Delhi High Court
Shiv Kumar vs State on 1 June, 2011
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : 2nd May,2011
Judgment delivered on : 1st June, 2011
+ CRL.A.NO.77/1999
SHIV KUMAR ..... Appellant
Through: Mr.Vikrant Sarin, Advocate
and Ms.Madhulika Sarin, Advocate.
versus
STATE ..... Respondent
Through: Mr.Pawan Sharma, Standing
Counsel (Crl.) with Mr.Harsh
Prabhakar, Advocate
CRL.A.NO.414/1998
SURENDER SINGH @ PINTY & ANR. ..... Appellants
Through: Mr.Vikrant Sarin, Advocate
and Ms.Madhulika Sarin, Advocate.
versus
STATE ..... Respondent
Through: Mr.Pawan Sharma, Standing
Counsel (Crl.) with Mr.Harsh
Prabhakar, Advocate
CRL.A.NO.415/1998
MAHINDER SINGH ..... Appellant
Through: Mr.Ajay Verma, Advocate with
Ms.Swati and Mr.Gaurav,
Advocates
versus
STATE ..... Respondent
Through: Mr.Pawan Sharma, Standing
Counsel (Crl.) with Mr.Harsh
Crl.A.Nos.77/1999, 414/1998, 415/1998 & 496/1998 Page 1 of 29
Prabhakar, Advocate
CRL.A.NO.496/1998
PRAKASH @ OM PRAKASH ..... Appellant
Through: Mr.Ajay Verma, Advocate with
Ms.Swati and Mr.Gaurav,
Advocates
versus
STATE ..... Respondent
Through: Mr.Pawan Sharma, Standing
Counsel (Crl.) with Mr.Harsh
Prabhakar, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. Appellants Parkash, Mahinder Singh, Bijender Singh,
Surender Singh, Shiv Kumar and co-accused Pooran faced
trial for the charges of having committed dacoity in the
house bearing Municipal No.257, Gali No.1, Shalimar Bagh
village, Delhi in the intervening night of 25th and 26th April
1992 and having murdered Jasbir Singh while committing
dacoity. We would be referring to Jasbir Singh as „the
deceased‟ hereinafter.
2. Vide impugned judgment and order dated 11.09.1998
appellants Parkash, Mahinder Singh, Bijender Singh,
Surender Singh and Shiv Kumar have been held guilty of
committing offences punishable under Sections 394, 396
and 398 IPC read with Section 34 IPC whereas co-accused
Pooran has been acquitted of all the charges leveled against
him. Vide order dated 14.09.1998 appellants Parkash,
Mahinder Singh, Bijender Singh, Surender Singh and Shiv
Kumar have been sentenced to undergo imprisonment for
life for the offences punishable under Section 396 IPC and RI
for five and seven years for the offences punishable under
Sections 394 and 398 IPC respectively.
3. A synoptical resume of the case set up by the
prosecution against the appellants is that criminal law was
set into motion, when at around 01.40 A.M. on 26.04.1992,
DD entry No.24A, Ex.PW-30/A, was recorded at Police
Station Shalimar Bagh to the effect that a wireless
information has been received that a murder has taken
place at house bearing Municipal No.257, Gali No.1, Sheesh
Mahal.
4. On receipt of the afore-noted DD entry, Inspector
Rohtash Singh Tanwar PW-30, accompanied by
Const.Rakesh PW-21 and SI Sri Kishan went to the house in
question where they found the deceased breathing his last
and his mother Joginder Kaur, in an injured condition, both
of whom were removed to the hospital. On reaching the
hospital the deceased succumbed to his injuries as recorded
in the MLC Ex.PW-13/A of the deceased. Joginder Kaur was
given medical aid at the hospital. We note that on MLC
Ex.PW-13/C of Joginder Kaur, following is recorded:-
"Name of the relative or friend B/B S.I. Sri Krishan
PS Shalimar Bagh
.....
Date and hour of arrival 2.10 AM 26/4/92
.....
Injuries
1. Incised wound 1 1/2" x 1/5" on the left side of
the forehead and parietal area
2. Incised wound (illegible) of the Rt hand
....."
5. On 26.04.1992, at about 02.15 A.M. the doctor
declared Joginder Kaur to be fit for making a statement,
whereupon Inspector Rohtash Singh Tanwar, recorded the
statement Ex.PW-7/A of Joginder Kaur which reads as
under:-
"I reside with my husband and son Jasbir
Singh aged 19 years at the above said
address. A printing press is being run in the
ground floor of the said house. I have three
daughters, all of whom are married. Today, at
about 09.30 P.M. my husband went from the
house to participate in a religious function in
Gandhi Nagar and he goes there every
Saturday night since last about ten years. At
about 10.00 P.M. after properly locking the
main door of the house I and my son went to
sleep in a room in the rear portion of the
house and the lights of the room situated in
the middle portion of the house were switched
on at that time. At about 01.00 A.M. about
five-seven young boys aged about 20-22
years who were wearing pants and half-sleeve
shirts and appeared to be villagers from their
appearance and dialect entered the room.
Two-three of the said boys were carrying
knives in their hands and the rest were
carrying ropes and iron rods in their hands. On
entering the room, the said boys started
inflicting knife blows on me and my son upon
which I told them that „Do not attack, take
everything which is there‟, but despite that
the said boys inflicted several knife blows on
my son and tied me with a rope. I also
sustained an injuries on my forehead and
thumb of my right hand and the said boys
removed two gold bangles, gold chain, a pair
of gold earrings and a wrist watch mark Recco
from my person. The said boys took the bunch
of keys from the pillow, opened the almirah
and box lying outside the room and took out
valuable items such as tape recorder, woolen
clothes, jacket etc. They stuffed said goods in
four-five plastic bags and reached the terrace
through the staircase and exit from their
house. Before leaving the house the said boys
had bolted the door of our bedroom from
outside. On seeing that my son is critically
injured and bleeding profusely I somehow
untied my rope, pushed the cooler kept on the
window near the door of the said room, came
out of the room through the window and
opened the lock of the main door. I went in
the street and screamed for help upon which
my neighbors Suraj Prakash and Dharam Pal
and security guard Ram Bahadur came there.
Dharam Pal informed the police upon which
the police came to my house and removed me
and my son to Hindu Rao Hospital. Despite the
efforts of the doctors and my prayers to God
my son could not be saved. Jasbir has been
declared dead by the doctors. I can identify
the boys who had attacked us. The said boys
had intruded into my house, attacked us with
knives and committed robbery. An action be
taken against them." (Translated)
6. Thereafter Inspector Rohtash Singh Tanwar PW-30,
made an endorsement Ex.PW-30/B on the statement Ex.PW-
7/A of Joginder Kaur, and at around 04.15 A.M. on
26.04.1992 handed over the same to Const. Rakesh PW-21,
for registration of an FIR. Const. Rakesh took the
endorsement Ex.PW-30/B to the police station where HC
Budh Ram registered the FIR No.148/1992, Ex.PW-30/C.
7. After the registration of the FIR Ex.PW-30/C, Inspector
Rohtash Singh Tanwar proceeded to the house of the
deceased. In the meantime, crime team also reached the
house of the deceased. Inspector S.K.Jha, Finger Print
Expert, lifted five chance prints from an almirah kept in the
room intruded by the dacoits and on a wooden slab fixed on
the side of the said almirah. Inspector Rohtash Singh found
the hook of a pant on the terrace of the said house and a
rope on the staircase leading to the said terrace. Inspector
Rohtash Singh seized the said rope and hook vide memo
Ex.PW-5/A. Thereafter Inspector Rohtash Singh found a
piece of a rope identical to the rope found in the house of
the deceased and the hook fastener of a pant in the
staircase and terrace respectively of house bearing
Municipal No.178, Gali No.1, Shalimar Bagh village (herein
after referred to as the "House No.178"), which house was
adjoining the house, adjoining the house of the deceased.
Insp.Rohtash Singh seized the said piece of rope and hook
fastener of the pant vide memo Ex.PW-5/B. Inspector
Rohtash Singh prepared the rough site plan Ex.PW-30/J of
the place of occurrence.
8. On 26.04.1992 the body of the deceased was sent to
the mortuary where Dr.L.T.Ramani PW-28, conducted the
post-mortem of the deceased and prepared the post-
mortem report Ex.PW-28/A. The post-mortem report Ex.PW-
28/A of the deceased records that fifteen external ante-
mortem injuries were found on the person of the deceased;
that eight out of fifteen injuries found on the person of the
deceased were individually sufficient to cause death in the
ordinary course of nature and that the death of the
deceased was caused due to shock and hemorrhage
consequent to injuries to thoracic and abdominal viscera of
the deceased.
9. After the conducting the post-mortem, the doctor
handed over the clothes and blood sample of the deceased
on a gauze to Const. Rakesh, who handed over the same to
Inspector Rohtash Singh, who seized the same vide memo
Ex.PW-21/A.
10. Since the circumstance of the piece of rope found in
house No.178 being identical to the rope found in house of
the deceased and the hook fastener of a pant was found in
roof of house No.178 while the hook of a pant was found in
the house of the deceased, were highly suggestive of the
fact that house No.178 was used by the dacoits to enter and
exit into/from the house of the deceased, the suspicion fell
upon the occupants of house No.178. Inquiries were statedly
made from Rohtash Singh PW-8, the owner of house No.178
and his statement under Section 161 Cr.P.C. was recorded
by the police wherein he stated that appellants Prakash and
Mahinder were residing in his house as tenants and that
appellants Bijender, Surender and Shiv Kumar and Pooran
used to visit the said accused.
11. In view of the afore-noted statement of Rohtash Singh
PW-8 and the fact that appellants Prakash and Mahinder
were not found present in house No.178, the police set out
to apprehend them and through them hoping to reach out to
the other accused.
12. On 02.05.1992 SI Chabbi Lal PW-27, accompanied by
other police officers statedly apprehended appellant
Prakash. On being interrogated by Inspector Rohtash Singh
PW-30, in the presence of SI Chabbi Lal and public person
Suraj Prakash PW-11, appellant Parkash statedly made a
disclosure statement Ex.PW-11/A wherein he admitted his
guilt and stated that he can get recovered the weapons
used by him and the other appellants in committing the
offence(s). Pursuant thereto, appellant Parkash statedly led
the afore-noted persons to house No.178 and got recovered
three daggers, three knives, one iron pipe and one iron rod
from a room in the said house and the same were seized by
Inspector Rohtash vide memo Ex.PW-11/B.
13. On 04.05.1992 an application was filed by Inspector
Rohtash before the court of Metropolitan Magistrate for
conduct of Test Identification Parade of appellant Prakash.
Sh.K.S. Mohi PW-29, Metropolitan Magistrate conducted the
TIP of appellant Prakash and prepared record Ex.PW-29/C in
said regards. The records Ex.PW-29/C notes that appellant
Prakash refused to participate in the TIP proceedings on the
ground that he was already shown to the witnesses.
14. On 04.05.1992 Const.Azad PW-22, statedly
apprehended appellants Surender and Bijender and accused
Pooran. The personal search of appellant Bijender was
statedly conducted and a wrist watch worn by him was
seized. On being interrogated by Inspector Rohtash Singh
PW-30, in the presence of public person Brij Lal PW-9,
appellants Surender and Bijender statedly made disclosure
statements wherein they admitted their guilt and stated
that they can get recovered the articles looted by them and
the other appellants from the house of the deceased.
Pursuant thereto, appellants Bijender and Surinder statedly
led the afore-noted persons to their respective houses in
village Alipur and got recovered a wrist watch, four silver
coins and a T-shirt from there. The said four silver coins and
T-shirt were seized vide memos Ex.PW-9/B and Ex.PW-9/A
respectively.
15. On 04.05.1992 an application was filed by Inspector
Rohtash before the court of Metropolitan Magistrate for
conduct of Test Identification Parade of appellants Surinder
and Bijender and accused Pooran. Sh.R.S.Mahala PW-25,
Metropolitan Magistrate conducted the TIP of appellants
Surinder, Bijender and Pooran and prepared record Ex.PW-
25/D in said regards. The records Ex.PW-25/D notes that
appellants Surinder and Bijender and accused Pooran
refused to participate in the TIP proceedings on the ground
that they were already shown to the witnesses.
16. On 22.05.1992, SI Baldhar Singh PW-24, accompanied
by Const.Joginder PW-23, statedly apprehended appellant
Shiv Kumar. On being interrogated by SI Baldhar Singh PW-
24, in the presence of Const. Jogender PW-23, appellant Shiv
Kumar statedly made a disclosure statement Ex.PW-24/A
wherein he admitted his guilt and stated that he can get
recovered the articles looted by him and the other
appellants from the house of the deceased. Pursuant
thereto, appellant Shiv Kumar statedly led the afore-noted
police officers to the shop of one Mohd. Azaz PW-20, who
produced one bag at the instance of appellant Shiv Kumar.
On opening the said bag, a pant was found therein and
three silver coins were found in the right pocket of the said
pant and the same were seized vide memo Ex.PW-23/A. A
public person named Suresh Bhardwaj PW-10, was present
in the shop of Mohd. Azaz at that time.
17. On 23.05.1992 an application was filed by Inspector
Baldhar Singh before the court of Metropolitan Magistrate
for conduct of Test Identification Parade of appellant Shiv
Kumar. Sh.R.S.Mahala PW-25, Metropolitan Magistrate
conducted the TIP of accused Shiv Kumar and prepared
record Ex.PW-25/E in said regards. The records Ex.PW-25/E
notes that appellant Shiv Kumar refused to participate in the
TIP proceedings on the ground that he was already shown to
the witnesses.
18. On 25.05.1992 an application was filed by Inspector
Baldhar Singh before the court of Metropolitan Magistrate
for conduct of Test Identification Parade of the afore-noted
articles recovered at the instance of appellants Surinder,
Bijender and Shiv Kumar. Be it noted here that articles put
up for identification included two wrist watches. Sh. R.S.
Mahala PW-25, Metropolitan Magistrate conducted the TIP of
the said articles and prepared record Ex.PW-25/C in said
regards. The records Ex.PW-25/C notes that the witnesses
Joginder Kaur PW-7 and Hardyal Singh PW-6 correctly
identified that said articles as the articles stolen by the
robbers from their house.
19. On 28.05.1992 SI Baldhar Singh PW-24, accompanied
by Const. Joginder statedly apprehended appellant
Mahinder. On being interrogated by SI Baldhar Singh PW-24,
in the presence of Const. Jogender, appellant Mahinder
statedly made a disclosure statement Ex.PW-24/B wherein
he admitted his guilt and stated that he can get recovered
the articles looted by him and the other appellants from the
house of the deceased. Pursuant thereto, appellant
Mahinder statedly led the afore-noted police officers to the
shop of one Shiv Kumar PW-19, who produced one wrist
watch at the instance of accused Mahinder and the same
was seized vide memo Ex.PW-19/A.
20. On 29.05.1992 an application was filed by Inspector
Baldhar Singh before the court of Metropolitan Magistrate
for conduct of Test Identification Proceedings of appellant
Mahinder. Sh. R.S.Mahala PW-25, Metropolitan Magistrate
conducted the TIP of appellant Mahinder and prepared
record Ex.PW-25/F in said regards. The records Ex.PW-25/F
notes that appellant Mahinder refused to participate in the
TIP proceedings on the ground that he was already shown to
the witnesses.
21. The afore-noted materials seized by the police during
the investigation were sent to the Central Forensic Science
Laboratory for serological examination. Vide CFSL report
Ex.PW-30/N-1 to Ex.PW-30/N-4 it was opined that the blood
group of the deceased was „O‟; that blood of group „O‟ was
detected on the daggers and iron rod recovered at the
instance of appellant Prakash; that blood was detected on
the one of the knives recovered at the instance of appellant
Prakash, group whereof could not be determined; that the
ropes seized from the house of the deceased and house
No.178 are similar to each other in respect of their color,
number of piles, diameter and their general physical
characteristics and that hook fastener seized from house
No.178 can be fastened onto the hook seized from the
house of the deceased.
22. Armed with the afore-noted materials, a charge sheet
was filed by the police against the appellants and co-
accused Pooran.
23. Needless to state, the appellants were sent for trial.
Charges were framed against them for having committed
offences punishable under Sections 394, 396 and 398 IPC
read with Section 34 IPC.
24. At the trial, the prosecution examined 30 witnesses.
We need not note the testimony of the various police
officers who took part in the investigation for they have
deposed facts regarding the respective role played by them
during investigation which have already been succinctly
stated by us in the preceding paragraphs and in respect
whereof it was urged that the dates of arrest as shown were
wrong. The recoveries were planted. It was not explained
how come the watch statedly got recovered by Mahinder
after his arrest on 28.5.1992 could be the subject matter of
a TIP conducted on 25.5.1992, in which two wrist watches
were put up for Test Identification Proceedings and case laid
by the prosecution was that one of them was the one which
was produced by appellant Mahinder. Needless to state, the
police officers deposed facts in harmony with the dates and
events which they claimed occurred during investigation
resulting in the recoveries.
25. Pooran Chand PW-2, deposed that he runs a tea shop
near the house of the deceased. On 22.04.1992 appellant
Prakash bought two cups of tea and one packet of biscuits
from him. At about 06.30 P.M. one boy came to him and
bought two cups of tea from him; that his son Chandan
collected utensils from that boy and that he cannot identify
the said boy. Chandan PW-15, the son of Pooran Chand,
deposed that on 25.04.1992 he had gone to house No.178
where two-three boys were living as tenants to collect the
utensils; that the said boys were not found in the said house
on the next day and that he cannot identify the said boys.
Be it noted here that a suggestion was given to the witness
in his cross-examination on behalf of appellant Prakash that
appellant Prakash had vacated the house of Rohtash on 20th
or 21st April 1992.
26. Manjit Singh PW-5 and Hardyal Singh PW-6, brother-in-
law and father of the deceased respectively, deposed that a
robbery had taken in the house of the deceased on the
intervening night of 25th and 26th April 1992. Be it noted
here that the articles recovered at the instance of
appellants were not shown to Hardyal Singh in his
examination-in-chief and thus there is no dock identification
of the recovered property.
27. Joginder Kaur PW-7, mother of the deceased, deposed
in harmony with her statement Ex.PW-7/A, the only variation
being that she deposed in Court that the robbers switched
on the light of the room in which she and the deceased were
sleeping at the time of the occurence. She identified the
appellants as the persons who had committed the robbery
in her house on the intervening night of 25 th and 26th April
1992 and caused the death of the deceased during the
course of the commission of the robbery. Additionally, she
deposed that three-four days after the incident the police
had brought appellants Bijender, Mahinder and Surinder and
accused Pooran to her house; that one day later the police
brought appellant Prakash to her house and that few days
later the police brought other two boys to her house. Be it
noted here that the articles recovered at the instance of the
appellants were not shown to the witness in her
examination-in-chief.
28. Rohtas Singh PW-8, owner of house No.178, deposed
that appellants Prakash and a person named Mahinder were
living in his house as tenants however the witness did not
correctly identify appellant Mahinder. Appellant Bijender
and two-three other boys whom he cannot identify used to
visit appellant Prakash and person named Mahinder at his
house. On 26.04.1992 the police had brought appellants
Prakash, Mahinder and four-five other boys to his house. On
being cross-examined by the prosecution the witness
deposed that appellants Surinder, Bijender and Pooran used
to visit appellant Parkash. On being cross-examined about
the tenancy of appellant Prakash in his house the witness
stated that „The accused remained in my house for about
one month and then he vacated. He had vacated my house
about 7/10 days before the police brought him to my
house.‟
29. Brij Lal PW-9, deposed that appellant Surinder had
recovered a T-shirt from his house in his presence. He
however turned hostile with respect to the recovery of four
silver coins at the instance of appellant Bijender. Suresh
Bhardwaj PW-10, turned hostile with respect to the recovery
of three silver coins at the instance of appellant Shiv Kumar.
Mohd Ajaj PW-20, turned hostile with respect to the recovery
of three silver coins at the instance of appellant Shiv Kumar.
Suraj Prakash PW-11, deposed that on 03.05.1992 the police
had recovered three daggers, three knives and two iron rods
from house No.178. On being cross-examined by the
prosecutor the witness deposed that the said articles were
recovered at the instance of appellant Prakash. Shiv Kumar
PW-19, deposed that in the year 1992 appellant Mahinder
had given a wrist watch to him.
30. In their statements under Section 313 Cr.P.C. the
appellants denied everything and pleaded false implication.
31. In defence, appellant Surender examined his father
Daya Nand as DW-1. He deposed that on 02.05.1992 at
about 05.15 A.M. the police had picked up his son Surender
from their house; he made a complaint Ex.DW-1/A to the
Commissioner of Police in said regard and posted the said
complaint on the evening of 02.05.1992 itself. He produced
the certificate Ex.DW-1/B issued by the postal authorities
regarding posting of the said complaint on 02.05.1992.
32. The other appellants chose to not to lead any evidence
in support of their defence.
33. As already noted herein above, the appellants were
held to be guilty of the all the charges framed against them.
With respect to appellant Prakash, it was held by the
learned Trial Judge that the factum of identification of
appellant Prakash by Joginder Kaur PW-7, as one of the boys
who had committed robbery in her house coupled with the
facts that appellant Prakash was a tenant in the house
No.178, which house was used by the robbers to flee from
the house of the deceased and that appellant Prakash
disappeared from the house No.178 on the very next day of
occurrence proves the complicity of appellant Prakash in the
crime(s) in question. With respect to appellants Mahinder,
Surinder, Bijender and Shiv Kumar it was held by the
learned Trial Judge that the factum of identification of
appellants Mahinder, Surinder, Bijender and Shiv Kumar by
Joginder Kaur PW-7, as the boys who had committed
robbery in her house coupled with the fact that the property
stolen from the house of the deceased were recovered at
the instance of the said appellants proves the complicity of
the said appellants in the crime(s) in question. With respect
to accused Pooran it was held by the learned Trial Judge
that it is not safe to convict accused Pooran in the present
case for the reason that except the identification of accused
Pooran by Joginder Kaur PW-7, as one of the boys who had
committed robbery in her house there is no other evidence
to link accused Pooran with the crime(s) in question.
34. From the afore-noted conspectus of facts, it is
apparent that the prosecution has relied upon following
circumstances to bring home the guilt of the appellants: -
I Identification of the appellants by Joginder Kaur as the
persons who had committed robbery in her house on the
intervening night of 25th and 26th April 1992 and committed
the murder of the deceased during the course of
commission of robbery.
II Appellant Prakash was residing as a tenant in house
No.178, which house was used by the robbers to enter and
exit into/from the house of the deceased and he
disappeared from said house on the next day of the
occurrence as established from the cumulative reading of
the testimony of Rohtash Singh PW-8, Puran Chand PW-2
and Chandan PW-15.
III Recovery of blood stained daggers and knives at the
instance of appellant Prakash and blood found on the said
daggers was of the same group as that of the deceased.
IV Recovery of articles stolen from the house of the
deceased at the instance of appellant Surinder, Bijender,
Mahinder and Shiv Kumar.
V Appellant Surinder and Bijender used to visit appellant
Prakash at house No.178.
35. Let us proceed to deal with the first circumstance
appearing against the appellants.
36. Joginder Kaur PW-7, is an injured witness. The
presence of an injured witness at the time and place of
occurrence cannot be doubted unless there are material
contradictions in his deposition. Nothing has been shown to
us by the learned counsel for the appellants which could
cast a doubt on the deposition of Joginder Kaur PW-7, that
she was present in the house of the deceased at the time
when the robbers committed robbery in the said house.
37. As already noted herein above, Joginder Kaur PW-7,
has identified the appellants as the persons who had
committed robbery in her house. Now, the crucial question
which arises for consideration is that whether Joginder Kaur
has correctly identified the appellants.
38. The facts, which establish the identity of an accused,
are relevant under Section 9 of the Evidence Act. As a
general rule, the substantive evidence of a witness is the
statement made by him in the Court. The evidence of
identification of an accused for the first time in the Court is
from its very nature inherently of a weak character. The
purpose of prior test identification, therefore, is to test and
strengthen the trustworthiness of that evidence. Absence of
test identification is not necessarily fatal in all cases. Failure
to hold test identification is fatal in cases where the witness
is a total stranger or the witness had just a fleeting glimpse
of the accused or the witness had no particular reason to
remember the accused. On other hand failure to hold test
identification is not fatal where the accused was known to
the witness or the identity of the accused was imprinted in
the mind of the witness.
39. In the instant case, the incident in question occurred
at around 01.00 A.M. on 26.04.1992. The appellants were
complete strangers to Joginder Kaur PW-7. Joginder Kaur did
not mention anything about the physical features of the
robbers in her statement Ex.PW-7/A. Joginder Kaur and the
deceased were sleeping at the time when the robbers
intruded in their house. Joginder Kaur testified in court that
the appellants switched on the lights of the room in which
she and the deceased were sleeping at the time of the
occurrence, which statement was conspicuously absent in
her statement Ex.PW-7/A. It could possibly be argued that
Joginder Kaur was grief-stricken and traumatized over the
death of the deceased at the time of the recording of the
statement Ex.PW-7/A and thus forgot to state the factum of
switching on of lights of the room by the appellants in the
statement Ex.PW-7/A. A close reading of the statement
Ex.PW-7/A of Joginder Kaur shows that Joginder Kaur had
given a vivid description of the incident in the said
statement, so much so that she has stated that the lights of
a room situated in the middle portion of her house was
switched on at the time when she and the deceased went to
sleep in another room in her house on the day of the
occurrence. It does not appeal to reason that Joginder Kaur
remembered to state an inconsequential fact that the lights
of a room situated in the middle portion of her house was
switched on at the time when she and the deceased went to
sleep in another room in her house on the day of the
occurrence but forget to state that an all important fact that
the appellants had switched on the lights of the room in
which she and the deceased were sleeping at the time of
the occurrence. The omission of Joginder Kaur to state the
fact that the appellants had switched on the lights of the
room in which she and the deceased were sleeping at the
time of the occurrence in her statement Ex.PW-7/A casts
considerable doubt on her testimony that the appellants had
switched on the lights of the room in which she and the
deceased were sleeping at the time of the occurrence. In
that view of the matter, we have to proceed on the basis
that the incident in question occurred in darkness.
40. In view of the facts that the appellants were complete
strangers to Joginder Kaur and that the incident occurred in
darkness, it was incumbent upon the police to conduct the
test identification proceedings of the appellants. Whereas
the prosecution has claimed that police sought to conduct
the test identification of the appellants but the appellants
refused to participate in the same on unjustifiable grounds
the appellants claimed that they were completely justified in
refusing to participate in test identification proceedings as
they were shown to the witness before the conduct of test
identification proceedings.
41. A close look at the evidence on record brings out that
there are three pieces of evidence which lend credence to
the claim of the appellants that they were shown to the
witness i.e. Joginder Kaur before the conduct of test
identification proceedings. The first piece of evidence is the
certificate Ex.DW-1/B issued by the postal authorities
regarding posting of the complaint Ex.DW-1/A on
02.05.1992, which complaint was made by the father of
appellant Surender to the Police Commissioner to the effect
that his son Surender was picked up by the police from his
house on the morning of 02.05.1992. The certificate Ex.DW-
1/B totally negates the claim of the prosecution that
appellant Surender was arrested by the police on
04.05.1992 for surely the father of appellant Surender could
not have foreseen that his son Surender would be arrested
by the police on 04.05.1992. The fact which emerges from
the certificate Ex.DW-1/B is that appellant Surender came
into the custody of the police on 02.05.1992 but his date of
arrest by the police has been shown as 04.05.1992. The
other two pieces of evidence are the deposition of Joginder
Kaur PW-7 that the police had brought appellants Surinder,
Bijender and Mahinder to her house three-four days after
the incident; that one day later the police brought appellant
Prakash to her house and that three-four days thereafter the
police brought remaining accused i.e. appellant Shiv Kumar
to her house and the deposition of her neighbor Rohtash
Singh PW-8, that the police had brought appellants
Mahinder and Prakash to his house on 26.04.1992. The
incident had occurred on the intervening night of 25 th and
26th April 1992, meaning thereby, that the police had
brought appellant Surinder, Bijender and Mahinder in the
house of Joginder Kaur between 28th April - 30th April 1992,
appellant Prakash between 29th April - 1st May 1992 and
appellant Shiv Kumar between 2nd May - 5th May 1992. The
aforesaid dates of visits of the appellants to the house of
Joginder Kaur and Rohtash Singh are prior to the dates on
which the police sought to conduct their test identification
proceedings. Not only that, the aforesaid dates are also
prior to the dates on which the appellants are shown as
arrested by the police, implying thereby that the appellants
came into the custody of the police before the dates on
which they are shown as arrested by the police. The afore-
said three pieces of evidences show contrivance on the part
of the police to implicate the appellants in the present case
and strongly probablize the possibility that the appellants
were shown to Joginder before the conduct of test
identification proceedings. As a necessary corollary to the
aforesaid, it has to be held that the test identification
proceedings sought to be conducted by the police were
improper and thus the appellants were justified in refusing
to participate in the same.
42. In view of the facts that the appellants were complete
strangers to Joginder Kaur, Joginder Kaur had little
opportunity to see the faces of the robbers as the incident
had occurred in darkness, Joginder Kaur had not mentioned
anything about the physical features of robbers in her
statement Ex.PW-7/A and the test identification proceedings
sought to be conducted by the police were improper, no
value can be attached to the identification of the appellants
by Joginder Kaur in the court.
43. The claim of Rohtash Singh PW-8, that appellant
Prakash used to reside as a tenant in his house i.e. house
No.178 stands admitted by appellant Prakash inasmuch as a
suggestion was given to Chandan PW-15 in his cross-
examination on behalf of appellant Prakash that he vacated
the house of Rohtash Singh on 20th or 21st April 1992. The
matter does not end here for the reason the claim of
appellant Prakash that he vacated house No.178 on 20th or
21st April 1992 i.e. before the date of the incident stands
corroborated by the deposition of Rohtash Singh that
appellant Prakash vacated his house seven-ten days prior to
the date on which the police had brought him to his house.
Rohtash Singh had deposed that the police had brought
appellant Prakash to his house on 26.04.1992, meaning
thereby, that appellant Prakash vacated his house between
17th April - 20th April 1992. When appellant Prakash had
vacated house No.178 prior to the date of the incident he
could not have gained access to the said house on the date
of the incident. The testimonies of Puran Chand PW-2 and
Chandan PW-15, are of no aid to the prosecution in
establishing the fact that appellant Prakash was residing as
a tenant in house No.178 on the date of the incident. As
already noted herein above, Puran Chand PW-2, has
deposed that on 22.04.1992 appellant Prakash had bought
two cups of tea and one packet of biscuits from his shop and
that on 25.04.1992 at about 06.30 - 07.00 P.M. some boy
had bought three cups of tea from his shop and his son
Chandan had collected utensils from that boy. The
testimony of Puran Chand merely brings out appellant
Prakash had bought two cups of tea and one packet of
biscuits from a shop situated in the neighborhood of house
No.178 few days before the date of the incident. Nothing
turns thereon for merely because appellant Prakash had
bought two cups of tea and one packet of biscuits from a
shop situated in the neighborhood of house No.178 few days
before the date of the incident does not imply that he was
residing as tenant in house No.178 on the date of the
incident. Chandan PW-15, had deposed that on 25.04.1992
at about 08.15 P.M. he had gone to house No.178 where
some boys were living as tenants to collect some utensils;
that said boys were not present in the said house on the
next day and that he cannot identify the said boys. The
testimony of Chandan merely brings out that some boys
who were residing as tenants in house No.178 were present
in said house on 25.04.1992 and that they were not found
present in the said house on the next day. There is nothing
to suggest that appellant Prakash was the one of the boys
who was found present in house No.178 by Chandan on
25.04.1992, particularly when owner of the said house
Rohtash Singh deposed that appellant Prakash had vacated
his house between 17th April - 20 April 1992.
44. In any case, even it is taken that appellant Prakash
was a tenant in house No.178 and that said house was used
by the robbers to enter and exit into/from the house of the
deceased the same is not proof of the guilt of appellant
Prakash in the absence of any other evidence connecting
appellant Prakash with the crime(s) with which he is alleged.
Appellant Prakash was not the sole occupant of house
No.178 inasmuch as there is evidence to show that besides
appellant Prakash at least one more person i.e. Rohtash
Singh was occupying the said house. Any of the occupants
of house No.178 could have been the persons who had
committed robbery in the house of the deceased and
caused the death of the deceased during the course of the
commission of the said robbery.
45. This takes us to the circumstances pertaining to the
recoveries made against the instance of the appellants.
46. It is settled law that mere recovery of an object at the
instance of an accused is a relevant fact only when it is
established by other evidence that the object recovered is
connected with the accused and the offence with which he
is charged. To put it pithly, the connection between the
object recovered, the accused and the offence with which
the accused is charged with must always be established by
„evidence alinude‟. In the instant case, witnesses; Joginder
Kaur PW-7 and Hardyal Singh PW-6, had identified the
articles allegedly recovered at the instance of appellant
Surinder, Mahinder, Bijender and Shiv Kumar as the articles
which were stolen by the robbers from their house during
the test identification of the said articles but said articles
were not shown to the said witnesses in their examination-
in-chief. Test identification parade belongs to the stage of
investigation. They do not constitute substantive evidence.
They are primarily meant for the purpose of helping the
investigating agency with the assurance that their progress
with the investigation into an offence is proceeding on the
right lines. The identification made by a witness during a
test identification parade can only be used as a
corroboration of the statement of said witness in court. In
the absence of statement made by a witness in the Court
regarding the identification of a person or thing, the
identification of the said person or thing by the witness in
the test identification proceedings is of no consequence.
That being the case, the position which emerges is that
there is no evidence to establish that the articles recovered
at the instance of appellants Surinder, Mahinder, Bijender
and Shiv Kumar were stolen by the robbers from the house
of the deceased. In that view of the matter, nothing much
turns on the fact that some articles were recovered at the
instance of appellants Surinder, Mahinder, Bijender and Shiv
Kumar.
47. Be that as it may, the recoveries allegedly made at the
instance of the appellants are not free from doubt. We have
already highlighted in the foregoing paras that the evidence
on record is suggestive of the contrivance on the part of the
police to falsely implicate the appellants in the present case.
There is one circumstance which casts considerable doubt
on the so-called recoveries made at the instance of the
appellants. As already noted herein above, the test
identification parade of the articles recovered at the
instance of appellants Surinder, Bijender and Shiv Kumar
were conducted on 25.05.1992 and that the articles which
were put up for identification included two wrist watches. As
per the prosecution, one wrist watch each was recovered
from appellant Bijender and Mahinder and that the recovery
of the wrist watch at the instance of appellant Mahinder was
made on 28.05.1992. It is a mystery to us that how come
wrist watch recovered at the instance of appellant Mahinder
was put up for identification prior to the recovery of the said
watch. It is more than apparent that the police had planted
wrist watch on appellant Mahinder. Similarly, the recovery of
blood-stained daggers and knives at the instance of
appellant Prakash is suspect. As per the prosecution, the
daggers and knives were recovered at the instance of
appellant Prakash from three-four polythene bags lying in a
room in house No.178 on 02.05.1992. The police had learnt
about the fact that house No.178 was used by the robbers
to enter and exit into/from the house of the deceased on
26.04.1992. Surely the police would have thoroughly
searched the house No.178. Had the daggers and knives
allegedly recovered at the instance of appellant Prakash
lying in house No.178 the same would have been found by
the police.
48. Nothing turns on the fact that appellants Surinder and
Bijender used to visit accused Prakash at house No.178
even it is assumed that appellant Prakash was one of the
persons who had committed robbery in the house of the
deceased and murdered the deceased during the course of
commission of robbery. Mere meeting of a person with a
person involved in a crime without there being any evidence
that such meeting was in connection with the commission of
the crime in question is not indicative of the guilt of the
person. We hasten to add that we find hardly any
worthwhile evidence against accused Prakash.
49. Except for the circumstances repelled by in the
foregoing paras, no other circumstance has been relied
upon by the prosecution to bring home the guilt of the
appellants. We thus hold that the prosecution has not been
successful in establishing the guilt of the appellants. The
evidence led against them is most uninspiring in quality and
character.
50. Before bringing the curtains down, it is most significant
to note that five chance prints were lifted by the police
from/around the almirah kept in the room in the intruded by
the robbers. It was categorically stated by Joginder Kaur in
her statement Ex.PW-7/A that the said almirah was opened
by the robbers. Yet for some strange reason the police
chose not to obtain the finger prints of the appellants. A
piece of evidence which could have turned out to be vital in
establishing the guilt of the appellants was not collected
during the investigation due to the callousness of the police.
This serious lapse committed by the police shows the
shoddy manner in which police conducts the
investigation(s). This court expects that in future the police
shall be more vigilant while conducting investigation(s) and
would ensure that no person would go scot free on account
of its lapses.
51. In view of the above discussion the instant appeals are
allowed. The appellants are acquitted of the charges framed
against them. The sentences imposed upon them are
quashed. Since the appellants are on bail the bail bonds
and surety bonds furnished by the appellants are
discharged.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
JUNE 01, 2011
dk
