Supreme Court - Daily Orders
Anwar @ Addha vs State Nct Of Delhi on 8 September, 2017
Bench: A.K. Sikri, Ashok Bhushan
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2557 OF 2014
ANWAR @ ADDHA Appellant(s)
VERSUS
STATE NCT OF DELHI Respondent(s)
O R D E R
The appellant is challenging his conviction recorded for the offences committed under Section 302 read with Section 34 of the Indian Penal Code (IPC) as well as under Section 307 read with Section 34 IPC. Since the appellant is convicted under Section 302 IPC as well, he has been sentenced to undergo life imprisonment. The said conviction and sentence passed by the Trial Court has been upheld by the High Court vide impugned judgment dated 28.01.2013.
It may not be necessary to state the facts in detail as the arguments which are made by the learned counsel for the appellant are confined to the validity of Test Identification Parade (TIP) which was conducted by the Trial Court and submission was that since the said TIP is legally unsustainable, the entire case of the prosecution, as a result thereof would collapse. Therefore, we are taking note of only those facts which are necessary in dealing with the aforesaid arguments of the appellant.
The appellant was charged for the aforesaid offences alongwith co-accused Shakil and Tahib. Shakil died during the trial of the case. Therefore, trial against him stood abated. Both the appellant Signature Not Verified Digitally signed by and Tahib have been convicted. It appears that Tahib has not POOJA SEHGAL Date: 2017.09.21 13:12:16 IST Reason: challenged the judgment of the High Court. The charge against these accused persons was of committing the murder of one Mr. Amit 2 Kumar Sundriyal and attempt to kill Mr. Ramesh Chand Sundriyal, who was the complainant and had appeared in the witness box as PW-1. The following discussion is relevant :-
“2. Homicidal death of Amit s/o Ramesh Chand Sundariyal (PW-1) is virtually undisputed and is proved beyond doubt from the testimony of PW-1, who was present with Amit in their medical store/ shop at F-3/4, Dayalpur Extension, Main Road, Karawal Nagar, Delhi at about 10.45 p.m. on 21st August, 2006. Amit was fired at by a person, who had tried to enter the shop. PW-1 has deposed that the shot had hit on the shoulder of Amit. PW-1 rushed towards the person, who had fired the shot, to overpower him. PW-1 was fired at and got injured when shot hit his right hand. Thereupon, Amit rushed to save him and at that time Amit was hit by another shot. The assailants fired another shot which touched PW-1 “s abdomen and then probably hit his son.
3. The injuries suffered by PW-1 and the deceased have been proved by Dr. Devender Kumar (PW-22), who had prepared the MLC (Ex.PW22/A) of PW-1 dated 28th August, 2006. MLC records that PW-1 had alleged history of gunshot injuries. On local examination, he found an entry wound on ventral and an exit wound on the medially near the right hand wrist. Abrasion on the epigastric region was also found. After examining the wound, one Dr. Sumit Chakravarti had recorded that as per the surgical record, the nature of injury was “simple”. Dr. R.P. Singh on 21st August, 2007 after examining the X-ray had opined that the injury was “grevious”. The patient, i.e., PW-1 was admitted into the hospital as per the MLC.
Shakil was arrested in December, 2006. He made a disclosure statement implicating the appellant as well on the basis of which the appellant was also arrested in May, 2007. After the arrest of the appellant, his photograph was published in the newspaper and the same was seen by the complainant(PW-1). The appellant was, thereafter, put to TIP after few days where PW-1 identified the appellant.
On the aforesaid fact, arguments of the learned counsel for the appellant is that once the photograph of the appellant had been published in the newspaper and PW-1 had seen the said photograph, there was no purpose for conducting TIP and, therefore, the identification of the appellant in such TIP by PW-1 would be a no consequence. In support of these arguments, the learned counsel for 3 the appellant has relied upon two judgments of this Court in Mullagiri Vajram and Others Vs. State of Andhra Pradesh; AIR 1993 SC 1243 and in Binod Bihari Singh Vs. Union of India; AIR 1993 SC 1245. In nutshell, the submission is that once the identification of the appellant in the said TIP, which is termed as substantive evidence, is to be kept aside, conviction based on mere identification of the appellant at the time of the trial is unsustainable, as it would be an evidence of weak character.
In order to demonstrate that the photograph of the appellant had appeared in the newspaper and it had been seen by the PW-1 the learned counsel referred to his cross-examination wherein PW-1 stated that “Photograph of accused Anwar had appeared in the newspaper”. He also drew our attention to the deposition of the Investigating Officer who appeared as PW-27 which is discussed in the following manner:-
“9. Inspector B.P. Sharma (PW-27) has deposed that on 3rd January, 2007 DD No.54-B was received from police station Gokalpuri about apprehension of Shakil @ Kalia and the disclosure statement made by him about his involvement in the present case. Shakil was also tried as a co-accused in the present case, but he died during the pendency of the trial. PW-27 interrogated Shakil after obtaining permission of the Court and formally arrested him in the present case vide memo Ex.PW27/H. Shakil made a disclosure statement Ex.PW27/H-2. PW-27 prepared a challan and the present appellants i.e. Anwar and Tahir were placed in column No.2 of the charge sheet, since proceedings for declaring them as proclaimed offenders were pending against them. On 9th May, 2007, DD No.60-B (Mark P-27/A) was received in police station Khajuir Khas from Inspector S.K. Giri, Special Cell, Lodhi Colony that appellant Anwar had been arrested. Anwar thereafter was formally arrested in the present case vide memo Ex.PW27/J after obtaining permission from the Court. Anwar‟s disclosure statement Ex.PW27/J-1 was recorded. Thereafter, he was remanded to judicial custody and remained in muffled face throughout. Request for Test Identification Parade (TIP) was made and TIP proceedings were conducted on 17th May, 2007. We shall refer to the TIP proceedings separately. Search of the house of Anwar at 650, Gali No.1, Mohalla Char Diwari, Islamabad, PS Lisari Gate, Meerut was conducted vide memo Ex.PW16/A. PW-27 further deposed that proceedings under Section 82/83 Cr.P.C. were initiated against Tahir. On 21st July, 2007, DD No.37-A was lodged in police station Khajuri Khas by SI Shiv Kumar from Special Cell, Lodhi Road about apprehension of Tahir and that he would be produced in Tis Hazari Court. Tahir was formally arrested after taking permission 4 of the Court vide memo Ex.PW11/A. He made a disclosure statement Ex.PW11/B. An application for conducting TIP of Tahir was moved, but he refused to participate in the said proceedings. Tahir remained in muffled face till then. On 4th August, 2007 house of Tahir located at H.No.195, Gali No.1, Mohalla Kidwai Nagar, PS Lisari Gate, Meerut was searched vide memo Ex.PW20/B, but nothing incriminating was recovered.” Learned Senior Counsel appearing for the respondents, on the other hand, refuted the aforesaid submissions with the plea that from the aforesaid depositions, it cannot be discerned that the PW-1 had, in fact, seen the said photograph appearing in the newspaper. She further submits that even if it was seen, it has not come on record as to whether it was a muffled face of the appellant which was published in the newspaper or not. She further submits that the no question was put to the witnesses on the aforesaid aspects and therefore, it cannot be presumed that un-muffled photograph of the appellant was published in the newspaper and same was seen by the PW-1 as well. She drew our attention to the discussion in the judgment of the High Court in this behalf and supported the reasoning of the High Court whereby this very argument of the appellant has been rejected. She also submitted that apart from the TIP, the appellant was identified by PW-1 in the Court as well. So, even if there is any infirmity in the said TIP that would not affect the outcome of the case. For these propositions, she has referred the judgment of this Court in Mullagiri Vajram v. State of A.P. case; 1993 Supp (2) SCC 198 which has been referred to by the High Court as well.
We have considered the aforesaid submissions made by the learned counsel for the parties. At the outset, it may be recorded that this argument was raised by the High Court as well, the High Court rejected the same and in the process dealt with this argument 5 in the following views:-
15. The counsels for the appellants contend that identification of the appellants by PW-1 should not be relied upon. The counsel for the appellant Anwar has alleged that PW-1 had already seen his face in the newspaper photograph. Further the TIP was conducted nearly nine months after the incident and thus has to be doubted. We find no force in this contention. Appellant Anwar was identified by PW-1 in the TIP (Ex. PW- 24/2) conducted on 17th May, 2007. He was brought in muffled face and shown with ten other persons. It would be wrong to presume that the newspaper photograph was of uncovered face, without any proof been produced before us. The photographs of apprehended accused persons being produced in court complexes do get published but on many occasions they are shown in a muffled face. PW1 has been truthful, when he accepted that he had seen a photograph. However, it was not suggested to him that Anwar‟s face was visible and he had identified Anwar because of the photograph.
Inspector B.P. Sharma (PW-27) has stated that the appellant-Anwar had throughout remained in muffled face. PW-1, in his cross-examination, has averred that during the TIP of the appellant Anwar, there were other persons who also had beard and wore caps. With regard to the delay in TIP, it is the case of the prosecution that the appellant Anwar were arrested only on 9th May, 2007. Within ten days, the TIP was conducted, i.e. on 17th May 2007 but importantly the application was moved on 11th May, 2007. In such a scenario, the plea of belated TIP cannot be accepted. With regards to Appellant Tahir, in his Section 313 Cr.PC statement, he has alleged that he was shown to PW-1. He had refused to join the TIP, stating that his face had already been shown by the police to the witness ( Ex. PW 25/B). Regarding when, where and how he was shown to PW-1, Tahir remains elusive. PW-1 had clearly identified him in the Court. In Malkhansingh v. State of M.P. [(2003) 5 SCC 746 :
2003 SCC (Cri) 1247] : (SCC pp. 751-52, para 7) it has been observed:
“7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. 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. The purpose of prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly 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 are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.”
16. In Mullagiri Vajram v. State of A.P. [1993 Supp (2) SCC 198 :
1993 SCC (Cri) 496] it was held that though the accused was seen by the witness in custody, any infirmity in TIP will not affect the outcome of the case, since the depositions of the witnesses in court were reliable and could sustain a conviction. The photo identification and TIP are only aides in the investigation and does not form substantive evidence. The substantive evidence is the evidence in the court on oath.” 6 We are of the considered view that the aforesaid approach of the High Court is without any flemish. After going through the testimony of PW-1 and in particular the portion that has been emphasized by the learned counsel for the appellant, we find that the only question which was to put to him was, whether the photograph of the appellant, after his arrest, appeared in the newspaper or not. No doubt this question was answered in affirmation. Thereafter, no question was put to him as to whether he had seen the said photograph or not. Also, no question was put as to in what condition, that photograph appeared or published in the newspaper i.e. whether it was muffled or un-muffled face. On the otherhand, the PW-1 has, at a subsequent stage in the cross examination, categorically stated that he had not seen the appellant, meaning, thereby, he conveyed that he had not seen his photograph before TIP was conducted.
It may be relevant to mention here that PW-1 is not only a witness to the incident but he had also received injuries in as much as the charge under Section 307 i.e. attempt to kill was based on the accusation that PW-1 was attacked by the accused persons.
Therefore, he is an injured eye-witness to the incident and in these circumstances, once he identified the appellant in the Court as well, the conviction could be sustained on that basis as held in Mullagiri Vajram v. State of A.P. case; 1993 Supp (2) SCC 198 :
1993 SCC (Crl) 496. On these facts, judgments cited by the learned counsel for the appellant would have no application.
It would be relevant to mention here is that in so far as the cross-examination of Investigating Officer (PW-27) is concerned, a 7 question was put to him in the cross-examination about the publishing of the photograph of the appellant and he replied in the negative, conveying, thereby, that photograph showing the face of the appellant was not published. He also specifically said that the complainant had not deposed after seeing the photograph of the appellant. However, the manner in which the question was put becomes clear that it was a clever attempt on the part to defence counsel to elicit half truth from the Investigating Officer, in as much as there was no specific question put to him about the photograph having appeared in the newspaper muffled or not. The manner in which the answer given by the Investigating Officer suggests that he denied that un-muffled photograph of the accused had appeared in the newspaper. After receiving this answer, no further question was put to him as well. In these circumstances, we do not find any merit in this case.
The appeal is, accordingly, dismissed.
...................., J.
[A.K. SIKRI]
New Delhi; ....................., J.
September 8, 2017. [ASHOK BHUSHAN]
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ITEM NO.63 COURT NO.6 SECTION II-C
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 2557/2014
ANWAR @ ADDHA Appellant(s)
VERSUS
STATE NCT OF DELHI Respondent(s)
(PART-HEARD BY HONBLE A.K. SIKRI AND HONBLE ASHOK BHUSHAN ,JJ. FOR GRANT OF BAIL ON IA 4480/2017) Date : 08-09-2017 This matter was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE ASHOK BHUSHAN
For Appellant(s) Mr. Cirasat Ali, Adv.
Mr. Javed Ahmed, Adv.
Mr. Anees Ahmed, Adv.
Mr. A.G. Garg, Adv.
Mr. Arvind Kumar, Adv.
Ms. Shweta Garg, AOR
For Respondent(s) Ms. Kiran Suri, Sr. Adv.
Mr. P.K Dey, Adv.
Ms. Rashmi Malhotra, Adv.
Mr. Abhay Kumar, Adv.
Mr. B.V. Balram Das, Adv.
Mr. B. Krishna Prasad, AOR
UPON hearing the counsel the Court made the following O R D E R The appeal is dismissed in terms of the signed order.
Pending applications, if any, shall stand disposed of.
(POOJA SEHGAL) (MALA KUMARI SHARMA)
SENIOR PERSONAL ASSISTANT COURT MASTER
(Signed order is placed on the file)