Vijay Pal vs State of Haryana

Kanwaljit Singh Ahluwalia, J.—The present Appellant was tried along with one Jitender @ Meena in case FIR No. 197 dated 30.3.1998, registered at Police Station Rai, under Sections 307, 450, 34 IPC by the Court of Additional Sessions Judge, Sonepat and vide judgment and order dated 18.5.2002, both the accused were convicted and sentenced to undergo RI for 5 years and to pay a fine of Rs. 1000/- each u/s 307 IPC and to undergo further RI for two years and to pay a fine of Rs. 500/- each u/s 450 IPC. In default of payment of fine, they were ordered to undergo further RI for a period of two months. However, both the sentences were ordered to run concurrently.

Case of the prosecution is that on 30.3.1998 at about 5.30 p.m., in the area of Rasoi, P.S. Rai, Jitender fired four shots and made an attempt to commit murder of Rajiv Goyal s/o Karam Chand Goyal owner of Goyal Spinning and Weaving Mills, Rasoi and thereby committed offence u/s 307 IPC. According to the prosecution, the present Appellant Vijay Pal had accompanied Jitender and thereby committed offence with the aid of Section 34 IPC. The present Appellant along with Jitender @ Meena was also tried for offence u/s 450 IPC

Co-accused Jitender has not preferred any appeal. According to the Counsel for the Appellant, out of maximum sentence of 5 years awarded u/s 307 IPC the Appellant has undergone 4 years 7 months and 3 days actual sentence and he was released by the jail authorities on 11.10.2009 on expiry of the sentence after getting benefit of remissions. Counsel for the Appellant has stated that he intends to contest the conviction of the Appellant as after the completion of sentence, he has been elected Sarpanch of the village, primarily on the ground that the prosecution has failed to prove identity of the Appellant as one of the accused. Counsel has in a very emphatic manner stated that except Rajiv Goyal, all the witnesses have been declared hostile and they have not supported the case of the prosecution. No other witness, except Rajiv Goyal, has deposed that the present Appellant was present at the scene of crime. It is further contended that even Rajiv Goyal has stated that the accused-Appellant was not known to the witnesses and he was shown to the injured witness in the police station. Therefore, counsel submits that identification of the Appellant in court is meaningless as the present Appellant was shown to the injured witness in the police station. To fortify this submission, Counsel has relied upon recent judgment of this Court in Shamsher Singh v. State of Haryana, (Crl. Appeal No. 937-SB of 2000), decided on 10.2.2011. Before this contention of the Appellant is evaluated, it will be necessary to notice the brief facts of the case.

Surender Gupta P.W. 9 lodged FIR Ex.PB wherein he stated that he was a Manager in the factory known as Goyal Spinning and Weaving Mills, Rasoi. On 28.3.1998 at about 5.30 p.m., he was working in his office. At that time, Mohinder Dhull, Clerk and Vijay Chauhan, Accountant were sitting along with him. Owner of the factory, Rajiv Goyal, resident of Phase No. 1, D/54, Ashok Vihar, Delhi and one Ashish Garg, Director of Shri Sham Cot Spin were also sitting in the office and were having conversation. At that time, two boys came on a motorcycle without registration number. The motor cycle was red coloured Yamaha. They brought Ram Saran security guard on the gun point. Both the boys were having pistol. One of them was Jitender, resident of Rasoi and the other one was of wheatish colour, tall and thinly built, aged about 22/23 years who remained with the motor cycle in starting mode on the main gate. Jitender forced his entry into the room of Rajiv Goyal and asked him to hand over the cash. When Rajiv Goyal asked what for the cash is to be handed over, Jitender fired four straight shots at him. One shot hit Rajiv Goyal in the chest towards right side and the second shot hit on the left hand. Thereafter, Rajiv Goyal fell down. Jitender fled away along with his accomplice on the motorcycle towards GT road saying that in case they are chased, further shot shall be fired.

Rajiv Goyal was shifted to Jaipur Golden Hospital, Delhi by Ashish Garg and Mohinder Dhull. SI Sube Singh reached at the spot and recorded statement of Surender Gupta.

A perusal of FIR Ex.PB reveals that name of the Appellant has not been mentioned. He is stated to be accomplice of Jitender. He accompanied Jitender on a motorcycle, stood armed with pistol but had not fired any shot from the pistol. All the shots were fired by Jitender. This Court has to examine the prosecution evidence as to whether the prosecution has succeeded to establish the identity of the Appellant or not.

Ravinder Kumar, Medical Record Keeper from Jaipur Golden Hospital, Delhi brought medical record of injured Rajiv Goyal, P.W. 5. He proved medical record report Ex.P 5 and identified the signatures of Dr. Y.K. Chaudhary who had medico-legally examined injured Rajiv Goyal. Dr. S.C. Khetarpal, Senior Consultant Radiology, Jaipur Golden Hospital, Delhi P.W. 2 stated that on 31.3.1998 he had performed radiological examination of the shoulder of Rajiv Goyal and found communted fracture of the proximal shaft Humerus with metallic dense two radio-opaque foreign bodies amongst the fractured fragments. Rajiv Goyal injured himself appeared as P.W. 5. He stated that he was the Chief Executive of the firm Goyal Spinning and Weaving Mills situated at village Rasoi. On 30.3.1998 at about 5.30 p.m., he was present in the premises of the factory and was having conversation with Ashish Garg, Director of Shree Shyam Cot Spin Mills. The other employees were also present at that time in the adjacent room. At that time, accused Jitender entered his office carrying a pistol in his hand. He sat in front of Rajiv Goyal on a chair and asked him to hand over the amount. On the asking of the witness as to why the amount should be handed over, Jitender fired shot from his pistol. Three bullets hit Rajiv Goyal P.W. 5 on right side of chest, left arm and back. Thereafter, Jitender escaped from the place of occurrence and the injured was brought to Jaipur Golden Hospital, Delhi for treatment. This witness further stated that, "aforesaid Jitender was accompanied by one Vijay Pal present in the court who remained present outside my office. Both the accused had escaped from the premises of the factory on a motor cycle". Further, following portion of the cross examination is required to be noticed:

I also know the name of accused Vijay Pal as I had heard about the name of accused Jitender. Accused Jitender present in the court, had also told about the name and presence of accused Vijay Pal. However, he had not told about the parentage as well as address of accused Vijay Pal. On the date of occurrence, I had not seen accused Vijay Pal. Police has shown me accused Vijay Pal in P.S. Ashok Vihar. I did not tell the police about the parentage as well as address of accused Vijay Pal (confronted with portion mark B to B of statement Ex.DA where it has been so recorded).

Vijay Chauhan was employed as an Accountant. He appeared as P.W. 8. This witness has not supported the prosecution version. He has stated that, "I also do not know who had fired at that time. The accused present in the court did not fire at that time." This witness was duly confronted by the Public Prosecutor with his previous statement. However, the prosecution could not gain anything from the testimony of this witness. Surender Gupta complainant, who lodged the FIR, appeared as P.W. 9. He has also not supported the case of the prosecution. This witness also stated that, "I do not know who had fired at that time. The accused present in the court did not fire at that time". This witness was also declared hostile and cross examined by the Public Prosecutor. Ashish Garg, Director of Shree Shyam Cot Spin, who was having conversation with Rajiv Goyal appeared as P.W. 12. He has also not supported the prosecution. This witness stated that, "the accused present in the court did not fire at Rajiv Goyal". This witness was also duly cross examined with the previous statement but the prosecution could not gain anything. Mohinder Dhull, another witness, was given up by the Public Prosecutor on 15.6.2001 as won over by the accused. Therefore, except injured Rajiv Goyal, all witnesses have been declared hostile and they have stated that the accused had not fired at Rajiv Goyal.

Rajiv Goyal in his cross examination has stated that the accused was not known to him and he was shown to him by the police in Police Station Ashok Vihar.

A quick glance at the remaining evidence is also required. Inspector Sube Singh appeared as P.W. 1 and stated that he had recorded statement of Surender Gupta P.W. 9 as Ex.DA on basis of which formal FIR Ex.PB was registered. HC Hari Om P.W. 3 and Constable Joginder Singh P.W. 4 tendered their affidavits Ex.PD and Ex.PE to prove link evidence. HC Ramesh Chander P.W. 6 had lifted four empty cartridges and two pallets from the spot. MHC Yashpal Singh, P.S. Sadar Bazar, Delhi P.W. 7 had stated that SI Ravinder Kumar had produced the pistol and four live cartridges before the then MHC for deposit in the Malkhana. HC Vidya Dhar P.W. 10 brought Register No. 19 of the Police Station Sadar Bazar to show entry No. 1958 dated 6.4.1998 where the case property, i.e., pistol of the present case was deposited. SI Mahabir Singh P.W. 11 stated that on 6.4.1998 he was posted as SHI/SHO of Police Station Rai and on that day he went to R.K. Puram Crime Branch, Delhi where SI Suresh met him. SI Suresh handed over to him a copy of the disclosure statement of accused Jitender in case FIR No. 94 dated 5.4.1998 PS. Sadar, Delhi u/s 25/27 of the Arms Act. This witness has also prepared a report u/s 173 Code of Criminal Procedure Constable Rajesh Kumar P.W. 13 had prepared scaled site plan Ex.PR. Constable Ravinder Pal Special Staff, West District, New Delhi P.W. 14 was the attesting witness to disclosure statement Mark A. He stated that he was posted at Crime Cell Branch Kidnapping Cell, R.K. Puram, New Delhi. On secret information, Jitender accused was arrested. During interrogation, he suffered a disclosure statement regarding his involvement in a shoot out at the premises of Goyal Spinning and Weaving Mills. In accordance with disclosure statement, recovery of weapon was effected. SI Jagdish Chander P.W. 16 had registered the formal FIR on the basis of ruqa received from SI Sube Singh. SI Ram Kishan P.W. 17 stated that he was posted as In-charge Police Post Kundli. He had gone to Jaipur Golden Hospital for recording statement of injured Rajiv Goyal. He was declared unfit by the doctor. This witness also proved various facets of investigation.

Thereafter, the statement of the accused was recorded u/s 313 Code of Criminal Procedure. No witness was examined in defence.

As stated earlier, Jitender has not preferred any appeal. He has accepted his conviction. So far as Appellant Vijay Pal is concerned, no recovery of weapon has been effected from him. All witnesses, except Rajiv Goyal injured, have been declared hostile and they have not divulged any incriminating circumstance against the Appellant. So far as Rajiv Goyal injured P.W. is concerned, it has also been noticed that he has deposed that the accused was not known to him and was shown to him by the police of Police Station Ashok Vihar. This Court in Shamsher Singh''s case (supra) has noted the case law and has pronounced that where the accused is not earlier known to the witness and is shown in the police Station, then that evidence cannot be relied upon and as prosecution has failed to establish the identity of the accused. The relevant portion of the aforesaid judgment reads as under:

In Mohanlal Gangaram Gehani Vs. State of Maharashtra, , the Hon''ble Apex Court held as under:

Another important circumstance which discredits the testimony of P.W. 5 (Shetty) is that he admits, that although he did not know the accused from before the occurrence yet the accused was shown to him by the police at the police station. The relevant statement of P.W. 5 may be extracted thus:

I had seen the accused before coming to the Court and after the incident, I had seen the accused ten days after I was discharged from the hospital. I was shown these accused by the police at the police station.

Thus, as Shetty did not know the Appellant before the occurrence and no Test Identification parade was held to test his power of identification and he was also shown by the police before he identified the Appellant in Court, his evidence becomes absolutely valueless on the question of identification. On this ground alone, the Appellant is entitled to be acquitted. It is rather surprising that this important circumstance escaped the attention of the High Court while it laid very great stress in criticising the evidence of Dr. Heena when her evidence was true and straightforward.

In Shaikh Umar Ahmed Shaikh v. State of Maharashtra AIR 1998 SC 1922, their Lordships of the Supreme Court observed as under:

...But, the question arises; what value could be attached to the evidence of identity of accused by the witnesses in the Court when the accused were possibly shown to the witnesses before the identification parade in the police station. The Designated Court has already recorded a finding that there was strong possibility that the suspects were shown to the witnesses. Under such circumstances, when the accused were already shown to the witnesses, their identification in the Court by the witnesses was meaningless. The statement of witnesses in the Court identifying the accused in the Court lost all its value and could not be made basis for recording conviction against the accused....

In Ravindra @ Ravi Bansi Gohar Vs. The State of Maharashtra and Others, , the Hon''ble Supreme Court held that no credence can be given to identification of the accused in the Court where their photographs were shown to the witnesses. It was held that identification held in Court will be of no use and will be worthless.

If the accused was shown to the witness in the police station, the identification in the court becomes meaningless and, thus, the identification of the Appellant by the witness in the court is to be ruled out of consideration.

Except the testimony of Rajiv Goyal P.W. 5, there is no evidence against the Appellant. The testimony of Rajiv Goyal, as already stated, cannot be relied upon as the Appellant was shown to him in the police station. Therefore, it cannot be safe to uphold the conviction of the Appellant.

Hence, the present appeal is accepted; conviction of the Appellant is set aside and he is acquitted of the charge.