Sunil @ Dev vs State (Nct Of Delhi)
2018 Latest Caselaw 167 Del

$~
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                   Date of Judgment: 08.01.2018

+      CRL. Appeal 404/2011

       SUNIL @ DEV
                                                               ..... Petitioner
                         Through:     Mr M.L. Yadav, Adv

                         versus

       STATE (NCT OF DELHI)
                                                          ..... Respondent

                         Through:     Mr Amit Ahlawat, APP

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (oral)

1      This appeal is directed against the impugned judgment and order on

sentence dated 30.07.2010 and 16.08.2010 wherein the appellant stood

convicted under Section 397 of the IPC as also under Section 392 and 452 of

the IPC. The maximum sentence awarded to him was RI for a period 7

years for the offence under Section 397 IPC; under Section 392 he had had

been awarded sentence of RI for a period 5 years with a fine of Rs. 200/- and

in default of payment of fine to undergo SI for 30 days. For the third

conviction to the appellant under Section 452 IPC, he was sentenced to

undergo RI for a period of 3 years with a fine of Rs. 100/- and in default of

payment of fine to undergo SI for 15 days; benefit of Section 428 Cr.P.C has

been gratned to the convict.

2. Nominal roll of the appellant reflects that as on 11.03.2011 the

appellant had undergon encarceration of about 5 years and 10 months; he has

since been released on bail.

3. On behalf of the appellant it is pointed out that the conviction of the

appellant under Section 397 IPC is uncalled for; his conviction at best can be

a conviction under Section 392 IPC as it has not been specifically verified by

any of the eye witnesses that it was the appellant who was holding the

alleged weapon.

4. Record reflects that there were eye witnesses to the present

occurrence. PW 3 was present in the house i.e., A-10, Ramdutt Enclave,

Uttam Nagar, Delhi along with his wife Anjana Jain and two grand sons

Abhi jain and Naman Jain. The door of the main house was opened; two

boys entered of whom one was the present appellant. The earings of his wife

were snatched; the culprits pointed out their pistols towards the victims. The

case property was identified in TIP proceedings. In cross examination PW3

denied the suggestion that the accused persons had been seen by him in the

police station. In another part of his cross examination he admitted that the

accused was shown to him at the Police Station by the police officer and he

was the same person who had committed the crime at his house.

5. PW 4 was the wife of PW3. She deposed on the same lines as PW3.

She deposed on oath that the accused was carrying a pistol when he

committed robbery in her house. In her cross examination she admitted that

she had gone to the police station one or two days after the incident. She

admitted that the accused was shown to her in the police station and she was

accompanied by her husband at that time.

6. PW 5 and 6 are the grand sons of PW3. They also identified the

culprits including the appellant as the person who had committed the crime.

PW5, however, did not elucidate that it was the appellant who pointed out

pistol towards the complainant family; it is also relevant to note that he

speaks of one pistol in the singular form and not two pistols.

7. PW6 has also testified about the two victims carrying one pistol; PW5

like PW6 had not delineated any specific role to the appellant as the person

who was holding the pistol.

8. PW9 Inspector Devinder Singh had reported about chance prints

having lifted from the spot pursuant to the visit by the crime team. The

chance prints did not however advance the version of the prosecution.

9. The Investigating officer was examined as PW11; he had moved an

application seeking TIP of the accused which TIP was directed to be held on

23.08.2005 on which date the PW3 and PW4 had reached the Central Jail.

The TIP proceedings have been proved as Ex.PW11/D. TIP was refused by

the accused for the reason that his face had been shown to the injured

witness in the police station Uttam Nagar.

10. This refusal to participate in the TIP appears to be valid in view of the

cross examination of PW3 and PW4 who have both admitted that they have

gone to the police station where they had seen the accused; both PW3 and

PW4 have admitted that they had gone to the police station after 2-3 days of

the incident i.e. around 3-4.08.2005. PW 3 and PW4 having seen the

accused in the police station on 03-04.08.2005 and the application for TIP

having been moved by the investigating officer on 23.08.2005 i.e., three

weeks after the date of the alleged incident, the refusal by the accused to

participate in TIP was for a valid reason.

11. This court is of the view that the trial court coming to the conclusion

that the accused were duly identified is a wrong finding. The admission of

PW3 and PW4 that they had seen the appellant /accused in the police station

and their identification pursuant thereto in the court is no identification in the

eye of law. In 201(3) JCC 2041 Vinod Singh Vs. Govt. of NCT of Delhi a

Coordinate Bench of this Court has held 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 tule. 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."

12. The appellant is entitled to a benefit of doubt. Appellant is acquitted.

The Bail bond of the appellant stands cancelled. Surety stands discharged.

13. Appeal disposed of.

INDERMEET KAUR, J

JANUARY 08, 2018 SU