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2007 DIGILAW 812 (JHR)

Shiv Kumar Oraon v. State of Jharkhand

2007-10-11

D.K.SINHA, D.P.SINGH

body2007
JUDGMENT D.K. Sinha, J.-The present appeal is directed against the judgment of conviction passed by the Add!. Sessions Judge (FTC), Latehar in S.T. No. 41 of 2002 on 10.11.2003 for the charge under sections 364N302/201 of the Indian Penal Code whereby and whereunder the appellant Shiv Kumar Oraon was sentenced to undergo life imprisonment under section 364A. again imprisonment for life under section 302 with fine of Rs. 10,000/- with default stipulation and finally 5 years rigorous imprisonment under section 201 of Indian Penal Code. It was directed by the trial court to deliver 60% of the fine amount to the father of the deceased (informant) and the sentences to run concurrently. We find that the operation portion of the order lackes clarity in the impugned judgment. 2. The brief facts of the case as it stands narrated in the Fardbeyan of the informant, Deo Raj Sao was that in the night of 5.9.2001 at about 9.30 O'clock, about 8/10 persons arrived at his house and knocked the door on the pretext that they were guests. When his son Kundan Prasad opened the door, all the culprits took him away alongwith his another son Nandan Prasad (since deceased) and his nephew Sudarshan Prasad. The culprits tied the hands of all the three boys and took them in the deep forest. It was further alleged that the miscreants let off Kundan Prasad and Sudarshan Prasad after extending some torture with the condition to bring ransom of Rs. 1.5 lakhs to secure the release of their brother Nandan Prasad. The matter was informed to the police by the informant in the night of occurrence itself. The informant started searching his son after communication from the witnesses Nandan Prasad and Sudarshan Prasad on their return. On 9.9.2001 pursuant to the information received that a dead body of an unknown person was lying in the bogey No. 93466 of the goods train at Khelari-Dakra railway siding, he alongwith his son Kundan Prasad went there and identified that the dead body belonged to his son Nandan Prasad who was killed by the miscreants for non-payment of ransom. However, the informant claimed in his statement before the police that his elder son as well as nephew could recognize the culprits by their faces, if produced before them. However, the informant claimed in his statement before the police that his elder son as well as nephew could recognize the culprits by their faces, if produced before them. Latehar P.S. Case No. 85 of 2001 was registered on 12.9.2001 on the statement of the informant for the offence under sections 364A/302/201 of Indian Penal Code against 8/10 unknown culprits. The police after investigation submitted charge-sheet against the appellant. The appellant was identified by the informant and his son Kundan Prasad in the test identification parade which was held on 5.12.2001 during the investigation. The other accused persons were discharged by the committing court itself since not being identified by the witnesses in the test identification parade. The charge was framed by the trial court only against the appellant under sections 364A/302/201 IPC. 3. Mr. A.K. Chaturvedi, the learned counsel by advancing his arguments submitted that altogether 8 witnesses were produced and examined on behalf of the prosecution. P.W. 1 Deo Raj Sao, father of the deceased and informant of the case, corroborated his earlier version in his testimony as to how the occurrence took place with the participation of 8/10 culprits in his house wherein his two sons Kundan and Nandan Prasad as well as his nephew Sudarshan were abducted and how Sudarshan and Kundan were let off by the culprits to secure the release of Nandan Prasad (since deceased) against ransom of Rs. 1.5 lakhs. P.W. 1 testified having identified the appellant in the TIP but after three months. Similarly P.W. 2 Kundan Prasad, son of the informant Claimed to identify the appellant Shiv Kumar Oraon in the test identification parade which was held after three months of the occurrence in the jail and therefore, according to Mr. Chaturvedi, such TIP has got no legal sanctity. By drawing our attention Mr. Chaturvedi further submitted that P.W. 4 Sudarshan Prasad admitted in his testimony that he was not aware of the name of the appellant but his name was appraised by his uncle (informant) and that he had not seen the appellant prior to the alleged date of occurrence and he claimed to identify the appellant for the first time in trial court. The specific defence of the appellant was that he was shown to the witnesses at the police station and for such reason the witnesses could easily identify him at the test identification parade but no independent corroborative evidence was produced to connect the appellant with the alleged offence. Mr. Chaturvedi exhorted that other witnesses such as P.W. 3 Tup Chand Sao, P.W. 5 Lakheshwari Devi were the inmates in the house of the informant at the time of alleged occurrence but they could not identify the appellant in the dock. P.W. 6 Amod Narayan Singh, Officer-Incharge of Chandwa police station investigated the case erroneously and submitted the Charge-sheet only against the appellant though FIR was instituted against 8/10 unknown. Similarly the test identification parade as conducted in presence of P.W. 7 Sri Ramjiyavan Judicial Magistrate, Latehar was against the procedural law who proved TIP chart Ext. 6. 4. C.w. 1 Dilip Kumar, Dy. Superintendent of Sub-Divisional Hospital, Latehar was produced as court witness who held autopsy on the body of Nandan Prasad on 10.9.2001 and found the following injuries:- (i) One oval shaped wound with charred margin, size 1" x 1/2" x 1/2" over front of right side of chest, in middle sixth and seventh intercostal. (ii) One wound of exit, size 2" x 1" x 1/2" over back of chest on right side. On Dissection Right lung pierced. chest cavity-Full of blood In the opinion of the Doctor. death was caused due to haemorrhage and shock on account of firearm injury. Time since death was assessed two to three days. He proved the post mortem report Ext. 7. In the cross-examination the witness opined that injury on the victim was caused by firearm from close range. 5. The appellant in his statement recorded under section 313 of Cr.PC. simply denied his guilt when confronted with incriminating materials collected on the record against him during trial and declined to adduce defence evidence. But on the suggestion made by the appellant from the dock in the trial court, P.W. 1 Deoraj Sao replied in negative when asked that he was shown to him at the police station. 6. simply denied his guilt when confronted with incriminating materials collected on the record against him during trial and declined to adduce defence evidence. But on the suggestion made by the appellant from the dock in the trial court, P.W. 1 Deoraj Sao replied in negative when asked that he was shown to him at the police station. 6. The trial court put reliance on following facts while basing the conviction of the appellant, and to quote:- "In the present case the evidence of the witnesses has proved that above accused alongwith his other associates kidnapped three boys and killed Nandan Prasad as a result of non-payment of ransom, which proves the motive for crime, hence it is a fit case for conviction. It appears to this court that there is much force and substance in the submission of the learned A.P.P made in this regard and as such I agree with the learned A.P.P that actually in this case there are plausible and convincing circumstantial evidence alongwith direct evidence on the basis of which it can be believed that abovenamed accused alongwith his other associates had kidnapped Kundan Prasad, Nandan Prasad and Sudarshan Prasad and due to non-payment of ransom Of rupees one and half lakhs, Nandan Prasad was murdered by firearm." 7. Mr. Chaturvedi, laid stress that the trial court failed to point out in the judgment as to what were the plausible and convincing circumstantial evidence and that what were the direct evidence against the appellant so as to call for conviction of the appellant for the alleged charge under sections 364A/302/201 IPC. 8. Mr. Chaturvedi pointed out categorically that the offence as alleged took place in the night of 5.9.2001, the dead body of Nandan Prasad was recovered from a Wagon on 9.9.2001, Fardbeyan of the informant was recorded on 9.9.2001 and post mortem of the deceased Nandan Prasad was held on 10.9.2001 but the FIR was lodged on 12.9.2001 without explanation of such inconsistency. The informant (P.W. 1) was consistent in his statement that the police was informed in the same night of the alleged occurrence about the kidnapping of three boys but no investigation of the case was initiated on the basis of such information and ultimately the dead body of Nandan Prasad was recovered from a Wagon, standing in the Railway-yard which shows lapses on the part of investigating agency and the conduct of the police is therefore, doubtful. Similarly the fact is amazing that the post mortem on the body of Nandan Prasad was conducted prior to the institution of the police case on 10.9.2001. Yet, the trial court recorded the judgment of conviction of the appellant on erroneous consideration, only on the solitary evidence that he was identified in the test identification parade by the witnesses after a long gap of three months and according to the learned counsel such identification cannot be the basis for the conviction of the appellant without corroboration from independent sources. 9. Reliance has been placed on the decision reported in 1994 SCC (Cri.) 144. In Chotey Lal VS. State of U.P. the Apex Court observed:- "As mentioned above the appellant was arrested on April, 4, 1969 and the test identification parade was held on June 24, 1969. There is nothing on the record to show as to why the prosecution could not hold the test identification parade immediately after the arrest of the appellant. In the absence of any other evidence the gross delay in holding the test identification parade makes the prosecution case doubtful. We have carefully and searchingly gone into the statement of witnesses including the Investigating Officer and other material on the record to find out any corroboration to the identification evidence but without any success. The proceedings of the test identification parade showing that the face of the appellant was covered with patches at various places does not inspire confidence. P.W. 1 and P.W. 2 made bare omnibus statements that they saw the appellant committing the dacoity. They do not associate their memory with any overt act or weapon in the hands of the appellant. Taking overall view of the evidence we are of the view that the prosecution has not been able to take the case against the appellant beyond reasonable doubt. We, therefore, give benefit of doubt to the appellant and acquit him". 10. Finally Mr. Taking overall view of the evidence we are of the view that the prosecution has not been able to take the case against the appellant beyond reasonable doubt. We, therefore, give benefit of doubt to the appellant and acquit him". 10. Finally Mr. Chaturvedi submitted that the appellant was prejudiced seriously for his alleged identification in the Test Identification Parade after three months of his arrest without explanation from the prosecution side as his exposure to the witnesses within such time for his identification cannot be ruled out and in that manner the prosecution failed to take precaution by putting him on TIP soon after his arrest. The appellant therefore, may be acquitted from charges by setting aside the impugned judgment and order. 11. Mr. V.S. Sahay, the learned A.P.P. vehemently opposed the contention and submitted that the appellant Shiv Kumar Oraon was identified in TIP by P.W. 1 Deoraj Sao i.e. the informant of the present case and his son P.W. 2 Kundan Prasad as also by his nephew P.W. 4 Sudarshan Prasad but in the trial court. The testimonies of P.W. 2, Kundan Prasad and P.W. 4 Sudarshan Prasad were reliable and relevant in the sense that they were the victims as abducted by the culprits with their brother Nandan Prasad (since deceased) and for such reason their memory was associated with the overt act of the appellant during the occurrence and even thereafter. P.W. 2 Kundan Prasad has categorically pointed out the manner of the participation of the appellant in abduction as well as demand of ransom and the circumstance in which he and P.W. 4 Sudarshan were released by the culprits to bring the ransom for securing the release of their younger brother, Nandan Prasad (since deceased) with specific attribution of the appellant. This fact has been supported by P.W 7, Shri Ram Jiyawan, Judicial Magistrate in whose presence test identification parade was conducted and he proved the TIP chart (Ext. 6) with endorsement made thereon. 12. Advancing his arguments Mr. Sahay submitted that delay in holding TIP is not always fatal. This fact has been supported by P.W 7, Shri Ram Jiyawan, Judicial Magistrate in whose presence test identification parade was conducted and he proved the TIP chart (Ext. 6) with endorsement made thereon. 12. Advancing his arguments Mr. Sahay submitted that delay in holding TIP is not always fatal. It was held by the Apex Court in the case of Anil Kumar vs. State of U.P. reported in (2003)3 SCC 569 that the circumstances in which the occurrence took place were such that the facial expressions of the assailants would get embossed in the memory of M and his parents and a mere lapse of 47 days in holding the TI Parade would not erase those facial expressions from their memory. 13. Mr. Sahay further submitted that in the case of Brij Mohan VS. State of Rajasthan (1994)1 SCC 413 : 1994 SCC (Cri.) 527 the Apex Court approved the Test Identification Parade which was conducted after the period of 3 months. Similarly in the case of Daya Singh vs. State of Haryana reported in AIR 2001 SC 1188 , the Apex Court held that Test Identification Parade of an accused after a period of almost 8 years of the occurrence was proved with the reasoning that sometimes the crime itself happened in such a manner which could create a deep impression on the minds of the witnesses who had an occasion to see the culprits. 14. In the instant case the P.W 2 and P. W 4 had not only seen the occurrence at the first instance in their house when the culprits took away Nandan Prasad (since deceased) with them for ransom and that they were let off by the appellant and other culprits with caution to bring ransom to secure the release of their brother and such situation created a deep impression on the mind who identified the appellants in the TIP as well as in the dock. Admittedly, the informant had only one occasion to see the appellant at his home which was the first place of occurrence. The statement of P.W.7, Judicial Magistrate, Latehar is relevant in the sense that he made an endorsement in the TIP chart (Ext. 6) that both the witnesses had specified the overt act attributed by the appellant. The evidence of P.W. 2 and RW 4 together with RW 1 is conclusive in respect of charge under section 364A/302/201 IPC. The statement of P.W.7, Judicial Magistrate, Latehar is relevant in the sense that he made an endorsement in the TIP chart (Ext. 6) that both the witnesses had specified the overt act attributed by the appellant. The evidence of P.W. 2 and RW 4 together with RW 1 is conclusive in respect of charge under section 364A/302/201 IPC. Mr. Sahay further submitted that there is direct evidence for the charge under section 364A IPC against the appellant. However as regards charge under sections 302/201 is concerned, there appeared strong circumstances based on theory of last seen by P.W. 2 and P.W 4. The victim Nandan Prasad was left in the custody of the appellant and others .as hostage al the time when both the witnesses were let off to bring ransom to secure the release of their brother with certain condition. When the amount of ransom could not mach them though attempt was made, Nandan Prasad was shot dead by the appellant and culprits and the dead body was disposed of to screen themselves by putting it in the bogey of a goods train. Both the witnesses P.W. 2 and P.W. 4 were consistent that their brother Nandan Prasad was left in the custody of the appellant in the night of 5.9.2001 and both returned to bring the ransom and at that time the appellant had threatened to kill Nandan failing to bring ransom to secure his release. Admittedly, ransom could not be paid and consequently Nandan was shot dead. 15. Having regard to the facts and circumstances, arguments advanced on behalf of the parties we find that the entire evidence revolves round the testimonies of P.W. 1, P.W. 2 and P.W. 4. According to P.W. 1 (informant), he had informed the police in the night of the alleged occurrence on 5.9.2001 itself but no step was taken by the local police to search out his son. On 9.9.2001 when he came to learn that the dead body of an unknown person was lying in the bogey No. 93466 of a goods train at Khelari Dakra siding he went there and identified the dead body of his son Nandan Prasad with gun shot injury on the person. Fardbeyan (statement of the informant) was recorded by ASI M.K. Mandai of Railway Police Barkakhana at Khelari Dakra railway Siding on 9.9.2001 at 9 a.m. and after recording the statement (Ext. Fardbeyan (statement of the informant) was recorded by ASI M.K. Mandai of Railway Police Barkakhana at Khelari Dakra railway Siding on 9.9.2001 at 9 a.m. and after recording the statement (Ext. 2) he put his endorsement by referring the recorded statement of the informant to the Latehar police station for registration of the case as the place of occurrence fell in the territorial jurisdiction of Latehar police. On receipt of the statement of the informant Latehar P.S. Case No. 85 of 2001 was registered on 12.9.2001 under sections 364N302/201 of the Indian Penal Code (Ext. 2/1). Post mortem examination of the deceased Nandan Prasad was already held on 10.9.2001 by C.W. 1 when received the dead body from the Government Rail Police Barkakhana. C.W. 1 Dilip Kumar, on the basis of post mortem examination opined that one "entry wound" and one "exit wound" caused by firearm were found on the chest of the dead body of Nandan Prasad piercing right lung and the time since death was assessed between 2-3 days. The cause of death in his opinion was haemorrhage and shock due to gun shot injury. Inquest of the dead body was prepared on 9.9.2001 by ASI M.K. Mandai of the Railway Police which was proved as Ext. 4 and endorsement on the FIR bears the signature of C.J.M., Latehar dated 13.9.2001. In view of the above facts on record we do not find any inconsistency or irregularity in the institution of the case. 16. P.W. 1 (informant) Devraj Sao, P.W. 2 Kundan Prasad, P.W. 4 Sudarshan Prasad and P.W. 5 Lakheshwar Devi are consistent in their testimonies on the factum of the arrival of 7-8 culprits in the house of the informant in the alleged night of occurrence at about 9.30 O'clock who took away Kundan Prasad, Nandan Prasad and Sudarshan Prasad with them. Kundan Prasad and Sudarshan Prasad returned back in the night who appraised that the culprits demanded Rs. 1.5 lakhs to secure the release of Nandan Prasad failing to which they threatened to commit murder of Nandan Prasad. 17. The witnesses are consistenf that the culprits had taken away all the three boys from the house of the informant and retained one of them Nandan Prasad (since deceased) whereas other two i.e. Kundan Prasad and Sudarshan Prasad were let off with the condition to bring the ransom for securing release of Nandan Prasad. 17. The witnesses are consistenf that the culprits had taken away all the three boys from the house of the informant and retained one of them Nandan Prasad (since deceased) whereas other two i.e. Kundan Prasad and Sudarshan Prasad were let off with the condition to bring the ransom for securing release of Nandan Prasad. Both the witnesses admitted that ransom amount could not be given to them and the dead body of the deceased was found lying in the bogey at the railway siding on 9.9.2001 where the informant visited and identified the dead body that belonged to his son Nandan Prasad with firearm injury on chest. The informant (P.W. 1) identified the appellant in the TIP which was conducted in the jail premises with attribution that the appellant had entered into his house from the front door holding pistol in his hand. In the cross-examination the witness admitted that after witnessing the appellant entering into the house, the informant escaped from the back door and he identified the appellant in the light which was lit at the time of occurrence. In the question put by the appellant from the dock, the witness emphatically testified that it was false to say that he had visited the police station after arrestation of the appellant where the appellant was shown to him. Similarly P.W. 2 Kundan Prasad and P.W. 4 Surdarshan Prasad with minor variation narrated the occurrence in their testimony as all the three boys were abducted by the culprits from the house of the informant in the night about 9.30 O'clock. The witnesses are consistent that they were let off to bring the ransom at a particular place in the red bag to secure the release of their brother Nandan Prasad. P.W. 2 in his cross-examination testified with more clarity that though the culprits while entering into his house had covered their faces but such cover by cloth skipped from the face of one of the culprits and he was none other than Shiv Kumar Oraon (appellant) about whom he carried deep impression in his mind with consecutive opportunity to memorise his face in the forest, in the test identification parade and in the court P.W. 1 testified in clear words that the appellant Shiv Kumar Oraon was not shown to him at the police station prior to the TIP. Similarly P.W.4 corroborated the evidence of P.W.. Similarly P.W.4 corroborated the evidence of P.W.. 2 as to how he was kidnapped with other two cousins by the culprits and they demanded Rs. 1.5 lakhs ransom to secure the release of Nandan Prasad and for that both were let off. He further testified that his uncle Debraj Sao had pursuant to that carried the ransom but he could not meet any of the culprits and ultimately dead body of Nandan Prasad was recovered from the bogey of a goods train and he identified Shiv Kumar Oraon (appellant) in the dock. 18. Upon careful appraisal of the entire materials as discussed above we share the view that generally it was not possible for the witnesses to remember the facial expressions of the accused after lapse of considerable time and therefore, early test identification parade of an accused is insisted. No law has been laid down to fix the time limit of Test Identification Parade. But it was held' by the Apex Court in "Anil Kumar VS. State of U.P. (supra)" that sometimes nature of crime creates a deep impression on the minds of witnesses who had an occasion to confront the culprits and circumstances of such confrontation bears lasting impressions which include the facial expression of the accused. We rely upon the testimonies of P.W. 1, P.W. 2 and P.W. 4 corroborated by the evidence of P.W. Shri Ram Jiyawan, Judicial Magistrate and C.W. 1 Dr. Dilip Kumar. All the three witnesses P.W..1, P.W. 2 and P.W. 4 are material in nature and we have no hesitation to observe that they carried the facial expression and impression of the appellant in their mind which enabled them to identify him for the charge under sections 364A/302/201 Indian Penal Code, he stood for, convicted and accordingly adequately sentenced which do not call for interference and therefore, this appeal is bound to fail. 19. In the result this appeal is dismissed and the judgment and order passed by the Addl. Sessions Judge (F.T.C), Latehar in Sessions Trial No. 41 of 2002 is upheld and maintained. D.P Singh, J.-I agree.