Ranjeet vs State (Nct Of Delhi)
2014 Latest Caselaw 1102 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                        CRL.A.684/2012
                      Judgment reserved on : 24th February, 2014
%                     Judgment pronounced on : 03 March, 2014
      RANJEET                                     ..... Appellant
                         Through:    Mr.S.D.Dixit, Advocate

                         versus

      STATE (NCT OF DELHI)                          ..... Respondent
                   Through:          Mr.O.P.Saxena, APP for the State
                                     with SI Khalid Akhtar,
                                     PS Bara Hindu Rao.
      CORAM:
      HON'BLE MS. JUSTICE DEEPA SHARMA

      JUDGMENT:

1. In this case the investigative agency of police was set into motion on

20th December, 2010. On that day, Constable Babu Lal of PS Bara Hindu

Rao along with Constable Vinod, Members of Quick Reaction Team (QRT)

were on duty at Azad Market red light. At about 7 p.m. HC Ved Prakash

came to them in injured condition and told that he had been stabbed at

Railway track. This information was supplied to Duty Officer, PS Bara

Hindu Rao on mobile phone and a DD No.20A was recorded. Both of them

thereafter shifted the injured to Hindu Rao hospital in QRT vehicle and the

injured was admitted in the hospital. SI Ganga Dhar and SI Rohit reached at

the hospital. Injured was declared unfit for statement. SI Ganga Dhar

collected MLC of the injured. SHO/Inspector Satish Bhardwaj also reached

at the hospital. They thereafter reached at the railway track. No eye witness

was found there. It was dark. An endorsement was made on DD no.22A

and the rukka was prepared and the FIR was registered in this case. The

injured HC Ved Prakash was in a bad condition and needed operation

immediately. Consent to the operation was given by PW1 Constable Babu

Lal. Certain parcels/pulandas were seized from the hospital. On 23.12.2011,

statement of injured was recorded. He had not named the appellant in his

statement. Thereafter on 25th December, 2010 the appellant was arrested by

ASI S.K.Srivastava along with Constable Sajjan and HC Narender who were

posted at AATS Central District under Section 41.1 (A) Cr.PC. Appellant

made a disclosure statement. In his disclosure statement he disclosed about

this incident. He had also disclosed that one of his friend was also involved

who took up the article which the injured had kept on the railway line and

ran away and he also followed his friend. On the disclosure statement of the

appellant he was found involved in this case. He was arrested on 26th

December, 2010 in this case and was remanded to the judicial custody. He

was in judicial custody when an application for holding Test Identification

Parade (TIP) was moved on 3.1.2011. Appellant refused to participate in the

TIP on the plea that he had been shown to the injured in the hospital. He

had been given the statutory warning that his statement of refusal to TIP

shall be used as a piece of evidence against him. Even despite the statutory

warning, the appellant refused to participate in the TIP. Thereafter police

custody remand of the appellant was sought on that day and he was taken to

Hindu Rao hospital where the injured was admitted. At about 5.30 p.m. the

injured was shifted from Intensive Care Unit to the Ward. The appellant was

shown to the injured. The injured identified the appellant as his assailant and

an identification memo was prepared.

2. The accomplice of the appellant who had stolen the inverter of the

injured, could not be arrested. After completion of the investigation, the

challan was filed under Section 307/379/34 IPC against the appellant.

3. Charges for these offences were framed against the appellant. He

pleaded not guilty to the charges. Prosecution had examined 15 witnesses.

All the prosecution witnesses had supported the prosecution case. Statement

of the appellant under Section 313 Cr.PC was also recorded. He had denied

all the evidence against him as incorrect and had taken the plea that he had

been falsely implicated and that he was innocent. He had taken the plea that

he had not gone to the railway track and that he did not make any disclosure

statement and that his signatures were obtained on blank papers under

coercion; that he was shown to the injured before being produced in the

court and that HC Ved Prakash injured had falsely implicated him as he

failed to satisfy his illegal demand. The appellant has examined Shri

Pushpender Kumar Sharma as defence witness. This witness has stated that

at Kishan Ganj railway station, where he had gone to see off his friend

Sunny, he witnessed a quarrel between an old man aged about 40-42 years

and a boy aged about 27-28 years who was holding a knife in his hand. He

reached near them and he saw the boy stabbing the old man. After

considering all the evidence on record and taking into consideration the

defence produced by the appellant, the learned trial court had reached to the

conclusion that the charges under Section 307/379 IPC stands proved

against the appellant and returned the guilt of the appellant under these two

sections.

4. The main contention of the appellant before the court is that he has

been falsely implicated, and that conviction is solely based on identification

of the appellant by PW7 in court. That no adverse inference can be drawn

against him on account of his refusal to participate in TIP as he had been

shown to injured in hospital on 28.12.2010. It is further argued that there is

no recovery of knife and that of stolen article from him. Hence, his

conviction is bad in law.

5. It is argued on behalf of learned APP for the State that the appellant

was never shown to the injured before 3.1.2011. His refusal to participate in

TIP an adverse inference can be drawn against him and he has been

identified by the injured PW7 in court and there is nothing to suggest false

implication of accused in this case.

6. I have heard the arguments and perused the relevant record.

7. The facts which stand proved on record are that HC Ved Prakash was

stabbed on 20.12.2010 at 6.30 p.m. at railway track between Kishan Ganj

and Old Delhi Railway Station. The injured PW7 has clearly stated this fact

and there is nothing on record to doubt the veracity of his statement. His

MLC Ex.PW4/A corroborates his testimony regarding the injuries received

by him. PW7 has also deposed that at the time when he was attacked, he

was coming on the railway track, carrying the inverter which he had bought

from the market. He was in uniform as he was returning after completing

his duty. He saw a person standing with a knife in his hand. In order to

prevent that person from committing any offence, he went towards that

person and tried to snatch the knife from his hand. That person started

stabbing him. Even the defence witness DW1 has deposed about an incident

of stabbing on 20.12.2010 at railway track. The sole question is who is

assailant of PW7.

8. The sole contention of the appellant is that he has been falsely

implicated and no adverse inference can be drawn on his refusal to

participate in TIP as he had been shown to injured.

9. In the case AIR 1988 SC 345 entitled Hari Nath vs. State of U.P., the

apex court has observed that evidence of test identification is admissible

under Section 9 of the Indian Evidence Act. The apex court has further

observed in the case AIR 1972 SC 283 entitled Sk Hasib vs. State of Bihar

that the evidence of identification merely corroborates and strengthen the

oral testimony in court which alone is the primary and substantive evidence

as to identity. Te court has observed as under:

'... the purpose of test identification is to test that evidence, the safe rule being that the sworn testimony of the witness in court as to the identity of the accused who is a stranger to him, as a general rule, requires corroboration in the form of an earlier identification proceeding.'

10. The Apex court has further discussed in its pronouncements the

purpose of holding the test identification. In the case (1971) 2 SCC 715

entitled Rameshwar Singh vs. State of J & K has observed as under:

'... it may be remembered that the substantive evidence of a witness is his evidence in court, but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after the former's arrest is of vital importance because it furnishes to the investigating agency an assurance that the investigation is

proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial.'

11. The apex court has further laid down the purpose of identification

parade and in the case 7 (2000) 1 SCC 471 entitled State of Maharashtra vs.

Suresh has observed as under:

"We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence."

12. It is an admitted fact that the injured did not know the appellant

before the date of incident. It is also a proven fact that on 20.12.2010 and

subsequent dates the injured was found unfit for the statement. Investigating

officer of this case has clearly stated that he could record the statement of

the injured Ved Prakash only on 23.12.2010 under Section 161 CR.PC in the

hospital. In the cross-examination, Inspector Satish Bhardwaj who had

recorded the statement of the injured on 23.12.2010, has made it clear that

he recorded the said statement in the Intensive Care Unit ward of the

hospital. He has also clearly stated that only on that day, after recording the

statement of the injured police had come to know the sequence of the

incident. In his statement under Section 161 Cr.P.C. the injured has not

disclosed the name of his assailant and has referred him only as a boy. It is

thus clear that the investigative agency was unaware of the identity of the

assailant of PW7 till 25.12.2010 when ASI S.K.Srivastava (PW11) of AATS

had arrested the appellant under Section 41.1. (A) Cr.PC and recorded his

statement. It was the appellant who had disclosed in his disclosure statement

Ex.PW11/A about the incident of 20.12.2010 in detail. This information

was passed on to PS Bara Hindu Rao. It was only then, that the

investigative officer of this case had come to know that the assailant of PW7

is appellant. Thereafter the appellant was formally arrested in this case on

26.12.2010 and his remand paper shows that on the same day he was

remanded to judicial custody and he remained in judicial custody till

3.1.2011. On the application for holding TIP the appellant refused to

participate in the TIP before learned Metropolitan Magistrate (MM). The

record of TIP (Ex.PW13/A) clearly shows that the appellant had been

produced in judicial custody on that day. After the refusal of the TIP by the

appellant, his police custody remand was sought and he was taken to Hindu

Rao hospital to be identified by the injured. Injured duly identified the

appellant as his assailant and a memo Ex.PW3/C to this effect was recorded.

The injured PW7 has also duly identified the appellant as his assailant.

There was no delay in holding the TIP. The appellant was arrested on

26.12.2010. An application for holding TIP was made on 3.1.2011. The

appellant had however refused to participate in the TIP. He has argued that

he had refused to participate in the TIP because he had been shown to PW7

on 28.12.2010. A suggestion to this effect was given by him to the injured,

in his cross-examination, although in his refusal to participate in TIP

Ex.PW13/A he has not disclosed the date on which PW7 had seen him in

hospital. Plea of the appellant is that since he was shown to the injured on

28.12.2010 so he refused to participate in TIP and thus his refusal does not

lead to an adverse inference against him.

13. It is settled law that refusal on the part of the appellant without any

just reason, leads to an adverse inference against the appellant unless it is

shown by the appellant that holding of a TIP was a futile exercise because

he had been shown to the witness. Applying the said principle, it is required

to be seen whether the refusal on the part of the appellant to participate in

TIP on the ground that he had been shown to the witness on 28.12.2010 is

justified. Whether he had actually been shown to the witness PW7 (injured)

on 26.12.2010. This plea of the appellant is contrary to the facts proved on

record. It stands proved from the first judicial remand paper of the appellant

that he was arrested on 26.12.2010 in this case and on the same day he was

remanded to judicial custody. He remained in judicial custody till 3.1.2011

when his police custody remand was sought after his refusal to participate in

TIP. These facts show that on 28.12.2010 appellant was in judicial custody

and thus there was no occasion for the police to take the appellant to the

hospital to show him to the injured. The uncontradictory evidence of PW7

that he was shifted from ICU to ward only at 5.30 p.m. on 3.1.2011 and so

also there was no occasion for injured to see appellant before that day.

14. Another ground given by the appellant for refusal to participate in TIP

is that his photographs were taken by the police before his arrest and were

shown to the injured. This plea was not taken by the appellant at the time of

his refusal to participate in TIP. The appellant has nowhere stated to the

learned MM that his photographs had been taken and had been shown to the

appellant. His statement to learned MM was "I do not want to participate in

TIP because I have been seen by the witnesses at hospital". This plea of the

appellant therefore is an after-thought. His plea also stands falsified by the

fact that no suggestion to this effect had been put to the injured. The

appellant has failed to justify his refusal to participate in TIP.

15. In such circumstances, adverse inference can be drawn on his refusal.

It can be presumed that the injured PW7 would have identified the appellant

in case he had agreed to join the identification parade. The refusal can be

used as corroborative evidence to the identification of the appellant by the

injured in the dock. Further no motive has been assigned to the injured to

wrongly identify his assailant. The appellant has failed to bring to my notice

any piece of evidence which can suggest even remotely his false implication

in this case.

16. Following injuries had been received by PW7 as per his MLC:

1. Incised wound 2 inch long on left knee.

2. Incised wound 8 inch long on left thigh.

3. Incised wound 2 inch long on left palm below thumb

4. Incised wound 3 inch long below mandible (lower jaw) right side.

5. Incised wound 1 inch long on neck.

6. Two wounds on abdomen with exposed intestine.

17. It is in evidence that there was urgency to operate PW7 and without

any delay on the consent of PW1 Babu Lal the operation was performed.

Doctor, it seems did not want to wait for arrival of family members of PW7

and waste precious time. The nature of injuries has been opined as

dangerous and stated to have been caused with sharp object. The use of

knife, the severity of injuries, the stab on vital parts of body, all point out to

one conclusion that the appellant had the intention to kill. The findings of

learned MM, convicting the appellant under Section 307 IPC therefore

suffers with no infirmity and based on cogent evidence.

18. The next argument of the appellant is that he has been falsely

implicated for the offence under Section 379 IPC. I have carefully perused

the statement of the injured and from his statement it is clear that it was not

the appellant who had taken away the inverter. He himself had stated that

some other boy had taken away inverter. The inverter had not been

recovered at the instance of the appellant. There is nothing on record except

the disclosure statement of the appellant to the effect that the boy who had

removed the stolen article was his accomplice. The disclosure statement is

hit by Section 24 of the Indian Evidence Act. From the testimony of PW7 it

is also apparent that the boy who had stolen the inverter, had not assisted the

appellant in stabbing. There is thus no evidence that the appellant and that

boy were acting as accomplices, or in furtherance of common intention.

There is thus no evidence on record to connect the appellant with the

commission of offence of theft. The conviction of the appellant is not

sustainable for the offence punishable under section 379 IPC and set aside.

19. As regards amount of punishment awarded to the appellant by the trial

court is concerned, it is clear from the order on sentence that the learned trial

court had taken into consideration the age, social background,

responsibilities of the appellant while awarding sentence. From the status

report, PS Bara Hindu Rao, it is apparent that the appellant is a drug addict

and habitual criminal and previously involved in 11 cases. He has been

declared Bad Character in P.S. Deshbandhu Gupta Road, New Delhi.

20. In view these, I find no reason to interfere with the amount of

sentence awarded to the appellant for the offence punishable under Section

307 IPC.

21. While the appellant stands convicted for offence under Section 307

IPC and order of sentence is maintained, he is acquitted for offence under

Section 379 IPC.

22. The copy of the order be sent to learned trial court.

23. Registry is directed to send copy of the order to the Superintendent,

Central Jail, Tihar to supply the same to the appellant.

DEEPA SHARMA, J.

MARCH 03 , 2014 rb