Anil Kumar @ Kake vs State (Nct Of Delhi)
2009 Latest Caselaw 1605 Del

*                  HIGH COURT OF DELHI : NEW DELHI

                    Judgment reserved on : April 16, 2009
                    Judgment delivered on: April 23, 2009

+                         (1)      Crl. A. No. 947/2006

%       Anil Kumar @ Kake                                    ...   Appellant
                   Through:                 Mr. K.B. Andley, Senior Advocate
                                            with Mr. M.L. Yadav, Advocate

                                              versus

        State (NCT of Delhi)                                 ...  Respondent
                  Through:                  Mr. Amit Sharma, Additional Public
                                            Prosecutor for State.

+                         (2)      Crl. A. No. 1041/2006

%       Harish                                               ...  Appellant
                          Through:          Mr. Mahesh Kumar Patel, Amicus
                                            Curiae.
                                             versus
        State                                          ...   Respondent
                          Through:          Mr. Amit Sharma, Additional Public
                                            Prosecutor for State.

+                         (3)      Crl. A. No. 227/2007
                                Crl. M.(B). No. 1639/207
                                Crl. M.(B). No. 984/2008

%       Jakir Ali                                            ...  Appellant
                          Through:          Mr. D.S. Sidhu and Mr. D.P. Chopra,
                                            Advocates
                                             versus
        State (NCT of Delhi)                                 ...  Respondent
                  Through:                  Mr. Amit Sharma, Additional Public
                                            Prosecutor for State.

+                         (4)      Crl. A. No. 352/2007

%       Yogesh Sharma                            ...  Appellant
                 Through:                   Mr. Mahesh Kumar Patel, Advocate.

                                              versus

Crl. A. Nos. 947 & 1041 of 2006 and Crl. A. Nos. 227 & 352 of 2007               Page 1
         State (NCT of Delhi)                                 ...  Respondent
                  Through:                  Mr. Amit Sharma, Additional Public
                                            Prosecutor for State.

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported
   in the Digest?

SUNIL GAUR, J.

1. The above titled four appeals spring from an order of 20th

October, 2006, passed by the trial court, whereby appellants-

Yogesh, Jakir Ali and Anil Kumar @ Kake have been convicted

and sentenced to undergo RI for seven years and fine of Rs.

2,000/- each, in default thereof to undergo RI for two months, for

committing offence under Section 120-B, r/w Section 394/397 of

the IPC and to a further undergo RI for seven years and fine of

Rs.2,000/- each, in default thereof to undergo RI for two months,

for the offence under Section 394/397, r/w Section 120-B of the

IPC. Appellant- Harish has been convicted and sentenced to

undergo RI for seven years and fine of Rupees two thousand, in

default thereof to RI for two months for the offence under Section

120-B, r/w Section 394 of the IPC and RI for seven year and fine of

Rupees two thousand, in default thereof to undergo RI for two

Crl. A. Nos. 947 & 1041 of 2006 and Crl. A. Nos. 227 & 352 of 2007 Page 2 months, for the offence under Section 394, r/w Section 120-B of

the IPC.

2. The precise case of the prosecution is that on 5th October,

2002, upon receipt of DD No. 55-B, Sub-Inspector Saheb Singh

(PW-16) along with Constable Jagat Pal (PW-8) reached the spot

where he came to know that the injured had already been

removed to Trauma Center, where he recorded the statement of

injured - Raj Kumar (PW-1). In his statement injured- Raj Kumar

(PW-1) narrated the purported incident, its gist is as under :-

On 5th October, 2002, at about 9:30 p.m., injured- Raj Kumar (PW-1), along with his father-in-law (PW-2), reached Laxmi Nagar Bus Stand for going to Old Railway Station and he was carrying an ittachi, having a sum of Rupees five thousand in it and a bag, comprising house hold articles. While they were standing there, appellant/accused Anil and Zakir came and offered them to take a common auto as they also intended to go to the same destination, to which injured-Ram Kumar (PW-1) refused. In the meantime, a Maruti Van reached there, in which appellant/accused Yogesh was sitting on the rear seat while some other person was driving the van, and they offered them drop them by charging bus fare only. Ram Kumar (PW-1) along with his father-in-law and appellant/accused Anil and Zakir, entered the van and while the van reached I.T.O., the van was stopped and the appellant/ accused- Anil took out a knife and attacked behind his ears and wrist. The van proceeded and other two appellants/accused also took out their knife and attacked him and when his father-in-law tried to intervene, he was also given knife blows. Ram Kumar (PW-1) tried to lift his Itachi but he was again given knife blows on the back of his head and was ultimately pushed out of the van and the goods which he was

Crl. A. Nos. 947 & 1041 of 2006 and Crl. A. Nos. 227 & 352 of 2007 Page 3 carrying, were snatched by the appellants/ accused. His father- in-law was also thrown out of the van after some distance.

3. On the basis of statement given by injured- Ram Kumar (PW-

1), FIR No.418 of 2002, under Sections 394/397/34 of the IPC,

was registered at Police Station I.P. Estate, Delhi and after

completion of the necessary investigation, charge sheet in this

case was filed in the court.

4. The trial court framed charges under Section 120-B r/w

Sections 392/394/397 of the IPC and under Sections 392/394 r/w

Section 120-B of the IPC against appellant/accused - Harish.

Charge under Section 120-B, r/w Section 392/394/397 of the IPC

and under Section 392/394/397 r/w Section 120-B of the IPC was

framed against appellants/accused- Yogesh, Jakir and Anil Kumar

and trial of this case began as appellants/ accused did not plead

guilty to the charges framed against them under the aforesaid

provisions of law.

5. During the trial, seventeen witnesses have deposed, out of

whom, the material evidence is of injured- Ram Kumar (PW-1),

Kishan Dass (PW-2), father-in-law of PW-1 and a injured eye

witness to the alleged incident, and Dr. Shusantu (PW-11) who

proved the MLCs (EX. PW 11/A and EX. PW 11/B) of both the

injured (PW-1 & PW-2). Sub Inspector Sahib Singh (PW-16) is the

Investigating Officer of this case who had recorded statement of

the injured (EX. PW1/A) , prepared the rukka (EX. PW 16/A) and Crl. A. Nos. 947 & 1041 of 2006 and Crl. A. Nos. 227 & 352 of 2007 Page 4 site plan (EX. PW16/B), formally arrested the four

appellants/accused, recorded disclosure statement of

appellant/accused- Harish, and carried out Test Identification

Parade of appellants/accused Anil, Zakir and Yogesh, while

appellant/accused- Harish refused to participate in TEST

IDENTIFICATION PARADE proceedings.

6. All the four appellants/accused, when questioned by the trial

court, denied the prosecution case and alleged that they were

lifted from their respective houses and have been falsely

implicated in this case. The four witnesses who have deposed in

favour of appellants/accused are their relatives and they have

supported the aforesaid stand of these four appellants/accused.

Trial resulted in conviction of these appellants/accused as already

reflected in opening paragraph of this judgment.

7. Since all these four appeals arise of common impugned

judgment and order, therefore, with the consent of the parties, they

have been heard together and are being disposed of by this

common judgment.

8. Both the sides have been heard in these four appeals and the

evidence on record, has been analysed.

9. On behalf of the appellants, Zakir Ali, Harish and Yogesh,

learned Counsels for these three appellants have fairly conceded

that the conviction of these three appellants for the offence under Crl. A. Nos. 947 & 1041 of 2006 and Crl. A. Nos. 227 & 352 of 2007 Page 5 Section 394 of the IPC does not suffer from any infirmity. Upon

perusal of the evidence on record, I find that learned Counsels for

these three appellants are right in their submissions. However, on

the point of sentence it has been urged on behalf of these three

appellants that they are first offenders and are young persons and

the sentence of RI for seven years, imposed upon them, for the

commission of the offence under Section 394 of the IPC, is quite

harsh and a lenient view on the point of sentence deserves to be

taken.

10. As per the Nominal Roll of appellant - Zakir Ali, he has

already undergone sentence of four years, eight months and

twenty nine days and appellant- Yogesh, has undergone sentence

of four year and eight months and appellant- Harish has

undergone sentence of three years and one month and their

conduct in jail has been found to be satisfactory.

11. The offence under Section 394 of the IPC, does not carry

any minimum sentence. In the facts and circumstances of this

case, the substantive sentence imposed upon appellants- Zakir

Ali s/o Manjoor Ali, Harish s/o Ganga Ram, and Yogesh s/o

Rajesh Sharma, is reduced to the period already undergone by

them for the offence under Section 394 of the IPC. However, the

sentence of fine imposed upon them for this offence, is

maintained.

Crl. A. Nos. 947 & 1041 of 2006 and Crl. A. Nos. 227 & 352 of 2007 Page 6

12. In the case of Dilawar Singh vs. State of Delhi 2007 (3)

Crimes 388, Apex Court has held in clear terms that use of deadly

weapon by one offender at the time of committing robbery cannot

attract Section 397 of IPC for the imposition of minimum

punishment on another offender who has not used any deadly

weapon.

13. Appellants - Zakir Ali and Yogesh have been also convicted

by the trial court for the offence under Section 397 of the IPC,

whereas, admittedly the assault made on the witnesses by a knife,

was by appellant/accused- Anil alone and in such a situation, the

conviction of appellants- Zakir Ali and Yogesh for the offence

under Section 397 of the IPC, with the aid of Section 120-B of the

IPC, is unwarranted and is infact unsustainable in law. Resultantly,

the conviction of appellants Zakir Ali and Yogesh for the offence

under Section 397 of the IPC with the aid of Section 120-B of the

IPC, is set aside.

14. Consequentially, appeals of appellants- Zakir Ali, Yogesh

and Harish, are partly allowed in the terms as aforesaid. These

three appellants be apprised of this order through the concerned

Jail Superintendent.

15. Now, I shall deal with the appeal of appellant - Anil @

Kakey. It is a matter of record that this appellant who was not

identified in the Test Identification Parade, has been convicted by

Crl. A. Nos. 947 & 1041 of 2006 and Crl. A. Nos. 227 & 352 of 2007 Page 7 the trial court for the offences under Section 397/394 of the IPC on

the basis of the identification of this appellant by the first

informant- Raj Kumar (PW-1) in the court. Trial court has relied

upon a decision of the Apex Court in the case of Malkhan Singh

and others. V. State of M.P. (2003) 5 SCC 746 to hold that

identification is the court is the substantive evidence and Test

Identification Parade can provide corroboration only to the

identification of the accused by a witness in the court.

16. It is true that the identification of an accused by a witness in

the court is a substantive evidence, but if it is negatived in the a

prior Test Identification Parade, then cogent reasons are required

for relying upon the identification of an accused by a witness in the

court. Trial court has brushed aside the submission of the defence

regarding appellant- Anil being entitled to benefit of doubt as this

appellant was not identified in the Test Identification Parade by the

star witness PW-1, by simply observing that there is no reason as

to why complainant/ injured PW-1 would falsely identify appellant

/accused- Anil. To say the least, an accused is required to explain,

as to why he has been falsely implicated, only after the

prosecution is able to establish the identity of the accused

satisfactorily. Raj Kumar (PW-1) in his evidence has been cross

examined by the defence regarding his inability to identify

appellant/accused -Anil in the Test Identification Parade. This

witness PW-1 has admitted that he could not identify Crl. A. Nos. 947 & 1041 of 2006 and Crl. A. Nos. 227 & 352 of 2007 Page 8 appellant/accused Anil in Test Identification Parade and had

volunteered that he could not do so because this

appellant/accused had changed his hair style.

17. From the evidence of this solitary witness PW-1, it

becomes clear that he had sufficient opportunity to observe the

two culprits (appellant/accused- Anil is said to be one of them) who

were standing near this witness at Laxmi Nagar Bus Stop, but in

the First Information Report, this witness has not given any

description of those two culprits except that they were aged twenty

five or twenty six years.

18. Without there being any descriptive features of the culprits in

the FIR, identification of one of them, for the first time in the court,

cannot be accepted on the face of it, especially in view of the fact

that star witness PW-1 could not identify appellant/accused- Anil in

the Test Identification Parade. In the absence of prior Test

Identification Parade, implicit reliance cannot be placed upon the

identification of an accused by a witness in the court, may not be a

correct proposition but inability to identify a suspect as an accused

in Test Identification Parade is altogether different than not holding

Test Identification Parade or not participating in the Test

Identification Parade. Inability to identify an accused in Test

Identification Parade, is certainly a circumstance which goes in

favour of the accused and it causes considerable dent in the

Crl. A. Nos. 947 & 1041 of 2006 and Crl. A. Nos. 227 & 352 of 2007 Page 9 testimony of the witness who identifies such an accused for the

first time before the court and that too, in the absence of any

descriptive features of the culprit in the FIR. In these peculiar facts,

reliance placed by the trial court upon Malkhan Singh's case

(supra), is misplaced.

19. Upon taking an overall view of the entire evidence on record,

I find that appellant/accused Anil Kumar @ Kake son of Sushil, is

certainly entitled to benefit of doubt and while extending benefit of

doubt to this appellant, he is hereby acquitted of the charges

framed against him. He is in custody. He be released forthwith, if

not wanted in any other case.

20. To conclude, appeal of appellant-Anil Kumar @ Kake is

allowed and the appeals of the remaining three appellants - Jakir

Ali, Harish and Yogesh, are partly allowed and the substantive

sentence imposed upon them is reduced to the period already

undergone by them. They are in custody. Subject to deposit of fine

by them, they be released if not wanted in any other case.

21. These four appeals and the pending applications, are

accordingly disposed of.

Sunil Gaur, J.

April 23, 2009 rs

Crl. A. Nos. 947 & 1041 of 2006 and Crl. A. Nos. 227 & 352 of 2007 Page 10