Delhi District Court
State vs Tahir Ali Fir No. 42/12 Ps. Maya Puri Page ... on 24 December, 2022
IN THE COURT OF SH. MILAN GOEL, MM-03 (WEST), THC,
DELHI
ID No.63213/16
PS. Maya Puri
24.12.2022
DLWT020006162012
ID No. : 63213/16
FIR NO. : 42/12
Police Station : Maya Puri
Date of commission of offence : 29.03.2012
Date of institution of the case : 21.08.2012
Name of the complainant/ : Sh. Sanjeev Pathak
informant
Name of accused and address : Tahir Ali S/o Sh. Lyaqat Ali, R/o H No. E-
94 Laxmi Park, Nangloi, New Delhi.
Offence complained of or proved : 420 IPC
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of judgment : 24.12.2022.
STATE Vs TAHIR ALI FIR NO. 42/12 PS. MAYA PURI Page No . 1 of 10
1.Briefly stated, it is the case of the prosecution that on 29.03.2012 at/near red light Gulab House, Mayapuri Phase-II within the jurisdiction of P.S. Mayapuri, the accused deceived the complainant Sh. Sandeep Pathak by handing over him a bundle of papers which the accused claimed to contain Rs. 1 Lakh and thereby dishonestly induced the complainant to deliver Rs. 9500 and the mobile phone. After completion of investigation in the present case, charge sheet was filed for the offence punishable under section 420 of Indian Penal Code (hereinafter referred to as "IPC").
2. Upon receiving the charge sheet, cognizance of the offence was taken and the accused was summoned by the court. Documents were supplied to the accused in compliance of Section 207 The Criminal Procedure Code, 1973 (hereinafter, referred to as 'Cr.P.C.').
3. On the basis of material on record, charge under Section 420 IPC was framed upon the accused, to which the accused pleaded not guilty and claimed trial.
4. Vide statement recorded under Section 294 of Cr.P.C. dated 16.03.2020 the accused admitted the genuineness of following documents:
a. Record of TIP Proceeding and the same is Ex. A1.
5. In order to substantiate its case, prosecution examined the eight witnesses.
STATE Vs TAHIR ALI FIR NO. 42/12 PS. MAYA PURI Page No . 2 of 10
6. PW-1 Sh. Sanjeev Pathak who is the star witness and the only eye witness of the prosecution, deposed that on 29.03.2012, his elder brother namely Amit Pathak handed over Rs. 9500/- to him to deposit the same in SBI, Maya Puri Branch. However when he reached the concerned bank, two unknown persons who were present in the bank requested him to deposit some money on their behalf. Thereafter both the unknown person took PW-1 out of the bank and PW-1 was hypnotized. Thereafter, both the unknown person took him at a distance from the concerned bank and handed over a white color handkerchief in which the unknown persons claimed to contain Rs. 1,00,000/-. However, when PW-1 regained consciousness he found that both the unknown person have left the spot along with the mobile phone of PW-1. Thereafter, PW-1 made the PCR call and filed the complaint which is Ex. PW-1/A before the concerned police officials. PW-1 correctly identified the accused as well as the handkerchief which was produced by the MHC(M) concerned.
During cross-examination by Ld. counsel for the accused, PW-1 deposed that he saw the accused at the instance of the concerned IO at the time when the accused was arrested. He further deposed that nothing was recovered in his presence.
7. PW-2 HC Rajesh Kumar deposed that on 11.05.2012 (after nearly 2 months of the incident) he was on a checking duty along with Ct. Trilok Chand when he found the accused standing near the wall of the park. On suspicion they apprehended the accused and STATE Vs TAHIR ALI FIR NO. 42/12 PS. MAYA PURI Page No . 3 of 10 conducted personal search in which they found bundle of papers in the form of currency with note of Rs. 500/- at the top, wrapped in a white colour handkerchief. PW-2 seized the said property and filed the Kalandra u/s 102 Cr.P.C.
The witness was not cross-examined despite opportunity.
8. PW-3 Ct. Trilok Chand deposed on the same line as that of PW-2.
The witness was not cross-examined despite opportunity.
9. PW-4 ASI Subhash Chand deposed that on 29.03.2012 he was posted as Duty Officer when he received the information regarding the theft of Rs. 10,000/- from the possession of the complainant. He recorded the DD No. 20A which is Ex. PW-4/A and registered the present FIR which is Ex. PW-4/B. He also made an endorsement on the rukka which is Ex. PW-4/C. Despite opportunity the witness was not cross-examined.
10. PW-5 HC Kuldeep Singh deposed that on 29.03.2012 on receipt of DD No. 18A which is Ex. PW6/A qua the theft of Rs. 10,000 from the complainant, he along with IO/ASI Prahlad Singh proceeded at the spot where he met the complainant who told them about the alleged incident. Thereafter, IO prepared the rukka which was sent to the concerned police station for the registration of FIR. After the registration of FIR, he prepared the pullanda of the papers and one currency note of Rs. 500/- and sealed the same with the seal of PS. The said pullanda was seized vide Ex. PW-5/A. The witness was duly cross examined.
STATE Vs TAHIR ALI FIR NO. 42/12 PS. MAYA PURI Page No . 4 of 10
11. PW-6 Ret. ASI Prahlad deposed that on 29.03.2012 on receipt of DD No. 18A, he along with Ct. Kuldeep proceeded to the spot where he recorded the statement of the complainant. Thereafter, he sealed the bundle having original note of Rs. 500/- vide Ex. PW-6/A. He correctly identified the case property.
The witness was duly cross-examined.
12. PW-7 Ct. Harish Verma deposed about the DD No. 24B dated 11.05.2012 PS Tilak Nagar which is Ex.PW-7/A. The said DD No. pertains to apprehension of accused by HC Rajesh. The witness was duly cross-examined.
13. PW-8 SI Bajrang Lal deposed that on 11.05.2012 the investigation of the present matter was assigned to him after the receipt of DD No. 53B which is Mark A. On receiving the same, he went to PS Tilak Nagar and collected the relevant document qua DD No. 25A dated 11.05.2012, PS Tilak Nagar. Further, he arrested the accused on 14.05.2012 vide arrest memo Ex. PW-8/A. He also recorded the disclosure statement of the accused which is Ex. PW- 8/B. Further, though he moved an application for judicial TIP but the accused refused to participate in the same.
The witness was duly cross-examined.
14. Prosecution evidence was closed vide order dated 30.07.2022.
15. Statement of accused u/s 313 r/w 281 of Cr.P.C was recorded on STATE Vs TAHIR ALI FIR NO. 42/12 PS. MAYA PURI Page No . 5 of 10 01.09.2022 wherein the accused denied the incriminating evidences appearing against him. Further vide order dated 11.10.2022 he chose not to lead any defence evidence.
16. Subsequently, final arguments from the counsel for accused and Ld. APP for the State were heard.
17. In the present matter, the accused is facing trial for the commission of offence of cheating on the ground that he along with his other associate, who has not been apprehended till today, has deceived the complainant to deliver Rs. 9500/- along with his mobile phone. Section 420 of IPC reads as under:-
"420. Cheating and dishonestly inducing delivery of property.- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
18. In the case in hand the identity of the accused being the person who cheated the complainant is very essential to be established by the prosecution. In the deposition of PW1 he has stated that he saw the accused at the time of arrest but STATE Vs TAHIR ALI FIR NO. 42/12 PS. MAYA PURI Page No . 6 of 10 only the instance of the concerned Investigating Officer. T h e r e f o r e , t h o u g h the identity of the accused was not disputed at the time of recording of evidence of the complainant, but the prosecution is bound to establish the identity of the accused.
19. Further, the TIP of the accused was got conducted wherein he refused to participate in the TIP for the reason that he has been shown to the witness at the police station. The said fact has been substantiated in the evidence of PW-1.
20. It is the settled proposition that identification of the accused in the court is a substantive piece of evidence. It is equally settled that the identification of the accused for the first time in the court is of no value unless supported by any prior identification proceedings like TIP. The substantive evidence, however, is the identification made by a witness in the Court. It has been authoritatively held that this evidence of identification required corroboration which should be made in the form of an earlier identification proceeding. Therefore, in a case where no such earlier test identification parade was held, but for the first time a witness identified the culprit in Court it would be unsafe to rely upon such evidence to hold the accused guilty.
STATE Vs TAHIR ALI FIR NO. 42/12 PS. MAYA PURI Page No . 7 of 10
21. In the judgment of Rajesh Kumar Babulal Sharma V. State of Maharashtra, 2002 (1) Mah LJ 484 (Bom). Hon'ble Apex court observed that :-
"it is a settled principle of law that in case of identification of a stranger by victim, the victim should get sufficient time and opportunity of seeing the culprit and thereafter impressing his features, identification marks, in his memory so as to allow him to recollect it at the time of test identification parade and thereafter in the Court".
22. In the case of Munshi Singh Gautam V. State of Madhya Pradesh, 2007(9); Supreme 42: 2004(7) SLT38:2004 (3) JCC 1816, it is held that:-
"Where identifying witness is a total stranger who had just a fleeting glimpse of person identified or who had no particular reason to remember the person concerned, no much evidentiary value can be attached to such identification in Court, if the identification is made for the first time in Court".
23. The accused was arrested on 11.05.2012 and his TIP was fixed for 08.06.2012. On the aspect of identification of the accused it is submitted by the prosecution that the accused refused to participate in TIP and therefore, adverse inference should be taken against him. In order to counter it, STATE Vs TAHIR ALI FIR NO. 42/12 PS. MAYA PURI Page No . 8 of 10 the defence relied on following judgments:
1. Mohd. Abdul Hafeez Vs. State of Andhra Pradesh AIR 1983 SC 367.
2. Subhash Shiv Shankar Vs. State of UP 1987 (2) SCR 962
3. State of Andhra Pradesh Vs. Dr. M.V.Ramana Reddy (1991) 4 SCC 536.
24. To sum up, the Hon'ble Supreme Court in the case of Mulla and Anr Vs. State of UP 2010 AIR SC 942, laid down the following principle regarding Test Identification Parade : (1) an identification parade ideally must be conducted as soon as possible to avoid any mistake on the part of witnesses; (2) this condition can be revoked if proper explanation justifying the delay is provided; and (3) the authorities must make sure that the delay does not result in exposure of the accused which may lead to mistakes on the part of the witnesses".
25. During TIP proceedings, the accused refused to participate on the ground that he has been shown to the complainant at the police station. In the present case PW1 deposed that he saw the accused for the first time in the police station after almost 2 months of the incident. The incident pertains to 29.03.2012 and TIP was fixed for 08.06.2012 that is after around more than 2 months of incident. Since the accused STATE Vs TAHIR ALI FIR NO. 42/12 PS. MAYA PURI Page No . 9 of 10 was already seen by the complainant before his TIP therefore the TIP can not be relied upon. In order to substantiate the defence, the accused relied on judgment of Hon'ble High Court of Delhi in case of Ram Kishan Vs. State ILR Delhi 409, wherein it is held that:-
"the stand of the accused in declining to take part in Test Identification Parade, on the plea that he had been shown to the witnesses, was thus justified and no adverse inference could be drawn against him on the account."
26. The cardinal principle of criminal law cannot be forgotten that the prosecution has to prove the case against accused beyond reasonable doubt. The standard of proof is not preponderance of probabilities but proof beyond reasonable doubt. It is well settled legal proposition that the any benefit of doubt goes in favour of the accused.
27. Accordingly, keeping in view the above discussion and materials available on record, I am of the considered view that in the absence of the proof of the identity of the accused, charges against the accused u/s 420 IPC is not proved by the prosecution beyond reasonable doubt. Hence, the accused Tahir Ali is acquitted for the allegations u/s 420 of Indian Penal Code.
(Milan Goel) MM-03 West/THC/Delhi 24.12.2022 STATE Vs TAHIR ALI FIR NO. 42/12 PS. MAYA PURI Page No . 10 of 10