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2013 Supreme(P&H) 584
IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before Hon’ble Mr. Justice M. Jeyapaul
The Hon’ble Mr. Justice Inderjit Singh
Criminal Appeal No.D-216-DB of 2008
Sukhvinder alias Shoki & Ors.
v.
State of Haryana
{Decided on 30/05/2013}
For the Appellant:Mr. R.S. Cheema, Sr.Advocate with Ms. Tanu Bedi, Advocate.
For the Appellant:Mr. Vinod Ghai, Sr. Advocate with Mr. Paras Talwar, Advocate, Mr. Simrandeep S.Sandhu, Advocate and Mr. Mandeep Kaushik, Advocate (Amicus Curiae).
For the Respondent-State:Mr. Kshitij Sharma, Assistant Advocate General, Haryana.
Headnote:Test Identification Parade--Judicial Magistrate shall not decline the request made by the investigating official to hold Test Identification Parade on the pretext that the accused has refused to participate in the Test Identification Parade.
Test Identification Parade--Conducting of --It is not permissible to delegate the function of conducting Test Identification Parade by Judicial Magistrate to an Executive Magistrate.
(A) Evidence Act, 1872, S.9--Test Identification Parade--Judicial Magistrate shall not decline the request made by the investigating official to hold Test Identification Parade on the pretext that the accused has refused to participate in the Test Identification Parade--Held;
(i) Directing the accused to compulsorily participate in the Test Identification Parade would not amount testimonial compulsion.
(ii)Hence, the mere asking by a police officer investigating the crime against a certain individual to do a certain thing is not compulsion within the meaning of Article 20(3) of the Constitution of India.
(iii) Exposing part of the body by an accused person for the purpose of identification would not amount to furnishing evidence in the capacity as a witness.
(iv)No oral response is articulated by the accused exposing himself to self-incrimination during the course of Test Identification Parade-- Therefore, the Test Identification Parade conducted with the compulsory association of an accused would not violate the spirit of Article 20(3) of the Constitution of India.
(v) Accused whose identity was part of the subject matter of investigation can be compelled in the same manner as contemplated under Section 53 of the Cr.P.C., 1973.
(v) Accused concerned has every right to express his protest orally or in writing to the learned Judicial Magistrate who conducts the Test Identification Parade-- The Judicial Magistrate is duty bound to record such objections raised by the accused concerned--Just because the accused has such reasonable objections, the Judicial Magistrate shall not decline the request made by investigating officer for holding the Test Identification Parade--Criminal Procedure Code, 1973, S.53. (Para 52)
(B) Evidence Act, 1872, S.9--Test Identification Parade--Conducting of --Held; It is not permissible to delegate the function of conducting Test Identification Parade by Judicial Magistrate to an Executive Magistrate--Henceforth, the Judicial Magistrates himself shall, without delegating such a function, hold the Test Identification Parade--Punjab & Haryana High Court Rules & Order, Vol.3 Chapter 2 Part C. (Para 59)
Mr. M. Jeyapaul, J.:- Accused Sukhvinder alias Shoki, Vinod alias Jitender alias Dhilla and Chander Hass alias Hans Ram alias Hansa were convicted and sentenced as follows:-
CHARGE SENTENCE
Under Section 302/34 IPC The accused Sukhvinder alias Shoki, Vinod alias Jitender, Chander Hass alias Hans Ram alias Hansa were sentenced to undergo R.I. for life and to pay fine of Rs.10,000/- each.
Under Section 365/34 IPC The accused Sukhvinder alias Shoki, Vinod alias Jitender alias Dhilla, Chander Hass alias Hans Ram alias Hansa were further sentenced to undergo R.I. for five years and to pay a fine of Rs.2000/- each. In default of payment of fine to further undergo R.I. for six months each.
Under Section 392/34 IPC The accused Sukhvinder alias Shoki, Vinod alias Jitender alias Dhilla, Chander Hass alias Hans Ram alias Hansa were further sentenced to undergo R.I. for seven years and to pay fine of Rs.3000/- each. In default of payment of fine to further undergo R.I. for six months.
Under Section 397/34 IPC The accused Sukhvinder alias Shoki, Vinod alias Jitender alias Dhilla, Chander Hass alias Hans Ram alias Hansa were further sentenced to undergo R.I. for ten years and to pay fine of Rs.5000/- each. In default of payment of fine to further undergo R.I. for one year each.
Under Section 307/34 IPC The accused Sukhvinder alias Shoki, Vinod alias Jitender alias Dhilla, Chander Hass alias Hans Ram alias Hansa were further sentenced undergo R.I. for five years and to fine of Rs.2000/- each. In default of payment of fine to further undergo R.I. for six months each.
Under Section 25 of the Arms Act The accused Sukhvinder alias Shoki, Vinod alias Jitender alias Dhilla, Chander Hass alias Hans Ram alias Hansa were further sentenced to undergo R.I. for three years and to pay fine of Rs.1000/- each. In default of payment of fine to further undergo R.I for three months each.
Under Section 27(2) of the Arms The accused Sukhvinder alias Shoki, Vinod alias Jitender alias Dhilla, Chander Hass alias Hans Ram alias Hansa were sentenced to undergo R.I. for seven years and to pay fine of Rs.2000/- each. In default of payment of fine to further undergo R.I. for six months each.
2. Aggrieved by the conviction and sentence recorded by the trial Court the above accused have preferred the present appeal. It is noticed that accused accused Anil died even before he was arrested by the police in connection with this case.
3. The case in brief of the prosecution is that on 09.12.2004 PW5 Abhey Ram, PW6 Baljit Singh and PW7 Sunil had gone to attend a marriage party at village Bawania in a maruti Zen car bearing Registration No.HR-5G/3843 driven by Vinod Kumar PW8. Baljit Singh PW6 was sitting on front seat by the side of Vinod Kumar PW8. Abhey Ram PW5 and PW7 Sunil were sitting on the rear seat. When they reached near a canal, a Maruti car bearing registration No.HR- 26E/6003 came from behind. The occupants of the Maruti car stopped the Zen Maruti car. Three persons alighted from the Maruti car bearing Registration No. HR-26E/6003. One of them pushed the driver of the Zen car and took the driver seat and started driving the Zen car. The other two persons sat on the rear seat. They pointed pistol to the occupants of the Zen car. They were asked to see downwards and were threatened with dire consequences. PW5 Abhey Ram asked the abductors to take all their belongings. The abductors again threatened them. The Maruti car followed them. After covering a distance of 2-3 Kms., they turned towards village Akoda on a kacha path. They reached near a tubewell. One pick-up vehicle was parked there. The Maruti car hit upon the pick-up vehicle. The Zen car entangled in the sand. PW3 Umrao Singh complainant, PW4 Ajit Singh injured, Uttam Singh (since deceased) and Moti Lal PW9 were sitting on the tubewell. They were enjoying Hooka. The driver of the Maruti car approached them for help for pushing the cars. PW4 Ajit Singh along with his brother Uttam Singh (since
