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2016 DIGILAW 235 (JHR)

Gopal Singh v. State of Jharknand

2016-02-01

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : These criminal appeals have been directed against the judgment of conviction and order of sentence dated 25th August, 2007 and 30th August, 2007, respectively, passed by learned Sessions Judge, Giridih in connection with Sessions Trial No. 250 of 2004, arising out of G.R. No. 358 of 2004, corresponding to Gawan P.S. Case No. 6 of 2004 whereby the appellants have been held guilty for the offences punishable under Sections 364/34 and 323/34 IPC, whereas the appellants, namely, Gopal Singh and Prasadi Yadav have further been held guilty for the offence punishable under Section 302 IPC and Section 27 of the Arms Act. All the three appellants have been sentenced to undergo rigorous imprisonment for ten years under Section 364/34 IPC, but no separate sentence under Section 323 IPC has been inflicted. The appellants-Gopal Singh and Prasadi Yadav have been sentenced to undergo rigorous imprisonment for life under Section 302 IPC and rigorous imprisonment for five years under Section 27 of the Arms Act. All the sentences so passed shall run concurrently. 2. The prosecution case, as it appears from the Fardbeyan of Shyam Sunder Sao - P.W. 2, recorded on 26th February, 2004, at 21:00 hours, at Village-Kharsan Devtan, within Gawan Police Station, District-Giridih, in brief, is that while the informant was returning home after placing cow and ox in the cowshed, he was intercepted by a person, who was having rifle in his hand. The miscreants asked identity of the informant and then started dragging him. The former accused was assisted by his two associates, who were also armed with rifle. Suspecting untowards, the informant started raising alarm, which attracted his wife-Indu Devi, who also came out of the house and joined her voice with her husband. It is disclosed that the accused persons had been dragging the informant towards graveyard and to stop protest made by him he was also assaulted by the miscreants by means of butt of the rifle. On Halla Shiv Narayan Sao ran behind the miscreants, but he was shot at and died, on the spot. Thereafter, Karu Rai, another villager, tried to extend rescue, but he also met with same fate and died at the spot after having gunshot injury. The miscreants left the informant at the place of occurrence and then fled away. On Halla Shiv Narayan Sao ran behind the miscreants, but he was shot at and died, on the spot. Thereafter, Karu Rai, another villager, tried to extend rescue, but he also met with same fate and died at the spot after having gunshot injury. The miscreants left the informant at the place of occurrence and then fled away. On the basis of Fardbeyan of Shyam Sunder Sao, Gawan P.S. Case No. 6 of 2004 dated 27th February, 2004 under Sections 302, 364-A. 307, 323 and 34 IPC was registered. 3. The police after due investigation submitted charge-sheet against the appellants, who were apprehended during trial, and, accordingly, cognizance under Sections 302, 307, 364-A, and 323/34 IPC was taken and the case was committed to the Court of Session and registered as Sessions Trial No. 250 of 2004. Charges under Sections 323/34, 364-A/' 34, 307/34 and 302/34 IPC and Section 27 of the Arms Act against appellant-Gopal Singh were framed on 17th February. 2005, whereas charges under Sections 323/34, 364-A/34, 307/34 and 302/34 IPC and Section 27 of the Arms Act were framed against appellants-Prasadi Yadav and Pradeep Paswan on 2nd April, 2005 in connection with Sessions Trial No. 250 of 2004(A). The appellants were put on trial. Sessions Trial No. 250 of 2004 and Sessions Trial No. 250 of 2004(A) were amalgamated vide order dated 2nd April, 2005. 4. The prosecution in order to substantiate the charges examined altogether four witnesses, including the informant, the doctor, who conducted post mortem examination, and the Investigating Officer. Learned Sessions Judge, placing reliance on the evidence and documents, available on record, held the appellants guilty and inflicted sentence, as indicated above. 5. Learned counsel, appearing on behalf of the appellants-Gopal Singh [Cr. Appeal (DB) No. 1532/2007] and Prasadi Yadav [Cr. Appeal (DB) No. 1311/2007] have challenged the findings of the Trial Court mainly on the ground that the appellants were not named in the first information report; they were never put on test identification parade for their identification as culprits; and nothing incriminating has been recovered from possession of either of the appellants. The independent witnesses, who had assembled at the place of occurrence, have not been examined. Indu Devi-wife of the informant, Parmeshwar Sao-father of the deceased, Shiv Narayan Sao, did not come forward to support the prosecution case. The independent witnesses, who had assembled at the place of occurrence, have not been examined. Indu Devi-wife of the informant, Parmeshwar Sao-father of the deceased, Shiv Narayan Sao, did not come forward to support the prosecution case. To admit the evidence of P.W. 2 that he had sustained injury in the incident, no injury report has been brought on record. The Investigating Officer, who had conducted part investigation, did riot come forward to support the investigation done by him. He did not make efforts to find out any bullet or empty cartridges from the place of occurrence. Therefore, the finding of the learned Trial Court is highly erroneous, based on mis-appreciation of evidence and the same is liable to be set aside. It is vehemently argued that the appellants were identified for the first time in Court in course of examination of witnesses and the witnesses were examined after two years of the incident. It is admitted case of the prosecution that no test identification parade has been held to confirm that the appellants were the culprits. The evidence available on record suggests that the appellants were apprehended by the police on the basis of secret information provided to them by their spy. Thereafter, extra judicial confession of the appellants were recorded. The appellants were photographed and news was published with their photographs after their arrest and that had helped the witnesses to identify the appellants. Such evidence should not have been relied upon for holding the appellants guilty for the offence punishable under Sections 302/364 IPC. Learned counsel has further argued that charge under Section 364/34 was not framed, but the appellants have been held guilty for that offence. As a matter of fact, charge under Section 364-A IPC was framed, but no evidence, attracting ingredients of Section 364-A IPC, was ever adduced. The finding of the learned Sessions Judge is completely silent on this point. No such law has been discussed as to why the appellants have been held guilty for the offence punishable under Section 364/34 IPC, though there was no charge and the charge framed under Section 364-A IPC stood failed. 6. It is submitted that ingredients of offence under Section 364 IPC are also lacking. It is not apparent from the evidence available on record that the informant was abducted or kidnapped for the purpose of murder. 6. It is submitted that ingredients of offence under Section 364 IPC are also lacking. It is not apparent from the evidence available on record that the informant was abducted or kidnapped for the purpose of murder. This contention finds support from the prosecution evidence and the findings of the Trial Court. Admitted evidence of the informant is that he was assaulted by means of butt of rifle. The Trial Court did not hold the appellants guilty for the offence punishable under Section 307 IPC, rather the Trial Court has held the appellants guilty for lesser offence punishable under Section 323 IPC. On the basis of aforesaid admitted facts, no offence under Section 364 IPC is made out and the conviction and sentence passed against the appellants under Section 364/34 IPC is liable to be set aside. 7. On the point of identification of the appellants for the first time in Court, learned counsel has relied upon the judgments of the Hon'ble Supreme Court reported in (2015)3 SCC Cr. 301, AIR 1972 SC 102 (Rameshwar Singh v. State of Jammu & Kashmir) and 2006(1) Cri.LJ 267 (Jarapala Deepala & Ors. v. State of A.P.). 8. Learned counsel for the appellant-Pradeep Paswan has submitted that the appellant has not been held guilty for the offence of murder, but he has been convicted and sentenced under Sections 364/34 and 323 IPC. 9. Subscribing the arguments advanced by counsel appearing for rest of the appellants, it is submitted that the Trial Court has fairly held that no specific evidence was adduced to show that Pradeep Paswan was also holding any firearm and he has been acquitted for the offence punishable under Section 27 of the Arms Act. In view of the arguments advanced, no case under Section 364 IPC is made out and charge under Section 364 IPC was also not framed. The law does not permit to hold the accused guilty under Section 364 IPC, if charge under Section 364-A IPC fails. Both the offences are having distinct ingredients. The Trial Court has committed gross error by holding the appellants guilty for the offence under Section 364/34 IPC in absence of any charge and that has also caused prejudice to the appellants. 10. Learned A.P.Ps. appearing for the State in these appeals have opposed the argument and submitted that quality of evidence is to be judged not the quantity. The Trial Court has committed gross error by holding the appellants guilty for the offence under Section 364/34 IPC in absence of any charge and that has also caused prejudice to the appellants. 10. Learned A.P.Ps. appearing for the State in these appeals have opposed the argument and submitted that quality of evidence is to be judged not the quantity. If the testimony of one witness is acceptable, reliable, credible and trustworthy, conviction can be recorded. Therefore, non-examination of other villagers, who had assembled at the place of occurrence, is in no manner fatal to the prosecution and that too in the circumstances that two of the villagers dare to intervene, but they were done to all, we would like to deal with the charges framed and the offence for which the appellants have been held guilty. Learned Sessions Judge in absence of any injury report has not held the appellants guilty for the offence punishable under Section 307 IPC. The Trial Court has observed that the informant had sustained injury caused to him by the appellants and after perusing the case diary the Court found that injury report is available in the case diary, but it was not brought on record. Since there was laches on the part of the prosecution and injury report of the informant was not proved, learned Sessions judge did not-hold the appellants guilty for the offence punishable under Section 307 IPC. On the basis of evidence available on record that the informant was assaulted by means of butt of the rifle and he had sustained injury, learned Trial Court has held the appellants guilty for the offence punishable under Section 323/34 IPC. 11. Now coming to the findings of the Trial Court by which all the three appellants have been held guilty for the offence punishable under Section 364/34 IPC. Admittedly, no charge under Section 364 IPC was framed against any of the appellants. Admittedly, the impugned judgment is completely silent on the point of charge framed under Section 364 - A IPC. It is nowhere indicated that the appellants have been held guilty for the offence punishable under Section 364/34 IPC because charge under Section 364-A IPC failed. In such circumstances, we have to decide whether the conviction and sentence passed against the appellants under Section 364/34 IPC would be sustainable. 12. It is nowhere indicated that the appellants have been held guilty for the offence punishable under Section 364/34 IPC because charge under Section 364-A IPC failed. In such circumstances, we have to decide whether the conviction and sentence passed against the appellants under Section 364/34 IPC would be sustainable. 12. From the evidence of P.W. 2, it is evident that he was intercepted by one of the miscreants, who started him dragging. Thereafter, two more associates of former accused joined him. The informant was assaulted by the miscreants by means of butt of rifle. According to the evidence available on record, the informant was dragged by the miscreants to some distance, in between Shiv Narayan Sao (deceased) and Karu Rai (deceased) appeared to extend rescue, but they were done to death. By that time, the informant became unconscious due to injury sustained and considering him as dead, he was left at the place. We do not find that any of the appellants ever made attempt to kill the informant, though they were having rifles and firearm in their possession. Whatever the reason might be for not holding the appellants guilty for the offence punishable under Section 307 IPC, the fact remains that they were not held guilty for the offence punishable under Section 307 IPC The presumption was drawn by the informant in his Fardbeyan that his kidnapping was might be for the purpose of realising ransom, but that presumption did not find support from any evidence. The informant has never stated, even a single word that he was kidnapped by the miscreants for the purpose of murder. Considering all these aspects that no charge under Section 364/34 IPC was framed, no ingredients of offence punishable under Section 364 IPC found attracted from the evidence available, we feel no hesitation to set aside the conviction and sentence passed against the appellants under Section 364/34 IPC. Accordingly, findings of the learned Trial Court and the conviction and sentence passed against the appellants under Section 364/34 IPC stand set aside. 13. We have examined the evidence available on record and we found that P.Ws. 1 and 2 are eyewitnesses and they had seen the occurrence. P.W. 1 is none else, but son of the deceased-Shiv Narayan Sao, whereas P.W. 2 is informant and victim himself. 13. We have examined the evidence available on record and we found that P.Ws. 1 and 2 are eyewitnesses and they had seen the occurrence. P.W. 1 is none else, but son of the deceased-Shiv Narayan Sao, whereas P.W. 2 is informant and victim himself. So far as the prosecution story is concerned, the evidence of both the witnesses appears to be intact. According to the statement of P.W. 2, he was intercepted by one of the accused, who started him dragging. Two more accused also joined. The informant was subjected to assault by means of butt of rifle by the accused persons. At that point of time he was raising alarm which attracted his wife-Indu Devi, who came out from the house and started raising alarm. Alarm raised by the victim couple, attracted the villagers who ran towards the place of occurrence and P.W. 1 was also among them. The evidence available on record further speaks that on Halla Shiv Narayan Sao (deceased) and Karu Rai (deceased) came out from their houses, but the accused persons did not permit them to intervene and both of them were shot at. Therefore, the facts available on record are intact that in course of dragging the informant, the appellants, namely, Gopal Singh and Prasadi Yadav opened fire from their rifles, which caused injury to Shiv Narayan Sao and Karu Rai, respectively, and injury so caused was proved fatal to them. We do not find that any material contradiction has been taken from these two witnesses, who have been examined on the fact. The presence of these two witnesses could not be disbelieved. 14. The next question raised by counsel appearing for the appellants is that what would be the evidentiary value of identification of the appellants by these two witnesses first time in Court without being preceded with any test identification parade. Learned counsel have cited the judgments referred to above and we also examined those judgments and findings of the Apex Court. The facts appearing in those cases are quite distinguishable. In the case of Rameshwar Singh (supra), the witnesses who had identified the appellants in Court was not consistent in his evidence. The place from where that witness had identified the miscreants was not very close and he had not described physical features of those appellants. The facts appearing in those cases are quite distinguishable. In the case of Rameshwar Singh (supra), the witnesses who had identified the appellants in Court was not consistent in his evidence. The place from where that witness had identified the miscreants was not very close and he had not described physical features of those appellants. The place of occurrence, which was a football ground, was also away from the place from where that witness had seen the occurrence. Likewise in other two cases relied upon by the appellants, the facts appearing were different and the witnesses who had identified the accused persons in Court were considered unreliable. 15. Learned APPs have referred the judgment reported in (2014)4 SCC 747 (Ashok Debbarma @ Achak Debbarma v. State of Tripura) and submitted that TIP is not a substantive piece of evidence and that is only for the purpose of corroboration. The purpose of holding Test Identification Parade is only to get a kind of confirmation that the accused so apprehended was involved in the crime and that would help the Investigating Officer for proceeding further in the investigation. The findings of the Apex Court given in the case of Ashok Debbarma (supra) is relied upon other judgments, including the judgment reported in (2003)5 SCC 746 [: 2003(4) JLJR (SC)41) (Para-16) (Malkhan Singh & Ors. v. State of M.P.). In Para-16 of the said judgment, the Apex Court has held as under:- "16. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court,, if required. However, what weight must be attached to the evidence of identification in court, which is not proceeded by a test identification parade, is a matter for the courts of fact to examine. In the instant case the courts below have concurrently found the evidence of the prosecutrix to be reliable and, therefore, there was no need for the corroboration of her evidence in Court as she was found to be implicitly reliable. We find no error in the reasoning of the courts below. From the facts of the case it is quite apparent that the prosecutrix did not even know the appellants and did not make any effort to falsely implicate them by naming them at any stage. The crime was perpetrated in broad daylight. We find no error in the reasoning of the courts below. From the facts of the case it is quite apparent that the prosecutrix did not even know the appellants and did not make any effort to falsely implicate them by naming them at any stage. The crime was perpetrated in broad daylight. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other. Before the rape was committed, she was threatened and intimidated by the appellants. After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience, the faces of the appellants must have got imprinted in her memory, and there was no chance of her making a mistake about their identity. The occurrence took place on 4.3.1992 and she deposed in court on 27.8.1992. The prosecutrix appears to be a witness on whom implicit reliance can be placed and there is no reason why she should falsely identify the appellants as the perpetrators of the crime if they had not actually committed the offence. In these circumstances if the courts below have concurrently held that the identification of the appellants by the prosecutrix in court does not require further corroboration, we find no reason to interfere with the finding recorded by the courts below after an appreciation of the evidence on record." 16. Placing reliance oh the findings of the Apex Court and the evidence on record, we find that there are four places of occurrence:-(i) the place where the informant was intercepted; (ii) the place where Shiv Narayan Sao was shot at; (iii) the place where Karu Rai was shot at; and (iv) the place whore the informant was left unconscious. The purpose of making reference to the aforesaid places of occurrence is that considerable time would have been spent giving abundant opportunity to the informant to identify the appellants. P.W. 1 also came running from the place where he was watching Krishna Lila. The purpose of making reference to the aforesaid places of occurrence is that considerable time would have been spent giving abundant opportunity to the informant to identify the appellants. P.W. 1 also came running from the place where he was watching Krishna Lila. He had seen the appellants dragging the informant to a certain direction. Halla was being raised by the informant and his wife. He had also seen his father, running behind the appellants in order to extend rescue, but in the meantime he was shot at. The distance from where P.W. 1 had first seen the appellants has been disclosed, he had seen the appellant-Gopal Singh opening fire from his rifle aiming at Shiv Narayan Sao, but no cross-examination has been done to bring on record that P.W. 1 had no opportunity to see the faces of miscreants. The evidence of P.Ws. 1 and 2 itself sufficient to hold that they had ample opportunity to see the face of the appellants. Both the witnesses had described the overt act committed by the appellants-Gopal Singh and Prasadi Yadav Substantive evidence has been brought on record that P.Ws. 1 and 2 have not only identified the appellants in Court but they have described the overt act committed by each of them. We do not feel that the evidence so led by the prosecution from the mouth of these two witnesses is liable to be thrown away only because no test identification parade was held. The very purpose of test identification parade has been explained by the Hon'ble Supreme Court in the judgments cited above from both sides, it is also clear that admitting or discarding identification of the accused persons for the first time in Court shall depend on the facts and circumstances of each individual case. If the substantive evidence available on record proves guilt of the accused, that should not be ignored for want of any formal part of investigation like holding of test identification parade. We do not find that credibility of these two witnesses has been shaken in any manner during their cross-examination No evidence has been brought on record that these two witnesses have any grudge and enmity or there was any reason for them for implicating falsely to the appellants and that too with such serious allegation of murder. Two innocent villagers, who dared to intervene, have been murdered. Two innocent villagers, who dared to intervene, have been murdered. We do not find any evidence, which would suggest that the appellants were known to these witnesses from before. The refusal to appear in the test identification parade has well been reasoned and they did not appear because they were afraid of the miscreants. 17. In the circumstances and discussions made above and also the evidence available on record, we hold that the prosecution has successfully proved the offence of murder committed by the appellants-Gopal Singh and Prasadi Yadav and the judgment of conviction and order of sentence passed against these appellants under Section 302 IPC and 27 of the Arms Act is hereby upheld. All the three appellants have been held guilty for the offence punishable under Section 323 IPC, but no separate sentence has been passed. Since the conviction and sentence passed under Section 364/34 has been set aside, the appellant-Pradeep Paswan is entitled to be discharged from the liability of his bail bond. Accordingly, Cr. Appeal (DB) No. 1339 of 2007 is allowed. The appellant-Pradeep Paswan is discharged from the liability of his bail bond and is set at liberty. The conviction and sentence punishable under Sections 302 & 323/34 IPC and Section 27 of the Arms Act recorded against the appellants, namely, Gopal Singh and Prasadi Yadav is hereby upheld. The appellant-Prasadi Yadav is on bail and, therefore, bail bond of Prasadi Yadav is hereby cancelled and he is directed to surrender before the convicting/successor court, in connection with Sessions Trial No. 250 of 2004, arising out of G.R. No. 358 of 2004, corresponding to Gawan P.S. Case No. 6 of 2004, within six weeks from today, failing compliance bail amount shall stand forfeited and the convicting/successor Court shall issue process to secure his attendance. The convicting/successor Court is directed to issue modified conviction warrant against the appellants.