Tain Singh vs State (Delhi Admn.)
1986 Latest Caselaw 7 Del

JUDGMENT

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 defense 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 Nager where the offence was committed "at about the 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 the seeking remand and the appellant was remanded to police custody up to 2nd April, 1984. On 2nd April, 1984 the officials of police station defense 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 unruffled 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 unruffled 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 the adverse inference which may be drawn against them during the trail 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. Upadhya 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.

4. It is settled law that the accused is not to prove conclusively that he was shown to the prosecution witnesses before he declined to participate in the identification parade. It is enough if he brings on record cogent circumstances to show that he was or could have been shown to prosecution witnesses while he was in police custody or when he was produced in court for remand. In the present case it was for the Investigation Officer of police station defense Colony to have ensured after having been informed by police station Parliament Street of the arrest of the appellant that he (appellant) is not produced in court on 29th March, 1984 in unruffled face. It was further his duty to have obtained judicial remand on that very date for the purposes of holding the identification parade. As I have noticed above vide Ex. 10/A (D.D. No. 6A) police station defense Colony had been informed at about 10.30 a.m. on 29th March, 1984 regarding the apprehension of the appellant. The action of the officials of the police station Parliament Street who had arrested the appellant in another case in taking the appellant and his companions said to be the co-accused in the present case to the quarters in Sadiq Nagar where the occurrence took place on 29th March, 1984 itself without joining the I.O. of this case or any officer of police station defense Colony before their production in court was also not proper. It is not disputed that the complainant who was injured lives in Sadiq Nagar. In fact the very basis of the prosecution case is that he was the neighbor of one Gautam who was residing in Quarter No. 297, Sector-I, Type-III, Sadiq Nagar, New Delhi. The defense of the appellant which is plausible cannot be ruled out; it cannot be said that the appellant was not shown to the complainant either at the time when he was taken to Sadiq Nagar or during the interval when he was in custody of police station Parliament Street. Thus he is entitled to benefit of doubt. The result of the above discussion is that the judgment convicting the appellant under S. 307 of the Indian Penal Code is liable to be set aside. I order accordingly. Consequently the order of sentence is also quashed. The appeal is accepted.

5. I find from the minutes of proceeding that Mr. L. K. Upadhya has been pursuing this appeal from very beginning i.e. from the stage of admission it was filed through jail. In my view Mr. Upadhya put in such a hard labour ought to be appointed amices curiae. I order accordingly.

6. Appeal allowed.