PARVEEN @ SONU versus THE STATE OF HARYANA on 7 December 2021

1. Leave granted.

2. This Appeal is directed against the judgment dated 17[th] March,2020 passed in CRA-D No.232 of 2010 by the High Court of Punjaband Haryana at Chandigarh, whereby, the High Court has dismissed theAppeal filed by the appellant / accused and upheld the conviction andorder of sentence passed by the Additional Sessions Judge, Rewari.

3. Briefly stated, the facts of the case, as called out from the caseof the prosecution, are as under.

On 14.03.2009, the police party was escorting four accused namelyNadeem, Naushad, Ravi & Sunil from the Central Jail, Jaipur and theywere to be produced in the Court of CJM, Bhiwani. They reachedRailway Station Rewari, in the morning at 04:30 hrs. They then boarded A

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Athe train for Bhiwani. When the train reached at Railway Station NangalPathani, four young boys entered their compartment and attacked thepolice party in order to rescue the accused, who were in police custodyand were to be produced in the Court of CJM, Bhiwani. The accused,who were in custody, also tried to escape. They even tried to snatch theofficial carbine. It is alleged that one of the accused fired upon HeadBConstable Arjun Singh. In the complaint, it was stated that the policeoverpowered one person, who had thrown chilly powder in their eyesand the remaining three accused succeeded in fleeing. The apprehendedaccused disclosed his name and identity of other assailants. Injured HeadConstable Arjun Singh was shifted to hospital, who succumbed to fireCarm injuries subsequently. After completing investigation, all the accusedwere prosecuted for the offences punishable under Sections 224, 225,332, 353, 392, 307, 302, 120-B of the IPC and Section 25/54/59 of theArms Act.

4. To prove the guilt of the accused, prosecution examined asDmany as 23 witnesses in support of its case. The statements of theaccused were also recorded under Section 313 of the Cr.P.C. As theyhave pleaded that they were innocent and they have been falselyimplicated, they were tried for the aforesaid offences in the Court ofAdditional Sessions Judge, Rewari, in Sessions Case No.32 of 2009.The learned Additional Sessions Judge by judgment dated 14.01.2010,Eheld all the accused guilty for commission of offences punishable underSections 224, 225, 332, 353, 302 r/w Section 120-B of the Indian PenalCode. The accused Amarjit Singh and Surender Singh @ Dhattu werefurther held guilty for commission of offence punishable under Section25 of the Arms Act. By order dated 18.01.2010 on the quantum ofFsentence, they were sentenced to life imprisonment along with fine ofRs.5,000/- each for the offences under Section 302 r/w Section 120-Bof the Indian Penal Code, apart from conviction for other offences, asreferred above. The sentence for various offences was ordered to runconcurrently.G5. Aggrieved by the judgment of conviction and sentence imposedby the Sessions Court, the appellant herein, and four other accused havepreferred separate appeals before the High Court of Punjab and Haryanaat Chandigarh. All the appeals were dismissed by common judgmentdated 17.03.2020, confirming the conviction and sentence imposed bythe Sessions Court. Hence this Appeal.H

6. The 3[rd] Accused Parveen @ Sonu is appellant in the presentAppeal. We were informed that no appeals were preferred by otheraccused in the common judgment of the High Court.

7. We have heard Mr. Rishi Malhotra, learned Counsel appearingfor the Appellant and Ms. Bansuri Swaraj, learned Addl.AG appearingfor the respondent – State of Haryana and carefully perused the materialavailable on record.

8. In this Appeal, it is contended by learned Counsel for theappellant that though there was no concrete proof to establish theparticipation of the appellant in the alleged crime, the Trial Court as wellas the High Court believed the prosecution story in absence of anysupporting evidence and convicted him. It is submitted that except thealleged confessional statements of co–accused, there was no otheracceptable evidence to connect the appellant herein to the crime. It issubmitted that as per the case of prosecution, apart from the policeparty who were escorting accused in the train, there were about 50–60passengers. No independent witness was examined. Out of the fouryoung boys who boarded the train, only one was having a country madepistol and fired. There was no TIP (Test Identification Parade) conducted.The accused, who was apprehended as per the prosecution, was onlyVinod and all the other three persons fled away. But the other personwho is stated to be identified, was Amarjit who had fired a shot uponArjun Singh, Head Constable. It is submitted that though there wasabsolutely no evidence to connect the appellant/accused, the Trial Courthas convicted the appellant in absence of any acceptable evidence toprove the guilt of the appellant. It is submitted that even the High Court,except recording the depositions of all the witnesses, has not consideredany of the grounds urged, and dismissed the Appeal. In support of thecase of the appellant, learned Counsel has relied on the judgment of thisCourt in the case of Indra Dalal v. State Of Haryana[1]and the judgmentof this Court in the case of Uppa alias Manjunatha v. State ofKarnataka[2].

9. On the other hand, learned Addl.AG appearing for therespondent – State supported the view taken by the Courts below. Shesubmitted that there was sufficient material and evidence on record whichclearly establishes the guilt of the accused, beyond reasonable doubt. It 1 (2015) 11 SCC 31

2 (2013) 14 SCC 729

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Ais submitted that there was credible evidence available on record tobelieve that appellant was a party to the accused group, who conspiredtogether to rescue the other four accused, who were being taken by thepolice party to produce before the Court. Learned Counsel in support ofher argument to prove the case of the prosecution of criminal conspiracy,has relied on the judgment of this Court in the case of FirozuddinBBasheeruddin and Others v. State of Kerala[3]. Further, on the aspectof confessional statements made by the co-accused, has relied on thejudgment of this Court in the case of Raju Manjhi v. State of Bihar[4].

10. Having heard the learned counsels on either side, We havegiven our thoughtful consideration to the facts and circumstances of theCcase and the material placed on record. We have also perused depositionsof various witnesses which are placed on record. To prove the case, theprosecution has examined as many as 23 witnesses. PW-1, PW-3, PW-4, PW-7 and PW-21 are doctors. PW-6 is Sub-Inspector of Police andhe was on duty on 14.03.2009 at Police Station GRP Rewari. In the

Dstatement, he has referred to the disclosure statement of the otheraccused by name Vinod, which was exhibitted as Ex.PS. In his cross-examination, he has deposed that several persons were assembled atthe place of occurrence, but none of them was ready to join or associatewith investigation. PW-16 is ASI Ajit Singh, who has deposed that accusedSunil @ Bachhu made a disclosure statement. PW-18 is Sub-InspectorEPratap Singh, who has deposed that on 11.05.2009, stating that he alongwith other police officials arrested accused Amarjit @ Dana and Surender@ Dattu. He referred to the disclosure statement made by accusedAmarjit. PW-20 is Constable Inder Raj, who is the eye-witness. In hisdeposition, he has stated that when the train reached Railway Station, FNangal Pathani, four boys aged about 20–25 years, entered theircompartment and one of them was carrying a polythene bag and oneother was armed with country made pistol. He too has deposed thatapprehended accused was Vinod and he clearly stated that he had thrownchilly powder in their eyes and accused Amarjit, who had fired a shot upon Arjun Singh, Head Constable. In the cross-examination, he deposedGthat there were as many as 50–60 passengers in the compartment. It isto be noticed that PW-20 Inder Raj has not referred the name of theappellant / accused i.e. Parveen @ Sonu in his deposition. PW-22 isanother Constable by name Satbir, who has corroborated the statement3 (2001) 7 SCC 596H4 (2019) 12 SCC 784

of PW-20. He too has deposed that accused Vinod had thrown chillypowder on them and other accused by name Amarjit had fired at ArjunSingh, Head Constable. PW-23 is Sub-Inspector Randhir Singh, whodeposed that on 14.03.2009, he recorded the statement of ConstableInder Raj.

11. The Trial Court has passed the conviction of the appellantherein, mainly relying on the medical reports and depositions of PW-20,PW-22 and PW-23. Even according to the case of the prosecution, onlyfour accused have entered the train and one of them who was identifiedas Vinod, had thrown chilly powder in their eyes and other accusedAmarjit had fired a shot upon Arjun Singh, Head Constable. It is alsoclear from the cross-examination of PW-20 that there were about 50–60 passengers in the compartment, but no one was examined. EvenPW-22 Constable Satbir, who has corroborated the Statement of PW-20, disclosed the names of Vinod and Amarjit Singh only. Except thevague and bald statement that the appellant herein is a member of allegedconspiracy, there is no other acceptable evidence on record to proveconspiracy. For the reasons not known, in a case of this nature, theinvestigating agency has not conducted TIP (Test Identification Parade).Except the alleged confessional statements of co-accused, there is noother evidence on record to implicate the appellant. It is also brought toour notice that the appellant was prosecuted for snatching away theBolero car in Criminal Case No.535 of 2009 in the Court of HCS, JudicialMagistrate, 1[st] Class, Bhiwani, he was acquitted of the charge foroffences under Sections 392, 216 r/w Section 34 of the Indian PenalCode and the said judgment has become final.

12. It is fairly well settled, to prove the charge of conspiracy,within the ambit of Section 120-B, it is necessary to establish that therewas an agreement between the parties for doing an unlawful act. At thesame time, it is to be noted that it is difficult to establish conspiracy bydirect evidence at all, but at the same time, in absence of any evidenceto show meeting of minds between the conspirators for the intendedobject of committing an illegal act, it is not safe to hold a person guiltyfor offences under Section 120-B of IPC. A few bits here and a few bitsthere on which prosecution relies, cannot be held to be adequate forconnecting the accused with the commission of crime of criminalconspiracy. Even the alleged confessional statements of the co-accused,in absence of other acceptable corroborative evidence, is not safe to A

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Aconvict the accused. In the case of Indra Dalal v. State OfHaryana[1],this Court has considered the conviction based only onconfessional statement and recovery of vehicle used in the crime. In thesaid case, while setting aside the conviction, this Court has held inparagraphs 16 & 17 as under:

B“16. The philosophy behind the aforesaid provision isacceptance of a harsh reality that confessions are extortedby the police officers by practising oppression and tortureor even inducement and, therefore, they are unworthy ofany credence. The provision absolutely excludes fromevidence against the accused a confession made by him toCa police officer. This provision applies even to thoseconfessions which are made to a police officer who may nototherwise be acting as such. If he is a police officer andconfession was made in his presence, in whatever capacity,the same becomes inadmissible in evidence. This is theDsubstantive rule of law enshrined under this provision andthis strict rule has been reiterated countlessly by this Courtas well as the High Courts.

17. The word “confession” has nowhere been defined.However, the courts have resorted to the dictionaryEmeaning and explained that incriminating statements by theaccused to the police suggesting the inference of thecommission of the crime would amount to confession and,therefore, inadmissible under this provision. It is alsodefined to mean a direct acknowledgment of guilt and notthe admission of any incriminating fact, however grave orFconclusive. Section 26 of the Evidence Act makes all thoseconfessions inadmissible when they are made by any person,whilst he is in the custody of a police officer, unless such aconfession is made in the immediate presence of aMagistrate. Therefore, when a person is in police custody,Gthe confession made by him even to a third person, that is,other than a police officer, shall also become inadmissible.

13. Further, in the case of Uppa alias Manjunatha v. State ofKarnataka[2], this Court has held that when an accused is held guilty andsentenced to imprisonment, confirmation of sentence by the High CourtHis justifiable only in the event of giving sound reasons upon analysis of material evidence. In the case on hand, a perusal of the judgment of theHigh Court reveals that except referring to depositions, High Court hasnot considered the evidence at all and confirmed the conviction andsentence as ordered by the Trial Court. The judgments relied on by thelearned Addl.AG in the case of Firozuddin Basheeruddin and Othersv. State of Kerala[3] and in the case of Raju Manjhi v. State of Bihar[4],are not helpful to support the case of prosecution, having regard to thefacts of the case and evidence on record.

14. On close scrutiny of evidence on record, we are of theconsidered view that prosecution has failed to prove its case, that theappellant herein, has conspired with other accused for the offences forwhich he was charged. Except the alleged confessional statements ofthe co-accused and in absence of any other corroborative evidence, it isnot safe to maintain the conviction and sentence imposed upon theAppellant. The findings recorded by the Trial Court in convicting theappellant mainly on the ground that he was one of the conspirators forthe crime in question, is erroneous and illegal. The High Court has notconsidered the evidence on record in proper perspective and erroneouslyconfirmed the conviction and sentence imposed on the appellant.

15. For the aforesaid reasons, this appeal is allowed. Convictionrecorded and sentence imposed on the appellant is, hereby, set aside andhe is acquitted of the charges levelled against him. The appellant bereleased forthwith, unless his custody is required in connection with anyother case.

Divya Pandey

Appeal allowed.

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