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2009 DIGILAW 1531 (RAJ)

Dadua @ Pooran @ Mawasi v. State of Rajasthan

2009-07-03

MAHESH BHAGWATI

body2009
Hon'ble BHAGWATI, J.—Challenge in this appeal is to the judgment and order dated 30th November, 1985 rendered by Additional Sessions Judge No. 1. Bharatpur whereby the accused appellants namely Dadua, Tejpal and Chandra Pal have been convicted in the offence under Section 395 of IPC and sentenced to five years Rigorous Imprisonment and a fine of Rs. 200/-; in default of payment of fine to further suffer three months simple Imprisonment. 2. The facts necessary for the disposal of this appeal succinctly stated are as under:- That in the intervening night of 28th and 29th August, 1978 at about 11 or 12, five or six miscreants armed with deadly weapons viz. country-made pistol, clubs etc. country-made pistol, clubs etc. entered in the Mohallah of Jatavs situated in Village Jaya and robbed the ladies who were wearing silver and golden ornaments. It is alleged that these miscreants overawed the ladies, gave them beating, opened fire by Deshi-Katta and removed Kadulas and other ornaments from their body. When the resistance was shown, the miscreants assaulted upon Rupan Devi, Roop Singh, Faguniram, Sohan Dei, Pooran, Bhagwat, Shivdi and Hari Singh causing injuries on their person. Two or three persons sustained pallet injuries also. PW.4 Chetram gave a written report of this incident to SHO Police Station Kumher who lodged the FIR Ex. P/19 and commenced investigation. 3. During the investigation, Police prepared the site plan Ex. P/1, recovered three empty cartridges from the spot vide memo Ex. P/2, recorded the statement of the witnesses acquainted with the facts and circumstances of the case under Section 161of Cr.P.C., got the injured namely Rupan Devi, Roop Singh, Faguniram, Sohan Dei, Pooran, Bhagwat, Shivdi and Hari Singh medically examined, obtained the list Ex. P/13 relating to the stolen ornaments and articles, arrested the accused Dadua on 18th September, 1978 vide arrest memo Ex. P/15, accused Tejpal on 3rd October, 1978 vide arrest memo Ex. P. 20 and Chandrapal on 25th January, 1981 vide arrest Memo Ex. P/17 and got their test identification parade conducted in Central Jail Sevar, District Bharatpur where the witnesses rightly identified these dacoits. After usual investigation, the police filed the charge-sheet against the accused persons namely Dadua, Tejpal and Chandra Pal in the offences under Sections 395, 458 and 380 of IPC. 4. P/17 and got their test identification parade conducted in Central Jail Sevar, District Bharatpur where the witnesses rightly identified these dacoits. After usual investigation, the police filed the charge-sheet against the accused persons namely Dadua, Tejpal and Chandra Pal in the offences under Sections 395, 458 and 380 of IPC. 4. All the three accused persons were indicted for the offences under Sections 395 and 397 of IPC who denied guilt and claimed to be tried. In order to further it version, the prosecution examined in all 12 witnesses. In their statements under Section 313 of Cr.P.C. the appellants claimed their innocence and pleaded that they were not kept Baparda after their arrest and shown to the witnesses before the identification parade and thus they had been falsely implicated in this case. On compensation of trial the appellants were convicted and sentenced as indicated hereinabove. 5. Heard the learned counsel for the appellants as also the learned Public Prosecutor appearing for the State and carefully perused the relevant material on record. 6. The learned counsel for the appellants has assailed their conviction in the offence under Section 395 of IPC on the following grounds:- (i) That no recovery of stolen articles has been effected from any of the appellants. (ii) The only incriminating evidence against the appellants is that of identification in test identification parade by the witnesses. (iii) The fact of there being light during dacoity finds no place in the FIR Ex. P/19. (iv) It is for the first time before the Court that the witnesses claimed having seen the miscreants in the torch light being handled by them. The details of the miscreants was neither given in the FIR nor in the statements of the witnesses recorded under Section 161 of Cr.P.C. This lapse makes the evidence of identification frail and untrustworthy. (v) That the evidence of identification is of no avail in as much as the appellants Dadua, Tejpal belonged to the same village Panchayat where the alleged incident took place. Witness PW/1 Rupan Devi admitted in their statement that she knew Dadua from before. (vi) These serious aspects were not taken note of by the learned Additional Sessions Judge while appreciating the evidence. (vii) The statements of the witnesses are not trustworthy and there being no evidence on record the appellants deserve to be acquitted. 7. Witness PW/1 Rupan Devi admitted in their statement that she knew Dadua from before. (vi) These serious aspects were not taken note of by the learned Additional Sessions Judge while appreciating the evidence. (vii) The statements of the witnesses are not trustworthy and there being no evidence on record the appellants deserve to be acquitted. 7. The learned Public Prosecutor appearing for the State in contra has canvassed that the learned Additional Sessions Judge has rightly appreciated the evidence of the prosecution witnesses and the finding of conviction is well in tune with the evidence emerging against the appellants on record. The impugned judgment is just and cogent and suffers from no infirmity. The defence of the appellants that they were shown to the witnesses and not kept Baparda before conducting their identification parade is devoid of substance as no defence evidence has been adduced to substantiate the same. Hence, the impugned judgment calls for no interference and the conviction of the appellants needs to be maintained. 8. Having reflected over the submissions made at the bar and carefully scanned the prosecution evidence, it is noticed that the prosecution case solely rests on the evidence of identification of the appellants made by the witnesses. In dacoity cases, the evidence generally available, is of three kinds, viz. (i) culprits may be caught red-handed on the spot, but this is rare because the culprits are fully armed and well prepared whereas the victims are fear stricken and are more interested in saving their skin rather then in combating with the miscreants; (ii) identification of the culprits when they are later arrested during the investigation; and (iii) discovery of the incriminating facts such as looted property, weapons used in the commission of offence, and the like objects. In a particular case, the incriminating evidence against the accused may consist of all or any of the said categories. The prosecution is required to establish that a dacoity, as defined in Section 391, was committed and that it was committed by the accused persons. The prosecution is also required to prove inter-alia that the accused persons were identified to be the dacoits who had committed the dacoity. 9. In the case on hand, no recovery of stolen or looted property has been effected from any of the appellants. The prosecution is also required to prove inter-alia that the accused persons were identified to be the dacoits who had committed the dacoity. 9. In the case on hand, no recovery of stolen or looted property has been effected from any of the appellants. The only evidence of incriminating nature in the instant case is that of their identification in test identification parade and identification in the Court by the witnesses. So far as the number of miscreants is concerned, PW/1 Rupan Devi, PW/2 Hari Singh, PW/3 Faguni, PW/4 Chetram, PW/5 Smt. Bhonti and PW/6 Roop Singh deposed before the Court that the miscreants were 6 or 7 to 8 in number and they all were armed with Katta, Gun (Banduk) and Clubs. All these witnesses also deposed before the Court that the accused persons removed their ornaments which they were wearing on their body. PW.1 Rupan Devi stated that the dacoits took off Santh made of silver, golden Hasli and cloths. Similarly Hari Singh deposed that the dacoits gave beating to Bhatto and Shivli and took off their Khadua (ornaments) thereafter the dacoits came to his house and assaulted upon his wife and his elder brother's wife who were sleeping in the house. The dacoits snatched their ornaments and looted cash and other articles lying in a shop. The appellants also committed dacoity in the house of Narayan Singh and Bhonta. They had fired 8 to 10 rounds. The police recovered and seized the empty cartridges from the spot also. Likewise PW.3 Faguni, PW.4 Chetram, PW.5 Smt. Bhonti and PW.6 Roop Singh also supported the prosecution story and deposed that the miscreants, 7-8 in number came and looted them, took off their ornaments caused injuries and thereafter fled away. 10. All these witnesses have unanimously stated before the Court that the appellants were handling torch and they identified the dacoits in the torch light. The arguments of learned counsel for the appellants, that the fact of torch light was incorporated for the first time in the statements of the witnesses recorded by the Court, does not carry any force, as all the prosecution eye-witnesses were subjected to lengthy cross examination and their statements with regard to identifying the appellants in torch light remained unshaken and un-shattered. It has emerged no where in the statements of the witnesses that it was a dark night and the faces of the dacoits were not visible. However, the fact of there being night cannot be ignored. It is revealed from the statements of the witnesses that the appellant Dadua was arrested on 18th September, 1978 vide arrest memo Ex. P./15, Tejpal came to be arrested on 3rd October, 1978 vide arrest memo Ex. P/20 and Chandrapal was arrested after approximately two and half years of the incident on 24th January, 1981 vide memo Ex. P/17, as he had already been in incarceration in a theft case. The case was investigated initially by PW.9 Genda Singh the then SHO Police station, Kumher and after his transfer, PW.11 Kaushal Kishore conducted the investigation and after completion of investigation put the appellants to trial before the Court. It is interesting to note that the identification parade is found to have been held soon after the arrest of the accused appellants in this case, Dadua was arrested on 18th September, 1978 whereas, the identification parade was held on 21st September, 1978. The report of which is Ex. P/11. Similarly, the appellant Tej Pal came to be arrested on 3rd October, 1978 vide arrest memo Ex. P/20 and the identification parade and his test identification parade was held on 6th October, 1978, the report of which is Ex. P/14.Of course, the appellant Chandra Pal was arrested on 25th January, 1981 vide arrest memo Ex. P/17. His identification parade was held after 11 days of his arrest on 6th February, 1981. Delay in holding the identification parade of appellant Chandra Pal has been explained by the Investigating Officer PW.9 Genda Singh in his statement. He deposed that the appellant Chandra Pal was already under arrest in a theft case of police station Sewar. He arrested him on 25th January, 1981 and kept him Baparda and put him in jail as Baparda only. He submitted an application before the Judicial Magistrate, No. 2, Bharatpur on 27th January, 1981 for holding the test of identification parade of accused Chandra Pal. Three days one after another, were fixed for identification parade i.e. on 31st January, 1981, 2nd February, 1981, 3rd February, 1981 but the witnesses did not turn up on any these dates and as such the test identification parade could not be held. Three days one after another, were fixed for identification parade i.e. on 31st January, 1981, 2nd February, 1981, 3rd February, 1981 but the witnesses did not turn up on any these dates and as such the test identification parade could not be held. Thereafter, the Test Identification parade was held on 6th February, 1981 and the witnesses Hari Singh and Chet Ram rightly identified him. Thus, no delay is found to have been caused by police in executing the test identification parade of the appellants by the witnesses. 11. As regards the identification of the accused persons, the question depends upon whether the story put forward by the prosecution is credible and is supported by credible evidence. For this purpose, the Court must compare the statements of the witnesses in court with their statements made to the police. In a case of dacoity, a question of identification is primary matter for consideration. Although, a hard and fast rule cannot be laid down as to under what circumstances the identification of the accused cannot be accepted. It will depend on the facts of each case. The learned counsel for the appellants has canvassed that the identification parade of the appellant Chandra Pal has been held by the police after two and half years of the occurrence. Hence, after a long travel of two and half years it was not possible for the witnesses to memorize the faces of the dacoits and identified them. Albeit, the argument of the learned counsel has force if this test is applied in ordinary circumstances but there may be cases when the people memorize some incident for a long time and they can identify the persons whose faces are imprinted in their mind. Even after an interval of 2-3 years in the case on hand, all the witnesses who identified the appellant in jail, are such, who were subjected to cruelty by the appellants, who were overawed by the fear of guns and pistols and whose ornaments were removed forcibly from their body by the appellants. Hence to lay down a hard and fast rule with regard to a period of time which may lapse between the commission of a crime and the identification of the culprits would be to impose an arbitrary rule which neither innocence nor the statement of law of the evidence can or would justify. Hence to lay down a hard and fast rule with regard to a period of time which may lapse between the commission of a crime and the identification of the culprits would be to impose an arbitrary rule which neither innocence nor the statement of law of the evidence can or would justify. If there were such a rule, it would be the earliest thing for a culprit to avoid his arrest for a certain period of time and then turn up with confidence that he can go with immunity because of the lapse of requisite period of time. Except the test identification parade of appellant Chandra Pal, no delay has been caused in holding the test identification parade of appellants Dadua and Tej Pal. 12. PW.7 Himmat Singh the then Judicial Magistrate No. 2, Bharatpur deposed that the identification parade of Tej Pal was held in his presence and the witnesses Bhagwat, Hari Singh, Roop Singh and Bhonti identified them correctly. Similarly, PW12 Mohammad Anwar Alam deposed that the identification parade of appellant Chandra Pal was held on 6th February, 1981 in his presence and the witnesses Hari Singh and Chet Ram rightly identified him. There is no reason, why the evidence of these witnesses, who identified the appellants, should be disbelieved. The appellants have come out only with this defence that they were not kept Baparda after their arrest and shown to the witnesses by police before holding the test identification parade. But this defence has not been substantiated by any evidence whatsoever and the same is found to be perfunctory. The witnesses did not know the appellants from before nor the witnesses and the appellants belonged to one village and nor they knew each other in one or the other way from earlier. No animus of the witnesses is found to have been against the appellants. Hence, I do not find any ground to discard and disbelieve the testimony of prosecution witnesses P/W 1 Rupan Devi, PW.2 Hari Singh, PW.3 Faguni, PW.4 Chetram, PW/5 Smt. Bhonti and PW/6 Roop Singh. 13. The prosecution has fairly proved that the miscreants who committed dacoity in village Jaya were 6 or 7 to 8 in number and they not only caused injuries but looted their ornaments, cloths and other articles and thus committed dacoity. 13. The prosecution has fairly proved that the miscreants who committed dacoity in village Jaya were 6 or 7 to 8 in number and they not only caused injuries but looted their ornaments, cloths and other articles and thus committed dacoity. The evidence of the prosecution witnesses is found to be candid and clinching, true and trustworthy and above reproach. We do not find any reason to petition their testimony. Albeit, no recovery of the articles has been effected from the possession of any of the appellants yet the evidence of identification of the appellants is of identification of the appellants is so weighty and trustworthy that merely on this evidence the conviction of the appellants can safely be based. 14. In the ultimate analysis, the prosecution is found to have succeeded in establishing the guilt against the accused appellants. The credibility of the prosecution witnesses has remained un-assailed, un-impeached and there is no reason to disbelieve their testimony. The learned trial Court has critically analysed and properly appreciated the evidence of the prosecution witnesses at length. The impugned judgment is found to be just and cogent which suffers from no infirmity and I find myself in unison with the finding of conviction of the appellants arrived at by the learned trial Court and thus the impugned judgment call for no interference. 15. For these reasons the criminal appeals fails and stands dismissed. 16. The conviction of the appellants in the offence under Section 395 of IPC and sentences awarded to them vide impugned judgment dated 30.11.1985 passed by the learned trial Judge are maintained.