Pawan Kumar v. State

1. On 21.07.2000 at around 11:45 PM, a trio consisting of Subhash @ Kalia, Pawan and Udai Ram moving in the area of Kidwai Nagar, hired a TSR bearing registration No. DL-1R-C-7133 being driven by Mahant Parsad in order to go to Mayur Vihar, Phase-I. However, the trio who had hired the TSR, infact took the TSR driver for a ride under their evil design. They persuaded the TSR driver to go inside the Kidwai Nagar Colony as one of the passengers purportedly wanted to inform his family that he would be late, which, verily was a play to trap the TSR driver at a secluded place. The TSR driver was then robbed of his belongings consisting of Rs. 300/- and an HMT Lalit wrist watch by threatening him with a knife. Thereafter, they forced the TSR driver Mahant Parsad to get down of the TSR. The trio while taking away the TSR told him that the TSR would be left at the place from where they had hired the TSR i.e. the Bus Stop Kidwai Nagar. The victim spotted a Police Control Room (PCR) vehicle and reported the matter almost immediately after the incident of robbery. The TSR was found at the Kidwai Nagar Bus Stop, but the robbers were nowhere to be found.

2. Based upon the complaint lodged by Mahant Parsad the FIR bearing Registration No. 244/2000 was registered by Police Station Kotla Mubarakpur under Section 392/34 IPC. The breakthrough in the case came with the arrest of one Subhash @ Kalia in case FIR No. 253/2000 under Section 392/34 IPC and FIR No. 254/2000 under Section 27/54/59 Arms Act, PS Kotla Mubarakpur whose disclosure led to the apprehension of the Appellant herein, whereas the other co-accused Udai Ram surrendered in the Court. There was no trace of the money robbed from the victim, however, his watch i.e. HMT Lalit was recovered from the possession of the Appellant herein. In fact, he was found wearing it when he was arrested by the Police.

3. The FIR so registered, traversing through the charge-sheet, the arrest of the accused persons, the formal charge, evidence and the arguments etc. resulted into the Impugned Judgment dated 29.03.2004 and the Order on Sentence dated 31.03.2004. The other two co-accused Subhash @ Kalia and Udai Ram, who were also charged along with the Appellant herein, were acquitted as Learned Trial Court did not find any cogent evidence to connect them with the offence, whereas the Appellant was held guilty under Section 392 IPC inasmuch as he was not only identified by the complainant as one of those three assailants but was found in possession of the robbed watch also. Appellant was sentenced to undergo Rigorous Imprisonment for 03 years and fine of Rs.3,000/- and in default of payment of fine he was to further undergo RI for one month.

4. It is contended on behalf of the Appellant that there is no cogent evidence to hold him guilty and while elaborating the grounds taken in the appeal, it is submitted that the watch was planted upon the Appellant and verily, no incriminating or objectionable item was recovered from his possession. Secondly, apart from the above the cliched grounds of appeal routinely taken, were taken and, it is submitted that the Impugned Judgment is based upon conjectures and surmises. It is further submitted that the evidence on record, and arguments advanced have not been appreciated in the right perspective, nor have the relevant legal provisions been applied properly.

5. The entire incriminating evidence was not put to the Appellant, particularly with regard to the recovery of HMT watch make Lalit. The testimony on record has too many inherent contradictions and improvements, therefore, as the co-accused, who were charged for the same offence, have been acquitted, the Appellant too deserves to be acquitted.

6. Learned APP on the one hand, stood by the Impugned Judgment and submitted that clear and cogent evidence exist against the Appellant in the shape of the recovery of the robbed watch and that the complainant has specifically identified the Appellant alongwith the two other assailants, who had robbed him of his money and wrist watch.

7. Learned APP while further countering the contentions raised on behalf of the Appellant argued that in view of the clinching evidence in the shape of the recovery of the robbed watch, there remains no doubt about the complicity of the Appellant and accordingly learned Trial Court has rightly held the Appellant guilty and convicted. Additionally, as the Appellant was identified too, therefore, there was no room for any doubt. Therefore, the Impugned Judgment and sentence are not required to be disturbed, concluded the learned APP.

8. The contentions raised on behalf of the Appellant are mostly cliched having no substance in it and have been raised for the sake of raising arguments and have not been supported by any substance so as to make them strong enough to dislodge the prosecution’s case, except the aspect of recovery of the wrist watch and defective identifications.

9. As per the case of the prosecution, three persons had robbed the victim, Mahant Ram, and the case unfolded with the arrest of Subhash in some other matter. It was his disclosure which brought in the other two coaccused, including the Appellant on the scene.

10. The consistent stand in the case is that it was Udai Ram, who had surrendered pursuant to the breakthrough in the case, had actually used the knife, a deadly weapon in order to commit the robbery but for some strange reason, the Appellant herein was charged under Section 397 IPC. Apart from the recovery, the case of the Appellant is identical to the other two coaccused, who have, incidentally, been acquitted through the Impugned Judgment primarily and solely on account of identity. None of the trio, including the Appellant, was known to the complainant, they were identified for the first time in the Court, Subhash was shown to the complainant in the police station and Udai after his surrender was interrogated in unmuffled face by the Investigating Officer. Incidentally, the complainant too was present in the Court on that day. Whereas the Appellant has been held responsible on account of the fact that he was not only identified by the complainant, but the robbed watch was also recovered from his possession.

11. The incident of robbery took place on 21.07.2000 and the recovery of the watch from Appellant was affected on 29.07.2000. It is this piece of evidence which has resulted into the conviction of the Appellant herein. So far as, the identity of the assailants is concerned, they were not known to the victim. The complainant had no occasion to come across them, therefore, the learned Trial Court has come to the conclusion that identification for the first time in the Dock is not a reliable piece of evidence especially when no Test Identification Parade (TIP) took place. The refusal by the accused from participating in TIP has been found justified by the learned Trial Court as the co-accused claimed that not only they have been shown to the complainant/witness but their photographs have also been taken. However, the Appellant has not been dealt with same yardstick. The Appellant was arrested by the police at the instance of co-accused Subhash and at that time, the complainant too was also accompanying the police team. Thus, the complainant had an occasion to see the Appellant prior to identifying him in the Court but then, the initial identification of the Appellant was not based upon the knowledge of the complainant, rather borrowed from another accused Subhash.

12. It seems that recovery of the robbed wrist watch gave a reason to the complainant to fix the identity and that is why he has identified the Appellant in the Court, not on the basis of his memory or identification at the time of incident but being a witness at the time of apprehension and arrest of the Appellant. Thus, essentially the identification aspect of the Appellant is no different from the other two accused inasmuch as identification was not based upon the knowledge of the complainant but was in a way procured by the Police through co-accused Subhash and the confirmatory test, seems to be the recovery of the robbed wrist watch of HMT Lalit.

13. A kind of conditioning of the complainant was done, when he was being taken to the place of the Appellant with the co-accused Subhash. This created some sort of picture in his mind which could not have been definite and certain but with the recovery of the watch an assurance was generated in the mind of the victim. Human psychology often works in such a manner that when a person approaches someone or something with a preconceived idea, notion or picture, then one tends to see and interpret according to that preconceived idea. The case here is no different as regards the identity of the Appellant herein.

14. It is, thus, evident that the identification of the Appellant is not aboveboard. Nevertheless, recovery of the robbed wrist watch was there which the Appellant was wearing at the time of apprehension and arrest.

15. It has come in the evidence that a sum of Rs. 300/- was robbed along with the watch. The money was equally split amongst the three assailants, whereas over and above that share, the Appellant also got the watch. What was so special about him that he got the watch also. It is not that he was the person who actually robbed the victim, rather, it was Udai Ram about whom certain references are there on record that it was he, who had flashed the knife to subdue the complainant. Therefore, in such circumstances, this appears to be a tricky situation where the identity of the Appellant and his complicity in the robbery is not above-board. Only evidence is the recovery of the robbed article.