Surinder Singh vs State (Delhi Admn.)
2011 Latest Caselaw 3200 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        CRL.A. 488/2000

%                                               Decided on: 8th July, 2011


SURINDER SINGH                                                      ..... Appellant
                                  Through:   Ms. Mercy Hussain and Mr. Ajay
                                             Mehrotra, Advocates

                         versus

STATE (DELHI ADMN.)                                           ..... Respondent
                  Through:                   Mr. Manoj Ohri, APP

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA


1. Whether the Reporters of local papers may             Not Necessary
   be allowed to see the judgment?

2. To be referred to Reporter or not?                    Yes

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

MUKTA GUPTA, J.

1. By this appeal the Appellant lays a challenge to the judgment dated 12th

July, 2000 convicting him for offence punishable under Section 392 IPC and

the order on sentence dated 13th July, 2000 directing him to undergo Rigorous

Imprisonment for a period of one year and to pay a fine of ` 200/- and in

default of payment of fine to further undergo Rigorous Imprisonment for a

period of one month.

2. Briefly the prosecution case is that on 6th July, 1995 at about 3.00 P.M.

a lady along with the Appellant came to the house of PW2 Sanjay Jaggi when

his mother Smt. Shanti Jaggi and PW1 Sumitra Dass their maid servant were

present. The woman who had come along with the Appellant had visited the

house 10-15 days earlier also in the presence of PW2 Shri Sanjay Jaggi and

his wife PW3 Kajal Jaggi. The said lady asked for water and the Appellant

who was accompanying her went down stairs and returned with two boys.

Thereafter the three boys took PW1 Sumitra Dass and Smt. Shanti Jaggi to the

bedroom. The Appellant pulled out a knife and asked PW1 Sumitra Dass to

stand by the side of the Almirah and threatened that if she would make any

noise he would kill her. The other two boys caught hold of Shanti Jaggi and

one of them gagged her mouth & the other hit her on the head with the

emulsion rod. They took the keys of the almirah from the drawer of the table

and removed the jewellery. Thereafter they left the flat and PW1 Sumitra

Dass raised an alarm.

3. On the basis of the statement of PW1 Exhibit PW1/A FIR No.

489/1995 under Sections 399/397/392/34 IPC was registered at PS Paschim

Vihar, Delhi. The description of the woman who accompanied the Appellant

and two others matched with one Meenu Chadha who had disposed of her flat

through the agency of PW2 Sanjay Jaggi and his partner PW4 Sanjay Kapoor

who used to run the business of property dealers. This Meenu Chadha could

not be arrested and thus, was declared a proclaimed offender. On the 20th

July, 1995 the Appellant, Anil and Balwant were arrested from Om Vihar in

pursuance of a secret information. Their disclosure statements Ex.PW8/C,

Ex.PW8/D & Ex.PW8/E respectively were recorded and pursuant to it

recovery of some stolen jewellery was made from their house on the 21 st July,

1995 wherein a gold necklace was recovered from the house of the Appellant,

a pair of gold tops from the house of Anil and a gold ring from the house of

the Balwant. On 21st July, 1995 all the three accused were produced in the

Court and the Investigating Officer moved an application for Test

Identification Parade (TIP) of Balwant and Anil however, they declined to

participate. The Appellant was remanded to police custody for one day and

after the said remand period an application for Test Identification Parade was

filed. The Appellant also refused to participate in the same. On filing of the

charge-sheet, the statements of the prosecution witness and the accused were

recorded. Co-accused Balwant and Anil were acquitted giving them benefit of

doubt however, the Appellant was convicted and sentenced as above.

4. Learned counsel for the Appellant contends that the recovery of stolen

articles from the Appellant has been disbelieved by the learned Trial Court

and his conviction is solely based on the testimony of PW1 Sumitra Dass who

was a child witness as even on the date of her evidence before the Court she

was aged 13 years. Relying on State of Bihar, etc. vs. Kapil Singh, etc., AIR

1969 SC 53; Arbind Singh and Krishna Nandan Singh and others vs. State of

Bihar, AIR 1994 SC 1068 and State of U.P. vs. Ashok Dixit and another, AIR

2000 SC 1066 it is contended that the conviction cannot be based solely on the

testimony of the child witness without any corroboration thereto. Moreover,

the testimony of the child witness was recorded without following the

procedural safeguards and thus contrary to the law laid down in Nirmal

Kumar vs. State of U.P., AIR 1992 SC 1131. PW1 was working as a maid

servant and did not even know the local language. In her cross-examination

she has stated that she signed her statement in Bengali and her statement was

not read over to her. She did not even know whether she signed on blank or

written papers. She has herself stated that one of the accused closed her mouth

by putting his hand thereon and put the open knife on her neck and made her

to stand facing the wall. She has further stated that after finding the keys they

opened the Almirah and removed the cash and valuable jewellery etc.

Thereafter, she was made to crawl and go under the bed hence she could not

see what happened. Since this alleged eye witness has not witnessed anything

it is not possible that she could identify the Appellant. On the same evidence

co-accused Balwant and Anil have been given the benefit of doubt whereas it

has not been extended to the Appellant.The lady who accompanied the

Appellant has neither been identified nor arrested nor charge sheeted nor

convicted. The role of the Appellant at best was of accompanying her. PW1

has further stated that she was shown persons arrested in the police station and

thus, the refusal of the Test Identification Parade by the Appellant was wholly

justified and no adverse inference can be drawn. Reliance is placed on

Ravindra @ Ravi Bansai Gohar vs. The State of Maharasthra & Ors., AIR

1998 SC 3031 and Budh Singh and others vs. State, 29(1986)DLT 70.

5. It is further contended that even the identification of the case property

cannot be said to be proved as PW2 Sanjay Jaggi has stated that the case

property was shown to him at the police station. No memo of the recovery of

the wrist watch was prepared. PW3 Kajal Jaggi has stated that the wrist watch

which was in her possession was also stolen. Relying on Venu @ Venugopal

and others vs. State of Karnataka, 2008 (3) SCC 94 it is further contended that

no conviction for an offence under Section 392 IPC can be based without

recovery of the articles robed solely on the testimony of solitary witnesses.

6. Per contra learned APP for the State contends that PW1 Sumitra Das

cannot be classified as a child witness in view of Section 83 of the Indian

Penal Code. Further, no suggestion has been given to PW1 that she has been

tutored. Even in her cross-examination after five years of her testimony PW1

has identified the Appellant. A perusal of the testimony of PW1 shows that

she is a competent witness having attained sufficient maturity and thus, her

testimony can be the sole basis of conviction of the Appellant. Even in the

absence of the test identification parade, the identification in dock is

substantive evidence and PW1 has duly identified the Appellant as the person

who had accompanied the lady when she opened the door of the flat. It is

further stated that for a conviction for offence punishable under Section 392

IPC it is not essential to prove the recovery of the robbed articles.

7. I have heard learned counsel for the parties and perused the records. At

the outset I find no infirmity in the finding of the learned Trial Court that the

evidence of the three police officers PW8 ASI Jagdish Chander, PW12 Ct.

Devender Singh & PW14 Inspector Jai Singh does not inspire confidence as

regards the recovery of the stolen jewellery from the house of the Appellant

on the 21st July, 1995. There are material contradictions between the

testimonies of these witnesses as to what jewellery was recovered from the

Appellant. Pursuant to the disclosure statement PW8 in his testimony has

stated that the appellant disclosed two karas and two wrist watches to be in his

possession. Whereas PW12 has stated that accused Surinder pointed towards

his house in Om Vihar & produced a necklace from an almirah, PW14

deposed that a necklace was recovered from the appellant. However PW3

Kajal Jaggi produced the wrist watch Ex.P-4 which she was wearing and

stated that the said watch had also been stolen. No recovery memo of this

watch has been produced nor was it stated to be have been stolen by the co-

accused. Nor was this watch identified by the witness and it is not understood

as to how it reached the possession of PW3 as she specifically stated for the

other articles recovered that she had taken those articles on superdari.

However, as regards this watch nothing was stated.

8. Thus, the only evidence that remains against the Appellant in the

present case is the testimony of PW1 Sumitra Dass. Admittedly PW1 Sumitra

Das was aged 12 years at the time of commission of offence. However she

cannot be termed as a child witness who can be swayed by tutoring and is not

competent to answer the question. This witness in her examination-in-chief

and cross-examination has rationally stated the entire sequence of events.

There is no suggestion given to this witness that she has been tutored. Thus,

her testimony cannot be discarded for the reason that she is a child witness

and conviction can be based without corroboration thereon.

9. However, what has to be looked into in the present case is whether on

the basis of the sole testimony of this witness the prosecution has been able to

prove its case against the Appellant beyond reasonable doubt. In her cross-

examination PW1 has stated that she could not understand what the lady was

talking to mataji as they were talking in Punjabi and she did not understand

Punjabi. As far as her statement is concerned on the basis of which FIR was

registered i.e. Exhibit PW1/A this witness in her cross-examination stated that

she did not know whether she signed a blank or written paper. She further

stated that she signed in Bengali and cannot say what was written on the

paper. It is stated that the contents of the statement were not read over &

explained to her. From a perusal of the language used in the statement it is

evident that the said statement was not of PW1 as she could not have been so

good in Hindi which was not her mother tongue.

10. There is yet another aspect, that is, whether PW1 had sufficient

opportunity to see the Appellant. As per her statement the Appellant came

along with one lady to their house. After ringing of the door bell the woman

wished Namaste to Mataji and asked for a glass of water. She gave a glass of

water to that lady and then the lady asked a glass of water for the Appellant;

she gave a glass of water to the Appellant. Thereafter the Appellant went

downstairs and called two more boys. All those persons wanted to see the

house. When she was showing the house one of them closed her mouth by

putting hand thereon and showed her open knife by putting the same on her

neck. Those persons then tied the mouth of Mataji with cloth and asked for

the keys from her. PW1 stated that since she was recently employed by them

she did not know about the keys. Then those persons asked for keys from

Mataji but Mataji refused to give the keys, they gave fist blows to her & all

this while PW1 was made to stand facing the wall. In the meantime, those

persons found the keys and opened the Almirah and removed the cash and

jewellery etc. PW1 was then made to crawl and go under the bed and thus,

she could not see what happened. After those persons left she called the aunty

from the neighbourhood and one person from the neighbourhood called the

police. It is thus apparent that there were only two occasions when she saw

the Appellant, once when he entered the house with the lady and secondly,

when she gave the glass of water as soon thereafter he went downstairs and

after coming with the two boys PW1 was made to stand to facing towards the

wall. Rest of the facts she has stated by perceiving the same through voices

and not by seeing. According to PW1 it was not the Appellant who had

gagged her mouth and made her face towards the wall. This witness has

deposed that she was called in the Police Station and shown the person who

were arrested & has identified all the accused present in the Court to be the

ones who were shown to her. Without any other corroborating evidence it

will be highly unsafe to base the conviction of the Appellant as the

identification of the Appellant by this witness is based on the glimpse of the

Appellant for a few seconds at the time of incident.

11. The Hon'ble Supreme Court in Malkhan Singh and Ors. v. State of

Madhya Pradesh, 2003 (5) SCC 746 held that the failure to conduct TIP

cannot be always fatal to the prosecution case as the substantive evidence is

the evidence of identification in the Court and the test identification parade

provides corroboration to the sworn testimony of the witness in the Court as to

the identity of the accused. It was held that in appropriate cases the Court

may accept the identification in Court even without insisting on such or other

corroboration. Undoubtedly, in the present case the conviction of the

Appellant could have been based on the sole testimony of PW1 even in the

absence of the TIP in case the witness has had sufficient time to identify the

Appellant. In the absence of any corroboration to the testimony of PW1

merely identifying in the witness box when the witness has only seen the

Appellant for a few seconds is not sufficient to hold that the prosecution has

proved the case beyond reasonable doubt against the Appellant.

12. In my considered opinion the Appellant is also entitled to the benefit of

doubt as given to the two other accused that is Balwant and Anil Kumar by

the learned Trial Court in the present case. The appeal is accordingly allowed.

The judgment dated 12th July, 2000 convicting the Appellant for offence

punishable under Section 392 IPC and the order on sentence dated 13th July,

2000 is set aside. Appeal is allowed, the Appellant is acquitted of the offence

charged. The Bail bond and the surety bond are cancelled.

(MUKTA GUPTA) JUDGE JULY 8, 2011 vn