MOHD. ANWAR versus THE STATE (N.C.T. OF DELHI)
[2020] 7 S.C.R. 150, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Arguments
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MOHD. ANWAR
v.
THE STATE (N.C.T. OF DELHI)
(Criminal Appeal No. 1551 of 2010)
AUGUST 19, 2020
[N. V. RAMANA, S. ABDUL NAZEER AND
SURYA KANT, JJ.]
Penal Code, 1860 – s. 394 – Arms Act, 1959 – s. 25 – The
prosecution case was that victim-complainant was caught hold by
three boys armed with weapons and extorted Rs. 30,000/- from him
– FIR was registered – Police apprehended all three accused persons
and they confessed committing the said robbery – They were produced
before the Metropolitan Magistrate for a Test Identification Parade,
which they refused to undergo – The Trial Court held all three
accused guilty of robbery with an attempt to cause grievous hurt
and sentenced them to 7 years rigorous imprisonment u/s. 397/ 34
of IPC, 5 years rigorous imprisonment u/s. 392/34 of IPC and 2
years rigorous imprisonment u/s. 25 of the Arms Act – The High
Court dismissed the charge u/s. 397 and instead convicted u/s. 394
with a reduced sentence of only two years rigorous imprisonment –
Before the Supreme Court, it was contended by the appellant that
he was juvenile at the time of occurrence and was undergoing
treatment for a mental disorder – Held: Testimonies of the witnesses
were impeccable and corroborative of each other – The crime of
robbery with hurt was established – The complainant had no motive
to falsely implicate the appellant – The refusal to participate in the
TIP proceedings undoubtedly establish the appellant’s
guilty
conscience – Pleas of unsoundness of mind or mitigating
circumstances like juvenility of age, ought to have been raised during
the trial – 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 to prove his age – Instead, the
statement recorded u/s. 313 Cr. P.C. showed that the appellant was
above 18 years of age – Further, the plea of mental disorder also
remained unsubstantiated – The conduct of appellant like running
away from the spot of crime and thereafter an attempt to escape
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show elevated level of mental intellect – The answers recorded u/s.
313 Cr. P.C. were also not mechanical or laconic – Further, the
appellant is now as per record untraceable – The plea of mental
illness is a made-up story – Consequently, appellant’s bail bonds
are cancelled and the respondent-State directed to take appellant
into custody to serve the remainder of his sentence.
Dismissing the appeal, the Court
HELD: 1. 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 appellant 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. 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 20.05.2001. [Para 13][155-G-H;
156-A-B]
2. Pleas of unsoundness of mind under Section 84 of IPC
or mitigating circumstances like juvenility of age, ordinarily ought
to be raised during the trial
itself. Belated claims not only prevent
proper production and appreciation of evidence, but they also
undermine 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 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 u/s. 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.
[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
MOHD. ANWAR v. THE STATE (N.C.T. OF DELHI)
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himself claim any such impairment during his s.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 s. 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. [Para 16][156-E-F]
5. 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. 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. [Para 17][156-G;
157-A]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1551 of 2010.
From the Judgment and Order
dated 22.02.2010 of the High Court
of Delhi at New Delhi in Criminal Appeal No. 50/2005.
R.S. Suri, ASG,Yunus Malik, Anish Maheshwari, Ms. Chitra
Choudhary, Kaushik Choudhary, Aman Malik, Prashant Chaudhary,
Sanjay Kr. Tyagi, B.V. Balaram Das, Anmol Chandan, Advs. for the
appearing parties.
The Judgment of the Court was delivered by
SURYA KANT, J.
1. The present criminal appeal, which has been heard through
video conferencing, is at the instance of Mohd. Anwar who impugnes
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the judgment dated 22.02.2010 of the High Court of Delhi whereby his
appeal against a judgment dated 27/29.04.2004of 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
2. 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 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-hundred-rupees 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.
3. 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.
4. 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
policemen. Sketches of the knife, arrest memos, site plans, and recovered
money and weapons were admitted in evidence. The appellant and his
co-accused 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.
5. The trial Court discarded the defence plea for want of supporting
MOHD. ANWAR v. THE STATE (N.C.T. OF DELHI)
[SURYA KANT, J.]
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material, 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. 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.
6. 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).
7. 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.
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.
8. 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.
9. 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
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at home to prevent harm to himself and others. The High Court took
notice of the appellant’s age 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
10. 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.
11. 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.
Analysis
12. 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.
13. 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
appellant 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
MOHD. ANWAR v. THE STATE (N.C.T. OF DELHI)
[SURYA KANT, J.]
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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 20.05.2001.
14. 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.
15. 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.
16. 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.
17. 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
1 Ashwani Kumar v. State of Punjab, (2015) 6 SCC 308, 19.
2 TN Lakshmaiah v. State of Karnataka, (2002) 1 SCC 219, 9.
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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.
18. 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.
Conclusion
19. 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.
Ankit Gyan
Appeal dismissed.
MOHD. ANWAR v. THE STATE (N.C.T. OF DELHI)
[SURYA KANT, J.]