Nanhe vs State

S. Muralidhar, J.

This appeal is directed against the impugned judgment dated 25th March 2008 passed by the learned Additional Sessions'' Judge ("ASJ"), Karkardooma Courts, Delhi in Sessions Case No. 285 of 2006 convicting the Appellant for the offences under Sections 392 and 397 IPC. The appeal is also directed against the impugned order on sentence dated 29th March 2008 whereby the Appellant was sentenced to undergo rigorous imprisonment ("RI") for three years and to pay a fine of Rs. 2,000 for the offence punishable under Section 392 IPC and in default of fine, to undergo RI for six months. He was also sentenced to undergo RI for a period of seven years for the offence punishable under Section 397 IPC. Both the sentences were directed to run concurrently. This Court had by its order dated 31st March 2009 suspended the sentence awarded to the Appellant during the pendency of the appeal.

The case of the prosecution was that on 5th May 2003 at about 2-pm the Complainant Virender Kumar Jain, PW-2 was present in his factory along with Ashok Kumar Jain, PW-1. PW-2 had sent his servant to bring tea for them. In the meantime, the Appellant along with two associates entered the factory premises armed with a country made pistol and knives. The Appellant and the two associates had, at knife point, peeled of the gold chain of PW-2 from his neck, besides a sum of Rs. 2,500 from his pocket and also robbed a sum of Rs. 16,000 from the possession of PW-1.

The Appellant was arrested on 12th May 2003 in the present case when he had appeared before the Magistrate pursuant to the production warrants issued in another FIR No. 229 of 2003. Learned counsel for the Appellant informs the Court that in the case arising out of the said FIR the Appellant has been acquitted.

The Appellant and the co-accused declined to participate in the Test Identification Parade ("TIP"). Charges were framed against the accused for the offences under Sections 120B, 395 and 397 IPC to which they pleaded not guilty and claimed trial. Since the co-accused, Surender Singh, absconded, he was declared as a proclaimed offender on 20th May 2005.

Mangal Singh, PW-3 is stated to have brought tea for PW-1 and PW-2 at which time the incident took place. He failed to identify the accused persons in the Court. PW-1, Ashok Kumar Jain, identified the Appellant in the Court but was unable to identify the co-accused. As far as PW-2, Virender Kumar Jain is concerned, he too identified the Appellant in the Court. However, in his cross-examination, PW-2 stated that "The accused persons had been brought to my house after two three days of the incident at about 6.00 pm in the evening. I cannot say as to whether the accused persons were handcuffed. The faces of the accused persons were not muffled." PW-1 was also cross-examined. He stated that he had identified the Appellant only in the Court.

The trial Court has, in the impugned judgment, observed that "Taking the accused persons to the house of Virender Kumar Jain is a wrong practice on the part of Investigating Officer, but it nowhere castigate testimony of the former." The trial Court was of the view that the evidence of PW-2 could not be stated to have been vitiated as a result of the accused having been shown to him in the above manner.

In Rabindra Kumar Pal @ Dara Singh Vs. Republic of India, the Supreme Court observed that "It is well settled principle that in the absence of any independent corroboration like TIP held by Judicial Magistrate, the evidence of eyewitnesses as to identification of the Appellants/accused for the first time before the trial Court generally cannot be accepted."

In the present case, there is no doubt that the Appellant declined to participate in the TIP. Also the evidence of PW-2 shows that when the Appellant was taken to the house of PW-2 by the police, his face was not muffled. There is no justification as to why the accused was taken to the house of PW-2. In the circumstances, the Appellant was justified in declining to participate in the TIP. In similar circumstances, in Delhi Administration Vs. Bal Krishan and Others, the Supreme Court agreed with the approach of the trial Court not to accept the TIP evidence since it had not been explained by the Investigating Officer "why and when it was found necessary by him to bring the accused to the house where the dacoity had been committed."

In Murari Vs. State, , the Division Bench of this Court held that the mere refusal to participate in the TIP by itself was not sufficient to hold the Appellants guilty when the possibility of their identity had been disclosed by the police could not be easily brushed aside.

In the present case PW-1 and PW-2 were the persons present at the time of the incident. The fact that the identity of the Appellant was already disclosed to PW-2 during investigation makes the identification of the Appellant in the Court for the first time by PW-1 and PW-2 inconsequential. In Mohd. Iqbal M. Shaikh and Others Vs. The State of Maharashtra, , it was held that once the accused was already shown to the witness, the identification made by the witness in the Court is of no significance.

Consequently, the Court is unable to agree with the reasoning of the trial Court in the impugned judgment. The Court is of the view that the benefit of doubt ought to be given to the Appellant.

Accordingly, the impugned judgment dated 25th March 2008 is hereby set aside and the Appellant is acquitted of the offences for which he was tried. The bail bond and the surety bond of the Appellant stands discharged.

The appeal is disposed of. Order be given dasti. The trial Court record be sent back forthwith.