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2013 DIGILAW 202 (CHH)

ARUN KUMAR v. STATE OF C. G.

2013-07-08

Radhe Shyam Sharma

body2013
JUDGMENT 1. Since both these appeals arise out of a common judgment, they are disposed of by this common judgment. 2. These appeals are directed against judgment dated 31.12.2009 passed by Sessions Judge, Korea (Baikunthpur) in Sessions Trial No. 83 of 2008. By the impugned judgment, the learned Sessions Judge convicted appellants Arun Kumar and Mohd. Islam @ Baban under Sections 450 and 394 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.500/-, rigorous imprisonment for ten years and to pay fine of Rs.500/-, respectively; in default of payment of fine, to further undergo simple imprisonment for three months for each count; with a direction to run the sentences concurrently. 3. Case of the prosecution, in brief, is as under: Tirath Gupta was President of Nagar Panchayat, Baikunthpur. He along with his wife had gone to Apollo Hospital, Bilaspur for his medical treatment. Peeran Bee (PW-8) - mother-in-law of Tirath Gupta, Imran @ Pinku and Dayashankar @ Guddu were in the house of Tirath Gupta, which was situated at Dabripara, Baikunthpur. On 11.4.2006 at about 8.00 pm, call bell of the house of Tirath Gupta rang and when Dayashankar @ Guddu (PW-9) opened the door, two persons entered the house and tied the hands of Dayashankar @ Guddu (PW-9) and caused him to lay on the cot. At that time, Imran @ Pinku came out and the accused persons tied his hands and legs and thereafter they threatened and assaulted Peeran Bee (PW-8) and Dayashankar @ Guddu (PW-9) and robbed gold and silver ornaments and cash from the house of Tirath Gupta. Asst. Sub-Inspector Tejnath Singh (PW-12) reached to the place of occurrence and Peeran Bee (PW-8) lodged dehati nalishi (Ex-P/8). Thereafter regular FIR (Ex-P/8) was recorded in Police Station Baikunthpur for offence under Section 450 and 394 IPC. In further investigation, Peeran Bee (PW-8) was sent to Govt. District Hospital for medical examination. Dr. D.K. Chikanjuri (PW-1) examined her and gave his report (Ex-P/1), in which he found abrasion of 1½" x 1" reddish in colour at outer aspect of right wrist with defused swelling (2) defused tenderness on left ear (3) defuse tenderness on left cheek (4) tenderness on left side of the neck (4) complained pain over left ribs. Dayashankar @ Guddu (PW-9) was also sent to District Hospital, Baikunthpur for medical examination and Dr. Dayashankar @ Guddu (PW-9) was also sent to District Hospital, Baikunthpur for medical examination and Dr. S.K. Gupta (PW-2) examined him and gave his report (Ex-P/2), in which he found two abrasions over the right forearm of 1 x ½ cm and 2 x ½ cm red in colour, complaint of pain over left wrist. No external injury was seen. JLR Paikra -Tahsildar (PW-4) conducted identification of appellant Mohd. Islam @ Baban vide identification memo (Ex-P/4) and Peeran Bee (PW-8), Imran @ Pinku and Dayashankar @ Guddu (PW-9) identified appellant Mohd. Islam @ Baban in test identification parade. Nayab Tahsildar Amit Kumar Gupta (PW-5) conducted the identification of appellant Arun Kumar and he was also identified by Peeran Bee (PW-8). After completion of the investigation, charge sheet was filed against the appellants in the Court of Chief Judicial Magistrate, Baikunthpur, who, in turn, committed the case to the Court of Session, Korea (Baikunthpur), who conducted the trial and convicted and sentenced the appellants as mentioned above. 4. Mr. Mateen Siddiqui and Mr. Rishi Rahul Soni, learned counsel appearing for the respective appellant submit that the appellants have been falsely implicated. None of them participated in the crime. Identification of the appellants is highly suspicious. The incident took place in the night, therefore, it was not possible to identify them. Peeran Bee (PW-8) was, on the date of incident, an old lady of 80 years age, therefore, it was not possible for her to identify the appellants in the night. Looking to the evidence of Dayashankar @ Guddu and Imran @ Pinku, the appellants were shown to the prosecution witnesses before the identification parade. Therefore, identification parade is suspicious and cannot be based for conviction. Learned counsel for the appellants placed reliance on Moushir Khan Vs. State of M.P. (2010) 2 SCC 748 . 5. Mr. Sandeep Yadav, learned Dy. Government Advocate for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Sessions Judge do not warrant any interference by this Court. 6. Having heard rival contentions of the parties, I have perused the record of Sessions Trial No.83/08. 7. In Mulla and another Vs. State of Uttar Pradesh (2010) 2 SCC 748 , 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. 6. Having heard rival contentions of the parties, I have perused the record of Sessions Trial No.83/08. 7. In Mulla and another Vs. State of Uttar Pradesh (2010) 2 SCC 748 , 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. There is no provision in Cr.P.C. 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 witness 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 witness 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. 8. In Mahabir Vs. State of Delhi 2008 16 SCC 481, the Hon'ble Supreme Court observed thus: 13. "7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart 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 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." 9. 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. 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." 10. Peeran Bee (PW-8) deposed that she was residing with her daughter and son-in-law Tirath Gupta in their house. On the date of incident, at about 8 - 8.30 p.m., she was sitting in the house. Her daughter and son-in-law had gone to Apollo Hospital, Bilaspur for medical treatment. At that time, Imran @ Pinku (PW-3) and Dayashankar @ Guddu (PW-9) were present in the house and Dayashankar @ Guddu was having his food. She further deposed that at about 8.30 p.m., call bell rang and Dayashankar @ Guddu (PW-9) opened the door. Both the appellants entered the room and asked for water. She gave water to them and thereafter the appellants enquired about Tirath Gupta and other family members. Thereafter, the appellants caught Dayashankar @ Guddu (PW-9) and tied up his hands and threw him on the cot. At that time, the appellants were having cutta with them. She further deposed that the appellants robbed her jhumka, mangalsutra, payal and other gold ornaments. They also snatched gold ring and bangles from her. She also sustained injury. At that time, Imran @ Pinku came to the house and the appellants caught him also. The appellants slapped Peeran Bee (PW-8) and thereafter fled from there. Thereafter, Dayashankar @ Guddu (PW-9) came out and shouted for help and on hearing this neighbourers came there. Police also reached to the place of occurrence. 11. Imran @ Pinku (PW-3) and Dayashankar @ Guddu (PW-9) also deposed that the appellants entered the house and they tied Dayashankar @ Guddu (PW-9) and threw him on the cot and tied Imran @ Pinku (PW-3) on the chair and thereafter they robbed the ornaments of Peeran Bee (PW-8). They further deposed that Dayashankar @ Guddu (PW -9) came out of the house and shouted for help. Neighbourers and people of nearby locality gathered there. The appellants fled from there. Thereafter, police reached to the place of occurrence. 12. They further deposed that Dayashankar @ Guddu (PW -9) came out of the house and shouted for help. Neighbourers and people of nearby locality gathered there. The appellants fled from there. Thereafter, police reached to the place of occurrence. 12. Tejnath Singh (PW-12) deposed that on 11.4.2006 he was posted as Asst. Sub-Inspector at Police Station Baikunthpur. On that date, Peeran Bee (PW-8) lodged dehati nalishi (Ex-P/8). He further deposed that he sent Peeran Bee (PW-8), Dayashankar @ Guddu (PW-9) and Imran @ Pinku (PW-3) for medical examination to District Hospital, Baikunthpur. 13. Arjun Ram (PW-6) deposed that on 11.4.2006 he was posted as Asst. Sub-Inspector in Police Station, Baikunthpur. On that date, he registered Crime No.72/06 (FIR) for the offence punishable under Sections 450 and 394 IPC vide Ex-P/5. 14. Peeran Bee (PW-8) deposed that she had gone to District Jail, Baikunthpur for identification and she identified appellant Arun Kumar and further she went to Manendragarh Jail and there she identified appellant Mohd. Islam @ Baban. Dayashankar@ Guddu (PW-9) also deposed that identification parade was conducted in Manendragarh Jail. Imran @ Pinku (PW-3) also deposed that he went to Baikunthpur and Manendragarh Jails and identified the appellants in the identification parade. 15. Tahsildar JLR Paikra (PW-4) deposed that he conducted the identification proceeding (Ex-P/4) which bears his signature. He further deposed that identification parade was conducted in Sub-Jail Manendragarh. Peeran Bee (PW-8), Imran @ Pinku (PW-3) and Dayashankar @ Guddu (PW-9) identified appellant Mohd. Islam @ Baban. He further deposed that Peeran Bee (PW-8) stated that appellant Md. Islam @ Baban had entered her house and other witnesses Imran @ Pinku (PW-3) and Dayashankar @ Guddu (PW-9) also identified appellant Md. Islam @ Baban in the identification parade and they stated that the appellant entered the house and robbed ornaments. 16. Peeran Bee (PW-8) in para 16 of her cross examination specifically deposed that she went to Baikunthpur and Manendragarh Jails and identified the appellants. It is wrong to say that the police personally brought the appellants to her house. It is also wrong to say that the appellants were shown to her before conducting identification parade. 17. Imran @ Pinku (PW-3) in para 13 of his cross examination deposed that they went to the jail and met the Tahsildar and the Tahsildar gave him notice. It is also wrong to say that the appellants were shown to her before conducting identification parade. 17. Imran @ Pinku (PW-3) in para 13 of his cross examination deposed that they went to the jail and met the Tahsildar and the Tahsildar gave him notice. He further deposed in para 15 of his cross examination that it is wrong to say that photographs of the appellants were shown to him before the identification parade. He further deposed that 8-9 persons were also joined along with the appellants in the test identification parade. 18. Nayab-Tahsildar Amit Kumar Gupta (PW-5) deposed that on 10.02.08 he was posted as Nayab-Tahsildar in Tahsil Office Baikunthpur. On that date, he conducted test identification parade in Baikunthpur Jail relating to Crime No. 72/06 of Police Station Baikunthpur vide Ex-P/3. In the test identification parade, Peeran Bee (PW-8), Imran @ Pinku (PW-3) identified appellant Arun Kumar. Peeran Bee (PW-8) and Imran @ Pinku (PW-3) specifically deposed that they identified appellant Arun Kumar in the test identification parade. It is therefore, clear that test identification parades were conducted during the course of investigating the crime. So far as test identification parade is concerned, it does not constitute a substantive evidence. One of its purpose is to help the investigating agency with an assurance that progress in the investigation is in right direction. An identification parade is essentially governed by Section 162 Cr.P.C. and its further purpose is to have corroboration of the evidence of the eye witnesses in form of earlier identification. The role of substantive evidence of the identity of the accused comes when a witness gives statement in the Court identifying the accused. 19. Nayab-Tahsildar Amit Kumar Gupta (PW-5) deposed that in the identification parade, Imram @ Pinku (PW-3), Dayashankar @ Guddu (PW-9) did not identify appellant Arun Kumar. 20. If some of the witnesses could not identify the assailants, it does not mean that the evidence of other witnesses would render doubtful. In fact, this depends upon the capability of each witness as also various opportunities which they got to identify the persons and the circumstances in which they get such opportunity. 21. Peeran Bee (PW-8) clearly stated that she identified the appellants. The assailants had not covered their faces and light was present in the house where the assailants entered. In fact, this depends upon the capability of each witness as also various opportunities which they got to identify the persons and the circumstances in which they get such opportunity. 21. Peeran Bee (PW-8) clearly stated that she identified the appellants. The assailants had not covered their faces and light was present in the house where the assailants entered. Since the assailants had not covered their faces, Peeran Bee (PW-8) was having ample opportunity to see their faces and she identified the appellants in the test identification parade and she further identified them during the trial. Dock identification of the above appellants made by Peeran Bee (PW-8) and other witnesses Dayashankar @ Guddu (PW-9) during the trial has been fully corroborated by the two test identification parades conducted during the investigation. On 10.02.2008, Nayab-Tahsildar Amit Kumar Gupta (PW-5) conducted the test identification parade of appellant Arun Kumar and Peeran Bee (PW-8) rightly identified appellant Arun Kumar and second identification parade was conducted by Tahsildar JLR Paikra (PW-4) on 11.022008 of appellant Md. Islam @ Baban and in the said identification parade, appellant Md. Islam @ Baban was rightly identified by the witnesses. 22. The necessity for holding the identification parade can arise only when the accused persons are not previously known to the witnesses and the identification parades are not primarily meant for the Court. They are meant for investigation purpose. The object of conducting a test identification parade is two fold. First is to enable the witness to specify that this is the accused whom they suspect is the real one who has seen by them in connection with the commission of crime. Second is it satisfies the investigating authority that the suspect is the real person to whom the witnesses had seen in connection with the said occurrence. The evidence of test identification is admissible under Section 9 of the Evidence Act and it is the best supporting evidence. 23. The date and time of the incident was on 11.4.2006 at about 8.30 p.m. and dehati nalishi (Ex-P/8) was lodged on 11.4.06 at about 9.15 p.m., i.e., within 45 minutes of the incident. In the FIR, description of the robbers are mentioned. According to the prosecution witnesses, the appellants had not covered their faces. 23. The date and time of the incident was on 11.4.2006 at about 8.30 p.m. and dehati nalishi (Ex-P/8) was lodged on 11.4.06 at about 9.15 p.m., i.e., within 45 minutes of the incident. In the FIR, description of the robbers are mentioned. According to the prosecution witnesses, the appellants had not covered their faces. Peeran Bee (PW-8), Dayashankar @ Guddu (PW-9) specifically deposed that the appellants entered the house of Tirath Gupta and they asked for water and thereafter they enquired about the family members of Tirath Gupta. Therefore, there was sufficient opportunity for Peeran Bee (PW-8) and Dayashankar @ Guddu (PW-9) for identification of the appellants. 24. Peeran Bee (PW-8), Dayashankar @ Guddu (PW-9), Md. Imran @ Pinku (PW-3) specifically deposed that the appellants entered the house of Tirath Gupta and robbed ornaments. Md. Imran @ Pinku (PW-3) specifically deposed that he identified appellants Arun Kumar and Md. Islam in the test identification parade. Peeran Bee (PW-8) and Dayashankar @ Guddu (PW-9) also deposed in similar fashion. 25. Looking to the evidence of the above witnesses, it appears that the appellants entered the house of Tirath Gupta and they robbed gold ornaments of Peeran Bee (PW-8). Therefore, learned Sessions Judge rightly convicted the appellants under Section 394 and 450 IPC and the finding recorded by the learned Sessions Judge does not suffer from any infirmity and illegality and does not call for any interference by this 26. So far as the sentence part is concerned, learned counsel for the appellants submitted that the ornaments were not seized from the appellants and appellant Arun Kumar is in jail since 12.02.08 and appellant Md. Islam @ Baban is in jail since 15.2.08 and the learned Sessions Judge awarded jail sentence for a period of ten years for each offence. Looking to the facts and circumstances of the case, sentences awarded to the appellants are so harsh and ends of justice would be met if the jail sentences awarded to the appellants are reduced to the period already undergone by them. 27. Mr. Sandeep Yadav, learned Dy. Government Advocate for the State/respondent opposed the above argument. 28. So far as the sentence part is concerned, the appellants are convicted for the offence under Sections 450 and 394 IPC. 27. Mr. Sandeep Yadav, learned Dy. Government Advocate for the State/respondent opposed the above argument. 28. So far as the sentence part is concerned, the appellants are convicted for the offence under Sections 450 and 394 IPC. For offence under Section 394 IPC, punishment prescribed is imprisonment for life or rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. For offence under Section 450 IPC, punishment prescribed with imprisonment of either description for a term not exceeding ten years. 29. Looking to the punishment prescribed for offence under Sections 394 and 450 IPC it appears that no minimum sentence is prescribed for both the offences. 30. In the instant case, robbed ornaments were not seized from the appellants and appellant Arun Kumar is in jail since 12.02.08 and appellant Md. Islam @ Baban is in jail since 15.02.08 and both the appellants are in jail for about 5 years and 4 months. Looking to the facts of the case, ends of justice would be met if the appellants are awarded jail sentence for a period of seven years. 31. Therefore, both the appeals are partly allowed. The conviction awarded to the appellants under Sections 450 and 394 IPC is upheld, however, the jail sentences awarded to them thereunder are reduced from ten years to seven years with a direction to run the sentences concurrently. The appellants are entitled for set off under Section 428 Cr.P.C. The sentence of fine awarded to the appellants by the learned Sessions Judge is affirmed. Appeal Partly Allowed.