Allowed

Sher Singh v. State

Himachal Pradesh HC3 Oct 2017CR.R/165/2009

Case brief

AI extract

What is this about?

Criminal revision by a convict sentenced for assault offences. The High Court found serious procedural lapses — exhibits marked before being shown to the complainant, articles produced from one parcel though seized on different dates, no independent witness, non-examination of the officer who recorded the FIR, and no test identification parade — which denied a fair trial. Conviction set aside.

What did the court decide?

Judgments of conviction of the trial Magistrate and of the Sessions Judge set aside; petitioner acquitted of all charges; bail bonds discharged.

Sher Singh Vs State — Criminal Trial and Appeal | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. Revision No. 165 of 2009 Reserved on: 18.9.2017 Date of decision: 03.10.2017

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Sher Singh ...Petitioner
Versus
State of Himachal Pradesh …Respondent
*Coram*
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. *Whether approved for reporting?¹Yes.*
For the Petitioner : Mr. Peeyush Verma and Ms. Renuka Thakur, Advocates.
For the Respondent : Mr. Neeraj K. Sharma, Dy. A.G. with Mr. J.S. Guleria, Asstt. A.G

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Tarlok Singh Chauhan, Judge

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Even though this is a criminal revision petition at the instance of the convict wherein the scope of interference is quite restricted and limited but the manner in which the investigation and thereafter the trial has been conducted leaves much to be desired. However, before proceeding further, the case of the prosecution needs to be noticed.

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On 8.7.2008 statement of Balwant Singh (PW1) was

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recorded at police station Keylong under Section 154 Cr.P.C. He

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Whether the reporters of the local papers may be allowed to see the Judgment? Yes.

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informed that he is owner-cum-driver of truck No. HP-07-1575 and on 8.7.2003 after loading cement of Civil Supplies Corporation, he reached Keylong at 2:00 p.m. which was unloaded. At about 5:00 p.m. he was on way to Mandi and was accompanied by Rakesh (PW2) and one Roshan Lal. When they reached a little ahead of Workshop, he parked his truck in order to make a telephone call from P.C.O. booth from bus stand, Keylong. At that time he was accompanied by Rakesh Kumar. After making the call when they were proceeding towards the truck, in the meantime two young person came from Durga temple side and one of the young man was Sher Singh, who after picking up a stone hit on the head of the complainant and he sustained injuries and became unconscious and fell on the road. He regained conscious after about two-two and half hours. Then he came to know that the person who has hit on his head took him away on a scooter bearing registration No. HP42-259 and kept him in a room. From there he went in search of Rakesh Kumar and Roshan Lal and reached at bus stand. Then they disclosed him the entire incident and said that the accused have taken him away on the scooter. He further informed that he sustained injuries on his head and his shirt and vest have been smeared with blood and he had no dispute with the accused and had Rakesh Kumar (PW2) and Roshan Lal been not there, they

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would have killed him. They have further threatened him to kill him if the incident is disclosed to anybody. He is apprehending danger at the hands of these accused. As such, a legal action may be taken against them

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After recording the statement of the complainant under Section 154 Cr.P.C. the police swung into action. On the basis of his statement the present FIR No. 0046 dated 8.7.2008 at Police Station, Keylong was recorded under Sections 323, 336, 342 and 506 read with Section 34 I.P.C. The injured was got medically examined from the doctor vide police docket Ex.PW3/A and his MLC is Ex.PW3/B. Thereafter the police went to the spot, prepared site plan Ex.PW4/B, took into possession weapon of offence i.e. stone vide seizure memo Ex.PW2/A after sealing it in a packet with seal impression K in presence of marginal witnesses namely Rakesh Kumar (PW2) and Roshan Lal and sample of seal was also separately prepared on cloth piece vide Ex.PW4/B. During the course of investigation of the case the police also took into possession shirt and vest smeared with blood vide seizure memo Ex.PW1/B after sealing the same in a packet with seal impression T and sample of seal T was also separately taken vide Ex.PW4/C. The I.O. also recorded statements of witnesses under Section 161 Cr.P.C.

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After completion of the investigation the challan was presented before the learned trial Court who after supplying the copies of challan and other documents as required under Section 207 Cr.P.C. to the accused and after having found prima facie case against them for the commission of offence under Sections 341, 342, 323, 506 read with Section 34 I.P.C. put notice of accusation against the accused for the said offences to which accused pleaded not guilty and claimed trial.

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The prosecution in order to prove its case examined as many as four witnesses.

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After the closure of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. were recorded, wherein they have denied the prosecution case and stated that they are innocent and have been falsely implicated in this case. The defence of the accused is of denial simplicitor. However, they have opted not to lead any defence evidence. After the conclusion of the trial, the learned trial Court convicted and sentenced the accused to three months simple imprisonment for offence under Section 323 IPC and also sentenced to pay fine of Rs.1000/- each. For offence under Section 342 IPC both the convicts are also sentenced to three months simple imprisonment and also sentenced to pay fine of Rs.1000/- each.

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Feeling aggrieved by the judgment of conviction

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passed by the learned trial Court, the petitioner as also Shri Sonam preferred separate appeal and the learned Sessions Judge vide judgment dated 15.10.2009 dismissed the appeal preferred by the present petitioner by upholding the conviction. However, as regards the appeal filed by Sonam, the same was allowed and he was ordered to be acquitted.

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Aggrieved by the judgment of conviction passed by the learned Sessions Judge, the petitioner has filed the instant revision petition and has made the following submissions:-

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The procedure prescribed by law was not followed.

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No independent witness was examined despite availability and material witness given up.

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True genesis of the case was not disclosed by the petitioner.

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No Test Identification Parade held.

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Learned Deputy Advocate General would argue that

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no interference is warranted against the findings rendered by the learned Courts below particularly, when this Court is exercising its revisional jurisdiction. He placed strong reliance on the judgment rendered by this Court in Criminal Revision No. 50 of 2011, titled as Rajinder Singh vs. State of Himachal Pradesh , decided on 13.9.2017,

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wherein the scope of criminal revision has been delineated in the

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following manner:-

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“In Amur Chand Agrawal vs. Shanti Bose and another, AIR 1973 SC 799, the Hon’ble Supreme Court has held that the revisional jurisdiction should normally be exercised in exceptional cases when there is a glaring defect in the proceedings or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice.

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In State of Orissa vs. Nakula Sahu, AIR 1979, SC 663, the Hon’ble Supreme Court after placing reliance upon a large number of its earlier judgments including Akalu Aheer vs. Ramdeo Ram, AIR 1973, SC 2145 , held that the power, being discretionary, has to be exercised judiciously and not arbitrarily or lightly. The Court held that “judicial discretion, as has often been said, means a discretion which is informed by tradition methodolised by analogy and discipline by system”.

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In Pathumma and another vs. Muhammad, AIR 1986, SC 1436 , the Hon’ble Apex Court observed that High Court “committed an error in making a re-assessment of the evidence” as in its revisional jurisdiction it was “not justified in substituting its own view for that of the learned Magistrate on a question of fact”.

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In Bansi Lal and others vs. Laxman Singh, AIR 1986 SC 1721 , the legal position regarding scope of revisional jurisdiction was summed up by the Hon’ble Supreme Court in the following terms:

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“It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court, that the High Court is empowered to set aside the order of the acquittal and direct a re-trial of the acquitted accused. From the very nature of this power it should be exercised sparingly and with great care and caution. The mere circumstance that a finding of fact recorded by the trial court may in the opinion of the High Court be wrong, will not justify the setting aside of the order of acquittal and

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directing a re-trial of the accused. Even in an appeal, the Appellate Court would not be justified in interfering with an acquittal merely because it was inclined to differ from the findings of fact reached by the trial Court on the appreciation of the evidence. The revisional power of the High Court is much more restricted in its scope.”

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In Ramu @ Ram Kumar vs. Jagannath, AIR 1991, SC 26, Hon’ble Supreme court cautioned the revisional Courts not to lightly exercise the revisional jurisdiction at the behest of a private complainant.

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In State of Karnataka vs. Appu Balu, AIR 1993, SC 1126 = II (1992) CCR 458 (SC), the Hon’ble Supreme Court held that in exercise of the revisional powers, it is not permissible for the Court to re-appreciate the evidence.

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In Ramu alias Ram Kumar and others vs. Jagannath AIR 1994 SC 26 the Hon’ble Supreme Court held as under:

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“It is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it was invoked by a private complaint.”

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In Kaptan Singh and others vs. State of M.P. and another, AIR 1997 SC 2485 = II (1997) CCR 109 (SC), the Hon’ble Supreme Court considered a large number of its earlier judgments, particularly Chinnaswami vs. State of Andhra Pradesh, AIR 1962 SC 1788 ; Mahendra Pratap vs. Sarju Singh, AIR 1968, SC 707; P.N. G. Raju vs. B.P. Appadu, AIR 1975, SC 1854 and Ayodhya vs. Ram Sumer Singh, AIR 1981 SC 1415 and held that revisional power can be exercised only when “there exists a manifest illegality in the order or there is a grave miscarriage of justice”.

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In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452, the Hon’ble Supreme Court held as under:

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“In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of

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any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.”

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In State of A.P. vs. Rajagopala Rao (2000) 10 SCC 338, the

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Hon’ble Supreme Court held as under:

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“The High Court in exercise of its revisional power has upset the concurrent findings of the Courts below without in any way considering the evidence on the record and without indicating as to in what manner the courts below had erred in coming to the conclusion which they had arrived at. The judgment of the High Court contains no reasons whatsoever which would indicate as to why the revision filed by the respondent was allowed. In a sense, it is a nonspeaking judgment.”

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I have heard learned counsel for the parties and have

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gone through the records of the case.

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1. The procedure prescribed was not followed

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Learned counsel for the petitioner has taken me

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through the record and I really fail to understand as to how the learned trial Magistrate exhibited the shirt, vest and stone as exhibits P-1, P-2 and P-3 even before showing these to the witness PW1 Balwant Singh who also happens to be the complainant in this case.

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What is more intriguing is that after permission was

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sought to open one of the parcel sealed with seal impression T, the shirt, vest and stone all come out of the same parcel. Whereas, as per the prosecution case, it has specifically come in the statement of PW2 Rakesh Kumar and PW4 Khem Chand that the stone was taken into possession on 9.7.2013 vide Ex. PW2/A whereas the shirt and vest were taken into possession on 10.7.2003 vide Ex. PW1/B. Therefore, obviously, the shirt, vest and stone could not have come out of one parcel.

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The matter does not end here. PW3 Dr. Pardeep Kumar is the Medical Officer, who examined the complainant and narrated the injuries noted on his person and then stated that the same were possible by stone Ex.P3, that too when the stone was not even actually shown to him. The position noticed above is undefenceable and therefore the learned Deputy Advocate General rightly did not dispute the same.

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It would be evidently clear from what has been stated above that right to fair trial by the competent Court has been denied to the petitioner. It is more than settled that every person has right to fair trial by the competent Court in spirit of right to life and personal liberty. The concept of fair trial entails familiar triangulation of interest of the accused, the victim and the society.

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This aspect of the matter has been dealt by the Hon’ble Supreme Court in its recent judgment in Asha Ranjan vs. State of Bihar & Ors., AIR 2010 SC 1079 wherein it was held that fair trial is a concept that in its ambit and sweep covers the interest of the accused, prosecution, victim and in certain circumstances community interest as well. It is apt to reproduce the relevant observations, which reads thus:-

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“ 31. The concept of fair trial recognized under the Code of Criminal Procedure is conferred an elevated status under the Constitution, is a much broader and wider concept. If the transfer will create a dent in the said concept, there is no justification to accept such a prayer at the behest of the petitioners. In oppugnation, the conception of fair trial in criminal jurisprudence is not one way traffic, but includes the accused and the victim and it is the duty of the court to weigh the balance. When there is threat to life, liberty and fear pervades, it sends shivers in the spine and corrodes the basic marrows of holding of the trial at Siwan. This is quite farther from the idea of fair trial. The grievance of the victims, who have enormously and apparently suffered deserves to be dealt with as per the law of the land and should not remain a mirage and a distant dream. As we find, both sides have propounded the propositions in extreme terms. And we have a duty to balance.

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32. To appreciate the contention on this score, we may, at present, refer to certain authorities that have dealt with fair trial in the constitutional and statutory backdrop.

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33. In J. Jayalalithaa & Ors v. State of Karnataka & Ors.[8], the Court held that fair trial is the main object of criminal

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procedure and such fairness should not be hampered or threatened in any manner. Fair trial must be accorded to every accused in the spirit of the right to life and personal liberty and the accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case. It has been further observed that any breach or violation of public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general and, therefore, in all circumstances, the courts have a duty to maintain public confidence in the administration of justice and such duty is to vindicate and uphold the “majesty of the law” and the courts cannot turn a blind eye to vexatious or oppressive conduct that occurs in relation to criminal proceedings. The Court further laid down that denial of a fair trial is as much injustice to the accused as is to the victim and the society. It necessarily requires a trial before an impartial Judge, a fair prosecutor and an atmosphere of judicial calm. Since the object of the trial is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not about over technicalities and must be conducted under such rules as will protect the innocent and punish the guilty. Justice should not only be done but should be seen to have been done. Therefore, free and fair trial is a sine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right, but a human right also. Therefore, any hindrance in a fair trial could be violative of Article 14 of the Constitution. Elevating the right of fair trial, the Court observed:-

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“Article 12 of the Universal Declaration of Human Rights provides for the right to a fair trial what is enshrined in Article 21 of our Constitution. Therefore, fair trial is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity and is governed by the rule of law. Denial of fair trial is crucifixion of human rights. [Vide Triveniben v. State of Gujarat[9], Abdul Rehman Antulay v. R.S. Nayak[10], Raj Deo Sharma (2) v. State of Bihar[11], Dwarka Prasad Agarwal v. B.D. Agarwal[12], K.

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Anbazhagan v. Supt. of Police[13], Zahira Habibullah Sheikh (5) v. State of Gujarat[14], Noor Aga v. State of Punjab[15], Amarinder Singh v. Parkash Singh Badal[16], Mohd. Hussain v. State (Govt. of NCT of Delhi)[17], Sudevanand v. State[18], Rattiram v. State of M.P.[19] and Natasha Singh v. CBI[20].]”

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34. In this regard, we may sit in the time machine and refer to a three- Judge Bench judgment in Maneka Sanjay Gandhi & another v. Rani Jethmalani[21], wherein it has been observed that assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment is necessitous, if the court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. The Court observed that accused cannot dictate where the case against him should be tried and, in a case, it the duty of the Court to weigh the circumstances.

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35. In Rattiram (supra), speaking on fair trial, the Court opined that:-

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“39. … Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracise injustice, prejudice, dishonesty and favouritism.” In the said case, it has further been held that:-

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“60. While delineating on the facets of speedy trial, it cannot be regarded as an exclusive right of the accused. The right of a victim has been given recognition in Mangal Singh v. Kishan Singh[22] wherein it has been observed thus:

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‘14. … Any inordinate delay in conclusion of a criminal trial undoubtedly has a highly deleterious

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effect on the society generally, and particularly on the two sides of the case. But it will be a grave mistake to assume that delay in trial does not cause acute suffering and anguish to the victim of the offence. In many cases the victim may suffer even more than the accused. There is, therefore, no reason to give all the benefits on account of the delay in trial to the accused and to completely deny all justice to the victim of the offence.’

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61. It is worth noting that the Constitution Bench in Iqbal Singh Marwah v. Meenakshi Marwah[23] though in a different context, had also observed that delay in the prosecution of a guilty person comes to his advantage as witnesses become reluctant to give evidence and the evidence gets lost.

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x x x x

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64. Be it noted, one cannot afford to treat the victim as an alien or a total stranger to the criminal trial. The criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from the viewpoint of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries. In respect of certain offences in our existing criminal jurisprudence, the testimony of the victim is given paramount importance. Sometimes it is perceived that it is the duty of the court to see that the victim’s right is protected. A direction for retrial is to put the clock back and it would be a travesty of justice to so direct if the trial really has not been unfair and there has been no miscarriage of justice or failure of justice.”

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36. Be it noted, the Court in the said case had noted that there has to be a fair trial and no miscarriage of justice and under no circumstances, prejudice should be caused to the accused but, a pregnant one, every procedural lapse or every interdict that has been acceded to and not objected at the appropriate stage would not get the trial dented or make it unfair. Treating it to be unfair would amount to an undesirable state of pink of perfection in procedure. An absolute apple-pie order in carrying out the adjective law, would only be sound and fury signifying nothing.”

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37. In Manu Sharma v. State (NCT of Delhi)[24], the Court, emphasizing on the concept of fair trial, observed thus:-

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“197. In the Indian criminal jurisprudence, the accused is placed in a somewhat advantageous position than under different jurisprudence of some of the countries in the world. The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India.”

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38. A three-Judge Bench in Mohd. Hussain @ Julfikar Ali v. The State (Govt. of NCT) Delhi[25] approvingly reproduced para 33 of the earlier judgment in Zahira Habibulla H. Sheikh v. State of Gujarat[26] (known as “Best Bakery” case) which is to the following effect:- “33. The principle of fair trial now informs and energises many areas of the law. It is reflected in numerous rules and practices. It is a constant, ongoing development process continually adapted to new and changing circumstances, and exigencies of the situation — peculiar at times and related to the nature of crime, persons involved — directly or operating behind, social impact and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system.”

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39. In Zahira Habibulla H. Sheikh (supra), it has been held:-

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“38. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out

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justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not about over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny.

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39. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty, stage-managed, tailored and partisan trial.

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40. The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice.”

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40. In Mohd. Hussain @ Julfikar Ali (supra) the three-Judge Bench has drawn a distinction between the speedy trial and fair trial by opining that there is, however, qualitative difference between the right to speedy trial and the accused’s right of fair trial. Unlike the accused’s right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. It depends upon diverse circumstances. Each case of delay in conclusion of a criminal trial has to be seen in the facts and circumstances of such case. Mere lapse of several years since the commencement of prosecution by itself may not justify the discontinuance of prosecution or dismissal of indictment. The factors concerning the accused’s right to speedy trial have to be weighed vis-à-vis the impact of the crime on society and the confidence of the people in judicial system. Speedy trial secures rights to an accused but it does not preclude the rights of public justice. The nature and gravity of crime, persons involved, social impact and societal needs

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must be weighed along with the right of the accused to speedy trial and if the balance tilts in favour of the former the long delay in conclusion of criminal trial should not operate against the continuation of prosecution and if the right of the accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an end.

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41. We have referred to the said authority as the three-Judge Bench has categorically stated that interests of the society at large cannot be disregarded or totally ostracized while applying the test of fair trial.

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42. In Bablu Kumar and Ors. v. State of Bihar and Anr.[27] the Court observed that it is the duty of the court to see that neither the prosecution nor the accused play truancy with the criminal trial or corrode the sanctity of the proceeding. They cannot expropriate or hijack the community interest by conducting themselves in such a manner as a consequence of which the trial becomes a mock trial. The Court further ruled that a criminal trial is a serious concern of society and every member of the collective has an inherent interest in such a trial and, therefore, the court is duty-bound to see that neither the prosecution nor the defence takes unnecessary adjournments and take the trial under their control. The said observations were made keeping in view the concept of fair trial, the obligation of the prosecution, the interest of the community and the duty of the court.

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43. Recently, in State of Haryana v. Ram Mehar and Ors.[28], after analyzing the earlier judgments, the Court ruled that the concept of the fair trial is neither in the realm of abstraction or a vague idea. It is a concrete phenomenon; it is not rigid and there cannot be any straitjacket formula for applying the same. The Court observed that it cannot be attributed or clothed with

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any kind of rigidity or flexibility in its application. It is because fair trial in its ambit requires fairness to the accused, the victim and the collective at large. The Court ruled that neither the accused nor the prosecution nor the victim which is a part of the society can claim absolute predominance over the other, for once absolute predominance is recognised, it will have the effect potentiality to bring in an anarchical disorder in the conducting of trial defying established legal norm. The Court opined that whole thing would be dependent on the fact situation; established norms and recognised principles and eventual appreciation of the factual scenario in entirety. There may be cases which may command compartmentalisation but it cannot be stated to be an inflexible rule. Each and every irregularity cannot be imported to the arena of fair trial. There may be situations where injustice to the victim may play a pivotal role. The centripodal purpose is to see that injustice is avoided when the trial is conducted. Simultaneously the concept of fair trial cannot be allowed to such an extent so that the systemic order of conducting a trial in accordance with CrPC or other enactments get mortgaged to the whims and fancies of the defence or the prosecution. The command of the Code cannot be thrown to the winds. In such situation, as has been laid down in many an authority, the courts have significantly an eminent role. A plea of fair trial cannot be acquiesced to create an organic disorder in the system. It cannot be acceded to manure a fertile mind to usher in the nemesis of the concept of trial as such. The Court further observed that there should not be any inference that the fair trial should not be kept on its own pedestal as it ought to remain but as far as its applicability is concerned, the party invoking it has to establish with the support of established principles. The process of the court cannot be abused in the name of fair trial at the drop of a hat, as that would lead to miscarriage of justice.

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44. On a studied analysis of the concept of fair trial as a facet of Article 21, it is noticeable that in its ambit and sweep it covers interest of the accused, prosecution and the victim. The victim, may be a singular person, who has suffered, but the injury suffered by singular is likely to affect the community interest. Therefore, the collective under certain circumstances and in certain cases, assume the position of the victim. They may not be entitled to compensation as conceived under section 357A of the CrPC but their anxiety and concern of the crime and desire to prevent such occurrences and that the perpetrator, if guilty, should be punished, is a facet of Rule of Law. And that has to be accepted and ultimately protected.

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2. No independent witness was examined and material witness was given up.

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The complainant while appearing as PW1 has

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categorically admitted in his cross-examination that there were 100150 people present on the spot when the alleged incident took place. However, surprisingly no independent witness has been examined and only interested witnesses have been examined.

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That apart, the FIR in the case is admittedly recorded by HC Dhani Ram but his statement has not been recorded, rather he has been given up during the trial. The statement of this witness was absolutely essential to prove the case of the prosecution because as per FIR Ex.PW1/A recorded on 8.7.2003 at about 8:45 p.m, the complainant had disclosed the name of the person hitting him with the stone to be Sher Singh. Whereas, in the application for medical

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examination of the complainant Ex.PW4/A made at a later time about 9:30 p.m. it has been stated that the complainant was not knowing the two persons (much less their names) who had attacked him and could identify them in case they were brought before him. Thus, in such circumstances the non-examination of H.C. Dhani Ram is fatal to the prosecution case.

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3.True Genesis of the case was not disclosed by the prosecution.

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Evidently, the FIR does not lay down any factual foundation as to what led to the incident. After all, no sane person would hit anyone with the stone without any rhyme or reason. However, the cat is out of the bag when the Investigating Officer Khem Chand is cross-examined and states that it had come in the investigation that the scooter of the complainant had hit the scooter of the accused which led to the entire episode. If that be so, then there are many questions that have been left un-unswered, more particularly, where are the scooters. How did the complainant who had driven a truck from Mandi to Keylong get hold of the scooter that also hundreds of miles away from his home and drive the same, on account of whose fault did the accident actually take place? And lastly, it could also be possible that the complainant had sustained injuries on account of the collision of the two scooters.

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4. No Test Identification Parade held

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It is the admitted case of the prosecution that the

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complainant was not knowing the persons who attacked him and the accused were identified for the first time only in the Court as is evident from the statement of PW2 and document Ex.PW4/A. Once that be the admitted position, then in my considered view, it was incumbent upon the prosecution to have conducted a Test Identification Parade.

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In State (Delhi Administration) vs. V.C. Shukla, AIR 1980

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SC 1382 , three Judges Bench of the Hon’ble Supreme Court held that identification of a person by the witness for the first time in the Court without being tested by prior Test Identification Parade is value less.

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20. Likewise, in Lakhwinder Singh and others vs. State of

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Punjab, AIR 2003 SC 2577, while dealing with a case of murder the Hon’ble Supreme Court held that not holding of Test Identification Parade to identify assailants was a serious lapse and the same was fatal to the case of the prosecution.

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Thus, on the basis of the aforesaid discussion, it can conveniently be held that not only the judgments rendered by both the Courts below suffer from perversity but also deserves to be set aside on account of serious procedural lapses committed by the trial

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Magistrate which unfortunately have not at all been noticed by the learned Sessions Judge.

¶120

Accordingly, there is merit in this revision petition and

¶121

the same is allowed and the judgments of conviction passed by the learned trial Magistrate as also upheld by the learned Sessions Judge are set aside. The petitioner is acquitted from all the charges. Bail bonds, if any, furnished by the petitioner are discharged.

¶122

October 3, 2017

¶123

(Sanjeev)

¶124

(Tarlok Singh Chauhan) Judge

Sher Singh v. State

Case brief

What is this about?

What did the court decide?

Sher Singh v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

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