TIP Not Mandatory if Witness Testimony  Credible - Recovery of Weapon Not Essential for Conviction Under Section 397 IPC: Delhi High Court

“Mere non-holding of a Test Identification Parade (TIP) is not fatal to the prosecution’s case if the court finds the complainant’s testimony trustworthy and corroborated by other evidence”: Delhi High Court

On November 22, 2024, the Delhi High Court dismissed an appeal by Manish Kumar, who challenged his conviction under Section 397 of the Indian Penal Code (IPC). The judgment upheld the trial court’s findings, emphasizing the credibility of the complainant’s testimony and the sufficiency of circumstantial evidence, even in the absence of a Test Identification Parade (TIP) or the recovery of the weapon used. Justice Manoj Kumar Ohri concluded that the prosecution had conclusively proven the charges, warranting the dismissal of the appeal.

The case involved a robbery on March 16, 2001, when the complainant, Jagdish Mehto, was driving a TSR (three-wheeled scooter rickshaw). Four accused, including the appellant, allegedly hired the vehicle, and at a secluded location, they threatened the complainant with knives, robbed him of Rs. 367, personal items, and fled with the TSR. The complainant was left tied up, with tape on his mouth. Following investigations, the accused were arrested along with the stolen TSR.

Manish Kumar was convicted under Section 397 IPC and sentenced to seven years of rigorous imprisonment. He challenged the conviction, alleging contradictions in the complainant's testimony, lack of TIP, and non-recovery of the knife used in the crime.

Justice Manoj Kumar Ohri dismissed the appellant’s contention that the complainant’s testimony lacked credibility due to alleged contradictions. The Court observed:

“Minor inconsistencies in the complainant’s testimony do not detract from its overall trustworthiness, especially when corroborated by circumstantial evidence such as the recovery of the TSR and personal items.”

The complainant unequivocally identified the appellant as one of the perpetrators who brandished a knife and tied him with a rope during the robbery. The Court noted that:

“The complainant’s detailed account of the events and his identification of the appellant and his specific role establish the prosecution's case beyond reasonable doubt.”

The defense argued that the absence of a TIP rendered the identification unreliable. However, the Court relied on the precedent set in Malkhan Singh v. State of MP (2003), which stated:

“While TIP is a prudent practice, its absence does not make in-court identification inadmissible or unreliable if the testimony is otherwise credible and trustworthy.”

The Court noted that the complainant had ample opportunity to observe the accused during the robbery and his identification in court was clear and consistent.

Addressing the lack of knife recovery, the Court clarified that Section 397 IPC does not require the actual recovery of the weapon. The Court referred to Aas Mohammad @ Ashu v. State (2021), where it was held:

“The offense under Section 397 IPC is established by proving the use of a deadly weapon during the commission of the crime, regardless of its recovery. The complainant's testimony about the weapon's use suffices.”

The Court also emphasized corroborative evidence, including the recovery of the TSR and complainant's belongings from the accused. The discrepancies cited by the defense, such as the omission of certain details in the investigation records, were deemed immaterial.

Dismissing the appeal, the Court held:

“The allegations against the appellant under Section 397 IPC are conclusively proved. The complainant’s testimony is trustworthy and corroborated by sufficient evidence. Non-holding of TIP and the non-recovery of the weapon are inconsequential in light of the facts established.”

The appellant’s conviction and sentence of seven years rigorous imprisonment were upheld, and his bail bonds were canceled.

This judgment underscores the principle that a trustworthy witness’s testimony, supported by circumstantial evidence, can sustain a conviction even in the absence of TIP or weapon recovery. By affirming the trial court's findings, the Delhi High Court highlighted the robustness of evidence required to uphold convictions under Section 397 IPC.

Date of Decision: November 22, 2024