*IN THE HIGH COURT OF DELHI +Crl.A.No. 224/2007 Judgment reserved on: 13th August, 2009 % Date of decision: 22nd September, 2009 Liyaqat Khan ... Appellant through: Mr. Sumeet Verma, Advocate Versus State ....Respondent through: Mr. Manoj Ohri, APP for the state CORAM: HON'BLE MS. JUSTICE GITA MITTAL 1.Whether reporters of local papers may be allowed to see the Judgment? Yes 2.To be referred to the Reporter or not? Yes 3.Whether the judgment should be reported in the Digest? Yes GITA MITTAL, J 1. By this appeal, the appellant has laid a challenge to his conviction by the judgment dated 22nd September, 2006 and the order of sentence dated 5th October, 2006 imposed thereon. 2. The present proceedings commenced on a complaint made by one Raj Kumar who was a three wheeler driver with regard to an incident which occurred on 29th February, 2004. He stated that he had left his house at 8 a.m. on a three wheeler scooter no. BL 1RJ 007. While returning home at about 10 p.m., he was waved to a stop near Mangol Puri bus stand by a fat person (referred to as 'Liyakat' by his companions) who was about 5'-6” in height and was dark complexioned with a moustache with burn scars on one hand. He was accompanied by two other persons. He hired the 1 complainant's auto rickshaw for going to Azadpur stating that his two companions were to be dropped at Uttam Nagar Terminal. At their instance the three wheeler was stopped near the Dholi Piau, Janakpuri, Delhi. Liyakat stated that he had to meet his brother who was working on the Metro. He got down from the three wheeler, walked some distance and returned to the right side of the complainant asking him to deliver all his valuables. The second person, referred to as Paina, took out a knife and placed the same on the complainant's neck. Liyaqat is alleged to have taken out Rs.595/- from the complainant's pocket while Paina snatched the complainant's wrist watch as well. 3. So far as the third person, later identified as Rajesh is concerned, he is also alleged to have taken out a knife. On the refusal of the complainant to start the three wheeler, Rajesh was alleged to have torn his shirt and attempted to stab him on his thigh. The complainant was then pulled out of the three wheeler and the same was driven away by Liyaqat. The complainant raised an alarm which was responded to by a constable who was passing by. They pursued the three wheeler on the motorcycle which was intercepted near the CRPF camp. In this process, the motorcycle overturned and the constable received injuries. Rajesh took out a knife and waved it in the air but he was apprehended while the other two accused persons escaped. 4. On the statement of the complainant, a case under section 2 392/397/411 read with section 34 of the Indian Penal Code and section 25/27 of the Arms Act was registered as FIR No. 130/2004 by the police station Kirti Nagar. 5. The other two accused persons, Liyaqat Khan who is the appellant before this court and Rakesh @ Paina, were arrested subsequently in some other cases where they made a disclosure statement disclosing their involvement in the present occurrence. They were, therefore, arrested in the present case as well. During the course of investigation, a test identification parade was conducted by the police in jail on 24th March, 2004. The complainant-Sh. Raj Kumar correctly identified the appellant and Rakesh @ Paina as being involved in the said incident. 6. The matter was committed to the courts of Sessions Judge where the trial of the appellant was held. By an order dated 6th July, 2004 charges were framed against all the three accused persons for offences punishable under section 392/34 of the Indian Penal Code for the robbery and under section 397 read with section 392 of the Indian Penal Code for the use of deadly weapon i.e. knives in the commission of such robbery. All the accused pleaded not guilty and claimed trial. 7. In support of its case, the prosecution examined 13 witnesses while only Rajesh led evidence in defence. The entire case of the prosecution rests on the testimony of PW 4 Raj Kumar and PW 5 Constable Mahesh Pratap. The prosecution has also relied on the 3 medical examination of Constable Mahesh Pratap with regard to the injuries which were suffered by him when the motorcycle had overturned at the time of interception of the three wheeler when it was being allegedly driven away by the accused persons. 8. Upon a detailed consideration, the learned trial court has passed a detailed judgment dated 22nd September, 2006 returning a finding of guilt against two of the accused persons on all counts. The learned trial judge separately heard the accused persons on the question of sentence and has passed a separate judgment dated 5th October, 2006 thereon. So far as the present appellant Liyaqat Khan is concerned, the trial judge observed that he had been convicted for a similar offence for the second time and consequently did not deserve any leniency. Consequently, for the commission of the offence punishable under section 392 of the Indian Penal Code, the appellant was sentenced to undergo rigorous imprisonment for a period of seven years and was also sentenced to pay fine of Rs.5000/-. In default of payment of fine, it was directed that he shall undergo simple imprisonment for a period of six months further. For the commission of the offence punishable under section 411 of the Indian Penal Code, it was directed that he shall undergo rigorous imprisonment for a period of 1½ years. Rakesh @ Paina, the third co-accused was acquitted of all charges. 9. Aggrieved by his conviction and sentence, the appellant has 4 filed the present appeal assailing the same. 10. Mr. Sumeet Verma, learned counsel who has been appointed an amicus curiae on behalf of the appellant has vehemently assailed the judgment of the trial court on factual and legal grounds. It is contended that PW 4-Raj Kumar; the complainant, hopelessly failed to support the case of the prosecution in the witness box and that there are contradictions in all material particulars in his testimony which have been completely overlooked by the learned trial judge. Strong reliance is placed on the refusal of PW 4 to identify the accused persons in the witness box during trial. 11. Learned counsel has also contended that as per the case of the prosecution, Rakesh was the prime accused in the matter who at knife point had compelled the victim to part with his wrist watch. Despite the statement made by PW 4 in this behalf, it is urged that the learned trial judge has disbelieved the prosecution and has acquitted Rakesh for the sole reason that PW 5-Constable Mahesh Pratap failed to identify this accused person in court. Learned counsel contends that admittedly there has been no recovery of any kind of the weapon of offence or of any of the stolen articles from the appellant. As a result, the trial court could have come to only one conclusion and that is one of the innocence of the appellant. 12. So far as the statement of the complainant is concerned, Mr. 5 Sumeet Verma, learned counsel has pointed out that the same is completely contradicted by the testimony of PW 5 Constable Mahesh Pratap in court. Learned counsel also assails the arrest of the appellant in the case in hand. It is pointed out that the appellant was not arrested in the present case and that he has been implicated in the present matter only on account of a disclosure statement allegedly made by him when he was apprehended in some other case. Another circumstance which is urged in support of the innocence of the appellant is the fact that the prosecution has not assailed the acquittal of Rakesh @ Paina, the co-accused in the case. 13. Learned counsel has further submitted that so far as the conviction for the offence under section 411 of the Indian Penal Code is concerned, no charge was laid against the appellant. Further more, as per the case of the prosecution itself, even if a charge was laid against the appellant, the same was not established. Learned counsel has contended that the appellant cannot be convicted simultaneously for the offence under section 392 and section 411 of the Indian Penal Code. 14. Mr. Manoj Ohri, learned APP for the state has strongly supported the judgment. It is contended that so far as the refusal of the victim to identify the accused person in court is concerned, not much would flow from the same inasmuch as it was a case of the victim also that PW 5 Constable Mahesh Pratap reached the 6 spot and has arrested the accused Rajesh after interception of the three wheeler in which they were trying to escape. The stolen vehicle was also recovered. It is further submitted that the PW 4 Raj Kumar had given a vivid physical description of the present appellant in the statement made by him based whereon the FIR was registered. PW 4 admitted his signatures on the statement which was given to the police during his testimony in court which has been exhibited as PW 4/A. 15. It is submitted that PW 4 was hostile only with regard to the identity of the accused persons and has attempted to draw a confusion between the roles which he had attributed to them in court. It is urged that PW 4 has otherwise supported the prosecution in all material particulars. 16. So far as the challenge to the conviction under section 411 of the IPC is concerned, learned APP for the state would support the judgment of the learned trial court on the ground that the appellant has been found guilty of the same for the reason that he was trying to escape with the robbed three wheeler. 17. In support of the submission that the testimony of PW 4 who has been declared hostile at the instance of the prosecution and been cross examined by it can be relied upon, Mr. Ohri has placed reliance on the pronouncement of the Supreme Court reported at (1999) 8 SCC 624 : 2000 Cr. L J 408 Koli Lakhmanbhai Chanabhai vs. State of Gujarat 7 18. Learned APP for the state has submitted that even if the testimony of PW 4 was to be read in its entirety, the appellant has been identified in court by PW 5 Constable Mahesh Pratap who has no animosity with the accused persons. It is submitted that the conviction of the appellant could be based on the sole testimony of PW 5. In support of this submission, learned APP has cited the pronouncement of the Apex Court reported at (1974) 3 SCC 584 Nathu Singh vs. State of Madhya Pradesh. 19. It is further urged that the appellant is not a first time offender but has been convicted of a similar offence on earlier occasions as well for which he has also undergone imprisonment. In view of the seriousness of the offence and its impact on society, it is urged that a strict view requires to be taken as the same would be counter productive in the long run. Learned APP has placed reliance on the pronouncement of the Apex Court reported at MANU/SC/0055/2005 : AIR 2005 SC 682 : 2005 Crl L J 913 State of Madhya Pradesh vs. Munna Choubey & Anr. 20. I have heard learned counsel for the parties and have also carefully examined the record of the trial court. The primary issue which arises for consideration is the wieght to be attached to the testimony of a witness who does not completely support the prosecution while making his deposition in court. PW 4 Raj Kumar is one such person. The case arose out of a complaint made by him with regard to an incident in which he was a victim. In his 8 testimony in court, while he does refer to an incident in which he was robbed of money, his wrist watch and his three wheeler scooter on knife point by three persons and he also affirms the fact that a police man on a motorcycle had stopped the autorickshaw but he refused to identify the accused persons as the persons who had robbed him. PW 4 has also wrongly mentioned this incident as having occurred on 29th April, 2004. 21. This witness was declared hostile by the court on the request of the learned prosecutor who thereafter subjected him to extensive cross examination. PW 4 affirmed that the police had recorded his statement which bore his signatures and was exhibited during the trial as Ex PW4/A. When confronted with portions of the statement, the witness did not dispute the correctness of Exh PW 4/A but only stated that he did not remember the portions with which he was confronted. 22. PW 4 had also confirmed that his shirt was torn by the robbers and that he had handed over the shirt and his pant to the police vide memo Ex PW 4/B which bore his signatures. PW 4 however denied that he had ridden pillion on the policeman's motorcycle when a chase was given to the autorickshaw which was being driven away by the robbers. He also denied that the autorickshaw was intercepted near the red light of the CRPF camp by the constable on the motorcycle or that the constable received any injuries. 9 23. PW 4 refused to identify the accused Rajesh in court who was apprehended at the spot. However, he admitted that his arrest memo Ex PW 4/C bore his signatures. The witness also admitted his signatures on the seizure memo of the knife and Ex PW 4/A which was a seizure memo of the three wheeler scooter. He did not assail these documents. There is no cross examination with regard to them either. 24. So far as the variation in the date of the incident is concerned, the complainant has explained that he did not remember the date. He however has clearly stated that he had gone for the test identification parade to Tihar jail on 24th March, 2004 and that he had identified the appellant Liyaqat Ali as well as the accused Rakesh @ Paina in the jail during the identification proceedings. When cross examined on behalf of the accused persons, the witness had supported the test identification parade and denied suggestions that he had identified the two accused in jail at the instance of the police. 25. Mr. Manoj Ohri, learned APP has carefully taken me through Exh PW 4/A the first statement given by the complainant. There is no contradiction so far as the date or place of the incident is concerned. In this statement, the complainant had given a vivid and graphic physical description of the robbers. He has described the person who had engaged his scooter as a fat boy who was 5'6” tall having a dark complexion and thick mustaches. The 10 complainant has clearly stated that this person was having scars of burns on both hands. The complainant had stated that the fat person who had engaged the scooter was the one who was being addressed as Liyaqat and had got down from the scooter near Dholi Piau on the pretext that his brother was working in Metro. He had gone for some distance and then returned to the right side of the scooter. The second peson who was thin and being addressed as Paina had taken out a knife. The complainant has made a similar statement to this extent in court. As per Exh PW 4/A, he then stated that Paina had put the knife on his neck and Liyaqat, the appellant had forcibly taken Rs.595/- from his pocket. In court, PW 4 stated that his money and wrist watch were snatched away by the boy who had put a knife on his thigh. 26. PW 4 has further stated that the appellant had demanded that he start the three wheeler and when he displayed reluctance, then Rajesh tore his shirt and tried to injure him with a knife on his left thigh. The complainant has stated that he started the three wheeler and thereafter he was forcibly asked to get down from the vehicle whereupon the present appellant drove off with the autorickshaw. In his deposition in court, PW 4 stated that the accued persons threatened to kill him if he did not give the TSR. 27. PW 4 Raj Kumar has stated that he raised an alarm when he was robbed and a police personnel reached there. In view of the 11 deposition of PW 4, the testimony of this police personnel, namely Constable Mahesh Pratap who was examined as PW 5 in court assumes importance. PW 5 has stated that while proceeding to his residence on completion of his duty on his motorcycle around 10.20 p.m., he saw a person complaining that his autorickshaw has been snatched. PW 5 made him sit on his pillion and they chased the miscreants towards the direction in which they had gone. The robbers took a u-turn at a red light and proceeded towards Uttam Nagar. When they reached near the CRPF camp on the outer Ring Road, PW 5 intercepted the three wheeler scooter by blocking it with his motorcycle whence he fell down. The robbers tried to escape. Two of the persons managed to run away. However one of them could be apprehended who pulled out a knife. PW 5 grappled and overpowered him taking away the knife from him. PW 5 has clearly stated that he had seen the face of the person who was driving away with the autorickshaw and he has pointed out to the appellant who was present in court as driver of the robbed vehicle. PW 5 has informed the police station Janak Puri and handed over the person apprehended at the spot to Sub-Inspector Jagat Singh alongwith the knife and the autorickshaw which were recovered. 28. PW 5 has also proved the recovery memos of the pant, shirt, autorickshaw and the knife. This witness has also identified accused Rajesh as the person who was apprehended at the spot. 29. It is well settled that testimony of a witness who has turned 12 hostile in the witness box would remain admissible in the trial and there is no legal bar to even basing a conviction of an accused person upon such testimony if corroborated by other relaible evidence (Ref : MANU/SC/0093/1975: AIR 1976 SC 202 Bhajan Singh vs. State of Haryana and MANU/SC/0203/1995: AIR 1976 SC 294 Satpal vs. Delhi Administration). 30. It needs no elaboration that so far as the testimony of a person who is declared hostile can be relied upon to the extent that it supports the prosecution version and evidence of such witenss cannot be treated as having been washed off the record. (Ref: (1999) 8 SCC 624 Koli Lakhmanbhai Chunabhai vs. State of Gujrat) 31. The testimony of PW 4 is to be examined on these principles. The first statement made by PW 4 has been exhibitted and proved on record as Ex PW 4/A. In this statement, he has given the description of the accused persons. The description which he has given of the person who had stopped the autorickshaw matches the description of the appellant who was produced before the trial court. Furthermore, the statement in court is also supported by the statement Ex PW 4/A in material particulars. The witness in his cross examination explained that he does not remember the date correctly. While in a given case, this may be considered a material lapse, however there is other contemparenous evidence in support of the case of the prosecution with regard to the date of the 13 incident in the nature the deposition of PW 5, the seizure memos and the police record. Constable Mahesh Pratap-PW 5 had admittedly reached the spot when the robbers were trying to escape. 32. The learned magistrate in whose presence the test identification parade was conducted appeared in the witness box as PW 13. The learned Metropolitan Magistrate has proved the proceedings of the test identification parade ('TIP' hereafter) which were held by her in the jail. 33. It needs no elaboration that the substantive evidence of a witness is the deposition which is made by him in court during the trial. A test identification parade is held during the course of investigation with the primary object of enabling the witnesses to identify persons concerned in the offence who were not previously known to them for the purposes of satisfying the investigating officers of the bonafides of the prosecution witnesses and to furnish evidence to corroborate their testimony in court. Such parades are essentially governed by the provisions of Section 162 of the CrPC. The proceedings of the test identification parade do not constitute substantive evidence. (Ref: MANU/SC/0141/1971 Matru vs. State of U.P.; MANU/SC/0165/1973 Santok Singh vs. Izhar Hussain; AIR 1970 SC 1321 Budh & Anr. vs. State of HP ; 1995 2 RCR 86 (P&H) Kherati Lal vs. Union Territory of Chandigarh). 14 34. In Mahavir vs. State of Delhi AIR 2008 SC 2343, it was held that the whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Indian Evidence Act, 1872. It is desirable that a test identification parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution. The observations of the Apex Court in para 11 of this pronouncement in this behalf can usefully be adverted to and read as follows :- 15 “11. It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without