SUKHWINDER SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The appellant was convicted for an offence under Section 364 of the Indian Penal Code ("IPC"- for short) vide judgment dated 5.6.1998 by the Additional Sessions Judge, Ludhiana. Vide order of the even date, the appellant was sentenced to undergo rigorous imprisonment for a period of ten years and a fine of Rs.5,000/- . Hence, the present appeal.

(2.) Prosecution case, as noticed by the trial Court in para No. 2 of its judgment, is reproduced herein below:-

(3.) After hearing learned counsel for the parties, I am of the opinion that this petition deserves to be allowed. The appellant was convicted for an offence under Section 364 IPC. During trial, none of the witnesses supported the prosecution case apart from PW-9 Barwai Devi. The said witness is the mother of Surinder Kumar and Sushil Kumar. As per the said witness, the occurrence had taken place on 28.5.1992. Three Sikh youths had entered her house. Her husband and her son Krishan Lal were out of station. When she opened the door, one out of three persons went on the roof where Sushil Kumar (her son) was sleeping and one person entered the room where Surinder Kumar (her son) was sleeping. One person stood near her. She did not give the exact description of the persons, who had entered her house at the time of registration of the FIR but simply stated that three persons aged about 22-25 years had entered her house. One person was heavily built, whereas, the other two persons were slim built. PW-9, in her cross-examination, admitted that she had not participated in any identification parade. Thus, after the occurrence she first time identified the accused when she appeared in the witness box on 30.3.1998. Even, while appearing in the witness box, she has not been able to tell as to whether the accused had stood near her or he was the one who went into the room of her sons Sushil Kumar and Surinder Kumar. In these circumstances, it would not be safe to rely on the sole testimony of PW-9. A witness who identifies an accused, who is not known to her in the Court for the first time, then her evidence loses its value unless there has been a previous test identification parade. The idea of holding test identification parade is to test the veracity of the witness on the question of her capability to identify an unknown person whom the witness may have seen only once. However, where no test identification parade is conducted then it is unsafe to rely on the bare testimony regarding the identification of the accused for the first time in the Court. The prosecution should have arranged a test identification parade and got the accused identified from the witness before the said witness was called upon to identify the appellant/accused in the Court. Hence, the trial Court erred in basing reliance on the sole testimony of PW-9 qua identification of the appellant where no test identification parade had been conducted earlier.