Delhi District Court
State vs . Sushant @ Bittu Etc. on 12 November, 2021
SC/77/20
State Vs. Sushant @ Bittu etc.
IN THE COURT OF SHRI DEEPAK JAGOTRA,
PRINCIPAL DISTRICT & SESSIONS JUDGE, EAST
DISTRICT, KARKARDOOMA COURTS, DELHI
SC/77/20
CNR No.DLET01-001081-2020
State Versus 1. Sushant @ Bittu,
S/o Sushil Kumar Gupta
R/o H. no. A-81, Gali no.
1, Aruna Park, Shakarpur
Delhi.
2. Lokesh Katariya,
S/o Banwari Katariya,
R/o A-133, Gali no. 2,
Shakarpur, Delhi.
FIR No.382/19
PS Shakarpur
under Section 452/323/341/506/308/34 IPC
Date of institution of case : 07-02-2020
Reserved for judgment on : 09-10-2021
Date of passing of Judgment : 12-11-2021
JUDGMENT
1. The present case has been filed by the State seeking conviction of accused persons namely Sushant @ Bittu and Lokesh Katariya for the offences punishable under Section 452/323/341/506/308 of the Indian Penal Code (hereinafter shall be referred as "IPC").
2. I have heard both the sides and assiduously gone Page no. 1 of 25 SC/77/20 State Vs. Sushant @ Bittu etc. through the record of the case.
3. Learned Additional Public Prosecutor for the State has submitted that prosecution has successfully proved its case beyond a reasonable doubt against the accused persons and further prays that accused may be convicted for the offences charged against them.
4. On the other hand, it has been submitted on behalf of the accused persons that they have been falsely implicated in this case and the prosecution has miserably failed to prove its case beyond a reasonable doubt against both the accused and further prays for the acquittal of the accused.
5. The facts of the case in concise format are that on 23.11.2019 at about 11.30 AM, at A-146/2, Vikas Marg, Opposite Walia Nursing Home, Shakarpur, Delhi both the accused had voluntarily caused grievous hurt on the head of Rishu Gupta and Akash Gupta and also committed robbery of gold chain and purse containing Rs. 10,000- 12,000/-, ATM Card, DL and other papers belonging to Rishu Gupta and Akash Gupta. Further, while committing aforesaid robbery accused Lokesh Katariya had also used an iron rod.
6. The detailed facts of the case shall be appreciated at the relevant stages of the judgment.
7. Before proceeding further, it would be appropriate to recapitulate the sequence of events which are as under;
The present case has been committed for trial and the charge sheet was received by the Court on 07-02-2020.
Page no. 2 of 25 SC/77/20 State Vs. Sushant @ Bittu etc. Charge was framed against both the accused on 12-02-2020 for the offences punishable under Section 308/34, 394/34 and 397 IPC. Both the accused have pleaded not guilty and claimed trial for the offences charged against them.
8. In order to prove its case, the prosecution has examined as many as 09 witnesses.
9. Statement under Section 313 Cr.P.C. of accused was recorded on 31-03-2021.
10. In his defence, no witness has been examined by any of the accused.
11. It is pointed out that the entire case shall be scrutinized and analyzed keeping an eye on the settled provisions of law and judicial precedents.
ANALYSIS OF PROSECUTION EVIDENCE OCCULAR EVIDENCE
12. The prosecution in order to prove its case has brought in the witness box injured Rishu Gupta (PW-2). Before the Court, he has stated that on 23.11.2019, he was residing at H. no. 564, Cycle Market, Dariba Kalla, Delhi along with his family and used to run a shop of specs and watches at A146/2, Vikas Marg, Opposite Walia Nursing Home, Shakarpur, Delhi, along with his brother Akash Gupta. He has further deposed that on the aforesaid date at about 11.30am, he along with his brother Akash reached at above mentioned shop and when he was parking his Page no. 3 of 25 SC/77/20 State Vs. Sushant @ Bittu etc. motorcycle in front of their shop, in the meantime, a boy was standing there and when he asked him to move away from there he started abusing him and went away from there while threatening to see him. He has further deposed that after about 1015 minutes, that boy along with 78 of his associates reached at their shop and they had dragged them outside the shop while catching hold of their collars and started beating them with legs and fists and blows. He has further deposed that they were also abusing them at that time and when they tried to go inside their shop, they restrained their way and gave beatings with legs and fists blows due to which they fell down on the ground and someone from the accused persons had hit with an iron rod on their heads. He has further deposed that blood started oozing out from his head as well as from the head of his brother Akash. Accused persons had also threatened to kill them and in the meantime, one of them had snatched his gold chain from his neck and purse of his brother containing cash of Rs.10,00012,000/, ATM Card, driving licence and other documents. He has further deposed that after hearing noise, other shopkeepers reached there and all the accused persons ran away from there. Someone made a call to the police and PCR van took them to Max Hospital, where they received treatment. He has further deposed that his statement Ex. PW2/A was recorded by the police bearing his signature at point A.
13. The complete testimony of this witness shall be Page no. 4 of 25 SC/77/20 State Vs. Sushant @ Bittu etc. discussed in the later part of this judgment.
14. PW-3 Akash Gupta (brother of complainant) has deposed that on 23.11.2019, he was residing at H. no. 564, Cycle Market, Dariba Kalla, Delhi along with his family and used to run a shop of specs and watches at A146/2, Vikas Marg, Opposite Walia Nursing Home, Shakarpur, Delhi, along with his brother Rishu Gupta. He has further deposed that on that day, at about 11.30am, he along with his brother Rishu reached at their above mentioned shop and when his brother Rishu was parking the motorcycle in front of their shop, in the meantime, a boy was standing there and when he asked him to move away from there that boy started abusing him and went away from there while threatening to see him. He has further deposed that thereafter, they opened their shop and looking after their work. After about 10-15 minutes, that boy along with 7-8 of his associates reached at the shop and they had dragged them outside the shop while catching hold of their collars and started beating them with legs and fists and blows. He has further deposed that they were also abusing them and when they tried to go inside their shop, they had restrained their way and gave them beatings with legs and fists blows due to which they fell down on the ground and someone from the accused persons had hit with an iron rod on their heads. He has further deposed that blood started oozing out from his head as well as from the head of his brother Rishu. He has further deposed that both the accused persons had also Page no. 5 of 25 SC/77/20 State Vs. Sushant @ Bittu etc. threatened to kill them and in the meantime, one of them had snatched gold chain from the neck of his brother Rishu and his purse containing cash of Rs.10-12,000/-, ATM Card, driving licence and other documents. He has further deposed that they raised alarm and other shopkeepers reached there and all the accused persons ran away from there. He has further deposed that someone made a call to the police and PCR van had taken them to Max Hospital, where they received treatment.
15. The complete testimony of this witness shall be discussed in the later part of this judgment.
16. PW-6 Deepak Malhotra has come in the witness box and has deposed that he is running a telecom shop in the name of Malhotra at A146/5, Vikas Marg, Delhi. On 23.11.2019, at about 11.00 am, he was present at his shop. He has further deposed that on that day, at about 11.3011.45am, his neighbour shopkeeper namely Rishu and Akash came to their shop for opening their shop. They had quarreled with someone and after sometime, 67 persons who were covering their faces with handkerchiefs and cloths reached there and they had given beatings to Rishu and Akash. He has further deposed that someone from the assailants had also given blow on the head of Rishu and Akash with some object due to which blood started oozing out from their head. He intervened and tried to save Rishu and Akash. On seeing public persons gathering there, assailants had run away from there. He made a call to the police at 100 Page no. 6 of 25 SC/77/20 State Vs. Sushant @ Bittu etc. number.
17. The complete testimony of this witness shall be discussed in the later part of this judgment.
MEDICAL WITNESSES
18. PW-1 Dr. Anil Dhar, Sr. Consultant, Neurosurgery, has deposed that on 23.11.2019, he was working at Max Hospital, Patparganj, as Sr. Consultant, Neurosurgery. On that day, patient Akash Gupta who was brought to casualty with the alleged history of assault at 11.15 am at Laxmi Nagar. As per alleged history patient Akash Gupta was standing outside his shop alongwith his brother. They had an argument with an unknown person. That unknown person left, but came back with 10 people and started to loot their shop and vandalize. The unknown people beat the patient and his brother with rods. Patient sustained injury on the head. The above mentioned alleged history was informed by the patient himself. He has further deposed that Dr. Shivani Sarda conducted local examination of patient Akash Gupta and the patient was admitted. He had also conducted the local examination of patient Akash Gupta and the patient was having following injuries:
1. CLW at occipital region horizontal 6X2 cm.
2. Abrasion under left eye.
3. Abrasion on right temporal region.
The patient was advised CT Scan Head, Chest Xray and ultrasound abdomen. All the investigations were found to be Page no. 7 of 25 SC/77/20 State Vs. Sushant @ Bittu etc. normal. MLC of patient Akash Gupta was prepared, which is Ex.PW1/A bearing his signature at point A. He had opined nature of injury as simple on the MLC of patient Akash Gupta at point B to B1. He has further deposed that on that day, patient Rishu Gupta, who was brought to casualty with the alleged history of physical assault with rod by unknown person near his shop. Sustaining injury over the posterior part of head along with bleeding and pain as informed by the patient and his maternal uncle Mr. Ashwani Gupta. He has further deposed that patient was admitted in the hospital and was found following injuries on his person:
1. Vertical lacerated area 5X1 cm with active bleeding on occiput.
2. Abrasion in the back of left side of upper neck, face and bilateral upper limbs.
3. Bruises over face and bilateral upper limbs.
4. Small laceration over the back of right elbow 1 X 0.5cm.
5. Small laceration on the dorsal aspect of ring finger.
He was advised CT Scan Head, Chest and hand X-ray and ultrasound abdomen. All the investigations were found to be normal. MLC of patient Rishu Gupta was prepared, which is Ex.PW1/B bearing his signature at point A. He has further deposed that he had opined nature of injury as simple on the MLC of patient Rishu Gupta at point B to B1.
Page no. 8 of 25 SC/77/20 State Vs. Sushant @ Bittu etc.
19. PW-4 Dr. Abhishek Snehy, Attending Consultant, Max Hospital has deposed that on 23.11.2019, he was working at Max Hospital, Patparganj, as Attending Consultant. On that day, patient Rishu Gupta, was brought to casualty with the alleged history of physical assault with rod by unknown person near his shop. Sustaining injury over the posterior part of head along with bleeding and pain as informed by the patient and his maternal uncle Mr. Ashwani Gupta. He has further deposed that patient was admitted in the hospital and he conducted his local examination and found following injuries on his person:
1. Vertical lacerated area 5X1 cm with active bleeding on occiput.
2. Abrasion in the back of left side of upper neck, face and bilateral upper limbs.
3. Bruises over face and bilateral upper limbs.
4. Small laceration over the back of right elbow 1 X 0.5cm.
5. Small laceration and tenderness on distal phalynx of right sided ring finger.
He was advised CT Scan Head, Chest and hand Xray and ultrasound abdomen. He prepared MLC of patient Rishu Gupta, which is Ex.PW1/B bearing his signature at point C.
20. PW5 Dr. Shivani Sarda, Resident Emergency Medicine, Max Hospital, has deposed that on 23.11.2019, she was working at Max Hospital, Patparganj, as Resident Emergency Medicine. On that day, patient Akash Gupta was Page no. 9 of 25 SC/77/20 State Vs. Sushant @ Bittu etc. brought to casualty with the alleged history of assault at 11.15 am at Laxmi Nagar that patient was standing outside his shop with his brother and when they had an argument with an unknown person. That person left, but came back with 10 people and started to loot their shop and vandalize. The unknown people beat the patient and his brother with rods. Patient sustained injury on the head. The above mentioned alleged history was informed by the patient himself.
She conducted local examination of patient Akash Gupta and found following injuries:
1. CLW at occipital region horizontal 6X2 cm.
2. Abrasion under left eye.
3. Abrasion on right temporal region.
She had advised CT Scan Head, Chest Xray and ultrasound fast. She prepared MLC of patient Akash Gupta, which is Ex.PW1/A bearing her signature at point C. DEPOSITION OF OTHER FORMAL PROSECUTION WITNESSES
21. Besides these witnesses, prosecution has also examined other formal witnesses to prove as follows;
S.No. Name of witness To prove
1. PW-7 HC Atosh Entry no. 266/19 dated 26.11.2019 and 272/19 dated 29.11.2019 Ex. PW7/A and Ex. PW-7/B respectively.
2. PW-8 ASI Deep Chand Tehrir Ex. PW-8/A, Site Plan Ex. PW-
8/B.
3. PW-9 SI Manish Arrest memo, Personal Search memo Page no. 10 of 25 SC/77/20 State Vs. Sushant @ Bittu etc. and Disclosure statement of accused Lokesh Kataria Ex. PW-9/A, Ex. PW-
9/B, Ex. PW-9/C respectively. Seizure memo of mobile phone of Lokesh Kataria Ex. PW-9/D. Seizure memo of iron rod recovered from accused Lokesh Kataria Ex. PW-9/E, Chatting of accused Lokesh with co-accused Yogesh Ex. PW-9/F, Iron rod Ex. P-1, Mobile phone Ex. P-2.
CUMULATIVE EFFECT OF THE ENTIRE EVIDENCE
22. From the evidence it transpires that PW-2 Rishu Gupta and PW-3 Akash Gupta were running a shop of specs and watches at A-146/2, Vikas Marg, Opposite Walia Nursing Home, Shakarpur. Both PW-2 & PW-3 in one voice have narrated the incident. According to them, incident happened on 23.11.2019 at about 11.30 AM when PW-3 Akash Gupta was in the process of parking his motorcycle and when he asked the boy who was standing there to give way for parking his bike, upon which, he started abusing and went away. After about 10-15 minutes, he came with a bunch of 7-8 boys. These boys dragged Akash and Rishu Gupta out of their shop and beat them with legs and fists blows. They were also hit with an iron rod on their heads. The victims started bleeding. Those boys also threatened to kill them. During this process, those assailants also snatched gold chain from the neck of Rishu Gupta as well as purse of Akash Gupta containing cash of Rs. 10,000/- to Rs. 12,000/-, ATM card, Page no. 11 of 25 SC/77/20 State Vs. Sushant @ Bittu etc. driving licence and other documents. The victims raised voice and on hearing this, other shopkeepers reached there. On seeing them all the assailants ran away from there. The victims were treated at Max hospital and the statement of Rishu Gupta was recorded which is Ex. PW-2/A bearing his signature at point A. When it comes to identification both the victims completely failed to identify the assailants in the court. They were declared hostile by the prosecution and were at length cross examined by Ld. Addl. PP for the State.
23. In the cross-examination PW-2 Rishu Gupta has stated that he is a graduate and denied the suggestion that his brother Akash Gupta had apprehended one of the accused when they were running away from the spot along with other shopkeepers and produced him before the beat Constable. He was confronted with his statement Ex.PW2/A from point A to A1, where it is so recorded, upon which he stated that after receiving injuries they became semiconscious and they were not aware as to whether any accused was apprehended or not. When his attention was drawn towards accused Sushant standing in the dock he stated that accused Sushant is not known to him and he has seen him for the first time. He further failed to identify accused Sushant. He has admitted his signature on arrest memo and personal search memo of accused at points A which are Ex.PW2/B and Ex.PW2/C respectively. He has further denied the suggestion that they had produced accused Sushant before the Page no. 12 of 25 SC/77/20 State Vs. Sushant @ Bittu etc. Beat Constable with the help of other shopkeepers or that accused Sushant was arrested in his presence and due to this reason, his arrest memo and personal search memo Ex.PW2/B and Ex.PW2/C respectively bear his signatures as a witness. He was confronted with his statement Mark A recorded by the police under Section 161 Cr.P.C from point A to A1 and witness denied having made such statement to the police. He admitted that he had pointed out the place of present incident to police and police prepared site plan of the same. He also admitted that on 26.11.2019 he had handed over to the police his blood stained shirt of black, red and grey check shirt and the same was seized by the IO vide seizure memo Ex.PW2/D bearing his signature at point A. When the attention of the witness was drawn towards accused Lokesh Katariya, standing in the dock, upon which he stated that he was not the assailant who had given beatings to them on that day. He has further denied the suggestion that he was intentionally not identifying accused Lokesh Katariya despite the fact that he had caused injury on their heads with an iron rod or that they have compromised with the accused persons or that they have been won over by the accused persons or that he was intentionally not identifying accused persons and iron rod to save the accused persons.
24. PW-3 Akash Gupta had stated in his cross- examination that he is graduate. He has admitted that accused persons while giving beatings to them had also pushed them Page no. 13 of 25 SC/77/20 State Vs. Sushant @ Bittu etc. towards a shop and due to said pushing, glass of that shop broken as they had fallen on the glass of said shop. He has further denied the suggestion that he had apprehended one of the accused with the help of neigbhour shopkeepers and he was produced before the Beat Constable. He was confronted with his statement Ex.PW3/A recorded by the police under Section 161 Cr.P.C from point A to A1 and he has denied having made such statement to police by submitting that after the present incident, they fell down on the road in unconscious state. He has admitted that he had handed over to the IO his blood stained sweat shirt of light green and navy blue colour and one white vest, which he was wearing at the time of present incident. He has admitted that his sweat shirt and vest was seized by the IO vide seizure memo Ex.PW3/B bearing his signature at point A. He has admitted that on 26.11.2019, he had also given his written complaint Ex. PW 3/C to the police bearing his signature at point A. He has further denied the suggestion that he had apprehended one of the accused and he was further handed over to the public persons present there. He was confronted with his statement Ex.PW3/C, where it is so recorded and he has further stated that he became unconscious after the present incident and later on came to know that someone was arrested by the police and due to this reason he mentioned in his complaint Ex.PW3/C that an accused was apprehended. When his attention was drawn towards accused Sushant, standing in the dock, the witness states that he is not the Page no. 14 of 25 SC/77/20 State Vs. Sushant @ Bittu etc. assailant, who had committed present incident with them. He has further denied the suggestion that he was intentionally not identifying accused Sushant despite the fact that he was apprehended by him. He has further denied the suggestion that he had stated to the police that accused Lokesh Katariya, who was involved in the present incident with them, pressurizing them to compromise with them through facebook/messages and he asked him to come in this regard on the tea shop at Vikas Marg. He was confronted with his statement Mark B from point A to A1 and he has denied having made such statement to police. He has further denied the suggestion that on 28.11.2019, he visited the PS and informed IO in this regard and thereafter, he along with IO and Ct. Krishan Gopal reached at the tea shop, at Vikas Marg, where accused Lokesh met him and he immediately identified him and informed IO in this regard. He was confronted with his statement Mark B from point B to B1 and he has denied having made such statement to the police. He has further denied the suggestion that accused Lokesh was arrested by the IO in his presence and one OPPO mobile phone was also recovered from his possession, which was seized by the IO. He was confronted with his statement Mark B from point C to C1 and he has denied having made such statement to the police. He identified his signature on arrest memo and personal search memo of accused Lokesh at point A. He has further denied the suggestion that accused Lokesh was arrested and his personal search was Page no. 15 of 25 SC/77/20 State Vs. Sushant @ Bittu etc. conducted in his presence and due to this reason, these documents bear his signature as a witness. He voluntarily stated that when police inquired from him, they had obtained his signatures on some papers. When attention of the witness is drawn towards the accused Lokesh Katariya, standing in the dock, upon which he stated that he is not the assailant, who had committed present incident with them. He could not identify the iron rod Ex. P1 which was used by accused Lokesh Katariya in causing injuries on their heads. He has further denied the suggestion that he was intentionally not identifying accused Lokesh Katariya as he has been won over by him. He also could not identify the mobile phone make OPPO Ex. P2 to be the same which was seized from the possession of accused Lokesh Katariya at any point of time in his presence. He has further denied the suggestion that he has been won over by the accused persons or that he has compromised with the accused persons or that he was intentionally not identifying accused persons and case property to save the accused persons in the present case or that he was deposing falsely at the instance of accused persons.
25. Prosecution has also examined one public witness PW-6 Sh. Deepak Malhotra. In his evidence, it is revealed that on the day of incident Rishu Gupta and Akash Gupta came to their shop for opening it. At that time they had quarreled with some 6-7 persons who had their faces covered with handkerchiefs and clothes. They gave beatings to both Rishu Page no. 16 of 25 SC/77/20 State Vs. Sushant @ Bittu etc. Gupta and Akash and were given blow on their head with some object due to which blood started to ooze out. He intervened and tried to save Rishu Gupta and Akash and on seeing public persons assailants had run away from there. He also failed to identify any of the assailants and was declared hostile by the prosecution. He was also at length cross examined by the Ld. Addl. PP.
26. In his cross-examination, he has stated that he is 11th pass and has denied the suggestion that when Rishu and Akash reached at their shop, accused Lokesh had quarreled with them regarding parking of bike and he went away from there after threatening to see them. He was confronted with his statement Mark A recorded by the police under Section 161 Cr.P.C from point A to A1 and the witness denied having made such statement to the police. He voluntarily stated that he does not know name of the any assailants. He has further denied the suggestion that after sometime accused Lokesh along with his associate Sushant and Yogesh (not arrested) reached there and they had given beatings to Rishu and Akash and accused Lokesh had given rod blow on the head of Rishu and Akash which he had brought. He was confronted with his statement Mark A recorded by the police under Section 161 Cr.P.C from point B to B1 wherein he has denied having made such statement to the police. He has further denied the suggestion that accused Sushant and Yogesh (not arrested) had caught hold of Rishu and Akash Page no. 17 of 25 SC/77/20 State Vs. Sushant @ Bittu etc. and accused Lokesh hit on their head with rod. He was confronted with his statement Mark A recorded by the police under Section 161 Cr.P.C from point C to C1 and the witness denied having made such statement to the police. He admitted that in the present incident, glass of his shop also got broken. He has further denied the suggestion that accused Sushant was apprehended at the spot by Akash with the help of public persons and accused Lokesh and Yogesh (not arrested) ran away from the spot. He was confronted with his statement Mark A recorded by the police under Section 161 Cr.P.C from point D to D1 and he has denied having made such statement to the police. He has further denied the suggestion that police has recorded his statement as per his own version and same was also read over to him and he accepted the same as correct. He was confronted with his statement Mark A recorded by the police under Section 161 Cr.P.C from point E to E1 and he has denied having made such statement to the police. When attention of the witness was drawn towards accused Sushant and Lokesh, standing in the dock, he stated that both the accused are not known to him and he has seen them for the first time in the Court and he failed to identify the accused persons. He also could not identify the weapon of offence with which assailants had given beatings to Rishu and Akash as he had not seen the same properly. He has further denied the suggestion that he was not identifying accused persons as he has been won over by the accused persons or that he had Page no. 18 of 25 SC/77/20 State Vs. Sushant @ Bittu etc. compromised with the accused persons or that he was intentionally not identifying the accused Sushant despite the fact that he was apprehended by them at the spot or that he was intentionally not deposing true facts to save the accused persons in the present case or that police recorded his statement as per his version or that he was deposing falsely.
27. It is culled out from the statements of PW-2 Rishu Gupta, PW-3 Akash Gupta and PW-6 Deepak Malhotra that indeed, incident of beatings had happened with Rishu Gupta and Akash Gupta. They were given beatings in as much as they were hit by iron rod on their heads. But at the time of identification in the dock they completely failed to identify any of the assailants who had run away from the spot. Though the case of the prosecution is that one of the assailants namely Sushant was apprehended by PW-3 Akash but they simply failed to corroborate the same with the victims. The prosecution has also failed to establish whether they have conducted TIP of the assailants who had run away from the spot. Identification is the core issue for establishing the guilt of the accused beyond reasonable doubt. Once the identity of the accused is not established in the court qua the offences charged against the accused it is abundantly difficult to fasten the accused with the crime alleged against him or them.
28. Reliance is placed in a case titled as Dana Yadav @ Dahu and Ors. Vs. State of Bihar, (2002) 7 Supreme Court Cases 295.
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29. The Hon'ble Apex Court has succinctly elaborated the sanctity of dock identification in a case titled as 'Sheo Shankar Singh Vs. State of Jharkhand and Ors., Criminal Appeal no. 791792 of 2005 decided on 15.02.2011 wherein Hon'ble Apex Court has observed as under :
It is fairly well settled that identification of the accused in the court by the witness constitutes the substantive evidence in a case although any such identification for the first time at the trial may more often than not appear to be evidence of a weak character. That being so a test identification parade is conducted with a view to strengthening the trustworthiness of the evidence. Such a TIP then provides corroboration to the witness in the Court who claims to identify the accused persons otherwise unknown to him. Test Identification parades, therefore, remain in the realm of investigation. The Code of Criminal Procedure does not oblige the investigating agency to necessarily hold a test identification parade nor is there any provision under which the accused may claim a right to the holding of a test identification parade. The failure of the investigating agency to hold a test identification parade does not, in that view, have the effect of weakening the evidence of Page no. 20 of 25 SC/77/20 State Vs. Sushant @ Bittu etc. identification in the Court. As to what should be the weight attached to such an identification is a matter which the Court will determine in the peculiar facts and circumstances of each case. In appropriate cases the Court may accept the evidence of identification in the Court even without insisting on corroboration. The decisions of this Court on the subject are legion. It is, therefore, unnecessary to refer to all such decisions. We remain content with a reference to the following observations made by this Court in Malkhansingh and Ors. v. State of M.P. MANU/SC/0445/2003 : (2003) 5 SCC 746:
It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. 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 Page no. 21 of 25 SC/77/20 State Vs. Sushant @ Bittu etc. 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 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. Inappropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Admn. MANU/SC/0043/1958 : AIR 1958 SC 350, Vaikuntam Chandrappa v. State of A.P. MANU/SC/0224/1959 : AIR 1960 SC 1340, Budhsen v. State of U.P. MANU/SC/0103/1970 : (1970) 2 SCC 128 Page no. 22 of 25 SC/77/20 State Vs. Sushant @ Bittu etc. and Rameshwar Singh v. State of J and K.MANU/SC/0174/1971 : (1971) 2 SCC
715).
30. In the present case all the star witnesses of the prosecution have completely failed to identify the accused persons in the dock. They were thoroughly cross examined by the prosecution but nothing material worth the name has surfaced to return the finding of guilt against the accused.
31. Though PW-8 ASI Deep Chand has stated in his statement that on the day of incident when he reached at the spot found Ct. Raj Kumar at the spot and accused Sushant Bittu was in his custody but he could not find any eye witness there. Thereafter PW-2 Rishu Gupta had identified the said accused in the police station who was then formally arrested.
32. This is not a very reliable piece of evidence against accused Sushant Bittoo for the simple reason that when all the star witnesses have stated that all the assailants had run away from the spot after committing the crime then how accused Sushant Bittoo was apprehended at the spot that too by the police official namely Ct. Raj Kumar is not creditworthy. No where star witnesses stated that even a single assailant was apprehended at the spot either by the public person at the spot or by any police official. This itself belies the presence of accused Sushant @ Bittu at the spot and then further identification at the police station by Rishu Gupta. The presence of accused Sushant at the spot is not established especially in view of testimonies given by the star witnesses. Therefore, on this count itself accused Page no. 23 of 25 SC/77/20 State Vs. Sushant @ Bittu etc. Sushant's identification becomes highly doubtful. The prosecution tried to establish very feeble kind of evidence against accused Lokesh Katariya as well. Pursuant to disclosure statement of Lokesh Katariya he got recovered iron rod Ex.P-1 from DDA Park, Nehru Enclave which was lying in bushes having dry bloodstains thereon. The aforesaid piece of evidence is not at all reliable for the simple reason that firstly park is a public place where always a lot of commuters and passersby are present. It is not a place which can be termed as a place only known to accused Lokesh Katariya. Secondly, it is not clear from the evidence whether he himself took out the iron rod or any police official did the same. Moreover, it is not clear whether the iron rod was hidden beneath the soil or was lying in the open condition. Moreover, the manner in which the iron rod was got recovered is not at all free from doubt. Therefore, the same is not admissible under Section 27 of the Evidence Act.
33. The sweat shirt belonging to the victims were also taken into possession after about three days of the incident which also does not inspire confidence. Even looking at the case from the stand point of circumstantial evidence the same would not lead us anywhere for the simple reason that no circumstance is forthcoming which may lead to irresistible inference of the guilt of the accused persons in any manner whatsoever. Thus viewing the case from different angle does not yield any fruitful result for the side of prosecution.
34. It is trite that in criminal justice system identification Page no. 24 of 25 SC/77/20 State Vs. Sushant @ Bittu etc. of accused is of prime importance in order to fasten the guilt beyond reasonable doubt. The dock identification is an integral part of criminal procedure. If the witness fails to identify the accused in the dock nothing survives in a criminal case, as the cardinal rule is that the criminal case has to be proved beyond reasonable doubt. No matter how clearly the witness has spoken about the incident if he has not identified the accused then the effect of his statement becomes meaningless and redundant.
CONCLUSION
35. Keeping in view the totality of the facts and circumstances of the case, the entire case of the prosecution crumbles down. Prosecution has completely failed to bring home the charge under Section 308/34, 394/34 and 397 IPC against the accused persons namely Sushant @ Bittu and Lokesh Katariya. Both the accused stand acquitted. Their bail Bonds are cancelled and sureties are discharged.
36. Both the accused are directed to furnish fresh Bail Bonds in the sum of Rs.10,000/- (Ten Thousand) with one surety in the like amount each, which shall remain in force for a period of six months in pursuance of Section 437(A) Code of Criminal Procedure.
37. File be consigned to Record Room. Digitally signed by DEEPAK JAGOTRA DEEPAK Date:
JAGOTRA ANNOUNCED IN THE OPEN COURT 2021.11.12 15:55:13 +0530 ON 12th NOVEMBER, 2021.
(DEEPAK JAGOTRA) PRINCIPAL DISTRICT & SESSIONS JUDGE EAST DISTRICT KARKARDOOMA COURTS, DELHI Page no. 25 of 25