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2012 DIGILAW 171 (CHH)

SHATRUGHAN YADAV v. STATE OF C. G.

2012-07-18

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2012
JUDGMENT Radhe Shyam Sharma, J. 1. This appeal is directed against judgment dated 31-1-2007 passed by 9th Additional Session Judge (FTC), Raipur in Session Trial No. 147/2006. By the impugned judgment, accused/appellant Shatrughan Yadav has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/- in default of payment of fine, to further undergo imprisonment for 3 months. 2. Case of the prosecution in brief, is as under : On 22-12-2005, at about 7 P.M., two cyclists were quarreling and committing Marpeet with each other beside N.E.C.C. Transport, Mahoba Bazar, Hirapur Road. Out of them, one cyclist, who had worn sweater and full-pant of violet colour, assaulted the other cyclist on the head and face with a Batta severely, as a result of which, the other cyclist fell down and died. On the oral report of Smt. Jaishree Mishra (PW -I), Police Station Amanaka recorded Dehati Merg Intimation (Ex.P-1) at 0/05 and registered First Information Report (Ex.P-2) without number for the offence under Section 302 IPC. Regular Merg Intimation was recorded by Police Station Amanaka vide Ex.P-16 and regular First Information Report was registered by the same police station vide EK.P17. The Investigating Officer reached the place of occurrence, gave notice (Ex.P-18) to Panchas and prepared inquest (Ex.P-11) on the dead body of the deceased. Identification of the dead body was done vide Ex.P-10 and it was found that the dead body was of Daulat Singh Dhruw, son of Latel Singh Dhruw. The dead body of the deceased was sent to Dr. Ambedkar Hospital, Raipur for post mortem examination. Dr. Vikas Kumar Dhruw (PW-5) conducted post mortem examination on ~he dead body and gave his report (Ex.P-8 and P-9) in which, he found that the death was due to shock and hemorrhage as a result of multiple injuries to the body and the death was homicidal in nature. During further investigation, the appellant was taken into custody. Memorandum statement of the appellant was recorded under Section 27 of the Evidence Act vide Ex.P-12. At the instance of the appellant, a wooden Batta, a white-like full-shirt stained with blood and soil, a white-like sweater stained with blood-like stains, a full-pant of violet colour stained with soil and blood and an old black bicycle of Avon Company stained with blood-like stains were seized vide EX.P-13. At the instance of the appellant, a wooden Batta, a white-like full-shirt stained with blood and soil, a white-like sweater stained with blood-like stains, a full-pant of violet colour stained with soil and blood and an old black bicycle of Avon Company stained with blood-like stains were seized vide EX.P-13. Plain soil and blood stained soil were seized from the place of occurrence vide Ex.P-22. Spot-Map (Ex.P-4) was prepared by Patwari Tika Ram Dewangan (PW-2). Another spot-map (Ex.P-21) was prepared by the Investigating Officer Sub-Inspector Bhushan Ekka (PW-14). The seized articles were sent to Forensic Science Laboratory, Raipur vide (Ex.P-25). Report (Ex.P26) was received therefrom. After completion of the investigation, charge sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Raipur who, in turn committed the case to the Court of Session. Raipur from where it was received on transfer by 9th Additional Session Judge (FTC), Raipur, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri C.K. Kesharwani, learned counsel for the appellant argued that Jaishree Mishra (PW -1) is not an eye-witness. She did not witness the incident. She did not identify the appellant. According to the prosecution, a test identification parade of the appellant was conducted, but the appellant was shown to Jaishree Mishra (PW-1) before conducting the parade. Therefore, the identification parade has no evidentiary value. The guilt recorded on the basis of evidence of Anitabai (PW -12) is not reliable. The circumstance of last seen together is not beyond reasonable doubt. Learned counsel for the appellant further argued that the Batta was not recovered at the instance of the appellant. Therefore, the finding of guilt recorded by the learned Additional Session Judge is not sustainable and the appellant is entitled to acquittal. 4. Shri Akhil Mishra, learned Deputy Government Advocate for the State/ respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Session Judge do not warrant any interference by this Court. 5. We have heard learned counsel for the parties at length and have perused the record of Session Trial No. 147/2006. 4. Shri Akhil Mishra, learned Deputy Government Advocate for the State/ respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Session Judge do not warrant any interference by this Court. 5. We have heard learned counsel for the parties at length and have perused the record of Session Trial No. 147/2006. The conviction of the appellant is mainly based on the evidence of Jaishree Mishra (PW-1) and on the basis of memorandum statement of the appellant and at his instance, recovery of Batta, bicycle and clothes of the appellant which were, in the FSL Report, found stained with blood. 6. Learned Additional Session Judge held in paragraph 16 of the impugned judgment that Jaishree Mishra (PW -I) is a reliable witness. He also relied on the circumstance of last seen together and the recovery of the articles from the appellant. 7. Jaishree Mishra (PW-I) deposed that she had a hotel in Mahoba Bazar. Her father-in-law and some boys were working in that hotel. When her father-in-law called her, she came out and saw that the appellant was assaulting a cyclist with a wooden Patiya. She further deposed that the appellant had assaulted on the head of the cyclist, due to which, the cyclist had fallen down. When she shouted Pakado Pakado, the appellant fled from there with his cycle. She further deposed that when she went to the place of occurrence she saw that the appellant was fleeing. The appellant had left the Patiya at the place of occurrence. 8. Jaishree Mishra (PW-1) further deposed that the Tahsildar had conducted identification parade of the appellant vide Ex.P-3. She had identified the appellant. She further deposed that she had seen the appellant at the place of occurrence from a distance of 10-15 feet. 9. Now, we shall examine whether the identification parade of the appellant conducted by the Tahsildar is reliable? 10. It is true that the test identification parade is not a substantive piece of evidence, but it is done only for the satisfaction of the prosecution that the investigation was moving in the right direction. 9. Now, we shall examine whether the identification parade of the appellant conducted by the Tahsildar is reliable? 10. It is true that the test identification parade is not a substantive piece of evidence, but it is done only for the satisfaction of the prosecution that the investigation was moving in the right direction. The substantive evidence of witness is the statement in Court, but as a rule of prudence, earlier identification proceedings are held in order to corroborate the testimony of a witness given in Court as regards the identity of the accused who is not known to him from before. 11. In the instant case, the test identification parade was conducted by the Tahsildar. O.P. Kosariya (PW-4) deposed that in August, 2005, he was posted as an Additional Tahsildar/Executive Magistrate at Mandir Hasaud. He had conducted identification parade of the appellant in the Court of Additional Tahsildar in regard to Crime No.1 74/2005 registered at Police Station, Amanaka on 24-12-2005, in which, Jaishree Mishra (PW-1) had identified the accused appellant. Jaishree Mishra (PW-1) also deposed that the Tahsildar had conducted identification parade of the appellant, in which she had identified the appellant. 12. Jaishree Mishra (PW-1) deposed that the appellant was brought before her by the police and the police had asked her whether the person present before her was the assailant? She had identified the person as the assailant appellant. In cross-examination, in paragraph 10, she specifically deposed that the police had conducted the test identification parade of the appellant at the police station. 13. Looking to the evidence of Jaishree Mishra (PW-1), it is crystal clear that the appellant was shown to her before conducting the test identification parade. She had seen the appellant 2-3 times before the test identification parade. Therefore, the test identification proceeding is not reliable and cannot be taken for support of conviction of the appellant. 14. Jaishree Mishra (PW-1) deposed that her father-in-law was present at the hotel and he had called her. She had come out and seen that the appellant was assaulting the deceased. Merg Intimation (Ex.P-16) and First Information Report (Ex.P-17) were lodged by Jaishre Mishra (PW-1). Ex.P-16 and p. 17 do not contain that Jaishree Mishra (PW-1) will identify the assailant. Jaishree Mishra (PW-1) deposed that it is true that she did not know the appellant before the incident. She had come out and seen that the appellant was assaulting the deceased. Merg Intimation (Ex.P-16) and First Information Report (Ex.P-17) were lodged by Jaishre Mishra (PW-1). Ex.P-16 and p. 17 do not contain that Jaishree Mishra (PW-1) will identify the assailant. Jaishree Mishra (PW-1) deposed that it is true that she did not know the appellant before the incident. It is also true that at the time of incident, there was darkness in the atmosphere. It is also true that the quarrel was going on at the distance of 10-15 feet from her hotel and she was inside the room. She further deposed that when her father-in-law shouted, she came out. In cross-examination, in paragraph 10, she deposed that when the appellant was fleeing, she had seen his back. She could not see his face. She further deposed that the police had brought the appellant to her house in the night and shown to her. She further deposed in paragraph 13 that she had not seen the assailant assaulting the deceased. She had only seen fleeing the assailant. It is true that the person whom she had seen fleeing was not caught by any person. 15. Looking to the evidence of Jaishree Mishra (PW-1), we find that she had not seen the appellant. She had also not identified the appellant. She only identified the appellant on being brought to her by the police. Therefore, it is not proved from the evidence of Jaishree Mishra (PW-1) that she had identified the assailant and he was the appellant who assaulted the deceased. 16. According to Jaishree Mishra (PW-1), her father-in-law was also present in the hotel. She had come out of the room on being called by her father-in-law. Therefore, the father-in-law of Jaishree Mishra (PW-1) was a material witness for the prosecution; who saw the incident first, but the prosecution did not examine him, which is fatal to the case of the prosecution. Therefore, the conviction of the appellant cannot be based on the sole testimony of Jaishree Mishra (PW-1). 17. Next set of evidence adduced by the prosecution is of last seen together. In this regard, the prosecution has examined Smt. Anitabai (PW-12). 18. Smt. Anitabai (PW-12) deposed that Daulat Singh (the deceased) was her brother-in-law (Jija). The deceased was living in her house. 17. Next set of evidence adduced by the prosecution is of last seen together. In this regard, the prosecution has examined Smt. Anitabai (PW-12). 18. Smt. Anitabai (PW-12) deposed that Daulat Singh (the deceased) was her brother-in-law (Jija). The deceased was living in her house. On 2212-2005, at about 4 P.M., the appellant had come to her house to call the deceased. The appellant and the deceased had gone out together on separate bicycles. She had asked the deceased where was he going? The deceased had replied her that he was going in nearby locality. In 'cross-examination, she deposed that she had told the police that the appellant had taken the deceased at about 4 P.M., but in her case diary statement (Ex.D-2), name of the appellant is not mentioned. 19. So far as the evidence of last seen together is concerned, the prosecution adduced the evidence of only one witness, i.e., Anitabai (PW -12), but her evidence is not cogent. She did not specifically depose that the deceased was last seen in the company of the appellant. None of the other prosecution witnesses have stated in their evidence that on the fateful day, they saw the appellant and the deceased going together. 20. Even if it is assumed for a while that the appellant and the deceased had gone out of the house of Anitabai (PW-12) together, the evidence of Anitabai (PW-12) shows that the appellant and the deceased had gone out at about 4 P.M., but the incident took place at about 7 P.M. The last seen theory comes into play where the time gap between the point of time when the appellant and the deceased were last seen alive and the deceased was found dead is so small that possibility of any person other than the appellant being the author of the crime becomes impossible. In the instant case, the last seen circumstance is not proved by cogent evidence. Therefore, in absence of any other positive evidence to conclude that the appellant and the deceased were last seen together, it would be hazardous to come to conclusion that the appellant is guilty. Therefore, the last seen circumstance relied on would be hardly incriminating against the appellant. 21. Therefore, in absence of any other positive evidence to conclude that the appellant and the deceased were last seen together, it would be hazardous to come to conclusion that the appellant is guilty. Therefore, the last seen circumstance relied on would be hardly incriminating against the appellant. 21. The prosecution has led evidence of blood stains found on the articles C - Batta, D - bicycle, E - Batta, F - shirt, G - sweater, H - full-pant and I - bicycle, which were seized from the appellant. 22. Yogendra Verma (PW-6) deposed that they had gone to the house of the appellant along with police. The appellant was found sleeping in his house. He further deposed that the police had, after awakening the appellant, brought him to Police Station Amanaka. Thereafter, the Batta, bicycle and clothes were seized from the appellant. Lachchhiram Dhruw (PW -11) also deposed in similar fashion. 23. Looking to the evidence of Yogendra Verma (PW-6), Lachchhiram Dhruw (PW-11) and the investigating officer Bhushan Ekka (PW-14), it appears that the bicycle, Baffa and clothes were seized from the appellant. Bhushan Ekka (PW-14) deposed that the seized articles were sent to FSL, Raipur for chemical examination. Report of the FSL is Ex.P-26. In Ex.P-26, it is mentioned that the above articles were found stained with blood. But, the prosecution did not prove that the above articles were found stained with human blood and could also not prove the origin of the blood found on the above articles. Therefore, mere presence of blood on the seized articles is not sufficient to connect the appellant with the alleged offence. Therefore, the solitary circumstance of memorandum statement and recovery of the bicycle, Batta and clothes are not convincing and reliable and cannot be based for conviction of the appellant. 24. We have carefully examined the entire evidence available on the record. We are of the view that the learned Additional Session Judge has erred in law in resting the conviction of the appellant on the sole testimony of Jaishree Mishra (PW-1) and on the circumstantial evidence of last seen together, the memorandum statement and the recovery of above articles. We are of the view that the conviction of the appellant under Section 302 IPC cannot be sustained and he is entitled for benefit of doubt. 25. In the result, the appeal is allowed. We are of the view that the conviction of the appellant under Section 302 IPC cannot be sustained and he is entitled for benefit of doubt. 25. In the result, the appeal is allowed. The conviction and sentence of the appellant under Section 302 IPC are set aside and the appellant is acquitted of the above charge giving him benefit of doubt. He is in jail. He be set at liberty forthwith, if not required in any other case. Appeal Allowed.