As per case facts, the complainant alleged his mobile phone was snatched by two youths on a bike. A delayed FIR was filed. Appellants were later arrested and confessed, leading ...
CRM-27659-2024 in/and
CRA-S No.2333 of 2024 and
CRM-42456-2024 in/and
CRA-S No.2387 of 2024
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IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
321
1. CRM-27659-2024 in/and
CRA-S No.2333 of 2024
Sudhir ... Appellant
Vs.
State of Haryana ... Respondent
2. CRM-42456-2024 in/and
CRA-S No.2387 of 2024
Vishal ... Appellant
Vs.
State of Haryana ... Respondent
Date of decision: 24.04.2025
CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA
Present:- Mr. Yashpal Thakur, Advocate,
for the applicant-appellant in CRA-S No.2333 of 2024.
Mr. S.S. Nain, Advocate,
for the applicant-appellant in CRA-S No.2387 of 2024.
Mr. Neeraj Poswal, AAG, Haryana,
for the respondent-State.
----
MANISHA BATRA, J. (Oral)
1. This common order shall dispose of the aforementioned two
appeals which have arisen out of common judgment of conviction and
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order on quantum of sentence dated 01.06.2024 passed in Sessions case
No.35 of 2021 titled as State v. Sudhir and another arising out of FIR
No.567 dated 14.07.2019 registered under Section 379-A of IPC at Police
Station City, Panipat whereby the appellants had been held guilty and
convicted by the Court of learned Additional Sessions Judge, Panipat for
commission of offence punishable under Section 379-A read with
Section 34 of IPC and were sentenced to undergo rigorous imprisonment
for a period of five years each and to pay fine of Rs.25,000/- each. In
default of payment of fine, they were further sentenced to undergo
rigorous imprisonment for a period of six months. Fine had not been
paid.
2. The prosecution in this case had been launched on the basis of
a complaint submitted by the complainant Gaurav on 14.07.2019 alleging
that on the night of 09.07.2019 at about 11 PM, he was going from Bus
Stand Panipat towards his Village Khozkipur, when two youths riding on
a bike came to him and after snatching his mobile phone make VIVO-
Y95 containing two sim cards, escaped with the same. A case under
Section 379-A of IPC was registered. Investigation proceedings were
initiated. An untraceable report was filed. The appellants were arrested
on 27.07.2020 on the basis of a secret information. They were
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interrogated and suffered disclosure statement admitting their
involvement in the crime and got recovered cash amount of Rs.1600/-
and Rs.1400/- respectively. The motorcycle used at the time of
occurrence by them had also been got recovered. After completion of
investigation, challan was presented in the Court.
3. Copies of challan were supplied to the accused free of cost. On
finding a prima facie case for commission of offence punishable under
Section 379-A read with Section 34 of IPC, the appellants had been
charge-sheeted accordingly, They pleaded not guilty to the charges and
claimed trial.
4. To substantiate its case, the prosecution examined five
witnessses namely, ASI Rajesh, PW-1 who had joined the investigation,
PW-2 Gaurav, PW-3 SI Rajender Kumar who was a formal witness, PW-
4 SI Satbir Singh, a formal witness and PW-5 ASI Rajbir Singh,
Investigating Officer who deposed about conducting investigation
proceedings. Documentary evidence had also been produced.
5. Statements of accused were recorded under Section 313 of
Cr.P.C. The appellants abjured their guilt and claimed themselves to be
innocent. No defence evidence had been adduced.
6. After hearing the arguments advanced by both the sides and on
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appreciating the evidence produced by the prosecution on record, the
learned trial Court held the appellants guilty and sentenced them in the
manner as indicated above.
7. Feeling aggrieved, these appeals have been filed by the
appellants-accused.
8. It is argued by learned counsel for both the appellants that the
impugned judgment of convictin and order on quantum of sentence are
liable to be set aside as the findings given by learned trial Court are not
sustainable in the eyes of law. The learned trial Court ignored the fact
that there was delay of five days in reporting the matter to the police
which had not been explained at all by the complainant. The appellants
were not named in the FIR. The recovery of money as effected from the
appellants was not at all sufficient to connect them with the alleged
incident of snatching. The phone allegedly snatched from the
complainant had not been recovered from them rather the same was not
recovered at all. There was no eye-witness to the occurrence. The
appellants had not been identitied by the complainant during
investigation as no test identification parade was conducted. Their
identifiction for first time in the Court by the complainant cannot be
stated to be an identification in the eyes of law. However, all these facts
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had not been taken into consideration by learned trial Court. With these
broad submissions, it is argued that the impugned judgment and order on
quantum of sentence are liable to be set aside; the appeals deserve to be
accepted and further that the appellants deserve to be acquitted of the
charge under Section 379-A read with Section 34 of IPC. To fortify their
arguments, learned counsel for the appellants has placed reliance upon
the cited as George v. State of Kerala, 1998 (2) RCR (Criminal) 199;
Amrik Singh v. The State of Punjab, 2022 LiveLaw (SC) 582 and Dana
Yadav @ Dahu and others v. State of Bihar, 2002 (4) RCR (Criminal)
314.
9. Per contra, it is argued by learned Assistant Advocate General,
Haryana that overwhelming evidence had been produced on record by the
prosecution to prove that the appellants were the persons who had
snatched the mobile phone belonging to the complainant on the fateful
night. He had duly identified the appellants in the Court and his
identification was substantive evidence which was admissible in the eyes
of law. The credit of testimony of the complainant who was the most
material witness had not been shaken. The disclosure statements of the
appellants leading to recovery of money received by sale of the mobile
phone was sufficient to connect them with the offence under Section 379-
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A of IPC. Accordingly, it is argued that the appeals are devoid of any
merit and are liable to be dismissed.
10. On giving due consideration to the arguments as advanced by
both the side and on a minute scrutiny of the evidence produced on
record of the trial Court file, the question that crops up for consideration
before this Court is as to whether the findings as given by the learned
trial Court as to the guilt of the appellants are sustainable in the eyes of
law or not? The version of the prosecution is that on the night of
09.07.2019, the appellants had snatched the mobile phone of the
complainant while he was going towards his house and had escaped with
the same. To prove guilt of the accused-appellants, the proseucution has
relied upon testimony of the complainant and disclosure statements
alleged to be suffered by the appellants leading to recovery of money and
a motorbike. The learned trial Court had held that the testimony of the
complainant was sufficient to prove that the appellants had snatched
mobile phone of the complainant. However, on a careful assessment of
the evidence produced on record, this Court is of the opinion that the case
of prosecution suffers from several material infirmities thereby rendering
the prosecution version doubtful.
11. First of all, there is delay of five days in lodging of the FIR.
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The occurrence had taken place on the night of 09.07.2019 but FIR was
lodged on 14.07.2019 by the complainant. Neither in his complaint Ex.P-
8 nor in his sworn deposition, the complainant explained the reason for
delay in lodging of the FIR. It is well settled proposition of law that FIR
in a criminal case is an extremely vital and valuable piece of evidence
for the purpose of corroborating the oral evidence adduced at the trial.
The importance of above report can hardly be overestimated from the
standpoint of the accused. The object of insisting upon prompt lodging of
the report to the police in respect of commission of an offence is to obtain
early information regarding the circumstances in which the crime was
committed, the names of the actual culprits and the part played by them
as well as the names of the eye-witnesses present at the scene of
occurrence. Delay in lodging the FIR quite often results in embellishment
which is a creature of afterthought. On account of delay, report not only
gets bereft of the advantage of spontaneity, danger also creeps in of the
introduction of coloured version, exaggerated account or concocted story
as a result of deliberation and consultation. It is, therefore, essential that
the delay in lodging of FIR should be satisfactorily explained. In this
case, since the complainant did not utter even a single word giving
explanation for the delay of five days in lodging of the FIR, therefore, an
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inference is drawn to the effect that this delay was utilized by the
complainant in concocting a false story of offence of snatching having
taken place, due to which a doubt had been created that occurrence had
either not taken place at all or had not taken place in the manner as
alleged by the complainant.
12. That apart, though in the complaint, it was alleged by the
complainant that the mobile phone which was snatched from him was of
VIVO-Y95 make and was containing two sim cards but no invoice
regarding purchase of such mobile phone had been proved in evidence. In
his sworn deposition, the complainant did not even disclose the make of
his mobile phone. No details qua purchase of the said phone had been
given by him due to which the allegations that any mobile phone
belonging to/owned by him had been snatched, have not been established
beyond doubt.
13. Further, the appellants were undisputedly not named in the
FIR. The complainant had identified them as snatchers of his mobile
phone while appearing into the witness box before the learned trial Court.
No test identification parade of the appellants had been conducted.
Before adverting to the evidence led by the complainant with regard to
identification of the appellants, in the opinion of this Court, it is just and
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necessary to bear in mind as to how the evidence regarding identification
of the accused persons which are totally unknown to the victim, has been
dealt with by Hon’ble Apex Court and how their evidence has to be
appreciated. In Budhsen v. State of Uttar Pradesh, AIR 1970 Supreme
Court 1321, the Hon’ble Supreme Court observed that the facts which
establish the identity of accused persons are relevant under Section 9 of
the Indian Evidence Act. As a general rule, the substantive evidence of a
witness is the statement made in the Court. The evidence of mere
identification of the accused persons at the trial for the first time is from
its very nature inherently of a weak character. The evidence in order to
carry conviction should ordinarily clarify as to how and under what
circumstances, the witness came to pick out the particular accused and
the details of the part which that accused played qua the subject crime
with reasonable particulars. It was held that the purpose of prior test
identification, therefore, seems to be to test and strengthen the
trustworthiness of that evidence. It was observed that accordingly it was
considered as a rule generally to look for corroboration of concerned
testimony of a witness as to identity of the accused who are strangers to
them, in the form of earlier identification proceedings.
14. Further, in Kanand versus State of Kerala, AIR 1979 Supreme
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Court 1127, the Hon'ble Apex Court observed that where a witness
identifies an accused who is not known to him in the Court for the first
time, his evidence is absolutely valueless unless there has been a previous
test identification parade to test his observations. If no test identification
parade is held, then it will be totally unsafe to rely upon the bare
testimony regarding the identification of an accused for the first time in
the Court. The idea of holding test identification parade under Section 9
of the Evidence Act, is to test the veracity of the witness on the question
of his capability to identify an unknown person whom the witness might
have seen only once.
15. Yet in another case cited as Mohd. Iqbal M.Shaikh and others
versus State of Maharashtra, (1998) 4 SCC 494, the Hon'ble Supreme
Court while dealing with the question of test identification parade and
also the effect of the accused persons being shown to the witnesses
during the course of investigation by the police held that if the witness
knew the accused persons either by name or face, the question of police
showing him the accused persons becomes irrelevant. If the witness did
not know the accused persons by name, but could only identify them
from their appearance, then the test identification parade was necessary,
so that, substantive evidence in Court about the identification, which is
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held after a fairly long period could get corroboration from the
identification parade. It was held that if the police shows the accused
persons in the police lock up to the identifying witness, then the so called
identification looses its value, in as much as it is only because of the
showing the accused persons that the witness is being able to identify
them. If the accused has been shown to him, in the course of
investigation, then the so called identification in the Court is of no
consequence and cannot form basis of conviction. It was further held that
if a witness was called to the police station while accused persons were in
police lock up and had been given opportunity of seeing those persons in
the police lock up, then the so called identification made by the witness
in the Court was of no significance.
16. On a combined meaningful and meticulous reading of the
above cited authorities, it is crystal clear that a Court should be very
careful in accepting the evidence of the prosecution with regard to the
identification of the accused persons, because if the same is not properly
appreciated, it is susceptible to miscarriage of justice, if there is an error
in identification of the accused. It is well settled proposition of law that
before accepting the evidence as to identification of accused persons by a
witness in the Court, the Court should observe the credibility of the
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witness, reliable power of observation of such witness, reasonable time
within which identification was made and further to observe that whether
there was fair opportunity for the witness to observe and identify the
accused persons.
17. In the above discussed background, let us analyze testimony of
PW-2. Though he had stated that the accused present in the Court were
the persons who had snatched his mobile phone, but he had not given
details of physical description of the snatchers like their complexion,
height or features or about the clothing as worn by them in the complaint.
The occurrence took place at 11 PM and it was obviously dark at the
time. There is nothing on record to show that he had any chance to
interact with the snatchers or had any particular reason to remember the
identity of all the accused at the time of occurrence, so that in that event,
the case could be considered to be an exception and conviction can be
based upon solitary evidence of this witness as to identification of the
accused for the first time. It was not explained by this witness as to what
was the basis on which he could identify the accused persons. The
possibility of this witness having seen the miscreants and identifying
them in dark seems very remote. As such, in my considered opinion, on
the basis of testimony of this witness, the identification of the accused
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persons has not been established beyond doubt and this fact has created a
serious dent in the story of the prosecution with regard to the
involvement of the accused in the subject crime.
18. The prosecution has also rested its case upon the evidence as to
suffering disclosure statements by the appellants vide memos Ex.P-2 and
P-3 respectively suffered by accused Vishal and Sudhir. PW-1 ASI
Rajesh who had joined investigation and PW-5 ASI Rajbir Singh,
Investigating Officer deposed about suffering of disclosure statements by
the appellants Sudhir and Vishal and consequent recovery of sums of
Rs.1600/- and Rs.1400/- respectively at their instance. As per the
prosecution case, the money so recovered at their instance was part of the
money received by them by sale of the snatched mobile phone to some
third person. The inculpatory part of these disclosure statements stated to
be suffered by the appellants Vishal and Sudhir vide memos Exs.P-2 and
P-3 however, cannot be stated to be admissible in evidence being
suffered in the custody of police and being confessional in nature. So far
as the demarcation of place of occurrence at the instance of the appellants
vide memo Ex.P-7 is concerned, the same cannot be stated to be of any
relevance in view of the fact that the place of occurrence was already
known to the police and Ex.P-11 rough site plan of the place of
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occurrence had already been prepared by PW-4 SI Satbir Singh on the
date of registration of FIR itself. As such, no new or distinct fact is
proved to have been discovered by the identification of place of
occurrence and this piece of evidence cannot be used for the purpose of
connecting the appellants with the crime.
19. Further, the currency notes which were allegedly recovered
from the appellants are not proved to be having any specific
identification mark. Small amount of money is alleged to have been
recovered from the appellants which could easily be planted against
them. More so, the alleged recovery was effected on 28.07.2020 whereas
the occurrence had taken place on 09.07.2019. It does not appeal to
reason that the appellants would keep such small amounts of money for
such a long time with them fully knowing that the same being
incriminating piece of evidence could be used against them for proving
commissioin of the subject crime. More so, such like currency notes
could be easily available in market. Neither the investigating agency has
put any specific mark on these notes at the time of effecting alleged
recovery. As such, the recovery of money at the instance of the accused
could not be considered to be a circumstance sufficient to prove that the
appellants had snatched any mobile phone.
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20. As such, the position which emerges is that the prosecution
version suffered from several material infirmities. There has been
inordinate and unexplained delay in reporting the matter to the police, it
has not been proved beyond doubt that the mobile phone allegedly
snatched from the complainant was purchased by him and was infact in
his conscious possession at the time of occurrence, evidence as to
identification of the appellants by the complainant is not inspiring and
hence, their identity as such has not been proved beyond doubt and
evidence as to recovery of money is also not sufficient to prove the
allegations of snatching. While passing the impugned judgment, the
learned trial Court did not take all these facts into consideration. As such,
in the considered opinion of this Court, the trial Court had committed a
grave error in convicting the appellants-accused and as such the judgment
and order passed by the trial Court thereby convicting the appellants for
commission of offence punishable under Section 379-A read with
Section 34 of IPC are not sustainable and deserve to be quashed and set
aside and the appellants deserve to be acquitted for the purpose for which
they were tried.
21. In view of the reasons stated above, the appeals succeed, the
impuged judgment and order passed by the learned trial Court convicting
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the appellants for the offence punishable under Section 379-A read with
Section 34 of IPC and order on quantum of sentence are hereby quashed
and set aside. The appellants are acquitted of the charges as framed
against them subject to their furnishing bonds in compliance with the
provisions of Section 437-A of IPC. They be released forthwith, if not
required in any other case.
(MANISHA BATRA)
24.04.2025 JUDGE
manju
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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