Devi Charan vs State
1988 Latest Caselaw 14 Del

JUDGMENT

Malik Sharief-ud-Din, J.

(1) The appellant Devi Charan and one Mahender were convicted and sentenced to 7 years rigorous imprisonment and to payment of fineofRs.500.00 each under section 392 read with section 397/34 of the Indian Penal Code. In default of payment of fine they were further sentenced to six months imprisonment.

(2) The prosecution case against the appellant is based on an incident dated 14th of October 1979 when at about 8 a.m. the appellant and Mahender armed with a knife and a pistol, respectively, intercepted one T.C. Joseph and his wife Marry Joseph, in a street near F-Block, Green Park, New Delhi, within the jurisdiction of police station Hauz Khas and by putting them to the fear of causing bodily harm robbed them of a lady wrist watch Henry Sandoz, a gold chain and a also male wrist-watch Ricko make and Rs. 40.00 in case. They had come on a scooter and also escaped on the scooter.

(3) The prosecution case further is that on different dates appellant Devi Charan, Mahender and one Mohd. Arif were arrested and at their instance the gold chain of Marry Joseph was recovered from one Kailash with whom it was pawned by Mohd. Arif while the Ricko wrist watch was recovered from one Manbir with whom it was given by Mahender and it was also recovered consequent to the disclosure statement made by Mahender. It is also the prosecution case that the lady wrist watch Henry Sandoz of Marry Joseph was recovered from one Raj Rani consequent to the disclosure statement made by Devi Charan.

(4) The prosecution has examined a large number of witnesses in the case but for the purpose of adjudication of this appeal it is not necessary for me to make reference to the entire evidence as, in my view, the prosecution case mainly rests on the eye-witnesses account of T.C. Joseph (P.W. 1) and Mrs Joseph (P.W. 3) as also the witnesses in respect of the recovery of these articles. But before I make reference to the evidence against the appellant and his accomplice at this stage I may take notice of the fact that the prosecution case is totally lacking in the identification of the accused. As a matter of fact, the prosecution alleges that they were put on test identification parade but there is no evidence to support this contention of the prosecution as, admittedly, the accused were involved in a number of cases and the application for test identification parade was made in an F.I.R. of some other police station and not in this case. The accused in this case were in fact identified by the complainant and his wife in the court itself at trial more than three years after the date of the incident. At no stage were they put on test identification parade. The identification of the accused for the first time at trial is no identification at all particularly in view of the fact that the accused were never known to the eye witnesses and this identification in the court was done by them more than three years after the incident. It is, thus, absolutely impossible for them to identify the accused after such a long time when they were not known to them.

(5) The prosecution case in respect of the actual incident is supported by Public Witness . 1 T.C. Joseph and Public Witness . 3 Mrs. Marry Joseph who have lent unqualified support to the prosecution case and the incident on all material particulars. They have further identified the stolen articles as being theirs in a test identification parade before Public Witness . 17 Shri S.M. Chopra.

(6) Public Witness . 6 Satinder Kumar has testified that at the instance of one Kailash the gold chain involved in this case was recovered from among the four potlies containing gold ornaments and girvinamas. He is corroborated in this regard by Public Witness . 12 Pawan Kumar and Public Witness . 19 Kailash Chand who has stated that this was pawned with him by one Mohd. Arif and was finally recovered from him. It may be stated at this stage that Mohd. Arif died during the course of the trial and the accused had disclosed that the chain and wrist-watch were given to Mohd. Arif by them. This evidence was followed by the evidence of Public Witness . 19 Shyam Babu who has testified that one lady's wrist watch and one artificial chain was pawned by Devi Charan appellant with Raj Rani for a sum of Rs. 200.00 . Public Witness . 11 Raj Rani has made a similar statement as the preceding witness and has further stated that it was recovered from her by the investigation officer. Public Witness . 13 Manbir and Public Witness . 14 Smt. Darshana his wife have refused to subscribe to the prosecution case that the wrist watch Ricko belonging to the complainant was given to him by Mahender. This is stated by them despite the fact that it was recovered from his possession at the instance of Mahender. Public Witness . 16 S I, Chander Hase has also deposed in respect of the recovery from Raj Rani (P.w. II) at the instance of Devi Charan accused. Public Witness . 20 S.B. Shanna, S.I., has deposed that he recorded the disclosure statement of Devi Charan leading to the recovery of the robbed articles. Public Witness . 21 S.I. Risal Singh his recorded the disclosure statement of Mahender accused to the effect that wrist watch and the gold chain were given by him to Mohd. Arif leading to the recovery thereof. P.W. 22 S.I. Amar Nath is a witness to the disclosure of Mahender accused about having pawned the wrist watch with Manbir.

(7) Now, this is the sum total of the evidence against the appellant and his accomplice Mahender and on the basis of this evidence the trial court came to the conclusion that the accused persons arc involved in the commission of this crime. A presumption was drawn by the trial court under section 114 of the Evidence Act that since the recovery of these robbed articles was made at the instance of the appellant and his accomplice they had committed this act of robbery.

(8) In my view, this presumption is far fetched. There is no evidence regarding the identification of the accused and as observed earlier without there being a test identification parade the identification of the accused for the first time at trial and that too after a period of more than 3 years is of no assistance to the prosecution. In my view, therefore, is no direct evidence warranting an inference that the appellant and his accomplice was involved in the actual commission of the offence of robbery.f This, however, does not help the appellant and his accomplice as the robbed articles which were sufficiently identified by the complainant and his wife were recovered at their instance. The appellant and his accomplice would, therefore, be guilty under section 411 Indian Penal Code . and will be deemed to be the persons who had received the stolen articles knowing well that these had been stolen. In that view of the matter, the appeal is dismissed with the modification that the conviction and sentence of the appellant under section 392 read with section 397/34 Indian Penal Code . is set aside. He is instead convicted under section 411 read with section 34 I.P.C. and is sentenced to the imprisonment already undergone in this case.