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2013 DIGILAW 108 (CHH)

MUNNA @ CHHOTE MUNNA v. STATE OF C. G.

2013-03-15

Radhe Shyam Sharma, Sunil Kumar Sinha

body2013
JUDGMENT Sunil Kumar Sinha, J. 1. These appeals are directed against the judgment dated 11th of August, 2009 passed in Sessions Trial No. 286/2005 by the Fourth Additional Sessions Judge (FTC), Ambikapur, District (Surguja). By the impugned judgment, Accused- Munna (A-I), Iliyajar Kujur (A-3), Gadna (A-4) and Somar Sai (AS) have been convicted under Sections 302/34; 394/397/34 and 460/34 IPC and sentenced to undergo life imprisonment, R.I. for 10 years and R.I. for 10 years with fine sentences under each count. Accused- Khiru (A-2) has been convicted under Sections 302/120-B, 394/397/120-B and 460/l20-B IPC and sentenced to undergo life imprisonment, R.I. for 10 years and R.1. for 10 years with fine sentences. The sentences awarded to all the accused persons have been directed to run concurrently. 2. The facts, priefly stated, are as under : 2.1 On 14.10.2004 at about 8 p.m., Preetlal (PW -2), his wife Paanpati (PW -19), parents - Ram Sai and Itwari (two Deceased persons) and other family members were present in his house. Four unknown persons entered into their house having Lathies etc., in their hands. Firstly they asked for meals and thereafter they demanded money. When the inmates of the house denied to give them money they assaulted Ram Sai (Deceased) on which Ram Sai disclosed that Rs.10,000/- was kept by him. He told the place and the said amount was taken by those persons. The assailants tied the hands of inmates of the house and kept them in a different room, however, they took away the two Deceased persons namely- Ram Sai and Itwari Bai and locked the house from outside. The inmates of the house any how untied themselves and a male member came out from the house by breaking the roof in the morning. When they made a search in the nearby area, they found that the dead bodies of two Deceased persons namely - Ram Sai and Itwari Bai were lying near the graveyard of the village. They had sustained multiple serious injuries. Preetlal (PW-2) lodged the First Information Report (Ex-P-2) against four unknown persons on 15.10.2004. 2.2 The Investigating Officer reached to the village, gave notice to the Panchas and prepared inquest(s) (Ex-P-13 & P-14) on the dead bodies of the two Deceased. The dead bodies were sent for postmortem. The postmortem examinations were conducted by Dr. Preetlal (PW-2) lodged the First Information Report (Ex-P-2) against four unknown persons on 15.10.2004. 2.2 The Investigating Officer reached to the village, gave notice to the Panchas and prepared inquest(s) (Ex-P-13 & P-14) on the dead bodies of the two Deceased. The dead bodies were sent for postmortem. The postmortem examinations were conducted by Dr. Kamlesh Kumar (PW-9), who found multiple serous injuries on the dead bodies of the Deceased and opined that they had died homicidal death. The postmortem reports are Ex-P-17 and Ex-P-18. 2.3 In further investigation, on 28.02.2005, Munna (A-I) was arrested and was put for identification. He was identified by Preetlal (PW-2). His TIP memo is Ex-P-2. His Memorandum statement (Ex-P-8) under Section 27 of the Evidence Act was recorded and knife and Axe etc., were seized at his instance vide seizure memo Ex-P-9. 2.4 On 27.04.2005, I1iyajar (A-3) was taken into custody. He was also put for identification and was identified by Preetlal (PW2). His identification memo is Ex-P-3. Memorandum statement (Ex-P-5) of Iliyaja (A-3) was also recorded on 01.05.2005 and a Lathi was seized from his possession vide seizure memo ExP-6. 2.5 Other Accused persons namely- Khiru (A-2) was arrested on 01.03.2005; Gadna (A-4) on 27.08.2005; and Somar Sai (A-5) on 04.10.2006. According to the prosecution, Gadna (A-4) and Somar Sai (A-5) were the other two persons along with Munna (A-1) and Iliyajar (A-3), who had entered into the house of complainant- Preetlal (PW-2), but they were not put to identification. The prosecution came with the case that four assailants i.e. Munna (A-1), Iliyajar (A-3), Gadna (A-4) and Somar Sai (A-5) had entered into the house of the complainant and have committed Doketi of Rs.10,000/- and they had taken the two Deceased persons with them, who were committed to homicidal death and their dead bodies were found in the next morning. The case against Khiru (A-2) was that he was party to the criminal conspiracy and in fact he had called the above four accused persons for commission of murder of Deceased persons. 2.6 The learned Sessions Judge relied on the testimonies of Preetlal (PW-2), who identified all the accused persons on dock. The case against Khiru (A-2) was that he was party to the criminal conspiracy and in fact he had called the above four accused persons for commission of murder of Deceased persons. 2.6 The learned Sessions Judge relied on the testimonies of Preetlal (PW-2), who identified all the accused persons on dock. The Sessions Judge also relied on the testimonies of Muklu (PWI), Bhoti Ram (PW-3) and Bechan Ram (PW-8) and held that it was proved beyond all reasonable doubts that the above four accused persons namely - Munna (A-l), lliyajar (A-3), Gadna (A-4) and Somar Sai (A-5) had entered into the house of the Deceased and had committed the above offences, and Khiru (A-2) was a party to the criminal conspiracy. Therefore, the accused persons were convicted and sentenced as above. 2.7 We have been told by the counsel for the State that as per the communication from jail authorities Gadna (A-4) is also suffering the above sentences and is in jail. Gadna (A-4) has not filed any appeal. Registry has also reported that he has not filed any appeal. Thus, only four accused persons namely Munna (A-1), Khiru (A-2), Iliyajar (A-3) and Somar Sai (A-5) are before us. 3. Learned counsel for the Appellants have argued that the two accused persons i.e. Gadna (A-4) and Somar Sai (A-5) were not put for identification; they have been directly identified by Preetlal (PW-2) in the court after a very long time; there is no seizure from their possession, therefore, their conviction on the dock identification simplicitor cannot be sustained. About Munna (A1) and Iliyajar (A-3), they have argued that the incident took place in a dark night, therefore, it was not possible for the inmates of the house to identify even these two accused persons. About Khiru (A-2), they have argued that there is no evidence of criminal conspiracy. Khiru (A-2) has been dragged in the matter on the evidence of Muklu (PW-1), Bhoti Ram (PW-3) and Bechan Ram (PW-8), who have deposed that they had seen four accused persons going to the house of Khiru (A-2) one day prior to the incident. According to the counsel for the Appellants, these three witnesses namely Muklu (PW-1), Bhoti Ram (PW-3) and Bechan Ram (PW-8) were not reliable witnesses. 4. On the other hand, Mr. According to the counsel for the Appellants, these three witnesses namely Muklu (PW-1), Bhoti Ram (PW-3) and Bechan Ram (PW-8) were not reliable witnesses. 4. On the other hand, Mr. N.K. Mehta, Panel Lawyer, appearing on behalf of the State, has opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard counsel for the patiies. 6. Preetlal (PW-2) deposed that on the fateful day at about 8 p.m., he was present in his house. Other family members including his parents were also present. The four accused persons, whom he had identified on the dock, came to their house and demanded food and money. When the money was denied, one of them had assaulted his father then his father told the place where the money was kept, and they took Rs.15,000/- from that place. Thereafter, his father and mother (Deceased persons) were forcibly taken by the four accused persons i.e. Munna (A-I). Iliyajar (A-3), Gadna (A-4) and Somar Sai (A-5) and the door of the house was locked from outside. In the morning, when they searched they found that the dead bodies of their parents were lying near the graveyard of the village. He also admitted that he had identified the two accused persons i.e. Munna (A-1) and Iliyajar (A-3) in the Test Identification Parade. 7. Learned counsel for the Appellants have argued that in the facts and circumstances of the case, if the TIP was not conducted for the other accused persons, conviction based on the dock-identification itself cannot be sustained. 8. In Mulla and Another Vs. State of Uttar Pradesh 2010 (3) SCC 508, the Supreme Court held in para 55 as under : 55. The identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. First is to enable the witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. Therefore, the following principles regarding identification parade emerge : (1) an identification parade ideally must be conducted as soon as possible to avoid any mistake on the part of witnesses; (2) this condition can be revoked if proper explanation justifying the delay is provided; and (3) the authorities must make sure that the delay does not result in exposure of the accused which may lead to mistakes on the part of the witnesses." 9. Referring to various other judgments and dealing with them in other paragraphs, it was further held that failure to hold test identification parade does not make the evidence of identification in Court inadmissible, rather than the same is very much admissible in law. Where identification of accused person by the witnesses is made for the first time in Court, it should not form the basis of conviction. Therefore, the principle is that if the test identification parade has not been conducted during the course of investigation, the dock identification shall not be inadmissible only on that account. However, if the accused persons are identified by the witnesses for the first time in the Court, it may not form the basis of their conviction and other circumstances in relation to correct identification of the accused persons have to be looked into by the Court for coming to a definite conclusions. So far as the case of accused - Munna (A1) and Iliyajar (A-3) is concerned, they were arrested on 28.01.2005 and 27.04.2005. Munna (A-1) was put to identification on the very same day and was identified by Preetlal (PW-2), and Iliyajar (A-3) was put to identification on 10.05.2005 and he was also identified by him in the TIP. These two accused persons then were also identified by Preetlal (PW-2) on dock. 10. Preetlal was cross-examined at length by the defence, but nothing material could be brought in his cross-examination on which his testimony regarding identification of above 2 accused persons i.e. Munna (A-1) and lIiyajar (A-3) may be discarded. These two accused persons then were also identified by Preetlal (PW-2) on dock. 10. Preetlal was cross-examined at length by the defence, but nothing material could be brought in his cross-examination on which his testimony regarding identification of above 2 accused persons i.e. Munna (A-1) and lIiyajar (A-3) may be discarded. Thus, it was proved that Preetlal (PW-2) had identified these two accused persons in the TIP and he also identified them in the Court, and there can be hardly any doubt regarding participation of these two accused persons. 11. So far as Gadna (A-4) and Somar Sai (A-5) are concerned, as we have already stated, they were arrested on 27.08.2005 and 04.10.2006, but were never put for identification. They were directly identified by Preetlal (PW-2) in his Court evidence during the trial. Preetlal (PW-2) was examined in the court on 24.11.2005 and after arrest of Somar Sai (A-5) on 28.04.2009 as he was later on arrested. That means he identified the above two accused persons after about more than 1 year and 4 years and 3 months respectively. The incident took place in the night at about 8 p.m., on 14.10.2004 in a remote village. It comes in the evidence that one small Chimni was burning at the time of the incident. These two accused persons were unknown to Preetlal (PW-2). According to him, he had never seen them prior to the alleged incident. The active role was played by Munna (A-1) and Iliyajar (A-3). They were the main persons who had assaulted his father, thus, there was no reasonable opportunity with Preetlal (PW-2) to properly identify these two accused or even to see their faces in the dim light of the Chimni. Therefore, their dock identification after more than 1 year and 4 years appears to be unreasonable. 12. Apart from the above evidence of identification the Sessions Judge has relied on the evidence of Muklu (PW-1), Bhoti Ram (PW-3) and Bechan Ram (PW-8). Muklu (PW-1) deposed that one day prior to the incident, the four accused persons i.e. Munna (A-I). Iliyajar (A-3), Gadna (A-4) and Somar Sai (A-5) came to his house. Out of them, he had identified Somal' Sai (A5), they were demanding place for stay in the village. Muklu (PW-1) deposed that one day prior to the incident, the four accused persons i.e. Munna (A-I). Iliyajar (A-3), Gadna (A-4) and Somar Sai (A-5) came to his house. Out of them, he had identified Somal' Sai (A5), they were demanding place for stay in the village. The above four accused persons took their meals and stayed there in the night and on the next morning he took the accused persons to the house of Khiru (A-2). Somar Sai (A-5) was nephew of Khiru (A-2). According to this witness Munna (A-1) was saying him to take them to the house of Khiru (A-2). Thus, according to him, Somar Sai and other accused persons were not knowing the house of Khiru (A-2). If Somar Sai (A-5) was nephew of Khiru (A-2), how he would not known the house of his uncle, Khiru (A-2). Therefore, evidence of Muklu (PW-1) does not appear to be correct. We are of the view that the Sessions Judge was not justified in placing reliance of evidence of Muklu (PW-1) that the four accused persons had visited his house and they had stayed in his house, they were saying him to show the house of Khiru (A-2) and they took meals in their house and then he showed them the house of Khiru (A-2). 13. Bhoti Ram (PW-3) has also been relied by Sessions Court. Bhoti Ram (PW-3) is son of Muklu (PW-1). His entire evidence is hear-says. According to him, whatever he could come to know that was from his father Muklu (PW -1), therefore, his evidence was of no use for the prosecution. 14. Bechan Ram (PW-8) deposed that in the evening when there was some darkness, he had met accused persons in the way. He had asked the accused persons that where they were going, on which they said that they were going to the house of Khiru (A-2). Thereafter, on the next day, he heard about the murder of two deceased persons. The above four accused persons were not known to Bechan Ram (PW-8). Bechan Ram (PW-8) claims that when he met them in the evening, he casually asked them as to where they were going, then they had said that they were going to the house of Khiru (A-2). How such occasion occurred for Bechan Ram (PW-8) to ask from the accused persons as to where they were going? Bechan Ram (PW-8) claims that when he met them in the evening, he casually asked them as to where they were going, then they had said that they were going to the house of Khiru (A-2). How such occasion occurred for Bechan Ram (PW-8) to ask from the accused persons as to where they were going? Bechan Ram (PW-8) himself has deposed that he met the accused persons in the night. Firstly it does not appear to be reasonable that he would have asked them as above. Even if we take that he would have asked such question to the strangers, how he could have identified them in the night. He never deposed that he had identified them and he was able to identify them in the said situation. None of the accused persons were put for identification by Bechan Ram (PW-8). The above evidence of Bechan Ram (PW-8), therefore, appears to be suspicious. We are of the view that the learned Sessions Judge was not justified in holding that prior to the incident the four accused persons i.e. Munna (A-1), Iliyajar (A-3), Gadna (A-4) and Somar Sai (A-5) were seen by Muklu (PW-l), Bhoti Ram (PW3) and Bechan Ram (PW-8) and their evidence was corroborative evidence in this case. 15. On due consideration of the entire material on record, we find that accused-Munna (A-1) and Iliyajar (A-3) were duly identified by Preetlal (PW2) during the trial and their identification was corroborated by the evidence of test identification parade and the identity of the two accused persons Munna (A-1) and Iliyajar (A-3) was rightly held to be established by the Sessions Court. 16. So far as other two accused persons namely - Gadna (A-4) and Somar Sai (A-5) are concerned, we are of the view that their identity as the assailants was doubtful and the finding to this effect deserves to be set-aside. 17. Preetlal (PW-2) deposed that the four assailants had taken his parents in the night, who were found dead in the morning. Out of the four assailants, identity of two was established as Munna (A-I) and Iliyajar (A-3). They were lastly seen with the Deceased in the night. 17. Preetlal (PW-2) deposed that the four assailants had taken his parents in the night, who were found dead in the morning. Out of the four assailants, identity of two was established as Munna (A-I) and Iliyajar (A-3). They were lastly seen with the Deceased in the night. Therefore, it could easily be held that it was proved that the responsibility to cause the murder of the two Deceased persons was only on the identified accused persons i.e. Munna (A-1) and Iliyajar (A-3) and they can only be held liable for punishment under Section 302/34 IPC. 18. So far as allegations regarding criminal conspiracy is concerned, we hardly find any evidence in this regard. The entire finding of criminal conspiracy is based on the evidence of Muklu (PW-1), Bhoti Ram (PW-2) and Bechan Ram (PW-8). They had seen the above four accused persons and Muklu (PW-1) had taken them to the house of Khiru (A-2). We have already held that these witnesses were not reliable, therefore, in absence of any other evidence I of criminal conspiracy, Khiru (A-2) cannot be convicted in this matter. 19. In the result, Criminal Appeal No. 542/2010 filed on behalf of Iliyajar (A-3) is dismissed and Criminal Appeal No. 772/2009 filed on behalf of Munna (A-1), Khiru (A-2) and Somar Sai (A-5) is partly allowed. While maintaining the conviction and sentences awarded to Appellant- Munna (A-1), the other two Appellants namely-Khiru (A-2) and Somar Sai (A-5) are acquitted of the charges framed against them. 20. As we have already stated that Gadna (A-4) has not filed any appeal. We find his case to be identical to the case of Somar Sai (A-5), whom we have already acquitted. Case of both above accused, Gadna (A-4) and So mar Sai (A-5) stands on same footing. Therefore, the benefit of this judgment and finding can be extended to Gadna (A-4) in light of the decision of Supreme Court in Vajrapu Sambayya Naidu And Others Vs. State of A.P. And Others 2004 (10) SCC 152 and Madhu Vs. State of Kerla 2012 (2) SCC 399 . We therefore, set-aside the conviction and sentences awarded to Gadna S/o Fagu Korwa (A-4) and acquit him of all the charges framed against him. It is stated that Khiru (A-2), Gadna (A-4) and Somar Sai (A-5) are in jail. They be released forthwith, if not required in any other case. Appeals Partly Allowed.