Research › Search › Judgment

Punjab High Court · body

2005 DIGILAW 737 (PNJ)

Virender Singh Alias Nanha v. State Of Haryana

2005-07-13

RAJIVE BHALLA

body2005
Judgment Rajive Bhalla, J. 1. This judgment shall dispose of two appeals, namely, Crl. Appeals No. 365-SB of 1991 and 366-SB of 1991, as these arise from the same judgment and order, passed by the Additional Sessions Judge-III, Rohtak. 2. The appellants, in these appeals, have been convicted under Sections 307, 395 read with Section 397 and Section 34 of the Indian Penal Code. Virender- appellant was sentenced to undergo RI for a period of seven years under Section 392 read with Section 397 of the Indian Penal Code, and for a period of seven years under Section 307 of the Indian Penal Code. Surinder-appellant was sentenced to under to RI for a period of five years, under Section 395 of the Indian Penal Code, and for seven years, under Section 307 of the Indian Penal Code. The sentences were ordered to run concurrently. 3. Ashil Kumar, the complainant, resident of village Bhandani, Tehsil and District Jhajjar was employed as a driver on a cream colour Maruti Van No. DAE 2584, owned by one Malik. On 26.12.1989, at about 8.30 am, while Ashil Kumar was present with his van at the taxi stand, two persons (later identified as the present appellants) hired his Maruti van for travelling to village Sevali via Lowa and also from Bahadurgarh to Bamnaulli. After leaving Bahadurgarh, the younger of the two occupants told the elder on that they should stop in village Bamnaulli, as he had to receive money from a relative. The elder of the two, however, directed Ashil Kumar to stop the vehicle, once they were outside the village. Ashil Kumar stopped the Maruti Van, as directed at the outskirts of village Bamnauli, a shot distance on the Nizampur road. The elder of the two immediately shot Ashil Kumar in his left ribs, while the younger one drew a pistol. Ashil Kumar opened the door and tried to escape. The two snatched the ignition key of the van and sped towards Nizampur. 4. Statement of Ashil Kumar was recorded by SI Sher Singh of Police Station Bahadurgarh at Medical College, Rohtak, the essence whereof has been narrated above. However, he disclosed another fact that the left hand wrist of the younger person was fractured and while travelling with him, they had stopped at village Shidipur Lowa and got the injury dressed from a person whom, the elder of the two, addressed as Chacha. However, he disclosed another fact that the left hand wrist of the younger person was fractured and while travelling with him, they had stopped at village Shidipur Lowa and got the injury dressed from a person whom, the elder of the two, addressed as Chacha. Ashil Kumar also disclosed the age, height and other physical features of the two accused. 5. On the basis of the aforementioned statement, FIR No. 403, dated 26.12.1989, under Section 397 of the IPC was registered at Police Station Sadar Bahadurgah. Blood-stained earth was lifted from the place of occurrence, vide a recovery memo, the statement of one Changer son of Gopi Ram, who had dressed the wound of the younger of the two accused, was also recorded. 6. The accused were arrested by the Delhi Police in another case and were transferred from Delhi. On 5.1.1990, appellant Virender Singh divulged, during interrogation, that he had parked the Maruti van near a brick kiln in the area of village Tavadu, as it had gone out of order. The Maruti van was recovered, as also the stepney, insurance, registration certificate and the driving licence of Ashil Kumar. Vide order dated 3.7.1990, charges were framed against the appellants. Thereafter, the prosecution led its evidence in the shape of 15 witnesses. In their statements, under Section 313 of the Cr.P.C., the appellants denied the correctness of the prosecution evidence and set up a plea of false implication. However, they declined to lead any evidence in defence. 7. After hearing arguments on behalf of the prosecution, as also the defence, the Additional Sessions Judge-III, Rohtak found the recoveries effected as doubtful, but accepted the evidence regarding the identity of the appellants and convicted and sentenced the appellants, as has been detailed in the earlier part of the judgment. Hence the present appeal. 8. The sole contention, raised by counsel for the appellants, is that the prosecution failed to conclusively establish the identity of the perpetrators, of the alleged crime. The evidence adduced, to identify the appellants i.e. the statement of PW-8-Ashil Kumar, the complainant, and PW-11 Chander son of Gopi Ram, resident of Siddipur Lowa, the person who is alleged to have dressed an alleged fracture, suffered by younger of the two accused, mentioned in the FIR is inherently unreliable. 9. Counsel for the appellants contends that admittedly, the appellants were not known to the complainant. 9. Counsel for the appellants contends that admittedly, the appellants were not known to the complainant. In this situation, it was obligatory for the prosecution, to have established the identity of the appellants, beyond a shadow of doubt. It was imperative to conduct a test identification parade. The failure of the prosecution to hold a test identification parade, renders the findings, returned by the trial Court regarding identification of the appellants, null and void. 10. It is further contended that the trial Court disbelieved the alleged recoveries and, therefore, should have discarded the entire prosecution case. 11. Reliance for the above proposition is placed upon the judgments reported as Kerma and another v. State of M.P., 2004(2) RCR(Criminal) 587, U.T. Chandigarh v. Mohan Lal, 2004(2) RCR(Criminal) 799 and Bommidi Malli Kharjuna @ Malka v. State of A.P., 2004(3) RCR(Criminal) 655. 12. It is further argued by counsel for the appellants that identification of the appellants in Court is insufficient and must be discarded, as the appellants were in all likelihood, shown, by the police, to the complainant. Even otherwise, identification in Court, is an unsafe method to establish the identity of an accused. 13. It is further contended that the second witness, PW-11 Chander, who is alleged to have identified the appellants, belongs to the village of appellant Virender Singh. PW-11 Chander is the witness, who allegedly dressed a fracture on the writs of appellant Surinder Singh. His testimony is liable to be discarded, as the prosecution failed to adduce any evidence that Surinder Singh appellant had ever suffered a fracture. The failure of the prosecution to subject Surinder Singhs wrist to an X-ray examination, which examination would have disclosed the existence or otherwise of a fracture is a fatal flaw in the prosecution case and renders the testimony of PW-11 Chander unreliable. The next point on which PW-11 Chanders testimony is impugned, is that there was a dispute between the father of Virender Singh and Ram Partap, a relative of Chander and, therefore, he had a reason to falsely implicate Virender Singh appellant. 14. On the basis of the aforementioned arguments, counsel for the appellants contends that the identification of the appellants, being doubtful, the trial Court erred in convicting and sentencing the appellants on such sketchy, uncorroborated and unreliable evidence. 15. 14. On the basis of the aforementioned arguments, counsel for the appellants contends that the identification of the appellants, being doubtful, the trial Court erred in convicting and sentencing the appellants on such sketchy, uncorroborated and unreliable evidence. 15. Counsel for the respondent, on the other hand, contends that sufficient evidence has been produced by the prosecution to establish the identity of the perpetrators of the crime. The complainant, PW-8 Ashil Kumar, had described the two accused who hired his taxi, shot him and sped away with the taxi, in FIR. Thereafter, while deposing as PW-8, he identified the appellants as the persons, who hired his Maruti van, shot him and then sped away with the Maruti van. The identification by PW-8, the complainant, is corroborated by the statement of PW-11 Chander. After hiring the taxi, the appellants directed Ashil Kumar to proceed to village Shidipur Lowa where PW-11 Chander dressed a fracture on the writ of appellant Surinder Singh. The appellants have been identified correctly and, therefore, there is no reason to doubt the correctness of the statement of complainant. It is further contended that merely because the trial Court has disbelieved the recovery would be no reason to disbelieve the identity of the accused. 16. For the above proposition, counsel for the respondent places reliance upon the judgment reported as Romesh Kumar and others v. State of Punjab, 1993(3) Recent Criminal Reports 161 (SC), Visveswaran v. State represented by SDM, 2003(3) RCR(Crl.) 1 (SC), and Dana Yadav @ Dahu and others v. State of Bihar, 2002(4) RCR(Criminal) 314. 17. I have heard learned counsel for the parties and perused the record of the case. 18. Counsel for the appellants, as is apparent from the submissions noted above, impugns the conviction and sentence on the sole ground that the prosecution has failed to link the identity of the perpetrators of the crime with the appellants. 19. The judgments, cited by counsel for the appellants, are inapplicable. 18. Counsel for the appellants, as is apparent from the submissions noted above, impugns the conviction and sentence on the sole ground that the prosecution has failed to link the identity of the perpetrators of the crime with the appellants. 19. The judgments, cited by counsel for the appellants, are inapplicable. The Honble Supreme Court in Dana Yadav @ Dahu and others v. State of Bihar, 2002(4) RCR(Criminal) 314 (SC), after reviewing the entire law regarding the identification, as also the value of, or the absence of a test identification parade, held as follows :- "35(c) Evidence of identification of an accused in Court by a witness is substantive evidence whereas that of identification in test identification parade is, though a primary evidence but not substantive one, and the same can be used only to corroborate identification of accused by a witness in Court. (e) Failure to hold test identification parade does not make the evidence of identification in Court inadmissible rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in Court should not form basis of conviction, the same being from its very nature inherently of a week character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in Court of an accused by a witness and the same is a rule of prudence and not law. (f) In exceptional circumstances only, as discussed above, evidence of identification for the first time in Court, without the same being corroborated by previous identification in the test identification parade or any other evidence can form the basis of conviction. (g) Ordinarily, if an accused is not named in the first information report, his identification by witnesses in Court, should not be relied upon, especially when they did not disclose name of the accused before the police, but to this general rule there may be exceptions as enumerated above." 20. A persual of the principles, enunciated in the above judgment, makes it apparent that identification of an accused in Court is substantive piece of evidence. It is further held that identification in Court can be relied upon, if corroborated either by previous identification or by other evidence. A persual of the principles, enunciated in the above judgment, makes it apparent that identification of an accused in Court is substantive piece of evidence. It is further held that identification in Court can be relied upon, if corroborated either by previous identification or by other evidence. The mere absence of a test identification parade, in the presence of cogent corroborative evidence of identification, would not negate the identification made by a witness in Court, provided the said identification is corroborated by a prior identification or by any other cogent evidence. 21. The accused were initially described by their physical features by Ashil Kumar, while lodging FIR. They were identified by him in Court, during his deposition as PW-8 as the persons who had hired his taxi, fired upon him and drove away with his taxi. While lodging the FIR, PW-8 Ashil Kumar stated that after hiring his taxi, the accused had directed him to drive to village Shidipur Lowa where they visited a person whom they addressed as "Chacha". This person dressed a fracture on the wrist of the younger of the two accused. This individual was traced by the police and produced in evidence as PW-11, namely, Chander. He has corroborated the statement of Ashil Kumar and deposed that on the date of occurrence, Surinder Singh appellant was brought to him by Nahna @ Virender Singh. He identified the appellants as the persons who visited him. He further deposed that he dressed Surinder Singhs fractured wrist. The statement of Ashil Kumar, as to the identity of the offenders, thus, stands corroborated by the statement of PW-11 Chander and, thus establishes beyond a shadow of doubt that the appellants were the perpetrators of the crime. A lame attempt was made to impugn the credibility of PW-11 Chander by suggesting a dispute between his relative and Virender Singhs father. The said suggestion was rightly repelled by the trial Court and in my opinion does not, in any manner, detract from the veracity of this witnesss deposition. Both witnesses, while deposing in Court, withstood the onslaught of cross-examination and no infirmity has been pointed out and none is discernible from their depositions. The absence of a test identification parade, in the circumstances of the present case, does not detract from the correctness of the identification of the accused by PW-8 Ashil Kumar, as corroborated by the statement of PW-11 Chander. The absence of a test identification parade, in the circumstances of the present case, does not detract from the correctness of the identification of the accused by PW-8 Ashil Kumar, as corroborated by the statement of PW-11 Chander. The identity of the accused stood established and, therefore, the trial Court rightly accepted the prosecution version. This evidence, regarding identification, fulfills the parameters laid down by the Honble Supreme Court in Dana Yadav @ Dahus case (supra). 22. The next point urged is that the prosecution failed to adduce any evidence to establish that Surinder Singhs wrist had been fractured. Such a contention would have been relevant, if there was no evidence to corroborate the statement of PW-8 Ashil Kumar. In the presence of clear and categoric depositions of PW-8 and PW-11, as to the identity of the accused, and their unambiguous identification of the appellants, as the individuals referred to in the FIR, the aforementioned plea assumes insignificance and is, therefore, rejected. 23. Another factor that dissuades me from accepting the contention, raised by counsel for the appellant, is that Ashil Kumar complainant had no cause to falsely implicate the appellants. Admittedly, Ashil Kumar had no prior acquaintance with the appellants and, therefore, had no reason to falsely implicate the appellants. 24. The trial Court, upon a perusal of the statements of PW-8 and PW-11, held, in no one uncertain terms, that the identification of the appellants by Ashil Kumar, during his deposition in Court, corroborated by the deposition of PW-11 Chander, was sufficient to establish that the appellants were the two individuals, who fired at Ashil Kumar and snatched his Maruti van. The trial Court examined the statements of the aforementioned witnesses in detail and accepted the veracity of Ashil Kumars statement as PW-8, as corroborated by Chander PW-11. 25. In view of what has been held above, I find no merit in the present appeals and consequently dismiss the same. Bail bonds of the appellants are cancelled and they be arrested forthwith to undergo their remaining sentence.