Sunder vs State of Haryana

Harbans Singh Rai, J.

Sunder appellant along with 37, coaccused was tried by Additional Sessions Judge, Kurukshetra, for the murder of Fakir Chand vide his judgment dated August 11, 1986. He was convicted whereas his coaccused were acquitted.

Fakir Chand deceased was a contractor with the Food Corporation of India. He had a dispute with the labourers and relations between the labourers and Fakir Chand were strained.

On April 11, 1985, at about 11.00 a.m., Fakir Chand came on a motorcycle to a place near the crossing which is intersection of various roads going in various directions, where Sarwan Lal PW 5, was on duty as a traffic constable. Nichattar Singh PW 6 and Rajinder Singh PW 10 constables were taking tea on a nearby stall known as `Bengali Tea Stall'' along with one Churia Ram at that time. Fakir Chand stopped his motorcycle and started chatting with Sarvan Lal. Fakir Chand informed him that his dispute with the Bihari labourers may be settled that day. The deceased after parking the motorcycle, went to urinate nearby and as he had opened the string of his pajamas he was attacked by three persons, Arun Giri, Pritam Singh and another person whose description was of a clean shaven person, aged 24/25 wearing a white shirt and a chaddar. All the three persons had knives and all the there gave knife blows to Fakir Chand, Sarwan Lal PW raised an alarm which attracted Nichhattar Singh, Rajinder, Samar Singh Churia, Ram and Dalipa PWs. The three assailants were over powered by these persons.

In the meantime, Avtar Singh accompanied by about 30 Bihari labourers came at the site and proclaimed that Arun Giri and Pritam had done a heroic job and they should be rescued. These labourers rescued these three persons and they escaped towards railway station. Sarwan Lal informed the Police and got the FIR registered in Police Station City, Thanesar.

Avtar Singh Inspector PW 19, after recording the FIR reached the spot, lifted the bloodstained earth from the site and also took into possession the motorcycle. He recorded the statements of the PWs under section 161, Criminal Procedure Code.

The inquest report was prepared by S.I. Joginder Singh, and the dead body was sent for postmortem examination which was conducted by Dr. V.K. Gupta, Dr. N.K. Dodda and Dr. S.D. Arora. Sarwan Lal, Dalip Kumar and Rajinder Singh were also medicolegally examined as they had received injuries in the incident.

A.S.I. Harpal Singh arrested appellant during the intervening night of April 16/17, 1985. One 38 bore revolver was recovered from his person on search which is Exhibit P 29. This revolver is a licensed revolver of the deceased.

After investigation, the accused were challaned and the learned trial Court, after considering the evidence held that there are threesets of accused. Firstly, the persons who had attacked the deceased with knives. They are Arun Giri, Pritam Singh and Sunder. Out of these, Arun Giri and Pritam Singh were absconding and only Sunder had faced trial. According to trial Court, the second set consisted of the accused who proclaimed that a heroic job had been done and were heading the group of 30 labourers. They are Avtar Singh and Aslam and the third set of accused who had got Arun Giri, Pritam Singh and Sunder rescued. The trial Court acquitted Aslam as he was not identified. It was held by trial Court that Avtar Singh has not committed any offence. Therefore, he was also acquitted. Regarding the third set of labourers, it was held that their identity has not been pin pointed. So they were also acquitted.

The trial Court convicted Sunder holding that his identity is fixed.

The prosecution, in support of its case, examined a number of witnesses. Sarwan Lal PW 5, Nichhattar Singh PW 6 and Churia Ram PW 7 have been examined as witnesses of the occurrence. They have supported the prosecution case.

After close of the prosecution case, the accused were examined under section 313, Criminal Procedure Code. They denied the prosecution allegations and pleaded innocence.

We have heard the learned counsel for the parties and gone through the record.

Admittedly, the name of the accused Sunder is not given in the FIR nor the PWs knew him prior to the incident. Their case is that Arun Giri and pritam Singh were accompanied by a third man who was 24/25 years of age and was clean shaven. Arun Giri and Pritam Singh have not been arrested. Sunder is aged 35 years and is having mustaches. there had been no test identification parade nor any explanation has been offered as to why prosecution did not arrange one. As the PWs had not known he accused earlier and there was difference of at least 10 years in age, as given by the PWs of the person who had committed the crime and of the accused, it was obligatory on the part of prosecution to hold test identification parade, as only then it could be said that PWs are not making any mistake and the accused is the person who had participated in the crime. It is well settled that identification in Court itself, without there being any test identification parade, is not of much value. The incident took place in April, 1985, and the identification of the accused was made in Court in January, 1986, after eight months. there is every likelihood that the PWs can make a mistake qua an identification and this possibility is all the more strengthened when there is no test identification parade. There is no reason why a man of 35 years of age will be describe as a man of 24/25 years by the PWs. Admittedly the appellant had mustaches and the case of the prosecution is that even at the time of the incident, he had mustaches, but still he was described as clean shaven. Apart from identification, there is no other assuring circumstances which may connect the appellant with the crime.

In the circumstances of the case, we are of the opinion that it was a fit case where appellant is entitled to benefit of doubt. The prosecution has not been able to prove its case beyond reasonable doubt. Sunder appellant is acquitted of the charges. His appeal is allowed.