Delhi High Court
Anil Lusana @ Anil Rathi vs State (Nct Of Delhi) on 23 October, 2009
Author: Mool Chand Garg
Bench: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.App. 656/2007
Date of Reserve: 13.10.2009
Date of Decision: 23.10.2009
ANIL LUSANA @ ANIL RATHI ..... Appellant
Through: Mr. R.N. Sharma, advocate
versus
STATE (NCT of DELHI) ..... Respondent
Through: Mr. Navin Sharma, APP for state
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed Yes
to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
MOOL CHAND GARG,J
1. The appellant was summoned in this case on the basis of
production warrant issued to the Jail Superintendent, Deoband by the
Trial Court vide order dated 02.12.2004 on the statement made by a
co-convict Anil Sisoli that the appellant was confined at Deoband, U.P.
jail in some other case. After his production in Court he was asked to
face the trial in this case on the basis of a supplementary charge-sheet
filed against him relying upon the statement of certain police officials
recorded under Section 161 Cr.P.C. that those police officers had
identified the appellant.
2. Brief facts of the case are that on 08.10.2004, SI Satender
Vashisht along with Inspector Jaibir Singh, ASI Rakesh and Constable
Ravish were present in a private Santro Car near Gagan Cinema and at
Crl.App. 656/2007 Page 1 of 10
about 6.30 PM, SI Satender received secret information from a secret
informer. The secret information was that one Anil Sisoli, a bad
character of U.P., would come in a robbed Alto Car near the red light of
Gagan Cinema. SI Satender informed ACP Hemant Chopra about the
secret information and requested him to send more staff. He
thereafter, on the instructions of the ACP, organized a raiding party
near the red light of Gagan Cinema and asked 4/5 public persons to
join the investigation but none agreed and left the spot. Thereafter,
the position was taken near the red light of Gagan Cinema and at
about 7.10 PM, one Alto Car of grey colour having red light and number
HR 10 F 6471 was seen coming from the Wazirabad side. SI Satender
gave a signal to the car to stop, but the driver increased the speed of
car. He thereafter with his staff followed that car in his private car and
managed to stop it at a distance of 200 meters from the red light of
Gagan Cinema by overtaking it and positioning his car in front of the
Alto Car. Two persons were found sitting in that car. Anil Sisoli was
sitting on the driver seat and was found wearing uniform of U.P. Police.
He started firing upon the police party after getting down from the car.
The other person also got down from the car and while firing at the
police party, ran away towards Sunder Nagri. When Anil Sisoli was
firing at the police party, SI Satender took out his service revolver and
fired two rounds in the air and issued warnings to the accused.
Constable Ravish managed to catch the hand of Anil Sisoli in which he
was holding his pistol and thereafter, he was overpowered and the
pistol was snatched from his hand. ASI Rakesh followed the other
person when he was running away from the spot and also fire two
rounds from his service revolver. However, he could not be
Crl.App. 656/2007 Page 2 of 10
apprehended. CFSL form was also filled and the accused Anil Sisoli
was interrogated who disclosed the name of his accomplice who was
sitting in the car as Anil Lusana, the appellant herein, and also
revealed that the Alto car had been robbed from Manglore. Alto Car
was also seized. The person of the accused was searched and an
identity card having photograph of Anil Sisoli was recovered. In that
identity card Anil Sisoli had been named as Rajiv Kumar and had been
shown as constable in the U.P. Police. Identity card was also sealed
into a parcel and seal after use was handed over to Inspector Jaibir
Singh.
3. A rukka was prepared and FIR was registered and after that the
investigation was handed over to ASI Nemi Chand who prepared the
site plan and arrested the accused Anil Sisoli and also recorded his
disclosure statement and seized the uniform of U.P. Police which the
accused Anil Sisoli was wearing and sealed it into a parcel. Accused
Anil Lusana @ Anil Rathi was arrested on 06.06.2006 in the court of
Shri S C Rajan Ld. ASJ, Delhi, and his discloser statement was also
recorded. Seized pistols along with cartridges were sent to CFSL and
report was collected. After completing the investigation, the challan
was filed in the court.
4. As stated above, the appellant was arrested in this case after he
was produced from Deoband jail on the statement made by his co-
accused informing his whereabouts and then on the basis of
supplementary challan, charges were framed against the appellant
under Section 186/34, 353/34 and 307/34 IPC to which the appellant
pleaded not guilty. The appellant was then tried with co-accused Anil
Crl.App. 656/2007 Page 3 of 10
Sisoli. The prosecution examined 11 PWs and thereafter, the
statement of the appellant was recorded under Section 313 Cr.P.C.
The appellant denied all the allegations but no defence evidence was
led by him.
5. Vide impugned judgment dated 03.10.2007 the Trial Court has
convicted the appellant under Section 186/34 IPC, 353/34 IPC and
under Section 307/34 IPC and vide separate order of sentence dated
10.10.2007 sentenced the appellant to undergo R.I. for a period of 3
months under Section 186/34 IPC and R.I. for a period of 1 year under
Section 353/34 IPC and R.I. for a period of 5 years and fine of
Rs.20,000/- and in default of payment of fine to undergo S.I. for 1 year
for the offence punishable under Section 307/34 IPC. All the sentences
were ordered to run concurrently. Benefit of Section 428 Cr.P.C. was
also given to the appellant.
6. According to the appellant he has been falsely implicated in this
case inasmuch as there is no admissible evidence available against
him on record and the reasoning given by the Trial Court in para 9 of
the judgment to the effect that he was identified by the witnesses is
not sustainable inasmuch as neither the appellant was named in the
FIR nor he was arrested on the spot. His whereabouts/description or
particulars were also not mentioned in the FIR which was registered on
the basis of a rukka prepared by the Investigating Officer who was also
a member of the raiding party which according to the prosecution was
constituted for apprehending the criminals who were to arrive from
U.P. on 08.10.2004.
7. The appellant has also relied upon the following judgments:
Crl.App. 656/2007 Page 4 of 10
i. state Vs. Shankar @ Raju 1988 CrlL.J. 780 Delhi
HC
ii. Kirori Mal@ Kalwa & Anr. Vs. The State (Delhi)
1990(1) CCC 190 190 Delhi
iii. Subhash @ Shiv Shankar Vs. State of U.P. AIR
1987 Supreme Court 1222
iv Budh Sen Vs. State of U.P. AIR 1970 564
v. Tahir Mohd. Vs. State of M.P. AIR 1993 SC 931
vi State (Delhi Admin) Vs. V.C. Shukla AIR 1980 SC
1382
vii. Shaikh Umar Ahmed Shaikh Vs. State of
Maharashtra AIR 1998 SC 1922
viii. Mahabir Vs. The State of Delhi, 2008 (2) JCC 1244
ix. Ravi @ Ravichandran Vs. State Rep. By Inspector
of Police 2007 (2) JCC 1458
x. Dasari Siva Prasad Reddy Vs. Public Prosecutor,
High Court of A.P. AIR 2004 SC 4383
8. On the other hand the Learned APP submitted that the evidence
produced by the prosecution in the form of statements made by the
police officers who are part of the raiding party which has been
constituted for arrest of the culprits on the basis of secret information
fully corroborates the case of the prosecution and as such the
judgment delivered by the Addl. Sessions Judge against the appellant
is fully justified and suffers from no infirmity.
9. I have heard the submission from both sides. There is no dispute
that the appellant was known to the raiding party, including the
witnesses who has appeared in the witness box on the basis of
supplementary challan filed against him and identified in the Court.
10. It would be appropriate to take note of some portion of the
evidence which has come on record. PW1 Constable Ravish Kumar
stated:
Crl.App. 656/2007 Page 5 of 10
"I had seen the accused Anil Rathi @ Anil Lusana when
he was running from the spot but I did not disclose his
description in my statement to the I.O. I did not disclose
his identity and description at any point of time during
the course of investigation. I was not called to identify
the accused Anil Rathi @ Anil Lusana in Judicial TIP."
Similarly, PW2 ASI Rakesh Kumar has deposed
"I had not given the description of the person who had
absconded from the scene after firing at the police party
in my statement under Section 161 Cr.P.C. I had also
not stated in my statement under Section 161 Cr.P.C.
that I can identify the said person on being produced
before me. I did not know accused Anil Lusana prior to
the occurrence. I cannot assign any reasons as to why I
had not given the description of accused Anil Lusana in
my statement under Section 161 Cr.P.C. I knew that
accused Anil Lusana is to be produced before the Court
on 06.06.2006 in the Court of Sh. S.C. Rajan, Ld. ASJ,
Delhi".
PW7 Inspector Jaiveer Singh has deposed as follows:
"In my statement under Section 161 Cr.P.C. to the I.O., I
had not given any description of the accused Anil Lusana
who had run away from the spot nor I stated that I can
identify the person who had run away from the spot
while firing at the police party. I did not state so in my
statement under Section 161 Cr.P.C. as I could not have
identified the person who ran away due to darkness".
PW10 SI Satender Vashisht (I.O.) also deposed as follows:
"It is correct that there is no street light shown in the
site plan. I had not mentioned the description of the
person who ran away from the spot in my case diary in
any DD or any statement or in the ruqqa nor I had
mentioned that I can identify him if produced before me.
I had not moved any application for TIP of accused Anil
Lusana. I knew that accused Anil Lusana was being
produced in the Court of Sh. S.C. Rajan, Ld. ASJ, Delhi on
06.06.2006 on Production Warrants. I did not move any
application before the Court of Sh. S.C. Rajan, Ld. ASJ,
Delhi, requesting for conducting the TIP of accused Anil
Lusana by myself as well as members of the raiding
party nor I requested to the Court to keep the accused
Anil Lusana in muffled face."
Hence, in nutshell it can be said that the
appellant herein could not have been legally convicted
and sentenced based upon such, inadmissible evidence
as the PWs were not in a position to identify the person
who allegedly absconded from the spot while firing at
the police party.
11. Thus, it is apparent that none of the witnesses produced by the
prosecution were either acquainted with the appellant nor identified
Crl.App. 656/2007 Page 6 of 10
the appellant in a TIP. Thus, his identification for the first time in Court
does not inspire confidence more so when it is the case of the
prosecution that the appellant was not apprehended from the spot and
had went away from the spot taking benefit of the darkness. This case
of the prosecution itself goes to show that there was no occasion for
the witnesses to identify the appellant. Moreover, even otherwise the
conviction of the appellant herein under Section 186/34 and 353/34 IPC
is not sustainable in the eyes of law since the complaint under Section
195 Cr.P.C. filed on behalf of Sh. Ashok Chand, DCP, Special Cell, Delhi
for prosecuting the appellant herein by taking cognizance of the case,
was never proved during trial.
12. It is also a matter of record that according to the prosecution
that the alleged incident took place at about 7.10 PM at the Red Light
of Gagan Cinema, which according to admission made by PWs is a
crowded place, however, no independent persons were joined to
corroborate the alleged police version and no cogent reasons are
forthcoming for this vital omission.
13. I have also gone through the judgments cited on behalf of the
appellant. It would be appropriate to take note of observations made
by the Apex Court in some of the judgments (supra).
14. In the case of Ravi @ Ravichandran Vs. State (Supra) where
photographs of the accused persons were shown to the witnesses also
not named in the FIR as is the case in hand, the Apex Court held that:
17. It is no doubt true that the substantive evidence
of identification of an accused is the one made in the
Court. A judgment of conviction can be arrived at even
if no test identification parade has been held. But when
a First information report has been lodged against
unknown persons, a test identification parade in terms of
Section 9 of the Evidence Act, is held for the purpose of
Crl.App. 656/2007 Page 7 of 10
testing the veracity of the witness in regard to his
capability of identifying persons who were unknown to
him. The witnesses were not very sure as to whether
they had seen the appellant before. Had the accused
been know, their identity would have been disclosed in
the First Information Report. PW-1 for the first time
before the court stated that he had known the accused
from long before, but did not know their names earlier,
although he came to know of their names at a later point
of time.
18. In a case of this nature, it was incumbent
upon the prosecution to arrange upon the
prosecution to arrange a test identification
parade. Such test identification parade was
required to be held as early as possible so as to
exclude the possibility of the accused being
identified either at the police station or at some
other place by the concerned witnesses or with
reference to the photographs published in the
newspaper. A conviction should not be based on a
vague identification
19. In Suryamoorthi and Another Vs. Govindaswamy
and Others 1989 3 SCC 24, this Court held :
10. Two identification parades were
held in the course of investigation. At the
first identification parade PW1 identified
all the seven accused persons whereas
PW2 identified three of them, namely,
accused 2,6 and 7 alone. It is, however, in
evidence that before the identification
parades were held the photographs of the
accused persons had appeared in the local
daily newspapers. Besides, the accused
persons were in the lock-up for a few days
before the identification parades were
held and therefore the possibility of their
having been shown to the witnesses
cannot be ruled out altogether. We do
not, therefore, attach much importance to
the identification made at the
identification parades."
15. In the case of Mahabir Vs. The State of Delhi (Supra) also the
accused persons were shown to the eye witnesses before their T.I.P..
In this case, it has been held that:
"In view of the accepted position that the accused
persons were brought to the hospital to be shown to
PW4, grievance that the test identification parade was
really of no consequence because they had already been
shown to the witnesses has substance. That being only
piece of material which was used for conviction of
Mahabir, same cannot be sustained. The same is set
aside. He be released forthwith.
16. In the present case the identification of the appellant in the Court
Crl.App. 656/2007 Page 8 of 10
is based upon the witnesses having seen him appearing in the Court
and not in any TIP proceedings.
17. It would also be appropriate to take note of the judgment of this
Court in Nawal Kishore Vs. State, 1983 (23) DLT 178, where the crucial
issue about the quality of evidence was discussed. The relevant
observations made in this case are reproduced hereunder:-
"The crucial question is always about the quality of the
evidence. If it is poor the judge should acquit in the
absence of supporting evidence. If there are
circumstances or items or evidence capable of supporting
it, it will be safe to convict. Otherwise the verdict will be
unsafe and unsatisfactory. Much depends upon the
quality of the evidence in each case. Quality is what
matters in the end. (R.V. Turnbull, (1977) QB 224 (231). "
A capable judiciary", Wigmore has said, "and an effective
jury system (both depending upon a conscientious
citizenship and a sound condition of politics) are in the end
the only real safeguards of an innocent man" (Wigmore on
Evidence 3rd Ed. Volume VII para 2044 page 286).
There is no description of the features, complexion, or
likeness of the accused in the first information report
except that some accused is described as tall and other
short statured and all are described as young man. There
was no identification parade because the accused refused
to participate in the parade. It is established on the
evidence of Jai Parkash and Talwar that the accused had
been shown to the doctor and the compouner before
hand. The doctor never picked out the accused nor did he
say when he was shown "These are the men who robbed
me". Similarity of the appearance of the accused person
to that of the culprits is not established beyond reasonable
doubt. The quality of the identification evidence is not
good."
18. The observations made in the above-mentioned judgments
squarely applied to the facts of this case as in the present case also no
TIP was held in respect of the appellant. He was also not brought in a
muffled face when he was brought from Deoband jail. It is an admitted
case of the prosecution that the present appellant, who was allegedly
sitting with Anil Sisoli, had ran away from the spot by taking benefit of
dark. Neither his name nor any other particular was mentioned in the
FIR. Thus, the identification of the appellant by the witnesses for the
first time in Court, who had never seen the appellant, in the absence of
Crl.App. 656/2007 Page 9 of 10
TIP becomes meaningless. Admittedly, there is no other evidence
available on record against the appellant. The disclosure statement
made by the present appellant without anything recovered at his
instance is inadmissible in evidence. Thus, it has to be held that the
prosecution has failed to prove its case beyond reasonable doubt. The
appellant is thus entitled to be acquitted.
19. Accordingly, the appeal is allowed and the appellant is acquitted
of the charges leveled against him. The appellant be released
forthwith in case he is not wanted in any other case. Copy of the order
be sent to the Jail Superintendent. Pending applications, if any, also
stand disposed of.
20. A copy of this order be sent to the trial Court along with Trial
Court Record.
MOOL CHAND GARG, J.
OCTOBER 23, 2009 ag Crl.App. 656/2007 Page 10 of 10