Rattan vs State of Haryana

K.P.S. Sandhu, J.(Oral)

Rattan appellant has challenged his conviction and sentence of seven years R.I. under section 395 read with section 397 I.P.C. recorded by the learned Additional Sessions Judge, Faridabad vide his order dated 25.2.1984. The coaccused of the appellant namely Gaj Raj was given the benefit of doubt and acquitted of the charge.

According to the prosecution version on the night intervening 18/19.9.1984 a dacoity was committed by nine persons including the appellant in the houses of Nain Singh P.W. 10 and Ram Lal P.W. 4. One of these dacoits was armed with a double barrel gun while the appellant was armed with a single barrel gun. About 101/2kg. of silver ornaments and 21 tolas of gold ornaments were stolen from the house of Nain Singh P.W. 10. They also carried away cash amount of Rs. 4380/. Similarly some ornaments were taken away from the house of Ram Lal P.W. 4. First information report Exhibit PA/2 was registered at Police Station, N.I.T. Faridabad on 19.9.1978 at about 12 : 10 A.M. on the basis of the statement of Lachhman P.W. 1 son of Ram Lal P.W.4. The police reached the spot and one knife Exhibit P1 and two empty cartridges Exhibits P2 and P3 were recovered from the spot. S.I. Sarup Singh P.W. 13 got the appellant transferred from Jhajjar on 22.4.1983. Nothing incriminating was recovered from the appellant. He was asked to muffle his face so that he could not be seen by the eyewitnesses. Identification parade was arranged on 2.5.1983 under the supervision of Shri Ram Sarup Ranga, TehsildarcumExecutive Magistrate P.W.12. The appellant refused to join the identification parade on the ground that he has been shown to the eyewitness. The appellant, after due investigation, was sent up for trial.

None of the eye witnesses except Nain Singh P.W.10 has been able to identify the appellant in the Court. Nain Singh P.W. identified the appellant in the Court after a lapse of more than five years. Admittedly he did not give the description of the appellant before the police. He has further stated in crossexamination that immediately he left the house along with the children on the arrival of nine dacoits in the house through another door. In this situation, the identification of the appellant by this witness in the Court is meaningless. In view of this statement of Nain Singh P.W. 10 to my mind, the solitary circumstance that the appellant refused to join the identification parade would not be sufficient to record the conviction of the appellant. Consequently, I allow the appeal and set aside the conviction and sentence of the appellant.