Delhi District Court
State vs . Kishan & Ors. on 6 April, 2021
IN THE COURT OF METROPOLITAN MAGISTRATE-04,
WEST DISTRICT, TIS HAZARI COURT, DELHI
PRESIDING OFFICER : SH. ABHINAV PANDEY.
STATE VS. KISHAN & ORS.
FIR NO.54/10
PS: KHYALA
U/S: 392/394/411/34 IPC
JUDGMENT
New Case no. : 68852/16
Date of commission of offence : 10.04.2010
Date of institution of the case : 13.08.2010
Name of the complainant : Sh. Salman S/o Mohd.
Aslam, R/o: RZB-340,
Nihal Vihar, Delhi.
Name of accused and address :
persons Kishan S/o Sh. Puneet
Kumar, R/o: H. No. D-13,
Gali No. 2, Dharampuri,
Khyala, Delhi.
Offence complained of or proved : 392/394/34 IPC
Plea of the accused persons : Pleaded not guilty
Final order : Acquitted of all charges
Date on which reserved for judgment : 27.03.2021
Date of judgment : 06.04.2021
*****************************************************************************************************************
1. BRIEF FACTUAL BACKGROUND OF THE CASE:
1. 1 This is the prosecution of accused namely Kishan S/o Sh. Puneet FIR No.54/10, PS Khyala State Vs. Kishan Page No. 22 Kumar, R/o: H. No. D-13, Gali No.2, Dharampuri, Khyala, Delhi pursuant to the charge sheet filed by PS Khyala alleging commission of offences U/s 392/394/34 IPC, subsequent to the investigation carried out by them in FIR No.54/10.
1.2 As per the prosecution, on 10.04.2010 at about 10.00 PM near Bijli Ghar, 830 Bus Stand, JJ Colony, Khyala, Delhi, accused Kishan along with one another accomplice Ajay (CCL) caused hurt to the complainant Sh. Salman while committing theft of his mobile phone make Nokia C2206, cash of Rs. 1,500/- and some papers. It is further alleged that later on, the accused alongwith his accomplice Ajay (CCL) was apprehended with the help of police officials and the aforesaid cash of Rs.
1500/- and some papers alongwith the aforementioned mobile phone were recovered from the possession of accused Kishan. Accordingly, after the investigation, police filed the present charge sheet against the accused persons for commission of offences punishable U/s 392/394/34 IPC. Co- accused Ajay, being a juvenile at the time of commission of the offence, was forwarded to the concerned Juvenile Justice Board.
1.3 Complete set of charge sheet and other documents were supplied to the accused. After hearing the arguments, charges for the offences punishable under section 392/394/34 IPC were framed against the accused, to which he pleaded not guilty, and claimed trial.
2. MATERIAL EVIDENCE IN BRIEF:
2.1 The prosecution, in support of the present case, has examined eight witnesses in total.
S. No. Name of Documents Dates of Dates of
Prosecution Exhibited in examinatio cross-
witnesses. Evidence. n in chief. examinatio
n.
FIR No.54/10, PS Khyala State Vs. Kishan Page No. 22
PW-1 Mohd. Salman (I) Complaint Ex. 17.09.2015 13.12.2019
PW1/A; &
(II) Site plan Ex. 14.03.2016
PW1/B;
(III) Arrest memo
of CCL Ajay Ex.
PW1/C;
(IV) Seizure
memo of mobile
phone Ex.
PW1/D;
(V) Pointing out
memo of place of
incident Ex.
PW1/E;
(VI) Personal
search of CCL
Ajay Ex. PW1/F;
(VII) Arrest memo
of accused
Kishan Ex.
PW1/G;
(VIII) Personal
search memo of
accused Kishan
Ex. PW1/H;
(IX) Seizure
memo of articles
recovered from
the accused
Kishan Ex. PW1/I'
(X) Place of
incident shown by
the accused
Krishan Ex.PW1/J
&
(XI) Punchnama
Ex. P1,
Photographs
Mark P-2.
PW-2 HC Yasin Khan (I) Copy of FIR 04.12.2015 04.12.2015
Ex. PW2/A; .
FIR No.54/10, PS Khyala State Vs. Kishan Page No. 22
(II) Endorsement
on rukka Ex.
PW2/B;
(III) Copy of DD
No.57 A recorded
by Ct. Mahavir
Ex. PW2/C
PW-3 HC Jaipal (I) Disclosure 14.05.2018 14.05.2018
statement of Ex.
PW3/A.
PW-4 Ct. Deepak (I) Disclosure 14.05.2018 10.07.2019
statement of
juvenile Ajay Ex.
PW4/A.
PW-5 ASI Dharmender (I) Rukka Ex. 28.01.2019 13.12.2019
PW5/A.
PW-6 Retd. SI Sita Ram (I) Application for 28.01.2019 13.12.2019
sending the .
accused in JC Ex.
PW6/A.
PW-7 Shamshu Haq (I) Complaint Ex. 10.07.2019 10.07.2019
PW1/A.
PW-8 Retd. SI Gurpdeep (I) Site plan Ex. 04.09.2019 04.09.2019
Singh PW8/A;
(II) Site plan of
place of recovery
Ex. PW8/B;
(iii) Seizure memo
of mobile phone
Ex. PW8/C &
(iv)Seizure memo
photocopy of
mobile receipt
Ex. PW8/D.
2. 2 No other witness was examined, hence PE was closed vide order dated 13.12.2019.FIR No.54/10, PS Khyala State Vs. Kishan Page No. 22
3. STATEMENT OF THE ACCUSED U/S 313 Cr.P.C :
3.1 Statement of accused Kishan was recorded U/s 313 Cr.P.C wherein all the incriminating circumstances appearing in evidence were put to him, to which he pleaded innocence and stated that he has been falsely implicated in the present matter, and has nothing to do in connection with this case. Accused opted not to lead any defence evidence.
4. ARGUMENTS:
4.1 Ld. APP for State has argued that the prosecution witnesses have supported the prosecution, and their testimony has remained unrebutted, and that on a combined reading of the testimony of the prosecution witnesses, offences U/s 392/394/34 IPC are proved beyond reasonable doubt, against the accused Kishan.
4.2 On the other hand, Ld. Counsel for the defence has stated that there is no legally sustainable evidence against the accused, and he has been falsely implicated in the present case. It is further argued that prosecution has failed to prove the case against the accused beyond reasonable doubt, and in view of the same, the accused Kishan deserves to be acquitted.
5. BRIEF STATEMENT OR THE REASONS FOR DECISION:-
5.1 Arguments adduced by Ld. APP for State and Ld. Defence Counsel for the accused have been heard. Evidence and documents on record have been perused carefully.
5.2 I have bestowed my thoughtful consideration to the rival FIR No.54/10, PS Khyala State Vs. Kishan Page No. 22 submissions made before me. Accused persons are indicted for the offences U/s 392/394/34 IPC.
Indian Penal Code 1860
383. Extortion.--Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property, or valuable security or anything signed or sealed which may be converted into a valuable security, commits "extortion".
390. Robbery.--In all robbery, there is either theft or extortion.
When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause, to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear, then and there to deliver up the thing extorted.
Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
392. Punishment for robbery.--Whoever commits robbery, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed FIR No.54/10, PS Khyala State Vs. Kishan Page No. 22 on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Section 34 of Indian Penal Code states that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. Thus, this provision stresses upon the existence of common intention as well as participation of each accused by committing a 'criminal act', not necessarily in itself amounting to an offence. Common intention may be proved by conduct, as it can be formed in the course of occurrence itself, and there is no need to specifically prove a pre- meditation or prior conspiracy [Abdulla Kumhi Vs. State of Kerala, AIR 1991 SC 452, Hari Om Vs. State of U.P. (1993) 1 Crimes 294 (SC)].
5.3 Points for determination in the present case are as follows:
(i) Whether the complainant was present at the spot of occurrence at the relevant point of time?
(ii) Whether the complainant was put in the fear of injury, and was thereby, dishonestly induced to deliver any property or valuable security, at the spot of occurrence, at the relevant point of time?
(iii) Whether the complainant was put in fear of instant death, hurt or wrongful restraint, while commission or attempt at commission of robbery?
(iv) Whether the complainant was actually voluntarily caused hurt in commission, or attempt at commission of robbery?FIR No.54/10, PS Khyala State Vs. Kishan Page No. 22
(v) Whether the accused, was present at the spot of occurrence, and no person other than the accused could possibly have committed the offence?
(i) Whether the complainant was present at the spot of occurrence at the relevant point of time?
Complainant Mohd. Salman has stated in his examination in chief that on 10.04.2010, at around 10.00 pm, he was present at Shani Bazar, near 830 Bus Stand, Khyala, as he went there to purchase some household articles. As per the complainant, PW-1, after the incident, he went to his house, narrated the entire incident to his cousin Shamshul, called police at 100 number, and then again went to the place of occurrence with his cousin brother, and till that time PCR van and police officials reached at the spot of occurrence. The complainant deposes to have given statement Ex. PW1/A to the police, and to have signed it at Point A. The complainant also states to have shown the place of occurrence to the police, and to have signed the site plan Ex. PW1/B at point A. The same is further corroborated by the statement of PW-2 duty officer HC Yasin Khan, who has proved DD No. 57A as Ex. PW2/C. Remaining prosecution witnesses came at the spot of occurrence after the call to police, and have deposed that the complainant was present at the spot alongwith his cousin Shamshul Haq, and that complainant had stated to them that after the incident, he went home, called the police and returned to the scene of occurrence. No question has been asked by the defence in cross-examination about the presence of the complainant at the spot of occurrence, at the time of the alleged incident, and no clinching evidence has been brought by the defence to dispute the presence of the complainant at the spot of occurrence, when the offence was committed, and therefore, the presence of the complainant at the spot of occurrence, at the time of commission of offence, stands established.
FIR No.54/10, PS Khyala State Vs. Kishan Page No. 22Points no. (ii) Whether the complainant was put in the fear of injury, and was thereby, dishonestly induced to deliver any property or valuable security, at the spot of occurrence, at the relevant point of time?, (iii) Whether the complainant was put in fear of instant death, hurt or wrongful restraint, while commission or attempt at commission of robbery? and (iv) Whether the complainant was actually voluntarily caused hurt in commission or attempt at commission of robbery? are being discussed together.
PW-1 Mohd. Salman has stated in his examination in chief that on 10.04.2010, at about 10:00 PM, he was in Shani Bazar to purchase some household articles and was also talking on his mobile phone. He stated that suddenly two boys came from his behind, caught him and forcibly tried to snatch away his mobile phone and dragged him forcibly near the power house situated there, as there were public persons in the market, but the place near the power house was lonely and no public person was present there. He has further stated that one of the accused persons hit him with his head on the head of the complainant / witness, and that the second person slapped him for a number of times on his face. He has further stated that thereafter, the first person put his hand forcibly in the left side back pocket of the trousers of the complainant, and took away his purse, having some documents and cash amounting to Rs. 1,500/-. The witness further states that the second boy snatched away his mobile phone make Tata Indicom mobile C-2206, black colour having sim card with mobile No. 9278129867. Witness states that after snatching away his articles, the accused persons again slapped and pushed him, and ran away from the spot.
Even though the complainant states to have given information to the police immediately, no medical examination of the complainant got conducted, no MLC showing any abrasions (due to dragging) or swelling (due to being hit on head) or tenderness (due to being slapped on face) got exhibited in evidence, and no medical witness has been produced to testify. In such a situation, the claim of hurt being caused to the FIR No.54/10, PS Khyala State Vs. Kishan Page No. 22 complainant, or injuries being suffered by him comes under a shadow of doubt, and therefore, the prosecution has failed to establish the charge u/s 394 of IPC.
(v) Whether the accused, was present at the spot of occurrence, and no person other than the accused could possibly have committed the offence?
The complainant Mohd. Salman has mentioned that the accused persons were two boys who looked around 18 to 20 years of age, and they looked like "Madrasi". He has also stated that the heights of both the boys must have approximately been around 5'5' and 5'6" and they were of normal physique.
The accused persons, admittedly, are not known to the complainant or any of the prosecution witnesses. As per the prosecution story, the accused Ajay was arrested upon a regular search operation in the area, and accused Kishan was arrested, when he was present in the police station. The mobile phone of the complainant, allegedly robbed by the accused persons was not put on location tracking. Test identification parade of the accused persons was never conducted in the presence of a Magistrate. In such a situation, there comes to the fore, a missing link in the prosecution story regarding how the accused persons were immediately tracked and apprehended.
In case titled as Dana Yadav @ Dahu & others Vs. State of Bihar (2002), it has been held by the Hon'ble Supreme Court of India that:-
" Section 9 of the Evidence Act deals with relevancy of acts necessary to explain or introduce relevant facts. It says, inter alia, that FIR No.54/10, PS Khyala State Vs. Kishan Page No. 22 facts which establish the identity of any thing or person whose identity is relevant, in so far as they are necessary for the purpose, are .relevant. So the evidence of identification is a relevant piece of evidence under Section 9 of the Evidence Act where the evidence consists of identification of the accused at his trial. The identification of an accused by a witness in court is substantive evidence, whereas evidence of identification in a test identification parade is, though primary evidence, but not substantive one, and the same can be used only to corroborate the identification of the accused by a witness in court, it being governed essentially by the provision of Section 162 Cr.P.C. In Vaikuntam Chandmppa and Ors. v. State of Andhra Pradesh, [AIR 1960 SC 1340] the Honble Supreme Court observed that the substantive evidence of a witness is his statement in court, but the purpose of test identification is to test that evidence, and the safe rule is that the sworn testimony of witnesses in court as to the identity of the accused who are stranger to the witnesses, generally speaking, requires corroboration which should be in the form of an earlier identification proceeding, or any other evidence. The law laid down in the aforesaid decision has been reiterated by the Honble Supreme Court in [Budhsen and Anr. v. State of U.P., (1970 2 SCC 128), Sheikh Hasib alias Tabarak v. The State of Bihar, (1972 4 SCC 773), Bollavaram Pedda Narsi Reddy and Ors. v. State of Andhra Pradesh, (1991 3 SCC
434), Ronny alias Ronald James Alwaris and Ors. v. State of Maharashtra, (1998 3 SCC 625) and Rajesh Govind Jagesha v. State of Maharashtra, (1999 8 SCC 428)].
Hon'ble Supreme Court in its case titled as Raja Vs. State By the Inspector of Police in Crl. Appeal No. 740 of 2018 has stated that, "It has been accepted by this Court that what is substantive piece of evidence of identification of an accused, is the evidence given during the trial. However, by the time the witnesses normally step into the box to depose, there would be substantial time gap between the date of the incident and the actual examination of the witnesses. If the accused or the suspects were known to the witnesses from before and their identity was never in doubt, the lapse of time may not qualitatively affect the evidence FIR No.54/10, PS Khyala State Vs. Kishan Page No. 22 about identification of such accused, but the difficulty may arise if the accused were unknown. In such cases, the question may arise about the correctness of the identification by the witnesses. The lapse of time between the stage when the witnesses had seen the accused during occurrence and the actual examination of the witnesses may be such that the identification by the witnesses for the first time in the box may be difficult for the court to place complete reliance on. In order to lend assurance that the witnesses had, in fact, identified the accused or suspects at the first available opportunity, the TIP which is part of the investigation affords a platform to lend corroboration to the ultimate statements made by the witnesses before the Court. However, what weightage must be given to such TIP is a matter to be considered in the facts and circumstances of each case".
It is well settled that identification parades are held ordinarily at the instance of the investigating officer for the purpose of enabling the witnesses to identify either the properties which are the subject matter of alleged offence, or the persons who are alleged to have been involved in the offence. Such tests or parades, in ordinary course, belong to the investigation stage and they serve to provide the investigating authorities with material to assure themselves if the investigation is proceeding in the right direction. In other words, it is 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. Reference in this connection may also be made to the decisions of Hon'ble Supreme Court in [Rameshwar Singh v. State of Jammu & Kashmir (1972 l SCR 627) and Ravindra alias Ravi Bansi Gohar v. State of Maharashtra and Ors., (1998 6 SCC 609). It is also well settled that failure to hold test identification parade, which should be held with reasonable despatch, does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law. The only question is regarding its probative value. It is a rule of prudence that 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 FIR No.54/10, PS Khyala State Vs. Kishan Page No. 22 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 the court. If a witness identifies the accused in the 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. Judgment of Hon'ble Supreme Court in [Kanta Prashad v. Delhi Administration, (AIR 1958 SC 350), Kanan and Ors. v. State of Kerala, (1979 3 SCC 319), Mohanlal Gangaram Gehani v. State of Maharashtra, (1982 l SCC 700), State of Maharashtra v. Sukhdev Singh and Anr., (1992 3 SCC 700), Jaspal Singh alias Pali v. State of Punjab, (1997 l SCC 510), Raju alias Rajendra v. State of Maharashtra, (1998 l SCC 169), George and Ors. v. State of Kerala and Anr., (1998 4 SCC 605), (2000 l SCC 247) and Ramanbhai Naranbhai Patel and Ors. v. State of Gujarat, (2000 l SCC 358) relied upon]. 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 and Anr. v. State of U.P., (1970 2 SCC 128) 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." In the case of State of Maharashtra v. Sukhdev Singh and Anr., (1992 3 SCC 700), 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 alias Ronald James Alwaris and Ors. v. State of Maharashtra, (1998 3 SCC 625), 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 FIR No.54/10, PS Khyala State Vs. Kishan Page No. 22 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 concerned accused 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 v. State of Maharashtra, (1999 8 SCC 428), 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 Ramanbhai Naranbhai Patel and Ors. v. State of Gujarat, (2000 l SCC 358), 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 day light." 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".
Also, there is no hard and fast rule about the period within which the TIP must be held from the arrest of the accused. In certain FIR No.54/10, PS Khyala State Vs. Kishan Page No. 22 cases, Hon'ble Supreme Court considered delay of 10 days to be fatal while in other cases even delay of 40 days or more was not considered to be fatal at all. For instance, in Pramod Mandal v. State of Bihar ( 2004 13 SCC 150) the accused was arrested on 17.01.1989, and was put up for Test Identification on 18.02.1989, that is to say there was a delay of a month for holding the TIP. Additionally, there was only one identifying witness against the said accused. After dealing with its decisions in Wakil Singh v. State of Bihar, Subhash v. State of Uttar Pradesh (1987 3 SCC 23) and Soni v. State of Uttar Pradesh ( 1982 3 SCC 368) in which benefit was conferred upon the accused because of delay in holding the TIP, the Hon'ble Court took a contrary view as under:
" Learned counsel for the State submitted that in the instant case there was no inordinate delay in holding the test identification parade so as to create a doubt on the genuineness of the test identification parade. In any event he submitted that even if it is assumed that there was some delay in holding the test identification parade, it was the duty of the accused to question the investigating officer and the Magistrate if any advantage was sought to be taken on account of the delay in holding the test identification parade".
In holding so, Hon'ble Supreme Court relied upon its judgment in Bharat Singh v. State of U.P. (1973 3 SCC 896) wherein it held that :
"In Sk. Hasib v. State of Bihar (1972 4 SCC 773) it was observed by the Court that identification parades belong to the investigation stage and therefore it is desirable to hold them at the earliest opportunity. An early opportunity to identify tends to minimise the chances of the memory of the identifying witnesses fading away due to long lapse of time. Relying on this decision, counsel for the appellant contends that no support can be derived from what transpired at the parade as it was held long after the arrest of the appellant. Now, it is true that in the instant case there was a delay of about three months in holding FIR No.54/10, PS Khyala State Vs. Kishan Page No. 22 the identification parade but here again, no questions were asked of the investigating officer as to why and how the delay occurred. It is true that the burden of establishing the guilt is on the prosecution, but that theory cannot be carried so far as to hold that the prosecution must lead evidence to rebut all possible defences. If the contention was that the identification parade was held in an irregular manner, or that there was an undue delay in holding it, the Magistrate who held the parade and the police officer who conducted the investigation should have been cross-examined in that behalf. In the instant case, we find that the defence has not imputed any motive to the prosecution for the delay in holding the test identification parade, nor has the defence alleged that there was any irregularity in the holding of the test identification parade. The evidence of the Magistrate conducting the test identification parade as well as the investigating officer has gone unchallenged. Learned counsel for the State is, therefore, justified in contending that in the facts and circumstances of this case the holding of the test identification parade, about one month after the occurrence, is not fatal to the case of the prosecution, as there is nothing to suggest that there was any motive for the prosecution to delay the holding of the test identification parade or that any irregularity was committed in holding the test identification parade".
Hon'ble Supreme Court further held in Pramod Mandal v. State of Bihar that :-
"It is neither possible nor prudent to lay down any invariable rule as to the period within which a test identification parade must be held, or the number of witnesses who must correctly identify the accused, to sustain his conviction. These matters must be left to the courts of fact to decide, in the facts and circumstances of each case. If a rule is laid down prescribing a period within which the test identification parade must be held, it would only benefit the professional criminals in whose cases the arrests are delayed as the police have no clear clue about their identity, they being persons unknown to the victims. They, therefore, have only to avoid their arrest for the prescribed period to avoid conviction. Similarly, there may be offences which by their very nature may be witnessed by a single witness, such as rape. The offender may be unknown to the victim, and the case depends solely on the identification by the victim, who is otherwise found to be truthful and reliable. What justification can be pleaded to contend that such cases must necessarily result in acquittal because of there being only one identifying witness? Prudence therefore demands that these matters must be left to the wisdom of the courts of fact, which must consider FIR No.54/10, PS Khyala State Vs. Kishan Page No. 22 all aspects of the matter in the light of the evidence on record before pronouncing upon the acceptability or rejection of such identification".
In the present case, none of accused persons were arrested from the spot, the accused persons were not known to complainant, the physical characteristic features of the accused persons mentioned by the complainant are not distinct or unique in nature, and the interval of time in which the entire offence of robbery allegedly happened, and the nature of interaction the complainant had with the accused persons in that duration, make it difficult to believe the complainant's identification of accused persons in the court, without being supported by a formal test identification parade. Further, the complainant has stated in his examination-in-chief that the accused Ajay (juvenile) was apprehended by the police in the nearby area on the very same day, and that from his possession, the mobile phone of the complainant was recovered.
IO/SI Gurdeep Singh who is PW-8 has also stated that after preparation of site plan and recording of statement of the complainant, he alongwith the complainant and Constable Deepak left the spot in search of the accused persons and during that process, when they reached near a temple, one person was found standing there, and on seeing him, the complainant pointed out towards him and stated that he is the same person who has committed robbery upon the complainant alongwith his associates. IO states that thereafter the said person was apprehended by him who disclosed his name as Ajay, and afterwards his personal search was conducted, whereupon he was found to possess one mobile phone make Tata Indicom, which the complainant said to be belonging to him, FIR No.54/10, PS Khyala State Vs. Kishan Page No. 22 and the same was taken into possession vide seizure memo already Ex.
PW-1/D bearing the signature of the IO at point B. 5.4 A perusal of the seizure memo of the mobile phone reveals that the same was instead made on 11.04.2010, i.e. a day after the date of incident. Arrest memo of accused Ajay also shows that he has been arrested on 11.04.2010 at 10:06 AM. This brings out a material contradiction between the documentary evidence, and the oral testimony of the prosecution witnesses. Also, the site plan of occurrence Ex. PW-8/B, shows the area of occurrence to be near the gate of BSES power Rajdhani Limited, and also near to a bus stand No. 830, and not very far off from DDA market, J.J. Colony. If the complainant went to the market for shopping, he fails to explain being present at a lonely spot away from the market. If his claim of being dragged to that spot is to be believed, then it means that he was dragged from the mid of the market itself, where he went to purchase household articles. Inspite of that, there is no independent witness other than the complainant to support the prosecution story. MLC not being on record, the complainant does not stand in the category of an injured witness so as to give more weight to his sole testimony. It is clear from the examination in chief and cross-
examination of PW-8 IO SI Gurdeep Singh that no attempt was ever made by him to find any independent public witness in the market area. Further, the arrest memos Ex. PW-1/C and Ex. PW-1/G are also not signed by any independent witnesses. The complainant PW-1, admits in his cross-
examination that he did not raise hue and cry, or made any commotion FIR No.54/10, PS Khyala State Vs. Kishan Page No. 22 after the incident.
5.5 The arrest of other accused Kishan raises serious doubts about sincerity and impartiality of the IO PW-6 in the conduct of investigation.
5.6 PW-1 has stated in his examination in chief that on 13.04.2010 when he went to the police station to enquire about the status of his case, he saw the second accused namely Kishan (PW-1 identified accused Krishan in the court), and immediately identified him and mentioned the same to the IO. The witness states that the IO thereafter arrested him vide arrest memo Ex. PW-1/G bearing his signature at point A. The witness further states that the personal search of the accused was also conducted vide personal search memo Ex. PW-1/H bearing his signatures at point A. It is stated by PW-1 that during the personal search of accused Kishan in the police station, one black purse made of rexine was recovered from him. The witness states that he immediately identified the purse as it was the same purse which was snatched away from him by the accused on 10.04.2010. The witness further states that in that purse Rs. 230/- in cash, one visiting card of Nokia music voucher and one passport size photograph of the complainant were found which were seized by the IO vide seizure memo PW-1/I bearing his signatures at point A. 5.7 PW-6 IO SI Sita Ram has stated that on 13.04.2010, the complainant had visited the police station to enquire about the status of FIR No.54/10, PS Khyala State Vs. Kishan Page No. 22 investigation of the case. The witness stated that in the meantime, accused Kishan also came to the PS alongwith his father, but no mention has ever been made of the case/ proceedings under which the accused Kishan was present in the police station on that date. PW-6 has identified accused Kishan in the court. PW-6 has further stated that the accused was identified by the complainant in the police station itself, and told the IO that accused Kishan alongwith his associate committed the offence of robbery upon him on 10.04.2010. PW-6 has further deposed that the Kishan was then interrogated and disclosure statement Ex. PW-3/A bearing his signatures at point X was prepared. He further states that thereafter the accused was arrested vide arrest memo Ex. PW-1/G bearing his signatures at point X. The witness further states that accused was also personally searched vide personal search memo Ex. PW-1/H, bearing his signatures at point X. PW-6 further states that one purse which was black in colour and contained cash amounting to Rs. 230/-, few visiting cards and few photographs of the complainant, was also recovered from the possession of the accused and was seized vide seizure memo Ex. PW-1/I bearing his signature at point X. 5.8 If the prosecution version is to be believed, then the accused persons Ajay and Kishan dragged the complainant on 10.04.2010 at 10:00 AM from the mid of the market, while he was shopping for household articles, to a place near BSES office gate and bus stand, where no other person was present. No person present in the market saw the complainant being dragged. They kept on beating him, and the complainant just FIR No.54/10, PS Khyala State Vs. Kishan Page No. 22 concentrated on the physical features of the accused persons, rather than saving himself. Thereafter, he went home, narrated the entire incident to his cousin, called the police, and went back the spot of occurrence where police had reached and the police recorded his statement, and sent the rukka to duty officer by 10:45 PM (there has been an overwriting in rukka Ex. PW5/A, wherein 11:45 PM has been overwritten on 10:45 PM).
Thereafter, instead of taking the complainant to first aid or conducting MLC or putting his mobile phone on CDR location tracking, the police invited him to join the search party, which went on till next morning till about 10:06 AM, and accused Ajay was just standing nearby with the robbed mobile phone in his pocket, and he became so well-known to the complainant, that the complainant at once pointed out at him, and identified him, leading to his arrest and recovery of complainant's Tata Indicom mobile phone.
After 3 days, the complainant went to the police station to inquire about his case, and to the utter good fortune of the complainant and the police, the accused Kishan was present in the police station with his father for 'some work'. The complainant pointed towards him and identified him, which led to the arrest of accused Kishan. Most importantly, accused Kishan, out of stupidity, laziness, carelessness, overconfidence or love and affection for the complainant or any other reason whatsoever, was still carrying the same robbed purse / wallet alongwith the photograph of the complainant inside it. Thus, the prosecution story appears to be based upon coincidence, which does not appear to be a coincidence, and 'evidence', which does not have the probative value of an evidence. The prosecution story does not align at all with the common course of natural events, FIR No.54/10, PS Khyala State Vs. Kishan Page No. 22 human conduct and public and private business, and therefore this court presumes u/s 114 of the Indian Evidence Act that such offence has not been committed by the accused and there is nothing in the prosecution evidence to rebut this presumption. Accordingly, the prosecution has miserably failed to prove its case beyond reasonable doubts.
5.9 Therefore, no such evidence has come on record so as to establish the guilt of the accused Kishan S/o Sh. Puneet Kumar for the offences u/s 392/394/34 IPC beyond reasonable doubt. Accordingly, the accused Kishan S/o Sh. Puneet Kumar, R/o: H. No. D-13, Gali No.2, Dharampuri, Khyala is acquitted of all the charges in the present case.
Digitally signed by ABHINAV ABHINAV PANDEY
PANDEY Date:
2021.04.09
16:41:41 +0530
ANNOUNCED IN THE OPEN (ABHINAV PANDEY)
COURT ON 06.04.2021 MM-04 (WEST)/DELHI
Containing 22 pages all signed by the presiding officer.
Digitally signedABHINAV by ABHINAV PANDEY PANDEY Date: 2021.04.09 16:41:49 +0530 (ABHINAV PANDEY) MM-04 (WEST)/DELHI FIR No.54/10, PS Khyala State Vs. Kishan Page No. 22