HIGH COURT OF DELHI: NEW DELHI
+ CRL. APPEAL NO. 1400/2010
ROHIT @ RAHUL @ MINTO ..... Appellant
Through: Mr. Rajender Kumar, Adv.
Versus
THE STATE (GOVT. of NCT of DELHI) ....Respondent
Through: Mr. Arvind Gupta, APP for
the State
% Judgment reserved on: 7th April, 2011
Judgment delivered on: 19th April, 2011
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK
1. Whether the Reporters of local papers No
may be allowed to see the judgment?
2. To be referred to Reporter or not? No
3. Whether the judgment should be Yes
reported in the Digest?
A.K. PATHAK, J.
1. This appeal is directed against the judgment dated 15 th
November, 2010 and order on sentence dated 18th November,
2010 passed by the Additional Sessions Judge, New Delhi
(hereinafter referred to as “Trial Court”) whereby appellant
has been convicted under Section 392 IPC read with Section
397 IPC and sentenced to undergo rigorous imprisonment for
seven years with fine of `10,000/-; in default of payment of
fine to undergo simple imprisonment for one year. Benefit of
Section 428 Cr.P.C. has also been given to him.
CRL APPEAL NO. 1400/2010 Page 1 of 17
2. Prosecution case as unfolded is that on 4th April, 2000,
at about 7.30 -8.00 pm, complainant Krishan Seth was
returning home from his office in his Mercedes car bearing
registration no. DL-2CH-4471 and when he reached near
Jawaharlal Nehru Stadium at Lodhi Road, he noticed one
Esteem car trailing his car. Occupant of the said car signaled
him to stop his car while overtaking his car. He stopped his
car. One person got down from the Esteem car and tried to
open the door of his car. On complainant asking “kya baat
hai”, the other person sitting in the car said “Aise Nahi Manta
to Gola Dikha”. The person standing near his car showed him
a revolver and threatened him to get down from the car lest
he would be shot. Complainant stepped out of his car. The
said person snatched his mobile phone and drove away with
his Mercedes car. One green colored Samsonite make bag
containing ` 7 lakhs cash, lunch box, golden lighter, goggles
and the papers of the car were lying in boot of the car.
Complainant went to nearby CGO Complex and enquired
from a guard standing there as to whether there was any
police station nearby. The guard posted there replied in
negative. Complainant then went to his house and informed
the police.
3. On receipt of information, Additional Station House
Officer S.S. Gill of Police Station Lodhi Colony reached at the
spot and recorded complainant‟s statement wherein he
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narrated the incident in the manner as described above.
Complainant also gave description of the person, who drove
away with his car by saying that he was aged between 30 to
40 years, height 5‟8″, well built, stout body, sallow
complexion, flat broad face and slightly bald from the
forehead. Description of the person who remained seated in
the Esteem car was not given.
4. On the basis of statement of the complainant, FIR No.
108/2000 under Sections 392/397 IPC was registered at
Police Station Lodhi Colony. Keeping in mind gravity of
offence Special Cell (South), Delhi Police was also intimated
about the incident. In the night intervening 4th and 5th April,
2000 itself Inspector Rajinder Singh of Special Cell came to
know that Mercedes car was parked in Mayur Vihar, Phase I
residential area. He mounted surveillance in that area in
order to nab the culprits in the hope that they would come to
take the car. Inspector Rajender Singh constituted raiding
party wherein police officials from the Police Stations Okhla,
Nehru Place, Sunlight colony, Madan Gir and Sukhdev Vihar
were also joined. On 5th April 2000, at about 4 pm, appellant
along with his co-accused came in Maruti Esteem Car DL
3CH 3296. Appellant got down from the car and opened the
door of Mercedes car with the key and tried to start the same.
Immediately, police party started moving towards him. On
seeing the police officials, appellant came out of the car and
CRL APPEAL NO. 1400/2010 Page 3 of 17
ran towards the Esteem car in order to escape. Appellant
also fired towards the police party. In retaliation police also
fired at appellant. However, he managed to board the esteem
car. Thereafter, appellant and his co-accused sped away in
the car but were chased by the police party. Appellant and
his co-accused had to get down from the Maruti car as they
had reached at the dead end of the road as there was a wall.
Co-accused was apprehended while he was jumping the wall,
however, appellant succeeded in jumping the wall. He
climbed on the roof of flat nos. 412 and 413 of Mayur Vihar-I
from where he was apprehended. Appellant and his co-
accused had suffered injuries in their legs in the cross firing.
Thereafter, appellant and his co-accused were taken to Police
Station Mayur Vihar. FIR No. 71/2000 under Sections
307/332/353/187/34 IPC was registered on the statement of
one of the members of raiding party, namely, SI Brijender
Singh and appellant and his co-accused were arrested. Their
disclosure statements were recorded wherein they admitted to
had robbed Mercedes car from complainant on 4th April,
2000. Appellant and his co-accused were produced in
Karkardooma Court in the said case on 6th April, 2000.
Investigating Officer of this case arrested appellant and his
co-accused with the permission of court. He moved
application for TIP of appellant and his co-accused before the
concerned Metropolitan Magistrate but they refused to
CRL APPEAL NO. 1400/2010 Page 4 of 17
participate in TIP. Appellant and his co-accused were taken
to Darjeeling for recovery of robbed money as appellant in his
disclosure had stated that robbed money was taken by Suraj
to Darjeeling. However, neither Suraj could be traced nor
money could be recovered. On 13th April, 2000 appellant
made a disclosure statement that he can get recovered
Samsonite make briefcase from his house situated at
Gurgaon. Accordingly, police team returned to Delhi. On
15th April, 2000, appellant led the police party to his home
and got recovered briefcase from the bed box. He opened the
briefcase. Photocopy of RC, insurance paper, invoice of car
was there in the briefcase. However, no money was found in
the briefcase. Briefcase and documents were seized. Later,
this briefcase was identified by the complainant in the TIP
held by Metropolitan Magistrate.
5. Complainant Kishan Seth has been examined as PW1.
He has supported the prosecution story. He has also
identified the appellant as the same person who was sitting
inside the Esteem car while co-accused had driven away with
his Mercedes car after showing him revolver. PW15 Inspector
Yoginder Kumar, IO of this case, has deposed that he had
received information that appellant and his co-accused had
been apprehended in FIR No. 71/2000 registered at Police
Station Mayur Vihar and had confessed about their
involvement in the present case. He reached there and
CRL APPEAL NO. 1400/2010 Page 5 of 17
obtained photocopies of relevant papers. He filed an
application before Metropolitan Magistrate, Karkardooma
Courts seeking permission for interrogation of accused
persons. After interrogation, he arrested the accused persons
and thereafter, moved an application for transfer of the
accused persons to Patiala House Courts, which was allowed.
Accused persons were produced by him before the duty
Magistrate at her residence at about 6.30 pm. Thereafter, he
moved an application for Test Identification Parade (TIP) of
the accused persons. Police custody of accused persons till
7th April, 2000 was granted, however, application for TIP was
kept pending for next day. On 7th April, 2000, he produced
accused persons before the concerned Metropolitan
Magistrate for TIP. However, accused refused to participate in
TIP. He moved an application for ten days police remand
which was permitted. On 9th April, 2000 complainant
Krishan Seth came in the Police Station and identified the
appellant and his co-accused as the persons who had robbed
him. On 11th April, 2000, he took accused persons to Siliguri
but they could not find out the house of their co-accused. On
13th April, 2000 appellant made a disclosure statement that
he had kept the Samsonite briefcase at his house no. U-42/8,
DLF, Phase III, Gurgaon. On 15th April, 2000 they returned to
Delhi. Thereafter, appellant took him and members of the
recovery team PW14 SI Suraj Mal and PW7 HC Mahipal to his
CRL APPEAL NO. 1400/2010 Page 6 of 17
house and got recovered a green coloured Samsonite
briefcase. He opened the bag from which photocopy of R.C.,
photocopy of insurance and invoice of Mercedes car along
with some other papers were recovered. These papers were
seized. On 26th May, 2000, TIP of briefcase and mobile phone
was got conducted. Complainant PW1 identified the same to
be his. Trial Court has held that appellant was identified by
the complainant PW1, inasmuch as, recovery of briefcase at
his instance corroborated the complainant‟s version that it is
the appellant who along with his accomplice, had robbed
Mercedes car near Jawaharlal Nehru Stadium in which
Samsonite briefcase containing `7 lakhs was also lying. In
absence of any previous enmity, Trial court found no reason
to disbelieve the identification of the appellant in court by
PW1, inasmuch as, testimony of PW1 was found credible,
trustworthy, reliable and sufficient enough for convicting the
appellant under the aforesaid provisions.
6. It may be noted here that co-accused Pradeep had
jumped the bail during trial and was declared proclaimed
offender and no finding has been returned regarding his
complicity in the crime.
7. Learned counsel for the appellant has vehemently
contended that apprehension of appellant, in the manner as
alleged by the prosecution, by the raiding party on 5th April,
CRL APPEAL NO. 1400/2010 Page 7 of 17
2000 at 4 pm, suffers from inherent lacunae, inasmuch as,
appellant had been acquitted in the said encounter case
arising out of FIR No.71/2000, vide judgment dated 3rd
August, 2010 passed by Additional Sessions Judge, Delhi.
Whole story as propounded by the prosecution in the said
case regarding apprehension of appellant and recovery of
Mercedes car has been disbelieved on account of inherent
discrepancies in the statements of witnesses recorded in the
said case. Quite a few of those witnesses are common in this
case. Thus, arrest of the appellant as well as recovery of
Mercedes car from him falls flat on the ground. He has
further contended that appellant was apprehended on 5th
April, 2000 by the raiding team constituted by the Special
Cell. Appellant remained in police custody in Police Station
Mayur Vihar from 5th April, 2000 onwards till he was arrested
in this case by PW15 Inspector Yoginder Kumar from the
Karkardooma Courts on 6th April, 2000. On the same day he
was produced before the Duty Magistrate at her residence at
about 6:30 pm and an application for TIP was moved. Duty
Magistrate ordered that appellant be taken in judicial custody
till 7th April, 2010 and be produced in the concerned court at
10 am when application for TIP was to be considered by the
concerned court on 7th April, 2000. But the fact remains that
appellant was not lodged in jail and was kept in Police Station
Lodhi Colony itself on the ground that jail authorities had
CRL APPEAL NO. 1400/2010 Page 8 of 17
declined to accept the appellant since it was late in the
evening. On 7th April, 2000 when appellant was produced
before the court, he had categorically stated that he was
shown to 4-5 persons while in police custody. Refusal of
appellant to participate in TIP was, thus, for justifiable reason
since he had been shown to the complainant. Thus, no
adverse inference can be drawn on account of refusal of
appellant to participate in TIP. Accordingly, identification of
appellant by PW1, after about one year of incident, is
valueless more so, when complainant has admitted in his
deposition that whole incident took place after the sunset and
was over within 40 seconds. It is highly improbable for the
complainant to had vividly seen the appellant at about 8 pm,
more so, the appellant had not even stepped out of the car
and had remained seated on the driver‟s seat. In nutshell, his
case is that identification of appellant by the complainant in
court for the first time is not sufficient to fix the „identity‟ of
appellant. He has further contended that mere recovery of
Samsonite briefcase at the instance of the appellant is
suspicious and doubtful, inasmuch as, no public witness was
joined at the time of recovery. Testimony of police witnesses was
not sufficient to accept the recovery of briefcase in the peculiar
facts of the case, more so, when the robbed money was not
recovered from the briefcase. Briefcase was having coded lock and
it could have been opened only by applying the combination of
CRL APPEAL NO. 1400/2010 Page 9 of 17
numbers, which was within the knowledge of complainant alone,
as has been admitted by him in the court, or by breaking the
same. Briefcase was not found in broken condition. Since
briefcase could not have been opened without breaking it or by
applying combination of numbers, non-recovery of money assumes
importance and makes the whole story of recovery of empty
briefcase doubtful. Even otherwise, mere recovery of briefcase in
absence of identification of appellant was not sufficient to conclude
beyond shadow of doubt, in a serious offence of this nature, that
appellant had robbed the complainant of his Mercedes car and `7
lacs. Reliance is placed on Mohanlal Gangaram Gehani vs. State of
Maharashtra 1982 Crl.L.J. 630, Anup Singh Vs. State IV (1994) CCR
2317, Ramcharan Bhudhiram Gupta vs. State of Maharashtra 1995
Crl.L.J.4048, Sukhdev Singh Anr. Vs. State (Delhi Admn.) 1992 (2)
CCC 303 and Montu @ Bahadur vs. State (NCT of Delhi) 2009 (4)
JCC 3074.
8. Per contra, learned APP has contended that the substantive
piece of evidence is identification of appellant in court by the
complainant. No evidence has come on record that the appellant
was shown to complainant before 7th April, 2000, when he had
refused to participate in TIP. Appellant was kept in muffled face
right after his arrest till 7th April, 2000. Complainant has stated
that he had identified the appellant on 9th April, 2000 in the police
station which itself shows that appellant was not shown to the
complainant before 7th April, 2000, thus, an adverse inference has
to be drawn that had he participated in TIP he would have been
identified by the complainant. Thus, the identification of the
CRL APPEAL NO. 1400/2010 Page 10 of 17
appellant by the complainant in the court was sufficient to fix the
identity of appellant. Recovery of Samsonite briefcase, which was
lying in the boot of Mercedes car, at the instance of appellant
shows his complicity in the crime. Recovery witnesses have fully
corroborated each other on the point of recovery of briefcase at the
instance of appellant. Appellant had led the police party to his
house and had got recovered the Samsonite briefcase. He also
opened the briefcase from which photocopy of RC, insurance
papers, invoice etc. relating to Mercedes car were recovered which
shows that briefcase belonged to complainant, inasmuch as,
complainant had identified the same to be his in the TIP of case
property held by the Metropolitan Magistrate. Recovery of
briefcase of the complainant, coupled with the fact that
complainant had identified the appellant in court is sufficient to
conclude that it is he who along with his accomplice had robbed
the complainant of his Mercedes car along with the briefcase
containing `7 lakhs.
9. I have considered the rival contentions of both the parties
and perused the Trial Court record carefully and I find force in the
contention of learned counsel for the appellant that prosecution
had failed to prove beyond the shadow of reasonable doubt that
appellant had robbed the complainant. Incident took place at
about 8 pm. It was night time. Complainant has admitted that
the whole incident took place within 40 seconds. He also admitted
that appellant had not come out of his car. He had remained
seated in the car. From his testimony it appears that appellant
was driving Esteem car. In this scenario, identification of the
CRL APPEAL NO. 1400/2010 Page 11 of 17
appellant by the complainant in the court for the first time after
about one year of the incident becomes highly suspicious and
valueless more so, when it has come on record that complainant
had seen the appellant in the police station after his arrest. That
apart, events suggest that there was possibility of complainant
seeing the appellant between 5th April, 2000 and 7th April, 2000,
while he was in police custody. Appellant has refused to
participate in the TIP on the pretext that he had been shown to 4-5
persons during this period. Though it is claimed that appellant
was kept in muffled face, but the order passed by Duty Magistrate
on 6th April, 2000 does not indicate so. Metropolitan Magistrate
has not mentioned in her order that appellant was produced before
her in muffled face. Complainant has also admitted that he came
to know about the arrest of appellant through the newspaper. He
was aware that the persons who had robbed him had been
arrested by the officials of special cell and were in police station
Mayur Vihar. For this reason also there is every possibility of the
complainant having seen the appellant in police custody between
5th April, 2000 and 7th April, 2000. In case an accused refuses to
participate in TIP for justifiable grounds no adverse inference can
be drawn against him that had he participated in TIP he would
have been identified by the witness. In the facts of the present
case there is every possibility of complainant having seen the
appellant before his TIP. That apart, complainant has admitted
that he had seen the appellant in police custody on 9th April, 2000.
Therefore, identification of appellant in court by the complainant
CRL APPEAL NO. 1400/2010 Page 12 of 17
after about one year of the incident loses its significance and is
valueless.
10. Indubitably, evidence of Test Identification Parade only has
corroborative value as substantive piece of evidence is the
identification in court, however, in case accused had been shown
to the witnesses before his identification in court, such
identification becomes valueless and the accused cannot be
convicted on the basis of such identification. In Mohanlal‟s case
(supra), Supreme Court has held that if accused is a stranger to
the victim prior to the occurrence and no Test Identification Parade
was held to test his power of identification and he was also shown
by the police before he identified the appellant in court, his
evidence becomes absolutely valueless on the question of
identification. In Anoop Singh‟s case (supra), a Single Judge of
this Court has held that where accused had been shown to the
witness before his identification parade no adverse inference could
be drawn against him and subsequent identification in court was
not sufficient to establish the identity of accused beyond the
shadow of reasonable doubt. In Budhsen‟s case (supra), Supreme
Court has held that the persons required to identify an accused
should have had no opportunity of seeing him after the
commission of the crime and before identification. In Lila Ram vs.
State, 1990 (2) C.C. Cases 402, a Division Bench of this court
has held that a mere possibility that the accused was or could
have been shown would be a sufficient justification for refusal to
participate in identification proceedings or to reject identification
evidence. In Ramcharan Bhudiram Gupta‟s case (supra), Bombay
CRL APPEAL NO. 1400/2010 Page 13 of 17
High Court has held that the evidence of identification can only be
relied upon if all the chances of the suspects being shown to the
witnesses prior to their test identification are eliminated. To
ensure that firstly, the prosecution has to adduce link evidence to
the effect that right from the time of arrest till being lodged in jail,
the faces of suspects were kept veiled and no one had the
opportunity to see them. Secondly though direct evidence may not
be available accused may discharge his burden by showing, for
example that he and the witnesses were present in the police
station at the same time. In Sukhdev Singh‟s case (supra), a
Single Judge of this Court has held that witnesses having seen the
accused persons in the court there could not have been any
question of Test Identification Parade. In such circumstances, no
adverse presumption could have been drawn if they refuse to join
Test Identification proceeding. In Montu @ Bahadur‟s case (supra),
a Single Judge of this Court has held that whenever an accused is
shown to the witnesses before conducting the TIP their
identification in TIP and their subsequent identification in court is
not a good evidence for their conviction.
11. In Malkhan Singh & Ors. vs. State of M.P. VI (2003) SLT
313, Supreme Court has held:-
“The evidence of mere identification of the accused
person at the trial for the first time is from its very
nature inherently of a weak character. The purpose
of a prior test identification, therefore, is to test and
strengthen the trustworthiness of that evidence. It is
accordingly considered a safe rule of prudence to
generally look for corroboration of the sworn
testimony of witnesses in court as to the identity of
the accused who are strangers to them, in the form
of earlier identification proceedings. This rule of
CRL APPEAL NO. 1400/2010 Page 14 of 17
prudence, however, is subject to exceptions, when,
for example, the court is impressed by a particular
witness on whose testimony it can safely rely,
without such or other corroboration. The
identification parades belong to the stage of
investigation, and there is no provision in the Code
of Criminal Procedure which obliges the
investigating agency to hold, or confers a right upon
the accused to claim a test identification parade.
They do not constitute substantive evidence and
these parades are essentially governed by Section
162 of the Code of Criminal Procedure. Failure to
hold a test identification parade would not make
inadmissible the evidence of identification in court.
The weight to be attached to such identification
should be a matter for the courts of fact. In
appropriate cases it may accept the evidence of
identification even without insisting on
corroboration.”
It was furthermore held:
“It is no doubt true that much evidentiary value
cannot be attached to the identification of the
accused in court where identifying witness is a total
stranger who had just a fleeting glimpse of the
person identified or who had no particular reason to
remember the person concerned, if the identification
is made for the first time in court.”
12. In the facts of this case, as narrated in the preceding paras
hereinabove there is possibility of complainant‟s seeing the
appellant while he was in custody, therefore, refusal of appellant to
participate in TIP will not give rise to an adverse inference against
him that had he participated in TIP he would have been identified
by the complainant. As regards identification of appellant in court
is concerned, it is valueless since complainant has admitted that
he had seen the appellant in the police station on 9th April, 2000. It
is otherwise improbable that complainant could have identified the
appellant after about one year even though he had only glimpse of
appellant sitting in the car hardly for 40 seconds at about 8.00
CRL APPEAL NO. 1400/2010 Page 15 of 17
p.m. in the night. Thus, identification of appellant in court cannot
be accepted as valid identification.
13. Similarly, the recovery of Samsonite briefcase pursuant to
the disclosure statement of the appellant in absence of robbed
amount of `7 lakhs, is also insignificant. Appellant was arrested
within 24 hours of the incident, however, not even a dime was
recovered even though appellant had been taken to Darjeeling for
this purpose. As per the prosecution, appellant made a disclosure
statement that he had kept the Samsonite briefcase in his house at
Gurgaon, thereafter, the police party along with appellant went to
his house at Gurgaon where he got recovered the briefcase from
the bed box. As per PW15, appellant had opened the briefcase
from which photocopy of R.C., insurance papers, invoice etc. of
Mercedes car was got recovered. No money was found in the
briefcase. It is improbable that an accused will retain the empty
briefcase with him and keep it in his house safely, while pass on
the money to somebody else, which amount, otherwise, could not
be recovered. That apart, admittedly, the briefcase was having
combination lock and could have been opened with combination of
numbers only. The combination of numbers was within the
exclusive knowledge of complainant and for this reason appellant
could not have opened the same. Though, PW15 Yoginder Kumar
has stated that complainant had disclosed the code during the
investigation but no such statement of complainant had been
placed on record. Briefcase was not found in broken condition.
Thus, possibility of appellant taking out the money from the
briefcase after opening it is also wiped out. The above facts make
CRL APPEAL NO. 1400/2010 Page 16 of 17
the story of recovery of briefcase, at the instance of the appellant,
suspicious and doubtful.
14. Even otherwise, it would not be safe to convict the appellant
for the serious offence of this magnitude on the basis of recovery of
briefcase alone. In Ramesh vs. State of Karnataka VI (2009)
SLT 485, Supreme Court in somewhat similar circumstances has
held as under:-
“As identification of PW3 is highly doubtful, in our
opinion, having regard to the nature of other evidences
brought on record by the State, i.e., purported
recovery of a tarpaulin by itself cannot be said to be
sufficient to convict the appellant for a charge of such
grave offence.”
15. For the foregoing reasons, I am of the view that the Trial
Court was not right in convicting the appellant under Section 392
IPC read with Section 397 IPC. Accordingly, appeal is allowed.
Appellant is acquitted. He be released forthwith if not wanted in
any other case.
A.K. PATHAK, J
April 19, 2011
ga
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