The court held that an adverse inference cannot be drawn against an accused for declining to join a test identification parade if there is a possibility of the police showing the accused to the witness before the parade.

( 1 ) THESE two appeals arise out of the impugned judgment of the Court of Shri P. S. Sharma, Additional Sessions Judge, Delhi dated June 7, 1983 by which he convicted Adesh Kumar and Jagdish appellants under section 394 read with section 397 Indian Penal Code and sentenced them to seven years RI and a fine of Rs. 500. 00 each thereunder. The prosecution case stated in brief is that on July 26, 1978 at about 9. 15 p. m. Dharam Singh PW was standing at the bus stand Beriwala Bagh, Bharat Nagar, Delhi. Three persons including the two appellants Adesh Kumar and Jagdish had come in the scooter of Narender Kumar Public Witness 3. These three persons got down from the scooter at some distance from the said bus stand. The third accomplice of the appellants went away. The two appellants went near Dharam Singh at the bus stand. They both showed a knife to Dharam Singh and told him to give to them whatever be had. Dharam Singh took out a currency note of rupee ten from his pocket and gave that note to the appellants. The appellants were, however, not satisfied and the personal search of Dharam Singh was taken by them and Adesh removed a sum of Rs. 300. 00 from one pocket of the pant of Dharam Singh. Jagdish appellant while committing the robbery also gave a knife blow on the left thigh ot Dharam Singh. The wrist watch was also removed from the wrist of Dharam Singh. The appellants threatened him to face towards Bharat Nagar side and move towards that side and the two appellants in the meanwhile made good their escape. Dharam Singh after walking some distance talked over the matter to some persons. The police was informed. The statement of Dharam Singh was recorded by the police on which a formal FIR was drawn. Dharam Singh was taken to the Police Hospital, Delhi and was given treatment there. Jagdish, appellant, was arrested in some case of police station Roshanara Road on the same night and on the same night Ashok Vihar Police was informed by Roshanara Road police about Jagdish appellant having been arrested by them. On July 31, 1981 SI Uday Chand of police station Ashok Vihar (Public Witness 7) formally arrested Jagdish appellant in this case. Jagdish was got identified from Dharam Singh Public Witness in the test identification parade held by the Magistrate on August 3, 1978. He was correctly identified by Dharam Singh in that parade. Adesh Kumar, appellant, surrendered before the court of the Metropolitan Magistrate on January 16, 1979. He was sent to judicial custody on that day for one day. On January 17, 1979 he was remanded to police custody upto January 22,1979. On January 22. 1979 an application for getting Adesh Kumar identified from Dharam Singh Public Witness was moved before the court of the concerned Magistrate. Adesh Kumar, however, declined to join the test identification parade. The prosecution among others examined Dharam Singh, the victim of the robbery, as Public Witness 3 and Narender Kumar, scooter driver, as PW 5. They broadly supported the prosecution version.

( 2 ) I have heard Shri Subhash Bhutan, learned counsel for Adesh Kumar appellant, and Shri Harish Gulati for Jagdish appellant who took me through the record of the case. None appeared on behalf of the State at the hearing of the appeal. The main question that was urged by the counsel for the two appellants is that the learned trial court was in error in coming to the conclusion that the identity of Adesh and Jagdish appellants as the persons who committed the robbery stood proved on the record beyond a reasonable doubt. I may state at the very outset that I find force in the contention of the learned counsel for the appellant, Adesh only. The prosecution in establishing the identity of the two appellants as the two persons who committed the robbery has relied on the statements of Dharam Singh Public Witness 5 and Narender Kumar PW 3 in their having identified in the court the two appellants as those persons while giving their statements a