Paragraph numbers below are the court’s original numbering, recovered from the source text.
57. Applying the aforesaid principles of law as discernable from the various decisions referred to above, we may now proceed to look into the evidence on record so as to consider whether the conviction of the appellant convict for the alleged off ence is sustainable or not. EVALUATION OF EVIDENCE OF IDENTITY OF THE APPELLANT CONVICT
58. On 18.08.2008, an application was moved for conducting test- identifi cation parade of the co-accused persons, Vijay alias Kalia, Pawan Kumar, and Sharwan Kumar, to be identifi ed by PW 4, before the MM, Shri Prashant Kumar who adjourned it for 20.08.08 and marked the same to MM, Shri Rajesh Kumar Goel i.e., PW 16 herein.
59. On 20.08.2008, the PW 16 conducted the TIP in respect of co- accused Vijay and Pawan Kumar, who were identifi ed by PW 4.
60. On 30.08.2008, upon instructions of the IO, the PW 11 SI Kishan Lal, moved an application before the MM, Shri Prashant Kumar for fi xing the TIP of the appellant convict along with co-accused Vijay, Pawan Kumar and Sharwan Kumar. The same was adjourned to 01.09.2008 and marked to PW 16.
61. On 01.09.2008, the TIP of the appellant convict along with co- accused Vijay and Pawan Kumar was fi xed for 02.09.2008, whereas TIP of Sharwan Kumar was fi xed for 03.09.2008.
62. On 02.09.2008 the MM/PW-16 conducted the TIP proceedings where co-accused Vijay and Pawan Kumar were to be identifi ed by PW 1 and the appellant convict was to be identifi ed by PW 4. In the said TIP, all the accused persons refused to participate.
63. On 03.09.2008, PW 16 conducted TIP of co-accused Sharwan Kumar, to be identifi ed by PW 1 and PW 4 resply wherein, the co-accused Sharwan Kumar refused to participate. MUKESH SINGH v. THE STATE (NCT OF DELHI) [J. B. PARDIWALA, J.] CHART OF THE TIPs CONDUCTED No. Date TIP Conducted for To be Identifi ed by Particulars 1. 20.08.08 (i) Vijay @ Kalia (ii) Pawan Kumar PW4 TIP conducted and PW4 identifi ed the accused. (Ex.PW4/B) & (Ex. PW4/C) 2. 02.09.08 (i) Vijay @ Kalia (ii) Pawan Kumar PW1 Both Refused TIP. (Ex.PW8/B – Vijay @ Kalia) (Ex.PW8/C – Pawan) 3. 02.09.08 (iii) Mukesh Singh (Appellant) PW4 Refused TIP (Ex.PW8/A – Mukesh) (Appellant) 4. 03.09.08 (iv) Sharwan Kumar PW1 & PW4 Refused TIP (Ex.PW8/E – Sharwan)
64. Remarkably, while the co-accused; Vijay and Pawan Kumar initially participated in the TIP on 20.08.2008, but thereafter all the accused persons including the appellant convict herein refused to participate in the TIP. In their further statements recorded under Section 313 of the CrPC, all of them gave the explanation that they refused to participate as they had already been shown to the witnesses in the police station. Moreover, it is the specifi c case of the appellant convict herein, that he refused the TIP as he was to be identifi ed by PW4 who was a got up witness.
65. Later, on 15.09.2008, the PW 1 and PW 4 who had gone to meet the police offi cials at the Rohini Court complex, identifi ed all the accused persons, who were produced before the Metropolitan Magistrate in connection with the present case.
66. The PW 1 Sushil Kumar in his examination in chief has stated thus:- “I had identifi ed the accused persons on 15.9.2008 in the Rohini Court Complex, when the accused persons were produced in the same Court.”
67. The PW 11 SI Kishan Lal who at the relevant time was posted as Sub-Inspector in the Adarsh Nagar Police Station in his examination in chief as stated thus:- “On 15.9.2008 I alongwith SHO Ram Chander came to the court and there we met PWs Sushil and Pradeep and they had identifi ed all the four accused who were produced in the court for taking the judicial custody. PWs pointed out towards the accused Pawan and Sharwan that they had surrounded Sushil and Pappu and they pointed out towards accused Mukesh and Vijay and told that Mukesh had taken out the money from the pocket of Sushil and Vijay had taken out money from Pappu and they had attacked on them with ice picks on 16.8.2008. IO recorded their statements.”
68. Thus, from the oral evidence of the PW 1 and the PW 11, it is evident that the PW 1 (injured eye witness) had the opportunity to see the accused persons when they were present at the Rohini Court Complex. When the PW 11 says that the witnesses were able to identify all the four accused at the time when they were produced in the court for taking them into judicial custody, the same should be understood as conveying that as an investigating offi cer, he took a chance to get the accused persons identifi ed through the witnesses. Indisputably, it was not a regular identifi cation in accordance with law.
69. The appellant convict argues that the only substantive evidence against him is in the form of his identifi cation by the PW 1 before the Trial Court. He says that there is no question of drawing any adverse inference against him for refusing to participate in the TIP because from day one, he had been saying that the witnesses had seen the accused persons. He further says that the PW 1 was in a position to identify him for the fi rst time before the Trial Court only because he had the opportunity to see him on 15.09.2008. In such circumstances, it is argued on behalf of the appellant convict that there is no evidence worth the name to hold him guilty for the alleged crime. On the other hand, the State says that although the witnesses had a chance to see the accused persons on 15.09.2008 when they were present at the Rohini Court Complex, but that, by itself, is not a suffi cient or a good ground to discard the substantive evidence of identifi cation before the Trial Court. The State wants us to draw adverse inference against the appellant convict as he had refused to participate in the TIP and at the same time also wants us to accept the identifi cation of the appellant by the PW 1 before the Trial Court. The State further says that the PW 1 being an injured eye MUKESH SINGH v. THE STATE (NCT OF DELHI) [J. B. PARDIWALA, J.] witness had an opportunity of having more than a fair glimpse of the four accused persons including the appellant convict and, therefore, irrespective of the fact that the PW 1 had an opportunity to see the appellant convict on 15.09.2008 at the Rohini Court Complex, the identifi cation before the Trial Court should be accepted.
70. The evidence of PW 1 Sushil Kumar regarding the occurrence that took place on 16.08.2008 early in the morning at 3.30 is fully supported by the medical evidence on record. The PW 1 along with the deceased was immediately taken for medical attention. The deceased was found to have suff ered multiple injuries in the form of punctured wounds caused by a sharp pointed weapon. The PW 1 was also found to have suff ered two injuries and one of those was in the form of a punctured wound in the chest caused by a sharp pointed weapon. Considering the nature of injuries suff ered by the PW 1 and the deceased and the fact that the PW 1 and the deceased were cornered by the accused persons and further that they were robbed of their money, the entire incident could certainly have aff orded suffi cient time and opportunity to the PW 1 to recall and identify the assailants including the appellant convict herein. It is a long settled law that if a witness is trustworthy and reliable, the mere fact that no identifi cation parade could be conducted and the appellant convict was identifi ed for the fi rst time before the Trial Court, would not be a reason to discard the evidence of the witness. As held by this Court in the case of Munna (supra), that in a case where an accused himself refused to participate in the TIP, it is not open to him to contend that the statement of the eye witnesses made for the fi rst time in Court, wherein they specifi cally point towards him as a person who had taken part in the commission of the crime, should not be relied upon. Such a plea is available provided the prosecution is itself responsible for not holding a TIP. However, in a case where the accused himself declines to participate in a TIP, the prosecution has no option but to proceed in a normal manner like all other cases and rely upon the testimony of the witnesses, which is recorded in Court during the course of the trial of the case. It will be too much for us to say that the PW 1 was able to identify the accused convict for the fi rst time before the Trial Court only because the PW 1 had an opportunity to have a look at him on 15.09.2008 at the Rohini Court Complex. As observed above, the PW 1 could be said to have had more than a fair glimpse of the assailants at the time of the incident and on the strength of the same, the PW 1 identifi ed the appellant convict as one of the assailants.
71. We deem it appropriate to refer to the factors which are to be considered for in-Court identifi cation and were relied by the American Supreme Court in John R. MANSON, Commissioner of Correction of Connecticut v. Nowell A. BRATHWAITE reported in 432 U.S. 98 (1977), where while referring to its earlier decision in William S. NEIL, Warden v. Archie Nathaniel BIGGERS, reported in 409 U.S. 188 (1972), it held that reliability is the linchpin in determining the admissibility of identifi cation testimony and the factors to be considered are: the opportunity of the witness to view the criminal at the time of the crime; the witness’ degree of attention; the accuracy of his prior description of the criminal; the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.
72. In the aforesaid context, we should also look at the line of reasoning assigned by the High Court. In para 37 of the impugned judgment, the High Court took into consideration the site plan Ex. PW-8/A. The site plan was looked into to ascertain whether there was suffi cient light at the place of the occurrence or not. In this regard, the High Court held as under:- “37. One of the contentions raised by counsel for the appellant Vijay was that there were no suffi cient lights at the place of incident and this is apparent from the fact that in the site plan proved on record as Ex. PW8/A, existence of any such lights have not been shown. Contention of learned counsel for the appellant was that in the absence of any light being there PW-1 could not have seen any of the assailants, and later recognised them as being the actual perpetrators of the crime. This contention raised by counsel for the appellant Vijay Kumar is devoid of any merit as PW-1 in his testimony categorically stated that there was suffi cient street light with yellow colour lamps being lit around to see the faces of the assailants. PW-1 also deposed that the accused persons had not covered their faces at the time of occurrence. In his cross-examination he denied the suggestion that it was pitch dark at the spot of occurrence or that he could not have seen any of the assailants. With such clear stand taken by PW-1 that there was MUKESH SINGH v. THE STATE (NCT OF DELHI) [J. B. PARDIWALA, J.] suffi cient street light to see the faces of the assailants, we fi nd no merit in the said contention raised by counsel for the appellant Vijay. Even otherwise in the scaled site plan proved on record as Exhibit PW-8/A at point C, D and E the position of lights as were existing at the site have been duly shown.” [Emphasis supplied]
73. In para 41 of the impugned judgment, the High Court has discussed about the identity of the accused persons. Para 41 reads thus:- “41. Learned counsel for the appellant laid much emphasis on the contention that the prosecution has utterly failed to prove the involvement of these appellants in the commission of the said crime through any cogent and clinching evidence. As per the counsel for appellant, PW-1 failed to give description of these assailants to the police in his fi rst statement and he could recognise the assailants only at the time of his deposition in court after these assailants were shown to him by the police. Counsel also justifi ed the refusal of the appellants to participate in the Test Identifi cation Parade conducted on 02.09.08 because of they being already shown to PW-1 by the police. This contention raised by counsel for the appellant lacks any merit. There can be no dispute that one of the important task of the investigation is to apprehend the real and actual culprit of the crime. The Investigation which is carried out by the Investigating Offi cer and his team should be judicious, fair, independent, transparent, totally uninfl uenced by any extraneous factors. There should not be undue and undesirable delay in the investigation of any crime as any slackness in the investigation can always prove fatal. The entire pursuit of any criminal trial is to see that no innocent man is punished and no guilty man goes scot free. PW-1, in his very fi rst statement categorically stated that he can recognise all the four assailants if brought before him. While giving his statement in court, he could easily identify all these four assailants who were present in the court. He specifi cally pointed out to the two accused persons who had snatched money from his pocket and the other two who were armed with ice pricks and started attacking him and the deceased Pappu. In his cross-examination, he also stated that the person who stabbed him was dark in complexion and had a cut mark on his face. It would be therefore seen that right from the fi rst statement, the stand of PW-1 had been that he can identify the assailants and in fact he had identifi ed them when they were also present at the time of his deposition in court. The refusal of these assailants to participate in the test identifi cation parade proceedings thus goes against them. The trial court is correct in taking a view that the onus shifted on the accused persons to prove on record that their photographs were shown to PW-1 prior to the holding of the said test identifi cation parade. PW-1 is quite candid in stating in his court deposition that he had seen these assailants on 15th September 2008 when they were produced in a court at Rohini Courts Complex. In this background, it is diffi cult to accept the argument of counsel for the appellant that the prosecution had failed to establish the identity of these assailants who committed the said crime.” [Emphasis supplied]
74. In para 42, the High Court elaborated further the issue of identifi cation. Para 42 reads thus:- “42. Learned counsel for the appellant – Mukesh was quite emphatic in his contention that PW-1 in his cross examination admitted the fact that he had clearly seen the face of one assailant, who stabbed him and this deposition of PW-1 clearly meant that he was stabbed by the assailant to whom he described as person with dark complexion having a cut mark on his face and therefore, Mukesh had no role in the commission of the said crime. The court has to take an overall view of the entire testimony of a witness, which includes his examination in chief as well as his cross examination. PW-1 while giving his evidence in examination in chief, had clearly identifi ed all the four accused persons being the assailants who were involved in the said incident and in cross examination he merely said that he had clearly seen the face of only one assailant who stabbed him. The said statement of PW-1 in his cross examination can lead to only one inference that so far as the face of one assailant was concerned, he could see him with more clarity, but that would not mean that he did not see the faces of the other assailants or he was not in a position to identify the other assailants, may be with the help of their other descriptions including MUKESH SINGH v. THE STATE (NCT OF DELHI) [J. B. PARDIWALA, J.] their height, gait and manner of walking, etc. We also cannot subscribe to the said contention raised by counsel for these appellants as we fi nd no reason for PW-1 to implicate these persons to save the actual culprits of the said crime. We thus fi nd no force in the above contention raised by counsel for the appellant.” [Emphasis supplied]
75. Although the appellant convict in his further statement recorded under Section 313 CrPC stated that he had refused to participate in the TIP as the eye witnesses had already seen him, yet except a bald assertion, no other foundation has been laid for off ering such an explanation. It is true that the explanation that the accused may off er when the Court confronts him with the incriminating materials in his further statement has to be tested on preponderance of probability and not on proof beyond reasonable doubt. However, even while testing the answer on preponderance of probability some foundation has to be laid for such explanation to be accepted. A mere bald assertion is not suffi cient.
76. The matter does not rest over here. There is something more against the appellant convict. It appears that the appellant was arrested on 20.08.2008. At the time of his arrest, he is said to have made a disclosure statement recorded in Ex. PW10/A. The statement was one relating to the weapon of off ence i.e. ice pick which was ultimately discovered from his house. The proceedings recorded in regard to the actual discovery of the ice pick is in the form of Ex. PW10/V. The statement is said to have been made by the appellant convict before the PW 10 SI Arvind Pratap Singh which led to the discovery of the fact i.e. the discovery of the ice pick. The PW 10 in his examination in chief has deposed as under:- “On 20-8-2008 in the evening I along with Inspt. Ram Chander and Ct. Baljit proceeded for investigation and when we reached at Out Gate, Azadpur Mandi then informer met us there and he told that the fourth accused wanted in this case is present behind the onion shed near Mall Godown, if raided he can be apprehended. On this information IO asked 4-5 public persons to join the investigation but none agreed and went away without telling their names and addresses. Thereafter, we along with secret informer reached behind the inion shed near Railway Track, Mall Godown and from there at the pointing out the secret informer we apprehended accused Mukesh Singh, whose name came to know after inquiry and who is present in the court today. He was interrogated and arrested vide memo Ex. PW10/R and his personal search was conducted vide Ex. PW10/S both bearing my signatures at point A and he made disclosure statement Ex. PW10/T bearing my signatures at point A. The accused was kept in muffl ed face. Thereafter accused took us at the spot i.e. D block corner Azadpur Mandi, Opposite STD PCO Shop and pointed out the place of occurrence vide pointing out memo Ex. PW10/U bearing my signatures at point A. Thereafter accused took us at his house i.e. H.No. 101, Ravi Dass Colony, Sarai Peepal Thala & he took us in a room at the ground fl oor and taken out Rs. 7,000/- from an iron box and one ice pick (SUA) and handed over to Inspt. Ram Chander and told that this sum of Rs. 7,000/- is remaining amount out of looted amount of Rs. 14,800/-. He also informed that the ice pick was the same with which he had infl icted injury to the victim. Rs. 7,000/- consists of seven currency notes of Rs.1000 denomination. The same were put into an envelope and sealed with the seal of RCS and seized vide memo Ex. PW10/V bearing my signatures at point A. IO prepared the sketch of the ‘Sua’ and measured the same. It was found to be having length of 22.5 cm, the length of the prick was 12 cm and the length of the handle was 10.5 cm. The sketch is Ex. PW10/W bearing my signatures at point A. The same was put into pullanda and sealed with the seal of RCS and seized vide memo Ex.PW10/X bearing my signatures at point A. Seal after use was handed over to Ct. Baljit and after completing the investigation accused was brought to PS and accused were sent to lockup and case property was deposited in the malkhana.” [Emphasis supplied]
77. Thus the aforesaid is one additional circumstance pointing towards the guilt of the appellant and at the same time lending credence to the substantive evidence of his identifi cation by PW 1 before the Trial Court.
78. Even if we have to discard the evidence of discovery on the ground that no independent witnesses were present at the time of discovery, still the fact that the appellant herein led the police party to his house and handed over the ice pick used at the time of the assault, would be refl ective of his MUKESH SINGH v. THE STATE (NCT OF DELHI) [J. B. PARDIWALA, J.] conduct. By virtue of Section 8 of the Evidence Act, the conduct of an accused is relevant, if such conduct infl uences or infl uenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police offi cer, the place where he had concealed the weapon of off ence i.e. ice pick, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the appellant convict contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act or not. Even if we hold that the discovery statement made by the appellant convict referred to above is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8 of the Evidence Act.
79. In the overall view of the matter, we have reached to the conclusion that it is diffi cult for us to say that the prosecution has not been able to establish its case against the appellant convict beyond a reasonable doubt. We are convinced with the line of reasoning adopted by the Trial Court as well as by the High Court in holding the appellant convict guilty of the alleged crime.
80. In the result, this appeal fails and is hereby dismissed.
81. In the course of the hearing of this appeal, it was brought to the notice of this Court that the appellant hails from a very poor family and is undergoing sentence past more than sixteen years. In other words, he has been in jail for the past sixteen years. We grant liberty to the appellant herein to fi le a representation addressed to the competent authority of the State (NCT of Delhi) for premature release. If any such representation is preferred by the appellant herein, then the competent authority shall at the earliest process the same and take an appropriate decision in accordance with law, more particularly in accordance with the policy prevailing at the time of commission of the off ence as regards remission within a period of two months from the date of receipt of such representation and further communicate the same to the appellant in writing without fail. Headnotes prepared by: Appeal dismissed. Ankit Gyan