State Vs. Ajjikuttira Poovaiah - Court Judgment

1. The State is aggrieved by the judgment of the Sessions Judge, Kodagu District, Madikeri acquitting the accused persons of the charges u/s 307 r/w 34 IPC and Section 3 & 27 of the Indian Arms Act.

2. The prosecution case was that on 31-5-1987 at about 4 p.m. when PW-1 was going in Nagarahole Forest for bringing firewood, the two accused persons shared common intention of murdering PW-1 Javara and that in pursuance of that common intention A-1 fired a shot from M.O. 1 - gun causing grievous injury to PW-1 and that A-1 had no license to possess the gun.

3. The prosecution examined 10 witnesses in support of its case. The gist of the prosecution case as disclosed in the evidence is as hereunder :

On 31-5-1987 at about 4 p.m. PW-1 went inside Nagarahole forest to bring firewood. A-1 & A-2 were in the forest and A-1 who was armed with a gun asked PW-1 to stop. But PW-1 started running. Then A-1 fired from the gun. PW-1 sustained injuries on his back and other parts of the body. PW-1 ran to his house and informed his brother PW-2 Dass who took him to PW-3 K. S. Uthappa, Mandal Pradhan. PW-3 took PW-1 to the police station in a car. The PSI, PW-7 recorded the complaint of PW-1 and then sent him to Virajpet Hospital where he was examined by PW-4, Dr. M. B. Vidyadhara. The doctor advised that the patient may be taken to a major hospital. On the same day PW-7 along with PW-3 and PW-5 went to the house of A-1 who produced M.O. 1, gun. PW-7 seized the same. Thereafter in the company of A-1 they went to the forest. A-1 pointed out a place where they found bloodstains on dried leaves. They also recovered a wad M.O. 3 and M.O. 4 empty cartridge. The bloodstained leaves were also seized at the spot. The gun as well as the wad were sent to PW-9 Scientist Officer along with empty identification marks were not given and, therefore, it was not possible for any human-being to remember the features of the accused after a long lapse of time during the identification parade and there was every likelihood of committing a mistake by the witnesses in the identification and in the absence of any particular features and identification marks of the accused it is unsafe to convict the accused-appellants for such serious offences on the basis of the identification parade; (ii) during the identification parade neither the names of the persons, who were mixed with the accused at the time of the identification parade, have been given nor it has been shown that what precautions were taken by the learned Magistrate at the time of holding the identification parade and the accused were shown to the witnesses at the Police Station before the identification parade was held and in the Court accused Virendra Singh was identified only by P.W. 4 Hanwant Singh and no other witness has identified this accused; (iii) Bal Singh and Madhuraj Singh are not the reliable witnesses; (iv) the recoveries have been made from the jungle and not from the accused-appellants; and (iv) accused Balveer Singh has the marks of small-pox on his face and accused Rajveer Singh has a wink in his eye and the persons similar to them were not mixed during the identification parade and looking to these infirmities the appellants deserve to be acquitted. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below.

4. We have considered the submissions made by the learned counsel for the parties.

5. P.W. 3, Bal Singh, P.W. 4, Hanwant Singh, P.W. 6, Prahlad Singh, P.W. 9, Ganpat Dass and P.W. 12, Nathu Singh were sitting in the drawing room of the fortress of Hanwant Singh when the accused came there. They ransacked the house. There was a light in the room and these witnesses had ample time and opportunity to see these accused persons with their naked eyes. The accused were not with muffled faces. Sufficient time was taken by the accused in ransacking the house. These witnesses had seen the accused from a very close proximity. They have the structures of the accused in their minds and rightly identified the appellants during the identification parade held by P.W. 16 Mr. Ayyaz Mohammed - the Munsif and Judicial Magistrate, Nagpur. P.W. 16 Mr. Ayyaz Mohammed has stated that accused Raju was correctly identified by Sanwta Ram, Hanwant Singh, Yuvraj Singh and Bal Singh; accused Rajveer Singh was identified by Hanwant Singh, Prahlad Singh, Nathu Singh, Ganpat Dass and Yuvraj Singh; accused Virendra Singh and Balveer Singh were identified by Hanwant Singh, Prahlad Singh, Nathu Singh, Ganpat Dass, Yuvraj Singh, Bal Singh and Madhuraj Singh; accused Lohre was correctly identified by Hanwant Singh, Prahlad Singh, Nathu Singh, Ganpat Dass, Yuvraj Singh and Bal Singh; accused Ram Mohan was correctly identified by Madhuraj Singh, Hanwant Singh, Bal Singh, Ganpat Dass, Yuvraj Singh and Bhanwar Singh and accused Murari was correctly identified by Madhuraj Singh, Hanwant Singh and Yuvraj Singh. The accused have, also, been identified by these witnesses in the trial Court during the trial. Merely because the description of the dacoits have not been given in the FIR., the evidence of these witnesses, who were admittedly present there when the incident took place and had ample opportunity to see the accused and had seen them, identified them during the trial as well as during the identification parade held by the Magistrate, cannot be disbelieved. Even otherwise, Madhuraj Singh had seen the incident from the window of his room and immediately left the place and proceeded towards Police Station, Jayal and immediately lodged the report and the police, after registering the report, proceeded towards the place of the incident. The dacoity took place on 29-10-83 and the identification parade was held on 11-11-83, i.e., only after twelve days of the incident and the memory of the incident was fresh in the minds of these witnesses and, therefore, there was every possibility of keeping in mind the particulars of the health, structure etc. of the dacoits. These witnesses, in their statements recorded under Section 161 Cr.P.C., have clearly stated that they had properly seen the miscreants and would be able to identify them if they are shown to them. They had opportunity to see the faces and the features of the miscreants and to keep them in their mind and, therefore, the identification of the accused by these witnesses during the identification parade as well as in the Court during the trial, cannot be said to be unreliable. These witnesses had seen the accused from a very close proximity and remembered their features and identified them correctly and, therefore, their evidence inspires confidence. The evidence of these witnesses and their identifying the accused in the trial Court finds corroboration from the identification parade held by P.W. 16 Ayyaz Mohammed. The contention, raised by the learned counsel for the appellants, is, therefore, devoid of any force.

6. The next contention, raised by the learned counsel for the appellants, is that what precautions have been taken by the learned Magistrate in conducting the identification parade, have not been mentioned in the Memos prepared by him and the names of the persons, who were mixed with the accused, have not been shown by him in the Memo relating to the identification parade. P.W. 16 Mr. Ayyaz Mohammed, the Munsif and Judicial Magistrate, Nagaur, has stated that he conducted the identification parade in the District Jail, Nagaur, and mixed eight convicts with each of the accused while conducting their identification parade. The eight convicts of the identified structure, size and health were mixed with the accused and, thus, he followed all the necessary Instructions in connection with the Identification Parade. All necessary precautions were taken by the learned Magistrate in conducting the identification parade. Learned counsel for the appellants have not been able to show any infirmity in the identification parade held by the learned Magistrate. The identification of the accused were made in accordance with the law and there is no infirmity in the identification parade held by the Magistrate. Merely because the names of the persons mixed with the accused have not been given, it will not vitiate the identification parade unless some basic infirmity is pointed-out.

It is true that no persons having a wink in his eye and having the marks of small-pox on his face, were mixed with the accused as no such persons were available in the District Jail, Nagpur, but merely on this count, the identification parade will, not be vitiated.

7. The next contention, raised by the learned counsel for the appellants is that appellant Virendra Singh has been identified in the Court only by Hanwant Singh and not by any other witness. The dacoity took place in the fortress of Hanwant Singh. Accused Virendra Singh gave beatings to Hanwant Singh by a chain. He was in the close proximity of Hanwant Singh and this witness had ample opportunity to see this accused and to remember his features. He rightly identified this accused. Merely because the other witnesses have not identified this accused in the Court, the evidence of P.W. 4 Hanwant Singh cannot be rejected. He is a truthful witness and has rightly identified accused Virendra Singh.

8. The next contention, raised by the learned counsel for the appellants is that P.W. 3 Bal Singh and P.W. 20 Madhuraj Singh are not reliable witnesses and on the basis of their evidence, no conviction of the accused can be based. P.W. 3 Bal Singh was with Hanwant Singh. He left the place to meet the call of the nature sometime before the accused came and returned after sometime. We have gone through the statement of these witnesses. A lengthy cross-examination has been conducted on these two witnesses but nothing could be elicited which could make their evidence unreliable. The testimony of these witnesses remained unshaken in the cross-examination. We are of the opinion that both these witnesses are truthful and they were present at the scene of the occurrence when the incident took place. P.W. 3 was with Hanwant Singh and had gone to meet the call of the nature, returned after sometime and had seen the occurrence within the room as well as out-side the room. P.W. 20 Madhuraj Singh heard the sound of gun-fire and immediately left the house to lodge the report. The evidence of both these witnesses and that of the other eye-witnesses of the occurrence, viz., P.W. 4 Hanwant Singh, P.W. 6 Prahlad Singh, P.W. 9 Ganpat Dass, P.W. 10, Sawanta Ram (who is an eye witness of the second incident), P.W. 12 Nathu Singh, P.W. 18 Hari Singh (a witness to the second incident), thus, inspires confidence. They are the witnesses of sterling worth and the learned lower Court committed no illegality in placing reliance over the statements of these witnesses.

9. The next contention, raised by the learned counsel for the appellants is that there are material contradictions in the statements of the prosecution witness which makes them fully unreliable and on the basis of the evidence of these witnesses, no conviction can be based. We have gone through the statements of all the prosecution witnesses. After gone-through the statements of these witnesses we are of the opinion that there are no material contradictions in the statements of the prosecution witnesses which may make their evidence untrustworthy and their evidence thus inspires confidence.

10. The last contention, raised by the learned counsel for the appellants is that the recoveries were not made on the information and at the instance of the accused but they have been made from the open places accessible to all. This contention, raised by the learned counsel for the appellants, is, also, devoid of any force. The arrests of the accused were made in the presence of P.W. 5 Laxman Singh and P.W. 14 Moti Singh. The recoveries were, also, made in their presence. From the evidence of these two witnesses and that of P.W. 26 Chain Singh, S.H.O., who was the investigating officer, it is clear that the recoveries were made on the informations and at the instance of the accused. The recoveries made in the presence of these witnesses, thus, inspire confidence. No illegality has been pointed-out by the learned counsel for the appellants how the accused-appellants are not connected with these recoveries.

11. The prosecution has, therefore, been able to prove the case against the accused-appellants beyond reasonable manner of doubt and we see no infirmity in the judgment passed by the learned lower Court. The accused-appellants were rightly convicted and sentenced for the aforesaid offences by the learned trial Court.

12. In the result, we do not find any merit in these nine appeals and the same are hereby dismissed.

13. Appeal dismissed.