Mehtab S. Gill, J.
1. This is an appeal against the. judgment/order dated 1-6-2004 of the Additional Sessions Judge (Ad hoc), Fast Track Court, Faridkot whereby he convicted appellant Bhupinder Singh under Section 302, IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 2.000/-, in default of payment of fine, to further undergo R.I. for 2 months. Bhupinder Singh was further convicted under Section 307, IPC and sentenced to undergo RI for 7 years and to pay a fine of Rs. l.000/-, in default to further undergo RI for one month. Bhupinder Singh was further convicted under Section 5 of the Explosive Substances Act, 1908 and sentenced to undergo R.I. for 5 years and to pay a fine of Rs. 1,000/-, in default, to further undergo R.I. for one month. However, all the sentences were ordered to run concurrently.
2. The case of the prosecution is unfolded by the statement of Ram Kumar given to ASI Surjit Singh on 9-7-1997 at 9.45 p.m. in the area of Civil Hospital, Baghapurana. He stated, that he was a priest in Durga Temple Keleke Road for the last 30/35 years. He is residing in the upper portion of the temple along with his children. He had five sons Shiv Charan, Pardip Kumar, Darshan Kumar, Mahabir Parshad and Rajinder Kumar and one daughter Sushila. Out of them, Mahavir Parshad, Rajinder and Sushila and his eldest son Shiv Charan are married. On that day at about 8.30 p.m., he along with his son Mahavir Parsad after performing Aarti in the Durga Temple, were making preparations for closing the temple. A young man with hair cut, wearing a blue colour pant and a shirt came in the temple. He threw a bomb and placed one bomb in a tin (Pipi) parallel to the idol of Hanuman. Thereafter this young man fired a shot with his pistol or revolver at his son Rajinder Kumar which hit him on the left side of his chest. Thereafter the boy ran away. His son Mahavir Parsad raised an alarm and chased the boy. In the meantime, a powerful bomb blast took place. The complainant along with his son came back running to the temple. They saw the glasses of windowpanes of the room situated on the right side broken and scattered. He further saw that his granddaughter Poonam was bleeding profusely. At that time electric light in the temple was on. Rajinder Kumar and Poonam were taken to the Civil Hospital, Baghapurana. On reaching the hospital, they came to know that the same young man had killed two labourers of Bihar and had injured two labourers of Bihar in a temple on Kalake road. Rajinder Kumar succumbed to the fire shot injuries in the Civil Hospital.
3. The prosecution to prove its case, brought into the witness-box P.W. 1 Rajinder Kumar, P.W. 2 Dr. R. S. Khurmi, P.W. 3 Dr. Arvinder Gill, P.W. 4 Karnail Singh, P.W. 5 Chamkaur Singh, P.W. 6 Ram Kumar, P.W. 7 Mahavir Parsad, P.W. 8 HC Degumber Singh, P.W. 9 ASI Surjit Singh, P.W. 10 Dr. Iqbal Singh, P.W. 11 Ramjit Dass, P.W. 12 Ami Chand, P.W. 13 Krishan Kumar Goyal, P.W. 14 Dr. MohinderPal, P.W. 15 Gursewak Singh, Draftsman, P.W. 16 Constable Manjit Singh, P.W. 17 ASI Kundan Lal, P.W. 18 Constable Ram Rakha, P.W. 19 HC Gurpeet Singh, P.W. 20 Dr. Arvinder Gill, P.W. 21 Dr. R. S. Khurmi, P.W. 22 Chamkur Singh, P.W. 23 Karnail Singh, Executive Magistrate, P.W. 24 S.I. Rajinder Kumar, P.W. 25 HC Rajinder Singh, P.W. 26 Dr. Vajinder Singh and P.W. 27 Inspector Joginder Singh.
4. Learned counsel for the appellant has argued that the test identification parade was not conducted in a proper and legal manner. Appellant was in custody of the police in Police Station, Mehna. He was shown to the witnesses and thereafter the formalities of the test identification parade were gone through. P.W. 4 Karnail Singh, Executive Magistrate (Tehsildar) has stated in his testimony that he did not take the signatures of the P.Ws. before the identification parade was done, or after the identification parade. There is nothing on record to show that the prosecution witnesses Ram Kumar (P.W. 6) and Mahavir Prashad (P.W. 7) came independently on their own. Further, it has come in evidence that photographs of the appellant appeared in the newspapers and a News Conference was held by the then Director General of Police claiming that the actual culprits (appellant) had been caught who had thrown the bomb in the Mandir Premises of Baghapurana town. Appellant was arrested on 20-7-1997, i.e. after a gap of 20 days. The test identification parade was conducted on 14-8-1997 in Central Jail, Ferozepur.
5. Learned counsel for the appellant has relied upon judgments of the Hon'ble Supreme Court in Hari Nath v. State of U.P., : 1988CriLJ422 , Suryamoorthi v. Govindaswami, : 1989CriLJ1451 and Vijayan alias Rajan v. State of Kerala, 1999 (1) RCR (Criminal) 824 : (1999 Cri LJ 1638).
6. Learned counsel for the appellant has further argued that the weapon of offence which was recovered from the co-accused of the appellant Boota Singh (since acquitted), is not proved to have been filed by the appellant. It is the prosecution case that weapon of offence was recovered from Boota Singh. The Judicial Magistrate 1st Class, Bhatinda vide his order dated 30-3-2001, acquitted Boota Singh who was charged under Section 25 of the Arms Act. Copy of the order is Ex. D.3. The empties recovered from the place of occurrence and the bullet recovered from the dead body, nor the pistol, was sent to the Forensic Science Laboratory to get an expert opinion, as to whether the bullet recovered could be fired from the recovered pistol.
7. Learned counsel for the appellant has further stated that there are serious discrepancies in the statements of Ram Kumar (P.W. 6) and Mahavir Parsad (P.W. 7).
8. Learned counsel for the State has argued that the FIR recorded is prompt, there is no delay in lodging of the FIR. Occurrence took place on 9-7-1997 at 8.30 p.m. FIR was registered on 9-7-1997 at 9.50 p.m. and the special report reached the Duty Magistrate, Moga at a distance of 20 kms. on 10-7-1997 at 2.30 a.m. The description of the appellant has been given in the FIR by the complainant Ram Kumar (P.W. 6). He saw a young man with hair cut wearing blue colour pant and a shirt. This was the same very person who threw bomb like substance in the Mandir. Thereafter the young man fired a shot with his pistol or revolver. Ram Kumar (P.W. 6) and Mahavir Parsad (P.W. 7), the two eye-witnesses to the occurrence has identified the appellant after he was mixed up with 7 to 8 persons, when the test identification parade was held in the presence of the Executive Magistrate in Central Jail, Ferozepur. Appellant was also recognised by these witnesses in the Court. Though the appellant was arrested on 20-7-1997, he was sent to Central Jail, Ferozepur which is at a distance of not less than 50 kms. from the place of residence of Ram Kumar (P.W. 6) and Mahavir Parsad (P.W. 7). The question of they seeing the appellant before the test identification parade did not arise. The test identification parade was conducted on the asking of the appellant. Further, learned Counsel has argued that though the co-accused Boota Singh has been acquitted in the case pertaining to the pistol recovered vide judgment Ex. D3, but this does not absolve the appellant from not being the person who fired the shot and threw the bomb inside the Mandir. There are no discrepancies in the statements of Ram Kumar (P.W. 6) and Mahavir Parsad (P.W. 7). In fact, they have corroborated each other. Dr. Iqbal Singh (P.W. 10) has opined that deceased Rajinder Kumar died due to fire arm injury. Ram Kumar (P.W. 6) and Mahavir Prasad (P.W. 7) are not inimical towards the appellant, nor do they have any grudge against him to falsely implicate him in this case.
9. Learned counsel for the State relied upon a judgment of the Hon'ble Supreme Court in Anil Kumar v. State of U. P., : 2003CriLJ1524 , wherein the Hon'ble Supreme Court has held that even if there was a delay of 47 days in holding the test identification parade, still the witnesses would have the facial expression of the assailant embossed in their memory.
10. We have heard the learned Counsel for the parties and perused the record with their assistance.
11. The main thrust of the arguments of the learned Counsel for the appellant is that the test identification parade conducted was not within the parameters of law and natural justice. According to the learned Counsel, the accused/appellant was already in the custody of the police. His photographs had appeared in a local newspaper. The police had shown the accused to Ram Kumar (P.W. 6) and Mahavir Parsad (P.W. 7).
12. We do not agree with the argument put forward by the learned Counsel for the appellant, as the evidence on record is otherwise. Ram Kumar (P.W. 6) in his testimony has stated that one clean-shaven young man came. He was wearing blue colour pant and the colour of shirt he could not recollect. He threw a hand-grenade and kept one Pipi (tin) of explosive there. His son Rajinder Parsad asked the person as to what he had kept inside the Mandir. That man fired a shot which hit Rajinder Kumar on the left side of his chest, which ultimately led to his death. On 14-8-1997, Ram Kumar (P.W. 6) along with his son Mahavir Parsad (P.W. 7) along with two Bhaiyas went to the Central Jail, Ferozepur. P.W. 4 Karnail Singh, Executive Magistrate (Tehsildar) was already there in, the Central Jail, Ferozepur, who had arranged the Test identification parade. 7/8 persons having the same clothes and same features were paraded before him. He identified Bhinda alias Bhupinder Singh. The same person was identified by these witnesses in Court also. This witness was put to a lengthy cross-examination and especially regarding the test identification parade. He stated in his cross-examination that accused was 15 Karmas away from him when he threw the hand-grenade and fired a shot. He was a clean-shaven gentleman and he had not seen him before the occurrence. Thereafter he only saw him in Central Jail, Ferozepur when the Test identification parade was conducted. This witness was asked as to whether after 10/12 days, news item had appeared in the newspapers regarding the occurrence and arrest of the accused. He replied that he had not seen the photographs of the accused which was being displayed in the newspaper. The police never told him that the accused had been arrested and they were to identify him. He received an oral notice from the police for the identification parade to be conducted in the Central Jail, Ferozepur. He along with his son went to Central Jail, Ferozepur and not with the police party. They went in a private jeep along with two Bhaiyas. They reached the jail at 11 a.m. Some policemen who were standing outside the jail, took them inside one by one. First he went in the jail premises, then Mahavir Parsad (P.W. 7) and then the Bhaiyas. This witness has specifically stated that the accused/appellant was never shown to him, or to his son in the Police Station Baghapurana, or in the Police Station CIA Staff, Moga or Police Station, Melma. Similarly, Ram Kumar (P.W. 6) has corroborated the statement of Mahavir Parsad (P.W. 7). Mahavir Parsad (P.W. 7) has also corroborated the statement made by his father Ram Kumar (P.W. 6) regarding the test identification parade. He in his testimony has stated that P.W. 4 Karnail Singh, Executive Magistrate had arranged for the identification parade. They went to Central Jail, Ferozepur on 14-8-1997 along with two Bhaiyas. There were 7 to 8 persons in the parade wearing similar clothes and having similar features. Out of these, this witness i.e. Mahavir Parsad (P.W. 7) identified Bhinda alias Bhupinder Singh. He identified him in Court also. He reiterated that he was never taken to the Police Station, Mehna, nor CIA Staff, nor Police Station Baga Purana so that the accused could be shown to him.
13. P.W. 13 Krishan Kumar Goyal, J.E., P.S.E.B. has stated in his testimony that during the intervening night of 9-7-1997 and 10-7-1997, supply of electricity in Baghapurana town remained on. There was no interruption of supply in the electricity.
14. We cannot overlook this fact that the Test identification parade was done on the asking of the appellant. Karnail Singh (P.W. 4) Executive Magistrate recorded the statement of Bhupinder Singh (appellant), wherein the appellant/accused stated that he is ready to have himself gone through the test identification parade. He has further stated that apart from himself, 9 more persons should be there and his face should be covered with a turban, All the persons who participate, should have their left hand covered and their shoes should be taken off. All should have turbans on their heads, so that their ears are covered. Statement of the appellant is Ex. P5. Proceedings of the identification parade are Ex. P6.
15. The judgment relied by the counsel for the appellant in Hail Nath v. State of U. P. (1988 Cri LJ 422) (SC) (supra) does riot apply to the case in hand, as the facts of that case are different from the case in hand. In the case (supra), the test identification parade was done after a lapse of 4 months. The delay was unexplained and the Hon'ble Supreme Court held that it was an unreasonable delay. The Hon'ble Supreme Court held as under :--
But the value of the test identification apart altogether from the other safeguards appropriate to a fair test of identification depends on the promptitude in point of time with which the suspected persons are put up for test identification. If there is unexplained and unreasonable delay in putting up the accused persons for a test identification, the delay by itself detracts from the credibility of the test.
16. In the case in hand, there was no unreasonable delay in conducting the test identification parade. It was conducted after a gap of 14 days. The delay, if any, was only procedural. The Executive Magistrate had to arrange for the Test Identification parade, in the Central Jail, Ferozepur, which was at a distance of not less than 50 kms. from the place of residence of the prosecution witnesses.
17. In the judgment in Suryamoorthi v. Govindaswami (1989 Cri LJ 1451) (SC) (supra) relied upon by the counsel for the appellant, the Hon'ble Supreme Court has held that in the first identification parade, P.W. 1 identified all the seven accused persons, whereas P.W. 2 identified three of them. It has come in evidence that before the identification parades were held, photographs of the accused persons had appeared in the daily local newspapers. Besides the accused were in lock-up for a few days before the identification parades were held and therefore, the possibility of their having been shown to the witnesses cannot be ruled out altogether. This case also does not apply to the case in hand. Ram Kumar (P.W. 6) and Mahavir Parsad (P.W. 7), as discussed above, even though put to a lengthy cross-examination, have categorically stated that the appellant/accused was never shown to them. They have further stated that they did not see the photograph of the appellant in any newspaper.
18. In the judgment in Vijayan alias Rajan v. State of Kerala (1999 Cri LJ 1638) (supra) relied upon by the counsel for the appellant, the Hon'ble Supreme Court has held in para 7 that not only the photograph of the accused had been shown to P.W. 9 and in all probability must have been shown to P.W. 9, but the photograph had also been printed in all the local newspapers. This judgment also does not help the case of the appellant. As discussed above, no photograph of the appellant was shown to Ram Kumar (P.W. 6) and Mahavir (P.W. 7), nor did they see the photograph of the appellant in any newspaper.
19. In the judgment in Anil Kumar v. State of U. P. (2003 Cri LJ 1524) (SC) (supra) relied upon by the counsel for the State, the Hon'ble Supreme Court has held as under :--
Reliance was also placed upon the case of Hari Nath v. State of U. P. In this case the importance of test identification parade was being considered. It was held that the test identification parade only has corroborative value and that a test identification parade should be held with reasonable promptitude after the occurrence.
20. In the present case, the test identification parade was held within reasonable promptitude i.e. within 14 days from the date of occurrence.
21. The argument put forward by the counsel for the appellant that the factum of recovery of pistol has not been proved by the prosecution and Boota Singh was acquitted vide order dated 30-3-2003 passed by the J.M.I.C., Bhatinda (Ex. D3), does not cut much ice. Dr. Iqbal Singh (P.W. 10) who performed post-mortem on the dead-body of Rajinder Kumar, has stated that there was an entry wound on the left side of the chest of the deceased. Two X-rays were done and the bullet was located and removed. It was due to fire arm injury. It clearly shows that death of Rajinder Kumar was as a result of fire arm injury. The two eye-witnesses to the occurrence Ram Kumar (P.W. 6) and Mahavir Parsad (P.W. 7) have categorically stated that the appellant fired from a pistol or revolver at the deceased.
22. No other argument was advanced by the counsel for the appellant.
23. The prosecution has brought home I the guilt, of the accused/appellant. There are I no merits in the appeal.
24. We do not find any infirmity in the judgment of the trial Court.
25. Appeal is dismissed.