MOHD. ANWARversusTHE STATE (N.C.T. OF DELHI)

150                    [2020]REPORTS
             SUPREME COURT    7 S.C.R. 150               [2020] 7 S.C.R.


A                            MOHD. ANWAR
                                     v.
                     THE STATE (N.C.T. OF DELHI)
                    (Criminal Appeal No. 1551 of 2010)
B                           AUGUST 19, 2020
              [N. V. RAMANA, S. ABDUL NAZEER AND
                        SURYA KANT, JJ.]
         Penal Code, 1860 – s. 394 – Arms Act, 1959 – s. 25 – The
C 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
D 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
E 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
F 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
G 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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       MOHD. ANWAR v. THE STATE (N.C.T. OF DELHI)                       151


show elevated level of mental intellect – The answers recorded u/s.     A
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.
                                                                        B
      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          C
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       D
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]                                                                E
      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]              F
[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            G
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
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152            SUPREME COURT REPORTS                       [2020] 7 S.C.R.


A     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
B
      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
C     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
D     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;
E     157-A]
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      1551 of 2010.
            From the Judgment and Order dated 22.02.2010 of the High Court
F     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.
G           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
H
       MOHD. ANWAR v. THE STATE (N.C.T. OF DELHI)                            153
                  [SURYA KANT, J.]

the judgment dated 22.02.2010 of the High Court of Delhi whereby his         A
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                                                   B
       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        C
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        D
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        E
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”)         F
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    G
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
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154             SUPREME COURT REPORTS                            [2020] 7 S.C.R.


A     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
B
      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
C     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.
D     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.
E            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
F     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.
G
            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
H     appellant’s mother who stated that he sometimes had to be kept chained
       MOHD. ANWAR v. THE STATE (N.C.T. OF DELHI)                              155
                  [SURYA KANT, J.]

at home to prevent harm to himself and others. The High Court took             A
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                                                   B
       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     C
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
                                                                               D
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         E
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    F
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.
                                                                               G
       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          H
156                SUPREME COURT REPORTS                              [2020] 7 S.C.R.


A     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
B
      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
C     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
D     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
E     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,
F     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
G     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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       MOHD. ANWAR v. THE STATE (N.C.T. OF DELHI)                                157
                  [SURYA KANT, J.]

Further, it must be established that the accused was afflicted by such           A
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          B
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          C
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.                            D
       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         E
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.
                                                                                 F
Ankit Gyan                                                   Appeal dismissed.




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