Delhi High Court

Sadaab @ Shamshad vs State on 11 March, 2014

Author: 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.

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.

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.

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.

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

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

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,

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.

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

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

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.

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.

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,

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

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

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

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

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.