Kharaiti Lal vs Union Territory of Chandigarh

R.K. Nehru, J. (Oral)

This appeal has been directed against the judgment of conviction and order of sentence, both dated 23.7.1986 passed by Shri M.K. Bansal, the then Additional Sessions Judge, Chandigarh, whereby the appellant has been convicted for offences under Section s 392 and 397 of the Indian Penal Code and also under Section 27 of the Arms Act and as a result thereof sentenced in the following terms :

Under Section 392 read with Section 397 Indian Penal Code R.I. for seven years and to pay a fine of Rs. 500/ and in default of payment of fine to further undergo R.I. for six months.

Under Section 27 Arms Act

Both the sentences were directed to run concurrently.

The prosecution case as it emerges from the evidence during the trial is summed up thus :

On 23.1.1985 P.C. Nayar, PW6 was the Officer Incharge of the Evening Counter of Punjab National Bank, Sector 28, Chandigarh, PW Raj Kumar was working as Peon, Randhir Singh PW was working as Cashier Incharge and Gurpreet Singh Batra PW7 was working as cashiercumclerk. The closing time of the Evening Counter was at 7.00 p.m. After closing the cash, at the relevant time the employees were coming out from the back door of the bank counter, when two Sikhs armed with a revolver each came there. They threatened the employees to be killed if they raised any alarm. One of them stood at the gate keeping an eye on the employees while his associate took torch, Exhibit P5 from Raj Kumar, PW peon of the bank. He asked the peon to open the door. After the door had been opened all bank employees were taken inside the main hall. That assailant demanded the key of the safe. When PW Randhir Singh told him that there was not much cash lying in the bank, he put his revolver on his right shoulder and threatened him with dire consequences if he did not hand over the key. PW Randhir Singh thereupon handed over the key to that Sikh gentleman. All these employees were then taken side the latrine while Randhir Singh PW opened the safe. The assailants took out the case lying in the safe and escaped from the back door after warning those employees not to come out of the latrine. After the assailants had left, the employees came out of the latrine and bolted the main hall of the bank from within. They contacted the police as also other officers of the bank. On receipt of information of the robbery, Subhash Sagar, PW16 (SHO of the police station concerned) alongwith other polcie officials arrived at the scene of occurrence. He recorded statement, Exhibit PC of P.C. Nayar, PW6 and sent it under his endorsement, exhibit PC/1 for the registration of the case to the police station. The case was registered under formal FIR Exhibit PC/2. This investigating officer then requisitioned the service of photographer Nafe Singh, PW5 and got the spot photographed, during the course of which the photographer also photographed the finger prints noticed on the safe, as also on the table and torch, exhibit P5 lying there by applying graphite powder on them. Finger prints on the safe and table could not be photographed as they were not clear. However, the photographs of finger prints on torch, Exhibit P5, were very clear. The torch, Exhibit P5, was sealed under memo. Exhibit PO. This investigating officer recorded the statements of the witnesses present there and deposited the case property intact with Muharar Mal Khana. On 24.1.1985. He also prepared the visual site plan, Exhibit PP of the spot. Wireless message was also flashed to different places about the concurrence and also about the description of the culprits in this case. Torch Exhibit P5, was sent for opinion of the Finger Prints Bureau on 2.2.1985 and the prints were developed on this torch on 4.2.1985 as per report of the Finger Print Expert, Exhibit PO.

On 6.2.1985 Sub Inspector Gurnam Singh, PW15 went to Solan where, at that time, both the accused, namely Kharaiti Lal and Walaiti Lal were under arrest in a case relating to some case of robbery of Bank of Baroda branch at Kasauli and brought them to Chandigarh after obtaining their necessary remand. On 7.2.1985 both the accused were produced with their faces muffled before the Additional Chief Judicial Magistrate, Chandigarh, for arranging their test identification parade. On the direction of the Additional Chief Judicial Magistrate, Chandigarh both the accused were produced before the Executive Magistrate Shri T.C. Gupta, who remanded them to judicial custody with a view to arrange their test identification parade. On 12.2.1985 the test identification parade was conducted by Shri Anand Sharma, PW1, during the course of which Shri P.C. Nayar, PW6, identified the appellant as one of the culprits involved in the present case.

Thereafter the appellant was interrogated. He came out with his disclosure statement, Exhibit PE, to have kept concealed Rs. 10,000/ at the Saw Mills of his fatherinlaw besides a sum of Rs. 5,000/ on the roof of his house at Chandigarh. Thereafter both the accused managed to escape from the police custody. The appellant was ultimately rearrested on 27.2.1985 while his brother Walaiti Lal has remained un traced.

After his arrest, the appellant, in consequence of his disclosure statement, Exhibit PE, got recovered only a sum of Rs. 5000/ from the Saw Mills of his fatherinlaw and the same was seized under memo Exhibit PE/2.

The finger prints of the appellant were also obtained by the police before Shri Anand Sharma PW1 after following due procedure and these were sent to Phillaur for comparison with the finger prints developed on torch, Exhibit P 5. The finger prints of the appellant obtained before Shri Anand Sharma, PW1, tallied with the finger prints found on torch, Exhibit P2.

After completion of the investigation and other formalities the appellant was put to trial for an offence under Section 392 read with Section 397 of the Indian Penal Code and also under Section 27 of the Arms Act.

To prove the guilt of the appellant, the prosecution examined as many as 17 witnesses out of whom the material evidence which deserves perusal is of P.C. Nayar PW6 Gurpreet Singh PW7, SI Gurnam Singh PW15, and SHO Subhash Chand Sagar, PW16.

When examined under Section 313 of the Code of Criminal Procedure, the appellant denied the allegations of the prosecution and pleaded his innocence in the crime by stating that :

"I am innocent. At the time of occurrence, I was on duty at Rajpura. The money was taken from my wife and fatherinlaw and planted on me. I was arrested by Kasauli Police. I was in their custody along with Walaiti Lal since 28.1.1985. SI Gurnam Singh and ASI Ram Singh came there on 1.2.1985 in the police station Dharampur. I and Walaiti Lal was brought out. Walati Lal was taken by ASI Gurnam Singh. I remained with SI Gurnam Singh. A torch was lying on the table. Gurnam Singh asked me to lift the torch and put it inside. I did the same thing. Thereafter, they took away the torch and must have fabricated thumb impressions. I made no disclosure statement, nor I got anything recovered. It is a false case. Since I was arrested in another case at Kasuli, so present case has been foisted on me. I was shown to the PWs in the Police Station."

On the basis of evidence the learned trial court found the charges under Section 392 read with Section 397 of the Indian Penal Code and under Section 27 of the Arms Act established against the appellant and convicted him thereunder in the terms as stated earlier.

I have heard the learned counsel for the appellant and learned counsel for the respondent and gone through the evidence and other material on record. From the facts as enumerated above, it would transpire that to connect the appellant with the crime, the prosecution has mainly relied upon the evidence on the two counts, firstly, the identity of the appellant by P.C. Nayar, PW6, during the test identification parade held on 12.2.1985 and secondly, the presence of his finger prints on torch, Exhibit P5, which was seized from the scene of crime immediately after the occurrence.

The learned counsel for the appellant has contended that so far as the factum of the appellant having been identified by P.C. Nayar, PW6 at the time of test identification parade, is concerned, the same has no evidentiary value. There is force in this contention of the appellant''s counsel. The substantive evidence of a witness is the one which is made by him in Court during the trial. The matter regarding the value to be attached to the identification of an accused during test identification parade came up for consideration before the apex court in Budhsen and another v. State of U.P., AIR (57) 1970 SC 1321. and their Lordships observed in para No. 7 as thus :

"Now, facts which establish the identity of an accused person are relevant under Section 9 of the Indian Evidence Act. As a general rule, the substantive evidence of a witness is a 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. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of a prior test identification, therefore, seems worthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as strangers to them, in the form of earlier identification proceeding. There may, however, be exceptions to this general rule, when, for example, the court is impressed by a particular witness, on whose testimony it can safely rely without such or other corroboration. The identification parades belong to the investigation stage. They are generally held during the course of investigation with the primary object of enabling the witnesses to identify persons concerned in the offence, who were not previously known to them. This serves to satisfy the investigating officer of the bona fides of the prosecution witnesses and also to furnish evidence to corrobate their testimony in court. Identification proceedings in their legal effect amount simply to this, that certain persons are brought to jail or some other place and make statements either express or implied that certain individuals whom they point out are persons whom they recognize as having been concerned in the crime. They do not constitute substantive evidence. These parades are essentially governed by Section 162, Criminal Procedure Code."

When P.C. Nayar, PW6 was examined as a witness in the trial court, he was asked to point out the accused in this case and he stated that the appellant was not the accused involved in the crime. In this situation, even if P.C. Nayar, PW6 had identified the appellant during test identification parade, that cannot be of any help to the prosecution to fix the identify of the appellant as one of the assailants in the crime. PW6 was even got declared hostile and was crossexamined by the learned State counsel but nothing useful could be brought in his crossexamination to fix the identity of the appellant as one of the assailants in this case.

Coming to the presence of finger prints on the torch, Exhibit P5, recovered from the scene of crime, the short submission of the learned counsel for the appellant is that this part of the prosecution evidence cannot be given much credence as there is no reference, much less obliquely of any torch; in the report, Exhibit PC, lodged by PW6 P.C. Nayar with the police. No doubt P.C. Nayar, PW6 has deposed that the assailants who had committed the robbery in question had used the torch, Exhibit P5, which was with the peon of the bank at that time but there is no mention of the torch. Exhibit P5, much less its having been used by the assailants in the commission of the robbery in question in the report, Exhibit PC, lodged by P.C. Nayar, PW6 who even otherwise admitted in his crossexamination that he had not mentioned anything about the torch in his report, Exhibit PC. In this crossexamination that he had not mentioned anything about the torch in his report, Exhibit PC. In this situation, the mere presence of finger prints of the appellant, though disputed by the defence, cannot be itself prove his involvement in the crime, more so, when there is no clear evidence on record to show as to how, when and in what circumstances, the police learnt about the arrest of the appellant in a robbery case of Himachal and this missing link in the prosecution evidence do support the defence that the possibility of the finger prints of the appellant having been subsequently manipulated by the police cannot be totally rule out, thus giving rise to benefit of doubt in favour of the appellant.

In the circumstances as detailed above, I am of the view that the prosecution has failed to prove the guilt of the accused in the crime beyond reasonable doubt. Accordingly, I accept the appeal, set aside the impugned conviction and sentence of the appellant and acquit him of the charge by giving him benefit of doubt.