(1) This is an appeal by Pal Singh 25), son of Bachiter Singh, resident of No. 207, Shalimar Park, New Delhi, who was convicted under section 302 of the Indian Penal Code and sentenced to imprisonment for life and also convicted under Section 324 of the Indian Penal Code and sentenced to rigorous imprisonment for one year with the direction that both the sentences would run concurrently.
(2) Briefly, the facts are that on February 8, 1975 at about 9.30 p.m. Nand Lal (Public Witness 2), Chowkidar, happened to be sitting on a charpai along with his wife, Nandni (not examined), outside the godown of his factory, C-8/2, Industrial Area, Wazirpur, Delhi. The appellant along with his companion, Kishan Lal, came up and enquired of Nand Lal from where cigarettes and tea would be available. Nand Lal told them that it would be difficult to get cigarettes and tea and simultaneously enquired from where they had come. The appellant and his companion asked Nand Lal why cigarettes and tea would not be available from the shop opposite to that place and asked him to bring the same. Nand Lal refused to oblige saying that he happened to be on duty. The appellant and his companion insisted that he should fetch but Nand Lal did not agree Thereupon, the appellant sat on the charpai and said why he was not carrying out the command. Nand Lal called outKanhaiya(PW4), Chowkidar, employed at the adjacent premises. Kanhaiya along with his wife, Rukmani, came up. On being apprised of the situation, Kanhaiya asked why they were there and where from they had come. He was given the rebuff that he had no business to make such enquiries. Saying that it was a part of their duty, Nand Lal, Kanhaiya and Rukmani tried to catch hold the appellant and his companion, whereupon the appellant, took out chhuri from his right dub and stabbed Rukmani on the abdomen and Kanhaiya on the neck and made good their escape.
(3) Kamaljit (not examined) gave information on telephone about the stabbing incident to police station Sarai Rohilla at 10 p.m. Constable Bhagat Ram (Public Witness 12) made entry (copy Ex. Public Witness Public Witness 12/A) in the daily diary and deputed A.S.I. Sardar Singh (Public Witness 16) to the place of occurrence and informed Police Control Room as well as the Police Post Ashok Vihar. sub inspector Ram Singh (Public Witness 18) of the Police Control Room rushed to the place of occurrence and removed Kanhaiya and Rukmani to the Willingdon Hospital where Dr. A.P. Bansal (Public Witness 1) examined the injured at 10.55 p.m. In regard to Kanhaiya the doctor noticed sharp incised wound just about left ternoclavicular measuring l'x4' with hae motoma and in regard to Rukmani he observed sharp edged wound over right lumber region measuring l'x4' with greater omentum out. He prepared reports Ex. Public Witness Public Witness I/A and Ex. Public Witness Public Witness I/B and referred Rukmani, who was in semi-conscious state, to the Surgical Wing. Sub Inspector Nar Singh (Public Witness 19), in charge Police Post Ashok Vihar, who had also arrived at the place of occurrence, recorded statement of Nand Lal (Ex. Public Witness Public Witness 2/A) and forwarded the same along with his erdorsement (Ex. Public Witness Public Witness 19/A), for registration of case under Section 307 of the Indian Penal Code. In this way. Constable Ram Pat (Public Witness 7), who was functioning as duty officer, recorded formal first information report (copy Ex. Public Witness Public Witness 7/A) on the basis of the rukka and registered the case.
(4) Dr. P.P.S. Bhatia (Public Witness 5), who was attending upon Rukmani, performed urgent exploratory labrotomy as there was clinical evidence of internal haemorrhage and found massive haemoporetoneum on account of bleeding from greater omentum and duodenum. During the process of nopping cardio arrest occurred at the table and the patient could not be resuscitated despite best efforts and was declared d;ad at 5.05 am. on February 9, 1975. Sub Inspector Nar Singh received information regarding the death of Rukmani while he was at the place of occurrence with the Crime Team and went to the hospital and prepared inquest report (Ex. Public Witness Pw 19/0.
(5) In the morning of February 10, 1975, Sub Inspector Nar Singh received secret information in regard to the culprits and reached Azadpur where he joined Narain Singh (Public Witness 10) of village Khera Kalan and Jungli (PW 11) of Azadpur and advanced towards Railway line near Azadpur Railway Station. On the pointing out of the informer, the appellant and his companion who were sitting in the bushes were apprehended. On interrogation, the appellant disclosed that he could get recovered a knife and led the party to the petrol pump and from there to the culvert in the factory of V.S. Chand in the Industrial Area Wazirpur and took out the knife (Ex. PI) lying there. Memo (Ex. Public Witness Public Witness 10/B) was p epared in that regard. The appellant and his companion were produced before Shri D.S.Sidhu, (Public Witness 20), Metropolitan Magistrate, with their faces muffled. On being asked, they declined to take part in the test identification parade on the ground that they were known to the witnesses and the Magistrate recorded their statements (Ex. Public Witness Public Witness 20/A and Ex. Public Witness Public Witness 20/C). At 4 p. m. Dr. Bishnu Kumar conducted the autopsy on the body of Rukmani and observed the following injuries :
'1.Incised punctured wound unstitched 2.2 x 1.5 cm oblique on the right side front of abdomen 3.8 cm to the right in umbelical region in its line and abdominal cavity deep. 2. Stitched right mid paramedian incised wound on the front of abdomen 14 cm. vertical with underneath tissues stitched in the same line.'
(6) On internal examination of abdomen, peritoneal cavity was found to contain liquid and clotted blood, mesentry of small intestine had blood effusion and liver showed cut in its portion below duodenum with blood clots around inplenty. He also found that injury No. 1 after going through anterior abdominal wall, went through the omentum, then junction of second and third part of duodenum and then through liver and finished by making a cut in the interior vena-cava under it and that total depth of the injury was approximately 6 cm from skin and it was directed backwards and upwards. On the basis of these observations the doctor opined that death was due to haemorrhage and shock as a result of intra abdominal injury caused byinjury No. 1, the injury was anti mortem and caused bysharp doubleedged weapon and that it was sufficient to cause death in the ordinary course of nature. Blood that was lifted from the place of occurrence, blood stained clothes removed from the body of Rukmani, knife Ex. Pi and sample blood of Rukmani were sent to the Central Forensic Science Laboratory for inviting expert opinion and reports Ex. Public Witness Public Witness 19/E, Ex. Public Witness Public Witness 19/F and Ex. Public Witness Pw 19/G were received.
(7) The appellant took up the stand that he had been falsely implicated by Khillu, a co-worker, who was enimical towards him. He also took up the stand that he was employed in a factory quite close to the place of occurrence aid was lying ill since January 24, 1975 and was under treatment of E. S 1. Dispensary and that Khillu brought police to his house in Shalimar Park in the morning of February 9, 1975 and he was taken to Police Post Wazirpur where the occurrence was stated to have taken pla:e and was shown to the witnesses there. In cross-examination the suggestions given to the witnesses were that there was no light at the time of occurrence and the culprits had not been identified but Kanhaiya was made to believe that the appellant was the culprit and for that reason he was saying so. It was also suggested that the appellant did not make any disclosure statement and the knife stated to have been recovered had been planted.
(8) In defense, six witnesses were examined. The last witness, Dr. Daijit Kumar Kapoor, proved certificate Ex. DWI/A which had been issued on February 7, 1975 according to which rest along with treatment had been recommended up to February 13, 1975.
(9) The learned Additional Lessions Judge took the view that inasr much as knife Ex. Pi was not found to contain blood and had not been sent to the doctor who performed post mortem examination for recording opinion as to whether injuries found on the body of Rukmani could possibly be caused with that knife, the evidence in regard to discovery and recovery of the knife was of little use to the prosecution. He, however, took the view that the fact that Nand Lal and Kanhaiya had not given any description or particulars of the assailants in their statements to the police, was inconsequential in view of the identification of the accused in Court Having so held, he relied upon the ocular evidence of Nand Lal and Kanhaiya and the medical evidence and rejected the defense version and c''nvicted and sentenced the appellant as already mentioned above.
(10) It is vehemently contended by Shri Dinesh Chand Mathur, learned counsel for the appellant, that the identification in court of the appellant to be the person responsible for the assault on Rukmani and Kanhaiya is highly doubtful and the learned Additional Sessions Judge has erred in relying upon the same for entering conviction. His attack is two- fold. The first contention is that Nand Lal and Kanhaiya were not in a position to identify the culprits and it was for that reason only that they tailed to give particulars to the police. The second contention is that the appellant was taken to the place of occcurrence and shown to the witnesses and precautions for ensuring a fair test identification parade were not taken and, thereforee, no adverse inference for refusal to take part in the test identification parade could be drawn. It would have to be examined at some length how far these contentions are sound. It is well-established that the evidence of identification of the accused being the culprit in court is substantive evidence. It is equally well-established that in the case of accused who are not previously known to the witnesses, their identification in Court a long time after the occurrence would not be accepted unless it is corroborated by results in a prior test identification parade held in the course of investigation with strict observance of the directions to ensure fairness by keeping the faces of the accused muffled right from the moment they were put under arrest up to the time of the holding of the test identification parade and by taking all such steps as would scrupulously eliminate opportunity for the eye witnesses to see the accused before taking part in the test-identification parade. The evidence of identification like any other evidence given by a witness must possess such features as inspire confidence in the mind that it is creditworthy and, thereforee, acceptable. So viewed, when a witness says in Court that the accused standing in the dock was the person who perpetrated the crime, say a year ago, the rational mind would not feel satisfied if there is no disclosure of the material on the basis of which claim for identification is made. It would bs necessary to satisfy that a clear impression in regard to identity of the accused was left on the mind. ft would, of course, depend upon a variety of circumstances, such as, the presence of sufficient light in case the occurrence took place during night, distance from where the culprit was seen, the duration of lime available and the state of mind of the witness etc. etc. Besides these general characteristics, there would be special characteristics, the peculiarities of facial feature, style of hair, figure, moustaches, dress, gait etc. On account of which distinctive impression can be said to linger on despite passage of time. According to the eye witnesses in this case, light was provided by electric pole at a distance of about 50 yardi from the place of occurrence and they had a fair look at the culprits. If is was so, it is un-understandable why the only description that was given in regard to the culprits was that one was tall and the other was of medium stature. There is no mention in regard to the physique, complexion, hair, moustaches, eyes, formation of face, distinctive marks, clothes, etc. etc. It would be reasonable to infer that the eye witnesses could not get a proper view of the culprits and failed to register a proper impression. This would make the proverbially weak type of evidence of identification unsafe for acceptance for basing conviction. The view taken by the learned Additional Sessions Judge that it is meaningless to contend that the witnesses did not mention particulars of the culprits in their statements to the police is wholly unsustainable.
(11) Coming now to the second contention, it is found that Jungli has not spoken about the appellant having been directed to muffle his face at or any time thereafter when he was taken to the Industrial Area the time of arrest or having actually muffled his face at that time and the vicinity of the place of occurrence. It is also observed that Narain Singh who has stated that the appellant and his companion muffled their faces by making use of the chadar worn by one of them which was torn into two pieces has admitted in cross-examination that he did not state in his statement to the police that the appellant and his companion had muffled their faces. The omission is so significant that it partakes the nature of contradiction and belies the contrary version given by the witness in Court. The only other witness on the point is Sub Inspector Nar Singh. All that has been stated by this witness is that he directed the appellant and his companion to keep their faces muffled. He has not stated whether the direction was complied with and, if so, at what time and in what manner. Furthermore, there is no contemporaneons document in the form of a memo as is normally prepared in such cases mentioning the fact that faces were muffled with pieces of cloth. It is an admitted fact that immediately after arrest, the appellant along with his companion was taken to the Industrial Area which was the venue of the occurrence and it was thereafter that the appellant was produced before the Metropolitan Magistrate. There he was questioned if he would participate in the test identification parade. The refusal of the appellant in the circumstances assumes significance. By that time he had known where the occurrence had taken place. He was an employee in the factory which was situated in that very locality. In the circumstances, his version that he had already been shown to the witnesses becomes quite plausible. Once this conclusion is reached, the refusal to participate in test identification parade should not attract any adverse inference.
(12) The circumstances under which the appellant was arrested in this case are non-inspiring, if not, suspicious. According to Sub-Inspector Mar Singh, some informer had given information to his Constable who was taken along and it was pursuant to that information that the appellant and his companion were arrested. Law recognises that identity of the informer may not be disclosed and thereforee, during trial no effect could be directed to find out who that informer was, what were his relations with the appellant and what was his source of knowledge. All these considerations make the investigating officer suspect and the account regarding apprehension of the appellant and his companion suspect too. The fact that the recovery of knife stated to have been made at the instance of the appellant has not been co-related to the injuries inflicted in this case further adds to the suspicion. In fact, it is not understood how the investigating officer himself felt satisfied that the appellant and his companion were the culprits. There is not a word how he sought verification during investigation to satisfy his conscience. After having made use of the informer for the apprehension of the appellant and his companion, the investigating officer appears to have pulled down the curtain on the investigation and felt satisfied that he had succeeded at laying hands on the right persons. Such type of investigation, for obvious reasons. leaves much that is desired. Inasmuch as identification of persons not previously known is a very weak type of evidence its value is considerably destroyed by the conduct of the investigating agency which is not absolutely above board in this case.
(13) For the forgoing reasons, we have no hesitation in coming to the conclusion that the learned Additional Sessions Judge was in error in recording the finding that identification of the appellant to. be one of the two culprits Stood proved beyond reasonable 'doubt and he was equally wrong in drawing adverse inference on account of the refusal of the appellant to take part in the test identification parade.
(14) The defense version that the appellant was employed in a factory in the vicinity of the place of occurrence and was on sick leave and had been brought to the place of occurrence before he was produced before the Metropolitan Magistrate to say if he wanted to take part in the proposed test identification parade finds support from Dr. Daljit Kumar Kapoor (DW 6), Padam Raj (DW 5), Jit Singh (DW 4), Shashi Kant Jain (DW 3) and Rajinder Singh (DW 1). This version as compared to the prosecution version in regard to the appellant having been arrested pursuant to secret information given by a person whose name is not disclosed looks quite plausible. In a matter like this, it is wrong to expect cogent proof as is expected of the prosecution in regard to the different aspects of the case.
(15) For the foregoing reasons, we would unhesitatingly hold that the prosecution has failed to establish beyond reasonable doubt the identity of the appellant to be the culprit who was responsible for causing the death of Rukmani and knife injury to Kanhaiya. It is unfortunate that crime in this case goes unpunished. The responsibility for this squarely falls on inapt and deficient/investigation.
(16) As a result the appeal succeeds and the conviction and sentence are set aside and the appellant is acquitted. The appellant is in jail. He be released forthwith if not required in any other case.