Criminal Appeal No. 359-DBA of 2000 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 359-DBA of 2000 Date of decision : 21.5.2008 Union Territory, Chandigah .....Appellant Versus Sunil Kumar and others ...Respondents **** CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE S. D. ANAND **** Present: Mr.Sukant Gupta, Addl. Standing Counsel, for the appellant. Mr.Ajay Kaushik, Advocate as Amicus Curiae. S. D. ANAND, J. On 22.7.1995, Kirti Singh PW-4 and Suresh Kumar PW-1 reached near outer road, Sector 45, near Shiv Shakti Mandir, Colony No. 5, U.T., Chandigarh. They were travelling by truck bearing registration No. HR-01-A 4475 on which they were employed as driver and conductor respectively. The vehicle was owned by one Avtar Singh. When they reached the above indicated place, 5 to 7 persons out of a large crowd came in front of the vehicle and signalled it to halt. PW-4 Kirti Singh complied. Some one out of those 5 to 7 persons raised a lalkara that those sitting in the vehicle should be taken out. The exhortation was addressed in the name of Shibu and Jabbar. On hearing it, 3-4 persons entered the truck and forcibly brought down Kirti Singh and Suresh Kumar. Thereafter, both of them were belaboured by Shibu and Jabbar and also Criminal Appeal No. 359-DBA of 2000 -2- **** their companion . It was with great difficulty that Kirti Singh and Suresh Kumar could reboard the vehicle and get away. Even while the vehicle was in the process of speeding away, respondent-accused threw stones, thereby cracking wind screen of the vehicle. The above prosecution presentation did not find favour with the learned Trial Judge. The learned Additional Standing Counsel appearing on behalf of the appellant, argues that the impugned finding deserves to be invalided as it is not based upon proper appreciation of the evidence. For acceptable reasons, the learned Trial Judge recorded a finding that the provisions of Section 149 IPC are not attracted. Apart there from, it was noticed that the identity of the respondents/accused had not been established as no identification parade had been held and as the first informant Suresh Kumar was not familiar with the respondents/accused at all. The following observations were recorded by the learned Trial Judge in that context:- “Moreover, no identification parade was conducted either before the injured or the complainant Kirti Singh. Admittedly, complainant and Suresh Kumar did not know them prior to the incident. It is very strange that what left the police to arrest these accused without establishing their identity. It shows that police had acted only on the whims of the complainant Kirti Singh alone and had not cared to collect more evidence to connect the identity of the accused with the alleged commission of the offence. Therefore, no charge is proved u/s 307/149 IPC against the four accused. It is already established that the prosecution cannot take the aid of section 149 IPC. Criminal Appeal No. 359-DBA of 2000 -3- **** So, the offences u/s 147/148 IPC are, therefore, not made out.” It was further noticed that no MLR of Kirti Singh had been placed on file to prove that Kirti Singh did get injuries in the impugned episode. Qua head injury indicated in Ex. PL on the person of Suresh Kumar which was attributed to Shibu. It was further noticed that there was no such injury which could be attributed to other respondents/accused. Further, learned Trial Court also recorded following observations in support of the finding that the prosecution case was not reliable and offence had been notified to the police after unexplained and inordinate delay:- “Even examining this proposition from other angle, Kirti Singh stated that he mentioned the names of four accused on 24.7.95 at the time of recording of his statement to the Investigating Officer. But in the FIR, there are names of Shibu and Jabbar only. Kirti Singh even stated that names of Shibu and Jabbar were mentioned as the other persons were calling them as such. So, he came to know about their names. He also stated that the names of other accused were told by the persons present in the loaclity. Had the residents tell the names of accused to Kirti Singh (PW-4) why the prosecution has not examined such persons to authenticate their version. There is also unexplained question why police did not come into action till the date, Kirti Singh complainant got the accused arrested i.e. After a gap of one & half month approximately. Admittedly, the incident was occurred on 22.7.1995 and the injured was admitted in the hospital on Criminal Appeal No. 359-DBA of 2000 -4- **** 23.7.95. It was in the evidence that the injured got the medicines from the private doctor, but that doctor was not examined to explain the delay in lodging the F.I.R.” We have examined the finding recorded by the learned Trial Judge in light of the grievances at the hands of the appellant. We find that finding of exoneration proceeds on a factually correct premise. The Court had recorded proper reasoning to hold that prosecution case is not reliable inasmuch as the identity of the respondents/accused as the culprit had not been established and there had been unexplained and inordinate delay in lodging of the FIR. We have not pursuaded to find any illegality or perversity in the appreciation of evidence by the learned Trial Court. We find the appeal to be without any merit. The appeal shall stand dismissed. ( S. D. ANAND ) JUDGE May 21, 2008 (ADARSH KUMAR GOEL) Pka JUDGE