Delhi High Court
Sadaab @ Shamshad vs State on 11 March, 2014
Author: Deepa Sharma
Bench: Deepa Sharma
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A.1403/2012
Judgment reserved on : 24th February, 2014
% Judgment pronounced on : 11th March, 2014
SADAAB @ SHAMSHAD ..... Appellant
Through: Ms. Nandita Rao, Adv.
Appellant in J/c.
versus
STATE ..... Respondent
Through: Mr.O.P. Saxena, APP for the State.
SI Narendra Kumar, PS Anand Vihar.
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA
JUDGMENT:
1. As per the prosecution, PW 3/complainant/ Surender and PW8/Dildar on 4th May, 2011 at about 8.30-8.50 pm were taking a walk at CBD Ground and saw three/four boys coming from opposite sides and the boys caught hold of them and asked them to hand over their possession. On refusal, one of them stabbed complainant PW3 on his left thigh and PW8 at his leg. These boys also snatched Samsung Mobile 5233 bearing number as 9818020543 and a brown colour purse having licence, photographs and some documents of Catmos company and a cash of Rs.600-700 from the complainant/PW3 and a cash amount from PW8.
W.P.(C) No.1403/2012 Page 1 of 18
2. The assailants thereafter fled away. Both the injured walked to a distance and informed the police officials who met them at Big Bazar. Police officials rushed them to Dr. Hedgewar Hospital. PW8 was found unfit for statement and hence statements of PW3 was recorded. After preparing a rukka, FIR under Sections 392/34 IPC was registered. The injuries received by PW 3 and PW8 stands proved by their MLCs exhibited as Ex. PW4/A & Ex. PW4/B respectively. Injuries received by PW8 are opined as dangerous and injuries received by PW3 are opined as simple in nature. These MLCs coupled by the statements of PW3 and PW8 confirms the fact that an incident of robbery had taken place on 4th May, 2011 at CBD Ground between 8.30pm to 8.50pm in which PW3 and PW8 were robbed by 3/4 assailants and one of the assailants stabbed them, causing dangerous and simple injuries.
3. After the registration of the FIR, the accused Sonu and Shahadat were arrested on 9th May, 2011. The purse and mobile of PW3 were recovered from their possession. They were also found to be juveniles. On 10 th May, 2011, another assailants who was also juvenile namely Saddam was arrested. They all are tried separately under the Juvenile Justice Act. W.P.(C) No.1403/2012 Page 2 of 18
4. PW14/SI Omvir Singh of P.S. Farash Bazar has deposed before the court that the appellant i.e. Sadaab was arrested on 24th May, 2011 in case FIR No. 116/2011 under Sections 307/34 IPC, P.S. Farash Bazar. The arrest of the appellant in that FIR is not disputed. On his arrest, appellant/accused made a disclosure statement, wherein, he had disclosed his involvement in this FIR No. 139/2011, Police Station Anand Vihar. On the basis of the disclosure, the appellant was arrested in this case.
5. It is also an established fact that none of the robbed property has been recovered from or at the instance of the appellant. The weapon of the offence also could not be recovered. The appellant was formally arrested in this case on 1st June, 2011 when he was produced in court on production warrant. This fact clearly shows that the appellant had been in judicial custody and for formal arrest in this case he had been produced in the court on production warrants. The Investigating Officer in this case, PW7/SI Arun Sindhu has clearly stated that the accused was interrogated on 1st June, 2011 and his Disclosure Statement Ex.PW7/C was recorded and with the permission of the court, he was formally arrested and his personal search was conducted vide Memos Ex. PW7/D and Ex. PW7/E. The accused was kept in muffled face.
W.P.(C) No.1403/2012 Page 3 of 18
6. An application for Test Identification Parade was moved before the learned M.M. but the appellant had refused to participate in the Test Identification Parade. His refusal was recorded. He was also issued the statutory warning that his refusal to participate in the Test Identification Parade would be taken as a piece of evidence against him. The Test Identification Parade proceedings are proved on record as Ex.PW1/A and the statement and thumb impression of the appellant is proved at point F and the certificate regarding the correct recording of Test Identification Parade is Ex.PW1/B.
7. Both the witnesses PW3 and PW8 have also identified the appellant as their assailant and also the one who had inflicted stab injuries on their persons. On the basis of these proved facts, learned trial court has convicted the appellant for the offences under Sections 394/34 IPC read with Section 397 IPC vide its order dated 4th August, 2012 and sentenced him to undergo 7 years of rigorous imprisonment along with fine of Rs.5000/- and in default of payment of fine, further rigorous imprisonment of one year. The trial court had given the appellant the benefit under Section 482 Cr.P.C. for the period already undergone by the appellant in custody during investigation/trial in this case.
W.P.(C) No.1403/2012 Page 4 of 18
8. Learned counsel for the appellant has assailed the findings of the learned trial court on the ground that the trial court has erred in reaching the conclusion that the appellant has been correctly identified by witnesses PW3 and PW8. It is argued that PW3 had while identifying the appellant as his assailant had stated that he was arrested on 10th May, 2011 while the appellant was arrested on 24th May, 2011 in case FIR No. 116/2011, P.S. Farash Bazar and in this case on 1st June, 2011. It is further submitted that his explanation in the cross examination by learned APP that due to lapse of five months, he had given the wrong date is not a sufficient explanation. It is further argued that PW3 had seen the appellant on 29th June, 2011 in police custody. It is further stated that since it was dark at the place of occurrence, therefore, it was not possible for the witnesses PW3 and PW 8 to see their assailants and later on identify them. It is further argued that PW8 has admitted that he had gone to the police station for identification of the boy but since he had to return due to his bleedings, he was shown the photographs of the assailants in the police station. It is further argued that there is no corroborative evidence to connect the appellant with the commission of the offence and therefore, it is not safe to convict him solely on the basis of dock identification and has relied on Para 9 and 20 of the case Hardwari Lal v. State 2009 (4) JCC 3086. Para 9 and 20 of case of W.P.(C) No.1403/2012 Page 5 of 18 Hardwari Lal (supra) are reproduced as under:-
"9 it is a settled proposition of law that when the accused is not previously known to the witness, and is not apprehended on the spot, there is no evidence to corroborate identification during trial, and there are no special features in the testimony of a witness, which persuade the court to accept identification in the court, even without any corroborative evidence, it is obligatory for the prosecution to get his identity verified in a Test Identification Parade".
"20 the identification of the appellant during trial could have been acceptable to establish his identity had there been some corroborative evidence to connect him with the commission of the offence. Admittedly, the stolen case property was not recovered from him. The case of the prosecution is that one knife was recovered from the possession of the appellant when he was arrested. There is no evidence to show that injuries to the appellant were caused from that very knife. What is more important is that the trial court has disbelieved the alleged recovery of knife from the appellant and has acquitted him of the charge under Section 25 of the Arms Act. No cross appeal has been filed by the W.P.(C) No.1403/2012 Page 6 of 18 prosecution against the acquittal of the appellant for the charge under Section 25 of the Arms Act. "
9. Learned counsel for the appellant has also relied on para 7 of the findings of the Apex court in D. Gopalakrishnan v. Sadanand Naik AIR 2004 SC 4965. It is reproduced as under :-
"7 There are no statutory guidelines in the matter of showing photographs to the witness during the stage of investigation. But nevertheless, the police is entitled to show photographs to confirm whether the investigation is going on in the right direction. But in the instant case, the Investigating Officer procured the album containing the photographs with the names written underneath and showed this album to the eyewitness and recorded their statements under Section 161 Cr.PC. The procedure adopted by the police is not justified under law as it will affect fair and proper investigation where wrong persons are identified as assailants, the same could be confirmed by the Investigating Officer by showing the photographs of the suspect and the Investigating Officer shall not first show a single photograph but should show more than one photograph of the same person, if available. If the suspect is available for identification or for video conferencing, W.P.(C) No.1403/2012 Page 7 of 18 the photographs shall never be shown to the witness in advance. In the instant case, the witness had not described the physical features of any identifying characteristics as to how they identified assailants. To such a witness, showing of photograph would only lead to Investigating Officer to make wrong conclusion regarding the identification". .
10. It is argued that since PW8 has clearly admitted that he was shown the photographs by the Investigating Officer, therefore, refusal to participate in TIP by accused is justified and no adverse inference can be drawn.
11. It is argued on behalf by the learned APP that there was sufficient light at the spot as the witnesses had stated that there was a street light post nearby and so the witnesses could see their assailants. It is further argued that assailants were not known to the witnesses and that is why they have not been named in the FIR and there is no reason on the part of the witnesses to wrongly identify the appellant as their assailant. No photograph of appellant was shown or he was shown personally to witnesses at any time prior to test identification parade.
12. I have given careful consideration to rival contentions. W.P.(C) No.1403/2012 Page 8 of 18
13. The sole question for determination is whether the offence is committed by accused or by some other person. It is an admitted case that the assailants were not known to the witness PW3 and PW8. There is no doubt that the appellant has taken the plea that he has been falsely implicated by the complainant/PW3 because of Mohalla rivalry as the appellant lives in the same area where PW3 is residing, however, the appellant has not produced on record any evidence in support of his contention. He was given an opportunity to produce defence evidence but he did not avail it. There is no doubt that the accused is not required to prove his defence beyond reasonable doubts but atleast there should be certain facts which by preponderance show that the defence of the accused has some merit and that it has been able to create a dent in the prosecution case. The appellant has not in his statement under Section 313 Cr.P.C. stated that PW 3 had any mohalla rivalry towards him. Even otherwise, if the appellant was known to PW3 and PW3 had any an intention to falsely implicate the appellant in a criminal case, he would have certainly named him in his complaint i.e. the FIR. The appellant is not named in the FIR. In these circumstances, I find it difficult to accept the contention of the appellant that he has been implicated falsely due to mohalla rivalry. It is also apparent that while the address of the appellant is B-343, NSA Colony, Shahdara, Delhi W.P.(C) No.1403/2012 Page 9 of 18 the address of PW3 is C-135, Gali No. 5, Near Tent Wala School, NSA Colony, Delhi, which clearly shows that they are not living in the same mohalla.
14. The case of the prosecution is based on the identification of the appellant by PW3 and PW8 in the court supported by the refusal to participate in Test Identification Parade by the appellant.
15. Learned counsel for the appellant has argued that PW 3 has wrongly identified the appellant when he has stated that he was arrested on 10 th May, 2011 from Gali No. 10, Bhikam Singh Colony. There is no doubt that this part of the statement of PW 3 is contrary to the record because the appellant was arrested in this case with the permission of the court on 1 st June, 2011 while he was produced on production warrants as he was sent to judicial custody in the case FIR No. 116/2011, P.S. Farash Bazar under Section 307/34 IPC wherein, he was arrested on 24th May, 2011 by PW14. This lapse of memory on the part of the witness regarding the date and the place of arrest of the appellant has been explained by him in his cross examination by learned APP when he has stated that on the date 10 th May, 2011 one boy namely Saddam was arrested and that he had so deposed due to some W.P.(C) No.1403/2012 Page 10 of 18 confusion due to lapse of about 5 months. It is a fact that Sadam was arrested on 10th May, 2011. Besides the other two co-accused were also arrested on 9th May, 2011 and therefore, the assailants of PW3 and PW8 were arrested and apprehended on several dates. It, therefore, is very natural for a witness to mix up the dates of arrest of his various assailants. However, from his testimony, it is clear that he had identified the appellant as the person who robbed him and PW8 and stabbed him on his left thigh. There is a clear and unflinching identification by PW 3 of the appellant. Similarly PW 8 has also identified the appellant as the person who had stabbed him. Both the Prosecution witnesses have also deposed that when they were walking, they saw them coming towards them and that there was sufficient light at spot.
16. There is nothing in the cross examination of these witnesses which could demolish their testimony on identification of the appellant. These two witnesses have corroborated each other on all material points including the identity of accused.
17. It is also argued on behalf of the appellant that since there is no recovery from or at the instance of the appellant, the appellant cannot be convicted solely on the basis of his identification in court {reliance placed on Hardwari Lal (supra I)}.
18. I have given careful consideration to the findings in the case supra. W.P.(C) No.1403/2012 Page 11 of 18 The courts are cautioned that it is not safe to accept the identification in the courts without corroborative evidence and it is obligatory to get the identification of the assailant verified in Test Identification Parade.
19. In the present case, the police has applied for the Test Identification Parade. On the scheduled day, PW 7 along with the complainant/PW3 had gone to Tihar Jail for participating in the Test Identification Parade but was informed that the accused/appellant has refused to participate in Test Identification Parade. The record of Test Identification Parade is exhibited as Ex.PW1/A. The refusal to participate in Test Identification Parade is recorded on the ground that the photograph of the appellant was taken by one person at Police Station Jagat Puri and that the witness was residing in his mohalla about 20-25 yards from his house and knows him and his face. This court has already discussed the plea of accused about mohalla rivalry and found no merit in it. The witness PW3 in his cross examination has clearly stated that he did not know if the accused lived in B-Block. He has denied that he knew the accused very well. He has also denied that he had any quarrel with the residents of B-Block. He has denied that he had seen the accused in B-Block. There is no evidence on record to support the contention of the appellant.
W.P.(C) No.1403/2012 Page 12 of 18
20. The appellant has miserably failed to establish even by preponderance of evidence that PW3 had known the appellant before the date of incidence and that is why has falsely identified him. The purpose of Test Identification Parade and its value has been discussed by the Apex court in the case of Dana Yadav @ Dahu and others v. State of Bihar (2002) 7 SCC 295. The relevant para is reproduced as under:-
"9 Section 9 of the Evidence Act deals with relevancy of facts necessary to explain or introduce relevant facts. It says, inter alia, facts which establish the identity of any thing or person whose identity is relevant, in so far as they are necessary for the purpose, are relevant. So the evidence of identification is a relevant piece of evidence under Section 9 of the Evidence Act where the evidence consists of identification of the accused at his trial. The identification of an accused by a witness in court is substantive evidence whereas evidence of identification in test identification parade is though primary evidence but not substantive one and the same can be used only to corroborate identification of the accused by a witness in court."
21. In the case reported as AIR 1960 SC 1340 Vaikunthun Chandrappa and others v. State of A.P., three Judges Bench of the learned Apex court has observed that substantive evidence of a witness is his statement in court but the purpose of Test Identification Parade is to test that evidence and the safe rule is that the sworn testimony of witnesses in court as to identity of the accused who are strangers to the witnesses, W.P.(C) No.1403/2012 Page 13 of 18 generally speaking, requires corroboration which should be in the form of an earlier identification proceeding or any other evidence.
22. In the present case, the witnesses PW 3 and PW 8 have identified the appellant as their assailant. It is also the proven fact that in the present case there was a Test Identification Parade in the Tihar Jail, where the accused had refused to participate. A clear warning had been given by the learned Metropolitan Magistrate that the refusal to participate in Test Identification Parade by the accused would be taken as a piece of evidence against him. The refusal of Test Identification Parade without justifiable reasons is an evidence against the appellant.
23. It is also an established fact that accused is not required to prove conclusively his plea that he was shown to the prosecution witnesses or that his photographs were shown to the prosecution witnesses. It is sufficient if the accused brings on record cogent circumstances to show that he was or could have been shown to prosecution witnesses.
24. In the present case, the accused has relied upon the testimony of PW 3, where PW 3 had stated in the cross-examination that he did not remember if on 29th June, 2011, he had come to Karkardooma courts and there he saw the appellant in W.P.(C) No.1403/2012 Page 14 of 18 police custody and on seeing him identified him as one of the robbers.
25. It is apparent from this testimony of PW 3 that he has not admitted that he had seen the appellant in the police custody on 29 th June, 2011 and identified him as one of the robbers. The accused has refused to participate in Test Identification Parade on 1st June, 2011. Even if the plea of appellant, that he was shown to witness on 29th November, 2011 is admitted, he is not justified in refusing Test Identification Parade on 1 st June, 2011. His refusal comes prior to the date, he was allegedly shown to witness.
26. It is also argued by the learned counsel for the appellant that PW8 in his testimony has admitted that he was shown the photographs of assailants in the police station where he had gone for identification. It is argued that since his photographs had been shown to this witness, therefore his refusal to participate in Test Identification Parade is justified. This argument of the appellant holds no water. When we read the testimony of the witness PW8 in toto, it becomes evidently clear that the witness is speaking about the identification of the boy who had been arrested within a week of the incident. The incident had taken place on 4 th May, 2011 and the witness has clearly stated that he had gone to the Police Station about a week after the incident. He, therefore, must have gone around 11 th May, 2011 i.e. after W.P.(C) No.1403/2012 Page 15 of 18 about a week of the incident which is dated 4th May, 2011. It has come on record that juvenile accused Sonu and Shahadat were arrested on 9th May, 2011 and juvenile Shahdab was arrested on 10th May, 2011. The appellant was arrested in case FIR No. 116/2011, P.S. Farash Bazar on 24th May, 2011. Since, he was not arrested till the time, the witness had visited the Police Station, there was no occasion for the witness to go for identification of the appellant or see his photograph at Police Station.
27. Although, it is stated by the appellant that his photographs were taken at Police Station Jagatpuri, he has not disclosed on which date, or in which FIR his photographs were taken. There is no contention that after his arrest by the police of Police Station Farash Bazar, his photographs were taken and shown to the witnesses.
28. From the above discussed facts, it is, therefore, clear that the appellant has failed to bring on record cogent circumstances to show that he was or could have been shown to the prosecution witnesses, before his refusal to participate in Test Identification Parade.
29. From the above discussion, it is apparent that the refusal to participate in the Test Identification Parade by the accused is without any basis and is W.P.(C) No.1403/2012 Page 16 of 18 not justified. I hold that the appellant had refused to participate in Test Identification Parade because he knew that he would have been identified by the witnesses. Therefore, an adverse inference can be raised against the appellant and his refusal can be used as a corroborative evidence to his dock identification by the witnesses.
30. It has been held by Hon'ble Supreme Court in Daya Singh v. State of Haryana (2001) 3 SCC 468 relying on its earlier decision in Suraj Pal v. State of Haryana 1995 (2) SCC 64 that:-
"If the accused in exercise of his own volition declined to submit for test parade without any reasonable cause, he did so on his own risk for which he cannot be heard to say that in the absence of test parade, dock identification was not proper and should not be accepted, if it was otherwise found to be reliable".
.........in Suraj Pal v. State of Haryana, the court observed that "it is true that they could not have been compelled to line up for test parade. But they did so on their risk for which the prosecution could not be blamed for not holding the test parade".
31. Same is the position in the present case. The appellant has without W.P.(C) No.1403/2012 Page 17 of 18 any justifiable reasons refused to participate and thus an adverse inference can be raised against the appellant. There is nothing on record to doubt the testimonies of PW3 and PW8. PW3 and PW8 have corroborated each other on all material facts including identity of appellant. The conviction of the appellant under Sections 394/34 IPC read with Section 397 IPC by the learned trial court does not suffer from any infirmity and is based on the evidences on record.
32. While passing the order on sentence, the learned trial court has also taken into consideration all the relevant factors and thus the order on sentence also does not suffer with any infirmity.
33. The appeal being devoid of merit is dismissed.
34. The copy of the order be sent to trial court.
35. The Registry is directed to send a copy of the order to the Jail Superintendent, Central Jail, Tihar for compliance and to supply the same to the appellant.
DEEPA SHARMA, J.
MARCH 11, 2014 j W.P.(C) No.1403/2012 Page 18 of 18