Jaimal Singh vs State of Haryana

Ujagar Singh, J.

Cr. Appeals No. 338SB/1985, 339 SB/1985 and 340SB/1985 have been filed through jail by Jaimal Singh, Sukhbir Singh and Avtar Singh, respectively. Since all these arise out of a joint trial and a common judgment, the same are being disposed of together.

The appellants were charged u/s 392 read with section 397 Indian Penal Code. They along with two others namely Balbir Singh and Baldev Singh were also charged u/s 411 Indian Penal Code. After the trial, the trial court held that as the present appellants have been held guilty u/s 392 read with section 397 Indian Penal Code they were acquitted of the charge u/s 411 Indian Penal Code So far as the other two accused were concerned the only charge against them was u/s 441 Indian Penal Code, and Balbir Singh was ultimately sentenced to the period already undergone since he was in custody from 6th October 1984 to 14th May, 1985. Then the judgment was pronounced. Baldev Singh remained in custody for a period of about three months, and it was held that the ends of justice would be met if be was sentenced to a fine of Rs. 1,000/ only. It is probably for this reason that both Baldev Singh and Balbir Singh have not come up in appeal.

The prosecution version in brief is that one Prithvi Raj Khanna was coming in his car No. DHC 5196. being driven by Chanan Singh, from Delhi to Yamunanager and when they reached near the culvert of Kishanpura on Radaur road three persons came in front of the car. Out of them one was a Sikh gentleman and the other two were bareheaded. One of them was armed with a gun, the other with a double barrel gun and the Sikh gentlemen had a knife. Description of the three persons was given as under :

The Sikh gentleman of young age, wheatish complexion and of moderate built.

The other two were bareheaded of young age, having wheatish complexion, trimmed beard, and of moderate buil.

The three are alleged to have been spotted on the road in the light of the car and they gave a signal to the car driver to a stop and Chanan Singh. the driver, stopped the car there. All the three then asked Prithvi Raj Khanna and the driver to get down from the car to which they complied with. Thereafter these persons abused Prithvi Raj Khanna and Chanan Singh and asked them to surrender whatever they had. Complying with that Prithivi Raj Khanna gave an amount of Rs 200/ to the Sikh man that was the only money he had in his pocket. Chanan Singh stated that be had nothing with him at which the two bare headed met asked him to hand over his wrist watch and the rings to which he complied with. The wristwatch was Allwyn and out of the rings one was of gold and the other was of silver. All the three persons took away the car after leaving Prithvi Raj Khanna and Chanan Singh on the road. In the car some files, documents and some articles were lying, the list of which was to be supplied later. The car was stated to be of the value of Rs. 34,000/ while the other articles were stated to be worth Rs 2,000/ approximately. Prithvi Raj Khanna expressed his ability to identify the persons. He gave his statement Ex, PS to ASI Jagdish Ram who happened to meet the former on Radaur Road near village Orangabad at about 1220 p.m. This statement with his endorsement Ex. PS/1 was sent by him to Police Station Sadar Yamuna Nagar where formal FIR Ex. PS/2 was recorded. During investigation, one Charanjit Singh who was examined, disclosed that be had also been robbed of his belongings and a motor cycle on the same night, i. e., the night between the 26th and 27th of September, 1984; at about 1030 p.m., by the said three persons in the same area where Prithvi Raj Khanna and his companion were robbed.

After investigation. a report under section 173 of the Code of Criminal Procedure was submitted to the Illaqa Magistrate who, with his committal order, sent the case to the Sessions Court for trial and ultimately the trial was entrusted to the Additional Sessions judge, The details of the trial and its result are given in the earlier part of this judgment.

In support of its case, the prosecution examined Shri R. K. Chauhan PW 1. Bichha Ram PW2, Babu Ram PW3, Jagdish Lal PW4, Yogesh Kapur PW5, Karnail Singh PW6, Inspector Amar Singh PW7, Naresh Kumar PW8, Som Nath PW9, Prithvi Raj Khanna PW16, Charanjit Singh PW 11. ASI Jagdish Ram PW 12 and Raghbir Sahai, Sub Inspector PW 13 and closed its case. Thereafter the present appellants and the other two accused were examined under section 313 of the Code of Criminal Procedure when they gave their ages as 30 years, 23 years, 24 years, 37 years and 20 years respectively but denied the prosecution allegations against them.

PW1 Shri R.K. Chauhan, the Executive Magistrate, held the identification parade on 9th October, 1984 and three witnesses namely Prithvi Raj Khanna, Chanan Singh and Charanjit Singh were called for identifying the culprits The appellants were identified by Shri Budh Singh, Assistant Superintendent of Central Jail Ambala before him to be the persons required for the identification parade. In all there were about 21 persons put up for the identification of the culprits. During the identification parade, Prithvi Raj Khanna PW could identify only Avtar Singh whereas Chanan Singh could not identify any of them. Charanjit Singh could identify Jaimal Singh and Sukhbir Singh'' only but could not identify Avtar Singh. Identification Memo Ex. PA was prepared by Shri R.K. Chauhan PW1, PW2 Bichha Ram, a clerk from the Registration Office, stated that the motor cycle HRL 239 belonged to Charanjit Singh according to the record. PW3 Babu Ram, Patwari, prepared site plans Ex. PB, PC and PD on 26th November, 1984 showing the places of recovery of motor cycle and where the two occurrences had taken place. PW4 Jagdish Lal, Patwari prepared site plan Ex PE of the place of recovery of car DHC 5196, on 4th December, 1984. PW5 Yogesh Kapur, Ahmad brought the file of FIR No. 252 dated 1st October, 1984, under sections 399/402, IPC, relating to the apprehension of all the five accused of this case, indicating that they were apprehended from an abandoned Kothi while they were present there armed. According to PW6 Karnail Singh, on Ist October, 1984, be went with one Yog Raj to Police Station Shahbad for reporting that latter''s buffalo was missing from his house. Both had joined the police party headed by Inspector Amar Singh to an abandoned kothi in village Deeg. and at about 11 p.m. the police party challenged the persons present there on the second story of that building and all the five were, found present and from their possession some arms were recovered along with some cartridges for which the said case, viz., FIR No. 252 dated Ist October, 1984, had been registered earlier at Police Station Shahbad. A large number of articles were also found in that room. However, as this case has got no concern with that case, details thereof are not being discussed here. In the presence of this witness (i.e, Karnail Singh PW), Jaimal Singh, Sukhbir Singh and Avtar Singh, appellants. were interrogated and they come out with disclosure statements Ex. PC, PH and PJ. Inspector Amar Singh PW7 had arranged the raiding party after recording said FIR No. 252 dated Ist October, 1984, of Police Station Shahbad, and thereafter apprehended the accused of that case who are also the accused in this case. In pursuance of the disclosure statements, the articles are said to have been recovered. Naresh Kumar PW8 is a witness to the recovery of motor cycle HRL 239 and the same is said to have been taken into possession vide memo Ex. PN. Som Nath PW9 accompanied Charanjit Singh P.W. 11 and before them, Avtar Singh had given a disclosure statement about the motor cycle lying in the sugarcane field on Dudla Road, and also about the abandoned car parked near village Buria near Jagadhri. He is also a witness to the disclosure statements Ex PO and PR, made by Jaimal Singh and Sukhbir Singh, respectively. Prithvi Raj Khanna PW 10 supported his version as given in Ex. P1, as also the identification of articles made by him in the police station before the Sub Inspector. Charanjit Singh PW 11 also, supported his version about the robbery of his motor cycle by the three appellants and the disclosure statements said to have been made by Jaimal Singh and Sukhbir Singh, appellants, who in consequence thereof took the party to the place where the motor cycle was concealed, leading to its recovery. Jagdish Ram, ASI, PW 12 had recorded the statement Ex. PS of Prithvi Raj Khanna PW and got recorded FIR Ex. FS/2 vide his ends. Ex. PS/1. SI Raghbir Sahai PW 13 recorded the disclosure statements Ex. PO, PQ and PR of three appellants and stated that he had shown the recovered articles to Prithvi Raj Khanna and Charanjit Singh PWs.

I have heard the State counsel and have, with his assistance, gone through the record. Before coming to the conclusion to establish the identity of the appellants with the crime, the description of the appellants as given in Ex. PS, result of the identification parade, and the evidence recorded by the trial court have to be looked into. From a reference to Ex. PS and the statements of PWs in court, it becomes clear that the description of the appellants as given in Ex. PS is not sufficient to connect the appellants with the crime. The description given is only that the culprits were of young age. having weatish complexion, and of moderate built, while for one of the assailants the further description given was that he was a Sikh gentleman and about the other it was stated that they had trimmed beard. With this description one cannot, have the complete data to fix the identity of the accused. There are a number of decisions to support this view, the latest being a judgment of the Supreme Court in Hari Nath v. State of U.P., Chhabi Nath v. State of U.P. and Rai Nath v. State of U.P., reported as 1987(iv) SVLR (Cri) 47, where it was held :

"The One area of criminal evidence susceptible to miscarriage of criminal justice is the error in the identification of the criminal. Indeed Prof, Borchard''s "Convicting the Innocent" records several criminal convictions in which the accused was subsequently proved innocent. The major source of the error is to be found in the identification of the accused by the victim of the crime. Indeed the learned author refers to the source of mistaken identification thus :

"..........The emotional balance of the victim or eye witness is so disturbed by his extraordinary experience that his powers of perception becomes distorted. And his identification is frequently most untrustworthy. Into the identification enter other motives not necessarily stimulated originally by the accused personaly the desire to require a crime. to exact vengeance upon the person believed guilty, to find a scapegoat, to support, consciously or unconsciously, an identification already made by another. Thus,doubts are resolved against the accused..........."

As held in that case the evidence of identification merely corroborates and strengthens the oral testimony in Court which alone is The primary and substantive evidence as to identity.. In this regard, their Lordships of the Supreme Court in the above referred to case, referred to case Habib v. State of Bihar, AIR 1972 SC 283 where it was observed :

"....The purpose of test identification is to test that evidence, the safe rule being that the sworn testimony of the witness in Court as to the identity of the accused who is a stranger to him, as a general rule, requires corroboration in the form of an earlier identification proceeding..........."

In the instant case, the admission of PW 13 Raghbir Sahai, Sub Inspector, in crossexamination cannot be ignored. The witness has specifically admitted that the photographs of Jaimal Singh and Sukhbir Singh were shown by him to Prithvi Raj Khanna and Charanjit Singh PWs on 27th September, 1984, in the mill where Prithvi Raj Khanna was working and those photographs were in an album. He further desposed that Charanjit Singh PW was summoned there to see the photographs. The witness further stated that at the time of production of the three appellants before the Magistrate Kurukshetra by Kurukshettra Police they were not with muffled faces.

The circumstances as to how the appellants and the other two accused were apprehended is given in detail by Inspector Amar Singh (PW7), who, on getting secret information, formed a raiding party after recording the First Information Report 252 dated 1101984 of Police Station Shababad and joined Karnail Singh (PW6) and one Yog Raj and raided the abandoned kothi in village Deegh. From the first storey thereof, he arrested the appellants and the other 2 accused who were found armed. They were taken into custody after making recoveries from them Apart from these recoveries, articles numbering 135 were found lying in that room and the same were also taken into possession vide memo Ex. PF. Out of these articles, the prosecution relies upon watches Ex. PI and P2, gold ring Ex P3, silver ring Ex. P4, bunch of keys containing 6 keys Ex. P5/16. 3 pairs of chappals Ex. P6/12. P7/12 and P8/1 2, Sari Ex. P9 and bag Ex. P 10, as concerning with the present case. From the personal search of Avtar Singh appellant, HMT watch Ex. P2 was recovered by Sub Inspector Pritam Singh, who was accompanying PW7 Inspector Amar Singh, vide memo Ex. PM. The above said articles were transferred to Police Station Yamunanagar, as this property related to this case of that Police Station. Inspector Amar Singh (PW7) has recorded the statements Ex, PG. PH and PJ of Jaimal Singh. Sukhbir Singh and Avtar Singh appellants respectively on 3101984. When these statements were tendered in evidence. an objection was raised that the same are not admissible. but the trial Court did not decide the question of admissibility either at the time the same were exbibited or thereafter. After going through the three statements, the only conclusion I can reach is that they are confessions before the police and thus, not admissible in evidence. In any case, these disclosure statements were recorded by Inspector Amar Singh (PW7) and be must have come to know that these appellants were involved in the crime said to have been committed by them in the area of Police Station Yamunanagar, that is case, FIR 144 dated 2791984, relating to the occurrence that took place during the night between 26/2791984 It was exacted of this witness that he would take precaution to avoid witnesses of this case seeing the appellants before any identification parade is held. This file does not show any efforts made by Inspector Amar Singh to get the faces of these appellants muffled. However, as already stated above, Raghbir Sahai (PW 13) admitted that at the time of production of these appellants before the Magistrate Kurukshetra by Kurukshetra Police, they were not with muffled faces. On 6101984, Raghbir Sahai (PW13) got a message that the three appellants and the other two accused had been arrested by inspector of CIA Staff of Kurukshetra and one of the Inspectors of CIA staff of that place arrested the three appellants also. At that time, he asked them to keep their faces muffled as they were to be got identified. It is, therefore, clear that before 6101985, faces of the appellants were not muffled. After the recording of the confessions Ex. PG PH and PJ, it had become known that the offences in this case had been committed by the three appellants. The Police was to take the required precautions. This witness admitted in crossexamination that before organising raid for the arrest of the appellants, he had seen the photographs of Jaimal Singh and Sukhbir Singh from record maintained at the office of Superintendent of Police and he saw the photographs on 279 1984 and those photographs were shown to Prithvi Raj Khanna PW (10) and Charanjit Singh (PW 11) in the premises of M/s. Saraswati Sugar Mills, Yamunanagar in the evening of 27.91984. He further admitted ill crossexamination that on 6101984 he had seen all the three appellants standing in the Court premises of Kurukshetra where they bad been brought by CIA Staff. Kurukshetra in Connection with the cases pertaining to Police Station Kurukshetra and he made no enquiry as to since when they were in custody. The statement of this witness to the effect that the appellants bad muffled their faces in the presence of the Illaqa Magistrate, Kurukshetra cannot be believed, because, in the next breath, he states that nothing was reduced in writing by the Court in this regard.

Here I am refer to State v. Yumnan Babu Singh and others, AIR 1957 Cri LJ 870, wherein it was held as under :

"Identity of accused person is of no evidentiary value unless corroborated by the witness having pointed him out in an identification parade with precaution taken against collusion, inadvertent mistake and intentional or accidental prompting. The elaborate rules on the conduct of identification parade are not merely mechanical devices, but are calculated to guarantee against the wrong men being pointed out.

The impression that witness who has seen the offender at the time of the crime, and who apparently has no personal motive to make any intentional mistake should be implicitly believed when he points out the accused in the dock, is most unsafe, vide Sahdeo Shyam v. State of Vindhya Pradesh, AIR 1954 Vindh. P.6 (H).

The learned Magistrate, who conducted the identification parade in this case ignored all these principles with the result that present respondents were identified by some witnesses presumably after seeing the accused before the identification parade and such an identification is legally valueless and no Court can act on such identification. It is the duty of the Investigating Officer at the time of arresting the accused about whom identification proceedings are likely to be held subsequently, to inform the suspect about it and to cover his face.

The Investigating Officer should instruct the constable escorting such suspects to the Habal (havalat) or jail to keep the faces of the suspects covered so that he might not be seen by the witnesses on the way. Similarly, on every occasion when the suspect is taken out of jail for the purpose of recording confession, etc., similar care should be taken and the evidence of the care having been taken should be produce before the Court at the time of the trial.

It is the duty of the prosecution to establish beyond any doubt that the witness, who identified the accused before the identification parade had seen him at the time of occurrence and they did not know him from before, also they did not see him at any time after the occurrence and before the identification parade. If this is not done, the accused would be entitled to contend that his case has been gravely prejudiced and he would be entitled to the benefit of all or any of shortcomings of the prosecution on this score."

In another case : In re Kamraj Gounder & others, 1960 Cri LJ 358, the same principle has been reiterated as under :

"The evaluation of identification evidence is perhaps one of the most difficult problems which confront a judge when we remember he extent of human fallibility and the fragility of memory and the tricks played by our series. It can cause us no surprise that in England and America it has been found that the major sources of miscarriage of justice are due to wrong identification. Dwight McCarty''s Classic American Psychology for the Lawyer (New York Prentice Mill in C. 1929) in Chapter VII p. 2051 and foll and Prof. Glanville Williams in Proof of Guilt (Hamlyn Lectures) at rage 83 and foll, "Identification Evidence" have expounded the manefold inaccuracies of recall. Therefore identification evidence should be examined with great care," so far as identification "parade and its value are concerned.

Shri R.K. Chohan (PW I) held the identification parade and its record is Ex. PA which shows that the identifying witnesses were not asked as to in what connection the appellants were to be identified. It is also not shown therein that the 18 persons mixed with the a appellants were known to the witnesses or not. In all 21 persons, including the three appellants were put up for identification. but, surprisingly, age of none of the participants has been given. Prithvi Raj Khanna (PW 10) could identify only Avtar Singh and the other two witnesses, namely Chanan Singh and Charanjit Singh could not identify him. While giving a note. Shri R.K. Chohan wrote the figure 18, at the place where Avtar Singh was standing but as a Matter of fact. Avtar Singh appellant was at place No 17. Figure, 8, was changed to `7'' and was made as 17. Overwriting is very clear and it has not been initialled by anybody. In any case, out of the three witnesses only one could identify Avtar Singh. In my view this difference militates against sufficiency to assure the identity of the assailants So far as identity of Jaimal Singh and Sukhbir Singh is concerned, they could not be identified by Prithivi Raj Khanna (PW 10) or by Chanan Singh. However, photographs of these two appellants were admittedly shown to Prithviraj Khanna and Charanjit Singh. Failure of Prithvi Raj Khanna and Chanan Singh to identify these two appellants does not lead to any inference in favour of the prosecution to show at they were not shown to the witnesses before the parade, The burden is always on the prosecution to establish that after the crime the assailants were not shown'' to the witnesses before the identification parade was held. In view of the circumstances of the case. the prosecution has failed to discharge that burden. Identification of Avtar Singh by Prithvi Raj Khanna (PW 10) cannot lead to any conclusion against Avtar Singh. Firstly, because he was appearing in Kurukshetra Court on 6.10.1984 without his face being muffled. During those proceedings, Yamunanagar Police concerned with this case had come to know that the appellants were in custody and were appearing in Court at Kurukshetra and in these circumstances, there could not be any difficulty for the witnesses to have seen the appellants. Secondly two witnesses have failed to identify Avtar Singh and identification by only one witness could be just by chance and is not sufficient to hold that Avtar Singh is the real culprit. This conclusion is further supported by the conduct of the Police in this case.

The three appellants have been acquitted of the charge under section 411 of of the Indian Penal Code and they stand convicted and sentenced only under S. 392 of the Indian Penal Code read with section 397 of the said Code Once their identification in the parade is not relied upon for reasons given above, there is nothing else against them, except the testimony of Prithvi Raj Khanna (PW 10) and Charanjit Singh (PW 11) in Court which itself will not be sufficient to lead to the conclusion to guilt. As held in Haib''s case (supra), identity of the accused who is a stranger to the witness. in Court, as a general rule, requires corroboration in the form of identification proceedings. There two witnesses were examined on 2931985 and 5.4.1985 after the identification parade was held, they must have seen the appellants. quite a number of times. The conclusion, therefore, is that the convictions and sentences of the appellants cannot stand.

Another aspect of the case relied upon by the prosecution is that the motor cycle belonging to Charanjit Singh was recovered at the instance of Jaimal Singh PW13 Raghubir Sahai recorded the alleged disclosure statements Ex. P 0 PQ and PR of Avtar Singh. Sukhbir Singh and Jaimal Singh respectively. In pursuance thereof, the prosecution case is that Jaimal Singh appellant took the Police party and got recovered motorcycle. The statements Ex. PO, PQ and PR make out that all the three appellants made a confession of both the occurrences and some other incidents and in all these three statements, it is mentioned that the motor cycle was parked at the Radaur Road near a sugarcane field, Similarly, in respect of the car DHC 5196, these statements contain a mention that all the three appellants left the car near the house of one Gurdev Singh. There is no evidence on the file to show that as to who out of the three appellants was examined first. If these statements can be taken as disclosure statements, once any of them made these statements, the disclosure statements by the remaining two will not be admissible. In these circumstances, the Court cannot take into consideration any of the three alleged disclosure statements. Again, according to the disclosure statements, particular place from where motorcycle was thereafter recovered does not tally with the disclosure; inasmuch as the disclosure statement shows that the motorcycle was left on the road; whereas it was recovered from inside the sugarcane field. Similar is the case with the recovery of car. Naresh Kumar (PW8) stated that on 11101984, Sukhbir Singh and Jaimal Singh were also with the Police party in the Matador and got recovered motor cycle from the sugarcane crop in village Dabla and recovery memo Ex. PN was prepared. He further stated that the motor cycle appeared to have been dragged from the sugarcane field to its place of recovery. Sugarcane crop was damaged upto the extent of 10/20 paces. Som Nath (PW9) stated that on 11101984, he went to Police Station Sadar, Yamunanagar, accompanied by Charanjit Singh and Sub Inspector Ragubir Sahai interrogated Avtar Singh who told the Police that he had thrown the motorcycle in the sugarcane field on Dudle Road. That statement was reduced into writing. He further stated that Avtar Singh appellant bad disclosed that the car had been abandoned by him near village Buria, near Jagadhri and Avtar Singh did not disclose anything also about the car and the motorcycle. This witness, when asked about Avtar Singh, pointed out towards Baldev Singh, coaccused of Avtar Singh. After taking the permission of the Court for declaring this witness as hostile, the learned Public Prosecutor asked the accused as to who of them was Avtar Singh and at this, Avtar Singh appellant stood up and this witness immediately identified him as Avtar Singh. This attempt on the part of the prosecution cannot be allowed to prevail. The result is that this witness was not able to identify Avtar Singh even in Court. His testimony, therefore, cannot be safely relied upon. Raghbir Sahai (PW 13) in his crossexamination admitted that Avtar Singh appellant was not associated in any of the recoveries said to have been made by him. With this discussion in view, it is clear that the Court cannot arrive at a definite conclusion as to whether any disclosure statement was made with regard to the place of recovery of the motor cycle and the car There is also no reliable evidence to attribute the said recoveries to any of the appellants. This evidence of disclosure statements and recoveries allegedly in consequence thereof is to be discarded. The prosecution cannot take any help even from this evidence to connect the appellants with both the occurrences.

It is true that Balbir Singh and Baldev Singh who have been convicted and sentenced only under section 411 of the Indian Penal Code have not filed any appeal to challenge the judgment, but the facts, as they have come on the record, have to be discussed so as to show how the prosecution has tried to connect the appellants and the accused with the occurrences. Inspector Amar Singh (PW7), as already stated, took cut Ex PI to P10 out of the 135 articles taken into possession by him from the said abandoned kothi This recovery was made under section 102 of the Code of Criminal Procedure. So far as First Information Report 252 of Police Station Shahbad, under sections 395/402 of the Code was concerned the said articles were not even suspected to he connected with the accused of that case and during the trial, no such charge was made against them. PW 10 Prithvi Raj Khanna did not give any list of articles said to have been taken away by the appellants except the articles mentioned in the First Information Report itself. Out of these articles, this witness identified watch Ex. P1, gold ring Ex P3, silver ring Ex P4, brown silk Sari Ex P9. three pairs of a new chappals Ex. P6,1/,2, P7/12 and P8/1.2 as belonging to him. The requirement of law and practice requires that though these articles were suspected to have been stolen from this witness the Police party was to arrange for their identification, but, instead of doing so, in this cast, Raghbir Sahai (PW 13). had the property which he had taken into possession vide memo Ex PB from the Police Station Shahbad. There were only those 10 articles which were to be identified and then Prithvi Raj Khanna and Charanjit Singh are said to have identified that property. there are no two opinions that a witness identifying an article before the Investigation Officer, amounts to making a statement under section 161 of the Code of Criminal Procedure and therefore, it is not admissible After excluding this statement, nothing is left on the file to show that these articles belong to the two witnesses and in the absence of identity of the stolen articles with the articles recovered it cannot be said to have been established legally. In this view of the matter, the trial Court committed an error in convicting and sentencing the said two accused under section 411 of the Code.

In view of the above discussion, these appeals are accepted; the convictions and sentences are set aside and all the three appellants are acquitted of the charges.