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2010 DIGILAW 597 (PNJ)

Sukhwinder Singh v. State Of Punjab

2010-01-25

SABINA

body2010
Judgment SABINA, J. 1. The appellant was convicted for an offence under Sec.364 of the indian Penal Code ("ipc"- for short) vide judgment dated 5.6.1998 by the additional Sessions Judge, Ludhiana. Vide order of the even date, the appellant was sentenced to undergo rigorous imprisonment for a period of ten years and a fine of Rs.5,000/-. Hence, the present appeal. 2. Prosecution case, as noticed by the trial Court in para No.2 of its judgment, is reproduced herein below:- "this case was registered at the instance of Smt. Bharwai Devi and her statement is Ex. PW-8/a recorded on 28.5.1992 by Inspector Ramandeep Singh. According to her statement, she was resident of Khandoor village and had three sons Surinder kumar, Sushil Kumar and Krishan Lal. On 28.5.1992 at about 9 p. m. there was knock at the door. Her husband and Krishan Lal were out of station, when she opened the door, three young sikh men entered the door. She gave their description also and they were between 20 to 25 years of age. They were armed with weapons like pistol and one of them armed with gun. One of them went upstairs where Sushil Kumar was sleeping and other sikh person entered the room of Surinder Kumar. They took her two sons who were aged 24 years and 22 years with them inspite of her resistence. Both of sons did not return during the night and in the morning, she reported the matter to the Sarpanch. On 29.5.1992, the statement of Sat Pal was recorded about the abduction of Pawan kumar s/o Gulab Chand and all the three persons mentioned above were found dead and their dead bodies were recovered. On the basis of this statement of smt. Bharwai Devi, FIR was registered and the case was investigated. It was in the course of investigation that four dead bodies were found recovered. Out of surinder Kumar, Sushil Kumar, Gulzar Singh and Pawan Kumar. They were got identified through their relatives and after the completion of the investigation, the challan was presented against jagdish Singh @ Bhira as proclaimed offender and present accused Sukhwinder singh. It was presented on 20.10.1994. " 3. After hearing learned counsel for the parties, I am of the opinion that this petition deserves to be allowed. The appellant was convicted for an offence under Sec.364 IPC. It was presented on 20.10.1994. " 3. After hearing learned counsel for the parties, I am of the opinion that this petition deserves to be allowed. The appellant was convicted for an offence under Sec.364 IPC. During trial, none of the witnesses supported the prosecution case apart from PW-9 Barwai Devi. The said witness is the mother of Surinder Kumar and Sushil Kumar. As per the said witness, the occurrence had taken place on 28.5.1992. Three Sikh youths had entered her house. Her husband and her son Krishan Lal were out of station. When she opened the door, one out of three persons went on the roof where Sushil Kumar (her son) was sleeping and one person entered the room where Surinder Kumar (her son) was sleeping. One person stood near her. She did not give the exact description of the persons, who had entered her house at the time of registration of the FIR but simply stated that three persons aged about 22-25 years had entered her house. One person was heavily built, whereas, the other two persons were slim built. PW-9, in her cross-examination, admitted that she had not participated in any identification parade. Thus, after the occurrence she first time identified the accused when she appeared in the witness box on 30.3.1998. Even, while appearing in the witness box, she has not been able to tell as to whether the accused had stood near her or he was the one who went into the room of her sons Sushil Kumar and Surinder Kumar. In these circumstances, it would not be safe to rely on the sole testimony of pw-9. A witness who identifies an accused, who is not known to her in the Court for the first time, then her evidence loses its value unless there has been a previous test identification parade. The idea of holding test identification parade is to test the veracity of the witness on the question of her capability to identify an unknown person whom the witness may have seen only once. However, where no test identification parade is conducted then it is unsafe to rely on the bare testimony regarding the identification of the accused for the first time in the Court. However, where no test identification parade is conducted then it is unsafe to rely on the bare testimony regarding the identification of the accused for the first time in the Court. The prosecution should have arranged a test identification parade and got the accused identified from the witness before the said witness was called upon to identify the appellant/accused in the court. Hence, the trial Court erred in basing reliance on the sole testimony of pw-9 qua identification of the appellant where no test identification parade had been conducted earlier. 4. Accordingly, this appeal is allowed. The appellant is acquitted of the charge framed against him.