Criminal Appeal No. 2065-SB of 2003 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 2065-SB of 2003 Date of decision : 20.8.2008 Aftab @ Sakil .....Appellant Versus State of Haryana ...Respondent **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr.H.L.Bhatia, Advocate as Amicus Curiae for the the appellant. Mr. S.S. Mor, Deputy Advocate General, Haryana for the respondent-State. S. D. ANAND, J. Appellant was convicted by the learned Trial Judge for an offence under Section 395 read with Section 397 IPC and was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1000/-. In default of the payment of fine, the appellant was sentenced to undergo further simple imprisonment for a period one year. The prosecution presentation, upheld at the trial, was that the appellant (along with twelve others, forcibly entered the house of Nirmal Singh complainant, caused injuries to him on his head and face), his wife and servant Raju with different weaponry and also took away cash and jewellary from an iron box which was lying in the Criminal Appeal No. 2065-SB of 2003 -2- **** room of the complainant. Though Malkiat Singh and Chabeg Singh, brother and father respectively of the first informant, were also available in the adjoining rooms, they could not render any help to the first informant etc. as the culprits had bolted their room from out side. Learned Trial Judge, in support of the finding of indictment, relied upon the identification of the appellant at the hands of Nirmal Singh, his wife and servant Raju. Learned Trial Judge drew an adverse inference against the appellant in view of the fact that he had refused to participate in Test Identification Parade. Learned Trial Judge also noticed, in support of the finding of conviction, that the appellant (who was arrested in another case pending at Sonepat and whose presence was secured by the local police with the permission of that Court) had made a disclosure statement and got the recovery of two pairs of ear rings and seven pairs of Pajebs effected. On the own showing of the prosecution witnesses, they were not familiar with the appellant, who was not apprehended at the spot. In these circumstances, the holding of Test Identification Parade was the best piece of evidence by which the Investigating Agency could nail the appellant. In that context, it may be noticed that, as per prosecution version, the person of the appellant was obtained under the orders of the Court at Sonepat on 7.5.2000. The defence suggested to the Investigating Officer (PW-14 ASI Ranjit Kumar) was that before his official visit to obtain the person of the Criminal Appeal No. 2065-SB of 2003 -3- **** appellant on 7.5.2000, he had already been to CIA Staff, Sonepat, where Parkash Chand, MHC had informed him that appellant had conceded his involvement in the present case. He denied having visited the Police of Sonepat on that day. It was also suggested to him that he had visited Police Station City, Sonepat, as well on that date in connection with some other case and MHC of that Police Station had also informed him of the arrest of appellant in connection with some other case. He testified that he does not remember if he visited the CIA Staff, Sonepat (on 3.5.2000) and met MHC Parkash Chand of CIA Staff, Sonepat. He also could not remember if MHC Parkash Chand had informed him that the appellant (Aftab) had conceded his involvement in the present case. He denied having visited Police Station City, Sonipat, on that day. He also denied having met Balbir Singh MHC on that day, however, he could not recollect whether MHC of Police Station City, Sonepat had informed him on that day that appellant Aftab had been arrested by the police of Police Station City, Sonepat, in connection with some other case pertaining to Police Station City, Sonepat. A perusal of the cross- examination directed at him indicates that the defence called upon him to have a glance at the zimni dated 3.5.2000. The obvious suggestion was that a perusal of that zimni would falsify his averment about his not having visited Sonepat on 3.5.2000 in the above indicated context. The Court was informed that he was not interested to have a glance at the zimni. (“I am not interested to see the zimnies dated 3.5.2000”.) He stuck to his guns even when it Criminal Appeal No. 2065-SB of 2003 -4- **** was suggested to him that he was refraining from having a glance at the zimni dated 3.5.2000 because it would prove that the confessional statement attributed to the appellant in this case was all a bogus affair. Though he denied the suggestion as incorrect, it is apparent that an inference has to be drawn in favour of the defence suggestion that the police official afore-mentioned was not being truthful. It is in evidence (PW-15 SI Raghbir Singh) that one glass, one bottle, one mirror and Identity Card available at the spot bore the finger prints (of the appellant). SI Raghbir Singh PW-15 visited the spot in the presence of ASI Rajeshwar Parkash. ASI Rajeshwar Parkash who had taken the photographs thereon which this witness (SI Raghbir Singh of the Finger Print Bureau, Madhuban) developed. In that background, it may be noticed that PW-14 ASI Ranjit Singh categorically indicated that “ I did take the finger prints of accused Aftab. I cannot tell whether I sent the finger prints of accused Aftab in FSL Madhuban or not.” In the light thereof, the observation made by PW-15 SI Raghbir Singh in his report Ex. PV/1 cannot be said to be of any significance in favour of the prosecution. Even otherwise, it may be noticed that Ex. PV/1 only purports to document the lifting of Finger Prints from the spot. The comparison result has not been documented on record. It was otherwise conceded that no independent witness was associated at the time of disclosure statement of the appellant was recorded. It is not the prosecution plea that there was want of Criminal Appeal No. 2065-SB of 2003 -5- **** availability of any independent witness. It was for the Investigating Officer to indicate the circumstances under which no independent witness was associated. This aspect assumes added importance in view of the illogical refrain on the part of the Investigating Officer in having a glance at the zimni dated 3.5.2000 and the defence suggestion that the identify of the appellant had already come to the notice of the local police on 3.5.2000 itself and the purported disclosure statement and also the recovery effected in consequence thereof were all a fanciful affair. There is no warrant for the proposition that a Test Identification parade is a conclusion piece of evidence qua the identity of the culprit. A test identification parade is surety one of the methods adopted by the Investigating agency to unravel the truth and to nail the real culprit. There might, however, be lot many factors which may validate a refusal on the part of a culprit to participate in a Test Identification Parade. One of such contingencies could be when there is proof that the identity of the culprit in custody had been made known to the witnesses. In that proven eventuality, the test identification parade would hardly be of any relevance in establishing the identity of the culprit. Likewise, under such circumstances, the refusal on the part of an account to participate in a test identification parade could not be said to have any sinister significance. There is also force in the plea on behalf of the appellant that he being the lone culprit challaned could not been convicted for Criminal Appeal No. 2065-SB of 2003 -6- **** an offence under Section 395 IPC read with Section 397 IPC because those provisions envision the commission of the offence by five or more persons. In the light of fore-going discussion, it is held that prosecution has not been able to prove the identity of the appellant as one of the persons who committed the attributed crime. The appeal shall stand allowed. The impugned finding of conviction shall stand set aside. The appellant shall stand acquitted of the charge. August 19, 2008 (S. D. ANAND) Pka JUDGE Note: Whether to be referred to Reporter: Yes/No