Delhi District Court
State vs . Aasif Ali on 30 January, 2023
IN THE COURT OF MS. MEENA CHAHAN
METROPOLITAN MAGISTRATE -08 (CENTRAL)
TIS HAZARI COURTS : DELHI
FIR No. 493/21
PS : Kotwali
U/s 392/394/411 IPC
State vs. Aasif Ali
Date of Institution of case : 28.07.2021
Date when Judgment reserved : 16.01.2023
Date on which Judgment pronounced : 30.01.2023
JUDGMENT
A. Case No. : 7798/2021
B. Date of Institution of Case : 28.07.2021
C. Date of Commission of Offence : 30.05.2021
D. Name of the complainant : Shiv Kumar Tiwari
E. Name of the Accused & : Aasif Ali S/o Sh Akbar Ali
his residence R/o Vagabond, Jamna Bazar,
Kashmiri Gate, Delhi.
F. Offence complained of : U/s 392/394/411 IPC
G. Plea of the Accused : Pleaded not guilty
H. Order reserved on : 16.01.2023
I. Final order : Acquittal
J. Date of such order : 30.01.2023
BRIEF FACTS OF THE CASE:
1. Succinctly put, the case of the prosecution is that on 30.05.2021 at about 04.30 a.m., near Lower Subhash Marg, Bus Stop, Angoori Bagh, Delhi within the jurisdiction of PS : Kotwali, accused Aasif had punched on the face of the complainant namely State Vs Aasif Ali FIR No. 493/21 PS Kotwali 1/26 Shiv Kumar and robbed the mobile phone make Tecno Common Purple Colour IMEI No. 911648808206788 and 911648808206796 and above said mobile phone was recovered from accused which he had dishonestly retained or received knowingly or having reason to believe to be stolen property and thereby accused has committed offences punishable u/s 392/394/411 of Indian Penal Code, 1860 (hereinafter called as IPC).
2. After the usual investigation, the charge sheet for the offence u/s 392/394/411 IPC was prepared against the accused. The aforementioned charge sheet was filed before the court on 28.07.2021 whereupon the cognizance of the offence mentioned in the chargesheet was taken against the accused. The copy of the charge-sheet was supplied to the accused in compliance of Section 207 of The Code of Criminal Procedure,1973 (hereinafter called as Cr.P.C).
3. After hearing the arguments, charge u/s 392/394/411 IPC was framed against the accused on 20.09.2021 for the alleged commission of the offence u/s 392/394/411 IPC to which the accused pleaded Not Guilty and instead claimed trial.
4. In support of its version, the prosecution has examined 03 (three) witnesses.
5. PW-1 Shiv Kumar Tiwari in his examination-in-chief has deposed that on 30.05.2021, he came to Delhi by the train from Lal Gopal Ganj and reached the bus stand Angoori Bagh by a rickshaw from the railway station for going to Gurgaon. When he was waiting State Vs Aasif Ali FIR No. 493/21 PS Kotwali 2/26 at the bus stand, a boy came to him and asked him to hand over his mobile, he refused and asked him why he should give it to him. Thereafter, he punched his left temple in the face and snatched his mobile and ran away. PW-1 correctly identified the accused. Thereafter, he requested some public person to call at 100 No and inform the police regarding the incident. Thereafter, the police came to the spot 15 to 20 minutes later and recorded his statement which is Ex.PW-1/A bearing his signature at point A. Thereafter, IO prepared the site plan at his instance which is Ex.PW-1/B bearing his signature at point A. Thereafter, police took him to the PS Kotwali and he alongwith Ct. Amit and Ct. Giriraj went in search of the culprit and the case property. He deposed that when they reached Company Bagh, Labour Chowk, he pointed out towards the accused and told them that he was the person who had snatched his mobile. Thereafter, the police apprehended the accused at his instance and made his personal cursory search and recovered his mobile from his possession. He identified his mobile at that time and told the police this mobile belongs to him. Thereafter, IO prepared some documents on the spot and obtained his signatures on these documents. The recovery memo of the mobile phone is Ex.PW-1/C bearing his signature at point A. Thereafter, police arrested him and obtained his signature on an arrest memo which is Ex.PW-1/D bearing his signature at point A. The witness submitted he can identify the case property if shown to him, however, Ld. LAC for the accused submits that he is not disputing the identity of the case State Vs Aasif Ali FIR No. 493/21 PS Kotwali 3/26 property.
During cross-examination of the witness by Ld. LAC, PW-1 deposed that he is 12th passed. The railway ticket regarding the visit on that day was shown by the witness in his mobile phone dated 29.05.2021. He denied the suggestion that on the date of incident he had not traveled to Delhi as the nation-wide lockdown was imposed. PW-1 produced the photocopy of an online railway ticket dated 29.05.2021 which is Ex.PW-1/E. He stated that he reached the railway station ODRS at about 04:00 am and he reached at the spot of incident/i.e. bus stand at about 04:30 am. He saw the accused when he snatched his mobile phone as the accused was wearing a shirt, jeans pants and slippers at that time. He denied the suggestion that he had not visited Delhi on that day. His statement was recorded in the PS. He does not remember the time when he reached PS. He does not remember the time when they proceed towards the Company Bagh for the search of the accused. He pointed towards the accused from a distance around 10-15 feets. Accused was standing alone at Company Bagh. At the time of personal search of the accused at Company Bagh no recovery was made in his possession in his presence. Voluntarily, he deposed that the police took him to the person whom the accused had sold his mobile phone along-with the accused. He does not remember the place where the police took him in search of his mobile phone. He does not know the name of the person from whom the mobile recovered. He deposed that at around 10:30 am, the police took him to that person from State Vs Aasif Ali FIR No. 493/21 PS Kotwali 4/26 whom the mobile phone was recovered. He does not remember the time when the police took him for a medical examination. He denied the suggestion that the accused was falsely implicated in this case upon his instance or that no recovery was made upon the accused or that he was deposing falsely.
6. PW-2 Ct. Amit in his examination-in-chief deposed that on 30.05.2021, he was posted at PS Kotwali as Constable. IO ASI Sita Ram received information vide DD entry No.10A and he along with ASI Sita Ram/IO reached at the spot and found no one at the spot. Thereafter, they came back to the PS and after some time, a complainant namely Shiv Kumar Tiwari came to the PS and he narrated the whole incident to the DO and IO was also present over there. IO told him to take the complainant for the medical examination, on which he along with complainant went to the Aruna Asaf Ali Hospital for his medical examination and the medical examination of the complainant was conducted at Aruna Asaf Ali Hospital vide MHCL No.3116/21 in his presence. He along with the complainant came back to PS. IO recorded the statement of the complainant which is Ex. PW1/A. IO gave the original copy of rukka to the DO for the registration of the FIR. After the registration of FIR, DO handed over the original copy of rukka and FIR to ASI Sita Ram. He along with ASI Sita Ram and complainant went to the place of incident. ASI Sita Ram prepared the site plan which is Ex. PW1/B on the instance of complainant. Thereafter, they went in the search of the accused person and during search, he along with ASI State Vs Aasif Ali FIR No. 493/21 PS Kotwali 5/26 Sita Ram and complainant reached at the labor Chowk, Chandni Chowk, Delhi where complainant pointed out towards accused and told that he is the same person who had snatched his mobile phone and punched on his face. PW-2 correctly identified the accused. Thereafter, they apprehended the accused person and his personal search was conducted vide personal search memo which is Ex.PW2/B bearing his signature at point A. Accused moved towards patri and took out a mobile phone behind the gadhaa present on the patri and produced the same to the IO and said that he had stolen the same from the possession of the complainant by punching him on his face and forcefully. He deposed that the complainant identified his mobile phone at the spot thereafter the IMEI number of the case property was matched correctly. IO prepared the recovery seizure memo which is Ex. PW1/C bearing his signature at point B and the recovery site plan which is Ex. PW1/A bearing his signature at point A. Accused was arrested in his presence vide arrest memo which is Ex. PW1/D bearing his signature at point B. IO recorded the disclosure statement of the accused person which is Ex.PW2/C bearing his signature at point A. Thereafter, IO recorded his statement u/s 161 Cr.P.C. Ld LAC for the accused submits that he is not disputing the identity of the case property.
During cross-examination of the witness by Ld. LAC, PW-2 stated that he left the PS Kotwali in November 2021 since he was posted in PS Kotwali for two years before being relieved. He deposed that he along with ASI Sita Ram and complainant reached State Vs Aasif Ali FIR No. 493/21 PS Kotwali 6/26 the spot at around 10:30 AM. IO recorded the statement of the complainant at PS and prepared the site plan at the spot. He does not remember the exact time when they left PS in the search of the accused. When they reached the labor chowk the accused was wearing one lower and T-shirt. There were some other people also standing and moving around the accused. He admitted that during the personal search nothing was recovered from his possession. He denied the suggestion that the case property was recovered from any third person. Question was put to him that whether he alongwith IO took the complainant to recover the mobile phone from a third person to which he denied. He deposed that he does not remember the exact time when he took the accused to Asaf Ali Hospital for his medical examination. He denied the suggestion that the accused was falsely implicated in the present FIR and that no recovery was made out from the possession of the accused and that he was deposing falsely.
7. PW-3 ASI Sita Ram has deposed in his examination-in-chief that on 30.05.2021, he was posted at PS Kotwali as Constable. He received information vide DD entry No.10A and he along with Ct.Amit reached the spot and found no one at the spot. Thereafter, we came back to the PS. After some time, a complainant namely Shiv Kumar Tiwari came to the PS and he narrated the whole incident to him. He told Ct. Amit to take the complainant for the medical examination, on which Ct. Amit along with complainant went to the Aruna Asaf Ali Hospital for his medical examination and State Vs Aasif Ali FIR No. 493/21 PS Kotwali 7/26 the medical examination of the complainant was conducted at the Hospital vide MHCL No.3116/21. Ct. Amit alongwith the complainant came back to PS. He recorded the statement of the complainant which is Ex. PW1/A bearing his signature at point B and prepared the rukka which is Ex. PW-3/A bearing his signature at point A. He got the FIR registered. After the registration of FIR, he alongwith Ct. Amit and the complainant went to the place of incident. He prepared the site plan which is Ex. PW1/B on the instance of the complainant bearing his signature at point B. Thereafter, they went in the search of the accused person and during search, he alongwith Ct. Amit and complainant reached the labor Chowk, Chandni Chowk, Delhi where the complainant pointed out towards the accused and told that he was the same person who had snatched his mobile phone and punched on his face. PW-3 correctly identified the accused. Thereafter, they apprehended the accused person. Accused moved towards patri and took out a mobile phone behind the gadhaa present on the patri and produced the same to him and said that he had stolen the same from the possession of the complainant by punching him on his face and forcefully. Complainant identified his mobile phone at the spot thereafter the IMEI number of the case property was matched correctly. He prepared the recovery seizure memo which is Ex. PW1/C bearing his signature at point C and the recovery site plan which is Ex. PW1/A bearing his signature at point B. Accused was arrested vide arrest memo which is Ex. PW1/D bearing his signature at point C State Vs Aasif Ali FIR No. 493/21 PS Kotwali 8/26 and recorded the disclosure statement of the accused person which is Ex.PW2/C bearing his signature at point B. Thereafter, IO recorded the statement of the witnesses u/s 161 Cr.P.C. After medical examination of the accused, the accused was produced before the concerned court and was sent to JC. After completion of the investigation, he prepared the charge-sheet and presented it in the concerned court. The witness submits that he can identify the case property if shown to him. Ld LAC for the accused submits that he is not disputing the identity of the case property.
During cross-examination of the witness by Ld. LAC, PW-3 stated that he left the PS Kotwali in May 2022 since he was posted in PS Kotwali for two years before relieving. He alongwith Ct. Amit and the complainant reached the spot at around 4:50 AM. He handed over the tehrir to the DO for registration of the FIR. He does not remember the exact time of sending the tehrir and after one hour came back to him after registration of FIR. They reached labor chowk at around 11:45 AM. He does not remember what the accused was wearing. The accused was sitting on the footpath alone. He denied the suggestion that it was a crowded area and many laborers were sitting on the footpath. He denied the suggestion that the recovery of the mobile phone was made from some third person and not from the place as stated in the site plan. He does not remember whether he got the bill for the mobile phone from the complainant. The statement of the complainant was recorded by him at PP red fort and the disclosure statement of the State Vs Aasif Ali FIR No. 493/21 PS Kotwali 9/26 accused was recorded at the labor chowk. And the site plan was made at the incident spot. He denied the suggestion that the case property was recovered from any third person. Question was put to him when he took the accused to the hospital for a medical examination, he answered that it is mentioned in the MLC report. He denied the suggestion that the accused was falsely implicated in the present FIR and that no recovery was made out from the possession of the accused and that no public had joined the investigation. He admitted that no notice was served upon the public persons who joined the investigation. He denied the suggestion that he was deposing falsely.
8. Vide separate statement under section 294 Cr.P.C, the accused admitted the documents which are an FIR which is Ex. A-1, endorsement which is Ex.A-3, the certificate u/s 65-B Indian Evidence Act which is Ex. A-2 without admitting the contents of the same. PE was closed vide order dated 23.08.2022 of this Court.
9. Statement of the accused was recorded U/s 313 Cr.P.C on 30.09.2023 wherein all the incriminating circumstances appearing in evidence against him were put to him, to which he pleaded innocence, and stated that he has been falsely implicated in the present matter. Accused opted not to lead defence evidence.
POINTS FOR DETERMINATION:
10. (i) Whether the complainant was present at the spot of occurrence at the relevant point of time?
State Vs Aasif Ali FIR No. 493/21 PS Kotwali 10/26
(ii) Whether the complainant voluntarily caused hurt to the complainant 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 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?
(v) Whether the accused was present at the spot of occurrence, and no person other than the accused could possibly have committed the offence?
(vi) Whether the accused has on the same date and time, dishonestly retained the stolen mobile phone of the complainant knowing that such property is a stolen property, and thereby committed an offence punishable u/s 411 IPC?
DISCUSSION, DECISION AND REASONS THEREON:
11. Arguments adduced by Ld. APP for State and Ld. LAC for the accused have been heard. Evidence and documents on record have been perused carefully. I have bestowed my thoughtful consideration to the rival submissions made before me. Accused person is indicted for the offence u/s 392/394/411 IPC.
378. Theft: Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
390. Robbery: In all robbery, there is either theft or extortion.
State Vs Aasif Ali FIR No. 493/21 PS Kotwali 11/26 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 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 411 IPC. Dishonestly receiving stolen property: Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or both.
12. Point no. (i) Whether the complainant was present at the spot of occurrence at the relevant point of time? is discussed at first.
13. As per the prosecution story, the complainant was present at the bus stop, Angoori Bagh to board a bus to go to Gurgaon after he reached Delhi via train. Complainant has stated in his examination- in-chief that on 30.05.20221, he came to Delhi and was waiting for bus at Bus stand, then the accused came to him and asked to handover his mobile phone, to which he denied and the accused State Vs Aasif Ali FIR No. 493/21 PS Kotwali 12/26 punched him on left temple in the face and snatched his mobile and ran away. He further deposed that he asked a public person to call police and someone called police, police arrived at the spot and the complainant had 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. During cross-examination, suggestion was given otherwise stating that lockdown was imposed at that time, to which he produced the rail ticket dated 29.05.2021 as Ex. PW1/E.
14. However, the remaining prosecution witnesses testified that they came at the spot of occurrence after the call to police giving reference of DD No. 10A, and have deposed that no one was present at the spot and they left for PS. As per their version, after some time the complainant arrived at the PS and narrated the whole story to the IO and he was taken to hospital for medical examination. Even both the official witnesses in unisom deposed that the statement of complainant was taken at the PS and when PW-3/IO was asked a specific question during his cross-examination, he stated that the statement of complainant was recorded at PP Red Fort.
15. Hence, as per the discussion above, there comes out two different versions of the story as to whether the statement of the complainant was recorded at the spot or at the PS. It also raises a doubt regarding the presence of the accused at the spot as there is no independent witness to support the version of the complainant and show the presence of the complainant at the spot at relevant time State Vs Aasif Ali FIR No. 493/21 PS Kotwali 13/26 when other prosecution witnesses had stated otherwise. This puts the very presence of the complainant at the spot at the time of incident under a cloud of suspicion. It is a settled legal position that when two possibilities are possible, the benefit of doubt undoubtedly goes in favor of the accused. It is pertinent to note here that both the official witnesses of the prosecution have neither exhibited DD No. 10A, through which the first information regarding the alleged offence arrived at the PS, nor they have exhibited their arrival and departure entry of the day qua the investigation proceedings conducted by them throughout the alleged date of incident. At this stage, believing the version of a public witness who is the victim of the incident seems more reasonable than completely discrediting the case of the complainant on the basis of deposition of formal witnesses. I would deem it fit to briefly touch upon the other points of determination, let us move further.
16. Point no. (ii) Whether the complainant voluntarily caused hurt to the complainant 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 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.
State Vs Aasif Ali FIR No. 493/21 PS Kotwali 14/26
17. PW-1 Shiv Kumar has stated in his examination-in-chief that on 30.05.2021, he was waiting for a bus at Bus Stand to go to Gurgaon and the alleged incident happened with him by the accused. He has further stated that the accused punched on his left temple on the face and snatched his mobile phone and ran away from the spot. Even though the complainant states to have given information to the police immediately, the complainant had not even about his medical examination being conducted soon after the incident, no MLC showing any swelling or tenderness (due to being punched on face) was exhibited in evidence. PW-2 and PW-3 had given mere reference to the medical examination of the complainant at the instance of IO, and no medical witness has been produced to testify to the MLC of the complainant. Bare perusal of the said MLC doesn't show any injuries/marks. In such a situation, the claim of hurt being caused to the 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.
18. Point no. (v) Whether the accused was present at the spot of occurrence, and no person other than the accused could possibly have committed the offence? is discussed below.
19. The complainant Shiv Kumar has not mentioned any features or description of the accused person except that accused was naujawan/young person neither in his complaint which is Ex. PW1/A nor during his examination-in-chief before the accused. The accused, admittedly, was not known to the complainant or any of the State Vs Aasif Ali FIR No. 493/21 PS Kotwali 15/26 prosecution witnesses. As per the prosecution story, the accused Aasif was arrested upon a regular search operation in the area soon after the incident when the complainant was taken by PW-2 and PW-3 for the search of accused and case property. The mobile phone of the complainant, allegedly robbed by the accused, was not put on location tracking. Test identification parade of the accused 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 was immediately tracked and traced.
20. 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 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."
21. In Vaikuntam Chandmppa and Ors. v. State of Andhra Pradesh, [AIR 1960 SC 1340] the Hon'ble 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 State Vs Aasif Ali FIR No. 493/21 PS Kotwali 16/26 form of an earlier identification proceeding, or any other evidence. The law laid down in the aforesaid decision has been reiterated by the Hon'ble 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)].
22. It is further observed by the apex court in the case of Dana Yadav @ Dahu & others(supra) that:
"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 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 State Vs Aasif Ali FIR No. 493/21 PS Kotwali 17/26 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 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, State Vs Aasif Ali FIR No. 493/21 PS Kotwali 18/26 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 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".
23. 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 cases, the 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.
24. The Hon'ble Supreme Court further held in case titled as Pramod Mandal v. State of Bihar, (2004) 13 SCC 150 that :-
"It is neither possible nor prudent to lay down any invariable rule as to the State Vs Aasif Ali FIR No. 493/21 PS Kotwali 19/26 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 all aspects of the matter in the light of the evidence on record before pronouncing upon the acceptability or rejection of such identification."
25. In the present case, the accused was not arrested from the spot, admittedly the accused was not known to complainant, the physical characteristic features of the accused not mentioned by the complainant, 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 in that duration, make it difficult to believe the complainant's identification of accused 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 Aasif 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.
26. IO/ASI Sita Ram who is PW-3 has also stated that after recording of statement of the complainant and preparation of site State Vs Aasif Ali FIR No. 493/21 PS Kotwali 20/26 plan, and he along with the complainant and Constable Amit left the PS in search of the accused and during that process, when they reached at Labour Chowk, the complainant pointed out towards the accused and stated that he is the same person who has committed robbery upon the complainant. IO states that thereafter the said person was apprehended by him and he moved towards patri and took out a mobile phone behind the gadhaa present on the patri. Further, he stated that the complainant had identified the said mobile phone and the same was taken into possession vide seizure memo Ex. PW-1/C bearing the signature of the IO at point C.
27. The site plan of occurrence Ex. PW-1/B, shows the area of occurrence to be near the bus stand. Even the complainant deposed that after being robbed by the accused, he asked public persons present there to call police and someone had even called at 100 No. to which police arrived at the spot. If his claim of the complainant is to be believed, then why prosecution had not brought any independent witness other than the complainant to support the prosecution story. MLC of the complainant not being proved, 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-3 IO that no attempt was ever made by him to find any independent public witness. Even the identity of the PCR caller was also not traced. Further, the arrest memo Ex. PW-1/D is also not signed by any State Vs Aasif Ali FIR No. 493/21 PS Kotwali 21/26 independent witnesses.
28. With respect to time when the accused was tracked and apprehended, contradictory versions surfaced in the oral testimony of prosecution witnesses. This argument was very well put during final arguments by Ld. LAC for the accused. As per the complainant, he along with PW-2 and PW-3 went in search of the accused and at around 10:30 am, the police took him to the person from whom recovery of case property was finally made. PW-2 deposed during cross-examination that they all went to the spot around 10:30 AM and PW-3 deposed that they all went to the spot at around 04:50 AM and they reached the labor chowk, i.e. the place of recovery at around 11:45 am, which means that the accused was traced at around that time only. So, the confusion and uncertainty escalates in order to ascertain the time when the accused was actually apprehended in the light three different versions of time stated by prosecution witnesses.
29. If the prosecution version is to be believed, then the complainant was robbed by the accused and the accused ran away from the spot, thereafter a PCR call was made to the PS at the instance of the complainant. The police arrived at the spot, recorded the statement of the complainant, prepared a site plan and they all went in search of the accused and his robbed mobile phone. Now, a perusal of examination of the complainant reflected that instead of State Vs Aasif Ali FIR No. 493/21 PS Kotwali 22/26 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 and accused Aasif was just standing nearby the area, a robbed mobile phone was recovered on his personal search. It is beyond comprehension of this court that how the accused 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 the complainant's mobile phone. Most importantly, accused out of laziness, carelessness or affection for the complainant or any other reason whatsoever, was still carrying the same robbed mobile phone so near the spot waiting for the complainant to arrive. 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 story of the prosecution does not align at all with the common course of natural events, 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 the prosecution evidence does not rebut this presumption. Accordingly, the prosecution has miserably failed to prove its case beyond reasonable doubts.
30. Point no. (vi) Whether the accused has on the same date and time, dishonestly retained the stolen mobile phone of the complainant knowing that such property is a stolen property, and State Vs Aasif Ali FIR No. 493/21 PS Kotwali 23/26 thereby committed an offence punishable u/s 411 IPC? is being discussed now.
31. Scanning the testimonies of all prosecution witnesses shows that the version qua recovery proceeding as per complainant is in complete contrast to the story of the other prosecution witnesses. As per the deposition of the complainant, he along with police officials went in search of the accused, they reached at Labour Chowk and he pointed towards the accused, on whose personal search his robbed mobile was recovered. However, during his cross-examination, PW- 1 narrated another story that no recovery was made from the accused Aasif and the police took him to some other person from whom his robbed mobile phone was recovered, he stated that the accused had allegedly given his mobile to this person. On being asked by Ld. LAC for the accused, he deposed that he doesn't know the name of the person from whom recovery was effected and place from where the said recovery was made. This puts the whole version of examination-in-chief of the complainant in question and it is quite unsafe to rely on his statement in order to implicate the accused with respect to the recovery of the robbed mobile phone.
32. The police witnesses had narrated another version that on being pointed out by the complainant, the accused was apprehended and he on his own moved towards a patri and took out a mobile phone behind the gadhaa/pit present on the patri. If this version of State Vs Aasif Ali FIR No. 493/21 PS Kotwali 24/26 the prosecution is to be believed, then the question arises that how is it possible for the accused to make a pit on the patri with his hand without any instrument, and even assuming that a gadhaa/pit was not that deep, the accused might have ensured that no one walked over that gadhaa/pit until this recovery being made. Further, the question arises that the complainant has not mentioned this kind of recovery proceeding in his evidence, rather he stated that recovery was made from third person and not accused.
33. Furthermore, there are contrasting statements of the prosecution witnesses as to not only from whom the case property was recovered, but also as to time when the recovery was effected as discussed in above paragraph, and no time of recovery is mentioned in the seizure memo of the recovered article. In the light of these contradictions between the oral testimony of prosecution witnesses and also with the documentary evidence in terms of seizure memo, the possibility of the robbed article which is claimed to have recovered from the accused may well have been planted by the police cannot be ruled out. This non-alignment of testimonies of prosecution witnesses with each other raises a reasonable doubt qua the recovery proceedings of the case property in question and benefit of this accrues in favor of the accused. Hence, the prosecution has not able to prove the ingredient of offence under section 411 IPC also.
State Vs Aasif Ali FIR No. 493/21 PS Kotwali 25/26
34. In summation, no such credible and material evidence has come on record so as to establish the guilt of the accused Aasif s/o Akbar Ali for the offence punishable u/s 392/394/411 IPC beyond reasonable doubt. Accordingly, the accused Aasif Ali S/o Akbar Ali R/o Vagabond, Jamna Bazar, Kashmere Gate, Delhi is acquitted of all the charges in the present case.
35. File be consigned to Record Room subject to compliance of section 437-A Cr.PC.
Digitally signed byAnnounced in the open court MEENA MEENA CHAUHAN CHAUHAN Date: 2023.01.30 today i.e. 30th day of January, 2023 16:29:14 +0530 (MEENA CHAUHAN) Metropolitan Magistrate-08 Central District, Tis Hazari Courts/Delhi [This judgment contains 26 pages and each page bears the initials of undersigned and the last page bears the complete sign of undersigned.] State Vs Aasif Ali FIR No. 493/21 PS Kotwali 26/26