Devinder vs State of Haryana

R.L. Anand, J.

By this judgment I dispose of three criminal appeals Nos. 20SB Raju v. Haryana State, 62SB Devinder and another v. State of Haryana, and 156SB Dharmapal v. State of Haryana, all of 1988, as in the opinion of this court, all the three appeals can be disposed of by one judgment. Appellants Devinder, Kushal Pal and Raju were tried together by the learned Addl. Sessions Judge, Gurgaon, who vide his judgment dated 12.12.1997 and order dated 16.12.1997, convicted them u/ss 395/397/120B, IPC, and sentenced each one of them to undergo R.I. for five years u/s 395, IPC, and to pay a fine of Rs. 2,000/ each, in default of payment of fine, each one of them was further directed to undergo S.I. for three months. These appellants were further sentenced u/s 397, IPC, to undergo R.I. for 7 years each. Both the sentences were ordered to run concurrently. Vide separate judgment dated 12.12.1997 and order dated 16.12.1997 of the learned Addl. Sessions Judge, Gurgaon, appellant Dharmpal was sentenced to undergo RI for five years u/s 395, IPC, and to pay a fine of Rs. 2,000/; in default of payment of fine, he was further directed to undergo S.I. for three months. This appellant was further convicted u/s 397, IPC, and sentenced to undergo RI for seven years. Both the sentences were, however, ordered to run concurrently.

The brief facts of the case can be summarised in the following manner :

On 31.12.1995, Bheru Singh, PW11, was the first driver of Bus No. RPJ 6633. Kishan Lal, PW8, wa the second driver of the said bus. Ram Kishan, PW 7, was the Cleaner. On that day, the said bus left Khanpur Market, New Delhi for Udaipur. At about 8.00 PM, the said bus halted at Dhaula Kaun, where six passengers boarded the bus for Jaipur. Out of them, three passengers sat on the rear seat; one on the middle seat and the remaining two on the front seat. At about 9.30 p.m., when the bus reached near NSG Gate Maneasar, two of the boys who were sitting on the rear seats came near the driver seat. One of them pointed country made pistol on the chest of the driver Bheru Singh and occupied the seat of the driver. On of the persons sitting in the middle of the bus, overpowered the miscreant and that fellow hit a knife blow upon that person. However, the said act created a confusion among the passengers and in those circumstances, all the miscreants tried to run away. However, a few passengers overpowered a few miscreants and they, in their selfdefence caused injuries. The disclosed their names as Devinder son of Tara Chand, Raju son of Sarju and Kaushal Pal son of Bhanwar Singh. The person who sat on the driver seat was known as Dharam Pal son of Ram Singh. As per the prosecution, the names of the persons who escaped from the rear door were Siri Pal son of Budh Ram and Guddu. The persons who were overpowered by the passengers were produced before SI Satyawati, who was incidently present near Muli Dhar Petrol Pump on patrol duty. This said police official recorded the statement of Bheru Singh, PW11, and an endorsement was made underneath his statement and it was sent to the police station for the registration of the case, on the basis of which, formal FIR was registered.

Further investigation was set into motion. The injured passengers were got medically examined. Some weapons were recovered from Devinder, Raju and Kushal Pal, appellants, and they were separately booked for the offence under the Arms Act and the remaining accused were also arrested. Siri Pal, a companion of the appellants, got recovered a knife in pursuance of his disclosure statement and a case under the Arms Act was registered separately against him. During the course of further investigation, the offence u/s 120B, IPC, was also added against Siri Pal, Pawan and Dharam Pal. Accused Pawan alias Bikram was arrested on 27.4.1995. Dharam Pal in this (case) could not be arrested at the first instance.

On the above broad allegations, the present appellants; namely, Devinder, Raju and Kushal Pal, along with Siri Pal and Pawan Kumar were challenged in the court of the Area Magistrate, who supplied the copies of the documents to the appellants free of cost as required under the law and vide commitment order dated 2.8.1995, committed the appellants to the court of sessions to face trial who vide order dated 5.9.1995, chargesheeted the appellants Devinder, Kushal Pal and Raju u/ss 395 and 397 IPC. Further, Pawan Kumar alias Bikram was chargedsheeted u/ss 395/397/120B, IPC. The fifth accused could not be chargesheeted for wanted of his arrest. He was arrested later, and tried and convicted separately. The charges were read over and explained to the accused who pleaded not guilty and claimed trial.

In order to substantiate the charge, the prosecution examined as many as 11 witnesses.

On the closure of the prosecution evidence, the statements of the accused were recorded u/s 313, Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. The appellants denied those circumstances and stated that they were innocent.

When called upon to enter into their defence, the accused did not lead any evidence.

The learned trial court believed the prosecution story and rejected the defence version. The appellants were convicted and sentenced in the manner as stated above and aggrieved by their conviction and order of sentence, the present appeals.

In this case identification is a big issue which in the opinion of this court has not been established. As per the story of the prosecution, Bheru Singh, was driving the bus at the relevant time. Kishan Lal was the second driver and Ram Kishan was the conductor. The story of the prosecution further proceeds that six persons tried to capture the bus. Three persons; namely, Devinder, Raju and Kushal Pal, were apprehended at the spot. The remaining companions of these three accused escaped as they could not be apprehended. The story of the prosecution further proceeds that the captured accused were finally produced before SI Satyawati. In these circumstances, the best witnesses who could identify the appellants are Bheru Singh, Kishan Lal and Ram Kishan, SI Satyawati or the passengers of the bus. Ram Kishan appeared as PW7 and his statement is on different lines. According to this witness, he was the conductor of the bus which was going from Delhi to Udaipur. The bus left Delhi Bus Stand around 7 p.m. From Dhaula Kuan, five persons boarded the bus and they stated that they had to go to Jaipur. When the bus passed Manesar village at about 8/8.30 p.m. out of those five persons, one person who was armed with a country made pistol came to the driver and threatened him with that he will drive the vehicle and he started driving the bus. That person was sitting on the back seat of the bus. Out of them, one other was armed with knife and the remaining three were having cartridges. It is further deposed by this witness that the police officials started quarrelling with those persons. Five persons were appended there. The driver and the conductor, according to this witness, went to the police station with the bus. When the attention of this witness was drawn to the accused present in the court, he simply stated that he could identify those persons to be accused. This witness was declared hostile by the prosecution. Thus, the testimony of Ram Kishan does not lead anywhere because he could not name any of the appellants in court. This witness was not known to the appellants earlier. He was not the lodger of the FIR and the Investigating Agency did into arrange any identification parade so as to identify the culprits through Ram Kishan. Repeatedly, it has been held that identification of the accused in court for the first time is no identification in the eyes of law.

Now, I come to the statement of PW8 Kishan Lal. His evidence is not only contradictory with PW7 but also he has a different version. He stated that he was the second driver of the bus while Bherur Singh was the first driver and Ram Kishan, PW7, was the Conductor. According to him, seven persons boarded the bus from Dhaula Kuan. Out of them he could recognise two persons. The witness, for the first time, identified in court Raju and Kushal Pal. The witness further stated that when the bus was ascending the board towards manesar, two persons came from rear side of the bus and both of them pointed out their country made pistols towards the driver. They said that they would drive the bus and left the bus; one through the window of the driver and the other through the window of conductor. According to this witness, Raju was armed with a knife. He was caught at the spot. The witness further states that the did not see as to what was done by Raju but a country made pistol and 7 cartridges were recovered from him. Three persons were apprehended at the spot. Again, this witness is not in a position to pin point as to who were the three persons who were apprehended at the spot. No identification parade was arranged so as to identify the culprits through Kishan Lal. PW8.

The third witness in this line is Bheru Singh, who appeared PW11. He was the person who lodged the FIR. According to this witness, he was the driver of the vehicle going from Delhi to Udaipur and when he reached near Manesar, he found same person; then said, he did not see any person. He stated that his vehicle was on a slope and in the third gear. One person came in the vehicle and put a Katta on his head and asked him to hand over the vehicle. When he raised an alarm, the man fled away from the spot. This witness was asked to tell the name of the person but he could not tell his name. It has been further stated by Bheru Singh, PW11, that he took his vehicle near Petrol Pump to Bilaspur Police Station. The police was patrolling there. The police searched the vehicle and recovered one country made pistol from a person whose name he did not know. Rather, he stated that he has forgotten the identification. This witness was also not in a position to pin point the identity of the accused.

SHO Satyawati, appeared as PW10. According to this witness, she recorded the statement of Bheru Singh and deposed that she apprehended three persons; namely, Devinder, Kushal Pal and Raju. She further deposed that she searched the accused persons upon which a country made pistol was recovered from the possession of Devinder. It was a .315 bore loaded with one live cartridge. Seven live cartridges were also recovered from his possession. One knife was recovered from the possession of Kushal Pal. Thus, we are left only with the testimony of Satyawati. She was not a passenger in the bus. In these circumstances, it cannot be said that the appellants were responsible for the dacoity or robbery. The bald testimony of Satyawati may not be enough for convicting the appellants u/ss 395/397 IPC. She also did not take any efforts for the identification of the accused through identification parade.

In these circumstances, when the identity of the accused is a doubtful affair, I have been left with no other option but to allow all the above appeals and set aside the judgment and order of the trial court and acquit Devinder, Kushal Pal, Raju and Dharam Pal. Intimation about the acceptance of the appeals be sent to the quarters concerned so that the appellants may be set at liberty forthwith, if not wanted or convicted in any other case.

Appeals allowed.