Mohd. Harun Faraji & Anr. vs State Of Nct Of Delhi
2009 Latest Caselaw 435 Del

     * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      Crl. A. No. 203/2008

                           Judgment reserved on: 06.08.2008
%                          Judgment delivered on: 09.02.2009

Mohd. Harun Faraji & Anr.               ...... Appellants
                    Through: Mr. Bharat Bhushan, Adv.

       versus


State of NCT of Delhi                         ..... Respondent
                           Through: Mr. Pawan Sharma, APP

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR


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

2.     To be referred to Reporter or not?             Yes

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

KAILASH GAMBHIR, J.

*

1. The present appeal has been preferred by the

appellants under Section 374 of the Criminal Procedure

Code challenging the conviction and sentence order

passed vide order dated 22/09/2007 and 27/09/2007, by

the Court of Sh. S.P. Garg, Additional Sessions Judge,

Patiala House, in FIR No. 962/2006 of Police Station

Sangam Vihar U/Ss. 458/395/380/34 of the Indian Penal

Code, 1860.

2 . Before delving on the contentions of the parties it

would be relevant to refer to the brief conspectus of the

instant case as per the prosecution.

3. That on 21.12.2004, FIR No. 962/04 was registered

by PS Sangam Vihar on the statement of complainant

Chander Bhan Sharma who disclosed that on the

intervening night of 20-21.12.04 at about 3 AM, he saw 4-5

boys had entered inside his house and were searching it.

They were armed with knives and country made pistols. On

seeing them he raised an alarm. On that, the said 4-5 boys

jumped the rear wall of the courtyard and fled away. On

search of his house, he found that the articles were lying

scattered and gold ornaments and cash of Rs. 19,000/-

was found stolen from his house. Gold ornaments and cash

worth Rs.3100/- was also found missing from the house of

his tenant Sh. Amresh Pathak. Cash of Rs.9,000/- was

found stolen from the room of his another tenant Sh. Chain

Singh. Statements of concerned witnesses were recorded

by the police. On 19.2.2005, IO of this case received

information that accused Nos. A1 to A4 namely Iliyas,

Rubel, Mohd. Harun Faraji and Mohd Appan, along with

one Mohd. Munir (since discharged) were arrested in case

FIR No. 67/2005 u/s 399/402 IPC PS Bhajanpura and in

their disclosure statements disclosed their involvement in

the present case. I.O. of this case got production warrants

issued against the accused persons and moved application

for TIP. Complainant Chander Bhan Sharma in the TIP

proceedings identified A-2, A-3 and A-4. A-1 refused to

participate in the TIP proceedings. PW Amresh also did

not participate in the TIP proceedings. After further

investigation and recording further statements of the

concerned witnesses, the IO filed Challan against the

accused persons in the court of Ld MM who committed the

case to the court of Sessions under Section 207/208 Cr.P.C.

The prosecution examined some 12 witnesses whereafter

the statements of accused persons were recorded under

Sec. 313 CrPC who denied the charges and claimed that

they were innocent. The Ld. Trial court however, held the

appellants guilty of the said offences and convicted the

appellants and sentenced them to undergo RI of four years

with fine of Rs.1000/- failing which to undergo further

imprisonment of three months.

4. Feeling aggrieved with the said conviction and

sentence, the appellants, herein, preferred the instant

appeal.

5. Mr. Bharat Bhushan, counsel for the appellants

contended that the trial judge did not appreciate that the

basic allegations made by the complainant were at random.

The counsel submitted that the ocular evidence was

completely manipulated on the face of it while no evidence

came on record which would connect appellants to the

crime. The prosecution story that the accused persons at

the time of commission of offence were wearing masks

clearly destroys the outcome of TIP proceedings. Further,

the story that the accused persons removed masks before

giving directions at the crime scene clearly shows that the

witness was trying to falsely implicate them as it cannot be

expected that all the accused removed masks mechanically

when they knew that they could be caught. The counsel

urged that nothing could be culled out by joining all the

accused persons for justifying identifications and rather the

witness was tutored before hand by the police to implicate

the appellants. The counsel submitted that even if the

witness was to be believed then the concocted story of

mechanically removing the masks would come in the way

and thus, benefit of doubt should be given to the

appellants. The counsel further contended that the

prosecution version is like a cock and bull story as the

evidence of the complainant could be confined to

burglary/decoity in his house and the subsequent aspect of

identifying them on the basis of their arrest in other cases

because had there been any disclosure to connect them to

the crime then some stolen items at least would have been

recovered. Since nothing was recovered, therefore the

prosecution story is baseless and devoid of any merits, the

counsel contended. Stretching the said argument, the

counsel submitted that the story of the Police that the

accused themselves admitted the crime cannot be given

much weightage because if they had admitted the

commission of the crime then they would have also

disclosed about the stolen articles. The counsel maintained

that since no role was assigned to the accused persons

including the present appellants thus the crime cannot be

attributed to them. The counsel also urged that no

evidence came on record to prove that the accused person

had common intention to commit the alleged crime. The

counsel also contended that the trial court erred in holding

that non-examination of another witness Sh. Chain Singh

was not fatal to the prosecution case on the ground that

the efforts were made to serve the said witness and the

decision of the trial court is per se bad in holding that the

burden to examine the said witness shifted on the

appellants.

6. Per contra, Mr. Pawan Sharma, APP refuted the

contentions raised by the counsel for the appellant and

contended that the conviction and sentence in order dated

22/09/2007 and 27/09/2007, does not suffer from any

illegality, infirmity or perversity warranting any

interference by this court. The counsel contended that the

present appeal is an abuse of the process of the court and

deserves to be dismissed.

7. I have heard learned counsel for the parties and

perused the record.

8. On perusal of the record it is manifest that on

19/02/2005 the I.O. of the FIR No. 962/2004 registered at

PS Sangam Vihar u/Ss. 458/395/380/34 IPC, which is the

instant case, received information from Special Staff

North-East District that all the four accused in the said FIR

along with one Mohd. Munir (since discharged) were

arrested in the case FIR 67/2005 U/s. 399/402 IPC

registered at PS Bhajan Pura and they had made disclosure

statements regarding their involvement in the present

case. On the said information the investigation in the

instant case proceeded further.

9. On perusal of the testimony of HC Jagveer, PW 5, it is

manifest that the appellants along with other co-accused

were apprehended in a case FIR No. 67/2005 registered at

PS Bhajanpura and also that upon interrogation by SI

Rohtash, the co-acussed Rubel disclosed their involvement

in FIR no.s 778/2004 and 962/2004 registered at PS

Sangam Vihar and the said disclosure statement is Ex. PW-

5/A.

10 . It is no more res integra that mere disclosure statement without recovery is of no evidentially value. The law regarding disclosure statement made to police is

enshrined in Section 27 of the Evidence Act. Section 27 is virtually borrowed from Taylor's treatise on the Law of Evidence as pointed out by the Full Bench of the Allahabad High Court in the vintage decision in Queen Empress v. Babu Lal67. The passage in Taylor's Evidence (which is found in para 902 of Vol. 1 of 1931 Edn.) is as follows:

"902. (i) When, in consequence of information unduly obtained from the prisoner, the property stolen, or the instrument of the crime, or the body of the person murdered, or any other material fact, has been discovered, proof is admissible that such discovery was made conformably with the information so obtained. The prisoner's statement about his knowledge of the place where the property or other article was to be found, being thus confirmed by the fact, is shown to be true, and not to have been fabricated in consequence of any inducement. It is, therefore, competent to prove that the prisoner stated that the thing would be found by searching a particular place, and that it was accordingly so found, but it would not, in such a case of a confession improperly obtained, be competent to inquire whether he confessed that he had concealed it there. So much of the confession as relates distinctly to the fact discovered by it may be given in evidence, as this part at least of the statement cannot have been false."

11 . The entire prosecution case rests on the disclosure statement made in the FIR No. 962/2004

registered at PS Sangam Vihar u/Ss. 458/395/380/34 IPC. It is not in dispute that no recovery of stolen goods was made pursuant to the said disclosure statement. The pre- requisite for operation of Section 27 of the Evidence Act is that there should be discovery of fact. In this regard the Apex court in State (NCT of Delhi) v. Navjot Sandhu,(2005) 11 SCC 600 observed as under:

"121. The first requisite condition for utilising Section 27 in support of the prosecution case is that the investigating police officer should depose that he discovered a fact in consequence of the information received from an accused person in police custody. Thus, there must be a discovery of fact not within the knowledge of police officer as a consequence of information received. Of course, it is axiomatic that the information or disclosure should be free from any element of compulsion. The next component of Section 27 relates to the nature and extent of information that can be proved. It is only so much of the information as relates distinctly to the fact thereby discovered that can be proved and nothing more. It is explicitly clarified in the section that there is no taboo against receiving such information in evidence merely because it amounts to a confession. At the same time, the last clause makes it clear that it is not the confessional part that is admissible but it is only such information or part of it, which relates distinctly to the fact discovered by means of the information furnished. Thus, the information conveyed in the statement to

the police ought to be dissected if necessary so as to admit only the information of the nature mentioned in the section. The rationale behind this provision is that, if a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused."

12 . In the instant case, there is a mere disclosure statement made to the police but there is no discovery of fact or stolen goods, thus, the prosecution fails in proving the culpability of the accused persons.

13 . Furthermore, it is well settled that the prosecution case should stand on its own. The entire case of the prosecution is based on the disclosure statement of the accused Sh. Rubel in the FIR No. 962/2004 registered at PS Sangam Vihar, wherein the offences for which the accused were being tried in the said case were different from the instant case, being those u/Ss. 458/395/380/34 IPC.

14 . On perusal of the S.161 CrPC statement of the complainant Mr. Chander Bhan Sharma, Pw8 and also the complaint, certain doubts are raised. From the perusal of the aforesaid statements it is manifest that the complainant

did not even remember and could not even state with certainty as to whether there were 4 or 5 persons who entered in his house for theft. Further, neither did the complainant PW8 mentioned about the mask in his statement under S. 161 CrPC nor did he mention the same in his complaint, it was only during the cross-examination that he divulged that the accused were wearing masks and had simultaneously removed the same and due to light in the drawing room he could see the accused persons and was able to identify them in the TIP. Mere statements in themselves do not amount to substantive piece of evidence. The statement of the complainant without corroboration cannot be accepted.

15 . Furthermore, as per the testimony of PW8 complainant, theft took place in his house as well as in the house of his two tenants, Mr. Amresh Pathak and Mr. Chain Singh but no independent complaints were made by them regarding theft at there place. Also, non-examination of another witness Sh. Chain Singh is fatal to the prosecution case.

16 . No chance prints or fingerprints were picked from the site by the Police Officials. Also, it has come in the deposition of Pw8 complainant that nothing was recovered by the police from the site.

17 . The present appellants participated in the TIP proceedings and they were identified by the complainant Mr. Chander Bhan Sharma. After complying with the relevant provisions of the law a separate charge u/Ss. 395/458/34 IPC was ordered to be framed against the appellants in the supplementary challan S.C. No. 112/2006 vide order dated 14/7/2006. It is well settled that Test Identification Parade in itself is not a substantive piece of evidence and TIP coupled with other circumstances and evidence can be taken into consideration as substantive piece of evidence. The evidence of test identification is admissible under Section 9 of the Evidence Act; it is, at best, supporting evidence. It can be used only to corroborate the substantive evidence given by the witnesses in Court regarding identification of the accused as the doer of the criminal act. The earlier identification made by the witnesses at the test identification parade, by itself, has no independent value. Nor is test identification the only type of evidence that can be tendered to confirm the evidence of a witness regarding identification of the accused, in Court, as the perpetrator of the crime. The identity of the culprit can be fixed by circumstantial evidence also. In this regard the Apex Court in Munshi Singh Gautam Vs. State of M.P., (2005) 9 SCC 631, the

Hon'ble Apex Court discussed the object, purpose and importance of TIP in the following terms:-

16. As was observed by this Court in Matru v. State of U.P.11 identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain12.) The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Evidence Act. It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such an allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.

18 . Thus, from the foregoing, it is manifest that the

prosecution case suffers from various infirmities. It is a

well settled principle of criminal jurisprudence that if the

prosecution case fails to prove the culpability of the

accused beyond reasonable doubt then the benefit of doubt

must go to the accused. In this regard the Hon'ble Apex

Court in Rang Bahadur Singh Vs. State of U.P. - (2000) 3

SCC 454 observed as under :-

22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time- tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime.

19 . In view of the above discussion, the judgment and

order dated 22/09/2007 and 27/09/2007, respectively, of

the Additional Sessions Judge, Sh. S.P. Garg, Patiala

House, pertaining to a case in FIR No. 962/2006 of Police

Station Sangam Vihar U/Ss. 458/395/380/34 of the Indian

Penal Code, 1860 is set aside and consequently the appeal

is allowed and the appellants are acquitted.

February 09, 2009               KAILASH GAMBHIR
                                    JUDGE