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2013 DIGILAW 194 (CHH)

BALDAU RAM v. STATE OF M. P. (NOW C. G. )

2013-07-02

Radhe Shyam Sharma

body2013
JUDGMENT 1. These appeals are directed against judgment dated 7th February, 1996 passed by Additional Sessions Judge, Khairagarh, Sessions Division Rajnandgaon in Sessions Trial No. 112/1993. By the impugned judgment, accused/appellants Baldau Ram and Suresh Kumar have been convicted and sentenced in the following manner with a direction to run the sentences concurrently: Conviction Sentence Under Section 450 IPC Rigorous imprisonment for 10 years and to pay fine of Rs. 1000/-in default of payment of fine, to further undergo rigorous imprisonment for 6 months Under Section 369 IPC Rigorous imprisonment for 7 years and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo rigorous imprisonment for 6 months Under Section 394/397 IPC Rigorous imprisonment for 7 years and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo rigorous imprisonment for 6 months Under Section 347 IPC Rigorous imprisonment for 1 year and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo rigorous imprisonment for 6 months Co-accused Pundas and Narendra have been acquitted of the charges framed against them. 2. Case of the prosecution, in brief, is as under: On 29-01-1993, at about 2.00 am, complainant Barati Ram (PW-3) was sleeping in the room along with his wife Manbha Bai (PW-4) and his father-in-law Janaram and mother-in-law Ghasan Bai (PW-2) were also sleeping in the adjacent room. At about 2.00 am, 4 unknown persons entered the house of Barati Ram (PW-3) and knocked the door. Having heard the knock, Barati Ram (PW-3) went out of the house from his room through chhappar and called villagers and neighbourers for help. At that time, 4 unknown persons entered the room of Manbha Bai (PW-4) and looted silver kardhan, silver lachhchha, silver ainthi, silver kayan, nagmori and binwa and they assaulted Manbha Bai (PW-4) and Ghasan Bai (PW-2). Manbha Bai (PW-4) and Ghasan Bai (PW-2) sustained injuries on their body and unknown persons also assaulted Janaram. Thereafter, they fled from the house and complainant Barati Ram (PW-3) lodged First Information Report (FIR) (Ex.-P/1) in Police Station Chhui Khadan. Manbha Bai (PW-4), Ghasan Bai (PW-2) and Janaram were sent to Primary Health Center (PHC), Chhui Khadan for medical examination. Manbha Bai (PW-4) and Ghasan Bai (PW-2) sustained injuries on their body and unknown persons also assaulted Janaram. Thereafter, they fled from the house and complainant Barati Ram (PW-3) lodged First Information Report (FIR) (Ex.-P/1) in Police Station Chhui Khadan. Manbha Bai (PW-4), Ghasan Bai (PW-2) and Janaram were sent to Primary Health Center (PHC), Chhui Khadan for medical examination. Doctor Ashok Khare (PW-8) examined Ghasin Bai (PW-2) and gave his report (Ex.-P/5), in which, he found (1) abrasion, 1/4" x 1/6" on right temporal region (2) abrasion on knee, 1/4" x 1/4". He also examined Janaram and gave his report (Ex.-P/6), in which he found contusion, 1/4" x 1/4" over left maxillary region near eye. He also examined Manbha Bai (PW-4) and gave his report (Ex.-P/7), in which he found (1) lacerated wound, 3/4" x 1/4" x 1/6" over right parietal area (2) lacerated wound, 1/2" x 1/4" x 1/6" over left fronto-parietal region. In further investigation, a ladder (sidhi) was seized from Barati Ram (PW-3). Iron sankal and knife were seized from the place of occurrence vide Ex.P/3. One no. of silver lachchha was also seized from the place of occurrence. Memorandum statement of appellant Suresh Kumar was recorded under Section 27 of the Evidence Act vide Ex.-P/9 and at his instance, silver ornaments were seized from him vide Ex.-P/11. Kardhan and lachchha were also seized from appellant Baldau Ram vide Ex.-P/10. A lungi was seized from appellant Baldau Ram vide Ex.-P/13. Spot map was prepared vide Ex.-P/15. After completion of the investigation, charge sheet was filed against the appellants and acquitted co-accused persons in the Court of Judicial Magistrate First Class, Khairagarh, who, in turn, committed the case to the Court of Session, Rajnandgaon, from where it was received on transfer by the Additional Sessions Judge, Khairagarh, Sessions Division Rajnandgaon, who conducted the trial and convicted and sentenced the appellants as mentioned above and acquitted co-accused Pundas and Narendra. 3. Shri F.S. Khare and Shri Ashish Surana, learned counsel for their respective appellant argued that the appellants are falsely implicated. None of them participated in the crime. Barati Ram (PW-3), Ghasan Bai (PW-2) and Manbha Bai (PW-4) did not identify the appellants. The incident took place at about 2.00 am (in midnight). There was no sufficient light to identify the assailants. None of them participated in the crime. Barati Ram (PW-3), Ghasan Bai (PW-2) and Manbha Bai (PW-4) did not identify the appellants. The incident took place at about 2.00 am (in midnight). There was no sufficient light to identify the assailants. Barati Ram (PW-3), Ghasan Bai (PW-2) and Manbha Bai (PW-4) were not in a position to identify the assailants. Learned counsel for the appellants also argued that since it was dark night, therefore, identification was not possible. Hence, conviction of the appellants cannot be sustained. 4. On the other hand, Shri Sandeep Yadav, learned Deputy Government Advocate appearing for the State/respondent in both the appeals, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellants do not warrant any interference by this Court. 5. Having heard rival contentions of the parties, I have perused the record of Sessions Trial No. 112/1993. The conviction of the appellants is based on the evidence of Barati Ram (PW-3), Ghasan Bai (PW-2) and Manbha Bai (PW-4). 6. Barati Ram (PW-3) deposed that on the date of incident, he was sleeping inside the room along with his wife and his father-in-law and mother-in-law were also sleeping in the adjacent room. At that time, someone knocked the door, he asked who was there. They replied that they were barati and they asked for opening the door. He further deposed that he went out of the house through chhappar and shouted for help. He further deposed that the appellants entered his house and they robbed the ornaments from his wife Manbha Bai (PW-4) and Ghasan Bai (PW-2). He further deposed that robbers took his son Janaram along with them. 7. Manbha Bai (PW-4) deposed that 4 persons entered her house and knocked the door. Her husband Barati Ram (PW-3) went out of the house through chhappar and thereafter the appellants entered her room and they took her son Janaram and threatened them and they robbed kardhan and also ornaments of her mother Ghasan Bai (PW-2) and they assaulted them. Ghasan Bai (PW-2) also deposed in similar fashion. 8. Barati Ram (PW-3) deposed that he lodged the FIR (Ex.-P/1) in Police Station Chhui Khadan. He further deposed that he was sent to PHC, Chui Khadan for medical examination. Manbha Bai (PW-4), Ghasan Bai (PW-2) and Janaram were also sent to PHC, Chhui Khadan for medical examination. 9. Ghasan Bai (PW-2) also deposed in similar fashion. 8. Barati Ram (PW-3) deposed that he lodged the FIR (Ex.-P/1) in Police Station Chhui Khadan. He further deposed that he was sent to PHC, Chui Khadan for medical examination. Manbha Bai (PW-4), Ghasan Bai (PW-2) and Janaram were also sent to PHC, Chhui Khadan for medical examination. 9. Doctor Ashok Khare (PW-8) deposed that he examined Ghasan Bai (PW-2) and gave his report (Ex.-P/5), in which he found (1) abrasion, 1/4" x 1/6" on right temporal region (2) abrasion on knee, 1/4" x 1/4". He further deposed that he examined Janaram and gave his report (Ex.-P/6), in which he found contusion, 1/4" x 1/4" over left maxillary region near eye. He further deposed that he also examined Manbha Bai (PW-4) and gave his report vide Ex.-P/7, in which he found (1) lacerated wound, 3/4" x 1/4" x 1/6" over right parietal area (2) lacerated wound, 1/2" x 1/4" x 1/6" over left fronto-parietal region. 10. Barati Ram (PW-3), Ghasan Bai (PW-2) and Manbha Bai (PW-4) deposed that they identified their ornaments. They further deposed that Tahsildar conducted identification of the jewellery/ornaments. In the identification, they identified their jewellery/ ornaments. 11. In the instant case, identification parade was not conducted by the Investigating Officer and the witnesses first time identified the assailants in the Court. In a case, where the witness is a stranger to the accused and he identifies the accused person before the Court for the first time, the Court will not ordinarily accept the identification as conclusive. In the instant case also, the appellants, being not previously known to the witnesses, were stranger to them. 12. In Mulla and another Vs. State of Uttar Pradesh (2010) 3 SCC 508, the Hon'ble Supreme Court observed thus: "41. Now, let us consider the arguments of the learned amicus curiae on the delay in conducting the test identification parade. The evidence of test identification is admissible under Section 9 of the Evidence Act, 1872. The identification parade belongs to the stage of investigation by the police. The question whether a witness has or has not identified the accused during the investigation is not one which is in itself relevant at the trial. The actual evidence regarding identification is that which is given by witnesses in court. The identification parade belongs to the stage of investigation by the police. The question whether a witness has or has not identified the accused during the investigation is not one which is in itself relevant at the trial. The actual evidence regarding identification is that which is given by witnesses in court. There is no provision in CrPC entitling the accused to demand that an identification parade should be held at or before the inquiry of the trial. The fact that a particular witness has been able to identify the accused at an identification parade is only a circumstance corroborative of the identification in court. 44. The necessity for holding an identification parade can arise only when the accused persons are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. 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. 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." 13. In Mahabir Vs. In Mahabir Vs. State of Delhi (2008) 16 SCC 481, the Hon'ble Supreme Court observed thus : "It is trite to say that the substantive evidence is the evidence of identification in court. Apart form 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 general 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. It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in court." 14. In Sampat Tatyaba Shinde Vs. State of Maharashtra AIR 1974 SC 791 , the Hon'ble Supreme Court held that "The evidence of test identification is admissible under Section 9 of the Evidence Act; it is, at best, supporting evidence. It can be used only to corroborate the substantive evidence given by the witnesses in court regarding identification of the accused as the doer of the criminal act. The earlier identification made by the witnesses at the test identification parade, by itself, has no independent value. Nor is test identification the only type of evidence that can be tendered to confirm the evidence of a witness regarding identification of the accused, in court, as the perpetrator of the crime." 15. Now, I shall examine whether the dock identification made by Barati Ram (PW-3), Ghasan Bai (PW-2) and Manbha Bai (PW-4) was reliable and can be made basis for conviction of the appellants. 16. The FIR (Ex.-P/1) was lodged by Barati Ram (PW-3). In the FIR (Ex.-P/1), no specific description of robbers was given and the only description given by Barati Ram (PW-3) regarding the appellants in the FIR (Ex.-P/1) is that the robbers were speaking in chhattisgarhi and they had worn full-pants. 16. The FIR (Ex.-P/1) was lodged by Barati Ram (PW-3). In the FIR (Ex.-P/1), no specific description of robbers was given and the only description given by Barati Ram (PW-3) regarding the appellants in the FIR (Ex.-P/1) is that the robbers were speaking in chhattisgarhi and they had worn full-pants. In the FIR (Ex.-P/1), it is specifically mentioned that due to darkness, Barati Ram (PW-3) could not identify the assailants/ robbers. It appears that Barati Ram (PW-3) could not identify the appellants even by face. 17. Ghasan Bai (PW -2) deposed that it is true that the assailants had covered their faces upto the eyes. It is true that she could not identify the assailants. Manbha Bai (PW-4) did not speak regarding identification of the robbers. Barati Ram (PW-3) also deposed in his cross-examination that it is true that in the FIR (Ex.-P/1) it is mentioned that he could not identify the robbers. 18. The incident took place in the night and the robbers had covered their faces upto the eyes, therefore, it was not possible to identify them due to darkness in the night. Therefore, identification parade of the assailants was essential in this case, but the same was not conducted and no proper explanation was offered by the Investigating Officer therefor. The appellants were stranger to the witnesses, therefore, the dock identification is not conclusive and sufficient to connect the appellants to the crime in question. 19. So far as the identification of jewellery/ornaments is concerned, Ghasan Bai (PW-2) deposed that the ornaments were put on a table and the Tahsildar asked her to identify her ornaments, then she identified her ornaments. Barati Ram (PW-3) deposed that the Investigating Officer deposited the ornaments in school and the ornaments were shown to him and other villagers. Manbha Bai (PW-4) deposed that it is true that identification of ornaments was conducted by the Tahsildar and police officer jointly. It appears that before the identification of the ornaments, the ornaments were shown to prosecution witnesses Barati Ram (PW-3), Ghasan Bai (PW-2) and Manbha Bai (PW-4). Therefore, identification of ornaments becomes doubtful and the identification was conducted in the presence of police officer, therefore, it cannot be used as evidence against the appellants. 20. It appears that before the identification of the ornaments, the ornaments were shown to prosecution witnesses Barati Ram (PW-3), Ghasan Bai (PW-2) and Manbha Bai (PW-4). Therefore, identification of ornaments becomes doubtful and the identification was conducted in the presence of police officer, therefore, it cannot be used as evidence against the appellants. 20. So far as memorandum statement of appellant Suresh Kumar and at his instance, seizure of ornaments are concerned, Sub-Inspector S.P. Bhagat (PW-11) deposed that he recorded the memorandum statement of appellant Suresh Kumar vide Ex.-P/9 and at the instance of appellant Suresh Kumar, the ornaments were seized from him vide Ex.-P/11. Except Sub-Inspector S.P. Bhagat (PW-11), no other independent witnesses were examined by the prosecution. The prosecution did not examine the seizure witnesses. 21. The prosecution examined Sita Ram (PW-6) as witness of extra judicial confession relating to appellant Baldau Ram. Sita Ram (PW-6) deposed that appellant Baldau Ram was sleeping in between hotel and pan thela. On being enquired, he told his name as Baldau Ram. Appellant Baldau Ram had kept a kardhan and lachchha in his pocket. Sita Ram (PW-6) has been examined as a witness of extra judicial confession, but he did not speak regarding confessional statement of appellant Baldau Ram. He simply stated that appellant Baldau Ram told him that an auto-puller had gone for robbery and they left him in the village alone. 22. Looking to the evidence of Sita Ram (PW-6), it is not established that appellant Baldau Ram made extra judicial confession before him and the evidence of Sita Ram (PW-6) is not sufficient to hold that appellant Baldau Ram was also present along with other robbers. The ornaments seized from the appellants were common articles and, therefore, mere recovery of the ornaments is not sufficient to connect the appellants to the crime in question. 23. Thus, taking cumulative effect of the evidence adduced by the prosecution with respect to the dock identification parade, I am of the considered opinion that the same does not inspire full confidence and the recovery of ornaments from the appellants does not connect the appellants with the crime in question. Therefore, benefit of doubt goes to the accused persons/appellants. 24. Therefore, the impugned judgment of conviction and sentence recorded by the learned Additional Sessions Judge cannot be sustained. 25. In the result, both the appeals are allowed. Therefore, benefit of doubt goes to the accused persons/appellants. 24. Therefore, the impugned judgment of conviction and sentence recorded by the learned Additional Sessions Judge cannot be sustained. 25. In the result, both the appeals are allowed. The conviction and sentence awarded to the appellants under Sections 450, 369, 394/397 and 347 IPC are set aside and the appellants are acquitted of the charges framed thereunder. Appeals Allowed.