CRA No.1032-SB of 2000 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA No.1032-SB of 2000 Date of decision : 17.11.2010 Virender alias Bijender ...Appellant Versus State of Haryana ...Respondent CORAM: HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. B S Saroha, Advocate, for the appellant. Mr. Kshitij Sharma, AAG, Haryana. JITENDRA CHAUHAN, J. 1. The appellant has come in appeal against the judgment and order dated 19/22.11.1999 (for short as ‘impugned judgment’) passed by the Additional Sessions Judge, Faridabad, (for short as `trial Court') whereby the appellant has been convicted for the offences punishable under Section 457 of the IPC and awarded the sentence to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.1,000/- or in default of payment of fine, to further undergo rigorous imprisonment for a period of one year. 2. Brief facts of the present case, as set up by the prosecution, are that the complainant, Lakhmi Chand, owned two buildings adjacent CRA No.1032-SB of 2000 -2- to each other situated on the Bye-pass Road, Palwal. On the ground floor of one of the buildings occupied by him, he was running his business and the second floor thereof was being used by him as his residence. The other building was in possession of the Punjab National Bank (for short ‘the Bank’). On the intervening night of 14/15 February, 1997 at about 3.00 a.m., the complainant heard some noise from the bank building. On looking around, he spotted a person standing beside a wall. Thereupon, he telephonically informed his nephew-Rajesh Kumar who further informed the Police about the presence of the said suspicious person in the bank building. The Police party headed by S.I. Sawal Singh, the then SHO, Police Station, City Palwal, reached the spot and the complainant joined them. The suspect, who was standing by the side of the wall, came to be identified as accused-Surji, fired a gunshot towards them and managed to escape. The Police party then entered the Bank building through the window, used by the intruders, and reached near the Strong Room of the Bank where one more person was found present. He fired a shot towards the Police party from a country-made pistol, whereupon S.I. Sawal Singh returned the fire and managed to nab him. He was identified as accused-Virender. The instruments/tools used by the accused to break open the window including a hammer, etc., were recovered from the spot and taken into possession vide memo, Ex.PC. A pistol and three cartridges (one empty and two live) were also recovered from the possession of the accused which were sealed separately with seal mark ‘SS’ and the seal was handed over to the complainant. Accused Surji was arrested on 19.2.1997 who suffered a disclosure statement, Ex.PH, whereupon a gas cutter and rubber pipe for cutting the CRA No.1032-SB of 2000 -3- strong room, were got recovered from a place near the Bank premises. 3. After completion of the investigation, both the accused were charge-sheeted under Sections 392, 394, 397 IPC and 25 of the Indian Arms Act, 1959, to which they pleaded not guilty and claimed trial. 4. In order to substantiate its case against the accused, the prosecution examined as many as ten witnesses, namely, PW1-Lakhmi Chand, complainant; PW2-Jangpal Singh, Manager of the Bank; PW3- Lalit Kumar Dung, Senior Manager of the Bank; PW4-S.I. Surajbhan; PW5-Constable Yashin Khan; PW6-Constable Baljinder Singh; PW7- ASI Devi Lal; PW8-SI Sanwal Singh; PW9-Manoj Kumar, Draftsman and PW10-Padam Ahuja, Photographer. 5. When examined under Section 313 of the Code of Criminal Procedure, the accused denied the incriminating circumstances appearing against them in the prosecution evidence and pleaded false implication. No evidence was led in their defence. 6. After hearing learned counsel for both the parties, learned trial Court, acquitted the accused-Surji. The accused-Virender was convicted and sentenced for the offence and term, as noticed at the outset of this judgment. 7. Feeling aggrieved from the judgment of conviction and order of sentence, the appellant has preferred this appeal before this Court; which was admitted vide order dated 07.12.2000. 8. Learned counsel for the appellant submitted that the accused has not been identified either by Lakhmi Chand, complainant, PW1, Jangpal Singh, PW2 or Lalit Kumar Dung, PW3, who were allegedly present at the spot when the appellant was nabbed by the Police Party, CRA No.1032-SB of 2000 -4- therefore, identity of the accused is not proved on record. 9. Learned counsel has further argued that as per case of the prosecution, the recovery was allegedly effected in the presence of PWs 1 to 3, however, Jangpal Singh, PW2 and Lalit Kumar Dung, PW3, have not supported the case of the prosecution on this point. Although, Lakhmi Chand, complainant, PW1, has stated that the country-made pistol was recovered from the possession of the accused yet this witness has denied the recovery of cartridges. 10. The learned counsel has further argued that the pistol and the cartridges allegedly recovered from the possession of the accused were never produced before the Court and in view of non-production of the case property, the recovery becomes doubtful. 11. The learned counsel has further argued that the alleged recovery from co-accused, Surji, was effected in the presence of one Dev Rattan, who was not examined by the prosecution and this fact casts a serious doubt on the veracity of the prosecution case. 12. The learned counsel has lastly argued that as per the case of the prosecution, the appellant fired upon the Police party from a close range, surprisingly, neither the fire hit anybody present there, nor any recovery of pellets was effected from the spot. 13. On the other hand, learned counsel for the State submitted that the prosecution witnesses were examined after a long gap of 22 months, therefore, no adverse inference can be drawn from the fact of their failure to identify the accused-appellant. He has further argued that it has come in the statement of Lakhmi Chand, PW1, that a country-made pistol was recovered from the possession of the accused-Virender. CRA No.1032-SB of 2000 -5- 14. I have heard learned counsel for the parties and perused the record. 15. The FIR in the instant case was registered on the statement of Lakhmi Chand, PW1, who has named Surji as one of the accused. This is not the case of the prosecution that the accused were known to the complainant. Naming of Surji by the complainant itself goes to the root of the matter and makes the entire case of the prosecution doubtful. The fact that Lakhmi Chand, complainant, PW1 and Jangpal, PW2, have failed to identify the accused in the Court, cannot be lost sight of. PW1- Lakhmi Chand and PW2-Jangpal, star witnesses failed to identify the accused as a person who was caught at the spot. In Parlhad Vs. State of Haryana, 2007(3) RCR 387, the complainant failed to identify the accused and no test identification parade was held as the accused refused to join the test identification parade. This Court set aside the conviction of the accused. Similar view was taken in Gopa Tiwari Vs. State of West Bengal, 2008(4) AICLR 666. In this case also, the benefit of doubt was extended to the appellant therein. 16. During the course of investigation, pistol, cartridges, gas- cutter and other articles were allegedly recovered from the appellant. However, the prosecution has not produced the case property before the learned trial Court at any stage. Non-production of case property before the Court itself is fatal to the case of the prosecution. The prosecution version stands further falsified from the fact that no recovery of the pellets was effected from the site which was an enclosure. 17. Another aspect of the matter which attracts attention of this Court is that as per the statement of the complainant, he spotted the CRA No.1032-SB of 2000 -6- accused-appellant from the top floor of his house. He made a phone call to his nephew-Rajesh Kumar, who subsequently informed the Police. However, for the reasons best known to the prosecution, said Rajesh Kumar has not been cited as a witness. This very fact erodes the credibility of the entire prosecution version and, therefore, the link evidence is missing. 18. In the circumstances, there is no material on record to sustain the judgment and order passed by the learned trial Court. Accordingly, the present appeal is allowed and the impugned judgment and order passed by the learned trial Court is hereby set aside. The appellant is acquitted of the charge. 19. The appellant is stated to be on bail. His bail bonds shall stand discharged. November 17, 2010 (JITENDRA CHAUHAN) atulsethi JUDGE Note : Whether to be referred to reporter ? Yes/No