PUNJAB AND HARYANA HIGH COURT
Criminal Appeal No. 140-SB of 1996. D/d. 15.7.1998
Balwan - Petitioner
State of Haryana - Respondent
For the Appellant :- Mr. P.C. Chaudhary and Ms. Vandana Malhotra, Advocates.
For the Respondent :- Mr. Shailender Singh, DAG, Haryana.
A. Indian Penal Code, Sections 392, 394 - Evidence Act, Section
B. Criminal trial - Benefit of every reasonable doubt has to go the accused and not to prosecution - Prosecution is supposed to prove the charge beyond reasonable doubt by leading cogent and reliable evidence. [Para 12]
Case referred :-Kanan v. State of Kerala, AIR 1979 Supreme Court 1127.
R.L. Anand, J. - By this judgment I dispose of two criminal appeals, No. 140-SB of 1996 titled 'Balwan v. State of Haryana' and No. 294-SB of 1996 titled 'Harbeer alias Beere v. State of Haryana' as both the appeals have arisen from a common judgment dated 7.12.1995 passed by the learned Session Judge, Rohtak convicting the appellants under Sections 392, 394 and 397 I.P.C. and they were sentenced to undergo rigorous imprisonment for a period of seven years each under Sections 392, 394 and 397 I.P.C. individually. They were also directed to pay a fine of Rs. 500/- each under Sections 392 and 394 I.P.C. and in default of payment of fine each of the appellants was directed to undergo rigorous imprisonment for six months. The substantive sentences awarded to the appellants were ordered to run concurrently.
2. The story of the prosecution can be summarised in the following manner :-
On 26.12.1990 Ajay son of Brij Bhushan, PW3, was going from his house via Model Town, Rohtak to his home village Bohar via canal track connecting the Rohtak-Delhi road with Rohtak-Sonepat road on his scooter No. HYO-4509 and when he reached on Rohtak-Sonepat road in between two canals, on the said road, two young boys namely Harbeer and Balwan met him. The prosecution alleges that Harbeer put a Lath (long stick) in front of the scooter of Ajay, as a result of which Ajay had to stop his scooter. Both the appellants then called Ajay to hand over all his belongings and accordingly Ajay complainant handed over Rs. 130/-, which amount was in his possession, to the appellants and he started his scooter. However, both the appellants did not allow him to proceed with the scooter. Ajay picked up the Lath, upon which Balwan appellant fired at him from his country-made pistol and the shot hit him on his face and shoulder. Ajay then left the scooter at the spot and proceeded towards his village via canal Patri, while both the appellants escaped with money and scooter. Ajay went to his village and got first aid and then went to Medical College Hospital, Rohtak on a three-wheeler, where the police also reached and recorded his statement Ex.PD. He was medically examined and his injuries were also x-rayed. The police then also visited the place of occurrence, prepared rough site plan and recorded the statements of the witnesses.
3. On 27.1.1991 SI Dhan Singh along with Constable Aas Mohammad and Constable Ram Dhari was present at Sheela byepass in a government jeep in connection with the investigation of this case. Ajay PW was also joined from that byepass. Thereafter the police party went to village Ismaila at the house of Harbeer appellant but he was not found present there. Then the police went to village Asthal Bohar and when it reached near the post office of that village, Ajay PW pointed out Harbeer by saying that the latter was one of the culprits, who had robbed him of the money and scooter. Resultantly, the arrest of Harbeer was effected. On 28.4.1991 the investigation of this case was with ASI Mahipal. He came to know that Balwan appellant has been arrested by the police of Police Station, Jhajjar. He went there and in this manner Balwan was also taken into custody with the permission of the Court in this F.I.R. Balwan was interrogated about the weapon of offence in the presence of HC Ram Kumar and Ajay complainant. Balwan disclosed by suffering a disclosure statement that he had kept concealed one country-made pistol and two live cartridges in the bushes near Tilyar lake and he could get the same recovered by pointing out the place of concealment. His disclosure statement Ex.PD was recorded. It was read over and explained to him and thereafter Balwan led the police party and got recovered a pistol and two live cartridges, which were taken into possession vide recovery memo Ex.PE. A separate case under Section 25 of the Arms Act was registered against Balwan appellant. Formalities were also completed in the present investigation when the Investigating Officer took into possession the M.L.R. of Ajay and his fitness statement. The scooter was found in the area of Chhuchhakwas as abandoned property and it was taken into possession under Section 25 of the Police Act vide recovery memo Ex.PJ. On completion of the investigation of the case, both the appellants were challaned under Sections 392, 394 and 397 I.P.C. A separate challan under Section 25 of the Arms Act was also filed against Balwan appellant.
4. The appellants were committed to the Court of Session in order to face the trial and they were charge-sheeted by the trial Court under the above provisions of law. Charges were read over and explained to the appellants to which they pleaded not guilty and claimed trial.
5. In order to prove the charges, the prosecution examined PW1 Attar Singh, Medical Record Clerk, Medical College Hospital, Rohtak, who produced record of C.R. No. 713505 and 15 x-ray films in respect of Ajay injured. PW2 Dr. S.S. Sharma x-rayed the injuries of Ajay and proved x-ray report Ex.PB/5 and skiagrams. PW3 Ajay is the complainant. PW4 is Shri Tarif Singh. Dr. Daya Nand appeared as PW5 and HC Ram Phal appeared as PW6. SI Dhan Singh appeared as PW7. The Investigating Officer ASI Mahipal and Inspector Basti Ram appeared in the witness-box as PW8 and PW9 respectively.
6. On the closure of the prosecution case, statements of the appellants were recorded under Section 313 Cr.P.C. They denied the incriminating circumstances and pleaded innocence. They did not examine any witness in defence.
7. The learned trial court relied the story of the prosecution and convicted and sentenced the appellants in the manner stated above. The reasons of conviction are given in para Nos. 16, 17 and 18 of the judgment, which read as under :-
- "16. To establish the identify of both the accused, prosecution examined one Tarif Singh PW4, who deposed that on 26.12.1990 he was coming to Medical College Hospital, Rohtak in connection with performance of his duties where he is employed, at about ten minutes to two noon, he reached canal crossing Rohtak-Sonepat road, he saw two young boys standing on the said road near the said canal, one of them was having a blanket around his body, when he was passing by their side, they laughed at him, so he looked at them carefully. Both the accused are the same persons who were spotted by him. So identity of both the accused has been established not only by Ajay PW3 but also by Tarif Singh PW4.
18. So, from the statement of Ajay, injured, it is proved to the hilt that both the accused robbed Ajay of his money worth Rs. 130/- and scooter belonging to his father. He was injured with a pistol shot; this fact has been established with the statement of Dr. Daya Nand PW5 who conducted MLR of Ajay and Dr. S.S. Sharma (PW2) who conducted x-ray examination and both the doctors opined that injuries on the person of Ajay were from fire shot. So, the version given by Ajay that he was robbed of money and scooter at the point of pistol shot stands proved and recovery of scooter was effected from village Chhuchhakwas area in abandoned condition. However, recovery of Rs. 130/- was not effected."
8. I have heard Shri P.C. Chaudhary, Advocate, Ms. Vandana Malhotra, Advocate, on behalf of the appellants, Shri Shailender Singh, Deputy Advocate General, who appeared on behalf of the State of Haryana and with their assistance I have gone through the records of this case.
9. Establishment of identity of the appellants is the material point for determination in both the appeals. It is the common case of the parties that in the statement made by the complainant both the appellants have not been named. In order to record the conviction of the appellants, the learned trial Court is relying upon the statements of PW3 Ajay and PW4 Tarif Singh. As per the statement of PW4 Tarif Singh, on 26.12.1990 he was coming to Medical College Hospital, Rohtak in connection with performance of his duty at about 10 minutes to 2 noon and when he reached canal crossing Rohtak-Sonepat road, he was two young boys standing on the road side near the said canal. Once of them was having a blanket around him. When he passed by their side, they laughed at him and so he looked those persons carefully and thereafter he came to Medical College Hospital, Rohtak. The perusal of the statement of PW4 Tarif Singh would show that he too does not name the appellants. He did not see the occurrence. It is not clear at what distance both the appellants were spotted. He does not approach the police on 26.12.1990 to the effect that he saw two persons under suspicious circumstances. He does not talk with anybody that he earlier saw two persons on the bank of the canal. In these circumstances the statement of PW4 Tarif Singh in order to establish the identity of the appellants does not advance the case of the prosecution.
10. With regard to PW3 Ajay, his statement coupled with the statement of the Investigating Officer looks to be most abnormal. The story of the prosecution is that there was some information with the police with regard to the fact that Harbeer appellant perhaps had committed the present crime. Ajay while appearing as PW3 had deposed that on 27.1.1991 he was called by the police with the instructions to be present at Sheela bye-ass, Sonepat road, Rohtak and accordingly he came to the said spot and the police came there. Then he accompanied the police in the jeep to village Ismaila. At no point of time PW3 Ajay has told to the police that one of the culprits belongs to village Ismaila. It has further come in the statement of PW3 Ajay that the police on reaching village Ismaila enquired abut the whereabouts of Harbeer appellant but he was not found in the village and when the police party was returning to Rohtak, on the way, at Asthal Bohar near the Math Harbeer was found present per chance and he was then pointed to by Ajay as one of the culprits. There is no link evidence how Ajay come to know that Harbeer was one of the persons who committed the crime along with his companion Balwan. At no point of time Ajay supplies information to the police that one of his assailants hails from village Ismaila. Prima facie it appears that Harbeer appellant was taken into custody by the police in different circumstances and in order to work out the crime services of Ajay were pressed into so as to identify him. If the police was sure that Harbeer was one of the accused he could be arrested and the police could easily and conveniently arrange an identification parade so that Harbeer could be identified by Ajay or by Tarif Singh. The identity of the culprit for the first time in Court is no identity in the eyes of law. The investigating agency did not arrange the identification parade. It has been held in Kanan and others v. State of Kerala, AIR 1979 Supreme Court 1127 that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous test identification parade to test his powers of observations. The idea of holding test identification parade under Section 9 is to test the veracity of the witness on the question of capability to identify an unknown person whom the witness may have seen only once. If no test identification parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court.
11. So far as the identity of Balwan appellant is concerned, it is as equally doubtful as that of Harbeer appellant. It is the case of the prosecution that Balwan appellant was arrested by the police of a different police station and on coming to know about the arrest of Balwan, his arrest was also secured in the present investigation by ASI Mahi Pal PW8. The police, in these circumstances, after the arrest of Balwan should have arranged the identification parade so as to get the identification of this accused from Ajay complainant and Tarif Singh. No such effort has been made. Identification of Balwan was done when he was in the police custody. In these circumstances, the ratio of the Hon'ble Supreme Court quoted above, shall equally apply with force qua the case of Balwan appellant.
12. As I have said in the outset of this judgment that the material point for determination in both these appeals would be that of the identification of the appellants, which remained unproved in view of the unreliable statements of Tarif Singh PW4 and Ajay PW3. The learned trial Court committed a patent illegality in relying upon the statements of these two witnesses and in recording the conviction under Sections 392, 394 and 397 I.P.C. The benefit of every reasonable doubt has to go to the appellant and not to the prosecution, which is supposed to prove the charges beyond reasonable doubt by leading cogent and reliable evidence, which is totally missing in this case.
Resultantly, I accept both these appeals, set aside the judgment and order and acquit the appellants of the charges framed against them.
Intimation about the acceptance of these appeals be sent to the quarters concerned.