Sachin, Insp Rajeev, P.S. Ashok Vihar v. Mohd. Akram and Ors.

1. The present Petition under Section 378(1) of the Cr.P.C has been filed by the State seeking grant of leave to appeal against judgment dated 05.05.2022, passed by the learned Additional Sessions Judge, North West District, Rohini Courts, in SC No.51916/2016 arising out of FIR No.26/2011, registered at Police Station Ashok Vihar for offences under Sections 302, 396, 412, 120B IPC and Sections 25, 27, 59 of the Arms Act.

2. Shorn of unnecessary details, the facts leading to the present Petition are that on 29.01.2011, the accused/Respondents herein, in furtherance of a criminal conspiracy to commit dacoity, armed with country made pistols and knives, entered in the factory No.A-104, WPIA, Second Floor, Ashok Vihar, Delhi, and committed robbery. It is stated that the Respondents beat the employees of the factory and murdered Anil, who was the owner of the factory and took a black-coloured bag belonging to the deceased/Anil containing one packet of 100 notes from the drawer of the factory and fled. It is stated that FIR, being FIR No.26/2011, was registered at Police Station Ashok Vihar for offences under Sections 302, 394, 397, 34 IPC. It is stated that the accused were arrested by the Special Staff on 21.02.2011. After investigation trial commenced.

3. After consideration of the material on record, the Trial Court acquitted all the accused by observing as under:

statements u/S. 161 Cr.P.C, there is no· mention of physical description, facial features or the clothes worn by the accused persons, leave aside any distinctive features. All the witnesses categorically admitted during their cross examination that there is no mention in their statements that they can identify the accused persons, who had committed the offence.

39. All the material witnesses failed to identify accused Ranjeet during his TIP proceedings. Interestingly, when they were threatened outside the Rohini Jail where accused Mohd. Afsar was mistakenly taken by the Jail Van, they neither disclosed about the said threats to any of the police officials, to the IO, to the Jail Superintendent and the concerned Metropolitan Magistrate who was present there for the TIP at that time. Further, these witnesses wrongly identified some other accused persons in the court as the persons whom they had identified before the police officials on 05.03.2011.

40. The chance prints/ finger prints lifted from the table top of the spot did not match with the finger prints of accused Neeraj and Ranjeet. As per the ballistic report Ex PW44/A, 8 mm I.315" cartridge case marked Ex.ECl has not been fired through the country made pistol.315" bore mark F[1] in case FIR no.113/11 PS North Rohini ( FSL -2011/F-4853).

41. The interval of time in which the entire offence of robbery and murder allegedly happened, and the nature of interaction of the witnesses namely PW[3] Meghraj, PW[7] Naval Kishore, PW19 Uma Shankar and PW20 Indal had with the accused persons was for a very short duration. Thus, it is dear in view of the above discussion, specially the testimony of these witnesses, much evidentiary value cannot be attached to the sole identification of the accused persons in the court where identifying witnesses are total stranger who had just a fleeting glimse of the persons identified in the absence of any corroboration. In view of the contradictions in the testimony of the witnesses and in the absence of any corroboration by any other evidence, the identification of the accused persons for the first time in the court does not form the basis for conviction."

4. It is this Order against which leave to appeal is being sought by the State by filing the present Petition.

5. Learned APP for the State primarily relies on the deposition of PW-3, 7, 19 & 20 to contend that PW-3, Mr. Megh Raj, who was present at the factory on the date of the incident has deposed that he saw Naval Kishore, one of the employees of the deceased-Anil, being beaten by two persons, i.e. Mohd. Akram (Respondent No.1 herein) and Neeraj (Respondent No.6 herein). Learned APP states that PW-3 has also identified Naushad (Respondent No.4 herein) and Ranjeet (Respondent No.7 herein). PW-3 has deposed that it was Ranjeet who had fired on the deceased/Anil. It is stated by the learned APP that nothing has been brought out to discredit the deposition of PW-3. Learned APP for the State has also relied on the deposition of PW-7, Mr. Naval Kishor, who was an employee of the deceased/Anil. He states that PW-7 has identified all the accused in Court by stating that these persons were present outside the office of the deceased on the day of the incident. PW-7 has also stated that it was Ranjeet who shot the deceased. Learned APP for the State has also placed reliance on the deposition of PW-19, Uma Shankar, who worked as a security guard in the factory of the deceased. He states that PW-19 also identified Ranjeet (Respondent No.7 herein), Hari Singh (Respondent No.3 herein) and Neeraj (Respondent No.6 herein) in Court and has deposed that it was Ranjeet who fired at the deceased/Anil and that it was Neeraj who beat Naval Kishore. PW-19 has also deposed that Hari Singh took the bag of cash from the cabin. Learned APP for the State has also placed reliance on the deposition of PW- 20, Mr. Indal, who is one of the workers of the factory. He states that PW-20 has also identified Hari Singh, Ranjeet, Mohd. Akram and Naushad by stating that they were having country made pistols in their hands. PW-20 has also identified Umar by stating that he saw Umar carrying a knife in his hands and was standing at the gate of the factory. PW-20 also identified Neeraj and Mohd. Afsar (Respondent No.2 herein). Learned APP for the State contends that the evidence of these witnesses has not been appreciated by the learned Additional Session Judge in proper perspective. He contends that the fact that the witnesses could not identify the accused during the Test Identification Parade (TIP) is of no consequence because the witnesses were threatened by the accused. He states that PW-7 has deposed that he was threatened by the accused. He further contends that Mohd. Afsar is bad character of the area. He contends that the learned Additional Session Judge has disbelieved the recovery of the bag by stating that said bag is commonly available and the place from where the bag was retrieved is in a populated area and that no public witness has joined while the recovery was made. He states that PW-37 has specifically deposed that he had requested public to join the recovery but everyone refused to join. He, therefore, states that the present Petition be allowed.

6. Per contra, learned Counsel for the Respondents support the Order of acquittal by stating that there is no recovery of gun and the ballistic report does not prove the case of the prosecution. He also states that the identification of the accused/Respondents in Court alone cannot lead to conviction, more so when the Respondents were not identified during TIP.

7. Heard the learned APP for the State and the learned Counsel for the Respondents and perused the material on record.

8. The scope of grant of leave to appeal has been explained by the Apex Court in State of Maharashtra v. Sujay Mangesh Poyarekar, (2008) 9 SCC 475, wherein the Apex has observed as under:

enter into minute details of the prosecution evidence and refuse leave observing that the judgment of acquittal recorded by the trial court could not be said to be “perverse” and, hence, no leave should be granted.