Sri Ram @ Jairam vs State (Nct Of Delhi) on 3 June, 2016

2. Challenging the conviction learned counsel for Sriram contends that
the appellant has been convicted solely on the testimony of the so called eye
witnesses. There is no recovery whatsoever either from Sri Ram or at his
instance. Co-accused Manoj @ Appu, at whose instance the gold chain and
pair of tops were recovered, has been acquitted. In view of the acquittal of
Manoj @ Appu, Sri Ram could not have been convicted for offence
punishable under Sections 392/34 IPC as per the decision of the Supreme
Court reported as 1994 SCC (Cri) 1422 Malkhan Singh vs. State of Haryana.
The testimony of the four alleged eye witnesses is not trustworthy and is
unreliable. All four of them have narrated different version of the
commission of offence and the role assigned to Sri Ram. There are material
improvements and contradictions in the testimony of the witnesses. Though
it is the case of the prosecution that Ram Kumar, PW-5 identified Sri Ram in
the Test Identification Parade (TIP) however, the original Test Identification
Parade proceedings were lost and pursuant to the order of the District and
Sessions Judge, proceedings were reconstructed. Despite record of the TIP
proceedings being reconstructed, original signatures of the participants of
the test identification parade, Sri Ram and Ram Kumar PW-5 and the
learned Metropolitan Magistrate are available on the document. Further the
photocopy of this reconstructed test identification parade proceedings shows
tampering of the record as the same does not contain the endorsement by

Crl.A.Nos.901/2015 and 805/2015 Page 2 of 11
Ram Kumar that he has identified Sri Ram in the proceedings. There is no
order sheet reflecting as to how and when the original test identification
proceedings were brought back on record. Thus the test identification
parade cannot be relied upon. Sri Ram was shown to the witnesses by the
police officials as admitted by PW-5 Ram Kumar who stated that after Sri
Ram was arrested in FIR No.33/2010 of PS Sunlight Colony under Section
25 Arms Act, he was called to see Sri Ram on March 19, 2010. Thus the
TIP proceedings even if relied upon are meaningless. Entire investigation
appears to have been done in a clandestine manner by the police officials of
Crime Branch. Though chance prints were taken but the same were not sent
to FSL. In any case, no report thereof has been placed on record. Only Ram
Kumar, PW-5 states that 200 gram of gold and `1.50 lakhs were looted
which were not recovered. The worker who untied the family members has
not been examined in the Court. Though Archana Gaikwad, PW-2 and
Shivangi, PW-3 deposed about a ring and a pair of tops of Archana and pair
of gold ear ring and Mangalsutra of Shivangi being looted however, no
description, weight etc. of the properties were given. Though the pair of
tops and ring allegedly recovered belonged to Archana Gaikwad, but were
identified by Ram Kumar.

Source: Indian Kanoon

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