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2011 DIGILAW 284 (CHH)

VINOD KUMAR v. STATE OF M. P.

2011-08-12

SUNIL KUMAR SINHA

body2011
JUDGMENT 1. These appeals are directed against the judgment dated 8th of March, 1995 passed in Session Trial No. 186/92 by the First Additional Session Judge, Durg. By the impugned judgment, the appellants have been convicted u/s 395 IPC and sentenced to undergo R.I. for 5 years. 2. In all 7 accused persons (A-] to A-7) were prosecuted for the offences punishable u/ss 395 & 397 IPC. Out of them, accused-Manbahadur (A-5) has been acquitted, whereas, the above 6 appellants/accused persons have been convicted. 3. The facts, briefly stated, are as under: On 10.2.92 at about 11.45 p.m. complainant-Nakchhed Sharma was returning to his house along with his friend- Pardeshi. When they reached near Jogendra Hotel, Nandni Road, they were obstructed and surrounded by the accused persons who came out from a Maruti Van bearing registration No. MP-24 - D 2372. Satrughan Sinha (PW-4) also reached there. The allegations are that the accused persons looted Rs.185/-, a black regzin bag, a receipt of Punjab National Bank and one HMT Kohinoor Wrist Watch from the possession of complainant- Nakchhed Sharma. They also looted one gamchha from Pardeshi and they snatched Rs.50/-, a diary, a handkerchief and HMT Sona Wrist Watch from Satrughan Sinha (PW-4), and fled from the place of occurrence by their Maruti Van. During the course of incident Nakchhed Sharma identified accused- Mahendra (A-I), Munna (A-3), Gopal (A-6) and Babuwa. He immediately went to police station Chawni and lodged the First Information Report (Ex.-P/13). Nakchhed Sharma, Pardeshi and Satrughan Sinha (PW4) all were sent for their medical examinations. Later on, Mahendra (A1) was taken into custody and his memorandum statement (Ex.-P/4) u/s 27 of the Evidence Act was recorded, based on which various articles were seized from the possession of Mahendra (A-I), Vinod (A-2), Suryanarayan (A-4), Munna @ Ranapratap (A-3), V. Gopal (A-6) and Manbahadur (A-5) vide seizure memos Ex.-P/5 to Ex.-P/10. The accused persons were put for their identification in two different T.I.Ps. The identification memo of Surendra (A-7) is Ex.-P/l and the identification memo of the other accused persons is Ex.-P/2. These identifications were conducted by Executive Magistrates K.K. Behar (PW-1) and N.R. Sahu (PW-2). Further Nakchhed identified his writ watch and Satrughan (PW4) also identified his writ watch vide memo EX.-P/11. The identification memo of Surendra (A-7) is Ex.-P/l and the identification memo of the other accused persons is Ex.-P/2. These identifications were conducted by Executive Magistrates K.K. Behar (PW-1) and N.R. Sahu (PW-2). Further Nakchhed identified his writ watch and Satrughan (PW4) also identified his writ watch vide memo EX.-P/11. After completion of usual investigation, the charge-sheet was filed in the Court of Chief Judicial Magistrate, Durg, who in turn committed the matter to the concerned Session Court, from where, it was received on transfer by the First Additional Session Judge, Durg, who conducted the trial and convicted & sentenced the 6 accused persons as aforementioned. However, Manbahadur (A-5) was acquitted. Nakchhed Sharma and Pardeshi both were not examined during the trial. The learned Session Judge relied on the testimony of Satrughan Sinha (PW -4), test identification parades (T.I.Ps.) and seizure & identification of articles from the accused persons at the instance of memorandum statement (Ex.-P/4) of Mahendra (A-I). 4. Learned counsel for the appellants argued that complainant-Nakchhed Sharma and Pardeshi were not examined; Nakchhed Sharma was the witness who allegedly identified the accused persons vide T.I.Ps. conducted on(21.2.92 and 6.3.92; the Session Judge has wrongly based the conviction on the evidence of conducting the T.I.Ps. by Executive Magistrates; the above evidence was not substantive evidence; in absence of dock-identification nothing was possible on the evidence of T.I.Ps. said to be conducted by 2 Executive Magistrates; memorandum (Ex.-P/4), leading to discoveries of various articles, was also not proved; and Satrughan Sinha (PW-4) could not identify the assailants on dock; therefore, the conviction was not possible. 5. On the other hand, leaned Govt. Advocate for the State opposed these arguments and supported the judgment passed by the Session Court. 6. I have heard the learned counsel for the parties at length and have also perused the records of the sessions case. 7. Firstly I shall consider the question of identification of the appellants/ accused persons. 8. After the arrest, accused- Surendra (A-7) was put for identification on 6.3.92. His T.I.P. memo is Ex.-P/l. The other accused persons (A-1 to A-6) were also put for their identification on 21.2.92. Their T.I.P. memo is Ex.-P/2. Perusal of both the T.I.P. memos would show that they were duly identified by complainant- Nakchhed Sharma. Identification parades were conducted by 2 Executive Magistrates namely K.K. Behar (PW-l) and N.R. Sahu (PW-2). His T.I.P. memo is Ex.-P/l. The other accused persons (A-1 to A-6) were also put for their identification on 21.2.92. Their T.I.P. memo is Ex.-P/2. Perusal of both the T.I.P. memos would show that they were duly identified by complainant- Nakchhed Sharma. Identification parades were conducted by 2 Executive Magistrates namely K.K. Behar (PW-l) and N.R. Sahu (PW-2). Nakchhed Sharma has not been examined by the prosecution. The learned Session Judge held that since the accused persons were duly identified in the test identification parades conducted by the 2 Executive Magistrates, which was also proved by them, they were the relevant evidence against the appellants. The Session Judge held that the above evidence of conducting the test identification parades shows that the appellants/accused persons had participated in commission of the offence. I am unable to approve the view taken by the learned Session Judge. It is almost well settled that the evidence of test identification is at best supporting evidence. It can be used only to corroborate the substantive evidence given by the witnesses in the court regarding identification of the accused. The earlier identification made by the witnesses at the test identification parade, by itself, has no independent value. 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. 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. In the present case as stated above, complainant- Nakchhed Sharma has not been examined, therefore, the evidence of T.I Ps. in which the accused persons were allegedly identified by Nakchhed Sharma would not be read as substantive evidence against them. I am of the view that the Session Judge fell into error in treating 2 T.I.Ps. as substantive evidence and making them basis to hold that by the said evidence it was proved that the appellants/accused persons participated in committing dacoity in the fateful night. 9. Pardeshi the other eye witness has also not been examined by the prosecution. The other evidence of identification of the accused persons is the evidence of Satrughan Sinha (PW-4). He deposed that he does not know the names of the accused persons. 9. Pardeshi the other eye witness has also not been examined by the prosecution. The other evidence of identification of the accused persons is the evidence of Satrughan Sinha (PW-4). He deposed that he does not know the names of the accused persons. In the fateful night the accused persons caught him and snatched his HMT Watch and Rs.50/- from his possession. In Para2 of the evidence, he deposed that he does not identify the accused persons present in the Court. In cross-examination, in Para-8, he admitted that there was darkness at the place of occurrence and he was unable to see the assailants properly. On appreciation of his entire evidence, it appears that he was unable to identify the assailants who took his watch and money and his evidence. regarding dock-identification was shakey and untrustworthy. 10. Except the above, there is no other evidence of identification of the accused persons. I am of the view that in light of the above evidence available on record, it was not established beyond all reasonable doubt that the appellants had participated in commission of the aforesaid offence and they were duly identified by the victims at the place of occurrence itself. 11. The other evidence is regarding seizure of various articles on the memorandum statement (Ex.-P/4) of Mahendra (A-1). The 2 witnesses of the memorandum statements are Pardeshi and Satrughan Sinha (PW-4). As I have already stated that Pardeshi has not been examined; and Satrughan Sinha (PW4) deposed in Para-4 of his evidence that though memorandum (Ex.-P/4) bears his signature, but the police did not ask anything before him from the accused persons. In Para-II, he further admitted that the police took his signature on all the papers collectively in the police station at one point of time. The above evidence of Satrughan Sinha (PW-4) makes the discovery doubtful. On appreciation of the entire evidence on record, we find that it was not proved . beyond all reasonable doubt that Mahendra (A-I) gave the discovery statement (Ex.-P/4) in presence of Satrughan' Sinha (PW-4). 12. HMT Sona Watch of Satrughan (PW-4) is shown to have been seized from the possession of Mahendra (A-I) vide seizure memo Ex.-P/5. Pardeshi and Satrughan Sinha (PW-4) are the 2 witnesses of this seizure also. In fact, Pardehsi and Satrughan Sinha (PW-4) are the witnesses in all the seizure memos prepared by police. 12. HMT Sona Watch of Satrughan (PW-4) is shown to have been seized from the possession of Mahendra (A-I) vide seizure memo Ex.-P/5. Pardeshi and Satrughan Sinha (PW-4) are the 2 witnesses of this seizure also. In fact, Pardehsi and Satrughan Sinha (PW-4) are the witnesses in all the seizure memos prepared by police. The above watch was put for identification from Satrughan Sinha (PW-4) vide identification memo (Ex.-P/11). When the watch itself was allegedly seized in presence of Satrughan Sinha, there was no proprietary for putting it for identification by him. In Para-7 of his evidence, Satrughan deposed that the identification of property (wrist watch) was conducted by police officers. In view of his evidence in Para-11 of the cross-examination that all the papers including the above identification memos were signed by him at one point of time in the police station and further in view of his conduct relating to identification of the accused persons and that of the memorandum . statement allegedly given by Mahendra (A-1), his evidence relating to seizure and identification of the watch cannot be relied on. I am of the view that it was not proved beyond all reasonable doubt that the watch, in fact, was seized from the possession of Mahendra (A-1) on his discovery memo (Ex.-P/4) and it was duly identified by Satrughan Sinha (PW-4). 13. Mr. Satish Gupta, learned Govt. Advocate, has argued that the evidence of Investigation Officer, Inspector- B.B.S. Rajput (PW-6) should be relied on and conviction can be maintained relying on his sole testimony. I have no doubt about the legal proposition that the conviction can be based on the sole testimony of the police officer, but the important factor in such a situation would be that the evidence of the police officer should be fully reliable and of such quality that no doubt can be cast on his testimony. The present is not a case of that category. In the present case, we find that after recording of the F.I.R., the 3 eye-witnesses were sent for their medical examination and 2 of them i.e. Satrughan Sinha (PW-4) and Pardeshi (not examined) were made witnesses of all the police documents i.e. memorandum statements and various seizure memos etc.-etc., which Satrughan Sinha (PW-4) admitted to sign at one point of time in the police station itself. This creates a doubt on the fairness of the investigation conducted by the Investigation Officer and his sole testimony, in light of the above evidence available on record, cannot be relied on for conviction of the appellants holding the alleged seizure and identification of the properties to be proved. 14. In the above facts and circumstances of the case, I am unable to sustain the conviction of the appellants on the above set of evidence. The prosecution has utterly failed to prove the guilt of the appellants beyond all reasonable doubts. Neither identification of the appellants/accused persons was established nor it was established that the wrist watch was seized from the possession of Mahendra (A-I) on his discovery statement. I am of the view that in the facts and circumstances of the case, the appellants are entitled to get benefit of doubt and their appeals deserve to be allowed. 15. For the foregoing reasons, the appeals are allowed. The conviction and sentences awarded to the appellants u/s 395 IPC are set-aside. The appellants are acquitted of the charges framed against them. Appeals Allowed.