Himachal Pradesh High Court: In the present batch of appeals preferred by the accused persons under Section 374(2) of the Criminal Procedure Code, 1973 (‘CrPC’), the judgment passed by the Additional Sessions Judge (‘trial Court’) was challenged whereby the appellants were convicted and sentenced under Sections 147, 332, 333, 353 and 506(II) read with Section 149 of the Penal Code, 1860 (‘IPC’). A Single Judge Bench of Sushil Kukreja, J., observed that there were major contradictions in the statements of the prosecution witnesses and serious lapses in the investigation as the Test Identification Parade (‘TIP’) was not conducted. The Court quashed and set aside the judgment of conviction and acquitted the accused persons.
Background:
The complainant was employed by the Wakf Board as Rent Controller. On 8-4-2008, around 02:15 p.m., the complainant along with a peon, Naib Tehsildar and Kanungo, went to Kutub Masjid in Sabzi Mandi for closing the stairs leading from upper hall to the main hall of the Masjid as directed by the Chief Executive Officer of the Board. When the peon was fixing the ply board, the then President of the Hawkers’ Union along with several other accused persons entered the Masjid and started thrashing the complainant and others. The Imam of the Masjid arrived at the spot and even he was pushed by some miscreant due to which he broke his arm and sustained other injuries. Thereafter, the Naib Tehsildar and Kanungo intervened and saved them from the clutches of the accused persons, who proclaimed that they would not leave the Masjid at any cost and threatened to kill them.
The complainant informed the police, and they reached the spot and recorded the statement of the complainant and sent the injured persons for medical examination. The trial Court, vide judgment dated 30-3-2010, convicted all the accused persons. Under Section 147 IPC, the accused persons were sentenced to undergo rigorous imprisonment for six months, under Section 333 read with Section 149 IPC they were sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs 5000 each and in default of payment of fine to further undergo rigorous imprisonment for a period of three months. They were further sentenced to undergo rigorous imprisonment for a period of one year each under Sections 332, 353 and 506(II) read with Section 149 IPC.
The appellants contended that the impugned judgment was against the law and facts, thus liable to be set aside. It was further contended by them that the trial Court had failed to appreciate the evidence in its right and true perspective. But the respondent refuted the contention of the appellants and stated that the trial Court had passed a well-reasoned judgment, which did not require any interference and prayed for the dismissal of the appeals.
Analysis and Decision:
The Court focused on the statements of the complainant, Imam, peon, and a doctor who had not actually examined the injured persons but only gave his reports on the injuries. After scrutinizing the entire evidence, the Court observed that the prosecution had failed to establish its case against the accused persons beyond reasonable doubt. The Court reasoned that the complainant in his statement named only five persons and no other accused. He deposed that he knew the names of only 4-5 accused and further admitted that no TIP was conducted by the police. The Court further observed that the Imam had named only four persons while the peon named only two. The prosecution did not explain as to how it arrayed other accused persons in the absence of any evidence about the presence of other accused persons, whose names were not even mentioned in the FIR. It was clear that some of the accused persons were strangers to the witnesses and therefore a TIP was necessary to ascertain the identity of the accused persons.
The Court opined that it was a settled law that if an accused was not named in the FIR, his identification by the witnesses in the Court should not be relied upon specifically when they did not disclose name of the accused before the police. The Court relied on Supreme Court’s decision in Dana Yadav v. State of Bihar, (2002) 7 SCC 295, where it was held that in case of failure to hold the TIP, identification of the accused before the Court, though not inadmissible, should not be the basis of conviction unless corroborated by previous identification in TIP or any other evidence.
The Court took note that there were no specific allegations against ten accused in the FIR and therefore it was the duty of the prosecution to prove its case beyond reasonable doubt by leading evidence of identification before the Court. The Court opined that by not conducting the TIP, there was a serious lapse in the investigation. The Court also questioned the medical evidence as the doctor, who issued the reports of the injured persons, was not examined and thus the medico-legal certificates issued by him could not be proved. There were also major contradictions in the statements of the prosecution witnesses.
The Court observed that the evidence led by the prosecution did not inspire confidence and that the statements of the prosecution witnesses qua the genesis of the incident could not be relied upon, as the witnesses examined by the prosecution were highly interested witnesses. The Court also noted that the mosque was situated in a very busy area and found it surprising that police did not try to associate independent witnesses. It was further noted that the Naib Tehsildar and Kanungo were not examined, who could have been the best witnesses.
Thus, the Court drew an adverse inference against the prosecution and remarked that there were material contradictions, embellishments, discrepancies and improvements in the statements of the material prosecution witnesses. The Court held that the judgment of the trial Court was not sustainable and ordered it to be set aside and acquitted the accused persons. The Court directed them to furnish personal bonds in the sum of Rs 50,000 each with one surety, effective for a period of six months to ensure their appearance if the case was pursued further.
[Liyakat Ali v. State of Himachal Pradesh, Cr. Appeal No. 67 of 2010, decided on 20-6-2025]
Advocates who appeared in this case :
For the Appellants: N.S. Chandel, Sr. Advocate, with Shwetima Dogra, Advocate.
For the Respondent: Pawan Kumar Nadda, Additional Advocate General.
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