Holding

Identification without a test parade is weak, no common object was proved, and the constable’s death was caused by a police weapon, therefore the convictions under the IPC and the Arms Act cannot stand.

Summary

The appellants were accused of a gun‑battle with police in a village, during which a police constable and an alleged dacoit died. The trial court convicted them under Sections 302, 307, 353 read with 34 of the IPC, while the High Court affirmed the conviction. The Supreme Court held that the identification of the accused was made for the first time in court without a test identification parade, which is unreliable, and that no common object or intention under Section 34 was proved. It also found that the constable’s death was caused by a police service revolver, not by any weapon of the accused, and that no firearm was recovered from the accused to sustain the Arms Act charge. Consequently, the Court allowed the appeals and set the appellants at liberty.

Issues considered

The reliability of identification of the accused made for the first time in court without a test identification parade.
Whether a common object or common intention under Section 34 IPC can be inferred when some accused did not commit any overt act and no common object is proved.
Whether the death of the police constable was caused by the accused’s firearm or by a police service revolver.
Whether the charge under Section 25 of the Arms Act can be sustained without recovery of a weapon from the accused.

Legislation cited

Arms Act, 1959s. 25, s. 45, s. 59
Indian Penal Code, 1860s. 149, s. 302, s. 307, s. 34, s. 353

Subjects

identification paradecommon intentionSection 34 IPCArms Actacquittalpolice firingevidentiary standardscriminal law

Judgment

[2009) 7 S.C.R. 888

A HEM SINGH @ HEMU
v.
STATE OF HARYANA
Criminal Appeal No. 495 of 2008

MAY 6, 2009
B
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]
Penal code, 1860 - ss. 302, 307, 353134 - Prosecution
under - Gun battle alleged between Police party and accused
party - Resulting in death of one accused, one constable and
C injury to one police official - Admission of Police witnesses
that they did not know the accused from before - Tl Parade
not conducted - Identification of the accused for the first time
in the Court - Death of the constable found to be caused by
service revolver of police - No recovery of such weapon alleged
o to be causing injury- Conviction by courts below- On appeal,
held: Identification of the accused, injuries from the alleged
arms, existence of common object not proved - Murder of the
constable also not proved to be from the weapon of the accused
-Accused liable to be acquitted -Arms Act, 1959 - s. 25.
E Appellants were prosecuted ulss. 302, 307, 353 rlw
s. 34 IPC. Proseuction case was that PW 10 (police
Inspector) got information that one 'S',, appellant-accused
and one accused 'L' would be coming to a particular
-
village. He deputed ASI (PW 3), constable (PW2) and a
F constable 'L' to the said village in civil clothes. The
accused recognized the policemen and opened fire and
a gun battle ensued between them. Accused 'S' and
constable 'L' died on the spot. PW 2 also received a
gunshot injury. Accused 'L' absconded. Appellants-
G accused were arrested. Accused 'H' was arrested in some
other case wherein he, in police custody, admitted his
involvement in the present case and that he and the
absconded accused had fired at the constable
(deceased). In that case, proceedings under Arms Act was

H 888
HEM SINGH @ HEMU V. STATE OF HARYANA 889

-; initiated against him, wherein he was acquitted. In the A
instant case, charges u/ss. 353, 302, 307 rlw s. 34 IPC were
framed against the accused persons. Additional charge
uls. 25 of Arms Act was framed against accused 'V'. Trial
court convicted all the accused u/ss. 302, 307, 353 rlw s.
34 IPC. Accused 'V' was acquitted of the charge uls. 25 of B
Arms Act. High Court confirmed the conviction. Hence the
present appeals.
Allowing the appeals, the Court
• HELD: 1 Courts, ordinarily, do not give much c
credence to identification made in the court for the first
time and that too after a long time. In the present case,
P.Ws.1, 2 and 3 in their depositions admitted that they had
not been knowing the accused from before and despite
so, no Test Identification Parade was held. The accused
D
persons having been identified for the first time in the
court, it is difficult for any court to rely upon the same and
that too after such a long time. Appellants were not known
to the police officers, they were not involved in any other
case. In fact, so far as appellant-accused 'H' is concerned,
no case at the relevant time was pending against him. Only E
because the deceased accused allegedly called them by
their names, which appears to be wholly unlikely, they
could not have been identified particularly in view of the
fact that the incident had taken place in an isolated area
and that too on a dark night. [Paras 10 and 11] [ 898-G-H; F
899-A-C]
Mahabir v. The State of Delhi 2008 (6) SCALE 52;
Amitsingh Bhikamsing Thakur vs. State of Maharashtra (2007)
2 SCC 310; Bollavaram Pedda Narsi Reddy and Others v. G
State of Andhra Pradesh (1991) 3 sec 434 - relied on.
..,. Nathuni Yadav vs. State of Bihar (1998 ) 9 SCC 238;
Bharosi vs. State of M.P (2002) 7 SCC 239; S. Sudershan
Reddy vs. State of A.P (2006) 10 SCC 163; State of UP vs.
Sheo Lal and Ors 2009 (2) SCALE 582 - distinguished. H
890 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 2. It stands admitted that as on the date of r
commission of offence appellant-accused 'H' was not
involved in any other criminal case. Trial Judge did not
frame any charge as against accused 'H' or accused 'S' (

for commission of offence under the Arms Act. It is also
undisputed that appellant-accused 'V' has been acquitted
B
in the case of possessing a firearm. Three bullets were
recovered by the investigating officer; two of them which
had hit the deceased accused and the constable were
fired from .38 bore revolver.. 38 bore revolvers indisputably
were used by the police officers. P.W.2 however, received
c a gunshot injury fired from .315 weapon. No such weapon
was recovered from any one of the accused. [Paras 7 and
8] [895-G-H; 896-A-B]
-
3. Existence of any common object amongst the
accused had also not been proved. The deceased
D accused furthermore could not have been instrumental
in murdering the police constable. The constable died of
a firearm injury shot from a service revolver, i.e., at the
hands of the police party only. Such a revolver, thus, was
not and could not have been used by any of the accused
E persons. [Para 12 & 13] [901-C-D]
Yunis@ Kariya vs. State of M.P (2003) 1 SCC 425 -
referred to.
Case Law Reference
F 2008 (6) SCALE 52 Referred to Para 10
(2001) 2 sec 310 Referred to Para 10
(1991) 3 sec 434 Relied on. Para 11
(1998) 9 sec 238 Distinguished Para 11
G
(2002) 1 sec 239 Distinguished Para 11
(2006) 1o sec 163 Distinguished Para 11 ...
2009 (2) SCALE 582 Distinguished Para 11

H (2003) 1 sec 425 Referred to. Para 12
HEM SINGH @ HEMU V. STATE OF HARYANA 891

"' CRIMINALAPPELLATE JURIS.DICTION: Criminal Appeal A
No. 495 of 2008
From the Judgement and Order dated 01.08.2006 of the
High Court for the States of Punjab and Haryana at Chandigarh
in Criminal Appeal No. 392-DB of 2005.
B
WITH

Criminal Appeal No. 496 of 2008
t
Sushi! Kumar Atul Kumar, S.K. Verma, Manish Mohan,
... Anita Mohan, Nirmal K. Ambastha (for Ugra Shankar Prasad), c
for the Appellant.
Rajeev Gaur 'Naseem', Satish Kumar Hooda (for T.V.
George), for the Respondent.
The Judgement of the Court was delivered by
D
;. S.B. SINHA, J.
1. These two appeals arising out of a common judgment
and order dated 1.8.2006 passed by a Division Bench of the
Punjab & Haryana High Court at Chandigarh in Criminal Appeal
E
Nos. 311-DB of 2005 and 392-DB of 2005 were taken up for
hearing together and are being disposed of by this common
judgment.
2. Appellants were prosecuted for commission of offences
punishable under Section 302, 307, 353 and 34 of the Indian F
Penal Code (for short, "IPC"). They were, it is of some
significance, not charged for commission of offence punishable
under Section 25 of the Arms Act.
3. The prosecution case is as under.
G
During the night intervening 24/25.12.1999, Inspector
Kuldeep Singh (P.W.10) received a secret information that the
accused Sattey (since deceased), Sunil, Vinod, Hemu
(appellants herein) and one Pappu@ Lilu (absconding) of U.P.
(said to be dacoits), would be coming to Lakarpur. On the basis
H
892 SUPREME COURT REPORTS [2009] 7 S.C.R.

A of the said information, Inspector Kuldeep Singh deputed ASI
Randhir Singh (P.W.3), Constable Ramesh Kumar (P.W.2) and
Constable Lasker Singh (deceased) to the said village in civil
cloths. Allegedly, on recognizing the policemen, accused
persons opened fire and a gun battle ensued between them.
B Accused Sattey alias Satender received a gun shot injury. He
died on the spot. Other accused persons were said to have fled
away. Constables Ramesh Kumar (P.W.2) and Lasker Singh
chased them. While the exchange of fire was going on, Lasker
Singh received a gunshot injury. He also died on the spot. P.W.
c 2 also received a gunshot injury.
A First Information Report ("FIR" for short) was lodged by
P.W.10 in respect of the aforesaid incident at about 1.30 a.m.
-
registered as FIR No. 775 dated 25.12.1999 under Sections
302, 307, 353 IPC and Sections 25, 45 and 59 of the Arms Act
D at P.S. NIT Faridabad.
On the same day, i.e. on 25.12.1999, P.W. 10 prepared a
site plan in which the name of the appellant - Hemu was not
mentioned.
E On or about 5.1.2000, P.W.10 arrested Vi nod from Village
Dagarpur, Police Station Khekhra (UP). He was interrogated
on 6.1.2000 and 11.1.2000 and on the basis of his purported
disclosure, a pistol was recovered. On or about 19.1.2000, the
Investigating Officer arrested Sunil from Delhi after obtaining
F warrants of his arrest and recorded his confessional statement
on 23.1.2000. He also took in possession the pistol and the car
said to have been used by the accused on 25.12.1999.
Indisputably, Hemu was arrested on 6.1.2000 by Inspector
Palvinder Singh (P.W. 17) while he was riding on a red Yamha
G Motorcycle. Allegedly, a pistol was recovered from him. A case
under Section 302, 185, 353 IPC and 27 Arms Act had been
registered against him being FIR No. 4 of 2000 at P.S Sarita
Vihar, New Delhi. A disclosure statement of Hemu was recorded
on or about 6.1.2000. It is alleged that Hemu was forced to admit
H his involvement in the present case and the said disclosure
HEM SINGH @ HEMU V. STATE OF .HARYANA 893
[S.B. SINHA, J]

' statement was obtained by undue influence and coercion at the A
hands of police.
Indisputably, another disclosure statement of Hemu while
he was in police custody on 2.2.2000 was recorded wherein it
was mentioned that the Hemu and Lilu had fired at Constable
Lasker Singh who had died. A case under Arms Act was initiated B
against him. He was acquitted in the aforesaid case by the
learned Additional Sessions Judge, New Delhi in Appeal No.
101 of 2001 holding that the alleged firearm was not in a working .
order and the same could not have been used.
c
The postmortem was conducted on the bodies of
Constable Lasker Singh and accused Sattey. The Postmortem
reports were submitted and the recovered articles were·taken
in custody and a memo therefor was prepared.
Accused Pappu could not be arrested, therefore, he was D
\. declared a 'proclaimed offender'.
After completion of the investigation, charge sheet was
filed against Hemu, Vinod, Sunil (appellants herein) and Pappu
@ Lilu. Charges under Section 353, 302, 307 IPC read with
Section 34 IPC were framed against the accused persons while E
additional charge under Section 25 of the Arms Act was framed
only against Vinod.
Accused persons denied the charges and claimed to be
.. tried. F
4. A large number of witnesses were examined by the
prosecution in support of its case.
After considering the materials on record, the learned trial
judge, Faridabad held all the accused persons guilty for G
commission of the offences under Sections 302, 307 and 353
of IPC read with Section 34 of IPC. However, Vinod was
""
"' acquitted in respect of the charge under Section 25 of the Arms
Act.
5. Criminal Appeals preferred thereagainst were H
894 SUPREME COURT REPORTS [2009] 7 S.C.R.

A dismissed by the High Court by reason of the impugned
judgment, inter alia, holding:
"We do not find any merit in the arguments advanced by
the learned counsel for the appellants that since no injury
is attributed to Hem Singh alias Hemu accused, therefore,
B he cannot be said to have shared common intention with
all the accused because it has come in evidence that
accused were five in numbers. Admittedly, accused Sattey
and other accused were required in number of cases
t·
relating to dacoity and other heinous crimes. The police
c party had secret information and was following them with
an intention to nab them. Such accused persons who
always remained equipped with the loaded arms to face
resistance of any kind from any source, certainly had the
common intention. It is something different that out of five
D accused, one accused namely Sattey died and the other
ran away, whereas three accused namely Hem Singh alias
Hemu, Vinod and Sunil were arrested. The arms were
recovered from them, therefore, Hem Singh though has
not been attributed any injury, could not be said to have no
E common object and did not participate in the crime along
with the accused, therefore, complicity of accused Hem
Singh alias Hemu cannot be ruled out since the three
accused were arrested and, therefore, their conviction
under Section 34 of IPC was justiciable. .
F No other point has been urged and no law has been cited
to assail the impugned judgment.
The close scrutiny of the trial court judgment does not
suggest any apparent illegality suggesting interference by
us."
G
6. It is not in dispute that none of the prosecution witness
knew any of the accused - appellants. However, in Column No.2
.... J·
'
of the FIR, not only their names but also their parentage and
complete addresses were stated. It is, however, not clear as to
H whether the name of the accused Hemu was recorded in the
HEM SINGH @ HEMU. V. STATE OF HARYANA 895
[S.B. SINHA, J]

said FIR or not, the translated version thereof has been placed A
before us. We may reproduce the same:

-1'
"At the Police Station
On receipt of original writing a case (FIR) under above
said offence has been registered, Copies of FIR have B
been prepared as per procedure which are being sent to
the concerned officers as a special report through special
constable Ram Kishan No. 1825. Copy of police file
together with original writing is being sent to the Inspector
....,
CIA for further investigation at the spot through in coming c
~
constable. I, the lnspector/SHO of the police station along
with C. Shiv Parshad 1441. C. Suraj Mal 2106 on official
Jeep driven by C. Sumler Singh 1824 proceed to the spot.
'.__

Sd/- Kuldeep Singh
lnsp./SHO P.S. NIT D
:-
Faridabad
Dt. 25.12.99
(in Hindi)
Received at 4.40 A.M. at my residence E
Sd/-
CJM, Faridabad

.. 25.12.99"

7. Accused Hemu was arrested on 6.1.2000 at Delhi. He , F
<'

was found to have been in possession of a firearm. In that case,
he is said to have been confessed his involvement in the present
case. He was arrested in this case on 22.1.2000 on the basis
of a production warrant issued from Delhi by P.W.10.
G
It, however, now stands admitted that as on the date of
•.' commission of offence Hemu was not involved in any other

•' criminal case. It is also undisputed that accused Vinod has been
acquitted in the case of possessing a firearm.
We may furthermore place on record that three bullets were H
896 SUPREME COURT REPORTS [2009] 7 S.C.R.

A recovered by the investigating officer; two of them which had hit
Accused Sattey and Constable Lasker Singh were fired from
.38 bore revolver.. 38 bore revolvers indisputably were used by
the police officers.

P.W.2 Ramesh, however, received a gunshot injury fired
8
from .315 weapon. No such weapon was recovered from
accused Sunil, Vinod or Hemu.

So far as the recovery of weapon from Hemu and Sunil
are concerned, as noticed hereinbefore, Hemu had been
c acquitted of the charge of possessing any weapon by a Delhi ,,;;,,
Court.

So far as the finding of the High Court that Sattey and the
other accused persons were required in a number of cases for
committing dacoity and other heinous crimes are concerned,
-
D we may notice that Kuldeep Singh (P.W. 10) categorically
..
admitted that no case was pending against accused Hemu at
the time of occurrence.

8. The learned trial judge did not frame any charge as
..
against Hemu or Su nil for commission of offence under the Arms
E
Act. Even Vinod was acquitted of that charge.

Appellants herein admittedly were not known to the police
officers. Only Sattey was known to them. P.W.1 -Anoop Singh
in his deposition categorically admitted that he did not know ~

F the assailants previously. After their arrest, no identification
parade test was held. Although the first informant as also
witnesses in their depositions proceeded on the basis that all
the accused had been coming in a Maruti Car and they were
heavily armed, no arm was recovered from any of them.
G The only statement which was relevant for this case had
been made by P.W.2 - Ramesh Kumar in the following terms:
.,,,,
"Accused Sattey, who has since died said to his
companions pointing towards us, that police men in plain
clothes have come and called upon Lilu, Hem Singh and
H
HEM SINGH @ HEMU V. STATE OF HARYANA. 897
[S.B. SINHA, J.]

Vinod to open fire on us. Then those persons who were A
five in number started firing at us."
9. How their names could be taken is beyond anybody's
comprehension. Even two persons, namely, Lilu and Vinod were
called by their first names. How the Officer In-charge even could·
ascertain their actual names has not been disclosed. He 8
admitted that apart from Sattey, he had not seen any accused
persons on previous occasion. Why despite the same,
identification parade was not held has not been explained.
Appellants were identified only in court.
c
10. Mr. Rajeev Gaur 'Naseem' learned counsel appearing
on behalf of the State would contend that identification for the
first time in court is permissible in law.
There cannot be any dispute so far as the aforementioned
\.
proposition of law is concerned. The said principle, however, D
should be applied having regard to the facts and circumstances
of each case. Courts, as is well known, ordinarily, do not give
much credence to identification made in the court for the first
time and that too after a long time.
In Mahabir v. The State of Delhi [2008 (6) SCALE 52], E
this Court held:
"10. As was observed by this Court in Matru v. State of
. UP. (1971) 2 sec 75 identification tests do not constitute
substantive evidence. They are primarily meant for the F
purpose of helping the investigating agency with an
assurance that their progress with the investigation into
the offence is proceeding on the right lines. The
identification can only be used as corroborative of the
statement in court. (See Santokh Singh v. lzhar Hussain G
(1973) 2 sec 406). The necessity for holding an-
4 ,

identification parade can arise only when the accused are
not previously known to the witnesses. The whole idea of
a test identification parade is that witnesses who claim to
have seen the culprits at the time of occurrence are to H
898 SUPREME COURT REPORTS [2009) 7 S.C.R.

A identify them from the midst of other persons without any
aid or any other source. The test is done to check upon
their veracity. In other words, the main object of holdin.9 an
identification parade, during the investigation stage, is to
test the memory of the witnesses based upon first
B impression and also to enable the prosecution to decide
whether all or any of them could be cited as eyewitnesses
of the crime. The identification proceedings are in the
nature of tests and significantly, therefore, there is no
provision for it in the Code and the Indian Evidence Act,
c 1872 (in short the 'Evidence Act'). It is desirable that a test
identification parade should be conducted as soon as
possible after the arrest of the accused. This becomes
necessary to eliminate the possibilitv of the accused being
shown to the witnesses prior to the test identification
parade. This is a very common plea of the accused and. ~
D
therefore. the prosecution has to be cautious to ensure
that there is no scope for making such allegation. If,
however, circumstances are beyond control and there is
some delay, it cannot be said to be fatal to the prosecution."

E 11 . It is trite to say that the substantive evidence is the
evidence of identification in Court. Apart from the clear
provisions of Section 9 of the Evidence Act, the position
in law is well settled by a catena of decisions of this Court.
The facts, which establish the identity of the accused
F persons, are relevant under Section 9 of the Evidence
Act. As a general rule, the substantive evidence of a
witness is the statement made in Court. The evidence of
mere identification of the accused person at the trial for
the first time is from its very nature inherently of a weak
character."
G
{See also Amitsingh Bhikamsing Thakur vs. State of
Maharashtra [(2007) 2 SCC 310]}
In the present case, P.W.1, 2 and 3 in their depositions
admitted that they had not been knowing the accused from before
H
HEM SINGH @ HEMU V. STATE OF HARYANA 899
[S.B. SINHA, J.]

and despite so, no test identification parade was held. The A
accused persons having been identified for the first time in the
court, it is difficult for any court to rely upon the same and that
too after such a long time.
11. As indicated hereinbefore, appellants were not known
to the police officers; they were not involved in any other case. B
In fact, so far as the Hemu is concerned, no case at the relevant
time was pending against him. Only because Sattey allegedly
called them by their names, which appears to be wholly unlikely,
they could not have been identified particularly in view of the
fact that the incident had taken place in an isolated area and C
that too on a dark night.
In Bollavaram Pedda Narsi Reddy and Others v. State,of
Andhra Pradesh, [(1991) 3 SCC 434)], this Court held:
"In the present case, the appellants are admittedly persons D
with whom the two witnesses had no previous
acquaintance. The occurrence happened on a dark night.
When the crime was committed during t~e hours of
darkness and the assailants are utter strangers to the
witnesses, the identification of the accused persons E
assumes great importance. The prevailing light is a matter ·
of crucial significance. The necessity to have the suspects
identified by the witnesses soon after their arrest also
arises ... "
In Nathuni Yadav vs. State of Bihar ((1998 ) 9 SCC 238], F
whereupon reliance has been placed by the learned counsel
for the State, this Court observed that the lack of moonlight or
artificial light does not per se preclude identification of the
assailants. It was noted as follows (particularly where the
accused are known from before): G
.., ~ "Even assuming that there was no moonlight then, we have
to gauge the situation carefully. The proximity at which the
assailants would have confronted with the injured, the
possibility of some light reaching there from the glow of H
900 SUPREME COURT REPORTS [2009] 7 S.C.R.

A stars, and the fact that the murder was committed on a
roofless terrace are germane factors to be borne in mind
while judging whether the victims could have had enough
visibility to correctly identify the assailants. Over and above
those factors, we must bear in mind the further fact that the
B assailants were no strangers to the inmates of the tragedy-
bound house, the eyewitnesses being well acquainted with
the physiognomy of each one of the killers. We are,
therefore, not persuaded to assume that it would not have
been possible for the victims to see the assailants or that
c there was possibility for making a wrong identification of
them. We are keeping in mind the fact that even the
assailants had enough light to identify the victims whom
they targeted without any mistake from among those who
were sleeping on the terrace. If the light then available,
though meagre, was enough for the assailants why should
D
we think that the same light was not enough for the injured
whowould certainly have pointedly focussed their eyes on
the faces of the intruders standing in front of them. What
is sauce for the goose is sauce for the gander."

E The said principle was reiterated in Bharosi vs. State of
M.P. ((2002) 7 SCC 239] and S. Sudershan Reddy vs. State of
A.P. [(2006) 10 sec 163].
{See also State of UP. vs. Shea Lal & Ors. [2009 (2)
t= SCALE 582]} .. '-
However, in our opinion, the said principle is not applicable
in the present case as there was no specific targeting by the
assailants here. What ensued between the parties was a pitched
gun battles which lasted for only five to six minutes close to
G midnight and that too at a considerable distance.
12. Mr. Naseem would also submit that as Sattey was
involved in commission of a large number of offences, all others
could be proceeded against for commission of offence under
Section 302/49 of the IPC.
H
HEM SINGH @ HEMU V. STATE OF HARYANA 901
[S.B. SINHA, J]

Reliance in this behalf has been placed on Yunis Alias A
Kariya vs. State of MP [(2003) 1 SCC 425], wherein it was held:
"9. The learned counsel appearing for appellant Liyaquat
argued that no overt act is imputed to his client and he
was being implicated only on the basis of Section 149
IPC. This argument, in our view, has no merit. Even if no B
overt act is imputed to a particular person, when the charge
is under Section 149 IPC, the presence of the accused as
part of an unlawful assembly is sufficient for conviction."
Although the proposition of law enunciated therein is not c
in question, herein no charge under Section 149 has been
framed. Existence of any common object amongst the accused
had also not been proved.
13. Sattey furthermore could not have been instrumental
in murdering Lasker Singh. Laskar Singh died of a firearm injury D
shot from a service revolver, i.e., at the hands of the police party
only. Such a revolver, thus, was not and could not have been
used by any of the accused persons.
14. For the aforementioned reasons, the impugned
judgment of the High Court cannot be upheld. The appeals are E
allowed. The appellants are directed to be set at liberty unless
wanted in connection with any other case.

K.K.T. Appeals allowed.
F

G

H