LexHEM SINGH @ HEMU versus STATE OF HARYANA
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A B [2009) 7 S.C.R. 888 HEM SINGH @ HEMU v. STATE OF HARYANA Criminal Appeal No. 495 of 2008 MAY 6, 2009 [S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.] Penal code, 1860 - ss. 302, 307, 353134 - Prosecution under - Gun battle alleged between Police party and accused party - Resulting in death of one accused, one constable and C injury to one police official - Admission of Police witnesses that they did not know the accused from before - Tl Parade not conducted - Identification of the accused for the first time in the Court - Death of the constable found to be caused by service revolver of police - No recovery of such weapon alleged o to be causing injury- Conviction by courts below- On appeal, held: Identification of the accused, injuries from the alleged arms, existence of common object not proved - Murder of the constable also not proved to be from the weapon of the accused -Accused liable to be acquitted -Arms Act, 1959 - s. 25. E Appellants were prosecuted ulss. 302, 307, 353 rlw s. 34 IPC. Proseuction case was that PW 10 (police Inspector) got information that one 'S',, appellant-accused and one accused 'L' would be coming to a particular village. He deputed ASI (PW 3), constable (PW2) and a F constable 'L' to the said village in civil clothes. The accused recognized the policemen and opened fire and a gun battle ensued between them. Accused 'S' and constable 'L' died on the spot. PW 2 also received a gunshot injury. Accused 'L' absconded. Appellants- G accused were arrested. Accused 'H' was arrested in some other case wherein he, in police custody, admitted his involvement in the present case and that he and the absconded accused had fired at the constable (deceased). In that case, proceedings under Arms Act was H 888 - HEM SINGH @ HEMU V. STATE OF HARYANA 889 -; initiated against him, wherein he was acquitted. In the A instant case, charges u/ss. 353, 302, 307 rlw s. 34 IPC were framed against the accused persons. Additional charge uls. 25 of Arms Act was framed against accused 'V'. Trial court convicted all the accused u/ss. 302, 307, 353 rlw s. 34 IPC. Accused 'V' was acquitted of the charge uls. 25 of B Arms Act. High Court confirmed the conviction. Hence the present appeals. Allowing the appeals, the Court • HELD: 1 Courts, ordinarily, do not give much c credence to identification made in the court for the first time and that too after a long time. In the present case, P.Ws.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 D 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. Appellants were not known to the police officers, they were not involved in any other case. In fact, so far as appellant-accused 'H' is concerned, E no case at the relevant time was pending against him. Only because the deceased accused 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. [Paras 10 and 11] [ 898-G-H; F 899-A-C] Mahabir v. The State of Delhi 2008 (6) SCALE 52; Amitsingh Bhikamsing Thakur vs. State of Maharashtra (2007) 2 SCC 310; Bollavaram Pedda Narsi Reddy and Others v. G State of Andhra Pradesh (1991) 3 sec 434 - relied on. ..,. Nathuni Yadav vs. State of Bihar (1998 ) 9 SCC 238; Bharosi vs. State of M.P (2002) 7 SCC 239; S. Sudershan Reddy vs. State of A.P (2006) 10 SCC 163; State of UP vs. Sheo Lal and Ors 2009 (2) SCALE 582 - distinguished. H 890 SUPREME COURT REPORTS [2009] 7 S.C.R. A 2. It stands admitted that as on the date of r commission of offence appellant-accused 'H' was not involved in any other criminal case. Trial Judge did not frame any charge as against accused 'H' or accused 'S' ( for commission of offence under the Arms Act. It is also B undisputed that appellant-accused 'V' has been acquitted in the case of possessing a firearm. Three bullets were recovered by the investigating officer; two of them which had hit the deceased accused and the constable were fired from .38 bore revolver .. 38 bore revolvers indisputably were used by the police officers. P.W.2 however, received c a gunshot injury fired from .315 weapon. No su
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