Devinder Chaudhary vs State
2005 Latest Caselaw 259 Del

JUDGMENT

Mukundakam Sharma, J.

1. This appeal is directed against the judgment and order of conviction passed by the learned Additional Sessions Judge, Delhi in Sessions Case No.95/1998 against the appellant. The said Sessions Case arises out of F.I.R. No.947/1997, registered at Police Station, Patel Nagar, New Delhi, which was recorded on the basis of statement made by Tarjeet Singh on 15.10.1997. In the said statement it was alleged that Vehicle No.DL1Y 4166, Tata Sumo registered in favor of M/s Aman Tours and Travels was taken on hire pursuant to a booking made by one Devinder, resident of Krishi Kunj, Type I, H. No. 14, Inderpuri. It was alleged that vehicle was taken by the said person from the office cum residence of the informant directly and that the vehicle did not return back and that no further information had been received regarding the said vehicle. It was also stated that on verification it was found that the address given by Shri Devinder was false and that the driver Vinod was on duty. On the basis of the said information furnished an F.I.R. was registered. The present appellant was arrested on 06.11.1997 in connection with this case on the basis of alleged disclosure statement made by him. During the course of further investigation the police arrested the other persons, namely, Mustafa @ Kalu, Jamil, Vipin Gupta, Rajender Kumar and Sukhdev Singh. After completion of the investigation the police submitted charge-sheet as against all the accused persons. Charges in the case were framed on 28.04.1998 only a aginst the present appellant and accused Mustafa @ Kalu under Section 364/34, 302/34 and 201/34 IPC. The other accused persons were discharged.

2. During the course of the trial the prosecution examined as many as ten witnesses. Both the accused persons were also examined under Section 313 Cr.P.C. The defense, however, did not adduce any evidence. Thereafter the learned Sessions Judge heard the arguments and by his impugned judgment and order he acquitted Mustafa from all the charges but convicted the present appellant under the provisions of Section 364/302/201 IPC and sentenced him to life imprisonment and fine.

3. Being aggrieved by the said judgment and order the present appeal is filed. The appellant/accused is represented before us by Mr. Jose, learned amices Curiae appointed by this court. Mr. Jose has taken us through the evidence on record and thereafter has submitted that the only implicating evidence against the appellant herein is the last seen theory of the appellant together with the deceased. We have also heard the learned Additional Public Prosecutor, Mr. Soni.

4. Having perused the records and upon hearing the counsel appearing for the parties we propose to dispose of this appeal by recording our observations and findings on the pleas raised and evidence available on record. The other accused persons, namely, Jamil, Vipin Gupta, Rajender Kumar and Sukhdev Singh were discharged at the time of framing of the charges and the charge was framed only against the appellant-Devinder and Mustafa @ Kalu. Mustafa also stands acquitted by the impugned judgment and order on the ground that the circumstances which were brought on record for conviction against Mustafa are doubtful and that he cannot be connected with the recovered vehicle at all. On the said ground Mustafa was acquitted by the learned Additional Sessions Judge. The present appellant was, however, convicted on the basis of the evidence of PW-1 and PW-2 and also taking into consideration the last seen together theory.

5. We have perused the evidence of PW-1 and PW-2. So far the evidence of PW-2, Gurpreet Singh, is concerned it relates to the the taking of their vehicle, namely, DL1Y4166 by PW-1, on rent by PW-1. He has stated that the said vehicle was given to Tarjeet Singh, PW-1, on rent after getting a call from him. The said witness, however, does not implicate the present appellant in any manner and, therefore, in our considered opinion his evidence has no relevance at all in respect of the conviction of the appellant herein. The only evidence that can be considered as relevant and strenuously relied upon by the learned Additional Public Prosecutor is the evidence of PW-1, Tarjeet Singh. He has stated that on 12.10.1997 he received a telephone message from Inderpuri asking for a vehicle to go to Haridwar and that one person, namely, the present appellant went to him to take the vehicle and the said vehicle was handed over to the appellant with a driver which was taken at 7.30 p.m. He has also stated that he name of the driver was Vinod and that the said vehicle was recovered later on, on the basis of the report lodged by him and that the police informed him that Vinod was not traceable whereas the vehicle taken by the accused was recovered by the police. He was cross-examined by the counsel of Mustafa, the co-accused. He had stated in cross-examination that he did not know Mustafa and Devender prior to the said case and that he also did not know the person who telephoned him for hiring the vehicle.

6. It appears that the present appellant was not represented by any counsel before the learned Additional Sessions Judge and, therefore, the court put certain questions on behalf of the present appellant/accused, Devender Chaowdhary in the said examination of PW-1. The witness had stated that he alone was present when the accused came to him to take the vehicle. He had also stated that after meeting him the accused went outside and came after half-an-hour when the vehicle came. He has also stated that entry was made to the effect that vehicle has been given to particular person and the said book was at his residence vide which vehicle was given to the accused. He also did not remember whether signature of accused was taken or not. That is the only evidence which is available on record, allegedly implicating the appellant herein.

7. The learned trial court has convicted the present appellant on the last seen theory. However, after going through the records we have come across several shortfalls in the investigation conducted by the police in the present case. The booking memo which is referred to in the cross-examination of the court is not produced as an exhibit. The only statement of PW-3 was that such an entry was made and the said book was in his house.

8. The aforesaid document was a very relevant and document for the purpose of throwing light on the entire allegations made herein and for unfolding the prosecution story. The prosecution also failed to hold a test identification parade. It is true that substantial evidence of the witness is his statement in court and, therefore, a witness under his sworn testimony in court could identify the accused, who is a stranger to the witness. But at the same time we must bear in mind the purpose for which a test identification parade is carried out. It is done to test that evidence which is given in the court. As laid down by the Supreme Court in Vaikuntam Chandrappa and Ors. v. State of Andhra Pradesh , the safe rule is that the sworn testimony of witnesses in court as to the identity of the accused who are strangers to the witnesses, generally speaking, requires corroboration, which should be in the form of earlier identification proceedings. It is also laid down in the aid Supreme Court decision that there may be exception to the aforesaid rule where the court is satisfied that the evidence of a particular witness is such that it can safely rely on them without the practice of an earlier identification. One of such cases, which falls under such exception, is the case reported as Kanta Prashad v. Delhi Administration wherein it was held by the Supreme Court as follows:

''It would no doubt have been prudent to hold a test identification parade with respect to witnesses who did not know the accused before the occurrence, but failure to hold such a parade would not make inadmissible the evidence of identification in Court.

The weight to be attached to such identification would be a matter for the Courts of fact and it is not for the Supreme Court to reassess the evidence unless exceptional grounds were established necessitating such a course.''

9. In the backdrop of the aforesaid legal position settled by the Supreme Court, the facts of this case would have to be examined by the court in order to come to a conclusion whether in the facts of this case a test identification parade should have been carried out by the prosecution. Here is a case where the only one witness, namely PW-1, who had deposed about the loss and theft of the vehicle and also missing of the driver. He has also stated that the accused appellant had come to his residence cum office and took the aforesaid vehicle on rent. We have already indicated that the booking memo which could have thrown light in respect of the allegations was withheld and not produced for evidence for reasons best known to the prosecution. The witness did not see or meet the appellant / accused prior to 12.10.1997. There is no other corroborating evidence on record to prove and establish that the accused /appellant had come to the office cum residence of the PW-1 and took away the vehicle on rent be making payment of an amount of Rs.700/-. There is no disclosure statement of the appellant-accused leading to the recovery of the vehicle at his instance although there was a disclosure statement of the co-accused which allegedly led to such recovery.

The said accused was acquitted by the learned Additional Sessions Judge on the ground of want of reliable and substantial evidence. When we look to the larger canvas of the facts of the present case, we are of the considered opinion that a test identification parade in the present case was necessary to establish the identity of the accused so as to corroborate the sworn testimony of PW-1 particularly when the said witness did not know the present appellant prior to 12.10.1997. The time gap between the alleged taking away of the vehicle by the appellant and the recovery of the vehicle and the dead body and arrest of the appellant cannot be said to be short or small. The vehicle was allegedly taken by the appellant herein from the custody of PW-1 on 12.10.1997 whereas the information came to be lodged regarding missing of the said vehicle and the driver only on 15.10.1997. The appellant was also arrested in connection with another case on 5.11.1997 and he was so arrested in the present case on 6.11.1

97. In absence of any other cogent, positive and corroborative evidence in support of the evidence of last seen together theory, which is also found to be wrong as delineated above, it would be improper to return a finding of guilt against the present appellant.

10. It is clearly stated by PW-1 that he had never seen the present appellant before the date of hiring of the said car. The charge which was drawn up against the appellant and explained to him was that he had kidnapped Vinod in furtherance of common intention Along with TATA Sumo Car DLY 4166 at 1/16 Patel Nagar after hiring the same to go to Haridwar and also after taking the same vehicle along with Vinod in furtherance of common intention committed murder of Vinod.

11. We have carefully perused the said charges and the charges are framed on common intention of all the persons. All other accused persons were either discharged or acquitted on benefit of doubt leaving behind the present appellant who has been only convicted under the aforesaid Section of 302/364/201 IPC.

12. Having gone through the records we are of the considered opinion that the last seen theory which is pressed into service by the prosecution and on the basis of which the order for conviction has been made by the learned trial court is not established in the present case for want of cogent and reliable evidence on record. On analysing the evidence on record it is difficult to positively and conclusively hold that the deceased was last seen together with the accused as there was a long gap between the date of hiring of the vehicle and recovery of the dead body of the driver which was recovered on 15.10.1997. Although the vehicle was taken on rent on 12.10.1997 there is no evidence on record to show that the appellant had traveled in the said vehicle to Haridwar or to the place of occurrence and, therefore, there is no reliable/cogent evidence to connect and link the accused directly and positively with the murder of the deceased. We, therefore, allow the appeal and set aside the order of conviction and sentence passed against the appellant, acquit him of all the charges on benefit of doubt. Criminal Appeal No. 438/1999 stands disposed of.

13. Before parting with the case, we, however, wish to record our displeasure in the manner in which the prosecution has conducted investigation in the present case. The said fact was noted by the learned trial court also in its order dated 26.3.1999. The aforesaid observations were made by the learned trial court in respect of the case of the co-accused Mustafa. We are of the considered opinion that the same observations were also equally applicable to the case of the present appellant also. But it agins us to say that the concerned learned Additional Sessions Judge, Delhi failed to appreciate the said fact in proper perspective in the case of the present appellant.

14. We direct that the appellant, Devinder Chowdhary shall be set at liberty forthwith, unless he is wanted in any other case.

15. Copy of this order/judgment be sent to the Superintendent, Central Jail, Tihar, for compliance.

16. A copy of this order/judgment be also given dusty to amices curiae appearing on behalf of the appellant as also the Additional Public Prosecutor.