Rakesh Saksena, J.
1. This judgment shall govern the disposal of both the above appeals, since both the appeals arise out of the common impugned judgment.
2. Appellants Sheikh Sayeed, Sheikh Anees and Kishore have filed the above appeals against the judgment dated 6th May, 2000 passed by Special Judge (SC/ST) and Additional Sessions Judge, Bhopal in Special Case No. 36/99 convicting them under Sections 302, 397 read with Section 394 of the Indian Penal Code and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentencing them to imprisonment for life with fine of Rs. 5000/-, rigorous imprisonment for 7 years with fine of Rs. 3000/- and imprisonment for life with fine of Rs. 10,000/- on each respectively. Appellant Rev Singh of Criminal Appeal No. 2567/2000 has been convicted under Section 302 read with Section 120-B of the Indian Penal Code and has been sentenced to imprisonment for life with fine of Rs. 5000/-. Though appellants Sheikh Sayeed, Sheikh Anees and Kishore have also been convicted under Section 460 of the Indian Penal Code but only appellant Kishore has been sentenced to rigorous imprisonment for 5 years with fine of Rs. 3000/-.
3. In short, prosecution case is that Mohan (the deceased) was working as Chowkidar on the agricultural farm of Shivlal Gandhi situated in village Jhagariya Khurd within the jurisdiction of police station Ratibarh District Bhopal. He, with his wife Santo Bai resided in a room constructed in the said farm. On 29.9.98 at about 10 o'clock in the night while Mohan was sleeping on a cot in front of his room and Santo Bai was sleeping inside the room, on hearing shrieks of Mohan, Santo Bai saw two persons catching hold of Mohan. Though Mohan tried to get himself released from the clasp of those persons but another person, who was wielding a knife, stabbed him in the chest. Santo Bai also tried to save Mohan but in vain. She went running towards the huts of accused Kailash and Rev Singh to seek help, whereupon they and another person came at her hut, but by that time miscreants had gone away. She found Mohan lying dead at some distance from the hut. Somebody informed to police Ratibarh on telephone therefore Station Officer viz. Punendra Singh (PW19) reached at the spot in the night itself and recorded Dehati Naleshi (Ex.P/19) given by Santo Bai. As per Dehati Naleshi, at about 3:00 a.m., First Information Report Ex.P/17 was recorded at police station. Police people drew the spot map Ex.P/35 and seized blood stained soil etc. from the spot. According to Santo Bai, she found that miscreants had also taken away Rs. 7500/-, a deck and hmt watch of her husband. She also stated in Dehati Naleshi that she was able to identify the miscreants because she had seen them in the electric light of the hut. Dead body of Mohan was sent to Medico Legal Institute, Gandhi Medical College, Bhopal, where Dr.Ashok Sharma (PW8) conducted the postmortem examination.
4. On 4.10.98, accused Sheikh Sayeed was arrested and on his information, a 'Churi' and a leather belt was seized. On the same day, accused Kishore and Sheikh Anees were also arrested. A hmt watch and a country made pistol was seized from the possession of accused Kishore. A knife and the deck of deceased was seized from the possession of accused Sheikh Anees. On 5.10.98, accused Rev Singh and Kailash were arrested. A silver chain with a locket was seized from the possession of accused Rev Singh.
5. On 6.10.98, accused Sheikh Sayeed, Sheikh Anees and Kishore were put up for test identification parade conducted by Naib Tehsildar Ramesh Chandra Dubey (PW18). Santo Bai (PW12) identified them as perpetrators of the crime. On 24.10.98, Executive Magistrate S.C. Upadhyaya (PW9) conducted the test identification parade in respect of properties allegedly looted from the house of deceased and recovered from the possession of accused persons. The weapons seized from the accused persons were sent to Forensic Science Laboratory, Sagar. A caste certificate Ex.P/41 in respect of complainant Santo Bai was also obtained from the concerned Tehsildar. After completion of the investigation, charge sheet was filed in the court of Special Judge, Bhopal.
6. Learned trial Judge framed the charges against the appellants and accused Kailash. They abjured their guilt and pleaded false implication. Learned trial Judge, after trial and upon appreciation of the evidence adduced in the case, held the accused/appellants guilty and convicted and sentenced them as mentioned above, however, finding the evidence insufficient against accused Kailash, acquitted him.
7. Shri A.D. Deoras, learned Senior Advocate and Ms. Manisha Shrivastava, Advocate for the appellants, submitted that the trial Court gravely erred in placing implicit reliance on the evidence of prosecution witnesses. According to them, the case rested mainly on the evidence of sole eyewitness Santo Bai, who was not wholly reliable witness. Her evidence was inconsistent and discrepant. The prosecution story was artificial. There was no evidence on record to hold appellant Rev Singh guilty of the offence under Section 302 read with Section 120-B of the Indian Penal Code. On the other hand, Shri S.K. Rai, Government Advocate, submitted that the evidence of Santo Bai was natural and consistent, therefore, trial Court committed no error in holding the appellants guilty of the charges levelled against them. He justified the finding of conviction recorded by the trial Court.
8. We have heard the learned Counsel of both the sides and perused the impugned judgment and evidence on record carefully.
9. It is not disputed that the deceased met with a homicidal death. Santo Bai (PW12) deposed that in the night at about 10 o'clock, her husband Mohan was sleeping outside the room. She saw in the electric light that two of the accused persons held him and another dealt a blow by a 'Churi' on the left side of his chest. Mohan tried to run away but he fell down at some distance and died.
10. Investigating officer Punendra Singh (PW19) deposed that he found the dead body of Mohan lying in the field about 50 paces away from the hut of Santo Bai. He conducted the inquest in presence of witnesses and found a stab injury on his chest. He sent the body of Mohan for postmortem examination to Medico Legal Institute, Bhopal. Dr. Ashok Sharma (PW8), who was posted as junior forensic expert in the institute, conducted the postmortem examination of the body. He found a penetrating wound on the left side of chest of the deceased. Wound was situated 8 cm below the left nipple and the size of the wound was 2 x 0.2 cm. Its margins were clear cut. It had entered into the left thoracic cavity from 5-6th intercostal space penetrating left lower lobe of lung through and through pericardial and left ventricle of the heart upto left body aspect of thoracic vertebra. According to Dr. Sharma, the death of Mohan was caused due to shock and excessive haemorrhage. Injury was caused by sharp penetrating weapon and was homicidal in nature. The injury was sufficient to cause death of deceased in the ordinary course of nature. Postmortem report is Ex.P/11. From the above evidence, it is clearly established that deceased died a homicidal death.
11. Now the question is whether appellants Sheikh Sayeed, Sheikh Anees and Kishore caused the death of deceased and looted property from his house. Santo Bai (PW12), wife of deceased, deposed that she and her husband were residing in the hut in the field of Mr. Gandhi since last 1 1/2 years. In the night at about 10 o'clock while deceased was sleeping on a cot outside the hut and she was sleeping in it, she heard him shouting. The door of the room was open. In the light of electric bulb she saw a person standing at the door with a 'Churi' in his hand. Two persons had caught hold of the deceased. She asked them not to beat her husband but they abused and threatened her. She tried to save him, however, one of the persons attempted to assault her also with the 'Churi', but she managed to save herself. Other accused persons carried the deceased by twisting his arm and catching his waist to some distance and third accused dealt a blow by 'Churi' on the left side of his chest. She tried to save deceased with a stick but one of the accused snatched it and kicked her away. She rushed from the spot and informed the incident to Kailash. She also went to the huts of pardi people and came back with some persons. Accused Rev Singh stopped her from proceeding ahead. She then found her husband lying dead. When she went inside her room she found that a deck machine, a wrist watch, a silver chain with locket, a leather belt and cash of Rs. 7000/- kept in the room were missing. Accused persons had stolen away these articles. She deposed that accused Rev Singh used to work at the field of Mr. Gandhi, before Mohan Singh joined. 4-5 days prior to occurrence, Rev Singh had asked Mohan Singh to leave that place and about 15 days before it, Rev Singh had come to her hut also and had caught hold of her hand. Deceased had admonished him but Rev Singh intimidated him that he would have to leave the room. Santo Bai identified accused Anees, Kishore and Sayeed before the Court. She further deposed that somebody telephoned to police in the night, therefore, police reached at the spot in the night itself and she lodged the report. She had identified the accused persons in the jail. She had also identified the articles, which were stolen from her house, in the Tehsil office.
12. Learned Counsel for the appellants submitted that Santo Bai in fact did not see the occurrence. It is evident from the fact that the dead body of deceased was found lying in the field away from her hut. This fact, according to him, is further rendered probable from the fact that police did not seize her clothes which according to her were stained with blood of the deceased. It has been categorically stated by Santo Bai that two of the accused persons had caught the deceased and had taken him away to some distance from the place where he was asleep on the cot. We, therefore, find no force in the above submission made by learned Counsel. Though Santo Bai stated that her hands and clothes were stained with blood of deceased, but merely because police did not seize her clothes during investigation, it cannot be held that Santo Bai did not witness the occurrence. The report of the incident was lodged in the night itself and in the morning dead body was shifted to Medico Legal Institute for postmortem. In the state of commotion if the Investigating Officer committed mistake and did not seize the clothes of Santo Bai, no adverse interference can be drawn against the reliability of her testimony. The fact that Santo Bai saw and identified the accused persons in the light of electric bulb finds corroboration from Dehati Naleshi (Ex.P/19), wherein she categorically stated about the presence of light of electric bulb.
13. The argument advanced by learned Counsel for the appellants that police acted under the influence of Mr. Gandhi is not acceptable to us. It is true that Santo Bai admitted that Mr. Gandhi met police people in the hospital and asked them to write down as he said and that police wrote something on the paper and obtained her thumb impression, but no such document was used by the prosecution in the case. As far as Dehati Naleshi is concerned, it is not disputed that it was recorded in the night, at the spot itself. All the material facts deposed by Santo Bai are found mentioned in the said Dehati Naleshi. It has been categorically stated by Santo Bai that Mr. Gandhi did not come at the spot in the night whereas police reached there in the night. The evidence of identification of accused Anees, Kishore and Sayeed by Santo Bai is corroborated by the evidence of test identification parade conducted by Naib Tehsildar Ramesh Chandra Dubey (PW18) on 6.10.98. Accused persons were arrested on 4.10.98 and the test identification was conducted promptly on 6.10.98. Executive Magistrate Ramesh Chandra Dubey (PW18) deposed that he held the identification parade in Central Jail, Bhopal. Santo Bai identified the accused persons out of twelve other persons put up in the parade. He recorded the identification memorandum Ex.P/34. We find no ground to disbelieve the evidence of Executive Magistrate.
14. Though the motive of commission of offence has been attributed to accused Rev Singh, but accused persons viz. Anees, Sayeed and Kishore were not named by Santo Bai and the report was lodged against unknown offenders only. There was no reason for Santo Bai to have falsely identified the said accused persons before Executive Magistrate or the Court. Her evidence finds corroboration not only with the medical evidence of Dr. Ashok Sharma (PW8) who conducted the postmortem examination of the body of Mohan but also by Dehati Naleshi Ex.P/19 lodged by her promptly after the occurrence. After critically scrutinizing the evidence of Santo Bai, we find that her evidence regarding identification of the accused persons is trustworthy and the trial Court committed no error in relying on her evidence about participation of the aforesaid accused persons in causing death of deceased.
15. The next question before us is whether the conviction of appellants Sheikh Sayeed, Sheikh Anees and Kishore for the offence under Section 397 read with Section 394 and Section 460 I.P.C. is justified. According to Santo Bai (PW12), her husband Mohan was sleeping on the cot outside in front of the door of her room. When accused persons reached there they took him forcibly at some distance in the field and then one of them inflicted injury to him by 'Churi'. It is apparent that the deceased was assaulted while he was outside the house of Santo Bai. She did not say that accused persons entered her house. Though learned trial Judge framed the charge under Section 460 of the Indian Penal Code stating that accused caused death of Mohan by committing trespass or house breaking in the night but it is not revealed from the evidence of Santo Bai that they entered the house of Santo Bai while causing death of Mohan. Another piece of evidence which could be relevant for holding the accused persons liable under Section 397/394 I.P.C. is that they committed theft of deck machine, hmt wrist watch and a silver chain with locket, kept inside the house. For establishing this fact, there is no direct evidence. It has to be inferred on the basis of presumption under Section 114 of the Indian Evidence Act. According to Santo Bai, when she came back to the spot she found the dead body of Mohan lying in the field at some distance from her room and she further found that deck, watch, silver chain and Rs. 7500/- were missing from the room. From the evidence of Investigating Officer Punendra Singh (PW19), it appears that on 4.10.98, he arrested accused Kishore, Sayeed and Anees and on their information under Section 27 of the Evidence Act, recovered from their possession hmt wrist watch, a leather belt and a deck machine vide seizure memos Ex.P/21, P/23 & P/25. These articles were identified by Santo Bai in the test identification parade conducted by Naib Tehsildar S.C. Upadhyaya (PW9) on 24.10.98, but it is important to note that the aforesaid seized articles were not produced before the Court for identification by Santo Bai. On perusal of the evidence of Santo Bai, it is apparent that she did not identify these articles before the Court though she deposed that she identified these articles in jail before Naib Tehsildar.
16. It is settled that the test identification parades do not constitute substantive evidence; substantive evidence is the evidence of identification in Court. Test parades are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in Court. See Munshi Singh Gautam v. State of M.P. : (2005) 9 SCC 631.
17. In the absence of proof that the property recovered from the possession of accused was stolen or looted property, it cannot be presumed that the accused was either receiver of the stolen property or was the thief. Thus, we are of the view that prosecution failed to prove beyond a reasonable doubt that the articles recovered from the possession of accused persons were the same which were alleged to have been looted from the house of Santo Bai. In these circumstances, we are unable to hold that accused Sheikh Sayeed, Sheikh Anees and Kishore were liable to be convicted for the charge under Section 460 as well as under Sections 394/397 of the Indian Penal Code. The finding of conviction of the aforesaid accused persons under Sections 460 and 394/397 I.P.C. recorded by the trial Court, therefore, deserves to be set aside.
18. Next question before us is whether conviction of accused/appellant Rev Singh under Section 302 read with Section 120-B I.P.C. is justified. Santo Bai (PW12) deposed that about 1 1/2 years before the occurrence, Rev Singh worked on the farm house on which they were working. About 4 days prior to occurrence, he had asked Mohan Singh to leave this job. About 15 days before the incident he had also come at her hut drunk and had caught hold of her hand. He had threatened Mohan Singh that he would not be able to live in the cottage with peace any more. The fact that about 15 days before the occurrence, Rev Singh caught the hand of Santo Bai, was found missing in Dehati Naleshi (Ex.P/19) lodged by her. It was also deposed by Santo Bai that immediately after the occurrence when she went back to the spot with other people, Rev Singh stopped her and asked her to not to go ahead. This conduct of Rev Singh, in our opinion, does not give rise to any inference that he had conspired with other accused persons to kill the deceased. It is quite possible that he might have asked her to not to go at the spot for the purpose of her safety. The fact that Rev Singh wanted that Mohan Singh should leave the job with a view that he may again work on the farm house of Mr. Gandhi and for that purpose he extended threats to Mohan Singh, may furnish some evidence of the motive of commission of the offence, but it does not furnish any evidence of his hatching conspiracy with other accused persons to commit murder of Mohan Singh.
19. The evidence of Bhoyan Singh (PW13) and Salamat Ali (PW15) also stands on the same footing. Bhoyan Singh (PW13) happened to be the father of Santo Bai. According to him, about 1 1/2 years ago Rev Singh had asked Mohan Singh to work as guard on the field of somebody where Rev Singh was working, but subsequently Rev Singh again wanted to work on that job and for that purpose he asked Mohan Singh to go away from that place. Rev Singh had started harassing Mohan Singh with a view that he may leave the job.
20. Surendra Singh (PW16) deposed that he had kept Rev Singh as care taker of the agricultural farm of his father-in-law Shivlal Gandhi. Shivlal Gandhi was residing at Gwalior. In June, 1997, Rev Singh left the job and went to his village, however, he brought Mohan Singh for taking care of the farm. In September 1998, Rev Singh approached to him with the request that he again wanted to work at the farm, but he refused him. In the night intervening between 29th and 30th September, 1998 he was informed that somebody killed Mohan Singh. He came to know that some unknown person had committed murder of Mohan Singh. It is true that it is difficult to support the charge of conspiracy with direct evidence in every case but if the prosecution relies upon circumstantial evidence, a clear link has to be established and the chain has to be completed, otherwise it would indeed be hazardous to accept a part of the link as a complete one and on the basis of such incomplete evidence, the allegation of conspiracy cannot be accepted. See Param Hans Yadav v. State of Bihar : AIR 1987 SC 955. The evidence of criminal conspiracy constitutes in a meeting of mind of two or more persons for agreeing to do or causing to be done an illegal act or act by illegal means and the performances of an act on terms thereof, it clearly envisages that there must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of the offence.
21. Though in addition to the evidence of the aforesaid witness, the evidence of recovery of a silver chain with a locket from the possession of Rev Singh has also been stated but the fact that such a silver chain was stolen by any of the accused persons who caused death of Mohan Singh is not found mentioned by Santo Bai in Dehati Naleshi Ex.P/19. Apart from that the said chain was not produced or identified by Santo Bai before the Court. After appreciating all the above circumstances, we are of the view that the evidence adduced by the prosecution cannot be held sufficient to hold the accused/appellant Rev Singh guilty of hatching conspiracy with other accused persons to commit murder of Mohan Singh. The finding of trial Court in this regard appears to us erroneous, therefore, conviction of Rev Singh under Section 302 read with Section 120-B of the Indian Penal Code deserves to be set aside.
22. Learned Counsel for the appellants next submitted that the conviction of accused/appellants under Section 3(2)(v) of SC/ST (Prevention of Atrocities) Act is illegal because there is no evidence on record to indicate that the death of Mohan Singh was caused by the accused persons on the ground that he was a member of scheduled tribe.
23. It is not disputed that complainant Santo Bai (PW12) and her husband Mohan were members of scheduled tribe but the question is whether accused persons caused the death of Mohan on the ground of his being a member of scheduled tribe. Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 reads as under:
3. Punishments for offences of atrocities.- (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe.-
(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine.
Bare reading of the above provision indicates that a person can be held liable under the provision if he commits the offence as provided against a person or property of a person who is member of scheduled caste or scheduled tribe on the ground that such person is the member of scheduled caste or scheduled tribe.
24. On perusal of the testimony of Santo Bai, there appears absolutely no allegation that accused persons caused the death of Mohan Singh on the ground that he was the member of Scheduled tribe. We have already found that there is not enough evidence to hold that accused Rev Singh hatched any conspiracy to commit murder of Mohan Singh. There is also no evidence on record to indicate that accused Sheikh Sayeed, Sheikh Anees and Kishore committed the aforesaid offence on the ground that deceased was the member of Scheduled Tribe. Since the essential ingredients for constituting the offence under Section 3(2)(v) are not proved, in our opinion, the conviction of appellants Sheikh Sayeed, Sheikh Anees and Kishore under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 cannot be upheld.
25. For the reasons stated above, we are of the considered opinion that the trial Court committed error in convicting and sentencing appellant Rev Singh under Section 302 read with Section 120-B I.P.C. Accordingly, his conviction and sentence is set aside. He is acquitted. Conviction and sentence of appellants Sheikh Sayeed, Sheikh Anees and Kishore under Section 397 read with Section 394 I.P.C. and Section 460 I.P.C. are set aside. Conviction and sentence of all the appellants under Section 3(2)(v) of SC/ST (Prevention of Atrocities) Act, 1989 is also set aside. They are acquitted of the said charges.
26. Conviction and sentence of appellant Sheikh Sayeed under Section 302 I.P.C. and conviction and sentence of appellants Sheikh Anees and Kishore under Section 302 read with Section 34 I.P.C. are affirmed.
27. Appeals are partly allowed.
28. A copy of this judgment be kept in the record of Criminal Appeal No. 2567/2000.