1. Appeal against conviction for attempted robbery and illegal possession of firearm. (Para 1 , 2 , 3 )
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2002 Supreme(SC) 2321
SUPREME COURT OF INDIA
B.N. Kirpal, CJI., K.G. Balakrishnan, Arijit Pasayat, JJ.
Ali Mehndi - Appellant
Versus
State, Government of NCT Delhi - Respondent
Criminal Appeal No. 184 of 2002
Decided On : 27-08-2002
A conviction under Section 398 of the Indian Penal Code cannot be sustained if the primary victim denies the identity of the accused in court, as trial courts cannot disregard such testimony based on mere surmises of fear or influence.
Headnote:(A) Indian Penal Code, 1860 - Section 398 - Conviction based on identity - Testimony of victim - When the victim, who is the primary witness, denies the identity of the accused in court, the trial court cannot disregard such testimony based on mere surmises that the witness was won over or is fearful. (Paras 6, 7 and 8)
(B) Arms Act, 1959 - Section 25 - Appeal becomes infructuous where the sentence has already been served. (Para 5)
Facts of the case:
The appellant was convicted for offenses including robbery and possession of an illegal firearm. It was alleged that the appellant entered a residence and attempted to rob the occupant at gunpoint. The trial court convicted the appellant under Section 398 of the Indian Penal Code and Section 25 of the Arms Act.
Findings of Court:
The appeal regarding the conviction under Section 25 of the Arms Act was found to be infructuous as the sentence had already been served. Regarding the conviction under Section 398 of the Indian Penal Code, the court found that the primary witness had not supported the prosecution's case and denied the identity of the appellant as the perpetrator.
Issues: Whether the trial court's decision to brush aside the victim's testimony on the grounds of fear or influence was justified.
Ratio Decidendi: The court ruled that the trial court's conclusion that the victim was deposing falsely due to fear or being won over was an unjustified surmise. Since the victim, who had lodged the FIR and was the target of the attack, categorically denied the identity of the accused, the conviction under Section 398 of the Indian Penal Code could not be sustained.
Result: Conviction under Section 398 Indian Penal Code set aside and the appellant released forthwith.
Legal Category Hierarchy
Table of Contents
2. Trial court's disbelief of victim's testimony was unjustified surmise; victim's statement must be given due weight. (Para 5 , 6 , 7 , 8 )
3. A conviction cannot be sustained when the victim's testimony exonerates the accused and the court rejects it on mere surmise. (Para 6 , 7 , 8 )
4. Appeal allowed in part; conviction under Section 398 IPC set aside; appellant to be released. (Para 8 , 9 )
5. Can a conviction under Section 398 IPC be sustained when the victim does not support the prosecution?
No, unless there is strong corroborative evidence or the court provides cogent reasons to disbelieve the victim's testimony. (Para 6 , 7 , 8 )
6. Is it permissible for a court to reject a victim's testimony on the mere surmise that she has been won over?
No, such a surmise is unjustified and cannot form the basis to discard the testimony of the victim. (Para 7 )
7. Does an appeal against a conviction become infructuous if the sentence has already been served?
Yes, the appeal becomes infructuous, but the court may still examine the merits if necessary. (Para 5 )
ORDER :
The appellant was tried for offences punishable under Sections 393/357 of the Indian Penal Code, 1860 (in short 'Indian Penal Code'), Section 25 of the Arms Act, 1959 and Section 5 of the Terrorists and Disruptive Activities (Prevention) Act, (in short 'TADA Act').
2. The case of the prosecution was that on 7th November, 1991 one Smt. Bismillah Begum, PW.2, was living at her house No. 444, Janta Flat, Nand Nagri, Delhi. She had gone out to the neighbourhood for a few minutes and had left her house unlocked. When she returned she found that two boys had entered the house and two boxes containing house-hold articles were opened and the said boys were standing inside the room. On seeing her returning, one of the boys ran away but the other boy, namely. Ali Mehndi, the appellant herein, took out a pistol and pounced upon her and tried to gag her mouth and told her to hand over whatever cash and jewellery she had.
3. Bismillah Begum, however, bit Ali Mehndi on fingers and freed herself from his clutches. At that time, her daughter aged about 18 years also started shouting. On hearing the noise, Ali Mehndi ran away from the house. While he was running away, it is alleged that he was caught and later on tried for the aforesaid offences.
4. There is hardly any need to go into on facts in great detail except to notice that the country made pistol which was recovered from the possession of the appellant was stated not to be in working condition. Nevertheless the appellant was awarded and convicted one year's rigorous imprisonment and a fine of Rs. 500/- under Section 25 of the Arms Act. He was also awarded seven years' rigorous imprisonment having committed the offence under Section 398 Indian Penal Code and a fine of Rs. 1000/- was also imposed. Both the sentences were to run concurrently.
5. It is not in dispute that the appellant has already served the sentence of more than one year. Therefore, the appeal, in so far as the conviction under Section 25 of the Arms Act is concerned, has become infructuous. Even otherwise, we find that on the basis of evidence on record he was rightly convicted.
6. As far as the conviction under Section 398 Indian Penal Code is concerned, we find that PW.2, Bismillah Begum, the alleged victim, herself has not supported the case of the prosecution. She stated in Court that the appellant was not the person who had entered her house and had shown the pistol to her in an attempt to commit robbery. She stated that the robber had been caught and was shown to her; but the person who was apprehended on the day of the alleged robbery was not the accused. The trial Court has brushed aside this testimony by observing that her statement is not believable and that "she seems to be deposing falsely having been won over by the accused or being fearful of the accused."
7. With respect, this may be a surmise of the Court which seems to be unjustified. In view of the categorical statement of PW2, Bismillah Begun, who surely would have had no reason to shield the appellant if he was the real culprit. It was Bismillah Begum who was attacked and it is the who lodged the FIR.
8. In view of the aforesaid testimony of Bismillah Begum which we see no reason to discard, the appellant could not have been convicted under Section 398 Indian Penal Code. For the aforesaid reasons, his conviction under Section 398 Indian Penal Code is set aside and consequentially the sentence the appellant will be released forthwith unless required to be in custody in any other case.
9. The appeal is disposed of accordingly.
Orders accordingly.
