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Jharkhand High Court · body

2019 DIGILAW 1037 (JHR)

Mukund Kacchap v. State of Bihar (now Jharkhand)

2019-05-13

APARESH KUMAR SINGH

body2019
JUDGMENT : Kailash Prasad Deo, J. Heard, learned counsel for the appellants, Mr. Gaurav Priyadarshi and learned Additional Public Prosecutor, Mr. Satish Kumar Keshri, appearing for the State. 2. Both the criminal appeals are arising out of common judgment of conviction dated 06.07.1996 and order of sentence dated 12.07.1996, passed by learned 6th Additional Judicial Commissioner, Ranchi, in Sessions Trial No. 109 of 1990/T.R. No.52 of 1991 whereby altogether three accused persons have been held guilty and convicted for the offence committed and punishable under Sections 302/34 and 394 of the Indian Penal Code and awarded imprisonment for life for the offence committed and punishable under Section 302/34 of the Indian Penal Code and rigorous imprisonment for ten years for the offence committed and punishable under Section 394 of the Indian Penal Code. Both sentences are directed to run concurrently. As such both the criminal appeals are heard together and disposed by this common judgment. 3. The prosecution case is based upon the fardbeyan of Naresh Chandra Sinha (P.W.2), recorded by Assistant Sub-Inspector, B.P. Roy at emergency ward of Rajendra Medical College Hospital on 25.03.1988 at 15 hours. The informant has alleged that in the morning at 11:00 A.M., upon direction and order of Assistant Director, Sri M.L. Singh (Mukhlal Singh) they left office and accompanying him were also Sri J. Dang (P.W.3), Sri S.K. Choudhary (P.W.5) and Rajiv Kumar (P.W.7) for Pundag, Dipa Toli. The informant has stated that he was on his motorcycle with Sri S.K. Choudhary who disclosed him that their officer is left behind and is not visible. Thereafter the informant stopped his motorcycle and turned behind and saw that the scooter of Mukhlal Singh is lying and thereafter they went towards him. In the meantime, they saw 3-4 persons dragging their officer. The informant has also felt that those persons were snatching things from his officer. The informant reached therefor rescue but in the meantime, one of the accused aged about 20-22 years, wearing red shirt, black in colour, short in height, wearing jeans full pant pointed out pistol towards them and thereafter the informant fled away towards the village. The informant raised brawl in Dipa Toli, Pundag and thereafter alongwith villagers, they came and saw that his officer has sustained fire arm injury on his abdomen. The informant raised brawl in Dipa Toli, Pundag and thereafter alongwith villagers, they came and saw that his officer has sustained fire arm injury on his abdomen. The officer was taken on scooter and subsequently on tempo and reached Harmu Hospital, Harmu where only compounder was present, who asked them to take the injured to RMCH, as the person has sustained fire arm injury. Thereafter the injured was taken to RMCH where doctor declared him dead. The place of occurrence is lying under Argora Police Station. The fardbeyan was recorded in presence of Surendra Kumar Choudhary (P.W.5) and Rajiv Kumar (P.W.7). 4. On the basis of fardbeyan, police has instituted FIR bearing Doranda (Argora) P.S. case no. 101 of 1988 dated 25.03.1988 under Sections 394/302 of the Indian Penal Code against four unknown accused persons. The police arrested one accused Shera Lohar @ Shyam Sunder Lohar on 27.03.1988 and thereafter his confessional statement was recorded where he has disclosed the name of other accused persons. Subsequently the police has arrested Bhawo Lohar on 29.03.1988. Thereafter appellant Mukund Kachhap and Tarjan @ Birsa Lohar who have surrendered in connection with other case i.e. Doranda (Argora) Police Station P.S. Case No.105 of 1988 under Sections 302/301/394 of the Indian Penal Code have been taken on remand in the present case. Thereafter the accused Bhawo Lohar @ Krishna Lohar who was declared Juvenile has been put on Test Identification Parade on 20.04.1988 and he was identified by two witnesses namely, Surendra Kumar Chaudhary (P.W.5) and informant, Naresh Chandra Sinha (P.W.2) but witness Rajiv Kumar (P.W.7) has not identified him. His case was transferred to the court of Juvenile Justice Board and his case was thus separated after charge-sheet. These three accused persons Shera Lohar @ Shyam Sunder Lohar, Tarjan @ Birsa Lohar and Mukund Kacchap were put on Test Identification Parade on 21.04.1988. Witness P.W.2 (Naresh Chandra Sinha) informant of the case has identified all these three accused persons Shera Lohar @ Shyam Sunder Lohar, Tarjan @ Birsa Lohar and Mukund Kacchap as the persons involved in the dacoity and Shera Lohar @ Shyam Sunder Lohar was having pistol in his hand, witness, S.K. Choudhary (P.W.5) has identified two accused persons namely, Shera Lohar @ Shyam Sunder Lohar and Tarjan @ Birsa Lohar and has identified Tarjan @ Birsa Lohar to be accused who was trying to start the scooter. Witness Julian Dang (P.W.3) has identified accused Tarjan @ Birsa Lohar and witness Rajiv Kumar (P.W.7) has identified Shera Lohar @ Shyam Sunder Lohar and Tarjan @ Birsa Lohar as the accused who have participated in commission of the offence. 5. After completion of investigation, the police has submitted charge sheet against five accused persons namely, Shera Lohar @ Shyam Sunder Lohar, Tarjan @ Birsa Lohar, Mukund Kacchap, Bhawo Lohar and one Basmati Devi from whose possession a watch was recovered, vide charge-sheet no.13 of 1988 dated 08.07.1988 under Sections 394/302/411 of the Indian Penal Code. Basmati Devi jumped the bail and was declared absconder vide order dated 22.02.1990. It has been submitted by learned Additional Public Prosecutor that on 13.01.1990 Basmati Devi has died and to that effect affidavit is being filed. The cognizance of offence has been taken on 22.11.1988 and the case has been committed to the court of sessions vide order dated 22.02.1990. Case of Bhawo Lohar, (Juvenile) has been split-up and sent to Juvenile Justice Board for trial under Juvenile Justice Care and Protection of Children Act, 1986 vide order dated 08.11.1990. 6. The charge has been framed against all three accused persons namely, Shera Lohar @ Shyam Sunder Lohar, Tarjan @ Birsa Lohar and Mukund Kacchap under Sections 394/302 of the Indian Penal Code vide order dated 01.12.1990 wherein charge has been read over and explained to the accused persons to which they have pleaded not guilty and claimed to be tried. 7. The prosecution in order to prove its case has examined altogether nine witnesses and also exhibited a number of documents up to Exhibit-8. Bishwanath Singh has been examined as P.W.1, Naresh Chandra Sinha, informant of the case, has been examined as P.W.2, Julian Dang has been examined as P.W.3, Shrawan Karketta has been examined as P.W.4, Surendra Kumar Choudhary has been examined as P.W.5, Ashok Kumar has been examined as P.W.6, Rajiv Kumar has been examined as P.W.7, Dr. Tulsi Mahto, Medical Officer has been examined as P.W.8 and Uday Narayan Singh has been examined as P.W.9. Tulsi Mahto, Medical Officer has been examined as P.W.8 and Uday Narayan Singh has been examined as P.W.9. Signature of Bishwanath Singh (P.W.1) on seizure list, proved by him as Exhibit-1, signature of Naresh Chandra Sinha (P.W.2) on inquest report, proved by him as Exhibit-1/1, fardbeyan proved by P.W.2 as Exhibit-2, Carbon copy of Test Identification Parade proved by P.W.6 as Exhibit-3 to 3/1, signature of Rajiv Kumar (P.W.7) as a witness on inquest report, proved by him as Exhibit-1/2, signature of Rajiv Kumar (P.W.7) as a witness on fardbeyan, proved by him as Exhibit-1/3, postmortem report, proved by P.W.8, as Exhibit-4, endorsement on fardbeyan, proved by P.W.9, as Exhibit-5, inquest report, proved by P.W.9, as Exhibit-6, seizure list, proved by P.W.9, as Exhibit-7, formal FIR, proved by P.W.9, as Exhibit-8. After closure of prosecution evidence, the accused persons have been examined under section 313 Cr.P.C. on 04.06.1996, where they have denied their involvement in the case but have not adduced any oral or documentary evidence. 8. After hearing learned counsel for the parties and on the basis of materials available on record, learned trial court has convicted the appellants. Being aggrieved at and dissatisfied with the, impugned judgment of conviction and order of sentence, all the three appellants have preferred two separate Criminal Appeals, arising out of common judgment of conviction and order of sentence, which are being heard altogether and disposed of by this common judgment. 9. Heard, learned counsel for the appellants, Gaurav Priyadarshi and learned counsel for the State, Mr. Satish Kumar Keshri, Additional Public Prosecutor. Mr. Gaurav Priyadarshi, learned counsel for the appellants has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law as the same has been passed on the basis of Test Identification Parade of the accused, which was conducted with delay i.e. approximately after one month of the alleged date of occurrence, as the date of occurrence is 25.03.1988 whereas these accused persons have been put on Test Identification Parade on 21.04.1988 and in the meantime these accused persons have been produced before the Magistrate on every 14th days, as such, there are chances that witnesses may have seen them, as such, Test Identification Parade lost its sanctity. Learned counsel for the appellants has further submitted that no independent witnesses or the villagers of village Dipa Toli, Pundag have been examined in this case. P.W.-4 (Shrawan Kerketta) a resident of village-Pundag, Dipa Toli though has been examined in this case as P.W.4 but has not supported the case of prosecution, as such, he has been declared hostile by the prosecution. Learned counsel for the appellants has further submitted that chain of circumstance is not complete nor these accused persons have committed, the crime in which victim Mukhlal Singh has died nor any incriminating material has been recovered from the possession or house of these appellants, so as to connect them with the alleged offence. Learned counsel for the appellants has further submitted that the cover of weapon used, such as, cover of knife though found by the police at the place of occurrence has never been seized nor produced in the Court. Learned counsel for the appellants has further submitted that weapon of assault i.e. pistol (country-made pistol) has not been seized nor produced before the learned trial court, so as to connect these appellants through this weapon of assault by which Mukhlal Singh had been assaulted on his abdomen causing his death. Learned counsel for the appellants has thus submitted that these appellants who have served the sentence of 10 years may be acquitted from the charge and conviction under Sections 302 and 394 of the Indian Penal Code, as period already undergone. 10. Heard, learned Additional Public Prosecutor, Mr. Satish Kumar Keshri, appearing for the State. Learned counsel for the State has submitted that the impugned judgment of conviction and order of sentence has been passed by the learned trial court on the basis of the materials available on record. Learned counsel for the State has further submitted that the learned trial court after due scanning of the evidence of P.W.2 (Naresh Chandra Sinha), P.W.5 (Surendra Kumar Chaudhary) and P.W.7 (Rajiv Kumar), who are the eye-witnesses to the occurrence, have passed the judgment of conviction and order of sentence on the basis of the materials brought on record including the Post-mortem Report proved by Dr. Tulsi Mahto (P.W.8) as Exhibit-4 and the evidence of Investigating officer, Uday Narayan Singh (P.W.9) though another eye-witness, Julian Dang examined in this case as P.W.3 but has not identified any of the accused persons in the dock. Tulsi Mahto (P.W.8) as Exhibit-4 and the evidence of Investigating officer, Uday Narayan Singh (P.W.9) though another eye-witness, Julian Dang examined in this case as P.W.3 but has not identified any of the accused persons in the dock. Learned counsel for the State has further submitted that Bishwnath Singh (P.W.1) is a formal witness, who has proved his signature on the seizure list of wrist watch, which was recovered from the house of co-accused, Basmati Devi marked as Exhibit-1. P.W.2 (Naresh Chandra Sinha) is the informant of the case, who alongwith Surendra Kumar Chaudhary was on his motorcycle and has seen his officer, Mukhlal Singh, I.S.S., Assistant Director, Statistics Department, fallen on the ground along with his scooter and saw 3-4 persons dragging him. When he returned towards his officer, Mukhlal Singh, at that time, one accused wearing red shirt pointed a pistol upon him and threatened them with dire consequences and thereafter the informant fled away towards the Village-Dipatoli in Pundag and raised brawl and along with villagers came there and saw Mukhal Singh sustaining fire-arm injury on the abdomen. This witness has proved the fardbeyan which has been marked as Exhibit-2. The fardbeyan also bears the signature of prosecution witnesses, P.W.5 (Surendra Kumar Chaudhary) and P.W.7 (Rajiv Kumar). This witness has also proved his signature on the inquest report of Mukhlal Singh, which has been marked as Exhibit-1/1. This witness has identified all the accused persons in the Test Identification Parade but he has identified Shera Oraon only in the dock during trial. Learned counsel for the State has further submitted that though the informant has been cross-examined, at length by the defence, but nothing has been elucidated to disbelieve his evidence. Learned counsel for the State has further submitted that his evidence is admissible under the law in view of the judgment in the case of Dana Yadav @ Dahu and others vs. State of Bihar reported in (2002) 7 SCC 295 , Para-38, which is quoted hereunder:- “38. In view of the law analysed above, we conclude thus: (a) If an accused is well known to the prosecution witnesses from before, no test identification parade is called for and it would be meaningless and sheer waste of public time to hold the same. In view of the law analysed above, we conclude thus: (a) If an accused is well known to the prosecution witnesses from before, no test identification parade is called for and it would be meaningless and sheer waste of public time to hold the same. (b) In cases where according to the prosecution the accused is known to the prosecution witnesses from before, but the said fact is denied by him and he challenges his identity by the prosecution witnesses by filing a petition for holding test identification parade, a court while dealing with such a prayer, should consider without holding a mini-inquiry as to whether the denial is bona fide or a mere pretence and/or made with an ulterior motive to delay the investigation. In case the court comes to the conclusion that the denial is bona fide, it may accede to the prayer, but if, however, it is of the view that the same is a mere pretence and/or made with an ulterior motive to delay the investigation, question for grant of such a prayer would not arise. Unjustified grant or refusal of such a prayer would not necessarily ensure to the benefit of either party nor the same would be detrimental to their interest. In case prayer is granted and test identification parade is held in which a witness fails to identify the accused, his so-called claim that the accused was known to him from before and the evidence of identification in court should not be accepted. But in case either prayer is not granted or granted but no test identification parade held, the same ipso facto cannot be a ground for throwing out evidence of identification of an accused in court when evidence of the witness, on the question of identity of the accused from before, is found to be credible. The main thrust should be on answer to the question as to whether evidence of a witness in court to the identity of the accused from before is trustworthy or not. In case the answer is in the affirmative, the fact that prayer for holding test identification parade was rejected or although granted, but no such parade was held, would not in any manner affect the evidence adduced in court in relation to identity of the accused. In case the answer is in the affirmative, the fact that prayer for holding test identification parade was rejected or although granted, but no such parade was held, would not in any manner affect the evidence adduced in court in relation to identity of the accused. But if, however, such an evidence is not free from doubt, the same may be a relevant material while appreciating the evidence of identification adduced in court. (c) Evidence of identification of an accused in court by a witness is substantive evidence whereas that of identification in test identification parade is, though a primary evidence but not substantive one, and the same can be used only to corroborate identification of the accused by a witness in court. (d) Identification parades are held during the course of investigation ordinarily at the instance of investigating agencies and should be held with reasonable dispatch for the purpose of enabling the witnesses to identify either the properties which are the subject-matter of alleged offence or the accused persons involved in the offence so as to provide it with materials to assure itself if the investigation is proceeding on right lines and the persons whom it suspects to have committed the offence were the real culprits. (e) Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form the basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law. (f) In exceptional circumstances only, as discussed above, evidence of identification for the first time in court, without the same being corroborated by previous identification in the test identification parade or any other evidence, can form the basis of conviction. (f) In exceptional circumstances only, as discussed above, evidence of identification for the first time in court, without the same being corroborated by previous identification in the test identification parade or any other evidence, can form the basis of conviction. (g) Ordinarily, if an accused is not named in the first information report, his identification by witnesses in court, should not be relied upon, especially when they did not disclose name of the accused before the police, but to this general rule there may be exceptions as enumerated above.” (Emphasis supplied in underline not part of original text) Learned counsel for the State has further submitted that Julian Dang, one of the eye-witnesses and a companion of the other eye-witnesses of the case, has been examined as P.W.3. He has identified the accused, Tarjan @ Birsa Lohar in the Test Identification Parade held on 21.04.1988 which has been marked as Exhibit-3/1, but has not identified the accused present in the dock during trial. Learned counsel for the State has further submitted that Shrawan Karketta, a resident of the village, near the place of occurrence has been examined as P.W.4 though he has been declared hostile by the prosecution, but the Investigating officer (P.W.9) has categorically stated in his statement recorded in Para-11 of his cross-examination that Shrawan Karketta (P.W.4) while examining under Section 161 Cr.P.C., has stated before him that at around 12.15 p.m., he heard the sound of firing from the place of occurrence and thereafter when he reached the place of occurrence alongwith villagers, saw accused, Tarjan @ Birsa Lohar, Mukund Kachhap and Shera Lohar @ Shyam Sundar Lohar fleeing away. They also chased them, but the accused persons have fled away. This witness has further stated that one of the accused, Shera Lohar has hid himself in the VillagePipratoli, whereas other three accused persons have fled away towards the Pundag. Learned counsel for the State has further submitted that Surendra Kumar Chaudhary has been examined as P.W.5. He is one of the eye-witnesses to the occurrence, who was along with the informant on his motorcycle. He has also supported the version of the informant, as recorded in the fardbeyan and evidence in the court as P.W.2. Learned counsel for the State has further submitted that Surendra Kumar Chaudhary has been examined as P.W.5. He is one of the eye-witnesses to the occurrence, who was along with the informant on his motorcycle. He has also supported the version of the informant, as recorded in the fardbeyan and evidence in the court as P.W.2. This witness has categorically stated that he has also identified two accused persons, during Test Identification Parade held on 21.04.1988, as Shera Lohar and Tarjan with specific role attributed to Tarjan as the person who was trying to start scooter and has also identified one accused in the remand home in Test Identification Parade on 20.04.1988 who has been identified as Bhawo Lohar, a juvenile. This witness has further stated that when the scooter was not started, the accused persons fled away. This witness has stated in Para-6 of his examination-in-chief that he has identified three accused persons in jail and one in remand home. The accused persons, who have been identified in the jail, are present in the Court. This witness has further stated in Para-12 of his cross-examination that the accused persons were initially seen by them at a distance of 100 yards and at that time they were dragging Mukhlal Singh. When they raised brawl, the accused persons have pointed revolver upon Naresh Chandra Sinha (P.W.2). On brawl, when villagers started assembling, the accused persons fled away. This witness has submitted in Para-16 of his cross-examination that he is not knowing the name of the three accused persons present in the dock, but he is identifying them as they were present in the occurrence whom he has seen at the place of occurrence and also during Test Identification Parade. Learned counsel for the State has further submitted that Ashok Kumar, learned Judicial Magistrate, who has conducted the Test Identification Parade on the order of learned Chief Judicial Magistrate, Ranchi on 20.04.1988 and 21.04.1988 has been examined as P.W.6. Learned counsel for the State has further submitted that Ashok Kumar, learned Judicial Magistrate, who has conducted the Test Identification Parade on the order of learned Chief Judicial Magistrate, Ranchi on 20.04.1988 and 21.04.1988 has been examined as P.W.6. This witness has supported the case of the prosecution to the extent that Bhawo Lohar @ Krishna Lohar was identified by the witnesses, Surendra Kumar Choudhary (P.W.5) and Naresh Chandra Sinha (P.W.2) in the Remand Home on 20.04.1988, whereas accused, Shera Lohar @ Shyam Sundar Lohar, Tarjan @ Birsa Lohar and Mukund Kachhap have been identified by the witnesses, namely, Naresh Chandra Sinha (P.W.2), Surendra Kumar Chaudhary (P.W.5), Julian Dang (P.W.3), Rajiv Kumar (P.W.7) in the Ranchi Central Jail on 21.04.1988. The learned Judicial Magistrate has categorically submitted that informant of the case, Naresh Chandra Sinha (P.W.2) has identified three accused persons during Test Identification Parade. Surendra Kumar Chaudhary (P.W.5) has identified two accused persons, Shera Lohar and Tarjan during Test Identification Parade. Julian Dang (P.W.3) has identified one accused, Tarjan @ Birsa Lohar and Rajiv Kumar (P.W.7) has identified two accused persons Shera Lohar and Tarjan in the Test Identification Parade held on 21.04.1988 marked as Exhibit-3/1. Learned counsel for the State has further submitted that not only the identification of the accused, but the witnesses have identified the accused with specific role, such as Naresh Chandra Sinha (P.W.2) has identified the accused, Shera Lohar, who has fire-arms in his hand. The witness, Surendra Kumar Chaudhary (P.W.2) has identified accused, Tarjan who was trying to start scooter. Learned counsel for the State has thus, submitted that in view of the judgment in the case of Dana Yadav @ Dahu and others vs. State of Bihar reported in (2002) 7 SCC 295 , the conviction of the appellants has rightly been passed by the learned trial court as the Test Identification Parade of the appellants is admissible under law under Section 9 of the Evidence Act and the learned trial court has rightly convicted the appellants under Sections 302 and 394 of the Indian Penal Code which requires no interference by this Court. Though some minor contradictions have cropped up in the examination-in-chief of the learned Judicial Magistrate, but that will not go to the root of the prosecution case, as this witness has categorically explained the Test Identification Parade and the process in Paras 19, 20 and 21 of his deposition. Learned counsel for the State has further drawn attention of this Court towards the evidence of Medical Officer, Dr. Tulsi Mahto (P.W.8) who has conducted the Post-Mortem Examination of deadbody of Mukhlal Singh on 25.03.1988 and on that day, he was posted as Medical Officer, Trainee Reserve Department of Forensic Medicine, Rajendra Medical College and Hospital, Ranchi. On that day at 16.30 Hours, he conducted post-mortem examination on the dead-body of Mukhlal Singh, I.S.S., Assistant Director, Statistics Department, Government of India, Deputy Para, District-Ranchi, male, aged about 43 years on being brought and identified by Constable No.1364 Kamla Singh and found the following injuries on the body :- “Firearm wound with wound of entrance measuring 3cm x 2 cm over the left side of adbomen18 cm from the midline and 14 cm from the left nipple with tatooing of the surrounded area over 21 cm x 16 cm on the abdomen and 30 cm x 10 cm over the left forearm and adjoining upper arm. The projectile enters the abdominal cavity through a wound between the 9th and 10th ribs level perforating and lacerating the intestine at multiple places injuring the bladder, the inferior venacava with extensive extravasation of blood and intestinal content into the peritonial cavity. A bullet has been found lodged into the ligament over the 4th and 5th lumbar vertebrae. The 4th and 5th vertebrae have been fractured. The recovered bullet was sent through the Constable in a sealed envelope along with the report. Rest of the organs were normal but pale. The stomach contained food stuff and pasty materials 250 gms. The urinary bladder was empty but contained little blood tinged urine due to the injury to the bladder.” Doctor has opined that death was due to firearm injury as noted above. Time elapsed since death was between 6 hours to 24 hours from the time of post-mortem examination. The stomach contained food stuff and pasty materials 250 gms. The urinary bladder was empty but contained little blood tinged urine due to the injury to the bladder.” Doctor has opined that death was due to firearm injury as noted above. Time elapsed since death was between 6 hours to 24 hours from the time of post-mortem examination. The post-mortem examination report was written by him in his signature and the same has been proved and marked as Exhibit-4.” Learned counsel for the State has further submitted that Investigating officer, Uday Narayan Singh has been examined as P.W.9 and he has also supported the case of the prosecution and has proved certain documents, such as, endorsement made on the F.I.R. which has been marked as Exhibit-5, the inquest report which has been marked as Exhibit-6, seizure of looted wrist watch from accused, Basmati Devi which has been marked as Exhibit-7 and the Formal First Information Report which has been marked as Exhibit-8. This witness has categorically stated that after having information, he went to R.M.C.H., Ranchi and at that time the statement of the informant was already recorded by the Assistant Sub Inspector of Police of Bariatu Police Station, Mr. B. P. Roy and on the basis of fardbeyan which was handed-over to him, he has lodged a case under Sections 394/302 of the Indian Penal Code. This witness has submitted that he has inspected the place of occurrence and recorded statement of the witnesses, namely, S. K. Chaudhary (P.W.5), Julian Dang (P.W.3), Rajiv Kumar (P.W.7) and also the Police officer, B. P. Roy. This witness has further stated that the residents of adjacent village were also examined, namely, Shrawan Karketta (P.W.4), Birsa Munda and others. Said Shrawan Karketta (P.W.4) though has been declared hostile by the prosecution, but his evidence recorded in Para-11 of the evidence of P.W.9 disclosed that Shrawan Karketta (P.W.4) has disclosed the name of accused persons, Tarjan @ Birsa Lohar, Mukund Kachhap, Shera Lohar who were fleeing away from the place of occurrence and accused, Shera Lohar has hid himself in Pipratoli whereas three accused persons have fled away. On the basis of the fardbeyan, Police has registered First Information Report bearing Doranda (Argora) P.S. Case No.101 of 1988 dated 25.03.1988 under Sections 394/302 of the Indian Penal Code and the inquest report was prepared in carbon process by the Assistant Sub Inspector of Police of Bariatu Police Station which has been proved and marked as Exhibit-6. He has recorded the confessional statement of the accused, Shera Lohar after his arrest on 27.03.1988 where the accused has confessed his guilt. He has also recovered H.M.T. 030381 Watch from the house of Basmati Devi on 13.04.1988 and seizure list was prepared in the presence of the witnesses and the same has been proved and marked as Exhibit-7. This witness has further stated that at the place of occurrence, he has found the scooter and the cover of the knife and the same have been brought to the Police Station, but no seizure list was prepared. He has further stated that the seized watch was not put on Test Identification Parade, as the same has not been described by the witnesses. This witness has further stated that the Police has never shown the accused, Mukund Kachhap and Tarjan @ Birsa Lohar to the witnesses after taking them on remand on 12.04.1988. This witness has further stated that these two accused persons have surrendered in another case which was registered as Doranda (Argora) P.S. Case No.105 of 1988 under Sections 302, 201 and 394 I.P.C. and thereafter the Police has taken on remand on 12.04.1988 at 03:00 P.M. This witness has further stated that Formal F.I.R. in the hand-writing of the Officer-in-Charge, Doranda, Sri B. N. Sinha, has been proved and marked as Exhibit-8. Learned counsel for the State has further submitted that learned trial court has rightly convicted the appellants on the basis of the consistent evidence of the prosecution as the prosecution witness have been cross-examined at length by the defence, but nothing has been elucidated so as to dispel the prosecution case. Learned counsel for the State has further submitted that submission of the learned counsel for the appellants with respect to delay in conducting Test Identification Parade of about 28 days, is not fatal, as it has been held in the case of Anil Kumar vs. State of U.P. as reported in 2003 (3) SCC 569 paragraphs 12, 13 and 14 which are quoted hereunder:- “12. We are unable to accept these submissions. In the case of Brij Mohan v. State of Rajasthan the test identification parade was held after 3 months. The argument was that it was not possible for the witnesses to remember, after a lapse of such time, the facial expressions of the accused. It was held that generally with lapse of time memory of witnesses would get dimmer and therefore the earlier the test identification parade is held it inspires more faith. It is held that no time-limit could be fixed for holding a test identification parade. It is held that sometimes the crime itself is such that it would create a deep impression on the minds of the witnesses who had an occasion to see the culprits. It was held that this impression would include the facial impression of the culprits. It was held that such a deep impression would not be erased within a period of 3 months. 13. In the case of Daya Singh v. State of Haryana the test identification parade was held after a period of almost 8 years inasmuch as the accused could not be arrested for a period of 7 ½ years and after the arrest the test identification parade was held after a period of 6 months. The cases of Hari Nath as well as Soni were relied upon on behalf of the accused in that case. Both these cases were considered by this Court. The injured witnesses had lost their son and daughter-in-law in the incident. It was pointed out that the purpose of the test identification parade is to have the corroboration to the evidence of the eyewitnesses in the form of earlier identification. It was held that the substantive evidence is the evidence given by the witness in the court. It was held that if that evidence is found to be reliable then the absence of corroboration by the test identification is not material. It was further held that the fact that the injured witnesses had lost their son and daughter-in-law showed that there were reasons for an enduring impression of the identity on the mind and memory of the witnesses. Reliance was also placed upon the following paragraph in the case of State of Maharashtra v. Suresh: (SCC p. 478, para 22) “We remind ourselves that identification parades are not primarily meant for the court. Reliance was also placed upon the following paragraph in the case of State of Maharashtra v. Suresh: (SCC p. 478, para 22) “We remind ourselves that 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 prisoner 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.” This Court therefore concurred with the High Court that the categorical evidence of the witnesses received corroboration from the test identification parade even though it was held late. The conviction of the appellants in that case was upheld. 14. In the present case also Manoj was attacked by Chaman as well as the appellant. He had a clear look at his assailants. Thereafter his younger brother came to save him and in that process got killed. Manoj also received serious injuries. These are circumstances which would impress upon the mind of Manoj the facial expressions of the assailants. This impression would not diminish or disappear within a period of 47 days. Similar is the case of the father and the mother of Manoj. They have seen the assailants attacking their sons and one of the sons getting killed. In their memory also the facial expressions of the assailants would get embossed. A mere lapse of 47 days is not going to erase the facial expressions from their memory.” Learned counsel for the State has thus, submitted that conviction of the appellants do not require any interference by this Court, as such, the same has been passed on legal evidence and materials by the learned trial court which is fit to be upheld and affirmed by this Court. 11. Heard, Mr. Gaurav Priyadarshi, learned counsel for the appellants and Learned counsel for the State, Mr. Satish Kumar Keshri, Additional Public Prosecutor and perused the materials brought on record including the First Information Report, framing of the charge, evidence of all the nine prosecution witnesses, eight prosecution exhibits and statement of the appellants recorded under Section 313 Cr.P.C. as well as the impugned judgment of conviction and order of sentence. Satish Kumar Keshri, Additional Public Prosecutor and perused the materials brought on record including the First Information Report, framing of the charge, evidence of all the nine prosecution witnesses, eight prosecution exhibits and statement of the appellants recorded under Section 313 Cr.P.C. as well as the impugned judgment of conviction and order of sentence. While re-appreciating the evidence of the prosecution witnesses, this Court is of the view that evidence of P.W.2 (Naresh Chandra Sinha), informant and an eye-witness to the occurrence, evidence of P.W.5 (Surendra Kumar Chaudhary), P.W.7 (Rajiv Kumar) eye-witnesses to the occurrence, are consistent to each other. There is no material discrepancy in the evidence of these eye-witnesses. They have not alleged the name of any of the accused persons, but they have identified the accused persons present in the dock. The witness, Naresh Chandra Sinha (P.W.2) has identified the accused, Shera Lohar was having pistol in his hand and witness, S.K. Chaudhary (P.W.5) has identified the accused, Tarjan @ Birsa Lohar as an accused who was trying to start the scooter. Both P.W.2 (Naresh Chandra Sinha) and P.W.5 (S.K. Chaudhary) were on one motorcycle of Naresh Chandra Sinha and they are the first persons who after not seeing their senior, Mukhlal Singh, returned and saw Mukhlal Singh fallen on the ground along with his scooter and 3-4 accused persons were dragging him and when they went for rescue, the accused, Shera Lohar pointed out pistol towards them and due to fear both of them have fled away towards the village and raised brawl. In the meantime, other villagers came on brawl and the accused persons started fleeing away. Both the witnesses have identified the accused persons in the dock. The witness, Rajiv Kumar (P.W.7) has also identified Shera Lohar and Tarjan @ Birsa Lohar, as the accused who were involved in the occurrence. The evidence with regard to death of the victim has been brought on record which has been duly proved by P.W.8 (Dr. Tulsi Mahto) who has conducted the post-mortem of the deadbody of Mukhlal Singh, which has been proved and marked as Exhibit-4. The informant has identified his signature on the fardbeyan, which was recorded in presence of Surendra Kumar Chaudhary (P.W.5) and Rajiv Kumar (P.W.7) and the same has been brought on record as Exhibit-2. Tulsi Mahto) who has conducted the post-mortem of the deadbody of Mukhlal Singh, which has been proved and marked as Exhibit-4. The informant has identified his signature on the fardbeyan, which was recorded in presence of Surendra Kumar Chaudhary (P.W.5) and Rajiv Kumar (P.W.7) and the same has been brought on record as Exhibit-2. The Test Identification Chart has been brought on record with respect to these appellants as Exhibit-3/1 and with respect to another accused who has been declared juvenile as Exhibit-3. The learned Judicial Magistrate, Mr. Ashok Kumar has been examined as P.W.6 and his evidence has also supported the case of the prosecution to the extent that no prejudice has been caused to the appellants because of their Test Identification Parade being held on 21.04.1988 after 28 days of the occurrence as one of the accused, Shera Lohar was arrested on 27.03.1988 and Bhawo Lohar, a juvenile was arrested on 29.03.1988. The watch was recovered from the house of Basmati Devi on 13.04.1988 and all these accused persons have been taken on remand on 12.04.1988 after their surrender in the another case of Doranda (Argora) P.S. Case No.105 of 1988 under Sections 302, 201 and 394 of the Indian Penal Code of similar nature and put on Test Identification Parade on 21.04.1988. The learned Judicial Magistrate has categorically stated that these accused persons have never been shown to the witnesses during those period of Judicial custody under Section 167 Cr.P.C. after taking them on remand, meaning thereby, that neither on production in the Court on the 14th day of their remand nor at any time. Nothing has been brought on record by the defence to show that any prejudice has been caused because of delay in holding Test Identification Parade. In this regard, it is true that Test Identification Parade is, in consonance with the, Section 9 of the Evidence Act and the case of Anil Kumar vs State of U.P. as reported in 2003 (3) SCC 569 Paragraphs 12, 13 and 14 are applicable in the facts and circumstances of the present case. No prejudice has been caused because of delay. No prejudice has been caused because of delay. Under the aforesaid circumstances and in view of the clinching evidence against these accused/appellants who have committed such heinous crime in broad day light in the heart of the city and have also criminal antecedent of similar nature, we are not inclined to interfere with the impugned judgment of conviction and order of sentence, as the same has been passed on the basis of material evidence on record which does not require any interference by this Court. 12. Accordingly, the impugned judgment of conviction dated 06.07.1996 and order of sentence dated 12.07.1996, passed by learned 6th Additional Judicial Commissioner, Ranchi, in Sessions Trial No. 109 of 1990/T.R. No.52 of 1991 in connection with Doranda (Argora) P.S. Case No.101 of 1988, corresponding to G.R. No.840 of 1988 is hereby upheld and affirmed. 13. Both the Criminal Appeals are hereby dismissed. 14. The appellants who are on bail, their bail bonds are hereby cancelled and they are directed to surrender before the court below forthwith to serve out rest of the sentence. 15. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action. Appeal dismissed