IMPORTANT POINT
Much credence is not attached to identification made in the court for the first time and that too after a long time.

JUDGMENT

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 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 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.

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 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. 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. 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 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.

On or about 5.1.2000, P.W.10 arrested Vinod 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 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 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 his involvement in the present case and the said disclosure statement was obtained by undue influence and coercion at the 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 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.

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 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 pers