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2011 DIGILAW 266 (CHH)

MANOJ KUMAR v. STATE OF M. P.

2011-08-02

SUNIL KUMAR SINHA

body2011
JUDGMENT I. This appeal is directed against the judgment dated 13th of December, JlJ94 passed in Session Trial No. 86/92 by the 7th Additional Session Judge, Bilaspur. By the impugned judgment, the appellants have been convicted u/s 307/34 IPC and sentenced to undergo R.I. for 7 years. 2. The facts. briefly stated, are as under: Complainant- Ramesh Chandra Yadav (PW-3) was a driver, On 26.6.91 at about 9.00 p.m., he had gone to meet one Baba Rao near Sat yam Talkies, Bilaspur. He was on his Yamaha Motorcycle bearing registration No. MP-26 - 3441. When he was returning from Satyam Talkies, the two assailants meet him on the way and asked for lift on his motorcycle. He gave them lift. After sometime, one of the assailant pointed revolver near his ear and asked him to take a different. way. As soon as the motorcycle reached near Civil Lines Police Station the complainant turned the motorcycle towards police station, on which, the assailants jumped from the motorcycle and one of them, who was holding revolver, tired upon the complainant which caused gun shot injury on his back. The complainant went to the police station in injured condition and lodged the repon (F.I.R. - Ex.-P/3). By that time A.S.I. Larang Ram (PW-II) immediately rushed behind the assailants and he snatched the revolver from them, during which one or the assailants assaulted him by knife. However, they succeeded to run away from the place where they had assaulted A.S.I. Larang Ram which was at some distance from the police station. Injured- Ramesh Chandra Yadav (PW-3) was sent for his medical examination. He was examined by Dr. S.S. Bhatia (PW-12). He noticed that there was a gun shot injury in between both the scapula at the level of D-7 having size of l/4 cm x l/4 cm. Skin burns were easily seen around the injury which were in area of 2cm x 2 cm. He advised X-ray examination of the injury. His report is Ex.-P/14. X-ray examination was conducted by Dr. C.S. Sharma (PW-2). He found a bullet like material penetrated deep into muscles near 3rd vertebrae. X-ray report is Ex.P/1. The injured was immediately hospitalized and surgery was conducted by Dr. R.A. Sharma (PW -6). He took out the bullet from the body of the complainant. He also gave a report Ex.-P/4. The complainant remained in the hospital from 26.6.91 to 4.7.91. He found a bullet like material penetrated deep into muscles near 3rd vertebrae. X-ray report is Ex.P/1. The injured was immediately hospitalized and surgery was conducted by Dr. R.A. Sharma (PW -6). He took out the bullet from the body of the complainant. He also gave a report Ex.-P/4. The complainant remained in the hospital from 26.6.91 to 4.7.91. The appellants were taken into custody and were put for identification by complainant- Ramesh Chandra Yadav (PW-3) who duly identified them in Test Identification Parade (T.I.P.) held on 28.9.91. The T.I.P. memo is Ex.-P/5. T.I.P. was conducted by Executive Magistrate, Arjun Singh Sisodiya (PW-9) in Central Jail, Bilaspur. The revolver was seized from the possession of A.S.I. Larang Ram (PW-11) vide seizure memo Ex.-P/9. One empty cartridge was also seized from the place of occurrence vide seizure memo Ex.-P/8. The revolver was sent for its examination to Armourer- Shankar Prasad (PW5) who found that it was a country made revolver of 38 boar and was in running condition and live cartridge in the revolver and the empty cartridge could have been fired by said revolver. The Armourer report is Ex.-P/6. 3. The case of the prosecution was based on identification of the appellants. The Session Judge held that appellant- Ramakant was holding the revolver. He gave a gun shot to the victim/complainant and appellant- Manoj Kumar shared common intention with appellant- Ramakant, therefore, both were liable for punishment u/s 307/34 IPC. However Ramakant was acquitted for the charges framed u/s 25 of the Arms Act for want of necessary sanction. 4. Mr. Yogeshwar Sharma, learned counsel appearing on behalf of the appellants, has not disputed the incident. He argued that the identification was conducted on 28.9.91 after more than 3 months of the incident; the police officers were present at the time of T.I.P. therefore, the Session Judge .erred in law ill holding that the appellants were duly identified by complainant- Ramesh Chandra Yadav (PW-3). He also argued that there is no evidence of sharing common intention by appellant- Manoj Kumar, who simply accompanied appellant- Ramakant, therefore, the conviction of appellant- Manoj Kumar with the aid of Section 34 IPC, was not justified. 5. On the other hand, Mr. Satish Gupta, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court. 6. 5. On the other hand, Mr. Satish Gupta, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court. 6. I have heard learned counsel for the parties at length and have also perused the records of the sessions case. 7. Ramesh Chandra Yadav (PW-3) deposed that he had identified the appellants in Central Jail, Bilaspur. The identification parade was conducted by Executive Magistrate. He certified his signature over the T.I.P. memo Ex.-P/ 5. He identified both the appellants before the Court. Though he admitted in the cross-examination that A.S.I. Larang Ram (PW-Il) was present there and other police personnel’s were also present in Central Jail, but the Session Judge held that normally the police personnels go to the jail and mere their presence in the jail premises which is in a big area, would not affect the validity of T.I.P. The Session Judge, thus held that a proper T.I.P. was conducted. 8. In George Vs. State of Keralal, 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." 9. In Daya Singh Vs. State of Haryana, the Supreme Court held that "The purpose of test identification is to have corroboration to the evidence of the eyewitnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the Court." 10. In Munshi Singh Gautam (Dead) and Others Vs. State of MP, the Supreme Court held in Para- 17 that "It is trite to say that the substantive evidence is the evidence of identification in court. Apm1 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 genera I 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. As a genera I 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 I 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 Vs. Delhi Administration4; Vaikuntam Chandrappa Vs. State of A.P. Budhsen and Another Vs. State of UP. & Rameshwar Singh Vs. State of Jammu & Kashmir')." 11. We find on the face of the evidence on record that both the assailants were identified during the trial by complainant-Ramesh Chandra Yadav (PW3). Not only this, they were also identified during the trial by A.S.I. Larang Ram (PW -II). Larang Ram clearly deposed that he caught both the appellants near police hospital and snatched the revolver, thereafter, appellant-Ramakant assaulted him by a knife due to which he sustained injuries. This goes to show that complainant- Ramesh Chandra Yadav (PW-3) and A.S.I. Larang Ram (PWII) both made dock identification of the appellants and the Session Judge was right in holding that the appellants were duly identified by the victim/complainant Ramesh Chandra Yadav (PW-3) and A.S.I. Larang Ram (PW-II) who chased the assailants and caught them near police hospital, Bilaspur. 12. This goes to show that complainant- Ramesh Chandra Yadav (PW-3) and A.S.I. Larang Ram (PWII) both made dock identification of the appellants and the Session Judge was right in holding that the appellants were duly identified by the victim/complainant Ramesh Chandra Yadav (PW-3) and A.S.I. Larang Ram (PW-II) who chased the assailants and caught them near police hospital, Bilaspur. 12. Now the question arises about the part played by appellant-Manoj Kumar. Manoj Kumar has been convicted with the aid of Section 34 IPC. He neither assaulted the victim (PW-3) nor A.S.\. Larang Ram (PW-II), however, he was throughout present with appellant- Ramakant who fired upon the victim and who also inflicted injury to A.S.I. Larang Ram. In Dani Singh Vs. State of Bihar8, (para 20) the Supreme Court held that to constitute common intention, it is necessary that intention of each one of the accused be known to the rest and shared by them. Undoubtedly, it is difficult to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. But however difficult may be the task, the prosecution must lead evidence of facts, circumstances and conduct of the accused from which their common intention can be safely gathered. In most cases, it has to be inferred from the act, conduct or other relevant circumstances of the case in hand. The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit offence for which they can be convicted. The facts and circumstances of cases vary and each case has to be decided keeping in view the facts involved. Whether an act is in furtherance of the common intention is an incident of fact and not of law. 13. In case on hand, both the appellants stopped the complainant near Sat yam Talkies, Bilaspur and both asked for lift. The complainant who even was not knowing them, gave them lift. When they traveled to some distance, appellant- Ramakant took out a gun (katta) and pointed it on the ear of the complainant and asked him to take the motorcycle on a particular way. Appellant Manoj Kumar did not re-act to it. The complainant who even was not knowing them, gave them lift. When they traveled to some distance, appellant- Ramakant took out a gun (katta) and pointed it on the ear of the complainant and asked him to take the motorcycle on a particular way. Appellant Manoj Kumar did not re-act to it. Even he did not stop Ramakant, whereas, he could have easily stopped him by resisting him by force or by shouting etc because this was incident of a dense locality of the middle of the town. On the contrary when the motorcycle was turned towards the gate of police station, both the appellants jumped together, appellant- Ramakant fired upon the complainant, and both the appellants ran together towards the police hospital. They were chased by A.S.I. Larang Ram (PW -11) who caught both of them. If Manoj Kumar was not sharing common intention with Ramakant, he would not have gone along with him and he would not have participated in quarrel with A.S.!. Larang Ram (PW-11). He would have resisted all this and would have helped the A.S.I. in catching Ramakant and snatching the revolver from his hand. In the above facts and circumstances of the case, the conduct of appellant- Manoj Kumar was writ large on record and his common intention can be safely gathered from his above conduct. 14. For the foregoing reasons, I do not find any substance in the appeal. The appeal, therefore, is liable to be dismissed and is hereby dismissed. Appeal Dismissed.