Shiv Kumar Sharma, J.
Where can one go?
This city has become a jungle,
Hither serpants,
Thither Mongooses dwell
1. Uchchav Lal (since deceased) while subjected Khaju and Pappu, appellants in appeals No. 201/2004 and 401/2007, were indicted for having looted a sum of Rs. 3 lakhs and killing Uchchav Lal, before learned Additional Sessions Judge (Fast Track) Tonk, although Badri Lal and Smt.Kesanta, appellants in appeals No. 930/2003 and 931/2003, were charged under Sections 201 and 412 IPC. Learned Judge convicted and sentenced the appellants vide judgment dated June 2, 2003 thus:
Rajendra, Bhanwar Pal, Pyare Lal, Rafeeq, and Khaju:
Under Section 302/120B/149 & 396 IPC:
Each to suffer imprisonment for life and fine of Rs. 100/-, in default to further suffer simple imprisonment for three months.Under Section 307/149 IPC:
Each to suffer rigorous imprisonment for seven years and fine of Rs. 100/-, in default to further suffer simple imprisonment for three months.Under Section 326/149 IPC:
Each to suffer rigorous imprisonment for five years and fine of Rs. 100/-, in default to further suffer simple imprisonment for three months.Under Section 323 IPC:
Each to suffer rigorous imprisonment for one year.Under Section 324 IPC:
Each to suffer rigorous imprisonment for three years.Under Section 148 IPC:
Each to suffer rigorous imprisonment for three years.Under Section 148 IPC:
Each to suffer rigorous imprisonment for three years. Sentences were ordered to run concurrently.
Smt.Kesanta:
Under Section 412 IPC:
To suffer rigorous imprisonment for ten years and fine of Rs. 100/-, in default to further suffer simple imprisonment for three months. Badri Lal:
Under Section 201 IPC:To suffer rigorous imprisonment for seven years and fine of Rs. 100/-, in default to further suffer simple imprisonment for three months.
BRIEF FACTS:
2. The prosecution case is woven like this:On April 25, 2002 at 11 PM Ram Niwas (Pw.37) SHO Police Station Nainwa recorded Parcha Bayan (Ex.P-1) of Suresh Kumar (Pw.1) at Government Hospital Nainwa who stated that around 10 PM while he and his Jijaji (brother-in-law) Uchchav Lal were coming on Motor cycle from Uniyara, a jeep collided with their motor cycle 5-6 persons, who were sitting in the jeep armed with swords and lathis, got down of the jeep gave beating to Uchchav Lal and looted a sum of Rs. 3 lacs. He was also given beating. Pappu son of Badri resident of Gadarya was one of the assailants. The number of jeep was RJ26P- 590. On that parcha bayan case under Sections 395 and 397 IPC was registered and investigation commenced. During the course of investigation injured Uchchav Lal @ Utsav Lal succumbed to the injuries. Autopsy on the dead body was performed, necessary memos were drawn, statements of witnesses were recorded, appellants were arrested. Currency notes in the sum of Rs. 1,50,000/- got recovered at the instance of appellant Pappu and recovery of Rs. 90,000/- got effected from Smt.Kesanta, the wife of Pappu. Weapons allegedly used in inflicting injuries to Uchchav Lal and Suresh Kumar got recovered at the instance of appellants Pappu, Rajendra, Bhanwar Pal, Pyare Lal, Rafeeq and Khaju. Suresh Kumar identified them in the Identification Parade. On completion of investigation charge sheet was filed and in due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Tonk. Charges under Sections 148, 302/149, 307/149, 396, 394/397, 323, 324, 326/149, 120B, 216A, 187, 201 and 412 IPC were framed against the accused, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 49 witnesses. One court witness was examined. In the explanation under Section 313 CrPC, the accused claimed innocence. One witness was examined in support of defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above.
3. We have heard the submissions advanced before us by learned Counsel for the appellants, learned Public Prosecutor and learned Counsel for the complainant and scanned the material on record.
MEDICAL EVIDENCE:
4. Injuries of Uchchav Lal @ Utsav Lal were examined prior to his death vide injury report (Ex.P-40), according to which following injuries were found on his person:
1. Incised wound 6.5cm x 2.5cm ?cavity deep on right costal margin of chest 5.0cm lateral to mid line & 8.0cm below from Rt. nipple on right with clean cut margin and bleeding.
2. Incised wound 5.0cm x 0.5cm x through & through over Rt. ear region attached with lobe of Rt. ear
3. Linear abrasion 5.0cm x 0.25cm with abrasion 2.0cm x 1cm on Rt. cheek
4. Incised wound 5.5cm x 0.5cm ?bone deep on left side forehead
5. Incised wound 10.0cm x 1.5cm x muscle deep with tailing of lower end on back of Rt. shoulder with clean cut margin with two linear abrasion 11.0cm x 0.25cm and 6.0cm x 0.25cm on Rt. arm
6. Incised wound 6.0cm x 3.5cm x muscle deep with abrasion of skin over Rt. forearm
7. transverse abrasion (Incised wound) 8.0cm x 4.0cm with clean cut margin on little ring finger of Rt. hand at base.
8. Incised wound 4.5cm x 3.5cm x ?bone deep over base of Rt. thumb with amputation of Rt. thumb attached with tag of skin with clean cut margin with fresh bleeding.
9. Incised wound 4.0cm x 0.25cm x muscle deep on lateral surface of left side of neck upper 1/3 with clean cut margin obliquely placed.
10. Incised wound 6.0cm x 0.25cm x muscle deep over posterior lateral surface of left forearm middle third with clean cut margin
11. Abrasion 15.0cm x 6.0cm & 1.0cm x 0.25cm Rt. knee, Rt. leg upper Rt. ankle joint at place with reddish colour.
Uchchav Lal @ Utsav Lal succumbed to the injuries on May 5, 2002 and according to Dr. P.C. Vyas (Pw.6) who performed the autopsy and drew postmortem report (Ex.P-13) the cause of death was shock due to abdominal injuries with secondary infection and head injury.
5. We also noticed that Suresh Kumar (Pw.1) vide injury report (Ex.P-37) received following injuries:
1. Incised wound 3.0cm x 1.0cm x ?cavity deep 1.0cm from mid line & 14.0cm below Rt. nipple epigestric region with clean cut margin spindle shape
2. Incised wound 1.0cm x 0.5cm x ?cavity deep on Rt. side hypo chondrium with clean cut margin
3. Incised wound 10.0cm x 2.5cm x scalp deep lateral part of parietal region
4. Incised wound 1.5cm x 0.25cm x skin deep on left ear.
5. Incised wound 2.0cm x 0.5cm x skin deep on left side of neck.
6. Bruise 12.0cm x 2.5cm on Rt. side chest below nipple
7. Lacerated wound 2.0cm x 0.5cm x muscle deep with abrasion 2.5cm x 2.0cm on left forearm upper part.
8. Lacerated wound 2.5cm x 1.0cm x skin deep on left palm
9. Incised wound 6.0cm x0.5cm x skin deep on tip of left shoulder joint
10. Incised wound 1.5cm x 0.5cm skin deep over posterior surface of Rt. elbow
11. Incised wound 5cm x 0.5cm x skin deep over Rt. palm near wrist
12. multiple abrasions 4.5cm x 2.0cm and 1.0cm x 0.5cm on Rt. knee joint.
13. multiple abrasion 16cm x 4.0cm & 2.0cm x 1.0cm over back of chest & abdomen Vide X-ray report (Ex.P-38) the injuries No. 1&2 were dangerous to life.
OCCULAR EVIDENCE:
6. The only eye witness of occurrence is Suresh Kumar (Pw.1) who in his deposition stated that on April 25, 2002 he went to Dei from Uniyara on motor cycle to facilitate journey of his Jija Uchchav Lal by giving ride to him on Motor cycle. While he was waiting for his Jija at Bus-stand Uniyara, Pappu Meena met him and asked as to why he came to Uniyara. Suresh Kumar gave a casual reply that some passenger was arriving and he would take the passenger with him. After sometime his Jija got down of the bus having a bag and attachee. Around 9.30 PM they proceeded for Dei from Uniyara on motor cycle and when they crossed village Palai and reached at a distance of 2-3 kms a jeep hit them, as a result of which they fell down. In the meanwhile 5-6 persons armed with swords and Gandasas got down of the jeep and surrounded them, Pappu, who met him at bus-stand was one of them. They started beating Uchchav Lal. When he (Suresh Kumar) intervened Pappu and other assailants inflicted blows with sword on his person. The number of the jeep was RJ-26-590. They took away bag and attachee belonging to his Jija Uchchav Lal that contained a sum of Rs. 3 lacs. Suresh Kumar correctly identified appellants Rajendra, Bhanwar Pal, Pyare Lal, Rafeeq and Khaju in the identification parade as well as in the trial court. correctly identified appellants Rajendra, Bhanwar Pal, Pyare Lal, Rafeeq and Khaju in the identification parade as well as in the trial court.
7. Ram Rai Sharma (Pw.16), Ramavtar Vijay (Pw.20) and Chandra Prakash (Pw.33) deposed that immediately after the incident they reached to the place of incident in a jeep and removed injured Uchchav Lal and Suresh Kumar to the hospital. At that time Uchchav Lal was unconscious. Suresh Kumar told them that Pappu Meena and other 5-6 persons gave beating to them and took away a sum of Rs. 3 lacs.
8. N.K.Atrey (Pw.45), who investigated the case, deposed that except accused Pappu Meena, who was known to the witness, all other accused viz. Rajendra Meena, Bhanwar Pal, Pyare Lal, Rafeeq and Khaju were kept Baparda (covered face) throughout i.e. from the time of arrest till identification parade. This statement gets corroboration from the arrest memos (Ex.P-60 to Ex.P-64) of the accused.
9. N.K.Atrey categorically denied this suggestion that prior to identification photographs of the accused were shown to Suresh Kumar. Suresh Kumar also stated that he never saw the photographs of the accused. Learned trial court in the impugned judgment observed that Suresh Kumar had ample opportunity to see the faces of the accused while they were giving beating to him and Uchchav Lal and snatching the bag and attachee. According to learned trial court since it was full moonlit night of `Chetra Shukla Teras' the witness could properly see the faces of the accused.
10. Sh.Naresh Chug (Pw.47), who was posted as Additional Chief Judicial Magistrate Tonk and conducted identification parade, deposed that he took all precautions while conducting identification parade and Suresh Kumar correctly identified the accused. He drew identification memos (Ex.P-2 to Ex.P-6) on July 11, 2002.
TEST IDENTIFICATION:
11. It is canvassed by learned Counsel for the appellants that test identification was held virtually after two and half months of the occurrence and as such it was not safe to trust such identification. We have considered this submission. It is true that with lapse of time the memory of witness who had seen the culprits at the time of commission of the dacoity, gets dimmer and dimmer, the earliest that test identification is held, it inspires more faith about the fairness of the test identification. But no time limit can be fixed for holding a test identification, after the investigating officer will be debarred from putting the suspects for test identification. While accepting the position that such test identification should be held at the earliest at the same time it cannot be ignored that it is not always within the reach of the investigating officer or upto him to hold such test identification.
12. In Delhi Administration v. Bal Krishan : 1972CriLJ1 the Apex Court held that it cannot be laid down as a proposition of law that after a lapse of a long period the witnesses would, in no case, be able to identify the dacoits they had seen in the course of a dacoity committed during the night. However, the courts will have to be extremely cautious when such evidence is before them.
13. In Bharat Singh v. State of UP : 1972CriLJ1704 their Lordships of the Supreme Court indicated that although it is desirable to hold identification parade at the earliest opportunity, when there is a delay of three months in holding the identification parade, it is the duty of the accused to cross-examine the police officer, who conducted the investigation and the Magistrate who held the parade if the accused wishes to take advantage out of such undue delay.
14. In Lal Singh v. State of UP : 2004CriLJ378 the Supreme Court observed that an offence in the nature of dacoity is committed more often than not, by persons who are unknown to the victims. The perpetratory of such crime are usually persons who are motivated by sheer greed to commit such offences. In cases where the offence is usually committed by unknown persons with a criminal and professional background, it is only in very rare cases that they are known to the victim. In most cases of such nature the accused is an unknown person and the only evidence which may connect him with the crime is the evidence of identification in test identification parade and in some cases evidence of recovery of the articles which are the subject matter of robbery. Para 43 of the judgment reads thus:
43. It will thus be seen that the evidence of identification has to be considered in the peculiar facts and circumstances of each case. Though it is desirable to hold the test identification parade at the earliest possible opportunity, no hard and fast rule can be laid down in this regard. If the delay is inordinate and there is evidence probablising the possibility of the accused having been shown to the witnesses, the court may not act on the basis of such evidence. Moreover, cases where the conviction is based not solely on the basis of identification in court, but on the basis of other corroborative evidence, such as recovery of looted articles, stand on a different footing and the court has to consider the evidence in its entirety.
RECOVERY OF INCRIMINATING ARTICLES:
15. We at this juncture deem it appropriate to analyse the evidence of recovery of weapons and looted currency notes. As per the testimony of N.K.Atrey (Pw.45), blood stained sword (Article 1) and 15 packets of currency notes in the sum of Rs.one lac and fifty thousand (Articles 2to23) got recovered at the instance of appellant Pappu vide recovery memo (Ex.P-8). Motbirs Durga Shankar (Pw.2) and Satya Narain (Pw.11) corroborate the fact of recovery. Recovery memos (Ex.P-16, Ex.P-20, Ex.P-25 and Ex.P-23) are the recovery memos that connect appellants Rajendra, Bhanwar Pal, Rafeeq, Khaju and Pyare Lal with the recovery of weapons allegedly used at the time of commission of offence. As per FSL report (Ex.P-109), Sword (Article 1) recovered at the instance of Pappu, Lathi (Article-5) recovered at the instance of Rajendra, Iron Pipe (Article-7) recovered at the instance of Khaju and Axe (Article-4) recovered at the instance of Rafeeq were found stained with human blood. analyse the evidence of recovery of weapons and looted currency notes. As per the testimony of N.K.Atrey (Pw.45), blood stained sword (Article 1) and 15 packets of currency notes in the sum of Rs.one lac and fifty thousand (Articles 2to23) got recovered at the instance of appellant Pappu vide recovery memo (Ex.P-8). Motbirs Durga Shankar (Pw.2) and Satya Narain (Pw.11) corroborate the fact of recovery. Recovery memos (Ex.P-16, Ex.P-20, Ex.P-25 and Ex.P-23) are the recovery memos that connect appellants Rajendra, Bhanwar Pal, Rafeeq, Khaju and Pyare Lal with the recovery of weapons allegedly used at the time of commission of offence. As per FSL report (Ex.P-109), Sword (Article 1) recovered at the instance of Pappu, Lathi (Article-5) recovered at the instance of Rajendra, Iron Pipe (Article-7) recovered at the instance of Khaju and Axe (Article-4) recovered at the instance of Rafeeq were found stained with human blood.
16. According to learned Counsel for the appellants the said articles were planted by the police in collusion with Suresh Kumar and alleged recovery was farce. We do not see any substance in this contention. The recovery of afore quoted articles got effected after the appellants gave information under Section 27 of the Evidence Act.
17. Section 27 of Evidence Act lays down an exception to the rule that a confession made by an accused person whilst he is in custody must be excluded from evidence and permits the admission of such a confession under the conditions prescribed by it. The law in India on the subject dealt with in Section 27 is wider than the common law in England. It appears from the provisions of Section 27 that it has been taken bodily from the English law. In both the laws there is a greater solicitude for a person who makes a statement at a stage when the danger in which he stands has not been brought home to him then for one who knows of the danger. In English Law, the caution gives him a necessary warning and in India the fact of his being in custody of a police officer serves the purpose. accused person whilst he is in custody must be excluded from evidence and permits the admission of such a confession under the conditions prescribed by it. The law in India on the subject dealt with in Section 27 is wider than the common law in England. It appears from the provisions of Section 27 that it has been taken bodily from the English law. In both the laws there is a greater solicitude for a person who makes a statement at a stage when the danger in which he stands has not been brought home to him then for one who knows of the danger.
18. In English Law, the caution gives him a necessary warning and in India the fact of his being in custody of a police officer serves the purpose. Section 27 seems to be based on the view that if a fact is actually discovered in consequence of information given some guarantee is afforded thereby than the information was true and accordingly can be safely allowed to be given in evidence. It is not correct to presume that information given by the accused under Section 27 is compelled testimony, so as to attract Article 20(3) of the Constitution.
19. In Prakash Chand v. State (Delhi Admn.) : 1979CriLJ329 the Apex Court held that the evidence of circumstance simpliciter that an accused led a police officer and pointed out the place where weapon was found hidden, would be admissible as conduct, under Section 8, admissible as conduct, under Section 8, contemporaneously with or antecedent to such conduct falls within the purview of Section 27.
20. In Rammi v. State of MP : 1999CriLJ4561 , the Apex Court held thus:(Paras 11&12)
Regarding the recovery of weapons, the prosecution could utilise statements attributed to the accused on the basis of which recovery of certain weapons was effected. Section 27 of the Evidence Act permits so much of information which lead to the discovery of a fact to be admitted in evidence. Here the fact discovered by the police was that the accused had hidden the blood stained weapons. In that sphere what could have been admitted in evidence is only that part of the information which the accused had furnished to the police officer and which led to the recovery of the weapons.
True, such information is admissible in evidence under Section 27 of the Evidence Act, but admissibility alone would not render the evidence, pertaining to the above information, reliable. While testing the reliability of such evidence the court has to see whether it was voluntarily stated by the accused.
21. In Himachal Pradesh Administration v. Om Prakash : 1972CriLJ606 the Apex Court interpreted Section 27 of Evidence Act thus:
A fact discovered within the meaning of Section 27 must refer to a material fact to which the information directly relates.
In order to render the information admissible the fact discovered must be relevant and must have been such that it constitutes the information through which the discovery was made. What should be discovered is the material fact and the information that is admissible is that which has caused that discovery so as to connect the information and the fact with each other as the `cause and effect' that information which does not distinctly connect with the fact discovered or that portion of the information which merely explains the material thing discovered is not admissible under Section 27 and cannot be proved. The concealment of the fact which is not known to the police is what is discovered by the information and lends assurance that the information was true. No witness with whom some material fact, such as the weapon of murder, stolen property or other incriminating article is not hidden, sold or kept and which is unknown to the police can be said to be discovered as a consequence of the information furnished by the accused. What makes the information leading to the discovery of the witness admissible is the discovery from him of the thing sold to him or hidden or kept with him which the police did not know until the information was furnished to them by the accused.
22. In Ghanshyam Das v. State of Assam (2005) 13 SCC 387 the Supreme Court held that evidence regarding pointing the place where weapon was thrown and its recovery can be looked into to throw light on the conduct of accused under Section 8. It was observed as under:(Para 5)
Another incriminating circumstance which corroborates the case of the prosecution is that the appellant led the IO PW.12 to Kharbhanga riverside and pointed out the place where he had thrown away the Khukri. According to the evidence of PW.12 the IO and PW.6, the Khukri was recovered from the river with the help of a diver. Though both the courts have eschewed this circumstance from consideration on the ground that no information was recorded by PW.12 the IO so as to attract Section 27 of the Evidence Act, we are of the view that the evidence of PW.12 and PW.6 to the effect that the accused led them to the spot and pointed out the place where the Khukri was thrown, which fact stands confirmed by its recovery, can be looked into to throw light on the conduct of the accused under Section 8 of the Evidence Act.
CONCLUSION:
23. In the instant case, we have found that the prosecution has sufficiently established the recovery of currency notes, which were the subject matter of robbery, from the possession of appellants Pappu and his wife Smt.Kesanta. The weapons, used in inflicting injuries to deceased Uchchav Lal and injured Suresh Kumar got recovered on the basis of disclosure statements of appellants. Appellant Pappu was named in the FIR and other appellants Rajendra, Bhanwar Pal, Pyare Lal, Rafeeq and Khaju were correctly identified by injured Suresh Kumar (Pw.1) in the test identification parade as well as in the trial court. We have already held that Suresh Kumar had ample opportunity of noticing the facial features of the appellants in the moonlit night. Moreover the delay in holding the test identification parade was not inordinate and nothing has been elicited in the cross examination of the investigating officer and the Additional Chief Judicial Magistrate who held the test identification parade. The prosecution has also satisfactorily established that right from the day of their arrest the appellants Rajendra, Bhanwar Pal, Pyare Lal, Khaju and Rafeeq were kept `Baparda' so as to rule out the possibility of their faces being seen while in police custody. In these circumstances, even if it is assumed that there was some delay in holding the test identification parade, the rule of caution was rightly applied by learned trial court. The substantive evidence of identification in court is, therefore, supported by corroborative evidence which is unimpeachable in nature and, therefore, conviction of appellants Pappu, Rajendra, Bhanwar Pal, Pyare Lal, Rafeeq and Khaju is fully justified. the delay in holding the test identification parade was not inordinate and nothing has been elicited in the cross examination of the investigating officer and the Additional Chief Judicial Magistrate who held the test identification parade. The prosecution has also satisfactorily established that right from the day of their arrest the appellants Rajendra, Bhanwar Pal, Pyare Lal, Khaju and Rafeeq were kept `Baparda' so as to rule out the possibility of their faces being seen while in police custody. In these circumstances, even if it is assumed that there was some delay in holding the test identification parade, the rule of caution was rightly applied by learned trial court. The substantive evidence of identification in court is, therefore, supported by corroborative evidence which is unimpeachable in nature and, therefore, conviction of appellants Pappu, Rajendra, Bhanwar Pal, Pyare Lal, Rafeeq and Khaju is fully justified.
24. That takes us to the allegations against appellants Smt.Kesanta and Badri Lal, who have been respectively convicted under Sections 412 and 201 IPC. Recovery of a sum of Rs. 90,000/- got effected from Smt.Kesanta, who is the wife of appellant Pappu. If money was handed over to Smt.Kesanta by her husband, it cannot be presumed under Section 114A of the Evidence Act that she kept the money knowingly that it was a theft property. Similarly charge under Section 201 IPC could not be established against Badri Lal beyond reasonable doubt. Badri Lal is the father of Pappu. The prosecution examined Ishaq Mohd. (Pw.42) to establish that Badri Lal was washing the jeep and thus removing stains of blood in order to destroy the evidence. On examining the testimony of Ishaq Mohd. from the point of view of trustworthiness, we find him highly unreliable. It appears to us that the investigating officer implicated whole family of Pappu. We are of the considered opinion that possibility of over implication of Smt.Kesanta and Badri Lal cannot be ruled out.
25. For these reasons, we dispose of instant matters in the following terms:
(i) We allow the appeal of Kesanta and acquit her of the charge under Section 412 IPC. She is on bail, she need not surrender and her bail bonds stand discharged.
(ii) We allow the appeal of Badri Lal and acquit him of the charge under Section 201 IPC. He is on bail, he need not surrender and his bail bonds stand discharged.
(iii) The appeals of Pappu, Rajendra, Bhanwar Pal, Pyare Lal, Rafeeq and Khaju being devoid of merit stand dismissed. Findings of conviction and sentence arrived at against these appellants by learned trial Judge stand confirmed.
(iv) The impugned judgment of learned trial court stands modified as indicated above.