Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 495 OF 2008
HEM SINGH @ HEMU … APPELLANT
Versus
STATE OF HARYANA … RESPONDENT
WITH
CRIMINAL APPEAL NO. 496 OF 2008
VINOD @ RAJU & ANR. …APPELLANTS
Versus
STATE OF HARYANA …RESPONDENT
J U D G M E N T
S.B. Sinha, J.
1. These two appeals arising out of a common judgment and order dated
1.8.2006 passed by a Division Bench of the Punjab & Haryana High Court
at Chandigarh in Criminal Appeal Nos. 311-DB of 2005 and 392-DB of
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2005 were taken up for hearing together and are being disposed of by this
common judgment.
2. Appellants were prosecuted for commission of offences punishable
under Section 302, 307, 353 and 34 of the Indian Penal Code (for short,
“IPC”). They were, it is of some significance, not charged for commission
of offence punishable under Section 25 of the Arms Act.
3. The prosecution case is as under.
During the night intervening 24/25.12.1999, Inspector Kuldeep Singh
(P.W.10) received a secret information that the accused Sattey (since
deceased), Sunil, Vinod, Hemu (appellants herein) and one Pappu @ Lilu
(absconding) of U.P. (said to be dacoits), would be coming to Lakarpur. On
the basis of the said information, Inspector Kuldeep Singh deputed ASI
Randhir Singh (P.W.3), Constable Ramesh Kumar (P.W.2) and Constable
Lasker Singh (deceased) to the said village in civil cloths. Allegedly, on
recognizing the policemen, accused persons opened fire and a gun battle
ensued between them. Accused Sattey alias Satender received a gun shot
injury. He died on the spot. Other accused persons were said to have fled
away. Constables Ramesh Kumar (P.W.2) and Lasker Singh chased them.
While the exchange of fire was going on, Lasker Singh received a gunshot
injury. He also died on the spot. P.W. 2 also received a gunshot injury.
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A First Information Report (“FIR” for short) was lodged by P.W.10 in
respect of the aforesaid incident at about 1.30 a.m. registered as FIR No. 775
dated 25.12.1999 under Sections 302, 307, 353 IPC and Sections 25, 45 and
59 of the Arms Act at P.S. NIT Faridabad.
On the same day, i.e. on 25.12.1999, P.W. 10 prepared a site plan in
which the name of the appellant - Hemu was not mentioned.
On or about 5.1.2000, P.W.10 arrested Vinod from Village Dagarpur,
Police Station Khekhra (UP). He was interrogated on 6.1.2000 and
11.1.2000 and on the basis of his purported disclosure, a pistol was
recovered. On or about 19.1.2000, the Investigating Officer arrested Sunil
from Delhi after obtaining warrants of his arrest and recorded his
confessional statement on 23.1.2000. He also took in possession the pistol
and the car said to have been used by the accused on 25.12.1999.
Indisputably, Hemu was arrested on 6.1.2000 by Inspector Palvinder
Singh (P.W. 17) while he was riding on a red Yamha Motorcycle.
Allegedly, a pistol was recovered from him. A case under Section 302, 185,
353 IPC and 27 Arms Act had been registered against him being FIR No. 4
of 2000 at P.S Sarita Vihar, New Delhi. A disclosure statement of Hemu was
recorded on or about 6.1.2000. It is alleged that Hemu was forced to admit
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his involvement in the present case and the said disclosure statement was
obtained by undue influence and coercion at the hands of police.
Indisputably, another disclosure statement of Hemu while he was in
police custody on 2.2.2000 was recorded wherein it was mentioned that the
Hemu and Lilu had fired at Constable Lasker Singh who had died. A case
under Arms Act was initiated against him. He was acquitted in the aforesaid
case by the learned Additional Sessions Judge, New Delhi in Appeal No.
101 of 2001 holding that the alleged firearm was not in a working order and
the same could not have been used.
The postmortem was conducted on the bodies of Constable Lasker
Singh and accused Sattey. The Postmortem reports were submitted and the
recovered articles were taken in custody and a memo therefor was prepared.
Accused Pappu could not be arrested, therefore, he was declared a
‘proclaimed offender’.
After completion of the investigation, charge sheet was filed against
Hemu, Vinod, Sunil (appellants herein) and Pappu @ Lilu. Charges under
Section 353, 302, 307 IPC read with Section 34 IPC were framed against the
accused persons while additional charge under Section 25 of the Arms Act
was framed only against Vinod.
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Accused persons denied the charges and claimed to be tried.
4. A large number of witnesses were examined by the prosecution in
support of its case.
After considering the materials on record, the learned trial judge,
Faridabad held all the accused persons guilty for commission of the offences
under Sections 302, 307 and 353 of IPC read with Section 34 of IPC.
However, Vinod was acquitted in respect of the charge under Section 25 of
the Arms Act.
5. Criminal Appeals preferred thereagainst were dismissed by the High
Court by reason of the impugned judgment, inter alia, holding:
“We do not find any merit in the arguments
advanced by the learned counsel for the appellants
that since no injury is attributed to Hem Singh
alias Hemu accused, therefore, he cannot be said to
have shared common intention with all the accused
because it has come in evidence that accused were
five in numbers. Admittedly, accused Sattey and
other accused were required in number of cases
relating to dacoity and other heinous crimes. The
police party had secret information and was
following them with an intention to nab them.
Such accused persons who always remained
equipped with the loaded arms to face resistance of
any kind from any source, certainly had the
common intention. It is something different that
out of five accused, one accused namely Sattey
died and the other ran away, whereas three accused
namely Hem Singh alias Hemu, Vinod and Sunil
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were arrested. The arms were recovered from
them, therefore, Hem Singh though has not been
attributed any injury, could not be said to have no
common object and did not participate in the crime
along with the accused, therefore, complicity of
accused Hem Singh alias Hemu cannot be ruled
out since the three accused were arrested and,
therefore, their conviction under Section 34 of IPC
was justiciable.
No other point has been urged and no law
has been cited to assail the impugned judgment.
The close scrutiny of the trial court
judgment does not suggest any apparent illegality
suggesting interference by us.”
6. It is not in dispute that none of the prosecution witness knew any of
the accused – appellants. However, in Column No.2 of the FIR, not only
their names but also their parentage and complete addresses were stated. It
is, however, not clear as to whether the name of the accused Hemu was
recorded in the said FIR or not, the translated version thereof has been
placed before us. We may reproduce the same:
“At the Police Station
On receipt of original writing a case (FIR)
under above said offence has been registered,
Copies of FIR have been prepared as per procedure
which are being sent to the concerned officers as a
special report through special constable Ram
Kishan No. 1825. Copy of police file together
with original writing is being sent to the Inspector
CIA for further investigation at the spot through in
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coming constable. I, the Inspector/SHO of the
police station along with C. Shiv Parshad 1441. C.
Suraj Mal 2106 on official Jeep driven by C.
Sunder Singh 1824 proceed to the spot.
Sd/- Kuldeep Singh
Insp./SHO P.S. NIT
Faridabad
Dt. 25.12.99
(in Hindi)
Received at 4.40 A.M. at my residence
Sd/-
CJM, Faridabad
25.12.99”
7. Accused Hemu was arrested on 6.1.2000 at Delhi. He was found to
have been in possession of a firearm. In that case, he is said to have been
confessed his involvement in the present case. He was arrested in this case
on 22.1.2000 on the basis of a production warrant issued from Delhi by
P.W.10.
It, however, now stands admitted that as on the date of commission of
offence Hemu was not involved in any other criminal case. It is also
undisputed that accused Vinod has been acquitted in the case of possessing a
firearm.
We may furthermore place on record that three bullets were recovered
by the investigating officer; two of them which had hit Accused Sattey and
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Constable Lasker Singh were fired from .38 bore revolver. .38 bore
revolvers indisputably were used by the police officers.
P.W.2 Ramesh, however, received a gunshot injury fired from .315
weapon. No such weapon was recovered from accused Sunil, Vinod or
Hemu.
So far as the recovery of weapon from Hemu and Sunil are concerned,
as noticed hereinbefore, Hemu had been acquitted of the charge of
possessing any weapon by a Delhi Court.
So far as the finding of the High Court that Sattey and the other
accused persons were required in a number of cases for committing dacoity
and other heinous crimes are concerned, we may notice that Kuldeep Singh
(P.W. 10) categorically admitted that no case was pending against accused
Hemu at the time of occurrence.
8. The learned trial judge did not frame any charge as against Hemu or
Sunil for commission of offence under the Arms Act. Even Vinod was
acquitted of that charge.
Appellants herein admittedly were not known to the police officers.
Only Sattey was known to them. P.W.1 – Anoop Singh in his deposition
categorically admitted that he did not know the assailants previously. After
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their arrest, no identification parade test was held. Although the first
informant as also witnesses in their depositions proceeded on the basis that
all the accused had been coming in a Maruti Car and they were heavily
armed, no arm was recovered from any of them.
The only statement which was relevant for this case had been made by
P.W.2 – Ramesh Kumar in the following terms:
“Accused Sattey, who has since died said to his
companions pointing towards us, that police men
in plain clothes have come and called upon Lilu,
Hem Singh and Vinod to open fire on us. Then
those persons who were five in number started
firing at us.”
9. How their names could be taken is beyond anybody’s comprehension.
Even two persons, namely, Lilu and Vinod were called by their first names.
How the Officer In-charge even could ascertain their actual names has not
been disclosed. He admitted that apart from Sattey, he had not seen any
accused persons on previous occasion. Why despite the same, identification
parade was not held has not been explained. Appellants were identified only
in court.
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10. Mr. Rajeev Gaur ‘Naseem’ learned counsel appearing on behalf of the
State would contend that identification for the first time in court is
permissible in law.
There cannot be any dispute so far as the aforementioned proposition
of law is concerned. The said principle, however, should be applied having
regard to the facts and circumstances of each case. Courts, as is well known,
ordinarily, do not give much credence to identification made in the court for
the first time and that too after a long time.
In Mahabir v. The State of Delhi [2008 (6) SCALE 52], this Court
held:
“10. As was observed by this Court in Matru v.
State of U.P. (1971 ) 2 SCC 75 identification tests
do not constitute substantive evidence. They are
primarily meant for the purpose of helping the
investigating agency with an assurance that their
progress with the investigation into the offence is
proceeding on the right lines. The identification
can only be used as corroborative of the statement
in court. ( See Santokh Singh v. Izhar Hussain
(1973) 2 SCC 406 ). The necessity for holding an
identification parade can arise only when the
accused are not previously known to the witnesses.
The whole idea of a test identification parade is
that witnesses who claim to have seen the culprits
at the time of occurrence are to identify them from
the midst of other persons without any aid or any
other source. The test is done to check upon their
veracity. In other words, the main object of
holding an identification parade, during the
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investigation stage, is to test the memory of the
witnesses based upon first impression and also to
enable the prosecution to decide whether all or any
of them could be cited as eyewitnesses of the
crime. The identification proceedings are in the
nature of tests and significantly, therefore, there is
no provision for it in the Code and the Indian
Evidence Act, 1872 (in short the 'Evidence Act'). It
is desirable that a test identification parade should
be conducted as soon as possible after the arrest of
the accused. This becomes necessary to eliminate
the possibility of the accused being shown to the
witnesses prior to the test identification parade.
This is a very common plea of the accused and,
therefore, the prosecution has to be cautious to
ensure that there is no scope for making such
allegation. If, however, circumstances are beyond
control and there is some delay, it cannot be said to
be fatal to the prosecution.”
11. It is trite to say that the substantive evidence
is the evidence of identification in Court. Apart
from the clear provisions of Section 9 of the
Evidence Act, the position in law is well settled by
a catena of decisions of this Court. The facts,
which establish the identity of the accused persons,
are relevant under Section 9 of the Evidence Act.
As a general rule, the substantive evidence of a
witness is the statement made in Court. The
evidence of mere identification of the accused
person at the trial for the first time is from its very
nature inherently of a weak character.”
{See also Amitsingh Bhikamsing Thakur vs. State of Maharashtra [(2007) 2
SCC 310]}
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In the present case, P.W.1, 2 and 3 in their depositions admitted that
they had not been knowing the accused from before and despite so, no test
identification parade was held. The accused persons having been identified
for the first time in the court, it is difficult for any court to rely upon the
same and that too after such a long time.
11. As indicated hereinbefore, appellants were not known to the police
officers; they were not involved in any other case. In fact, so far as the
Hemu is concerned, no case at the relevant time was pending against him.
Only because Sattey allegedly called them by their names, which appears to
be wholly unlikely, they could not have been identified particularly in view
of the fact that the incident had taken place in an isolated area and that too
on a dark night.
In Bollavaram Pedda Narsi Reddy and Others v. State of Andhra
Pradesh, [ (1991) 3 SCC 434)], this Court held:
“In the present case, the appellants are admittedly
persons with whom the two witnesses had no
previous acquaintance. The occurrence happened
on a dark night. When the crime was committed
during the hours of darkness and the assailants are
utter strangers to the witnesses, the identification
of the accused persons assumes great importance.
The prevailing light is a matter of crucial
significance. The necessity to have the suspects
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identified by the witnesses soon after their arrest
also arises…”
In Nathuni Yadav vs. State of Bihar [(1998 ) 9 SCC 238],
whereupon reliance has been placed by the learned counsel for the State,
this Court observed that the lack of moonlight or artificial light does not
per se preclude identification of the assailants. It was noted as follows
(particularly where the accused are known from before):
“Even assuming that there was no moonlight then,
we have to gauge the situation carefully. The
proximity at which the assailants would have
confronted with the injured, the possibility of some
light reaching there from the glow of stars, and the
fact that the murder was committed on a roofless
terrace are germane factors to be borne in mind
while judging whether the victims could have had
enough visibility to correctly identify the
assailants. Over and above those factors, we must
bear in mind the further fact that the assailants
were no strangers to the inmates of the tragedy-
bound house, the eyewitnesses being well
acquainted with the physiognomy of each one of
the killers. We are, therefore, not persuaded to
assume that it would not have been possible for the
victims to see the assailants or that there was
possibility for making a wrong identification of
them. We are keeping in mind the fact that even
the assailants had enough light to identify the
victims whom they targeted without any mistake
from among those who were sleeping on the
terrace. If the light then available, though meagre,
was enough for the assailants why should we think
that the same light was not enough for the injured
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who would certainly have pointedly focussed their
eyes on the faces of the intruders standing in front
of them. What is sauce for the goose is sauce for
the gander.”
The said principle was reiterated in Bharosi vs. State of M.P.
[(2002) 7 SCC 239] and S. Sudershan Reddy vs. State of A.P. [(2006) 10
SCC 163].
{See also State of U.P. vs. Sheo Lal & Ors. [2009 (2) SCALE 582]}
However, in our opinion, the said principle is not applicable in the
present case as there was no specific targeting by the assailants here.
What ensued between the parties was a pitched gun battles which lasted
for only five to six minutes close to midnight and that too at a
considerable distance.
12. Mr. Naseem would also submit that as Sattey was involved in
commission of a large number of offences, all others could be proceeded
against for commission of offence under Section 302/49 of the IPC.
Reliance in this behalf has been placed on Yunis Alias Kariya vs.
State of M.P. [(2003) 1 SCC 425], wherein it was held:
“ 9. The learned counsel appearing for appellant
Liyaquat argued that no overt act is imputed to his
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client and he was being implicated only on the
basis of Section 149 IPC. This argument, in our
view, has no merit. Even if no overt act is imputed
to a particular person, when the charge is under
Section 149 IPC, the presence of the accused as
part of an unlawful assembly is sufficient for
conviction.”
Although the proposition of law enunciated therein is not in question,
herein no charge under Section 149 has been framed. Existence of any
common object amongst the accused had also not been proved.
13. Sattey furthermore could not have been instrumental in murdering
Lasker Singh. Laskar Singh died of a firearm injury shot from a service
revolver, i.e., at the hands of the police party only. Such a revolver, thus,
was not and could not have been used by any of the accused persons.
14. For the aforementioned reasons, the impugned judgment of the High
Court cannot be upheld. The appeals are allowed. The appellants are
directed to be set at liberty unless wanted in connection with any other case.
.……………………………….J.
[S.B. Sinha]
...…………………………..…J.
[Dr. Mukundakam Sharma]
New Delhi;
May 06, 2009