Research › Search › Judgment

Rajasthan High Court · body

2016 DIGILAW 1206 (RAJ)

Sheoji @ Shiv Prasad v. State of Rajasthan

2016-08-22

PRASHANT KUMAR AGARWAL

body2016
JUDGMENT : Prashant Kumar Agarwal, J. 1. Heard learned counsel for the parties. 2. The accused-petitioner has filed this criminal revision petition under Section 397 read with Section 401 Cr.P.C. against the order dated 9.12.2015 passed by the Special Judge (NDPS Cases), Jhalawar in Criminal Appeal No. 82/2015 whereby the learned Appellate Court while dismissing the appeal jointly filed by the petitioner and co-accused Shri Jakhir Hussain under Section 374 Cr.P.C. affirmed and upheld the judgment and order dated 26.10.2015 passed by the Judicial Magistrate Khanpur (District Jhalwar) in Criminal Case No. 407/2002 whereby the learned trial Court convicted the petitioner and co-accused for offence under Section 394 IPC and sentenced each of them to simple imprisonment for three years and a fine of Rs. 5,000/-, in default thereof to further undergo simple imprisonment for six months, for offence under Section 323 IPC and sentenced each of them to simple imprisonment for six months and a fine of Rs. 1,000/-, in default thereof to further undergo simple imprisonment for 15 days and also convicted them for offence under Section 341 IPC and sentenced each of them to simple imprisonment for one month and a fine of Rs. 500/-, in default thereof to further undergo simple imprisonment for seven days. Learned trial Court further directed that all the substantive sentences would run concurrently. 3. Brief relevant facts for the disposal of this petition are that for an incident allegedly occurred on 15.7.2002 at about at 9:15 pm in which the complainant-Shri Dev Karan was looted by two unknown persons and he also received injuries. FIR No. 261/2002 for offences under Sections 341, 307 and 394 IPC was registered at Police Station Khanpur on the basis of a 'Parcha Bayan' of the complainant recorded on the same day at about 11.30 pm when he was under treatment at Khanpur Hospital. After investigation, charge-sheet was filed against the petitioner and co-accused Shri Jakhir Hussain for the offences under Sections 341, 323 and 394 IPC mainly on the ground that both of them were identified by the complainant during the text identification parade as the persons involved in the incident. It was also the case of the prosecution that recovery was also made from the accused. 4. In support of the petition, learned counsel for the petitioner submitted as below. It was also the case of the prosecution that recovery was also made from the accused. 4. In support of the petition, learned counsel for the petitioner submitted as below. (i) During the course of trial i.e. when the complainant was examined as witness steps were not taken by the prosecution for the identification of the petitioner and co-accused by the complainant and in absence of such identification before the Court during trial, their identification by complainant as a person involved in the incident in test identification parade held during investigation carries no evidentiary value as it is a well settled legal position that the substantive evidence is the evidence of identification in Court and the test identification parades do not constitute substantive evidence and these parades at the most provide corroboration to the identification by the witness in Court. (ii) In the present case, the Magistrate who conducted the test identification parade was not examined as witness during trial and in absence of his evidence, the identification memos Exhibit P-14 and Exhibit P-15 cannot be said to have been proved, more particularly in view of the fact that these memos were not proved even by the complainant during his examination-in-chief. (iii) The learned Appellate Court has wrongly held that as per the provisions of Section 291-A Cr.P.C., it was not necessary for the prosecution to produce the Magistrate in Court as witness to prove these memos and they are admissible in evidence without their formal proof. The incident is of the year 2002 whereas the aforesaid section was inserted in Criminal Procedure Code in the year 2006 and therefore, it is not applicable to the present case as it has no retrospective effect. Non-production of the Magistrate as witness during trial deprived the accused-petitioner of his valuable right to cross-examine him. (iv) It was the duty of the prosecution to ensure that the statement of the complainant is recorded in the Court in the presence of the accused in a case in which question of his identification by a witness is directly involved and the prosecution cannot be allowed to contend in the present case that the accused-petitioner was not produced in Court from jail when the complainant was examined. 5. 5. In support of his submissions, learned counsel for the petitioner has relied upon the following cases: Irshad @ Risal v. State of Rajasthan, reported in 2006 (3) WLC (Raj.) 761, Sukhdev Singh v. State of Haryana, reported in (2013) 2 SCC 212 and Malkhan Singh and Others v. State of M.P. reported in (2003) 5 SCC 746 . 6. On the other hand, it was submitted by the learned Public Prosecutor that both the Courts below after considering the evidence available on record and the relevant legal provisions have rightly held the petitioner guilty for offences for which he was charged and tried and there are no reason to interfere in the same. It was further submitted that the petitioner and co-accused could not be identified during trial by the complainant as the were not produced in the Court from judicial custody and, therefore, undue benefit cannot be given to the petitioner merely on that account. 7. I have considered the submissions made on behalf of the respective parties and the evidence available on record as well as the relevant legal provisions and the case law relied upon on behalf of the petitioner. 8. I fully agree with the learned counsel for the petitioner that in absents of identification of the petitioner by the complainant as a person involved the incident in the Court when he was examined as a witness, It cannot is held that the petitioner was one of the persons involved in the incident as it is well settled legal position that the substantive evidence is the evidence of identification in Court and the test identification parade at the most provides corroboration to the identification by the witness in Court. However, in the present case no steps were taken by the prosecution to prove the fact identification of petitioner and co-accused by the complainant in test identification parade and even the Magistrate, who held the parade was not produced as witness during trial. However, in the present case no steps were taken by the prosecution to prove the fact identification of petitioner and co-accused by the complainant in test identification parade and even the Magistrate, who held the parade was not produced as witness during trial. In the present case, as the identification the petitioner and the co-accused by the complainant during trial before Court was essential to prove their involvement in the incident, it was the duty of the prosecution to seek adjournment for that purpose if the petitioner and co-accused were not present before the trial Court on 29.3.2012, the day on which the complainant was examined as a witness or the counsel for them should have been asked whether he disputes their identity or not, but admittedly it was not done. Now, the prosecution cannot be allowed to contend that the petitioner could not identified by the complainant before Court during trial by the reason that he was not present when the complainant was examined as witness. The petitioner cannot be blamed for his absence before the Court as he was in judicial custody at that time and he was not produced from the jail. So far as recovery of a black coloured purse at the instance of the petitioner is concerned, it, apart from being doubtful, is of no value as no evidence was collected during investigation to show that it is the same purse which was allegedly snatched from the complainant in the incident. The recovered purse was neither produced before the Court nor it was got identified by the complainant during trial to show that it is the same purse which was snatched from him. 9. It is thus clear that no legal evidence at all is available on record showing involvement of the petitioner in the incident, but both the Courts below without properly considering the matter convicted and sentenced the petitioner. 10. Consequently, the revision petition is allowed and the judgment and order dated 9.12.2015 and the judgment and order dated 26.10.2015 passed by the Judicial Magistrate Khanpur (District Jhalwar) in Criminal Case No. 407/2002 to the extent of the petitioner are set aside and the accused-petitioner Sheoji @ Shiv Prasad S/o Kanhaiyalal is acquitted from all the offences for which he was convicted. Presently, the petitioner is undergoing sentence. He is directed to be released immediately, if not required in any other case. 11. Presently, the petitioner is undergoing sentence. He is directed to be released immediately, if not required in any other case. 11. Before parting with, I consider it my duty to observe that the petitioner has been acquitted by this Court in the present case as the trial was not properly conducted by the concerned Public Prosecutor. As already found during trial neither the petitioner and co-accused were got identified by the complainant nor the memos prepared about test identification parade were got proved from him. It was a huge lapse on the part of Public Prosecutor, who conducted the trial requiring necessary action by the competent authority. The office is directed to send a copy of this order to the Director (Prosecution) Secretariat, Jaipur for information and necessary action.