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2015 Supreme(Del) 3617
DELHI HIGH COURT
A.K. Pathak, J.
Arif - Appellant
Versus
State Govt. of NCT of Delhi - Resopndent
Criminal Appeal No. 1428 of 2011
Decided On : 22-01-2015
For the Appellant :Mr. B.P. Singh, Mr. K.V. Sreenithun and Mr. Devender Kumar, Advocate with appellant in person.
For the State : Mr. Yogesh Verma, APP.
The identification of an accused in court by a witness is substantive evidence but requires corroboration, and material discrepancies in the witness's testimony can raise doubts about the reliability of the identification.
Headnote:
Identification - Criminal Law - Indian Penal Code, 1860 - Sections 394/34, 397 - Evidence Act, 1872 - Section 9 - [SUMMARY]
Fact of the Case:
The appellant was convicted under Sections 394/34 and 397 of the Indian Penal Code for robbery and sentenced to rigorous imprisonment. The victim identified the appellant as one of the robbers, leading to the conviction. The appellant appealed against the judgment.
Finding of the Court:
The court found that the identification of the appellant by the victim in court, without corroboration, was not sufficient to establish guilt. The court also noted material discrepancies in the victim's testimony, leading to the benefit of doubt for the appellant.
Issues: The issues revolved around the sufficiency of the victim's identification in court, the admissibility of the appellant's refusal to participate in the test identification parade, and the material discrepancies in the victim's testimony.
Ratio Decidendi: The court emphasized that the identification of an accused in court by a witness is substantive evidence, but it requires corroboration. The refusal to participate in the test identification parade can lead to adverse inference unless a justifiable reason is provided. Material discrepancies in the witness's testimony can raise doubts about the reliability of the identification.
Final Decision: The court set aside the conviction and acquitted the appellant, granting the benefit of doubt. The appellant's bail bond and surety bond were discharged.
A.K. Pathak, J.:-- (Oral)
1. Aggrieved by the judgment dated 21st October, 2011 and order on sentence dated 22nd October, 2011, whereby appellant has been convicted under Sections 394/34 as well as Section 397 of the Indian Penal Code, 1860 (IPC) and sentenced to rigorous imprisonment for seven years and pay fine of Rs. 5,000/- each for both the offences, appellant has preferred this appeal.
2. Factual matrix as unfolded is that on 5th January, 2010 at about 8:00 PM, an information was received in the Police Station Krishna Nagar, Delhi from one Shri Ram Singh that on the main road of Vishwas Nagar, two persons had committed robbery at the point of knife, pursuant whereof DD No. 23-A (Ex. PW2/C) was recorded and handed over to Sub Inspector Kanta Prasad for investigation, who reached the spot along with Constable Prembir Singh Bhati and came to know that victim had already been removed to Dr. Hedgewar Hospital. Sub Inspector Kanta Prasad reached the said hospital after leaving Constable Prembir Singh Bhati at the spot and obtained MLC of the victim Shri Narender Kumar and recorded his statement, wherein victim stated that he was an auto-rickshaw driver and he parked his auto-rickshaw bearing No. DL-1RE-6236 in front of Sri Ram Hospital, Karkardooma for answering the call of nature. At about 8 PM, appellant Arif and Rahish @ Chotu (whose names were disclosed after arrest of appellant) came there and started scuffling with him in order to rob him; when he resisted their this act, they caused injuries on his hand by the knife and snatched Rs. 14,400/- along with two identity cards of his children. They hit him on his head by a bottle and fled away. Victim stated that he can identify the said boys, if brought before him.
3. Sub Inspector Kanta Prasad wrote rukka Ex. PW8/A, pursuant whereof FIR No. 4/2010 (Ex. PW4/A) under Sections 394/34 IPC was registered. MLC Ex. PW1/A of victim was obtained. Doctor opined the injuries of victim as simple caused by the sharp object. On 6th May, 2010, appellant was arrested in FIR No. 104/2010 under Sections 324/34 IPC read with Sections 25/27 of the Arms Act by the police officials of Police Station Krishna Nagar. In the said case, appellant appears to had made a disclosure statement regarding his involvement in the present FIR. He further disclosed that Rahish @ Chotu was his accomplice. Accordingly, appellant was arrested in the present FIR as well. Rahish @ Chotu could not be apprehended. Nothing was recovered in this case from the appellant’s alleged disclosure statement. Knife was not recovered. Test Identification Parade (TIP) of the appellant was conducted on 17th May, 2010 but he refused to participate in the TIP, on the pretext that he was already shown to the victim.
4. After completion of investigation, appellant was sent to face trial for the offence under Sections 397/34 IPC by filing a charge-sheet in the court of Metropolitan Magistrate, Delhi. Documents, as envisaged under Section 207 of the Code of Criminal Procedure, 1973 (Cr.P.C.), were supplied to appellant by the Metropolitan Magistrate, Delhi and thereafter, case was committed to the Sessions court for trial, since offence under Section 397 IPC is triable by the Sessions Court.
5. Charges under Sections 394/34 and 397 IPC were framed against the appellant on 27th April, 2011 to which he pleaded not guilty and claimed trial. Accordingly, trial commenced. Prosecution examined 8 witnesses in all. Thereafter, statement under Section 313 Cr.P.C. of appellant was recorded, wherein entire incriminating material, which had come on record in the evidence of prosecution, was put to appellant. Appellant denied his complicity in the crime and claimed himself to be innocent. However, appellant did not lead any evidence in his defence.
6. Star witness of the prosecution in this case is victim PW5 Shri Narender Kumar. His testimony has been found trustworthy and reliable by the trial court to conclude that prosecution had succeeded i
