The prosecution must establish that the accused were not shown to the witnesses before refusing the test identification parade, and the nature of recovered articles can influence the benefit of doubt in favor of the accused.

1. Manish Dubey and Navin challenge the impugned judgment dated 16th December, 2015 convicting them for offences punishable under Section 397 IPC read with Section 392/34 IPC and the order on sentence dated 22nd December, 2015 directing them to undergo rigorous imprisonment for a period of seven years each and to pay a fine of Rs.2,000/- each, in default whereof to undergo rigorous imprisonment for a period of one month each.

2. Assailing the conviction, learned counsel for Manish Dubey contends that the appellant was not arrested at the spot. He was arrested in another FIR being FIR No. 3/2012 and on the basis of disclosure statement of Navin, appellant was arrested in the present FIR. There was no recovery from the appellant either of the robbed goods or the pistol. He refused for test identification parade because he was shown to witnesses in the police station. Reliance is placed on the decision reported as 1994 (30) DRJ 291 Anoop Singh v. The State. CCTV footage has not been produced in evidence and no satisfactory explanation has been rendered why CCTV was shut at the time of incident. Furthermore, stating exact robbed amount immediately after the incident was unnatural. Lastly, the appellant has been acquitted in FIR No. 3/2012 and he is not involved in any other case.

3. Learned counsel for Navin urges that no CCTV footage either from the shop or the market has been placed on record and the explanation rendered for non production is not credible. There are contradictions in the testimony of Kabir (PW-1), Manoj (PW-2) and Ankur Arya (PW-10) with respect to CCTV footage. There is difference in time as to how long the police stayed at the spot. There is inconsistency with regard to counting of cash. No independent person from the market or nearby shops was made a witness. No finger prints or chance prints were lifted from the spot. Manoj admitted that the site plan was not prepared at his instance and all the proceedings were conducted in the police station. With respect to TIP proceedings, reliance is placed upon the decisions reported as AIR 2007 SC 2400 State of Madhya Pradesh v. Chamru @ Bhagwandas etc. and 2015 (2) JCC 1022 Arif v. State of Govt. of NCT of Delhi.

4. Learned APP for the State on the other hand submits that the testimony of Kabir and Manoj are clear and categorical. SI Amit Kumar (PW-12) stated in his testimony that the appellants were produced in muffled face and immediately thereafter, the appellants were sent to judicial custody. No suggestion has been given either to SI Rajeev Bamal (PW-15) or Insp. Mahabir Singh (PW-16) in this regard. Stolen property has been recovered from the appellants. Lastly, the case of the prosecution was that the dossier was first shown and subsequently, Kabir and Manoj identified the appellants.

5. Process of law was set into motion on 27th December, 2011 at around 9:50 P.M. on receipt of information stating that two-three boys came with a pistol and robbed Numero Uno showroom at Rohini Sector 7, Pocket 7. Aforesaid information was recorded vide DD No. 29A (Ex.PW-4/A) and was entrusted to SI Amit Kumar. He along with Ct. Devender Singh (PW-9) reached showroom of Numero Uno, where Kabir and Manoj, employees of showroom, met them. He interrogated Kabir and recorded the statement of Kabir wherein he stated that he was a resident of village Kalyanpur, Kanpur, Uttar Pradesh and since about last 8 months, he was staying at Jahangirpuri as a tenant and working at showroom of Numero Uno at Sector 7, Rohini as salesman. On 27th December, 2011 at about 9:30 P.M., he along with the other salesman Manoj Kumar was present at showroom, when 2 boys aged around 24-25 years, one was about 5’5” in height, strong built, wheatish complexion and the other one was 5’8” in height, thin built, wheatish complexion, came to the showroom. He stated that both were carrying country made pistols (katta) in their hands, which they pointed at them. As soon as they entered the showroom, they threa