was no illegality in the orderpassedby the Trial Judge. This finding ofthe Trial Judge does not call for any interference. The appellant Mohd. Imran is Crl. Appeal Nos.1431/2012,1258/2012 & 1288/2012 Page8ofl[3] held to be ah adult.

12 Haviijg arrived at this conclusion, this Court shall now examine the merits of the controversy. PW-1 was the eye-witness and so also PW-3 andPW-7. All ofthem have narrated the incident in themanner in which it had occuiTed. Although in one part ofher cross-examination, PW-1 had stated that out offour persons, two had put handkerchiefs on their faces but faces of the other two persons were covered. PW-3 had described them to be between 20-25 years having a dark complexion and thi-ee of them were holding laiives and one them was having curly hair and was healthy. They were identified by her in Court. She categorically denied the suggestion that she had seen the accused persons prior to the TIP or their photographs had been shown to them. So also the version of PW-7 who had also admitted that two boys had put handkerchiefs on their faces and whey they came near him, he had seen them. This testimony shows that the said two boys had covered |.^ their faces by handkerchiefs later on. PW-11 who had come at a later point oftime had stated that when these two boys were coming out, they had covered their faces by handkerchiefs but he could identify them as they passed through him, he had then identify the accused as Mujib. Crl. AppealNos.1431/2012, 1258/2012 &1288/2012 Page 9of13 # ••r-r

13 On the aspect of identification, the TIP proceedings conducted by the learned MM are also relevant. Learned MM Mr. Balwant Rai was examined as PW-17. He had conducted the TIP of all the three accused namely Mohd. Imran, Praveen and Mujib. The appellants Mujib and Praveen had refused to join TIP. Their TIP Ex.PW-17/D to Ex.PW-17/G - have beennoted. They had refused to join TIP for the reasons that they had been shown to the complainant butthe evidence of the complainant (PW-1) clearly shows that the accused persons had not been shown to ^ the complainant and in fact PW-1 inspite of categorical suggestion on this count has denied this and has clearly stated that although some photographs had been seen by her inthe police station yet they were not the photographs ofthe appellants. Thus the refusal ofMujib and Praveen tojoin TIPwas for a unjustified reason.

14 The TIP proceedings of Mohd. Imran have been proved as Ex.PW-17/B; which shows that the complainant (PW-1) had identified Mohd. Imran inthesaid proceedings.