IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.549-DB of 2006 Date of Decision: 29.01.2009 Paharri Appellant Versus State of Punjab Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH Present: Mr.Aman Bansal, Advocate for the appellant in Criminal Appeal No.549-DB of 2006 Mr.Ritesh Pandey, Advocate for the appellant in Criminal Appeal No.723-DB of 2007 Ms.Manjari Nehru Kaul, DAG Punjab for the respondent-State …. Jasbir Singh, J. This order will dispose of Criminal Appeal No.549-DB of 2006 filed by Paharri son of Karam Chand and Criminal Appeal No.723-DB of 2007 filed by Chaman Lal @ Guddu son of Garibu, as both the appeals have arisen out of common judgment and order dated 22.5.2006 passed by the Additional Sessions Judge at Jalandhar. Vide judgment under challenge, appellants in both the appeals were convicted for commission of offences under Sections 459 and 460 IPC and they were sentenced to undergo rigorous imprisonment for ten years each and to pay a fine of Rs.2000/- each with a default clause under Section 459 IPC and they were also sentenced to undergo rigorous imprisonment for a period of 12 years each and to pay a fine of Rs.2000/- each with a default clause under Section 460 IPC. All the sentences were ordered to run concurrently. Criminal Appeal No.549-DB of 2006 2 Process of criminal law was set in motion at the instance of Paramjit Singh (PW5). Case of the prosecution as noticed by the trial Court in paragraph No.2 of its judgment reads thus:- “The brief facts of the case of the prosecution are that this case has been registered at the instance of Paramjit Singh s/o Rawail Singh, on the allegations that he was resident of Village Dalli and he is working in the Telephone Department. He alongwith one Chuni Lal, who was working in Punjab State Electricity Board Bhogpur, were residing on rent with their families, in the premises owned by Gurmeet Singh son of Joga Singh. A day before, wife of Chuni Lal alongwith her children had gone to her village. On 31.7.2001, he was sleeping alongwith his family members in a room, and Chuni Lal was also sleeping in his room. At about 12.30 AM four persons entered their house by scaling over the boundary wall. Due to fear his mother woke up and hurriedly came in their room. He and his wife also woke up and they bolted the door from inside. They raised alarm, and then all the unidentified four persons entered into the room of Chuni Lal and they looted the articles from Almirah and Trunk and also took away television. On hearing noise Chuni Lal woke up and rushed towards Varandha and switched on the electric light. One of the assailants, who was armed with sota, gave a sota blow on the head of Chuni Lal, as a result of which Chuni Lal fell down and became unconscious. All the assailants ran away. On raising noise, Criminal Appeal No.549-DB of 2006 3 people from the neighbourhood gathered and Chuni Lal was removed to Pal Hospital from where he was further referred to Jalandhar. All the assailants were Hindu gentlemen and were wearing banyans.” Against the appellants and four others namely, Dilbagh @ Gogi, Dharam Pal @ Desu, Surjit and Rakesh Kumar, it was allegation that on 31.7.2001, they had committed lurking house tress pass, during night, in the area of village Dalli and caused death of Chuni Lal. It was further allegation that they, after having committed above said crime during night, had also gone to the house of Darshan Lal (PW4), gave a rod blow on his head and caused injuries to him on his head and other parts of the body. Accused, who were 7-8 in number, had robbed Rs.3,000/- from his house. It was further case of the prosecution that on receipt of injuries, Chuni Lal was shifted to Pal Hospital, Partap Bagh, Jalandhar, where he had died. Post-mortem was conducted on 31.7.2001 by Dr.T.L.Chopra, who found the following injuries on body of the deceased:- “1. Stitched wound 3 cm long present on the left side of occipital region of mid line, hair shaved from the wound area and having two stitches. On dissection underline haematoma present and lenier fracture of left occipital bone and cranial cavity full of blood. 2. Lacerated wound 1 x 2.5 CM with clotted blood present on the left side of lower lip. 3. 1 x 0.5 cm raddish abrasion present on the left side of nose 1 CM from the bridge.” Criminal Appeal No.549-DB of 2006 4 Cause of death, as per opinion of the above said witness, was head injury, which was ante mortem in nature and was sufficient to cause death in ordinary course of nature. On 31.7.2001, Darshan Lal (PW4) was medically examined by Dr.Gurpal Kataria, PHC Kala Bakara at about 6.30 AM. Above said witness found the following injuries on the person of Darshan Lal:- “1. Two lateral wounds 5 CM x ½ CM and 5.5 CM x 1 CM apart from 2 CM placed/ obliquely going upwards and lateral present left side of forehead. Placed just 2 CM above medial 1/4th of eye brow (left). Tenderness and fresh bleeding was present. Advised X-ray. 2. A lacerated wound 4 CM x 1.5 CM obliquely placed on inner aspect of left side of lower lip through and through. Inner wound extended upto mandible fracture mandible can be seen through the wound. Other and inner wound joined external just 2 CM above. Advised Dental/ Surgeons opinion. 3. A lacerated wound 2.5 CM x 2 MM deep upto muscle placed mid line of skull obliquely fresh bleeding present. 4. A bruise 8 CM x 2 CM red in colour placed obliquely present at night deltoide muscle right arm. 5. A bruise 4 CM x 2 CM placed horizently right deltoide area 1.5 CM lower the injury No.4. 6. A bruise 11 x 2 CM placed obliquely downwards on medial upper arm aspect 2 CM blow injury 4. Criminal Appeal No.549-DB of 2006 5 7. Deffuse swelling present of post aspect of left hand (dorsal) involving third four and 5th Meta carpothalageks joint. Tenderness present. Advised X-ray (Quarry fracture). 8. A bruise 11 CM x 2 CM horizontally present lateral aspect of right thigh 4 inch above knee joint. 9. Abrasion 3 CM x 2 CM pink brought colour present. Left aspect of forearm 7 CM blow left elbow. 10. Right upper central incizer (upper) shaky bleeding present. Right canine both shaky, bleeding present suspected mandible fracture advise dental surgeon’s opinion and treatment.” Injuries Nos.2 and 3 were declared grievous in nature. It was a case of blind murder, except giving vague description of physical appearance of the accused, no one was named in the FIR. It was further case of the prosecution that on 25.10.2002, SI Sulakhan Singh (PW8) was present near Laxmi Store Crasher, Chakki Pathankot in search of those persons who had committed dacoity in the area of village Saliguri (Pathankot). The appellants in these two appeals and four other accused were arrested in connection with above said case. During investigation, one country made pistol with two live cartridges was recovered from Chaman Lal –appellant. Above named accused also suffered a disclosure statement (Ex.PB) stating that he along with his co-accused had also committed dacoities at various places in the State of Punjab, including the one which is subject matter of these appeals. Criminal Appeal No.549-DB of 2006 6 On receipt of intimation from SHO Police Station Division No.2, Pathankot, ASI Kulwant Singh arrested the appellants and other accused. They were interrogated by ASI Amrik Singh (PW9). All made separate disclosure statements indicating the place of occurrence where offence was committed by them. They also led the police party to the spot in the area of village Dalli. It is an admitted fact on record that the case property, alleged to have been taken away by the accused from the house of the deceased and Darshan Lal (PW4), was not recovered. On completion of investigation, final report was put in Court. Appellants and other accused were charge sheeted for commission of offences under Sections 459, 460 IPC to which they pleaded not guilty and claimed trial. Prosecution, to prove its case, produced 9 witnesses and also brought on record documentary evidence. On conclusion of prosecution’s evidence, statements of the appellants and other accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them, which they denied, claimed innocence and false implication. However, despite opportunity given, they led not evidence in defence. The trial Court on appraisal of evidence on record convicted and sentenced the appellants and their co-accused as found mentioned in earlier part of this order. Hence these two appeals. Mr.Ritesh Pandey, Advocate who has put in appearance for Chaman Lal appellant, after taking us through the contents of statements made by prosecution witnesses, vehemently argued that no incriminating evidence existed on record, on the basis of which the appellants could have Criminal Appeal No.549-DB of 2006 7 been convicted. By stating that the accused were unknown to the prosecution witnesses, it was night time, description of physical appearance of the assailants was not given in the FIR, in such like situation, the trial Court was not justified to rely upon identification of the accused in Court by two alleged eye witnesses. He further brought it to our notice that recovery of property looted from the house of Chaman Lal was not effected. Weapon of offence was not recovered and further that to connect the appellants with the occurrence in question, there existed no corroborative piece of evidence on record. The appellants were falsely involved in a criminal case by SI Sulakhan Singh (PW8) and thereafter about 50 untraced cases were fastened upon them. He prayed that appeal (s) be allowed, judgment and order, under challenge, be set aside and the appellants be acquitted of the charges framed against them. Prayer made has vehemently been opposed by the State counsel. By making reference to the prosecution’s evidence on record, she argued that the judgment and order passed by the trial Court are perfectly justified. After hearing counsel for the parties, we are of the opinion that the prosecution has failed to connect the appellants with the occurrence in dispute, which had taken place on the intervening night of 30-31.7.2001 in village Dalli PS Bhogpur. The assailants were not known to the complainant Paramjit Singh (PW5) and injured Darshan Lal (PW4). FIR was recorded at the instance of Paramjit Singh, who alleged to have seen the occurrence. Above said witness in his statement before the police has stated as under:- Criminal Appeal No.549-DB of 2006 8 “All the unknown persons were clean shaven. They were wearing underwears and Baniyans. 2/3 companions of the above said persons were standing outside on the road.” Neither this witness nor Darshan Lal or any other eye witness has given age, description, physical appearance, height, colour and other necessary particulars of the accused, to identify them. Paramjit Singh (PW5), in Court, has said in a very cyclostyle manner that he identified all the accused present in Court. In his cross-examination, he has admitted it as correct that he had seen the accused only on that day after occurrence for the first time. His statement was recorded in Court on 17.2.2005. It is very surprising as to how Paramjit Singh could have identified the unknown persons who were seen by him only for few minutes on the fateful night. To the same effect is the deposition of Darshan Lal (PW4). Other eye witness namely Kamla Devi (PW6) has specifically stated that she could not identify persons who had entered in her house to commit dacoity. Similarly, Balbir Kaur (PW7), mother of Paramjit Singh, when failed to identify the accused in Court and she was declared hostile. In her cross-examination by counsel for the accused, she has specifically stated as under:- “I do not identify the accused present in the court whether they are the same persons who entered the house of Chuni Lal on relevant day. “ After going through the contents of depositions made by above named witnesses, this Court feels that the prosecution has failed to identify the appellants as accused, who were involved in occurrence held on 31.7.2001, involving dacoity. No doubt, if reliable, identification of an Criminal Appeal No.549-DB of 2006 9 accused in Court by the witness, can form basis for conviction of an accused, if the same is supported by some corroborative piece of evidence. Their Lordships of the Hon’ble Supreme Court in Dana Yadav @ Dahu v. State of Bihar, 2002(4) R.C.R. (Criminal) 314, underlining the importance of test identification parade during investigation of a criminal case, have observed as under:- “It is also well settled that failure to hold test identification parade, which should be held with reasonable despatch, does not make the evidence of identification in court inadmissible rather the same is very much admissible in law. Question is what is its probative value? Ordinarily identification of an accused for the first time in court by a witness should not be relied upon, the same being from its nature, inherently of a weak character, unless it is corroborated by his previous identification in the test identification parade or any other evidence. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court If a witness identifies the accused in court for the first time, the probative value of such uncorroborated evidence becomes criminal so much so that it becomes, as a rule Criminal Appeal No.549-DB of 2006 10 of prudence and not law, unsafe to rely on such a piece of evidence”. To the same effect is the ratio of judgment of the Hon’ble Supreme Court in Md.Kalam @ Abdul Kalam v. State of Rajasthan, 2008(2) RCR (Criminal) 631. In the above said case, the Hon’ble Supreme Court has gone further to say as under:- “12. It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in Court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court.” In this case, none of the witnesses had given specific particulars of physical appearance of the assailants. It was vaguely stated by the complainant and others in their statements before the police that the unknown assailants were clean shaven and were wearing underwears and Baniyans. Darshan Lal (PW4) in his deposition in Court has stated that all the accused were in the age of 25 to 30 years. Contrary to this, it has come on record that appellant Chaman Lal was aged about 55 years and appellant Paharri was aged about 56 years. Otherwise also, it is beyond comprehension that a witness who had seen the assailants at night for few minutes can identify them in Court after a gap of about four years. Admittedly, in this case, test identification parade was not got done by the investigating agency during investigation. It is also an admitted fact that with regard to occurrence in dispute, no recovery was effected from the appellants. In FIR, complainant Paramjit Singh (PW5) has only said that the assailants had entered room of Chuni Lal deceased and after injuring him, they had stolen away his luggage. Criminal Appeal No.549-DB of 2006 11 In his statement in Court, this witness has specifically stated that the assailants had stolen valuable articles from Steel Almirah and boxes of Chuni Lal. They had also taken away his television. As per Darshan Lal (PW4), assailants had taken away Rs.3000/- from his house. Admittedly, nothing was recovered from the appellants to connect them with the alleged occurrence. It is also an admitted fact that weapon of offence was not recovered in this case. The investigating officer Kulwant Singh ASI was also not produced in Court for reasons best known to the prosecution. Jaswant Singh, Head Constable (PW3) has stated that one Jaswant Singh was joined as a witness at the time when place of occurrence was demarcated at the instance of the accused. Above said witness was not produced in Court. To the contrary, ASI Amrik Singh (PW9) has stated that the police party, at that time, had not joined any independent witness from the village. Perusal of paper book indicates that the appellants and other accused were arrested in FIR recorded in Police Station Division No.1, Pathankot and thereafter, they were shown accused in this case and about 49 other untraced cases. This Court feels that an attempt was made by the police officials to show their efficiency by solving many untraced cases. The prosecution has miserably failed to pin-point the appellants as accused in the present occurrence. In view of facts mentioned above, impugned judgment and order cannot be sustained and accordingly set aside, both the appeals are allowed and the appellants are acquitted of the charges framed against them. (Jasbir Singh) Judge Criminal Appeal No.549-DB of 2006 12 29.01.2009 (Jora Singh) gk Judge