Deepak vs State

Dr. S. Muralidhar, J.—Criminal Appeal No. 197 of 2008 has been filed by Deepak @ Bhola son of Chander Pal and Viru against the impugned judgment dated 8th January 2008 passed by the learned Additional Sessions Judge (''ASJ'') in Sessions Case No. 153 of 2000 convicting them of the offence under Sections 392, 394 read with 34 I.P.C. and the order on sentence dated 15th January 2008 sentencing them to undergo rigorous imprisonment CRT) for four years each and to pay a fine of Rs. 5,000 each and in default to R.I. for six months for the offence u/s 392 read with 34 I.P.C. and to undergo RI for five years and to pay a fine of Rs. 5,000 each and in default to further undergo RI for six months each for the offence punishable u/s 394 read with 34 I.P.C. Criminal Appeal No. 251 of 2008 is by Vinay @ Pintu challenging the same common impugned judgment dated 8th January 2008 whereby in addition to being convicted for the offences under Sections 392 and 394 I.P.C., he was also convicted for the offence u/s 397 I.P.C. He has also challenged the order on sentence dated 15th January 2008 whereby in addition to the sentence awarded on par with those awarded to the other two co-accused he has been sentenced to undergo RI for seven years for the offence u/s 397 I.P.C.

It must be noticed at the outset that during the pendency of the aforementioned Criminal Appeal No. 251 of 2008, the Appellant Vinay expired and by an order dated 11th February 2011 his wife was granted leave to continue the appeal.

The case of the prosecution is that the Complainant Jagbir Singh (PW-1) had gone to collect the earnings of certain blue line buses in the intervening night of 19th/20th June 2000 in the area of Indra Market, Trilok Puri, Delhi.. He had collected a sum of Rs. 6,000 and was returning home. It was midnight and dark. When he reached near the transformer at Indra Market, three boys aged about 20 to 25 years, standing there under the cover of darkness, confronted PW-1. Two of them caught hold of his hands and the third removed money from his pocket. When PW-1 resisted and raised an alarm, the person who had removed the money from his pocket took out an iron angle type object from underneath his waist and gave several blows over the head of PW-1. PW-1 fell down and became unconscious.

In his examination-in-chief, PW-1 states that the persons who caught hold of him were uttering ''Pintu Mar-Pintu Mar''. PW-1 regained consciousness in the SDN Hospital, Mayur Vihar. PW-2 Som Dutt Chahal stated that he was going by that area at the same time when he noticed that 5 to 6 people were running. They were chasing some persons running ahead of them and raising alarm. He was on a scooter. He parked his scooter and followed the crowd. However, those being chased managed to escape. When he returned to take his scooter, he saw PW-1 in an injured condition. He was supposed to have been told by PW-1 that he had been assaulted by the three boys. However, PW-2 could not identify the three boys. PW-2 states that he called the Police Control Room (''PCR'') and assisted in taking PW-1 to the SON Hospital.

Assistant Sub-Inspector (ASI) Shiv Raj Singh (PW-5), the Investigating Officer (IO) attached to police station Mayur Vihar, was assigned a copy of DD No. 29A at around 12.30 am on 19th June 2000. He along with Constable Mukesh reached the spot and learnt that PW-1 had been removed to the hospital. He states that he came to know from the public gathered there that one person named Pintu and his associates had snatched money from P.W-1. At the spot itself he received a copy of DD No. 33D from a Constable to the effect that PW-1 was admitted to the SDN Hospital. He then went to the hospital and recorded the statement of PW-1. He recorded the rukka (Ex. PW-5/C) and gave it to the Constable for registration of the case. He also recorded the statement of PW-2. Returning to the spot, he prepared the site plan (Ex. PW-5/D). In the meanwhile, Constable Mukesh reached the spot with a copy of the FIR (Ex. PW-5/E) and the original rukka.

According to PW-5, he searched for Pintu in the nearby locality but he was not present in his house. He then deployed an informer. Meanwhile, the accused persons had applied for anticipatory bail but withdrew it. Ultimately on 24th June 2000, at the instance of the informer, Pintu was arrested when he was standing outside his house. He was brought to the police station and his disclosure statement was recorded. He disclosed his name to be Vinay and those of his associates as Bhola (Deepak) and Viru. Vinay is stated to have led the police party to his house and produced Rs. 1100 and an iron angle from an iron box kept in the south west corner of his house. The currency notes and iron angle were taken in to possession by memo Ex. PW-5/H.

Next, according to PW-5, the police went to the house of Viru who was present at his house. He was arrested and searched. He is stated to have produced Rs. 600 out of his pant pocket kept on a peg which was taken into possession by memo Ex. PW-5/L. Thereafter, the police party went to the house of Deepak @ Bhola where Deepak met them and was arrested. He was personally searched. Deepak is stated to have produced Rs. 500 from his house. The police party and the accused then returned to the police station. The accused were kept in the police lockup and the case property was deposited in the malkhana.

In his evidence, PW-5 states that on 25th June 2000 he filed an application in the Court of Shri Brijesh Garg, Metropolitan Magistrate (''MM'') for conducting a test investigation parade (''TIP'') of the accused persons. The said application was assigned to Mr. S.K. Aggarwal, Metropolitan Magistrate. Mr. S.K. Aggarwal was examined as PW-6. He stated that the three accused persons were produced before him in muffled faces and were represented by an advocate. After consulting their advocate, the three accused persons refused to participate in the proposed TIP. Despite being warned that their refusal could lead to an adverse inference against them, they persisted on their refusal. Their refusal statements were marked as Ex. PW-5/A-1, Ex. PW-5/B-1 and Ex. PW-5/C-1.

The refusal statement of Pintu read:

I do not want to participate in TIP proceedings, as police has shown me to the witnesses at PS Mayur Vihar today before bringing me to Court. I have been understood the consequences of my refusal". Deepak stated: "Police has shown me to the witnesses at PS Mayur Vihar today. I therefore do not want to join TIP proceedings. I have been explained the consequences of refusing to participate in TIP which I have understood." It was stated by Viru: "I do not want to take part in proposed TIP proceedings as the police has shown me to the witnesses for quite sufficient time at PS Mayur Vihar today itself. I know the consequences of my having refused to take part in TIP proceedings".

Interestingly, PW-6 was not asked by the learned APP as to when, during the day, the above application was moved and the aforementioned statements of the accused recorded. From the deposition of PW-1, it appears that by some coincidence and without any prior knowledge of the IO having moved an application for conducting the TIP, PW-1 visited the Karkardooma Courts on 25th June 2000 in connection with some challan of his vehicle. He stated that he saw the three accused "in the custody of police in front of Court room of learned Metropolitan Magistrate Shri Brijesh Kumar". It is plain that the three accused when seen by PW-1 at that time were not in muffled faces. This is because PW-1 states "I identify them to be assailant, who had robbed me and caused injuries on my person". He then proceeded to identify the three accused persons in Court as well. This deposition of PW-1 was recorded on 16th March 2007, nearly seven years after the date of incident.

In his cross-examination he states as under:

It is incorrect that I had not come to the Court on 25.6.2000 in connection with any traffic challan or that I am deposing falsely. I do not remember the Court room number, where I have allegedly seen the accused persons in police custody. I have seen them at about 2:00/2:30 pm. Their face was muffled. The room where I had seen the accused persons was at second floor. The Court of Sh. Brijesh Garg was also on the same floor. It is incorrect that I am deposing falsely to this effect.

This identification by PW-1 of the accused was recorded by the IO as a supplementary statement of PW-1 u/s 161 Cr.P.C. In the said statement, he stated that he saw the three accused whose names he later learnt as Deepak, Viru and Vinay @ Pintu who had attacked him on the intervening night of 19th/20th June 2000. While the time of recording the above statement is not indicated, in his deposition he stated that he saw them around 2 to 2:30 pm. What is also significant is that PW-1 stated that "I was never called by the IO for judicial TIP of the accused persons before any Court".

The incident occurred on a dark night and as soon as he was attacked, PW-1 became unconscious. The three accused were strangers to him. His identification of the three accused was, therefore, essential. Clearly, their faces were not muffled when they were standing outside the Court of learned MM Brijesh Kumar. PW-1 by some coincidence was at that place and identified them. They were obviously with the IO. Therefore the possibility of their being shown to PW-1 by the IO cannot be ruled out. This has to also be seen in the context of the answers given by the IO in his cross-examination as under:

It is correct that in June, 2000 Sh. Brijesh Garg was magistrate of our police station. Application Ex. DA was directly moved before Sh. S.K. Aggarwal, MM. It is correct that duty MM works from 4 to 5 pm on working days. It is incorrect that Ex. DA was moved by me before Sh. Aggarwal, when he was working as duty MM. It is incorrect that accused persons were brought to Court premise without covering their faces, and when they were produced before Aggarwal, their faces were covered. Jagbir identified the accused persons about 2 or 2.30 pm, outside the Court of Sh. Brijesh Garg.

It is a mystery as to how Jagbir could have identified the accused at about 2 to 2.30 pm, outside the Court of Shri Brijesh Kumar, if their faces were covered. It is plain that their faces were uncovered when he identified them and that the IO was present with the accused. The second fact is that this took place obviously even before the accused were taken before the learned MM Mr. S.K. Aggarwal. It is possible that when they were brought into the Court their faces were muffled but by then they had already been identified by PW-1 when they were in the police custody, in the presence of the IO.

In the above circumstances, it was the duty of the IO to have told the learned MM that the application for TIP was pointless because the injured/victim PW-1 had by then already identified the three accused. However, for some reason, the application for TIP was persisted with and rejected. The statements of the three accused declining the TIP appears justified if understood in the above context. By that time they had already been identified by PW-1 with their faces were uncovered. It probablised their version that they were also shown to PW-1 while in police custody. The only discrepancy is whether they were shown to PW-1 outside the Court or at the police station. However, this discrepancy was required to be explained by the prosecution and it failed to do so.

Ms. Aashaa Tiwari, learned APP for the State, submitted that there was no cross-examination of PW-1 to the effect that the accused were shown to him at the police station. She submitted that the trial Court was justified in drawing an adverse inference against the accused for their declining the TIP.

The Court is unable to agree with the above submission for more than one reason. First, the trial Court has completely overlooked the aspect of PW-1 having identified the three accused even before the application for TIP was moved. That application was moved between 4 pm and 5 pm which was the duty hour of the Link Magistrate. The accused were in custody when PW-1 identified them. The IO was also present. These facts have been elicited in the cross-examination of the IO. Therefore, it cannot be said that there was no cross-examination on this aspect. Secondly, it was for the prosecution to explain what purpose the TIP would serve, if by then PW-1 had already identified the three accused. Therefore, the failure of the accused to submit to the TIP cannot lead to drawing an adverse inference against them. Thirdly, it appears highly improbable that by some strange coincidence PW-1 happened to be outside the Court of Mr. Brijesh Kumar, MM on 25th June 2000 between 2 and 2.30 pm. According to him he was not called for the TIP at all. This too probablised the version of the accused that they were already shown to this witness when he purportedly identified them.

It appears that in the written arguments submitted in the trial Court, the counsel for the accused took the plea that since dossiers had been prepared of the three accused with their photographs and this was available with the prosecution, there was no point in holding the TIP with the participation of PW-1. Clearly, this was not plea taken by the accused either during cross-examination of the prosecution witnesses or in their statements u/s 313 Cr.P.C. In fact, in the statement u/s 313 Cr.P.C. they only say "since we were shown to the witness, we opted not to participate in the proposed TIP". Therefore, the inconsistent plea, if any, on this aspect was taken by learned counsel for the accused in the trial Court, and not by the accused themselves. Dehors the above pleas, it was incumbent on the trial Court to have dealt with the question of identification of the three accused by PW-1 outside the Court even prior to moving the application for holding the TIP. That aspect of the matter has been completely overlooked by the trial Court.

There are many other aspects which persuaded the Court to give the accused the benefit of doubt. As noticed by the trial Court itself, the money and the iron angle recovered were never shown to PW-1 to confirm whether it was same weapon used to attack PW-1 him. In other words, the recoveries purportedly made from the accused were never proved. This was an important link in the chain of evidence which remained to be proved by the prosecution. In a case of robbery, this can be fatal to the case of the prosecution. With the identification of the accused being doubtful and with the recoveries not being proved, the benefit of doubt was required to be given to the accused.

Consequently, the impugned judgment convicting the accused and the order on sentence passed by the trial Court are accordingly set aside. The accused are acquitted of the offences with which they are charged. The appeals are allowed in the above terms but, in the circumstances, with no order as to costs. The trial Court record be sent back forthwith.