Hem Singh @ Hemu Vs.
State of Haryana [2009] INSC 959 (6 May 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 495 OF 2008 HEM
SINGH @ HEMU ... APPELLANT Versus WITH CRIMINAL APPEAL NO. 496 OF 2008 VINOD @
RAJU & ANR. ...APPELLANTS Versus
S.B. Sinha, J.
1.
These
two appeals arising out of a common judgment and order dated 1.8.2006 passed by
a Division Bench of the Punjab & Haryana High Court at Chandigarh in
Criminal Appeal Nos. 311-DB of 2005 and 392-DB of 2 2005 were taken up for
hearing together and are being disposed of by this common judgment.
2.
Appellants
were prosecuted for commission of offences punishable under Section 302, 307,
353 and 34 of the Indian Penal Code (for short, "IPC"). They were, it
is of some significance, not charged for commission of offence punishable under
Section 25 of the Arms Act.
3.
The
prosecution case is as under.
During the night
intervening 24/25.12.1999, Inspector Kuldeep Singh (P.W.10) received a secret
information that the accused Sattey (since deceased), Sunil, Vinod, Hemu
(appellants herein) and one Pappu @ Lilu (absconding) of U.P. (said to be
dacoits), would be coming to Lakarpur. On the basis of the said information, Inspector
Kuldeep Singh deputed ASI Randhir Singh (P.W.3), Constable Ramesh Kumar (P.W.2)
and Constable Lasker Singh (deceased) to the said village in civil cloths.
Allegedly, on recognizing the policemen, accused persons opened fire and a gun
battle ensued between them. Accused Sattey alias Satender received a gun shot
injury. He died on the spot. Other accused persons were said to have fled away.
Constables Ramesh Kumar (P.W.2) and Lasker Singh chased them.
While the exchange of
fire was going on, Lasker Singh received a gunshot injury. He also died on the
spot. P.W. 2 also received a gunshot injury.
3 A First
Information Report ("FIR" for short) was lodged by P.W.10 in respect
of the aforesaid incident at about 1.30 a.m. registered as FIR No. 775 dated 25.12.1999
under Sections 302, 307, 353 IPC and Sections 25, 45 and 59 of the Arms Act at
P.S. NIT Faridabad.
On the same day, i.e.
on 25.12.1999, P.W. 10 prepared a site plan in which the name of the appellant
- Hemu was not mentioned.
On or about 5.1.2000,
P.W.10 arrested Vinod from Village Dagarpur, Police Station Khekhra (UP). He
was interrogated on 6.1.2000 and 11.1.2000 and on the basis of his purported
disclosure, a pistol was recovered. On or about 19.1.2000, the Investigating
Officer arrested Sunil from Delhi after obtaining warrants of his arrest and
recorded his confessional statement on 23.1.2000. He also took in possession
the pistol and the car said to have been used by the accused on 25.12.1999.
Indisputably, Hemu
was arrested on 6.1.2000 by Inspector Palvinder Singh (P.W. 17) while he was
riding on a red Yamha Motorcycle.
Allegedly, a pistol
was recovered from him. A case under Section 302, 185, 353 IPC and 27 Arms Act
had been registered against him being FIR No. 4 of 2000 at P.S Sarita Vihar,
New Delhi. A disclosure statement of Hemu was recorded on or about 6.1.2000. It
is alleged that Hemu was forced to admit his involvement in the present case
and the said disclosure statement was obtained by undue influence and coercion
at the hands of police.
Indisputably, another
disclosure statement of Hemu while he was in police custody on 2.2.2000 was
recorded wherein it was mentioned that the Hemu and Lilu had fired at Constable
Lasker Singh who had died. A case under Arms Act was initiated against him. He
was acquitted in the aforesaid case by the learned Additional Sessions Judge,
New Delhi in Appeal No. 101 of 2001 holding that the alleged firearm was not in
a working order and the same could not have been used.
The postmortem was
conducted on the bodies of Constable Lasker Singh and accused Sattey. The
Postmortem reports were submitted and the recovered articles were taken in
custody and a memo therefor was prepared.
Accused Pappu could
not be arrested; therefore, he was declared a `proclaimed offender'.
After completion of
the investigation, charge sheet was filed against Hemu, Vinod, Sunil
(appellants herein) and Pappu @ Lilu. Charges under Section 353, 302, 307 IPC
read with Section 34 IPC were framed against the accused persons while additional
charge under Section 25 of the Arms Act was framed only against Vinod.
5 Accused persons
denied the charges and claimed to be tried.
4.
A
large number of witnesses were examined by the prosecution in support of its
case.
After considering the
materials on record, the learned trial judge, Faridabad held all the accused
persons guilty for commission of the offences under Sections 302, 307 and 353
of IPC read with Section 34 of IPC.
However, Vinod was
acquitted in respect of the charge under Section 25 of the Arms Act.
5.
Criminal
Appeals preferred thereagainst were dismissed by the High Court by reason of
the impugned judgment, inter alia, holding:
"We do not find
any merit in the arguments advanced by the learned counsel for the appellants
that since no injury is attributed to Hem Singh alias Hemu accused, therefore,
he cannot be said to have shared common intention with all the accused because
it has come in evidence that accused were five in numbers. Admittedly, accused
Sattey and other accused were required in number of cases relating to dacoity
and other heinous crimes. The police party had secret information and was
following them with an intention to nab them.
Such accused persons
who always remained equipped with the loaded arms to face resistance of any
kind from any source, certainly had the common intention. It is something
different that out of five accused, one accused namely Sattey died and the
other ran away, whereas three accused namely Hem Singh alias Hemu, Vinod and
Sunil 6 were arrested. The arms were recovered from them, therefore, Hem Singh
though has not been attributed any injury, could not be said to have no common
object and did not participate in the crime along with the accused, therefore,
complicity of accused Hem Singh alias Hemu cannot be ruled out since the three
accused were arrested and, therefore, their conviction under Section 34 of IPC
was justiciable.
No other point has
been urged and no law has been cited to assail the impugned judgment.
The close scrutiny of
the trial court judgment does not suggest any apparent illegality suggesting
interference by us."
6.
It
is not in dispute that none of the prosecution witness knew any of the accused
- appellants. However, in Column No.2 of the FIR, not only their names but also
their parentage and complete addresses were stated. It is, however, not clear
as to whether the name of the accused Hemu was recorded in the said FIR or not,
the translated version thereof has been placed before us. We may reproduce the
same:
"At the Police
Station On receipt of original writing a case (FIR) under above said offence
has been registered, Copies of FIR have been prepared as per procedure which
are being sent to the concerned officers as a special report through special
constable Ram Kishan No. 1825. Copy of police file together with original
writing is being sent to the Inspector CIA for further investigation at the
spot through in coming constable. I, the Inspector/SHO of the police station
along with C. Shiv Parshad 1441. C. Suraj Mal 2106 on official Jeep driven by
C. Sunder Singh 1824 proceed to the spot.
Sd/- Kuldeep Singh
Insp./SHO P.S. NIT Faridabad Dt. 25.12.99 (in Hindi) Received at 4.40 A.M. at
my residence Sd/- CJM, Faridabad 25.12.99"
7.
Accused
Hemu was arrested on 6.1.2000 at Delhi. He was found to have been in possession
of a firearm. In that case, he is said to have been confessed his involvement
in the present case. He was arrested in this case on 22.1.2000 on the basis of
a production warrant issued from Delhi by P.W.10.
It, however, now
stands admitted that as on the date of commission of offence Hemu was not
involved in any other criminal case. It is also undisputed that accused Vinod
has been acquitted in the case of possessing a firearm.
We may furthermore
place on record that three bullets were recovered by the investigating officer;
two of them which had hit Accused Sattey and 8 Constable Lasker Singh were
fired from .38 bore revolver. .38 bore revolvers indisputably were used by the
police officers.
P.W.2 Ramesh,
however, received a gunshot injury fired from .315 weapon. No such weapon was
recovered from accused Sunil, Vinod or Hemu.
So far as the
recovery of weapon from Hemu and Sunil are concerned, as noticed hereinbefore,
Hemu had been acquitted of the charge of possessing any weapon by a Delhi
Court.
So far as the finding
of the High Court that Sattey and the other accused persons were required in a
number of cases for committing dacoity and other heinous crimes are concerned,
we may notice that Kuldeep Singh (P.W. 10) categorically admitted that no case
was pending against accused Hemu at the time of occurrence.
8.
The
learned trial judge did not frame any charge as against Hemu or Sunil for
commission of offence under the Arms Act. Even Vinod was acquitted of that
charge.
Appellants herein
admittedly were not known to the police officers.
Only Sattey was known
to them. P.W.1 - Anoop Singh in his deposition categorically admitted that he
did not know the assailants previously. After 9 their arrest, no
identification parade test was held. Although the first informant as also
witnesses in their depositions proceeded on the basis that all the accused had
been coming in a Maruti Car and they were heavily armed, no arm was recovered
from any of them.
The only statement
which was relevant for this case had been made by P.W.2 - Ramesh Kumar in the
following terms:
"Accused Sattey,
who has since died said to his companions pointing towards us, that police men
in plain clothes have come and called upon Lilu, Hem Singh and Vinod to open
fire on us. Then those persons who were five in number started firing at
us."
9.
How
their names could be taken is beyond anybody's comprehension.
Even two persons,
namely, Lilu and Vinod were called by their first names.
How the Officer
In-charge even could ascertain their actual names has not been disclosed. He
admitted that apart from Sattey, he had not seen any accused persons on
previous occasion. Why despite the same, identification parade was not held has
not been explained. Appellants were identified only in court.
10.
Mr.
Rajeev Gaur `Naseem' learned counsel appearing on behalf of the State would
contend that identification for the first time in court is permissible in law.
There cannot be any
dispute so far as the aforementioned proposition of law is concerned. The said
principle, however, should be applied having regard to the facts and
circumstances of each case. Courts, as is well known, ordinarily, do not give
much credence to identification made in the court for the first time and that
too after a long time.
In Mahabir v. The
State of Delhi [2008 (6) SCALE 52], this Court held:
"10. As was
observed by this Court in Matru v. State of U.P. (1971) 2 SCC 75 identification
tests do not constitute substantive evidence. They are primarily meant for the
purpose of helping the investigating agency with an assurance that their
progress with the investigation into the offence is proceeding on the right
lines. The identification can only be used as corroborative of the statement in
court. (See Santokh Singh v. Izhar Hussain (1973) 2 SCC 406). The necessity for
holding an identification parade can arise only when the accused are not previously
known to the witnesses.
The whole idea of a
test identification parade is that witnesses who claim to have seen the
culprits at the time of occurrence are to identify them from the midst of other
persons without any aid or any other source. The test is done to check upon
their veracity. In other words, the main object of holding an identification
parade, during the 11 investigation stage, is to test the memory of the
witnesses based upon first impression and also to enable the prosecution to
decide whether all or any of them could be cited as eyewitnesses of the crime.
The identification proceedings are in the nature of tests and significantly,
therefore, there is no provision for it in the Code and the Indian Evidence
Act, 1872 (in short the 'Evidence Act'). It is desirable that a test
identification parade should be conducted as soon as possible after the arrest
of the accused. This becomes necessary to eliminate the possibility of the
accused being shown to the witnesses prior to the test identification parade.
This is a very common
plea of the accused and, therefore, the prosecution has to be cautious to
ensure that there is no scope for making such allegation. If, however,
circumstances are beyond control and there is some delay, it cannot be said to
be fatal to the prosecution."
11. It is trite to
say that the substantive evidence is the evidence of identification in Court.
Apart from the clear provisions of Section 9 of the Evidence Act, the position
in law is well settled by a catena of decisions of this Court. The facts, which
establish the identity of the accused persons, are relevant under Section 9 of
the Evidence Act.
As a general rule,
the substantive evidence of a witness is the statement made in Court. The
evidence of mere identification of the accused person at the trial for the
first time is from its very nature inherently of a weak character."
{See also Amitsingh
Bhikamsing Thakur vs. State of Maharashtra [(2007) 2 SCC 310]} 12 In the
present case, P.W.1, 2 and 3 in their depositions admitted that they had not been
knowing the accused from before and despite so, no test identification parade
was held. The accused persons having been identified for the first time in the
court, it is difficult for any court to rely upon the same and that too after
such a long time.
11.
As
indicated hereinbefore, appellants were not known to the police officers; they
were not involved in any other case. In fact, so far as the Hemu is concerned,
no case at the relevant time was pending against him.
Only because Sattey
allegedly called them by their names, which appears to be wholly unlikely, they
could not have been identified particularly in view of the fact that the
incident had taken place in an isolated area and that too on a dark night.
In Bollavaram Pedda
Narsi Reddy and Others v. State of Andhra Pradesh, [(1991) 3 SCC 434)], this
Court held:
"In the present
case, the appellants are admittedly persons with whom the two witnesses had no
previous acquaintance. The occurrence happened on a dark night. When the crime
was committed during the hours of darkness and the assailants are utter
strangers to the witnesses, the identification of the accused persons assumes
great importance.
The prevailing light
is a matter of crucial significance. The necessity to have the suspects 13 identified
by the witnesses soon after their arrest also arises..."
In Nathuni Yadav vs.
State of Bihar [(1998 ) 9 SCC 238], whereupon reliance has been placed by the
learned counsel for the State, this Court observed that the lack of moonlight
or artificial light does not per se preclude identification of the assailants.
It was noted as follows (particularly where the accused are known from before):
"Even assuming
that there was no moonlight then, we have to gauge the situation carefully. The
proximity at which the assailants would have confronted with the injured, the
possibility of some light reaching there from the glow of stars, and the fact
that the murder was committed on a roofless terrace are germane factors to be
borne in mind while judging whether the victims could have had enough
visibility to correctly identify the assailants. Over and above those factors,
we must bear in mind the further fact that the assailants were no strangers to
the inmates of the tragedy- bound house, the eyewitnesses being well acquainted
with the physiognomy of each one of the killers. We are, therefore, not
persuaded to assume that it would not have been possible for the victims to see
the assailants or that there was possibility for making a wrong identification
of them. We are keeping in mind the fact that even the assailants had enough
light to identify the victims whom they targeted without any mistake from among
those who were sleeping on the terrace. If the light then available, though
meagre, was enough for the assailants why should we think that the same light
was not enough for the injured 14 who would certainly have pointedly focussed
their eyes on the faces of the intruders standing in front of them. What is
sauce for the goose is sauce for the gander."
The said principle
was reiterated in Bharosi vs. State of M.P. [(2002) 7 SCC 239] and S. Sudershan
Reddy vs. State of A.P. [(2006) 10 SCC 163].
{See also State of
U.P. vs. Sheo Lal & Ors. [2009 (2) SCALE 582]} However, in our opinion, the
said principle is not applicable in the present case as there was no specific
targeting by the assailants here.
What ensued between
the parties was a pitched gun battles which lasted for only five to six minutes
close to midnight and that too at a considerable distance.
12.
Mr.
Naseem would also submit that as Sattey was involved in commission of a large
number of offences, all others could be proceeded against for commission of
offence under Section 302/49 of the IPC.
Reliance in this
behalf has been placed on Yunis Alias Kariya vs. State of M.P. [(2003) 1 SCC
425], wherein it was held:
"9. The learned
counsel appearing for appellant Liyaquat argued that no overt act is imputed to
his client and he was being implicated only on the basis of Section 149 IPC.
This argument, in our view, has no merit. Even if no overt act is imputed to a
particular person, when the charge is under Section 149 IPC, the presence of
the accused as part of an unlawful assembly is sufficient for conviction."
Although the
proposition of law enunciated therein is not in question, herein no charge
under Section 149 has been framed. Existence of any common object amongst the
accused had also not been proved.
13.
Sattey
furthermore could not have been instrumental in murdering Lasker Singh. Laskar
Singh died of a firearm injury shot from a service revolver, i.e., at the hands
of the police party only. Such a revolver, thus, was not and could not have
been used by any of the accused persons.
14.
For
the aforementioned reasons, the impugned judgment of the High Court cannot be
upheld. The appeals are allowed. The appellants are directed to be set at
liberty unless wanted in connection with any other case.
......................................J.
[S.B. Sinha]
......................................J.
[Dr. Mukundakam Sharma]
New
Delhi;
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