State of Himachal Pradesh v. Ravinder Singh alias Pinki & others

prepared and presented before the learned Trial Court.

#3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, they were charged with the commission of offences punishable under Section 353and 332 read with Section 34 of the IPC, to which they pleaded not guilty and claimed to be tried.

#4. The prosecution examined nine witnesses to prove case. HHC Naginder Singh (PW-1) informant/victim.HHC Hem Singh (PW-2) is an eyewitness.HC Naresh Kumar (PW-3), Virender Singh (PW-6) and Constable Avtar Singh (PW-7) are the witnesses to the recovery.Dr R.K. Dhiman(PW-4) medically examined the victim. Daulat Ram (PW-5) proved the entry in the daily diary. ASI Narender Singh (PW-8) investigated the matter. Ravinder Singh (PW-9)did not support the prosecution's case.

#5. The accused, in their statements recorded under Section 313 of CrPC, denied the prosecution’s case in its entirety. They claimed that witnesses were interested and that they deposed falsely against the accused. The accused did not lead any defence in evidence. 5

#6. Learned Trial Court held that the testimony of the informant/victim was duly corroborated by the statement of HHC Hem Singh. These testimonies were duly corroborated by the medical evidence. There was nothing in the cross- examination of the witness to show that they were deposing falsely. The testimonies of police officials cannot be doubted because of their official position. The informant was discharging official duties, and the accused had obstructed him in the discharge of official duties. Therefore, the learned Trial Court convicted the accused for the commission of offences punishable under Section 353 and 332 read with Section 34 of the IPC and sentenced them as under: Section Sentence 332 of IPC 353 of IPC The accused were sentenced to undergo simple imprisonment for a period of one and a half years each, pay a fine of ₹1000/- each and, in default of payment of fine, to undergo further simple imprisonment for one month each. The accused were sentenced to undergo simple imprisonment for a period of one year each, pay a fine of ₹1000/- each and, in default of payment of fine, to undergo further simple imprisonment for one month each. Both the sentences were ordered concurrently. 6

#7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused filed an appeal, which was decided by the learned Appellate Court. Learned Appellate Court held that the testimony of the informant was not satisfactory. He had named Pinki @ Ravinder, Pappi and Jasbir as the assailants before the police; however, he changed this version in the Court. Ravinder Singh (PW-9) did not support the prosecution's case. The identity of the assailants was not proved. There was no evidence that the informant knew the accused before the incident. Therefore, the test identification parade was essential. The accused were not proved to be the assailants. The police had not recovered the iron rod, which was used during the incident. There was an interpolation in the entry, which adversely affected the prosecution's case. The prosecution's case was not proved beyond a reasonable doubt; hence, the judgment and order passed by the learned Trial Court were set aside and the accused were acquitted.

#8. Being aggrieved by the judgment of the learned Appellate Court, the State has filed the present appeal asserting that the learned Appellate Court erred in setting aside the well- reasoned judgment of the learned Trial Court. The testimonies of the official witnesses were discarded without any cogent 7 reason. The prosecution's case could not have been doubted due to overwriting in the entry in the daily diary. Even if the time of departure was changed from 8 to 5, that would not make any difference because the incident occurred at 9:30 p.m. The accused had stopped the vehicle and given beatings to the informant; therefore, the informant had sufficient opportunity to look at the accused, and the prosecution's case could not have been doubted for want of identification. Ravinder Singh (PW-9) had turned hostile in connivance with the accused, and his testimony should not have been used to discard the prosecution's case. Non-recovery of the weapon of offence will not make the prosecution's case doubtful. The medical evidence corroborated the statements of witnesses. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Appellate Court be set aside.

#9. I have heard Mr Ajit Sharma, learned Deputy Advocate General, for the appellant/State and Mr Neel Kamal Sharma, learned counsel for respondents No. 2 and 3.

#10. Mr Ajit Sharma, learned Deputy Advocate General for the appellant/State, submitted that the learned Trial Court had convicted the accused by passing a well-reasoned 8 judgment. Learned Appellate Court set aside the judgment of the learned Trial Court without any cogent reason. The accused were present on the spot for a considerable time, and the victim/injured had sufficient time to recognise them. There was no necessity to conduct a test identification parade, and the learned Appellate Court erred in acquitting the accused for want of a test identification parade. The overwriting at the time of departure of the informant was not material because the incident had taken place at 9:30 p.m., and the departure of the informant from the Police Station, even at 8:00 p.m., would not make the prosecution's case suspect. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Appellate Court be set aside.

#11. Mr. Neel Kamal Sharma, learned counsel for respondents No.2 and 3, submitted that the learned Appellate Court had rightly held that the identity of the assailants was not established. There were variations in the names of the assailants. The test identification was necessary to show that the accused were the assailants. The learned Appellate Court was justified in doubting the identity of the accused in the absence of a Test Identification Parade. Learned Appellate Court had taken a reasonable view which could have been taken based 9 upon the material placed before the learned Appellate Court, and this Court should not interfere with the reasonable view of the learned Appellate Court, even if another view is possible. He prayed, that the present appeal be dismissed.

#12. I have given considerable thought submissions made at the bar and have gone through the records carefully.

#13. The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon’ble Supreme Court in Surendra Singh v. State of Uttarakhand, 2025 SCC OnLine SC 176: (2025) 5 SCC 433 that the Court can interfere with a judgment of acquittal if it is patently perverse, is based on misreading/omission to consider the material evidence and reached at a conclusion which no reasonable person could have reached. It was observed at page 440: case ofBabu “11.Recently, Sahebagouda Rudragoudarv. State of Karnataka 2024 SCC OnLine SC 4035, a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus: “38.First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging the 10 acquittal of the accused recorded by the trial court.

#39. This Court inRajesh Prasadv. State of Bihar[Rajesh Prasadv. State of Bihar,(2022) 3 SCC 471: (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below: (SCC pp. 482-83, para 29) “29.After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case[Chandrappav. State of Karnataka,(2007) 4 SCC 415:(2007) 2 SCC (Cri) 325], SCC p. 432, para 42) ‘42.From the above decisions, in our considered view, the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973, puts no limitation, restriction or condition on the exercise of such power and an appellate court, on the evidence before it, may reach its own conclusion, both on questions of fact and law. (3) Various expressions, such as “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc., are not intended to curtail the 11 extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” emphasise reluctance of an appellate court to interfere with an acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. a favour (4) An appellate court, however, must bear in mind that in the case of double acquittal, presumption accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused, having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” inH.D. Sundarav. State Sundarav. State

#40. Further, Karnataka[H.D. Karnataka,(2023) 9 SCC 581: (2023) 3 SCC (Cri) 748], this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows: (SCC p. 584, para 8)

8.…8.1.The acquittal of the accused further strengthens the presumption of innocence. 12

8.2.The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence.

8.3.The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record.

8.4.If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and

8.5.The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”

#41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles:

41.1.That the judgment of acquittal suffers from patent perversity.

41.2.That misreading/omission evidence on record; and a to consider material

41.3.That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.”

#12. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal 13 recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.”

#14. The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

#15. F.I.R. (Ext.PW-1/A) mentions that three persons, Pappi @ Rakesh, Pinkki and Jasbir got down from the vehicle. Pappi caught the informant by his neck, and Pinki inflicted a blow by means of an iron rod. Pappi and Jabir gave beatings to the informant. The police conducted the investigation and filed the charge-sheet against Ravinder Singh alias Pinki, Suresh Kumar alias Pappi and Satbir Singh alias Jasbir. No person had deposed that the accused Ravinder Singh was known as Pinki, Surkesh Kumar was known as Pappi and Satbir Singh was known as Jasbir. Further, the F.I.R. specifically mentioned that Pappi alias Rakesh had inflicted blows, and it was nowhere stated that Suresh Kumar alias Pappi had inflicted the injury on the informant.

#16. The informant stated on oath that Pappi, Pinki and Jasbir got out of the vehicle. Pinki was armed with an iron rod. The assailants gave him beatings, and he sustained injuries.He 14 had not stated Pinkki was known as Ravinder, Pappi was known as Suresh Kumar and Satbir Singh was known as Jasbir. Therefore, his testimony does not establish the identity of the accused.

#17. HHC Hem Singh (PW-2) stated that the accused came out of the vehicle bearing registration No. HP28-2305 and gave beatings to Narinder Kumar (PW-1) with kicks and fists blow. One of the accused inflicted a blow by means of an iron rod. All the accused tore the shirt of the informant.

#18. Statement of this witness is also silent regarding the fact that Ravinder is known as Pinki, Suresh Kumar is known as Pappi, and Satbir Singh is known as Jasbir. Therefore, the learned Appellate Court had rightly held that a identification parade was necessary to ascertain the power of observation of the informant and HHC Hem Singh (PW-2).

#19. It was submitted that the informant and HHC Hem Singh had identified the accused in the Court, and the previous test identification parade was not necessary. This submission will not help the prosecution. Professor Rupert Cross has stated in his celebrated treatise, Cross on Evidence, Fifth Edition, 15 Butterworths, that identification of the accused for the first time in the dock is highly suspect. He observed: "It might be thought that in criminal cases there could not be better identification of an accused than that of a witness who goes into the box and swears that the man in the dock is the one he saw coming out of a house at a particular time, or the man who assaulted him. Nevertheless, such evidence is suspect where there has been no previous identification of the accused by the witness, and this is because its weight is reduced by the reflection that, if there is any degree of resemblance between the man in the dock and the person previously seen by him. The witness may very well think to himself that the police must have got hold of the right person, particularly if he has already described the latter to them, with the result that he will be inclined to swear positively to a fact of which he is by no means certain. People have mistakenly identified friends and relations well known to them with sufficient frequency to make them question the propriety of convicting an accused person on nothing more than the visual identification of a single witness who may only have had a fleeting glance of him in poor light."

#20. It has been stated in Halsbury's Laws of England 4th Edition Volume 2 that the identification of the accused for the first time in the Court is improper and the witness should be asked to identify the accused in a prior test identification parade. It has been observed in para 363: “It is undesirable that a witness should be asked to identify the defendant for the first time in the dock at his trial; and as a general practice, it is preferable that he should have been placed previously in a parade with 16 other persons, so that potential witnesses may be asked to pick him up.”

#21. It was laid down by the Hon’ble Supreme Court in P. Sasikumar v. State of T.N., (2024) 8 SCC 600: (2024) 3 SCC (Cri) 791: 2024 SCC OnLine SC 1652 that when the accused were not known to the witnesses on the date of the incident, their identification in the dock is not acceptable. It was observed at page 605: “17.The admitted position in this case is that the test identification parade (hereinafter referred to as “TIP”) was not conducted. All the prosecution witnesses who identified the accused in the Court, such as PW 1 and PW 5, were not known to the present appellant, i.e. Accused 2. They had not seen the present appellant before the said incident. He was a stranger to both of them. More importantly, appellant/Accused 2 on the date of the crime while he was wearing a “green-coloured monkey cap”!

#21. It is well settled that TIP is only a part of the police investigation. The identification in TIP of an accused is not a substantive piece of evidence. The substantive piece of evidence, or what can be called evidence, is only dock identification, that is, identification made by a witness in court during the trial. This identification has been made in court by PW 1 and PW 5. The High Court rightly dismisses the identification made by PW 1 for the reason that the appellant i.e. Accused 2 was a stranger to PW 1 and PW 1 had seen the appellant for the first time when he was wearing a monkey cap, and in the absence of TIP to admit the identification by PW 1 made for the first time in the court was not proper. 17

#23. We are afraid the High Court has gone completely wrong in believing the testimony of PW 5 as to the identification of the appellant. In cases where the accused is a stranger to a witness and there has been no TIP, the trial court should be very cautious while accepting the dock identification by such a witness (see:Kunjumonv. State of Kerala, (2012) 13 SCC 750: (2012) 4 SCC (Cri) 406]).

#27. In the facts of the present case, the identification of the accused before the court ought to have been corroborated by the previous TIP, which has not been done. The emphasis of TIP in a given case is of vital importance as has been shown by this Court in recent two cases ofJayanv. State of Kerala[Jayanv. State of Kerala, (2021) 20 SCC 38] andAmrik Singhv. State of Punjab[Amrik Singh v. State of Punjab, (2022) 9 SCC 402: (2023) 2 SCC (Cri) 404].