Crl.Appeal No.588-DB of 2005 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.588-DB of 2005 Date of decision: 9.3.2010 Maghar Singh @ Bamb and others ... Appellants versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL. HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.S.S.Rana, Advocate, for the appellants. Ms.Gurveen H.Singh, Addl.AG, Punjab. ... JORA SINGH, J. Maghar Singh @ Bamb and Balbir Singh @ Bilu @ Gadd, sons of Natha Singh @ Nikku, residents of Akrot, PS Amb, HP, and Sital Raj son of Gurdial @ Juma, resident of Mohalla Ram Nagar, District Sangrur, preferred this appeal to impugn the judgment dated 28.7.2005 rendered by Additional Sessions Judge (Ad-hoc), Fast Track Court-II, Hoshiarpur, in Sessions Case No.15 of 2004 arising out of FIR No. 251 dated 25.7.2003 under Sections 459/460/148/149 IPC, Police Station Sadar, Hoshiarpur. By the said judgment, they were convicted under Sections 460 and 148 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.5000/-, in default of payment of fine, to further undergo imprisonment for six months each under Section 460 IPC and to undergo rigorous imprisonment for two years and to pay a fine of Rs.500/-, in default of payment of fine, to further undergo imprisonment for three months each under Section 148 IPC. Crl.Appeal No.588-DB of 2005 2 Prosecution story, in brief, is that on 25.7.2003, ASI/SHO Dilbagh Singh, Police Station Sadar, Hoshiarpur, received wireless message from Police Station Model Town, Hoshiarpur, to the effect that Jatinder Kumar, Bhagwanti, Parminder Kumar, Neelam, Raj Kumar and Vijay Kumar were lying admitted in Civil Hospital, Hoshiarpur. On receipt of information, ASI Dilbagh Singh had gone to Civil Hospital, Hoshiarpur. After getting opinion from the doctor regarding fitness of the injured, statement of Vijay Kumar (Ex.PA) was recorded. Vijay Kumar reported to the police that he was the resident of Bajwara Kalan. On the intervening night of 24/25.7.2003 at about 1.00 AM, he heard noise from the house of his cousin brother Parminder Kumar. On hearing noise, he woke up and sighted 10-12 persons armed with different weapons present in his house and started causing injuries with kirpans, ghotonas, dandas and datters to Parminder Kumar, Mohinder Kaur, Jatinder Kumar, Bhagwanti, Neelam Kumari, Hans Kaur, Manjit Kaur and Raj Kumar. They were also threatened to hand over whatsoever they had. After that, accused started searching the iron box kept in their room. Out of fear, they all kept on sitting. Accused had also snatched ear rings from the ears of ladies present in the house. Accused were of the height of 5 feet 3/4 inches of black colour and were speaking Hindi. Costly items were stolen from the iron box. Jatinder Kumar has succumbed to his injuries. Injuries were caused to them by entering into their house with an intention to rob the costly items. Statement (Ex.PA) was read over and explained to Vijay Kumar, who signed the same in token of its correctness. After making endorsement at 9.10 AM, statement was sent to the Police Station, on the basis of which, DDR No.8 dated 25.7.2003 was recorded at 9.30 AM. Crl.Appeal No.588-DB of 2005 3 ASI Dilbagh Singh moved application (Ex.PC) for conducting postmortem examination on the dead body of Jatinder Kumar and after postmortem examination, dead body was handed over to the relatives of the deceased for cremation. On 26.7.2007 by moving different applications, opinion was sought from the doctor regarding fitness of injured. Doctor declared the injured fit to make statements. Then statements of the injured were recorded under Section 161 Cr.P.C. On 7.8.2003, accused were arrested in FIR No.42 dated 29.1.2003 under Sections 458/380 IPC (in an another case). Accused were interrogated and suffered confessional statements (Ex.PX, PY and PZ) dated 7.8.2003, that on the intervening night of 24/25.7.2003, they along with other co-accused had committed crime in a house situated in Village Bajwara. It is pertinent to mention here that in those confessional statements, appellants confessed to have committed 13 such cases of robbery and theft including the present one. On 10.8.2003, accused were arrested in the present case by SI Karamvir Singh. They were interrogated, who suffered disclosure statements separately that they had committed dacoity in two houses in Village Bajwara and gold ornaments were kept concealed. In pursuance of disclosure statements (Ex.PW13/1, PW13/2 and PW13/3), the accused got recovered gold ornaments from the specified places. Gold chain and pair of gold tops were got recovered by accused Maghar Singh from the specified place and the same were taken into police possession vide memo (Ex.PW13/4). Accused Balbir Singh got recovered one gold ring and five pairs of ear rings from the specified place. Recovered articles were taken into police possession vide memo (Ex.PW13/5). Accused Sital got recovered one gold chain from the Crl.Appeal No.588-DB of 2005 4 specified place and the same was taken into police possession vide memo (Ex.PW13/6). On 15.7.2003, complainant Vijay Kumar came to the Police Station. MHC Jagjit Singh had produced number of gold ornaments and from those ornaments, Vijay Kumar had identified his own gold ornaments. After identification of gold ornaments, same were deposited with the MHC. After completion of investigation, challan was presented in the Court. Accused were charged under Sections 148/459/460/149 IPC, to which they pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined PW1 Vijay Kumar, PW2 Parminder Kumar, PW3 Neelam Rani, PW5 Harbans Kaur and PW6 Mohinder Kaur, all injured. They have supported the prosecution story by saying that on the intervening night of 24/25.7.2003, accused came to their house armed with weapons and had caused injuries to them. Valuable articles were taken away by the accused. PW4 Dr.Satpal Singh had conducted postmortem examination on the dead body of Jatinder Kumar and found the following injuries on his person:- “1. Diffused swelling 10 x 12 cm over occipital region extending to back of neck involving right occipital parietal region, with lacerated wound 2 x 5 cm on occipital parietal region over the swelling. On dissection, clots are present under scalp. On further dissection, haematoma present in sub dural and brain material filling the sulci in occipital and right occipital parietal region. Crl.Appeal No.588-DB of 2005 5 2. Abrasion 1 x 1 cm on right side of chin. 3. Abrasion left thumb on the dorsal side 2 x 1 cm in size. 4. Abrasion 1 x 1 cm over right little toe. Cause of death was due to shock and haemorrhage due to head injury (to brain), which was sufficient to cause death in ordinary course of nature. All the injuries were found to be ante mortem in nature. PW7 Dr. Vinod Sareen stated that injuries on the person of Bhagwanti, Parminder Kumar, Manjit Kaur, Daljit Kaur, Neelam and Vijay Kumar were x-rayed, and as per report, no bone injury was detected on their person. PW8 Dr.Gurbachan Singh stated that Manjit Kaur, Bhagwanti, Vijay Kumar, Neelam, Parminder Kumar, Hanso, Raj Kumar, Mohinder Kaur and Daljit Kaur remained under his treatment. PW9 Dr.Bhupinder Singh stated that on 25.7.2003, Mohinder Kaur, Raj Kumar, Neelam Kumari, Manjit Kaur, Parminder Kumar, Daljit Kaur and Hanso were declared unfit to make statements but on 26.7.2003, they were declared fit to make statements. PW10 Dr. Chunni Lal stated that on 25.7.2003, he had medico legally examined Bhagwanti, Parminder Kumar, Manjit Kaur, Daljit Kaur, Neelam, Mohinder Kaur, Raj Kumar, Hanso and Vijay Kumar and found the following injuries on their person:- “Bhagwanti 1. Abrade skin triangle shape on right cheek. 2. Irregular lacerated wound on right external ear on both the surfaces across its length. Cartilage was also torn irregularly (ENT Specialist opinion).” Crl.Appeal No.588-DB of 2005 6 Parminder Kumar 1. A lacerated wound 7.5 cm x 0.5 cm was present on the right side of head 6.5 cm above the right ear pinna and 2.5 cm from frontal hair line. It was obliquely placed. Fresh bleeding was present. It was bone deep (Advised surgical opinion). 2. A 5 cm x 0.5 cm lacerated wound on the right side of forehead extending from upper part of middle of bridge of nose (between two eyes) extending transversally through the middle of right eye brow. Fresh bleeding was present. Advised surgical opinion. 3. Fresh bleeding was present from both the nostrils. Both the nostrils were swollen. Advised ENT opinion. 4. A 3 cm x 0.7 cm lacerated wound was present on the upper part of back of head about 15 cm above the posterior hair line and 15.5 cm above the upper part of pinna of right ear. It was bone deep with fresh bleeding. Advised surgical spl. Opinion. 5. A lacerated wound 4 cm x 0.5 cm with fresh bleeding bone deep on the back of head, left and 8 cm. from left ear and 5.5 cm from posterior hair line. Advised surgical specialist opinion. Manjit Kaur 1. A lacerated wound 2.5 cm x 0.4 cm was present on the right side of face, 3 cm below and lateral to the right angle of mouth. It was bone deep. Fresh bleeding was Crl.Appeal No.588-DB of 2005 7 present. Advised x-ray. 2. Fresh bleeding was present from both the nostrils. Both the nostrils were swollen and tender. Advised ENT Specialist opinion. 3. Fresh bleeding was present from the right ear. Advised ENT Specialist opinion. 4. There was diffusing swelling 5 cm x 3 cm on the right side of head, 6.5 cm above the right ear and 7.5 cm from the frontal hair line. Advised Surgical Specialist opinion. Daljit Kaur 1. A lacerated wound 6 cm x 1 cm on the left side of forehead. Advised x-ray and surgical specialist opinion. 2. 12 cm x 0.4 cm skin deep incised wound on the right side of cheek. Advised x-ray. Neelam 1. A lacerated wound 6 cm x 1.5 cm on back of head bone deep. Advised x-ray and surgical specialist opinion. 2. Reddish contusion on the left shoulder. Advised Ortho. Opinion. Mohinder Kaur 1. L shape lacerated wound ( 8 cm/6 cm) profusely bleeding on top of head bone deep. Advised x-ray and surgical specialist opinion. 2. Irregular 1.5 cm abrasion on right cheek. Advised x-ray. Raj Kumar Crl.Appeal No.588-DB of 2005 8 1. A lacerated wound 3 cm x 0.5 cm on left upper eye lid with 1 cm depth with fresh bleeding. 2. 4 cm x 1 cm lacerated wound below left eye semi circular in shape. Advised eye and surgical specialist opinion for injury No.1 and 2. 3. Two lacerated wounds 4.5 cm x 0.5 cm and 2.5 cm x 0.4 cm were present on the palmer aspect of base of top and middle falanges of left hand (middle fingers) traversally placed with fresh bleeding bone deep. Advised ortho. Opinion. 4. Lacerated wound 2 cm x 0.5 cm behind left ear. 5. a lacerated wound 3 cm x 0.5 cm over occipital region 8 cm from right ear. 6. Lacerated wound 4 cm x 05. cm on occipital region 5 cm from right ear. Hanso 1. A lacerated wound 2 cm x 0.2 cm was present on the right side of lower lip with fresh bleeding. 2. A lacerated wound 2.5 cm x 0.5 cm was present on the right side of face about 3 cm below and left to the right angle of mouth. It is bone deep with fresh bleeding. Advised dental surgeon opinion. The above wound was surrounded by a swelling about 4 cm x 4 cm. Tender on palpation. Advised dental surgeon opinion. 3. Fresh bleeding was present from the mouth. Advised dental surgeon opinion. Crl.Appeal No.588-DB of 2005 9 4. a lacerated wound 3.5 cm x 0.5 cm was present on the back of head 5 cm above the posterior hair line. It was 8.5 cm from the upper part of left ear pinna. It was bone deep. Fresh bleeding was present. Advised surgical specialist opinion. 5. There was defused swelling of about 8.5 cm x 7.5 cm present on the back of right hand. Tender on palpation. Movements of the hand were painful and advised ortho. Opinion. Vijay Kumar 1. A lacerated wound on the left side of head 6 cm x 0.8 cm with fresh bleeding. Anterior posterior in direction, bone deep and 8 cm from the upper border of left ear pinna. (Advised surgical opinion). 2. There was lacerated wound on the back of proximal inter phalangeal joint. It was 1.2 cm x 0.3 cm skin deep with surrounded swellings. Advised Ortho. Opinion.” PW11 Arjan Singh, Draftsman, had prepared scaled site plan (Ex.PB) with correct marginal notes. PW12 ASI Gopal Singh stated that on 7.8.2003, he had arrested the accused in FIR No.42 dated 29.1.2003 under Sections 458/380 IPC and interrogated them. Accused had suffered confessional statements (Ex.PX, Ex.PY and Ex.PZ). PW13 SI Karamvir singh stated that on 10.8.2003 he had interrogated accused Maghar Singh, Balbir Singh and Sital, who had suffered disclosure statements, Ex.PW13/1, Ex.PW13/2 and Ex.PW13/3, Crl.Appeal No.588-DB of 2005 10 respectively. In pursuance of disclosure statements, accused got recovered different gold articles from the specified places. Recovered articles were taken into police possession vide memos., Ex.PW13/4, Ex.PW13/5 and Ex.PW13/6. PW14 HC Avtar Singh stated that on 25.7.2003, dead body of Jatinder Kumar was handed over to him for postmortem examination and after postmortem examination, dead body was handed over to the relatives of the deceased for cremation. PW15 ASI Dilbagh Singh stated that on 25.7.2003, intimation was received from Police Station, Model Town, Hoshiarpur, regarding admission of Vijay Kumar and others in Civil Hospital, Hoshiarpur, and on receipt of information, he had gone to Civil Hospital, Hoshiarpur. After getting opinion from the doctor regarding fitness of injured, statement of Vijay Kumar was recorded. After making endorsement, statement was sent to the police station, on the basis of which, formal FIR was recorded. Application (Ex.PC) was moved for conducting postmortem examination on the dead body of Jatinder Kumar. Other injured were found to be unfit to make statements. After close of the prosecution evidence, statements of accused under Section 313 Cr.P.C. were recorded. They denied all the prosecution allegations and pleaded to be innocent. Opportunity was given to lead evidence in defence, but no defence was led. After hearing learned Public Prosecutor for the State and defence counsel for the accused and from the perusal of evidence on the file, accused-appellants were convicted and sentenced as stated aforesaid. Crl.Appeal No.588-DB of 2005 11 We have heard learned counsel for the appellants and the State and gone through the evidence on the file. Learned counsel for the appellants argued that according to prosecution story, occurrence had taken place on the intervening night of 24/25.7.2003 at about 1.00 AM. There was an electric bulb but bulb was destroyed and there was no light. Appellants were not named in the FIR. Appellants were arrested by CIA Staff, Hoshiarpur, but no evidence on the file that on which date they have been arrested by CIA Staff, Hoshiarpur. After that, appellants were arrested in FIR No.42 dated 29.1.2003 under Sections 458/380 IPC. Appellants had suffered confessional statements (Ex.PX, PY and PZ), but confessional statements before the police while in police custody are without any evidentiary value. On 10.8.2003, appellants were arrested in the present case by SI Karamvir Singh appearing as PW13. On 10.8.2003, appellants had suffered disclosure statements (Ex.PW13/1, PW13/2 and PW13/3) and later on, got effected recoveries of gold ornaments from the specified places vide recovery memos (Ex.PW13/4, Ex.PW13/5 and Ex.PW13/6). After recovery, Vijay Kumar had identified gold ornaments in the police station on 15.8.2003, but entire prosecution story is concocted one. In the FIR, there is not a word as to how many gold ornaments were taken away by the appellants. As per FIR, appellants were of the height of 5 feet- 3/4 inches of black complexion, moderately built and were speaking Hindi. When there was no light, then no question to identify the appellants. At the time of occurrence, complainant party was not in a position to identify the accused, who had committed the crime. So, in the Court, injured cannot state that appellants appearing in the Court are the same assailants who had committed the crime. Except recovery of some Crl.Appeal No.588-DB of 2005 12 gold ornaments, there is no cogent and convincing evidence on the file. Firstly, in the FIR, Vijay Kumar is silent as to how many gold ornaments were stolen. After statement (Ex.PA), no supplementary statement of Vijay Kumar that such and such articles were stolen from their house. Evidence is missing as to what was the weight of stolen gold ornaments. Receipt of gold ornaments was produced before the police during investigation but same is not on the file. No receipt of jeweller to the effect that gold articles were purchased from him. On 7.8.2003, appellants were in the custody of SI Gopal Singh, and made confessional statements that on the intervening night of 24/25.7.2003, while entering into the house of complainant party, they had committed the crime. But on that day, i.e., 7.8.2003, no disclosure statement was suffered by them that articles stolen from the house of the complainant party while committing the crime were kept concealed and they can get the same recovered from the specified places. On 10.8.2003, appellants were in the custody of ASI Karamvir Singh and suffered disclosure statements. In pursuance of the disclosure statements, they got recovered gold ornaments from the specified places, but at the time of disclosure statements or recovery, no independent witness was joined. Independent witnesses were available but no effort was made to join any one. Investigating Officer stated that he cannot cite any reason as to why independent witness was not joined. While preparing recovery memos, weight of recovered articles was not mentioned, but at the time of identification by Vijay Kumar, weight of the articles was mentioned. Recovered articles were not sealed by the Investigating Officer. There was no identification mark on the recovered articles. Articles were not shown to the ladies when appeared in the Court. Appellants were arrested about 22 Crl.Appeal No.588-DB of 2005 13 days after the occurrence. So, they had no idea to conceal the articles. Articles could easily be disposed of. Learned counsel further argued that the case is based on circumstantial evidence, so in view of the recovery of certain articles, it is not safe to convict the appellants under Sections 460 or 380 IPC. In support of this contention, learned counsel relied upon Kuldip Singh vs. State of Delhi, 2004(2) Crl.C.C. SC 64. Learned State counsel argued that occurrence was on the intervening night of 24/25.7.2003. Description of the assailants was given and in the Court, injured had identified the appellants by saying that they are the same persons, who had committed the crime. There is recovery of gold ornaments of the complainant party. Before present occurrence, appellants were not inimical towards the complainant party, so there was no idea to implicate the appellants. Evidence on the file was rightly scrutinized by the trial Court. Undisputedly, on the intervening night of 24/25.7.2003 at about 1.00 AM, crime was committed in the house of Vijay Kumar and others. 10 persons were injured, including deceased Jatinder Kumar. After the occurrence, all the injured were shifted to Civil Hospital, Hoshiarpur. Regarding admission of injured, intimation was sent to Police Station, Model Town, Hoshiarpur, and from there, further intimation was given to Police Station Sadar, Hoshiarpur. On receipt of information, ASI Dilbagh Singh had gone to Civil Hospital, Hoshiarpur, and after getting opinion of the doctor regarding fitness of injured, statement of Vijay Kumar (Ex.PA) was recorded. Other injured were found to be unfit. Application was moved to conduct postmortem examination on the dead body of Jatinder Kumar. Crl.Appeal No.588-DB of 2005 14 Evidence on the file shows that there was an electric bulb in the house of complainant party, but the bulb was damaged. There was no light and there was pitch darkness. Before present occurrence, appellants were not known to the complainant party. Appellants are from Himachal Pradesh and they were identified for the first time in the Court. After arrest of the appellants, no effort was made for arranging test identification parade. When appellants were not named in the FIR and there was no light to identify the assailants, then Investigating Officer should have moved an application for arranging test identification parade. No case of the prosecution that application was moved to arrange test identification parade, but the appellants had refused to join the test identification parade. In the FIR, description of the assailants was given by saying that they were of the height of 5 feet- 3/4 inches, of black complexion and moderately built and were speaking Hindi. No allegation of the injured that they can identify the assailants when brought in front of them. When a crime is committed by some unknown persons, who were not known to the complainant party earlier, then normally the complainant or the eye witnesses state that crime was committed by some unknown assailants, but they can identify them when brought in front of them. In the present case, none of the injured stated a word before the Investigating Officer when their statements were recorded under Section 161 Cr.P.C. that crime was committed by some unknown assailants but they can identify them when brought before them. So, failure to arrange test identification parade shows that prosecution story is not natural one. It is well settled that evidence of identification of the accused for the first time during the trial is inherently of very weak character which Crl.Appeal No.588-DB of 2005 15 loses much of its value without prior test identification parade. The identification for the first time in the Court cannot be relied upon in absence of corroboration. Though it is also equally well settled that where the victim had plenty of time to recognise the accused while he removed the gold ornaments in broad day light and the victim has given full description of the accused in the FIR, the identification by such victim of the accused in the Court for the first time, may in the given circumstances be given weight. But in the present case, the occurrence has taken place in dark pitch night where the only source of light was also destroyed. The victims had no opportunity of recognising the accused and neither any particular description of the accused was provided in the FIR and neither it was stated by the victims in their statements to the police to the effect that on the production of the accused before them, they can identify the accused. In these circumstances, identification of the accused for the first time in the Court without holding a prior test identification parade cannot be relied upon without corroboration to convict the appellants for the alleged offence. (See: Kanan and others vs. State of Kerala, AIR 1979 SC 1127, and Jaspal Singh alias Pali vs. State of Punjab, AIR 1997 SC 332). Appellants were arrested by CIA Staff, Hoshiarpur, but no evidence on the file, on which date they were arrested. From CIA Staff, Hoshiarpur, appellants were arrested in FIR No.42 dated 29.1.2003 under Sections 458/380 IPC. Before SI Gopal Singh, appellants on interrogation had suffered confessional statements (Ex.PX, Ex.PY and Ex.PZ) to the effect that on the intervening night of 24/25.7.2003, they had committed crime in a house situated in Village Bajwara, but no disclosure statement that gold articles stolen from the house situated in Village Bajwara were Crl.Appeal No.588-DB of 2005 16 kept concealed near “jamun choan” and they can get the same recovered. If on 7.8.2003, appellants can make confessional statements qua present occurrence, then there was no bar to make disclosure statements qua articles. On 10.8.2003, appellants were arrested in this case by SI Karamvir Singh. Then appellants suffered disclosure statements and in pursuance thereof, got recovered different articles. While preparing recovery memos, weight of articles was not mentioned, whether weight of ring was