Amarjeet @ Minto vs State
2014 Latest Caselaw 2429 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Judgment reserved on :07.05.2014
                                      Judgment delivered on :13.05.2014

+      CRL.A. 219/2006
       AMARJEET @ MINTO                                 ..... Appellant
                       Through              Appellant with his counsel
                                            Mr.Jayant K. Sud, Adv.
                             versus
       STATE                                          ..... Respondent
                             Through        Ms. Kusum Dhalla, APP
+      CRL.A. 221/2006
       DEEPAK @ DEEPU                                          ..... Appellant
                       Through              Appellant with his counsel Mr.
                                            S.K. Tandon and Mr. R.V. Naik,
                                            Advs.
                             versus
       STATE                                          ..... Respondent
                             Through        Ms. Kusum Dhalla, APP
+      CRL.A. 389/2006
       MONU @ PARVEEN                                       ..... Appellant
                       Through              Ms. Suman Chauhan, Adv.
                       versus
       STATE                                          ..... Respondent
                       Through              Ms. Kusum Dhalla, APP

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 The appellants before this Court are aggrieved by the impugned

judgment and order of sentence 16.03.2006 & 18.03.2006 respectively

wherein they have been convicted under Sections 307/147/148 read with

Section 149 of the IPC and each of them has been sentenced to undergo

RI for a period of four years for the offence under Section 307 read with

Section 149 of the IPC; for the offence under Section 148 of the IPC,

they have been sentenced to undergo RI for a period of 2 years; for the

offence under Section 147 of the IPC, they have been sentenced to

undergo RI for a period of 1 year; each of the three convicts have been

further sentenced to pay fine of Rs.4,000/- for each of the offence and in

default of payment of fine, to undergo RI for a period of 1 year. Out of

the total accumulated fine, Rs18,000/- had to be paid to the victim as

compensation. The sentences were to run concurrently. Benefit of

Section 428 of the Cr.PC had been granted to the appellants.

2 The version of the prosecution was unfolded in the statement of

Kalu examined as PW-7. He had given his statement to the police on the

date of the incident (Ex.PW-2/A). In this version which had been

recorded in the hospital by the Investigating Officer S.B. Gautam (PW-

5) on 16.03.1998 itself (after the patient had been declared fit for

statement), it had been disclosed that on the fateful day while he was

resting in his room at C-11, Khajuri Khas, one boy namely Jenu along

with a friend came to his room asking him about the name of some

person in Meerut; PW-7 disclosed that he did not know his name; Jenu

asked PW-7 to come down; PW-7 accompanied Jenu and his friend

down stairs; they went to A-Block; it was about 07:00 pm; Jenu and his

accomplice attacked PW-7 with fists and thereafter he was given blows

with a knife; he was also attached with a talwar; he was removed to the

hospital by the PCR. It was on this statement that the present FIR was

registered.

3 The version of PW-7 on oath has reiterated the averments made in

his complaint. He has deposed that on the fateful day while he was

resting in his room, Jenu and one Sarkari had come to his room; they

had inquired about a person from Meerut; he told them that he did not

know that person; he was asked to accompany them down stairs; on

reaching down, the said person along with his accomplices who were

nine in number attacked PW-7; Sarkari cut his finger with a sword;

Minto @ Amarjeet cut his arm; accused Moosa caught hold of him;

Monu @ Praveen hit him with a rod on his head; Jenu stabbed him with

a kirpan on his left leg. PW-7 became unconscious. PW-7 identified the

accused persons present in Court which included the three appellants

before this Court. In the course of his testimony, the Court has put a

specific question to PW-7 asking him to detail the role of each of the

accused persons. In answer, PW-7 stated that Monu @ Praveen hit him

with an iron rod on his head. He reiterated that the police reached the

spot and he had been removed to the GTB hospital. He further deposed

that Monu @ Praveen was arrested by the police in his presence. In his

lengthy cross-examination, he admitted that the place of incident was

about 20-30 meters away from his residence; public persons had

gathered there; he was present in his room along with Raju; his landlord

lives on the ground floor; police had reached the spot in 15-20 minutes

after he had regained consciousness; his statement was recorded in the

hospital on the same day; he further stated that Sarkari and Deepak were

known to him prior to the incident; he admitted that he had not

mentioned the names of the accused persons in his statement Ex.PW-

2/A because he did not know their addresses. He further admitted that he

had not given description of the accused persons also as he did not know

them.

4 It is this statement of PW-7 which is the crux of the case of the

prosecution and has formed the basis of the conviction of the appellants.

5 This Court shall revert back to the statement of PW-7 at a later

point.

6 The injuries suffered by the victim were 'grievous'. Dr. G.L.

Arora (PW-1) had examined him at the first instance noting six injuries

which read herein as under:-

1. Incised wound 8cm X 2cm X 2 cm on the lateral aspect of left hand and bone was exposed.

2. Incised wound 6 cm x 2cm x2cm on the left upper arm muscle deep. 3 Incised wound 5 cm x1 cm x 1 cm on the right hand lateral aspect. 4 Incised wound 4cm x 2cm 1.5 cm on the left parital area. 5 Incised wound 5cm x 2cm x 1cm on the right parital bone. 6 Stabbed wound 2.5cm x 1cm on the middle part of the posterior."

7 It was admitted that the patient was conscious and he was fit to

make statement on the same date. The fracture of fourth metacarpal joint

of the victim was reported in his X-ray report examined by Dr. Rajpal

(PW-3) vide his report Ex.PW-3/A. Dr. T. Gupta (PW-6) had noted the

injuries on the victim as 'grievous'.

8 The accused persons had been arrested at later point of time.

Accused Monu @ Praveen was arrested on 05.06.1998. This was

admittedly three months after the date of the incident. He was

apprehended from his house. This has come in the version of constable

Om Prakash (PW-4). Accused Amarjeet @ Minto and Deepak @ Deepu

had been apprehended on 04.08.1998 by SI Yogesh Malhotra (PW-11).

Their personal search memos Ex.PW-11/A & Ex.PW-11/B were

prepared. Accused Amarjeet @ Minto and Deepak @ Deepu had

surrendered in Court and this has come in the version of PW-7 and is in

fact contrary to the version of PW-11 who had stated that Amarjeet @

Minto and Deepak @ Deepu had been arrested by him. Relevant would

it be to point out that Ex.PW-11/A and Ex.PW-11/B did not bear the

signatures of PW-7 to support the submission of the prosecution that the

aforenoted accused persons were arrested in the presence of the

complainant. Submission of the learned defence counsel on this aspect

being that accused Amarjeet @ Minto and Deepak @ Deepu were not

arrested at the pointing out of the complainant. Admittedly after the

disclosure statements of Amarjeet @ Minto and Deepak @ Deepu, no

recovery had also been effected.

9 PW-7 has admittedly assigned no role to Deepak @ Deepu. The

only role assigned to him was that he was known to him. Neither in

Ex.PW-2/A and nor in his version on oath in Court has PW-7 otherwise

attributed any role to Deepak @ Deepu. Deepak @ Deepu is thus

entitled to an acquittal. On no count, does the impugned judgment

holding Deepak @ Deepu guilty can be sustained. He is accordingly

acquitted.

10 The role attributed to Amarjeet @ Minto by PW-7 is that he had

cut his arm. Admittedly in the first statement of PW-7 (Ex.PW-2/A), no

role has been attributed to Amarjeet @ Minto. The role given to Monu

@ Praveen is that he had hit him with an iron rod on his head. In

Ex.PW-2/A, no role was given to Monu @ Praveen. No recovery has

also been effected.

11 The cross-examination of PW-7 clearly recites that the accused

persons were not known to PW-7; he had given no description; they

being not known to PW-7, their names and addresses had not been

given. Ex.PW-12/A only recites that Jenu had come to his room along

with a friend asking for the name of a person in Meerut. When PW-7

went down stairs along with Jenu and his accomplice, he was attacked

by nine persons of whom Amarjeet @ Minto and Monu @ Praveen were

also included. However at the cost of repetition PW-7 having admitted

that Amarjeet @ Minto & Monu @ Praveen were not known to him

prior in time and that is why their names and addresses could not be

given and that is also why no description of the said persons had also

been given in Ex.PW-2/A and Amarjeet @ Minto having been arrested

on 04.08.1998 (i.e. five months after the date of the offence) and Monu

@ Praveen arrested on 05.06.1998 and therebeing no intervening TIP

having been conducted by the Investigating Officer, this Court is of the

view that the identification of the accused persons for the first time in

Court would be a useless identification. Admittedly when the

complainant did not know the accused persons and he having seen them

only in a glimpse at 07:00 pm which is a period after dusk when the sun

had almost set and he having identified them thereafter for the first time

in Court when he had come into the witness box in 2004 i.e. after almost

six years after the date of the incident, such an identification would be of

no value.

12 Section 9 of the Evidence Act speaks of a relevant fact; this

relates to the identity of a 'thing' or a 'person'. Identification parade

becomes necessary where accused person is not known to the

complainant and this rule has been devised as a safety method to test the

veracity of the testimony of the complainant for the purpose of

identification of the accused persons who are otherwise strangers to him.

13 The Apex Court has time and again ruled that where the

complainant and the accused persons are not known to one another, in

the absence of a TIP, the identification of the accused persons for the

first time in Court should not be relied upon. In this context, the Apex

Court in AIR 2002 SC 3325 Dana Yadav @ Dahu & Others Vs. State of

Bihar has held as under:-

"Ordinarily identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous identification in the test identification parade or any other evidence. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. If a witness identifies the accused in court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence."

14 In this background, this Court is of the view that the accused

Amarjeet @ Minto and Monu @ Praveen admittedly not being known to

the complainant who had seen them only for glimpse of a moment and

then having identified them in Court after six years when he had come

into the witness-box in January, 2004 and identifying them at that stage

is an identification which cannot be relied upon. Benefit of doubt has to

accrue on this count and accordingly the accused persons are entitled to

an acquittal on this ground alone.

15 The appellants are accordingly acquitted. Appeals disposed off.

INDERMEET KAUR, J

MAY 13, 2014 A

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