ADESH KUMAR Vs. STATE

JUDGEMENT

(1.) These two appeals arise out of the impugned judgment of the Court of Shri P.S. Sharma, Additional Sessions Judge, Delhi dated June 7, 1983 by which he convicted Adesh Kumar and Jagdish appellants under section 394 read with section 397 Indian Penal Code and sentenced them to seven years' RI and a fine of Rs. 500.00 each thereunder. The prosecution case stated in brief is that on July 26, 1978 at about 9.15 p.m. Dharam Singh PW was standing at the bus stand Beriwala Bagh, Bharat Nagar, Delhi. Three persons including the two appellants Adesh Kumar and Jagdish had come in the scooter of Narender Kumar Public Witness 3. These three persons got down from the scooter at some distance from the said bus stand. The third accomplice of the appellants went away. The two appellants went near Dharam Singh at the bus stand. They both showed a knife to Dharam Singh and told him to give to them whatever be had. Dharam Singh took out a currency note of rupee ten from his pocket and gave that note to the appellants. The appellants were, however, not satisfied and the personal search of Dharam Singh was taken by them and Adesh removed a sum of Rs. 300.00 from one pocket of the pant of Dharam Singh. Jagdish appellant while committing the robbery also gave a knife blow on the left thigh ot Dharam Singh. The wrist watch was also removed from the wrist of Dharam Singh. The appellants threatened him to face towards Bharat Nagar side and move towards that side and the two appellants in the meanwhile made good their escape. Dharam Singh after walking some distance talked over the matter to some persons. The police was informed. The statement of Dharam Singh was recorded by the police on which a formal FIR was drawn. Dharam Singh was taken to the Police Hospital, Delhi and was given treatment there. Jagdish, appellant, was arrested in some case of police station Roshanara Road on the same night and on the same night Ashok Vihar Police was informed by Roshanara Road police about Jagdish appellant having been arrested by them. On July 31, 1981 SI Uday Chand of police station Ashok Vihar (Public Witness 7) formally arrested Jagdish appellant in this case. Jagdish was got identified from Dharam Singh Public Witness in the test identification parade held by the Magistrate on August 3, 1978. He was correctly identified by Dharam Singh in that parade. Adesh Kumar, appellant, surrendered before the court of the Metropolitan Magistrate on January 16, 1979. He was sent to judicial custody on that day for one day. On January 17, 1979 he was remanded to police custody upto January 22,1979. On January 22. 1979 an application for getting Adesh Kumar identified from Dharam Singh Public Witness was moved before the court of the concerned Magistrate. Adesh Kumar, however, declined to join the test identification parade. The prosecution among others examined Dharam Singh, the victim of the robbery, as Public Witness 3 and Narender Kumar, scooter driver, as PW 5. They broadly supported the prosecution version.

(2.) I have heard Shri Subhash Bhutan, learned counsel for Adesh Kumar appellant, and Shri Harish Gulati for Jagdish appellant who took me through the record of the case. None appeared on behalf of the State at the hearing of the appeal. The main question that was urged by the counsel for the two appellants is that the learned trial court was in error in coming to the conclusion that the identity of Adesh and Jagdish appellants as the persons who committed the robbery stood proved on the record beyond a reasonable doubt. I may state at the very outset that I find force in the contention of the learned counsel for the appellant, Adesh only. The prosecution in establishing the identity of the two appellants as the two persons who committed the robbery has relied on the statements of Dharam Singh Public Witness 5 and Narender Kumar PW 3 in their having identified in the court the two appellants as those persons while giving their statements at the trial of the case and supported by the fact that Adesh Kumar had declined to join the test identification parade and Jagdish appellant was rightly picked up as one of the two culprits by Dharam Singh in the test identification parade as held on August 3, 1978, It has come in the prosecution evidence that Dharam Singh Public Witness 5 did not know either of the two appellants prior to the occurrence. His statement was recorded as PW 5 in the court on November 12, 1982 i.e. after about 4 years of the occurrence. His evidence of identifying the two appellants as the robbers who committed the robbery had little evidentiary value unless otherwise corroborated by his identification of the persons who committed the robbery at the test identification parade. The Supreme Court in the case Budhsen and another v. State of U.P., 1970 Cr. LJ 1149 held that the evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character and it is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who was a stranger to them, in the form of earlier identification proceedings. The question for consideration is as to whether the trial court was justified in drawing an adverse inference against Adesh appellant for his having declined to join the test identification parade as without the aid of such an inference against Adesh Kumar, appellant, he could not reasonably be convicted for the offence in question on the mere evidence of his having been identified by Dharam Singh and Narender Kumar PWs at the trial, in the court. Now as pointed out by me above, Adesh Kumar could not be arrested in the case and he surrendered before the court on January 16. 1979 i.e. after about six months of the occurrence. He remained in the police custody from January 17, 1979 to January 21, 1979 and an application for getting him identified from Dharam Singh was moved only on January 22, 1979 prior to which he had been in police custody for five days. There was a possibility of the police having shown Adesh Kumar appellant to Dharam Singh in the five days' time in which Adesh Kumar was in its custody. The proper course for the police to do was to have allowed Adesh Kumar to remain in judicial custody till his identification parade was got arranged by the police. The very purpose of a test identification parade is lost when an identification parade is not got arranged at the earliest opportunity and when the accused person is allowed to remain in police custody for a considerable period before a request is made to the court for arranging a test identification parade. There is also nothing on the record to show that Adesh Kumar was directed to keep his face muffled when he was produced in the court on January 17,1979 or on January 22, 1979. Under these circumstances the learned trial court was not justified in drawing an adverse inference against the appellant for his having not joined the test identification parade. I accordingly hold that the learned trial court was in error in coming to the conclusion that the identity of Adesh Kumar as one of the two robbers stood proved beyond a reasonable doubt from the prosecution evidence as adduced on the record. The being so, Adesh Kumar was entitled to acquittal.

(3.) As regards the appeal of Jagdish, appellant, he was correctly identified by Dharam Singh in the test identification parade held just 8 days after the occurrence. From the evidence as adduced on the record it appears that the police took due precaution to get Jagdish appellant identified in the test identification parade at the earliest opportunity. From the statement of SI Uday Chand Public Witness 7, investigating Officer of the case, it is clear that Jagdish appellant was arrested in some other case of that police station by the police of Police Station Roshanara Road on the night of the same day i.e. July 26, 1978 itself. He was informed by Roshanara Road Police Station about the same on the same night. SI Uday Chand has stated that on the next morning he went to the police station Roshanara Road to formally arrest Jagdish appellant in the present case. Jagdish appellant was, however, not available at the police station at that time as he had been taken away by SI Karan Singh, Investigating Officer of the other case of police station Roshanara Road. Jagdish appellant was then formally arrested by SI Uday Chand in this case on July 31, 1978. From the statement of SI Uday Chand Public Witness 7 and the application Ex. Public Witness 7/C it is clear that SI Uday Chand submitted the application Ex. Public Witness 7/C to the Metropolitan Magistrate concerned requesting him to arrange for the test identification parade of Jagdish on the same day of his arrest i.e. on July 31, 1978 itself and the learned Magistrate fixed the test identification parade of Jagdish appellant for August 3, 1978 and Jagdish was in the meantime sent to judicial custody. The test identification parade was duly conducted on August 3, 1978 by Shri Raghubir Singh, Metropolitan Magistrate (Public Witness 9).