Criminal Appeal No. 125-DB of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 125-DB of 1999 Dated of Decision: 07.01.2009 1. Darshan Singh s/o Joginder Singh r/o Village Kangarh, Tehsil Sunam, Distt. Sangrur. 2. Jagjit Singh s/o Kartar Singh, r/o Village Amani, Tehsil Tohana, Distt. Hisar. 3. Sewa Singh s/o Chetan Singh, r/o Village Balra, Tehsil Sunam, Distt. Sangrur. 4. Leela Singh s/o Sohan Singh, r/o Village Chotia, Tehsil Sunam, Distt. Sangrur. 5. Gurpiara Singh s/o Janak Dass, r/o Balra, Tehsil Sunam, Distt. Sangrur. ... Appellants Versus The State of Haryana. ...Respondent CORAM: HON'BLE MR. JUSTICE K.S. GAREWAL HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. R.S. Cheema, Senior Advocate, with Mr. J.S. Mehndiratta, and Mr. Aman Pal, Advocates, for the appellants. Mr. H.S. Saran, Additional Advocate General, Haryana for the respondent. Criminal Appeal No. 125-DB of 1999 2 SHAM SUNDER, J. This appeal is directed, against the judgment of conviction, and the order of sentence, dated 05.02.1999, rendered by the Court of Additional Sessions Judge, Hisar, vide which, it convicted the accused (now appellants) and sentenced them as under:- Names of the accused (now appellants) Offence for which convicted Sentence awarded 1 2 3 (a) (b) (c) (d) (e) Darshan Singh Jagjit Singh Sewa Singh Leela Singh Gurpiara Singh (a) (b) Under Section 302 read with Section 149 of the Indian Penal Code. Under Section 147 of the Indian Penal Code. Imprisonment for life each and to pay Rs. 5000/- each, as fine. In default of payment of fine to undergo further rigorous imprisonment for two years each. Rigorous imprisonment for a period of two years each and to pay a fine of Rs. 1000/- each, and in default of payment of fine, to undergo further rigorous imprisonment, for a period of one month each. (a) (b) (c) Darshan Singh Sewa Singh Gurpiara Singh (a) Under Section 148 of the Indian Penal Code. Rigorous imprisonment, for three years each and to pay Rs. 1000/- each, as fine, and, in default of payment of fine, to undergo further rigorous imprisonment, for a period of one month each. Criminal Appeal No. 125-DB of 1999 3 The substantive sentences of imprisonment were, however, ordered to run concurrently. 2. The facts of the prosecution case, as summarized, proceeded in the manner, that on 22.11.1991, Sukhdev Singh son of Joginder Singh resident of village Dhindsa, District Sangrur (Punjab), had come to Tohana alongwith his uncle Shyam Singh, in connection with some personal work. They could not get bus, for their return journey. Thus, they were going along Tohana-Chandigarh road, in the hope, that they would come across some passing truck, and take a lift therein, for return to their village. At about 6.00 P.M., a red coloured truck, parked on the road side, was noticed by them. The registration number of the truck was not visible, as the mud was sticking, on its number plate. There was light, in the cabin of the driver of the truck. Two sikh gentlemen of young age were found sitting in the cabin. A jeep of green colour, parked on the road side, was also noticed by them. Two sikh and one clean shaven youths, were seen by them, sitting in the jeep, in the light thereof. In the meanwhile, Major Singh, brother of Sukhdev Singh, came from the direction of Munak, riding a motor- cycle, bearing No. DBW-4004. One person was the pillion rider of the motor-cycle. When the driver of the truck saw the motor-cycle, coming from the opposite direction, he switched on the engine of the same (truck) and moved the same (truck), in the direction of the motor-cycle. The side of the truck was hit against the motor-cycle, as a result whereof, it fell down. The pillion rider came under the motor-cycle, on Criminal Appeal No. 125-DB of 1999 4 account of strike of the side of the truck, against the same. Major Singh, the rider thereof, started fleeing towards the fields. Three young men, who were occupants of the jeep, fired shots, from pistols, at the pillion rider, who was lying under the motor-cycle. Thereafter, they chased Major Singh, in the fields, with their jeep. Major Singh, left the fields and tried to take shelter in a shop. One young man, then fired a shot from pistol, from a close range, at Major Singh, which hit the left side of his temple. Major Singh fell down. The second occupant of the jeep then fired a shot from his pistol, which hit Major Singh, on the right side of his abdomen. Thereafter, the assailants fled with the jeep, and the truck towards Munak. Thereafter, Sukhdev Singh and Shyam Singh, went near the place where, Major Singh, and the pillion rider of the motor-cycle were lying, and found that they had succumbed to the fire arm injuries, caused on their person, by the assailants. 3. The motive for the occurrence, was stated by Sukhdev Singh, in the manner, that his brother Major Singh, had illicit relations with Guddi, daughter of Bhagwan Singh Arora, resident of Tohana, whose husband Palla had already died. After the death of Palla, Major Singh, was cultivating 25 acres of agriculture land, inherited by Guddi, from her former husband Palla. Guddi and Major Singh, were living together, at Tohana. He suspected that his brother Major Singh and the person accompanying him, on the pillion of the motor-cycle, were liquidated, at the instance of Bhagwan Singh Arora and Mahender Singh, residents of village Chander Khurd, by their men. It was further Criminal Appeal No. 125-DB of 1999 5 stated that he (Sukhdev Singh) and his uncle Shyam Singh, could identify the assailants, if they come across them. 4. After leaving his uncle, Shyam Singh, to guard the dead- bodies aforesaid, he went to the Police Station and made statement PQ, in the aforesaid manner, which formed the basis of recording the First Information Report. 5. Thereafter, Shiv Dayal, Sub-Inspector/Station House Officer of the Police Station, reached the spot, and got the photographs of the same taken. Karnail Singh, Incharge Finger Prints Team, was present at the spot. The spot was got inspected from him. The inquest reports PR of the dead-body of Major Singh, deceased, and PS of the dead-body of Gurjant Singh, deceased, were prepared by Shiv Dayal, Station House Officer. The dead-body of Gurjant Singh, was identified by Gurdev Singh and Ajmer Singh, whereas, the dead-body of Major Singh, was identified by Sukhdev Singh and Shyam Singh, his relations. Application PT, to get the post-mortem examination conducted, on the dead-body of Major Singh and PU, to get the post- mortem examination conducted, on the dead-body of Gurjant Singh, were moved by Shiv Dayal, Station House Officer, before the Medical Officer, Civil Hospital, Tohana, who conducted the same. 6. From the spot, Shiv Dayal, lifted the moulds of the tyres of the vehicles. The same were taken into possession, vide seizure memo exhibit PV. The statements of Karnail Singh and Shyam Singh, under Section 161 of the Code of Criminal Procedure, were recorded, at the Criminal Appeal No. 125-DB of 1999 6 spot, on 22.11.1991. The site plan exhibit PW of the place of occurrence was prepared by Shiv Dayal, Station House Officer. 7. On 23.11.1991, the blood stained earth, from the spot, a chhadar, having blood stains, two turbans and two pairs of shoes, were lifted from the spot. The same were converted into different parcels, duly sealed with the seals, bearing impression 'SD'. The motor-cycle, bearing No. DBW-4004, and its registration certificate, were also lifted from the spot. The aforesaid articles, were taken into possession, vide memo PG, attested by Jagrup Singh and Assistant Sub Inspector Ram Avtar. Ram Chander, Constable, had given two parcels, containing the clothes of deceased Major Singh, handed over to him, after post- mortem examination of his dead body, which were taken into possession, vide memo exhibit PX. Dharam Pal, Constable, gave a parcel, containing clothes of Gurjant Singh, deceased, which were handed over to him, after conducting post-mortem examination, which was taken into possession, vide memo PY. 8. On 29.11.1991, a secret information, with regard to the whereabouts of all the accused was received, by Shiv Dayal, Station House Officer. A picket was held, by him, on Punjab & Haryana border, on the road, leading to Chandigarh-Tohana. In the meanwhile, Darshan Singh, came in a truck, whereas, Leela Singh, came in a jeep, alongwith Gurpiara Singh, Sewa Singh and Jagjit Singh. They were stopped and arrested, in this case. Truck bearing No. HRF 5297, the driver whereof, was Darshan Singh, at that time, was also taken into Criminal Appeal No. 125-DB of 1999 7 possession, vide seizure memo PP. Sewa Singh, was having a chhadar wrapped around him. A broken gun and two cartridges were found under-neath the same. The same were taken into possession, vide seizure memo PL, after preparing the sketch thereof, PM. 9. On search of Leela Singh, it was found, that he was having a 12 bore pistol and two live cartridges, in the right fold of his chhadar. The same were converted into parcels, and taken into possession, vide seizure memo PJ, after preparing sketch PI of the same. 10. The personal search of Gurpiara Singh, was also conducted. It was found that he was having a 12 bore country-made pistol, and two live cartridges, in the pocket of the pant, worn by him. The same were converted into parcels, and taken into possession, vide seizure memo PN, after preparing the sketch PM thereof. Jeep bearing registration No. HNG 5658, was also taken into possession, vide seizure memo PO. Site plan of the place PZ, where the accused were arrested, was prepared. After the completion of investigation, the accused were challaned. 11. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received, by commitment, charge under Section 147 of the Indian Penal Code, against Darshan Singh and Jagjit Singh, under Section 148 of the Indian Penal Code, against Sewa Singh, Leela Singh and Gurpiara Singh, as also, under Section 302 read with Section 149 Indian Penal Code, against all the Criminal Appeal No. 125-DB of 1999 8 accused, was framed, which was read-over and explained to them, to which they pleaded not guilty, and claimed judicial trial. 12. The prosecution, in support of its case, examined Pala Ram, Patwari Halqa Tohana (PW1), who prepared the scaled site-plan PA, Jagrup Singh son of Pritam Singh (PW2), brother-in-law of Major Singh, deceased, in whose presence, the Police lifted blood stained earth, one chhadar, from near the shop, alongwith pair of shoes, from the fields and took the same into possession, vide memo PG, Amar Singh (PW3), a photographer, who went to the spot, on 22.11.1991, on the request of the Police, and took the photographs PG/1 to PG/8, the negatives whereof, are PG/9 to PG/16, Guddi wife of Tej Parkash (PW4), who did not support the case of the prosecution, regarding motive that she was allegedly having illicit relations with Major Singh, Mohinder Singh, Head Constable (PW5), who associated with the Investigating Officer, during the course of investigation, Sukhdev Singh (PW6) and Shyam Singh (PW7), the eye-witnesses, Shiv Dayal, Sub Inspector, the then Station House Officer of the Police Station, Investigating Officer (PW8), Dr. Prem Verma (PW9), who conducted the post-mortem examination, on the dead-body of Gurjant Singh and Dr. Sunil Sethi (PW10), who conducted the post-mortem examination, on the dead-body of Major Singh. 13. The Public Prosecutor, for the State, tendered into evidence affidavit of Raj Kumar, exhibit DB, affidavit of Prem Pal, Constable, exhibit DC, affidavit of Ramesh Chander, Constable, exhibit PD, Criminal Appeal No. 125-DB of 1999 9 affidavit of Jagjit Singh, Constable, exhibit PE, reports of the Chemical Examiner, PF, PF/1, PF/2 and PF/3, and sanction order, exhibit PE. Karnail Singh, Finger Prints Expert, Shamsher Singh and Ram Singh, Constables, were given up, as unnecessary, by the Public Prosecutor, for the State. Thereafter, he closed the prosecution evidence. 14. The statements of the accused under Section 313 Cr.P.C., were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. They, however, tendered in defence evidence DE, DF and DG, the judgments, vide which, they were acquitted for the offences, under the Arms Act, relating to the arms, allegedly recovered from them, in the instant case. Thereafter, they closed, their defence evidence. 15. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 16. Feeling aggrieved, the instant appeal, was filed by the appellants. 17. We have heard the Counsel for the parties, and have gone through the record of the case, carefully. 18. The Counsel for the appellants, submitted that the prosecution miserably failed to prove, that the accused were the perpetrators of crime, as their identity, could not be established, beyond a reasonable doubt, as the alleged occurrence, took place, in the Month Criminal Appeal No. 125-DB of 1999 10 of November, at about 7.15 P.M., as per the statement of Sukhdev Singh, when there was complete darkness and no source of light at the spot. He further submitted that the accused, therefore, did not stand connected with the instant crime, but the trial Court, was wrong, in recording their conviction and awarding sentence to them. It was further submitted by him that even the presence of Sukhdev Singh and Shyam Singh, the two alleged eye-witnesses, at the time of the alleged occurrence, did not stand proved. He further submitted that a crude attempt was made, by the Police, to introduce them, as eye-witnesses of the crime. He further submitted that they could not identify the accused, as alleged perpetrators of crime, nor did mention their names nor complete description in the First Information Report. He further submitted that the accused were never produced, in the Court, in muffled faces. Even the accused, after the recording of the First Information Report, when they were, in the Police Station, were shown to the witnesses, and, as such, they, in the first instance, refused to participate, in the identification parade, but later on, when they again made an application for participation, in the identification parade, the same was declined by the concerned Court. He further submitted that even the vehicles were not shown, to the eye-witnesses, during the course of their statements, in the Court. He further submitted that even the motive, set up by the prosecution, was not proved. It was further submitted by him, that even the vehicles i.e. jeep and the truck, were not shown to the witnesses, nor got identified from them, during the Criminal Appeal No. 125-DB of 1999 11 course of evidence of the prosecution. He further submitted that both these witnesses were tutored to give false statements, in the Court. He further submitted that the accused were acquitted, in separate cases, registered against them, for allegedly having been found in possession of arms, without any licence, allegedly used, in the instant case, vide judgments DE, DF and DG, by the Court of Additional Sessions Judge, Hisar. He further submitted that, thus, the judgment of conviction and the order of sentence, rendered by the trial Court, are unsustainable, in the eyes of law, and liable to be set-aside. 19. On the other hand, the Counsel for the respondent, submitted that the FIR was lodged, in this case, promptly and, as such, it could not be said that Sukdev Singh and Shyam Singh, eye- witnesses, were not present, at the spot, at the time of occurrence. He further submitted that the jeep, truck and the weapons of offences, were also recovered from the accused. He further submitted that the accused, when produced, in the Court of the concerned Magistrate, on 30.11.1991, refused to participate, in the identification parade. He further submitted that, in case, they had any doubt, with regard to their identity, as the perpetrators of crime, they could participate, in the identification parade. He further submitted that refusal, on the part of the accused to participate in the identification parade, showed that they were the actual perpetrators of crime. He further submitted that the medical evidence corroborated the statements of Sukhdev Singh and Shyam Singh. It was further submitted by him that Bhagwan Singh, Criminal Appeal No. 125-DB of 1999 12 was the owner of the jeep, in question, and Mohinder Singh, was the owner of the truck, in question, at whose instance, the accused committed the murder of Major Singh and Gurjant Singh. He further submitted that since both the prosecution witnesses namely Sukhdev Singh and Major Singh, are uneducated, and if made some improvements, in their depositions, the same could be ignored. He further submitted that the judgment of conviction and the order of sentence, rendered by the trial Court, are based on the correct appreciation of evidence and law, on the point, and deserve to be upheld. 20. After giving our thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in our considered opinion, it is a fit case, in which, the appeal, deserves to be accepted, for the reasons, to be recorded, hereinafter. Coming to the identity of the appellants, as the alleged perpetrators of crime, it may be stated here, that in the statement exhibit PQ of Sukhdev Singh, which formed the basis of the First Information Report, neither the names of the accused, nor their parentage, nor their villages, nor their complete description, were given. The alleged occurrence took place, on 22.11.1991, at about 7.15 P.M. as stated by Sukhdev Sigh (PW6). Neither the faces of the accused, when there was no source of light, nor the number of the truck, nor the number of the jeep, were visible to Sukhdev Singh and Shyam Singh. No doubt, Sukhdev Singh, PW6, during the course of his examination-in-chief, identified the accused, Criminal Appeal No. 125-DB of 1999 13 by touching them, in the trial Court. However, during the course of his cross-examination, it was stated by him, that he was not familiar with the accused, prior to the date of occurrence. He further stated that he had seen the accused, in the Police Station, after they had been arrested. He further stated that he was called by the Police, after three days of the registration of the First Information Report, for identification of the accused, who were in Police lock-up, at that time. He further stated that he had not seen the truck and the jeep subsequent to the day of the impugned occurrence. He also stated that he had not given the heights, girth and ages of the assailants, in the First Information Report. Sukhdev Singh, is a resident of village Dhindsa, District Sangrur (Punjab) and the alleged occurrence took place, in the area of Tohana (Haryana). Shyam Singh, PW7, made a vague statement, in his examination-in-chief, to the effect, that the accused present, in the trial Court, were the occupants of the truck, and the jeep, at the time of the occurrence. However, during the course of his cross-examination, he stated that he was familiar with the accused, prior to the date of alleged occurrence, as they were of adjacent village. He stated that he gave the names of their village, in his statement under Section 161 of the Code of Criminal Procedure, but when he was confronted with his statement exhibit DB, this fact was not found recorded therein. He further stated that, he did not give their names to the Police, as he was not familiar with the same prior to that. He further stated, during the course of his cross-examination, that he was familiar with their faces, but not their Criminal Appeal No. 125-DB of 1999 14 parentage. He further stated, during the course of his cross- examination, that he had given the girth of the accused, to the Police, in his statement, under Section 161 of the Code of Criminal Procedure, by telling that, two of them were slim, one was of medium height and two were of heavy weight, but when, he was confronted with DB, his statement, under Section 161 of the Code of Criminal Procedure, this fact was not found recorded therein. He could not explain, as to how, the aforesaid improvements were made by him. It was also stated by him, during the course of his cross-examination, that he saw the accused, in the Police lock-up, after their arrest. From the careful reading of the statements of both these witnesses, it becomes abundantly clear, that none of them, was earlier known to the assailants, who allegedly committed the crime. They even could not recollect, the description of the assailants, who committed the murder of Major Singh and Gurjant Singh. On 22.11.1991, as submitted, by Mr. R.S. Cheema, Senior Advocate, Counsel for the appellants, the sun had set at 5.23 P.M. Since, as per the statement of Sukhdev Singh, PW6, the occurrence took place at 7.15 P.M., it means that there was complete darkness and without any source of light and without any previous familiarity of the accused with these witnesses, they could not possibly identify them. No other evidence was produced, in the case, to prove the identification of the accused, as the perpetrators of the alleged crime. It was the bounden duty of the prosecution to establish their identity, beyond a reasonable doubt. Once the prosecution fails to Criminal Appeal No. 125-DB of 1999 15 establish the identity of the accused, beyond a reasonable doubt, as the perpetrators of crime, they are not connected with the case. The identification of the accused by Sukhdev Singh and Shyam Singh, prosecution witnesses, in the Court, for the first time, after a number of years, was hardly of any value. Reference, in this regard, may be made to Kanan Vs. State of Kerala, 1979 SCC (Crl.), 621 . No doubt, it is evident, from the application, lying at page 161, which is unexhibited, of the Committing Court record, that when the accused, for the first time, on 30.11.1991, after their arrest, in this case, were produced for judicial remand, a request was also made therein, that they be asked to participate, in the identification parade. However, there is no mention, in this application, that the accused were being produced in muffled faces, or they had been directed to muffle their faces. It means that they were produced with naked faces. No order was also passed by the Judicial Magistrate, Tohana, on this application of 30.11.1991, that the accused were produced, before him, in muffled faces and not with naked faces. However, it is evident from the order dated 30.11.1991, that the accused made separate statements, refusing to join the identification parade, on the ground, that they had already been shown to the witnesses concerned. As stated above, the accused were shown to the witnesses, after their arrest, when they were in Police lock-up. Since they had already been shown to the witnesses, after their arrest, when they were in Police lock-up, their refusal to participate in the identification parade, was completely justified. In similar Criminal Appeal No. 125-DB of 1999 16 circumstances, in Prahlad Singh Vs. State of Madhya Pradesh (1997) 8 Supreme Court Cases, 515, when a child witness, in a case, under Section 376 of the Indian Penal Code, stated in the Court, that the accused had been shown to her, outside the Court, and she was tutored by the Police, the identification of the accused, for the first time, in the Court, in the substantive evidence of that witness was held to be unacceptable by the Apex Court. Later on, an application was filed, by the accused, on 23.12.1991, which is at page 153 of the Committing Court record, that at the time, they made statements, that they did not want to