Prem Singh vs State Of Haryana

Prem Singh ....Appellant

Versus

State of Haryana ....Respondent

J U D G M E N T

HARJIT SINGH BEDI, J.

This appeal by way of special leave arises out of the

following facts:

1. At about 9.20 a.m. on the 26th November 1993 PW-16

Sohan Lal, the brother of the deceased Siri Krishan, was out

for a morning walk when he was informed by his neighbour

Vijay Kumar that some persons had come in a white

coloured Maruti car and had halted in front of Siri Krishan

and had fired shots at him causing him serious injury.

Sohan Lal PW-16 then rushed to the site and removed Siri

Krishan to the Government hospital where he was declared

brought dead on arrival. His statement was then recorded

by PW-24 Sub-Inspector Gurcharan Singh in the

Government hospital who reached there on receiving

information from the doctor. The Inspector inspected the

dead body and took steps to have it subjected to a post-

mortem. He also visited the place of occurrence and

recovered several empty cartridges and a spent bullet from

the spot. Inspector Om Parkash PW-23 also went to the site

of the murder at 12.30 p.m. and recorded the statements of

PW-11 Sohan Lal son of Anant Lal and PW-12 Bhagat Lal

son of Banarsi Dass at 1:30 p.m. who claimed to be the eye

witnesses to the murder. He also recorded the statement of

PW-13 Pushpa Devi, the widow of the deceased, who gave

the information that Daulat Ram had a property dispute

with her husband and this murder had been committed as

a consequence of the conspiracy hatched by him along with

his co-accused. Further investigation was also done by PW-

27 Inspector Gordhan Singh. He arrested Daulat Ram on

the 4th January 1994, and Prem Singh accused 10 days

later from Tihar Jail where he was already incarcerated in

some other criminal case. Prem Singh was also sought to

be produced for a test identification parade but he declined

to do so. Ballu accused was arrested on the 18th January

1994 and a pistol was recovered on a statement made by

2

him, Vishwa Bandhu accused was arrested on the 23rd

January 1994 and an effort was made to put him up for an

identification but he too declined the offer. The other two

accused Radhey Shyam and Surinder were arrested on the

19th April 1994 and 27th May 1994 respectively. On the

completion of the investigation, the accused were charged

for offences under Sections 302/149 and 120-B of the

Indian Penal Code and Section 27 of the Arms Act and were

accordingly brought to trial.

2. The prosecution in support of its case placed primary

reliance on the testimony of PW-11 Sohan Lal and PW-12

Bharat Lal who claimed to be the eye witnesses to the

murder, PW-13 Pushpa Devi who deposed to the property

dispute between her husband and Daulat Ram accused and

PW-16-Sohan Lal the first informant, who had received the

information of the murder from Vijay Kumar. Vijay Kumar

was, however, not examined. The Trial Court observed that

on the basis of the evidence of the prosecution witnesses, as

led, no evidence whatsoever had been spelt out against

Satish and Surinder and they were accordingly acquitted

even prior to the recording of the statements of the accused

3

under Section 313 of the Cr.P.C. The Trial Court then, very

comprehensively, examined the evidence against the other

accused and recorded several reasons which have been

spelt out by the High Court in its judgment and we quote

therefrom herein below:

"(i) Vijay Kumar who informed PW-16 Sohan Lal,

brother of the deceased about the occurrence, was

not examined, which was necessary for unfolding of

the narrative of the prosecution.

(ii) PW-11 Sohan Lal and PW-12 Bharat Lal were

falsely introduced as eye witnesses. Both of them

claimed to have come from Punjab about two months

prior to the occurrence. One of them shifted back to

Sunam. They did not have any proof of residence of

Karnal. PW-11 Sohan Lal was employee of brother-in-

law of the deceased. They did not go to the police

station to lodge the report. Their names were

mentioned in the FIR. Their versions were discrepant

on the issue of the person who caught hold of the

deceased Satish or Ballu. Their normal conduct was

to be to go to the house of the deceased to give

information. There were further discrepancies in their

versions about the direction from which the car

came.

(iii) Recoveries and linkage of pistols with the empty

cartridges was not free doubt.

(iv) Identification in Court was not reliable.

(v) The accused were arrested from one or the other

lock up and could have been shown to the witnesses.

(vi)No adverse inference could be drawn by their

refusing to take in the TIP.

(vii)Charge of conspiracy was without any basis."

3. The trial court accordingly acquitted all the accused of

the charges leveled against them. An appeal was thereafter

4

filed in the High Court by the State of Haryana against the

acquittal of 5 of the accused, that is Daulat Ram, Prem

Singh, Ballu, Radhey Shyam and Vishwa Bandhu. The

High Court has, vide its judgment under challenge before

us, confirmed the acquittal of Daulat Ram, Ballu @ Vijender

and Radhey Shyam accused and dismissed the appeal but

has set aside the judgment qua Prem Singh and Vishwa

Bandhu and they have been convicted and sentenced to life

imprisonment for the offence under Section 302/34 etc.

The present appeal has been filed by Prem Singh alone.

4. The learned counsel for the appellant has raised

several pleas before us. He has first pointed out that the

prosecution story hinged primarily on the motive which

Daulat Ram carried as he bore some animosity with the

deceased and that he had obtained the services of the other

accused who were apparently hired assassins to get rid of

him and as Daulat Ram had been acquitted, the entire story

perforce must fall through. He has also pointed out that the

only witness who could have sworn to the incident was Vijay

Kumar who had informed PW-16 Sohan Lal that he had

witnessed the murder on which the latter had reached the

5

spot, taken victim to the hospital and thereafter lodged the

FIR but surprisingly Vijay Kumar had not even been cited

as a witness and PW-11 Sohan Lal and PW-13 Bharat Lal

had subsequently been introduced as eye witnesses clearly

spelt out that the prosecution evidence could not be relied

on, more particularly as their presence had not been

explained and their conduct immediately after the incident

also did not inspire confidence. It has also been pointed out

that merely because three of the accused had refused to join

the test identification parade would not by itself be of any

significance as the accused had alleged that they had

already been shown to the witnesses.

5. The learned counsel for the State of Haryana has,

however, supported the judgment of the High Court.

6. We see that of the 7 accused only 2 stand convicted

whereas the evidence with respect to all of them is identical.

In this background, it has also to be borne in mind that the

High Court's interference in an appeal against acquittal is

greatly circumscribed and though the Court is justified in

reappraising the evidence to arrive at an independent

conclusion, yet if the reasons given by the trial court for

6

acquittal are germane and relevant on the evidence,

interference by the High Court should not be made on the

premise that a different view was also possible. This

principle emanates from the broader principle that an

accused is entitled to claim a plea of innocence and it is for

the prosecution to prove its case beyond doubt and if the

trial court has acquitted an accused, the presumption of

innocence is greatly strengthened. We are of the opinion

that the High Court has ignored this long settled dictum.

We have examined the various arguments raised in the

background of the above observations.

7. It will be seen that the trial court was greatly

influenced by the fact that Vijay Kumar had not even been

cited as an eye witness. The incident happened at about 7

or 7.30 a.m. on the 26th November 1993 and the statement

of Sohan Lal PW-16 was recorded in the hospital at 9 a.m.

the same day with no clue as to the assailants and on its

basis the first information report had been registered in the

Police Station a short while later. Significantly, however,

the statement of Vijay Kumar was recorded by the police for

the first time on the 28th March 1994 and that too when the

7

Public Prosecutor had raised an objection while checking

the challan before its presentation in Court. Faced with this

situation, the Public Prosecutor had submitted before the

trial court that Vijay Kumar had not been cited as an eye

witness as it was in fact Vijay Kumar's daughter who had

told him about the incident and that he himself had no

knowledge thereof. This argument was based on the

statement of the Investigating Officer which was introduced

for the first time during the course of the evidence. This

explanation is too our mind an after thought and even

otherwise meaningless. Assuming therefore that Vijay

Kumar had, in fact, not been an eye witness and his

daughter had been the one who had seen the incident, the

police concededly did not even try to take her statement at

any stage.

8. The prosecution story has accordingly been based on

the statements of PW-11 Sohan Lal and PW-12 Bharat Lal

who claimed to be eye witnesses. It is significant that they

identified the accused for the first time in court. PW-11 also

admitted in his evidence that he was an employee of

Aggarwal Sanitary Store which was owned by Brij Lal and

8

Naresh Kumar, the brothers of PW-13 Pushpa Devi, the wife

of the deceased, and that PW-12 was his friend and had

accompanied him for the morning walk when the incident

had happened. This story is unacceptable for the reason

that their conduct completely belies their presence. It has

come in evidence that the two were aware of the identity of

Siri Krishan and knew him by face and name since long and

were also conscious of the fact that his house was near the

place of murder. Despite this knowledge and his

association with the complainant family, PW-11 did not go

to the house of Pushpa Devi or even inform her brothers

who were his employers as to what had happened or to go to

the police station a very short distance away to lodge a

report. On the contrary, it comes out from the evidence that

after the incident PWs-11 & 12 had moved around aimlessly

in Karnal before returning to the murder site at about 1.30

p.m. where their statements were recorded. This factor

assumes even more significance as the names of these

witnesses did not figure in the F.I.R., and the motive for the

murder has been rejected even by the High Court as the

acquittal of Daulat Ram has been maintained.

9 9. We also see that the very presence of PWs.11 and 12 in

Karnal is in serious dispute. It has come in their evidence

that they were residents of Sunam in the State of Punjab

and that they had shifted from that town to Karnal about 2

months before the occurrence on account of the fear of

terrorism and had settled down in Karnal by taking

accommodation on rent and that they had returned to

Sunam some time in the middle of 1994. The trial court

has found, on a deep appreciation of the evidence, that this

story was in doubt and the reasons have been succinctly

spelt out. It has been found that the two had not given their

addresses in Karnal in their 161 Cr.P.C. statements and

when cross-examined by the defence counsel, were unable

even at that stage to give accurate and precise details as to

where they had been living in Karnal or to produce any rent

receipt or document to show residence in Karnal on the day

in question. Curiously enough the police did not even care

to get hold of any material as to their residence in Karnal

and no witness was produced to show that they had ever

been residents in Karnal. The trial court has also noticed

that they had shifted from Sunam because of the fear of

1

terrorism in the year 1993 but the two claimed to have

returned to Sunam in the middle of 1994 when terrorism

was still at its peak. We have also examined the reasons

given by the High Court in concluding that the evidence of

PWs.11 and 12 could be relied upon. We find that there is

absolutely no discussion as to their presence in Karnal on

the crucial day or to the various factors that have been spelt

to rule them out, and the High Court appears to have

proceeded on the basis that they had been present as they

had been cited as eye witnesses. We are unable to accept

such a conclusion and that too in a case of murder. The

trial court has also examined their evidence inter-se in a

broader perspective and has concluded that it differed in

material particulars as well.

10. As already indicated, the High Court has been greatly

influenced by the refusal of the accused to join the test

identification parade. The evidence of PW-27 Inspector

Gordhan Singh is relevant in this connection. He deposed

that the accused had been arrested from different places at

different times and that they had been brought to Karnal

and put in a lock up and thereafter produced in court.

1 Significantly, the accused pointed out to the Magistrate PW-

27, as well as in their statements in court, that they had

been shown to PWs.11 and 12 and also to the sons of Siri

Krishan in the Police Station. It must be borne in mind

that it is impossible for an accused to prove by positive

evidence that he had been shown to a witness prior to the

identification parade but if suspicion can be raised by the

defence that this could have happened, no adverse inference

can be drawn against the accused in such a case. We are of

the opinion that in the light of the above facts and

particularly the uncertain eye witness account, and our

opinion that these witnesses had not seen the incident and

particularly the fact that the High Court was dealing with an

appeal against acquittal and 5 of the 7 accused stand

acquitted as of now on the same evidence, interference by

the High Court was not called for in the case of the

appellant. We accordingly allow this appeal, set aside the

judgment of the High Court and restore that of the trial

court and order the appellant's acquittal.

..................................

J.

1

(HARJIT SINGH BEDI)

2nd September, 2011

NEW DELHI.

1

[ REPORTABLE ]

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 925 OF 2009

Prem Singh ....Appellant

Versus

State of Haryana ....Respondent

J U D G M E N T

HARJIT SINGH BEDI, J.

This appeal by way of special leave

arises out of the following facts:

1. At about 9.20 a.m. on the 26th November

1993 PW-16 Sohan Lal, the brother of the

deceased Siri Krishan, was out for a morning

walk when he was informed by his neighbour

Vijay Kumar that some persons had come in a

white coloured Maruti car and had halted in

front of Siri Krishan and had fired shots at

him causing him serious injury. Sohan Lal

PW-16 then rushed to the site and removed

1

Siri Krishan to the Government hospital

where he was declared brought dead on

arrival. His statement was then recorded by

PW-24 Sub-Inspector Gurcharan Singh in the

Government hospital who reached there on

receiving information from the doctor. The

Inspector inspected the dead body and took

steps to have it subjected to a post-mortem.

He also visited the place of occurrence and

recovered several empty cartridges and a

spent bullet from the spot. Inspector Om

Parkash PW-23 also went to the site of the

murder at 12.30 p.m. and recorded the

statements of PW-11 Sohan Lal son of Anant

Lal and PW-12 Bhagat Lal son of Banarsi Dass

at 1:30 p.m. who claimed to be the eye

witnesses to the murder. He also recorded

the statement of PW-13 Pushpa Devi, the

widow of the deceased, who gave the

information that Daulat Ram had a property

dispute with her husband and this murder had

been committed as a consequence of the

1

conspiracy hatched by him along with his co-

accused. Further investigation was also

done by PW-27 Inspector Gordhan Singh. He

arrested Daulat Ram on the 4th January 1994,

and Prem Singh accused 10 days later from

Tihar Jail where he was already incarcerated

in some other criminal case. Prem Singh was

also sought to be produced for a test

identification parade but he declined to do

so. Ballu accused was arrested on the 18th

January 1994 and a pistol was recovered on a

statement made by him, Vishwa Bandhu accused

was arrested on the 23rd January 1994 and an

effort was made to put him up for an

identification but he too declined the

offer. The other two accused Radhey Shyam

and Surinder were arrested on the 19th April

1994 and 27th May 1994 respectively. On the

completion of the investigation, the accused

were charged for offences under Sections

302/149 and 120-B of the Indian Penal Code

and Section 27 of the Arms Act and were

1

accordingly brought to trial.

2. The prosecution in support of its case

placed primary reliance on the testimony of

PW-11 Sohan Lal and PW-12 Bharat Lal who

claimed to be the eye witnesses to the

murder, PW-13 Pushpa Devi who deposed to

the property dispute between her husband and

Daulat Ram accused and PW-16-Sohan Lal the

first informant, who had received the

information of the murder from Vijay Kumar.

Vijay Kumar was, however, not examined. The

Trial Court observed that on the basis of

the evidence of the prosecution witnesses,

as led, no evidence whatsoever had been

spelt out against Satish and Surinder and

they were accordingly acquitted even prior

to the recording of the statements of the

accused under Section 313 of the Cr.P.C.

The Trial Court then, very comprehensively,

examined the evidence against the other

accused and recorded several reasons which

have been spelt out by the High Court in its

1

judgment and we quote therefrom herein

below:

"(i) Vijay Kumar who informed PW-16 Sohan Lal, brother of the deceased about the occurrence, was not examined, which was necessary for unfolding of the narrative of the prosecution.

(ii) PW-11 Sohan Lal and PW-12 Bharat Lal were falsely introduced as eye witnesses.

Both of them claimed to have come from Punjab about two months prior to the occurrence. One of them shifted back to Sunam. They did not have any proof of residence of Karnal. PW-11 Sohan Lal was employee of brother-in-law of the deceased. They did not go to the police station to lodge the report. Their names were mentioned in the FIR. Their versions were discrepant on the issue of the person who caught hold of the deceased Satish or Ballu. Their normal conduct was to be to go to the house of the deceased to give information. There were further discrepancies in their versions about the direction from which the car came.

(iii) Recoveries and linkage of pistols with the empty cartridges was not free doubt.

(iv) Identification in Court was not reliable.

(v) The accused were arrested from one or the other lock up and could have been shown to the witnesses.

(vi)No adverse inference could be drawn by their refusing to take in the TIP.

(vii)Charge of conspiracy was without any basis."

1 3. The trial court accordingly acquitted

all the accused of the charges leveled

against them. An appeal was thereafter

filed in the High Court by the State of

Haryana against the acquittal of 5 of the

accused, that is Daulat Ram, Prem Singh,

Ballu, Radhey Shyam and Vishwa Bandhu. The

High Court has, vide its judgment under

challenge before us, confirmed the acquittal

of Daulat Ram, Ballu @ Vijender and Radhey

Shyam accused and dismissed the appeal but

has set aside the judgment qua Prem Singh

and Vishwa Bandhu and they have been

convicted and sentenced to life imprisonment

for the offence under Section 302/34 etc.

The present appeal has been filed by Prem

Singh alone.

4. The learned counsel for the appellant

has raised several pleas before us. He has

first pointed out that the prosecution story

hinged primarily on the motive which Daulat

Ram carried as he bore some animosity with

1

the deceased and that he had obtained the

services of the other accused who were

apparently hired assassins to get rid of him

and as Daulat Ram had been acquitted, the

entire story perforce must fall through. He

has also pointed out that the only witness

who could have sworn to the incident was

Vijay Kumar who had informed PW-16 Sohan Lal

that he had witnessed the murder on which

the latter had reached the spot, taken

victim to the hospital and thereafter lodged

the FIR but surprisingly Vijay Kumar had not

even been cited as a witness and PW-11 Sohan

Lal and PW-13 Bharat Lal had subsequently

been introduced as eye witnesses clearly

spelt out that the prosecution evidence

could not be relied on, more particularly as

their presence had not been explained and

their conduct immediately after the incident

also did not inspire confidence. It has

also been pointed out that merely because

three of the accused had refused to join the

2

test identification parade would not by

itself be of any significance as the accused

had alleged that they had already been shown

to the witnesses.

5. The learned counsel for the State of

Haryana has, however, supported the judgment

of the High Court.

6. We see that of the 7 accused only 2

stand convicted whereas the evidence with

respect to all of them is identical. In

this background, it has also to be borne in

mind that the High Court's interference in

an appeal against acquittal is greatly

circumscribed and though the Court is

justified in reappraising the evidence to

arrive at an independent conclusion, yet if

the reasons given by the trial court for

acquittal are germane and relevant on the

evidence, interference by the High Court

should not be made on the premise that a

different view was also possible. This

principle emanates from the broader

2

principle that an accused is entitled to

claim a plea of innocence and it is for the

prosecution to prove its case beyond doubt

and if the trial court has acquitted an

accused, the presumption of innocence is

greatly strengthened. We are of the opinion

that the High Court has ignored this long

settled dictum. We have examined the

various arguments raised in the background

of the above observations.

7. It will be seen that the trial court was

greatly influenced by the fact that Vijay

Kumar had not even been cited as an eye

witness. The incident happened at about 7

or 7.30 a.m. on the 26th November 1993 and

the statement of Sohan Lal PW-16 was

recorded in the hospital at 9 a.m. the same

day with no clue as to the assailants and

on its basis the first information report

had been registered in the Police Station a

short while later. Significantly, however,

the statement of Vijay Kumar was recorded by

2

the police for the first time on the 28th

March 1994 and that too when the Public

Prosecutor had raised an objection while

checking the challan before its presentation

in Court. Faced with this situation, the

Public Prosecutor had submitted before the

trial court that Vijay Kumar had not been

cited as an eye witness as it was in fact

Vijay Kumar's daughter who had told him

about the incident and that he himself had

no knowledge thereof. This argument was

based on the statement of the Investigating

Officer which was introduced for the first

time during the course of the evidence.

This explanation is too our mind an after

thought and even otherwise meaningless.

Assuming therefore that Vijay Kumar had, in

fact, not been an eye witness and his

daughter had been the one who had seen the

incident, the police concededly did not even

try to take her statement at any stage.

2 8. The prosecution story has accordingly

been based on the statements of PW-11 Sohan

Lal and PW-12 Bharat Lal who claimed to be

eye witnesses. It is significant that they

identified the accused for the first time in

court. PW-11 also admitted in his evidence

that he was an employee of Aggarwal

Sanitary Store which was owned by Brij Lal

and Naresh Kumar, the brothers of PW-13

Pushpa Devi, the wife of the deceased, and

that PW-12 was his friend and had

accompanied him for the morning walk when

the incident had happened. This story is

unacceptable for the reason that their

conduct completely belies their presence.

It has come in evidence that the two were

aware of the identity of Siri Krishan and

knew him by face and name since long and

were also conscious of the fact that his

house was near the place of murder. Despite

this knowledge and his association with the

complainant family, PW-11 did not go to the

2

house of Pushpa Devi or even inform her

brothers who were his employers as to what

had happened or to go to the police station

a very short distance away to lodge a

report. On the contrary, it comes out from

the evidence that after the incident PWs-11

& 12 had moved around aimlessly in Karnal

before returning to the murder site at about

1.30 p.m. where their statements were

recorded. This factor assumes even more

significance as the names of these witnesses

did not figure in the F.I.R., and the motive

for the murder has been rejected even by the

High Court as the acquittal of Daulat Ram

has been maintained.

9. We also see that the very presence of

PWs.11 and 12 in Karnal is in serious

dispute. It has come in their evidence that

they were residents of Sunam in the State of

Punjab and that they had shifted from that

town to Karnal about 2 months before the

occurrence on account of the fear of

2

terrorism and had settled down in Karnal by

taking accommodation on rent and that they

had returned to Sunam some time in the

middle of 1994. The trial court has found,

on a deep appreciation of the evidence, that

this story was in doubt and the reasons have

been succinctly spelt out. It has been

found that the two had not given their

addresses in Karnal in their 161 Cr.P.C.

statements and when cross-examined by the

defence counsel, were unable even at that

stage to give accurate and precise details

as to where they had been living in Karnal

or to produce any rent receipt or document

to show residence in Karnal on the day in

question. Curiously enough the police did

not even care to get hold of any material as

to their residence in Karnal and no witness

was produced to show that they had ever been

residents in Karnal. The trial court has

also noticed that they had shifted from

Sunam because of the fear of terrorism in

2

the year 1993 but the two claimed to have

returned to Sunam in the middle of 1994 when

terrorism was still at its peak. We have

also examined the reasons given by the High

Court in concluding that the evidence of

PWs.11 and 12 could be relied upon. We

find that there is absolutely no discussion

as to their presence in Karnal on the

crucial day or to the various factors that

have been spelt to rule them out, and the

High Court appears to have proceeded on the

basis that they had been present as they had

been cited as eye witnesses. We are unable

to accept such a conclusion and that too in

a case of murder. The trial court has also

examined their evidence inter-se in a

broader perspective and has concluded that

it differed in material particulars as well.

10. As already indicated, the High Court has

been greatly influenced by the refusal of

the accused to join the test identification

parade. The evidence of PW-27 Inspector

2

Gordhan Singh is relevant in this

connection. He deposed that the accused had

been arrested from different places at

different times and that they had been

brought to Karnal and put in a lock up and

thereafter produced in court.

Significantly, the accused pointed out to

the Magistrate PW-27, as well as in their

statements in court, that they had been

shown to PWs.11 and 12 and also to the sons

of Siri Krishan in the Police Station. It

must be borne in mind that it is impossible

for an accused to prove by positive evidence

that he had been shown to a witness prior to

the identification parade but if suspicion

can be raised by the defence that this could

have happened, no adverse inference can be

drawn against the accused in such a case.

We are of the opinion that in the light of

the above facts and particularly the

uncertain eye witness account, and our

opinion that these witnesses had not seen

2

the incident and particularly the fact that

the High Court was dealing with an appeal

against acquittal and 5 of the 7 accused

stand acquitted as of now on the same

evidence, interference by the High Court was

not called for in the case of the appellant.

We accordingly allow this appeal, set aside

the judgment of the High Court and restore

that of the trial court and order the

appellant's acquittal.

..................................J. (HARJIT SINGH BEDI)

2nd September, 2011 NEW DELHI.

2

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELALTE JURISDICTION

CRIMINAL APPEAL No.925/2009

PREM SINGH .. Appellant

Versus

STATE OF HARYANA ..Respondent

DISSENTING JUDGMENT AND ORDER

GYAN SUDHA MISRA, J.

The High Court vide its impugned judgment and order

has convicted the appellant Prem Singh under Section 302

read with Section 34 I.P.C. along with the co-accused

Vishwa Bandhu essentially relying upon the testimony of

the two eye-witnesses PW-11 Sohan Lal and PW-12 Bharat

Lal who according to the prosecution had shot the deceased

victim-Siri Krishan on 26.11.1993 at 6.30 a.m. while he had

gone for a morning walk. The co-accused Vishwa Bandhu

has not preferred any appeal against his conviction and it

is only the appellant Prem Singh who has filed this appeal

and the other co-accused persons who were alleged to be in

3

the Maruti Car on which the accused-appellant had arrived

for killing the deceased Siri Krishan have been acquitted, as

the appellant and co-accused Vishwa Bandhu have been

held as hired shooters who killed the deceased from a point

blank range.

2. Having carefully and meticulously examining the

evidence of the eye-witnesses PW-11 and PW-12 in the light

of the other attending circumstances, I am of the considered

opinion that the learned Judges of the High Court were

justified in convicting the appellant Prem Singh under

Section 302/34 I.P.C. alongwith Vishwa Bandhu relying

upon the evidence of the two eye-witnesses whose

depositions in Court could not be contradicted by the

defence using the statements which were recorded under

Section 161, Cr.P.C. by PW-23 Inspector Om Prakash only

after a few hours of the incident at 12.30 p.m. on the date of

occurrence on 26.11.1993 as the incident of shooting had

taken place on the same date in the morning at 6.30 a.m for

which F.I.R. was registered at 9.25 a.m. These two eye-

witnesses who also had gone for a morning walk had their

residence quite near to the place of incident and were the

3

most natural witnesses who had watched the incident of

shooting from a close range at the deceased Siri Krishan.

If the prosecution had the intention merely to plant these

two witnesses PW-11 and PW-12 as eye-witnesses to prove

the prosecution story, then Vijay Kumar who had informed

the brother of the deceased about the incident would have

been a better option for the prosecution to plant him as

eye-witness but he has not even been examined.

3. The two eye-witnesses PW-11 and PW-12 have

given a graphic description of the incident and have stood

the test of scrutiny of cross-examination and had also

stated that they could identify the assailants, but the

accused had declined to participate in the test

identification parade on the ground that he had been shown

to the eye-witnesses in advance. In my considered view, it

was not open to the accused to refuse to participate in the

T.I. parade nor it was a correct legal approach for the

prosecution to accept refusal of the accused to participate in

the test identification parade. If the accused-appellant had

reason to do so, specially on the plea that he had been

shown to the eye-witnesses in advance, the value and

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admissibility of the evidence of T.I. Parade could have been

assailed by the defence at the stage of trial in order to

demolish the value of test identification parade. But merely

on account of the objection of the accused, he could not

have been permitted to decline from participating in the

test identification parade from which adverse inference can

surely be drawn against him at least in order to corroborate

the prosecution case.

4. In the matter of Shyam Babu V. State of Haryana,

(2008) 15 SCC 418 (425): AIR 2009 SC 577 where the

accused persons had refused to participate in T.I. parade, it

was held that it would speak volumes, about the

participation in the Commission of the crime specially if

there was no statement of the accused under Section 313

Cr. P.C. that he had refused to participate in the T.I. Parade

since he had been shown to the witnesses in advance. In

the matter of Munna v. State (NCT of Delhi), (2003) 4 Crimes

166: (2003) 7 JT 361 : AIR 2003 SC 3805 (3809) as also in

the State of Haryana Vs. Surender, (2007) 11 SCC 281 (284):

AIR 2007 SC 2312; in Teerath Singh (D) by LR v. State, 2007

(1) ALL LJ (NOR) 143 (UTR) the Supreme Court still further

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had been pleased to hold that if the statement of the

accused refusing to participate in T.I. Parade which was

recorded in the order of the Magistrate was missing under

Section 313 Cr.P.C., it was held that it was not open to the

accused to contend that the statement of the witnesses

made for the first time in Court identifying him should not

be relied upon.

5. The arguments advanced by the defence that the

two eye-witnesses were, in fact, not living in the

neighbourhood near the place of incident where they

claimed to have been living, in my opinion, is quite a far

fetched theory of the defence for once the witnesses

furnished their addresses stating that they lived merely 250

feets away from the place of occurrence and PW-11 was

also an employee of the brother-in-law of the deceased, his

testimony could not be dislodged merely on a speculative

story without any defence evidence to that effect that they

had not migrated from Sunam (Punjab) to Karnal (Haryana)

where the incident of shooting took place. In fact, the eye-

witnesses PW-11 and PW-12 whose statements were

recorded only after a few hours of the shooting and later

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deposed in Court without any variance or contradiction

have not only given graphic description of the incident, but

also described the colour of the car, the model of the car

which was white Maruti as also the car No. which could be

partially noticed as D-57 and had gone to the extent of

stating that the number plate of the car was smeared with

mud. In my view, it is not possible to brush aside all these

weighty evidences of the eye witnesses led by the

prosecution giving minute details so as to hold that they

were interested or partisan witnesses planted by the

prosecution party merely to support the prosecution

version.

6. It would further not be appropriate to overlook a

redeeming feature of the prosecution version that the

present case is not a case based on circumstantial evidence

but had happened during the morning walk of the deceased

where the two eye-witnesses from the neighbourhood had

the chance to witness the occurrence since they too had

gone for a morning walk, who had residence close by in the

neighbourhood. The defence version in order to demolish

the evidence of these two eye-witnesses is too far fetched

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and not worthy of credence in my opinion on the ground

that they in fact had not been living near the place of

incident as they had not even migrated to Karnal. The two

eye-witnesses narrated the complete chain of incident in

their deposition which they had witnessed and stands duly

corroborated by their statement which were recorded under

Section 161 Cr.P.C. merely after a few hours of the

occurrence and their version could not be contradicted by

the defence in any manner. The explanation that these

witnesses had not been living there at the address given,

does not stand to reason for if it were so, their statement

could not have been recorded only after a few hours of the

incident. The defence story that they were not living near

the place of occurrence clearly stands contradicted by the

161 Cr. P.C. statement of these witnesses as it is well

established that such statement is admissible at least for

contradiction.

7. The reason as to why the names of the eye

witnesses had not been mentioned in the FIR has been

convincingly explained as the FIR was registered in the

morning at 9.25 a.m. and only upon preliminary enquiry,

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which is most natural human conduct that it came to the

knowledge of the prosecution that these witnesses in fact

had not only seen the incident, but could also identify the

assailants. Perhaps, there would have been scope to ignore

the evidence of these two eye-witnesses on the plea that

they had not migrated to Karnal and were not living near

the place of incident if their statement had not been duly

recorded on the date of the incident under Section 161

Cr.P.C. But the fact that their statements were recorded

promptly and they also claimed to have identified the two

accused who had fired the shots at the deceased and the

appellant Prem Singh declined to participate in the test

identification parade is sufficient to draw a reasonable and

logical inference that the two eye-witnesses were in fact

credible witnesses and could not be disbelieved on the

specious plea that they were planted by the prosecution.

8. In fact, there is yet another reason not to

disbelieve these two witnesses for if the prosecution had

reason to falsely implicate the accused persons, it is the

master mind of the whole incident who was Daulat Ram

with whom the deceased had differences on account of

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property dealings, who could have been roped in but the

fact that Daulat Ram was not alleged to have shot the

deceased but got it executed through the hired assailants

that the appellant Prem Singh and Vishwa Bandhu (who

has not even appealed against his conviction and sentence)

stands duly proved beyond reasonable doubt by the two

eye-witnesses and their testimony cannot be disbelieved on

the ground that they were not living near the place of

incident as they had not migrated to Karnal. In my

considered opinion, the defence story is too weak and

speculative in order to brush aside the eye-witness account

on the plea that they were not living in the neighbourhood.

In fact, the prosecution witnesses have not even been cross-

examined by the defence on the point that the eye-witnesses

had not migrated to Karnal and were not living near the

place of occurrence which could brush aside the eye-witness

account.

9. I am, therefore, of the view that the High Court is

correct and legally justified in convicting the appellant Prem

Singh and Vishwa Bandhu (who has not appealed) under

Section 302/34 I.P.C. for shooting the deceased and hence,

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I uphold his conviction and sentence. Consequently, this

appeal is dismissed.

.........................

...J

(Gyan Sudha Misra)

New Delhi,

September 2, 2011

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 925 OF 2009

Prem Singh ....Appellant

Versus

State of Haryana ....Respondent

O R D E R

In view of the divergence in views, the Registry is

directed to place the matter before the Hon'ble the Chief

Justice of India for placing the matter before a larger Bench.

..................................J.

(HARJIT SINGH BEDI)

............................J (Gyan Sudha Misra)

2nd September, 2011 NEW DELHI.

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