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2008 DIGILAW 476 (MP)

NATHU v. STATE OF MP

2008-03-27

S.L.KOCHAR

body2008
Judgment S.L.Kochar, J. ( 1. ) The appellant has preferred this appeal against his conviction under section 307 of the Indian Penal Code and sentence of R.I. for five years and fine of Rs.2,000/-, in default of payment of fine to suffer additional R.I. for six months, passed by the learned Fourth Addl. Sessions Judge, Dhar in ST. No. 43/2004 by judgment dated 23.02.2008. ( 2. ) Briefly stated, the prosecution case as unfolded before the trial Court is that the complainant Mahesh (PW-2) had gone to his field situated in village Dol on 220.09.03 in the morning at 9.00 AM. Near the field of Mahesh some sheep were grazing. He told the owner of the sheep that he was also having sheep and he should take away his sheep . On this score, there was exchange of abuse between the appellant and the complainant Mahesh. The masters of the sheep were staying by the side of canal of Karan river, from where a man came there and fired a gun which hit below the right shoulder of the complainant and three pallets pierced. The incident was witnessed by Parmanand PW-4, Suresh (PW-3) and Mukesh PW-5). According to the prosecution story, the person who fired was wearing white Dhoti and Bandi. He was having fair complexion, stout and five and a half feet in height. The complainant went along with Hirdaram and Mukesh and lodged the report Ex.P/3-A of the incident on 20.09.003 at 2.30 PM. The distance of police station from the place of occurrence was 8 K.Ms. In the First Information Report the complainant also mentioned that he could be in a position to identify the accused. The complainant and other witnesses reached in the village and disclosed about the incident to Hirdsaram and Mahesh son of Hukumchand. The First In formation re;port was recorded by ASI Choudhary. Along with the appellant, Dhannabhai was also arrested. Injured Mahesh was sent for medical examination who was examined by PW-1 Dr Surekha Jain. His MLC report is Ex.P/1-A. Spot map Ex.P/8 was prepared by the Investigating Officer. After arrest of the accused persons, from the possession of appellant, one twelve bore gun and three used and one live cartridges together with licence were seized through seizure memo Ex.P/7. The seized artricles were sent for examination to the Forensic Science Laboratory, Sagar. His MLC report is Ex.P/1-A. Spot map Ex.P/8 was prepared by the Investigating Officer. After arrest of the accused persons, from the possession of appellant, one twelve bore gun and three used and one live cartridges together with licence were seized through seizure memo Ex.P/7. The seized artricles were sent for examination to the Forensic Science Laboratory, Sagar. After due investigation, accused persons were charge-sheeted for commission of offence punishable under section 307 of the Indian Penal Code and 25/27 of the Arms Act. ( 3. ) Accused persons denied the charges and pleaded innocence. According to them they were falsely implicated. In defence, they did not examine any witness.. Learned trial Court, after recording the statements of the prosecution witnesses and hearing both the parties, while acquitting co-accused Dhannabhai, convicted and sentenced the appellant as indicated herein-above. ( 4. ) Having heard learned counsel for the parties and after perusing the entire record carefully, this Court finds that the conviction of the appellant is not sustainable. ( 5. ) It is undisputed that the injured Mahesh as well as eye witnesses PW-4 Parmanand, PW-3 Suresh and PW-5 Mukesh were not knowing the appellant from before the date of incident and they had seen the appellant for the first time on the date of incident, but no Test Identification Parade was held by the Investigating Agency during the course of investigation. PW-2 victim Mahesh at the first instance in examination-in-chief has stated that he was not knowing the appellant and thereafter again stated that he was.knowing the appellant. In cross-examination para 12, he stated that he did not disclose before the Police in the :Police Station that he was not knowing the accused persons. In para 13, he has stated that on the date of incident, it was raining for the whole day and four to five persons were grazing their sheep. In para 15 he has specifically stated that he was not knowing the appellant and the appellant was shown to him by the police in the Police Station. Thereafter, he saw the appellant in Court. In para 15 he has specifically stated that he was not knowing the appellant and the appellant was shown to him by the police in the Police Station. Thereafter, he saw the appellant in Court. In para 16, he stated that he mentioned in his report as well as in the statement that the appellant was having black complexion and five and a half feet tall whereas in the First Information Report it is mentioned that the miscreant was having fair complexion and his height was about five and a half feet. The appellant is six feet in height and dark in complexion. In para 17, he has stated that after sustaining gun snot injury, he fell down in the mud, but his clothes did not smear with mud and accused shot only one fire. According to this witness all the three eye witnesses were standing at a distance of 200 feet. ( 6. ) On visualization of the statement of the complainant/injured PW-2 Mahesh, this Court is of the view that dock identification of the appellant in the facts and circumstances of the present case is not sufficient to establish identity of the appellant especially when the appellant was not known to the witness from before the incident and appellant was shown to all the eye witnesses and complainant in the Police Station. When the accused is unknown, it is obligatory on the part of the police to hold Test Identification Parade during the course -of investigation to establish the identity. The Supreme Court, in the case of Hasib V/s State of Bihar ( AIR 1972 SC 283 ), in such situation, observed as under:- "As observed by this Court in Vaikuntam Chandrappa -V State of Andhra Pradesh, AIR 1960 SC 1340 the substantive evidence is the Statement of a witness in Court and the purpose of test identification is to test that evidence, the safe rule being that the sworn testimony of the witness in Court as to the identity of the accused who is a stranger to him, as a general rule, requires corroboration in the form of an earlier identification proceeding. If there is no substantive evidence about the appellant having been one of the dacoits when PW-10 saw them on January, 28,1963 then the T.I. Parade as against him cannot be of any assistance to the prosecution. If there is no substantive evidence about the appellant having been one of the dacoits when PW-10 saw them on January, 28,1963 then the T.I. Parade as against him cannot be of any assistance to the prosecution. But otherwise too the identification proceedings in the present case do not inspire confidence. It appears that several test identifications parades were held for identifying the accused persons. So far as the present appellant is concerned PW-10 appears to have identified him on February 14, 1963 though the appellant had been arrested as early as January, 1963 at about 4. IS a.m. Now identification parades are ordinarily held at the instance of the Investigating Officer for the purpose of enabling the witnesses to identify either the properties which are the subject-Matter of alleged offence or the persons who are alleged to have been concerned in the offence. Such tests or parades belong to the investigation stage and they serve to provide the investigating authority with material to assure themselves if the investigation is proceeding on right lines. It is accordingly desirable that such test parades are held at the earliest possible opportunity. Early opportunity to identify also tends to minimise the chances of the memory of the identifying witnesses fading away by reason of long lapse of time. But much more vital factor in determining the value of such identification parades is the effectiveness of the precautions taken by those responsible for holding them against the identifying witnesses having an opportunity of seeing the persons to, be identified by them before they are paraded with other persons and also against the identifying witnesses being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned." In the case of Mohanlal V/s State of Maharashtra ( AIR 1982 SC 839 , paras 20 and 25 ) the Supreme Court ruled that :- "When the victim was not knowing the accused prior to occurrence and test identification parade was not held and accused was shown to victim by police before trial. Under these circumstances, identification of the accused in Court by the victim is valueless and cannot be relied upon." [Also see: VC.Shukla V/s Delbhi Administration ( AIR 1980 SC 1382 )]. ( 7. Under these circumstances, identification of the accused in Court by the victim is valueless and cannot be relied upon." [Also see: VC.Shukla V/s Delbhi Administration ( AIR 1980 SC 1382 )]. ( 7. ) PW-2 Mahesh has also stated in para 19 that he came to the Court,two or three times for giving statement and the Court Mohorrir had tutored him and also asked him to give the statement as tutored. In view of this positive admission with regard to tutoring , it would be hazardous to place reliance on the testimony of this witness. (See: Ramvilas and others V/s State ofM.P. ( 1984 JLJ Page 521 para 15) and Nagendrasingh and others V/s State ofM.P. (1991(1) JLJ 232, para 10). Learned trial Court did not give importance to the admission of this witness regarding tutoring on the ground that after admission this witness has stated that he had not given statement on the basis of tutoring. In the considered opinion of this Court when tutoring or reading over the police statement is admitted by the witness then in the case, his denial of giving statement on the basis of tutoring, is of no consequence. ( 8. ) The eye witnesses PW-3 Suresh, Parmanand (PW-4) and Mukesh (PW-5) have also specifically admitted that they were not knowing the appellant ;prior to the date of incident and the appellant was shown to them in the Police Station on the basis of which they identified the appellant in the Court. It is also worth mentioning here that according to witness Mahesh, all these three eye witnesses were standing at the distance of 200 feet and the rains had continued. Therefore, in the view of this Court, it could be difficult for these witnesses to have identified the assailant when he was fleeing away. In para 13, PW-5 Mukesh has also stated that when fire was done, the back portion of Mahesh was facing towards the person firing the gun and they had seen from a quite long distance. ( 9. ) Learned trial Court has failed to give importance to the positive admission of the victim as well as all the three eye witnesses regarding not knowing the appellant by name and face from before the date of incident and the appellant was shown to them in the Police Station. ( 9. ) Learned trial Court has failed to give importance to the positive admission of the victim as well as all the three eye witnesses regarding not knowing the appellant by name and face from before the date of incident and the appellant was shown to them in the Police Station. Learned trial Court considered the statement of PW-7 Investigating Officer Basant Naik that the accused persons were arrested in presence of the complainant and the witnesses, because of which, Test Identification Parade was hot held. This statement of the Investigating Officer is not corroborated by all the eye witnesses. They have no-where stated that the accused persons were arrested by the police in their presence, but they have specifically stated that the police had shown the accused persons in the Police Station. (See: para 15,16, 14 and 14 of the statements of PW-2 Mahesh, PW-3 Suresh, PW-4 Parmanand and PW-5 Mukesh respectively ). ( 10. ) PW-8 Constable Budhnath has proved the First Information Report Ex. P/3-A, because its scribe AS I Choudhary could not come to Court, because of sickness. This witness in para 6 stated voluntarily that the First Information Report was recorded in the morning at 9.00 AM which is just contrary to the statement of PW-2 Mahesh as well as the First Information Report Ex.P/3-A wherein time of lodging and recording of the FIR is mentioned as 2.30 PM. PW-2 Mahesh stated that he went to the Police Station on motor cycle and also stated going to P. S. on foot. Looking to all these contradictory statement of the complainant with regard to lodging of the First Information Report and time of recording thereof as stated by Constable PW-8 Budhnath, it appears that there was concoction of time of recording of the First Information Report. ( 11. ) Ex-consequenti, for the foregoing discussion, this Court is of the view that the prosecution has miserably failed to establish its case against the appellant beyond all reasonable doubt. Therefore, this appeal deserves to be and is hereby allowed. The conviction and sentence of the appellant are set aside. The learned trial Court is directed to set the appellant at liberty forthwith, if not required in any other criminal case. Registry is directed to send a copy of this judgment to the trial Court along with its record for immediate compliance. Appeal allowed.