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IN THE HIGH COURT OF DELHI AT NEW DELHI
MANMOHAN, SANGITA DHINGRA SEHGAL, JJ.
Mahesh Kumar - Appellant
Versus
State - Respondent
CRL.A. 1199, 1022, 560 of 2018
Decided On : 06-03-2020
CRIMINAL - EVIDENCE ACT - SECTION 118 - IDENTIFICATION PARADE - TEST IDENTIFICATION PARADE - RELIABILITY - FACTORS TO BE CONSIDERED - OPPORTUNITY TO SEE THE ACCUSED AT THE TIME OF OCCURRENCE - DELAY IN HOLDING TEST IDENTIFICATION PARADE - EFFECT - COURT'S APPROACH - CASE WHERE WITNESS HAD ONLY A FLEETING GLIMPSE OF THE ACCUSED AT THE TIME OF OCCURRENCE - DELAY IN HOLDING TEST IDENTIFICATION PARADE - TO BE VIEWED SERIOUSLY - COURT TO BE SATISFIED THAT WITNESSES HAD AMPLE OPPORTUNITY OF SEEING THE ACCUSED AT THE TIME OF THE COMMISSION OF THE OFFENCE AND THERE IS NO CHANCE OF MISTAKEN IDENTITY - DELAY MAY NOT BE HELD TO BE FATAL - DEPENDS UPON THE FACTS AND CIRCUMSTANCES OF EACH CASE.
Fact of the Case:
The prosecution case was based on the testimony of the injured eye-witness PW-2 (Ram Karan @ Rudra Pratap); that the testimony of PW-2 (Ram Karan @ Rudra Pratap) is not of sterling quality and is full of inherent discrepancies, concoctions and inconsistencies; that the testimony of PW-2 (Ram Karan @ Rudra Pratap) is not corroborated by the other witnesses who have been examined by the prosecution in order to establish the false story put up to rope in the appellants in the present crime.
Finding of the Court:
The court held that the testimonies of the prosecution witnesses suffer from inconsistencies, are not cogent and cannot be relied upon. The prosecution failed to give any explanation why PW-2 (Ram Karan @ Rudra Pratap) remained silent after the stabbing of the deceased till 10:15 AM on 09.07.2009. Further, PW-2 (Ram Karan @ Rudra Pratap) failed to elaborate upon the fact of stabbing to HC Ramesh Chand who took him to DDU Hospital or to the examining doctor who prepared the MLC. The prosecution even failed to prove the persons at whose instance the body of the deceased was recovered. Moreover, there is failure of the prosecution to explain the cause which led them to not seize the blood-stained clothes of PW-2 (Ram Karan @ Rudra Pratap). In addition to the aforesaid, the Guard who could have supported the prosecution case and brought clarity to the happening of the said incident was not examined by the prosecution and no valid explanation was provided for such omission. The aforesaid inconsistencies and the lacunae when read together weaken the case of the prosecution.
Issues: Whether the testimony of the prosecution witnesses is reliable and can be made the ground to convict the appellants in the present case.
Ratio Decidendi: The court held that the testimony of the witnesses produced by the prosecution to establish its case are not reliable and they cannot be made the ground to convict the appellants in the present case.
Final Decision: The appeals of all the three appellants namely Mahesh Kumar, Ravi alias Rambo and Ajay alias Golden are allowed and the judgment of the learned Trial Court is set aside. All the three appellants namely Mahesh Kumar, Ravi alias Rambo and Ajay alias Golden are acquitted of the charges under Section 394 read with Section 34 IPC, Section 302 read with Section 34 IPC and section 174-A IPC.
JUDGMENT :
SANGITA DHINGRA SEHGAL, J.
1. Present appeals arise out of a common judgment dated 18.07.2018 and order on sentence dated 18.07.2018 passed by the learned Additional Sessions Judge (Pilot Court), Tis Hazari Courts, West, Delhi in Sessions case No. 57732/2016, in FIR No. 189/2009, registered under Sections 394/397/302/34/120B of the Indian Penal Code (hereinafter referred to as ‘IPC’) at Police Station Kirti Nagar, whereby the Learned Sessions Judge found the appellants guilty and passed the following order:
85. All the three accused persons are also held guilty for commission of offence punishable under Section 302 IPC read with Section 34 IPC and are hereby convicted.
86. Accused persons namely, Ajay @ Golden and Mahesh Kumar @ Maheshwa are held guilty for commission of offence punishable under Section 174-A IPC and are hereby convicted.
87. However, all the three accused persons stand acquitted of the charge for the offence punishable under Section 120-B IPC.”
2. The trial court vide separate order dated 18.07.2018 passed the order on sentence, which is reproduced here-in-below:
(ii) For the offence punishable under Section 302/34 IPC, the convict namely Ravi @ Rambo is sentenced to undergo imprisonment for life and to pay fine of Rs.5000/-. In default of payment of fine, the convict Ravi @ Rambo is further sentenced to undergo rigorous imprisonment for a period of six months.
2. (i) For the offence punishable under Section 394/34 IPC and in view of minimum sentence stipulated under section 397 IPC, the convict namely Ajay @ Golden is sentenced to undergo rigorous imprisonment for a period of ten (10) years and to pay fine of Rs.3000/-. In default of payment of fine, the convict Ajay @ Golden is further sentenced to undergo rigorous imprisonment for a period of three months.
(ii) For the offence punishable under Section 302/34 IPC, the convict namely Ajay @ Golden is sentenced to undergo imprisonment for life and to pay fine of Rs.5000/-. In default of payment of fine, the convict Ajay @ Golden is further sentenced to undergo rigorous imprisonment for a period of six months.
(iii) For the offence punishable under Section 174-A IPC, the convict namely Ajay @ Golden is sentenced to undergo rigorous imprisonment for a period of seven (7) years and to pay fine of Rs.1000/-. In default of payment of fine, the convict Ajay @ Golden is further sentenced to undergo rigorous imprisonment for a period of one month.
3. (i) For the offence punishable under Section 394/34 IPC and in view of minimum sentence stipulated under section 397 IPC, the convict namely Mahesh Kumar @ Maheshwa is sentenced to undergo rigorous imprisonment for a period of ten (10) years and to pay fine of Rs.3000/-. In default of payment of fine, the convict Mahesh Kumar @ Maheswar is further sentenced to undergo rigorous imprisonment for a period of three months.
(ii) For the offence punishable under Section 302/34 IPC, the convict namely Mahesh Kumar @ Maheswar is sentenced to undergo imprisonment for life and to pay fine of Rs.5000/-. In default of payment of fine, the convict Mahesh Kumar @ Maheshwa is further sentenced to undergo rigorous imprisonment for a period of six months.
(i
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