PREM SINGHversusSTATE OF HARYANA

               (2011] 13 (ADDL.) S.C.R. 949

                       PREM SINGH                                A
                              v.
                   STATE OF HARYANA
             (Criminal Appeal No.925 of 2009)
                   SEPTEMBER 2, 2011
     I                                                           8
[HARJIT SINGH BEDI AND GYAN SUDHA MISRA, JJ.]

    Penal Code, 1860: ss. 302134 - Murder with common
intention - Victim-deceased shot in broad daylight - PW-16,
the brother of the victim-deceased was informed by his           c
neighbour 'VK' that some persons came in a car and fired
shots at the victim-de.ceased causing him serious injuries -
 Victim brought dead to hospital - As per the statement of
widow of the victim, her husband had property dispute with
accused 'DR' and the murder was committed as a                   o
consequence of the conspiracy hatched by him along with the
co-accused - Appellant and other co-accused arrested - ·
Appellant was arrested from jail where he was already
incarcerated in some other cdminal case - Appellant was
sought to be produced for a test identification parade but he E
 declined to do so - Statements of PW-11 and PW-12 claiming
 to be eye-witnesses to the murder on record - 'VK' who had
informed about the incident to PW-16 was, however, not
 examined- Trial court acquitted the. accused holding that the
 charges levelled against them were not proved - High Court
 set aside the acquittal of the appellant and co-accused 'VB' F
 and convicted them u/ss. 302134 but upheld the acquittal of
 other co-accused - On appeal, lletd: per Harjit Singh Bedi,
 J: Non-examination of 'VK' was fatal to prosecution case -
  The presence of PWs 11 and 12 was in serious dispute since
 they were resident of another city- In the light of the uncertain G
 eye witness account and the fact that 5 of the 7 accused stood
  acquitted on the same evidence, the order of the trial court of
  acquittal is restored - per Gyan Sudha Misra, J (Dissenting):

                              949                                 H
    950    SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R.


 A Eye-witnesses PWs 11 and 12 gave a graphic description of
   the incident and stood the test of scrutiny of cross-examination
   but ttre accused had declined to participate in the test
   identification parade - If the accused-appellant had reason
   to do so, specially on the plea that he had been shown to the
8 eye-witnesses in advance, the value and admissibility .of the
   evidence of T.I. Parade could have been assailed by the
  defence at the stage of trial in order to demolish the value of
   T.I. Parade - But merely on account of the objection of the
  appellant, he could not have been permitted to decline from
C participating in the T.I. Parade from which adverse inference
  can surely be drawn against him at least in order to
  corroborate the prosecution case - Two eye-witnesses
  narrated the complete chain of incident in their depositions
  which were recorded merely after a few hours of the
  occurrence - Version of the eye-witnesses was not
D contradicted by the defence in any manner - Conviction of
  the appellant ulss.302134 confirmed - In view of the
  divergence in views, the matter referred to larger Bench.

        The prosecution case was that on the fateful day, the
E victim-deceased had gone for morning walk. PW-16, the
   brother of the victim-deceased was informed by his
   neighbour 'VK' that some persons came in a car and
   fired shots at the victim-deceased causing him serious
   injuries. PW-16 rushed to the place of occurrence. The
F victim-deceased was taken to hospital where fie was
  declared brought dead. The statement of PW-16 was
  recorded in the hospital. PW-23, the Inspector went to the
  place of occurrence and recorded the statements of PW-
  11 and PW-12 who claimed to be eye-witnesses to the
G murder. He also recorded the statement of PW-13, the
  widow of the deceased who gave information that
  accused 'DR' had property dispute with her husband and
  the murder was committed as a consequence of the
  conspiracy hatched by 'DR' along with the co-accused.
H The appellant an.d other co-accused were arrested. The
       PREM SINGH v. STATE OF HARYANA                  951


appellant was arrested from jaii where he was already A
incarcerated in some other criminal case. The appellant
was sought to be produced for a test identification parade
but he declined to do so.

    The prosecution examined PW-11, PW-12, PW-13 and B
PW-16. 'VK' who had informed the incident to PW-16 was
however not examined. The trial court acquitted two
accused even prior to the recording of the statements of
the accused 'under Section 313, Cr.P.C. for. want of
evidence against them. The trial court acquitted rest of the C
accused holding that the charges levelled against them
were not proved. The High Court upheld the acquittal of
three accused but set aside the acquittal of the appellant
and co-accused 'VB' and convicted them under Sections
302/34 IPC. The instant appeal was filed challenging the
order of the High Court.                                    · D

    Referring the matter to larger bench, the Court
Per Harjit Singh Bedi, J:

    Held:                                                    E

     1. Of the 7 accused only 2 stood convicted whereas
the evidence with respect to all of them was identical. The
High Court's interference in an appeal against acquittal
is greatly circumscribed and though the Court is justified F
in reappraising the evidence to arrive at an independent
conclusion, yet if the reasons given by the trial court for
acquittal were germane and relevant on the evidence,
interference by the High Court should not be made on
the premise that a different view was also possible. This G
principle emanates from the broader principle that an
accused is entitled to claim a plea of innocence and it is
for the prosecution to prove its case beyond doubt and
if the trial court has acquitted an accused, the
presumption of innocence is greatly strengthened. The H
    952   SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A · High Court has ignored this long settled dictum. The trial
    court was greatly influenced by the fact that 'VK' was not
    even ·cited as an eye witness. The incident happened at
    about 7 or 7.30 a.m. on the 26th November 1993 and the
    statement of PW-16 was recorded in the hospital at 9 a.m.
B the same day with no clue as to the assailants and on
    its basis the first information report was registered in the
    Police Station a short while later. Significantly, however,
   the statement of 'VK' was recorded by the poli"ce for the
   first time on the 28th March 1994 and that too when the
c Public Prosecutor had raised an objection while checking
   the challan before its presentation in Court. Faced with
   this situation, the Public Prosecutor had submitted
    before the trial court that 'VK' had not been cited as an
   eye witness as it was in fact the daughter of 'VK' who had
   told him about the incident and that he himself had no
0
   knowledge thereof. This argument was based on the
   statement of the Investigating Officer which was
   introduced for the first time during the course of the
   evidence. This explanation is too an after thought and
   even otherwise meaningless. Assuming therefore that
E 'VK' had, in fact, not been an eye witness and his
   daughter had been the one who had seen the incident,
   the police concededly did not even try to take her
   statement at any stage. The prosecution story has
   accordingly been based on the statements of PW-11 and
F PW-12 who claimed to be eye witnesses. They identified
   the accused for the first time in court. PW-11 also admitted
   in his evidence that he was an employee of Aggarwal
   Sanitary Store which was owned by the brothers of PW-
   13, the wife of the deceased, and that PW-12 was his
G friend and had accompanied him for the morning walk
   when the incident had happened. This story is
   unacceptable for the reason that their conduct
   completely belies their presence. It has come in evidence
   that the two were aware of the identity of the victim and
H knew him by face and name since long and were also
        PREM SINGH v. STATE OF HARYANA                953


conscious of the fact that his house was near the place       A
of murder. Despite this knowledge and his association
with the complainant family, PW-11 did not go to the
house of PW-13 or even inform her brothers who were
his employers as to what had happened or to go to the
police station a very short distance away to lodge a          B
report. On the contrary, it comes out from the evidence
that after the incident PWs-11 & 12 had moved around
aimlessly in Kamal before returning to the murder site at
about 1.30 p.m. where their statements were recorded.
This factor assumes even more significance as the             c
names of these witnesses did not figure in the F.l.R., and
the motive for the murder has been rejected even by the
High Court as the acquittal of 'DR' has been maintained.
[Paras 6, 7, 8) [963-C-H; 964-A-H; 965-A]

     2. The very presence of PWs.11 and 12 in Karnal is       D
in serious dispute. It has come in their evidence that they
were residents of Sunam in the State of Punjab and that
they had shifted from that town to Kamal about 2 months
before the occurrence on account of the fear of terrorism
and had settled down in Kamal by taking accommodation         E
on rent and that they had returned to Sunam some time
in the middle of 1994. The trial court has found, on a deep
appreciation of the evidence, that this story was in doubt
and the reasons have been succinctly spelt out. It has
been found that the two had not given their addresses         F
in Kamal in their 161 Cr.P.C. statements and when cross-
examined by the defence counsel, were unable even at
that stage to give accurate and precise details as to where
they had been living in Kamal or to produce any rent
receipt or document to show residence in Kamal on the         G
day in question. Curiously enough the police did not even
care to get hold of any material as to their residence in
Kamal and no witness was produced to show that they
had ever been residents in Kamal. The trial court has also
noticed that they had shifted from Sunam because of the       H
    954     SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R.


A fear of terrorism in the year 1993 but the two claimed to
  have returned to Sunam in the middle of 1994 when
  terrorism was still at its peak. There is absolutely no
  discussion as to their presence In Kamal on the crucial
  day or to the various factors that have been spelt to rule
B them out, and the High Court appears to have proceeded
  on the basis that they had been present as they had
  been cited as eye witnesses. [Para 9] [965-B-H; 966-B-G]

       3. The High Court has been greatly influenced by the
C refusal of the accused to join the test identification
  parade. The evidence of PW-27 Inspector is relevant in
  this connection. He deposed that the accused had been
  arrested from different places at different times and that
  they had been brought to Kamal and put in a lock up and
  thereafter produced in court. Significantly, the accused
D pointed out to the Magistrate PW-27, as well as in their
  statements in court, that they had been shown to PWs.11
  and 12 and also to the sons of the deceased in the Police
  Station. It is impossible for an accused to prove by
  positive evidence that he had been shown to a witness
E prior to the identification parade but if suspicion can be
  raised by the defence that this could have happened, no
  adverse inference can be drawn against the accused in
  such a case. In the light of these facts and particularly the
  uncertain eye witness account, and that these witnesses
F had not seen the incident and particularly the fact that the
  High Court was dealing with an appeal against acquittal
  and 5 of the 7 accused stand acquitted as of now on the
  same evidence, interference by the High Court was not
  called for in the case of the appellant. The judgment of
G the High Court is set aside and that of the trial court is
  restored and the appellant's acquittal is ordered. [Para 10]
  [966-A-E]
    Per Gyan Sudha Misra, J. (Dissenting):

H         HELD: 1. The High Court was justified in convicting
       PREM SINGH v. STATE OF HARYANA                  955


the appellant under Section 302/34 l.P.C. alongwith 'VB'       A
relying upon the evidence of the two eye-witnesses
whose depositions in Court could not be contradicted by
the defence using the statements which were recorded
under Section 161, Cr.P.C. by PW-23 Inspector only after
a few hours of the incident at 12.30 p.m. on the date of       B
occurrence on 26.11.1993 as the incident of shooting had
taken place on the same date in the morning at 6.30 a.m
for which F.l.R. was registered at 9.25 a.m. These two eye-
witnesses who also had gone for a morning walk had
their residence quite near to the place of incident and        C
were the mos~ natural witnesses who had watched the
incident of shooting from a close range at the deceased.
If the prosecution had the intention merely to plant these
two witnesses PW-11 and PW-12 as eye-witnesses to
prove the prosecution story, then 'VK' who had informed
                                                               0
the brother of the deceased about the incident would
 have been a better option for the prosecution to plant him
as eye-witness but he has not even been examined. [Para
2] [967-C-F]

     2. The two eye-witnesses PW-11 and PW-12 have             E
given a graphic description of the incident and have
stood the test of scrutiny of cross-examination and had
also stated that they could identify the assailants, but the
accused had declined to participate in the test
identification parade on the ground that he had been           F
shown to the eye-witnesses in advance. It was not open
to the accused to refuse to participate in the T.I. parade
nor it was a correct legal approach for the prosecution
to accept refusal of the accused to participate in the test
identification parade. If the accused-appellant had reason     G
to do so, specially on the plea that he had been shown
to the eye-witnesses in advance, the value Clnd
admissibility of the evidence of T.I. Parade could have
been assailed by the defence at the stage of trial in order
to demolish the value of test identification parade. But       H
    956   SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A merely on account of the objection of the accused, he
  could not have been permitted to decline from
  participating in the test identification parade from which
  adverse inference can surely be drawn against him at
  least in order to corroborate the prosecution case. [Para
B 3] [967-G-H; 968-A-C]

        Shyam Babu v. State of Haryana, (2008) 15 SCC 418:
    2008 (15)SCR 1020; Munna v. State (NCT of Delhi), (2003)
    4 Crimes 166: AIR 2003 SC 3805 - relied on.

C        State of Haryana v. Surender (2007) 11 SCC 281: 2007
    (7) SCR 885; Teerath Singh (D) by LR v. State 2007 (1) ALL
    LJ (NOR) 143 (UTR) - referred to.

         3. The arguments advanced by the defence that the
0    two eye-witnesses were, in fact, not living in the
     neighbourhood near the place of incident where they
    claimed to have been living is quite a far fetched theory
    of the defence for once the witnesses furnished their
    addresses stating that they lived merely 250 feet away
E   from the place o~ occurrence and PW-11 was also an
    employee of the brother-in-law of the deceased, his
    testimony could not be dislodged merely on a
    speculative story without any 'defence evidence to that
    effect that they had not migrated from Sunam (Punjab) to
    Karnal (Haryana) where the incident of shooting took
F   place. In fact, the eye-witnesses PW-11 and PW-12 whose
    statements were recorded only after a few hours of the
                      .                     '
    shooting and later deposed in Court without any variance
    or contradiction have not only given graphic description
    of the incident, but also described the colour of the car,
G   the model of the car which was white Maruti as also the
    car No. which could be partially noticed as D-57 and had
    gone to the extent of stating that the number plate of the
    car was smeared with mud. It is not possible to brush
    aside all these weighty evidences of the eye witnesses
H   led by the prosecution giving minute details-so as to hold
       PREM SINGH v. STATE OF HARYANA               957


that they were interested or partisan witnesses planted A
by the prosecution party merely to support the
prosecution version. It would further not be appropriate
to overlook a redeeming feature of the prosecution
version that the present case is not a case based on
circumstantial evidence but had happened during the B
morning walk ·of the deceased where the two eye-
witnesses from the neighbourhood had the chance to
witness the occurrence since they too had gone for a
 morning walk, who had residence close by in the
 neighbourhood. The defence version in order to demolish c
 the evidence of these two eye-witnesses is too far
 fetched and not worthy of credence on the ground that
 they in fact had not been living near the place of incident
 as they had not even migrated to Karna!. The two eye-
 witnesses narrated the complete chain of incident in their D
 deposition which they had witnessed and stands duly
 corroborated by their statement which were recorded
 under Section 161 Cr.P.C. merely after a few hours of the
 occurrence and their version could not be contradicted
 by the defence in any manner. The explanation that these
 witnesses had not been living there at the address given, E
 does not stand to reason for if it were so, their statement
 could not have been recorded only after a few hours of
 the incident. The defence story that they were not living
 near the place of occurrence clearly stands contradicted
  by the Section 161 Cr. P.C. statement of these witnesses F
  as it is well established that such statement is admissible
  at least for contradiction. [Paras 5, 6] [968-H; 969-A-H;
 970-A-B]

    4. The reason as to why the names of the eye G
witnesses had not been mentioned in the FIR has been
convincingly explained as the FIR was registered in the
morning at 9.25 a.m. and only upon preliminary enquiry,
which is most natural human conduct that it came to the
knowledge of the prosecution that these witnesses in fact H
    958    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


 A had not only seen the incident, but could also identify the
    assailants. Perhaps, there would have been scope to
     ignore the evidence of these two eye-witnesses on the
    plea that they had not migrated to Kamal and were not
    living near the place of incident if their statement had not
B been duly recorded on the date of the incident under
    Section 161 Cr.P.C. But the fact that their statements
    were recorded promptly and they also claimed to have
    identified the two accused who had fired the shots at the
    deceased and the appellant declined to participate in the
C test identification parade is sufficient to draw a
    reasonable and logical inference that the two eye-
    witnesses were in fact credible witnesses and could not
    be disbelieved on the specious plea that they were
    planted by the prosecution. In fact, there is yet another
o reason not to disbelieve these two witnesses for if the
    prosecution had reason to falsely implicate the accused
    persons, it is the master mind of the whole incident who
   was 'DR' with whom the deceased had differences on
   account of property dealings, who could have been
E roped in but the fact that 'DR' was not alleged to have
   shot the deceased but got it executed through the hired
   assailants that the appellant and 'VB' (who has not even
   appealed against his conviction and sentence) stood duly
   proved beyond reasonable doubt by the two eye-
F witnesses and their testimony cannot be disbelieved on
   the ground that they were not living near the place of
   incident as they had not migrated to Kamal. The defence
   story is too weak and speculative in order to brush aside
   the eye-witness account on the plea that they were not
   living in the neighbourhood. In fact, the prosecution
G witnesses have not even been cross-examined by the
   defence on the point that the eye-witnesses had not
   migrated to Kamal and were not living near the place of
   occurrence which could brush aside the eye-witness
  account. [Para 7, 8) [970-C-H; 971-A-C]
H
        PREM SINGH v. STATE OF HARYANA                   959


    5. The High Court is correct and legally justified in        A
convicting the appellant and 'VB' (who has not appealed)
u.nder Section 302/34 l.P.C. for shooting the deceased
and his conviction and sentence is upheld. [Para 9) [971 •
DJ
                                                                 B
                     Case Law Reference
     Per: Gyan Sudha Misra, J:

     2008 (15)SCR 1020               relied on      Para 4
     AIR 2003 SC 3805 (3809)         relied on      Para 4       c
     2007 (7) SCR 885                relied on      Para 4
     2007 (1) ALL LJ (NOR)           referred to    Para 4

    CRIMINAL APPELALTE JURISDICTION: Criminal Appeal             D
No. 925 of 2009.

    From the Judgment & Order dated 12.5.2008 of the High
Court of Punjab & Haryana at Chandigarh in Crl. Appeal No.
757-DBA of 1997.
                                                                 E
   D.B. Goswami, Sapan Biswajit Meitei, Gaurav Jasan,
Khwairakpam Nobin Singh for' the Appellant.

    Suryanarayana Singh, Pragati Neekhra for the
Respondent.                                                      F

     The Judgment of the Court was delivered by

     HARJIT SINGH BEDI, J.

     This appeal by way of special leave arises out of the       G
following facts:

      1. At about 9.20 a.m. on the 26th November 1993 PW-16
Sohan Lal, the brother ~f the deceased Siri Krishan, was out
for a morning walk when he was informed by his neighbour Vijay
Kumar that some persons had come in a white coloured Maruti      H
    960   SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R.


A car and had halted in front of Siri Krishan and had fired shots
   at him causing him serious injury. Sohan Lal PW-16 then rushed
   to· the site and removed Siri Krishan to the Government hospital
   where he was declared brought dead on arrival. His statement
   was then recorded by PW-24 Sub-Inspector Gurcharan Singh
B in the Government hospital who reached there on receiving
   information from the doctor. The Inspector inspected the dead
   body and took steps to have it subjected to a post-mortem. He
   also visited the place of occurrence and recovered several
   empty cartridge;; and a spent bullet from the spot. Inspector Om
c Parkash PW-23 also went to the site of the murder at 12.30
   p.m. and recorded tile statements of PW-11 Sohan Lal son of
   Anant Lal and PW-12 Bhagat Lal son of Banarsi Dass at 1:30
   p.m. who claimed to be the eye witnesses to the murder. He
   also recorded the statement of PW-13 Pushpa Devi, the widow
  of the deceased, who gave the information that Daulat Ram had
0
   a property dispute with her husband and this murder had been
   committed as a consequence of the conspiracy hatched by him
  along with his co-accused. Further investigation was also done
  by PW-27 Inspector Gordhan Singh. He arrested Daulat Ram
  on the 4th January 1994, and Prem Singh accused 10 days
E later from Tihar Jail where he was already incarcerated in sqme
  other criminal case. Prem Singh was also sought to be
  produced for a test identification parade but he declined to do
  so. ~allu accused was arrested on the 18th January 1994 and
  a pistol was recovered on a statement made by him, Vishwa
F Sandhu accused was arrested on the 23rd January 1994 and
  an effort was made to put him up for an identification but he
  too declined the offer. The other two accused Radhey Shyam
  and Surinder were arrested on the 19th April 1994 and 27th
  May 1994 respectively. On the completion of the investigation,
G the accused were charged for offences under Sections 302/
  149 and 120-B of the Indian Penal Code and Section 27 of the
  Arms Act and were accordingly brought to trial.

       2. The prosecution in support of its case placed primary
H reliance on the testimony of PW-11 Sohan Lal and PW-12
       PREM SINGH v. STATE OF HARYANA                     961
            [HARJIT SINGH BEDI, J.]

Bharat Lal who claimed to be the eye witnesses to the murder, A
PW-13 Pushpa Devi who deposed to the property dispute
between her husband and Daulat Ram accused and PW-16-
Sohan Lal the first informant, who had received the information
of the murder from Vijay Kumar. Vijay Kumar was, however, not
examined. The Trial Court observed that on the basis of the B
evidence of the prosecution witnesses, as led, no evidence.
whatsoever had been spelt out against Salish and Surinder and
they were accordingly acquitted even prior to the recording of
the statements of the accused under Section 313 of the Cr.P.C.
The Trial Court then. very comprehensively, examined the c
evidence against the other accused and recorded several
reasons which have been spelt out by the High Court in its.
judgment and we quote therefrom herein below:

    "(i) Vijay Kumar who informed PW-16 Sohan Lal, brother
    of the deceased about the occurrence, was not examined, · D
    which was necessary for unfolding of the narrative of the
    prosecution.
    (ii) PW-11 Sohan Lal and PW-12 Bharat Lal were falsely
    introduced as eye witnesses. Both of them claimed to have     E
    come from Punjab about two months prior to the
    occurrence. One of them shifted back to Sunam. They did
    not have any proof of residence of Kamal. PW-11 Sohan
    Lal was employee of brother-in-law of the deceased. They
    did not go to the police station to lodge the report. Their   F
    names were mentioned in the FIR. Their versions were
    discrepant on the issue of the person who caught hold of
    the deceased Salish or Ballu. Their normal conduct was
    to be to go to the house of the deceased to give
    information. There were further discrepancies in their        G
    versions about the direction from which the car came.

     (iii) Recoveries and linkage of pistols with the empty
     cartridges was not free doubt.

     (iv) Identification in Court was not reliable.               H
    962     SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A         (v) The accused were arrested from one or the other lock
          up and could have been shown to the witnesses.

          (vi)No adverse inference could be drawn by their refusing
          to take in the TIP.
B         (vii)Charge of conspiracy was without ;;iny basis."

        3. The trial court accordingly acquitted all the accused of
  the charges leveled against them. An appeal was thereafter filed
  in the High Court by the State of Haryana against the acquittal
c of 5 of the accused, that is Daulat Ram, Prem Singh, Ballu,
  Radhey Shyam and Vishwa Sandhu. The High Court has, vide
  its judgment under challenge before us, confirmed the acquittal
  of Daulat Ram, Ballu @ Vijender and Radhey Shyam accused
  and dismissed the appeal but has set aside the judgment qua
0 Prem Singh and Vishwa Sandhu and they have been convicted
  and sentenced to life imprisonment for the offence under
  Section 302/34 etc. The present appeal has been filed by Prem
  Singh alone.

        4. The learned counsel for the appellant has raised several '.
E pleas before us. He has first pointed out that the prosecution
   story hinged primarily on the motive which Daulat Ram carried
   as he bore some animosity with the deceased and that he had
   obtained the services of the other accused who were apparently
   hired assassins to get rid of him and as Daulat Ram had been
F acquitted, the entire story perforce must fall through. He has
   also pointed out that the only witness who could have sworn to
   the incident was Vijay Kumar who had informed PW-16 Schan ·
   Lal that he had witnessed the murder on which the latter had
   reached the spot, taken victim to the hospital and thereafter
G lodged the FIR but surprisingly Vijay Kumar had not even been
   cited as a witness and PW-11 Schan Lal and PW-13 Bharat
   Lal had subsequently been introduced as eye witnesses clearly
 · spelt out that the prosecution evidence could not be relied on,
   more particularly as their presence had not been explained and
H their conduct immediately after the incident also did not inspire
        PREM SINGH v. STATE OF HARYANA                      963
             [HARJIT SINGH BEDI, J.]
confidence. It has also been pointed out that merely because       A
three of the accused had refused to join the test identification
parade would not by itself be of any significance as the
accused had alleged that they had already been shown to the
witnesses.
                                                                   B
   5. The learned counsel for the State of Haryana has,
however, supported the judgment of the High Court.

      6. We see that of the 7 accused only 2 stand convicted
whereas the evidence with respect to all of them is identical. In
this background, it has also to be borne in mind that the High C
Court's interference in an appeal against acquittal is greatly
circumscribed and though the Court is justified in reappraising
the evidence to arrive at an independent conclusion, yet if the
reasons given by the trial court for ·acquittal are germane and
relevant on the ewdence, interference by the High Court should D
not be made on the premise that a different view was also
possible. This principle emanates from the broader principle
that an accused is entitled to claim a plea of innocence and it
is for the prosecution to prove its case beyond doubt and if the
trial court has acquitted an accused, the presumption of E
innocence is greatly strengthened. We are of the opinion that
the High Court has ignored this long settled dictum. We have
examined the various arguments raised in the background of
the above observations.

      7. It will be seen that the trial court was greatly influenced F
by the fact that Vijay Kumar had not even been cited as an eye
witness. The incident happened at about 7 or 7.30 a.m. on the
26th November 1993 and the statement of Sohan Lal PW-16
was recorded in the hospital at 9 a.m. the same day with no
clue as to the assailants and on its basis the first information G
report had been registered in the Police Station a short while
later. Significantly, however, the statement ofVijay Kumar was
recorded by the police for the first time on the 28th March 1994
and that too when the Public Prosecutor had raised an objection
while checking the challan before its presentation in Court. H
    964    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A Faced with this situation, the Public Prosecutor had submitted
  before the trial court that Vijay Kumar had not been cited as
  an eye witness as it was in fact Vijay Kumar's daughter who
  had told him about the incident and that he himself had no
  knowledge thereof. This argument was based on the statement
B of the Investigating Officer which was introduced for the first time
  during the course of the evidence. This explanation is too our
  mind an after thought and even otherwise meaningless.
  Assuming therefore that Vijay Kumar had, in fact, not been an
  eye witness and his daughter had been the one who had seen
c the incident, the police concededly did not even try to take her
  statement at any stage.

        8. The prosecution story has accordingly been based on
   the statements of PW-11 Sohan Lal and PW-12 Bharat Lal who
   claimed to be eye witnesses. It is significant that they identified
D the accused for the first time in court. PW-11 also admitted in
   his evidence that he was an employee of Aggarwal Sanitary
   Store which was owned by Brij Lal and Naresh Kumar, the
   brothers of PW-13 Pushpa Devi, the wife of the deceased, and
   that PW-12 was his friend and had accompanied him for the
E morning walk when the incident had happened. This story is
   unacceptable for the reason that their conduct completely
   belies their pr~sence. It has come in evidence that the two were
  aware of the identity of Siri Krishan and knew him by face and
   name since long and were also conscious of the fact that his
F house was near the place of murder. Despite this knowledge
  and his association with the complainant family, PW-11 did not
  go to the house of Pushpa Devi or even inform her brothers
  who were his employers as to what had happened or to go to
  the police station a very short distance away to lodge a report.
G On the contrary, it comes out from the evidence that after the
  incident PWs-11 & 12 had moved around aimlessly in Kamal
  before returning to the murder site at about 1.30 p.m. where
  their statements were recorded. This factor assumes even more
  significance as the names of these witnesses did not figure in
H
        PREM SINGH v. STATE OF HARYANA                      965
             [HARJIT SINGH BEDI, J.]
the F.l.R., and the motive for the murder has been rejected even    A
by the High Court as the acquittal of Daulat Ram has been
maintained.

      9. We also see that the very presence of PWs.11 and 12
in Kamal is in serious dispute. It has come in their evidence
                                                                    8
that they were residents of Sunam in the State of Punjab and
that they had shifted from that town to Kamal about 2 months
before the occurrence on account of the fear of terrorism and
had settled down in Kamal by taking accommodation on rent
and that they had returned to Sunam some time in the middle
of 1Q94. The trial court has found, on a deep appreciation of       C
the evidence, that this story was in doubt and the reasons have
 been succinctly spelt out. It has been found that the two had
 not given their addresses in Kamal in their 161 Cr.P.C.
 statements and when cross-examined by the defence counsel,
were unable even at that stage to give accurate and precise         D
 details as to where they had been living in Kamal or to produce
 any rent receipt or document to show residence in Kamal on
 the day in question. Curiously enough the police did not even
 care to get hold of any material as to their residence in Kamal
 and no witness was produced to show that they had ever been        E
 residents in Kamal. The trial court has also noticed that they
 had shifted from Sunam because of the fear of terrorism in the
 year 1993 but the two claimed to have returned to Sunam in
 the middle of 1994 when terrorism was still at its peak. We have
 also examined the reasons given by the High Court in               F
 concluding that the evidence of PWs.11 and 12 could be relied
 upon. We find that there is absolutely no discussion as to their
  presence in Kamal on the crucial day or to the various factors
 that have been spelt to rule them out, and the High Court
  appears to have proceeded on the basis that they had been         G
  present as they had been cited as eye witnesses. We are
  unable to accept such a conclusion and that too in a case of
  murder. The trial court has also examined their evidence inter-
  se in a broader perspective and has concluded that it differed
  in material particulars as well.                                  H
       966     SUPREME,COURT REPORTS [2011] 13 (ADDL.) S.C.R.


 A .    10. As already indicated, the High Court has been greatly
   influenced by the. refusal of the accused to join the test
   identification parade. The evidence of PW-27 Inspector
   Gordhan Singh is relevant in this connection. He deposed that
   the accused had been arrested from different places at different
B times and that they had been brought to Kamal and put in a
   lock up and thereafter produced in court. Significantly, the
   accused pointed out to the Magistrate PW-27, as well as in
  their statements in court, that they had.been shown to PWs.11
   and 12 and also to the sons of Siri Krishan in the Police Station.
C It must be borne in mind that it is impossible for an accused to
   prove by positive evidence that he had been shown to a witness
  prior to the identification parade but if suspicion can be raised
  by the defence that this could have happened, no adverse
  inference can be drawn against the accused in such a case.
  We are of the opinion that in the light of the above facts and
0
  particularly the uncertain eye witness account, and our opinion
  that these witnesses had not seen the incident and particularly
  the fact that the High Court was dealing with an appeal against
  acquittal and 5 of the 7 accused stand acquitted as of now on
  the same evidence, interference by the High Court was not
E called for in the case of the appellant. We accordingly allow this
  appeal, set aside the judgment of the High Court and restore
  that of the trial
                 . court
                    .                          .
                          and order the appellant's acquittal.

             DISSENTING JUDGMENT AND ORDER
F
             GYAN SUDHA MISRA, J. 1. The High Court vide its
  impugned judgment and order has convicted the appellant
  Prem Singh under Section 302 read with Section 34 l.P.C.
  along with the co-accused Vishwa Bandhu essentially relying
G upon the testimony of the two eye-witnesses PW-11 Sohan Lal
  and PW-12 Bharat Lal who according to the prosecution had
  shot the deceased victim-Siri Krishan on 26.11.1993 at 6.30
  a.m. while he had gone for a morning walk. The co-accused
  Vishwa Bandhu has not preferred any appeal against his
  conviction and it is only the appellant Prem Singh who has filed
H
        PREM SINGH v. STATE OF HARYANA                     967
            [GYAN SUDHA MISRA, J.]

this appeal and the other co-accused persons who were alleged      A
to be in the Maruti Car on which the accused-appellant had
arrived for killing the deceased Siri Krishan have been
acquitted, as the appellant and co-accused Vishwa Sandhu
have been held as hired shooters who killed the deceased from
a point blank range.                                               s
     2. Having carefully and meticulously examining the
evidence of the eye-witnesses PW-11 and PW-12 in the light
of the other attending circumstances, I am of the considered
opinion that the learned Judges of the High Court were justified   C
in convicting the appellant Prem Singh under Section 302/34
l.P.C. alongwith Vishwa Sandhu relying upon the evidence of
the two eye-witnesses whose depositions in Court could not be
contradicted by the defence using the statements which were
recorded under Section 161, Cr.P.C. by PW-23 Inspector Om
Prakash only after a few hours of the incident at 12.30 p.m. on    D
the date of occurrence on 26.11.1993 as the incident of
shooting had taken place on the same date in the morning at
6.30 a.m for which F.l.R. was registered at 9.25 a.m. These two
eye-witnesses who also had gone for a morning walk had their
residence quite near to the place of incident and were the most    E
natural witnesses who had watched the incident of shooting
from a close range at the deceased Siri Krishan. If the
prosecution had the intention merely to plant these two
witnesses PW-11 and PW-12 as eye-witnesses to prove the
prosecution story, then Vijay Kumar who had informed the           F
brother of the deceased about the incident would have been a
better option for the prosecution to plant him as eye-witness
but he has not even been examined.

     3. The two eye-witnesses PW-11 and PW-12 have given           C:
a graphic description of the incident and have stood the test
of scrutiny of cross-examination and had also stated that they
could identify the assailants, but the accused had declined to
participate in the test identification parade on the ground that
he had been shown to the eye-witnesses in advance. In my           H
    968    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A considered view, it was not open to the accused to refuse to
  participate in the T.I. parade nor it was a correct legal approach
  for the prosecution to accept refusal of the accused to
  participate in the test identification parade. If the accused-
  appellant had reason to do so, specially on the plea that he had
B been shown to the eye-witnesses in advance, the value and
  admissibility of the evidence of T.I. Parade could have been
  assailed by the defence at the stage of trial in order to demolish
  the value of test identification parade. But merely on account
  of the objection of the accused, he could not have been
C permitted to decline from participating in the test identification
  parade from which adverse inference can surely be drawn
  against him at least in order to corroborate the prosecution
  case.

       4. In the matter of Shyam Babu V. State of Haryana,
D (2008) 15 SCC 418 (425): AIR 2009 SC 577 where the
  accused persons had refused to participate in T.I. parade, it
  was held that it would speak volumes, abowt the participation
  in the Commission of the crime specially if there was no
  statement of the accused under Section 313 Cr. P.C. that he
E had refused to participate in the T.I. Parade since he had been
  shown to the witnesses in advance. In the matter of Munna v.
  State (NCT of Delhi), (2003) 4 Crimes 166: (2003) 7 JT 361
  : AIR 2003 SC 3805 (3809) as also in the State of Haryana
   Vs. Surender, (2007) 11 SCC 281 (284): AIR 2007 SC 2312;
F in Teerath Singh (0) by LR v. State, 2007 (1) ALL LJ (NOR)
  143 (UTR) the Supreme Court still further had been pleased
  to hold that if the statement of the accused refusing to
  participate in T.I. Parade which was recorded in the order of
  the Magistrate was missing under Section 313 Cr.P.C., it was
G held that it was not open to the accused to contend that the
  statement of the witnesses made for the first time in Court
  identifying him should not be relied upon.

        5. The arguments advanced by the defence that the two
    eye-witnesses were, in fact, not living in the neighbourhood near
H
        PREM SINGH v. STATE OF HARYANA                     969
            [GYAN SUDHA MISRA, J.)

the place of incident where they claimed to have been living, A
in my opinion, is quite a far fetched theory of the defence for
once the witnesses furnished their addresses stating that they
lived merely 250 feels away from the place of occurrence and
PW-11 was also an employee of the brother-in-law of the
deceased, his testimony could not be Qislodged merely on a B
speculative story without any defence evidence to that effect
that they had not migrated from Sunam (Punjab) to Kamal
(Haryana) where the incident of shooting took place. In fact, the
eye-witnesses PW-11 and PW-12 whose statements were
 recorded only after a few hours of the shooting and later c
deposed in Court without any variance or contradiction have
 not only given graphic description of the incident, but also
described the colour of the car, the model of the car which was
white Maruti as also the car No. which could be partially noticed
 as D-57 and had gone to the extent of stating that the number 0
 plate of the car was smeared with mud. In my view, it is not
 possible to brush aside all these weighty evidences of the eye
 witnesses led by the pro~ecution giving minute, details so as
 to hold that they were interested or partisan witnesses planted
 by the prosecution party merely to support the prosecution
                                                                  E
 version.

     6. It would further not be appropriate to overlook a
redeeming feature of the prosecution version that the present
case is not a case based on circumstantial evidence but had
happened during the morning walk of the deceased where the         F
two eye-witnesses from the neighbourhood had the chance to
witness the occurrence since they too had gone for a morning
walk, who had residence close by in the neighbourhood. The
defence version in order to demolish the evidence of these two
eye-witnesses is too far fetched and not worthy of credence in     G
my opinion on the ground that they in fact had not been living
near the place of incident as they had not even migrated to
Kamal. The two eye-witnesses narrated the complete chain of
incident in their deposition which they had witnessed and stands
duly corroborated by their statement which were recorded           H
    970    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


11. under Section 161 Cr.P.C. merely after a few hours of the
    occurrence and their version could not be contradicted by the
    defence in any manner..The explanation that these witnesses
    had not been living there at the address given, does not stand
    to reason for if it were so, their statement could not have been
B recorded only after a few hours of the incident. The defence
    story that they were not living near the place of occurrence
    clearly stands contradicted by the 161 Cr. P.C. statement of
    these witnesses as it is well established that such statement
    is admissible at least for contradiction.
c       7. The reason as to why the names of the eye witnesses
   had not been mentioned in the FIR has been convincingly
  explained as the FIR was registered in the morning at 9.25 a.m.
  and only upon preliminary enquiry, which is most natural human
  conduct that it came to the knowledge of the prosecution that
D these witnesses in fact had not only seen the incident, but could
  also identify the assailants. Perhaps, there would have been
  scope to ignore the evidence of these two eye-witnesses on
  the plea that they had not migrated to Kamal and were not living
  near the place of incident if their statement had not been duly
E recorded on the date of the incident under Section 161 Cr.P.C.
  But the fact that their statements were recorded promptly and
  they also claimed to have identified the two accused who had
  fired the shots at the deceased and the appellant Prem Singh
  declined to participate in the test identification parade is
F sufficient to draw a reasonable and logical inference that the
  two eye-witnesses were in fact credible witnesses and could
  not be disbelieved on the specious plea that they were planted
  by the prosecution.
G        8. In fact, there is yet another reason not to disbelieve
    these two witnesses for if the prosecution had reason to falsely
    implicate the accused persons, it is the master mind of the
    whole incident who was Daulat Ram with whom the deceased
    had differences on account of property dealings, who could have
    been roped in but the fact that Daulat Ram was not alleged to
H
         PREM SINGH v. STATE OF HARYANA                         971


have shot the deceased but got it executed through the hired A
assailants that the appellant Prem Singh and Vishwa Sandhu
(who has not even appealed against his conviction and
sentence) stands duly proved beyond reasonable doubt by the
two eye-witnesses and their testimony cannot be disbelieved
on the ground that they were not living near the place of incident 8
as they had not migrated to Kamal. In my considered opinion,
the i:tefence story is too weak and speculative in order to brush
aside the eye-witness account on the plea that they were not
living in the neighbourhood. In fact, the prosecution witnesses
have not even been cross-examined by the defence on the point C
that the eye-witnesses had not migrated to Kamal and were not
 living near the place of occurrence which could brush aside the
eye-witness account:

       9. I am, therefore, of the view that the High Court is correct
  and legally justified in convicting the appellant Prem Singh and      D
  Vishwa Sandhu (who has not appealed) under Section 302/34
, l.P.C. for shooting the deceased and hence, I uphold his
  conviction and sentence. Consequently, this appeal is
  dismissed.
                                                                        E
                              ORDER

      In view of the divergence in views, the Registry is directed
 to place the matter before the Hon'ble the Chief Justice of India
 for placing the matter before a larger Bench.
                                                                        F
 D.G.                           Matter referred to Larger Bench.