(Fakkir Mohamed Ibrahim Kalifulla and Uday Umesh Lalit, JJ.)
Pappu @ Gulshan _________ Appellant
v.
State of Haryana ____________ Respondent
Criminal Appeal No. 710 of 2009, decided on November 5, 2015
The Order of the court was delivered by
Order
1. This appeal by special leave is at the instance of A2, directed against the Division Bench judgment of the High Court of Punjab and Haryana at Chandigarh dated 17.7.2007 in Criminal Appeal No. 720-DB of 1997. The said common judgment was rendered in the said appeal along with Crl.A. No. 167-DB of 2001 preferred by A1/Anil Kumar @ Chaudhary Behl. We are here concerned with A2, inasmuch as there is no appeal at the instance of A1. We are, therefore, confining our consideration only as regards the appellant/A2.
2. According to the prosecution A1 was jointly carrying on business of supplying labour along with the deceased and that the deceased owed some money to him, that a week prior to 27.11.1993 both the accused alleged to have visited the house of the deceased/Vijay Kumar and demanded for the share that was due to A1. The deceased stated to have taken the stand that nothing was payable to A1. On 26.11.1993, both the accused stated to have again approached the deceased/Vijay Kumar and demanded for payment, when Rakesh Kumar-PW.8, brother of the deceased, was also present. On that day, when the deceased again refused to make any payment, both the accused stated to have left the place with a warning that they would teach a lesson to him. On 27.11.2013, at 12.30 Noon, PW.6 stated to have gone to the house of the deceased/Vijay Kumar for hiring some labour for his mill when he was told that the deceased had gone to the barber shop, he went to the barber shop of PW.7, where the Maruti car of the deceased was found parked. As the deceased was sitting inside the shop, PW.6 stated to have come out of the shop and was talking to one Lal Chand Chhabra, who was not examined in this case. According to PW.6, who gave the information to the police under Exhibit PH, two boys, one of wheatish complexion, active body and young age and the pillion rider, who was stout and heavy with a beard of about 5’9? height arrived at the shop, that while the ignition of the scooter was on and the person who was driving the scooter was sitting on the seat, the pillion rider went inside the shop of PW.7 and told the deceased that though he escaped last time, today he would not be spared and so saying fired a shot at the deceased, who fell down on the ground along with chair. PW.6 further stated that when he along with Lal Chand Chhabra tried to overpower the assailants they fled away after threatening them. It was also stated that one Rakesh Kumar Miglani also arrived at the scene of occurrence as well as Dr. Chander, who after examining the deceased/Vijay Kumar declared him dead.
3. The Exhibit PH of Om Prakash was recorded by PW.10/Sub Inspector which was completed by 2.30 P.M. and after making his endorsement in Exhibit PH as Exhibit PH/1, PW.10 forwarded the same to the Police Station, City, Panipat for registration of the case. The FIR (Exhibit PH/2) was recorded by the Sub Inspector, Ranjit Singh (not examined) and the Special Report was forwarded to the Ilaqa Magistrate by 6.25 P.M. Based on the above reporting by PW.6, which occurred on 27.11.1993 by 12.30 Noon, the arrest of A2 came to be made by PW.11 on 7.2.1994. According to the prosecution, A1 was a proclaimed offender and was also absconding in this case, who came to be arrested only after the conviction of the appellant herein.
4. As far as the appellant was concerned, the case was separated and was proceeded. He was charged for the offence under Section 302 read with Section 34 IPC for the killing of the deceased/Vijay Kumar. The prosecution examined PW.6 and PW.7 as eye witnesses to the occurrence and PW.8, the brother of the deceased, to support its stand that there was a threat made to the deceased a week prior to the occurrence in his presence as well as on the previous day of the occurrence. PW.11, the Investigating Officer, who took up investigation after his posting in that station on 18.12.1993 spoke about the arrest of the appellant.
5. In his Statement under Section 313 Cr.P.C. the appellant totally denied his involvement and claimed that he was falsely implicated. The Trial Court, however, based on the evidence placed before it, found the appellant guilty of the offence and convicted him for the offence under Section 302 read with Section 34 IPC and imposed a punishment of life imprisonment along with a fine of Rs. 2,000/- with a default clause of two years rigorous imprisonment.
6. Subsequently, A1 was also stated to have been tried and convicted by a separate judgment dated 14.5.2000. Who was also convicted for the offence under Section 302 read with Section 34 IPC with imprisonment for life along with fine of Rs. 10,000/- and in default to undergo further rigorous imprisonment for a period of three years.
7. We heard Mr. Avijit M. Tripathi, learned counsel for the appellant and Mr. S. Uday Kumar Sagar, learned Additional Advocate General for the State of Haryana.
8. Learned counsel for the appellant after taking us through the evidence of PWs.6, 7 and 8 as well as Exhibit PH/2 the FIR wherein the case as narrated by PW.6 was noted submitted that the appellant had nothing to do with deceased/Vijay Kumar, that based on the statement of PW.6, the prosecution stated to have apprehended the appellant and proceeded against. Learned counsel contended that there was no test identification parade held in order to identify the appellant in connection with the killing of the deceased. In fact, after referring to the deposition of PW.6, the learned counsel pointed out that in no part of his evidence he could identify the appellant as the one who committed the crime of the killing of the deceased along with A1. He also pointed out that even in the oral evidence, PW.6 only gave the description of two persons and he never identified the assailants though in a later part of his evidence he made reference to the names of the appellant and A1. He also drew our attention to the evidence of PW.11, who claimed to have arrested the appellant and who has also not spoken to the identity of the appellant prior to the arrest.
9. Having considered the submission of the learned counsel for the appellant and also after having heard learned Additional Advocate General for the respondent/State we find that the submissions advanced on behalf of the appellant has got considerable force. When we perused Exhibit PH/2, the FIR registered at the instance of PW.6 as has been rightly pointed out by learned counsel, PW.6 was not able to refer to the names of the appellant, he has only given the description as to the assailants who stated to have visited the barber shop of PW.7. Even in his oral evidence, and in fact in the FIR it is also recorded that PW.6 stated that he would be able to identify the assailants if they were produced before him.
10. However, no test identification parade was held to identify the appellant. With that, when we examine the deposition of PW.6 before the Court, again we do not find any specific statement to the effect that he knew the appellant well before and that he identified them prior to the date when he gave his evidence before the Court. In the Court he identified the appellant as the person by referring to his name and that he was the boy who was driving the scooter on the day of occurrence. He made a categoric statement that he did not know the appellant before hand, that he did not even know the assailant who fired at the deceased, though he would state that the said boy was in the age group of 25-30 years and his height was between 5’8? to 5’9? and was sporting a beard and was a person of stout physique. With that slender evidence, it is highly suspicious, as to whether at all the appellant was the assailant along with any other person.
11. When we refer to the evidence of PW.7, again we find that in the initial part of his examination-in-chief, he stated that while he was in the shop of Om Prakash, PW.6 was talking to one Lal Chand Chhabra, that two young boys came there on a scooter and also stated the registration number of the scooter as HRL 8408 and further stated that the boy who was on the pillion told the driver of the scooter that the car of the deceased was parked there and that while keeping the scooter in running condition, the boy on the pillion seat came inside the shop and thereafter accosted the deceased and inflicted firearm injury on the deceased. After making such a statement about the assailants, PW.7 tried to improve his statement by saying that he knew both the boys and that one assailant was Gulshan @ Pappu and the other assailant was Anil @ Chaudhary.
12. We also closely read the entire evidence of PW.7. Based on his version, we are not able to ascertain as to how he knew the assailants before hand, when in the initial part of his statement he could not name the assailants and could only refer the assailants as two young boys. It is also a mystery as to how in 1996 i.e. nearly two years after the occurrence, PW.7 was able to remember the registration number of the scooter and stated the same before the Court without any other support or assistance or without referring to any other document.
13. Inasmuch as, the version of the eye witnesses, namely, PWs.6 and 7 as regards the identity of the appellant is highly doubtful. We are of the view that it will not be in the interest of justice to rely on their version in order to confirm the conviction. That apart, even the evidence of PW.11/Investigating Officer also does not inspire confidence, inasmuch as it is highly doubtful as to how he could identify the appellant as the accused involved in the crime before he effected the arrest on 7.2.1994. There was no material on record or spoken to by PW.11 as to how in the course of his investigation, the appellant was noted as one of the assailants to enable him to take the appellant into custody on 7.2.1994.
14. In such circumstances, we are convinced that the benefit of doubt should go to the appellant and, accordingly, the appeal stands allowed.
15. The appellant shall be set at liberty forthwith, if his detention is not required in any other case.
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