Javed Ahmed vs The State
2010 Latest Caselaw 1505 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       Crl.A.No.348/2005
%                       Reserved on:      17th March, 2010
                        Date of Decision: 18th March, 2010

#     MOHD.NASEEM                          ..... Appellant
!                Through:          Mr.R.S.Mishra, Adv.

                        versus

$     THE STATE                             ..... Respondent
^                       Through:    Mr.Jaideep Malik, APP

+                       Crl.A.No.186/2005
#     JAVED AHMED                          ..... Appellant
!                Through:          Mr.R.S.Mishra, Adv.

                        versus

$     THE STATE                             ..... Respondent
^                       Through:    Mr.Jaideep Malik, APP

+                       Crl.A.No.266/2005
#     MOHD.FAIM                            ..... Appellant
!                       Through:   Mr.R.S.Mishra, Adv.

                        versus

$     THE STATE                             ..... Respondent
^                       Through:    Mr.Jaideep Malik, APP

+                       Crl.A.No.381/2005
#     MOHD.RASHEED                         ..... Appellant
!                Through:          Mr.R.S.Mishra, Adv.

                        versus



Crl.A.Nos.348,186,266 & 381/2005              Page 1 of 20
 $     THE STATE                               ..... Respondent
^                       Through:      Mr.Jaideep Malik, APP

*     CORAM:
      HON'BLE MR. JUSTICE V.K. JAIN

      1.    Whether the Reporters of local papers
            may be allowed to see the judgment?            No

      2.    To be referred to the Reporter or not?         No

      3.    Whether the judgment should be
            reported in the Digest?                        No

: V.K. JAIN, J.

1. By this Order, I shall dispose of all the four appeals

referred to above, which are directed against a common

judgment dated 22.2.2005 and order of sentence dated

25.2.2005, whereby the appellant Mohd.Naseem was

convicted under Section 392 and Section 397 of IPC as well

as under Section 25 of Arms Act, whereas the other

appellants were convicted under Section 392 of IPC read with

Section 34 thereof. The appellant Mohd. Naseem was

sentenced to undergo RI for seven years and to pay fine of

Rs.1,000/- or to undergo RI for six months in default under

Section 392/397 of IPC and was further sentenced to

undergo RI for one year and to pay fine of Rs.500/- or to

undergo RI for three months in default under Section 25 of

Arms Act, whereas the remaining appellants were sentenced

to undergo RI for four years each and to pay fine of

Rs.1,000/- each or to under RI for six months each in default

of payment of fine.

2. In the night of 19th August, 2000, on receipt of copy of

DD No.73-B, IO of this case, SI Balbir Singh, went to

Jawaharlal Nehru Marg, near Emergency Gate of JPN

Hospital, where HC Balbir Singh of PCR Van, bus owner Ram

Singh and conductor Raj Kumar met him. The conductor

produced the appellant Naseem along with a country made

pistol. In his statement to the IO Raj Kumar stated that he

was driver of bus No.DL 1 P-A 3821 plying on Bus Route

No.39 from Jheel to Kanhaiya Nagar. He further stated that

at about 10.05 p.m. on that day when the bus reached the

bus stand opposite JPN Hospital, four boys got the bus

stopped and one of them boarded the bus. He took out a

country made pistol from the pant which he was wearing and

asked him as to who the owner of the bus was. Thereupon,

Ram Singh, who was sitting in the bus got up. He was made

to get down from the bus. The country-made pistol was kept

on the temple of the complainant Raj Kumar and he also was

made to get down from the bus. Two of the three companions

of the person wielding countrymade pistol searched Ram

Singh and removed Rs.3,000/- from his pocket, whereas the

third person accompanying him removed Rs.1,200/- from the

possession of the complainant. Thereafter, all of them ran

towards Delhi Gate. The complainant and his employer Ram

Singh raised an alarm and chased them. One PCR Van was

standing near Emergency Gate of JPN Hospital. One of the

boys was apprehended by PCR officials. His name later came

to be known as Mohod.Naseem and one country-made pistol

was seized from his right hand.

3. During the course of trial, the prosecution examined

ten witnesses in support of its case. One witness was

examined in defence.

4. Raj Kumar came in the witness box as PW-1 but did

not support the prosecution case. He stated that when they

reached near Pant Hospital, three boys gave signal to stop the

bus, but, thereafter nothing was done by them and no money

was snatched. He was cross-examined by the APP, but he

denied the case of the prosecution as set-up in the FIR lodged

by him.

5. The bus owner Ram Singh came in the witness box as

PW-9 and stated that on 20th August, 2000 he was travelling

in his bus No.DL 1 P 1728 and that when the bus reached in

front of Pant Hospital, four boys got the bus stopped and

boarded it. He identified all the four appellants as the boys

who had boarded the bus and stated that the appellant

Naseem took out a Katta, put it on the temple of the

conductor and forcibly snatched Rs.1,200/- from him.

Thereafter, Naseem came to him and asked in a loud voice as

to the owner of the bus was. When he claimed that he was

the bus owner, Naseem forcibly made him get down from the

bus. The other three boys were also standing there Naseem

snatched a sum of Rs.3,000/- from him and then they

started running towards Delhi Gate. He and conductor

raised alarm and chased the appellants. When they reached

the Emergency Gate of Hospital, one PCR Van was parked

there. They narrated the incident to the PCR officials and

Naseem was apprehended by them along with a country-

made pistol, which was seized. Thereafter, the appellant

Naseem was taken to the Dariya Ganj Police Station, where

he was interrogated and at his instance other accused were

also arrested from Chhatta Lal Mia.

6. PW-3, Constable Satish Kumar, who was posted in

Police Control Room on 19th August, 2000 from 8.00 p.m. to

8.00 a.m., has stated that at about 10.15 p.m. they saw some

persons running from G.B.Pant Hospital towards Delhi Gate

and some other persons chasing them. He saw one boy

amongst those who were running, carrying a pistol like arms

in his hand. They apprehended one boy named Naseem and

recovered the country-made pistol from him. The remaining

boys, however, managed to run away.

7. PW-8, HC Balbir, is the another police official who was

on duty in PCR Van parked at the get of LNJP Hospital. He

stated that they found 3/4 boys running towards Delhi Gate

and a crowd chasing all those boys. They apprehended one

of the boys whose name later came to be known as Naseem.

That boy was having a country-made pistol in his hand.

8. PW-4, Constable Gaj Raj Singh, is the police official

who sent to the spot with IO. He has stated that when they

reached the spot, they found the appellant Naseem having

been already apprehended by PCR officials. Naseem was

handed over to them. Ram Singh also met them on the spot.

In search of the appellant Naseem, one country-made pistol

was recovered from his possession and was seized vide Memo

Ex.PW-1/C. He further stated that thereafter Naseem was

interrogated and he went to Chhatta Lal Mia along with the

accused and IO. Three persons were found inside a shop in

Chhatta Lal Mia and were arrested. The appellants Javed

Ahmed, Mohd.Rasheed and Mohd.Fahim, according to the

witness, were those persons. Some cash, according to him,

was also recovered from the possession of Javed and Fahim,

whereas one dagger was recovered from the possession of

Rasheed. In cross-examination, he also stated that Rs.600/-

were recovered from the appellant Rasheed.

9. PW-10 SI Balbir Singh is the IO of this case. He stated

that on 19th August, 2000, he along with Constable Gaj Raj

Singh went to the spot where the officials of Police Control

Room, bus owner Ram Singh and conductor Raju Kumar

produced accused Naseem along with a country-made pistol.

After seizing the pistol, he interrogated the appellant Naseem

and left in search of other accused persons. On the pointing

out of Naseem, the appellants Javed Ahmed, Mohd.Fahim

and Mohd.Rasheed were arrested. One dagger was recovered

from Rashid. Cash amounting to Rs.600/- and Rs.500/-

respectively was recovered from the possession of appellants

Javed and Fahim. In cross-examination, he stated that the

appellant Naseem was handed over to him by PCR officials

and Raju Kumar, conductor of the bus.

10. In their statements under Section 313 Cr.P.C., the

appellants denied the allegations against them and claimed

that they have been falsely implicated in this case.

11. DW-1 Mohd.Aslam, who is the uncle of the appellant

Naseem, stated that Naseem was lifted by the police from his

shop on 20th August, 2000.

12. The first question which arises in this case is as to

whether there was a robbery from the possession of the

conductor and owner of the bus, in the night of 19 th August,

2000. PW-1, Raju Kuamr and PW-9 Ram Singh are the only

persons produced by the prosecution to prove the alleged

robbery. Raju Kumar has not supported the prosecution and

has specifically stated that after the bus was stopped, the

boys who had got the bus stopped, did not do nothing and

did not snatch any money. In his cross-examination by the

learned Additional Public Prosecutor, he denied having told

the police that he was robbed of Rs.1,200/- whereas Ram

Singh was robbed of Rs.3,000/-. Thus, the testimony of this

witness instead of supporting the case set up by the

prosecution, rather contradicts it.

13. Though PW-9 Ram Singh has claimed that he as well

as conductor of his bus were robbed of money, the presence

of this witness in the bus is highly doubtful. According to

this witness, the appellant Naseem after boarding the bus

and snatching Rs.1,200/- from the conductor, asked, in loud

voice, as to who the owner of the bus was and in response

thereto he told Naseem that he was the owner of the bus. I

fail to appreciate how the appellant Naseem could have

assumed that the owner of the bus was also travelling in the

bus. Normally, it is only the conductor who is present in the

bus. Ordinarily, there would be no reason for a robber to

presume that the owner of the bus was also present inside

the bus.

14. The case of the prosecution, as set up in FIR, is that

the appellant Naseem, after boarding the bus, made the bus

conductor as well as owner of the bus get down from the bus

and thereafter both of them were robbed of the money which

they were carrying with them. In his deposition in the Court,

Ram Singh stated that it was in the bus that Naseem put the

pistol on the temporal region of the conductor and snatched

Rs.1,200/- which the conductor was carrying with him.

Thus, the version given by them is contrary to the version

given in the FIR.

15. The case of the prosecution in the FIR is that only the

appellant Naseem had boarded the bus, though it was got

stopped by four persons. But, in his deposition in the Court,

Ram Singh has stated that all the four boys had boarded the

bus. This is yet another circumstance which creates doubt

on the presence of Ram Singh inside the bus.

16. The case of the prosecution, as evidenced from the

arrest Memos Ex.PW-1/D-1 to PW-1/D-4, the seizure Memos

of cash Ex.PW-1/F and PW-1/G and seizure Memo of dagger

(Chhura) Ex.PW-1/K, is that the appellants Javed, Fahim and

Rasheed, were arrested in the presence of Ram Singh when

the appellant Naseem took them to Chhatta Lal Mia. But,

PW-4, Constable Gaj Raj Singh in his examination specifically

stated that after interrogation of the appellant Naseem, he

along with the accused and IO went to Chhatta Lal Mia. He

does not say that Ram Singh also accompanied them to

Chhatta Lal Mia. When the IO came in the witness box as

PW-10, he also did not say that PW-9 Ram Singh had

accompanied them to Chhatta Lal Mia. He specifically stated

that on the pointing out of Naseem, Javed Faim and Rasheed

were arrested. If Ram Singh was present with the police

officials at the time of arrest of Javed, Faim and Rasheed,

there was no reason for PW-4 and PW-10 not referring to this

fact during their deposition in the Court. In his cross-

examination, Ram Singh stated that on reaching Chhatta Lal

Mia, he remained outside whereas the police entered the

place where the appellants Javed, Fahim and Rasheed were

arrested. Thus, according to him, neither he pointed out the

appellants Javed, Faim and Rasheed, nor were they pointed

out by Naseem in his presence. This is contrary to the case

of the prosecution that the appellants Javed, Faim and

Rasheed were arrested in the presence of Ram Singh.

17. PW-3, Constable Satish Kumar, who was on duty in

PCR Van and was amongst the police officials who

apprehended the appellant Mohd.Naseem, does not refer to

presence of Ram Singh anywhere in his deposition in the

Court. PW-8 HC Balbir Singh, who was the other police

official present in PCR Van, also does not say a word about

presence of the bus owner Ram Singh on the spot.

18. The case of the prosecution in the FIR is that after the

bus conductor and bus owner were made to get down from

the bus, the cash from the possession of conductor and bus

owner was removed by two of the three companions of

appellant Naseem, whereas the cash from the possession of

the conductor was removed by the third companion of

Naseem, when Ram Singh came in the witness box, he

claimed that it was the appellant Naseem who had snatched

money from him as well as from the conductor. This is yet

another discrepancy which creates serious doubt on the

presence of Ram Singh in the bus at the time of commission

of robbery. In view of circumstances, there is a strong

possibility of the bus owner Ram Singh having been called to

the police station after the robbery had taken place.

19. For the reasons discussed in the preceding

paragraphs, I am of the considered view that the presence of

Ram Singh at the time of the alleged robbery does not stand

established beyond reasonable doubt.

20. The complainant Raju Kumar has not supported the

prosecution case as regards commission of the alleged

robbery and the presence of the bus owner Ram Singh, who

is the only other witness to prove the alleged robbery, is

highly doubtful. It would be pertinent to note here that

according to Ram Singh, the bus driver had also got down

from the bus when it was got stopped. But the driver of the

bus has not been produced in the witness box.

21. Since the alleged robbery does not stand proved

beyond reasonable doubt, the conviction of the appellants for

robbery cannot be maintained.

22. Presuming that PW-1 Raju Kumar and PW-9 Ram

Singh were robbed, as claimed by Ram Singh, and the

appellant Naseem was the person who had snatched money

from them, the identity of the other three appellants as the

boys who accompanied Naseem at the time of commission of

robbery does not stand established. Admittedly, none of

these three appellants was previously known to Ram Singh.

Admittedly, none of them was arrested by the police at the

pointing out of Ram Singh. As noted earlier, according to

Ram Singh, at the time of arrest of appellants Javed, Faim

and Rasheed by the police he was waiting outside. Thus, not

only Ram Singh did not point out these three appellants as

persons involved in the robbery, even the appellant Naseem

did not point them out in his presence. Admittedly, none of

these three appellants was apprehended on the spot.

23. Admittedly, no attempt was made by the IO to get these

three appellants Javed, Faim and Rasheed, identified by

judicial test identification parade. If these three appellants

Javed, Faim and Rasheed were arrested at the pointing out of

Naseem and not at the pointing out of PW-9 Ram Singh and

at the time of their arrest PW-9 Ram Singh was present

outside the shop from which they were arrested, they ought

to have been brought to the shop in muffled face so that Ram

Singh was not in a position to see and thereafter they should

have been subjected to judicial test identification parade

whereas the witness who had seen them should have been

asked to identify them.

24. 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 Identification Parade.

25. 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.

26. 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."

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

Supreme Court, 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."

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

128, the 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."

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

Bench of the Supreme Court held that identification by the

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

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

In State of Maharashtra Vs. Sukhdeo Singh, AIR 1992 SC

2100, the Supreme Court, 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."

It was held by the 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.

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 Identification 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.

27. The identification of these three appellants Javed,

Fahim and Rasheed by Ram Singh during trial could have

been acceptable to establish their identity had there been

some corroborative evidence to connect them with the

commission of the offence. Though cash is alleged to have

been recovered from the possession of the appellants Javed

and Faim, there being no mark of identity on the currency

notes, it cannot be said that these were the same currency

notes which are alleged to have been removed from the

possession of Ram Singh and the conductor of the bus Raju

Kumar. The case of the prosecution is that one dagger was

also recovered from the possession of appellant Faim. There

is no evidence that any of the three boys accompanying the

appellant Naseem was armed with a dagger at the time of

commission of robbery. Therefore, as far as appellants Javed,

Faim and Rasheed are concerned, even if the testimony of

PW-9 Ram Singh is believed, they would be entitled to

acquittal for the reason that their identity does not stand

established beyond reasonable doubt.

28. However, the evidence produced by the prosecution,

particularly the testimony of PCR officials PW-3 Constable

Satish Kumar and PW-8 HC Balbir Singh of Police Control

Room, proves that the appellant Mohd. Naseem was found in

possession of a country-made pistol and that too at a public

place. The testimony of PW-5 Puneet Pur, Sr.Scientific

Asstt.(Ballistic), Forensic Science Laboratory shows that the

weapon recovered from the possession of the appellant

Naseem was a country-made pistol and was in working order.

The appellant Mohd.Naseem has, therefore, rightly been

convicted under Section 25 of Arms Act.

29. For the reasons given the preceding paragraphs, the

appellants Javed Ahmed, Mohd. Fahim and Mohd.Rasheed

are, hereby, given the benefit of doubt and are acquitted. The

appellant Mohd. Naseem is also acquitted of charges under

Sections 392/397 of IPC. The conviction of the appellant

Mohd. Naseem under Section 25 of Arms Act, however, is

maintained. The sentence awarded to him under Arms Act

also does not call for any interference.

30. During the course of arguments, I was informed that

the appellant Mohd. Naseem has already spent more than

one year in custody. If the fine has not been paid by him, he

will deposit the same with the trial court within two weeks,

failing which he will undergo the sentence awarded to him by

the trial court in default of payment of fine.

31. All the appeals stand disposed of.

32. The record of the trial court be sent back along with a

copy of the judgment.

(V.K.JAIN) JUDGE MARCH 18, 2010 RS/