Criminal Appeal No. 1742-SB of 2004 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 1742-SB of 2004 Date of decision : 8.8.2008 Shamshudin and another .....Appellants Versus State of Haryana ...Respondent **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. Jashanpreet Singh, Advocate as Amicus Curiae Mr. S.S.Mor, Senior Deputy Advocate General, Haryana. S. D. ANAND, J. Appellants Shamsudin and Mustak are in appeal against their conviction for an offence under Section 395 read with Section 397 IPC. The prosecution allegations against them were that they (along with four others - acquitted by the learned Trial Court ) hijacked a public transport bus on 6.12.2001, took it to a secluded place and robbed the passengers of their cash and valuables. For the impugned finding, learned Trial Judge drew sustenance from the testimony of PW-6 Satish Verma (who was travelling by that bus and was deprived of a sum of Rs. 16,000/- in cash and one golden ring and wrist watch), PW-8 Paramjit Singh, (who, too, was travelling by that bus and was deprived of a sum of Rs.5600/-), PW-9 Navjit Singh (who also was travelling by that bus and was deprived of a sum of Rs.31,000/-), PW-10 Parveen Kumar, Criminal Appeal No. 1742-SB of 2004 -2- **** (who too was travelling by that bus and was deprived of a sum of Rs.31,120/-) and PW-12 Chandan Lal, (who was travelling by that bus and was deprived of a sum of Rs.6,000/- and a bag containing his luggage. Reliance was also placed by the learned Trial Court on the fact that appellants got the recovery of looted articles, in pursuance of individual disclosure statements made by them to the police. Learned Amicus Curiae appearing on behalf of the appellants, argues that the impugned finding is not record-based inasmuch as PW-1 Darshan Singh and PW-2 Conductor Devender Singh, who were on the bus as conductor and driver respectively had not identified the appellants as the culprits. In that very context, learned Amicus Curiae argues that even PW-7 Krishan and PW-15 Sanjeev Kumar (who were also passengers travelling by that bus) had not categorically identified the appellants as culprits accountable for the impugned robbery. Learned counsel also has a grievance that finding on the point of Identification could not be recorded by the learned Trial Court without the Investigating Agency having got a Test Identification Parade held. It may noticed, at the very outset, that Test Identification Parade is only one of the methods, credible though, to identify the culprits responsible for an episode of this category, when there is no evidence that the prosecution witnesses were already familiar with their identity. At the same time, there is no warrant for the Criminal Appeal No. 1742-SB of 2004 -3- **** proposition that every case of this category must be discarded outrightly just because the Investigating Agency, rightly or wrongly, did not get a Test Identification Parade held. There could be instances when the victims are able to identify the robbers otherwise as well. The nature of evidence of PW-1 Darshan Singh, PW-2 Devener Singh, PW-7 Krishan and PW-15 Sanjeev who were travelling by that bus notwithstanding, the present is indeed a case of that category. Insofar as PW-1 Darshan Singh conductor is concerned, he categorically testified in the examination-in-chief that “I have seen accused Samsudin and Mustak present in the Court today and I have valid reasons to identify them as two of six ultras who had looted the bus at gun point on that day. The other four accused are not present in the Court. I am able to identify the other four ultras as well.” He dithered only in the cross-examination by averring that “accused Samsudin and Mustak present in the Court were not the two persons who had threatened and the driver with the guns. It is correct that I identify pretty well those two persons.” A conjunctive perusal of his testimony would indicate that he did not identify the present appellants”as two of six ultras who had looted the bus at gun point on that day”. Thus, in the cross-examination, all that he stated was that appellants were not those persons who had threatened him and the driver with gun. He nowhere denied that the appellants were not the ones who had committed robbery. All that he indicated was that the appellants were not the ones who had held out a threat to Criminal Appeal No. 1742-SB of 2004 -4- **** him and the driver. Thus, appellants cannot derive any benefit from his testimony in the light of the categorical testimony given by him in his examination-in-chief. It cannot be denied that PW-2 Devender Singh driver did testify that “I have seen the two accused Samsudin and Mustak in the dock of the Court room but I cannot very specifically identify them.” However, his testimony is not adequate enough to outweigh the testimony of PW-6 Satish Verman, PW-8 Paramjit Singh, PW-9 Navjit Singh, PW-10 Parveen Kumar and PW-12 Chandan Lal. It may be particularly noticed that, infact, PW-2 Davinder Singh would have hardly had any opportunity to have a glance at the robbers. The record indicates that he was driving the bus in question. The pistol was pointed at his head with a view to force him to take the bus to a abandoned place. The culprit who put his gun to the PW-2 Davinder Singh would have retained that posture through out in order to disable the latter from driving the bus to any other place to the annoyance of the appellants. There is, thus, nothing significant in the inability on his part to identify the appellants as the culprits who committed the robbery. PW-6 Satish Verma categorically identified the appellants as the robbers “I identify the two accused persons presents in the Court room today. They were amongst those six ultras who had looted the passengers including me.” PW-9 Navjit Singh testified that “after the bus crossed the area of the village six men rose on their feet including the two accused standing trial in this case.” PW-10 Parveen Kumar testified that “after the bus Criminal Appeal No. 1742-SB of 2004 -5- **** crossed the area of the village six young men rose on their feet including the two accused standing trial in this case.” PW-12 Chandan Lal had also testified that “after the bus crossed the area of the village six men rose on their feet including the two accused standing trial in this case.” The evidence on point of identification of the appellants as two robbers was further buttressed by the fact that appellants, in pursuance of their individual disclosure statements, got the recovery of some of the looted articles effected. The fact of recovery would also be adequate to cement the prosecution presentation against the appellants in the present case. Learned counsel appearing as Amicus Curiae did indeed make the presentation in a forthright manner and seems to have done his home work very well. That he does not get adequate support from the material obtaining on the file is quite another thing. In the light of the foregoing discussion, the appeal is held to be devoid of merit and the same is dismissed. August 08 , 2008 (S. D. ANAND) Pka JUDGE