MOHD. ANWAR versus THE STATE (N.C.T. OF DELHI)

[2020] 7 S.C.R. 150

[2020] 7 S.C.R.

MOHD. ANWAR

THE STATE (N.C.T. OF DELHI)

(Criminal Appeal No. 1551 of 2010)

AUGUST 19, 2020

[N. V. RAMANA, S. ABDUL NAZEER ANDSURYA KANT, JJ.]

Penal Code, 1860 – s. 394 – Arms Act, 1959 – s. 25 – TheCprosecution case was that victim-complainant was caught hold bythree boys armed with weapons and extorted Rs. 30,000/- from him– FIR was registered – Police apprehended all three accused personsand they confessed committing the said robbery – They were producedbefore the Metropolitan Magistrate for Test Identification Parade,which they refused to undergo – The Trial Court held all threeDaccused guilty of robbery with an attempt to cause grievous hurtand sentenced them to 7 years rigorous imprisonment u/s. 397/ 34of IPC, 5 years rigorous imprisonment u/s. 392/34 of IPC and 2years rigorous imprisonment u/s. 25 of the Arms Act – The HighCourt dismissed the charge u/s. 397 and instead convicted u/s. 394Ewith reduced sentence of only two years rigorous imprisonment –Before the Supreme Court, it was contended by the appellant thathe was juvenile at the time of occurrence and was undergoingtreatment for mental disorder – Held: Testimonies of the witnesseswere impeccable and corroborative of each other – The crime ofrobbery with hurt was established – The complainant had no motiveFto falsely implicate the appellant – The refusal to participate in theTIP proceedings undoubtedly establish the appellant’s guiltyconscience – Pleas of unsoundness of mind or mitigatingcircumstances like juvenility of age, ought to have been raised duringthe trial – No evidence in the form of birth certificate, schoolrecord or medical test was brought forth nor any expert examinationGhas been sought by the appellant to prove his age – Instead, thestatement recorded u/s. 313 Cr. P.C. showed that the appellant wasabove 18 years of age – Further, the plea of mental disorder alsoremained unsubstantiated – The conduct of appellant like runningaway from the spot of crime and thereafter an attempt to escape

show elevated level of mental intellect – The answers recorded u/s.313 Cr. P.C. were also not mechanical or laconic – Further, theappellant is now as per record untraceable – The plea of mentalillness is made-up story – Consequently, appellant’s bail bondsare cancelled and the respondent-State directed to take appellantinto custody to serve the remainder of his sentence.

Dismissing the appeal, the Court

HELD: 1. The testimonies of the witnesses are indeedimpeccable and corroborative of each other. The crime of robberywith hurt has been established by the testimony of PW-1 and theother evidence on record. The complainant (PW-1) had no motiveto falsely implicate the appellant and/or to allow the real culpritsto go scot-free. The refusal to participate in the TIP proceedingsand the lack of any reasons on the spot, undoubtedly establishthe appellant’s guilty conscience and ought to be given substantialweight. The three-day delay in registration of FIR, as projectedby the appellant, is devoid of factual basis. The original recordshows that the complaint was, in fact, registered within few hoursof the incident on 18.05.2001. It was because of preliminary policeenquiry that another two days passed between reporting andsubsequent lodging of FIR on 20.05.2001. [Para 13][155-G-H;156-A-B]

2. Pleas of unsoundness of mind under Section 84 of IPCor mitigating circumstances like juvenility of age, ordinarily oughtto be raised during the trial itself. Belated claims not only preventproper production and appreciation of evidence, but they alsoundermine the genuineness of the defence’s case. [Para 14][156-B-C]

3. As noted by the High Court, no evidence in the form of abirth certificate, school record or medical test was brought forth;nor any expert examination has been sought by the appellant.Instead, the statement recorded u/s. 313 CrPC shows that theappellant was above 18 years around the time of the incident,which is far departure from the claimed age of 15 years.[Para 15][156-C-D]

4. The plea of mental disorder too remains unsubstantiated.No deposition was made by any witness, nor did the appellant

Ahimself claim any such impairment during his s.313 CrPCstatement. On the contrary, his conduct of running away from thespot of the crime on 17.05.2001 as well as the attempt to escapefrom the bus on 20.05.2001 evidence an elevated level of mentalintellect. The answers recorded in response to the questions putforth by the Additional Sessions Judge at the s. 313 CrPC stageBare also not mechanical or laconic. For example, the appellantexplains his refusal to participate in the TIP proceedings byalleging that his face had already been shown by the police to thecomplainant. [Para 16][156-E-F]

5. Mere production of photocopy of an OPD card andCstatement of mother on affidavit have little, if any, evidentiaryvalue. In order to successfully claim defence of mentalunsoundness under Section 84 of IPC, the accused must show bypreponderance of probabilities that he/she suffered from serious-enough mental disease or infirmity which would affect theDindividual’s ability to distinguish right from wrong. Further, it mustbe established that the accused was afflicted by such disabilityparticularly at the time of the crime and that but for suchimpairment, the crime would not have been committed. Thereasons given by the High Court for disbelieving these defencesare thus well reasoned and unimpeachable. [Para 17][156-G;E157-A]CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1551 of 2010.

From the Judgment and Order dated 22.02.2010 of the High CourtFof Delhi at New Delhi in Criminal Appeal No. 50/2005.

R.S. Suri, ASG,Yunus Malik, Anish Maheshwari, Ms. ChitraChoudhary, Kaushik Choudhary, Aman Malik, Prashant Chaudhary,Sanjay Kr. Tyagi, B.V. Balaram Das, Anmol Chandan, Advs. for theappearing parties.GThe Judgment of the Court was delivered by

SURYA KANT, J.

1. The present criminal appeal, which has been heard throughvideo conferencing, is at the instance of Mohd. Anwar who impugnes

the judgment dated 22.02.2010 of the High Court of Delhi whereby hisappeal against judgment dated 27/29.04.2004of the Additional SessionsJudge, Karkardooma, convicting and sentencing him under Section 394of the Indian Penal Code, 1860 (“IPC”) and Section 25 of the Arms Act,1959, was turned down.

Facts & Case History

2. The case of the prosecution is that the victim-complainant,Tabban Khan (PW-1), was riding his motorcycle on the main road nearShahdara around 11:30PM on 17.05.2001, when he stopped to easehimself near fishpond. Suddenly, three boys (including the appellant)caught hold of him and started assaulting him. They were armed with aknife and revolver. Upon extortion, the complainant handed over bundleof five-hundred-rupees notes totalling around thirty thousand (Rs 30,000)to the boys, who then contemplated murdering him by stabbing, so thathe would not report the matter to the police. Hearing commotion ofpassers-by, the three boys left the complainant and ran towards awarehouse. The complainant then returned to his home and reported thematter to the jurisdictional police the following evening. This complaintwas subsequently converted into an FIR on 20.05.2001 at 7:45PM.3. police party, on 20.05.2001 at about 8:30PM, during routinechecking of buses near GT Road, noticed three boys surreptitiouslydeboarding bus through the rear door. On suspicion, Constable VinodKumar (PW-4) and Constable Prakash Chand (PW-7) chased andapprehended them, and recovered prohibited buttondar knife fromthe appellant and his co-accused. They also confessed to having robbedthe present complainant. All three were arrested and produced beforethe Metropolitan Magistrate for Test Identification Parade (“TIP”)the following day, which they refused to undergo.

4. The prosecution examined twelve witnesses during trial whichincluded the victim-complainant (PW-1), the Metropolitan Magistratewho sought to conduct the TIP proceedings (PW-10) and total of tenpolicemen. Sketches of the knife, arrest memos, site plans, and recoveredmoney and weapons were admitted in evidence. The appellant and hisco-accused plainly denied the allegations and claimed that the case wasplanted by the police upon their failure to pay bribe of rupees twenty-five thousand. They, however, led no evidence in defence.

5. The trial Court discarded the defence plea for want of supporting

Amaterial, and further found the likelihood of false implication being remote.All twelve prosecution witnesses were noted to have withstood cross-examination and their testimonies were designated as being stellar. Thetrial Court explained the absence of any public witness as being nothingabnormal given the circumstances of the case. The unreasoned refusalof the accused to take part in the TIP proceedings was found to beBhighly incriminating and substantiating their guilt.

6. The trial Court, thus, held all three accused guilty of robberywith attempt to cause grievous hurt and sentenced them to seven yearsrigorous imprisonment under Section 397/34 of IPC, five years rigorousimprisonment under Section 392/34 of IPC, two years rigorousCimprisonment under Section 25 of the Arms Act and fine of rupees fivethousand (or imprisonment of six months in lieu thereof).

7. The appellant approached the High Court which dismissed thecharge under Section 397 of IPC, and instead convicted him under Section394 with reduced sentence of only two years rigorous imprisonment.DAnother co-accused, Mohd Aslam, was acquitted on charges of robberyas the version of the complainant qua him was found doubtful. The HighCourt noted that although as per the FIR three ‘unidentified’ personshad robbed the victim but PW-1 admitted during his cross-examinationthat he previously knew Mohd Aslam who was friend of his children.E

8. As far as the present appellant was concerned, the High Courtspecifically noted that no animosity or motive for false implication hadbeen proferred by him, and that there were no contradictions in thetestimonies of the witnesses as regards his role in the crime. The minordelay in lodging of the FIR was considered insignificant, for it was lateFtime occurrence and the victim could therefore not be expected to visita police station in such terrorised mental state of mind. Use of revolverwas considered an improvement for it had not been mentioned in theFIR. Considering the absence of any specific weapon being attributedto the appellant, charges of robbery with grievous hurt or attempt tomurder were dropped.G

9. Learned counsel for the appellant raised new arguments ofjuvenility and insanity before the High Court. It was claimed that Mohd.Anwar was merely 15 years at the time of occurence and was undergoingtreatment for mental disorder at government hospital. This wassupported through copy of an OPD card and the testimony of theHappellant’s mother who stated that he sometimes had to be kept chained

at home to prevent harm to himself and others. The High Court tooknotice of the appellant’s age being 21 years at the time of recording ofhis Section 313 Cr.P.C. statement in March 2004 and concluded that theappellant would therefore have been an able-minded major at the timeof incident in May, 2001.

Contentions of Parties

10. These very same arguments have again been canvassed beforeus by learned counsel for the appellant. Assailing the judgments of theHigh Court and the trial Court on the charge of robbery, he urged thatthe prosecution failed to discharge its burden of proof beyond reasonabledoubt. He asserted that lack of independent witnesses, absence of injurieson the person of the complainant as well as the inconsistency in thecomplainant’s version regarding his knowledge of co-accused MohdAslam, all together evidenced that no incident of robbery ever took place.Further, the FIR had been lodged after an unexplained delay of threedays, despite the police station being walking distance from the site ofthe incident, thus suggesting that the entire proceedings were concocted.

11. Learned Additional Solicitor General, on the other hand,buttressed the judgment of the High Court by highlighting the variousevidences and consistent testimonies of the twelve witnesses. Hemaintained that the belated defences of juvenility and insanity were anafterthought, and that the High Court had already taken lenient viewby reducing the sentence from seven to two years.

Analysis

12. At the outset, it must be highlighted that appellate Courts oughtnot to routinely re-appreciate the evidence in criminal case. This is notonly for reasons of procedure, expediency, or finality; but because thetrial Court is best placed to holistically appreciate the demeanour of awitness and other evidence on record. Given the concurrent finding ofthe Courts below on key aspects of the robbery, we do not find it fitcase for such re-appraisal of evidence.

13. Further, the testimonies of the witnesses are indeed impeccableand corroborative of each other. The crime of robbery with hurt hasbeen established by the testimony of PW-1 and the other evidence onrecord. The complainant (PW-1) had no motive to falsely implicate theappellant and/or to allow the real culprits to go scot-free. The refusal toparticipate in the TIP proceedings and the lack of any reasons on the

Aspot, undoubtedly establish the appellant’s guilty conscience and oughtto be given substantial weight.[1] The three-day delay in registration ofFIR, as projected by the appellant, is devoid of factual basis. The originalrecord shows that the complaint was, in fact, registered within fewhours of the incident on 18.05.2001. It was because of preliminary policeenquiry that another two days passed between reporting and subsequentBlodging of FIR on 20.05.2001.

14. Pleas of unsoundness of mind under Section 84 of IPC ormitigating circumstances like juvenility of age, ordinarily ought to be raisedduring trial itself. Belated claims not only prevent proper production andappreciation of evidence, but they also undermine the genuineness ofCthe defence’s case.

15. As noted by the High Court, no evidence in the form of birthcertificate, school record or medical test was brought forth; nor anyexpert examination has been sought by the appellant. Instead, thestatement recorded under Section 313 CrPC shows that the appellantDwas above 18 years around the time of the incident, which is fardeparture from the claimed age of 15 years.

16. The plea of mental disorder too remains unsubstantiated. Nodeposition was made by any witness, nor did the appellant himself claimany such impairment during his Section 313 CrPC statement. On theEcontrary, his conduct of running away from the spot of the crime on17.05.2001 as well as the attempt to escape from the bus on 20.05.2001evidence an elevated level of mental intellect. The answers recorded inresponse to the questions put forth by the Additional Sessions Judge atthe Sec 313 CrPC stage are also not mechanical or laconic. For example,Fthe appellant explains his refusal to participate in the TIP proceedings byalleging that his face had already been shown by the police to thecomplainant.

17. Mere production of photocopy of an OPD card and statementof mother on affidavit have little, if any, evidentiary value. In order toGsuccessfully claim defence of mental unsoundness under Section 84 ofIPC, the accused must show by preponderance of probabilities that he/she suffered from serious-enough mental disease or infirmity whichwould affect the individual’s ability to distinguish right from wrong.[2]

1 Ashwani Kumar v. State of Punjab, (2015) 6 SCC 308, 19.

2 TN Lakshmaiah v. State of Karnataka, (2002) 1 SCC 219, 9.H

Further, it must be established that the accused was afflicted by suchdisability particularly at the time of the crime and that but for suchimpairment, the crime would not have been committed. The reasonsgiven by the High Court for disbelieving these defences are thus wellreasoned and unimpeachable.

18. Regardless thereto and given the ingrained principles of ourcriminal law jurisprudence which mandates that substantive justicetriumph limitations of procedure, this Court on 22.07.2020 tried to enquireinto the mental health of the appellant, by requesting the learned AdditionalSolicitor General to get the appellant mentally examined. However,notwithstanding such efforts, the appellant who had been granted bail bythis Court earlier, is untraceable. The government counsel submits thatthe appellant is not residing at his claimed address since the past eightyears, and even the appellant’s own counsel fairly admitted to not havingreceived any instructions from his client since the past ten years. Weare thus left with no option but to hold that the plea of mental illness isnothing but made-up story, and is far from genuine.

Conclusion

19. Given such inability of the appellant to establish juvenility orinsanity, raise any doubt regarding guilt; and considering the detailedreasons accorded by the High Court, the reliable testimony of twelvewitnesses as well as the leniency shown in sentencing, we see no reasonsto interfere with the impugned order(s). The appeal is accordinglydismissed. The appellant’s bail bonds are cancelled and the respondent-State is directed to take the appellant into custody to serve the remainderof his sentence.

Ankit Gyan

Appeal dismissed.