Hardwari Lal vs State
2009 Latest Caselaw 4459 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                       Reserved on: October 22, 2009

                 Pronounced on: 4th November, 2009

+      (1) CRL.A. No. 633/1999
       with Crl. M.B.No. 564/2009


#      Hardwari Lal                           ..... Appellant

!                      Through: Mr. R.S. Gupta, Advocate

                 Versus

$      State                               .....Respondent

^                      Through: Mr. R.N. Vats, APP for the
                       State with S.I. Manohar Lal, I.O., P.S.
                       Punjabi Bagh.

CORAM:

    HON'BLE MR. JUSTICE V.K. JAIN

       1. Whether Reporters of Local newspapers may be
          allowed to see the Judgment? Yes

       2. To be referred to the Reporter or not? Yes

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




Crla633.99                                  Page 1 of 12
              V.K.Jain, J.

1. This is an appeal against the Judgment and Order on

Sentence, both dated 30.10.2009 whereby the appellant

was convicted under Section 307/34 of IPC and was

sentenced to undergo rigorous imprisonment for five years

and to pay fine of Rs.1,000/- or to undergo simple

imprisonment for one month in default.

2. The case of the prosecution is that on 07.11.1996, at

about 8:30 p.m., complainant Sarabjeet Singh, accompanied

by his mother Smt. Joginder Kaur was going to Rani Bagh in

a cycle rickshaw. When they reached near a railway

crossing, they found the railway crossing closed. One boy

came from behind the rickshaw and gave a hand on the ear

of his mother. When he prevented him, the boy started

running towards trees. The complainant chased him. After

some distance, 2-3 companions of that person caught hold of

the complainant. One of them gave a knife blow on the left

side of his chest whereas the other one gave a blow on his

back. The assailants ran away after causing injury to him.

He was brought to the hospital and was admitted there.

3. The case of the prosecution is that appellant Hardwari

Lal is the person who had given knife blow to the

complainant.

4. The learned counsel for the appellant did not submit

any argument on merit of the conviction and only sought

reduction of sentence to the period already undergone by

the appellant in jail. This, however, being a First Appeal, it

becomes duly of this court to examine the matter, to satisfy

itself, as to legality of the conviction, on the basis of

evidence led during trial.

5. During trial, the complainant came in the witness box

as PW-4 and stated that on 07.11.1996 when they reached

railway crossing while travelling on a rickshaw, the crossing

was found closed and there was a traffic jam at the crossing.

The rickshaw puller had therefore to stop awaiting clearance

of the traffic and opening of railway crossing. One person

snatched the golden ear ring which his mother was wearing

and started running towards the jungle near the road. He

chased him. Suddenly, 2-3 persons came there and one of

them stabbed him firstly on the chest and then on the back.

He identified appellant Hardwari Lal as the person who had

stabbed him. According to him all the accused persons

managed to run away, after causing injury to him.

6. The mother of the complainant Smt. Joginder Kaur

came to the witness box as PW-6 but since she was not a

witness of the injuries caused to the complainant, she

identified only the co-accused of the appellant, namely

Anish, who had snatched her ear-rings.

7. In his statement u/s 313 of Cr. P.C., the appellant

denied the allegations against him.

8. PW-4 Sarabjeet Singh is the only witness produced by

the prosecution to prove the identity of the appellant as the

person who gave knife blows to him. Admittedly, the

appellant was not previously known to the complainant.

Admittedly, the appellant was not apprehended on the spot.

A Test Identification Parade was conducted by the Learned

Metropolitan Magistrate during investigation. The

complainant did not identify the appellant during Test

Identification Parade.

9. It is settled proposition of law that when the accused is

not previously known to the witness, and is not apprehended

on the spot, there is no evidence to corroborate

identification during trial, and there are no special features

in the testimony of a witness, which persuade the court to

accept identification in the court, even without any

corroborative evidence, it is obligatory for the prosecution to

get his identity verified in a Test Identitification Parade.

10. In Mohan Lal vs. State of Maharastra; 1982 Crl. L.J.

630 (2), the witness did not know the accused before the

occurrence and no TIP was held to test his power of

identification. It was held that the evidence had become

absolutely valueless on the question of identification and

could not be relied upon.

11. In Mohd. Abdul Hafeez v. State of Andhra Pradesh , AIR

1983 SC 367, the victim did not give any description of the

accused in the FIR No. TIP was held. The accused was held

guilty on the identification in the court by the victim after

four months of occurrence. It was held that the conviction

was not sustainable.

12. In Hari Nath Vs. State of U.P., 1988 Cr.L.J. 422, it was

held by the Hon'ble Supreme Court that in a case where eye

witnesses did not know the appellant before the occurrence,

identification of the accused for the first time in the dock

after a long lapse of time, would have been improper. The

following passage from Halsbury's Law of England was

recalled:

"It is undesirable that witnesses should be asked to identify a defendant for the first time in the dock at his trial; and as a general practice it is preferable that he should have been placed previously on a parade with other persons, so that potential witness can be asked to pick him out."

13. In Vaikuntam Vs. State of A.P., 1960, Crl. J. 1681, the

Hon'ble SC, inter alia observed as under:

"it is true that when he came to give evidence in court, the witness did point out to the same three accused as having been seen by him at the time of the murder. It is also true that 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 an earlier identification proceeding. There may be exception to this rule where the court is satisfied that the evidence of a particular witness is such that it can safely rely on it without the precaution of an earlier identification proceeding."

14. In Budhsen and Another Vs. State of U.P. 1970(2) SCC

128, the Hon'ble Supreme Court, inter-alia observed as

under:-

"The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of a prior test identification, therefore, seems to be to rest and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the

form of earlier identification proceeding. There may, however, be exceptions to this general rule, when for example, the court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration."

15. In State Vs. V.C. Shukla, AIR 1980 SC 1382, a three

Judge Bench of the Hon'ble SC held that identification by

the witness for the first time in the court, without being

tested by a prior T.I.P., was valueless.

16. In State of Maharastra Vs. Sukhdeo Singh, AIR 1992

SC 2100, the Hon'ble SC, inter-alia observed as under:-

"In the case of total strangers, it is not safe to place implicit reliance on the evidence of witnesses who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court."

17. It was held by the Hon'ble Supreme Court in George

Vs. State of Kerala 1988 (2) JCC 1927 that though not fatal,

absence of corroborative evidence of prior identification in a

TIP makes the substantive evidence of identification in court

after a long lapse of time, a weak piece of evidence and no

reliance can be placed upon it unless sufficiently and

satisfactorily corroborated by other evidence. "

18. In Canon and Ors. Versus State of Kerala AIR

1979 SC 1127 the accused was not previously known to the

witness and nor know Test Identitification Parade was held.

It was held that it would not be safe to rely on identification

for the first time in Court. Similar view was taken in Mohan

Lal Versus State of Maharashtra AIR 1980 SC 839,

which was a case under Section 326/323/34 of IPC.

19. In his cross-examination, the complainant has stated

that he did not identify the accused persons during TIP as

they had shown threatening eyes to him. This part of the

deposition of the complainant cannot be accepted for the

simple reason that no such complaint was ever made by him

either to the Magistrate who held the Test Identification

Parade or to the Investigating Officer at any point of time.

What is material is that the complainant failed to identify the

appellant during Test Identification Parade. In fact the facts

and circumstances of the case indicate very little likelihood

of the complainant having properly seen the person who

gave knife blows to him. This is his own case that the

incident of stabbing took place in a jungle. In cross-

examination, he admitted that it was dark at that time. He

claims to have seen the assailants in the light of the vehicles

passing from there. At the time the vehicles are waiting for

railway crossing to open, their headlights would be towards

the railway crossing and not on the jungle on the sides of the

roads. Therefore, it is difficult to expect that the complainant

was able to see the assailants in the light of vehicles. It is

note worthy that according to the complainant the incident

of stabbing took place at the distance of about 100 meters

from the crossing and there was darkness in the jungle

except the light of the passing vehicles. The complainant has

admitted that there was no electric poll at the place where

the incident of stabbing takes place. It was also stated by the

complainant that he saw the assailants in the light of the

vehicles which were moving on an over bridge/flyover. As

some light was coming from there. According to him that fly

over was a distance of about 50 meters from the place where

the incident took place. Since the headlights of the vehicles

would be towards the direction in which they are moving, it

is unlikely that a person, running at a lower level, 50 meters

away from the fly over, could have seen the assailants in the

light of the vehicles moving on the fly over, When the jungle

in which the incident took place was on the side and at a

lower level. This is more so when according to the witness

he was chasing one of the assailants when 2-3 persons came

on a sudden and one of them gave a knife blow to him. While

chasing the person who had snatched the ear-ring of his

mother, the attention of the complainant would be only on

that person, as he could not have known that his associates

will come from nowhere and give him knife blows. It would

be difficult for him to properly set those persons when he

did not engage himself with them and did not have any

scuffle with them, which might have given him an

opportunity to have a close look at them. In fact, these very

circumstances explain the inability of the complainant to

identify the appellant during Test Identification Parade.

20. The identification of the appellant during trial could

have been acceptable to establish his identity had there

been some corroborative evidence to connect him with the

commission of the offence. Admittedly, the stolen case

property was not recovered from him. The case of the

prosecution is that one knife was recovered from the

possession of the appellant when he was arrested. There is

no evidence to show that injuries to the appellant were

caused from that very knife. What is more important is that

the trial court has disbelieved the alleged recovery of knife

from the appellant and has acquitted him of the charge

under Section 25 of the Arms Act. No Cross Appeal has been

filed by the prosecution against the acquittal of the appellant

for the charge under Section 25 of the Arms Act.

21. For the reasons stated in the preceding paragraphs, I

am of the considered view that the identity of the appellant

could not be established beyond reasonable doubt. He is,

therefore, given benefit of doubt and is hereby acquitted.

(V.K. JAIN) JUDGE November 4, 2009/rs