Delhi District Court
State vs . Sujan & Ors. on 27 January, 2022
IN THE COURT OF SH. ABHINAV PANDEY, MM-04,
WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE VS. SUJAN & ORS.
FIR NO. 26/09
PS: NANGLOI
U/S: 323/325/34 IPC
JUDGMENT
Case no. : 70816/2016
Date of commission of offence : 24.12.2008
Date of institution of the case : 28.07.2009
Name of the complainant : SI Braham Dev PIS No.
28820665.
Name of accused and address : 1. Sujan S/o Sh. Shishpal, R/o: H. No. 51/A, Tyagi Vihar, Nangloi, Delhi.
2. Ashok S/o Sh. Lakshmi Narayan, R/o: H. No. H-
17C, Kanwar Singh Nagar, Delhi.
3. Sukan S/o Sh. Menpal, R/o: H. No. H2-17C, Kanwar Singh Nagar, Nangloi, Delhi.
Offence complained of or proved : 323/325/34 IPC Plea of the accused : Pleaded not guilty Final order : Acquitted. Date on which reserved for judgment : 24.01.2022. Date of judgment : 27.01.2022.
******************************************************************************************************************************* FIR No. 26/09, PS Nangloi State Vs. Sujan & Ors.
Page 1/231. BRIEF STATEMENT OF THE FACTS FOR DECISION:
1.1 This is the prosecution of accused persons namely (i) Sujan S/o Sh. Shishpal, R/o: H. No. 51/A, Tyagi Vihar, Nangloi, Delhi, (ii) Ashok S/o Sh. Lakshmi Narayan, R/o: H. No. H-17C, Kanwar Singh Nagar, Delhi and
(iii) Sukan S/o Sh. Menpal, R/o: H. No. H2-17C, Kanwar Singh Nagar, Nangloi, Delhi pursuant to charge sheet filed by PS Nangloi alleging commission of offences U/s 323/325/34 IPC subsequent to the investigation carried out by them in FIR No. 26/09.
1.2 As per the prosecution, on 24.12.2008 at about 10.45 PM at Main Rohtak Road, opposite police quarters, Delhi, accused persons Sujan, Sukan and Ashok caused simple injuries to the complainant Sh. Braham Dev and grievous hurt to Sh. Rajender Singh. Accordingly, after the investigation, police filed the present charge sheet against the accused persons for commission of offences punishable u/s 323/325/34 IPC.
1.3 Complete set of copies were supplied to the accused persons. After hearing arguments, separate charges were framed against the accused persons for trial of offences U/s 323/325/34 IPC, to which they pleaded not guilty and claimed trial.
2. MATERIAL EVIDENCE IN BRIEF:
2.1 The prosecution, in support of present case, has examined seven witnesses in total who exhibited several documents on record.
S. No. Name of Documents Dates of Dates of
Prosecution Exhibited in examinatio cross-
witnesses. Evidence. n in chief. examination
.
PW-1 W/HC Nirmala (I) Copy of FIR Ex. 22.06.201 22.06.2013
FIR No. 26/09, PS Nangloi State Vs. Sujan & Ors.
Page 2/23
PW1/A; & 3
(II) Endorsement on
rukka Ex. PW1/B
PW-2 SI Dharambir (I) Complaint Ex. 16.05.201 16.05.2015
PW2/A; & 5
(II) Site plan Mark X.
PW-3 HC Sunil (I) Arrest memos of 09.09.201 09.09.2015
accused persons 5
Sujan, Sukan and
Ashok Ex. PW3/,
Ex. PW3/B and Ex.
PW3/C; &
(II) Personal search
memos of accused
persons Sujan,
Sukan and Ashok
Ex. PW3/D, Ex.
PW3/E and Ex.
PW3/F
PW-4 Dr. Binay Kumar (I) MLC No. 16075 04.12.201 04.12.2019.
pertains to patient 9
Rajender Singh Ex.
PW4/A;
(II) MLC No. 16043
pertains to patient /
complainant Sh.
Brahm Dev
PW-5 SI Dalbir Singh (I) Endorsement on 23.03.302 23.03.2021
rukka Ex. PW5/A; & 1
(II) Site plan Ex.
PW5/B
PW-6 Inspector Brahm - 20.09.202 20.09.2021
Dev 1
PW-7 HC Rajender - 12.10.202 12.10.2021.
Singh 1
(inadvertently
mentioned as PW-
9)
FIR No. 26/09, PS Nangloi State Vs. Sujan & Ors.
Page 3/23
2.2 No other witness was examined, and hence PE was closed vide
order dated 12.10.2021.
3. STATEMENTS OF THE ACCUSED PERSONS U/S 313 Cr.P.C :
3.1 Statements of accused persons Sujan, Sukan and Ashok were recorded by the Court under section 313 Cr.P.C on 16.11.2021 wherein all the incriminating circumstances appearing in evidence were put to them, to which they pleaded innocence, and stated that they have been falsely implicated in the present matter, and have nothing to do in connection with this case. Accused persons opted not to lead any defence evidence.
4. ARGUMENTS:
4.1 Ld. APP for State has argued that the prosecution witnesses have completely supported the prosecution story, and their testimony has remained unrebutted, and that on a combined reading of the testimony of the prosecution witnesses, offences U/s 323/325/34 IPC are proved beyond reasonable doubt, against the accused persons.
4.2 On the other hand, Ld. Counsel for the defence has stated that there is no legally sustainable evidence against the accused persons, and they have been falsely implicated in the present case. It is further argued that prosecution has failed to prove the case against the accused persons beyond reasonable doubt, and in view of the same, the accused persons deserve to be acquitted.
5. BRIEF STATEMENT OF THE REASONS FOR DECISION:-
FIR No. 26/09, PS Nangloi State Vs. Sujan & Ors.
Page 4/23
5.1 Arguments advanced 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 submissions made before me. In order to bring home the guilt of the accused persons for commission of the offences under Section 323/325/34 IPC, the prosecution was required to prove that the accused persons had voluntarily inflicted simple and grievous injuries on the person of complainants/ victims.
5.2.1. Section 319 states that whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
5.2.2. Section 320 states that the following kinds of hurt only are designated as "grievous":-
First - Emasculation.
Second - Permanent privation of the sight of either eye.
Thirdly - Permanent privation of the hearing of either ear, Fourthly - Privation of any member or joint.
Fifthly - Destruction or permanent impairing of the powers of any member or joint.
Sixthly - Permanent disfiguration of the head or face.
Seventhly - Fracture or dislocation of a bone or tooth.
Eighthly - Any hurt which endangers life or which causes the sufferer to be, during the space of twenty days, in severe bodily pain, or unable to follow his ordinary pursuits.
5.2.3. Section 321 states that whoever does any act with the intention of FIR No. 26/09, PS Nangloi State Vs. Sujan & Ors.Page 5/23
thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and thus thereby causes hurt to any person, is said "voluntarily to cause hurt".
5.2.4 Section 322 states that whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt".
5.2.5. Section 323 states that whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
5.2.6. Section 325 states that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
5.2.7. Section 34 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.
5.3. In the present case, the accused persons Sujan, Sukan and Ashok have been charged u/s 323/325/34 of the Indian Penal Code, for voluntarily causing grievous hurt to Rajender Singh and simple hurt to Brahm Dev in furtherance of common intention of all of them, on 24.12.2008 at about 10.45 pm at Main Rohtak Road, opposite police quarters, within the jurisdiction of PS Nangloi.
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5.4 Ex PW 2/A is the first statement to the police, allegedly given by
PW-6 Inspector Brahm Dev, on 25.12.2008, stating that on 24.12.2008, he was posted at AEC, Crime Branch, Sector-8, R.K. Puram as a Sub- Inspector, and on that day, at around 10:45 Pm, when he reached near Police Staff quarters, Nangloi, Rohtak Road in his car (Maruti Van) bearing no. DL-4CN-6951, a container (bearing number 2304 or 2309) hit against his car. It is further stated that the complainant came outside his car and asked the driver of the container to come outside, who appeared to be under the influence of liquor. He further states that at that time, 4-5 persons got down from from the nearby stationed buses bearing registration numbers DL-1PB-3799, DL-1PB-9353 and DL-1PB-5317, and PW-9 HC Rajendra, who is posted in the same office as the complainant and had already been called at the gate of police colony for a morning raid, came to the spot of occurrence. It is further stated that thereafter, the aforesaid persons gave filthy abuses to PW-6 and PW-9, whereupon PW- 6 called the PCR. Upon this, one of the bus drivers threatened them by saying "Ab hum inki PCR call banaate hain", and thereafter, all the aforesaid 4-5 persons started beating PW-6 and PW-9 with lathis and dandas. It is further alleged that PW-6 told them that he is working in the Delhi Police, upon which one of the persons who was drunk, exhorted his accomplices by saying that "ab hum inka Delhi Police banaate hain",and then two of these persons brought iron rods from their vehicles and attacked PW-6 and PW-9, who tried to save themselves from the attack, and suffered injuries on their hands. It is further alleged that PW-6 and PW-9 thereafter ran away and entered the police station to save their lives. It is further stated in EX. PW 2/A by PW-6 that they looked around for these persons along with police staff, and came to know that their names are Ashok, Sukan and Sujan, and that the complainant PW-6 can identify these persons.
5.5. Comparing this statement Ex PW 2/A, which has been proved by FIR No. 26/09, PS Nangloi State Vs. Sujan & Ors.
Page 7/23PW-6 Inspector Brahm Dev in evidence, with the statement given by PW-6 during his examination-in-chief in the Court, the same is corroborated in general, except in relation to three material particulars.
5.5.1 Firstly, there is no mention in the statement Ex. PW 2/A that the victims PW-6 and PW-9 had been taken to the Sanjay Gandhi Hospital for medical examination. In the opinion of this Court, this does not appear to be a bonafide omission, as Ex. PW 2/A mentions that PW-6 and PW-9 looked around for the accused persons on the very same day. Now, as per the examination-in-chief of PW-6, search of accused persons along with the IO was taken up after the medical examination, and quite logically so. However, in the statement Ex. PW 2/A, the mention of medical examination is conspicuously absent.
5.5.2. Secondly, in his examination-in-chief, PW-6 states that on the same day, he accompanied the IO for search of accused persons, but could not trace them. The incident is reported to be of night at around 10:45 pm on 24.12.2008, and MLCs of PW-9 HC Rajender & PW-6 Inspector Brahm Dev (Ex. PW 4/A and Ex. PW 4/B) have been conducted on 25.12.2008 at 12:05 am and 12:10 am, respectively, and therefore, PW-6 could not have accompanied the IO for search of accused persons on the very same day.
5.5.3. Thirdly, Ex. PW 2/A mentions that PW-6 looked around for the accused persons alongwith the police staff, and came to know that their names were Ashok, Sukan and Sujan, however, such information about the names of accused persons is not mentioned in the examination-in- chief of PW-6 in the Court. Also, there is no mention anywhere of any person who told the names of accused to the police, and no such person has been made a witness.
FIR No. 26/09, PS Nangloi State Vs. Sujan & Ors.
Page 8/23
5.6 Coming to the statement of another alleged victim PW-9 HC
Rajendra Singh, he has broadly supported the testimony of PW-6, in his examination-in-chief in the Court. However, his testimony provides no help to the prosecution case, due to the following reasons.
5.6.1. Firstly, he states that he does not remember the registration number of PCR van which took him to the hospital, and no DD entry regarding taking of injured policemen to the hospital, bearing the registration number of the PCR van used for the purpose, has been placed on record in the charge sheet or proved by the prosecution.
5.6.2. Secondly, no duty roster to support the factum or occasion of presence of HC Rajender on the spot of occurrence, at the alleged date or time, has been proved.
5.6.3. Thirdly, in his cross-examination by Ld. Defence Counsel, he has stated that he and PW-6 SI Brahm Dev reached at the gate of the police station, Nangloi at around 11:45 pm to 12:00 am midnight, and that they were immediately taken to the Sanjay Gandhi Hospital. This statement is contrary to the testimony of PW-6 who has stated in his examination-in- chief that he accompanied the IO for search of accused persons on the very same day, and has not made any mention of being taken to Sanjay Gandhi Hospital in a PCR van, in his statement to police Ex. PW 2/A. 5.7 The Investigation Officer of the present case is PW-5 SI Dalbir Singh, who has stated in his examination-in-chief that on 24.12.2008, he was posted in PS Nangloi as a Head Constable, and on that day, he received an information at about 11:05 pm regarding a quarrel at police colony, Rohtak Road, Nangloi, Delhi, which was reduced into writing vide DD No. 41A, which has been proved as Ex PW 5/A. He is not an eye-
FIR No. 26/09, PS Nangloi State Vs. Sujan & Ors.
Page 9/23witness to the alleged incident, and has further stated that upon the aforesaid information, he went to the place of incident, where a large number of public persons had assembled, and it transpired that the injured had already been admitted in Sanjay Gandhi Memorial Hospital, and upon this information, he went to the aforesaid hospital and collected the MLC of injured persons PW-6 Inspector Brahm Dev and PW-9 HC Rajender Kumar. He further states that when he reached the hospital, the aforesaid injured persons had already left the hospital after getting their medical examination conducted. He further states that he then came back to the police station, wherein the aforesaid injured persons were found present, and a complaint was made by Inspector Brahm Dev, which is Ex. PW 2/A, and that the said complaint was kept pending till 27.01.2009 as the result of MLC was awaited, and after getting the MLC result, the present case was registered. He has also proved his endorsement on Tehrir/rukka as Ex. PW 5/A, bearing his signatures at point A. He further states that after the registration of FIR, he went to the spot and prepared site plan Ex PW 5/A, and on 31.01.2009, arrested the accused persons from their respective colonies vide arrest memos Ex PW 3/A. Ex. PW 3/B and Ex. PW 3/C, all bearing his signatures at point B, who, after their personal search vide memos Ex PW 3/D, Ex PW 3/E and Ex PW 3/F, were released on police bail. Now, this Court proceeds to discuss the facts and circumstances which shall expose the inherent fallacies of the testimony of Investigating Officer PW-5 SI Dalbir Singh.
5.7.1 Firstly, Exhibit PW 5/A. which is DD entry no. 41 A, regarding the first information of the incident, and has been exhibited in evidence by PW-5, mentions that the information was given by one Constable Om Prakash, but no such person has been produced as a witness to testify as to how did he get the knowledge of the incident, and as to the identity of the person who actually made the PCR call, and the date and time thereof, by exhibiting the PCR form and call details in evidence.
FIR No. 26/09, PS Nangloi State Vs. Sujan & Ors.
Page 10/23
5.7.2 Secondly, as per PW-6 and PW-9, who are the alleged
victims in the present case, the alleged incident happened in such close vicinity of the police station, Nangloi, that they ran and entered the police station, Nangloi, to save their lives, upon which the accused persons fled away. PW-5 has stated to have received information qua DD no. 41 A at 11:05 pm itself, and as per the testimony of PW-6 and PW-9, the incident occurred at 10:45 pm. PW-5 states that upon receipt of Ex PW 5/A, that he went to the scene of occurrence, wherein he was told that victims had been taken to the hospital. It is pertinent to note that the scene of occurrence is stated to be in close proximity to the police station, Nangloi, and thus, the transaction of the Investigating Officer going to scene of occurrence and then to the hospital, would not have taken much time. As per the MLCs Ex. PW 4/A and Ex. PW 4/B of PW-6 and PW-9, their medical examination was started at 12:05 am and 12:10 am respectively. In these circumstances, the statement of PW-5 in his examination-in-chief that the injured persons had already left the hospital when he reached there, lacks credibility, and further so, because PW-5 has nowhere mentioned the time at which he reached at the hospital. His testimony is further contradicted by injured PW-9 who admits in his cross-examination that PW-5 met him at the hospital and recorded his statement.
5.7.3 Thirdly, the alleged victim PW-9 HC Rajender Singh has admitted in his cross-examination by Ld. defence Counsel that he and PW-6 reached at the gate of the police station at around 11:45 pm to 12:00 am. When a group of persons were allegedly assaulting policemen in front of Nangloi Police Station with the help of lathis, dandas and iron-rods, it is highly unlikely that officials posted in the police station and on duty at that time, including PW-5 did not become aware of it. This statement of PW-9 is in direct conflict with the statement of PW-5 in his examination-in-chief who states to have received information of incident at 11:05 pm, and went outside only to find that a PCR van had taken the injured policeman to the hospital.
FIR No. 26/09, PS Nangloi State Vs. Sujan & Ors.
Page 11/235.7.4 Fourthly, the driver of PCR van has not been called as a witness, and it is highly unlikely that greviously injured PW-6 and PW-9 went to the police station, and drove themselves to the hospital.
5.8 PW-5 has further stated that the complaint was kept pending till 27.01.2009 as the result of MLC was awaited. However, he has not exhibited in evidence any request letter made to the Chief Medical Officer of Sanjay Gandhi Memorial Hospital, to give any opinion as to nature of injuries. PW-4 Dr. Binay Kumar, CMO, has proved MLCs of PW-6 and PW-9 as Ex PW 4/A and Ex PW 4/B, and has stated that PW-9 HC Rajender was referred to the Orthopedic Department, wherein he has examined by Dr. Raj, Senior Resident, who had opined the injuries to be grevious in nature, as PW-9 had suffered fracture on his hand. PW-4 has proved the signatures of Dr. Raj at point B and C on the said MLC. A perusal of MLC Ex PW 4/A of PW-9 reveals that the concerned doctor has given the opinion at point B and C but has not dated it. He has referred to the X-Ray No. 5392-54 dated 25.12.2008 itself, allegedly showing fracture in proximal phalyx of the second finger in left hand. Neither the said X-Ray has been proved in evidence, nor is there anything on record to show that such opinion regarding nature of injuries was given on 27.01.2009, and in such circumstances, the testimony of PW-4 as well as PW-5 comes under a shadow of doubt.
5.9 This Court now proceeds to analyse the evidence regarding the arrest of the accused persons. PW-3 HC Sunil is stated to have been a part of the investigation alongwith PW-5, and has stated in his examination-in-chief that on 27.01.2009, he joined the investigation with PW-5, and they went on the same day, to the Lokesh Cinema, Main Rohtak Road, in search of the accused persons. And during enquiry, the driver of vehicle bearing number DL-1PB-3799, who has not been made a FIR No. 26/09, PS Nangloi State Vs. Sujan & Ors.
Page 12/23prosecution witness, mentioned to the IO that the three accused persons were sitting together at the tea shop near Lokesh Cinema, upon which IO PW-5 arrested all the accused persons. This witness has also proved his signatures at point A upon the arrest memos and personal search memos of all the accused persons. His statement is in direct conflict with the date on the arrest memos Ex. PW3/A, Ex. PW 3/B and Ex PW 3/C of the accused persons, as the date of arrest on these arrest memos is 31.01.2009, and not 27.01.2009 as stated by PW- 3. Also, while PW-3 states that all the three accused persons were sitting together at a tea shop near Lokesh Cinema, main Rohtak Road, Nangloi, and were arrested from there, on 27.01.2009, PW-5 states that the accused persons were arrested separately from their respective colonies on 31.01.2009. However, the place of arrest in all these arrest memos is " near Lokesh Cinema, main Rohtak Road, Nangloi". In such circumstances, the testimony of PW-3 and PW-5 regarding apprehension of accused persons itself is rendered completely untrustworthy. It is pertinent to mention here that PW-5 seems to have carried out the entire investigation, without recording any departure or arrival entries.
5.10 Attention need also be paid regarding the source of information linking the accused persons to the offence, leading to their arrest. PW-6 has stated in his examination-in-chief that on the same day when the incident occurred, he went with PW-5, who is the investigating officer of the present case, for the search of accused persons, but could not trace them. In Tehrir Ex PW 2/A, PW-6 had stated on the other hand, that upon local enquiry on the same day, the name of assailants were revealed as Sujan, Sukan and Ashok.
5.10.1 In contrast, PW- 5 has nowhere stated that he went with PW-6 in search of accused persons on the very same day, and has, in fact, stated that when he reached at the spot of occurrence, he came to know that the injured persons had already been taken to the hospital, and that when he FIR No. 26/09, PS Nangloi State Vs. Sujan & Ors.
Page 13/23reached the hospital, the injured persons had already left the hospital after Medical Examination. Going by the testimony of PW-5, there seems to have been no occasion or opportunity for PW-5 and PW-6 to collaborate in the search of the accused persons on 24.12.2008.
5.10.2 In addition to this, PW-6 has mentioned the registration numbers of the buses from which accused persons got down to assualt PW-6 and PW-9, in his very first statement to the police Ex PW 2/A, and also in his examination-in-chief in the Court. However, no notice has been given to the owners of these buses or to the Delhi Transport Corporation, or to the staff deployed in these buses, to ascertain the names of the accused persons.
5.10.3 PW-6 states that upon local enquiry, the names of accused persons were ascertained on the very same day that is 24.12.2008. However, PW- 5 has admitted in his cross-examination on by Ld. defence Counsel, that no notice was served to the public persons for joining the investigation. PW-3 also makes mention of such local enquiry on 27.01.2009, and PW-5 is totally silent as to how did he ascertain the identity and whereabouts of the persons who allegedly assaulted PW-6 and PW-9 on 24.12.2008. In these circumstances, the testimony of all the material prosecution witnesses regarding identity of accused persons also appears to be in direct contradiction with each other.
5.10.4 Delving further into the issue of identification of accused persons, this Court now proceeds to examined the law settled in this regard by way of precedents. 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:-
FIR No. 26/09, PS Nangloi State Vs. Sujan & Ors.
Page 14/23" 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. 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)].
5.10.4.A 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 FIR No. 26/09, PS Nangloi State Vs. Sujan & Ors.
Page 15/23normally 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 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".
5.10.4.B 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 FIR No. 26/09, PS Nangloi State Vs. Sujan & Ors.
Page 16/23witness 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 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].
5.10.4.C 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 FIR No. 26/09, PS Nangloi State Vs. Sujan & Ors.
Page 17/23an 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 Hon'ble Supreme 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 Hon'ble Supreme 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 FIR No. 26/09, PS Nangloi State Vs. Sujan & Ors.
Page 18/23circumstances, conviction of the accused was upheld on the basis of solitary evidence of identification by a witness for the first time in court".
5.10.4.D 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, 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".
5.10.4.E 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 FIR No. 26/09, PS Nangloi State Vs. Sujan & Ors.Page 19/23
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 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".
5.10.4.F 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 FIR No. 26/09, PS Nangloi State Vs. Sujan & Ors.Page 20/23
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".
5.11. It is admitted that the accused persons were not known to the complainant police personnel before the incident. PW-6 has proved Ex PW 2/A, the first statement to the police, wherein he states that he can identify the accused persons if produced before him. However, PW-9 has categorically admitted that the IO PW-5 never called him to identify the accused persons. No test identification parade of the accused persons was ever conducted, and no application before a Ld. Metropolitan Magistrate was ever moved by the Investigating Officer. In such circumstances, the identification of accused persons by the complainants/ victims PW-6 and PW-9 in the Court, is of no consequence.
5.12 It is further pertinent to mention here that the altercation is alleged to have started, as per PW-6, upon a container hitting the vehicle in which PW-6 was travelling, whose registration number, not surprisingly, the complainant PW-6 does not remember, and neither such container was seized inspected or enquired about, nor the vehicle in which PW-6 was allegedly travelling, was inspected. Also, it would not be out of place to mention here that PW-5, who, admittedly, was a junior ranking officer of the same police station, to PW-6 who was the injured and the complainant, was handed over the investigation, and in such circumstances the manner and result of investigation cannot be said to be free from collusion and undue influence.
5.13 Coming to the most awkard part of this highly botched-up- investigation, SI Dharambir has appeared as PW-2, even though his name FIR No. 26/09, PS Nangloi State Vs. Sujan & Ors.
Page 21/23nowhere appears in the list of witnesses, in the Tehrir Ex PW 2/A, or for that matter, in any other evidentiary material or testimony of any other witness. The most suprising aspect of his testimony is that he has completely substituted himself in place of PW-6 in the entire prosecution story, and also has claimed to be the complainant, and to have given the statement Ex PW 2/A, which upon its perusal, clearly appears to have been given and signed by PW-6 Inspector Brahm Dev. The said witness has stated that it was him, who alongwith PW-9 HC Rajender, was assaulted by the accused persons on 24.12.2008, and states to have suffered injuries and to have been medically examined alongwith HC Rajender, and has made not a single mention of PW-6 Inspector Brahm Dev. The MLCs Ex PW 4/A and Ex PW 4/B clearly pertain to PW-6 Inspector Brahm Dev and PW-9 HC Rajender. He claims to have given statement U/s 161 Cr.P.C. to the police on 27.01.2009 however, there is no such statement in the charge sheet, apart from some sort of altercation dated 27.01.2009 on the Tehrir Ex. PW 2/A, whose purpose is not clear. In such circumstances, prosecution evidence entirely falls to the ground, and serious questions arise upon conduct of the complainant, PW-2 SI Dharambir, and that of PW-5 Investigating Officer SI Dalbir Singh. The suggestions by Ld. defence Counsel in cross-examination of all the prosecution witnesses, and the statements of accused persons in their examination by the Court U/s 313 Cr.P.C. have been that the accused persons were falsely implicated by the police when they failed to accede to their illegal demands for bribe, concerning the parking of buses in the Nangloi area. The present proceedings being for commission of offences U/s 323/ 341/ 325/ 34 of Indian Penal Code, no conclusions regarding any such motive of police officials can be arrived at, but what can be said with certainty is that right from the factum of incident itself to the identity of the accused persons, the prosecution has miserably failed to prove its case against the accused persons beyond reasonable doubt.
5.14 Accordingly as discussed aforesaid, the case of the prosecution is FIR No. 26/09, PS Nangloi State Vs. Sujan & Ors.
Page 22/23filled with inconsistencies, and lack of incriminating material against the accused persons, and in such a situation it would not at all be possible to say that the prosecution has proved its case beyond reasonable doubt. Hence (i) Sujan S/o Sh. Shishpal, R/o: H. No. 51/A, Tyagi Vihar, Nangloi, Delhi, (ii) Ashok S/o Sh. Lakshmi Narayan, R/o: H. No. H-17C, Kanwar Singh Nagar, Delhi, (iii) Sukan S/o Sh. Menpal, R/o: H. No. H2-17C, Kanwar Singh Nagar, Nangloi, Delhi are acquitted of the offences punishable u/s 323/325/34 IPC.
ABHINAV Digitally signed by ABHINAV PANDEY DN: c=IN, o=Office of the District and Sessions Judge (HQs), 2.5.4.20=a403a278b087559ac81dda23a51c0020ac6cc2 PANDEY 4393d42e9675d8befa0275bfdc, ou=TIS HAZARI COURTS,CID - 6740526, postalCode=110054, st=Delhi, cn=ABHINAV PANDEY Date: 2022.01.28 17:06:05 +05'30' ANNOUNCED IN THE OPEN (ABHINAV PANDEY) COURT ON 27.01.2022 MM-04 (WEST)/DELHI Containing 23 pages all signed by the presiding officer. Digitally signed by ABHINAV PANDEY ABHINAV PANDEY DN: c=IN, o=Office of the District and Sessions Judge (HQs), 2.5.4.20=a403a278b087559ac81dda23a51c0020ac6cc24393d42e96 75d8befa0275bfdc, ou=TIS HAZARI COURTS,CID - 6740526, postalCode=110054, st=Delhi, cn=ABHINAV PANDEY Date: 2022.01.28 17:06:33 +05'30' (ABHINAV PANDEY) MM-04 (WEST)/DELHI FIR No. 26/09, PS Nangloi State Vs. Sujan & Ors.
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