Himachal Pradesh High Court
Reserved On 01.04.2025 vs Prem Singh on 8 April, 2025
Bench: Tarlok Singh Chauhan, Sushil Kukreja
1 Neutral Citation No. ( 2025:HHC:9716-DB ) IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 306 of 2014 Reserved on 01.04.2025 Decided on: 08.04.2025 _____________________________________________________ State of Himachal Pradesh .....Appellant.
Versus
Prem Singh ......Respondent.
_____________________________________________________ Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge. 1 Whether approved for reporting? No. _____________________________________________________ For the appellant: Mr. I.N. Mehta and Mr. Yashwardhan Chauhan, Senior Additional Advocates General, Mr. Ramakant Sharma, Ms. Sharmila Patial, Mr. Sushant Kaprate, Additional Advocates General, and Mr. Raj Negi, Deputy Advocate General.
For the respondent/State: Mr. Lakshay Thakur, Advocate. Sushil Kukreja, Judge.
The instant appeal has been preferred by the appellant/State under Section 378 Cr.P.C. against judgment dated 25.07.2013, passed by learned Additional Sessions Judge, Sirmaur District at Nahan, H.P., in Sessions Trial No. 17-N/7 of 2007, whereby the accused (respondent herein) was acquitted from the charges under Sections 224, 225, 332, 353, 333, 460, 506-B, 120-B, 382 and 392 of the Indian Penal Code (for short 1 Whether reporters of Local Papers may be allowed to see the judgment?
2 Neutral Citation No. ( 2025:HHC:9716-DB ) 'IPC') and under Section 25 of the Arms Act.
2. The facts giving rise to the present appeal, as per the prosecution story, can be summarized as under:
2(a). On 05.02.2005 at District Court Complex, Nahan, as well as Regional Hospital, Nahan, one Harjeet Singh was in judicial custody and he was lodged in Model Central Jail, Nahan and was being treated in the hospital at Nahan. It has further come in the prosecution story that accused Prem Singh, entered in conspiracy with co-accused Harmeet @ Punnu, Kapil Sahani, Kunal, Ashok Kumar, Kala etc., to get Harjeet Singh escaped from the lawful custody. On 05.02.2005, around 08:00/08:15 p.m., accused persons committed trespass in Regional Hospital, Nahan, where Harjeet Singh was admitted for treatment, by house breaking in the night and they got escaped Harjeet Singh from the custody of HC Jaswant Singh No. 149 and Constable Kesar Singh No. 885, in which he was lawfully detained. It has also come in the prosecution story that the accused persons voluntarily caused grievous hurt to HC Jaswant Singh, while he was discharging his duty as a public servant.
2(b). HC Jaswant Singh reported the matter to the police, whereupon his statement was recorded and FIR was registered. During the course of the investigation, Constable Kesar Singh and
3 Neutral Citation No. ( 2025:HHC:9716-DB ) HC Jaswant Singh were medically examined at R.H. Nahan. As per the medical opinion, injuries No. 2 to 4 sustained by HC Jaswant Singh were grievous in nature. It was unearthed during the police investigation that vehicle, bearing registration No. CH- 03F-6657, in which accused Prem Singh took accused Harjeet Singh, met with an accident at Kala Amb with a canter, bearing registration No. HP-18-3137 and they left their unnumbered car on the road side and also snatched the mobile phone of the driver of the canter and had fled towards Kala Amb by leaving the car. Police recorded the statements of the witnesses and completed all the codal formalities. After completion of the investigation, police presented the challan in the learned Trial Court.
3. The learned Trial Court took cognizance against the accused and charges under Sections 120B, 224, 225, 333 and 460 of IPC were framed against him. The prosecution, in order to prove its case, examined twelve witnesses. Statement of the accused under Section 313 Cr.P.C. was recorded, wherein he stated that he was falsely implicated. However, he did not examine any witness in his defence.
4. The learned Trial Court, vide impugned judgment dated 25.07.2013 acquitted the accused, hence the instant appeal preferred by the appellant/State.
4 Neutral Citation No. ( 2025:HHC:9716-DB )
5. We have heard the learned Senior Additional Advocate General for the appellant/State, learned counsel for the accused/respondent and carefully examined the entire records.
6. The learned Senior Additional Advocate General for the appellant/State contended that the learned Trial Court has ignored the relevant material and not appreciated the statements of the witnesses in its right perspective. The learned Trial Court took a hyper technical view and the impugned judgment is based on surmises and conjectures, thus liable to be quashed and set-aside.
7. Conversely, the learned counsel for the accused/respondent contended that the impugned judgment passed by the learned Trial Court is the result of proper appreciation of the material on record and the same was passed after appreciating the evidence and law in its right and true perspective. He has further contended that there are major contradictions in the statements of the prosecution witnesses. Lastly, he has prayed that the instant appeal, being devoid of merits, be dismissed.
8. It is well settled by the Hon'ble Apex Court in a catena of decisions that an Appellate Court has full power to review, re- appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind 5 Neutral Citation No. ( 2025:HHC:9716-DB ) that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. Further, if two reasonable views are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court.
9. The scope of power of appellate court in case of appeal against acquittal has been dealt with by the Hon'ble Apex Court in case titled Muralidhar alias Gidda & another vs. State of Karnatka reported in (2014)5 SCC 730, which read as under:
"10. Lord Russell in Sheo Swarup[1], highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." The opinion of the Lord Russell has been followed over the years.
11. As early as in 1952, this Court in Surajpal Singh[2] while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed, "7...........the High Court has full power to review 6 Neutral Citation No. ( 2025:HHC:9716-DB ) the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons.
12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu[3], Madan Mohan Singh[4], Atley[5] , Aher Raja Khima[6], Balbir Singh[7], M.G. Agarwal[8], Noor Khan[9], Khedu Mohton[10], Shivaji Sahabrao Bobade[11], Lekha Yadav[12], Khem Karan[13], Bishan Singh[14], Umedbhai Jadavbhai[15], K. Gopal Reddy[16], Tota Singh[17], Ram Kumar[18], Madan Lal[19], Sambasivan[20], Bhagwan Singh[21], Harijana Thirupala[22], C. Antony[23], K. Gopalakrishna[24], Sanjay Thakran[25] and Chandrappa[26]. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:
(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court,
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal,
(iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified.
Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and
(iv) Merely because the appellate court on re-
7 Neutral Citation No. ( 2025:HHC:9716-DB ) appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."
10. The Hon'ble Supreme Court in Rajesh Prasad vs. State of Bihar & another, (2022) 3 Supreme Court Cases 471, observed as under:
"31. The circumstances under which an appeal would be entertained by this Court from an order of acquittal passed by a High Court may be summarized as follows:
31.1. Ordinarily, this Court is cautious in interfering with an order of acquittal, especially when the order of acquittal has been confirmed up to the High Court.
It is only in rarest of rare cases, where the High Court, on an absolutely wrong process of reasoning and a legally erroneous and perverse approach to the facts of the case, ignoring some of the most vital facts, has acquitted the accused, that the same may be reversed by this Court, exercising jurisdiction under Article 136 of the Constitution. [State of U.P. v. Sahai (1982) 1 SCC 352] Such fetters on the right to entertain an appeal are prompted by the reluctance to expose a person, who has been acquitted by a competent court of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is held by a superior court. [Arunchalam v. P.S.R. Sadhanantham (1979) 2 SCC 297] An appeal cannot be entertained against an order of acquittal which has, after recording valid and weighty reasons, has arrived at an unassailable, logical conclusion which justifies acquittal. [State of Haryana vs. Lakhbir 1991 Supp (1) SCC 35 31.2. However, this Court has on certain occasions, set aside the order of acquittal passed by a High Court. The circumstances under which this Court may entertain an appeal against an order of acquittal and pass an order of conviction, may be summarized as follows:
31.2.1. Where the approach or reasoning of the High Court is perverse;
(a) Where incontrovertible evidence has been rejected by the High Court based on suspicion and surmises, which are rather unrealistic. [State of Rajasthan v. Sukhpal Singh (1983) 1 8 Neutral Citation No. ( 2025:HHC:9716-DB ) SCC 393] For example, where direct, unanimous accounts of the eyewitnesses, were discounted without cogent reasoning. [State of U.P. vs. Shanker 1980 Supp SCC 489]
(b) Where the intrinsic merits of the testimony of relatives, living in the same house as the victim, were discounted on the ground that they were "interested" witnesses. [State of U.P. v. Hakim Singh (1980)
(c) Where testimony of witnesses had been disbelieved by the High Court, on an unrealistic conjecture of personal motive on the part of witnesses to implicate the accused, when in fact, the witnesses had no axe to grind in the said matter. [State of Rajasthan v. Sukhpal Singh (1983) 1 SCC 393]
(d) Where dying declaration of the deceased victim was rejected by the High Court on an irrelevant ground that they did not explain the injury found on one of the persons present at the site of occurrence of the crime.
[Arunachalam vs. P.S.R. Sadhanantham (1979) 2 SCC 297]
(e) Where the High Court applied an unrealistic standard of "implicit proof" rather than that of "proof beyond reasonable doubt" and therefore evaluated the evidence in a flawed manner. [State of U.P. v. Ranjha Ram (1986) 4 SCC 99]
(f) Where the High Court rejected circumstantial evidence, based on an exaggerated and capricious theory, which were beyond the plea of the accused; [State of Maharashtra v.
Champalal Punjaji Shah (1981) 3 SCC 610]
(g) Where the High Court acquitted the accused on the ground that he had no adequate motive to commit the offence, although, in the said case, there was strong direct evidence establishing the guilt of the accused, thereby making it necessary on the part of the prosecution to establish "motive". [State of A.P. v. Bogam Chandraiah (1990) 1 SCC 445] 31.2.2. Where acquittal would result is gross miscarriage of justice;
(a) Where the findings of the High Court, disconnecting the accused persons with the crime, were based on a perfunctory consideration of evidence, [State of U.P. v. Pheru Singh 1989 Supp (1) SCC] or based on extenuating circumstances which were purely based in imagination and fantasy [State of U.P. v. Pussu (1983) 3 SCC 502]
(b) Where the accused had been acquitted on ground of delay in conducting trial, which delay was attributable not to the tardiness or indifference of the prosecuting agencies, but to the conduct of the accused himself; or where accused had been acquitted on ground of delay in conducting trial relating to an offence 9 Neutral Citation No. ( 2025:HHC:9716-DB ) which is not of a trivial nature. [State of Maharashtra v. Champalal Punjaji Shah (1981) 3 SCC 610]"
11. In H.D. Sundara & others vs. State of Karnataka, (2023) 9 Supreme Court Cases 581, the Hon'ble Supreme Court has observed that the appellate court cannot overturn acquittal only on the ground that after reappreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. The relevant portion of the above judgment is as under:
"8. In this appeal, were are called upon to consider the legality and validity of the impugned judgment rendered by the High Court while deciding an appeal against acquittal under Section 378 of the Code of Criminal Procedure, 1973 (for short "CrPC"). The principles which govern the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 CrPC can be summarized as follows:
8.1. The acquittal of the accused further strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is possible view which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.
9. Normally, when an appellate court exercises appellate jurisdiction, the duty of the appellate court is to find out whether the verdict which is 10 Neutral Citation No. ( 2025:HHC:9716-DB ) under challenge is correct or incorrect in law and on facts. The appellate court normally ascertains whether the decision under challenge is legal or illegal. But while dealing with an appeal against acquittal, the appellate court cannot examine the impugned judgment only to find out whether the view taken was correct or incorrect. After reappreciating the oral and documentary evidence, the appellate court must first decide whether the trial court's view was a possible view. The appellate court cannot overturn acquittal only on the ground that after reappreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. Only recording such a conclusion an order of acquittal cannot be reversed unless the appellate court also concludes that it was the only possible conclusion. Thus, the appellate court must see whether the view taken by the trial court while acquitting an accused can be reasonably taken on the basis of the evidence on record. If the view taken by the trial court is a possible view, the appellate court cannot interfere with the order of acquittal on the ground that another view could have been taken."
12. Thus, the law on the issue can be summarized to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. Further, if two views were possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the Trial Court, merely, because the Appellate Court could have arrived at a different conclusion than that of the Trial Court.
13. The prosecution, in order to prove its case, examined as many as twelve witnesses, however, its case mainly rests upon the statements of PW-1 HHC Sukhdev Singh, PW-2 Constable 11 Neutral Citation No. ( 2025:HHC:9716-DB ) Virender Kumar, PW-3 Shri Khajana Ram, Deputy Superintendent of Police, PW-4 ASI Jaswant Singh and PW-9 HC Kesar Singh.
14. PW 1 HHC Sukhdev Singh and PW-2 Constable Virender Kumar deposed that on 05.02.2005 they were deputed to produce accused Harjeet Singh from Central Jail, Nahan, in the Court of learned Chief Judicial Magistrate, Sirmaur, District at Nahan. They further deposed that they went to the Court of learned Chief Judicial Magistrate, Sirmaur at Nahan, at about 10/10:30 a.m. and accused Harjeet Singh was in custody. These witnesses have also deposed that when around 11:00 a.m. they were outside the Court room, two persons came there and accused Harjeet Singh told that the Advocate had come. As per these witnesses, one person had covered his face with a chadder (sheet) and another person was in the dress of Advocate. The person, who was in the dress of the Advocate, told that he would appear for accused Harjeet Singh and he informed that he was a practicing advocate in the Hon'ble High Court of H.P. and resident of Delhi. These witnesses further deposed that accused Harjeet Singh told that he had to take medicine, therefore, he was taken by them to a kiosk (khokha), within the Court premises, to take medicine. Two persons, who met them outside the Court, were standing near the khokha and were having tea. Subsequently, 12 Neutral Citation No. ( 2025:HHC:9716-DB ) accused Harjeet Singh was produced in the Court and around 12:30 p.m. they returned to Model Central Jail, Nahan and handed over the custody of accused Harjeet Singh to the Jail authority. As per the version of these witnesses, during the night time they came to know that accused Harjeet Singh was taken away by 5-6 persons from the custody of the police from Civil Hospital, Nahan. The person, who was in the dress of an advocate, had disclosed his name as Prem Singh and another had divulged his name as Raju. These witnesses further deposed that on 10.07.2007, during the investigation, accused Prem Singh was in the custody of the police and they had identified him.
15. PW-3 Shri Khazana Ram, the then Deputy Superintendent of Police, Bilaspur, deposed that an application was moved by him seeking production warrant of accused Prem Singh, who was lodged in Central Jail, Hissar, and pursuant thereto he was produced in the Court of learned Chief Judicial Magistrate, Sirmaur, District at Nahan, and was remanded to judicial custody. The Court fixed the identification parade on 03.07.2007, but the same could not be done, as accused Prem was shifted to Hissar Jail. He further deposed that accused Prem was arrested by him on 09.07.2007 and interrogated. As per the statement of this witness, on 11.07.2007 accused was again 13 Neutral Citation No. ( 2025:HHC:9716-DB ) produced before the Court and he was remanded to judicial custody till 25.07.2007 and he was directed to be lodged in Hissar Jail, as per previous order of Additional Sessions Judge, Fatehgarh. Subsequently, he prepared supplementary challan against accused Prem Singh and during the investigation accused Prem Singh was identified by HC Jaswant Singh, HHC Sukhdev and Constable Ravinder Singh to be the same person, who was involved in commission of crime on 05.02.2005 in Regional Hospital, Nahan, from where he alongwith other co-accused attacked police party and got escaped accused Harjeet Singh, who was in custody of police and was under treatment.
16. PW-4 ASI Jaswant Singh and PW-9 HC Kesar Singh deposed that on 05.02.2005 they were deputed at Central Jail, Nahan, for bringing under trial prisoner to checkup at Hospital at Nahan. They further deposed that they went to Model Central Jail, Nahan, and were deputed with under trial prisoner Harjeet Singh for his medical checkup at Civil Hospital, Nahan. They came to hospital in an ambulance, bearing registration No. HP-18-4428, which was driven by driver Jagdish Chand. Prisoner Harjeet Singh was medically examined by Medical Officer at Civil Hospital, Nahan, and he was admitted in the hospital in the male ward on bed No. 25. As per these witnesses, the prisoner was in the 14 Neutral Citation No. ( 2025:HHC:9716-DB ) custody of Constable Kesar Singh (PW-9) and he was handcuffed and the handcuff was tied with the belt of PW-9. Around 08:20 p.m. suddenly some people came and one person put some weapon on the ear of PW-9 and demanded key of the handcuff and he also gave a blow on the head of PW-9. PW-4 immediately tried to contact the police on telephone, but he was caught hold by those persons and they hit him on his nose and gave him fist blows. PW-4 was brought outside the ward while beating and prisoner Harjeet Singh was got released and all of them fled away in a car, having registration No. CH-03-F-6657. PW-9 sustained injuries in the incident and PW-4 informed the police. Both these witnesses were medically examined at R.H. Nahan. PW-4 also deposed that 2-3 shots were fired by the said persons and they got released prisoner Harjeet Singh. On 10.07.2007 PW-4 alongwith Constable Virender Kumar and HHC Sukhdev Singh remained associated in the investigation and during the investigation SHO Khazana Ram produced a person before them and he was identified as the same person, who was involved in the incident of beatings on 05.02.2005 at R.H. Nahan and got released the prisoner Harjeet Singh with the help of other accused persons. PW-4 further deposed that Constables Virender and Sikhdev Singh had also identified accused Prem Singh and told that on 15 Neutral Citation No. ( 2025:HHC:9716-DB ) 05.02.2005 accused Prem was present in the Court and presented himself as a lawyer. Accused Prem Singh disclosed the names of other co-accused persons, i.e., Harmeet, Raju, Punnu and Kapil Sahani etc., who were involved in the incident of 05.02.2005. PW- 4 also identified accused Prem Singh in the Court to be the same person, who was involved in the incident on 02.05.2005 at R.H. Nahan.
17. As per the story of the prosecution, on 05.02.2005 under trial prisoner Harjeet Singh was brought to C.H. Nahan from Central Jail, Nahan, by the then HC Jaswant Singh (PW-4) and HC Kesar Singh (PW-9). The aforesaid prisoner was medically examined by M.O. at C.H. Nahan and thereafter was admitted in the hospital in the male ward. At about 08:20 p.m., accused Prem Singh alongwith other co-accused persons came to the hospital, all of a sudden and got released prisoner Harjeet Singh from the lawful custody of HC Jaswant Singh and HC Kesar Singh and they fled away in a car and during the scuffle Constables Jaswant Singh & Kesar Singh also sustained injuries.
18. The perusal of the statements of ASI Jaswant Singh (PW-4) and HC Kesar Singh (PW-9) shows that they have not seen the persons who got released prisoner Harjeet Singh from their custody. Both of them categorically deposed that at about 16 Neutral Citation No. ( 2025:HHC:9716-DB ) 08:20 p.m. some people came to the hospital, suddenly one person put some weapon on the ear of Constable Kesar Singh and demanded the key of the handcuff and also gave a blow on his head. They also snatched the key of the handcuff and gave them beatings and thereafter managed to release prisoner Harjeet Singh from their custody and fled away in a car. Thus, their statements clearly show that at the time of the incident, both of them could not identify those persons. Admittedly FIR was lodged against unknown persons. PW-4 Jaswant Singh specifically deposed that during the investigation SHO Khajana Ram (PW-3) produced one person before them and they identified accused Prem Singh to be the person who was involved in the incident of 05.02.2005 at R.H. Nahan. He further deposed that Constables Virender Kumar and Sukh Dev have also identified accused Prem Singh. PW-1 HHC Sukh Dev as well as PW-2 Constable Virender Kumar deposed that on 10.07.2007, during the investigation, they identified accused Prem Singh, who was in the custody of the police to be the person who met them in the Court on 05.02.2005 in the dress of advocate.
19. It has also come on record that that no test identification parade was conducted after the arrest of accused Prem Singh. Although, PW-3, the then S.H.O. Khajana Ram 17 Neutral Citation No. ( 2025:HHC:9716-DB ) deposed that an application was moved by him seeking identification parade of accused Prem Singh, but the same could not be conducted as the accused was shifted to Hissar Jail. However, there is nothing on record to show as to whether he took necessary steps thereafter to get the test identification parade of the accused conducted despite the fact that he had ample opportunity to get the same conducted qua the identification of accused Prem Singh. He has failed to explain as to why he could not succeed in getting the accused identified through test identification parade.
20. The learned trial court acquitted the accused on the ground that no identification parade was conducted by the Investigating officer, therefore, in absence of any identification parade or evidence of eye witnesses for identification of the accused, the accused cannot be convicted. In our opinion, the finding given by the learned trial court for acquitting the accused does not require any interference because as per the record of the case, it is admitted position that no identification parade was got conducted by the Investigating Officer to identify the accused in the investigation and FIR was lodged against unknown persons. PW-1 HHC Sukh Dev, PW-2 Constable Virender Kumar and PW-4 ASI Jaswant Singh have identified accused Prem Singh for the first 18 Neutral Citation No. ( 2025:HHC:9716-DB ) time after a gap of about two years and five months in the police station that too while he was in police custody and have identified the accused in the Court in the year 2012, which cannot be relied upon, especially when identification in the Court is not corroborated either by the previous identification in the identification parade or any other evidence.
21. In the case of Dana Yadav @ Dahu & Ors. Vs. State of Bihar reported in AIR 2002 SC 3325, the Hon'ble Apex Court held that 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 weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. Para No.38 of the said judgment reads as under:
"38. In view of the law analysed above, we conclude thus:
(a) If an accused is well known to the prosecution witnesses from before, no test identification parade is called for and it would be meaningless and sheer waste of public time to hold the same.
(b) In cases where according to the prosecution the accused is known to the prosecution witnesses from before, but the said fact is denied by him and he challenges his identity by the prosecution witnesses by filing a petition for holding test identification parade, a court while dealing with such a prayer, should consider without holding a mini inquiry as to whether the denial is bona fide or a mere pretence and/or made with an ulterior motive to delay the investigation. In case court comes to the conclusion that the denial is bona fide, it may accede to the prayer, but if, however, it is of the view that the same is a mere pretence and/or made with an ulterior motive to delay the investigation, question for grant of such a prayer would not arise. Unjustified grant or refusal of such a prayer would not necessarily enure to the benefit of either party nor the same would be 19 Neutral Citation No. ( 2025:HHC:9716-DB ) detrimental to their interest. In case prayer is granted and test identification parade is held in which a witness fails to identify the accused, his so-called claim that the accused was known to him from before and the evidence of identification in court should not be accepted. But in case either prayer is not granted or granted but no test Identification parade held, the same ipso facto cannot be a ground for throwing out evidence of identification of an accused in court when evidence of the witness, on the question of identity of the accused from before, is found to be credible. The main thrust should be on answer to the question as to whether evidence of a witness in court to the identity of the accused from before is trustworthy or not. In case the answer is in the affirmative, the fact that prayer for holding test identification parade was rejected or although granted, but no such parade was held, would not in any manner affect the evidence adduced in court in relation to identity of the accused.
But if, however, such an evidence is not free from doubt, the same may be a relevant material while appreciating the evidence of identification adduced in court.
(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.
(d) Identification parades are held during the course of investigation ordinarily at the instance of investigating agencies and should be held with reasonable despatch for the purpose of enabling the witnesses to identify either the properties which are subject matter of alleged offence or the accused persons involved in the offence so as to provide it with materials to assure itself if the investigation is proceeding on right lines and the persons whom it suspects to have committed the offence were the real culprits.
(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 weak 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 20 Neutral Citation No. ( 2025:HHC:9716-DB ) did not disclose name of the accused before the police, but to this general rule there may be exceptions as enumerated above."
22. In the instant case, from the perusal of the entire evidence on record, it has become clear that none of the witnesses of the prosecution knew accused Prem Singh by name prior to 10.07.2007. He was allegedly got identified after a period of more than two years and five months that too in the custody of the police and was identified in the Court in the year 2012. When no specific allegation was leveled against the accused in the FIR that he was the person who got released prisoner Harjeet Singh from the lawful custody of HC Jaswant Singh and HC Kesar Singh, then obviously it was the duty of the prosecution to prove its case beyond reasonable doubt by leading evidence of identification before the court that the accused was the person who got released prisoner Harjeet Singh from the lawful custody of HC Jaswant Singh and HC Kesar Singh. No other cogent and satisfactory evidence has been led by the prosecution to connect the accused with the commission of the offence for which he was charged.
23. Therefore, in view of what has been discussed hereinabove and also in the light of adjudication made by the Hon'ble Supreme Court in Dana Yadav's case (supra) no interference in the judgment of acquittal, rendered by the learned Trial Court, is required as the same is the result of proper 21 Neutral Citation No. ( 2025:HHC:9716-DB ) appreciation of evidence and law. The appeal, which sans merits, deserves dismissal and is accordingly dismissed. Bail bonds are discharged.
Pending application(s), if any, shall also stand(s) disposed of.
( Tarlok Singh Chauhan ) Judge ( Sushil Kukreja ) Judge 8th April, 2025 (virender)