Deepak @ Ghoda vs State
2014 Latest Caselaw 1329 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Judgment reserved on: 04.03.2014
                                                 Date of Decision: 12.03.2014

+                             CRL.A. 719/2013

PARDEEP @ SANDY                                        ..... Appellant
             Through:                Mr. R.M. Tufail, Mr. Varun Agrawal &
                                     Mr. Anwar A. Khan, Advs.

                                         versus

STATE                                                 ..... Respondent
                      Through:       Mr. Feroz Khan Ghazi, APP.


+                CRL.A. 720/2013
DEEPAK @ GHODA                         ..... Appellant
            Through: Mr. R.M. Tufail, Mr. Varun Agrawal &
                     Mr. Anwar A. Khan, Advs.

                                         versus
STATE                                                 ..... Respondent
                      Through:       Mr. Feroz Khan Ghazi, APP.


+                             CRL.A. 165/2014

PAWAN @ TAU                                            ..... Appellant
                      Through:       Mr. R.M. Tufail, Mr. Varun Agrawal &
                                     Mr. Anwar A. Khan, Advs.

                                         versus
STATE                                                 ..... Respondent
                      Through:       Mr. Feroz Khan Ghazi, APP.
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                                  JUDGMENT

V.K.JAIN, J.

On 29.08.2010, about about 12.45 pm, an information was

received that a person had been robbed of his motorcycle - Bajaj

Discover, red colour, bearing registration number DL 8S NC 4908 at

Bawana Road, DSIDC, H-Block, Main Road. The information when

conveyed to Police Station Bawana, was recorded vide DD No.22A, a

copy of which was given to Head Constable - Brijesh Kumar for

investigation when Head Constable - Brijesh Kumar reached the Main

Ganga Toli Road, near Lal Flat, Sector - 3, DSIDC, Bawana, the

complainant - Abhinav Dhruv was present there. The statement of the

complainant was recorded by him. The complainant, inter alia, stated

that on the aforesaid date, he was returning from Bawana on his

motorcycle number DL 8S NC 4908, bearing chasis number -

MD2DSPAZZ SPL 47751 and Engine number JBUBSI 94103. At about

12.40 pm, when he reached the Main Ganga Toli Road near Lal Flat,

Sector-3, DSODC Bawana, three boys driving a red colour motorcycle

got his motorcycle stopped. One of them showed a knife to him and

asked him to leave the motorcycle, failing which he would be killed.

Being scared, the complainant got down from his motorcycle. The other

boy then took charge of the motorcycle and drove it. The other two boys

also drove away on the red colour Pulsar motorcycle. The investigation

was later transferred to SI - Pawan Kumar of Police Station - Bawana.

2. On 03.09.2010, an information was received with respect to arrest

of the appellants - Deepak, Pawan and Pardeep in the case registered

vide FIR No.277/2010, by the staff of Outer District, Delhi. It is also the

case of the prosecution that in the aforesaid case, the appellants made

disclosure statements admitting their involvement in the robbery of the

motorcycle of the complainant. After their arrest, the appellants refused

to join Test Identification Parade. The motorcycle which the appellants

are alleged to have stolen during the robbery is alleged to have been

recovered from the house of the appellant - Pardeep, pursuant to the

disclosure statements made by the appellants. All the three appellants

were then charge-sheeted under Section 392/397/506/34 of Indian Penal

Code. The trial court, however, charged all the appellants under Section

392/34 of IPC. Appellant - Deepak was also charged under section 397

of Penal Code and Section 27 of the Arms Act. Since the appellants

pleaded not guilty, as many as 12 witnesses were examined by the

prosecution. Two witnesses were examined in defence.

3. The complainant - Abhinav Dhruv came in the witness box as

PW2 and, inter alia, stated that on 29.08.2010, when he was returning

from Bawana and when he reached the corner of Main Ganga Toli

Road, Sector-3, Bawana, all the three accused persons came on a Pulsar

motorcycle of red colour. The accused - Deepak gave him a signal to

stop, by waiving his hands. Thereupon he slowed down his motorcycle.

His way was blocked by the motorcycle on which the accused persons

were travelling. The appellant - Pawan got down from that motorcycle,

put a knife on his belly region and asked him to go away leaving the

motorcycle. When he asked him as to what happened, Deepak slapped

him and then fled away on his motorcycle. The other two accused

namely - Pawan and Pardeep also fled away on their Pulsar motorcycle.

He also claimed that though he went to the Police Station, being

perplexed, he was not in a condition to narrate the complete facts and,

therefore, after two days he again went to the police station and made

his statement. He further stated that on 26.09.2010, he went to Rohini

Courts where all the three accused persons seen by him.

4. PW3 - Head Constable Narender, inter alia, stated that on

02.09.2010, a call was received from the Special Staff that three persons

had been apprehended along with illicit arms and stolen vehicles near

Bawana Naher Guest House. When he reached there, Head Constable -

Surender along with other officials was present there. The accused

Deepak, Pawan and Pardeep were also present there. According to him,

he interrogated and recorded disclosure statements of accused persons

and then went to Village Peepli near Kharkhoda along with them. Two

stolen motorcycles were recovered from the courtyard of the house of

Pardeep, one of which belonged to this case having registration number

DL 8S NC 4908.

5. PW5 Virender, inter alia, stated that on 02.09.2010, a secret

information was received in the office of Special Staff that 4-5 persons

would come with the intention of committing robbery of motorcycle and

vehicles in Badli Industrial Area near Bawana canal rest house. Head

Constable Surender shared this information with Inspector Puran Pant

and a raiding party was organized. At about 7 pm, three boys came there

on two motorcycles and stopped near a Tavera vehicle which had

already been parked there. They were pointed out by the informer, when

they were trying to open the backside door of the vehicle. One of them

was found carrying a country made pistol and the other one was

carrying a buttondar knife. According to him, a country made pistol was

found with Pawan, whereas buttondar knife was found with Deepak. He

further stated that when accused were interrogated they made disclosure

statements Ex.PW3/A to PW3/C and got recovered two motorcycles

from the house of the accused Deepak in Village Peepli, which included

motorcycle number DL 8S NC 4908.

6. PW8 - Head Constable Surender Kumar corroborated the

deposition of PW5 - HC Virender with respect to the appellants coming

on two motorcycles, a country made pistol being recovered from Pawan

and a knife being recovered from Deepak. According to him, one round

was recovered from Pardeep.

PW11 - HC Krishan also deposed with respect to arrest of the

appellants and recovery of country made pistol from Pawan and a knife

from Deepak. He also deposed with respect to disclosure statement of

the appellants and recovery of two motorcycles including the

motorcycle stolen in the present case from the house of accused Deepak

in Village Peepli.

7. In their statements under Section 313 of Code of Criminal

Procedure, the appellants denied the allegations against them and

claimed to be innocent.

8. DW1 - Mr. Satbir Singh is the resident of Village Peepli in

District Sonepat at Haryana. He, inter alia, stated that he knew all the

three appellants, he being a co-villager, and they were lifted by Delhi

Police in his absence. DW2 - Mr. Dalsher stated that he knew all the

three accused, he being a co-villager and that all of them were lifted by

Delhi Police in September, 2010.

9. Vide impugned judgment dated 08.04.2013 the appellants were

convicted under Section 392/34 IPC and vide impugned Order on

Sentence dated 15.04.2013, they were sentence to undergo RI for 10

years each and to pay a fine of Rs 10,000/- each. Being aggrieved from

their conviction and sentence awarded to them, the appellants are before

this Court by way of this appeal.

10. The impugned judgment has been assailed by the learned counsel

for the appellants on the following grounds:-

a) There was a delay of 3 days in lodging the FIR, the incident

having taken place on 29.8.2010 and the FIR having been lodged on

1.9.2010;

b) No public witness was joined in the alleged recovery of

motorcycle from the house of the appellant Pardeep;

c) There was delay in applying for TIP of the appellants;

d) The case of the prosecution is that the knife to the complainant

was shown by the appellant Pawan but when the complainant came in

the witness box, he claimed that the knife was shown to him by the

appellant Deepak;

e) The appellants were shown to the complainant and their

photographs were also taken;

f)     No record of calls to PCR was produced;

g)     The complainant did not go to jail for participating in the TIP;

h)     The motorcycle was taken on superdari on 26.9.2010 though it

had been recovered on 2.9.2010.

11. The incident in question took place on 29.8.2010. The appellants

were arrested in the night of 2.9.2010 in the case registered vide FIR

No.277/2010 of Police Station S.P.Badli. On 3.9.2010, the intimation

with respect to arrest of the appellants and their having confessed their

involvement in this case was conveyed to Police Station Bawana vide

DD No.11A (Ex.PW4/A). The application for production of the

appellants was submitted by the Investigating Officer of this case,

before the concerned Court on 6.9.2010 and on that date an order was

passed by the said Court for production of the appellants in muffled face

on 8.9.2010. The appellants were arrested on that date as would be

evident from their arrest memo. Admittedly, the appellants refused to

join TIP on 15.9.2010. If computed from the date of arrest, the

application for holding TIP was moved after 6-7 days. If computed

from the date of incident, the application for holding TIP was moved

after 16-17 days. The question which arises is as to whether there was

an undue delay in seeking identification of the appellants in a judicial

TIP and if so, whether the delay stands explained or not.

12. The necessity for holding a Test Identification Parade arises only

in those cases where the accused are not previously known to the

witnesses, The purpose of TIP being that that the witnesses who claim to

have seen the culprits at the time of the occurrence are made to identify

them from amongst other persons, so that their memory and veracity can

be checked. As a general rule, the substantive evidence of a witness is

the deposition made by him in the Court and the purpose of a prior test

identification is to test and strengthen the credibility of his evidence in

the Court. The failure to hold Test Identification Parade does not ipso

facto render the evidence of identification in the Court inadmissible,

though ordinarily the Court would look for some corroborative evidence

where the accused is identified for the first time during trial and no

attempt is made, during the course of investigation, to get him identified

from the eye witnesses in a judicial TIP. The identification in the Court

would be stronger if the witness had opportunity to see the accused in a

day time, whereas it would be comparatively weaker, in case the

accused is seen at a dark spot. It is, however, desirable that a Test

Identification Parade should be conducted soon after the arrest of the

accused so as to give an opportunity to the witness to identify him at the

earliest, when the incident witnessed by him is still fresh in his mind, as

also to eliminate the possibility of the accused having been shown to the

witness prior to the TIP. Inordinate delay in holding TIP creates doubt

on the genuineness of the TIP since it would be difficult for the

witnesses to remember the face of the culprits after a long period,

though lapse of some days is not enough to erase the identity of the

assailant from the memory of the witness who has undergone a

harrowing experience, such as an armed robbery.

13. In Lal Singh v State of U.P. (2003) 12 SCC 554, the Hon'ble

Supreme Court, dealing with the issue of delay in conducting the TIP,

inter alia, held as under:-

"It will thus be seen that the evidence of identification has to be considered in the peculiar facts and circumstances of each case. Though it is desirable to hold the test identification parade at the earliest possible opportunity, no hard and fast rule can be laid down in this regard. If the delay is inordinate and there is evidence probablising the possibility of the accused having been shown to the witnesses, the Court may not act on the basis of such evidence."

In Pramod Madal vs. State of Bihar 2004 (13) SCC 150, the

Apex Court, inter alia, observed as under:-

"It is neither possible nor prudent to lay down any invariable rule as to the period within which a Test Identification Parade

must be held, or the number of witnesses who must correctly identify the accused, to sustain his conviction. These matters must be left to the Courts of fact to decide in the facts and circumstances of each case. If a rule is laid down prescribing a period within which the Test Identification Parade must be held, it would only benefit the professional criminals in whose cases the arrests are delayed as the police have no clear clue about their identity, they being persons unknown to the victims. They therefore, have only to avoid their arrest for the prescribed period to avoid conviction."

In Mulla and Anr. vs. State of Uttar Pradesh (2010) 3 SCC 508,

no description of the accused persons was given in the FIR. The TIP

was held 63 days after the occurrence and 55 days after their arrest. In

the meanwhile, the accused persons were taken to Court. The

identification in the Test Parade was challenged by the appellants on the

ground of delay in conducting the said parade. Noticing that the Test

Identification Parade was conducted properly and required procedures

were followed, the objection was rejected by the Apex Court though

there was no corroborative evidence which could link the appellants

with the commission of the crime.

The proposition of law which emerges from the above-referred

decisions is that though attempt should be made to hold TIP at the

earliest possible, it cannot be said as to within how many days of the

occurrence or the arrest of the accused, the Test Identification Parade

must be held. Every case will, therefore, have to be examined on its

own merit to ascertain whether in the facts and circumstances of the

case, there was an unexplained delay in holding TIP of the accused and

whether, on account of such delay, there was a possibility of the witness

having forgotten the face of the culprit or there was a probability of the

accused having been shown to the witnesses in the meanwhile.

14. In my view, neither the time lag between the date of arrest of the

appellants in this case and the date on which they refused to join TIP nor

the time lag between their arrest i.e. 2.9.2010 and the date on which they

refused to join TIP on 15.9.2010 can be said to be such as could be

construed as abnormal requiring the prosecution to give adequate

explanation for the said delay. Though the appellants had refused to

join TIP on the ground that they had been shown to the witnesses and

their photographs had also been taken, there is no evidence to prove that

either the appellants or their photographs were shown to the

complainant. It would be pertinent to note here that on 14.9.2010, an

application was filed by the I.O. of this case for production of the

appellants and on that application, an order was passed by the concerned

Magistrate directing their production on 15.9.2010 in muffled face.

There is no evidence of the complainant being present either on that

date or on 8.9.2010 when they were produced in the Court and were

arrested in this case. No suggestion was given to PW2 either that he had

seen the appellants in the Court on 8.9.2010 or that he had seen them on

15.9.2010. Therefore, there was no reasonable possibility of the

appellants having been shown to the accused before they refused to join

TIP on 15.9.2010.

15. The learned counsel for the appellant Deepak has referred to Jafar

Malik vs. State (NCT of Delhi) decided on 3.3.2009 in

Crl.A.No.573/2007, Wakil Singh & Ors. vs. State of Bihar, AIR 1981

SC 1392, Subhash and Shiv Shankar vs. State of U.P. AIR 1987 SC

1222, Ravindra @ Ravi Bansi Gohar vs. State of Maharashtra & Ors.

AIR 1988 SC 3031, Vinod Singh vs. Govt. of NCT Delhi decided on

4.7.2011, Crl.A.No.31/2000 and Chendyala Suresh vs. State of A.P.

2013(1) Crimes 42 (AP).

In Jafar Malik(supra), this Court found that the accused had been

shown to the witnesses before TIP and that resulted in his acquittal.

However, in the case before this Court, there is no evidence of the

appellants having been shown to the complainant before they refused to

join TIP on 15.9.2010.

In Vakil Singh(supra), the accused were identified in a TIP,

which was held after about 3 ½ months of the dacoity. The Court was

of the view that it is not possible for a human being to remember the

features of the accused after such a long gap and therefore it would be

unsafe to convict the accused in a serious charge on the testimony of the

witness who identified him in the TIP after about 3 ½ months.

However, in the case before this Court, as noted earlier, the time lag was

only 6-7 days if computed from the date of arrest of the appellants in

this case and 16-17 days if computed from the date of the incident.

Moreover, the incident in the case before this Court happened in broad

day light.

In Subhash (supra) the identification parade was held after three

weeks of the arrest of the accused and, therefore, there was some room

for doubt if the delay was in order to enable the witnesses to see the

accused in the jail premises or police lock up and make a note of his

features

In Ravindra(supra), there was evidence of the photographs of the

accused persons having been shown to the witnesses before test

identification parade. It was held in a lock up of the investigating

agency thereby giving sufficient opportunity to the witnesses of seeing

them. The identifying witnesses in that case were police Constables

attached to the concerned police station. However, the facts of the case

before this Court are altogether different and there is no evidence of the

photographs of the appellants having been shown to the complainant.

In Vinod Singh (supra), the eye-witnesses were examined in the

Court after more than five years from the date of occurrence. Moreover,

the Court found that the case before it was a case of unfair investigation

and evidence relating to arrest of the appellants as well as the disclosure

statements made by them leading to discovery of stolen property was

unreliable. This judgment, therefore, would not apply to the facts of the

case before this Court and consequently would be of no help to the

appellants. In Chendyala Suresh (supra), there was delay of 25 days in

conducting TIP. However, the facts of the case before this Court being

altogether different, the aforesaid judgment would be of no help to the

appellants.

16. Since the appellants have neither been able to show that either

they or their photographs had been shown to PW-1 before they refused

to join TIP nor have they been able to make out existence of

circumstances from which an inference of their having been shown to

the witness, an adverse can be drawn against them on account of their

refusal to join TIP. The Court, in such circumstances, would be justified

in presuming that had they participated in the TIP, they would have been

identified by the complainant and that precisely was the reason they

refused to join the said proceedings.

17. As regards the delay in lodging FIR, the primary purpose for the

Court insisting upon prompt lodging of FIR to eliminate the possibility

of any false implication or a coloured version of the incident creeping in

the FIR, as a result of deliberations which may take place in the

meanwhile. But, a delayed FIR is not per se illegal though it would

certainly put the Court on guard to scrutinize the evidence more

carefully, so as to eliminate a reasonable possibility of false implication.

A perusal of DD No. 22A Ex.PW-12/A, registered at Police Station

Bawana on 29.08.2010 would show that on the aforesaid date, Police

Control Room had been informed of the theft of motorcycle bearing

No.DL8S 5C 4908 by three boys who were travelling on a Pulsar

motorcycle. A perusal of the FIR Ex.PW-1/B would show that the

version given by the complainant was on the same lines except that in

the information sent to Police Control Room, there was no reference to a

knife having been shown to the complainant. This is not a case where

one or more accused have been named or otherwise identified in the

FIR. Therefore, the delay in lodging FIR cannot be said to be motivated

or attributed to a desire to falsely implicate one or more persons.

According to the complainant, he did not lodge FIR on the dame day

since he was perplexed on account of incident he had gone through.

The explanation given by him does not merit an outright rejection. In

any case, even if the explanation given by him is excluded from

consideration, the delay in lodging FIR would be immaterial considering

that the material information had already been conveyed to Police

Control Room and had been duly recorded vide DD No. 22A.

The learned counsel for the appellant Pardeep has referred to

Mehraj Singh vs State of U.P. 1994 SCC (5) 188, where the Court

emphasized the importance of prompt lodging of FIR in a criminal case,

particularly in a murder case and it was inter alia observed that the

object behind such instances is to obtain earliest information regarding

circumstances in which the crime was committed, including the name of

the actual culprits and the parts played by them, the weapons, if any,

used as also the names of eye-witnesses and that delay in lodging FIR

often results in embellishment which is a creature of an afterthought.

However, in the case before this Court, since no one has been named in

the FIR and the theft had already been reported and also recorded vide

DD No. 22A, the delay in lodging the FIR is of no consequence, as far

as the conviction under Section 392 of IPC is concerned.

18. The identification of all the appellants in the Court, coupled with

their refusal to join TIP, without any justification, in my view, is

sufficient to prove their identity as the persons involved in the incident

of robbery in which the motorcycle of the complainant was stolen on

29.08.2010. As far as the appellant Pardeep is concerned, there is a

corroborative evidence in the form of recovery of the stolen motorcycle

from his house on 03.09.2010. Since the stolen motorcycle came to be

recovered by the police only on the aforesaid date, there is no possibility

of its having been planted on the appellant Pardeep.

19. It has come in evidence that all the three appellants, while in

police custody, made disclosure statements Ex.PW-3/A to C. In the

disclosure statement of the appellant Pawan, there is no mention of the

place where the stolen motorcycle of this case had been kept. However,

in the statements of the appellant Deepak and Pardeep, it was stated that

the motorcycle was parked at the house of Pardeep. It is not known as to

which of the disclosure statement was recorded first. Only the first

disclosure statement whereby the police officer was informed that the

stolen motorcycle had been parked at the house of the Pardeep would be

admissible in evidence. Nevertheless, the fact remains that pursuant to

one of the disclosure statements, the police discovered the fact that the

stolen motorcycle was parked in the house of Pardeep. Therefore, the

first disclosure statement, whereby the police officer discovered the fact

that the stolen motorcycle had been parked at the house of Pardeep

would be admissible in evidence under Section 27 of the Evidence Act.

20. The provisions of Section 100 of the Code of Civil Procedure do

not apply to a recovery made by the police pursuant to the disclosure

statement of an accused which is admissible in evidence under Section

27 of Evidence Act and, therefore, it was not obligatory for the

Investigating Officer to join public witnesses before recovering the

stolen motorcycle. Consequently, the recovery of the stolen motorcycle

cannot be rejected on the ground that no public witness was associated

with the recovery.

In State of NCT of Delhi Vs. Sunil & Another : 2000 VIII AD

(SC) 613, a plea was taken that there was no independent witness of the

recovery made by the police pursuant to the statement of the accused

while in police custody. The following observations made by the

Hon'ble Supreme Court in this regard are pertinent:

"Hence, it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the Investigating Officer contemporaneous with such recovery must necessarily be attested by independent

witness. Of course, if any such statement leads to recovery of any article it is open to the Investigating Officer to take the signatures of any person present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the Investigating Officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth."

21. As regards non-production of PCR record, I find no merit in

contention since DD No. 22A clearly shows that the Police Control

Room had been informed with respect to the theft of the motorcycle in a

robbery, committed by three persons travelling on a red Pulsar

motorcycle.

22. As regards PW-2 not going to jail, there was no need for him to

do so since the appellants had already refused to join TIP on 15.09.2010

and consequently neither any date for holding TIP in the jail was fixed

nor was the witness asked to go to the jail on that date.

23. As regards the complainant not taking the stolen motorcycle on

superdari immediately after it was recovered, the same, in my view, is

of no consequence since the registration number of the motorcycle was

given in the FIR itself.

24. For the reasons stated hereinabove, I hold that all the three

appellants have rightly been convicted under Section 392 of IPC read

with Section 34 thereof. Their conviction is, therefore, upheld.

However, in the facts and circumstance of the case, while maintaining

the sentence of fine, the substantive sentence awarded to the appellants

is reduced from seven years each to three years each.

The appeals stand disposed of.

One copy of this order be sent to the concerned Jail

Superintendent for information & necessary action.

LCR be sent back along with a copy of this order.

MARCH 12, 2014/rd/ks/bg                                    V.K. JAIN, J.