Balwant Singh And Anr. vs The State
1985 Latest Caselaw 494 Del

JUDGMENT

G.R. Luthra, J.

(1) The present appeal is directed against a judgment of Shri K S. Aggarwal, Additional Sessions Judge, Delhi. Four persons including the present appellants were charged in respect of commission of officers punishable under section 392 read with section 397 JPC. He convicted each of the appellants for an offence punishable under section 392 read with section 34 Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for ten years and a fine of Rs. 100.00 in default of payment of which fine, he had to undergo further rigorous imprisonment for one month. Hukam Chand coaccused was acquitted while the remaining co-accused Hari Siagh was convicted in respect of commission of an offence punishable under section 411 Jpc and was awarded sentence of imprisonment already undergone and a fine ofRs. 100.00 in default of payment of which he had to undergo rigorous imprisonment for six months.

(2) The case of the prosecution briefly is as follows. On 19/12/1981, Uma Nath Sharma (PW 6) was working with M/s. Green Carriers &Contractors Pvt. Ltd. (hereinafter referred to as the Company) as a delivery clerk at G-68, Boulevard Road, Delhi. On that day, Hari Prakash (PW 3)who was a cashier in the said company, collected Rs. 2,500.00 from various customers as transport charges. He gave that amount to Uma Nath Sharma for depositing the same with office of the company at Naya Bazar. On the same day, Dalip Kumar (PW 1) who was also working as a cashier in the same company gave Rs. 9.000.00 to Uma Nath Sharma for depositing the same in the office of that company at Mori Gate. He (Dalip Kumar) also gave five cheques issued in the name of B.S. Jain Enterprises and Gl Internationals,aggregating to Rs. 1.418.00 for depositing the same with the bank. On thatday, Som Nath (PW 4) who was working as an unloading clerk in the company prepared a statement in respect of unloading of five trucks and gave the same to Uma Nath Sharma, Raghbir Singh (PW 5) who was in charge of delivery office of the company prepared a voucher Ex. Public Witness 5/A of. conveyance and gave the same to Uma Nath Sharma for obtaining signatures of the owner with respect to the same. The net result was that Uma Nath had a cash ofRs.11,500.00,five cheques, on voucher Ex. Public Witness 5/A and another voucherEx. Public Witness 4/A. With the aforesaid cash and articles contained in a brown bagEx.P1 , started at about 1.45 p.m. from his office. When he was near Kothi No. 4. Boulevard Road, Delhi, the four accused met him. Hari Singh and the appellant Radha Raman were on a bicycle while Balwant Singh appellant and Hukam Chand were on foot. Hukam Chand was carrying a knife and be placed the same on the chest of Uma Nath Sharma. The persons with the bicycle snatched the bag and went away towards Tis Hazari Courts.Uma Nath Sharma could not raise any alarm because on the point of knife,he was prohibited to do so by Hukam Chand. Balwant Singh appellant ran towards St. Stephen Hospital which was nearby. Uma Nath Sharma chased.and was able to catch hold of Balwant Singh. Uma Nath Sharma brought Balwant Singh to police post Tis Hazari from where both were taken to Police Station Civil Lines where Uma Nath signed a report recorded in the dailydiary. As the place of occurrence happened to be within the jurisdiction of Police Station Subzimandi, both Balwant Singh and Uma Nath Sharma were brought to that police station.

(3) The investigation was taken over by Si Ved Prakash Kohli (PW 12).During interrogation, Balwant Singh disclosed the names of his accomplices.On 24/12/1981 along with Som Nath (PW 2) and Ram Prakash(PW 8) he (PW 12) went to Rain Basera at Old Rohtak Road. Radha Ramanappellant, Hukam Chand and Hari Singh were coming from the side of Krishna Ganj and they were arrested at about 7.50 p.m. On search of HukamChand, a knife was recovered. On search of the person of Radha Ramanappellant, a country made revolver was recovered. On search of the person of Hari Singh one country made revolver with five cartridges were recovered.

(4) Radha Raman appellant made a disclosure statement to the effect that he could get Rs. 3,700.00 recovered from his house. After that he led the police party and the witnesses (PW 2) and (PW 8) to his house and got recovered Rs. 3,700.00 wrapped in a voucher Ex. Public Witness 5/A of the company. The said cash and the voucher were then lying behind a photograph ofHanumanji.

(5) On the same day, Hukam Chand accused made a disclosure statement that he could get Rs. 1.700.00 recovered from the house of Satyapal at L-2/45,Shastri Nagar. He then led the police party and the aforesaid witnesses to the house of Satyapal from where a sum of Rs. 1,780.00 and a slip written in the hand of Som Nath (PW 4) wrapped in a handkerchief were recovered.

(6) On the same day, Hari Singh also made a disclosure statement that he could get Rs. 4.900.00 recovered from his house No. 1-19, Karampura, NewDelhi. In pursuance of that disclosure statement, he led the police party including witnesses to his house from where a hand bag containing Rs. 4,890.00was recovered. That hand bag was lying in a tin box.

(7) On 6/01/1982, Hari Singh and Radha Raman were produced with muffled faces before Shri R.K. Yadav, Metropolitan Magistrate, Delhi for holding identification parade. Shri Yadav fixed 14/01/1982 as the date for holding such a parade. On that date, in the Central Jail both HariSingh and Radha Raman refused to take part in the said parade in spite of the fact that they were warned that their refusal to take part in the identification parade could be used adversely against them during the trial.

(8) An application was filed by the police before Shri R.K. Yadav Metropolitan Magistrate, Delhi for holding identification parade for therein bag. Ex. Pi. On 11/01/1982, Si Ved Parkash produced three bags so that the bag Ex. P 1 could be mixed up with them and Uma Nath may be called upon to identify his bag Ex. P 1. As those bags were not found to be similar, they were returned and the proceedings were adjourned to 29/01/1982 on which date Uma Nath was able to identify his bagEx. Pi out of a number of similar bags.

(9) The case of the present appellants and their remaining co-accused was one of total denial. Every one of them stated that he had been falselyimplicated. Radha Raman admitted that he was asked to join the identification parade but that he refused because his photographs were taken and had been shown to the eye witness and that be was also shown to the said eyewitness.

(10) The learned Additional Sessions Judge held that as no identification parade was held as far as Hukam Chand was concerned, his identification in the court by the eye witness Uma Nath Sharma was of no value. Accordingly,Hukam Chand was acquitted.

(11) As far as Hari Singh is concerned, the learned Additional Sessions Judge remarked that in the first information report Uma Nath bad given the number of robbers as three, that in a supplementary statement recorded shortly thereafter he had given the number as four, that none of the features of the three robbers mentioned in the first information report tallied with those of Hari Singh who had a distinctive identification mark of small pox on his face and that, therefore, it was doubtful if he was a participant in the robbery. Hewas, therefore, acquitted of the charge of robbery punishable under section 392 Ipc, but as stolen property was recovered from him, he was convicted of an offence punishable under section 411 IPC.

(12) As already mentioned, the prosecution evidence as against the present appellants was believed and on that basis, both of them were convicted and sentenced.

(13) I have heard the learned counsel for the parties. The main attack of Bawa Gurcharan Singh, counsel for the appellants, was that no adverse presumption should be taken against Radha Raman for having not participated in the identification parade. He urged that Radha Raman bad good reasons and explanation for his refusal. Radha Raman in reply to question no. 16 in his statement under section 313 Criminal Procedure Code stated as under : "ANS.It is correct. I refused to Join identification, as the police took me from my house on 20-12-1981 and also took my photographs from my house which were shown to the witnesses and I was also shown to witnesses in the police station."

(14) The learned counsel submitted that in the present case the circumstances were such which supported the possibility that Radha Raman was shown to the witnesses. His argument was to the following effect. According to the version of the prosecution Radha Raman was arrested on 2 4/12/1981. The first thing the prosecution should have done was to keep his face muffled and produce on the very next day before a magistrate with an application for holding identification parade. That was not done.It was for the first time of 6/01/1982 that an application was filed before a magistrate for fixing a date for holding identification parade on which 14/01/1982 was fixed for holding such a parade. Uma Nath Sharma could have seen him in custody for many days from 25/12/1981 to 6/01/1982. That was especially so when there is no mention in any document that the face of Radha Raman was kept muffled The first document in which there could be such a mention was Ex. Public Witness 12/DA filed before a magistrate for grant of judicial remand. It was on the basis of this application that Radha Raman was remanded to judicial custody up to 4/01/1982.There is no mention in the said application that his face was muffled. There is also mention in any entry of daily diary that the face of Radha Raman was kept muffled after his arrest.

(15) The learned counsel relied upon some authorities. In Prittam Singh and another v. State of Rajasthan, Air 1971 Rajasthan 184, the following observations were made in paragraph 3 at page 185 : "THE occurrence took place on 25/08/1967 : the identification proceedings were conducted on 29/12/1967, that is after more than four months. Test identification held long after the event is of little value. The value of identification depends on two most important factors, viz,, that the person who identifies an accused had bad no opportunity of seeing him after the commission of the crime ; and secondly that no mistake had been made by the witnesses. No importance can be attached to identification if the test identification is conducted long after the arrest of accused.There is every possibility of committing mistake by a witness if the identification proceedings are held after an inordinate delay. Again,in the present case the accused were put in the identification parade II days after their arrest. No convincing explanation is forthcoming as to why so much time was allowed to pass between the arrest of the accused and the identification proceedings."

(16) In Hasib v.The State of Bihar, AlR 1972 Supreme Court 283, it was inter alia held that the purpose of test identification parade was to test correctness of substantive evidence of a witness regarding identification of an accused and that the substantive evidence consisted of statements of the witnesses in a court.

(17) In State of Vindhya Pradesh v. Saruna Munni Dhimar and others,AIR 1954 Vp 42, following was held : "NO presumption attaches to identification proceedings conducted by Magistrates and it is for the prosecution to prove affirmatively that every possible precaution was taken to ensure fair identification and the proceedings were not only fairly conducted but were correctly recorded.It is necessary that the accused persons whom it may be necessary to put up for identification, should be warned at the time of their arrest that it may be necessary to put them up for identification and that they should keep their faces covered and to take them to the police station in that state. In the police station the lock-up in which they are kept should be covered with 'parda' so that no one is able to see their faces. When they are taken to court or to jail their faces should be kept covered. In jail also no outsider should be allowed to see their faces. All these precautions should not only be taken but should be proved to have been taken. That these precautions were taken should be recorded in official records like the general diary of the police station and the jail register and they should be produced in court. In the absence of such evidence,no value can be attached to the identification of an accused person made by a witness."

(18) There is no doubt that in the present case it was not mentioned in any of the documents prepared before 6/01/1982 that face of Radha Raman was kept covered. It is also true that police did not make any application before 6/01/1982 to any magistrate for holding identification parade. However, in my opinion, the aforesaid does, not in any way, help the appellant Radha Raman.

(19) Both Si Ved Prakash Kohli (PW 12) and Ranbir Singh (PW 10)stated on oath that the accused muffled their faces after the arrest. It was further stated by Public Witness 12 that on 25/12/1981 all the three accused(other than Balwant Singh) were produced before the Metropolitan Magistrate concerned with muffled faces and that judicial remand was then taken. in cross-examination, Public Witness 12 added as follows ; "THESE3accd. were sent or medical examination at about noontime on 25-2-1981 along with Asi Mool Chand. I did not make a mention in the recovery memos regarding the accd. being in muffledfaces. These accd. persons who were kept muffled faces were not allowed to unruffled their faces that night."

There is no reason to disbelieve these witnesses because it has neither been alleged nor shown that they had any enmity with Radha Raman or any of hisco-accused.

(20) It is pertinent to mention that there was also recovery of Rs. 3.700.00wrapped in voucher Ex. Public Witness 5/A of M/s. Green Carriers and Contractors Pvt.Ltd. On the basis of disclosure statement of Radha Raman appellant, it was stated by Public Witness 10 and Public Witness 12 that Radha Raman made a disclosure statementEx. Public Witness 10/B and that after led the police party to his house end that he got recovered Rs. 3.700.00 wrapped in voucher Ex. Public Witness 5/A lying behind the photograph of Hanumanji.

(21) According to the disclosure statement Ex. Public Witness 10/B Som Nath(PW 2) and Ram Prakash (PW 8) signed the said statement. Those witnesses were examined by the prosecution with the object of proving the making of disclosure statement and that recovery in pursuance of the same. But those witnesses did not support the prosecution and the Additional Public Prosecutor was allowed to put such questions as can be asked in crossexamination. The trial court rightly held that they were won over.

(22) The net result is that not only there was identification of RadhaRaman in court as one of the robbers and that Radha Kaman had refused to join the identification parade, but also there was recovery of stolen property or the disclosure statement and pointing out of Radha Raman which lends assurance to the correctness of evidence of identification.

(23) The authorities as cited by the counsel for the appellant do not help.With due respect. I differ with the view of V.P. High Court. According to view of that High Court, very thing done with respect to covering of faces by the accused, who are likely to participate in identification parade, should be reduced into writing in official records and without such writing, oral evidence with not be of much value. But that is a 'mechanical' way of appreciation of evidence. All investigating officers are not so cautious and meticulous so as to reduce everything ; done by them in respect of covering of faces of the accused, into writing. There will no more omissions than not thereby leaving courts with no option except to mechanically reject even otherwise reliable oral evidence. No doubt it is desirable that such writings are made by investigating officers. But if such writing does not exist, the value of the oral evidence has to be judged on its own merits and we should not have mechanical rule of rejection of oral evidence for want of the aforesaidwriting.

(24) The judgment of the Rajasthan High Court does not apply in the present case. I appears that in that case emphasis was that there should not be a long gap between the occurrence and conducting of test identification.Further in that particular cases, delay was also caused in holding such an identification parade after the arrest of the accused. Therefore, it was the cumulative effect of two delays which was taken into account and the test identification parade was found to be of little value. The facts are different in the present case. in this case there was some delay in holding the identification parade after the arrest of the accused but there was not a long gap of time between the date of the occurrence and the holding of the identification parade because the occurrence took place on 19/12/1981 while the identification parade wan scheduled to be held on 14/01/1982, on which date appellant Radha Raman signified his refusal to join such a parade.Therefore, the gap between the occurrence and 14/01/1982 was only of26 days whereas such a gap in the case before Rajasthan High Court was more than four months.

(25) The Supreme Court authority is in respect of well accepted principle of late that in order that substantive evidence of identification of an accused(who was unknown to the witnesses previously) is accepted, it must be corroborated by his identification of that very accused in an identification parade. That judgment is not relevant in respect of the precautions to betaken before identification parade is held. While in this case, the matter involved is as to the precautions to be taken and what type of evidence is necessary to prove the factum of taking of those precautions.

(26) The learned counsel for the appellants contended that no question regarding covering of his face was asked from Radha Raman when his statement was recorded under section 313 Cr.P.C.. that that failure disentitled the court to use the evidence regarding covering of his face against him and that being so, it should be held that there was no muffling of his face and consequently his refusal to join the identification parade was justified.

(27) But the aforesaid argument proceeds on a wrong interpretation of section 313 Criminal Procedure Code That section says that in every enquiry or trial for the purpose of enabling an accused to explain any circumstances appearing in evidence against him, the court shall after the witnesses for the prosecution have been examined and before he is called on for his defense, question him generally on the case. It is obvious that the question which are to be asked from an accused are in respect of incriminating circumstances i.e. the circumstances which can be used against him for basing a conviction. The circumstance of of covering of his face by itself is not incriminating against an accused. The evidence regarding covering efface by itself does not justify any inference of the accused having committed an offence. The circumstance of covering of the face is merely an aid in the matter of appreciation of the prosecution evidence. This circumstance can negative an explanation for refusal to join the identification parade on the ground that an accused was perhaps seen by witnesses before such parade. Under these circumstances it was not necessary to ask any question regarding covering of his face from Radha Raman appellant.

(28) The learned counsel for the appellants assailed the credibility of the evidence relating to recovery of money from Radha Raman on the basis that very evidence was not believed as far as alleged recovery from HukamChand accused was concerned. The learned counsel in this respect relied upon the following remarks of the learned trial Sessions Judge in paragraph34 of the judgment : "SO far as Hukam Chand accused is concerned, to link the currency notes the prosecution uses Ex. Public Witness 4/A a slip purported to have been given by Som Nath Public Witness 4 to Uma Nath Public Witness 6. The statement of Som Nath regarding the slip is that he had given the same to Uma Nath for delivery at the head office. In cross-examination the witness took a somersault and added the Ex. Public Witness 4/A is the original and it was handed over by him to the police. This casts a shadow of doubt regarding the recovery that has been affected from Hukam Chand accused. This was the link with the currency notes. But if the slip Ex. Public Witness 4/A was given by Som Nath to the police after the occurrence, then it could not have been taken from Uma Nath who is purported to have been robbed."

(29) The learned counsel emphasized that when the same very evidence was not reliable as far as recovery from Hukam Chand was concerned, how the same suddenly because worthy of reliance as against Radha Raman.

(30) I do not agree with the learned counsel. Evidence regarding recovery from Hukam Chand was not believed because statement on cross-examination of Public Witness 4 to the effect that he gave Ex. Public Witness 4/A to police was believed by trial court and it was remarked by that court that when Ex. Public Witness 4/Awas given to police how it could be taken away from Uma Nath (PW 6) in robbery and thereafter recovered from Hukam Chand. In my opinion it was wrong on the part of trial court to have believed that statement of Public Witness 4 on cross-examination for the obvious reason that that statement was in consistent and contradictory to his statement in examination-in-chief to the effect that he gave that slip Ex. Public Witness 4/A to Uma Nath (PW 6). There was hardly any ground for trial court to have attached credibility to statement on crossexamination of that witness as against his contrary statement in examinationin-chief. It appears that Public Witness 4 was under some confusion when he made aforesaid statement in cross-examination. That confusion could be on account of some error or fading of memory due to long lapse of time. THE occurrence took place on 19/12/1981 while Public Witness 4 was examined in court on 10/05/1984. Thus Public Witness 4 was examined after about 21 years of the occurrence. Due to that lapse of time, some error or fading of memory crept in which led to a confusion in the mind of Public Witness 4 resulting in making in cross-examination a statement contradictory to the one made in examination-in-chief. I am of the view that the evidence regarding recoveries (consisting of statements of Public Witness 10 and Public Witness 12) is worthy of reliance. Not only that the said evidence was rightly believed, when the trial court held that robbed money was recovered from Radha Raman but that the said evidence should have been be lieveed and the trial court should have held that the recovery was from Hukam Chand accused also.

(31) Now I take up the case of Balwant Singh. He was apprehended at the spot. His plea in this respect reads as under : "Q.7. It is in evidence that Uma Nath gave chase to you and Hukam Chand. You ran towards St Stephen Hospital and Uma Nath caught hold of you at the corner of the hospital where it meets the main road on other side and brought you to P.P. Tis Hazari.Ans. It is correct. I had gone to St. Stephen Hospital for taking medicine when I was apprehended mistakingly. I do not know the other accused persons at all, nor I was with them."

(32) The learned counsel for the said appellant contended that neither anything incriminating nor any potion of the robbed cash was recovered from Balwant Singh, that it has not been shown in the evidence that be had any connection with the other accused and that hence, therefore, his plea deservesacceptance.

(33) The plea taken up by the appellant is not convincing at all. There could not be any mistaken apprehension of Balwant Singh. The occurrence took place with Uma Nath and it could not be said that he was under some mistake of the identity of the robbers involved and caught hold of a wrongperson. Statement of Uma Nath (PW 6) on cross-examination reads asunder:    "IT is incorrect that I had caught hold of accd. Balwant Singh by mistake when he had allegedly come out of Stephen Hospital after taking a medicine."  

(34) The fact that there was no recovery from Balwant Singh does not help him. According to the version of the prosecution he did not reliant the bag containing money. The bag was taken by his accomplices. He was apprehended immediately and therefore he did not have even time to get share of booty from his accomplices.  

(35) The learned counsel for the appellant submitted that in fact the very version of the prosecution is wrong and should be disbelieved on account of the following discrepancies :    "(A)At the time of lodging the first information report, Uma Nath gave the number of the robbers as three while in the court his case was that the robbers were four four in number. That inconsistency knocked the very bottom of the case of the sprosecution.(b) Colour of bag Ex. P 1 actually is brown, but Uma Nath gave that colour as red in first information report and in examination-in-chief and 'brown' in cross-examination."  

(36) But that argument has no force. A few minutes after the recording of the first information report, Uma Nath brought to the notice of the police by a supplementary statement under section 161 Criminal Procedure Code that the number of robbers was four. Uma Nath has explained in cross-examination that he became very nervous and that therefore at the time of recording of the first information report be gave number of the robbers as three. That explanation is very sound. It is a matter of common knowledge that when one is suspected to such naive shaking occurrence of robbery in which one of the robbers held an open knife, he was bound to be nervous.

(37) The discrepancy regarding description of colour of bag is merely minor error. Such error is committed by many and they confuse between red and brown colours.

(38) I find that the appellants have been rightly convicted for commission of the offence punishable under section 392 read with section 34 IPC. However, I agree with the learned counsel for the appellants that this was not a case of awarding maximum punishment. There is no doubt that the robbery was of very serious nature because it was committed in open day light on a road which indicates that the appellants and their accomplices were daredevils, deserving deterrent punishment, yet I am of the opinion that ends of justice would be served if punishment is reduced to rigorous imprisonment for seven years.

(39) I, therefore, dismiss the appeal against conviction but reduce the sentence awarded by the learned Additional Sessions Judge to seven years rigorous imprisonment beside sentence of fine already awarded. Jail authorities be intimated in respect of reduction of sentence.