Delhi High Court
Ishwar Prasad @ Papan vs The State Through Chief ... on 4 July, 2011
Author: Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: February 15,2011
Judgment delivered on: July 04, 2011
+ CRL. A. 31/2000
VINOD SINGH ....APPELLANT
Through: Mr. Randhir Jain, Advocate.
Versus
GOVT. OF N.C.T. DELHI .....RESPONDENT
Through: Ms.Fizani Husain, APP.
WITH
CRL.A. 40/2000
ISHWAR PRASAD @ PAPAN ....APPELLANT
Through: Mr.S.P.Singh Chaudhary, Advocate.
Versus
THE STATE THROUGH CHIEF SECRETARY,
GOVT. OF N.C.T. OF DELHI .....RESPONDENT
Through: Ms. Fizani Husain, APP.
WITH
CRL.A. 87/2000
AJAB SINGH ....APPELLANT
Through: Mr.Sumeet Verma, Advocate/Amicus
Curiae.
Versus
STATE
GOVT. OF N.C.T. OF DELHI .....RESPONDENT
Through: Ms. Fizani Husain, APP.
WITH
Crl.A.Nos.31/2000,40/2000,87/2000,121/2000 & 309/2000 Page 1 of 16
CRL.A. 121/2000
BRIJ KISHORE ....APPELLANT
Through: Mr.Sumeet Verma, Advocate/Amicus
Curiae.
Versus
STATE (NATIONAL CAPITAL TERRITORY OF DELHI)
.....RESPONDENT
Through: Ms. Fizani Husain, APP.
AND
CRL.A. 309/2000
GOPAL ....APPELLANT
Through: Mr.Sumeet Verma, Advocate/Amicus
Curiae.
Versus
THE STATE (NCT OF DELHI) .....RESPONDENT
Through: Ms. Fizani Husain, APP.
CORAM:
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers
may be allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be
reported in Digest ?
AJIT BHARIHOKE, J.
1. Vide this judgment I propose to dispose of above referred five
appeals arising out of common judgment of conviction dated
22.12.1999 in Sessions Case No.92/97 FIR No.188/99 P.S. Adarsh Nagar
whereby learned Additional Sessions Judge has found the appellants
guilty and convicted appellants Ishwar Prasad, Ajab Singh, Vinod Singh
and Gopal for the offence punishable under Section 392 read with 397
IPC and convicted appellant Brij Kishore @ Birju for the offence
punishable under Section 412 IPC as also the consequent order on
sentence dated 23.12.1999 whereby respective appellants have been
sentenced to undergo RI for the period of 07 years and also to pay fine
of `1000/- each, in default to undergo RI for the period of 03 months for
the offences committed by them.
2. Briefly put, case of the prosecution is that on 02.11.1989 at about
10:10 am, on the receipt of information from PCR about a theft
committed at House No.18A, Mazlis Park, Azad Pur, Delhi, DD No.8A
(Ex.PW10/A) was recorded at P.S. Adarsh Nagar. Copy of DD report
was entrusted to SI Mahesh Kumar who left the Police Station along
with Constable Ravinder Dutt for verification of the report.
3. SI Mahesh Kumar met Smt. Bimla Devi (PW2) at the spot of
occurrence and recorded her statement Ex.PW2/A. Smt. Bimla, in the
aforesaid statement claimed that in the morning of 02.11.1989 at
about 9:00 am, her husband left the house along with his cousin Zile
Singh for his medical check up. Sometime later, she received a
telephone call from one Umed Singh, maternal uncle of Vijender, a
friend of her husband. The caller Umed Singh enquired whether her
husband was present at the house and she replied in the negative.
Thereafter, she came to the bedroom along with her daughters Alka
aged 16 years (PW4) and other daughter aged 1½ years. In the
meanwhile, four persons aged around 25-26 years came to the gallery
adjacent to the bedroom and one of them asked her where her
husband Darshan Singh had gone. Those boys entered the room and
caught hold of her as well as her daughter Alka. One of them took out
a pistol and other three boys took out knives and threatened that in
the event of their raising an alarm, they would be killed. Thereafter,
those boys took them to the kitchen and tied them up. Two of them
remained with them with knives in their hands and other two
ransacked the house. Complainant claimed that those boys robbed
them of ` 3 lakhs, jewellery, i.e. a gold pendent, a gullaband, a
necklace, four karas and two rings weighing about 10 tollas and some
documents. SI Mahesh Kumar obtained the signatures of the
complainant on her statement Ex.PW2/A, appended his endorsement
Ex.PW25/A on the same and sent it to the Police Station at 11:30 am
for the registration of the case.
4. It is further the case of the prosecution that on 05.01.1990,
appellants Ajab Singh, Ishwar Prasad, Vinod Singh, Brij Kishore and
Gopal were arrested by SI Ram Sevak (PW27) of P.S. Welcome under
the Arms Act. On interrogation, the appellants disclosed their
involvement in the robbery and consequent to their respective
disclosure statements, they got recovered some of the stolen cash and
ornaments. The information regarding arrest of the appellants and
recovery of stolen property at their instance was conveyed by SI Ram
Sevak to Crime Branch. On 06.01.1990, SI Zile Singh of Crime Branch
made a formal application before ACMM Shahdara and obtained
custody of the appellants. Thereafter, they were produced before the
concerned Magistrate at Tis Hazari Courts in muffled face and a
request was made for holding Test Identification Parade to fix their
identity. The application was marked to the Link Magistrate for doing
the needful. The appellants, however, declined to participate in the
Test Identification Parade. It is alleged that on 07.01.1990, the
appellants made further disclosures which led to recovery of some
more stolen ornaments and cash on 09.01.1990.
5. It is also the case of the prosecution that the appellant Brij
Kishore is the brother-in-law of Darshan Singh (wife's sister husband).
He was party to the conspiracy to commit robbery and was the brain
behind the occurrence.
6. The appellants were charged by the learned Additional Sessions
Judge for the offences punishable under Section 395 read with 120B
IPC, Section 395/397 read with 120B IPC, Section 342 read with 120B
IPC, Section 412 IPC and Section 506(ii) IPC. The appellants pleaded
not guilty to the charges and claimed to be tried.
7. In order to bring home the guilt of the appellants, prosecution has
examined 27 witnesses. PW2 Bimla and PW4 Alka are the eye
witnesses to the occurrence. Both of them have supported the
prosecution version as detailed in the rukka Ex.PW2/A and they have
identified the appellants Ishwar Prasad, Ajab Singh, Vinod Singh and
Gopal as the persons who committed robbery at their house. They
testified that Ishwar Prasad was armed with a pistol whereas other
three persons were having spring actuated knives. They also deposed
that they were confined in the kitchen on the point of pistol and knife
by Ishwar Prasad and Ajab Singh while the other two appellants
ransacked and looted the valuables i.e. ornaments, cash and
documents. They also stated that after the exit of robbers, PW4 Alka
untied the hands and legs of her mother PW2 Bimla. They raised alarm
and were rescued by their neighbour PW1 Krishna Devi who unbolted
the door from outside.
8. PW1 Krishna Devi is the next door neighbour of PW2 Bimla. She
has corroborated the version of PW2 Bimla and PW4 Alka that on
hearing their cries, she opened the door of the kitchen which was
bolted from outside.
9. In order to prove the arrest of the appellants on 05.01.1990 in
Arms Act cases and recovery of some of the stolen cash and ornaments
at the instance of respective appellants, the prosecution has examined
PW5 Harinder Singh, PW6 Vimal Malhotra, PW15 Head Constable Beg
Raj, PW16 Head Constable Zahir Ahmed, PW17 Head Constable
Bolender Singh, PW18 Constable Chhatter Singh, PW19 SI Raj Pal,
PW23 Head Constable Birbal Singh and PW27 Inspector Ram Sewak.
However the public witnesses PW5 Harinder Singh and PW6 Vimal
Malhotra turned hostile and they have failed to support the prosecution
story.
10. PW15 Head Constable Beg Raj and PW16 Head Constable Zahir
Ahmed deposed that the appellant Ajab Singh led the police party to
his house bearing No. 1/3710, Bhagwan Pur Khera, Shahdara and
produced an amount of `3945/-. PW17 Head Constable Bolender Singh
and PW27 Inspector Ram Sewak testified that appellant Ishwar Prasad
took them to house No. 1/3691, Bhagwan Pur Khera, Shahdara and
produced two gold chains and cash amount of ` 23,375/-. PW18
Constable Chattar Singh and PW19 SI Raj Pal deposed about the
recovery of gold locket and `6420/- from house No. 1/34038, Bhagwan
Pur Khera, Shahdara at the pointing out of the appellant Vinod Singh.
PW23 Head Constable Birbal Singh testified that appellant Gopal led
them to the house No. 1114, Jassu Ki Basti, Chandni Mahal and
produced an amount of ` 11270/-.
11. PW14 Head Constable Madan Lal and PW20 SI Zile Singh are
witnesses of disclosure statements made by the appellants in the office
of Crime Branch on 07.01.1990. They have also deposed about various
recoveries made at the instance of appellants Brij Kishore, Gopal,
Ishwar Prasad and Ajab Singh on 09.01.1990.
12. PW7 Vidhya Nand is the brother-in-law (sister's husband) of Brij
Kishore. He stated that appellant Brij Kishore had kept a sum of `
15,000/- in trust with him and that on 09.01.1990 at the instance of
appellant Brij Kishore, he gave `15,000/- to the police. PW21 Constable
Nanhey Ram stated that a pair of "karas" was recovered from the
house of Ajab Singh at his pointing out on 09.01.1990.
13. The appellants, when examined under Section 313 Cr.P.C.,
denied the correctness of the prosecution evidence in toto.
14. Learned Additional Sessions Judge, on consideration of evidence
found the appellants guilty and convicted the appellants Ajab Singh,
Ishwar Prasad, Vinod Singh and Gopal for the offence punishable under
Section 392 read with Section 397 IPC and he convicted the appellant
Brij Kishore for the offence punishable under Section 412 IPC.
15. Learned Shri Sumeet Verma, Advocate appearing for the
appellant Brij Kishore @ Birju has submitted that his conviction under
Section 412 IPC is not sustainable under law for the reason that the
prosecution has miserably failed to link the alleged `15,000/- at the
instance of the appellant Brij Kishore with the robbery. He further
submitted that perusal of evidence of PW2 Bimla and PW4 Alka would
show that there is a clear attempt on their part to falsely implicate him
by improving upon their earlier stand in the complaint as also their
statements under Section 161 Cr.P.C. Thus, learned counsel has urged
for acquittal of the appellant Brij Kishore.
16. Learned Ms. Fizani Husain, APP for the State, refuting the
argument, contended that PW7 Vidya Nand has categorically stated
that about 1½ months after 09.01.90, appellant Brij Kishore had kept
`15,000/- with him, which money he produced and handed over to the
police when the appellant Brij Kishore led the police party to his house.
Learned APP submitted that Brij Kishore has not given any explanation
regarding the source of `15,000/-. Therefore, the learned trial court
was right in concluding that aforesaid `15,000/- was part of the money
stolen in the robbery.
17. I find merit in the submission of learned counsel for the appellant.
In order to succeed on charge under Section 412 IPC, the prosecution is
not only required to establish the recovery of `15,000/- at the instance
of the appellant but it is required to establish beyond doubt that
aforesaid `15,000/- was part of the stolen money. The learned
Additional Sessions Judge has assumed that the aforesaid money was
part of the stolen property without appreciating that there is no cogent
evidence to link said amount with the stolen property. A careful
reading of the testimony of PW2 Bimla (complainant) would show that
she has improved upon her version in the complaint. As per the
statement made to the police vide Ex.PW2/A, complainant Bimla had
stated that in the morning of 02.11.90, she received a telephone call
from one Umed Singh who inquired if her husband was present in the
house, whereas PW2 in her testimony in the court has given an
improved version stating that though the caller had identified himself
as maternal uncle of Vijender, but she could make out it was not the
voice of maternal uncle of Vijender, but that of the appellant Brij
Kishore. PW4 Alka has also stated that after the telephone call, her
mother, namely, PW2 told her that though the caller claimed to be
maternal uncle of Vijender, but it was the voice of the appellant Brij
Kishore (Birju). From the afaoresaid material improvement in the
testimony of the witnesses vis-a-vis the allegations in the complaint,
prima facie, there appears to be concerted effort on the part of the
witnesses to rope in the appellant Brij Kishore for the offence of
robbery. In this backdrop, even if the recovery of ` 15,000/- from PW7
Vidya Nand is believed, it cannot give rise to a conclusion that
aforesaid `15,000/- was part of the stolen property. Failure of the
appellant Brij Kishore @ Birju to give explanation regarding the source
of said money by itself cannot give rise to a conclusive presumption
that recovered money was the part of the stolen property. It is well
settled that in a criminal case, the prosecution has to stand on its own
legs and it cannot take advantage of weakness of the defence. Thus, in
the backdrop of aforesaid facts and circumstances, I am of the
considered opinion that the prosecution has failed to link the recovered
`15,000/- with the stolen property beyond reasonable doubt.
Accordingly, the appeal of Brij Kishore @ Birju is accepted and he is
acquitted of charge under Section 412 IPC giving benefit of doubt.
18. Learned Shri S.P. Singh Chaudhary, Advocate for the appellant
Ishwar Prasad, learned Shri Randhir Jain, Advocate for the appellant
Vinod Singh and learned Shri Sumeet Verma, Advocate on behalf of the
appellants Ajab Singh and Gopal have assailed the impugned judgment
on the ground that it is based upon the incorrect appreciation of the
facts. It is submitted that case of the prosecution as projected is based
upon the testimony of eye witnesses PW2 Bimla and PW4 Alka as also
the arrest of the appellants in Arms Act cases by the police of P.S.
Welcome on 05.01.90 as also the recovery of part of stolen property at
the instance of respective appellants on 05.01.90 as also 09.01.90.
Learned counsels submitted that perusal of the impugned judgment
would show that the learned trial court has not found the evidence of
the prosecution regarding the arrest of the appellants under Arms Act
on 05.01.90 as also the evidence regarding recovery of stolen property
at the instance of respective appellants on 05.01.90 and 09.01.90
reliable. Thus, it is obvious that this is a case of unfair investigation.
Despite that, the learned Additional Sessions Judge has convicted the
appellants only on the basis of their dock identification by PW2 Bimla
and PW4 Alka, ignoring that the witnesses were examined more than
five years after the alleged robbery. Learned counsels submitted that
the learned Additional Sessions Judge has erred in placing undue
emphasis on the TIP proceedings Ex.PW21/B recorded by the then
Metropolitan Magistrate Shri C.K. Chaturvedi (PW21) to conclude that
the appellants declined to participate in the TIP without any reasonable
explanation and made it a basis for drawing adverse presumption
against the appellants and accepting the dock identification by the
witnesses. Learned counsels have concluded that the learned trial
court ought to have considered that it is not safe to rely upon the dock
identification after five years of the occurrence, particularly when there
is no recovery at the instance of the appellants and even their arrest
dated 05.01.90, which started unravelling the process of investigation
is doubtful. Thus, learned counsels for the appellants have urged for
acquittal of the appellants.
19. Learned Ms. Fizani Husain, APP, on the other hand, has
canvassed in favour of the impugned judgment and submitted that the
learned Additional Sessions Judge has rightly relied upon the dock
identification of the appellants by the witnesses, particularly when
there is nothing on the record to show any motive or enmity on the
part of the witnesses to falsely implicate the appellants.
20. I have considered the rival contentions and perused the record.
On perusal of the charge sheet, it transpires that the case of the
prosecution is essentially based upon the eye witness account of the
occurrence given by PW2 Bimla (complainant) and PW4 Alka besides
the evidence regarding the arrest of the appellants Ishwar Prasad, Ajab
Singh, Vinod Singh and Gopal by the officials of P.S. Welcome on
05.01.1990 in presence of two public witnesses as also the purported
recovery of part of stolen property at the instance of respective
appellants on 05.01.90 as also 09.01.90.
21. Perusal of the impugned judgment would show that the learned
Additional Sessions Judge on scrutiny of the prosecution evidence did
not find the evidence of the prosecution pertaining to arrest of the
appellants Ishwar Prasad, Ajab Singh, Vinod Singh and Gopal within the
jurisdiction of P.S. Welcome in Arms Act on 05.01.90 as also the
recovery of the part stolen property at the instance of above appellants
respectively on 05.01.90 and 09.01.90 reliable. Thus, learned
Additional Sessions Judge has held the appellants guilty of offence
under Section 392 read with Section 397 IPC on the basis of the eye
witness account given by PW2 Bimla and PW4 Alka as also the dock
identification of aforesaid appellants by the said two witnesses.
22. According to SI Mahesh Kumar, on the receipt of DD Report, he
reached at the spot of occurrence i.e. House No.A-18, Mazlis Park (Ist
Floor). There, he met complainant Bimla and recorded her statement
Ex.PW2/A which was endorsed and sent to the Police Station for the
registration of the case. On perusal of the complaint statement
Ex.PW2/A as also the statement Ex.PW4/A of PW4 Kumari Alka
recorded under Section 161 Cr.P.C. on 02.11.89, it transpires that
neither the complainant nor Kumari Alka (PW4) had named either of
the appellants as the robbers who entered the house and committed
robbery nor they had given specific identification features of those
robbers. Both of them had stated to the police that the robbers were
aged 25-26 years and one of them had curly hair. Perusal of the record
shows that PW2 Bimla was examined for the first time in court on
13.03.96 and PW4 Alka was examined in the court on 14.08.96. From
this, it is obvious that both the eye witnesses were examined in the
court after a lapse of more than five years from the date of occurrence.
Thus, I do not find it safe to rely upon the dock identification of the
appellants mentioned above by aforesaid witnesses. Doubt against the
reliability of dock identification of the appellants by PW2 & PW4 is
further compounded for the reason that this is a case of unfair
investigation. Learned Additional Sessions Judge has found the
evidence of the prosecution relating to arrest of the appellants in Arms
Act cases on 05.01.1990 as also the disclosure statements made by
them leading to discovery of stolen property unreliable. This puts a
question mark on the fairness of the investigation conducted by the
police. As the prosecution evidence in this regard has been found to
be unreliable, it cannot be said with certainty when and under what
circumstances the respective appellants were taken into custody by
the police. Therefore, a possibility cannot be ruled out that the
Investigating Officer might have shown the appellants to the witnesses
while they were in his custody. Thus, I do not find it safe to hold the
appellants guilty of robbery/dacoity on the basis of dock identification
by the witnesses who were examined more than five years after the
occurrence, particularly when, there is no other corroborative evidence
to link the appellants with the crime.
23. Learned APP has contended that all the appellants Ishwar Prasad,
Ajab Singh, Vinod Singh and Gopal were produced before the
concerned Metropolitan Magistrate for TIP on 06.01.1990 and they all
refused to participate in TIP in spite of the warning that their refusal
may give rise to an adverse presumption. In support of this contention,
learned APP has drawn my attention to the TIP proceedings Ex.PW21/B
and submitted that in view of the aforesaid refusal on the part of the
appellants, learned Additional Sessions Judge has rightly relied upon
the dock identification of the appellants by the witnesses.
24. It is true that the refusal of an accused to participate in TIP
without a reasonable explanation may give rise to an adverse inference
against him and may be taken as a reason to accept the dock
identification of the accused by the witnesses. This however, is not an
absolute rule. Before drawing an adverse inference on account of
refusal to participate in TIP, the court is under obligation to scrutinize
the evidence carefully to satisfy its conscience that there are
circumstances justifying the drawing of adverse presumption. In the
instant case, the situation is entirely opposite. The arrest of the
appellants is shrouded in mystery. It is not clear when and under what
circumstances, respective appellants were arrested and therefore, a
possibility cannot be ruled out that during the period of their detention,
the Investigating Officer might have shown the appellants to the
witnesses, which prompted them to refuse to join the TIP. Thus, I do
not find merit in the contention of learned APP.
25. The result of above discussion is that I find it difficult to maintain
the conviction and sentence of the appellants. Appeals are accordingly
accepted and the impugned judgment of conviction and consequent
order on sentence passed against the appellants are set aside and the
appellants are acquitted of respective charges, giving them benefit of
doubt.
(AJIT BHARIHOKE)
JUDGE
JULY 04, 2011
pst/akb
