JASPAL SINGH ( 1 ) WE discern not many a knots in the strand woven by the prosecution. However, first, the prelude. In the posh locality of Saket there is a Central Market known also as Super Bazar. It comprises of twenty-six shops. Shop No. 24, however, provides the central stage. Its proprietors were Davinder Kumar Aggarwal and Parveen Kumar Aggarwal, though some times their father Gian Chand Aggarwal also used to look after the business. Hardly a few yards away from the market are residential houses and one of the occupants of one of those residential buildings is Rajpal Sharma, Advocate. Quite nearby also lives Vinod Kumar Singhal. He is the brother-in-law of Parveen Kumar Aggarwal. They are the central characters besides, of course, Lila Ram @ Liloo and Rajinder Kumar, who were arrayed by the prosecution as the accused. Allegedly their victim was Parveen Kumar Aggarwal. ( 2 ) A thumb nail sketch of the sequence of facts is necessary to get a hang of the core of the case of prosecution. Drawn from the First Information Report recorded on the basis of the statement of Davnder Kumar Aggarwal, it emerges out as follows. ( 3 ) ON December 29, 1983 at about 5 P. M. Davinder Kumar Aggarwal and his brother Parveen Kumar, deceased, were present at the shop. A boy, short statured, sallow complexioned and slightly heavy built, came to the shop and asked for a speaker for his jeep. When told that they had no speakers for vans, he took a television speaker on approval, came back after some time, and demanded screws to fit it in the jeep. It so happened that at that time, four screws were lying on the counter meant for a heater belonging to a customer. The boy picked up those screws. This was objected to by Parveen Kumar to which that boy took offence and tjreatened to teach him a lesson. However, on being pacified by Davinder Kumar Aggarwal, that boy went away in his white coloured jeep. The scene then shifts to January 1, 1984. On that day at about 9. The boy picked up those screws. This was objected to by Parveen Kumar to which that boy took offence and tjreatened to teach him a lesson. However, on being pacified by Davinder Kumar Aggarwal, that boy went away in his white coloured jeep. The scene then shifts to January 1, 1984. On that day at about 9. 15 P. M. while the shop was being closed by the said two brothers and their employee Akhilesh, a person sallow complexioned slim and aged about 26-27 years came to the shop, stared at Davinder Kumar, asked him whether he was the same person, and gave a slap on his face. In the meanwhile, the boy who had visited the shop on December 29, 1983 also came there and, while pointing out towards Parveen Kumar, told him that it was Parveen Kumar who was the person concerned. By that time that. slim person had taken out a screw-driver from inside the belt of his pant. He gave two or three blows with it to Davinder Kumar Aggarwal which were successfully warded off and as soon as Parveen Kumar enquired as to what the matter was, that slim person gave three or four blows with it in his chest, and stomach. Parveen Kumar fell down on the ground on which the built boy remarked: "bas Sala Mar Gaya, Chalo. " Thereafter, both of them took to their heels. Parveen Kumar was later taken to the hospital by Davinder Kumar Aggarwal and Akhilesh Kumar where he was declared dead. The occurrance as per the First Information Report, was witnessed by two three shopkeepers and by Akhilesh Kumar. However, in the course of the trial, Davinder Kumar Aggarwal disowned the shopkeepers and the prosecution made an attempt to show that it was Rajpal Sharma, Advocate, who had actually witnessed the occurrence. ( 4 ) AS per the prosecution the boy who had visited the shop on the 29th was Rajinder Kumar and the person who had inflicted the injuries with a screw-driver was Lila Ram. ( 5 ) THE prosecution claims that Lila Ram was arrested on January 3, 1984 at about 7. ( 4 ) AS per the prosecution the boy who had visited the shop on the 29th was Rajinder Kumar and the person who had inflicted the injuries with a screw-driver was Lila Ram. ( 5 ) THE prosecution claims that Lila Ram was arrested on January 3, 1984 at about 7. 30 P. M. while driving a white jeep and Rajinder Kumar surrendered in court on January 9, 1984 and that though applications were moved for holding of the test identification parades, both of them refused to participate on the ground that they had been shown to the witnesses. It is also claimed that on the intervening night of 12th and 13th January, 1984 at about 2. 30 A. M. Rajinder Kumar made a disclosure statement with regard to the screw driver and on the same. day at about 7. 30 A. M. led to its recovery from a nullah not only in the presence of two police officers. , ASI Mahak Singh and SI Dharampal (Public Witness s 17 and 21 respectively) but also in the presence of Vinod Kumar Singhal (Public Witness -20 ). That screw driver is Ex. P-6. ( 6 ) BEFORE concluding the resume it may be mentioned that it was Dr. S. P. Aggarwal (Public Witness -3) who had examined Parveen Kumar on January 1. 1984 at about 9. 45 P. M. and had declared him dead. The mortal remains of Parveen Kumar were thereafter subjected to post-mortem by Dr. Chanderkant (Public Witness -17 ). He found as many as four injuries. One was a lacerated contused wound caused by a blunt object while the remaining three were circular peneterated wounds, two of which were found to be individually and collectively sufficient to cause death in the ordinary course of nature. He was also shown the screw driver (Ex. P-6 ). As per him the three circular peneterated wounds could be caused by it. ( 7 ) AS would be borne out from what has been noticed by us above, it was on the 29th of December, 1983 that Rajinder Kumar had allegedly visited the shop of the deceased. With regard to the incident of that date the prosecution has examined three witnesses, namely, Davinder Kumar Aggarwal (Public Witness -12), Nawal Kishore (Public Witness -2) and Gian Chand (Public Witness -5 ). Nawal Kishore was an employee at the shop. With regard to the incident of that date the prosecution has examined three witnesses, namely, Davinder Kumar Aggarwal (Public Witness -12), Nawal Kishore (Public Witness -2) and Gian Chand (Public Witness -5 ). Nawal Kishore was an employee at the shop. We need not loose much breath on him as he has not supported the prosecution version. Gian Chand is the father of the deceased. Admittedly he was not present at the relevant time at the shop. His only statement is that on the night of 29th of December. Parveen Kumar came to him with a perplexed and horrified look and told him that only over four screws, a boy, who was a regular visitor at the shop of Gupta Ji, had hurled filthy abuses and had threatened him with dire consequences. ( 8 ) WITH regard to the occurrence of January 1, 1984, we have on the record the statements of Davinder Kumar Aggarwal, Akhilesh Kumar and Rajpal Sharma, Advocate (Public Witness s. 12, 13 and 16 respectively ). Out of these three alleged eye witnesses, Akhilesh Kumar has not uttered a word favourable to the prosecution. The other too, however, have lent their full throated support. ( 9 ) THE learned trial judge found the statement of Rajpal Sharma, Advocate unworthy of reliance. However, relying principally upon the statement of Davinder Kumar Aggarwal and the evidence regarding recoveries of the screw-driver and the jeep with a speaker and the refusal of the accused to participate in identification proceedings, the convicted Rajinder Kumar under section 302 and Lila Ram under section 302 read with section 34 of the Indian Penal Code, and sentenced them to undergo imprisonment for life. Hence these appeals. ( 10 ) AS expected, sparks all around were witnessed on the clash of wordy arms during arguments. Whereas according to S Shri R. L. Kohli, D. R. Sethi and B. B. Lall, Advocates appearing for the appellants, the evidence led by the prosecution deserved to be ignored with certain element of contempt, the other side led by Ms. Usha Kumar and Shri S. K. Aggarwal, Advocates found nothing but all virtue in everything said and done by the prosecution. Though they did give. expression totheir dismay over the rejection of the evidence of Rajpal Sharma by the learned trial judge, the fact that lie had found acceptable tli^ statement of Davinder Kumi. Usha Kumar and Shri S. K. Aggarwal, Advocates found nothing but all virtue in everything said and done by the prosecution. Though they did give. expression totheir dismay over the rejection of the evidence of Rajpal Sharma by the learned trial judge, the fact that lie had found acceptable tli^ statement of Davinder Kumi. !.- Aggarwal and the evidence regarding recove. ry of the screw-driver and tin. jeep proved to he a great source of satisfaction to thein. Thev w. ij1ted us to accept not only what had been found to be acceptable by the trial judge but that part of the evidence as well which, according to them. had been erroneously discarded as unreliable. The reference, obviously, was to be statement of Rajpaf Sharma. ( 11 ) ORDINARILY, we would have first dealt, with the evidence comprising of the statenients of the two alleged eye witnesses namely Davider Kumar Aggarw^ ana Rajpal Sharma. However, for what we. consider to be a more convenient path, we intend beginning our journey with the evidence relating to tlie alleged (In closure statement and the consequent recovery of the screw- driver. The second step would c^ver the arrest o* Lila Ram and the alleged recovery of the jeep from his possession. With that void be built the tempo. ( 12 ) THE witnesses to the alleged disclosure statement of Rajinder Kumar are ASI Mahak Singh, ASI Desh Pal Singh and SI Dharam Pal Sharma (Public Witness s 17,18 and 21 respectively) It is obvious, they were all police officials. The evidence shows that though the interrogation took place and the disclosure statement was made within the precincts- of Police Post Saket which is embraced by a cluster of residential houses, not even an attempt was made to call or join any witness from the public. Expectedly, this failure on the part of the prosecution came in for heavy firing by the counsel representing the appellants. Not that the State remained a mute spectator. It was argued on its behalf, and with conviction, that police officials being also competent witnesses, their evidence could not be discarded merely for want of a witness from the public. Expectedly, this failure on the part of the prosecution came in for heavy firing by the counsel representing the appellants. Not that the State remained a mute spectator. It was argued on its behalf, and with conviction, that police officials being also competent witnesses, their evidence could not be discarded merely for want of a witness from the public. Notwithstanding the gallant effort by the State to salvage the position, our bespectacled eyes, tired by decades of keen observation, and our shoulders, stooping with the burden of experience, warn us to be extremely cautious in approaching and evaluating such evidence The blemish makes us reluctant, hesitant. There is, however, something more. Rajinder Kumar was in police custody since about 2 P. M. of January II, 1984. He was not interrogated throughout that day. He was not interrogated even throughout the day of January 12. It was only at 2 A. M. on January 13 that he was interrogated. Why this unearthly hour ? And why that masterly inactivity throughout the 11th and the. 12th? Anyhow, as per the Investigating Officer, the disclosure statement was made at about 4 or 4. 30 A. M. (This is obvious from his statement that the police party had left for the place of recovery after 3 or 3-1 i2 hours of the making of the disclosure statement and his further statement that the departure was at 7. 30 A. M.) However, as per A. S. I. Deshpal Singh interrogation had started at about 2 A. M. and within five or ten minutes the disclosure statement was made. (As if it was a bubble filled to its seams, squirming to burst, out just waiting for the arrival of an appreciative audience ). The third witness to the disclosure also does not lag behind in making the confusion worse confounded. At one stage he states that the disclosure statement was recorded at 2. 15 or 2. 30 A. M. and at another becomes mystically vague : "i cannot say", he tells up, "if that disclosure was made "after two minutes of my reaching there or after an hour of my reaching there. " Strange, we know, are sometimes the ways of God Almighty. Stranger still are the ways of some of the police officials. 30 A. M. and at another becomes mystically vague : "i cannot say", he tells up, "if that disclosure was made "after two minutes of my reaching there or after an hour of my reaching there. " Strange, we know, are sometimes the ways of God Almighty. Stranger still are the ways of some of the police officials. The only redeeming feature is that whereas in his case even the raising of a little finger may be blasphemy, an erring bobby may be knocked down with a stinging pen. No, we are not inclined to accept this evidence. " ( 13 ) WITH the disclosure statement already secured, the police officials take some. rest and leave for the place ot recovery at about 7. 30 A. M. They proceed on foot and after covering a distance of three to four hundred yards. , reach near the Gurdwara of J Block. They once again request no resident of the houses around the police post to join the police party. Though the road is frequented by morning walkers while covering all those three or four hundred yard s, they take no steps to stop in between any of the. health conscious citizenry to join hands for the health of the society. They wait near the Gurdwara and do, there comes Vinod Kumar Singhal, returning home after giving exercise to his muscles and limbs. Only he and he alone is requited to join. He readily agrees. Pray, who is this Samaritan ? A duty conscious citizen ? He keeps it a closely guarded secret in his examinationin-chief. Only in cross-examination he is made to disclose that the deceased was none other. but his brother-in-law. What an irony. Throughout the period in between the disclosure statement and the reaching of the Gurdwara, the Investigating Officer remains in deep slumber. He makes no effort to join anyone and when finally he does decide to join someone, he stumbles upon a person who turns out to be dearest to the deceased. What an unholy alliance under the shadows of a holy place. And look at their chicanery, A. S. l. Mehak Singh savs he does not know where Singhal lives and whether or not he is the brother-in-law of the deceased. We refuse i () eat chew and digest such evidence. It makes everything suspect. What an unholy alliance under the shadows of a holy place. And look at their chicanery, A. S. l. Mehak Singh savs he does not know where Singhal lives and whether or not he is the brother-in-law of the deceased. We refuse i () eat chew and digest such evidence. It makes everything suspect. ( 14 ) COMING to the recovery itself, what do we find? The recovery of the screw-driver is made from a nullah. Not hidden anywhere. Just lying there. A place frequented by many, abutting roads and residential colonies, and thus accessible to all. And, what about the screw-driver itself ? An ordinary tool available everywhere with no distinctive marks. No body says it was the same screw-driver, and is not proved to be besmeared with the blood-group of the deceased. Thus here is a recovery, totally devoid of any significance. It means nothing and leads us nowhere. ( 15 ) TIME now to deal with the recovery of the jeep and the speaker. It was argued, and with great vehemance, that the jeep in question was recovered from the possession of Lila Ram accused and was found to be fitted with the speaker taken away from the shop of the deceased on December 29, and that, consequently, It was a circumstance of immense importance. Sounds convincing. But then, everything that glitters is not gold. It fails upon the anvil of scrutiny. ( 16 ) IT is significant to note that Lila Ram was not arrested on a chance interception. The police party had prior information and it was only on that bass that a raiding party was formed and the picket was laid on a busy road. The police officials, under the circumstances, had ample time and opportunity to join witnesses from the public. And yet absolutely no effort was made in that direction. This being the position and as, in the present case, consistent efforts have been made to induct tainted evidence, we are not inclined to place reliance on this part of the prosecution version. In any case, it is in evidence that the jeep was freshly painted white. This fact does not find mention either in the First Information Report or in the statement of Davinder Kumar Aggarwal. In any case, it is in evidence that the jeep was freshly painted white. This fact does not find mention either in the First Information Report or in the statement of Davinder Kumar Aggarwal. This being the position and as neither in the First Information Report nor in the statement of Davinder Kumar Aggarwal the number of the jeep is given, we do not think that the jeep in question has been proved to be the same which allegedly had been used on the 29th. Yet another fact which needs to be noticed is that the jeep was owned by one Shakurddin (Public Witness -24 ). As per him, he had sold it to one Om Parkash. Thus Lila Ram had nothing to do with the jeep and there is no evidence as to how he could come into possession of the same. A vital link is thus missing. ( 17 ) WITH a view to show that the jeep recovered was the same which was used by Lila Ram on the 29th, the prosecution has tried to prove that. it was fitted with the same speaker which Rajinder Kumar had allegedly taken away from the shop of the deceased on the 29th. We find ourselves totally disinclined to accept it. In fact even the very story of a speaker having been taken sway appears to us to be incredible, to say the least. Lila Ram was a total stranger to the deceased as well as to his brother Davinder Kumar Aggarwal. Under the circumstances, it is not possible for us to believe that the brothers would have allowed him to take away the speaker on the promise that he would "return back after showing that speaker" (See PW-12 ). We are also told by Davinder Kumar Aggarwal that Lila Ram had come back after a short while, had packed up four screws lying on the counter to fix up the speaker in the jeep and that when picking up of the screws was objected to, he had hurled abuses and had threatened the deceased with dire consequences and that it was only thereafter that he was pacified and seen off. What is of significance is that no effort was made to take back the speaker. It was not even demanded back. What is of significance is that no effort was made to take back the speaker. It was not even demanded back. It is not possble for us to believe that the two brothers supported by their two employees would have allowed Lila Ram to go away without even demanding the price of the speaker or without even getting it back. In any case, no particulars of the speaker were mentioned in the First Information Report. The prosecution has also not produced any stock register to prove chat the brothers were having speakers in their stock. Significantly Shakurddin, the registered owner of the jeep, has stated that the speaker in question was fitted in the jeep at the time of its purchase by him in 1982. Thus, for the prosecution he proves to be a bull in the China shop and completely demolishes its case. ( 18 ) THE learned trial judge has learned heavily on the recovery of the screw-driver at the instance of Rajinder Kumar and the recovery of the jeep found fitted with a speaker from the possession of Lila Ram. As we have shown above, on both the points he was on a slippery ground. Shifting sands and shallow grounds never provide a sound foundation. ( 19 ) WE feel that the learned trial judge paid too much respect to Davinder Kumar Aggarwal when, in fact, he hardly deserved any. We find in him a person who has scant regard for truth. We also find in him a person who can go to any length to subserve his interests. Truth, thus, is the casualty. In the First Information Report lodged by him he nowhere states that the occurrence had been witnessed by Rajpal Sharma. In fact Sharma s name figures no where. What he says in the First Information Report is that the occurrence was witnessed by two, three shopkeepers. Significantly, in his statement as Public Witness -12 he commits a sommersault. He makes therein a laboured effort to shed off those two three shopkeepers. And while doing so, he makes tireless efforts to introduce, project and propel Rajpal Sharma as a witness who had heard all, who had seen all and who was present everywhere and at all the times. He named two three shopkeepers but never allowed them to be brought to the central stage. And while doing so, he makes tireless efforts to introduce, project and propel Rajpal Sharma as a witness who had heard all, who had seen all and who was present everywhere and at all the times. He named two three shopkeepers but never allowed them to be brought to the central stage. In his statement he rather took the stand that there were no shopkeepers. Davinder Kumar Aggarwal is thus guilty of suppressio veri. Davinder Kumar Aggarwal is also guilty of introducing an unreliable witness in Rajpal Sharma. Davinder Kumar Aggarwal is further guilty of projecting Rajpal Sharma as a witness of sterling worth. And there is much more to follow the footsteps of Edmund Burke. It is unfortunate that such a person has won the heart of the learned trial Judge. We must not forget that legal justice must be made of super stuff where incarceration for life be the consequence. We may note herewith profit what the Lahore High Court bad stated decades past: "where the prosecution produces a false witness for the purpose of procuring conviction, the credibility of the rest of the evidience is also affected and it becomes extremely unsafe to act upon any ot the evidence in such. . case. " (Abdul Sattar v. The Crown. 17 ILR (Lah) 460 ). (1) The present is a case which is much worse, ( 20 ) THE prosecution actually meets its Waterloo on the point of identification. As already pointed out above, names of the culprits are not given in the First Information Report. What is given is only their description. Whereas, the person who visited the shop on the 29th is described as "one boy of short stature, slightly fat and having sallow complexion," the description of the other is : "one slim boy. aged 26-27 years sallow completion. " Reading both the descriptions together, it would appear that the slim boy was taller than the "sligphtly fat" boy as, other-Vise, the expression "of short stature" would not have been used for the latter. However, in his cross-examination, Davinder Kumar Aggarwal admits that Lila Ram who allegedly visited the shop on the 29th is taller than Rajinder Kumar. This admission, in itself, takes away the sting and shows how unreliable and fallible the descriptions are. In any ease. However, in his cross-examination, Davinder Kumar Aggarwal admits that Lila Ram who allegedly visited the shop on the 29th is taller than Rajinder Kumar. This admission, in itself, takes away the sting and shows how unreliable and fallible the descriptions are. In any ease. the descriptions provided in the First Information Report are so genera] in terms, so vague in their content, and so ambiguous in their detail that they may cover almost every other north Indian within their sweep. And. with no offence meant, while these magnificiently alt pervading all embracing descriptions were being hotly defended, what tore through the atmosphere so surcharged with the seriousness c" the situation, was the mirthful realisation that even the learned counsel so assiduously arguing for then answered, answered lo one of the descriptions. The only redeeming feature, to our great relief, was his ripening age. We. thus, would be treading too dangerous a path by accepting end relying upon such descriptions. ( 21 ) TO meet the situation. if was argued on behalf of the State that as the appellants had refused to take part in the test identification parade, presumption adverse to them deserved to be drawn and as the appellants had been correctly identified in the dock, the question of their identification stood settled firmly and squarely against them. However, on this aspect of the matter also we find ourselves unable to make ourselves agree with the contention. Lila Ram was allegedly arrested while driving a jeep from a busy road. From there he was taken first to Police Station Hauz Khas and then to Police Post Saket. Although the Investigating Officer does state that Lila Ram had muffled his face with a chuddar on his arrest, we are not inclined to place reliance on his solitary bald statement not only because he is a person who has actively connived at the introduction of witnesses like Rajpal Sharma and Vinod Kamar Singhal and has thus shown scant regard for truth and objectivity, but also because, on this aspect of the matter, the other two witnesses, though police officials, have not. lent their voice in his support, we are, thus, inclined to agree with Shri B. B. Lal, Advocate, appearing for Lila Rani that after his arrestwhile Lila Ram was being shifted from the place of his arrest to the Police Station and from the Police Station to the Police Post, necessary precautions to protect his identity were not taken. This, however, is not the end of the matter. On January 4, 1984, Lila Ram was produced before Shri K. C. Lohia. Metropolitan Magistrate, where he made statement Ex. Public Witness 22 B) refusing to participate in the test identification proceedings on the. ground that he had already been shown to the witnesses. The proceedings recorded by the learned Magistrate are Ex. Public Witness 22 A. What is of significance is that neither in the proceedings nor in his statement as Public Witness -22 has the learned Magistrate stated anywhere that Lila Ram was produced before him a muffled face. ( 22 ) COMING to Rajinder Kumar, he had surrendered in court on January 9, 1984 and was sent to judicial custody with directions to produce him in court on the 11th. On the 11th, at about 2. 15 P. M. he was produced in the court of Shri O. P. Gogne. Metropolitan Magistrate. As the learned Magistrate was "not available, he was produced before the learned Additional Chief Metropolitan Magistrate who directed him to be produced before Shri M. K. Gupta, Metropolitan Magistrate. It was thereafter that Rajinder Kumar was produced before Shri Gupta who recorded the proceedings Ex. Public Witness 23 A showing that Rajinder Kumar had refused to take part in the test identification proceedings. Unfortunately no separate statement of Rajinder Kumar was recorded. Significantly, in the proceedings (Ex. Public Witness 23 A) it is nowhere recorded that Rajinder Kumar had appeared in muffled face. The learned Magistrate has entered into the witness- box as Public Witness -23. He states: I cannot specifically say whether the accused Rajinder Kumar was produced in my court with his face muffled or not. " We fell that had Rajinder Kumar been produced with his face muffled, the learned Magistrate must have recorded that fact in the proceedings. ( 23 ) THOUGH the proceedings recoreded by the learned Magistrate Ex. He states: I cannot specifically say whether the accused Rajinder Kumar was produced in my court with his face muffled or not. " We fell that had Rajinder Kumar been produced with his face muffled, the learned Magistrate must have recorded that fact in the proceedings. ( 23 ) THOUGH the proceedings recoreded by the learned Magistrate Ex. Public Witness 23 A) and his statement do not show that Rajinder Kumar was produced in court with his face muffled, the Investigating Officer, S. I. Dharam Pal (Public Witness -21) comes out with an amusing statement. He says that when Rajinder Kumar appeared in the court of Shri O. P. Gogne. he "interrogated" him and that "sometimes, he used to unmufile his face and sometimes he. used to muffle his face" What should we make out of this statement ? Firstly, who told the Investigating Officer that the person concerned was Rajinder Kumar. After all, Rajinder Kumar was not known to him from before. Secondly, what made him "interrogate" him outside the court room before his having been produced before the Magistrate " And, what should we make out of this muffling and unmuffling business ? Lastly, if Rajinder Kumar had really muffled his face, why the Investigating Officer did not warn him not to keep on unmuffing it for he wanted to move an application for holding of a test identification parade ? And let us not forget that Rajinder Kumar was produced in the courts located in the Patiala House, where Rajpal Sharma, Advocate was practising and who had been assiduously keeping a track of the inch-by-inch progress of the investigation. And this is not. all. The lnvestigating Officer had come to know about the surrender in court of Rajinder Kumar on the 9th and that is why he was in the court ready with an application for test identification. A police officer of even an average intelligence would have known that the description given was too general in terms and consequently not sufficient to nab the. accused. In such a situation the anxiety to get the accused identified becomes greater. It was argued that at the relevant time both Davinder Kumar Aggarwal and Rajpal Sharma were present in the Patiala House Court Complex and that the. so-called "interrogation" of Rajinder Kumar outside the court-room of Shri Gogne. accused. In such a situation the anxiety to get the accused identified becomes greater. It was argued that at the relevant time both Davinder Kumar Aggarwal and Rajpal Sharma were present in the Patiala House Court Complex and that the. so-called "interrogation" of Rajinder Kumar outside the court-room of Shri Gogne. was merely a ruse de querre to signal and pin-point the identity of the accused to the witnesses, and that the entire exercise was born out of the anxiety of which we have talked about above We. are inclined to agree. The reason being a significant admission made by Davinder Kumar Aggarwal in his cross-examination wherein he says: "it is correct that on 11-1-84 I had seen Rajidr Kumar accused with Shri Sharma, Advocate. " He thus makes the cat run out of the bag. ( 24 ) WE feel that having come. to know on the 10th that Rajinder Kumar had surrendered in court and was to be produced on the 11th, it was the bounden duty of the Investigating Officer to request the Magistrate for an order that as he wanted to have an identification parade, he should not be produced in court, and the jail authorities should warn him to keep his face muffled or in the alternative the jail authorities should warn the accused that he should keep his face muffled while leaving for the courts on the 11th. Failure on the part of the Investigating Officer to take such precautions makes the whole affair look fishy and inauspicious. ( 25 ) AND while we are on the matter of identification, we may mention that we do expect the Magistrates to record separately the statement of the accused in case of his refusal to participate in an identification parade and to record in the proceedings whether the accused was properly and adequately muffled or not when produced in court. We also expect that where an accused is in judicial custody and an application for holding of identification parade is moved with regard to him be. fore his production court, the Magistrate would immediately inform the jail authorities about the application with a clear direction to them to warn the accused to keep himself properly and adequately muffed. We also expect that till the conclusion of the identification parade or his refusal to participate in the proceeding. fore his production court, the Magistrate would immediately inform the jail authorities about the application with a clear direction to them to warn the accused to keep himself properly and adequately muffed. We also expect that till the conclusion of the identification parade or his refusal to participate in the proceeding. ?, as the case may be, the accused would not be brought to the court premises. ( 26 ) CASES of mistaken identity have been all but innumerable and that is why the Courts have to be. ever vigilant, ever on guard. It need scarcely be said that even a small slip here or there may offer a grave possibility that the innocent may be convicted. Such a brutality has to be avoided. The anxisty is not to have Adolf Becks and their suffering kinds in our midst. ( 27 ) EVIDENCE of identification is to be regarded as inherently weak, least to be relied upon. and in itself, an unsafe basis for conviction. Even a mere. possibility that the accused was or could have been shown would be a sufficient justification for refusal to participate in identification proceedings or to reject identification evidence. [see Tain Singh v. State (Delhi Admn.)1 1987 Crl. L. J. 53 (2) and Parmod Kumar v. State 1990 Crl. L. J. 68 (3) We feel that both Rajinder Kumar and Lila Ram were justified in the present case to refuse to participate in identification proceedings. ( 28 ) COMING to dock identification, it is considered a suspect and inherently of weak nature. To quote from Cross on Evidence (Fifth Edition) : "it might be thought that in criminal cases there could not be better identification of an accused than that of a witness who gees into the box and swears that the man in the. dock is the one he saw coming out of a house at a particular time, or the man who assaulted him. Nevertheless, such evidence is suspect where there has been no previous identification of the accused by the wilness, and this is because its weight is reduced by the reflection that, if there is any degree of resemblance between the man in the dock and the person previously seen by him. The witness may very well think to himself that the. Nevertheless, such evidence is suspect where there has been no previous identification of the accused by the wilness, and this is because its weight is reduced by the reflection that, if there is any degree of resemblance between the man in the dock and the person previously seen by him. The witness may very well think to himself that the. police must have got the hold of the right person, particularly if he has already described the latter to them, with the result that he will be inclined to swear positively to a fact of which he is by no means certain. People have mistakenly identified friends and relations well known to them with sufficient frequency to make them question the propriety of convicting an accused person on nothing more than the visual identification of a single witnes. . who may only have had a fleeting glance of him in poor light. "what we find here is that the accused were strangers to Davinder Kumar Aggarwal. He was examined in court after more than an year of the occurrence. Even otherwise, for what has been discussed by us , he is not a person who inspires our confidence. The only other supporting evidence is of Rajpal Sharma who has rightly been held by the trial judge as unworthy of reliance. Consequently, conviction on the basis of such identification cannot be held to he proper. ( 29 ) A feeble attempt was made to resurrect Rajpal Sharma. The learned trial judge has dissected his evidence with craft and dexterity. We lend him our voice in support. ( 30 ) WAS it not Cicero who said about someone: he saw life clearly and he saw it all. " The Judges have to have that while dissecting evidence and applying law. The totality of the circum- stances must unerringly establish that the. accused arc the real culprit. It is here that the prosecution gets its burial. ( 31 ) WE accept the uppeals and set aside the judgment of conviction and the order of sentence. The appellants stand. acquitted. ( 32 ) WE direct that the judgment be circulated to all the judicial officers and their attention be particularly drawn to the paragraphs relating to the holding of test identification parades.