ATTAR SINGH ALIAS ATTERE Vs. STATE (DELHI ADMINISTRATION)

JUDGEMENT

(1.) THIS is an appeal by Attar Singh alias Attere Accused/appellant against his conviction under Section 392 and Section 397 IPC and sentences of five years' RI and a fine of Rs. 2,000/- under Section 392 IPC and seven years' RI and a fine of Rs. 8,000/- under Section 397 IPC were passed by the court of Shri S.M. Aggarwal, Additional Sessions Judge, Delhi by his impugned judgment and order of sentence, both dated December 19, 1983. The prosecution story stated in brief is that on April 23, 1982 Pale Ram and his two sons Ram Kumar and Roshan Lal and their brother-in-law Shri Kishan were present at their cloth shop run under the name and style of M/s Jai Bharat Vastra Bhandar, Main Market, Adarsh Nagar. At about 8.00 or 8.30 p.m. on that day two persons, namely, the appellant and his co-accused Jai Pal came there. They asked one of them to show cloth for ladies suit. Jai Pal had selected a piece of cloth for lungi and another piece of striped cloth for pajama. Shri Kishan prepared a bill for Rs. 31/- and some paisa. Ram Kumar handed over the cloth sold by him in a polythene bag to the appellant. Both the accused then took out a pistol each. Jai Pal was armed with a knife as well. Both the accused commanded the four PWs to keep quiet and not to move, or else they would be shot deed. The two accused climbed over the gaddi of the shop and took out Rs. 9500/- to Rs. 10,000/- from the cash box lying in the shop. They put the said money in a polythene bag and tried to run away from the shop. Jai Pal, co-accused, however, stumbled against a stool lying near the door of the shop and fell down and was apprehended at the spot. The appellant, however, managed to escape. He was apprehended on the night of July 5, 1982 by the police party headed by SI Om Parkash Mehta of Police Station Adarsh Nagar in some other case. The appellant was formally arrested in this case on July 6, 1982. He was sent to the judicial lock-up in Tihar Jail on that very day. A test identification parade was arranged by Shri R.K. Yadav, Metropolitan Magistrate on July 9, 1982 for getting the appellant identified by the prosecution witnesses. PWs Ram Kumar, Roshan Lal and Pale Ram were joined in the parade. Ram Kumar and Pale Ram were unable to identify the appellant. Roshan Lal (PWs), however, identified the appellant as one of the two accused who had committed the robbery. Siri Kishan was, however, given up by the prosecution as being un-necessary. Ram Kumar, Roshan Lal and Pale Ram PWs supported the prosecution case. They identified Attar Singh appellant as one of the accused of the robbery.

(2.) SHRI Rajeshwar Dayal Mathur, learned counsel for the appellant, contended that the learned trial court was wholly wrong in coming to the conclusion that the identity of the appellant as one of the two robbers was fully established from the evidence adduced on the record. There is force in this contention. So, far as the statements of Ram Kumar (PW4) and Pale Ram (PW3) about their identifying the accused in the court is concerned, it is a settled law that where a witness had identified 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 identification parade to test his power of observation. It was so held by the S.C. in the case Kanan and others, v. State of Kerala, AIR 1979 SC 1127. In Rajinder Kumar v. State, 23 (1983) DLT 42, Avadh Behari Rohatagi, J. reiterated the same.The position in the present case is worse for the prosecution. In this case an identification parade was held. Both PW1 and PW3, however, failed to identify the appellant as one of the two accused of the case. In such a situation their evidence about identifying Attar Singh appellant in the court as one of the accused who committed the robbery in question was wholly worthless. We were thus left with the statement of Roshan Lal PW2 who stated that Attar Singh appellant present in the court was one of the two accused who had come to their shop along with one other person and had committed the robbery.