Kanwaljit Singh Ahluwalia, J.(Oral)

1. The present appeal was filed by Shamsher Singh through jail. His co-accused, namely, Ranbir Singh, Baljit Singh, Kesav @ Kesho, Kaptan Singh, Ramesh @ Maheshi and Jagdish were acquitted by the trial Court. They were accused in case FIR No.228 dated 20.11.1997, registered at Police Station Uklana, under Sections 395, 216-A, 120-B, 342 and 412 IPC. The appellant was held guilty of offence punishable under Sections 395 and 342 IPC by the Court of Additional Sessions Judge, Hisar vide judgment dated 10.8.2000 and was sentenced by a separate order dated 11.8.2000 as under :-

U/s 395 IPCRI for 7 years and to pay fine of Rs. 10,000/- and default thereof

U/s 342 IPCRI for one year.

Both the sentences were ordered to run concurrently.

2. Sukhdev @ Sukha s/o Joginder Singh resident of Rania (Sirsa) had made statement Ex.P9 in which he stated that he was a resident of Sirsa and was working as a driver on truck bearing registration No.RJ-31-G-0178 and was drawing salary of Rs. 1800/- per month. Name of owner of the truck is Daljinder Singh. One Balwinder Singh alias Babbu son of Gian Singh was working as a Cleaner on the truck. On 19.11.1997 at about 9.30 p.m., after loading paddy (zeeri), he left from village Kariwala to Kaithal. The paddy belonged to one Kapur Singh son of Dalip Singh. He was accompanying the truck driver and the cleaner. At about 2.00 a.m. when they reached at a distance of 10 kilometer from Bhuna towards Uklana, in the middle of the road, logs of kikar tree were placed, therefore the truck was stopped. Then, all of a sudden, 5 or 6 persons appeared; complainant, cleaner and the owner of the paddy alighted from the truck. A person saw as to what was loaded in the truck. He informed co-accused that the truck was loaded with paddy, then accused persons, with muffled faces, took away the driver, cleaner and owner aside. They conducted the personal search of the complainant/driver and took away his purse in which there was a sum of Rs. 900/- approximately. Those accused who took the complainant, cleaner and owner of the paddy to a nearby kotha in the fields and tied all of them with loosened plastic niwar of a cot which was lying there in the kotha. Two of the assailants guarded these three persons and gave a threat not to raise alarm otherwise they would be liquidated. 3-4 persons took away the truck loaded with paddy towards Uklana. The truck driver gave description of the assailants who sat by their side, one person with fat body, aged about 36/37 years, wearing a blue coloured pant and had covered himself with woolen loi (blanket), height about 59". The other person was described as wearing kurta-payjama of stripped colour with thin body, height about 56", aged about 30 years with blanket black and white squares print. The complainant stated that in case the accused are produced before him, he could identify them.

3. The above stated FIR was investigated; 6-7 persons were arrested; and report under Section 173 Cr.P.C. was submitted. The appellant, along with all the co-accused, was charged for offence under Section 120-B, 395 read with Section 120-B, 342 read with Section 120-B IPC and 506 read with Section 120- B. Additionally, Kaptan, Ramesh, Baljit Singh, Ranbir and Jagdish were also charged with offence under Section 412 IPC.

4. PW1 HC Parhlad Singh had interrogated the other accused and in pursuance thereof, recovery of paddy bags and bales of cotton was effected. PW2 Dr. Daya Nand had medico-legally examined Ramesh alias Maheshi, acquitted accused, on 26.12.1997 at 4 p.m. There was no injury found on his person. On 22.12.1997 at about 3.15 p.m., PW3 Dr. M.K. Bhadu had medico-legally examined Jagdish, Ranbir and Baljit Singh, the acquitted accused, and found no external injury on their person. PW4 Sub Inspector Raja Ram recorded statement of Sukhdev Singh, driver of the truck, on the basis of which formal FIR Ex.P9 was registered. PW5 ASI Karam Chand stated that on 21.11.1997, he was posted at Police Post Sanor, P.S. Sadar Patiala. He had found a truck parked at Balwera road near Johrian, bearing registration No.RJ-31-G-0178. PW6 ASI Jarnail Singh stated that ASI Karam Chand had produced before him the truck which was found by him parked and was taken into possession. PW7 Constable Sadhu Ram stated that on 16.3.1998, he along with ASI Ishwar Singh and Constable Balbir Singh had interrogated the present appellant and his disclosure statement Ex.P14 was recorded and in pursuance thereof, Shamsher Singh had pointed out the place of occurrence. PW8 Dharam Pal stated that Keshav accused is known to him, however, Baljit and Shamsher accused were not known to him and no enquiry was made from him. This witness was declared hostile and was cross examined by the Public Prosecutor. PW9 ASI Ram Dhan had partly investigated the case. He had taken the truck in his possession from Police Post Sanor. PW10 Ram Singh Patwari had prepared the scaled site plan.

5. PW11 Sukhdev Singh reiterated as to what was stated in the statement on the basis of which formal FIR Ex.P9 was registered. However, in court, he only identified Shamsher Singh appellant. PW12 Balwinder Singh, who was cleaner of the truck, also identified Shamsher Singh accused, the present appellant, as one of the assailants in court. PW13 Kapur Singh also identified Shamsher Singh appellant. PW14 Randhir Singh stated that in the presence of ASI Parhlad Singh, Jagdish accused was interrogated. He got recovered 70 gunny bags of cotton seeds (Binola) and 20 bags of paddy. ASI Daya Sagar PW15 stated that Baljit Singh, Ranbir Singh and Jagdish accused were arrested. During police custody, Baljit, Ranbir and Jagdish made disclosure statement and got the goods recovered. Since this witness has stated nothing qua the present appellant, his evidence in detail is not required to be noticed.

6. Ranbir Singh made a disclosure statement Ex.PC and stated that gunny bags were stored in the house of Shamsher Singh accused, the present appellant. PW16 HC Mahipal stated that he was posted as MHC at Police Station Uklana. He had recorded the formal FIR. PW17 ASI Ishwar Singh stated that on 16.3.1998 he had interrogated Shamsher Singh accused and got recorded his confessional statement Ex.PW14/A. Thereafter, the accused Shamsher Singh led the police party to the place of recovery and memo Ex.P15 was prepared at the instance of the appellant. PW18 Inspector Om Parkash had investigated the case and thereafter the statement of the accused was recorded under Section 313 Cr.P.C. All incriminating evidence was put to him. He denied the same and pleaded innocence. No witness was examined in defence.

7. Shri Rahul Vats, Counsel appearing for the appellant, has stated that the present appeal was filed through jail. Therefore, he will only pray to this Court that the sentence awarded upon the appellant may be reduced adequately as he has undergone 3 years 11 months and 22 days of actual sentence.

8. In the present case, three incriminating circumstances have emerged against the appellant; (a) he was identified in Court by PW11 Sukhdev Singh driver of the truck, PW12 Balwinder Singh, Cleaner of the truck and PW13 Kapur Singh owner of the paddy loaded in the truck; (b) the second incriminating circumstance emerged against the accused is that his co-accused Ranbir Singh had made a disclosure statement and got the gunny bags, filled with paddy, recovered from the house of the appellant; and lastly, (C) the appellant is stated to have made a disclosure statement Ex.PW14/A to ASI Ishwar Singh PW17.

9. The disclosure statement Ex.PW14/A was attested by Constable Sadhu Ram and Constable Birbal. Sadhu Ram had appeared as PW7. This Court will have to examine whether the prosecution has proved the identity of the accused or not. In this case, no identification parade was held. Therefore, to scrutinize the testimony of the witnesses, who for the first time identified the appellant in the court when he was standing in the dock, this Court has evaluated their evidence. In cross examination, Sukhdev Singh has stated that at the spot he unmistakably identified the present appellant as he was one of the persons who was coming in and going out of the room where they were detained. He further stated that he could not identify the other accused as they were with muffled faces and there was a darkness. He further stated that he could see the face of Shamsher Singh as his companions had alighted the matchstick to enjoy biri. Balwinder Singh PW12 stated that Shamsher Sigh appellant was standing near the body of the truck in one side in the darkness. When he stopped the truck, Shamsher Singh was not visible on account of darkness. He further stated that he could not tell the name of Shamsher Singh appellant, as there was darkness inside the kotha. This witness further stated that name of Shamsher Singh was told to him by the police. He has further stated that Shamsher Singh was not shown by the police. This witness further stated that it was darkness inside the kotha. The two persons who remained with them, their faces were not muffled. Kapoor Singh, owner of the paddy, loaded in the truck, stated as under:-

"It was darkness and all the assailants were with muffled faces but their faces could be identified. It was a dark pitch night. The head lights of the truck were switched off. The accused were shown to us in the police station. It was darkness inside the kotha. The accused had not told their names to us. I have seen the accused for the first time in the Court."

Thus, Kapoor Singh has admitted that accused were shown to him for the first time in the police station.

10. In Mohanlal Gangaram Gehani v. State of Maharashtra, AIR 1982 SC 839 [LQ/SC/1982/52] , the Honble Apex Court held as under :-

"19. 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.".

20. 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."

11. In Shaikh Umar Ahmed Shaikh v. State of Maharashtra, 1998(2) R.C.R.(Criminal) 629 : AIR 1998 SC 1922 [LQ/SC/1998/518] , their Lordships of the Supreme Court observed as under:-

"8. ... 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. ..."

12. In Ravindra @ Ravi Bansi Gohar v. State of Maharashtra, 1998(3) R.C.R.(Criminal) 766 : AIR 1998 SC 3031 [LQ/SC/1998/732] , the Honble 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.

13. Since in the present case, it has come in the evidence of Kapoor Singh PW13 that the accused was shown to him in the Police Station, therefore, it can be held that the prosecution has failed to establish the identity of the accused.

14. 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.

15. Ranbir had made disclosure statement Ex.PC. He stated therein that he had stored the paddy bags in the house of Shamsher Singh accused and thereafter, he led the police party to the house of Shamsher Singh accused and got recovered 25 bags of binola and 20 bags of paddy, besides 10 bales of cotton. Merely because the recovery was effected from the house of the appellant, it cannot be said that he was in conscious possession of the same. The appellant may not know as to for what purpose Ranbir had stored those goods in his house.

16. Lastly, the circumstance that the appellant, pursuant to the disclosure statement, had shown the place of occurrence, cannot be relied upon as disclosure statement itself is not admissible until the recovery is effected in pursuance thereof and the same cannot be construed as incriminating circumstance against the accused. Thus, there is no admissible evidence against the appellant on basis of which conviction can be sustained.

17. Consequently, in view of the discussion made above, the present appeal is accepted; conviction and sentence of the appellant is set aside and he is acquitted of the charge.