Delhi District Court
Judgment In Case Fir No. 72/11 Ps Hnrs ... vs Dilip And Others 1 Of 18 on 26 April, 2014
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IN THE COURT OF MS. HEMANI MALHOTRA, ADDITIONAL SESSIONS
JUDGE-05 (CENTRAL), TIS HAZARI COURTS, DELHI
Sessions Case No. 09/2014
Original Sessions Case No.48/2011
& 8/2012
FIR No.72/11
P.S. Hazarat Nizamuddin Railway Station
U/s 186/353/332/333 IPC
Unique ID No.0240IR0486042011
State
Versus
(1) Dalip
S/o Sh.Gurubax
R/o Jhuggi No.41 B, Jangpura
Behind Railway Quarters,
New Delhi. ..........Accused
(2) Vimal
S/o Sh.Ramesh Chand,
R/o H.No. T-76, Sarai Kale Khan,
New Delhi. ..........Accused
(3) Dinesh,
S/o Sh.Gurubax
R/o Jhuggi No.41 B, Jangpura
Behind Railway Quarters,
New Delhi. ........Accused
Date of institution : 14.10.2011
Date of conclusion of argument / reservation for judgment : 17.04.2014
Date of judgment : 26.04.2014
Judgment in case FIR No. 72/11 PS HNRS titled State Versus Dilip and Others 1 of 18
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JUDGMENT
1. By this judgment, I would dispose off aforesaid sessions cases as both these cases pertain to the same incident. In Sessions case No. 48/2011, Accused Dalip and Vimal were charge sheeted and committed whereas in Sessions case No.8/2012, accused Dinesh was committed vide supplementary charge sheet. Accused Dalip aged about 26 years and accused Vimal aged about 21 years were committed to the Court of Sessions on 02.11.2011 whereas accused Dinesh aged about 34 years was subsequently arrested and on supplementary charge sheet having been filed was also committed to the Court of Sessions on 14.02.2012 to stand trial under Sections 186/353/333/34 IPC for allegedly obstructing, causing grievous hurt and using criminal force against SI Chander Prakash Mishra, RPF, P.S.Niazamuddin Railway Station, while discharging his duties as public servant in furtherance of their common intention along with their associates namely Santosh @ Chhota @ Siddarth and Kala (since not arrested) on the night of 03.08.2011 near Barapulla, Tikona Park, Hazrat Nizamuddin, New Delhi.
FACTS OF THE CASE
2. The facts of prosecution case elaborately stated as gathered from the charge-sheet filed under Section 173 Cr.P.C and FIR (Ex. PW1/A) lodged by SI Chander Prakash Mishra are these:-
3. On 03.08.2011 ASI Kushal Pal(PW10) was on duty at PS Hazrat Nizamuddin Rly. Stn. when SI Chander Prakash Mishra, posted at RPF, Nizamuddin Railway Station, Delhi, who had sustained injuries on his head Judgment in case FIR No. 72/11 PS HNRS titled State Versus Dilip and Others 2 of 18 3 and left leg came to the police station. ASI Kushal Pal immediately sent SI Chander Prakash Mishra with HC Ved Prakash(PW9) in a government vehicle to Safdarjung Hospital for his medical examination. Thereafter ASI Kushal Pal recorded the first information statement Ex.PW 2/ A of the injured SI Chander Prakash Mishra. As per the first information statement of the SI Chander Prakash Mishra, on 03.08.2011, he was posted as Duty Officer at the RPF Nizamuddin Railway Station and Const. Deepak (PW6), RPSF was on reserve duty. At about 10.00 PM, Inspector D. K. Chauhan (PW3) informed him that some miscreants were pelting stones upon Dadar Express near Barapulla Tikona Park. SI Chander Prakash Mishra on direction of Inspector D.K. Chauhan, along with Ct. Deepak immediately left for Barapulla Tikona Park. On reaching there, he saw 2-3 boys hiding behind the bushes pelting stones at a train coming from the side of Okhla. When he accosted them as to why they were pelting stones, they started pelting stones upon SI Chander Prakash Mishra due to which, he sustained injuries upon his head. In the meantime, two other associates of the miscreants came there and they all surrounded him and one of them hit him with a danda (Ex.P-1) on his left leg. Thereafter, one of the boys asked the others to stab him with a knife. Upon hearing this, he escaped from the spot. Since, Ct. Deepak was on the other side of the railway track, he could not reach the spot. He gave the description of all the accused persons being strong built and aged between 25 to 30 years and having dark complexion.
4. The medical examination of SI Chander Prakash Mishra was conducted vide MLC No.128278/11 (Ex. PW 8/A) wherein it was opined that SI Chander Prakash had suffered heamatoma over right eyebrow, CLW over left occipital region and bruise over left scalpula. There was also limitation of movement of left foot and result of such injuries was opined as grievous Judgment in case FIR No. 72/11 PS HNRS titled State Versus Dilip and Others 3 of 18 4 caused by blunt weapon.
5. On the basis of the statement of SI Chander Prakash Mishra, rukka was prepared by ASI Kushal Pal, which was sent to the Police Station for registration of FIR. On the basis of rukka FIR No.72/2011 under Section 186/353/332/323/34IPC was registered. The further investigation of the present case was assigned to ASI Kusha Pal. Site plan of the place of incident was prepared and the statements of the witnesses were recorded.
6. The further case of the prosecution is that at about 4.00 AM on 08.08.2011, vide DD No.3 A, ASI Kushal Pal received a telephonic information from SI Manoj Kumar of RPF (Railway Station Hazarat Nizamuddin) informing him that on 07.08.2011, when the RPF staff was on patrol duty, accused Dalip and accused Vimal were found stealing railway property and accordingly, a case against them under Section 3 of R.P. (UP) Act has been registered. It was also conveyed that the accused Dalip and accused Vimal had made a disclosure statement that they along with their associates namely Dinesh, Santosh @ Chhota @ Siddharth and Kalia had assaulted RPF police official at Tikona Park, Barapulla on 03.08.2011. This information was recorded as DDNo. 3 A. On receipt of this information, ASI Kushal Pal along with the case file of FIR No.72/2011 reached PS RPF where he met SI Manoj Kumar, RPF who handed over the accused Dalip and accused Vimal to ASI Kushal Pal. ASI Kushal Pal also telephonically requested complainant SI Chander Prakash Mishra telephonically to reach PS RPF.
7. SI Chander Prakash Mishra on reaching the police station RPF immediately identified the two accused to be the same who along with their associates had pelted stones on him and had given injuries to him on Judgment in case FIR No. 72/11 PS HNRS titled State Versus Dilip and Others 4 of 18 5 03.08.2011. Arrest memos of the accused were prepared and their disclosure statements were recorded. Thereafter, the accused Dalip and accused Vimal led the police team to the place of incident and accused Dalip got recovered the danda which was alleged to have been used to inflict injury on SI Chander Prakash Mishra.
8. No other accused could be arrested and so charge sheet under Section 186 /353/332/323/34IPC was filed against accused Vimal and Dalip who were committed to the court of sessions as already mentioned.
9. The further case of the prosecution is that on 10.12.2011, ASI Kushal Pal received a secret information at the police station that one of the accused Dinesh , who is also a proclaimed offender in two other cases is sitting in Ambedkar Park, Sunlite Colony along with his associates. This secret information was recorded as DD No.16 A dated 10.12.2011 and immediately a raiding party comprising of ASI Kushal Pal, HC Omvir and HC Sanjeet and secret informer left for Ambedkar Park, Sunlite Colony where on pointing out of the secret informer, the raiding party overpowered three persons, who revealed their names as Dinesh S/o Mahipal, Ashok S/o Munni Lal and Monu S/o Ganga Dass. On interrogation, Dinesh revealed that on the night of 03.08.2011, he along with his associates had attacked police official, in which a police official had sustained injuries. Some of his associates have already been arrested and he was an absconder. Ashok and Monu were relieved after interrogation. Accused Dinesh was thereafter arrested in case FIR NO.72/11 . The accused Dinesh led the raiding team to the place of incident where pointing out memo Ex.PW 9/D was prepared. On the way back ASI Kushal Pal and his raiding team met SI Chander Prakash Mishra, who immediately identified accused Dinesh as one of the accused, who had attacked him.
Judgment in case FIR No. 72/11 PS HNRS titled State Versus Dilip and Others 5 of 18 6 Supplementary charge sheet was filed against accused Dinesh under Sections 186/353/332/323/34 IPC who was committed to the court of sessions and has been tried in sessions case No.8/12 as already mentioned. Sessions case NO.8/12 was consolidated with sessions case No. 48/11 vide order dated 17.03.2012 and evidence has been recorded in the main case.
CHARGE
10. Charges under section 186 read with section 34 IPC, section 333 read with section 34 IPC and section 353 read with section 34 IPC were framed against all the accused persons, to which all the accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
11. Prosecution examined as many as eleven witnesses namely HC Hari Om(duty officer) as PW1, SI Chander Prakash Mishra (complainant) as PW2, Inspector D.K.Chauhan (Incharge HNRS) as PW3, Ct. Ram Krishan (DD Writer) as PW4, SI Manoj Kumar (on patrolling duty) as PW5, Ct. Deepak Kumar as PW6, Ct. Sanjeet as PW7, Dr. Mukul Kumar Mangla (Medical Officer, Safdarjung Hospital) as PW8, HC Omvir Tyagi as PW9, ASI Kushal Pal as PW10, Ct. Sanjeev as PW11 and HC Ved Prakash (Witness of MLC) as PW12 wrongly numbered as PW-9.
STATEMENT OF ACCUSED:
12. Statement of the accused were recorded under Section 313 Cr.P.C.
wherein all the incriminating material and exhibits were put to them. They Judgment in case FIR No. 72/11 PS HNRS titled State Versus Dilip and Others 6 of 18 7 denied the prosecution's case in toto .All of them claimed that they are innocent and have been falsely implicated.
13. I have heard learned Additional PP for the state and learned counsel for all the accused persons and have perused the entire record with utmost care.
14. The complainant SI Chander Prakash Mishra was examined as PW2. In his examination-in-chief, he has testified that on 03.08.2011 he was working as duty officer at PS Hazrat Nizamuddin (RPF). At about 10:00pm he received an information from Insp. D. K. Chauhan that some assailants were pelting stones on Dadar Express at Barapulla, Tikona Park. He along with Ct. Deepak reached Barapulla, Tikona Park and noticed the three accused near the railway line, who were pelting stones at a passing train. When SI Chander Prakash Mishra accosted them, they assaulted him. He further deposed that when the train was passing Ct. Deepak was on the other side of the railway track. During the assault, one of the three assailants was caught by him. In the meantime, two more associates of the accused persons attacked him. The four assailants attempted to free the accused apprehended by him. One of the assailants exhorted his other accomplices to stab SI Chander Prakash Mishra with a knife. During the course of the incident, one of the assailants hit him with a danda on his left foot. He raised alarm, but the assailants continued assaulting him with stones. Since, he sustained injuries, he let go off the assailant apprehended by him. He has also deposed that as Const. Deepak was on the other side of the railway track and the train was passing through he could not come to his help. After medical treatment, he returned to Police Station Hazrat Nizamuddin, where he lodged his complaint (Ex. PW2/A). He also gave the description of the assailants as being between 18-24 years, one of the assailants having dark complexion, two of them being Judgment in case FIR No. 72/11 PS HNRS titled State Versus Dilip and Others 7 of 18 8 slim in built and one having a strong built.
15. He further testified that on the night of 07.08.2011, he was informed by SI Manoj, RPF that two accused, namely Dalip and Vimal, who had assaulted him had been arrested by him in a case of theft of railway property. SI Manoj further informed him that accused Dalip and Vimal had confessed having assaulted him along with their associates. Since PW2 had fracture, he could not reach Police Station RPF immediately. On the next day in the morning he went to PS RPF Nizamuddin and identified accused Dalip and Vimal to be two of the assailants, who had attacked him on 03.08.2011.
16. Subsequently, on 10.12.2011 when he was on duty at the platform of Nizamuddin Railway Station, he was informed that police officials of GRPF were bringing accused Dinesh who was also one of the assailants who had attacked him on 03.08.2011. During his examination, he identified the danda which was hit on is leg on 03.08.2011.
17. Nothing substantial came forth during the cross examination of PW-2.
However, the first information statement (Ex.PW2/A) reveals material inconsistencies with the evidence of PW2.
18. To corroborate the version of PW2 regarding the incident, which took place on 03.08.2011, Ct. Deepak Kumar was examined as PW6. In his examination-in-chief, it was deposed by him that on the direction of Insp. D. K. Chauhan regarding pelting of stones at Dadar Express train, he along with SI C. P. Mishra were instructed to reach Tikona Park. On reaching the place of incident, they saw a train coming from the Okhla side. Both, Ct. Deepak Kumar and SI C. P. Mishra(PW2), saw stones being pelted at Judgment in case FIR No. 72/11 PS HNRS titled State Versus Dilip and Others 8 of 18 9 the train from the bushes growing adjacent to the railway track. SI C. P. Mishra and PW6 both cried "Chor-Chor". On hearing their cries, officials of GRP police arrived at the spot. SI C. P. Mishra (PW2) had received injuries. When the GRP officials arrived at the place of incident, the persons, who were pelting stones escaped. He identified accused Dinesh, Dalip and Vimal to be the persons, who pelted stones at him as well as SI C. P. Mishra.
19. In his cross examination,PW-2 reiterated that on information being received qua the pelting of stones, he had left for the place of incident. There were five assailants and that after he was assaulted, he was taken to the hospital from where he was discharged at about 2.30 AM on 4.08.2011. He also testified that after he came back from the hospital, his statement was recorded by ASI Kushal Pal. It was on 07.08.2011 that he received information regarding the arrest of accused Dalip and Vimal. He categorically denied the suggestion that the accused persons had not assaulted him.
20. Regarding the incident which took place on 03.08.2011, there are material discrepancies. As per the version of PW-2 (SI C.P.Mishra), when the train arrived at the railway track at Barapulla Tikona Park, Const.Deepak (PW-6) was on the other side of the track . It was specifically deposed by PW-2 that it was 10.20 PM, when he with PW-6 had reached the railway track. He had also testified that const. Deepak could not come to his rescue while he was being assaulted as PW-6 was on the other side and that at the time of the assault by the accused persons, train was passing through.
21. However, PW-6 in his deposition had claimed that during the assault by Judgment in case FIR No. 72/11 PS HNRS titled State Versus Dilip and Others 9 of 18 10 the accused persons, he too had suffered injuries. He further emphatically claimed that he had seen all the three accused persons, Dinesh, Dalip and Vimal pelting stones at SI C.P.Mishra and also that they both had seen the stones being pelted from the bushes at a train coming from the Okhla side. The statement of PW-6 is belied by the fact that he never suffered any injury nor was taken to any hospital for his medical examination. There is major contradiction in the statements of PW 2 and PW 6. Also, it was nowhere stated by PW-6 in his statement recorded u/s 161 Cr.P.C by ASI Kushal Pal that he had witnessed the accused persons assaulting PW-2 or that he was assaulted by the accused and had suffered injuries.
22. The PW-6 has thus substantially improved upon his statement during his examination before the court. He stands discredited as an eye witness.
23. As far as the identification of the accused persons by PW-2 is concerned , it is rather material to examine the statement of PW-2 recorded by ASI Kushal Pal viz-a-viz the statement of PW-2 recorded in the court. In the first information statement (Ex. PW 2/ A), the PW-2 had given the description of the accused persons as between the age of 25-30 years, dark complexioned and strongly built whereas, in the testimony of PW-2, PW 2 described them to be between 18 to 24 years, two accused to be slim in built and the other one to be strongly built. The documents on record indicate that the age of accused Vimal as on the date of the incident was 19 years and that of the accused Dalip was 24 years, both are slim in built. The accused Dinesh as per the documents on record was 32 years old at the time of the incident and was strongly built. All the three accused are dark complexioned .
Judgment in case FIR No. 72/11 PS HNRS titled State Versus Dilip and Others 10 of 18 11
24. From the variation in the description given in Ex. PW 2/ A and the testimony of PW-2, it can not be established beyond reasonable doubt that assailants who had attacked PW-2 were the accused persons.
ARREST OF ACCUSED DALIP AND VIMAL
25. It was testified by PW 5 SI Manoj Kumar that on 07.08.2011 when he was posted at PS RPF Hazrat Nizamuddin, he was on patrolling duty with HC Jai Gopal Sharma, Const.Sujan Singh and const Viram Dev.At about 8. 50 PM, they reached platform No.6/7,Hazrat Nizamuddin Railway Station and met HC Kushal Pal Singh, who also joined them in the patrolling.While going towards Delhi side on the platform, they noticed accused Dalip and Vimal carrying one parcel. The patrolling team asked them to stop but instead of stopping, they started moving at a faster pace. They were apprehended on the slope of the platform at about 9.20 PM. On their apprehension, the parcel was checked which was found to be railway property and bearing railway marking. The accused Vimal and Dalip could not produce any document or give any satisfactory reply for the possession of the parcel. On inquiry, they disclosed the same to have been stolen from the cage located on the platform. On opening the parcel, it was found to contain 10 boxes containing chargers. The recovered railway property was seized vide recovery memo (Ex. PW 5/A). After completing the formalities, the patrolling team returned to police station RPF and registered case FIR No.23/11 u/s 3 RP (UP) Act; Ex. PW 5/G.
26. On interrogation, the accused Dalip and Vimal disclosed that they along with their associates namely Santosh, Kallu, Dinesh and one another person had attempted to commit theft at about 9.30 PM on 03.08.2011 in Dadar Express train near Tikona Park, Barapulla. They also disclosed Judgment in case FIR No. 72/11 PS HNRS titled State Versus Dilip and Others 11 of 18 12 that they had attacked two RPF officials on the said date. Since SI Manoj Kumar was already seized of the information that some assailants had attacked Dadar Express train on 03.08.2011 and that SI C.P.Mishra along with one const of RPSF had proceeded to deal with the said attack, he gave the information of the arrest of the accused Dalip and Vimal to GRP Police Station, Hazrat Nizamuddin at about 4.00 AM on 08.08.2011. At about 7.30 AM, ASI Kushal Pal Singh came to the police station who interrogated both the accused persons.SI C.P.Mishra was also called to the police station RPF where he identified both accused Dalip and Vimal as two of his assailants. Thereafter accused Dalip and Vimal were arrested vide arrest memo Ex. PW 5/H and Ex. PW 5/I respectively.
27. In his cross examination, he reiterated that the accused Dilip and Vimal were found with the stolen railway property and were apprehended at about 9.20 PM on 07.08.2011. He also reiterated in his cross examination that the information regarding the arrest of the accused Dalip and Vimal was given to GRP Police Station and that ASI Kushal Pal Singh recorded his statement in the PS RPF at about 7.30 AM. He denied the suggestion that the accused Dalip and Vimal were not apprehended by him at the spot.
28. On the other hand, it was deposed by PW-10 ASI Kushal Pal that on 08.08.2011 at about 4/4.15 AM, on being handed over DD No. 3 A, he along with const. Sanjeet reached PS RPF Nizamuddin where SI Manoj Kumar (PW-5) met him. PW 5 SI Manoj Kumar informed him that he had arrested accused Dalip and Vimal in a case of RPF wherein both the accused had disclosed qua the commission of assault. He further testified that he had interrogated both the accused Vimal and Dalip in RPF Nizamuddin whereafter both the accused were arrested in case FIR No. Judgment in case FIR No. 72/11 PS HNRS titled State Versus Dilip and Others 12 of 18 13 72/11 vide arrest memos Ex. PW 5/H and Ex. PW 5/I respectively. At their instance, pointing out memos (Ex. PW 7/C and Ex. PW 7/D) were prepared and accused Vimal got recovered danda from the bushes at a nearby toilet near the railway lines, which was used to assault SI Chander Prakash Mishra. The said danda was seized vide seizure memo Ex. PW 7/E. After the recovery was made, both the accused were brought back to RPF Nizamuddin and handed over to RPF officials.
29. The deposition of PW-5 SI Manoj Kumar and PW10 ASI Kushal Pal reveals material contradiction qua as to who was informed by SI Manoj Kumar regarding the arrest of accused Vimal and Dalip on 07/08.08.2011. Whether SI Manoj Kumar (PW-5) had informed ASI Kushal Pal, PW 10 or SI Chander Prakash Mishra PW -2) as testified by him in his examination in chief. As per the testimony of PW -2 SI Chander Prakash Mishra, SI Manoj Kumar of RPF had informed him on 07.08.2011 that accused Dalip and Vimal , two of the assailants who had assaulted him had been arrested by him in the case of theft of railway property. He has further deposed that SI Manoj Kumar had also informed him that accused Dalip and Vimal had confessed to their guilt in respect of the attack upon him. He categorically deposed that this information was given to him by SI Manoj Kumar in the night but since he had a plaster, he could not go to PS RPF Nizamuddin. It was in the morning that he went to PS RPF Nizamuddin, where he identified accused Dalip and Vimal as two of the assailants who had attacked him on 03.08.2011.
IDENTIFICATION OF ACCUSED DALIP AND VIMAL
30. From the testimonies of PW-5 SI Manoj Kumar and PW 2 SI Chander Prakash Mishra, it is apparent that no steps were taken by ASI Kushal Judgment in case FIR No. 72/11 PS HNRS titled State Versus Dilip and Others 13 of 18 14 Pal to conceal the identity of the accused Dalip and Vimal who were not known to the victim PW 2 from before. The incident of assault on SI Chander Prakash Mishra (PW-2) had taken place at about 10.30 PM on 03.08.2011 on the railway track. There was no occasion to notice the distinctive features of the accused Dalip and Vimal during the incident, same being night time. There is nothing on the record to show that the railway tracks where the incident took place was well lit so as to enable SI Chander Prakash Mishra to vividly notice the description of the accused. It is not the case of the prosecution that the accused Dalip and Vimal were known to SI Chander Prakash Mishra previously. As the victim SI Chander Mishra was not well acquainted with the accused persons, ASI Kushal Pal should not have shown them to SI Chander Prakash Mishra at PS RPF Nizamuddin. It is apparent that no precaution or step whatsoever was taken for holding identification parade of the accused Dalip and Vimal as required by law.
31. The accused Dalip and Vimal were hence in my opinion denied a very valuable right. The said act of ASI Kushal Pal is not only fatal to the prosecution case but also raises a reasonable doubt qua the identification of the accused Dalip and Vimal.
ARREST OF ACCUSED DINESH
32. ASI Kushal Pal, PW 10 has testified that at about 6.00 PM on 10.12.2011, when he was present in the police station, he was informed by the secret informer that one of the accused,who is a Proclaimed Offender in a case of PS Sunlight Colony and also wanted in a case of PS Hazrat Nizamuddin was present at Ambedkar Park, Sunlight Colony. On receipt of this information, PW 10 formed raiding party with HC Omvir and const.
Judgment in case FIR No. 72/11 PS HNRS titled State Versus Dilip and Others 14 of 18 15 Sandeep and reached Ambedkar Park , Sunlight colony with the secret informer. On pointing of the secret informer, accused Dinesh, who was sitting on a platform with two other persons was apprehended. Accused Dinesh disclosed about his involvement in the assault on SI Chander Prakash whereafter he was arrested vide arrest memo (Ex. PW 8/A). His disclosure statement was recorded as Ex. PW 8/ C after which, accused Dinesh pointed out the place of occurrence vide pointing out memo Ex. PW 8/D.
33. The testimony of PW 10 ASI Kushal Pal regarding the apprehension of accused Dinesh stands corroborated by the testimony of PW-9 HC Omvir Singh, in whose presence the accused Dinesh was arrested and was a part of the raiding team.
IDENTIFICATION OF ACCUSED DINESH
34. Qua the identification of the accused Dinesh, it was testified by PW-2 SI Chander Prakash Mishra, that on 10.12.2011, he was on duty from 8.00 AM to 8.00 PM and was present at platform no.1 of Nizamuddin Railway Station. He noticed the police officials of GPRF bringing accused Dinesh who was in their custody. He immediately informed GPR officials that accused Dinesh was one of the assailants who had attacked him on 03.08.2011.
35. It is significant that the accused Dinesh was neither known nor acquainted with PW-2 SI Chander Prakash Mishra previous to the date of the incident. Admittedly, it is the case of the prosecution that there were five assailants who had attacked SI C.P.Mishra on the fateful night. It is not the case of the prosecution that the railway track where the incident took place was Judgment in case FIR No. 72/11 PS HNRS titled State Versus Dilip and Others 15 of 18 16 well lit. Admittedly, at the time of the incident, Dadar Express train was passing through. With this backdrop, it is not possible that PW-2 SI Chander Prakash Mishra would have distinctively seen the features of each and every assailant. It is not in dispute that the incident took place on 03.08.2011 and the accused Dinesh was arrested on 10.12.2011 i.e after a lapse of four months. In these circumstances, it was the bounden duty of the Investigating Officer to ensure that accused conceals his identity before Test Identification Parade qua the accused Dinesh was held. The relevance of Test Identification Parade has been emphasized by the Apex Court and the Hon'ble High Court in a catena of decisions.
36. In a case titled as Rameshwar Singh Vs. State of J&K 1972 SC102 it has been observed by Hon'ble Supreme Court that:
"Where, however, the accused, is not previously known to the witness, identification of the accused soon after arrest is of vital importance in the interest of justice and fairplay to the accused and the prosecution."
37. Also, in case titled as Mohanlal Gangaram Gehori Vs. State of Maharashtra , AIR 1982 SC 839 it has been observed by Hon'ble Supreme Court that:
If a witness did not know the accused before 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 accused in Court, his evidence becomes absolutely valueless on the question of identification.
Judgment in case FIR No. 72/11 PS HNRS titled State Versus Dilip and Others 16 of 18 17
38. Further, in Dharam Pal Vs. State reported as 2010 (1) JCC 104, Hon'ble High Court observed that "Accused was a person unknown to PW1;
PW1 had seen him for a passing moment.
As per his version he had identified him in the court for the first time which was after two years; as per PW9, PW1 had identified the accused in the police station; in either eventuality such an identification is a valueless identification.
Admittedly no judicial TIP had been conducted in this case for which there is no explanation by the Investigating Officer................... This omission coupled with the fact that no TIP had been conducted for which there is no explanation by the Investigating Officer;
the fact that the eye-witness was not known to the accused; accused had fled away from the spot; accused had been apprehended three days later; accused had been produced in the police station where he was identified by PW1; such an identification becomes a valueless piece of evidence under Section 9 of the Indian Evidence Act; identity of the accused has not been established. Prosecution not having proved its case beyond all reasonable doubt, the fundamental rule of criminal jurisprudence being that the prosecution must stand on its legs;
prosecution having failed to discharge this burden, accused is thus entitled to a benefit of doubt and the necessary consequences which flow from it."
39. Keeping in view the law laid down by the Apex Court and High Court as discussed above, since, the Investigating Officer ASI Kushal Pal (PW-10) omitted to conduct the test identification parade qua the accused persons, no reliance can be placed upon the identification of the accused persons by SI Chander Prakash Mishra (PW-2) who was also the complainant. Therefore, I am of the opinion that since the identity of the accused Judgment in case FIR No. 72/11 PS HNRS titled State Versus Dilip and Others 17 of 18 18 persons have not been firmly established, the accused persons are entitled to a benefit of doubt and hence liable to be acquitted.
40. In the light of the discussion held above, I have no hesitation in concluding that prosecution miserably failed to bring home the guilt of accused persons. Accordingly, accused Dalip, Vimal and Dinesh stand acquitted of the charges. Accused Dinesh be released from J/c forthwith if not required in any other case. File be consigned to record room.
Dictated and Announced in open (Hemani Malhotra)
Court on : 26.04.2014 Addl. Sessions Judge-05
(Central) Tis Hazari Court
Delhi
Judgment in case FIR No. 72/11 PS HNRS titled State Versus Dilip and Others 18 of 18