Delhi High Court
Montu @ Bahadur vs State (Nct Of Delhi) on 26 October, 2009
Author: Mool Chand Garg
Bench: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.App. 522/2007
Date of Reserve : 12.10.2009
Date of Decision: 26.10.2009
MONTU @ BAHADUR ..... Appellant
Through: Ms. Sahila Lamba, Amicus Curiae
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
to see the judgment? YES
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, who was tried as one of the accused in Sessions
Case No. 183/2006 arising out of FIR No. 24/2004 under Section
394/397/457/411/34 IPC of P.S. Mehrauli, has assailed the judgment
of the Addl. Sessions Judge dated 25.4.2007 holding him guilty of
offence punishable under Section 394/397/34 IPC along with other
accused persons. He has also challenged the order of sentence dated
27.4.2007 awarding him punishment of R.I. for a period of 7 years
besides payment of fine of Rs. 3,000/- and in default of payment of
fine to further undergo S.I. for 7 days.
Crl.App. 522/2007 Page 1 of 13
2. It is the case of the appellant that there is no evidence available
against him. It is also his case that his identification by PW4 in the
Court is based upon showing of his photographs by the police
officials and, therefore, such evidence is of no consequence. He has
also stated that the factum of showing his photographs by the Police
before holding his test identification parade is admitted by PW4 and,
therefore, no credence can be given to his identification by PW4 in
Court for the first time. Moreover, the award of minimum sentence
of 7 years to the appellant is also not sustainable because there is no
evidence against the appellant of having used any weapon in the
alleged crime.
3. The present case was registered by the police on the basis of
statement made by PW2, Nirmal Kumari Ex.PW2/A, to the effect
that, "she along with her family members was residing at D148,
Freedom Fighters Colony, Delhi. On the intervening night of
12/13.01.2004 at about 4.15 am, four intruders entered inside their
house. They all were armed with knives and pistols, aged about
35/40 years and were wearing jackets. They were speaking Bihari
language. They had covered their faces. They at the point of pistol
committed robbery in their house and removed cash, golden
ornaments, silver glasses, silver coins, golden chain and golden
bangles. She also stated that they also caused injuries to her
Crl.App. 522/2007 Page 2 of 13
grandson PW4 Saurav whose mouth was gagged with a sweater and
hands tied from behind. After committing robbery all the four
intruders left the house after touching her feet. They bolted the door
from outside and threatened her not to disclose the incident to
anyone". On that basis FIR No. 24/2004 under Section 394/34 IPC
was registered at P.S. Mehrauli on 22.02.2004. The appellant was
arrested by SI Vikram Singh in case FIR No. 100/04, when he also
made a disclosure statement about the commission of offence in this
case. At his instance one silver glass which does not have specific
mark is also stated to have been recovered. Police wanted to hold
TIP of the appellant which was conducted by Ms. Barkha Gupta, the
Learned MM on 27.02.2004, where the appellant refused to
participate by alleging that he has been shown to the witnesses
earlier. It is a matter of record that PW-2 has not identified any of the
witnesses and has reiterated that they had covered their faces at the
time of commission of crime. PW-9 who was examined as a witness
to recovery of identification of silver glass from the appellant has also
stated that such glasses are ordinarily available in the market.
4. It has been stated by PW2 Nirmal Kumari that she could not
identify the accused persons who had entered her house for
commission of robbery because she has weak eye sight and the
accused persons had covered their faces. However, PW4 Saurav has
Crl.App. 522/2007 Page 3 of 13
stated that he had seen the accused persons including the appellant.
According to him the person who caused injury on his person was
(A-1) Saurabh @ Khokhan, who is not the appellant. According to
him the said accused stabbed him with a knife and had caused
injuries to him. As stated above, the aforesaid witness in his
statement has admitted of having seen the photographs of the
appellant from the data base on the day he visited the Police Station
i.e. 25.2.2004 on which date the appellant was also called for his TIP,
which was held on 27.2.2004 i.e. soon after the witness had seen the
photographs of the appellant.
5. It would be appropriate to take note of the statement made by
PW4:
When the accused persons came in my room their
faces were not covered. Vol. When they reached our
house they had covered their faces before going
outside.
He also deposed:
On 03.03.2004 I had gone to the P.S. Mehrauli. Police
recorded my statement twice first on the date of
incident and second on 03.03.2004 when I had gone to
the Police Station. I have received information from
P.P. IGNOU for participating in the TIP to be
conducted in Tihar Jail. I do not recollect if I had
received intimation in writing orally. I did not go to
P.S. Mehrauli between 13.01.2004 to 25.02.2004. I had
disclosed to the Police that the accused persons were
between the age group of 35 to 40 years and that one
of them was of fair complexion and other dark
complexion. I had not disclosed their heights. Vol.
the police had brought data base photographs of the
persons described by me. They had brought albums
of data base photographs. And after seeing the said
Crl.App. 522/2007 Page 4 of 13
albums I was required to identify the culprits. I do
not remember the dates when the Police official was
brought database photographs. I had identified the
accused persons in the said database photographs. It
is correct that I had identified the accused persons in
the database photographs before I identified in the
TIP proceedings.
6. It has been submitted on behalf of the appellant that as per
Ms.Barkha Gupta, Learned MM, the TIP in this case was conducted
on 27.02.2004. PW4 had gone to the Police Station on 25.02.2004
when he was shown the database photographs and it is for that
reason when the TIP of the appellant was sought to be conducted, he
refused to participate in the said TIP. It is submitted that the later
identification of the appellant in Court by PW4 is certainly based
upon the photographs shown to him by the Police and is not based
upon by the TIP which was required to be conducted in view of
Section 9 of the Evidence Act. It is, thus, submitted that the evidence
of PW4 regarding his identification is of no consequence.
7. It would also be appropriate to take note of the statement made
by PW18, the I.O. of this case, who has deposed as follows:
On 22.02.2004 I formally arrested all the three accused
persons present in the Court.
On 24.02.2004 accused Montu present in the Court
was brought to Court of Ld. MM on the basis of PW.
After taking permission from court and arrested
accused Montu. He was interrogated thoroughly and
his disclosure statement Ex.PW12/B was recorded.
TIP of accused were got conducted on 25.02.2004 and
Crl.App. 522/2007 Page 5 of 13
27.02.2004. I received the copy of TIP proceedings.
On 01.03.2004 I obtained PC of all the four accused
persons. I interrogated all the accused one by one
and recorded their disclosure statements on
04.03.2004 vide memo Ex.PW15/A to D. As per their
disclosure statements all the accused took the police
team to Yamuna Pusta near Old Bridge. PW Atul
Kumar was present with us. From the jhuggi of
accused Montu he got recovered one silver glass.
8. From this statement also it is apparent that TIP of the appellant
was sought to be conducted only after showing the photographs of
the appellant to the witnesses before holding the TIP. It is not the case
of the prosecution that data base photographs were shown for the
purpose of fixing the identity of the appellant before his arrest.
9. It is also submitted on behalf of the appellant that learned Trial
Judge has failed to appreciate that the articles allegedly recovered at
the instance of the appellant can any time be purchased from any
market and therefore believing the same to be recovered on the basis
of the alleged disclosure statement made by the appellant is false.
10. It would also be appropriate to take note of the statement made
by PW9 which is reproduced hereunder:
I cannot tell the MEI number of that mobile. I do not
remember on which date I had visited the police
station last time. I used to remain in the police station
for about 10-15 minutes and enquired from Surender
Dahiya about my case. It is correct that similar gold
bangles and silver glass are easily available in the
market. I signed the seizure memo at the spot at the
time of recovery.
11. Learned amicus curiae appearing for the appellant has also
Crl.App. 522/2007 Page 6 of 13
placed reliance upon the judgment delivered by Apex Court in the
case of Ravindra @ Ravi Bansi Gohar Vs. State of Maharashtra, 1998 (2)
JCC (SC) 107, where it has been held:
8. The next unusual feature of the case, is the showing
of the photographs of the accused to the witnesses
who were to identify them in T.I. parade. As noticed
earlier, the High Court did not lay any importance on
this aspect of the matter so far as the two appellants
are concerned on the ground that those photographs
were shown to P.Ws.2 and 12, who were already
known to them to test whether their identification
was correct or not and that fact was confirmed by
holding identification parade immediately after their
arrest. This finding of the High Court, in our view, is
wholly unsustainable. The identification parades
belong to the investigation stage and they serve to
provide the investigating authority with materials to
assure themselves if the investigation is proceeding
on right lines. In other words, through these
identification parades that the investigating agency is
required to ascertain whether the persons whom they
suspect to have committed the offence were the real
culprits - and not by showing the suspects or their
photographs. Such being the purpose of identification
parades the investigating agency, by showing the
photographs of the suspects, whom they intended to
place in the T.I. parade, made it farcical. If really the
investigating agency was satisfied that P.Ws. 2 & 12
did know the appellants from before and they were in
fact amongst the miscreants, the question of holding
T.I. parade in respect of them for their identification
could not have arisen.
12. On the other hand learned APP appearing for the state
submitted that the prosecution has established its case beyond
reasonable doubt. All the prosecution witnesses have fully
supported the case of the prosecution and there is nothing to
disbelieve their positive testimony. It is also submitted that the
present appellant along with other accused persons was also arrested
Crl.App. 522/2007 Page 7 of 13
in case FIR No. 100/2004 and 101/04 under Section 186/353/307/34
IPC. He is not an innocent person who is committing the crime for
the first time but is a habitual offender. Therefore, the impugned
judgment be upheld and the sentence be maintained.
13. I have heard the arguments of the learned APP for the state and
the learned amicus curiae appearing for the appellant and have
perused the testimony of the prosecution witnesses on record.
14. It would be appropriate to take note of the observations made
by the Apex Court in the following judgments also:
i) Shaikh Umar Ahmed Shaikh Vs. State of Maharashtra
AIR 1998 SC 1922
ii) Mahabir Vs. The State of Delhi, 2008 (2) JCC 1244
iii) Ravi @ Ravichandran Vs. State Rep. By Inspector of Police
2007 (2) JCC 1458
iv) Dasari Siva Prasad Reddy Vs. Public Prosecutor, High
Court of A.P. AIR 2004 SC 4383
15. In Shaikh Umar Ahmed Shaikh Vs. State of Maharashtra (Supra) it
has been held as under:
"The Designated Court after having rejected the evidence
of identification parade on the ground that the suspects
were possibly shown to the witnesses, relied upon the
evidence of identification of the accused in the Court by
the two witnesses and on that evidence recorded
conviction against the appellants. No doubt, the evidence
of identification parade is not a substantive evidence, but
its utility is for purposes of corroboration. In other words,
it is utilized for corroboration of the sworn testimony of
witnesses in Court as to the identity of the accused who
are strangers to them. The real and substantive evidence
of the identity of the accused comes when witnesses give
statement in the Court, identifying the accused. It is true
that in the present case, PW-2 and PW-11 identified the
Crl.App. 522/2007 Page 8 of 13
two accused who are the appellants before us in the Court.
But, the question arises; what value could be attached to
the evidence of identify of accused by the witnesses in the
Court when the accused were possibly shown to the
witnesses before the identification parade in the police
station. The Designated Court has already recorded a
finding that there was strong possibility that the suspects
were shown to the witnesses. Under such circumstances,
when the accused were already shown to the witnesses,
their identification in the Court by the witnesses, their
identification in the Court by the witnesses was
meaningless. The statement of witnesses in the Court
identifying the accused in the Court lost all its value and
could not be made basis for recording conviction against
the accused. The reliance of evidence of identification of
the accused in the Court by PW-2 and PW-11 by the
Designated Court, was an erroneous way of dealing with
the evidence of identification of the accused in the Court
by the two eye-witnesses and had caused failure of
justice. Since conviction of the appellants have been
recorded by the Designated Court on wholly unreliable
evidence, the same deserves to be set aside. We
accordingly set aside the judgment and order dated
14.01.1997 passed by the Additional Judge, Desiganted
Court for Greater Bombay in TSC No.21 of 1994,
convicting the appellants. The appellants are acquitted
of charges. The appeal is allowed. The appellants are
entitled to be released forthwith. We order accordingly.
Appeal Allowed."
16. Similarly 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., 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.
17. 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:
Crl.App. 522/2007 Page 9 of 13
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 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."
18. The law with regard to quality of evidence when the case is
based upon the identification for the first time in Court is well settled
by this Court in the case of Nawal Kishore Vs. State 23 (1983) DLT 178.
8. The procedure for the conduct of the parade is
largely a matter of police practice, but Judges have
occasionally suggested rules which should be
observed if the accused is not to be prejudiced and the
parade is to have maximum probative value. The
cardinal principle is fairness to the accused. Care
should be taken that the witness does not see the
accused in custody before the parade, or while the
parade is being formed. Courts have commented
Crl.App. 522/2007 Page 10 of 13
adversely upon witnesses being put into a room with
a window through which they might have seen the
parade. The prosecution should also eliminate, as far
as possible, the chance that someone may have told
the witness which man to pick out.
12. 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 of evidence capable of
supporting it, it will be safe to convict. Otherwise the
verdict will be unsafe or 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).
Applying these principles what do we find this
case? There is no description of the features,
complexion, or likenesses of the accused in the First
Information Report except that some accused is
described as tall and the 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 compounder
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 persons to that of the culprits is not
established beyond reasonable doubt. The quality of
the identification evidence is not good. This is the
conclusion I have arrived at in this case.
23. The accused have been awarded long sentences of
eight years rigorous imprisonment each. The Court
would expect proof beyond reasonable doubt of the
guilt of the accused. The greater the crime, the stricter
the proof. This maxim applied to this case. The
burden or establishing the guilt of the accused
beyond reasonable doubt always lies on the
prosecution which never shifts. In Woolmington v.
Director of Public Prosecutions, (1935) AC 462 481)
Viscount Sankey said:
"No matter what the charge or where the trial, the
principle that the prosecution must prove the guilt of
Crl.App. 522/2007 Page 11 of 13
the prisoner is part of the common law of England
and no attempt to whittle it down can be
entertained."
This principle is a fundamental part of the English
Criminal Justice. So with us. The same position
prevails in the Criminal law in India.
24. The investigation has been most unfair in this
case. The Cardinal principle is fairness to the accused.
This principle has not been observed in the
investigation. All precautious and safeguards
intended for the benefit of the accused were thrown
to winds. There was no upright and clean
investigation. The evidence is not confidence-
inspiring. Leaving frills and embroideries aside, the
evidence of prosecution witnesses cannot be accepted,
conflicting as it is in material particulars. It will be
unsafe to convict the accused on the unsatisfactory
evidence led by the prosecution. On the whole case
my conclusion is that the prosecution has failed to
establish the guilt of the accused beyond reasonable
doubt.
19. A perusal of the aforesaid judgments goes to show that
whenever the accused is shown to the witnesses before conducting
the T.I.P. their identification in the TIP or their subsequent
identification has not been appreciated as a good evidence for their
conviction by the Apex Court. Admittedly in the present case except
for the disclosure statement made by the appellant and his co-
accused persons one after the other, i.e., the second accused on
12.11.2005 and the appellant and his other co-accused on 13.11.2009
which is nothing else but the repetition, there is no other evidence
which may prove the guilt of the appellants except the identification
made by PW-4 in the T.I.P. and the identification of the appellant by
Crl.App. 522/2007 Page 12 of 13
PW-3 in the Court. The disclosure statement is also not admissible
because the recovery of silver glass which is available in the market
would not prove the guilt of the appellant.
20. Thus, in view of the aforesaid legal position and the facts of this
case I allow the appeal and acquit the appellant by giving him benefit
of doubt. The appellant be released forthwith, if not wanted in any
other case. A copy of this order be sent to the Jail Superintendent for
immediate compliance. TCR, if any, be sent back along with a copy
of this order. Pending applications, if any, stand disposed of.
21. The fee of amicus curiae is fixed as Rs.4500/-.
MOOL CHAND GARG, J.
OCTOBER 26, 2009 ag/anb/dc Crl.App. 522/2007 Page 13 of 13