PREM SINGH Vs STATE OF HARYANA
Bench: HARJIT SINGH BEDI,GYAN SUDHA MISRA, , ,
Case number: Crl.A. No.-000925-000925 / 2009
Diary number: 23023 / 2008
Advocates: Vs
PRAGATI NEEKHRA
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[ REPORTABLE ]
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 925 OF 2009
Prem Singh ….Appellant
Versus
State of Haryana ….Respondent
J U D G M E N T
HARJIT SINGH BEDI, J.
This appeal by way of special leave arises out of the
following facts:
1. At about 9.20 a.m. on the 26th November 1993 PW-16
Sohan Lal, the brother of the deceased Siri Krishan, was out
for a morning walk when he was informed by his neighbour
Vijay Kumar that some persons had come in a white
coloured Maruti car and had halted in front of Siri Krishan
and had fired shots at him causing him serious injury.
Sohan Lal PW-16 then rushed to the site and removed Siri
Krishan to the Government hospital where he was declared
brought dead on arrival. His statement was then recorded
by PW-24 Sub-Inspector Gurcharan Singh in the
Government hospital who reached there on receiving
information from the doctor. The Inspector inspected the
dead body and took steps to have it subjected to a post-
mortem. He also visited the place of occurrence and
recovered several empty cartridges and a spent bullet from
the spot. Inspector Om Parkash PW-23 also went to the site
of the murder at 12.30 p.m. and recorded the statements of
PW-11 Sohan Lal son of Anant Lal and PW-12 Bhagat Lal
son of Banarsi Dass at 1:30 p.m. who claimed to be the eye
witnesses to the murder. He also recorded the statement of
PW-13 Pushpa Devi, the widow of the deceased, who gave
the information that Daulat Ram had a property dispute
with her husband and this murder had been committed as
a consequence of the conspiracy hatched by him along with
his co-accused. Further investigation was also done by PW-
27 Inspector Gordhan Singh. He arrested Daulat Ram on
the 4th January 1994, and Prem Singh accused 10 days
later from Tihar Jail where he was already incarcerated in
some other criminal case. Prem Singh was also sought to
be produced for a test identification parade but he declined
to do so. Ballu accused was arrested on the 18th January
1994 and a pistol was recovered on a statement made by
2
him, Vishwa Bandhu accused was arrested on the 23rd
January 1994 and an effort was made to put him up for an
identification but he too declined the offer. The other two
accused Radhey Shyam and Surinder were arrested on the
19th April 1994 and 27th May 1994 respectively. On the
completion of the investigation, the accused were charged
for offences under Sections 302/149 and 120-B of the
Indian Penal Code and Section 27 of the Arms Act and were
accordingly brought to trial.
2. The prosecution in support of its case placed primary
reliance on the testimony of PW-11 Sohan Lal and PW-12
Bharat Lal who claimed to be the eye witnesses to the
murder, PW-13 Pushpa Devi who deposed to the property
dispute between her husband and Daulat Ram accused and
PW-16-Sohan Lal the first informant, who had received the
information of the murder from Vijay Kumar. Vijay Kumar
was, however, not examined. The Trial Court observed that
on the basis of the evidence of the prosecution witnesses, as
led, no evidence whatsoever had been spelt out against
Satish and Surinder and they were accordingly acquitted
even prior to the recording of the statements of the accused
3
under Section 313 of the Cr.P.C. The Trial Court then, very
comprehensively, examined the evidence against the other
accused and recorded several reasons which have been
spelt out by the High Court in its judgment and we quote
therefrom herein below:
“(i) Vijay Kumar who informed PW-16 Sohan Lal, brother of the deceased about the occurrence, was not examined, which was necessary for unfolding of the narrative of the prosecution.
(ii) PW-11 Sohan Lal and PW-12 Bharat Lal were falsely introduced as eye witnesses. Both of them claimed to have come from Punjab about two months prior to the occurrence. One of them shifted back to Sunam. They did not have any proof of residence of Karnal. PW-11 Sohan Lal was employee of brother-in- law of the deceased. They did not go to the police station to lodge the report. Their names were mentioned in the FIR. Their versions were discrepant on the issue of the person who caught hold of the deceased Satish or Ballu. Their normal conduct was to be to go to the house of the deceased to give information. There were further discrepancies in their versions about the direction from which the car came.
(iii) Recoveries and linkage of pistols with the empty cartridges was not free doubt.
(iv) Identification in Court was not reliable. (v) The accused were arrested from one or the other lock up and could have been shown to the witnesses.
(vi)No adverse inference could be drawn by their refusing to take in the TIP.
(vii)Charge of conspiracy was without any basis.”
3. The trial court accordingly acquitted all the accused of
the charges leveled against them. An appeal was thereafter
4
filed in the High Court by the State of Haryana against the
acquittal of 5 of the accused, that is Daulat Ram, Prem
Singh, Ballu, Radhey Shyam and Vishwa Bandhu. The
High Court has, vide its judgment under challenge before
us, confirmed the acquittal of Daulat Ram, Ballu @ Vijender
and Radhey Shyam accused and dismissed the appeal but
has set aside the judgment qua Prem Singh and Vishwa
Bandhu and they have been convicted and sentenced to life
imprisonment for the offence under Section 302/34 etc.
The present appeal has been filed by Prem Singh alone.
4. The learned counsel for the appellant has raised
several pleas before us. He has first pointed out that the
prosecution story hinged primarily on the motive which
Daulat Ram carried as he bore some animosity with the
deceased and that he had obtained the services of the other
accused who were apparently hired assassins to get rid of
him and as Daulat Ram had been acquitted, the entire story
perforce must fall through. He has also pointed out that the
only witness who could have sworn to the incident was Vijay
Kumar who had informed PW-16 Sohan Lal that he had
witnessed the murder on which the latter had reached the
5
spot, taken victim to the hospital and thereafter lodged the
FIR but surprisingly Vijay Kumar had not even been cited
as a witness and PW-11 Sohan Lal and PW-13 Bharat Lal
had subsequently been introduced as eye witnesses clearly
spelt out that the prosecution evidence could not be relied
on, more particularly as their presence had not been
explained and their conduct immediately after the incident
also did not inspire confidence. It has also been pointed out
that merely because three of the accused had refused to join
the test identification parade would not by itself be of any
significance as the accused had alleged that they had
already been shown to the witnesses.
5. The learned counsel for the State of Haryana has,
however, supported the judgment of the High Court.
6. We see that of the 7 accused only 2 stand convicted
whereas the evidence with respect to all of them is identical.
In this background, it has also to be borne in mind that the
High Court’s interference in an appeal against acquittal is
greatly circumscribed and though the Court is justified in
reappraising the evidence to arrive at an independent
conclusion, yet if the reasons given by the trial court for
6
acquittal are germane and relevant on the evidence,
interference by the High Court should not be made on the
premise that a different view was also possible. This
principle emanates from the broader principle that an
accused is entitled to claim a plea of innocence and it is for
the prosecution to prove its case beyond doubt and if the
trial court has acquitted an accused, the presumption of
innocence is greatly strengthened. We are of the opinion
that the High Court has ignored this long settled dictum.
We have examined the various arguments raised in the
background of the above observations.
7. It will be seen that the trial court was greatly
influenced by the fact that Vijay Kumar had not even been
cited as an eye witness. The incident happened at about 7
or 7.30 a.m. on the 26th November 1993 and the statement
of Sohan Lal PW-16 was recorded in the hospital at 9 a.m.
the same day with no clue as to the assailants and on its
basis the first information report had been registered in the
Police Station a short while later. Significantly, however,
the statement of Vijay Kumar was recorded by the police for
the first time on the 28th March 1994 and that too when the
7
Public Prosecutor had raised an objection while checking
the challan before its presentation in Court. Faced with this
situation, the Public Prosecutor had submitted before the
trial court that Vijay Kumar had not been cited as an eye
witness as it was in fact Vijay Kumar’s daughter who had
told him about the incident and that he himself had no
knowledge thereof. This argument was based on the
statement of the Investigating Officer which was introduced
for the first time during the course of the evidence. This
explanation is too our mind an after thought and even
otherwise meaningless. Assuming therefore that Vijay
Kumar had, in fact, not been an eye witness and his
daughter had been the one who had seen the incident, the
police concededly did not even try to take her statement at
any stage.
8. The prosecution story has accordingly been based on
the statements of PW-11 Sohan Lal and PW-12 Bharat Lal
who claimed to be eye witnesses. It is significant that they
identified the accused for the first time in court. PW-11 also
admitted in his evidence that he was an employee of
Aggarwal Sanitary Store which was owned by Brij Lal and
8
Naresh Kumar, the brothers of PW-13 Pushpa Devi, the wife
of the deceased, and that PW-12 was his friend and had
accompanied him for the morning walk when the incident
had happened. This story is unacceptable for the reason
that their conduct completely belies their presence. It has
come in evidence that the two were aware of the identity of
Siri Krishan and knew him by face and name since long and
were also conscious of the fact that his house was near the
place of murder. Despite this knowledge and his
association with the complainant family, PW-11 did not go
to the house of Pushpa Devi or even inform her brothers
who were his employers as to what had happened or to go to
the police station a very short distance away to lodge a
report. On the contrary, it comes out from the evidence that
after the incident PWs-11 & 12 had moved around aimlessly
in Karnal before returning to the murder site at about 1.30
p.m. where their statements were recorded. This factor
assumes even more significance as the names of these
witnesses did not figure in the F.I.R., and the motive for the
murder has been rejected even by the High Court as the
acquittal of Daulat Ram has been maintained.
9
9. We also see that the very presence of PWs.11 and 12 in
Karnal is in serious dispute. It has come in their evidence
that they were residents of Sunam in the State of Punjab
and that they had shifted from that town to Karnal about 2
months before the occurrence on account of the fear of
terrorism and had settled down in Karnal by taking
accommodation on rent and that they had returned to
Sunam some time in the middle of 1994. The trial court
has found, on a deep appreciation of the evidence, that this
story was in doubt and the reasons have been succinctly
spelt out. It has been found that the two had not given their
addresses in Karnal in their 161 Cr.P.C. statements and
when cross-examined by the defence counsel, were unable
even at that stage to give accurate and precise details as to
where they had been living in Karnal or to produce any rent
receipt or document to show residence in Karnal on the day
in question. Curiously enough the police did not even care
to get hold of any material as to their residence in Karnal
and no witness was produced to show that they had ever
been residents in Karnal. The trial court has also noticed
that they had shifted from Sunam because of the fear of
1
terrorism in the year 1993 but the two claimed to have
returned to Sunam in the middle of 1994 when terrorism
was still at its peak. We have also examined the reasons
given by the High Court in concluding that the evidence of
PWs.11 and 12 could be relied upon. We find that there is
absolutely no discussion as to their presence in Karnal on
the crucial day or to the various factors that have been spelt
to rule them out, and the High Court appears to have
proceeded on the basis that they had been present as they
had been cited as eye witnesses. We are unable to accept
such a conclusion and that too in a case of murder. The
trial court has also examined their evidence inter-se in a
broader perspective and has concluded that it differed in
material particulars as well.
10. As already indicated, the High Court has been greatly
influenced by the refusal of the accused to join the test
identification parade. The evidence of PW-27 Inspector
Gordhan Singh is relevant in this connection. He deposed
that the accused had been arrested from different places at
different times and that they had been brought to Karnal
and put in a lock up and thereafter produced in court.
1
Significantly, the accused pointed out to the Magistrate PW-
27, as well as in their statements in court, that they had
been shown to PWs.11 and 12 and also to the sons of Siri
Krishan in the Police Station. It must be borne in mind
that it is impossible for an accused to prove by positive
evidence that he had been shown to a witness prior to the
identification parade but if suspicion can be raised by the
defence that this could have happened, no adverse inference
can be drawn against the accused in such a case. We are of
the opinion that in the light of the above facts and
particularly the uncertain eye witness account, and our
opinion that these witnesses had not seen the incident and
particularly the fact that the High Court was dealing with an
appeal against acquittal and 5 of the 7 accused stand
acquitted as of now on the same evidence, interference by
the High Court was not called for in the case of the
appellant. We accordingly allow this appeal, set aside the
judgment of the High Court and restore that of the trial
court and order the appellant’s acquittal.
……………………………. J.
1
(HARJIT SINGH BEDI)
2nd September, 2011 NEW DELHI.
1
[ REPORTABLE ]
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 925 OF 2009
Prem Singh ….Appellant
Versus
State of Haryana ….Respondent
J U D G M E N T
HARJIT SINGH BEDI, J.
This appeal by way of special leave
arises out of the following facts:
1. At about 9.20 a.m. on the 26th November
1993 PW-16 Sohan Lal, the brother of the
deceased Siri Krishan, was out for a morning
walk when he was informed by his neighbour
Vijay Kumar that some persons had come in a
white coloured Maruti car and had halted in
front of Siri Krishan and had fired shots at
him causing him serious injury. Sohan Lal
PW-16 then rushed to the site and removed
1
Siri Krishan to the Government hospital
where he was declared brought dead on
arrival. His statement was then recorded by
PW-24 Sub-Inspector Gurcharan Singh in the
Government hospital who reached there on
receiving information from the doctor. The
Inspector inspected the dead body and took
steps to have it subjected to a post-mortem.
He also visited the place of occurrence and
recovered several empty cartridges and a
spent bullet from the spot. Inspector Om
Parkash PW-23 also went to the site of the
murder at 12.30 p.m. and recorded the
statements of PW-11 Sohan Lal son of Anant
Lal and PW-12 Bhagat Lal son of Banarsi Dass
at 1:30 p.m. who claimed to be the eye
witnesses to the murder. He also recorded
the statement of PW-13 Pushpa Devi, the
widow of the deceased, who gave the
information that Daulat Ram had a property
dispute with her husband and this murder had
been committed as a consequence of the
1
conspiracy hatched by him along with his co-
accused. Further investigation was also
done by PW-27 Inspector Gordhan Singh. He
arrested Daulat Ram on the 4th January 1994,
and Prem Singh accused 10 days later from
Tihar Jail where he was already incarcerated
in some other criminal case. Prem Singh was
also sought to be produced for a test
identification parade but he declined to do
so. Ballu accused was arrested on the 18th
January 1994 and a pistol was recovered on a
statement made by him, Vishwa Bandhu accused
was arrested on the 23rd January 1994 and an
effort was made to put him up for an
identification but he too declined the
offer. The other two accused Radhey Shyam
and Surinder were arrested on the 19th April
1994 and 27th May 1994 respectively. On the
completion of the investigation, the accused
were charged for offences under Sections
302/149 and 120-B of the Indian Penal Code
and Section 27 of the Arms Act and were
1
accordingly brought to trial.
2. The prosecution in support of its case
placed primary reliance on the testimony of
PW-11 Sohan Lal and PW-12 Bharat Lal who
claimed to be the eye witnesses to the
murder, PW-13 Pushpa Devi who deposed to
the property dispute between her husband and
Daulat Ram accused and PW-16-Sohan Lal the
first informant, who had received the
information of the murder from Vijay Kumar.
Vijay Kumar was, however, not examined. The
Trial Court observed that on the basis of
the evidence of the prosecution witnesses,
as led, no evidence whatsoever had been
spelt out against Satish and Surinder and
they were accordingly acquitted even prior
to the recording of the statements of the
accused under Section 313 of the Cr.P.C.
The Trial Court then, very comprehensively,
examined the evidence against the other
accused and recorded several reasons which
have been spelt out by the High Court in its
1
judgment and we quote therefrom herein
below:
“(i) Vijay Kumar who informed PW-16 Sohan Lal, brother of the deceased about the occurrence, was not examined, which was necessary for unfolding of the narrative of the prosecution.
(ii) PW-11 Sohan Lal and PW-12 Bharat Lal were falsely introduced as eye witnesses. Both of them claimed to have come from Punjab about two months prior to the occurrence. One of them shifted back to Sunam. They did not have any proof of residence of Karnal. PW-11 Sohan Lal was employee of brother-in-law of the deceased. They did not go to the police station to lodge the report. Their names were mentioned in the FIR. Their versions were discrepant on the issue of the person who caught hold of the deceased Satish or Ballu. Their normal conduct was to be to go to the house of the deceased to give information. There were further discrepancies in their versions about the direction from which the car came.
(iii) Recoveries and linkage of pistols with the empty cartridges was not free doubt.
(iv) Identification in Court was not reliable. (v) The accused were arrested from one or the other lock up and could have been shown to the witnesses.
(vi)No adverse inference could be drawn by their refusing to take in the TIP.
(vii)Charge of conspiracy was without any basis.”
1
3. The trial court accordingly acquitted
all the accused of the charges leveled
against them. An appeal was thereafter
filed in the High Court by the State of
Haryana against the acquittal of 5 of the
accused, that is Daulat Ram, Prem Singh,
Ballu, Radhey Shyam and Vishwa Bandhu. The
High Court has, vide its judgment under
challenge before us, confirmed the acquittal
of Daulat Ram, Ballu @ Vijender and Radhey
Shyam accused and dismissed the appeal but
has set aside the judgment qua Prem Singh
and Vishwa Bandhu and they have been
convicted and sentenced to life imprisonment
for the offence under Section 302/34 etc.
The present appeal has been filed by Prem
Singh alone.
4. The learned counsel for the appellant
has raised several pleas before us. He has
first pointed out that the prosecution story
hinged primarily on the motive which Daulat
Ram carried as he bore some animosity with
1
the deceased and that he had obtained the
services of the other accused who were
apparently hired assassins to get rid of him
and as Daulat Ram had been acquitted, the
entire story perforce must fall through. He
has also pointed out that the only witness
who could have sworn to the incident was
Vijay Kumar who had informed PW-16 Sohan Lal
that he had witnessed the murder on which
the latter had reached the spot, taken
victim to the hospital and thereafter lodged
the FIR but surprisingly Vijay Kumar had not
even been cited as a witness and PW-11 Sohan
Lal and PW-13 Bharat Lal had subsequently
been introduced as eye witnesses clearly
spelt out that the prosecution evidence
could not be relied on, more particularly as
their presence had not been explained and
their conduct immediately after the incident
also did not inspire confidence. It has
also been pointed out that merely because
three of the accused had refused to join the
2
test identification parade would not by
itself be of any significance as the accused
had alleged that they had already been shown
to the witnesses.
5. The learned counsel for the State of
Haryana has, however, supported the judgment
of the High Court.
6.We see that of the 7 accused only 2
stand convicted whereas the evidence with
respect to all of them is identical. In
this background, it has also to be borne in
mind that the High Court’s interference in
an appeal against acquittal is greatly
circumscribed and though the Court is
justified in reappraising the evidence to
arrive at an independent conclusion, yet if
the reasons given by the trial court for
acquittal are germane and relevant on the
evidence, interference by the High Court
should not be made on the premise that a
different view was also possible. This
principle emanates from the broader
2
principle that an accused is entitled to
claim a plea of innocence and it is for the
prosecution to prove its case beyond doubt
and if the trial court has acquitted an
accused, the presumption of innocence is
greatly strengthened. We are of the opinion
that the High Court has ignored this long
settled dictum. We have examined the
various arguments raised in the background
of the above observations.
7. It will be seen that the trial court was
greatly influenced by the fact that Vijay
Kumar had not even been cited as an eye
witness. The incident happened at about 7
or 7.30 a.m. on the 26th November 1993 and
the statement of Sohan Lal PW-16 was
recorded in the hospital at 9 a.m. the same
day with no clue as to the assailants and
on its basis the first information report
had been registered in the Police Station a
short while later. Significantly, however,
the statement of Vijay Kumar was recorded by
2
the police for the first time on the 28th
March 1994 and that too when the Public
Prosecutor had raised an objection while
checking the challan before its presentation
in Court. Faced with this situation, the
Public Prosecutor had submitted before the
trial court that Vijay Kumar had not been
cited as an eye witness as it was in fact
Vijay Kumar’s daughter who had told him
about the incident and that he himself had
no knowledge thereof. This argument was
based on the statement of the Investigating
Officer which was introduced for the first
time during the course of the evidence.
This explanation is too our mind an after
thought and even otherwise meaningless.
Assuming therefore that Vijay Kumar had, in
fact, not been an eye witness and his
daughter had been the one who had seen the
incident, the police concededly did not even
try to take her statement at any stage.
2
8. The prosecution story has accordingly
been based on the statements of PW-11 Sohan
Lal and PW-12 Bharat Lal who claimed to be
eye witnesses. It is significant that they
identified the accused for the first time in
court. PW-11 also admitted in his evidence
that he was an employee of Aggarwal
Sanitary Store which was owned by Brij Lal
and Naresh Kumar, the brothers of PW-13
Pushpa Devi, the wife of the deceased, and
that PW-12 was his friend and had
accompanied him for the morning walk when
the incident had happened. This story is
unacceptable for the reason that their
conduct completely belies their presence.
It has come in evidence that the two were
aware of the identity of Siri Krishan and
knew him by face and name since long and
were also conscious of the fact that his
house was near the place of murder. Despite
this knowledge and his association with the
complainant family, PW-11 did not go to the
2
house of Pushpa Devi or even inform her
brothers who were his employers as to what
had happened or to go to the police station
a very short distance away to lodge a
report. On the contrary, it comes out from
the evidence that after the incident PWs-11
& 12 had moved around aimlessly in Karnal
before returning to the murder site at about
1.30 p.m. where their statements were
recorded. This factor assumes even more
significance as the names of these witnesses
did not figure in the F.I.R., and the motive
for the murder has been rejected even by the
High Court as the acquittal of Daulat Ram
has been maintained.
9. We also see that the very presence of
PWs.11 and 12 in Karnal is in serious
dispute. It has come in their evidence that
they were residents of Sunam in the State of
Punjab and that they had shifted from that
town to Karnal about 2 months before the
occurrence on account of the fear of
2
terrorism and had settled down in Karnal by
taking accommodation on rent and that they
had returned to Sunam some time in the
middle of 1994. The trial court has found,
on a deep appreciation of the evidence, that
this story was in doubt and the reasons have
been succinctly spelt out. It has been
found that the two had not given their
addresses in Karnal in their 161 Cr.P.C.
statements and when cross-examined by the
defence counsel, were unable even at that
stage to give accurate and precise details
as to where they had been living in Karnal
or to produce any rent receipt or document
to show residence in Karnal on the day in
question. Curiously enough the police did
not even care to get hold of any material as
to their residence in Karnal and no witness
was produced to show that they had ever been
residents in Karnal. The trial court has
also noticed that they had shifted from
Sunam because of the fear of terrorism in
2
the year 1993 but the two claimed to have
returned to Sunam in the middle of 1994 when
terrorism was still at its peak. We have
also examined the reasons given by the High
Court in concluding that the evidence of
PWs.11 and 12 could be relied upon. We
find that there is absolutely no discussion
as to their presence in Karnal on the
crucial day or to the various factors that
have been spelt to rule them out, and the
High Court appears to have proceeded on the
basis that they had been present as they had
been cited as eye witnesses. We are unable
to accept such a conclusion and that too in
a case of murder. The trial court has also
examined their evidence inter-se in a
broader perspective and has concluded that
it differed in material particulars as well.
10. As already indicated, the High Court has
been greatly influenced by the refusal of
the accused to join the test identification
parade. The evidence of PW-27 Inspector
2
Gordhan Singh is relevant in this
connection. He deposed that the accused had
been arrested from different places at
different times and that they had been
brought to Karnal and put in a lock up and
thereafter produced in court.
Significantly, the accused pointed out to
the Magistrate PW-27, as well as in their
statements in court, that they had been
shown to PWs.11 and 12 and also to the sons
of Siri Krishan in the Police Station. It
must be borne in mind that it is impossible
for an accused to prove by positive evidence
that he had been shown to a witness prior to
the identification parade but if suspicion
can be raised by the defence that this could
have happened, no adverse inference can be
drawn against the accused in such a case.
We are of the opinion that in the light of
the above facts and particularly the
uncertain eye witness account, and our
opinion that these witnesses had not seen
2
the incident and particularly the fact that
the High Court was dealing with an appeal
against acquittal and 5 of the 7 accused
stand acquitted as of now on the same
evidence, interference by the High Court was
not called for in the case of the appellant.
We accordingly allow this appeal, set aside
the judgment of the High Court and restore
that of the trial court and order the
appellant’s acquittal.
…………………………….J. (HARJIT SINGH BEDI)
2nd September, 2011 NEW DELHI.
2
IN THE SUPREME COURT OF INDIA CRIMINAL APPELALTE JURISDICTION
CRIMINAL APPEAL No.925/2009
PREM SINGH .. Appellant
Versus
STATE OF HARYANA ..Respondent
DISSENTING JUDGMENT AND ORDER
GYAN SUDHA MISRA, J .
The High Court vide its impugned judgment and order
has convicted the appellant Prem Singh under Section 302
read with Section 34 I.P.C. along with the co-accused
Vishwa Bandhu essentially relying upon the testimony of
the two eye-witnesses PW-11 Sohan Lal and PW-12 Bharat
Lal who according to the prosecution had shot the deceased
victim-Siri Krishan on 26.11.1993 at 6.30 a.m. while he had
gone for a morning walk. The co-accused Vishwa Bandhu
has not preferred any appeal against his conviction and it
is only the appellant Prem Singh who has filed this appeal
and the other co-accused persons who were alleged to be in
3
the Maruti Car on which the accused-appellant had arrived
for killing the deceased Siri Krishan have been acquitted, as
the appellant and co-accused Vishwa Bandhu have been
held as hired shooters who killed the deceased from a point
blank range.
2. Having carefully and meticulously examining the
evidence of the eye-witnesses PW-11 and PW-12 in the light
of the other attending circumstances, I am of the considered
opinion that the learned Judges of the High Court were
justified in convicting the appellant Prem Singh under
Section 302/34 I.P.C. alongwith Vishwa Bandhu relying
upon the evidence of the two eye-witnesses whose
depositions in Court could not be contradicted by the
defence using the statements which were recorded under
Section 161, Cr.P.C. by PW-23 Inspector Om Prakash only
after a few hours of the incident at 12.30 p.m. on the date of
occurrence on 26.11.1993 as the incident of shooting had
taken place on the same date in the morning at 6.30 a.m for
which F.I.R. was registered at 9.25 a.m. These two eye-
witnesses who also had gone for a morning walk had their
residence quite near to the place of incident and were the
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most natural witnesses who had watched the incident of
shooting from a close range at the deceased Siri Krishan.
If the prosecution had the intention merely to plant these
two witnesses PW-11 and PW-12 as eye-witnesses to prove
the prosecution story, then Vijay Kumar who had informed
the brother of the deceased about the incident would have
been a better option for the prosecution to plant him as
eye-witness but he has not even been examined.
3. The two eye-witnesses PW-11 and PW-12 have
given a graphic description of the incident and have stood
the test of scrutiny of cross-examination and had also
stated that they could identify the assailants, but the
accused had declined to participate in the test
identification parade on the ground that he had been shown
to the eye-witnesses in advance. In my considered view, it
was not open to the accused to refuse to participate in the
T.I. parade nor it was a correct legal approach for the
prosecution to accept refusal of the accused to participate in
the test identification parade. If the accused-appellant had
reason to do so, specially on the plea that he had been
shown to the eye-witnesses in advance, the value and
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admissibility of the evidence of T.I. Parade could have been
assailed by the defence at the stage of trial in order to
demolish the value of test identification parade. But merely
on account of the objection of the accused, he could not
have been permitted to decline from participating in the
test identification parade from which adverse inference can
surely be drawn against him at least in order to corroborate
the prosecution case.
4. In the matter of Shyam Babu V. State of Haryana,
(2008) 15 SCC 418 (425): AIR 2009 SC 577 where the
accused persons had refused to participate in T.I. parade, it
was held that it would speak volumes, about the
participation in the Commission of the crime specially if
there was no statement of the accused under Section 313
Cr. P.C. that he had refused to participate in the T.I. Parade
since he had been shown to the witnesses in advance. In
the matter of Munna v. State (NCT of Delhi), (2003) 4 Crimes
166: (2003) 7 JT 361 : AIR 2003 SC 3805 (3809) as also in
the State of Haryana Vs. Surender, (2007) 11 SCC 281 (284):
AIR 2007 SC 2312; in Teerath Singh (D) by LR v. State, 2007
(1) ALL LJ (NOR) 143 (UTR) the Supreme Court still further
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had been pleased to hold that if the statement of the
accused refusing to participate in T.I. Parade which was
recorded in the order of the Magistrate was missing under
Section 313 Cr.P.C., it was held that it was not open to the
accused to contend that the statement of the witnesses
made for the first time in Court identifying him should not
be relied upon.
5. The arguments advanced by the defence that the
two eye-witnesses were, in fact, not living in the
neighbourhood near the place of incident where they
claimed to have been living, in my opinion, is quite a far
fetched theory of the defence for once the witnesses
furnished their addresses stating that they lived merely 250
feets away from the place of occurrence and PW-11 was
also an employee of the brother-in-law of the deceased, his
testimony could not be dislodged merely on a speculative
story without any defence evidence to that effect that they
had not migrated from Sunam (Punjab) to Karnal (Haryana)
where the incident of shooting took place. In fact, the eye-
witnesses PW-11 and PW-12 whose statements were
recorded only after a few hours of the shooting and later
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deposed in Court without any variance or contradiction
have not only given graphic description of the incident, but
also described the colour of the car, the model of the car
which was white Maruti as also the car No. which could be
partially noticed as D-57 and had gone to the extent of
stating that the number plate of the car was smeared with
mud. In my view, it is not possible to brush aside all these
weighty evidences of the eye witnesses led by the
prosecution giving minute details so as to hold that they
were interested or partisan witnesses planted by the
prosecution party merely to support the prosecution
version.
6. It would further not be appropriate to overlook a
redeeming feature of the prosecution version that the
present case is not a case based on circumstantial evidence
but had happened during the morning walk of the deceased
where the two eye-witnesses from the neighbourhood had
the chance to witness the occurrence since they too had
gone for a morning walk, who had residence close by in the
neighbourhood. The defence version in order to demolish
the evidence of these two eye-witnesses is too far fetched
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and not worthy of credence in my opinion on the ground
that they in fact had not been living near the place of
incident as they had not even migrated to Karnal. The two
eye-witnesses narrated the complete chain of incident in
their deposition which they had witnessed and stands duly
corroborated by their statement which were recorded under
Section 161 Cr.P.C. merely after a few hours of the
occurrence and their version could not be contradicted by
the defence in any manner. The explanation that these
witnesses had not been living there at the address given,
does not stand to reason for if it were so, their statement
could not have been recorded only after a few hours of the
incident. The defence story that they were not living near
the place of occurrence clearly stands contradicted by the
161 Cr. P.C. statement of these witnesses as it is well
established that such statement is admissible at least for
contradiction.
7. The reason as to why the names of the eye
witnesses had not been mentioned in the FIR has been
convincingly explained as the FIR was registered in the
morning at 9.25 a.m. and only upon preliminary enquiry,
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which is most natural human conduct that it came to the
knowledge of the prosecution that these witnesses in fact
had not only seen the incident, but could also identify the
assailants. Perhaps, there would have been scope to ignore
the evidence of these two eye-witnesses on the plea that
they had not migrated to Karnal and were not living near
the place of incident if their statement had not been duly
recorded on the date of the incident under Section 161
Cr.P.C. But the fact that their statements were recorded
promptly and they also claimed to have identified the two
accused who had fired the shots at the deceased and the
appellant Prem Singh declined to participate in the test
identification parade is sufficient to draw a reasonable and
logical inference that the two eye-witnesses were in fact
credible witnesses and could not be disbelieved on the
specious plea that they were planted by the prosecution.
8. In fact, there is yet another reason not to
disbelieve these two witnesses for if the prosecution had
reason to falsely implicate the accused persons, it is the
master mind of the whole incident who was Daulat Ram
with whom the deceased had differences on account of
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property dealings, who could have been roped in but the
fact that Daulat Ram was not alleged to have shot the
deceased but got it executed through the hired assailants
that the appellant Prem Singh and Vishwa Bandhu (who
has not even appealed against his conviction and sentence)
stands duly proved beyond reasonable doubt by the two
eye-witnesses and their testimony cannot be disbelieved on
the ground that they were not living near the place of
incident as they had not migrated to Karnal. In my
considered opinion, the defence story is too weak and
speculative in order to brush aside the eye-witness account
on the plea that they were not living in the neighbourhood.
In fact, the prosecution witnesses have not even been cross-
examined by the defence on the point that the eye-witnesses
had not migrated to Karnal and were not living near the
place of occurrence which could brush aside the eye-witness
account.
9. I am, therefore, of the view that the High Court is
correct and legally justified in convicting the appellant Prem
Singh and Vishwa Bandhu (who has not appealed) under
Section 302/34 I.P.C. for shooting the deceased and hence,
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I uphold his conviction and sentence. Consequently, this
appeal is dismissed.
….………………… …J
(Gyan Sudha Misra)
New Delhi, September 2, 2011
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 925 OF 2009
Prem Singh ….Appellant
Versus
State of Haryana ….Respondent
O R D E R
In view of the divergence in views, the Registry is
directed to place the matter before the Hon'ble the Chief
Justice of India for placing the matter before a larger Bench.
…………………………….J.
(HARJIT SINGH BEDI)
….……………………J (Gyan Sudha Misra)
2nd September, 2011 NEW DELHI.
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