J.D. Jain, J.
1. All the four appellants mentioned above have been convicted of offence under Section 392 read with Section 397, Indian Penal Code (for short 'IPC') by an Additional Sessions Judge vide his judgment dated 30th October 1984. They have been sentenced to rigorous imprisonment for three years and a fine of Rs. 300/- each for offence under Section 392 IPC and rigorous imprisonment for seven years under Section 397 IPC ; in default of payment of fine, they have been awarded further rigorous imprisonment for six months each. Besides that, the appellants-Bishan Sarup, Budh Singh and Sher Singh have been convicted of offence under Section 25 of the Arms Act and sentenced to rigorous imprisonment for six months and a fine of Rs. 100/- ; in default of payment of fine, they have been awarded further rigorous imprisonment fore one month. However, all the sentences have been directed to run concurrently. Feeling aggrieved they have filed separate appeals, as stated above, against their conviction and sentence.
2. The prosecution case in brief is that Smt. Prem Kaur (PW 2) owns a taxi bearing registration No. DLT-2745. In February 1982 Man Singh (PW 4) was employed as a driver on it. However, on 8th February 1982 he happened to be ill and, thereforee, Ranjit Singh (PW 5) was entrusted to ply the taxi as a driver. At about 10-30 P.M. on that date Ranjit Singh was present at his stand Amar Taxi Service, Lodi Estate, Along with the taxi when four young persons i.e. the present appellants, came there and expressed their desire to engage a taxi for going to Dhaula Kuan, Railway Colony. Ranjit Singh took out his taxi and all the four appellants occupied seats therein. The taxi left for Dhaula Kuan. However, when it reached Ashoka Hotel on its way, appellants-Bishan stopped the taxi in order to purchase cigarettes from a cigarette vendor. Bishan came back with a cigarette and the taxi again proceeded towards is place of destination. As they reached Chandra Gupta Road behind the American Embassy, the appellants asked Ranjit Singh to stop the taxi. Akhtar appellant then enquired from him what the amount of the fare was. He replied that the fare was Rs. 13/-. In then while the other three appellants took out knives and threatened asking him to make over whatever cash he had with him. He had Rs. 22/- at that time and he handed over the same to Akhtar-appellant. Then all the four appellants fled away Along with the taxi. Finding himself in this predicament Ranjit Singh went to a taxi stand near American Embassy and telephoned his own taxi stand to cal Gurmukh Singh and Man Singh to the place of occurrence. After a short while both Gurmukh Singh and Man Singh arrived there and all of them then went in search of the taxi towards Dhaula Kuan but in vain.
3. They saw a police van parked near the Dhaula Kuan round about. Ranjit Singh informed SI Jaswant Singh (PW 6), who was on duty on the police Control Room Van about this incident and the latter flashed the message to Police Station Chanakya Puri at about 12 midnight. On receipt of the massage, copy Ex. PW3/A, the Duty Officer entrusted the investigation of the case to SI Rajesh Kaushik. The latter reached Dhaula Kuan round about and recorded statement Ex. PW3/B of Ranjit Singh. He sent the same to the Police Station for registration of a case under his endorsement Ex. PW 3/C. On the night between 9th and 10th February 1982, SI Sarvan Singh of Police Station R.K. Puram (PW 15) was on patrol duty Along with head-constable Amrik Singh (PW 12) and constable Rajinder Singh (PW 11) when he spotted the taxi bearing registration No. DLT-2745 lying abandoned near B-15, Anand Niketan. The taxi was taken into possession vide memo Ex. PW 11/A. An envelope (Ex. PW 4/A) was found lying in the said taxi which bore the address Amar Taxi Service and the same too was taken into possession.
4. On 20th February 1982, a police party comprising SHO Police Station Chanakya Puri, SI Hoshiar Singh (PW 9), SI Rajesh Kaushik (PW 10), SI Om Prakash (PW 16), Ranjit Singh and Gurmukh etc. went to Chanakya Puri in a jeep in connection with the investigation of this case. At about I.P.M. they reached Chanakya Cinema. There was a queue of persons in front of the booking window of Chanakya Cinema. Ranjit Singh spotted appellants-akhtar, Bishan and Budh Singh @ Kalu, who were standing in the queue and pointed towards them as three of the four culprits, who had robbed him on the night of 8/9th February 1982. SI Hoshiar Singh apprehended Akhtar while On Prakash and Rajesh Kaushik apprehended Budh Singh @ Kalu and Bishan respectively. On the personal search of the appellants, a knife (sic)was recovered from the possession of Budh Singh @ Kalu and Bishan Sarup. The knives were taken into possession by the police vide memos Ex. PW 5/C and PW 14/B. On interrogation Akhtar made a disclosure, inter alia, saying that he had thrown the driving license receipt and the insurance papers of the taxi, which were lying therein, in the bushes near Senior Offices' Flats. It was reduced to writing and is Ex. PW 5/E. Akhtar then led the police party to that place and produced the above mentioned documents from under the bushes which were taken into possession vide seizure memo Ex. PW 5/F ; driving licenses receipt in FIR No. 49 dated 6th February 1982 under Section 279/337 IPC of Police Station Mandir Marg and insurance certificate in respect of taxi DLT-2745 being Exs. PW 5/A and PW 5/B respectively. On 22nd February 1982 SI Om Prakash (PW 16) was present Along with constables (sic) Singh and Prem Chand near Maurya Hotel in connection with the Investigation of this case when SI Om Prakash got secret information about Sher Singh-appellant. Since no member of the public was available/prepared to join the investigation, the aforesaid police party arrested appellant-Sher Singh at about 9.30 PM and on his personal search a buttondar knife Ex. P5 was recovered from the right pocket of his pants. It was seized vide memo Ex. PW 8/A and rukka Ex. PW 8/C was sent by SI Om Prakash to the Police Station for registration of a case under the Arms Act. A key (Ex. P4) of the taxi DLT-2745 was also recovered as a result of personal search of Sher Singh-appellant and the same was taken into possession vide Ex. PW16/E. On 23rd February 1982, Sher Singh was produced before a metropolitan Magistrate Along with application Ex. PW 13/A for holding his test identification parade but the appellant declined to participate in the test identification saying that he had been already shown to the witnesses at the Police Station, Ex. PW 13/B being the statement of Sher Singh and Ex. PW 13/C being the order recorded by the Metropolitan Magistrate Shri O.P. Gogne.
5. I have heard the learned counsel for the appellants at length and perused the entire evidence on record quite carefully. Counsel for the State (sic) also been heard.
6. The learned counsel for the appellants have assailed the prosecution evidence primarily on the ground that it is materially discrepant, contradictory and very much shaky. Moreover, it is deficient in establishing the identity of any of the appellants with that of the culprits as given by Ranjit Singh in the FIR.
7. Ranjit Singh (PW 5) had deposed to the circumstances under which he was deprived of his taxi DLT-2745 on the night between 8/9th February 1982 by the four miscreants who had boarded his taxi on the pretext that they were to got to Dhaula Kuan Railway Colony. He identified Akhtar-appellant as the person who had enquired from him what the fare was and (sic) had also taken Rs. 22/- from him after he (Ranjit Singh) had been threatened with knives by the other three accused. Thus, he explicitly (sic)cludes Akhtar as one of those who had threatened him with knife. As regards his identity, this witness asserted that one of the culprits was comparatively taller and he was Akhtar. Moreover, Akhtar was wearing a (sic). A perusal of the FIR would, however, show that he had described one of the three culprits, who had threatened him with knife, as tall being about (sic) in height and dark in compexion. He also had pox marks on the face. In court he stated that Budh Singh @ Kalu was of blackish colour and (sic)small-pox marks on his face but he explained that he did not mention the height of Kalu. He further deposed that he did not give description of Sher Singh. It is also significant to note that according to the FIR, one of the boys, who had got down near Ashoka Hotel in order to purchase a cigarette was wearing shawl. Of course, it is not clear whether he was the person sitting on the front seat or the back seat. The description of the person, when was sitting on the front seat in the FIR was that he was aged about 24-25 years and was heavy in physique and short in stature. Thus, there can be no manner of doubt that there is some confusion with regard to the ident(sic) particulars as given in the FIR and those given in his deposition in court. Unfortunately for the appellants however, no attempt was made by the learn(sic) defense counsel to bring on record the correct identity particulars of each of the appellants separately. That would have perhaps established that the identity particulars as given by Ranjit Singh in the FIR do not at all (sic) with their real identity particulars. Obviously the defense fought shy (sic) taking any risk in this respect. Having regard to the fact that Akhtar was pointed out by Ranjit Singh-complainant when he was standing in a queue (sic) the booking window of Chanakya Cinema only after about ten days of the occurrence, I see no cogent ground in doubting the veracity of his testimony in court as regards his identity. The identity particulars of Akhtar-appellant who was taller than others and who had asked Ranjit Singh which he had to (sic) with as a sequel to the threat other by culprits, must have clearly etched in the memory of Ranjit Singh and there is hardly and possibility of his flattering in this respect.
8. My attention was invited by the learned counsel for the appellants to the fact that Ranjit Singh first stated that Akhtar was found to be in possession of a knife but against veered found to toe the line of the prosecution by saying that in fact no knife was recovered from Akhtar but a knife each was recovered from Budh Singh and Bishan. Ranjit Singh explained that it was on account of lapse of memory on his part due to passage of about 2 1/2 years since the date of the occurrence. He went on to say that he did not remember if any further proceeding took place on that day. However, when confronted with disclosure statement Ex. PW 5/E of Akhtar, he admitted his signatures thereon but (sic) still persisted that he did not remember if Ex. PW 5/E was the statement of Akhtar which was recorded by Police after his arrest on that date. He was them cross-examined by the Public Prosecutor who would have naturally put question in a leading form. The result was that the witness replied in the affirmative that the Akhtar-appellant had made a disclosure statement (sic) the papers, which had been found in the taxi, were throw by him near Senior Officers' Flats and thereupon he (i.e. the witness) signed Ex. PW 5/E. He also stated that Akhtar had got recovered from the bushes near Senior Officers' Flats on Service Road papers Ex. PW 5/A and PW 5/B. Obviously he had absolutely no recollection about the alleged disclosure statement of Akhtar and recovery of the documents Ex. PW 5/A and PW 5/B in consequences thereof. A look at the documents Ex. PW 5/A and PW 5/B would show that they are in perfectly neat and sound condition. They are neither mutilated nor damaged even in the slightest. So it really passes one's comprehensive that the said documents could have been recovered so safe and sound condition from underneath the bushes, where they had been allegedly thrown after a lapse of about ten days of the occurrence. It may also be pertinent (sic) notice here that Ranjit Singh did not say a work in the FIR about these document having been left in the taxi when it was taken away by the culprits. Hence, the possibility of the alleged recovery pursuant to the disclosure made by Akhtar0appellant being just a stage-managed affair cannot be ruled out especially when the stolen taxi had already been recovered on 9/10th February 1982. No doubt, according to the prosecution, only one document Ex. PW 4/A was recovered from the taxi at that time but keeping in view the sound condition in which Ex. PW 5/A and PW 5/B are even today, it is rather difficult to accept the story of recovery of these documents at the instance of Akhtar at its face value.
9. My attention was also invited by the learned counsel for the appellants to the deposition of Gurmukh Singh (PW 14) who totally excludes Akhtar. According to him, when they went to Chanakya Cinema in the police vehicle, he and Ranjit Singh found appellants Budh singh, Sher Singh and Bishan standing at the counter of Chanakya Cinema and he informed the police accordingly. Later on, he stated that Akhtar, Budh Singh and Bishan were arrested from chanakya Cinema on 20th February 1982. It is interesting to note that according to him a knife was recovered from Budh Singh but nothing was recovered from Sher Singh and Bishan. He first stated that it was appellants-Bishan who had made the disclosure about the insurance papers of the taxi having been thrown near the bushes but in the next breath he stated that he did not remember the name of the accused who had made that disclosure. He too was cross-examined by the Public prosecution and then he categorically denied that the disclosure statement was made by Akhtar. He re-asserted that no knife was recovered from the pocket of Bishan. During cross-examination by the defense, he, inter-alia, stated that on the night of the incident there was no light at the taxi stand and he was seeing Sher Singh-appellant present in the court for the first time. However, he hastened to add that Sher Singh was shown to him even earlier by the thanedar at the Police Station at about 10/11 A.M. on 23rd February 1982. On re-examination he made rather funny statement to the affect that 'When I said there was no light I implied the present yellowish lights were not there but usual tubes lights were there.'
10. On a perusal of the whole of his testimony, it is abundantly clear that he is a totally confused person and, thereforee, he felt shaky at every step. Indeed, there was hardly any opportunity for him to see the appellants on the night of 8th February 1982 when they approached Ranjit Singh to hire the taxi in question and, thereforee, identification of the appellants by him on 20th February 1982 at Chanakya Cinema or for that matter in court is absolutely meaningless.
11. Reverting to the testimony of Ranjit Singh it bears repetition that on his own showing he did not give description of Sher Singh in the FIR. He further stated during cross-examination that the investigation officer had summoned him to Police Station after two or three days of 20th February 1982 and showed him a person at the Police Station. He then told the Police that the said person was the fourth man and he was Sheru present in court. He conceded that it may be around 5 or 5.30 P.M. on 22nd February 1982 when he was called by the Investigation officer thereafter. I have already adverted to the statement of Gurmukh Singh about Sher Singh having been shown to him at the Police Station on the morning of 23rd February 1982 at about 10/11 A.M. If that be so, the refusal on the part of Sher Singh to join the test identification parade would appear to be perfectly justified. The law is well settled that where an accused is not known to the victim prior to the occurrence and the accused is shown to the victim by the police without holding a prior test identification parade, the identification of the accused in court by the victim is valueless and cannot be relied upon. (Mohanlal Gangaram Gehani v. State of Maharashtra, : 3SCR277 ). In this view of the matter, thereforee, the identify of Sher Singh-appellant as one of the robbers who had deprived Ranjit Singh of his taxi on the night between 8/9th February 1982 cannot be said to have been established beyond reasonable doubt. Evidence regarding the alleged recovery of the key of the taxi (Ex. P4 from the possession of Sher singh too fails to inspire confidence in view of the recovery of the taxi much earlier and the possibility of the same having been planted cannot be ruled out. he is, thereforee, entitled to benefit of doubt. as for recovery of the alleged knife too, it would be difficult, under these circumstances, to place implicit reliance on the testimony of the police officials alone in the absence of any independent corroborative evidence.
12. The identity of Budh singh @ Kalu-appellant too has not been established beyond reasonable doubt inasmuch as all that Ranjit Singh has stated in his examination-in-chief is that Bishan and Akhtar-appellant were standing in a queue outside the booking window of Chanakya Cinema and he identified them and informed the police Officers that they were the two persons who had robbed him. Hence, they were apprehended on the spot. he has nowhere stated that he identified the third person, namely, Budh Singh and all that he said was 'Apart from Akhtar and Bishan one accused Budh Singh was also arrested by the police at that time but he was standing separately.' He then confirmed the suggestion of the Public Prosecutor that the second knife was recovered from Budh Singh rather than Akhtar. It is thus manifest that while identification of Akhtar and Bishan from amongst the persons, who were standing in the queue, was spontaneous on his part, the same cannot be said of Budh Singh. In other words, the possibility of Budh Singh having been roped in on the suggestion of the police officials themselves, may be pursuant to some secret information, cannot be altogether ruled out and he too would be entitled to benefit of doubt on that count.
13. We are then left with Bishan Sarup. His case appears to me to be at par wit that of Akhtar. It is true that the testimony of Gurmukh Singh has to be discarded as being of no help to the prosecution. All the same that would not detract from the credibility of Ranjit Singh who was victim of robbery and was in a much better position to see the robbers at the time of robbery. Further, his spontaneous act in identifying and singling out Akhtar and appellants-Bishans lends considerable weight to his credibility and nothing has come on record which would detract from the same so far as these two appellants namely, Akhtar and Bishan are concerned.
14. The upshot of the whole discussion, thereforee, is that the participation of both Budh Singh @ Kalu and Sher Singh in the commission of robbery has not been established beyond reasonable doubt and as such they are entitled to benefit thereof. Their conviction as well as sentence for the offence under Section 392 IPC and for that matter under Section 397 IPC is set aside and they are acquitted. Even the evidence regarding recovery of a knife each from them is rendered suspect and as such their conviction as well as sentence for offence under Section 25 of the Arms Act can also not be sustained. The same is accordingly set aside. As for Bishan Sarup-appellant, his conviction for offence under Section 392 read with Section 397 IPC is maintained as he was one of the culprits who had threatened the victim Ranjit Singh with a knife, but a separate sentence under Section 392 IPC is not warranted by law and is, thereforee, set aside. His conviction as well as sentence under the Arms Act too is upheld. However, conviction of the Akhtar-appellant for offence under Section 392 IPC only is maintained and he is not liable to enhanced punishment under Section 397 IPC. Hence, the sentence of seven years awarded to him under Section 397 IPC is set aside and he shall undergo sentence only for the offence under Section 392 IPC.
15. These four appeals are disposed of accordingly.