Jaswant Alias Kale vs State (Govt. Of Nct) Of Delhi
2015 Latest Caselaw 8740 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Judgment reserved on : 17.11.2015
                             Judgment delivered on : 24.11.2015

+      CRL.A. 1139/2013
       JASWANT ALIAS KALE                                   ..... Appellant
                             Through      Mr.Vikas Padora, Amicus Curiae.
                             versus
       STATE (GOVT. OF NCT) OF DELHI                 ..... Respondent
                             Through      Ms. Neelam Sharma, APP for the
                                          State
+      CRL.A. 1323/2013
       JAINUL UMAR                                   ..... Appellant
                             Through      Mr.Vikas Padora, Amicus Curiae.
                             versus


       STATE (GOVT. OF NCT) OF DELHI                 ..... Respondent
                             Through      Ms. Neelam Sharma, APP for the
                                          State

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 These appeals filed by appellants Jaswant @ Kale and Jainul

Umar have assailed the judgment and order on sentence dated

28.02.2013 and 08.3.2013 respectively wherein the appellants stood

convicted under Sections 392/34 of the IPC read with Section 397 of the

IPC. Each of them have been sentenced to undergo RI for a period of 7

years and to pay a fine of Rs.5000/- and in default of payment of fine to

undergo SI for a period of 6 months.

2 Nominal roll of the appellants have been requisitioned. The

nominal roll of Jaswant as on date reflects that he has undergone

incarceration of almost 5years and 3 months which includes remissions

earned by him. So also the nominal roll of Jainul Umar reflects that he

has also undergone incarceration of the same period. Their jail conducts

are satisfactory.

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

the complainant Madhusudan (PW-1) who has stated that on 02.6.2011

at about 9.00 - 9.15 p.m. while he was about to close his shop at Gandhi

Nagar three boys aged 25-30 years entered the shop. The shutter of the

shop was almost closed. Two of these boys were carrying guns and the

third boy was carrying a knife. At the point of these arms the

complainant was threatened. Rs.4.70 lacs lying in a black bag, a gold

kara weighing 2½ tolas, his driving licence and a visiting card were

taken from the shop. His employees Gunjan (PW-9), Pankaj (PW-13)

and Shashi Pal were also present. The complainant was perplexed. He

did not lodged a complaint on the same day and he returned home. On

the following day at about 12.00-12.30 noon he went to the police

station, where the FIR was registered. Investigation was set into

motion. Apart from the statement of PW-1, statement of other two

persons in the shop namely Gunjan and Pankaj were also recorded.

They were examined PW-9 and PW-13 respectively.

4 The accused persons had managed to flee. On 03.7.2011 the

accused Jainul Umar was arrested in FIR No.178/2011 registered under

Section 307 of the IPC and Section 25 of the Arms Act. His disclosure

statement was recorded in that FIR by ASI Shiv Murti (PW-4). Jainul

Umar disclosed his role in the present case i.e. in FIR No.149/2011. He

also disclosed the role of his co-accomplice Jaswant @Kale as also of

the third co-accused namely Jahid @ Salim. He however could not be

arrested. Pursuant to the disclosure statement of Jainul Umar who was

formally arrested in this case on 30.7.2011, the second appellant Jaswant

@ Kale was arrested on 07.7.2011. This was in the presence of H.C.

Subhash Chand (PW-6) and constable Pawan Kumar (PW-2). Accused

Jawant @ Kale got recovered the driving licence and the visiting card of

the complainant in the name of Shiva Textiles from his residence at

Karawal Nagar and these documents were taken into possession vide

memo Ex.PW-2/PX3. Accused Jaswant @ Kale also disclosed that

from the proceeds of the robbed money of which he had his share, he

had purchased a maruti car for Rs.50,000/-. This maruti car was also

taken into possession.

5 The accused were put to TIP proceedings vide separate

proceedings Ex. PW-7/B and Ex.PW-8/B conducted through Ms.Sunena

Sharma, learned M.M. (PW-7) and Mr.S.K.Arora, learned M.M. (PW-8)

respectively.

6 On the basis of the aforenoted evidence collected by the

prosecution both oral and documentary the accused persons were

convicted and sentenced as aforenoted.

7 On behalf of the appellants, it is pointed out that the identity of

the appellants has not been established. Jaswant @ Kale had refused to

participate in the TIP which was conducted qua him on 12.7.2011 for a

valid reason. He stated that he did not wish to participate in the TIP as

he has already been shown by the SHO in the police station to the

witnesses and his photographs had been clicked. No adverse inference

for not joining the TIP could have been drawn. So also Jainul Umar

refused to participate in the TIP for the same reason. There is no

explanation as to why the FIR has been registered on the following day

i.e. after a gap of 16 hours at about 12.30 p.m. on 03.6.2011 when

admittedly the incident had occurred at 9.00 p.m. on 02.6.2011. It is

also difficult to believe that Gandhi Nagar being a well populated area

did not have any eye-witness at 9.00 p.m., which is not a time when the

streets would have become empty. There is also no explanation as to

why the employees of the complainant did not make a PCR call at that

point of time itself. The identity of the appellants has not been

established. No recovery of any arm i.e. either a pistol or a knife had

been effected from either of the appellants. The driving licence and the

visiting card of the complainant had been planted upon the appellants

and that is why there was no mention in the initial FIR about the said

driving licence and the visiting card of the complainant having been

stolen; this has only come in the supplementary statement of the

complainant. No credence can be placed upon this version. Appellants

are entitled to a benefit of doubt and consequent acquittal.

8 Arguments have been heard. Record has been perused.

9 The star witness of the prosecution was the complainant. He has

been examined as PW-1. He had deposed that on the fateful day i.e. on

02.6.2011 at about 9.00 p.m. when he was present at his shop along with

his employees namely Gunjan, Pankaj and Shashi Pal and was about to

close his shop three boys carrying pistols and a knife entered his shop.

At the point of these arms they robbed a sum of Rs.4,70,000/- which

was lying in a black bag and a gold kara weighing 2 ½ tolas. His

driving licence and visiting card was also taken. His mobile phone was

taken but thereafter it was returned to him. He was perplexed; that is

why he could not register a complaint on the same day. He reported the

matter to the police on the following day.

10 PW-1 was subjected to a lengthy cross-examination. He denied

the suggestion that he is deposing falsely. He also deposed that he could

not get the FIR registered earlier as he was confused. He admitted that

he did not call 100 number at that point of time and neither of his

employees made a call at 100 number. He denied the suggestion that the

driving licence and the visiting card were planted upon the appellants

subsequently in order to evidence a recovery.

11 The investigating officer of this case was examined as PW-11.

He admitted that FIR was lodged on 03.6.2011. On that day the

investigation of this case was handed over to him. He recorded the

statement of the complainant Ex.PW-11/A. This had formed the basis

of the FIR. Admittedly, in this statement there was no mention that the

driving licence and the visiting card of the complainant have been taken

away. PW-11 admitted that he had also recorded a supplementary

statement of the complainant. This was on the same day i.e. on

03.6.2011. It was in this supplementary statement that for the first time

it had been stated that driving licence and visiting card had been taken

away by the accused persons.

12 Admittedly, the accused persons had managed to flee. They were

not arrested at the spot. On 03.7.2011 in FIR no.178/2011 registered at

Police Station Gandhi Nagar accused Jainul Umar was arrested. This

FIR had been registered under Section 307 of the IPC and Section 25 of

the Arms Act. His disclosure statement was recorded wherein he

revealed his role in the present FIR i.e. the FIR No.149 of 2011. Jainul

Umar was formally arrested in this case by PW-11. Pursuant to the

disclosure statement of co-accused Jainul Umar the role of Jaswant @

Kale surfaced. He was formally arrested in this case on 07.7.2011. He

made a disclosure statement. Pursuant to this disclosure statement no

recovery was effected. There was a second disclosure statement of

accused Jaswant @ Kale recorded by PW-11. Pursuant to the second

disclosure statement recorded on 15.7.2011 accused Jaswant @ Kale

took the police party to his house at Karawal Nagar from where he had

got recovered the driving licence and visiting card of the complainant

which were seized vide collective memo Ex.PW-2/PX3. The appellant

Jaswant @ Kale had also got recovered the car which was purchased

from the robbed fund. The same was taken into possession. The TIP of

the appellant Jaswant @ Kale was conducted vide proceedings

Ex.PW-7/B by PW-7 and these proceedings sheet show that Jaswant @

Kale had refused the TIP proceedings although he was warned that his

refusal would go against him. His answer was that he was shown to

unknown persons in the police station and his photographs were taken

by three police officials. The TIP proceedings of co-accused Jainul

Umar conducted on 08.7.2011 (Ex.PW-8/B) shows that he had also

refused to join the TIP for the same reason, that he was shown to

unknown persons in the police station and photographs had been

clicked.

13 In this context the testimony of PW-11 is relevant; he was the

Investigating Officer. He has formally arrested Jainul Umar on

03.7.2011 and accused Jaswant @ Kale on 07.7.2011. TIP proceedings

of both the appellants were conducted on later dates. TIP of Jainul

Umar had been conducted on 08.7.2011 and TIP of Jaswant @ Kale had

been conducted on 12.7.2011 i.e. after a gap of 5 days in each case. In

the intervening period evidence of PW-11 reflects that accused Jainul

Umar was produced in Court on 04.7.2011. Jaswant @ Kale was

formally arrested on 07.7.2011. He was taken to the police where his

disclosure statement was recorded. Testimony of PW-11 further reflects

that the testimony of all other witnesses was recorded on the same day.

Accused Jaswant @ Kale was produced in Court on 08.7.2011 and he

was then remanded to judicial custody. Although PW-11 has stated that

the accused persons had been produced in Court in muffled face yet a

categorical suggestion has been given to PW-11 that refusal to

participate in the TIP by the accused was for the reason that they had

been shown in the police to unknown persons and their photographs had

been clicked in the police station. PW-1 in this context has stated that

he had visited the police station 2-3 times after the lodging of the FIR

but he does not remember the dates when he had visited the police

station. He further stated that on an earlier date he had met the police

when he had to go to Tihar Jail to identify the accused.

14 This version of PW-1 cast shadows of doubt on the investigation;

PW-1 had visited the police station 2-3 times after the date of the FIR;

version of the accused that they were shown to unknown persons in the

police station and their photographs were clicked in the police station is

thus not wholly unwarranted; further admission of PW-11 that he had

gone to Tihar Jail to identify the accused clearly shows that the accused

persons had been shown to PW-1 and thus there was a valid reason for

them not to participate in the TIP. Identity of the accused persons was

in grave doubt.

15 Refusal to participate in the TIP proceedings for a valid reason

would not lead to the drawing of an adverse inference against the

accused. In this background the refusal to join TIP being for a just

reason, the Trial Court has committed a grave illegality in holding that

the identity of the accused stand established. There are grave shadows

of doubt cast upon their identity.

16 In the context of necessity of TIP the Apex Court in AIR 2007 SC

2425 Heera Vs. State of Rajathan had held as under:

"The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade at that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity."

17 The record also further shows that no recovery has been effected

from Jainul Umar. He was arrested more than one month after the date

of the incident in another FIR and in the present case apart from his

discosure statement there was no other evidence to connect him with the

offence. Qua Jaswant @ Kale recovery of driving licence and a visiting

card belonging to PW-1 has been shown but admittedly this recovery

was effected on 15.7.2011 when Jaswant @ Kale was arrested on

07.7.2011. Thus recovery made eight days after his arrest also casts

shadow of doubt. In this context the Apex Court while relying upon a

decision reported as Sanwat Khan Vs. State of Rajasthan AIR 1956 SC

54 had held that even otherwise convictions based on recoveries alone

should not be rendered, unless corroborated by other reliable evidence.

18 Such a recovery is also doubtful. Moreover PW-1 all along had

been suggested that this driving licence and the visiting card had been

planted upon him; this driving licence and visiting card also did not find

mention in the initial FIR; it was only in the second supplementary

statement of the complainant that it was noted by the Investigating

Officer that the driving licence and the visiting card of the complainant

had also been stolen. If this recovery is disbelieved as this Court is

inclined to do so there is nothing to connect appellant Jaswant @ Kale

also with the crime.

19 Giving benefit of doubt to the appellants, they are acquitted.

They be released forthwith, if not required in any other case.

20     Appeal is allowed.



                                          INDERMEET KAUR, J

NOVEMBER 24, 2015
ndn