Roshan vs State of Haryana

S.S. Sodhi, J.

The appellants Suba and Roshan along with their companions Chaman and two others are said to have broken into the liquor vend at village Dhakal at about 2.30 AM on February 23, 1985, where Mohinder Singh and Ved Parkash were sleeping: A sum of Rs. 1050/ which was lying in the liquor vend being the sale proceeds there were taken from there by the appellants as also a wrist watch of Mohinder Singh and the clothes of both Mohinder Singh and Ved Parkash. It is in respect of this matter that Suba Roshan and Chaman stand convicted under Section 392 and sectio 458 of the Indian Penal Code and sentenced to four years rigorous imprisonment and a fine of Rs. 200/ on each count.

Having regard to the nature and quality of the evidence, as has come on record, the conviction and sentence of the appellants cannot possibly be sustained. The prosecution case rests upon the testimony of P.W. 10 Mohinder Singh and P.W. 11 Ved Parkash who deposed to the effect that robbery was committed in the liquor vend where they were sleeping on the night of February 23, 1985, and that cash, a wrist watch and their clothes were taken away by the culprits. The important point that arises for consideration here is with regard to the identity of these culprits. Admittedly, there was no lamp or other light there at hat time. The only light that these. witnesses spoke of was the torch light flashed at them by they say the appellant Suba. These witnesses would have the Court believe that it was by virtue of this torch light that they were enabled to recognize the appellants as the currents, when they happened to see them in custody at Narwana, about a month after the incident. On the lice of it, such evidence inspires no confidence and it would consequently be very unsafe to rely upon it.

The other evidence brought forth on record to connect the appellates with the offence charged is that pertaining to the recoveries made from the appellants as a consequence of the disclosure statements said to have been made by them. Evidence was in this behalf led with a view to show that Kurta Exhibit P2 was recovered at the instance of the appellant Suba, Pyjama Exhibit P3 on the pointing out of the appellant Roshan and another Pyjama at the instance of another co accused Puran, while the recovery of the wrist watch Exhibit P1 said to belong to P.W. 10 Mohinder Singh was imputed to the appellant Chaman.

As regards, the recoveries of the Kurta Exhibit P2, Pyjama, Exhibits P3 and P4, it was the finding of the trial court itself that the evidence showed that these clothes had been recovered before the disclosure statements had been made with regard to them by Suba Roshan and Puran. This evidence cannot therefore, be relied upon to implicate the appellants in this case. Further P.W. 6 Inder Singh a tailor, deposed that he had made the Kurta Exhibit P2 and the Pyjama Exhibit P3 for P.W. 10 Mohinder Singh, it this Mohinder Singh claimed that his Pyjama was Exh. P 4, while P.W. 1 Ved Parkash claimed the Kurta Exhibit P2 and Pyjama Exhibit P3 to be his.

As regards the wrist watch Exhibit P.1 a P.W. 10 Mohinder Singh claimed that it belonged to him and it was during the dacoity that it bad been token away by the appellants. It is pertinent to note here that the ownership of this watch being that of P.W. 10 Mohinder Singh was sought to be proved by the testimony of P.W. 4 Mohinder Singh. It is significant to note his statement, that receipt Exhibit PB with regard to its sale which bears the date December 3, 1984, was admittedly obtained by P.W. 10 Mohinder Singh after the present occurrence. Further this witness deposed that this watch had been recovered 20 days after the recovery of the Pyjama Exhibit P4 at the instance of Puran. The evidence on record shows that this Pyjama was recovered on May 3, 1985, whereas the watch Exhibit P1 is shown to have been recovered on March 21, 1985 i.e., before the recovery of this Pyjama.

It will thus be seen that neither of the recoveries said to have been made at the instance of the appellants is worthy of any reliance nor indeed the testimony of P.W. 10 Mohinder Singh and P.W.1 Ved Parkash with regard to the identity of the culprits. It pertinent to note that no identification parade was ever held and the appellants came to be arrested in this case merely on the statement of P.W. 10 Mohinder Singh and P.W. 11 Ved Parkash to the effect that they had seen the appellants in custody at Narwana on March 15, 1985, and they then recognized them as being the persons who had committed the offences in this case. The manner and circumstances in which the occurrence had taken place clearly justifies no reliance on such assertion the part of P.W. 10 Mohinder Singh and P.W. 11 Ved Parkash.

The case against the appellants cannot thus, treated as one free from serious doubt. It will thus, not be safe to maintain the conviction and sentence of the appellants Suba and Roshan as also of their coaccused Chaman. The conviction and sentence imposed upon these persons is accordingly hereby set aside and they are ordered to be released forthwith.

This appeal is accordingly hereby accepted.