TAIN SINGH Vs. STATE

JUDGEMENT

(1.) By this appeal the appellant Tain Singh challenges the legality of the judgment passed on 6th June, 1985 convicting him of an offence under S.307 of the Indian Penal Code. He is also challenging the validity of the order of sentence which was also passed on the same date whereby he was sentenced to three years rigorous imprisonment and to pay a fine of Rs. 500/- for the said offence. In default of the payment of fine it was directed that the appellant should undergo further simple imprisonment for six months.

(2.) The facts of the prosecution case have been noticed in detail by the trial court. No useful purpose will be served by repeating them. The appellant was not arrested at the spot. After injuring the complainant Dharam Parkash he is alleged to have run away. He was arrested along with some other person on the night intervening 28/29th March, 1984. I may note at the outset that PW5 SI Ram Swaroop who arrested the appellant averred in his examination-in-chief that the arrest was made on the night of 29th March, 1984. However, he clarified during the cross-examination that it was during the night intervening 28/29th March,1984 at about 12.30 when he effected the arrest for an offence under S.399 read with S.402 of the Indian Penal Code. It was during interrogation for that offence that the appellant is alleged to have disclosed that he had committed a number of other offences including the one for which he has been convicted by the impugned judgment. It is the prosecution case that the concerned police station i.e. police station Defence Colony in whose jurisdiction the offence which is the subject matter of this case was committed was informed on 29th March, 1984 at 12.30 P.M. about the arrest vide D.D. No.6A (Ex.PW10/A). The said witness namely SI Ram Swaroop also admitted in cross-examination that the appellant was taken to near the quarters of Sadiq Nagar where the offence was committed "at about 11 to 12 Noon". It is the further case of the prosecution that the appellant was produced at 2 P.M. on that very date in Court for the purposes of seeking remand and the appellant was remanded to police custody up to 2nd April, 1984. On 2nd April, 1984 the officials of police station Defence Colony formally arrested the appellant in the present case and moved the application Ex. 15/D on that very date. The prosecution submitted that the appellant be remanded to judicial custody so that he could be put up in an identification parade. That application was marked by the concerned Magistrate to the Court of Shri J.K. Pali, Metropolitan Magistrate who had appeared as PW16. It is averred by him that the appellant and his co-accused who has since been acquitted refused to participate in the identification parade. Their statements were recorded by the learned Magistrate. Statement of the appellant herein is Ex. PW16/C. I may note another fact that as per the note of the learned Magistrate, which note has been exhibited as Ex.PW16/D the accused "persons have been produced with unmuffled faces". In the said application, however, the Investigating Officer has stated that they were being produced with muffled faces. The relevant portion of the said note reads "The accused persons have been produced with unmuffled faces. The I.O. stated that they were directed to muffle their faces before producing in this court. Both the accused voluntarily have refused to join the identification parade. I have warned them of adverse inference which may be drawn against them during the trial of the case. Let their statement be recorded". The statement of the appellant is in these words "we do not want to join the identification parade because we have been shown to the witnesses during police custody at different places".

(3.) The main plea of Mr. Upadhaya learned counsel for the appellant is that the conviction which is based solely on the ground that presumption of guilt has arisen against the appellant as he refused to participate in the identification parade cannot be sustained as in the facts and circumstances of the case it has to be held that the appellant and his companions had been shown to the witnesses while they were in police custody from the period 29th March, 1984 to 2nd April 1984. His emphasis is also on the fact that the appellant had been taken to the place of occurrence where the pointing out memorandum had been prepared. It is urged on behalf of the appellant that the complainant also lives in Sadiq Nagar and there was ample opportunity available with the prosecution to have shown the appellant to him at that time.