IMPORTANT POINT
Miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent.

JUDGMENT

Dr. ARIJIT PASAYAT, J.—

1.Challenge in this appeal is to the judgment rendered by a Division Bench of the Punjab and Haryana High Court directing acquittal of the respondents who were found guilty of offences punishable under Sections 302 and 394 read with Section 397 of the Indian Penal Code, 1860 (in short the ‘IPC’) and sentenced to undergo life imprisonment and 10 years respectively.

2.Background facts in a nutshell are as under :

On 1.2.1994 Sushila Devi (PW-14) along with her brothers Purshotam (hereinafter referred to as ‘deceased’) and Yashbir (PW-13) boarded a train at Sakurbasti (Delhi) at 6.30 p.m. for coming to Rohtak for treatment of Yashbir in Medical College and Hospital, Rohtak. When the train was in motion between Railway Stations Dehkora and Sampla, four unidentified and unknown persons description of whom were given in the report Ex./PD/1 allegedly entered into the compartment where deceased along with Yashbir and Sushila Devi was sitting and one of the assailants stood near deceased and shouted to take out whatever they had in their possession. Deceased-Purshotam asked him to wait. Meanwhile the said young man again shouted asking Purshotam to hand over money and when Purshotam was in the process of handing over the money, the young man with one hand snatched the money and gave a knife blow to the deceased in his abdomen. On receipt of the injury, Purshotam fell down. Yashbir (PW-13) who was sitting by the side of Purshotam got up and proceeded towards that man and was able to caught hold of his hand in which he was having a knife. The other appellant fired a shot from the pistol hitting Yashbir (PW-13). Some of the pellets also hit another passenger Ashok Kumar. When the train slowed down near Sampla Railway Station, both the persons who had caused injuries and the other two accused persons got down from the compartment and fled away. With the help of Sajjan Singh (PW-3), both Purshotam and Yashbir injured were taken to Civil Health Centre, Sampla and then to Medical College and Hospital, Rohtak. However, Purshotam succumbed to the injuries on the way to M.C.H. Rohtak. Udey Raj (PW-2), Assistant Station Master received a telephonic message from Control Room Delhi, with regard to the firing incident. He sent message (Ex.PA) to Station House Officer, Police Station, Government Railway Police, Rohtak. When the train reached Railway Station, Rohtak, police officials were deputed to guard the compartment. SI Manohar Lal (PW-11), recorded the statement of Sushila Devi (Ex.PB/1) on 1.2.1984 at Medical College and Hospital, Rohtak and making his endorsement Ex.PB/2 he sent the same to the police station for registration of a case and on its basis formal FIR (Ex.PB/2) was recorded. SI Manohar Lal, (PW-11) then went to Railway Station, Rohtak and inspected the compartment. He took into possession blood, pellets and empty cartridge from the compartment vide memos Ex.PR and PR/1. He also prepared inquest report (Ex.PU), and took into possession the clothes of the deceased and Yashbir (PW-13), vide recovery memos Ex.PN and PM respectively. He recorded the statements of the witnesses. On completion of investigation charge sheet was placed and since accused persons claimed trial, they were put to trial. On the basis of the evidence on record, more particularly, identification by eye-witnesses (PWs. 13/14) the trial Court recorded conviction and imposed sentences as noted supra.

3.The conviction as recorded by the Trial Court was questioned in three appeals filed by the respondents. In the appeal the primary stand taken was that there was variance in evidence as to the role played by the accused persons. Additionally, it was urged that no test identification parade was held and, therefore, the identification for the first time in the Court was of no consequence.

4.In response, learned counsel for the State pointed out that the accused persons themselves declined to take part or to be put in the test identification p