Mukha Singh vs State Of Haryana

Surya Partap Singh, J.

The learned State Counsel has filed custody certificate of the appellants. The same be taken on record.

This is an appeal against the judgment of conviction and order of sentence dated 29.08.2005, passed by the Court of learned Additional Sessions Judge Sirsa, hereinafter being referred to as ‘trial Court’ only.

The abovementioned judgment came into being when the appellants were sent to face trial for the commission of offence punishable under Sections 457, 511, 436, 427 of Indian Penal Code, vide FIR No.229 dated 31.05.2003, Police Station Rania, District Sirsa.

The appellants participated in the abovementioned trial, which by virtue of impugned judgment culminated into conviction of the appellants. Thus, vide order dated 29.08.2005, the appellants were awarded following sentences:-

Name of Offence Sentence convict under Sections Rigorous imprisonment for a period of seven years and to pay a fine of i. Mukha Singh 457 IPC Rs.20,000/- each and in default thereof to further undergo rigorous imprisonment for ii. Jagga Singh a period of six months. Rigorous imprisonment for a period of iii. Mangal Singh 380 read three years and to pay a fine of Rs.10,000/-with Section each and in default thereof to further 511 undergo rigorous imprisonment for a period of three months. Rigorous imprisonment for a period of seven years and to pay a fine of 436 IPC Rs.20,000/- and in default thereof to further Mangal Singh undergo rigorous imprisonment for a period of six months. All the sentences were ordered to run concurrently.

Aggrieved of the abovementioned judgment of conviction and order of sentence, the present appeals have been preferred by the appellants.

In nut-shell, the facts emerging from record are that the FIR of this case came into being at the instance of ‘Manager State Warehouse Bani (Sirsa)’, hereinafter being referred to as ‘complainant’ only. In his abovementioned complaint, proved before the learned trial Court as Ex.PB, it was stated by the above-named complainant that in the intervening night of 30/31^st May, 2003 at about 01:30 am, some thieves broke open the lock of southern gate of godown No.1, with a motive to commit theft. According to complainant, the chowkidars heard the sound of breaking of locks, and therefore, rushed towards the said godown. As per complainant, the Chowkidars noticed the presence of some armed persons, with muffled faces, inside the godown and therefore, raised alarm. It was further stated that in view of abovementioned alarm, the thieves set some stacks in the godown on fire, and thereafter, all of them managed to flee from the spot. According to complainant, Chowkidars were successful in extinguishing the fire with the help of residents of nearby locality, but a part ‘Bar Dana’, stored in the godown, got burnt.

It was case of the prosecution that on the basis of abovementioned statement, formal FIR of this case was lodged and the investigation taken up. As per prosecution, during the course of investigation, the Investigating Officer inspected the spot, prepared rough site plan of the place of occurrence, recorded the statement of witnesses, under Section 161 CrPC, and completed other usual formalities of investigation. Thereafter, the final report under Section 173 of CrPC was filed.

To discharge its burden with regard to charge against the appellants, the prosecution in the instant case relied upon documentary as well as oral evidence. The documents proved, and marked with exhibits, by the prosecution, were:-

Ex.PA - Scaled site plan, prepared by the Draftsman (PW-1)

Ex.PB/1 - Complaint submitted before the police

Ex.PB/2 - English translation of FIR

Ex.PC - Disclosure statement of accused/Jagga Singh

Ex.PD - Disclosure statement of accused/Mangal Singh

Ex.PE - Disclosure statement of accused/Mukha Singh

Ex.PF - Memorandum of demarcation of place of occurrence by the accused

Ex.PJ - Site plan prepared on the demarcation of place of occurrence by the accused

Ex.PG - Rough site plan prepared by the Investigating Officer

Ex.PH - Recovery memo of 136 burnt bags & broken lock

Ex.P1 – - Burnt bags P-136

Ex.P-137 - Broken lock

To provide support and corroboration to the above-mentioned documentary evidence, as many as nine witnesses were examined by the prosecution. Those were:-

PW-1 - Constable Radhey Sham (Draftsman), S.P. Office, Sirsa

PW-2 - ASI Mahinder Singh

PW-3 - Dharam Chand, an eye-witness

PW-4 - Eye-witness Ram Chander

PW-5 - Eye-witness Rajinder Parshad

PW-6 - Constable Rai Sahab

PW-7 - ASI Dilbag Singh

PW-8 - Satya Narain, Chowkidar, Haryana State Warehouse, Bani

PW-9 - Om Parkash, Chowkidar

Once the prosecution evidence was recorded, the learned trial Court completed essential formalities as enshrined under Section 313 CrPC. Thereafter, opportunity of defence evidence was afforded to the appellants. The appellants did not examine any witness.

Once the evidence was complete, the learned trial Court called upon the counsel the appellants as well as the State Counsel to address arguments. Thereafter, a judgment of conviction against the appellants was pronounced.

Heard.

It has been contended by learned Amicus Curiae that instant case is a case of absolutely no evidence, with regard to involvement of appellants in the commission of crime. According to learned Amicus Curiae, the learned trial Court fell into error of judgment, when without looking into the fact that the evidence adduced by the prosecution was grossly inadequate and unreliable, observed that charge against the appellants had been proved. As per learned Amicus Curiae, a perusal of testimony of prosecution witness makes it apparent that there was no reliable evidence to prove the presence of appellants at the time of commission of crime.

It has been contended by learned Amicus Curiae that in the present case, as many as four eye-witnesses were examined by the prosecution, and that testimonies of all the abovementioned four witnesses, i.e. PW-3, PW-4, PW-8 and PW-9, were not only in contradiction to the case set-out by the prosecution, but also unbelieveable, unworthy of any credit and self-contradictory on material points.

With regard to above, the learned Amicus Curiae has contended that the very foundation of the prosecution case was that at the time of incident, the assailants were muffled faced. According to learned Amicus Curiae, because of abovesaid reason only, the names of the assailants were not mentioned in the FIR. While referring to the contents of the FIR, it has been contended by learned Amicus Curiae that once the eye-witnesses had not seen the faces of assailants at the time of commission of offence, merely on the basis of their identification in the Court, their identity can’t be proved. Thus, allegation with regard to commission of offence could not have been proved by the prosecution. As per learned Amicus Curiae, any such testimony of the prosecution witnesses was unreliable, but the learned trial Court committed an error of judgment, while believing the same.

In addition to above, the learned Amicus Curiae has also contended that in the present case, no test identification parade was conducted, and that nothing incriminating was recovered from the possession of appellants. As per learned Amicus Curiae, in the absence of any such evidence, merely on the basis of identification of assailants in the Court, and that, too, for the first time, does not carry any probative value. In view of above, the learned Amicus Curiae has contended that verdict of the learned trial Court with regard to conviction of appellants needs inference and indulgence of appellate jurisdiction of this Court. It has been requested by learned Amicus Curiae that by accepting the present appeals, the impugned judgment of conviction and order of quantum of sentence be set aside and the appellants be acquitted.

The learned State Counsel has controverted the abovementioned arguments. According to learned State Counsel, in the present case there were consistent testimonies of four eye-witnesses, i.e. PW-3, PW-4, PW-8 and PW-9, who duly supported the prosecution case. As per learned State Counsel, all the abovesaid witnesses successfully faced the test of cross-examination, and that despite thorough and probing cross-examination, nothing significant was extracted in their cross-examination, which could have impeached the credibility of their testimonies. As per learned State Counsel, the evidence adduced by the prosecution was thoroughly consistent, and that a right view had been taken by the learned trial Court, while holding the appellants guilty for the offence, they were charged with. While defending the impugned judgment of conviction and order of sentence, the learned State Counsel has contended that there is no scope of interference in the impugned judgment and that the instant appeals have no merit and deserve dismissal.

The record has been perused carefully.

A perusal of record shows that the FIR in this case came into being at the instance of ‘PW-5 Rajinder Parshad’. The above-named witness when appeared in the witness-box, duly supported the prosecution version by proving the complaint, filed by him before the police, Ex.PB.

In addition to above-named witnesses, four more material witnesses were examined by the prosecution. They were PW-3, PW-4, PW-8 and PW-9.

The PW-4 had testified that in the intervening night of 30/31^st May, 2003, he was informed by ‘Dharam Chand’ that two persons with muffled faces, and armed with gandasis and lathis, had entered the warehouse. The PW-4 further deposed that he along with ‘Dharam Chand’ visited the abovesaid godown and found the lock of Gate No.5 of the warehouse broken. According to him, three persons had entered the said godown, and on their arrival, they fled from there along with their respective weapons. According to PW-4, the fire was extinguished by them.

Another witness examined by the prosecution, i.e. PW-3, too, was a material witness being an eye-witness of the occurrence. The PW-3 had supported the prosecution case, by reproducing the same facts. Like PW-4, the PW-3, too, supported the prosecution by reproducing the same set of facts.

The star witness of the prosecution was ‘Satya Narain’ (PW-8). The PW-8 had deposed that he was sleeping in the office of Godown in the intervening night of 30/31^st May, 2003, and that at about 01:30 am, he was awakened by Chowkidars ‘Om Parkash’ and ‘Rajpal’, who told him that some sound was heard in the godown No.1, suggesting that lock of said godown might have been broken. According to PW-8, on receipt of above information, he along with ‘Om Parkash’ and ‘Rajpal’ rushed the godown No.1. The PW-8 further deposed that the accused ‘Jagga’ and ‘Mukha’ armed with gandasis and lathis, were standing outside godown No.1, and that on his alert call, both the abovesaid accused fled from the spot. According to PW-8, after some time, third accused ‘Mangal’ came out of the godown after setting some bags lying in the godown ablazed. All the abovementioned accused were identified by PW-8 in the Court, as culprits.

Another Chowkidar of godown was also examined by the prosecution, as ‘PW-9’. The PW-9 deposed in detail as to how all the accused present in the Court were seen by him at godown No.1 in the intervening night of 30/31^st May, 2003. According to PW-9, two persons, with muffled faces, were standing outside the godown, whereas one person had set the bags lying in the godown, on fire. The PW-9, too, identified the appellants, as the persons, who were involved in the abovementioned incident.

In addition to abovementioned eye-witnesses, supporting evidence comprising of testimonies of several officials were also examined by the prosecution.

As far as the abovementioned evidence adduced by the prosecution was concerned, a perusal of the same showed that all the eye-witnesses, who were present on the spot at the time of occurrence, identified the assailants for the first time, during the course of trial in the Court. The identification of accused by the above-named eye-witnesses was the sole basis for holding them guilty in the case. However, if the abovementioned depositions of PW-3, PW-4, PW-8 and PW-9 would have been considered in the light of contents of the FIR, it would have come on surface that the testimonies of abovementioned witnesses were not reliable, qua the identification of accused, because in the FIR, itself, names of assailants were not mentioned and according to contents of FIR at the time of commission of offence the assailants were muffled faced. In such a situation, the identification of assailants by the eye-witnesses was not possible at all.

Since instant case is a case, wherein attempt to commit theft had taken place and thereafter, there was an attempt to set the godown ablazed, the possible courses for proving the identity of assailants could hae been:-

If the facts and circumstances of the present case are analyzed on the touchstone of abovementioned two parameters, it transpires that both the abovementioned possibilities were not there in the present case. Since the assailants were muffled faced at the time of commission of offence, the possibility of their identification by the eye-witnesses was ruled out.

As far as second contingency was concerned, in view of the fact that as per prosecution case, no theft was committed, recovery of any incriminating material was not possible. As such, nothing incriminating was recovered from the possession of appellants. Thus, by adopting the second course, also the identity of the appellants was not possible to prove.

In the present case, the prosecution also relied upon the disclosure statement of the accused. However, the abovementioned disclosure statement did not lead to discovery of any fact pertaining to present case. Since the abovementioned disclosure statement was recorded, when the appellants were in police custody, it is hereby held that the abovementioned disclosure statements were inadmissible in evidence.

In the case of ‘Surender Kumar Khanna Vs. Intelligence Officer Directorate of Revenue Intelligence’ 2018(8) SCC 271, it has been held by the Hon’ble Supreme Court of India that the disclosure statement of co-accused is inadmissible against another accused, as the disclosure statement is not a substantive piece of evidence against other accused.

Similar principle has been laid down by the Hon’ble Supreme Court of India in the case of ‘Preet Kamal Vs. State of Punjab’, 2018(4) RCR (Criminal) 938, wherein it has been held that the disclosure statement of an accused can be used only against the person making the same, and not against the co-accused.

As a sequel to abovementioned observations, once through any of the possible mode available to the prosecution, identity of the appellants as the assailants was not proved by the prosecution, it is hereby held that the learned trial Court committed an error of judgment when it failed to appreciate the entire prosecution evidence in right perspective. Thus, it is hereby observed that there is need for exercise of appellate jurisdiction vested in this Court, and interfere in the verdict rendered by the learned trial Court.

With the abovementioned observations, the present appeals are hereby allowed. The impugned judgment of conviction and order of sentence are hereby set aside and as a result thereof, the appellants are hereby acquitted of the charges framed against them.

Pending miscellaneous application(s), if any, stand(s) disposed of, accordingly.

A photocopy of this order be placed on the files of connected cases.