MAHESH KUMAR @ KALLU vs STATE & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 01.02.2024
+ CRL.A.952/2002
MAHESH KUMAR @ KALLU ….. Appellant
Through: Mr. Nitin Saluja, Adv. (DHCLSC) with Ms. Shivani Luthra Lohiya,Ms. Smita Narula, and Ms. Simran Khurana, Advs.
versus
STATE & ORS. ….. Respondents
Through: Mr. Ajay Vikram Singh, APP for State alongwith SI Rajiv Gautam, P.S. Badarpur.

CORAM:
HON’BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
% J U D G M E N T
ANOOP KUMAR MENDIRATTA, J (ORAL)
CRL.A. 952/2002
1. An appeal has been preferred on behalf of the appellant/convict Mahesh Kumar @ Kallu challenging the judgment dated 01.10.2002 and order on sentence dated 23.10.2002 passed by learend ASJ, Delhi in SC No.30/2002 whereby the appellant has been convicted under Section 452/392/34 IPC and 397 IPC, in FIR No.637/2001, under Sections 392/397/34 and 411 IPC, registered at PS: Badarpur. The appellant has been acquitted under Section 411 IPC.
2. In brief, as per the case of the prosecution, on 05.12.2001 on receipt of DD NO. 37A, HC Ashwani Kumar alongwith Ct. Ashok Kumar reached the spot at C-570, Mandir Wali Gali, Tajpur Pahari, Badar Pur wherein complainant Smt. Asha Devi (PW1) alleged that on 04.12.2001 during night time her husband had left the premises after locking the door from outside while she was sleeping inside the premises alongwith her two children. About 04:00 AM, four boys aged about 18-20 years entered the premises and after putting knife on neck, took away the chain weighing about two tolas, two rings, one pair of kundal and one pair of pajeb alongwith cash of Rs.2000/- which was kept in the suitcase. She further stated that out of four boys, three were of short height while one was tall and fair. FIR No.637/2001 was accordingly registered.
3. During the course of investigation, co-accused Manoj who was arrested in FIR No.688/2001 under Sections 25/54/59 of Arms Act, made a disclosure regarding commission of robbery in the present case alongwith co-accused Mahesh Kumar (appellant), Dambhu and Kaku. He further disclosed that Dambhu and Kaku took away ornaments while cash was distributed between him and Mahesh Kumar (appellant). On the basis of disclosure statement of co-accused Manoj Kumar, the appellant (Mahesh Kumar) was arrested. Further, Rs.750/- and Rs.800/- allegedly looted were recovered at the instance of accused Manoj and present appellant Mahesh Kumar respectively. Co-accused Dambhu and Kaku could not be traced.
4. Further, TIP proceedings were got conducted during the course of investigation wherein co-accsued Manoj was not identified by the complainant. However, the TIP proceedings in respect of appellant Mahesh Kumar were successful. Charge against the appellant was framed under Section 452/392/34 IPC and 397 & 411 IPC. Appellant pleaded not guilty and claimed trial.
5. In support of the charge, prosecution examined eight witnesses.
Learned counsel for the appellant assails the judgment passed by the learned Trial Court on the ground that PW1/complainant (Asha Devi) failed to identify the appellant in the Court and as such no credence can be given to the identification of the appellant in TIP proceedings during investigation. It is further submitted that recovery of currency notes at the instance of appellant is of no consequence since the denomination and serial number of notes was not specified by the complainant in the FIR. It is pointed out that co-accused Manoj was acquitted under Section 411 IPC by the learned Trial Court on the same set of evidence. Further, no jewellery was recovered at the instance of the appellant and no independent witness was joined by the Investigating Agency at the time of alleged recovery of cash along with knife.
6. On the other hand, learned APP for the State supports the judgment passed by the learned Trial Court. It is urged that though the complainant/PW1 turned hostile on the point of identification, but PW5 Shri G.P. Singh, learned MM, who had conducted the TIP proceedings, corroborated the identification of appellant by PW1 during conduct of TIP proceedings. It is further submitted that the cash recovered had not been claimed by the appellant though it is admitted that the cash was not got identified by PW1 (complainant) during the course of evidence.
7. It is well settled that the identification at the stage of investigation is not a substantive piece of evidence and cannot be the basis of conviction unless the witness identifies the accused during the course of evidence. Reference in this regard may be made to Sheikh Hasib v. State of Bihar, 1972 Crl.L.J. 233. The question of identity of the accused wherein he is not known to the victim/witnesses is of paramount importance and in case the witness fails to identify the accused during the course of evidence, the benefit has to be extended to accused. In the absence of identification by the complainant, the prosecution failed to establish that the appellant was the real offender concerned with the commission of offence under trial. It may further be observed that there is no other incriminating evidence by way of recovery of jewellery at the instance of the appellant. The cash alleged to be recovered at the instance of appellant could not be linked in any manner since neither the denomination nor the serial number of the notes was specified by the complainant (PW1) during investigation. Further, the cash was not got identified by PW1 during the course of evidence. In the absence of any independent witness having been joined by the prosecution at the time of alleged recovery of cash/knife, much credence cannot be given to the testimony of official witnesses. Even otherwise, the commission of offence by the appellant could not be established beyond reasonable doubt in view of the fact that appellant was not identified by the complainant in her deposition before the Court.
8. The judgment passed by the learned Trial Court appears to have overlooked the aforesaid crucial aspects and the identity of appellant was wrongly fixed merely on the basis of the deposition of MM (PW5), who had conducted the TIP proceedings. The same is contrary to the established principles of law.
For the foregoing reasons, prosecution has failed to bring home the charge against the appellant beyond reasonable doubt. The judgement and order on sentence passed by the learned Trial Court is accordingly set aside. Appeal is accordingly allowed. Appellant is acquitted and bail bond/surety bond furnished on behalf of the appellant, is discharged. Pending applications, if any, also stand disposed of.
A copy of this judgment be forwarded to the learned Trial Court for information. TCR be returned back.

(ANOOP KUMAR MENDIRATTA)
JUDGE
FEBRUARY 01, 2024/sd

CRL.A.952/2002 Page 5 of 5