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2010 DIGILAW 522 (MP)

Ramesh Chandra v. State of M. P.

2010-05-06

S.L.KOCHAR, S.R.WAGHMARE

body2010
JUDGMENT S.L. Kochar, J. 1. Since both the appeals arise out of one impugned judgment, therefore, decided by this common judgment. 2. The Appellants have preferred both these appeals against the one impugned judgment dated 21.1.2002 passed in ST. No. 120/95 by learned Additional Sessions Judge, Narsinghgarh, District Rajgarh (Biaora) M.P., whereby convicted and sentenced the Appellants as under: Name of the Appellant/s Conviction Sentence and fine Ramesh Chandra and Shiv. Under Section 302 of the Indian Penal Code (for short "the IPC") RI for life with fine of Rs. 10,000/- to each. In default of payment of fine, they shall suffer additional SI for six months. Ramesh Chandra and Shiv. Under Section 392 read with Section 397 of "the IPC" RI for ten years with fine of Rs. 10,000/- to each. In default of payment of fine, they shall suffer additional SI for six months. Shahid, Pappan and Shoaib. Under Section 411 and 413 of "the IPC" RI for 7 years with fine of Rs. 10,000/- each. In default of payment of fine, they shall suffer additional SI for six months. Shahid, Pappan and Shoaib. under Section 414 of "the IPC" RI for one year to each. The substantive jail sentences of Appellants Shahid, Pappan alias Mohd. Salim and Shoaib have been directed to run concurrently. 3. According to the prosecution case, deceased Chandu alias Ramchandra was residing in Talen and was driving jeep No. M.P. 04-F. 2192. On 25.21995 Appellants Shiv and Ramesh Chandra hired the jeep and went along with Chandu alias Ramchandra. They were seen, while going, by witnesses Basanti Bai, Purushottam, Anil and Ram Singh. Both the Appellants committed murder of Chandu alias Ramchandra in Seenka forest causing injury by sharp edged weapon, and threw his dead body in the forest; thereafter taken away the jeep. Appellants sold the parts of the jeep after dismantling it, to Appellants Shahid, Pappan alias Mohd. Salim and Shoaib. On 26.2.1995, Sharif resident of village Patelpura and Siddhulal had seen the dead body, in Seenka forest, of an unknown person and lodged the report in Eklera outpost, Police Station Talen. Merg No. 2/95 was registered and in presence of the witnesses, inquest report was prepared. Dead body of the deceased was sent for postmortem examination, which was conducted by P.W. 13 Dr. S.N. Karodia. The postmortem report is Ex. P/12. Merg No. 2/95 was registered and in presence of the witnesses, inquest report was prepared. Dead body of the deceased was sent for postmortem examination, which was conducted by P.W. 13 Dr. S.N. Karodia. The postmortem report is Ex. P/12. Dead body of deceased was later on identified by his brother. From the spot, blood stained and controlled earth were seized, and seized articles were sent for examination to Forensic Science Laboratory. During the course of patrolling, Sub Inspector Shri Rathore arrested the Appellant Ramesh Chandra in suspicious condition near Agrawal Dharmkanta Kabadkhana, when he was selling tape recorder and cassette. On interrogation, Ramesh Chandra disclosed about the incident. On the basis of statement of Ramesh Chandra, other accused persons were arrested and on their disclosure statements, parts of the jeep were recovered. Appellants Ramesh Chandra and Shiv were put for Test Identification Parade, arranged in jail, and in the said parade only Appellant Ramesh Chandra was identified by 4 witnesses, whereas Shiv was not identified by any witness. Investigating officer recorded the statements of the witnesses, who were acquainted with the facts of the case and on completion of investigation, filed the charge sheet against the Appellants Ramesh Chandra and Shiv under Section 302, 394, 120-B and 201 of "the IPC" and against other Appellants under Sections 411, 413 and 414 of "the IPC". 4. Appellants refuted the charges and pleaded their false implication therefore, put to trial. They have examined two witnesses in their defence. Learned trial Court after examining the prosecution and defence witnesses, and hearing both the parties, convicted and sentenced the Appellants, as indicated herein-above. 5. We have heard the learned Counsel for the parties and also perused the entire record minutely. 6. Before the trial Court as well as before this Court the homicidal death of deceased has not been challenged, even otherwise in view of the evidence of P.W. 13 Dr. Karodia, who found as many as 16 external injuries on the person of deceased; major of which were caused by sharp edged weapon. The thyroid cartilage of deceased were cut. On internal examination, underneath the injury No. 1, stab wound on left side of the neck was found. He found cut on all vital organs especially sub clavicle vessels. In the opinion of Dr. The thyroid cartilage of deceased were cut. On internal examination, underneath the injury No. 1, stab wound on left side of the neck was found. He found cut on all vital organs especially sub clavicle vessels. In the opinion of Dr. Karodia, deceased died because of excessive bleeding as well as internal hemorrhage resulting into shock, and injuries could be caused by sharp edged weapon. He proved postmortem report (Ex. P 12). 7. It emerged from the impugned judgment that conviction of the Appellants Ramesh Chandra and Shiv is based on the evidence of P.W. 9 Ram Singh, P.W. 10 Anil and P.W. 12 Basanti Bai. All these three witnesses were not knowing the Appellants Ramesh Chandra and Shiv and had seen them for the first time, when they had gone with the deceased in a jeep. All these three witnesses have specifically stated that they had seen the Appellants for the first time on the date of going with deceased in a jeep, and thereafter before going to jail for taking part in Test Identification Parade in police station as well as in office of C.I.D. police. In Test Identification Parade Shiv was not identified by any witness, and Ramesh Chandra was identified by three witnesses, but in our considered view the evidence of Test Identification Parade looses its all sanctity and value because prior to holding the Test Identification Parade, Appellants Ramesh Chandra and Shiv were already shown to the witnesses, therefore, the holding of Test Identification Parade was nothing but a farce, just to complete the formality. The importance of Test Identification Parade has been discussed elaborately by Supreme Court in case of Hasib v. State of Bihar AIR 1972 SC 283 in Paragraph-6 and 7, which reads as under: Para-6. 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 P.W. 10 saw them on January 28, 1963 then the T.I. parade as against him cannot be of any assistance to the prosecution. Para-7. But otherwise too the identification proceedings in the present case do not inspire confidence. It appears that several test identification parades were held for identifying the accused persons. So far as the present Appellant is concerned P.W. 10 appears to have identified him on February 14, 1963 though the Appellant had been arrested as early as January 29, 1963 at about 4.15 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. 8. In view of the above, the dock identification after about an year, in Court, would not be sufficient to place reliance for convicting Appellants Shiv and Ramesh Chandra for the offence of committing murder without corroboration by the evidence of valid test identification during the course of investigation. 9. 8. In view of the above, the dock identification after about an year, in Court, would not be sufficient to place reliance for convicting Appellants Shiv and Ramesh Chandra for the offence of committing murder without corroboration by the evidence of valid test identification during the course of investigation. 9. There are some major contradictions, improvements and embellishments in the statements of these witnesses regarding going of the Appellants Ramesh Chandra and Shiv with deceased and hiring the jeep, but we do not feel it necessary to discuss the same in view of major deficiency in the prosecution case about establishing the identity of the Appellants. 10. The Appellants Shahid, Pappan alias Mohd. Salim and Shoaib have been convicted for receiving the stolen property, as described herein-above, but their conviction is also not sustainable because the name and number plate of the jeep, chassis number and engine number were not traced and different-different parts of the jeep said to have been seized, but there is no evidence laid by the prosecution to establish that the seized parts of the jeep were the parts of the same jeep, which was taken by deceased Chandu. 11. P.W. 16 Sunil owner of the jeep regarding tape recorder and other articles of the jeep, has not stated anything in examination in chief and in cross-examination he has stated that jeep was given to him on Supurdginama. In further cross-examination, he has stated that Court had given the parts of the jeep on supurdginama, thereafter he got it assembled and incurred expenses of Rs. 7,000/- Further say of this witness is that he kept jeep with him for about three months and the same was taken away by finance company because the jeep was purchased by him on hire-purchase agreement. Neither the parts of the jeep were got identified during the course of investigation nor jeep was identified in Court by witnesses P.W. 9 Ram Singh, P.W. 10 Anil and P.W. 12 Basanti Bai. Statement of P.W. 16 Sunil is of no use because he had not seen the deceased going in a jeep. 12. Neither the parts of the jeep were got identified during the course of investigation nor jeep was identified in Court by witnesses P.W. 9 Ram Singh, P.W. 10 Anil and P.W. 12 Basanti Bai. Statement of P.W. 16 Sunil is of no use because he had not seen the deceased going in a jeep. 12. For establishing the fact that from the possession of these Appellants property of the offence was seized, prosecution has not adduced any substantive piece of evidence, therefore, only on the basis of recovery these Appellants cannot be convicted because the important link is missing to prove the ingredients of Section 411 and 413 of "the IPC". Prosecution has to establish beyond reasonable doubt that the seized property from the exclusive possession of the Appellants, was the property of the offence, but failed to prove the same. 13. In the light of aforesaid discussion, we allow both the appeals. Conviction and sentence, as passed by learned trial Court against the Appellants, are hereby set aside. They are on bail, their bail and surety bonds stand discharged. 14. Original judgment is kept in Criminal Appeal No. 404/2002, a copy whereof be placed in the record of Criminal Appeal No. 228/2002.