2026:HHC:7979

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 337 of 2024

Reserved on: 25.02.2026

Date of Decision: 20.03.2026

Swaran Singh & another ...Appellant

Versus

State of H.P. ...Respondent

Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?

1

No

For the Appellants : Mr Divya Raj Singh, Advocate.

For the Respondent/State : Mr Lokender Kutlehria, Advocate.

Rakesh Kainthla, Judge

The present appeal is directed against the judgment of

conviction dated 26.06.2024 and order of sentence dated

28.06.2024, passed by learned Additional Sessions Judge, Dehra,

District Kangra (learned Trial Court) vide which the appellants

(accused before learned Trial Court) were convicted of the

commission of an offence punishable under Section 333 read with

Section 34 of the Indian Penal Code (IPC) and sentenced to

undergo simple imprisonment for four years, pay a fine of

₹5,000/- each and in default of payment of fine, to undergo

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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further simple imprisonment for eight months each for the

commission of the aforesaid offence. The appellants (accused

before the learned Trial Court) were also convicted of the

commission of an offence punishable under Section 353 read with

Section 34 of the Indian Penal Code (IPC) and were sentenced to

undergo simple imprisonment for two years. It was ordered that

both the substantive sentences of imprisonment shall run

concurrently. (Parties shall hereinafter be referred to in the same

manner as they were arrayed before the learned Trial Court for

convenience.)

2. Briefly stated, the facts giving rise to the present appeal

are that the police presented a challan before the learned Trial

Court against the accused for the commission of offences

punishable under Sections 353, 332, 333, and 504 read with

Section 34 of the IPC. It was asserted that informant Ajay Kumar

(PW1) was posted as a Driver in HRTC, Dehra for the last eight

years. He was driving the bus from Chintpurni via Kadhoa on

04.10.2019. The bus was stopped at Kadhoa Bazar at 9:15 AM to

allow the passengers to board it. Two people came on a motorcycle

bearing registration number HP-36C-1509 to the spot from

Dhaliara and stopped the motorcycle in front of the bus. They

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started abusing the informant. The shopkeepers and Pradhan of

Gram Panchayat Kadhoa reached the spot. The motorcyclists

opened the window of the bus and dragged the informant out of

the bus. They gave beatings to the informant, who sustained

injuries on his face, and his tooth was broken. His uniform was

also torn in the incident. The names of the motorcyclists were

found to be Swaran Singh and Sohrat. The matter was reported to

the police. An entry No. 10 (Ext.P1/PW11) dated 04.10.2009 was

recorded. HC Surender Kumar (PW11) and Constable Pushpender

went to the spot to verify the correctness of the information. HC

Surender Kumar (PW11) recorded the informant’s statement

(Ext.P1/PW1) and sent it to the Police Station, where FIR

(Ext.P1/PW7) was registered. The informant produced a Khakhi

shirt (Ext.MO-2) whose two buttons were detached in the scuffle.

HC Surender Kumar (PW11) put the shirt in a cloth parcel and

sealed the parcel with five impressions of seal ‘S’. He obtained the

sample of seal (Ext.P3/PW1) on a separate piece of cloth and seized

the parcel vide memo (Ext.P2/PW1). He also seized the bus bearing

registration No. HP-36B-1406 vide memo (Ext.P4/PW1), and

handed over the bus on Sapurdari to ASI Joginder Singh (PW10).

He seized the motorcycle bearing registration No. HP-36C-1509

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vide memo (Ext.P1/PW2). He prepared the site plan (Ext.P2/PW11).

He filed an application (Ext.P1/PW6) for the medical examination

of the injured. Dr Kumar Gaurav (PW6) examined the informant

and found the swelling with blackish discolouration under the left

eye, and one tooth loose. He referred the injured to a dental

surgeon for expert opinion. Dr Sajan Sharma (PW8) examined the

informant and found mobility of the left upper central incisor and

eroded enamel of the central incisor. He advised an X-ray of the

tooth. On examination of the X-ray film (Ext.P1/PW8), he found

the tip of the central incisor and its root fractured in the 1/3

rd

region. The nature of the injury was grievous, which could have

been caused within 1-2 days of the examination. He issued the

opinion (Ext. P2/PW8). Dr Kumar Gaurav (PW6) issued the final

opinion stating that the injury was grievous and could have been

caused by a fist blow. He issued the MLC (Ext.P2/PW6). HC

Surender Kumar (PW11) filed an application (Ext.P1/PW5) and

seized the route permit (Ext.P2/PW5), the informant’s

appointment order (Ext.P3/PW5), abstract of duty register

(Ext.P4/PW5), Informant’s character certificate (Ext.P5/PW5),

duty roster (Ext.P6/PW5) and the informant’s driving license

(Ext.P7/PW5) from Regional Manager, HRTC, Dehra. He recorded

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the statements of witnesses as per their version. After the

completion of the investigation, the challan was prepared and was

presented before the learned Additional Chief Judicial Magistrate,

Dehra, who committed it to the learned Sessions Judge Kangra at

Dharamshala for trial.

3. Learned Sessions Judge Kangra at Dharamshala

assigned the matter to learned Additional Sessions Judge, Dehra

(learned Trial Court). Learned Trial Court charged the accused

with the commission of offences punishable under Sections 332,

333, 353 and 504 read with Section 34 of IPC to which they pleaded

not guilty and claimed to be tried.

4. The prosecution examined eleven witnesses to prove its

case. Informant Ajay Kumar (PW1) narrated the incident. Ashok

Kumar (PW2), Ajay Dhiman (PW3), and Kaptan Singh (PW4) are

the eyewitnesses. Kushal Kumar (PW5) produced the documents

of the bus. Dr Kumar Gaurav (PW6) medically examined the

informant. SI Gurdev Singh (PW7) signed the FIR. Dr Sajan

Sharma (PW8), Dental Surgeon, examined the injured. Inspector

Ashwani Kumar (PW9) prepared the challan. ASI Joginder Singh

(PW10) was posted as MHC with whom the case property was

deposited. HC Surinder Kumar (PW11) investigated the matter.

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5. The accused, in their statements recorded under

Section 313 of Cr.P.C., denied the prosecution’s case in its entirety.

They did not produce any evidence in their defence.

6. Learned Trial Court held that the testimonies of the

witnesses corroborated each other. The recovery of the torn shirt

supported the prosecution’s case. The informant, Ashok Kumar

and Ajay Dhiman had identified the accused in the Court. Minor

discrepancies in the statements of the witnesses were not

sufficient to doubt the prosecution’s case because the

discrepancies would come with time due to the failure of memory.

The prosecution had succeeded in proving its case beyond a

reasonable doubt; hence, the learned Trial Court convicted and

sentenced the accused as aforesaid.

7. Being aggrieved by the judgment and order passed by

the learned Trial Court, the accused have filed the present appeal

asserting that the learned Trial Court erred in appreciating the

material on record. The accused were beaten by the local people.

Material contradictions affecting the prosecution’s case were

ignored by the learned Trial Court. The opinion of the Dental

Surgeon creates a doubt regarding the prosecution’s case. Hence,

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it was prayed that the present appeal be allowed and the judgment

and order passed by the learned Trial Court be set aside.

8. I have heard Mr Divya Raj Singh, learned counsel for

the appellants/accused and Mr Lokender Kutlehria, learned

Additional Advocate General for the respondent/State.

9. Mr Divya Raj Singh, learned counsel for the

appellants/accused, submitted that the learned Trial Court erred

in appreciating the material on record. The statements of the

witnesses contradicted each other. The identification of the

accused was not proper. Their names were not mentioned in the

FIR. A Test Identification Parade should have been conducted to

corroborate the testimonies of the witnesses in the Court. The

identification in the Court for the first time, without a previous

Test Identification Parade, is suspect. Learned Trial Court failed to

appreciate this aspect; hence, he prayed that the present appeal be

allowed and the judgment and order passed by the learned Trial

Court be set aside.

10. Mr Lokender Kutlehria, learned Additional Advocate

General for the respondent/State, submitted that the prosecution

witnesses consistently deposed about the prosecution case. Their

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testimonies corroborated each other. Recovery of the torn shirt

and the report of the MLC also corroborated the prosecution’s

case. Learned Trial Court had rightly held the accused guilty.

There is no infirmity in the judgment and order passed by the

learned Trial Court. Hence, he prayed that the present appeal be

dismissed.

11. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

12. The informant’s statement (Ext.P1/PW1) mentions that

villagers and the Pradhan of Gram Panchayat Kadhoa told him

that the names of motorcyclists were Swaran Singh and Sohrat.

Therefore, as per the statement, the informant was not aware of

the names of the accused, and he was told about the names by

others. Informant Ajay Kumar (PW1) admitted in his cross-

examination that the accused persons were not known to him

before the incident. He admitted that he had seen the accused

persons in the Court for the first time, and no Test Identification

Parade of the accused was conducted. Learned Trial Court held

that the identification of the accused by the informant in the Court

for the first time was proper. This finding cannot be sustained.

Professor Rupert Cross has stated in his celebrated treatise, Cross

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on Evidence, Fifth Edition, Butterworths, that identification of the

accused for the first time in the dock is highly suspect. He

observed:

"It might be thought that in criminal cases there could not

be better identification of an accused than that of a witness

who goes into the box and swears that the man in the dock

is the one he saw coming out of a house at a particular time,

or the man who assaulted him. Nevertheless, such evidence

is suspect where there has been no previous identification

of the accused by the witness, and this is because its weight

is reduced by the reflection that, if there is any degree of

resemblance between the man in the dock and the person

previously seen by him. The witness may very well think to

himself that the police must have got hold of the right

person, particularly if he has already described the latter to

them, with the result that he will be inclined to swear

positively to a fact of which he is by no means certain.

People have mistakenly identified friends and relations well

known to them with sufficient frequency to make them

question the propriety of convicting an accused person on

nothing more than the visual identification of a single

witness who may only have had a fleeting glance of him in

poor light."

13. It has been stated in Halsbury's Laws of England 4

th

Edition Volume 2 that the identification of the accused for the first

time in the Court is improper and the witness should be asked to

identify the accused in a prior test identification parade. It has

been observed in para 363:

“A witness shouldn't be asked to identify the defendant for

the first time in the dock at his trial; and as a general

practice, it is preferable that he should have been placed

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previously in a parade with other persons, so that potential

witnesses may be asked to pick him up.”

14. It was laid down by the Hon’ble Supreme Court in P.

Sasikumar v. State of T.N., (2024) 8 SCC 600: (2024) 3 SCC (Cri) 791:

2024 SCC OnLine SC 1652 that when the accused were not known to

the witnesses on the date of the incident, their identification in the

dock is not acceptable. It was observed at page 605:

“17. The admitted position in this case is that the test

identification parade (hereinafter referred to as “TIP”) was

not conducted. All the prosecution witnesses who identified

the accused in the Court, such as PW 1 and PW 5, were not

known to the present appellant, i.e. Accused 2. They had not

seen the present appellant before the said incident. He was a

stranger to both of them. More importantly, both of them

have seen the appellant/Accused 2 on the date of the crime

while he was wearing a “green-coloured monkey cap”!

xxx

21.It is well settled that TIP is only a part of the police

investigation. The identification in TIP of an accused is not

a substantive piece of evidence. The substantive piece of

evidence, or what can be called evidence, is only dock

identification, that is, identification made by a witness in

court during the trial. This identification has been made in

court by PW 1 and PW 5. The High Court rightly dismisses

the identification made by PW 1 for the reason that the

appellant i.e. Accused 2 was a stranger to PW 1 and PW 1 had

seen the appellant for the first time when he was wearing a

monkey cap, and in the absence of TIP to admit the

identification by PW 1 made for the first time in the court

was not proper.

xxxx

23. We are afraid the High Court has gone completely wrong

in believing the testimony of PW 5 as to the identification of

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the appellant. In cases where the accused is a stranger to a

witness, and there has been no TIP, the trial court should be

very cautious while accepting the dock identification by

such a witness (see: Kunjumon v. State of Kerala, (2012) 13

SCC 750: (2012) 4 SCC (Cri) 406]).

xxx

27. In the facts of the present case, the identification of the

accused before the court ought to have been corroborated

by the previous TIP, which has not been done. The emphasis

of TIP in a given case is of vital importance, as has been

shown by this Court in the recent two cases of Jayanv. State

of Kerala, (2021) 20 SCC 38 and Amrik Singh v. State of

Punjab, (2022) 9 SCC 402: (2023) 2 SCC (Cri) 404.

28. In Jayan v. State of Kerala, (2021) 20 SCC 38, this Court

disbelieved the dock identification of the accused therein by

a witness, and while doing so, this Court discussed the

aspect of TIP in the following words: (Jayan v. State of

Kerala, (2021) 20 SCC 38, SCC p. 44, para 18)

“18. It is well settled that the TI parade is a part of the

investigation, and it is not substantive evidence. The

question of holding a TI parade arises when the

accused is not known to the witness beforehand. The

identification by a witness of the accused in the Court

who has, for the first time, seen the accused in the

incident of the offence is a weak piece of evidence,

especially when there is a large time gap between the

date of the incident and the date of recording of his

evidence. In such a case, the TI parade may make the

identification of the accused by the witness before the

Court trustworthy.”

15. In the present case, the accused were not known to the

informant, and their identification in the Court for the first time,

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in the absence of the Test Identification Parade, could not have

been used for recording the conviction.

16. Ashok Kumar, Pradhan of Gram Panchayat Kadhoa

(PW2), stated in his cross-examination that he was informed by

Chowkidar Satish Kumar about the incident, and no brawl had

taken place in his presence. He further clarified that the

motorcycle was already parked beside the road at the time of his

arrival in front of the bus. Therefore, his testimony that Swaran

Singh and Sohrat came from Dhaliara on the motorcycle and

misbehaved with the driver of the bus has become doubtful. If a

motorcycle was already parked at the time of his arrival, he could

not have seen the accused coming from Dhaliara and beating the

informant. This is further made doubtful by the statement in the

cross-examination that no brawl had taken place in his presence.

The part of the statement of this witness that no brawl had taken

place in his presence was not clarified by the prosecution by re-

examination and has to be accepted as correct. In similar

circumstances, when a witness had supported the case of the

defence, but was not re-examined by the prosecution to clarify his

testimony, it was held in Ramsewak v. State of M.P., (2004) 11 SCC

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259: 2004 SCC OnLine SC 477 that the benefit of the discrepancy

would go to the defence. It was observed at page 265:

“14…. Even assuming that there is some doubt as to the

interpretation of this part of his evidence since the same is

not clarified by the prosecution by way of re-examination,

the benefit of doubt should go to the defence which has, in

specific terms, taken a stand that the FIR came into being

only after the dead body was recovered….”

17. It was held in Javed Masood v. State of Rajasthan, (2010)

3 SCC 538: (2010) 2 SCC (Cri) 1176: 2010 SCC OnLine SC 347 that the

defence can take advantage of any statement made in the cross-

examination. It was observed at page 543:

“20. In the present case, the prosecution never declared

PWs 6, 18, 29 and 30 “hostile”. Their evidence did not

support the prosecution. Instead, it supported the defence.

There is nothing in law that precludes the defence from

relying on their evidence.

21. This Court in Mukhtiar Ahmed Ansari v. State (NCT of

Delhi) [(2005) 5 SCC 258: 2005 SCC (Cri) 1037] observed: (SCC

pp. 270-71, paras 30-31)

“30. A similar question came up for consideration

before this Court in  Raja Ram  v. State of

Rajasthan[(2005) 5 SCC 272: 2005 SCC (Cri) 1050]. In

that case, the evidence of the doctor who was

examined as a prosecution witness showed that the

deceased was being told by one  K that she should

implicate the accused or else she might have to face

prosecution. The doctor was not declared ‘hostile’.

The High Court, however, convicted the accused. This

Court held that it was open to the defence to rely on

the evidence of the doctor, and it was binding on the

prosecution.

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31. In the present case, evidence of PW 1 Ved Prakash Goel

destroyed the genesis of the prosecution that he had given

his Maruti car to the police, in which the police had gone to

the Bahai Temple and apprehended the accused. When Goel

did not support that case, the accused could rely on that

evidence.”

The proposition of law stated in the said judgment is equally

applicable to the facts in hand.”

18. Thus, in the absence of the re-examination, the

testimony of Ashok Kumar (PW2) that he had witnessed the

incident or had told the victim about the names of the accused

would become doubtful. Otherwise, when two versions are

appearing on record, the version in favour of the accused has to be

preferred to the version in favour of the prosecution.

19. Ajay Dhiman (PW3) stated in his cross-examination

that no brawl had taken place in his presence. He volunteered to

say that when he arrived at the spot, both parties had held each

other, and he had pacified the matter. He stated that the

motorcycle was parked in front of the bus on the driver’s side

when he reached the spot. The statement made by him that the

motorcycle was parked in front of the bus shows that he had not

witnessed the genesis of the incident. His statement that no brawl

had taken place in his presence makes his testimony in the

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examination-in-chief doubtful that the accused had given

beatings to the informant.

20. Ajay Dhiman (PW3) stated in his cross-examination

that he had not disclosed the names of the accused persons. This

part of his statement also makes the identity of the accused

suspect.

21. Kaptan Singh (PW4) was the conductor on the bus. He

had identified the accused for the first time in the Court. He has

not claimed that the accused were known to him. Therefore, the

Test Identification Parade of the accused was essential to fix the

identity of the accused.

22. Therefore, the learned Trial Court erred in holding that

the Test Identification Parade of the accused was not necessary

and their identification for the first time in the Court could be

relied upon.

23. The informant, Ajay Kumar (PW1), stated that the

accused tore the shirt of his uniform from the pocket. The buttons

of the shirt were also detached in the incident. He admitted in the

cross-examination that the pocket of his shirt was not torn. This

16

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admission makes his testimony doubtful that the accused had torn

the pocket of his shirt.

24. Kaptan Singh (PW4) stated in his cross-examination

that he could not say how many buttons of the shirt were

detached. The seizure memo of the shirt (Ext.P2/PW1) shows that

2 buttons (3 and 4) were detached during the incident. As per the

prosecution, the accused had caught the victim/informant from

the neck, and it is not explained as to how the pocket of the shirt

or the buttons (3 and 4) of the shirt were broken. Catching hold of

the neck of a person would have resulted in damage to the buttons

1 and 2 or 2 and 3, and not 3 and 4. Therefore, the recovery of the

shirt does not corroborate the prosecution’s case.

25. Dr Sajan Sharma (PW8) examined the informant. He

found that the left upper central incisor was mobile, and the

enamel of the central incisor was eroded. He stated that the nature

of the injury was grievous and could have been caused in 1-2 days.

However, he had examined the patient on 04.10.2019, the date of

the incident. Thus, the opinion of the Dental Surgeon does not

support the prosecution’s version that the injury was caused on

the date of the examination and the learned Trial Court erred in

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holding that the medical evidence corroborated the prosecution’s

version.

26. The informant stated that he did not know the accused

before the date of the incident. No reason has been assigned as to

why the accused should have picked up the quarrel with the

informant. The prosecution is not required to prove the motive in

the case of direct evidence, but the absence of motive will assume

significance because of the infirmities noticed above.

27. Therefore, the learned Trial Court erred in holding that

the prosecution had succeeded in proving its case beyond a

reasonable doubt, and the judgment and order passed by the

learned Trial Court cannot be sustained.

28. In view of the above, the present appeal is allowed, and

the judgment of conviction dated 26.06.2024 and order of

conviction dated 28.06.2024 passed by the learned Trial Court are

ordered to be set aside. The appellants/accused are acquitted of

the commission of offences punishable under Sections 353 and 333

of the IPC Act. The fine amount, if deposited be refunded to them

after the expiry of the period of limitation for filing an appeal, if

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no appeal is filed, and in case of appeal, it be dealt with as per the

judgment of the Hon’ble Supreme Court.

29. In view of the provisions of Section 437-A of the Code

of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha

Sanhita, 2023) the appellants/accused are directed to furnish bail

bonds in the sum of ₹25,000/- each with one surety each in the

like amount to the satisfaction of the learned Trial Court within

four weeks, which shall be effective for six months with

stipulation that in the event of Special Leave Petition being filed

against this judgment, or on grant of the leave, the

appellants/accused on receipt of notice thereof, shall appear

before the Hon’ble Supreme Court.

30. A copy of this judgment, along with the record of the

learned Trial Court, be sent back forthwith. Pending applications,

if any, also stand disposed of.

(Rakesh Kainthla)

Judge

20

th

March, 2026

(Nikita)