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2006 DIGILAW 171 (RAJ)

Mahesh v. State of Rajasthan

2006-01-16

SHIV KUMAR SHARMA, VINEET KOTHARI

body2006
Honble SHARMA, J.–Mahesh and Lakhan, the appellants herein, along with co-accused Raju @ Raj Kumar, Mangal Singh, Uttam Singh and Mahendra, were placed on trial before learned Additional Sessions Judge (Fast Track) No. 2, Dholpur. Learned Judge vide judgment dated February 6, 2003 acquitted Raju, Mangal Singh, Uttam Singh and Mahendra but convicted and sentenced the appellants as under:– U/s. 302/149 IPC: Each to suffer life imprisonment and fine of Rs. 500/-, in default to further suffer one month imprisonment. U/s. 364 IPC: Each to suffer rigorous imprisonment for five years and fine of Rs. 200/-, in default to further suffer fifteen days imprisonment. Substantive sentences were directed to run concurrently. (2). The prosecution story runs as under:– On October 29, 1998, informant Chhitaria (Pw.4) submitted a written report (Ex.P-16) at Police Station Mania stating therein that in the morning when he went to his field he found a dead body of Chandan lying on the field. Jeep No. RJ-11/0494 belonging to Chandan was standing nearby. The miscreants appeared to have killed Chandan since they wanted to take away his jeep but because of huge pits on the road the jeep could not be driven away and it was left there. A case under sections 365 and 362 IPC was registered and investigation commenced. Autopsy on the dead body was performed, statements of witnesses were recorded, the accused were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2 Dholpur. Charges under sections 147, 148, 364, 302 and 364/149 IPC were framed. The appellants denied the charges and claimed trial. The prosecution in support of its case examined as many as 20 witnesses. In the explanation under section 313 Cr.P.C., the appellant claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. (3). We have heard the rival submissions and scrutinised the record. (4). There is no eye witness of the occurrence and the prosecution case is founded on circumstantial evidence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. (3). We have heard the rival submissions and scrutinised the record. (4). There is no eye witness of the occurrence and the prosecution case is founded on circumstantial evidence. It is well settled that case based on circumstantial evidence must satisfy three tests:– (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. (5). Bearing these principles in mind we have to adjudge as to whether the prosecution is able to establish the guilt of the appellants and whether each of the proved circumstance reinforces the conclusion of the guilt of the appellants ? (6). Learned trial Judge based his findings on the following circumstances that were found established at the trial:– (i) Death of Chandan was homicidal in nature. (ii) The appellants along with other co-accused came to the house of Chandan to hire his jeep and Chandan before his death was seen alive in the company of the appellants. (iii) Abnormal conduct of appellants. DEATH WAS HOMICIDAL: (7). Indisputably as per postmortem report (Ex.P-19) death of Chandan was homicidal in nature. As many as 24 antemortem injuries were found on the dead body and Dr. R.C. Goyal (Pw.9) testified that the cause of death was hemorrhage and shock due to puctured wounds, division of both sides neck vessels and puncture of intestine and liver. LAST SEEN: (8). In order to establish that Chandan was last seen alive in the company of the appellants, the prosecution has examined Sunder (Pw.8) the son of deceased, who in his deposition stated that his father himself drove jeep No. RJ 11/C 0494 and it was available on rent. On October 28, 1998 the appellants along with one other person came to their house and asked his father to provide jeep on rent. His father agreed and proceeded with them on jeep. On the very next morning he came to know that his father was murdered. On October 28, 1998 the appellants along with one other person came to their house and asked his father to provide jeep on rent. His father agreed and proceeded with them on jeep. On the very next morning he came to know that his father was murdered. Learned counsel for the appellants vehemently urged to discard the testimony of this witness on the ground that he could not recognise the appellants as he did not acquaintance with them. According to learned counsel since he had seen the appellant Mahesh, immediately after his arrest, identification proceedings Ex.P-19 held in jail, stood vitiated. (9). Having carefully scanned the record we notice that the appellant Mahesh had already been arrested in another case and while handing him over to Police Station Mania in the instant case he was directed to be kept Baparda (with covered face). Had he been shown to Sunder prior to his identification in jail, he would have definitely told this fact to the Magistrate, but there is nothing to this effect in the Memo of Identification (Ex.P- 19). As per the deposition of Sunder he knew appellant Lakhan and before the Trial Court he correctly identified Lakhan and Mahesh. (10). In the backdrop of the testimony of Sunder (Pw.8) we proceed to consider the evidential value of identification parade. Their Lordships of the Supreme Court in Abdul Waheed Khan @ Waheed vs. State of A.P. (2002) 7 SCC 175 indicated thus:– ``Identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. The other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye witnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code of Criminal Procedure, 1973 and the Evidence Act. It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond their control and there is some delay, it cannot be said to be fatal to the prosecution. (11). In Dana Yadav alias Dahu vs. State of Bihar (2002) 7 SCC 295 , it was held as under:– ``Identification parade are held during the course of investigation ordinarily at the instance of investigating agencies and should be held with reasonable dispatch for the purpose of enabling the witnesses to identify either the properties which are the subject matter of alleged offence or the accused persons involved in the offence so as to provide it with materials to assure itself if the investigation is proceeding on right lines and the persons whom it suspects to have committed the offence were the real culprits. (12). In Jayawant Dattatraya Suryarao vs. State of Maharashtra (2001) 10 SCC 109 , their Lordships of the Supreme Court propounded thus:– ``Substantive evidence of a witness is his evidence in court. Identification parade is not primarily meant for the court but is meant for investigation purpose. (12). In Jayawant Dattatraya Suryarao vs. State of Maharashtra (2001) 10 SCC 109 , their Lordships of the Supreme Court propounded thus:– ``Substantive evidence of a witness is his evidence in court. Identification parade is not primarily meant for the court but is meant for investigation purpose. It serves two purposes, namely, to enable the witness to satisfy that the prisoner whom he suspects is rally the one who was seen by him in connection with the commission of the crime and for satisfying the investigation authority that the suspect is the real person whom the witness had seen in connection with the said occurrence. In case when the evidence is cogent, consistent and without any motive, it is no use to theoretically imaging that as the witness has seen the accused for a few minutes it would be difficult for him to identify. It always depends upon ones capacity to recapitulate what he has seen earlier. Power of perception and memorising differs from man to man and also depends upon the situation. Finally, appreciation of such evidence would depend upon the strength and trustworthiness of witnesses. (13). Principles deduced from the aforequoted pronouncements may be summarised thus:– (i) Identification tests do not constitute substantive evidence. They can only be used as corroborative of the statement in court. (ii) The main object of holding an identification parade during the investigation stage is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye witnesses of the crime. (iii) In order to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade and it is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. (iv) Appreciation of such evidence would depend upon the strength and trustworthiness of witnesses. (14). Coming to the facts of the instant case we notice that witness Sunder knew appellant Lakhan from before and acquainted with him. Sunder recognised appellant Mahesh in the identification parade and both the appellants Lakhan and Mahesh were also correctly identified by him in the trial. Evidence of Sunder could not be shattered in the cross examination and we find it cogent, consistent and trustworthy. Sunder recognised appellant Mahesh in the identification parade and both the appellants Lakhan and Mahesh were also correctly identified by him in the trial. Evidence of Sunder could not be shattered in the cross examination and we find it cogent, consistent and trustworthy. It is thus established that Lakhan and Mahesh with other co-accused, got the jeep of Chandan Singh hired and proceed in the jeep with Chandan Singh On October 28, 1998 and in morning of next day Chandan Singh was found murdered. The appellants failed to adduce any explanation about their innocence. Their Lordships of the Supreme Court in Deo Nandan vs. State ( AIR 1955 SC 801 ) propounded that Section 106 of the Evidence Act although does not cast any burden upon the accused, but when the accused throws no light at all upon the facts which ought to be especially within his knowledge and which could support any theory or hypothesis compatible with his innocence, the court can also consider his failure to adduce any explanation. In the instant case after the prosecution established that appellants proceeded in the jeep with Chandan Singh, the appellants ought to have given explanation that could support any theory or hypothesis compatible with their innocence. In the absence of any other explanation by the appellants, the only possible inference is that it were the appellants who committed the crime. ABNORMAL CONDUCT: (15). The prosecution examined Constables Pooran Singh (Pw.16), Sahab Singh (Pw.17) and Gambhir Singh (Pw.18) to establish that in the intervening night of October 28 & 29, 1998 they had seen appellants Mahesh, having injury on his arm, Lakhan and co- accused Raju coming from the side of Kumher. The appellants were taken to Police Station Sepau. These witnesses correctly identified the appellant Lakhan in the Trial Court. At the time of recording their statements appellant Mahesh was not present in the court and the counsel for Mahesh did not object to the identification of Mahesh by the witness. Even after vigorous cross examination, the testimony of these witnesses could not be shattered. Learned counsel for the appellants urged that since the appellants were not arrested by the Police Station Sepau, no reliance could be placed on the ocular testimony of these witnesses. We find no force in the submission. Even after vigorous cross examination, the testimony of these witnesses could not be shattered. Learned counsel for the appellants urged that since the appellants were not arrested by the Police Station Sepau, no reliance could be placed on the ocular testimony of these witnesses. We find no force in the submission. In our opinion, Constables Pooran Singh, Sahab Singh and Gambhir Singh have established this fact that the appellants Mahesh and Lakhan were found at the time of incident under the suspicious circumstances and appellant Mahesh who had injury on his hand explained that it was caused in a quarrel. CONCLUSION: (16). From the evidence discussed above, it is satisfactorily and conclusively proved that all the links in the chain are complete and does not suffer from any infirmity. The circumstances, from a complete chain of evidence as not to leave any reasonable ground for a conclusion consistent with the hypothesis of the innocence of the appellants but on the contrary the same are of exclusive nature consistent only with the hypothesis of the guilt of the appellants and conclusively lead to irresistible conclusion that it were the appellants who committed the offence. (17). For these reasons, we do not find any merit in the instant appeal and the same stands dismissed. Conviction and sentence awarded to appellants Mahesh and Lakhan under sections 364 and 302 read with 149 IPC are confirmed.