REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 495 OF 2008

HEM SINGH @ HEMU     … APPELLANT

Versus

STATE OF HARYANA            … RESPONDENT

WITH

CRIMINAL APPEAL NO. 496 OF 2008  

VINOD @ RAJU & ANR. …APPELLANTS

Versus

STATE OF HARYANA          …RESPONDENT

J U D G M E N T

S.B. Sinha, J.

1. These two appeals arising out of a common judgment and order dated  

1.8.2006 passed by a Division Bench of the Punjab & Haryana High Court  

at  Chandigarh in Criminal  Appeal  Nos.  311-DB of 2005 and 392-DB of

2005 were taken up for hearing together and are being disposed of by this  

common judgment.   

2. Appellants  were  prosecuted for  commission  of  offences  punishable  

under Section 302, 307, 353 and 34 of the Indian Penal Code (for short,  

“IPC”).  They were, it is of some significance, not charged for commission  

of offence punishable under Section 25 of the Arms Act.   

3. The prosecution case is as under.

During the night intervening 24/25.12.1999, Inspector Kuldeep Singh  

(P.W.10)  received  a  secret  information  that  the  accused  Sattey  (since  

deceased), Sunil, Vinod, Hemu (appellants herein) and one Pappu @ Lilu  

(absconding) of U.P. (said to be dacoits), would be coming to Lakarpur. On  

the  basis  of  the  said  information,  Inspector  Kuldeep  Singh deputed  ASI  

Randhir Singh (P.W.3), Constable Ramesh Kumar (P.W.2) and Constable  

Lasker Singh (deceased) to the said village in civil cloths.  Allegedly, on  

recognizing the policemen, accused persons opened fire and a gun battle  

ensued between them.  Accused Sattey alias Satender received a gun shot  

injury.  He died on the spot.  Other accused persons were said to have fled  

away.  Constables Ramesh Kumar (P.W.2) and Lasker Singh chased them.  

While the exchange of fire was going on, Lasker Singh received a gunshot  

injury.  He also died on the spot. P.W. 2 also received a gunshot injury.   

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A First Information Report (“FIR” for short) was lodged by P.W.10 in  

respect of the aforesaid incident at about 1.30 a.m. registered as FIR No. 775  

dated 25.12.1999 under Sections 302, 307, 353 IPC and Sections 25, 45 and  

59 of the Arms Act at P.S. NIT Faridabad.   

On the same day, i.e. on 25.12.1999, P.W. 10 prepared a site plan in  

which the name of the appellant - Hemu was not mentioned.  

On or about 5.1.2000, P.W.10 arrested Vinod from Village Dagarpur,  

Police  Station  Khekhra  (UP).  He  was  interrogated  on  6.1.2000  and  

11.1.2000  and  on  the  basis  of  his  purported  disclosure,  a  pistol  was  

recovered.  On or about 19.1.2000, the Investigating Officer arrested Sunil  

from  Delhi  after  obtaining  warrants  of  his  arrest  and  recorded  his  

confessional statement on 23.1.2000.  He also took in possession the pistol  

and the car said to have been used by the accused on 25.12.1999.  

Indisputably, Hemu was arrested on 6.1.2000 by Inspector Palvinder  

Singh  (P.W.  17)  while  he  was  riding  on  a  red  Yamha  Motorcycle.  

Allegedly, a pistol was recovered from him.  A case under Section 302, 185,  

353 IPC and 27 Arms Act had been registered against him being FIR No. 4  

of 2000 at P.S Sarita Vihar, New Delhi. A disclosure statement of Hemu was  

recorded on or about 6.1.2000.  It is alleged that Hemu was forced to admit  

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his involvement in the present case and the said disclosure statement was  

obtained by undue influence and coercion at the hands of police.  

Indisputably, another disclosure statement of Hemu while he was in  

police custody on 2.2.2000 was recorded wherein it was mentioned that the  

Hemu and Lilu had fired at Constable Lasker Singh who had died.  A case  

under Arms Act was initiated against him.  He was acquitted in the aforesaid  

case by the learned Additional Sessions Judge, New Delhi in Appeal No.  

101 of 2001 holding that the alleged firearm was not in a working order and  

the same could not have been used.  

The postmortem was conducted on the bodies of Constable Lasker  

Singh and accused Sattey. The Postmortem reports were submitted and the  

recovered articles were taken in custody and a memo therefor was prepared.  

Accused Pappu could not  be arrested,  therefore,  he was declared a  

‘proclaimed offender’.

After completion of the investigation, charge sheet was filed against  

Hemu, Vinod, Sunil (appellants herein) and Pappu @ Lilu.  Charges under  

Section 353, 302, 307 IPC read with Section 34 IPC were framed against the  

accused persons while additional charge under Section 25 of the Arms Act  

was framed only against Vinod.    

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Accused persons denied the charges and claimed to be tried.  

4. A large number of witnesses were examined by the prosecution in  

support of its case.   

After  considering  the  materials  on  record,  the  learned  trial  judge,  

Faridabad held all the accused persons guilty for commission of the offences  

under  Sections  302,  307  and  353  of  IPC  read  with  Section  34  of  IPC.  

However, Vinod was acquitted in respect of the charge under Section 25 of  

the Arms Act.   

5. Criminal Appeals preferred thereagainst were dismissed by the High  

Court by reason of the impugned judgment, inter alia, holding:

“We  do  not  find  any  merit  in  the  arguments  advanced by the learned counsel for the appellants  that  since  no  injury  is  attributed  to  Hem  Singh  alias Hemu accused, therefore, he cannot be said to  have shared common intention with all the accused  because it has come in evidence that accused were  five in numbers.  Admittedly, accused Sattey and  other  accused  were  required  in  number  of  cases  relating to dacoity and other heinous crimes.  The  police  party  had  secret  information  and  was  following  them  with  an  intention  to  nab  them.  Such  accused  persons  who  always  remained  equipped with the loaded arms to face resistance of  any  kind  from  any  source,  certainly  had  the  common intention.  It is something different that  out  of  five  accused,  one  accused  namely  Sattey  died and the other ran away, whereas three accused  namely Hem Singh alias Hemu, Vinod and Sunil  

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were  arrested.   The  arms  were  recovered  from  them, therefore,  Hem Singh though has not been  attributed any injury, could not be said to have no  common object and did not participate in the crime  along  with  the  accused,  therefore,  complicity  of  accused Hem Singh alias  Hemu cannot  be  ruled  out  since  the  three  accused  were  arrested  and,  therefore, their conviction under Section 34 of IPC  was justiciable.   

No other point has been urged and no law  has been cited to assail the impugned judgment.  

The  close  scrutiny  of  the  trial  court  judgment does not suggest any apparent illegality  suggesting interference by us.”

6. It is not in dispute that none of the prosecution witness knew any of  

the accused – appellants.  However, in Column No.2 of the FIR, not only  

their names but also their parentage and complete addresses were stated. It  

is,  however,  not clear as to whether  the name of the accused Hemu was  

recorded  in  the  said  FIR or  not,  the  translated  version  thereof  has  been  

placed before us.    We may reproduce the same:

“At the Police Station On receipt of original writing a case (FIR)  

under  above  said  offence  has  been  registered,  Copies of FIR have been prepared as per procedure  which are being sent to the concerned officers as a  special  report  through  special  constable  Ram  Kishan  No.  1825.   Copy  of  police  file  together  with original writing is being sent to the Inspector  CIA for further investigation at the spot through in  

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coming  constable.   I,  the  Inspector/SHO  of  the  police station along with C. Shiv Parshad 1441. C.  Suraj  Mal  2106  on  official  Jeep  driven  by  C.  Sunder Singh 1824 proceed to the spot.

Sd/- Kuldeep Singh Insp./SHO P.S. NIT

Faridabad        Dt. 25.12.99

(in Hindi)  Received at 4.40 A.M. at my residence

Sd/-     CJM, Faridabad  

25.12.99”

7. Accused Hemu was arrested on 6.1.2000 at Delhi.  He was found to  

have been in possession of a firearm.  In that case, he is said to have been  

confessed his involvement in the present case.   He was arrested in this case  

on 22.1.2000 on the basis  of  a production warrant  issued from Delhi  by  

P.W.10.   

It, however, now stands admitted that as on the date of commission of  

offence  Hemu  was  not  involved  in  any  other  criminal  case.   It  is  also  

undisputed that accused Vinod has been acquitted in the case of possessing a  

firearm.   

We may furthermore place on record that three bullets were recovered  

by the investigating officer; two of them which had hit Accused Sattey and  

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Constable  Lasker  Singh  were  fired  from  .38  bore  revolver.   .38  bore  

revolvers indisputably were used by the police officers.   

P.W.2 Ramesh, however, received a gunshot injury fired from .315  

weapon.   No such weapon was recovered  from accused Sunil,  Vinod or  

Hemu.

So far as the recovery of weapon from Hemu and Sunil are concerned,  

as  noticed  hereinbefore,  Hemu  had  been  acquitted  of  the  charge  of  

possessing any weapon by a Delhi Court.   

So  far  as  the  finding  of  the  High Court  that  Sattey  and the  other  

accused persons were required in a number of cases for committing dacoity  

and other heinous crimes are concerned, we may notice that Kuldeep Singh  

(P.W. 10) categorically admitted that no case was pending against accused  

Hemu at the time of occurrence.  

8. The learned trial judge did not frame any charge as against Hemu or  

Sunil  for  commission of  offence under  the  Arms Act.   Even Vinod was  

acquitted of that charge.  

Appellants herein admittedly were not known to the police officers.  

Only Sattey was known to them.  P.W.1 – Anoop Singh in his deposition  

categorically admitted that he did not know the assailants previously.  After  

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their  arrest,  no  identification  parade  test  was  held.   Although  the  first  

informant as also witnesses in their depositions proceeded on the basis that  

all  the accused had been coming in a Maruti  Car and they were  heavily  

armed, no arm was recovered from any of them.   

The only statement which was relevant for this case had been made by  

P.W.2 – Ramesh Kumar in the following terms:

“Accused Sattey,  who has since  died said to his  companions pointing towards us, that police men  in plain clothes have come and called upon Lilu,  Hem Singh and Vinod to open fire on us.  Then  those  persons  who  were  five  in  number  started  firing at us.”

9. How their names could be taken is beyond anybody’s comprehension.  

Even two persons, namely, Lilu and Vinod were called by their first names.  

How the Officer In-charge even could ascertain their actual names has not  

been disclosed.  He admitted that apart from Sattey, he had not seen any  

accused persons on previous occasion.  Why despite the same, identification  

parade was not held has not been explained.  Appellants were identified only  

in court.   

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10. Mr. Rajeev Gaur ‘Naseem’ learned counsel appearing on behalf of the  

State  would  contend  that  identification  for  the  first  time  in  court  is  

permissible in law.   

There cannot be any dispute so far as the aforementioned proposition  

of law is concerned.   The said principle, however, should be applied having  

regard to the facts and circumstances of each case.  Courts, as is well known,  

ordinarily, do not give much credence to identification made in the court for  

the first time and that too after a long time.   

In  Mahabir v.  The State of Delhi [2008 (6) SCALE 52], this Court  

held:

“10. As was observed by this Court in  Matru v.   State of U.P. (1971 ) 2 SCC 75 identification tests  do  not  constitute  substantive  evidence.  They  are  primarily  meant  for  the  purpose  of  helping  the  investigating agency with an assurance that  their  progress with the investigation into the offence is  proceeding  on  the  right  lines.  The  identification  can only be used as corroborative of the statement  in  court.  (See  Santokh  Singh v.  Izhar  Hussain  (1973) 2 SCC 406). The necessity for holding an  identification  parade  can  arise  only  when  the  accused are not previously known to the witnesses.  The whole  idea of  a  test  identification parade is  that witnesses who claim to have seen the culprits  at the time of occurrence are to identify them from  the midst of other persons without any aid or any  other source. The test is done to check upon their  veracity.  In  other  words,  the  main  object  of  holding  an  identification  parade,  during  the  

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investigation  stage,  is  to  test  the  memory  of  the  witnesses based upon first impression and also to  enable the prosecution to decide whether all or any  of  them  could  be  cited  as  eyewitnesses  of  the  crime.  The  identification  proceedings  are  in  the  nature of tests and significantly, therefore, there is  no  provision  for  it  in  the  Code  and  the  Indian  Evidence Act, 1872 (in short the 'Evidence Act'). It  is desirable that a test identification parade should  be conducted as soon as possible after the arrest of  the accused. This becomes necessary to eliminate  the possibility of the accused being shown to the  witnesses  prior  to  the  test  identification  parade.  This is a very common plea of the accused and,  therefore,  the  prosecution  has  to  be  cautious  to  ensure  that  there  is  no  scope  for  making  such  allegation. If, however, circumstances are beyond  control and there is some delay, it cannot be said to  be fatal to the prosecution.”

11. It is trite to say that the substantive evidence  is  the  evidence  of  identification  in  Court.  Apart  from  the  clear  provisions  of  Section  9  of  the  Evidence Act, the position in law is well settled by  a  catena  of  decisions  of  this  Court.  The  facts,  which establish the identity of the accused persons,  are relevant under Section 9 of the Evidence Act.  As  a  general  rule,  the  substantive  evidence  of  a  witness  is  the  statement  made  in  Court.  The  evidence  of  mere  identification  of  the  accused  person at the trial for the first time is from its very  nature inherently of a weak character.”  

{See also Amitsingh Bhikamsing Thakur vs. State of Maharashtra [(2007) 2  

SCC 310]}

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In the present case, P.W.1, 2 and 3 in their depositions admitted that  

they had not been knowing the accused from before and despite so, no test  

identification parade was held.  The accused persons having been identified  

for the first time in the court, it is difficult for any court to rely upon the  

same and that too after such a long time.   

11. As indicated hereinbefore,  appellants were not known to the police  

officers; they were not involved in any other case.  In fact, so far as the  

Hemu is concerned, no case at the relevant time was pending against him.  

Only because Sattey allegedly called them by their names, which appears to  

be wholly unlikely, they could not have been identified particularly in view  

of the fact that the incident had taken place in an isolated area and that too  

on a dark night.  

In Bollavaram  Pedda  Narsi  Reddy  and  Others v.  State  of  Andhra  

Pradesh, [(1991) 3 SCC 434)], this Court held:

“In the present case, the appellants are admittedly  persons  with  whom  the  two  witnesses  had  no  previous  acquaintance.  The  occurrence  happened  on a dark night.  When the crime was committed  during the hours of darkness and the assailants are  utter strangers to the witnesses,  the identification  of the accused persons assumes great importance.  The  prevailing  light  is  a  matter  of  crucial  significance.  The  necessity  to  have  the  suspects  

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identified by the witnesses soon after their arrest  also arises…”

In  Nathuni  Yadav vs.  State  of  Bihar [(1998  )  9  SCC  238],  

whereupon reliance has been placed by the learned counsel for the State,  

this Court observed that the lack of moonlight or artificial light does not  

per se preclude identification of the assailants. It was noted as follows  

(particularly where the accused are known from before):

“Even assuming that there was no moonlight then,  we  have  to  gauge  the  situation  carefully.  The  proximity  at  which  the  assailants  would  have  confronted with the injured, the possibility of some  light reaching there from the glow of stars, and the  fact that the murder was committed on a roofless  terrace  are  germane factors  to  be borne in  mind  while judging whether the victims could have had  enough  visibility  to  correctly  identify  the  assailants. Over and above those factors, we must  bear  in  mind  the  further  fact  that  the  assailants  were no strangers  to the inmates of  the tragedy- bound  house,  the  eyewitnesses  being  well  acquainted with the physiognomy of each one of  the  killers.  We  are,  therefore,  not  persuaded  to  assume that it would not have been possible for the  victims  to  see  the  assailants  or  that  there  was  possibility  for  making  a  wrong  identification  of  them. We are keeping in mind the fact that even  the  assailants  had  enough  light  to  identify  the  victims whom they targeted without  any mistake  from  among  those  who  were  sleeping  on  the  terrace. If the light then available, though meagre,  was enough for the assailants why should we think  that the same light was not enough for the injured  

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who would certainly have pointedly focussed their  eyes on the faces of the intruders standing in front  of them. What is sauce for the goose is sauce for  the gander.”

The  said  principle  was  reiterated  in  Bharosi vs.  State  of  M.P.  

[(2002) 7 SCC 239] and S. Sudershan Reddy vs. State of A.P. [(2006) 10  

SCC 163].  

{See also State of U.P. vs. Sheo Lal & Ors. [2009 (2) SCALE 582]}

However, in our opinion, the said principle is not applicable in the  

present  case as  there  was no specific  targeting by the  assailants  here.  

What ensued between the parties was a pitched gun battles which lasted  

for  only  five  to  six  minutes  close  to  midnight  and  that  too  at  a  

considerable distance.  

12. Mr.  Naseem  would  also  submit  that  as  Sattey  was  involved  in  

commission of a large number of offences, all others could be proceeded  

against for commission of offence under Section 302/49 of the IPC.   

Reliance  in  this  behalf  has been placed on  Yunis  Alias  Kariya  vs.  

State of M.P. [(2003) 1 SCC 425], wherein it was held:

“9. The learned counsel appearing for appellant  Liyaquat argued that no overt act is imputed to his  

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client  and  he  was  being  implicated  only  on  the  basis of Section 149 IPC.  This argument, in our  view, has no merit. Even if no overt act is imputed  to  a  particular  person,  when the charge is  under  Section 149 IPC, the presence of  the accused as  part  of  an  unlawful  assembly  is  sufficient  for  conviction.”

Although the proposition of law enunciated therein is not in question,  

herein  no charge under  Section 149 has  been framed.   Existence  of  any  

common object amongst the accused had also not been proved.

13. Sattey  furthermore  could  not  have  been  instrumental  in  murdering  

Lasker Singh.  Laskar Singh died of  a firearm injury shot  from a service  

revolver, i.e., at the hands of the police party only.  Such a revolver, thus,  

was not and could not have been used by any of the accused persons.  

14. For the aforementioned reasons, the impugned judgment of the High  

Court  cannot  be  upheld.   The  appeals  are  allowed.   The  appellants  are  

directed to be set at liberty unless wanted in connection with any other case.  

.……………………………….J. [S.B. Sinha]

...…………………………..…J. [Dr. Mukundakam Sharma]

New Delhi; May 06, 2009

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