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2009 DIGILAW 524 (JHR)

Rameshwar Mandai v. State of Jharkhand

2009-04-09

AMARESHWAR SAHAY, R.R.PRASAD

body2009
JUDGMENT : Amareshwar Sahay, J.-The present appeal arises against the judgment dated 19.3.2004 passed by the Additional Sessions Judge F.T.C.-V, Deoghar in Sessions Trial No. 111 of 2002 whereby, the appellants have been convicted for committing the offence under Sections 148, 302/34, 307/34, 323/34 and 380/34 of the Indian Penal Code and Section 27 of the Arms Act as well as Section 3/4 of the Explosive Substances Act and they have been sentenced to undergo R.I. for life for the offence under Section 302/34 of the I.P.C., R.I. for ten years under Section 307/34 of the I.P.C. and a fine of Rs. 2,000/- each and in default in payment of fine, further R.I. for six months each, further R.I. for ten years each under Section 3/4 of the Explosive Substance Act and to pay a fine of Rs.1,000/- each in default of payment of fine further R.I. for a period of three months each, R.I. for a period of five years for the offence under Section 27 of the Arms Act. All the sentences have been ordered to run concurrently. However, no separate sentence has been awarded for the offence under Sections 332/34 and 380/34 and 148 of the Indian Penal Code. 2. The facts in brief leading to the present appeal are that a Fardbayan of Constable 112 of Jharkhand Armed Police-5 namely Md. Sweb was recorded by the Officer Incrarge of Madhupur Police Station on 7.6.2001 at Kusmaha Guard Room wherein he alleged that on 7.6.2001, between 18:00 Hrs. to 20:00 Hrs., Constable Md. Yunus was on Santry duty. At that time Hawaldar Ambika Singh was sitting on a chair in Verandah and one another Santry Guard was standing there. Constable Ashok Kumar was preparing 'Chapati' while Constable 145 was cooking vegetables. Constable Bijay Kumar Singh (deceased), Constable Mandeshwar Pandey, Hawaldar Jagdish Singh, Constable Gyani Saw were sitting on a 'Machaan'. At about 18:30 Hrs., 8 to 10 persons having 'Jhola' were seen coming on foot, followed by six persons corning on three bicycles and 5-6 persons were coming on foot. Those persons who came on foot, entered into the Guard Room and the persons who were on bicycles, started firing on the 'Machaan' from their Pistols. At about 18:30 Hrs., 8 to 10 persons having 'Jhola' were seen coming on foot, followed by six persons corning on three bicycles and 5-6 persons were coming on foot. Those persons who came on foot, entered into the Guard Room and the persons who were on bicycles, started firing on the 'Machaan' from their Pistols. Two Constables namely Bijay Kumar and Mandeshwar Pandey, who were sitting on the 'Machaan', rushed towards the Guard Room but in the meantime, two miscreants opened fire upon them, one of which hit Constable Bijay Kumar Singh on his head and he fell down in a ditch on the northern side whereas, Constable Mandeshwar Pandey sustained injuries on his shoulder from behind but he could manage to enter into the Guard Room. He alongwith Hawaldar Jagjit Singh and Constable Gyani Sah, rushed in another direction but the miscreants fired upon them also, due to which, Hawaldar Jagjit Singh received injuries on his thigh. The informant and the Constable Gyani Sah remained there. All the miscreants, thereafter, fled away in Southern direction. The informant thereafter came to the Guard Room, where he found Hawaldar Ambika Singh. Constable Ashok Singh, Constable Md. Yunus and Constable Mandeshwar Pandey to be in seriously injured conditions. Hawaldar Ambika Singh stated that the miscreants had entered into the Guard Room and in that course, he had scuffle with them. When one of the miscreants started assaulting Constable Ashok Singh then he hit that miscreant with the butt of his Carbine as a result of which, he fell down. One miscreant fired upon Constable Md. Yunus from his pistol. which did not hit him. In reply, Md. Yunus also opened fire. which hit one of the miscreants who fell down. The informant further alleged that he saw Constable Bijay Kumar Singh lying dead in a ditch, close to the Guard Room. Injured Jagjit Singh. Mandeshwar Pandey and Md. Yunus were sent to the Hospital. Subsequently it was found that firearms i.e. two S.L.Rs. alongwith 65 round of ammunitions, three magazines and 10 cartridges were missing. The informant claimed that since they had seen the miscreants in the day light and therefore they can identify them. He also alleged that one of the miscreants exploded bombs also on the Western wall of the Guard Room. The miscreants fled away leaving three bicycles four umbrellas. alongwith 65 round of ammunitions, three magazines and 10 cartridges were missing. The informant claimed that since they had seen the miscreants in the day light and therefore they can identify them. He also alleged that one of the miscreants exploded bombs also on the Western wall of the Guard Room. The miscreants fled away leaving three bicycles four umbrellas. one knife three bags containing clothes, pistols and cartridges etc. at the spot. 3. The Police took up the investigation and on its completion submitted charge-sheet against the present three appellants and kept the investigation pending against the remaining accused persons. The case was thereafter committed to the Court of Sessions where charges were framed to which the appellants pleaded not guilty and thereafter, they were put on trial. 4. In order 10 establish the charges, altogether 24 witnesses were examined on behalf of the prosecution and a number of documentary evidences were also adduced in evidence on behalf of the prosecution. In the alleged occurrence two persons died. One was the Police Constable Bijay Kumar Singh and the other was one of the miscreants. 5. In course of investigation and during trial, the appellants were identified in Test Identification Parade (hereinafter refer red to as 'TIP') as well as in the Court during trial by P.W.-11 Constable Ashok Singh and P.W.-13 Awadhesh Rai. 6. Learned Trial Court, on consideration of the evidence and materials on record, convicted and sentenced the appellants as already stated hereinabove. 7. Learned Senior Counsel Mrs. Anjana Prakash appearing for the appellant vehemently argued that the conviction of the appellants on the basis of identification by P. Ws. 11 and 13. is illegal. Challenging the sanctity of the Test Identification Parade, she submitted that the Test Identification Parade was conducted after an inordinate and unexplained delay of more than 11/2 months and the manner in which the Test Identification Parade was conducted, it creates doubt on its value and it lost its significance. It was submitted that the appellants were arrested on 10.6.2001 whereas, the T.I. Parade was held after 11/2 months from the said date. The requisition for holding T.I. Parade was made on 23.7.2001 without any explanation whatsoever as to why the requisition for holding T.I. Parade was made after such an inordinate delay and why the T.I. Parade was conducted after 11/2 months. The requisition for holding T.I. Parade was made on 23.7.2001 without any explanation whatsoever as to why the requisition for holding T.I. Parade was made after such an inordinate delay and why the T.I. Parade was conducted after 11/2 months. The delay in conducting the T.I. Parade exposed the appellants to be Identified by the probable witnesses in course of their appearance in Court for remand. It was further submitted that the identification of the appellants by P.Ws. 11 and 13 in Court also has got no evidentiary value since the identification witnesses were required to state in their evidence in Court about the role and actual part played by them in the alleged occurrence. But the aforesaid two identifying witnesses i.e. P.Ws. 11 and 13 have not stated a word about the role and actual part played by the appellants in course of the alleged occurrence and therefore their identification in Court has got no evidentiary value In the eyes of law and in this view of the matter, the conviction and sentence passed against the appellants is not sustainable. Consequently the same is liable to be set aside. In support of her submission, she has relied on the decisions of ~ the Supreme Court in the case of Budhsen ' and Another vs. State of U.P. [ AIR 1970 SC 1321 ] and in the case of Sampat Tatyada Shinde Vs. State of Maharashtra [AIR 1974 SS 791]. 8. On the other hand learned Additional Public Prosecutor by supporting the impugned judgment of conviction and sentence passed by the Trial Court against the appellants. submitted that P.Ws. 11 and 13 were the most natural witnesses of the .occurrence, who have identified the appellants not only in the T.I. Parade but also in the Court. He further submitted that by overwhelming evidence brought on record, the prosecution has been able to establish the charges against the appellants beyond all shadow of reasonable doubts and therefore, this appeal is liable to be dismissed. 9. Keeping in mind the rival contentions of the parties, we have meticulously and carefully examined the evidence and materials on record. We find that it has come in evidence that the alleged occurrence took place in which the Constables and Hawaldars received severe injuries. 9. Keeping in mind the rival contentions of the parties, we have meticulously and carefully examined the evidence and materials on record. We find that it has come in evidence that the alleged occurrence took place in which the Constables and Hawaldars received severe injuries. The prosecution has been able to establish the fact that a group of 18-20 persons entered into the Police Pickets situated in Village-Kusmaha on 7th June. 2001 at 6:30 P.M., opened fire in the Guard Room and looted away S.L.A. Rifles. Thereafter, they entered into the Guard Room where scuffle took place with the constables posted there. There was firing from both the sides leading to the injuries to the Police personnel and in that Course, Constable Bijay Kumar Singh, from the side of the Police, was killed and from the side of the extremists also, one person was killed. 10. So far the participation of the present appellants In the said occurrence is concerned, the evidence of P.W.11 namely Ashok Kumar Singh and P.W. 13 Constable Awadhesh Rai are relevant in this regard since according to the prosecution case P.W. 11 is the Police Constable who was preparing 'Chapati' at the time of occurrence and P.W. 13 Awadhesh Rai was cooking vegetable at that time and these two witnesses have identified the appellants, both in T.I. Parade and also in the dock in course of trial. 11. P.W. 11 Ashok Kumar Singh, in his evidence has given vivid descriptions in detail about the manner of occurrence. He has stated that he entered into the Guard Room where one of the extremists scuffled with him and in that course, he was attacked by means of a knife due to which he received injuries on his head. One Sentry was given a Tangi blow on his head. He further stated that he shot fire from the rifle but th/3 extremists escaped. He further stated that he participated in the Test Identification Parade held at Deoghar in presence of a Magistrate where he identified all the three extremists present in the Court. From the evidence of this witness we do not find anything from which it can be said that his evidence is not trustworthy or reliable. He further stated that he participated in the Test Identification Parade held at Deoghar in presence of a Magistrate where he identified all the three extremists present in the Court. From the evidence of this witness we do not find anything from which it can be said that his evidence is not trustworthy or reliable. On the other hand, he is found to be most natural and truthful witness since he got enough opportunity and time to see the faces of the miscreants dunng the occurrence and therefore, he could identify them during the T.I. Parade and also in the dock. 12. P.W. 13 Constable Awadhesh Rai has also described the occurrence in details about the manner of occurrence and has stated in his evidence that he was cooking vegetable on the alleged date and time of occurrence. From his evidence, we find that he has stated that the extremists were trying to kill by opening fire on the Police personnel who were sitting on the 'Machaan'. He further stated that after a bomb was exploded by the extremists, he jumped into a ditch close to the well. One of the extremists having a basket, attacked with a bomb on him and thereafter he rushed towards the School and hide himself. He also stated that he took part in the T.I. Parade conducted in the presence of the Magistrate and he could identify one of the extremists Sita Ram Mandai (appellant no. 2) in the said T.I. Parade. He also identified the said extremist Sita Ram Mandai in the dock in course of trial. 13. In an occurrence like the present one where a police picket was being attacked by a number of miscreants and exchange of fire from both sides was going on and some miscreants were attacking the police party with Tangi, Chura and other weapons than in such a situation, it would be too much to expect from the identifying witnesses to remember and narrate in detail about the specific role and part played by each miscreants in the time of occurrence. It may not be humanly possible to remember the entire sequence, manner of occurrence and particular details of the role played by the miscreants who took active part in the occurrence. It may not be humanly possible to remember the entire sequence, manner of occurrence and particular details of the role played by the miscreants who took active part in the occurrence. In such a melee like the present one, one may possibly remember the face of the miscreants who took active part in actual assault but may not fully remember that a particular accused assaulted by means of a particular weapon to a particular person. The oral evidence of eye witnesses of such an occurrence has to be judged in a practical manner keeping in mind relevant factors like the time elapsed since the date of occurrence the state of mind of the witnesses at the time of occurrence, the situation in which the occurrence has taken place, etc. 14. Now coming to the question raised on behalf of the appellant about the delay in conducting the T.I. Parade. There is no doubt that the T.I. Parade was conducted after 11/2 months but from the evidence of P.W. 11, the identifying witness itself it appears that In course of the occurrence, he sustained Injuries on his head and he was also hospitalized for treatment. 15. From the evidence we find that two of the identifying witnesses were seriously injured in the occurrence and they were treated in the Hospital at Giridih and Dhanbad and after they recovered and Joined their duties then the T.I. Parade could be held. Therefore there was no delay in holding the T.I. Parade and the delay, if any has properly explained. 16. Now let us examine the decisions relied on by the learned counsel for the appellants. In the case of Budhsen and Another Vs. State of U.P. ( AIR 1970 SC 1321 ], in para-7 of the judgment, it has been held that as a general rule, the substantial evidence of a witness is the statement made in Court. The evidence of mere Identification of the accused persons at the Trial for the first time is from its very nature Inherently of a weak character. The evidence In order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the pan which the accused played in the crime in question with reasonable particularity. The evidence In order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the pan which the accused played in the crime in question with reasonable particularity. The parties of a prior test identification therefore seems be to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of the witness in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding. There may, however, be exceptions to this general rule, when, for example the Court is impressed by a particular witness on whose testimony it may safely rely without such other corroboration. In the present case, the identification of the appellants in Court by P.Ws. 11 and 13, which is substantial evidence, has been corroborated by the T.I. Parade wherein also, those two identifying witnesses i.e. P.Ws. 11 and 13 had identified these appellants. 17. The other decision cited by the learned counsel for the appellants in the case reported in AIR 1981 SC 1392 (Wakil Singh and Others Vs. State of Bihar). In that case, the Supreme Court was dealing with the judgment of the High Court wherein the High Court had reversed the judgment of the Trial Court acquitting the appellant and thereafter, convicted them for the offence under Section 396 of the Indian Penal Code and sentenced him to imprisonment for life. From the facts of the said case we find that in that case, the identifying witnesses identified the accused on the basis of small pox mark and cut mark on the cheek and no precaution was taken to conceal those clearly visible marks from the face of the accused persons and therefore in such situation, the Supreme Court did not find the identification of the accused persons to be sufficient for conviction for the offence. In the present case no such irregularity of any kind was made in holding the T.I. Parade rather on the other hand we find that the evidence of P. Ws. 11 and 13 to be wholly trustworthy and there is no reason as to why they would falsely implicate the appellants. In the present case no such irregularity of any kind was made in holding the T.I. Parade rather on the other hand we find that the evidence of P. Ws. 11 and 13 to be wholly trustworthy and there is no reason as to why they would falsely implicate the appellants. Therefore, in our view, the abovementioned two decisions cited by the appellants are of no help to the appellants. 18. In view of the discussions and findings above we hold that the learned Trial Court has not committed any error in holding all the appellants guilty and thereby convicting and sentencing them for committing the offence under Sections 148, 302/34, 307/34, 323/34 and 380/34 of the Indian Penal Code and Section 27 of the Arms Act as well as Section 3/4 of the Explosive Substances Act. Consequently we find no merit in this appeal. Accordingly, the same is dismissed. R.R. Prasad, J.-I agree.