Mujib 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 aperiod 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 and 5months; Mohd. Imi'an 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 version ofthe 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 CrI. Appeal Nos.1431/2012, 1258/2012 &1288/2012 Page! ofB tabout 03:30 pm, when she had come back from hernursing job and was 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 having apistol. 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 stmck on the wall ofthe bathroom. They forcibly removed her gold mangalsutra, her gold chain, four rings, her Nokia mobile phone as also FLs.1,200/-. Meantime, her husband returned. The accused persons however managed to flee.

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 Shubankar (PW-7). The husband of the victim Anil Soni was examined as PW-11. The victim was medically examined by.Dr. Siddharth Sanlcar 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 CrI. Appeal Nos.1431/2012, 1258/2012 &1288/2012 Page 3of13 9811053614 which 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 linlc 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 of Mohd. 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 ofco-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 a gold chain and an air pistol which were taken into possession vide memo Ex.PW-4/R. Crl. Appeal Nos.1431/2012, 1258/2012 &i288/2012 Page 4of13 m # ^3^

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 thatthey 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 behalfof the 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 bytheTrial Judge and the testimony of CW-1 and CW-2 i.e. father of Mohd. Imran and Principal of school who had brought his school record was illegally ignored. The ration card produced before this Court on which a verification report had been called and which has been filed in Court shows that although this ration card had been prepared in the year 2005 and Mohd. Imran 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 of Children) 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-ll 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 is 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 Page (5 of13 sentence 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 appellant 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 ofImran 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 Mohd. 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 Page[7] of 13 counsel for the appellant has submitted that the plea ofjuvenility canbe 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 thai Mohd. Imran was 15 years of ape 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 furt-her 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 Jand credibility on his testimony. The Trial Judge had appreciated the evidence in the correct perspective. There was no illegality in the order passed by the Trial Judge. This finding ofthe Trial Judge does not call for any interference. The appellant Mohd. Imran is Crl. Appeal NOS.1431/2012J258/2012& 1288/2012 ' Page8ofl[3] held to be an adult.

12 Having anived at this conclusion, this Court shall now examine the merits of the controversy. PW-1 was the eye-witness and so also PW-3 and PW-7. All of themhave narrated the incident in the manner in which it had -occuiTed. Although in one part ofher cross-examination, I PW-1 had stated that out offour persons, two had put handkerchiefs on I 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 I three ofthem were holding knives 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 ofPW-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 theii 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. Appeal Nos.1431/2012, 1258/2012 &1288/2012 Page 9of13 13 Onthe aspect of identification, theTIP proceedings conducted by the learned MM are also relevant. Learned MM Mr. Balwant Rai M^as examined as PW-17. He had conducted the TIP of all the three accused namely Mohd. Irnran, Praveen and Mujib. The appellants Mujib and Praveenhad refused to join TIP. Their TIP Ex.PW-17/D to Ex.PW-17/G have been noted. They had refused to join TIP for the reasons that they had been shown to the complainant but the evidence ofthe 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 in the police station yet they were not the photographs ofthe appellants. Thus the refusal ofMujib and Praveen tojoin TIP was 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 inthe said proceedings.