Delhi District Court
State vs 1 Rahul @ Chirmanti (A-1) on 30 November, 2015
IN THE COURT OF MANOJ JAIN: ADDL SESSIONS JUDGE
FAST TRACK COURT: NORTH-WEST DISTRICT: ROHINI
DELHI
Unique Identification No. 02404R0355922013 Digitally
Sessions Case No. 07/1/14 signed by
MANOJ JAIN
FIR No. 397/2013 MANOJ Date:
PS Subhash Place
U/s 394/397/411/34 IPC & u/s 25/27/54/59 Arms Act
JAIN 2015.11.30
16:41:22
+0530
State versus 1 Rahul @ Chirmanti (A-1)
Son of Sh. Samay Singh,
Resident of Jhuggi No. 56/60,
Sant Ravidass Camp,
Shakur Pur, Delhi.
2 Vinay (A-2)
Son of Sh. Rajender,
Resident of L-467, Shakur Pur,
J.J. Colony, Delhi.
3 Md. Safik @ Md. Rafik (A-3)
Son of Md. Tofik,
Resident of D-31, Shakur Pur,
J.J. Colony, Delhi.
(Declared proclaimed offender
vide order dated 14.10.2015)
Date of institution in Sessions Court : 24.01.2014
Date of conclusion of arguments : 17.11.2015
Date of pronouncement of judgment : 23.11.2015
Memo of Appearance:
Sh. Sanjay Jindal, learned Addl. P.P. for State.
Ms. Sadhna Bhatia, learned Amicus Curiae for A-1 & A-2.
JUDGMENT
1 Complainant Sanika Munda, who hailed from Jharkhand, was working as a waiter in a hotel situated at Ramesh Nagar. On the night intervening 05.09.2013 & 06.09.2013, at about 12.00 night, he along with Rahul Soy (PW6) reached near M-Block, Shakur Pur at Road No. 43, Near DDA Office, A-Block Pubic Convenience. Three robbers i.e. accused herein were already stationed FIR No. 397/13 PS Subhash Place (State Vs. Rahul @ Chirmanti etc.) Page 1 there. Complainant Sanika Munda was carrying one bag which was containing Rs. 2,100/- in cash besides his wearing clothes and one LG Mobile Phone No. 9304821899. All the accused caught them. Said bag was snatched by them. Accused Rahul @ Chirmanti was also armed with a knife and he stabbed Rahul Soy (PW6) with such knife. After committing the aforesaid stabbing and robbery, all the three accused fled from the spot. On hearing shouts, Sonmani (PW10), wife of injured Rahul Soy also reached there. Injured was rushed to hospital by PCR vehicle.
2 Statement of complainant Sanika Munda was recorded and pursuant to the same, FIR was registered for commission of offences under Sections 394/397/34 IPC. Complainant also claimed that he could identify all the three robbers.
3 Investigation was carried out. On 09.09.2013, all the three accused were apprehended and their disclosure statements were recorded. They admitted their involvement in the present incident. Accused Rahul @ Chirmanti also got recovered one knife from his house which had been used by him in the incident in question. All the three accused were produced before the Court same day and request was made for holding of their test identification parade. They, however, refused to participate in such TIP. One day police custody (PC) of all the three accused was also given by the Court and accused Md. Safik got recovered the robbed bag from one park and accused Vinay got recovered purse of Rahul @ Soy which contained his identity documents and other papers. Investigation also revealed that the robbed mobile phone had been sold by accused Mohd. Safik to some unknown person. Blood sample of injured and knife recovered from accused, which was having blood stains, were sent to FSL, Rohini for DNA analysis.
4 All the three accused persons have been charge-sheeted for commission of offences under Sections 394/397/411/34 IPC & 25/27 Arms Act.
5 Charge-sheet was filed before the concerned Magisterial Court on 02.12.2013 and case was committed to the Court of Sessions vide order dated FIR No. 397/13 PS Subhash Place (State Vs. Rahul @ Chirmanti etc.) Page 2 20.01.2014 passed by learned Chief Metropolitan Magistrate (North-West), Rohini, Delhi.
6 Case was received on allocation by this Court on 24.01.2014.
7 All the three accused were ordered to be charged under Sections 394/34 IPC. Accused Mohd. Safik and Vinay were also ordered to be charged under Section 411 IPC. Accused Rahul @ Chirmanti was also separately charged under Section 397 IPC and also under Section 25/27 Arms Act. All the three accused pleaded not guilty and claimed trial.
8 Prosecution was directed to adduce evidence and has examined eleven witnesses who can be categorized as under: -
Public witness/injured/eyewitnesses
(i) PW6 Rahul Soy (injured/eyewitness).
(ii) PW10 Sonmani (wife of injured Rahul Soy).
Police officials/doctors/other witnesses
(i) PW1 Dr. Soma Roy (doctor who medically examined PW6 Rahul Soy)
(ii) PW2 HC Chet Lal (duty officer).
(iii) PW3 Ct. Ashok Kumar (police official who participated in investigation).
(iv) PW4 Ct. Sunil Kumar (police official who participated in investigation).
(v) PW5 Ct. Mukesh Kumar (police official who participated in investigation).
(vi) PW7 HC Subhash (PCR official).
(vii) PW8 HC Baldev (police official who participated in investigation).
(viii) PW9 SI Kalicharan Sharma (investigating officer).
(ix) PW11 Sh. Rajiv Sharda (Nodal Officer Reliance Communication who proved CDR of Mobile No. 9304821899)
9 It will be also pertinent to mention here that there was some inadvertent clerical error while framing the charges as the name of injured was mentioned as 'Sanika Munda' instead of 'Rahul Soy'. Charge was accordingly altered on 30.03.2015. Fresh charges were served upon the accused and they all, again, pleaded not guilty. They also claimed that they did not want to recall any witness after such alteration in charge.
10 It will be also pertinent to mention that accused Md. Safik absconded during the trial and he was declared 'proclaimed offender' vide order dated 14.10.2015.
FIR No. 397/13 PS Subhash Place (State Vs. Rahul @ Chirmanti etc.) Page 3 11 Statements of Rahul @ Chirmanti (A-1) and Vinay (A-2) were recorded under Section 313 Cr.P.C. They pleaded innocence and claimed that they had been falsely implicated. They, however, did not choose to lead any evidence in defence.
12 I have heard learned Addl. P.P. and Ms. Sadhna Bhatia, learned Amicus Curiae and carefully gone through the entire material available on record.
13 Sh. Jindal has contended that prosecution has been able to prove its case to the hilt. He has contended that there is no reason whatsoever to disbelieve the version of star witness i.e. PW6 Rahul Soy who has categorically identified the accused persons as well. He has also asserted that since the accused persons had refused to participate in TIP, adverse inference should be drawn against them. He has also contended that action of the police was prompt and quick and bloodstained knife as well as robbed bag and purse were recovered by the police which clearly suggests the complicity of the accused persons.
14 Ms. Bhatia has argued that police has falsely implicated both the aforesaid accused and they had no concern with the incident. She has also contended that accused persons were, unjustifiably and illegally, shown to the complainant party at the PS and, therefore, identity before the Court is meaningless. She has also claimed that there is no public witness despite the fact that alleged incident had taken place at a busy road. She has also claimed that it does not click to common sense that accused would keep the purse and other identification papers related to complainant and, therefore, even recovery is highly questionable and distrustful. She has also claimed that complainant/ informant Sanika Munda has not entered into witness box and, therefore, prosecution story does not stand proved at all.
15 I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record.
FIR No. 397/13 PS Subhash Place (State Vs. Rahul @ Chirmanti etc.) Page 4 16 I have carefully gone through the testimony on record and sequence of events, as per the case of prosecution, is as under:-
Date Event 06.09.2013 On the night intervening 05.09.2013 & 06.09.2013 at about 12.10 AM, incident of robbery takes place.
09.09.2013 (i) In the early hours, accused Rahul @ Chirmanti (A-1) is arrested in case FIR No. 382/13 u/s 389/411/34 IPC PS Subhash Place and he makes disclosure about his involvement in the present case.
Such disclosure statement is Mark PW8/A. Pursuant to such disclosure, accused Rahul @ Chirmanti is interrogated and arrested in the present case as well and he leads police to his house from where one bloodstained knife is recovered vide seizure memo Ex. PW4/C. As per prosecution, this knife was used by A-1 during the incident of robbery.
(ii) Accused Vinay (A-2) and Md. Safik (A-3) are also arrested.
(iii) Investigating agency moved application for holding of TIP of all the three accused and all the three accused refused to participate in TIP as per proceedings drawn by Sh. Ajay Nagar, learned Duty Magistrate.
(iv) PC remand for one day is given.
10.09.2013 (i) Robbed bag is got recovered from a park by accused Md. Safik vide seizure memo Ex. PW3/B.
(ii) Robbed purse belonging to injured Rahul Soy is recovered from the house of accused Vinay which is seized vide memo Ex. PW3/A. 17 Undoubtedly, the entire case of prosecution is dependent upon the testimony of complainant Sanika Munda and injured Rahul Soy. They both were together when the incident of stabbing and robbery had taken place. Process was sent to Sanika Munda on several occasions but prosecution failed to procure his attendance before the Court. However, injured Rahul Soy did enter into witness box and has also corroborated the case of prosecution.
18 Let me straightway come to the testimony of PW6 Rahul Soy. He has deposed that he was running a placement agency under the name and style of Pawan Putra Hanuman at Shakur Pur, J.J. Colony, Delhi. On 06.09.2013, he was FIR No. 397/13 PS Subhash Place (State Vs. Rahul @ Chirmanti etc.) Page 5 going to drop his brother Sanika Munda who was also carrying a bag containing some clothes and one mobile phone make LG and Rs. 21,000/- (sic). He claimed that when they reached near Road No. 43, DDA Office, three boys came from the front side and restrained them. One of them tried to snatch the bag of his brother Sanika Munda and when he objected, one other boy, who was having fatty built, caught hold of him (Rahul Soy) from his neck and third person then stabbed him with knife on his abdomen and snatched his purse which contained some visiting cards and documents and also his mobile phone make Nokia. Duty such stab injury, he became unconscious. After regaining consciousness, he along with his brother Sanika Munda went to his house where his family members made a call on 100 number and then he was taken to Bhagwan Mahavir Hospital where he was medically examined. He also claimed that police recorded his statement and during investigation, he had handed over receipt of purchase of mobile phone to the police. Such receipt has been proved by him as Ex. PW6/A. 19 In the witness box, PW6 Rahul Soy also identified all the three accused persons. He claimed that accused Rahul @ Chirmanti (A-1) was the one who had stabbed in his abdomen. He also identified accused Vinay (A-2), having fatty built, as the one who had caught hold of him from behind. He also identified accused Md. Safik (PO) as the one who had snatched the bag from his brother Sanika Munda. One black colour purse was also produced in sealed condition having seal of KC. It was opened up and shown to the witness. It was found containing photograph of PW6 Rahul Soy as well as some other documents and visiting card of Pawan Putra Hanuman Placement Service and PW6 Rahul Soy identified all such articles and these were collectively exhibited as Ex. P-1.
20 Ms. Bhatia has contended that testimony of PW6 Rahul Soy is not believable as it has come on record that incident had taken place at a busy area and it is not clear as to why there is no independent corroboration and why both the public witnesses did not raise any shouts for help? I, however, do not find any significant substance in such contention. Incident had taken place at very late hour of the night. Both the witnesses had left their house at about 11.45 PM on foot. Undoubtedly, place of occurrence is a busy area even as per PW6 Rahul Soy but I cannot be unmindful of the fact that due to odd hour, there was no FIR No. 397/13 PS Subhash Place (State Vs. Rahul @ Chirmanti etc.) Page 6 possibility of there being much traffic on the road. Merely because PW6 Rahul Soy and his brother Sanika did not shout for help, it cannot be robotically inferred that incident as such had not taken place. It was a traumatic experience for them and since one robber had even knife with him, even if the victims chose to remain mum, no adverse inference can be drawn. I have seen the site plan Ex. PW9/C. There is a DDA office situated at a short distance from the spot. PW6 Rahul Soy has admitted that they did not call chowkidar of the DDA Office for help. This also does not seem to be a fact which can, in itself, improbablize the entire incident. It needs to be noticed that due to stab injury, PW6 Rahul Soy had become unconscious and he regained consciousness after 15-20 minutes. He was stabbed in abdomen and, therefore, the prime concern was to inform the family and police and to seek medical attention. Since, house of PW6 Rahul Soy was situated at a distance of 100-150 steps from the spot, Sanika Munda rushed there first and when they were on their way to hospital, police met them.
21 PW10 Sonmani happens to be wife of injured Rahul Soy. She has deposed that at about 12.15 AM, Sanika Munda came to their house and stated that Rahul Soy had received knife injuries at Road No. 41, A-Block. She reached at the spot along with Sanika Munda where she saw her husband in injured condition and his clothes stained with blood.
22 PW10 Sonmani informed PCR and PCR van came and took her husband to Bhagwan Mahavir Hospital. PW7 HC Subhash was on duty on PCR Van Commander 28 and at about 1.20 AM, information was received by them through command room that one person had been attacked with knife in front of DDA Office, Shakur Pur. They immediately reached at the spot at about 1.24 AM and met injured who was having stab injury on his abdominal region. They took him to Bhagwan Mahavir Hospital. He also deposed that name of injured was Rahul Soy son of Laxman. MLC of injured Rahul Soy has been proved as Ex. PW1/A. As per such MLC, he was brought at Bhagwan Mahavir Hospital on 06.09.2013 at 1.30 AM by HC Subhash and injured was having history of physical assault by sharp object (stab wound). Injury was also opined to be dangerous. PW1 Dr. Soma Roy was Casualty Medical Officer and she has deposed that injured Rahul was brought by HC Subhash for medical examination and she has FIR No. 397/13 PS Subhash Place (State Vs. Rahul @ Chirmanti etc.) Page 7 also proved said MLC as Ex. PW1/A containing her signatures at point A. She deposed that she had noticed one stab wound on left side of abdomen measuring 3x0.5cm. She provided necessary treatment and thereafter referred the patient to SR Surgery where patient was examined by Dr. Nand Kishore.
23 When such type of sudden incident takes place, naturally, it causes alarm, panic and shock in the minds of victim and his family. In such a situation, minor contradictions can crop in but these cannot be given any real credence and significance. Defence has not been able to point out any material contradiction or inconsistency in the case of prosecution which may create any incredulity regarding the incident of robbery and regarding the complicity of accused.
24 Ms. Bhatia has, however, very strongly questioned the identification before the Court. As per her, such identification is worthless as the accused persons were shown to the witnesses at PS. 25 Let me consider such crucial aspect of the case.
26 PW9 SI Kalicharan Sharma happens to be the investigating officer of the case. He has deposed that on 06.09.2013 on receipt of DD No. 8B, he along with Ct. Sunil Kumar (PW4) reached the spot i.e. near Public Convenience DDA Office, Road No. 43, A-Block, Shakur Pur, J.J. Colony at about 12.30 AM. They did not find anyone at the spot. He was then telephonically informed by duty officer that injured had already been removed to Bhagwan Mahavir Hospital. He along with Ct. Sunil reached said hospital where they found Rahul Soy admitted in unconscious condition. As per MLC, injured Rahul Soy was unfit for statement at that point of time. Sanika Munda was present in the hospital and PW9 SI Kalicharan recorded his statement. Such statement has been proved as Ex. PW9/A and pursuant to such statement, rukka was prepared and was sent to PS for registration of FIR. FIR was recorded by PW2 HC Chet Lal who was working as duty officer at the relevant time. FIR has been proved as Ex. PW2/A. 27 Thereafter, PW9 SI Kalicharan came to the spot along with Sanika Munda and prepared site plan Ex. PW9/C. He also seized bloodstained T-shirt of FIR No. 397/13 PS Subhash Place (State Vs. Rahul @ Chirmanti etc.) Page 8 victim Rahul Soy from the hospital vide seizure memo Ex. PW4/N. 28 Now I switch over to the investigation which had taken place on 09.09.2013.
29 On 09.09.2013, HC Suresh Kumar informed IO about the arrest of accused Rahul @ Chirmanti in one other case of theft and he also told about the disclosure statement made by accused Rahul @ Chirmanti wherein he had admitted his involvement in the present incident as well. PW9 SI Kalicharan obtained copy of such disclosure statement (Mark PW8/A) and since accused Rahul (A-1) was already lodged in lockup of PS Subhash Place, he interrogated him and recorded his statement and arrested him in the present case. His arrest memo has been proved as Ex. PW4/M. Thereafter, accused led the police party to his jhuggi situated in Sant Ravidass Camp, Shakur Pur and got recovered one knife which he had kept in his jhuggi. Such knife was lying in the pocket of one pants. Accused also admitted that he had used said knife in the incident in question. Sketch of knife was prepared and it was seized.
30 At the instance of accused Rahul @ Chirmanti, accused Vinay was arrested who was at that time sleeping on a pavement near L-Block, DDA Market, Samrat Enclave. He was interrogated and his arrest memo and personal search memo were prepared. After such arrest, same day, accused Md. Safik was arrested who was found sleeping on the bench at C-Block Park, Shakur Pur. He was arrested vide seizure memo Ex. PW4/F and then all the three accused persons led them to the place of occurrence where pointing out memos were prepared. Accused were thereafter got medically examined and were put in lockup and were produced before the Court.
31 IO has also deposed that since witnesses had already claimed earlier that they could identify the accused, he moved an application for holding of TIP of accused. Accused were produced in the Court in muffled faces. However, all the accused persons refused to participate in TIP on 09.09.2013 itself. He also deposed that he obtained PC for one day of all the three accused and accused Md. Safik got recovered the robbed bag from E-Block Park, near CNG Pump FIR No. 397/13 PS Subhash Place (State Vs. Rahul @ Chirmanti etc.) Page 9 which contained clothes of Sanika Munda. Such bag was seized by him vide memo Ex. PW3/B. As per IO, robbed mobile could not be recovered as accused Md. Safik had claimed that such mobile phone was sold by him to some vagabond junk dealer. He also deposed that accused Vinay then led the police party to his house from where one purse was recovered which he had concealed beneath the heap of brick pieces. Such purse was found to be of Rahul Soy and it was containing his photograph and visiting card etc. It was seized vide memo Ex. PW3/A and such seized articles were kept in sealed pullanda and were sealed with the seal of KC.
32 Thus, as per the testimony of PW9 SI Kalicharan, accused Rahul @ Chirmanti was already in lockup in one another case and he was interrogated and he was arrested in the present matter. At his instance, two other co-accused were also arrested and then same day i.e. 09.09.2013 they all were produced before the Court in muffled faces where they refused to participate in TIP.
33 For the reasons best known to investigating agency and prosecution, no necessity was felt of citing Sh. Ajay Nagar, the then learned Duty Magistrate, as a witness who had conducted said TIP proceedings on 09.09.2013. Fact, however, remains that Ms. Bhatia does not dispute that accused persons had refused to participate in TIP on 09.09.2013. However, she has claimed that all the accused were justified in making such refusal as they had already been shown to the witnesses. I have carefully perused the entire case record and there is nothing on record which may indicate that accused persons had been ever shown to Rahul Soy.
34 As per TIP proceedings, accused persons were produced in the Court in muffled faces. When PW6 Rahul Soy was cross-examined, a question was put to him and he categorically denied that accused were shown to him at PS. He, however, also volunteered that they were shown to his brother Sanika Munda. I have already noticed above that Rahul Soy had received dangerous injuries and it seems that he never got any real chance to identify the accused during investigation. Moreover, accused themselves are to be blamed as they had refused to join TIP without any genuine reason.
FIR No. 397/13 PS Subhash Place (State Vs. Rahul @ Chirmanti etc.) Page 10 35 It is quite evident that Rahul Soy identified the accused in the dock for the first time after the robbery. Incident is of 06.09.2013 and his testimony was recorded in the court on 19.01.2015 and in his such testimony, he identified all the three accused persons correctly. I have not been able to find out anything appearing in the cross-examination of PW6 Rahul Soy which may show that at any previous point of time, he had also seen the accused persons during investigation in any manner much less in an unlawful manner. Moreover, once accused persons had refused to participate in TIP and when accused remained in PC, even if witnesses had been shown the accused persons, this would not, certainly, constitute any illegality or impropriety.
36 First time identification before the Court cannot be brushed aside. In this regard, reference be made to the judgment given in the case of Salim @ Naju vs State (Crl. Appeal 976/2012 DoD : 20 September, 2013) by Hon'ble Delhi High Court where the Hon'ble Bench got an opportunity to consider the aspect related to non-holding of TIP. Relevant extract of said judgment is as under:-
"19. Since the judgment in Kanta Prashad v. Delhi Admn. AIR 1958 SC 350, it is well settled that the purpose of holding Test Identification Parade is to test the statement of a witness made in the Court. The TIP which belongs to the investigation stage is conducted to assure the investigating agency that the investigation is proceeding in the right direction. A three Judge Bench of the Supreme Court in Sheikh Hasib v. State of Bihar (1972) 4 SCC 773 reiterated that it is only the identification of the accused in the Court which is a substantive evidence and the TIP is held during investigation to minimize the chances of memory to identifying witnesses fading away due to long lapse of time. In Dana Yadav v. State of Bihar AIR 2002 SC 3325, the Supreme Court culled out certain exceptions to the ordinary rule that identification of an accused for the first time in the Court is a weak type of evidence. Relying on State of Maharashtra v. Sukhdev Singh & Anr. (1992) 3 SCC 700 and Ronny @ Ronald James Alwaris v. State of Maharashtra (1998) 3 SCC 625, the Supreme Court noticed that where the witness had a chance to interact with the accused or where the witness had an opportunity to notice the distinctive features of the accused which lends assurance to his testimony in the Court, the evidence of identification in the court for the first time by such witnesses cannot be thrown away merely because any identification parade was not held. In the latest judgment of the Supreme Court in Kunjumon @ Unni v. State of Kerala 2012 (11) SCALE 212 relied upon by the learned APP while referring to its earlier judgments in Malkhan Singh v. State of Madhya Pradesh (2003) 5 SCC 746; Vijay @ Chinee v. State of Madhya Pradesh (2010) 8 SCC 191 and FIR No. 397/13 PS Subhash Place (State Vs. Rahul @ Chirmanti etc.) Page 11 State of Himachal Pradesh v. Lekh Raj & Anr. (2000) 1 SCC 247, the Hon'ble Supreme Court observed that mere failure to hold a TIP is not fatal to the prosecution case but the Trial Judge will need to be circumspect in accepting the identification of an accused by a witness in the Court if the accused is a stranger to the witness. The Supreme Court, therefore, relied upon the identification of the accused by the witness for the first time in the Court where the witness and the culprit were face to face. Paras 22 to 26 of the report are extracted hereunder:-
"22. A more useful and elaborate discussion on the subject is to be found in Malkhansingh v. State of Madhya Pradesh, (2003) 5 SCC 746 where the TIP is linked to the requirement of Section 9 of the Evidence Act, 1872 and coupled with the caution that in the absence of a TIP, the weight to be attached to the identification of the accused in Court is a matter for the courts of fact to decide.
23. Similarly, in Vijay @ Chinee v. State of Madhya Pradesh, (2010) 8 SCC 191after a discussion on the subject, it was concluded that, "... ... the test identification is a part of the investigation and is very useful in a case where the accused are not known beforehand to the witnesses. It is used only to corroborate the evidence recorded in the court. Therefore, it is not substantive evidence. The actual evidence is what is given by the witnesses in the court."
It was noted in Vijay with reference to State of Himachal Pradesh v. Lekh Raj, (2000) 1 SCC 247 that the holding of a TIP is "a rule of prudence which is required to be followed in cases where the accused is not known to the witness or complainant."
24. We have gone into some detail on this issue because of the unfortunately cursory manner in which the matter has been dealt with by the Trial Judge and the High Court.
25. The sum and substance of the various decisions referred to above and others on the same lines is that the failure to hold a TIP is not fatal to the case of the prosecution, but the Trial Judge will need to be circumspect in accepting the identification of an accused by a witness in Court if the accused is a stranger to the witness.
26. In the present case, we are not dealing with the evidence of any ordinary witness - we are dealing with a victim of a crime, someone who was directly at the receiving end of the actions of the appellant and who came face to face with the threat and intimidation by the appellant. The evidence of such a victim of a crime must be placed, in our opinion, on a somewhat higher pedestal, in terms of the credibility attached to it, than the evidence of any other witness. We need to seriously consider a partial shift in focus in the "proper administration of justice" by including not only the "life and liberty of an accused" but issues of victimology and the treatment of victims. Theories concerning criminal law and the administration of criminal justice are fast developing and we need to keep up with these developments."
20. The importance of holding TIP was highlighted by the Supreme Court in Dana Yadav relied upon by the learned counsel for the appellants. In para 6 to 8, the Supreme Court held as under:
FIR No. 397/13 PS Subhash Place (State Vs. Rahul @ Chirmanti etc.) Page 12 "6. It is also well settled that failure to hold test identification parade, which should be held with reasonable dispatch, does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law. Question is, what is its probative value? Ordinarily, identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous identification in the test identification parade or any other evidence. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. If a witness identifies the accused in court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence. We are fortified in our view by a catena of decisions of this Court in the cases of Kanta Prashad v. Delhi Admn. AIR 1958 SC 350.
7. Apart from the ordinary rule laid down in the aforesaid decisions, certain exceptions to the same have been carved out where identification of an accused for the first time in court without there being any corroboration whatsoever can form the sole basis for his conviction. In the case of Budhsen [(1970) 2 SCC 128 : 1970 SCC (Cri) 343] it was observed:
"There may, however, be exceptions to this general rule, when for example, the court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration."
8. In the case of State of Maharashtra v. Sukhdev Singh [(1992) 3 SCC 700 : 1992 SCC (Cri) 705] it was laid down that if a witness had any particular reason to remember about the identity of an accused, in that event, the case can be brought under the exception and upon solitary evidence of identification of an accused in court for the first time, conviction can be based. In the case of Ronny [(1998) 3 SCC 625 : 1998 SCC (Cri) 859] it has been laid down that where the witness had a chance to interact with the accused or that in a case where the witness had an opportunity to notice the distinctive features of the accused which lends assurance to his testimony in court, the evidence of identification in court for the first time by such a witness cannot be thrown away merely because no test identification parade was held. In that case, the accused concerned had a talk with the identifying witnesses for about 7/8 minutes. In these circumstances, the conviction of the accused, on the basis of sworn testimony of witnesses identifying for the first time in court without the same being corroborated either by previous identification in the test identification parade or any other evidence, was upheld by this Court. In the case of Rajesh Govind Jagesha[(1999) 8 SCC 428 : 1999 SCC (Cri) 1452] it was laid down that the absence of test identification parade may not be fatal if the accused is sufficiently described in the complaint leaving no doubt in the mind of the court regarding his involvement or is arrested on the spot immediately after the occurrence and in either eventuality, the evidence of witnesses identifying the accused for the first time in court can form the basis for conviction without the same being corroborated by any other evidence and, accordingly, conviction of the accused was upheld by this Court. In the case of State of H.P. v. Lekh Raj [(2000) 1 SCC 247 : 2000 SCC (Cri) 147] it FIR No. 397/13 PS Subhash Place (State Vs. Rahul @ Chirmanti etc.) Page 13 was observed that ".....test identification is considered a safe 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. There may, however, be exceptions to this general rule, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely without such or other corroboration".
In that case, laying down the aforesaid law, acquittal of one of the accused by the High Court was converted into conviction by this Court on the basis of identification by a witness for the first time in court without the same being corroborated by any other evidence. In the case of Ramanbhai Naranbhai Patel [(2000) 1 SCC 358 : 2000 SCC (Cri) 113] it was observed:
"It, therefore, cannot be held, as tried to be submitted by learned counsel for the appellants, that in the absence of a test identification parade, the evidence of an eyewitness identifying the accused would become inadmissible or totally useless;
Whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case." The Court further observed "....the fact remains that these eyewitnesses were seriously injured and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well remain imprinted in their minds especially when they were assaulted in broad daylight".
In these circumstances, conviction of the accused was upheld on the basis of solitary evidence of identification by a witness for the first time in court."
37 Taking note of observations appearing in said judgement and other related aspects on the issue of TIP, following propositions can be safely culled out:-
a) Test identification parade (TIP) is a part of the investigation and is very useful in a case where the accused are not known beforehand to the witnesses. It assures the investigating agency that the investigation is proceeding in the right direction. TIP is held during investigation to minimize the chances of memory to identifying witnesses fading away due to long lapse of time.
b) Identification of the accused in the Court is a substantive evidence. The previous identification in the test identification parade is a rule of prudence and not law. It simply acts as a check valve to the evidence of identification in court of an accused by a witness.
c) Mere failure to hold a TIP is not ipso facto fatal to the prosecution case but the court will need to be circumspect in accepting the identification of an accused by a witness in the Court if the accused is a stranger to the witness.
d) Where the witness had a chance to interact with the accused or where the witness had an opportunity to notice the distinctive features of the accused which lends FIR No. 397/13 PS Subhash Place (State Vs. Rahul @ Chirmanti etc.) Page 14 assurance to his testimony in the Court, the evidence of identification in the court for the first time by such witnesses cannot be thrown away merely because any identification parade was not held.
e) Substantive evidence of identification in Court after a long lapse of time may be a weak piece of evidence in absence of previous TIP. However, even such evidence can be admitted if sufficiently explained and corroborated.
f) Whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case.
g) A witness, who also receives injuries and who had a chance to see the faces of the offenders, would be an important aspect as identity would well remain imprinted in his mind.
38 I also want to add right here that as far as complainant Sanika Munda is concerned, he had given the description of all the three robbers. He claimed that one of the robbers was having long hair and was of medium built. The second one was having wheatish complexion and was wearing knee length pants. He also described the third robber, who had stabbed Rahul Soy, as the one falling in the age group of 22-23 years having wheatish complexion. He was also very categoric and claimed that he could identify all the three robbers, if shown to him.
39 Statement of Rahul Soy was also recorded by the investigating agency but it is not elucidated by the Prosecutor as to why signatures of Rahul Soy were obtained on such statement. Such statement is not required to be signed by the maker in terms of Section 162 Cr.P.C.
40 Be that as it may, in such statement, even Rahul Soy had claimed that three robbers had come from front side and stopped them and one of them started snatching the bag of Sanika Munda and when he (Rahul Soy) resisted, one stout built boy (mota ladka) caught him by the neck and one slim boy, who was having long hair, gave knife blow on his abdominal region and snatched his purse and mobile phone. He also claimed that all such three robbers had robbed them. Undoubtedly in such statement, it is not mentioned that he could identify those robbers but simultaneously, he also never asserted therein that he was not in a position to identify those robbers. Rather, he had given the salient description of the offenders. At best, such statement is silent over the aspect of identification.
FIR No. 397/13 PS Subhash Place (State Vs. Rahul @ Chirmanti etc.) Page 15 When his deposition was recorded during the trial, PW6 Rahul Soy categorically identified all the three accused persons. He also claimed that accused Rahul @ Chirmanti was the one who had stabbed him. He also identified accused Vinay as the one having fatty built and he also claimed that Mohd. Safik was the one who had snatched the bag from his brother Sanika Munda. Defence never bothered to confront him in this regard with his previous statement in any manner whatsoever. Rahul Soy is found to be very categoric and specific and he, in his cross- examination, claimed that accused were never shown to him at PS. He is found to be candid and honest in his deposition as he admitted that the accused were shown to his brother at PS. He, however, out-rightly denied that he was with his brother Sanika Munda at that point of time when these accused were allegedly shown to Sanika Munda at PS. Thus, from the evidence appearing on record, I do not have even the slightest doubt in my mind in coming to conclusion that accused herein are the same robbers.
41 The identification before the Court for the first time, after the incident, cannot be said to be without any substance in the peculiar facts and circumstances of the present case. Incident was of 06/09/2013 and PW6 Rahul Soy identified the robbers on 19/01/2015. Thus, even the interval between the two dates is not that big. Moreover, PW6 Rahul Soy seems confident every inch and his such identification cannot be faltered with and doubted on any ground whatsoever.
42 Before parting, I would also like to submit that the manner in which the case diary was maintained by the concerned IO is not in good taste. The case diary was found containing pages and statements in a very haphazard manner and no necessity was felt in recording the same in a proper chronological sequence as per the diary number. This aspect is very important and needs to be supervised by the concerned quarter on regular basis. The statements u/s 161 Cr.P.C. should also be recorded in the running case diary and not separately. This way, no one would get any chance of raising accusing fingers towards police attributing any fabrication. A copy of this order be, therefore, sent to DCP, North-West, for his information and necessary action in the matter.
FIR No. 397/13 PS Subhash Place (State Vs. Rahul @ Chirmanti etc.) Page 16 43 When accused Rahul @ Chirmanti was arrested, he also got recovered knife from his house. Seizure memo of knife is Ex. PW4/C. Such knife was sent to FSL but unexpectedly, the same has not been received back from FSL despite the lapse of two years. Indeed, FSL is heavily over burdened, but nonetheless, the time it has already taken for requisite analysis is inordinate. Since the knife has not been produced during the trial, it will not be possible for this Court to handout any conviction to accused Rahul @ Chirmanti for offence u/s 25 and 27 Arms Act.
44 I would hasten to supplement right here that as regards recovery of knife and stolen articles, Ms. Bhatia has contended that such recovery is planted and should not be believed. She has also argued that if prosecution case is to be believed, then all the accused were clever robbers and if that being so, why would they keep a blood stained knife and useless personal identification documents of victim with them to ensure their implication and certify their complicity in the matter. Incident was of 06/09/2013 and the blood stained knife was recovered in the early hours of 09/09/2013 and, therefore, the hiatus is not that big which can give any reason to suspect the recovery. It is quite possible that accused did not get much time to throw away the same or wash the blood.
45 From the possession of accused Vinay, one purse was recovered. It was also concealed by him beneath the bricks on the roof of his house and such purse was containing visiting card of placement agency of Rahul Soy, his voter ID card etc. and all these articles were immediately sealed with the seal of "KC". Seizure memo in this regard has been proved as Ex. PW3/A. During trial, such sealed pullanda was produced before the court in intact condition. It was opened- up in the presence of PW Rahul Soy and then he identified his purse and other articles which were collectively exhibited as Ex.P1. These articles were not shown to the witness during the investigation at all. Of course, no public person was joined when such recovery took place on 10/09/2013 but that by itself would not mean that entire recovery is liable to be discarded. Undoubtedly, the corroboration from neutral corner is always welcome as the same gives a strong impetus to the case of prosecution but merely because no efforts were made in this regard, I would not be able to belie and nullify the recovery. Certainly, the FIR No. 397/13 PS Subhash Place (State Vs. Rahul @ Chirmanti etc.) Page 17 investigating officer should have been extra vigilant in this regard but at the same time, accused cannot be permitted to dig out any advantage emanating from the omission on this score.
46 CDR of mobile number 9304821899 does not seem to be of much utility because same is found to be for the period 01/09/2013 to 05/09/2013 only whereas the incident had taken place on 06/09/2013 though at the very early hours of the day. Last registered call as per such CDR is of 16:03:37 hours. Quite possibly, there may not be any use of mobile after such last call. Be that as it may, such CDR does not serve the cause of defence either.
47 In view of my foregoing discussion, it becomes apparent that accused Rahul @ Chirmanti and Vinay along with their absconding accused had committed the robbery in question. Though the knife, as such, has not been produced from FSL yet it stands amply proved that while committing the robbery, the knife was used by accused Rahul @ Chirmanti. As per Section 397 IPC, if at the time of committing robbery or dacoity, the offender uses any deadly weapon or causes grievous hurt to any person or makes any attempt to cause death or grievous hurt to any person, such offender would be liable to be punishment for a minimum period of seven years. Here, the injury is dangerous in nature as per medical opinion. It is on a very vital part of the body i.e. abdominal region. Moreover, knife certainly falls within the definition of 'deadly weapon'.
48 As per illustration (a) appended to Section 114 of Indian Evidence Act, any person, who is found in possession of stolen goods after the theft, is either a thief or has received goods knowing those to be stolen unless he can account for such possession. Here, the stolen purse was recovered from the possession of accused Vinay which further strengthens the fact that accused Vinay was also one of those robbers. Since he has been held to be a robber, there is no requirement of convicting him further u/s 411 IPC.
49 Resultantly, accused Rahul @ Chirmanti is held guilty and convicted for offences u/s. 394/34 IPC read with sec 397 IPC. Accused Vinay is held guilty for offence u/s 394/34 IPC.
FIR No. 397/13 PS Subhash Place (State Vs. Rahul @ Chirmanti etc.) Page 18 50 As far as proclaimed offender Mohd. Safik is concerned, the matter would be taken up again as and when he is apprehended and brought before the Court.
Announced in the open Court (MANOJ JAIN) On this day of 23rd November 2015. Addl. Sessions Judge (FTC) North-West District: Rohini: Delhi FIR No. 397/13 PS Subhash Place (State Vs. Rahul @ Chirmanti etc.) Page 19 FIR No. 397/2013 PS Subhash Place State Vs. Rahul @ Chirmanti etc. Monday, November 30 2015 Present: Sh. Sanjay Jindal, learned Addl. P.P. for State.
A-1 & A-2 in JC with Ms. Sadhna Bhatia, learned Amicus Curiae.
1 Heard further arguments on sentence.
2 Learned Addl. P.P. has prayed for maximum sentence for both the convicts as such incidents are on rise and such offenders need to be dealt with stern hands. He states that no leniency may be shown to the convicts as they dared to rob hapless victims while armed with deadly weapon.
3 Ms. Bhatia has, on the other hand, prayed for compassion.
4 Details of previous involvements of convicts, if any, were also called and as per report submitted on record, it is noticed that convict Rahul @ Chirmanti is having involvement in eleven other cases while his co-convict Vinay is found involved in four other cases. They have even been held guilty in some of such cases.
5 Such incidents of robbery are, indubitably, swelling and expanding at an alarming rate in capital city. A message, actually, needs to percolate so that any such person, having wicked and roguish plans to commit any such act, thinks twice before indulging into the same.
6 Convict Rahul @ Chirmanti has been held guilty for commission of offence under Section 394/34 IPC r/w Section 397 IPC and convict Vinay for commission of offence under Section 394/34 IPC. Offence under Section 394 IPC invites imprisonment for life or rigorous imprisonment for 10 years. Section 397 IPC does not create any specific offence and it merely prescribes minimum imprisonment, that too rigorous, for not less than seven years.
7 However, I cannot be oblivious of the young age of both the convicts.
FIR No. 397/13 PS Subhash Place (State Vs. Rahul @ Chirmanti etc.) Page 20 As per conviction slips, they were 22 years of age at the time of alleged incident. They both are reportedly unmarried.
8 Keeping in mind the overall facts and circumstances of the case and taking stock of the aggravating mitigating factors, I sentence both the convicts to rigorous imprisonment for a period of seven years with fine of Rs. 10,000/- each. In default of payment of fine, they would further undergo SI for three months.
9 Both the convicts would be entitled to benefit of Section 428 Cr.P.C.
10 Both the convicts be sent to jail under appropriate warrants.
11 A copy of the judgment and order on sentence be given free of cost to both the convicts.
12 Superintendent (Jail) would also ensure that in case convicts seek any legal aid for the purposes of filing of an appeal, immediate and requisite help is provided to them. A separate copy of this order be sent to him.
13 Ms. Bhatia has also stated that she may be permitted to hand over the copy of the charge-sheet to convict Vinay to enable the convicts to do the needful for the purpose of filing appeal. She is permitted.
14 File be consigned to Record Room.
Announced in the open Court
On this 30th November 2015 (MANOJ JAIN)
Addl. Sessions Judge (FTC)
North-West Distt: Rohini: Delhi
FIR No. 397/13 PS Subhash Place (State Vs. Rahul @ Chirmanti etc.) Page 21