Facts
1. These two appeals impugn a common judgment and order of the High Court of Delhi at New Delhi1 dated 15.11.2018, inter alia, passed in Criminal Appeal Nos. 1015 of 2017 and 1132 of 2017, whereby the appeals of the appellants preferred against the judgment and order of the Additional Sessions Judge-04 (Shahdara), KKD Courts, Delhi (i.e., the Trial Court) dated 16.08.2017 passed in Sessions Case No. 78 of 2014 were dismissed.
2. The appellants along with two others were tried for offences punishable under Sections 392/397/411 of the Indian Penal Code, 18602 and Section 25 of the Arms Act, 19593 in connection with F.I.R. No. 512 of 2011 at PS Nand Nagri, Delhi.
3. Appellant Wahid was convicted by the Trial Court for offence punishable under Section 392 read with Section 397 IPC, but acquitted under Section 411 IPC. For his conviction under Section 392 read with Section 397 IPC, Wahid was sentenced to undergo rigorous imprisonment of seven years with fine of Rs. 5000/-, coupled with a default sentence of two years. Insofar as appellant Anshu is concerned, he was convicted and sentenced under Section 392 read with Section 397 IPC to seven years of rigorous imprisonment along with fine of Rs. 5,000/-, coupled with a default sentence of two years; besides that he was also convicted for offence punishable under Section 25(1) of the Arms Act and sentenced thereunder to three years rigorous imprisonment along with fine of Rs. 2,000/-, coupled with a default sentence of six months.
4. There were two other accused, namely, Narender and Arif, who were also tried and convicted but since they are not before us, and it is reported that they have already served the sentence awarded to them, we do not propose to deal with the merits of their conviction, though they had also separately preferred appeal before the High Court.
5. The appellants, Wahid and Anshu, had separately preferred appeal against their conviction before the High Court. Their appeals were dismissed by the impugned order.
6. Aggrieved by the dismissal of their appeals, the appellants have preferred these appeals.
Analysis
13. Having perused the materials on record, we find that prosecution has succeeded in establishing that on the night of 3.12.2011 the travellers of Gramin Sewa were robbed by four persons, who entered and exited the vehicle together after looting the travellers of their belongings such as cash and mobile phones, under threat of knife, country made pistol and screw driver. In respect of the above allegations, there is no discrepancy in the FIR and the eye witnesses (i.e., travellers, conductor and driver of Gramin Sewa) account. Moreover, the FIR of the incident has been lodged at the first opportunity. However, mere proof of robbery is not sufficient to hold that the accused persons who were put to trial were the ones who committed the offence.
14. In cases where the FIR is lodged against unknown persons, and the persons made accused are not known to the witnesses, material collected during investigation plays an important role to determine whether there is a credible case against the accused. In such type of cases, the courts have to meticulously examine the evidence regarding (a) how the investigating agency derived clue about the involvement of the accused in the crime; (b) the manner in which the accused was arrested; and (c) the manner in which the accused was identified. Apart from above, discovery/ recovery of any looted article on the disclosure made by, or at the instance of, the accused, or from his possession, assumes importance to lend credence to the prosecution case.
Manner in which accused persons were arrested and recovery effected appears doubtful
15. In the instant case, neither the accused persons were named nor they were known either to the complainant or the witnesses from before. Prosecution case is rather too simple, that is, two days later, on 5.12.2011, PW-1 himself noticed the accused persons standing near DTC Bus Depot at Nand Nagri; immediately thereafter he informed the police about their presence; the police went to the spot, arrested them, and, upon search of those persons, recovered from them weapons including screw driver, as described in the FIR, used by the robbers to threaten the passengers.
16. The aforesaid prosecution story of four accused persons, not belonging to one family, being spotted together at a public place (i.e., bus depot), that too near a police station, just two days after the incident, that too with weapons corresponding to the weapons held by the robbers mentioned in the FIR, appears too well-crafted to be real. More so, when we consider it in conjunction with the arrest memorandums of the four accused which indicate that they were arrested post 10 pm on 5.12.2011. This is quite an odd hour for any person to venture out on a winter night. PW-1, who is a witness to the arrest memorandums, in his statement- in- chief said that while he was going to the police station to handover mobile purchase receipt, he spotted the accused persons. Such a story appears improbable because PW-1, who is not a resident of Nand Nagri, and had suffered an act of robbery just two days before, in ordinary circumstances would not venture out so late in the night, just to hand over receipt regarding purchase of his robbed mobile. These circumstances make the prosecution story relating to the manner of arrest highly improbable. Therefore, it should have put the court on guard as to look for corroborative pieces of evidence before accepting the prosecution story as credible. One such corroborative piece of evidence could be recovery of looted articles from the accused which, in the present case, is absent inasmuch as the trial court has already acquitted the appellant(s) of the charge of offence punishable under Section 411 IPC.
20. From the statements of key witnesses extracted above, and on cumulative analysis of the circumstances discussed above, while taking into consideration the statements of accused-appellants recorded under Section 313 of the Code of Criminal Procedure, 1973 that they were picked up from home and falsely implicated by the police, a serious doubt is cast on the manner in which the prosecution claims to have arrested the accused. Unfortunately, the High Court and the trial court were not circumspect while evaluating the prosecution evidence and thereby failed to test the prosecution evidence on the anvil of probability as was required in the facts of the case. For the reasons above, we hold that the arrest of the accused persons in the manner alleged by the prosecution is highly doubtful and unworthy of acceptance. 21. Once we doubt the manner in which the accused were stated to have been arrested, the alleged recovery of screw driver, knives and countrymade pistol made at the time of arrest is rendered unacceptable. Moreover, weapons /articles allegedly recovered are not so unique that they cannot be arranged.
Dock Identification by few eye witnesses not reliable
No TIP conducted
22. Normally, where accused persons are unknown and are not named in the FIR, if the prosecution case as regards the manner in which they were arrested is disbelieved, the Court should proceed cautiously with other evidence and objectively determine whether all other circumstances were proved beyond reasonable doubt [See Manoj and others v. State of Madhya Pradesh, (2023) 2 SCC 353, paragraph 88]. In this light we shall now consider the evidence relating to identification of the accused persons. Admittedly, this is a case of night incident. Though seven eye witnesses of the incident were examined by the prosecution, only three (i.e., PW-1, PW-5 and PW-6) identified the accused in court. Out of the remaining four, three including the driver categorically stated that the accused persons are not those who robbed the passengers that night. The fourth one stated that it was too dark, therefore, he is unable to recognise. PW-1, at whose instance the arrest of the accused persons was allegedly effected, during cross-examination, stated that he saw the accused persons first on the date of the incident and second on the date fixed in the case. Admittedly, no test identification parade was conducted and the statement of PW-1 was recorded in court on 28.05.2013, that is, after 16 months of the incident. In such circumstances, not much reliance can be placed on his statement.
On facts not much reliance can be placed on the dock identification
23. As far as dock identification by the remaining two eye witnesses is concerned, they identified the accused persons during their deposition in court in the year 2015, that is, after nearly 4 years of the incident. PW-6, though stated that he identified the accused persons on 06.12.2011 while they were in the police lock-up, admitted that he went to the police station without being summoned. Interestingly, as per his description in the record, he is a resident of Aligarh. During cross-examination, he stated that he visited the police station on 06.12.2011 at 07:30 a.m. Considering that he is a resident of Aligarh, his statement that he visited the police station without summons on 06.12.2011 at 07:30 a.m. does not inspire our confidence. Admittedly, memory of those witnesses was not tested through a test identification parade. In such circumstances, when three eye witnesses stated that accused persons were not the ones who committed the crime and another one stated that it was too dark, therefore, he could not recognise, bearing in mind that the accused persons were not known to the eye witnesses from before, not much reliance can be placed on the dock identification.
24. In such circumstances, and in absence of corroborative evidence of recovery of looted articles at the instance of or from the accused persons, in our view, this was a fit case where the appellants should have been given the benefit of doubt.
25. In view of the analysis and conclusions above, these appeals are allowed. The impugned judgment and order of the High Court is set aside. The appellants are acquitted of the charge(s) for which they were tried and convicted. They are reported to be on bail. They need not surrender. Their bail bonds stand discharged.
Party
Wahid and Anshu vs. State – Criminal Appeal Nos. 201 & 202 of 2020 – February 4, 2025 – 2025 INSC 145.
