Punjab-Haryana High Court
Lakhvir Singh Alias Neela And Others vs State Of Punjab on 10 November, 2009
Criminal Appeal No.1066-SB of 2003 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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Criminal Appeal No.1066-SB of 2003
Date of Decision:10.11.2009
Lakhvir Singh alias Neela and others
.....Appellants
Vs.
State of Punjab
.....Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- None for the appellants.
Mr. T.S. Salana, Deputy Advocate General, Punjab.
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JUDGMENT
HARBANS LAL, J.
This appeal is directed against the judgment/ order of sentence dated 21.5.2003 passed by the Court of learned Special Judge, Moga whereby he convicted and sentenced Lakhvir Singh alias Neela, Jarnail Singh and Nirbhai Singh to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1 lac each under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, `the Act') or in default of payment of fine, the defaulter to further undergo rigorous imprisonment for one year.
The minimal facts are that on 23.8.1999, ASI Bhinder Singh Incharge Police Post Daulatpura, Police Station Sadar Moga among other police officials happened to be present at tikoni (trijunction) of Village Criminal Appeal No.1066-SB of 2003 -2- Darapur in connection with patrolling on a private jeep. Meanwhile, the Assistant Sub Inspector received information that the accused Lakhvir Singh alias Neela son of Pritam Singh along with two other persons was selling poppy husk at the drain in the area of Village Jhandiana. If the raid is conducted, they can be caught red handed. This information was embodied in a ruqa, which was sent to the Police Station, wherein on its basis, formal FIR was registered. Thereafter, the Assistant Sub Inspector along with others raided the aforesaid place and surrounded the same and informed the accused accordingly in a loud voice. The accused started running into different directions. They were seen by Assistant Sub Inspector in the light of his torch. They were already known to the police party including the Assistant Sub Inspector. All the three accused taking the undue advantage of the cover of darkness made good their escape. The police party reached near the bags of poppy husk. On search of the bags, which were 20 in number, their contents were found to be poppy husk. 250 grams of poppy husk was drawn from each bag to serve as sample and converted into parcels. The residue of each bag when weighed came to 30 Kg. 750 Grams, which was also turned into parcels. All these parcels were sealed with seal `BS'. The sample seal was prepared. The seal after use was handed over to LC Jagsir Singh. The case property along with the sample parcels was seized vide recovery memo. On 16.9.1999, the Assistant Sub Inspector arrested the accused Lakhvir Singh. On 17.9.1999, he put under arrest the accused Jarnail Singh. On 25.9.1999, he arrested the accused Nirbhai Singh. After completion of investigation, the charge-sheet was laid in the Court for trial of the accused.
Criminal Appeal No.1066-SB of 2003 -3-
The accused were charged under Section 15 of the Act, to which they did not plead guilty and claimed trial. In order to substantiate its allegations, the prosecution examined Inspector Manwinder Singh SHO PW1, Charanjit Singh Ahlmad PW2, HC Angrej Singh PW3, HC Jagsir Singh PW4, HC Gurjant Singh PW5, LC Surjit Singh PW6, ASI Bhinder Singh Investigator PW7, Gurmail Singh SP (Retired) PW8, MHC Gurmail Singh PW9 and closed its evidence. When examined under Section 313 of Cr.P.C, all the three accused denied the incriminating circumstances appearing in the prosecution evidence against them and pleaded innocence as well as false implication. Jarnail Singh accused has put forth that "I was supporter of Sukhbir Singh Badal during election of Lok Sabha. We have tip with the other party and police due to they wanted to involve us in some case. We have filed application dt. 9.9.99 to the SSP Moga and also sent telegrams to the higher authorities. Police planted this false case upon us."
Nirbhai Singh accused has adopted a similar plea. The accused Lakhvir Singh has stated that "There is party faction in our village. In these days, Lok Sabha elections were in progress and were due. The rival faction planted the false case in connivance with the police due to political rivalry. Nothing was recovered from me. I am innocent. My parents gave telegrams to higher authorities and approached personally." In his defence, Jarnail Singh accused has examined his wife Paramjit Kaur as DW1. The accused have examined Gurlabh Singh DW2, Darshan Singh DW3 and closed their evidence.
After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, Criminal Appeal No.1066-SB of 2003 -4- the learned trial Court convicted and sentenced all the three accused as noticed at the outset. Feeling aggrieved with their conviction/ sentence, they have preferred this appeal.
This case was adjourned from time to time for arguments, but none had been putting in appearance on behalf of the appellants despite the fact that this matter for hearing was also displayed on the net. However, I have heard the learned State Counsel besides perusing the record with due care and circumspection.
As pleaded in the grounds of appeal, the names of Jarnail Singh and Nirbhai Singh appellants have not been mentioned in the ruqa. That identity of the appellants has not been established as no test identification parade was got arranged. Furthermore, Darshan Singh Ex-Member Panchayat who has allegedly disclosed names of the appellants has not been examined by the prosecution. That the prosecution has introduced one witness Harbans Singh to prove that the appellants had made extra judicial confession before him but he has also been withheld. That the seal after use was not handed over to independent witness Darshan Singh rather it was entrusted to Constable Jagsir Singh, who has also not been examined. When he was examined in defence, he stated that the police had come to the house of Lakhvir Singh and had obtained his signatures on blank papers.
To tide over these submissions, the learned State Counsel maintained that on evaluating the entire evidence of the prosecution witnesses, it transpires that the identity of the appellants stands fully established. He further puts that the law nowhere provides that the seal after use ought to be handed over to an independent witness.
Criminal Appeal No.1066-SB of 2003 -5-
I have well considered the rival submissions.
The most crucial question to be determined herein is as to whether the prosecution has been able to establish identity of the appellants as according to the prosecution version, they all had escaped from the spot and were not apprehended. It is in the cross-examination of Jagsir Singh PW4 that "I had not seen the face of Nirbhai Singh and Jarnail Singh on the day of raid. No identification parade of the accused Nirbhai Singh and Jarnail Singh was done. Volunteered, Darshan Singh had stated about the names of those accused." As testified by ASI Bhinder Singh Investigator PW7 "Those persons tried to slip away towards different directions to whom I have seen in the light of my torch and recognised Lakhvir Singh alias Neela, Jarnail Singh and Nirbhai Singh, who are present in the Court today. They escaped under the garb of darkness. They were already known to me and to the officials of my party." It is in his cross-examination that "It is correct that in the statement of Constable Gurmail Singh under Section 161 Cr.P.C., he has not stated that he knows accused Jarnail Singh and Nirbhai Singh. Ex.D1 is the statement of Constable Gurmail Singh. Similarly, there is no mention regarding identification of accused Jarnail Singh and Nirbhai Singh in the statement of LC Jagsir Singh Ex.D2. It is correct that names of accused Jarnail Singh and Nirbhai Singh have not been mentioned in ruqa Ex.PN." If the appellants were already known to the members of the police party including the Investigator, then it was incumbent upon the Investigating Officer to have made mention of this fact in the ruqa. Besides this, the recovery witnesses whosoever were known to the appellants earlier were also supposed to disclose the name of the appellants in their respective Criminal Appeal No.1066-SB of 2003 -6- statements recorded under Section 161 of Cr.P.C. The Investigator has nowhere disclosed as to how he had known the appellants. Admittedly, the test identification parade of the appellants was not got arranged.
While discussing the evidentiary value of test identification parade carried out under Section 9 of the Evidence Act, the Apex Court in re: Heera & Another v. State of Rajasthan, 2007(3) Recent Criminal Reports (Criminal) 517, laid down as under:-
"(i) The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses.
(ii) 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.
(iii) It is desirable that a test identification parade should be conducted as soon as 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.
(iv) Substantive evidence is the evidence of identification in Court- 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. The purpose of a prior Criminal Appeal No.1066-SB of 2003 -7- test identification, therefore, is to test and strengthen the trustworthiness of that evidence.
(v) The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges that investigating agency to hold or confers a right upon the accused to claim, a test identification parade.
(vi) Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court.
(vii) The weight to be attached to such identification should be a matter for the Courts of fact - In appropriate cases it may accept the evidence of identification even without insisting on corroboration. AIR 1958 SC 350 relied.
(viii) Absence of test identification parade is not fatal in all cases - Accused can be convicted on basis of identification in Court corroborated by other circumstantial evidence. (1970) 3 SCC 518 relied.
(ix) Much evidentiary value cannot be attached to the identification of the accused in Court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court.
(x) Evidence of identification becomes stronger if the Criminal Appeal No.1066-SB of 2003 -8- witness has an opportunity of seeing the accused not for a few minutes but for some length of time, in broad daylight, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes."
As ruled in re: Sarwan Singh v. State of Punjab, (2003) 1 Supreme Court Cases 240, "Ordinarily identification of an accused for the first time in court by a witness should not be relied upon for the purpose of passing the order of conviction without a definite corroboration - Identification for the first time in court cannot possibly be termed to be non- admissibl,e but it is a matter of prudence and jurisprudential requirement that the same should be upon proper corroboration otherwise the justice delivery system may stand affected - Once the requirement of the concept of justice i.e. acceptability and credibility of the evidence of the witnesses, stands completed, it would be difficult if not an impossibility to challenge a conviction only on the ground of failure to hold prior Test identification parade."
In re: Kanan v. State of Kerala, (1979) 3 Supreme Court Cases 319, it was held that "Identification by such witness of the accused in Court raises a serious doubt and his testimony must be excluded. Where a witness identifies an accused who is not known to him, in the Court for the first time, his evidence is absolutely valueless, unless there has been a previous T.I. Parade to test his powers of observations. The idea of holding T.I parade under S.9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person, Criminal Appeal No.1066-SB of 2003 -9- whom the witness may have seen only once. If no T.I. parade is held, then it will be wholly unsafe to rely on his testimony regarding the identification of an accused for the first time in Court." In re: Malkhan Singh v. State of M.P., (2003) 5 Supreme Court Cases 746, it was held as under:-
"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. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in court.
But failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The identification parades belong to the stage of investigation, and Criminal Appeal No.1066-SB of 2003 -10- there is no provision in the CrPC which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. These parades do not constitute substantive evidence. The substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. In appropriate cases, it may accept the evidence of identification even without insisting on corroboration."
A glance through the FIR would reveal that the same is absolutely silent about the physical description or identifying features of the appellants. Had the same been there in the FIR, these would have been treated as a circumstance pinning down their identity. The identification of the appellants in the Court is not being corroborated by any circumstantial evidence. The Apex Court has laid down in clear-cut and unambiguous terms that much evidentiary value cannot be attached to the identification of the accused in Court where identifying witness is a total stranger who has fleeting glimpse of a person identifying or who had no particular reason to remember the person concerned, if the identification is made for the first time in the Court. It is apt to be borne in mind that in re: Heera and another (supra), it has been observed that "It is desirable that a test identification parade should be conducted as soon as this becomes necessary Criminal Appeal No.1066-SB of 2003 -11- to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade." The instant one is a case of recovery and not of rape or other such occurrence in which the victim had sufficient opportunity to observe the features of the accused. It is not such a case in which the features of these appellants must have got imprinted in the memory of the Investigation Officer or any other recovery witness.
It is in the cross-examination of Jagsir Singh PW4 that "I had not seen the face of Nirbhai Singh and Jarnail Singh. No test identification parade of the accused Nirbhai Singh and Jarnail Singh was done. Volunteered Darshan Singh has stated about the names of those accused. Darshan Singh was an Ex-Member Panchayat who is still alive." If the names of the accused were disclosed by said Darshan Singh, then it was obligatory upon the prosecution to have examined him as he was alive. Thus to conclude finally, the prosecution has not been able to establish identity of the appellants.
It is in the evidence of PW9 MHC Gurmail Singh that "I have brought the summoned record. i.e., road certificate no.191 dt. 30.8.99 and register DDR of police station Saddar Moga. As per DDR No.5 dt. 30.8.99, vide which C. Rukhwinder Singh no.399 took the sample parcel of case FIR No.80 dt. 23.8.99 u/s 15/61/85 PS Saddar Moga State vs. Neela Singh etc. (referring to the present case). All the 20 sample parcels containing 250/250 grams were sealed with seal bearing impression DS and MS and these sample parcels were handed over to C. Rukwinder Singh vide road no.191 dated 30.8.99 alongwith sample seal and C. Rukwinder Singh came back to police station after depositing the sample parcel along with sample Criminal Appeal No.1066-SB of 2003 -12- seal in office of chemical examiner Punjab Chandigarh. Constable Rukwinder Singh has since been died. It is in his cross-examination that "My statement was not recorded by IO in this case. I cannot tell the exact date of death of Rukwinder Singh Constable. It is correct that I had not worked with Rukwinder Singh in one Police Station." It emanates from this evidence that the Constable who had deposited the sample parcels in the Office of Chemical Examiner has not been examined, nor his affidavit has been tendered in evidence in consequence of his death. Thus, palpably, the link evidence is missing in this case.
As a sequel of the above discussion, the appeal is accepted setting aside the impugned judgment/ order of sentence. The accused- appellants are hereby acquitted of the charged offence.
November 10, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No