Himachal Pradesh High Court
Reserved On 01.04.2025 vs Prem Singh on 8 April, 2025
Bench: Tarlok Singh Chauhan, Sushil Kukreja
1 Neutral Citation No. ( 2025:HHC:9716-DB )
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeal No. 306 of 2014
Reserved on 01.04.2025
Decided on: 08.04.2025
_____________________________________________________
State of Himachal Pradesh …..Appellant.
Versus
Prem Singh ......Respondent.
_____________________________________________________
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon’ble Mr. Justice Sushil Kukreja, Judge.
1
Whether approved for reporting? No.
_____________________________________________________
For the appellant: Mr. I.N. Mehta and Mr. Yashwardhan
Chauhan, Senior Additional
Advocates General, Mr. Ramakant
Sharma, Ms. Sharmila Patial, Mr.
Sushant Kaprate, Additional
Advocates General, and Mr. Raj Negi,
Deputy Advocate General.
For the respondent/State: Mr. Lakshay Thakur, Advocate.
Sushil Kukreja, Judge.
The instant appeal has been preferred by the
appellant/State under Section 378 Cr.P.C. against judgment dated
25.07.2013, passed by learned Additional Sessions Judge,
Sirmaur District at Nahan, H.P., in Sessions Trial No. 17-N/7 of
2007, whereby the accused (respondent herein) was acquitted
from the charges under Sections 224, 225, 332, 353, 333, 460,
506-B, 120-B, 382 and 392 of the Indian Penal Code (for short
1
Whether reporters of Local Papers may be allowed to see the judgment?
2 Neutral Citation No. ( 2025:HHC:9716-DB )
‘IPC‘) and under Section 25 of the Arms Act.
2. The facts giving rise to the present appeal, as per the
prosecution story, can be summarized as under:
2(a). On 05.02.2005 at District Court Complex, Nahan, as
well as Regional Hospital, Nahan, one Harjeet Singh was in
judicial custody and he was lodged in Model Central Jail, Nahan
and was being treated in the hospital at Nahan. It has further
come in the prosecution story that accused Prem Singh, entered in
conspiracy with co-accused Harmeet @ Punnu, Kapil Sahani,
Kunal, Ashok Kumar, Kala etc., to get Harjeet Singh escaped from
the lawful custody. On 05.02.2005, around 08:00/08:15 p.m.,
accused persons committed trespass in Regional Hospital, Nahan,
where Harjeet Singh was admitted for treatment, by house
breaking in the night and they got escaped Harjeet Singh from the
custody of HC Jaswant Singh No. 149 and Constable Kesar Singh
No. 885, in which he was lawfully detained. It has also come in
the prosecution story that the accused persons voluntarily caused
grievous hurt to HC Jaswant Singh, while he was discharging his
duty as a public servant.
2(b). HC Jaswant Singh reported the matter to the police,
whereupon his statement was recorded and FIR was registered.
During the course of the investigation, Constable Kesar Singh and
3 Neutral Citation No. ( 2025:HHC:9716-DB )
HC Jaswant Singh were medically examined at R.H. Nahan. As
per the medical opinion, injuries No. 2 to 4 sustained by HC
Jaswant Singh were grievous in nature. It was unearthed during
the police investigation that vehicle, bearing registration No. CH-
03F-6657, in which accused Prem Singh took accused Harjeet
Singh, met with an accident at Kala Amb with a canter, bearing
registration No. HP-18-3137 and they left their unnumbered car on
the road side and also snatched the mobile phone of the driver of
the canter and had fled towards Kala Amb by leaving the car.
Police recorded the statements of the witnesses and completed all
the codal formalities. After completion of the investigation, police
presented the challan in the learned Trial Court.
3. The learned Trial Court took cognizance against the
accused and charges under Sections 120B, 224, 225, 333 and 460
of IPC were framed against him. The prosecution, in order to
prove its case, examined twelve witnesses. Statement of the
accused under Section 313 Cr.P.C. was recorded, wherein he
stated that he was falsely implicated. However, he did not
examine any witness in his defence.
4. The learned Trial Court, vide impugned judgment dated
25.07.2013 acquitted the accused, hence the instant appeal
preferred by the appellant/State.
4 Neutral Citation No. ( 2025:HHC:9716-DB )
5. We have heard the learned Senior Additional Advocate
General for the appellant/State, learned counsel for the
accused/respondent and carefully examined the entire records.
6. The learned Senior Additional Advocate General for the
appellant/State contended that the learned Trial Court has ignored
the relevant material and not appreciated the statements of the
witnesses in its right perspective. The learned Trial Court took a
hyper technical view and the impugned judgment is based on
surmises and conjectures, thus liable to be quashed and set-aside.
7. Conversely, the learned counsel for the
accused/respondent contended that the impugned judgment
passed by the learned Trial Court is the result of proper
appreciation of the material on record and the same was passed
after appreciating the evidence and law in its right and true
perspective. He has further contended that there are major
contradictions in the statements of the prosecution witnesses.
Lastly, he has prayed that the instant appeal, being devoid of
merits, be dismissed.
8. It is well settled by the Hon’ble Apex Court in a catena of
decisions that an Appellate Court has full power to review, re-
appreciate and reconsider the evidence upon which the order of
acquittal is founded. However, Appellate Court must bear in mind
5 Neutral Citation No. ( 2025:HHC:9716-DB )
that in case of acquittal there is double presumption in favour of
the 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.
Further, if two reasonable views 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.
9. The scope of power of appellate court in case of
appeal against acquittal has been dealt with by the Hon’ble Apex
Court in case titled Muralidhar alias Gidda & another vs. State
of Karnatka reported in (2014)5 SCC 730, which read as under:
“10. Lord Russell in Sheo Swarup[1], highlighted the
approach of the High Court as an appellate court
hearing the appeal against acquittal. Lord Russell
said, “… the High Court should and will always
give proper weight and consideration to such
matters as (1) the views of the trial Judge as to the
credibility of the witnesses; (2) the presumption of
innocence in favour of the accused, a presumption
certainly not weakened by the fact that he has
been acquitted at his trial; (3) the right of the
accused to the benefit of any doubt; and (4) the
slowness of an appellate court in disturbing a
finding of fact arrived at by a Judge who had the
advantage of seeing the witnesses.” The opinion of
the Lord Russell has been followed over the years.
11. As early as in 1952, this Court in Surajpal Singh[2]
while dealing with the powers of the High Court in
an appeal against acquittal under Section 417 of
the Criminal Procedure Code observed,
“7………..the High Court has full power to review
6 Neutral Citation No. ( 2025:HHC:9716-DB )
the evidence upon which the order of
acquittal was founded, but it is equally well
settled that the presumption of innocence
of the accused is further reinforced by his
acquittal by the trial court, and the findings
of the trial court which had the advantage of
seeing the witnesses and hearing their
evidence can be reversed only for very
substantial and compelling reasons.
12. The approach of the appellate court in the appeal
against acquittal has been dealt with by this Court
in Tulsiram Kanu[3], Madan Mohan Singh[4],
Atley[5] , Aher Raja Khima[6], Balbir Singh[7], M.G.
Agarwal[8], Noor Khan[9], Khedu Mohton[10],
Shivaji Sahabrao Bobade[11], Lekha Yadav[12],
Khem Karan[13], Bishan Singh[14], Umedbhai
Jadavbhai[15], K. Gopal Reddy[16], Tota Singh[17],
Ram Kumar[18], Madan Lal[19], Sambasivan[20],
Bhagwan Singh[21], Harijana Thirupala[22], C.
Antony[23], K. Gopalakrishna[24], Sanjay
Thakran[25] and Chandrappa[26]. It is not
necessary to deal with these cases individually.
Suffice it to say that this Court has consistently
held that in dealing with appeals against acquittal,
the appellate court must bear in mind the
following:
(i) There is presumption of innocence in
favour of an accused person and such
presumption is strengthened by the order
of acquittal passed in his favour by the trial
court,
(ii) The accused person is entitled to the
benefit of reasonable doubt when it deals
with the merit of the appeal against
acquittal,
(iii) Though, the power of the appellate court in
considering the appeals against acquittal
are as extensive as its powers in appeals
against convictions but the appellate court
is generally loath in disturbing the finding
of fact recorded by the trial court. It is so
because the trial court had an advantage of
seeing the demeanor of the witnesses. If the
trial court takes a reasonable view of the
facts of the case, interference by the
appellate court with the judgment of
acquittal is not justified.
Unless, the conclusions reached by the trial
court are palpably wrong or based on
erroneous view of the law or if such
conclusions are allowed to stand, they are
likely to result in grave injustice, the
reluctance on the part of the appellate court
in interfering with such conclusions is fully
justified, and
(iv) Merely because the appellate court on re-
7 Neutral Citation No. ( 2025:HHC:9716-DB )
appreciation and re-evaluation of the
evidence is inclined to take a different view,
interference with the judgment of acquittal
is not justified if the view taken by the trial
court is a possible view. The evenly
balanced views of the evidence must not
result in the interference by the appellate
court in the judgment of the trial court.”
10. The Hon’ble Supreme Court in Rajesh Prasad vs.
State of Bihar & another, (2022) 3 Supreme Court Cases 471,
observed as under:
“31. The circumstances under which an appeal would
be entertained by this Court from an order of
acquittal passed by a High Court may be
summarized as follows:
31.1. Ordinarily, this Court is cautious in interfering with
an order of acquittal, especially when the order of
acquittal has been confirmed up to the High Court.
It is only in rarest of rare cases, where the High
Court, on an absolutely wrong process of
reasoning and a legally erroneous and perverse
approach to the facts of the case, ignoring some of
the most vital facts, has acquitted the accused,
that the same may be reversed by this Court,
exercising jurisdiction under Article 136 of the
Constitution. [State of U.P. v. Sahai (1982) 1 SCC
352] Such fetters on the right to entertain an
appeal are prompted by the reluctance to expose a
person, who has been acquitted by a competent
court of a criminal charge, to the anxiety and
tension of a further examination of the case, even
though it is held by a superior court. [Arunchalam
v. P.S.R. Sadhanantham (1979) 2 SCC 297] An
appeal cannot be entertained against an order of
acquittal which has, after recording valid and
weighty reasons, has arrived at an unassailable,
logical conclusion which justifies acquittal. [State
of Haryana vs. Lakhbir 1991 Supp (1) SCC 35
31.2. However, this Court has on certain occasions, set
aside the order of acquittal passed by a High
Court. The circumstances under which this Court
may entertain an appeal against an order of
acquittal and pass an order of conviction, may be
summarized as follows:
31.2.1. Where the approach or reasoning of the High
Court is perverse;
(a) Where incontrovertible evidence has been
rejected by the High Court based on suspicion
and surmises, which are rather unrealistic.
[State of Rajasthan v. Sukhpal Singh (1983) 1
8 Neutral Citation No. ( 2025:HHC:9716-DB )
SCC 393] For example, where direct,
unanimous accounts of the eyewitnesses, were
discounted without cogent reasoning. [State of
U.P. vs. Shanker 1980 Supp SCC 489]
(b) Where the intrinsic merits of the testimony of
relatives, living in the same house as the
victim, were discounted on the ground that
they were “interested” witnesses. [State of U.P.
v. Hakim Singh (1980)
(c) Where testimony of witnesses had been
disbelieved by the High Court, on an
unrealistic conjecture of personal motive on
the part of witnesses to implicate the accused,
when in fact, the witnesses had no axe to grind
in the said matter. [State of Rajasthan v.
Sukhpal Singh (1983) 1 SCC 393]
(d) Where dying declaration of the deceased
victim was rejected by the High Court on an
irrelevant ground that they did not explain the
injury found on one of the persons present at
the site of occurrence of the crime.
[Arunachalam vs. P.S.R. Sadhanantham (1979)
2 SCC 297]
(e) Where the High Court applied an unrealistic
standard of “implicit proof” rather than that of
“proof beyond reasonable doubt” and
therefore evaluated the evidence in a flawed
manner. [State of U.P. v. Ranjha Ram (1986) 4
SCC 99]
(f) Where the High Court rejected circumstantial
evidence, based on an exaggerated and
capricious theory, which were beyond the plea
of the accused; [State of Maharashtra v.
Champalal Punjaji Shah (1981) 3 SCC 610]
(g) Where the High Court acquitted the accused on
the ground that he had no adequate motive to
commit the offence, although, in the said case,
there was strong direct evidence establishing
the guilt of the accused, thereby making it
necessary on the part of the prosecution to
establish “motive”. [State of A.P. v. Bogam
Chandraiah (1990) 1 SCC 445]
31.2.2. Where acquittal would result is gross miscarriage
of justice;
(a) Where the findings of the High Court,
disconnecting the accused persons with the
crime, were based on a perfunctory
consideration of evidence, [State of U.P. v.
Pheru Singh 1989 Supp (1) SCC] or based on
extenuating circumstances which were purely
based in imagination and fantasy [State of U.P.
v. Pussu (1983) 3 SCC 502]
(b) Where the accused had been acquitted on
ground of delay in conducting trial, which
delay was attributable not to the tardiness or
indifference of the prosecuting agencies, but to
the conduct of the accused himself; or where
accused had been acquitted on ground of
delay in conducting trial relating to an offence
9 Neutral Citation No. ( 2025:HHC:9716-DB )
which is not of a trivial nature. [State of
Maharashtra v. Champalal Punjaji Shah (1981)
3 SCC 610]”
11. In H.D. Sundara & others vs. State of Karnataka,
(2023) 9 Supreme Court Cases 581, the Hon’ble Supreme Court
has observed that the appellate court cannot overturn acquittal
only on the ground that after reappreciating evidence, it is of the
view that the guilt of the accused was established beyond a
reasonable doubt. The relevant portion of the above judgment is
as under:
“8. In this appeal, were are called upon to consider the
legality and validity of the impugned judgment
rendered by the High Court while deciding an
appeal against acquittal under Section 378 of the
Code of Criminal Procedure, 1973 (for short
“CrPC“). The principles which govern the exercise
of appellate jurisdiction while dealing with an
appeal against acquittal under Section 378 CrPC
can be summarized as follows:
8.1. The acquittal of the accused further strengthens
the presumption of innocence;
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 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; and8.5. 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.
9. Normally, when an appellate court exercises
appellate jurisdiction, the duty of the appellate
court is to find out whether the verdict which is
10 Neutral Citation No. ( 2025:HHC:9716-DB )under challenge is correct or incorrect in law and
on facts. The appellate court normally ascertains
whether the decision under challenge is legal or
illegal. But while dealing with an appeal against
acquittal, the appellate court cannot examine the
impugned judgment only to find out whether the
view taken was correct or incorrect. After
reappreciating the oral and documentary evidence,
the appellate court must first decide whether the
trial court’s view was a possible view. The
appellate court cannot overturn acquittal only on
the ground that after reappreciating evidence, it is
of the view that the guilt of the accused was
established beyond a reasonable doubt. Only
recording such a conclusion an order of acquittal
cannot be reversed unless the appellate court also
concludes that it was the only possible
conclusion. Thus, the appellate court must see
whether the view taken by the trial court while
acquitting an accused can be reasonably taken on
the basis of the evidence on record. If the view
taken by the trial court is a possible view, the
appellate court cannot interfere with the order of
acquittal on the ground that another view could
have been taken.”
12. Thus, the law on the issue can be summarized to the
effect that in exceptional cases where there are compelling
circumstances, and the judgment under appeal is found to be
perverse, the appellate court can interfere with the order of
acquittal. Further, if two views were possible on the basis of the
evidence on record, the Appellate Court should not disturb the
finding of acquittal recorded by the Trial Court, merely, because the
Appellate Court could have arrived at a different conclusion than
that of the Trial Court.
13. The prosecution, in order to prove its case, examined
as many as twelve witnesses, however, its case mainly rests upon
the statements of PW-1 HHC Sukhdev Singh, PW-2 Constable
11 Neutral Citation No. ( 2025:HHC:9716-DB )
Virender Kumar, PW-3 Shri Khajana Ram, Deputy Superintendent
of Police, PW-4 ASI Jaswant Singh and PW-9 HC Kesar Singh.
14. PW 1 HHC Sukhdev Singh and PW-2 Constable
Virender Kumar deposed that on 05.02.2005 they were deputed to
produce accused Harjeet Singh from Central Jail, Nahan, in the
Court of learned Chief Judicial Magistrate, Sirmaur, District at
Nahan. They further deposed that they went to the Court of
learned Chief Judicial Magistrate, Sirmaur at Nahan, at about
10/10:30 a.m. and accused Harjeet Singh was in custody. These
witnesses have also deposed that when around 11:00 a.m. they
were outside the Court room, two persons came there and
accused Harjeet Singh told that the Advocate had come. As per
these witnesses, one person had covered his face with a chadder
(sheet) and another person was in the dress of Advocate. The
person, who was in the dress of the Advocate, told that he would
appear for accused Harjeet Singh and he informed that he was a
practicing advocate in the Hon’ble High Court of H.P. and resident
of Delhi. These witnesses further deposed that accused Harjeet
Singh told that he had to take medicine, therefore, he was taken by
them to a kiosk (khokha), within the Court premises, to take
medicine. Two persons, who met them outside the Court, were
standing near the khokha and were having tea. Subsequently,
12 Neutral Citation No. ( 2025:HHC:9716-DB )
accused Harjeet Singh was produced in the Court and around
12:30 p.m. they returned to Model Central Jail, Nahan and handed
over the custody of accused Harjeet Singh to the Jail authority. As
per the version of these witnesses, during the night time they came
to know that accused Harjeet Singh was taken away by 5-6
persons from the custody of the police from Civil Hospital, Nahan.
The person, who was in the dress of an advocate, had disclosed
his name as Prem Singh and another had divulged his name as
Raju. These witnesses further deposed that on 10.07.2007, during
the investigation, accused Prem Singh was in the custody of the
police and they had identified him.
15. PW-3 Shri Khazana Ram, the then Deputy
Superintendent of Police, Bilaspur, deposed that an application
was moved by him seeking production warrant of accused Prem
Singh, who was lodged in Central Jail, Hissar, and pursuant
thereto he was produced in the Court of learned Chief Judicial
Magistrate, Sirmaur, District at Nahan, and was remanded to
judicial custody. The Court fixed the identification parade on
03.07.2007, but the same could not be done, as accused Prem
was shifted to Hissar Jail. He further deposed that accused Prem
was arrested by him on 09.07.2007 and interrogated. As per the
statement of this witness, on 11.07.2007 accused was again
13 Neutral Citation No. ( 2025:HHC:9716-DB )
produced before the Court and he was remanded to judicial
custody till 25.07.2007 and he was directed to be lodged in Hissar
Jail, as per previous order of Additional Sessions Judge,
Fatehgarh. Subsequently, he prepared supplementary challan
against accused Prem Singh and during the investigation accused
Prem Singh was identified by HC Jaswant Singh, HHC Sukhdev
and Constable Ravinder Singh to be the same person, who was
involved in commission of crime on 05.02.2005 in Regional
Hospital, Nahan, from where he alongwith other co-accused
attacked police party and got escaped accused Harjeet Singh, who
was in custody of police and was under treatment.
16. PW-4 ASI Jaswant Singh and PW-9 HC Kesar Singh
deposed that on 05.02.2005 they were deputed at Central Jail,
Nahan, for bringing under trial prisoner to checkup at Hospital at
Nahan. They further deposed that they went to Model Central Jail,
Nahan, and were deputed with under trial prisoner Harjeet Singh
for his medical checkup at Civil Hospital, Nahan. They came to
hospital in an ambulance, bearing registration No. HP-18-4428,
which was driven by driver Jagdish Chand. Prisoner Harjeet Singh
was medically examined by Medical Officer at Civil Hospital,
Nahan, and he was admitted in the hospital in the male ward on
bed No. 25. As per these witnesses, the prisoner was in the
14 Neutral Citation No. ( 2025:HHC:9716-DB )
custody of Constable Kesar Singh (PW-9) and he was handcuffed
and the handcuff was tied with the belt of PW-9. Around 08:20
p.m. suddenly some people came and one person put some
weapon on the ear of PW-9 and demanded key of the handcuff
and he also gave a blow on the head of PW-9. PW-4 immediately
tried to contact the police on telephone, but he was caught hold by
those persons and they hit him on his nose and gave him fist
blows. PW-4 was brought outside the ward while beating and
prisoner Harjeet Singh was got released and all of them fled away
in a car, having registration No. CH-03-F-6657. PW-9 sustained
injuries in the incident and PW-4 informed the police. Both these
witnesses were medically examined at R.H. Nahan. PW-4 also
deposed that 2-3 shots were fired by the said persons and they got
released prisoner Harjeet Singh. On 10.07.2007 PW-4 alongwith
Constable Virender Kumar and HHC Sukhdev Singh remained
associated in the investigation and during the investigation SHO
Khazana Ram produced a person before them and he was
identified as the same person, who was involved in the incident of
beatings on 05.02.2005 at R.H. Nahan and got released the
prisoner Harjeet Singh with the help of other accused persons.
PW-4 further deposed that Constables Virender and Sikhdev Singh
had also identified accused Prem Singh and told that on
15 Neutral Citation No. ( 2025:HHC:9716-DB )
05.02.2005 accused Prem was present in the Court and presented
himself as a lawyer. Accused Prem Singh disclosed the names of
other co-accused persons, i.e., Harmeet, Raju, Punnu and Kapil
Sahani etc., who were involved in the incident of 05.02.2005. PW-
4 also identified accused Prem Singh in the Court to be the same
person, who was involved in the incident on 02.05.2005 at R.H.
Nahan.
17. As per the story of the prosecution, on 05.02.2005
under trial prisoner Harjeet Singh was brought to C.H. Nahan from
Central Jail, Nahan, by the then HC Jaswant Singh (PW-4) and HC
Kesar Singh (PW-9). The aforesaid prisoner was medically
examined by M.O. at C.H. Nahan and thereafter was admitted in
the hospital in the male ward. At about 08:20 p.m., accused Prem
Singh alongwith other co-accused persons came to the hospital, all
of a sudden and got released prisoner Harjeet Singh from the
lawful custody of HC Jaswant Singh and HC Kesar Singh and they
fled away in a car and during the scuffle Constables Jaswant Singh
& Kesar Singh also sustained injuries.
18. The perusal of the statements of ASI Jaswant Singh
(PW-4) and HC Kesar Singh (PW-9) shows that they have not
seen the persons who got released prisoner Harjeet Singh from
their custody. Both of them categorically deposed that at about
16 Neutral Citation No. ( 2025:HHC:9716-DB )
08:20 p.m. some people came to the hospital, suddenly one
person put some weapon on the ear of Constable Kesar Singh and
demanded the key of the handcuff and also gave a blow on his
head. They also snatched the key of the handcuff and gave them
beatings and thereafter managed to release prisoner Harjeet Singh
from their custody and fled away in a car. Thus, their statements
clearly show that at the time of the incident, both of them could not
identify those persons. Admittedly FIR was lodged against
unknown persons. PW-4 Jaswant Singh specifically deposed that
during the investigation SHO Khajana Ram (PW-3) produced one
person before them and they identified accused Prem Singh to be
the person who was involved in the incident of 05.02.2005 at R.H.
Nahan. He further deposed that Constables Virender Kumar and
Sukh Dev have also identified accused Prem Singh. PW-1 HHC
Sukh Dev as well as PW-2 Constable Virender Kumar deposed
that on 10.07.2007, during the investigation, they identified
accused Prem Singh, who was in the custody of the police to be
the person who met them in the Court on 05.02.2005 in the dress
of advocate.
19. It has also come on record that that no test
identification parade was conducted after the arrest of accused
Prem Singh. Although, PW-3, the then S.H.O. Khajana Ram
17 Neutral Citation No. ( 2025:HHC:9716-DB )
deposed that an application was moved by him seeking
identification parade of accused Prem Singh, but the same could
not be conducted as the accused was shifted to Hissar Jail.
However, there is nothing on record to show as to whether he took
necessary steps thereafter to get the test identification parade of
the accused conducted despite the fact that he had ample
opportunity to get the same conducted qua the identification of
accused Prem Singh. He has failed to explain as to why he could
not succeed in getting the accused identified through test
identification parade.
20. The learned trial court acquitted the accused on the
ground that no identification parade was conducted by the
Investigating officer, therefore, in absence of any identification
parade or evidence of eye witnesses for identification of the
accused, the accused cannot be convicted. In our opinion, the
finding given by the learned trial court for acquitting the accused
does not require any interference because as per the record of the
case, it is admitted position that no identification parade was got
conducted by the Investigating Officer to identify the accused in the
investigation and FIR was lodged against unknown persons. PW-1
HHC Sukh Dev, PW-2 Constable Virender Kumar and PW-4 ASI
Jaswant Singh have identified accused Prem Singh for the first
18 Neutral Citation No. ( 2025:HHC:9716-DB )
time after a gap of about two years and five months in the police
station that too while he was in police custody and have identified
the accused in the Court in the year 2012, which cannot be relied
upon, especially when identification in the Court is not
corroborated either by the previous identification in the
identification parade or any other evidence.
21. In the case of Dana Yadav @ Dahu & Ors. Vs. State
of Bihar reported in AIR 2002 SC 3325, the Hon’ble Apex Court
held that ordinarily identification of an accused by a witness for the
first time in court should not form basis of conviction, the same
being from its very nature inherently of a weak character unless it
is corroborated by his previous identification in the test
identification parade or any other evidence. Para No.38 of the said
judgment reads as under:
“38. In view of the law analysed above, we conclude thus:
(a) If an accused is well known to the prosecution witnesses
from before, no test identification parade is called for and
it would be meaningless and sheer waste of public time
to hold the same.
(b) In cases where according to the prosecution the accused
is known to the prosecution witnesses from before, but
the said fact is denied by him and he challenges his
identity by the prosecution witnesses by filing a petition
for holding test identification parade, a court while
dealing with such a prayer, should consider without
holding a mini inquiry as to whether the denial is bona
fide or a mere pretence and/or made with an ulterior
motive to delay the investigation. In case court comes to
the conclusion that the denial is bona fide, it may accede
to the prayer, but if, however, it is of the view that the
same is a mere pretence and/or made with an ulterior
motive to delay the investigation, question for grant of
such a prayer would not arise. Unjustified grant or
refusal of such a prayer would not necessarily enure to
the benefit of either party nor the same would be
19 Neutral Citation No. ( 2025:HHC:9716-DB )detrimental to their interest. In case prayer is granted and
test identification parade is held in which a witness fails
to identify the accused, his so-called claim that the
accused was known to him from before and the evidence
of identification in court should not be accepted. But in
case either prayer is not granted or granted but no test
Identification parade held, the same ipso facto cannot be
a ground for throwing out evidence of identification of an
accused in court when evidence of the witness, on the
question of identity of the accused from before, is found
to be credible. The main thrust should be on answer to
the question as to whether evidence of a witness in court
to the identity of the accused from before is trustworthy
or not. In case the answer is in the affirmative, the fact
that prayer for holding test identification parade was
rejected or although granted, but no such parade was
held, would not in any manner affect the evidence
adduced in court in relation to identity of the accused.
But if, however, such an evidence is not free from doubt,
the same may be a relevant material while appreciating
the evidence of identification adduced in court.
(c) Evidence of identification of an accused in court by a
witness is substantive evidence whereas that of
identification in test identification parade is, though a
primary evidence but not substantive one, and the same
can be used only to corroborate identification of accused
by a witness in court.
(d) Identification parades are held during the course of
investigation ordinarily at the instance of investigating
agencies and should be held with reasonable despatch
for the purpose of enabling the witnesses to identify
either the properties which are subject matter of alleged
offence or the accused persons involved in the offence
so as to provide it with materials to assure itself if the
investigation is proceeding on right lines and the
persons whom it suspects to have committed the offence
were the real culprits.
(e) Failure to hold test identification parade does not make
the evidence of identification in court inadmissible rather
the same is very much admissible in law, but ordinarily
identification of an accused by a witness for the first time
in court should not form basis of conviction, the same
being from its very nature inherently of a weak character
unless it is corroborated by his previous identification in
the test identification parade or any other evidence. The
previous identification in the test identification parade is
a check valve to the evidence of identification in court of
an accused by a witness and the same is a rule of
prudence and not law.
(f) In exceptional circumstances only, as discussed above,
evidence of identification for the first time in court,
without the same being corroborated by previous
identification in the test identification parade or any other
evidence, can form the basis of conviction.
(g) Ordinarily, if an accused is not named in the first
Information report, his identification by witnesses in
court, should not be relied upon, especially when they
20 Neutral Citation No. ( 2025:HHC:9716-DB )
did not disclose name of the accused before the police,
but to this general rule there may be exceptions as
enumerated above.”
22. In the instant case, from the perusal of the entire
evidence on record, it has become clear that none of the witnesses
of the prosecution knew accused Prem Singh by name prior to
10.07.2007. He was allegedly got identified after a period of more
than two years and five months that too in the custody of the police
and was identified in the Court in the year 2012. When no specific
allegation was leveled against the accused in the FIR that he was
the person who got released prisoner Harjeet Singh from the lawful
custody of HC Jaswant Singh and HC Kesar Singh, then obviously
it was the duty of the prosecution to prove its case beyond
reasonable doubt by leading evidence of identification before the
court that the accused was the person who got released prisoner
Harjeet Singh from the lawful custody of HC Jaswant Singh and
HC Kesar Singh. No other cogent and satisfactory evidence has
been led by the prosecution to connect the accused with the
commission of the offence for which he was charged.
23. Therefore, in view of what has been discussed
hereinabove and also in the light of adjudication made by the
Hon’ble Supreme Court in Dana Yadav‘s case (supra) no
interference in the judgment of acquittal, rendered by the learned
Trial Court, is required as the same is the result of proper
21 Neutral Citation No. ( 2025:HHC:9716-DB )
appreciation of evidence and law. The appeal, which sans merits,
deserves dismissal and is accordingly dismissed. Bail bonds are
discharged.
Pending application(s), if any, shall also stand(s)
disposed of.
( Tarlok Singh Chauhan )
Judge
( Sushil Kukreja )
Judge
8th April, 2025
(virender)
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