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2010 DIGILAW 249 (CHH)

Sanjay v. State of M. P. Now C. G.

2010-10-19

SUNIL KUMAR SINHA

body2010
JUDGMENT Sunil Kumar Sinha, J. 1. These appeals are filed against the judgment dated 3.1.91 passed in Sessions Trial No. 16/89 by the Additional Sessions Judge, Manendragarh. 2. By the impugned judgment, the Appellants have been convicted Under Sections 450 & 395/397 IPC and sentenced to undergo R.I. for 7-7 years with a direction to run the sentences concurrently. 3. The facts, briefly stated, are as under: Complainant -Gopal Sharan Singh (PW-5) was working as Senior Personal Officer in West Jhagrakhand Colliery. On 30.7.88 at about 8.00 p.m., he was present in his house along with his wife, two children and tutor of his children. Six-seven persons, who had covered their faces, entered into his house and committed dacoity on the point of pistol/deshi katta. They snatched a golden ring from the wife of the complainant namely Mridula Singh. They also snatched the wrist watch from the tutor namely Arun Kumar. Apart from the above, the assailants also took away one golden chain of 3 tolas, one golden coin, one golden ginny of one tola, one golden piece of rod of 1 tola, one silver kamardhani of 1 Kg, silver payals of 10 tolas and some old coins. The assailants had assaulted the complainant. Gopal Sharan Singh (PW-5) lodged the First Information Report (Ex.-P/16) in the concerned police station. He also submitted a list of articles (Ex.-P/l 6-A) to the police. During the course of investigation, the accused persons were taken into custody. On the discovery statements recorded Under Section 27 of the Evidence Act, one deshi-katta & cartridge were seized at the instance of Appellant- Desharaj. Knife was seized at the instance of Appellant-Ghanaram. Another knife and a silverpayal were seized at the instance of Appellant-Virendra Prasad. On 22.8.88 the Appellants were put to identification in test identification parade (T.I.P.) conducted in sub-jail Baikunthpur, in which, Appellants- Desharaj, Virendra Prasad, Ghanaram and Sanjay were identified. Appellant-Ashok Kumar was arrested on 21.9.88. He was put for identification in sub-jaii, Baikuthpur on 2.11.88. He was also identified by complainant- Gopal Sharan Singh in the T.I.P. dated 2.11.88. The T.I. Ps. were conducted by Executive Magistrate- Mr. Alfazuddin. Memos relating to proceedings of T.I. Ps. are Ex.-P/l 7, P/l 8, P/l 9, P/20 & P/21. The payal seized from the possession of Appellant-Virendra Prasad was also put for identification but it was not identified by the complainant or his family members. The T.I. Ps. were conducted by Executive Magistrate- Mr. Alfazuddin. Memos relating to proceedings of T.I. Ps. are Ex.-P/l 7, P/l 8, P/l 9, P/20 & P/21. The payal seized from the possession of Appellant-Virendra Prasad was also put for identification but it was not identified by the complainant or his family members. After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate First Class, Manendragarh, who in turn committed the matter to the Sessions Court, Ambikapur, from where, it was received on transfer by the Additional Sessions Judge, Manendragarh, who conducted the trial and convicted and sentenced the Appellants as aforementioned. 4. None of the Appellants were named in the F.I.R. (Ex.-P/l 6). There was no evidence of seizure of any property of dacoity from the possessions of the Appellants. The payal, allegedly seized from the possession of Appellant- Virendra Prasad was not identified by the complainant to be belonging to them. The learned Sessions Judge also did not rely on the evidence of seizure of katta and knifes on the discovery statements made by the Appellants after due appreciation of evidence of Nankuram (PW-2) and Sub-Inspector A.N. Shukla (PW-6). The learned Sessions Judge further held that the Appellants cannot be connected with crime in question on account of seizure of their cloths and the entire evidence with reference to the above circumstances were disbelieved. The Appellants were not identified by complainant- Gopal Sharan Singh (PW-5) during his examination in the Sessions Trial. Even after that the learned Sessions Judge convicted the Appellants on the evidence of their identification by the complainant in their respective T.I. Ps. conducted during the course of investigation. 5. After the appeals were filed in the High Court of Madhya Pradesh, Jabalpur, records of the Sessions Trial No. 16/89 of the Court of A.S.J., Manendragarh were requisitioned in Criminal Appeal No. 28/91. The records of the sessions trial were received in the High Court of Madhya Pradesh in the said criminal appeal. Then 'A Part of the record was sent to the District Magistrate Surguja, Ambikapur on 21.5.91 and thereafter the 'A' Part of the record was not received back either by the High Court of Madhya Pradesh or by the High Court of Chhattisgarh after the transfer of the appeals from the High Court of Madhya Pradesh. Then 'A Part of the record was sent to the District Magistrate Surguja, Ambikapur on 21.5.91 and thereafter the 'A' Part of the record was not received back either by the High Court of Madhya Pradesh or by the High Court of Chhattisgarh after the transfer of the appeals from the High Court of Madhya Pradesh. Inspite of several efforts made in this regard when the 'A' Part of records of Sessions Trial No. 16/89 were not received, this Court on 2.8.2010 directed the Registrar Judicial to submit a report within two weeks. The Additional Registrar (Judicial) filed his report dated 27.8.2010 and submitted that the records were firstly sent by the record room of District & Session Judge, Ambikapur to the High Court of Madhya Pradesh vide Memo No. DB-31/91 dated 14.3.91. It was received by the High Court of Madhya Pradesh and it was again sent to the office of District Magistrate, Ambikapur but thereafter it has not been returned back to the Registry of this Court or High Court of Madhya Pradesh. This report is annexed in the records of criminal appeal No. 76/91. After going through the said report, on 30.09.2010 during the course of hearing of the appeals, Mr. U.N.S. Deo, learned Govt. Advocate prayed for a last opportunity to make efforts to get the records or to furnish the recent position. On the above submission made by learned Govt. Advocate, the hearing of the appeals was adjourned to 6th of October, 2010 and it was directed that on that date the correct position shall be furnished before this Court by the Govt. Advocate or by any responsible officer of the office of District Magistrate, Ambikapur after taking full instruction in this regard. When above efforts were being made, on 30.08.2010, learned Counsel for the Appellants was also directed to file three sets of paper books containing all the documents available with him. The paper books were filed on 13.9.2010 and were taken on record. 6. On 6.10.2010 the appeals were taken up for hearing and following orders were passed by this Court: Mr. Gurudev Sharan, Advocate for the Appellants. Mr. U.N.S. Deo Govt. Advocate and Mr. R. Tripathi, Panel Lawyer for the State. Mr. U.N.S. Deo, learned Govt. Advocate & Mr. The paper books were filed on 13.9.2010 and were taken on record. 6. On 6.10.2010 the appeals were taken up for hearing and following orders were passed by this Court: Mr. Gurudev Sharan, Advocate for the Appellants. Mr. U.N.S. Deo Govt. Advocate and Mr. R. Tripathi, Panel Lawyer for the State. Mr. U.N.S. Deo, learned Govt. Advocate & Mr. R. Tripathi, learned Panel Lawyer submit that inspite of best efforts made in the office of District Magistrate, Ambikapur, the records of Sessions Trial No. 16/89 could not be traced and a written submission supported by an affidavit of Additional District Magistrate, Surguja, Ambikapur (C.G.) has been filed making clear declaration that the said record is not available in the office of District Magistrate, Surguja, Ambikapur. A paper book in relation to these appeals have been filed by the counsel for the Appellants and a copy has been supplied to the State Counsel. Looking to the entire situation write from the year 1991 till today, both the counsel agree that these appeals may be heard and disposed of on the basis of copies of the records available in the paper book filed by learned Counsel for the Appellants and the counsel for the Appellants & the State counsel have no objection in disposal of these appeals on the basis of those records (available in the paper book). Since inspite of best efforts of all concerned, 'A' Part of the records of Sessions Trial No. 16/89 disposed of by the Additional Sessions Judge, Manendragarh, District Surguja (Now District Korea), C.G. is not traceable, therefore, in view of the submission made by learned Counsel for both the parties, it is directed that these appeals shall be disposed of on the records available in the paper book filed before this Court. Let the matters be listed for final hearing on 7.10.2010. 7. It is after all this, the matters were taken up for final hearing which conclude on 8.10.2010. 8. Mr. Gurudev I. Sharan, learned Counsel appearing on behalf of the Appellants, argued that the learned Sessions Judge erred in law in convicting the Appellants solely on the basis of their identification in their test identification parades (T.I.Ps.) held during the course of investigation, whereas the Appellants were not identified by the complainant or any other prosecution witness during the course of trial. His submission was that identification of the accused in T.I.P. is not a substantive evidence, therefore, the conviction cannot be based on such evidence. 9. On the other hand, Mr. U.N.S. Deo, learned Govt. Advocate & Mr. R. Tripathi, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 10. I have heard the learned Counsel for the parties at length and have also perused the records contained in the paper book. 11. In Sampat Tatyada Shinde v. State of Maharashtra AIR 1974 SC 791 the Supreme Court held that "The evidence of test identification is admissible under Section 9 of the Evidence Act; it is, at best, supporting evidence. It can be used only to corroborate the substantive evidence given by the witnesses in court regarding identification of the accused as the doer of the criminal act. The earlier identification made by the witnesses at the test identification parade, by itself, has no independent value. Nor is test identification the only type of evidence that can be tendered to confirm the evidence of a witness regarding identification of the accused, in court, as the perpetrator of the crime." 12. In George v. State of Kerala AIR 1998 SC 1376, the Supreme Court held that "The identification of an accused in Court is the substantive evidence of the person identifying and his earlier identification in a T.I. parade corroborates the same. In other words, want of evidence of earlier identification in a T.I. parade does not affect the admissibility of the evidence of identification in Court." 13. In Daya Singh v. State of Haryana AIR 2001 SC 1188, the Supreme Court held that "The purpose of test identification is to have corroboration to the evidence of the eye-witnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the Court." 14. In Munshi Singh Gautam (Dead) and Ors. v. State of M.P. (2005) 9 SCC 631, the Supreme Court held in Para-17 that "It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. v. State of M.P. (2005) 9 SCC 631, the Supreme Court held in Para-17 that "It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is 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 witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Administration AIR 1958 SC 350; Vaikuntam Chandrappa v. State of A.P. AIR 1960 SC 1340; Budhsen and Anr. v. State of U.P. (1970) 2 SCC 128 & Rameshwar Singh v. State of Jammu & Kashmir (1971) 2 SCC 715." 15. It is therefore clear that the test identification parades, which are conducted during the course of investigation of a crime do not constitute substantive evidence. v. State of U.P. (1970) 2 SCC 128 & Rameshwar Singh v. State of Jammu & Kashmir (1971) 2 SCC 715." 15. It is therefore clear that the test identification parades, which are conducted during the course of investigation of a crime do not constitute substantive evidence. One of their purpose is of helping the investigating agency with an assurance that the progress in the investigation into the offence is proceeding in the right direction. The identification parades are essentially governed by Section 162 of the Code of Criminal Procedure and their further purpose is to have corroboration of the evidence of the eye-witnesses in form of earlier identification. Therefore, the conviction cannot be based merely on the evidence of test identification parades conducted during the course of investigation. The real and substantive evidence of the identity of the accused comes when witnesses give statement in the Court, identifying the accused. 16. In case on hand, as stated above, the Appellants were not identified before the Court. Gopal Sharan Singh (PW-5) deposed that he is unable to identify the Appellants in the court. Not only this, he also deposed that since a long time has elapsed, therefore, he is unable to say that he had identified the Appellants or any one of them in the T.I. Ps. conducted during the course of investigation. He clearly deposed that after seeing the Appellants in the court, he is unable to say that whether they were among the persons who entered into his house or not ? PW-5 was not declared hostile by the prosecution. The above versions, he deposed in his examination-in-chief. Even after his clear denied to identify the Appellants in the court as also in T.I. Ps., the learned Sessions Judge convicted the Appellants holding that the witness has admitted that T.I. Ps. were conducted in which he had identified the assailants and memos to this effect were prepared. We note that even the Executive Magistrate, who conducted the T.I. Ps., was not examined as he has expired. It is therefore clear that the learned Sessions Judge has convicted the Appellants on the basis of evidence of T.I.P. which was not a substantive evidence and conviction based on such evidence cannot be sustained. 17. For the foregoing reasons, the appeals are allowed. The conviction and sentences awarded to the Appellants Under Sections 450 & 395/397 IPC are set-aside. It is therefore clear that the learned Sessions Judge has convicted the Appellants on the basis of evidence of T.I.P. which was not a substantive evidence and conviction based on such evidence cannot be sustained. 17. For the foregoing reasons, the appeals are allowed. The conviction and sentences awarded to the Appellants Under Sections 450 & 395/397 IPC are set-aside. The Appellants are acquitted of the charges framed against them. It is stated that the Appellants are on bail. Their bail bonds are cancelled and sureties stand discharged.