MD. ROSEN v. THE STATE — 1983 DIGILAW 167 (ORI)

BEHERA, J. ( 1 ) THE petitioners Md. Nasiruddin Ansari and Md. Nasirulla Khan said to be students of the Ranchi University and the petitioner Md. Rosen said to be a business man, all belonging to the State of Bihar, have come up in revision after unsuccessfully appealing to the learned Sessions Judge against the order of conviction passed against their under Sections 307 and 393 read with Section 34 of the Indian Penal Code (for short, the Codet) and under Section 25 (a) of the Arms Act sentencing each of them to undergo rigorous imprisonment for a period of five years under Section 307 read with Section 34, two years under Section 393 read with Section 34 of the Code and one year under Section 25 (a) of the Arms Act with a direction that the sentences would run concurrently. As the three revisions arise out of the same appellate judgment and order, the matters have been heard together and will be governed by this order. ( 2 ) THE petitioners, it was alleged, being armed with hand-bombs, revolvers and Bhujalis way laid and attacked Sheonandan Ram (P. W. 5) and Banshi Shaw (P. W. 8), two businessmen of Rairangpur, while they were returning from Joshipur in the car bearing registration No ORM 2830 belonging to and being driven by P. W. 5, after collection of their dues from different traders and were at a down gradient on the Ghat road in the Jungle, on August 9,1981 at about 3 P. M. The. petitioners suddenly emerged and one of them, namely, Nasirulla, exploded a band-bomb which hit the front grill of the car. The petitioner Nasiruddin fired from a revolver which did not work. While the car was still proceeding and was near mile stone No. 9, the petitioner Rosen put a big stone on the road to prevent P. Ws. 5 and 8 from proceeding and fired a revolver at P. W. 5 which also did not work. P. Ws. 5 and 8 taking a side turn moved and proceeded to Badampahar where they informed the Officer-in-charge of the Police Station about what had happened, but as the occurrence had taken place within the jurisdiction of the Joshipur Police Station, they proceeded to the Joshipur Police Station where the first information report (Ext. P. Ws. 5 and 8 taking a side turn moved and proceeded to Badampahar where they informed the Officer-in-charge of the Police Station about what had happened, but as the occurrence had taken place within the jurisdiction of the Joshipur Police Station, they proceeded to the Joshipur Police Station where the first information report (Ext. 2) was lodged by P. W. 5 and investigation was taken up by the Officer-in-charge of the Police Station (P. W. 10 ). In the course of investigation, P. W. 10 seized the car with the broken grill (M. O. VIII) and kept it in the custody of P. W. 5, visited the spot and seized some half-burnt papers and jute threads (M. Os. I and II), examined the witnesses and detected the petitioners at Joshipur at about 4. 45 P. M on the same day. On search, a blue coloured bag (M. O. VII) which the petitioner Nasirulla was holding, as alleged, was recovered by P. W. 10 in the presence of the search witness (P. W. 6 ). Four live cartridges (M. Os. IX to XII), an identity card by the petitioner Nasiruddin (M. O. XVIII), cash of Rs. 103/- (M. O. XVI), two Bhujalis with covers (M. Os. V and VI), a hand-bomb which had been kept inside a small bag (M. O. XVIII), a hand-made revolver (M. a. XIII) with cartridge, another revolver (M. O. IV) with barrel (M. O. XIII) loaded with two live cartridges (M. 03. XIV and IV) and a letter written in the Urdu (M. O. XIX) were seized from the petitioners under the seizure list (Ext. 5) and kept inside the bag (M. O. VII ). P. W. 10 also seized the wearing clothes (M. Os. XX and XXI) of the petitioner Nasirulla as per Ext. 6, M. Os. XXII and XXIII of the petitioner Nasiruddin as per Ext. 7 and M. O. XXIV and XXV of the petitioner Rosen as per the seizure list Ext; 8. The petitioners were arrested. As the allegation was that Sajan Kumar Agarwalla of Rairangpur had also joined hands with the petitioners for the commission of the crimes, he was arrested on August 10, 1981, but no incriminating article was recovered from his possession. Steps were taken by the Investigating Officer for a test identification parade of the three petitioners for identification by P. Ws. As the allegation was that Sajan Kumar Agarwalla of Rairangpur had also joined hands with the petitioners for the commission of the crimes, he was arrested on August 10, 1981, but no incriminating article was recovered from his possession. Steps were taken by the Investigating Officer for a test identification parade of the three petitioners for identification by P. Ws. 5 and 8 and for scientific examination of some of the seized articles. On the completion of investigation, a charge-sheet was placed against the three petitioners and the other co-accused Sajan Kumar Agarwalla. The petitioners stood charged under sections 393 and 307 read with section 34 of the Code, section 25 (a) of the Arms Act and section 5 (3) (b) of the Indian Explosives Act. The cc- accused Sajan Kumar Agarwalla stood charged under sections 307 and 393 read with Section 116 of the Code. ( 3 ) TO bring home the charges to the petitioners and the co-accused person, the prosecution had examined ten witnesses of whom P. Ws. 5 and 8 had identified the petitioners in the court and had ascribed the specific parts played by them at the time of the occurrence and they had earlier identified them at the test identification parade. P. W. 4 had testified about the three petitioners and the co-accused boarding a bus coming from Rairangpur of which he was an occupant and getting down near about the place of occurrence at about 12 to 12. 30 P. M. , and P. W. 3, the conductor of a bus and P. W. 7, an occupant of the bus of which P. W. 3 was the conductor had been examined to show that the petitioners boarded that bus near about the place of occurrence after committing the crimes when they were sweating and their pants had been stained with mud and one of them was holding a bag and they were anxiously looking at all sides. Suspicion had arisen in the mind of P. W. 7, as deposed to by him and he had informed the conductor to interrogate the petitioners, but, on his own showing, after the petitioners got down at Joshipur, he had taken no steps to inform at the police station or any other person although by that time, he had learnt about the commission of robbery on the way. P. Ws. P. Ws. 2 and 3 had not supported the case of the prosecution and had been put leading questions by it under section 154 of the Evidence Act. P. W. 1, a businessman at Rairangpur, had witnessed the seizures of M. Os. I and II on the spot. P. W. 6 had testified about the seizures of the incriminating articles from the possession of the petitioners by the Investigating Officer at Joshipur to which reference has already been made. P. W. 9 was then the Sub. Divisional Judicial Magistrate at Karanjia who had conducted the test identification parade on August 25, 1981 in which P. Ws. 5 and 8 had identified the petitioners to be the culprits and he had proved his report (Ext. 9 ). P. W. 10 had investigated into the case. ( 4 ) THE petitioners and the co-accused had pleaded not guilty to the charges. The case of the petitioners Nasiruddin and Nasirulla was that they had come for sight-seeing and in particular, to see the National Park near Joshipur and while they were at Joshipur, they were unjustifiably and falsely involved. The plea of the other petitioner was that he used to come to Joshipur in connection with selling of sweets and he was apprehended although be was innocent. The petitioners and the co-accused had not examined any witness on their behalf. ( 5 ) ON a consideration of the evidence, the learned trial Judge found that no case had been made out against the co-accused Sajan Kumar Agarwalh and he was acquitted of the charges. The learned Judge also held that the case under section 5 (3) (b) of the Indian Explosives Act against the petitioners had not been made out as on scientific examination, it was found that the articles seized and suspected to be an explosive substance did not contain explosive materials. Accepting the evidence of identification of the petitioners by P. Ws. 5 and 8 and that of P. Ws. 4 and 7 and the recoveries of the incriminating articles from their possession including their clothes at Joshipur by the Investigating Officer, it was found that the other charges against them bad been established. ( 6 ) ON appeal, the learned Sessions Judge, for justifiable reasons recorded in his judgment, did not place reliance on the evidence of P. Ws. 4 and 7 and the recoveries of the incriminating articles from their possession including their clothes at Joshipur by the Investigating Officer, it was found that the other charges against them bad been established. ( 6 ) ON appeal, the learned Sessions Judge, for justifiable reasons recorded in his judgment, did not place reliance on the evidence of P. Ws. 4 and 7 and it may be stated here that although the petitioners were strangers to them and had not been seen by them from before, they had been identified for the first time in the court without these witnesses being asked to identify them at a test identification parade and in the absence of materials to indicate that P. Ws. 4 and 7 had disclosed at the stage of investigation or to anyone else the identifying features of the petitioners or anyone of them, the learned Sessions Judge was justified in brushing aside their evidence as unsatisfactory. The learned appellate Judge found that the test identification proceedings had not been conducted properly and satisfactorily by P. W. 9 and steps bad not been taken by the investigating agency to see that P. Ws. 5 and 8 had no opportunity to see the petitioners before they were required to identify them at the test identification parade and finding that P. Ws. 5 and 8 had opportunity to see the petitioners having come to Karanjia and sat near the court of the learned Sub divisional Judicial Magistrate from 10. 15 A. M. , on the day the test identification proceedings were to be conducted, at a short and visible distance from the court and the court Hazat when the petitioners had been taken for production in the court, that being a date of their remand, the learned Judge did not rely on the test identification proceedings. But holding that this would not affect the evidence of identification of the petitioners by P. Ws. 5 and 8 in the court and accepting the evidence with regard to the recoveries of incriminating article from their possession which, as P. Ws. 5 and 8 had testified, had been seen by them at the time of the occurrence, the learned Judge found that the charges bad been brought home to them beyond reasonable doubt. ( 7 ) APPEARING on behalf of the petitioners, Mr. 5 and 8 had testified, had been seen by them at the time of the occurrence, the learned Judge found that the charges bad been brought home to them beyond reasonable doubt. ( 7 ) APPEARING on behalf of the petitioners, Mr. Dhal bas contended that in a case of this nature where the petitioners had not been known to P. Ws. 5 and 8 from before, their identification of the petitioners in the court without a proper test identification parade being held was not to be and ought not to have been accepted as the identifying witnesses had the opportunity to see the petitioners when they were brought for their production in the court prior to the test identification proceedings conducted later in the evening in the sub jail premises and in view of the evidence of P. W. 1 that when he, P. Ws. 5 and 8 and the Investigating Officer returned to the Joshipur Police station after the seizure of the articles at the spot, the petitioners had already been detained at the police station on suspicion and therefore, P. Ws. 5 and 8 had also the opportunity to see them at the police station where, as the evidence of P. W. 1 would show, he (P. W. 1) and P. Ws. 5 and 8 had remained for a long time before leaving the police station at 3 A. M. on the day following, the evidence of identification by P. Ws. 5 and 8 in the court was of no avail. It has been submitted before me that the evidence with regard to the recoveries of the incriminating articles as testified by P. W. 10 at Joshipur near the market from the petitioners was not worthy of credence and in view of the evidence of P. W. 6, the only witness to the seizures examined at the trial, that he had not seen when exactly the articles were recovered and the evidence of P. W. 1 that by the time all of them returned from the spot, the petitioners had already been detained by some persons at the police station on suspicion, the evidence with regard to the recoveries, as alleged, near the market at Josbipur, could not be accepted. According to him, only the identity card bad been recovered from the petitioners and nothing else. In this connection, Mr. According to him, only the identity card bad been recovered from the petitioners and nothing else. In this connection, Mr. Dhal bas invited the attention of this Court to a highly suspicious feature in the first information report wherein the particulars of the clothes worn by the petitioners had been mentioned although P. Ws. 5 and 8 bad categorically stated that they could not give the particulars and P. W. 5 had stated that be bad not given the particulars of the clothes worn by the petitioners while lodging the first information report and all this would show the mala fides of the investigating agency and would indicate that the investigation was suspicious. The learned Additional Standing Counsel bas, however, submitted that there was no reason to discard the evidence of P. Ws. 5 and 8 with regard to the identification of the petitioners and their evidence found support from the recoveries of the incriminating articles from the possession of the petitioners. ( 8 ) IT is now well-settled that although the revisional power of the High Court is as wide as the power of the court of appeal, normally the revisional jurisdiction of the High Court is to be exercised in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice In spite of the wide language of the statute with regard to the powers of the revisional court, the High Court is not expected to act as if it is bearing an appeal. But when the Court finds that an order of conviction has been based on no legal evidence or the findings are megal, unreawnable or perverse, this Court is certainly to right the wrong done to an accused person and set at naught such an order of conviction. ( 9 ) AS testified by P. Ws. 5 and 8, the occurrence had taken place in a flash and they were taken unawares when three persons suddenly came out from the jungle and attacked them. In the very nature of things, P. Ws. ( 9 ) AS testified by P. Ws. 5 and 8, the occurrence had taken place in a flash and they were taken unawares when three persons suddenly came out from the jungle and attacked them. In the very nature of things, P. Ws. 5 and 8 must have been in a state of great excitement and fear when a sudden attack was made in the course of which one threw a hand-bomb which hit the grill of the car and the other two fired shots from revolvers which did not work. As their evidence would show, P. W. 5 bad seen some of the culprits through the back-looking glass of the car. In the circumstances in which P. Ws. 5 and 8 had been placed, it was highly improbable and one could say, unthinkable, that in that state of affairs, P. Ws. 5 and 8 could have marked, as asserted by them in their evidence in the court, that the petitioner Nasirulla bad thrown the band-bomb, the petitioner Nasiruddin had fired from the revolver and that the other petitioner Rosen bad put a big stone and fired a revolver at P. W. 5. They had not only spoken about these specific parts played by the three petitioners at the time of occurrence, but bad gone to the length of even identifying M. O. III as the revolver being held by the petitioner Nasiruddin and M. O. IV as the revolver which was in the hands of the petitioner Rosen and further that M. O. V and VI were the Bhujalis which had been tied on the waists of the petitioners, Nasiruddin and Rosen and even went to the extent of identifying the bag (M. O. VII) as the one which the petitioner Nasirulla was holding when he threw the bomb. No test identification proceedings had been conducted in the course of investigation for identification of any of these articles by P. Ws. 5 and 8. However strong the faculty of identification of P. Ws. No test identification proceedings had been conducted in the course of investigation for identification of any of these articles by P. Ws. 5 and 8. However strong the faculty of identification of P. Ws. 5 and 8 might be, such evidence on their part not only identifying at the spot the three unknown persons, but also the articles held by them was too unreal to be accepted and there appears to be enough force in the contention raised on behalf of the petitioners that they might have identified the articles in the court having seen them at the police station where they had stayed for a long time. ( 10 ) AS has been laid down by the Supreme Court in State (Delhi Adm.) v. V. C. Shukla1, identification of a person not known to the identifying witness from before for the first time in the court without being tested by a prior test identification proceeding is valueless. The same principle has been laid down in Kanan and others v. State of Kerala2. The fact that in the first information report, P. W. 5, who had the occasion to see the petitioners at the police station, had given the ages of the culprits which would tally with the approximate ages recorded by the trial court while recording the statements of the petitioners would not be of any avail to the prosecution, as rightly submitted on behalf of the petitioners, and the mention of the particular clothes worn by the petitioners in the first information report although P. W. 5 had not given the particulars to the police officer who recorded it would show that all was not well with the investigation and that a case was being built up against the petitioners by stating in the first information report about the particular clothes used by them. ( 11 ) THE question raised in the present case is not whether the identification of an accused person by a witness for the first time in the court without any test identification parade can be accepted. The point which falls for consideration is if, as the evidence indicate, the identifying witnesses had seen the suspects to be identified at a test identification parade prior to the test identification proceedings, their evidence of identification in the court can be accepted. The point which falls for consideration is if, as the evidence indicate, the identifying witnesses had seen the suspects to be identified at a test identification parade prior to the test identification proceedings, their evidence of identification in the court can be accepted. The answer would be: No. In my view, an unreasonable finding has been recorded by the learned Sessions Judge by accepting the evidence of identification of the petitioners by P. Ws. 5 and 8 in the court while criticising the test identification proceedings and holding that the identifying witnesses had an opportunity to see the petitioners prior to the test identification proceedings. As would clearly appear from the evidence of P. W. 1 to which reference has been made -earlier, the identifying witnesses (P. Ws. 5 and 8) had a long time at their disposal to see the petitioners at the police station where they had been detained and the investigating agency had taken steps for the identification proceedings by the learned Sub-divisional Judicial Magistrate on a date of remand when the petitioners were to be produced in the court and had been produced. This had given an opportunity to P. Ws. 5 and 8 to see the petitioners when they were brought and produced in the court during court hours prior to the test identification parade which was later held in the evening in the sub-jail premises. In Mohanlal Gangaram Gehani. v. State of Maharashtra3, it has been held by the Supreme Court that where the culprits had not been known to the identifying witness from before and no test identification parade had been held to test his power of identification and the culprit was also shown by the police to the identifying witness before he identified the culprits in the court, his evidence would become absolutely valueless on the question of identification. No doubt, in that case no identification parade had been held but the principle laid down is that if the culprit had been shown to the identifying witness prior to the identification in the court, the identification evidence has no value. In the instant case, there could be no doubt from the evidence that P. Ws. No doubt, in that case no identification parade had been held but the principle laid down is that if the culprit had been shown to the identifying witness prior to the identification in the court, the identification evidence has no value. In the instant case, there could be no doubt from the evidence that P. Ws. 5 and 8 had seen the petitioners at the police station and later in the court premises when the petitioners were brought on foot and produced in the court and the evidence was that both the Court Hazat and the court were visible to the place where the P. Ws. 5 and 8 had been waiting from 10 15 a. m. having been called for the purpose of the test identification. parade. ( 12 ) A the evidence would indicate, appropriate steps had not been taken by the investigating agency to conceal the identity of the petitions prior to the test identification proceedings There was no evidence that the petitioners had been told prior to their production in the court on the date of remand that they were to be put in a test identification parade later on that day. ( 13 ) IN a recent decision of the Supreme Court in Ram Das v. State of Orissa4 arising out of the judgment and order passed by this Court in Criminal Appeal No. 16 and 37 of 1974, dealing with the question of identification, it has been observed and held: The only evidence recorded by the courts below against the appellant is the evidence of the approver (P. W. 23) Sandara Saura and P. W. 10 and P. W. 12. So far as P. W. 10 is concerned ht: did not identify the appellant at all in the court and therefore, his evidence is wholly irrelevant. So far as P. W. 12 is concerned it is also admitted that he was shown the photograph of the appellant which ought not to have been done. This Court has pointed out so many times that when accused are unknown to the witnesses proper care should be taken to conceal their identity before, the identification parade is held so much so that even if they are to be produced before the court they had to be kept in parda. This rule applies in full force to the investigation held by the Investigating Officers. This rule applies in full force to the investigation held by the Investigating Officers. Thus, the identification of the appellant by P. W. 12 in the committing court as also in the trial court is of no legal value and there is absolutely no evidence against the appellant. Their Lordships accordingly allowed the appeal and acquitted the appellant of the charges. ( 14 ) IN the instant case, the learned Sessions Judge was justified in not placing reliance on the test identification proceedings, but having done so, he unreasonably accepted the evidence of identification of the petitioners by P. Ws. 5 and 8 in the court in spite of the fact that they bad seen the culprits at the police station and had the opportunity to see them in the court premises prior to the test identification proceedings. The evidence of P. Ws. 5 and 8 identifying the petititioners as the culprits could not, therefore, be accepted. ( 15 ) THIS leaves the court to consider the evidence with regard to the recoveries of incriminating articles from the petitioners. Even if the recoveries of the incriminating articles are accepted, it would not be safe, reasonable and proper to reach a conclusion on the basis of such recoveries only that the petitioners must have been the three culprits who had attacked and attempted to commit murder and robbery as alleged by the prosecution. But for the identity card, the petitioners have denied the recoveries of the articles from their possession. No evidence has been led with regard to the ownership of the two revolvers or any of the other articles found in possession of the petitioners. As earlier indicated, some articles sent for scientific examination did not contain explosive substances. P. W. 6 was the only witness to the recoveries and the statements made by P. W. 6 in his cross-examination would undoubtedly show that the recoveries had been made prior to his arrival as be could not say from where the articles had been brought. Even as deposed to by P. W. 10, the bag containing the articles was being held by only one of the petitioners, namely Nasirulla. No incriminating articles had been recovered from the possession of any of the other petitioners at Joshipur. Even as deposed to by P. W. 10, the bag containing the articles was being held by only one of the petitioners, namely Nasirulla. No incriminating articles had been recovered from the possession of any of the other petitioners at Joshipur. The evidence of P. W. 10 with regard to the recoveries had been supported by P. W. 6 while he was under examination-in-chief, but his statement in the cross-examination, referred to above, would show that he had not seen the actual recoveries which had taken place prior to his arrival. The evidence of P. W. 1 was that after the Investigating Officer, he and P. W. 6 returned from the spot to the Joshipur Police Station, they heard that the culprits had been caught and about two hours later, he saw the culprits at the police station. His evidence was that he had heard that some local people had detained the culprits on suspicion and had informed the Havildar who had detained them. He bad made a statement to the effect that by the time all of them returned from the spot to Joshipur, the culprits had already been taken to the police station and he and others remained at Joshipur till 3. 00 A. M. in the night and in the early morning, he and others including P. Ws. 5 and 8 returned to Rairangpur. If the culprits had already been brought to and detained at the police station by the time P. W. 10 and others returned from the spot, the articles could not have been recovered at any place near the Joshipur Bazar from the culprits, as deposed to by P. Ws. 6 and 10. On such evidence, both the trial and appellate courts could not have placed reliance and held that the incriminating articles had been recovered from the possession of the petitioners. Except for the identity card of one of the petitioners that be was a student of the Ranchi University, the evidence with regard to the recoveries of the other incriminating articles was utterly untrustworthy, besides being highly suspicious. ( 16 ) FOR the reasons aforesaid, it must be held that the courts below had recorded unreasonable and unfounded findings holding the petitioners to be guilty of the charges and interference is called for by this Court in its revisional jurisdiction. ( 17 ) AS rightly submitted by Mr. ( 16 ) FOR the reasons aforesaid, it must be held that the courts below had recorded unreasonable and unfounded findings holding the petitioners to be guilty of the charges and interference is called for by this Court in its revisional jurisdiction. ( 17 ) AS rightly submitted by Mr. Dhal, sanction had not duly been accorded for the prosecution of the petitioners under section 25 (a) of the Arms Act. P. W. 10 had deposed that he bad obtained the sanction order from the Additional District Magistrate, Mayurbhanj, for prosecution of the petitioners under section 25 (a) of the Arms Act and he had proved the sanction order (Ext. 13 ). He had not stated that he had placed the materials against the petitioners with regard to the commission of this offence before the sanctioning authority. Ext. 13 reads: In pursuance of section 39 of the Arms Act, 1959, I, Sri Jagar Singh, LA. S. Additional District Magistrate, Mayurbhanj do hereby sanction the prosecution for the offence committed under section 25 (a) read with section 3 of the said Act, for submission of charge against the accused persons noted below involved in Joshipur P. S. case No. 34 dt. 9-8-1981 under section 393 Indian Penal Code section 15 Arms Act. 1. Md. Rosen. 2. Md. Nasiruddin. 3. Nasirulia Khan. Sd. Jagar Singh. Additional District Magistrate Mayurbhanj. ' It has not been mentioned in the sanction order that the materials gathered in the course of investigation against the petitioners had been placed before the sanctioning authority and that the sanctioning authority bad considered the materials before according sanction. For a sanction to be valid, it must be established that the sanction was given in respect of the facts constituting the offence with which the accused is proposed to be charged. The grant of sanction is not an idle formality. In my view, sanction had not duly been accorded after proper application of mind for prosecution in respect of the offence punishable under the Arms Act. On this ground also, the order of conviction in respect of this offence is illegal and invalid. ( 18 ) IN the result, I would allow the revision, set aside the order of conviction and sentences passed against the three petitioners and direct that they be set at liberty forthwith. .