J.D. Jain, J.
1. Both the appellants have been convicted of an offence under Section 392 read with Section 34 of the Penal Code (for short IPC) by an Additional Sessions Judge vide his judgment dt. 30th July. 1983. They have been sentenced to rigorous imprisonment for three years each. Feeling aggrieved they have preferred separate appeals mentioned above against their conviction and sentence.
2. The prosecution case in brief is that on 7th May, 1981 at about 10.30 p.m., C. R. Bose (PW 8) was going on his two wheeler scooter bearing registration No. DEI-3900 on Station Road, having entered the same from the crossing called New Partap Chowk. He was told by two boys that the road blocked ahead However, he paid no heed to the same but when he reached main Palam Road he found that the road was completely blocked and there was no space to go ahead with the vehicle. So he returned to New Partap Chowk. As he was near it, two boys standing there stopped him. They had a dagger each in their hands and they put the same on his chest and back and bade him to hand over all his belongings. Saying so they removed his purse which contained about Rs. ISO/- from his hip pocket and they also removed his wrist watch HMT make which he was wearing. Another boy also joined them in the meanwhile and all three of them then took away his scooter telling him to stay there and not to raise any alarm. They further told him that they would return his scooter after a few minutes. However, they did not come back. He lodged report Ex. PW8/A at Police Post Dhaula Kuan with regard to this incident and a case under Section 392/397 I. P. C. was registered at Police Station Delhi Cantt. Being FIR No. 112 of 1981. The investigation of the case was entrusted to Inspector Gajender Singh, who was then in charge Police Post Dhaula Kuan.
3. On 10th May 1981 Head Constable Jai Chand and Constable Sardar Singh, who were then posted at Police Station Sultan Puri and were on patrol duty in the area at about 9.45 A.M. noticed that a two wheeler scooter in a damaged condition was lying abandoned in an open plot towards the backside of Shobha Cinema. It was Bajaj make and bore registration No. DEI-3900. They enquired from passers-by about the ownership of the scooter but there being no claimant they seized the same vide memo Ex. PW1/4 and deposited it at Police Station Sultan Puri. On 12th May 1981 Inspector Gajender Singh (PW 11) came to know that a two wheeler scooter had been deposited in the Mai Khana of Police Station Sultan Puri. So. he went there along with the complainant C. R. Bose. The latter identified the said scooter to be his. thereforee, it was taken into custody by Inspector Gajender Singh vide memo Ex. PW11/D.
4. On 3rd June 1981 SI. Chander Kant, Police Station Punjabi Bagh, happened to be on patrol in his area along with constable Mangal Ram (PW 9). He received a secret information at about 6.30 p.m. that a person was going to the liquor vend to sell stolen property. He prepared a raiding party comprising police officials as no member of the public was ready to join the same. On the pointing out of the informer, Hari Shankar alias Pammi appellant was arrested. The latter was then having a cycle and was also wearing a wrist watch (Ex. PA). The police took into possession both the articles vide memo. Ex. PW 14/A. His disclosure statement Ex. PW 14>B was recorded and a case (FIR No. 245 was registered at Police Station Punjabi Bagh. On receiving information that Hari Shanker appellant had been arrested at Police Station Punjabi Bagh, Inspector Gajender Singh took him into custody in the instant case from outside the Court of Shri R.N. Jindal on 4th June 1981 as he had been taken there for remand. He again stated that the purse was with Dharam Raj appellant and his statement Ex. PW 2/A was recorded. On 8th June 1981, Inspector Gajender Singh made an application (Ex. PW 5/D) to the concerned Magistrate Shri R.S. Khurana (PW5) for holding a test identification parade of Hari Shankar. However, the latter declined to participate in the test identification parade. On the same day, viz., 8th June 1981, the investigating Officer also made an application for holding test parade for identification of the case property viz. wrist watch (Ex. PW 5/D) Shri Khanna fixed 28th June 1981 for identification of the watch. The Investigating Officer also sent for the watch from the Police Station Punjabi Bagh on 15th June 1981. A test identification was accordingly held on 30th July 1981 to which date it had been adjourned. C.R. Bose was called in the Court room and he correctly identified watch Ex. P4 as well as his purse from amongst other articles of similar description.
5. On 21st July 1981, SI. Ram Mehar Singh, then posted at Police Station Delhi Cantt., was on patrol in his area along with ASI Yad Ram (PW3). They noticed that Dharam Raj appellant was present at Mod Road and was hurling threats to the public at large that anyone who dared complain to the police against him would not be spared. He was arrested under Section 107/151, Criminal P.C. (for short 'the Code'). A spring actuated knife was recovered from his possession and a case under the Arms Act being FIR No. 174 was registered against him. He made disclosure statement Ex. PW 3/A to the effect that he had kept the purse in a box at his house. Kartar Singh (PW 12), a Kabari by profession, also witnessed this incident. On 22nd July 1981 SI. Ram Mehar Singh intimated this fact to Inspector Gajender Singh who again interrogated Dharam Raj and he repeated the disclosure earlier made by him. He then led the police party to his house at Kali Bari Marg on the same day and took put the purse (Ex. P2) from inside the clothes which were lying in a box at his house. The same was taken into possession vide memo Ex. PW 7/A. On that very day Inspector Gajender Singh moved application Ex. PW 5/H for holding test identification parade of Dharam Raj appellant. The Magistrate Shri R. S. Khanna fixed 30th July 1981 for holding test identification. Another application was made by the Investigating Officer for test identification of the purse Ex. P.2, As stated above, the purse Ex. P2 was duly identified by C. R. Bose in the test identification. As for identification of Dharam Raj appellant he declined to participate in the same saying that he had been made to sit at the Police Station for a number of days and he had been shown to the witnesses.
6. The third companion of the appellants, namely Ranjit Singh too was arrested by Inspector Gajender Singh on 16th June 1981 under Section 107 151 of the Code and a spring actuated knife was recovered from his possession. He too disclosed that the purse was with Dharam Raj. However, we are not concerned with the said accused in this appeal because he has been acquitted by the trial Court.
7. The crucial question which has been raised by the learned Counsel for the appellants is with regard to their identity as the real culprits. Their contention precisely is that even assuming that the complainant C.R. Bose had been waylaid and robbed of his watch and purse, as deposed by him there is no credible evidence on record to connect the appellants with the commission of the crime. As stated above, Hari Shankar appellant was arrested on 3rd June 1981 by Punjabi Bagh Police. He was produced in court for police remand on the next following day viz. 4th June 1981, on which date he was arrested by the Investigating Officer in this case. He was produced m the Court of the Metropolitan Magistrate again on 8th June 1981 along with the application Ex. PW 5/E for holding a test identification parade/However, the appellant Han Shankar declined to participate in the test identification. His contention is that he had been already shown to the complainant at the Police Station and, thereforee, there was no point in his joining the test identification parade which would have been just farce. I find considerable merit in the contention having regard to the material on record although in application Ex, PW 5/E it was stated by the Investigating Officer that the appellant had .been directed to keep his face muffled but as recorded by the Metropolitan Magistrate his face was not muffled when he was produced to Court. Moreover, it was admitted by the Investigating Officer that the appellant had been remanded to police custody for four days. In other words, the appellant had been admittedly in the police custody from 3rd June, 1981, when he was allegedly arrested, uptil 8th June, 1981 when he was produced in Court and a prayer was made for his test identification parade. Thus, the police had ample opportunity to show him to the complainant. An indication to the effect that he might have been shown to the complainant is available from the admission made by the complainant himself. During his cross-, examination Shri Bose stated that, 'When my watch was recovered, I went to P. S. Sultan Puri, one of the three accused was at the Police Station but I do not recollect as to who was he, and thereafter I have seen the accused today.' Having regard to the version of the prosecution itself that Ranjit Singh and Dharam Raj were arrested by the police on 16th June 1981 and 21st July, 1981 respectively, the reference of Shri Bose to the accused person seen by him at police Station Sultan Pun could possibly be to Hari Shankar appellant by logical process of elimination. Hence, no adverse inference can be drawn against Han Shankar appellant for his refusing to participate in the test identification parade and his identification in court by the complainant is valueless. Needless to say that the investigation has to be very fair to the accused but this principle seems to have been thrown to the winds. The fact that the appellant was shown to the identifying witness beforehand seriously discounts the probative value of substantive identification in Court. Reference in this context may be made to Mohanlal Gangaram Gehani v. State of Maharashtra , wherein it was held as under:
Thus, as Shetty did not know the appellant before the occurrence and no Test Identification parade was held to test his power of identification and he was also shown by the police before he identified the appellant in Court, his evidence becomes absolutely valueless on the question of identification. On this ground alone, the appellant is entitled to be acquitted. It is rather surprising that this important circumstance escaped the attention of the High Court...
8. Another piece of evidence which has been relied upon by the prosecution against Hari Shankar is that the stolen watch Ex. P 4 was recovered from his possession when he was arrested on 3rd June, 1981. He was wearing it on his left wrist. Admittedly such like watches are commonly available in the market Moreover, the only description of the watch given by the complainant in the FIR was that his watch was of HMT make. He did not further state that it was of citizen brand which admittedly is the brand of the watch in question. That apart, it was admitted by the Investigating Officer during cross-examination that he had brought various watches and purses for mixing up with the watch in question at the time of test identification in the court of the Magistrate. Further as stated by Shri R. S. Khanna, Metropolitan Magistrate the watch in question had not been sealed. Under these circumstances, the identity of the watch in question as being stolen property cannot be held to have been established beyond reasonable doubt. So, benefit of doubt must accrue to the appellant
9. Lastly, the so-called disclosure statement Ex. PW 2/A made by the appellant Hari Shankar with regard to the purse is of no avail to the prosecution inasmuch as being in the nature of confession to the police it would be clearly hit by the provisions of Sections 25 & 26 of the Evidence Act. Since no incriminating article was recovered in consequence of the said disclosure it would not be protected by S. T1 of the said Act.
10. To sum up, thereforee, the appellant Hari Shankar is entitled to benefit of doubt and as such his conviction as well as sentence for the aforesaid offence cannot be sustained
11. As for Dharam Raj appellant, however, the position is substantially different inasmuch as he was arrested on 21st July 1981 and pursuant to the disclosure Ex. PW 3/A he led the police party to his house on the next following day and produced the stolen purse Ex. P2 from inside the clothes which were lying in a box at his house. The evidence of Inspector Gajender Singh and SI. Ram Mehar Singh (PW 7) to this effect is quite clear and cogent and I see no reason to disbelieve them. It is true that according to these witnesses the said purse did not have any special mark of identification but as noticed by the trial Court itself the words 'Big Rose Commander' were written inside the purse in golden ink. The contention of the learned Counsel for the appellant that no public witness was joined by the Investigating agency at the time of recovery arid, thereforee, no reliance could be placed on the testimony of the police officials alone is not at all tenable because there is no such legal requirement. As observed by the Supreme Court in Himachal Pradesh Administration v. Om Prakash the evidence relating to recoveries is not similar to that contemplated under Section 103 of the Criminal P.C. where searches are required to be made in the presence of two or more inhabitants of the locality in which the place to be searched is situate. In an investigation under Section 157 of the Cri. P.C. the recoveries could be proved even by the solitary evidence of the Investigating Officer if his evidence could otherwise be believed.
12. That apart, the appellant Dharam Raj has failed to bring any material on the record which would render his identification by the complainant in court of doubtful value. As stated above, he declined to participate in the identification parade although he was produced on the very next day of his arrest and, thereforee, an adverse inference can be legitimately drawn against him in the absence of any material to show that as in the case of Hari Shankar he too probably had been shown to the complainant while in police custody. Hence, the conviction of Dharam Raj appellant for the said offence being well founded calls for no interference. Even the sentence awarded is not excessive having regard to the nature of came committed by him.
13. The upshot of the whole discussion is that the appeal of Hari Shankar succeeds. His conviction as well as sentence is set aside and he is acquitted. The appeal of Dharam Raj appellant is, however, dismissed.