Pawan Soni v. State (NCT of Delhi)

1. Being convicted and sentenced for the offence punishable under Sections 392/394/397/34 IPC, the appellant has preferred the present appeal seeking setting aside of the judgment dated 06.06.2024 and the order on sentence dated 30.08.2024 passed by Ld. ASJ-03, South-East District, Saket Courts, Delhi. The appellant has been sentenced in the following manner: - Penal Section Sentence Imprisonment in default of fine Sections 392/34 10 years RI with fine of Three months SI IPC Rs.15,000/- Sections 394/34 IPC 10 years RI with fine of Rs.30,000/- Three months SI Section 397 IPC 7 years RI - The benefit of section 428 CrPC was given to the appellant. Sentences were directed to run concurrently.

2. Facts as per case of the prosecution are that the complainant Dilip Kumar, along with ASI Kumher Singh from PS P. Prahlad Pur, arrived at P.S. Badarpur on 23.06.2019 at 3.10 A.M., as recorded in DD No. 17B. They handed over a written complaint (Ex.PW3/A), as per which, around 02:30 am on that night, the complainant, while waiting for some conveyance at Jaitpur Mor, Badarpur took lift from an Eeco Van which was claimed by the occupants to be going in the same direction. He took a seat in the front of the said van where the driver was seated to his right and another passenger to his left. There were two more persons sitting in the rear seats. After covering some distance, the driver and the person seated to his left asked him to empty his pockets. On refusal, the complainant was slapped by the boy sitting in the rear seat. The driver thereafter forcibly removed his mobile phone and wallet and the boy on his left removed cash from his left trouser pocket. They also removed the two gold rings he was wearing in his right hand at knifepoint. The driver and the person on his left were referring to each other as Pawan and Kailash, the one who was slapped was called Sunny and he did not know the name of the fourth one. He was then dropped by them near Kaya Maya Hospital, MB Road. He noted the number of the van as DL 1 LV 3478 and of white colour. His purse containing Rs 7,000- 8,000 and some documents was robbed. After the incident, he went to his home and proceeded towards PS Pul Prahlad Pur on his motorcycle. On the way, he found a PCR Van and told them about the robbery and details of the Eeco Van. The said van was intercepted by the officials of Police Post Okhla. The complainant proceeded there and identified the van along with the two boys as persons who were sitting on the rear seat of the van at the time of commission of robbery, Sunny and ‘V’. They gave the details of the appellant and Kailash, who had escaped. On 29.06.2019, vide DD No.22B, information was received from PS Badarpur regarding arrest of the appellant in relation to E.FIR NO. 021799/19, disclosing his involvement in the present case. He was arrested in the present case on 18.07.2019. Judicial TIP was conducted on 20.07.2019 (Ex. PW3/C) wherein the complainant failed to identify the appellant and rather identified someone else as the offender.

3. The appellant and the co-accused Sunny were tried together. The charge was framed against the appellant under Section 392/394/34 and 397 IPC, to which he pleaded not guilty and claimed trial.

4. Prosecution examined ten witnesses to substantiate its case. The most material of them being the complainant victim Dilip Kumar, who was examined as PW-3. SI Kumher Singh, who recorded the complaint and took the complainant to PS Badarpur was examined as PW[2]. ASI Rakesh Kumar, who apprehended co-accused Sunny and JCL ‘V’ along with the stolen van, was examined as PW[8]. SI (Retd) Ashok Kumar was the IO, who was examined as PW10.

5. In his statement under Section 313 CrPC, the appellant claimed false implication. He did not lead any evidence in his defence.

6. Learned counsel for the appellant submits that the appellant is innocent and falsely implicated in the present case. The complainant failed to identify the appellant in the TIP proceedings. As per the chargesheet, he was identified by the complainant for the first-time outside Courtroom. It is submitted that this negates the identification of the appellant in Court. Reliance in this regard is placed on the decisions of Supreme Court in Jafar v. State of Kerala[1], and Gireesan Nair v. State of Kerala.[2] The complainant was also prone to improvements, due to which the Trial Court did not believe his testimony qua the co-accused. However, the Trial Court erred in convicting the appellant despite the improvements. It is further submitted that no recovery of robbed articles or weapon of offence was effected from him. Moreover, there is no allegation of the appellant committing assault on the complainant and with co-accused acquitted, he cannot be convicted under Section 392/394/34 IPC. Reliance is placed on Sunil Kumar v. State[3], Moreover, no finding was given that the offence occurred on highway, thus the enhanced sentence under Section 394 IPC was not made out either.

7. Learned APP for the State submits that the impugned judgement rightly convicted the appellant as the complainant has remained consistent qua the appellant’s role. Recovery of weapon is not essential to establish the offence under Section 397 IPC. The complainant could not identify the appellant initially due to nervousness.

8. The complainant was examined as PW[3]. He deposed that on 22.06.2019, he had gone to Agra for some work. After completion of the same, he boarded a bus for Delhi at about 9:15 p.m. and alighted at Jaitpur Mod, Badarpur around 2-2:30 a.m. When he was waiting for some conveyance to reach home, an Eeco van stopped near him and the occupants asked him where he wanted to go. The complainant told the driver that he had to go to Khanpur, and on the assurance of the driver that they were going in the same direction, he sat in the van. He stated that he was asked to sit in between the driver and the other passenger on the front seat. Additionally, there were two persons in the rear seat of the van. After crossing the Okhla red light, he was asked to hand over his belongings by the driver and the person sitting behind him. When he resisted, he was slapped and threatened to be killed by the person sitting on the rear seat. Thereafter, his ‘Samsung J6’ mobile phone and purse were taken forcefully by the driver. The front occupants also took the cash from his pocket which was around Rs.7,000-8,000/-. The two gold rings were taken from his righthand fingers at the instance of a knife. He further stated that the persons on the front seat were referring to each other as Pawan and Kailash while the one on the rear seat who had slapped him was called Sunny. He was dropped near Kaya Maya Hospital after the incident. The complainant provided the particulars of the van and features of the accused persons. He, thereafter, left for PS Prahlad Pur on motorcycle after keeping his bag at home. He asked from the officials of PCR van parked at Okhla Mod about the Eeco van, who informed him that it has been apprehended at Okhla Police Post. He further states that he went to the PS Okhla Phase-III where he identified the van and two boys. He was informed that the other two boys had fled. He went to PS Prahlad Pur and got his statement recorded. The complainant stated that on 20.07.2019, he failed to identify the accused in Rohini jail as he was nervous. However, he identified the accused 2020 SCC OnLine Del 3584 persons Sunny and Pawan before the Court on 30.08.2022. He stated that Appellant/ Pawan was the one who had threatened him with the knife at the time of incident. He produced his mobile phone, released to him on superdari. He identified the appellant as the one who had shown the knife to him and the other accused Sunny robbed purse and mobile. In his cross-examination, improving on his initial complaint, he stated that Sunny had snatched his purse, mobile and ring and also showed him knife. He admitted not giving description of the accused persons in his complaint. He admitted not seeing the faces of the persons on the back seat. He denied the suggestion of false implication.

9. SI Kumher Singh was examined as PW[2]. He deposed to the complainant coming to PS Pul Prahlad and him recording his statement on 23.06.2019 and then taking him to PS Badarpur.

10. ASI Rakesh Kumar was examined as PW[8]. He deposed that on 22/23.06.2019, one E FIR No. 021799/19 under Sections 379 IPC by one Kamruddin about the theft of his Eeco van which had GPS installed. The complainant Kamruddin along with PCR officials managed to track the van. 2 persons fled from the spot and 2 were apprehended, co-accused Sunny and the CCL. Mobile of the complainant was recovered from Sunny. The apprehended accused were presented before PW[8] by the complainant and PCR officials at the police post and they told him the facts. On interrogation, Sunny disclosed the involvement of the appellant. In cross examination, he stated that Sunny was not arrested in his presence.

11. SI (Retd.) Ashok Kumar was examined as PW10. He deposed as to the complainant coming to PS Badarpur, visiting place of incident and preparing site plan, arrest of both the accused and their judicial TIP. He deposed that the complainant failed to identify the appellant in the TIP proceedings. The same were exhibited as Ex. PW3/C. The complainant told him that he had gone to Tihar Jail for the first time to attend such proceedings and he had got scared. In cross examination, he admitted that neither the mobile nor the vehicle was recovered by him. No recovery was effected from the appellant. The other co-accused could not be arrested.

12. The present is not a case where the appellant was apprehended at the spot. He was already in police custody in another case, and he came to arrested in the present case on 18.07.2019, as reflected from his arrest memo (Ex. PW10/G), almost a month after the incident. There was no recovery made from him. As per the prosecution case, the appellant was sitting right beside the complainant. Yet, when the judicial TIP proceedings came to be conducted on 20.07.2019 (Ex. PW3/C), the complainant failed to identify the appellant, rather he identified someone else. Surprisingly, in his Court deposition, he identified appellant as the one who had shown knife to him. He deposed that he was nervous at the time of TIP. The purpose of the TIP is that the witness, who claimed to have seen the culprit at the time of occurrence of the incident, is able to identify them in the midst of other people. The Supreme Court in Gireesan Nair (Supra) has held as follows: -

witnesses had seen in connection with the said occurrence. Third, to test the witnesses' memory based on first impression and enable the prosecution to decide whether all or any of them could be cited as eyewitnesses to the crime (Mulla v. State of U.P. [Mulla v. State of U.P., (2010) 3 SCC 508, paras 44, 45 & 55: (2010) 2 SCC (Cri) 1150] ).

29. TIPs belong to the stage of investigation by the police. It assures that investigation is proceeding in the right direction. It is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant (Matru v. State of U.P. [Matru v. State of U.P., (1971) 2 SCC 75, para 17: 1971 SCC (Cri) 391]; Mulla v. State of U.P. [Mulla v. State of U.P., (2010) 3 SCC 508, paras 41 & 43: (2010) 2 SCC (Cri) 1150] and C. Muniappan v. State of T.N. [C. Muniappan v. State of T.N., (2010) 9 SCC 567, para 42: (2010) 3 SCC (Cri) 1402] ). The evidence of a TIP is admissible under Section 9 of the Evidence Act. However, it is not a substantive piece of evidence. Instead, it is used to corroborate the evidence given by witnesses before a court of law at the time of trial. Therefore, TIPs, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of an accused can be sustained (State of H.P. v. Lekh Raj [State of H.P. v. Lekh Raj, (2000) 1 SCC 247, para 3: 2000 SCC (Cri) 147] and C. Muniappan v. State of T.N. [C. Muniappan v. State of T.N., (2010) 9 SCC 567, para 42: (2010) 3 SCC (Cri) 1402] ).” Dock identification, in a case where the accused is not previously known to the appellant, especially when it takes place when a long time has passed between the incident and the identification in Court, is a weak piece of evidence. Reference may be made to the decision of Supreme Court in Jayan v. State of Kerala[4], wherein it was held as under: - “18. It is well settled that TI parade is a part of investigation and it is not a substantive evidence. The question of holding TI parade arises when the accused is not known to the witness earlier. The identification by a witness of the accused in the Court who has for the first time seen the accused in the incident of offence is a weak piece of evidence especially when there is a large time gap between the date of the incident and the date of recording of his evidence. In such a case, TI parade may make the identification of the accused by the witness before the Court trustworthy...”