Sachin @ Tota vs State
2015 Latest Caselaw 7405 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment reserved on :23.9.2015
                                Judgment delivered on :29.9.2015
+      CRL.A. 1367/2012
       SACHIN @ TOTA
                                                        ..... Appellant
                           Through    Ms. Naomi Chandra, Advocate.

                           Versus

       STATE
                                                     ..... Respondent
                           Through    Ms. Neelam Sharma, APP

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal is directed against the impugned judgment and order

on sentence dated 19.10.2010 and 02.11.2010 respectively wherein the

appellant stands convicted under Section 307 of the IPC. He has been

sentenced to undergo RI for a period of 7 years and to pay a fine of

Rs.50,000/- and in default of payment of fine, to undergo SI for 6

months.

2 The nominal roll of the appellant reflects that as on date, he has

undergone incarceration of 5 years & 9 months including the remission

earned by him.

3 The version of the prosecution is that on 28.05.2005, four of the

accused persons namely Sachin (the appellant), Sandeep, Sunny and

Naresh in furtherance of the common intention stabbed Pawan Rana

(PW-2) in his stomach with a knife. The eyewitness Pramod Rana

(PW-1) had informed the police. PW-1 and PW-2 were friends and at

that point of time, they were travelling in a bus and when the bus

reached near Ashiyana Chowk, three boys pushed PW-1 and started

quarreling and abusing him. On PW-1 raising an objection, one of them

took out a knife and stabbed PW-2. PW-2 was moved to Sarvodya

Hospital from where he was shifted to the Trauma Centre. He was

discharged on 07.09.2005 i.e. after a period of 11 days.

4 Apart from the version of PW-1 and PW-2, the medical evidence

of the victim was proved through Inspector Yashpal Singh (PW-8) who

had produced the MLC of the victim. Ex.PW-8/J was the opinion given

by the doctor on the alleged weapon which had been used, which as per

the prosecution was a knife but as per this opinion this knife could not

be connected to the injuries suffered by PW-2. The doctor was also not

examined. The disclosure statement of the accused was proved as

Ex.PW-8/C.

5 Admittedly the appellant was arrested on 01.07.2005. The

incident had occurred on 28.6.2005. There was a gap of three days. It is

also the version of the prosecution that the appellant was not known to

either of the victim i.e. either to PW-2 or PW-1. It has also come on

record that the TIP of the appellant was not conducted.

6 In this background, the most vehement submission of the learned

counsel for the appellant is that the identity of the appellant is not

established and the Trial Judge without delving into the argument

(which had been propounded before the Trial Court) had gone on to

convict the appellant. Submission being that even presuming that an

unfortunate incident had taken place, if the TIP of the appellant had not

been conducted and he having been arrested 3 days after the incident

and the victim and the accused being unknown to one another, the

absence of conduct of the TIP proceedings, vitiate the trial and the

appellant is entitled to a benefit of doubt and a consequent acquittal on

this ground alone.

7 Record does establish all the aforenoted submissions made by the

learned counsel for the appellant. The Investigating Officer (Inspector

Yashpal Singh) has been examined as PW-8. Record establishes that the

appellant was apprehended and arrested only on 01.07.2005 i.e. after a

gap of 3 days; the incident is dated 28.06.2005. Admittedly PW-1 and

PW-2 (of whom PW-2 was the victim) did not know the appellant prior

to the incident. It was only for a fleeting moment (that when the four

persons attached PW-2 after exchanging abuses) that the victim was able

to see the appellant. The incident had occurred at 05:15 pm. PW-1 in his

version had stated that he could not identify the person who had hit his

friend (PW-2) with the knife. When the quarrel took place, he was

sitting and his friend was standing. The incident had taken place in a

moving bus before Ashiyana Chowk and there were several other

passengers in the bus. PW-2 had also deposed that he was pushed out of

the bus by the appellant because of the quarrel which had taken place

with him; the accused started beating him; it is his version that the

appellant (Sachin) had taken out a knife and hit him in his stomach. At

the cost of repetition, all this happened within moments; the incident had

taken place in the bus minutes before the Ashiyana Chowk bus stand

and when the bus stopped at the bus stand, the accused managed to flee.

Other passengers had also de-boarded the bus. The injured was then

moved to the hospital.

8 PW-8 (Investigating Officer) in his cross-examination admitted

that TIP proceedings were not conducted. In this background this Court

is of the view that the identity of the accused was not established and

although a specific argument had been propounded before the Trial

Judge on this count, there has been no appreciation of this argument and

no finding has been returned by the Trial Judge on this count.

9 In this context, a Bench of the Apex Court in (1992) 3 SCC 700

State of Maharashtra Vs. Sukedev Singh and Another had an occasion to

consider such a situation and had noted the sanctity of a TIP which

should be held prominently and especially so where the victim and the

accused were strangers (as in this case) and not known to one another.

The Apex Court quoting the observations of an earlier decision of the

Supreme Court reported as (1979) 3 SCC 319 Kanan Vs. State of

Kerala had noted herein as under:-

"It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. parade to test his powers of observations. The idea of holding T.I. parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only -once. If no T.I. parade is held then it will be wholly unsafe to rely on his testimony regarding the identification of an accused for the first

time in Court."

10 Thus in the absence of the TIP, this Court is of the considered

view that the conviction of the appellant calls for an interference as the

identity of the appellant has not been fully established. He is entitled to a

benefit of doubt and a consequent acquittal. He be released forthwith if

not required in any other case.

11     Appeal disposed of.



                                         INDERMEET KAUR, J
SEPTEMBER 29, 2015
A