Manoj Kumar vs State
2015 Latest Caselaw 5637 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Judgment reserved on :30.07.2015
                                      Judgment delivered on : 05.08.2015.
+      CRL.A. 575/2013

       MANOJ KUMAR

                                                                ..... Appellant

                             Through        Mr.Sushant Mukund, Adv.

                             versus

       STATE

                                                              ..... Respondent

                             Through        Mr Pramod Saxena, APP for the
                                            State

+      CRL.A. 1374/2013

       RAVI ALIAS RETAL

                                                                ..... Appellant

                             Through        Mr. Vikas Padora, Adv.

                             versus

       STATE

                                                              ..... Respondent

                             Through        Mr Pramod Saxena, APP for the
                                            State

+      CRL.A.1376/2014
Crl. Appeal Nos.575/2013, 1374/2013 & 1376/2014                   Page 1 of 14
        VICKY ALIAS DEEPAK

                                                               ..... Appellant

                             Through        Mr. Madan Lal Kalkal, Adv.

                             versus

       STATE

                                                             ..... Respondent

                                      Through     Mr Pramod Saxena, APP
                                                  for the State
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 There are three appellants before this Court. They are Ravi @

Retal, Manoj Kumar and Vicky & Deepak. They all stand convicted

under Sections 392/394 of the IPC. Each of them has been sentenced to

undergo RI for a period of five years for each of their separate

convictions and to pay a fine of Rs.5,000/- each and in default of

payment of fine to undergo RI for a further period of six months. The

sentences were to run concurrently. Benefit of Section 428 of the Cr.PC

had been granted.

2 Nominal roll of the appellants has been requisitioned. It reflects

that as on date, each of the appellants has undergone incarceration of

about 3 years which included their remission.

3 The version of the prosecution was unfolded in the testimony of

Raja Khan (PW-1) the complainant. His complaint was to the effect that

on the fateful day i.e. on 07.11.2011 while he was returning home from

duty at the Kalyanpuri bus terminal at about 09:30 PM, he was accosted

by 2-3 boys. They took him to the park and robbed him of Rs.1,200/-

and his mobile phone. On his objecting one of the boys stabbed him

with a sharp edged weapon. They thereafter fled away.

4      No eye witness could be found.

5      Admittedly the identity of the accused was unknown to the

victim. As per the version of SI Rahul Kumar (PW-7) while he was

investigating FIR No. 404/2010 under Sections 382/34 of the IPC, the

accused Ravi @ Retal, Vicky and Manoj had made a disclosure

statement about their involvement in the present case. They were

accordingly arrested vide arrest memos Ex.PW-7/A to Ex.PW-7/C. They

had been produced before the learned MM Mr. J.P. Nahar (PW-3) on

23.01.2011 for test identification parade but all of them while

proceedings (Ex.PW-3/D) had refused TIP. The complainant had

identified the accused. The complainant was examined by Dr. Waseem

Ahmed (PW-5). Injuries suffered by him were grievous in nature.

6 On the basis of the aforenoted evidence, both oral and

documentary, the accused persons were convicted and sentenced as

aforenoted.

7 On behalf of the appellants, arguments have been addressed by

the learned amicus curiae. The main thrust of the argument of the

learned counsel for the appellants is that the identity of the accused has

not been established; in the absence of which the accused could not have

been convicted; benefit of doubt has to accrue in their favour. Attention

has been drawn to the version of PW-1. It is pointed out that admittedly

it is the case of the prosecution that PW-1 did not know the accused

persons who were stranger to him. The accused persons had not been

arrested at the spot. They had been arrested in a connected FIR and even

as per the version of PW-7, he had wrongly stated that he had arrested

accused Manoj in that FIR. PW-7 had later on clarified that Manoj was

not involved in that FIR. Additional submission being that the

identification of the accused for the first time in the dock by PW-1

suffers from a grave infirmity and as such identification is no

identification in the eyes of law. Accused are entitled to benefit of doubt

and a consequent acquittal.

8 Needless to state that the learned APP for the State has refuted

this argument. The main submission of the learned Public Prosecutor is

that the accused persons had refused TIP for which an adverse inference

has to be drawn against them as there was no valid reason for the

refusal. The impugned judgment calls for no interference.

9 Arguments have been heard and record has been perused.

10 The complainant had given his complaint Ex.PW-1/A at 09:30 pm

on 07.01.2011. In this complaint, he has described the number of

accused persons as 2-3. Admittedly it was a winter night i.e. the month

of January and the time of incident was 09:30 pm. It was an isolated

area i.e. at the Ambedkar Park. No eyewitness had also been found. It

has come in the testimony of PW-1 that it was a foggy night and there

was little public movement being night time. Admittedly in this

complaint (Ex.PW-1/A) no detail of the accused persons had been

mentioned. Neither their height and nor their features. It had however

been stated that the accused persons would in the age bracket of 20-22

years. The victim was not sure whether they were 2 or 3 persons. At one

point, he had stated that there were 2 or 3 persons but at later point of

time, he had stated that they were three persons. It is also an admitted

version of the prosecution that there was no eyewitness and the entire

version is hinged upon the testimony of PW-1.

11 The accused persons were arrested in this case on 12.01.2011.

This is clear from the version of PW-7. PW-7 was investigating the

offence i.e. FIR No. 404/2010 registered at the same police station under

Section 380 of the IPC. He deposed that he had arrest Ravi, Vicky and

Manoj in that FIR and pursuant to their disclosure statement, they

revealed their involvement in the present case. They were thereafter

arrested in the present case vide memos Ex.PW-7/A to Ex.PW-7/C. In

another part of his cross-examination, PW-7 has admitted that Manoj

was not arrested in FIR No. 404/2010. He had not made a disclosure

statement in that case. The alleged disclosure statement having being

made by Manoj in FIR No. 404/2010 is thus completely effaced. Manoj

was not an accused in FIR No. 404/2010; as such there was no

disclosure statement made by accused Manoj;

12 Further part of the deposition of PW-7 discloses that the accused

persons were put to TIP on 24.01.2011 on an application which he had

filed before PW-3 (learned MM) on 23.01.2011. The application is

Ex.PW-7/G and the TIP proceedings are Ex.PW-3/D. The application

(Ex.PW-7/G) filed before the learned MM, Karkardooma Courts is

dated 24.01.2011 and not 23.01.2011 as is the version of PW-7. The TIP

proceedings (Ex.PW-3/D) conducted by PW-3 on 24.01.2011 state that

all the accused persons had refused TIP on the ground that their

photograph was taken by the police on 12.01.2011 on their mobile

phone and was shown to the victim. On this ground, they had refused

TIP.

13 The defence of the accused persons all along was that their

photograph had been taken in the mobile phone by PW-7 on 12.01.2011

when they had been shown arrested in the connected FIR No. 404/2010

and same had been shown to the witness and that is the reason why they

had not participated TIP. To the same effect, suggestions had also been

given to the witnesses of the prosecution i.e. to PW-1 to PW-7. The

learned public prosecutor has pointed out that an adverse inference has

to be drawn against the accused persons for not joining TIP. To this

limited extent, this proposition of law is correct. However, if a valid

reason has been disclosed by the accused for not joining TIP which in

this case is also substantiated by the version of ASI Shyam Lal (PW-4),

this adverse inference cannot be read against the accused.

14 Testimony of PW-4 is relevant. He was the first Investigating

Officer of this case. He had recorded the statement of the complainant

and the FIR was registered on the rukka which had been sent through

him. Thereafter, he was released from this case on 11.01.2011 as he was

on temporary duty due to the Republic Day program. The injured Raja

Khan (PW-1) had met him in the Karkardooma Court complex and told

him that these were the three accused persons who were involved in this

incident; they had been produced from judicial custody. In his cross-

examination, he admitted that the injured Raja Khana had identified the

accused person in his presence. In another part of his cross-examination,

PW-4 has reiterated that he had joined investigation in this case on

22.02.2011 and prior to that, he was not aware of the investigation in

this pending matter and the same was being conducted by PW-7. He

denied the suggestion that PW-7 had arrested the accused persons in FIR

No. 404/2010 and had taken their photographs and shown them to the

victim which had led to the identification of the accused. PW-1 has also

admitted that he had seen the accused persons on 22.02.2011 in the

Court in the presence of PW-4; this was also the version of PW-4. There

is no doubt that these versions of PW-1 and PW-4 refer to an incident of

22.02.2011 i.e. after the TIP had been refused by the accused but the

TIP proceedings are also suspect. This Court notes that PW-7 had stated

that he had filed an application seeking TIP of the accused on

23.01.2011. The application is dated 24.01.2011. That apart, even if the

accused were produced on 24.01.2011 and they had given a reason for

not joining the TIP i.e. for the reason that their photographs had been

taken on the mobile phone of the police on 12.01.2011 in the connected

FIR No. 404/2010; even otherwise, the accused persons had to be

identified by the complainant but there is no such statement made by

PW-7 that the complainant was also present in the said TIP proceedings.

The complainant (PW-1) is also silent on this aspect. He has also

whispered a word that he had gone to the Court for the TIP of the

accused on 24.01.2011. This is inspite of a specific query put to him on

this score.

15 It appears that the TIP was only an empty formality carried out by

the Investigating Officer for the purposes of completing the paper work.

The proceeding sheets of the TIP also do not disclose that the

complainant was present for the identification of the accused. At the cost

of repetition, it is noted that the defence of the accused all along was

that they were photographed by PW-7 in proceedings in FIR No.

404/2010 and this was the reason why they had refused to join TIP.

16 Another relevant circumstance to be noted is that PW-7 was the

Investigating Officer of FIR No. 404/2010. He was also entrusted with

the investigation of the present case i.e. of FIR No. 11/2011 and during

the short duration when he was carrying out the investigation in this case

i.e. between 11.01.2011 to 22.02.2011 (when PW-4 was put on Republic

Day duty), he managed to solve the instant case and was able to nab the

accused. PW-7 even did not know that Manoj was not an accused in FIR

No.404/2010. PW-7 appears to have made a mechanical deposition in

Court without even looking at the record. Even his application for

conducting TIP is wrongly dated.

17 The necessity for holding an identification parade arises only

when the accused was not previously known to the witness. The whole

idea being that the culprit who is brought to book is the real culprit and

not an innocent person who has under mistaken identity been convicted.

It is a check on the veracity of the version of the identifying witness.

The test identification parade is even however not a substantive piece of

evidence. It is only used for the purposes of corroboration.

18 In the instant case, the conscience of this Court does not permit it

to hold that the prosecution has been able to nail the real culprit. There

is no doubt that an unfortunate incident had occurred with PW-1. It was

on a foggy and wintery night of 07.01.2011 at 09:30 PM. Whether there

were two assailants or three, the victim was not clear. He had not seen

them. He could not detail any feature about them. He had only stated

that the accused persons were in the age bracket of 20-22 years.

Whether they were tall, short, dark or light complexioned, none of this

was disclosed. At the cost of repetition, it was a dark night. There was

hardly any time for the victim to have noted the identity of the accused

being in the traumatic state of mind that he was. The accused persons

were arrested by PW-7 while he was investigating FIR No. 404/2010.

Testimony of PW-7 has already been discussed supra. He appears to be

an Investigating Officer who was interested in the success of both the

FIRs which he was investigating. In FIR No. 404/2010, he did not know

even that Manoj was not an accused. He made a statement which was

wholly incorrect till it was brought to his notice and then he retracted

from it. That apart, PW-7 was investigating this case for a short duration

(when PW-4 was away). On 23.01.2011, he had moved an application

for TIP of the accused which was actually dated 24.01.2011. PW-7 was

incorrect on the date. Even presuming that this was an innocent mistake

on the part of PW-7, the documentary evidence which are the TIP

proceedings as also the application filed by PW-7 seeking TIP and so

also the version of PW-1 (the complainant) show that the complainant

was not present on 24.01.2011 to identify the accused. It appears to be

an empty formality which had been carried out by PW-7 to put the

record straight. Neither does the ocular testimony of PW-1 and nor the

documentary evidence establish that the complainant was present in the

Court to identify the accused; the purpose of TIP was to enable to the

victim to identify the correct accused. TIP was even otherwise refused

by the accused for the reason that their photographs were taken by PW-7

on his mobile phone on 12.01.2011 when he was conducting

investigation in FIR No. 404/2010. Accused were identified by PW-1 on

22.02.2011 in the presence of PW-4 when PW-1 had come to

Karkardooma Court and where PW-4 (the first Investigating Officer)

was also present. Admittedly PW-4 was present in the Court complex on

22.02.2011 along with PW-1. That was the time when PW-1 recognized

the accused persons for the first time in the presence of PW-4. This has

come in his version. Thereafter the identification of the accused in the

dock was clearly at the asking of the Investigating Officer who wanted

the success of his case. This submission of the learned defence counsel

carries weight.

19 In a judgment of the Division Bench of this Court in 2011 (2) JCC

1233 Murari Vs. State, this Court had noted that a similar plea which

had been taken by the accused wherein they had also not joined the TIP

for the reason that their photographs had been shown to the victim; the

Court had noted as under:-

"After the apprehension of the Appellants TIP has to follow when the crime was committed by unknown persons. Associating Constable Rohtash in search of the Appellants casts serious reflection on the fairness of the investigation by the IO. While refusing to participate in the TIP, the five Appellants stated that their photographs were taken through mobile phone and they were shown to the witnesses. This plea of the Appellants cannot be easily brushed aside. Even otherwise, the refusal to join the TIP itself is not sufficient to hold the Appellants guilty."

20 In 2011 (3) JCC 2041 Vinod Singh Vs. Govt. of NCT of Delhi,

where the accused had refused to join TIP, the Court had noted the

following observations which would also be useful in the facts and

circumstances of this case. They read as under:-

"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"

21 This Court is of the view that the prosecution has failed to

establish its case to the hilt. The identity of the accused not having being

established, they are entitled to a benefit of doubt. Giving them benefit

of doubt, they are acquitted. They be released forthwith, if not required

in any other case.

22     Appeals are allowed.



                                              INDERMEET KAUR, J
AUGUST 05, 2015
A