As per the FIR three ‘unidentified’ persons had robbed the victim but PW-1 admitted during his cross-examination that he previously knew Mohd Aslam who was a friend of his children – is entitled for benefit of doubt

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1551 of 2010
[Arising out of Special Leave Petition (Crl.) No. 3388 of 2010]
Mohd. Anwar ….. Appellant(s)
VERSUS
The State (N.C.T. of Delhi) …..Respondent(s)
JUDGMENT
Surya Kant, J:
The present criminal appeal, which has been heard through video
conferencing, is at the instance of Mohd. Anwar who impugnes the
judgment dated 22.02.2010 of the High Court of Delhi whereby his appeal
against a judgment dated 27/29.04.2004 of the Additional Sessions Judge,
Karkardooma, convicting and sentencing him under Section 394 of the
Indian Penal Code, 1860 (“IPC”) and Section 25 of the Arms Act, 1959, was
turned down.
FACTS & CASE HISTORY

  1. The case of the prosecution is that the victim-complainant, Tabban
    Khan (PW-1), was riding his motorcycle on the main road near Shahdara
    around 11:30PM on 17.05.2001, when he stopped to ease himself near a
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    fishpond. Suddenly, three boys (including the appellant) caught hold of him
    and started assaulting him. They were armed with a knife and revolver.
    Upon extortion, the complainant handed over a bundle of five-hundredrupees notes totalling around thirty thousand (Rs 30,000) to the boys, who
    then contemplated murdering him by stabbing, so that he would not report
    the matter to the police. Hearing commotion of passers-by, the three boys
    left the complainant and ran towards a warehouse. The complainant then
    returned to his home and reported the matter to the jurisdictional police the
    following evening. This complaint was subsequently converted into an FIR
    on 20.05.2001 at 7:45PM.
  2. A police party, on 20.05.2001 at about 8:30PM, during routine
    checking of buses near GT Road, noticed three boys surreptitiously
    deboarding a bus through the rear door. On suspicion, Constable Vinod
    Kumar (PW-4) and Constable Prakash Chand (PW-7) chased and
    apprehended them, and recovered a prohibited buttondar knife from the
    appellant and his co-accused. They also confessed to having robbed the
    present complainant. All three were arrested and produced before the
    Metropolitan Magistrate for a Test Identification Parade (“TIP”) the following
    day, which they refused to undergo.
  3. The prosecution examined twelve witnesses during trial which
    included the victim-complainant (PW-1), the Metropolitan Magistrate who
    sought to conduct the TIP proceedings (PW-10) and a total of ten
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    policemen. Sketches of the knife, arrest memos, site plans, and recovered
    money and weapons were admitted in evidence. The appellant and his coaccused plainly denied the allegations and claimed that the case was
    planted by the police upon their failure to pay a bribe of rupees twenty-five
    thousand. They, however, led no evidence in defence.
  4. The trial Court discarded the defence plea for want of supporting
    material, and further found the likelihood of false implication being remote.
    All twelve prosecution witnesses were noted to have withstood crossexamination and their testimonies were designated as being stellar. The
    trial Court explained the absence of any public witness as being nothing
    abnormal given the circumstances of the case. The unreasoned refusal of
    the accused to take part in the TIP proceedings was found to be highly
    incriminating and substantiating their guilt.
  5. The trial Court, thus, held all three accused guilty of robbery with
    attempt to cause grievous hurt and sentenced them to seven years
    rigorous imprisonment under Section 397/34 of IPC, five years rigorous
    imprisonment under Section 392/34 of IPC, two years rigorous
    imprisonment under Section 25 of the Arms Act and fine of rupees five
    thousand (or imprisonment of six months in lieu thereof).
  6. The appellant approached the High Court which dismissed the
    charge under Section 397 of IPC, and instead convicted him under Section
    394 with a reduced sentence of only two years rigorous imprisonment.
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    Another co-accused, Mohd Aslam, was acquitted on charges of robbery as
    the version of the complainant qua him was found doubtful. The High Court
    noted that although as per the FIR three ‘unidentified’ persons had robbed
    the victim but PW-1 admitted during his cross-examination that he
    previously knew Mohd Aslam who was a friend of his children.
  7. As far as the present appellant was concerned, the High Court
    specifically noted that no animosity or motive for false implication had been
    proferred by him, and that there were no contradictions in the testimonies
    of the witnesses as regards his role in the crime. The minor delay in lodging
    of the FIR was considered insignificant, for it was a late time occurrence
    and the victim could therefore not be expected to visit a police station in
    such terrorised mental state of mind. Use of a revolver was considered an
    improvement for it had not been mentioned in the FIR. Considering the
    absence of any specific weapon being attributed to the appellant, charges
    of robbery with grievous hurt or attempt to murder were dropped.
  8. Learned counsel for the appellant raised new arguments of juvenility
    and insanity before the High Court. It was claimed that Mohd Anwar was
    merely 15 years at the time of occurence and was undergoing treatment for
    a mental disorder at a government hospital. This was supported through a
    copy of an OPD card and the testimony of the appellant’s mother who
    stated that he sometimes had to be kept chained at home to prevent harm
    to himself and others. The High Court took notice of the appellant’s age
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    being 21 years at the time of recording of his Section 313 Cr.P.C. statement
    in March 2004 and concluded that the appellant would therefore have been
    an able-minded major at the time of incident in May, 2001.
    CONTENTIONS OF PARTIES
  9. These very same arguments have again been canvassed before us
    by learned counsel for the appellant. Assailing the judgments of the High
    Court and the trial Court on the charge of robbery, he urged that the
    prosecution failed to discharge its burden of proof beyond reasonable
    doubt. He asserted that lack of independent witnesses, absence of injuries
    on the person of the complainant as well as the inconsistency in the
    complainant’s version regarding his knowledge of co-accused Mohd Aslam,
    all together evidenced that no incident of robbery ever took place. Further,
    the FIR had been lodged after an unexplained delay of three days, despite
    the police station being walking distance from the site of the incident, thus
    suggesting that the entire proceedings were concocted.
  10. Learned Additional Solicitor General, on the other hand, buttressed
    the judgment of the High Court by highlighting the various evidences and
    consistent testimonies of the twelve witnesses. He maintained that the
    belated defences of juvenility and insanity were an afterthought, and that
    the High Court had already taken a lenient view by reducing the sentence
    from seven to two years.
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    ANALYSIS
  11. At the outset, it must be highlighted that appellate Courts ought not to
    routinely re-appreciate the evidence in a criminal case. This is not only for
    reasons of procedure, expediency, or finality; but because the trial Court is
    best placed to holistically appreciate the demeanour of a witness and other
    evidence on record. Given the concurrent finding of the Courts below on
    key aspects of the robbery, we do not find it a fit case for such re-appraisal
    of evidence.
  12. Further, the testimonies of the witnesses are indeed impeccable and
    corroborative of each other. The crime of robbery with hurt has been
    established by the testimony of PW-1 and the other evidence on record.
    The complainant (PW-1) had no motive to falsely implicate the appellate
    and/or to allow the real culprits to go scot-free. The refusal to participate in
    the TIP proceedings and the lack of any reasons on the spot, undoubtedly
    establish the appellant’s guilty conscience and ought to be given
    substantial weight.1
    The three-day delay in registration of FIR, as projected
    by the appellant, is devoid of factual basis. The original record shows that
    the complaint was, in fact, registered within a few hours of the incident on
    18.05.2001. It was because of preliminary police enquiry that another two
    days passed between reporting and subsequent lodging of FIR on
    1
    Ashwani Kumar v. State of Punjab, (2015) 6 SCC 308, ¶ 19.
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    20.05.2001.
  13. Pleas of unsoundness of mind under Section 84 of IPC or mitigating
    circumstances like juvenility of age, ordinarily ought to be raised during trial
    itself. Belated claims not only prevent proper production and appreciation of
    evidence, but they also undermine the genuineness of the defence’s case.
  14. As noted by the High Court, no evidence in the form of a birth
    certificate, school record or medical test was brought forth; nor any expert
    examination has been sought by the appellant. Instead, the statement
    recorded under Section 313 CrPC shows that the appellant was above 18
    years around the time of the incident, which is a far departure from the
    claimed age of 15 years.
  15. The plea of mental disorder too remains unsubstantiated. No
    deposition was made by any witness, nor did the appellant himself claim
    any such impairment during his Section 313 CrPC statement. On the
    contrary, his conduct of running away from the spot of the crime on
    17.05.2001 as well as the attempt to escape from the bus on 20.05.2001
    evidence an elevated level of mental intellect. The answers recorded in
    response to the questions put forth by the Additional Sessions Judge at the
    Sec 313 CrPC stage are also not mechanical or laconic. For example, the
    appellant explains his refusal to participate in the TIP proceedings by
    alleging that his face had already been shown by the police to the
    complainant.
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  16. Mere production of photocopy of an OPD card and statement of
    mother on affidavit have little, if any, evidentiary value. In order to
    successfully claim defence of mental unsoundness under Section 84 of
    IPC, the accused must show by preponderance of probabilities that he/she
    suffered from a serious-enough mental disease or infirmity which would
    affect the individual’s ability to distinguish right from wrong.2
    Further, it must
    be established that the accused was afflicted by such disability particularly
    at the time of the crime and that but for such impairment, the crime would
    not have been committed. The reasons given by the High Court for
    disbelieving these defences are thus well reasoned and unimpeachable.
  17. Regardless thereto and given the ingrained principles of our criminal
    law jurisprudence which mandates that substantive justice triumph
    limitations of procedure, this Court on 22.07.2020 tried to enquire into the
    mental health of the appellant, by requesting the learned Additional Solicitor
    General to get the appellant mentally examined. However, notwithstanding
    such efforts, the appellant who had been granted bail by this Court earlier,
    is untraceable. The government counsel submits that the appellant is not
    residing at his claimed address since the past eight years, and even the
    appellant’s own counsel fairly admitted to not having received any
    instructions from his client since the past ten years. We are thus left with no
    option but to hold that the plea of mental illness is nothing but a made-up
    story, and is far from genuine.
    2 TN Lakshmaiah v. State of Karnataka, (2002) 1 SCC 219, ¶ 9.
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    CONCLUSION
  18. Given such inability of the appellant to establish juvenility or insanity,
    raise any doubt regarding guilt; and considering the detailed reasons
    accorded by the High Court, the reliable testimony of twelve witnesses as
    well as the leniency shown in sentencing, we see no reasons to interfere
    with the impugned order(s). The appeal is accordingly dismissed. The
    appellant’s bail bonds are cancelled and the respondent-State is directed to
    take the appellant into custody to serve the remainder of his sentence.
    …………………………….. J.
    (N.V. RAMANA)
    …………………………… J.
    (S. ABDUL NAZEER)
    ……………………………J.
    (SURYA KANT)
    NEW DELHI
    DATED : 19.08.2020
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