Desraj S/O Ramgopal Vs. State of Madhya Pradesh - Court Judgment

Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - state of bihar, air 1972 sc 283 the supreme court observed :the purpose of test identification is to test that evidence ,the safe rule being that the sworn testimony of the witness in court as to the identity of the accused who is a stranger to him, as a general rule, requires corroboration in the form of an earlier identification proceeding. state of bihar, air 1983 sc 289 to the following passage at page 291 :this indicates that all was not well with the identification. ' in view of this, learned counsel for the appellants submitted that previous conduct of the accused persons has no relevance or bearing with the present case as the bad character of the accused-appellants was not a fact in issue in the present case. 24. since i am convinced by the submissions as advanced by the learned counsel for the appellants that the accused persons were known to the prosecution witnesses and they were also shown to the prosecution, it is not necessary to record any finding on the alternative submission as that submission gets no importance on the failure of submissions nos.d.p.s. chauhan, j.1. having been convicted in s.t. no. 311/91 appellants deshraj, rajdhar and buddha have by means of present appeal approached this court for setting aside their conviction and sentence. accused deshraj and rajdhar were convicted under sections 394/397/34 and 450/34, indian penal code and accused buddha was convicted under sections 394/397 and 450, indian penal code.2. appellants deshraj and rajdhar were sentenced to 7 years r. i. under sections 394/397/34 and 3 years r.i. under sections 450/34, indian penal code and appellant buddha was sentenced to 7 years r. i. under sections 394/397, indian penal code and 3 years r. i. under section 450, indian penal code.3. the occurrence in question took place in the night of 23/24th of may, 1990 at about 3 or 4 o' clock in the morning in the house of one param in village naroda, district sagar. report (ex. p/l) of the incident was lodged on 24-5-1990 at p. s. khurai at 13.30 hrs. by param (p.w. 1).4. according to the learned counsel for the appellants, the appellants were arrested on 28-6-1991 and from appellant no. 1 deshraj one 'sang' (pointed instrument) was seized vide seizure memo ex. p/12 dated 28-6-1991. from appellant no. 2 rajdhar one lathi was seized vide ex. p/11 dated 28-6-1991 and from appellant no. 3 buddha one silver 'kardhoni' was seized vide ex. p/9 and 'katarna' was seized vide ex. p/10, dated 28-6-1991.5. the prosecution case in brief is that a dacoity was committed in the house of param (p.w. 1) in the night of 23/24th of may, 1990 in between 3-4 a.m., which is situated in his field in village naroda. the appellants entered into the house of param (p.w. 1) for committing dacoity armed with deadly weapons and robbed away one 'kardhoni' worth rs. 1200/-. in the night of occurrence param (p.w. 1) along with his wife pyaribai and daughters sonabai and shantibai was inside his house. param was sleeping outside the house. in the night at about 3 or 4 a.m. param (p.w. 1) saw torch light and saw 3 persons adjacent to him, who did not respond to his saying 'ram ram'. all the three persons came near to the complainant param (p.w. 1), out of whom one was having 'sang' and torch and the other was having 'katarna' and said handover the money and the ornaments as they may be having. the person who was armed with 'sang' hit param (p.w. 1) on his right rib with that 'sang'. the third person was said to have been armed with lathi, who hit him with lathi. at that time sonabai, the daughter of param (p.w. 1), out of fear ran away to the house of mansingh. shanti, the older daughter of param (p.w. 1), was wearing 'kardhani' of sonabai hid the same inside her clothes. it was also stated that one person was addressing the other as 'babloo', who entered into the house, and the person 'who was armed with 'sang' he searched the bedding where the 'kardhoni' was hidden and he took the same. thereafter all the three persons went towards thakur baba. on hearing hue and cry people of the other hamlets came there and subsequently they went to side of village naroda.6. the prosecution examined as many as 11 witnesses param, the complainant, was examined as p.w. 1. pyaribai, the wife of param (p.w. 1) was examined as p.w. 2. sonabai, the daughter of param (p.w. 1), was examined as p.w. 3. shanti was examined as p.w. 4. shriram from whom appellant no. 1 deshraj borrowed the torch was examined as p.w. 5. laxminarain before whom the memorandums of seizures were prepared was examined as p.w. 6. asgar ali khan, naib tahsildar, who conducted the test identification parade was examined as p.w. 7. udham, who was the witness of seizure, was examined as p.w. 8. mahesh prasad rajoria, assistant sub-inspector of police, who took down the f.i.r. and made the initial investigation was examined as p.w. 9. k. g. vaidya, town inspector, was examined as p.w. 10 and ramniwas khare, revenue inspector, who prepared the site plan was examined as p.w. 11.7. the appellants as usual denied their involvement in the alleged incident of dacoity, but did not lead any defence evidence.8. heard shri surendra singh, learned counsel for the appellants and shri d. v. pendharkar, learned panel lawyer for the state.9. learned counsel for the appellants made following six fold submissions :-i. that the test identification in the present case has no relevance as the accused persons belonged to adjoining village, which is at a distance of hardly 2 furlongs and they know accused persons.ii. the appellants were shown to the identifying witnesses in the village of dacoity where they were brought subsequent to their being taken into custody and as such the test identification loses its significance.iii. the test identification was held after lapse of one month and two days subsequent to the arrest of the accused persons, who were taken into custody on 28-6-1991 and were sent to prison on 29-6-1991 and thereafter brought before the court on 29-6-1991, 12-7-1991 and 25-7-1991 for remand purpose and were not kept 'baparda'.iv. (a) as far as appellant no. 1 deshraj is concerned, section 397, indian penal code would not apply in his case as be was alleged to have been armed with lathi which was not a deadly weapon.(b) that the offence under section 397, indian penal code is an individual liability and no aid of section 34, indian penal code can be taken for fastening guilt on the appellants.v. appellant no. 3 buddha not having been identified in the test identification parade but only identified by the witnesses in the court, could at the most be fastened with the guilt under section 411, indian penal code as he has been found in possession of the stolen property and his conviction under section 394/397, indian penal code is not in accordance with the law.vi. the appellants cannot be fastened with the liability for offence under section 450, indian penal code as in view of the statement of p.w. 1 param who had stated that only one person entered into the house and according to the statement of p.w. 2 pyaribai,the wife of the p.w. 1 param, nobody entered into the house.10. in support of the first submissions, learned counsel for the appellants invited the attention of the court to paragraph 1 of the statement of param (p.w. 1), which is as extracted below :-^^1- esa xzke ujksank esa [ksr es vijk cukdjjgrk gwa esa vfhk- x.k dks igpkurk gw vksj vfhk- cq)k vksj jkt/kj dk uke hkhtkurk gwa rhljk vfhk- iafmr gs rhuksa im+jbz ds fuoklh gsaa**he further invited the attention of the court to paragraph 6 of the statement of this witness, relevant extract of which is as extracted below :-^^6- esjs [ksr ls im+jbz xkao yxhkx rhu&pkjqykzax; nwj gksxka lk{kh dgrk gs fd chp esa ,d ukyk gsa ujksank vksj im+jbz ds [ksryxs gq, gsa esa izkjahk ls yxhkx 25 o'kksza ls [ksr ds vijk esa gh jgrkgwa yksx vius vius [ksr esa vijk cuk fy;s gs vksj ogha jgrs gsaa im+jbz xkods vkneh dke ls vksj etnwjh djus rfkk filkus xsagw vkfn ujksank vkrs gsaaesjs ?kj ds cktw ls ujksank ls im+jbz tkus okyk dppk jklrk gsaa ftlesa vknehvkrs&tkrs; gsaa ujksank vfkok im+jbz okys [kqjbz vkus ds fy;s xzke cugj vkdjcl esa csbrs gsaa cq)k dk firk gydw 3&4 lky igys ej pqdk gsa jkt/kj ds firkim+jbz esa [ksrh djrk gs vksj dksvokjh djrk gs] ns'kjkt ds firk jeew hkh im+jbzesa [ksrh djrk gsaa**he also invited the attention of the court to paragraph 7 of the statement of param (p.w. 1), which is as extracted below -^^7- esa vfhk- x.k dh gqfy;k crk;h fkh ij osfdlds ym+ds tsls yxrs gsa] ,slk ugha crk;k fkka vfhk- x. dks 2&3 vksj ywv dsekeyksa esa fxjrkj fd;k x;k fkk rc esa mugsa fkkus esa ns[kdj igpku x;k fkka**he thereafter invited the attention of the court to the statement of p.w. 2 pyaribai, wife of param (p.w. 1). in paragraph 2, she has stated as :-^^2- ;g lgh gs fd vfhk- x.k esjs xko ds iklds xko ds jgus okys gsaa esa ?kvuk ds le; gh tku x;h fkh fd vfhk- x.k im+jbzfuoklh gsaa esa fjiksvz ds le; iqfyl dks crk;h fkh fd esjs ?kj ywv djus okysxzke im+jbz ds fuoklh gsa ------a**11. on the basis of above, learned counsel for the appellants submitted that the witnesses already knew to the accused persons but in spite of that their names and details are neither given in the f.i.r. nor any description is given in the statement under section 161, criminal procedure code.12. learned counsel for the state invited the attention of the court to the statement of p.w. 3 sonabai. relevant extract of paragraph i of her statement is reproduced underneath :-^^1------ lk{kh gkftj vfhk- cq)k dh vksj b'kkjkdj dgrh gs fd blh us nqm+k;h fkha lk{kh dgrh gs fd blh vfhk- cq)k us mlds firkdks ekjk gsa vfhk- x.k lkax] qjlk] ykbh fy;s fksa vfhk- cq)k qjlk] vfhk- jkt/kjlkax rfkk ns'kjkt ykbh j[kk fkka esa vfhk- dks mlh le; igpku x;h fkh] ij os yksxidm+sa ugha x;sa -------a**and on this basis learned counsel submitted that sonabai (p.w. 3) has not stated about knowing the accused persons. in the cross-examination the witness has stated as under :-^^2- ?kvuk ds fnu esa vfhk- x.k dks igpku x;hfkh ij ;g ugha ekuh fkh fd ;s yksx im+jbz okys gsa ij idm+us ds ckn eq>stkudkjh gqbz fd tks yksx esjs ?kj ?kqls] os im+jbz okys gsaa**this cross-examination in fact does not support the prosecution version rather it supports the defence case about knowing accused persons from earlier, as has been stated by param (p.w. 1) and pyaribai (p.w. 2).13. so far as the test identification is concerned no provision has been pointed out as to where it is contained and what are its requirements.14. in halsbury's law of england (iv edn. volume ii, para 363) this passage occurs and is worth recalling :-'it is undesirable that witnesses should be asked to identify a defendant for the first time in the dock at his trial; and as a general practice it is preferable that he should have been placed previously on a parade with other persons, so that potential witness can be asked to pick him out.'the conduct of an identification parade belongs to the realm and is part of the investigation. the evidence of test identification is admissible under section 9, evidence act. but the value of the test identification, apart altogether from the other safeguards appropriate to a fair test of identification depends on the promptitude in point of time with which the suspected persons are put up for test identification. if there is unexplained and unreasonable delay in putting up the accused persons for a test identification, the delay by itself detracts from the credibility of the test.15. thus the test identification is the growth of judicial process. in hasib v. state of bihar, air 1972 sc 283 the supreme court observed :-'..the purpose of test identification is to test that evidence , the safe rule being that the sworn testimony of the witness in court as to the identity of the accused who is a stranger to him, as a general rule, requires corroboration in the form of an earlier identification proceeding...'16. learned counsel for the appellants relied on the case of hari nath v. state of u.p., air 1988 sc 345. in paragraph 7 the court said : what emerges from the evidence is that, at least, kamla prasad yadav (p.w. 1) could reasonably be expected to have known some of the appellants as residents of villages in close vicinity, and as students of the same institution is a statable probability and that his feigned ignorance of any prior familiarity with their identity becomes irreconcilable with what are incidents of ordinary human intercourse. the omission to disclose their identity in the f.i.r. would raise a reasonable doubt about their complicity in the crime.17. on the basis of above, learned counsel for the appellants submitted that in the present case evidence of param (p.w. 1), pyaribai (p.w. 2) and sonabai (p.w. 3) establishes beyond reasonable doubt that the accused persons were known to the prosecution witnesses. further reliance has been placed on the observations of the supreme court in the case of bali ahir v. state of bihar, air 1983 sc 289 to the following passage at page 291 :-'...this indicates that all was not well with the identification. the fact that the appellants belong to the neighbouring village at a distance of less than a mile, that the witnesses who came to identify the appellants had seen the accused from behind while escaping, that p.w. 2 had known bali ahir from before, yet he did not name him in the first information report and went to identify him when he fully knew bali ahir, that the identification of the two of the appellants took place after a gap of four days after their arrest, without explaining the cause for the delay, speaks for itself....'according to him, in the present case, the distance between the village of accused persons and of the complainant was that of 2 furlongs only. he further submitted while relying on paragraph 11 of the case of hari nath v. state of u.p. (supra) that absence of corroboration by test identification may not assume any materiality if either the witness had known the accused earlier or where the reasons for gaining an enduring impress of the identity on the mind and memory of the witness are, otherwise, brought out. the supreme court said :'courts ought not to increase the difficulties by magnifying theoretical possibilities. it is their province to deal with matters actual and material to promote order and not surrender it by excessive theorising or by magnifying what in practice is really unimportant.'the purpose of the test identification is for reassuring that clear impressions were gathered at the time of the occurrence. in the present case, the evidence itself has established that the accused persons were known to the prosecution witnesses and on that basis no credence can be given to the test identification, the whole purpose of which is reassuring that clear impressions were gathered by the prosecution witnesses at the time of the occurrence. the adjoining village is only 2 furlongs away. the witnesses were knowing the accused persons. in view of this value of the test identification loses its significance. thus the submission as advanced by the learned counsel for the appellants has got substance. it is a case where the prosecution witnesses were knowing the accused persons from before.18. the second submission is regarding showing the appellants to the identifying witnesses in the village of dacoity itself where they were brought subsequent to their being taken into custody. in this connection, learned counsel for the appellants invited the attention of the court to paragraph 7 of the statement of param (p.w. 1), which is to the following effect:^^7- vfhk- x.k dks 2&3 vksj ywv ds ekeyksaesa fxjrkj fd;k x;k fkk rc esa mugsa fkkus esa ns[kdj igpku x;k fkka**apart from this, learned counsel for the appellants invited the attention of the court to the statement of p.w. 2 pyaribai. in paragraph 2 she has stated as under :-^^2- idm+us ds 2&4 fnu ckn iqfyl vfhk- x.kdks gekjs vijk esa ys x;h fkh vksj gels iwnk fkk rks esa mls igpkuh fkha esjsifr ,oa ym+dh hkh igpku x;s fksa**p.w. 3 sonabai in her cross-examination has stated as :-^^2- idm+us ds ckn eq>s tkudkjh gqbz fd tksyksx esjs ?kj ?kqls os im+jbz okys gsaa**learned counsel for the appellants submitted that it is at least one occasion when the accused persons were shown to the prosecution witnesses by the police. he submitted that there were also other occasions that while seeking remand of the accused persons on 29-6-1991, 12-7-1991 and 25-7-1991 they were not brought before the court 'baparda.' in this connection, learned counsel for the state invited the attention of the court to the order-sheets dated 29-6-1991, 12-7-1991 and 25-7-1991 which find mention that the accused persons were produced before the court in custody 'baparda'. therefore, the 2nd submission as advanced by the learned counsel for the appellants is not founded on the evidence on the record and is accordingly rejected.19. in the sequence of third submission, learned counsel for the appellants submitted that there was delay in identification parade and the delay by itself is fatal for identification as it detracts from the credibility of the test. in this connection he pointed out from the case of hari nath v. state of u.p. (supra) that the value of the test identification, apart altogether from the other safeguards appropriate to a fair test of identification depends on the promptitude in point of time with which the suspected persons are put up for test identification. here in the present case identification was done after 30 days of the arrest of the accused persons as the investigating officer shri k. g. vaidya (p.w. 10) has stated that the accused were arrested on 28th june, 1991. learned counsel for the appellants also placed reliance on state of a.p. v. m. v. ramana reddy, air 1991 sc 1938 where the delay was only of 10 days. the supreme court observed : in the absence of a valid explanation for the delay we do not think that this approach of the high court can be said to be manifestly wrong to call for our intervention. in the present case, delay is of 30 days and for the delay there is no explanation on the record and as such the submission of the learned counsel for the appellants has got substance.20. in support of submission iv (a), learned counsel for the appellants placed before the court the following statement of param (p.w. 1) :^^2- muesa ,d vkneh cyye] ,d vkneh ykbh vksj ,dvkneh qjlk j[ks fkka**and according to him this witness does not say as to who was armed with what. the only statement is that one of the accused persons was carrying lathi. pyaribai (p.w. 2) and sonabai (p.w 3) have stated that appellant no. 1 was armed with lathi. according to the learned counsel for the appellants, section 397, indian penal code would not be attracted in the case of appellant no. 1 as lathi is not a deadly weapon and the requirement of section 397, indian penal code is the user of the deadly weapon. in this connection he placed reliance on the case of this court reported in jagdish and ors. v. state of m. p., (1974) jlj-sn 46 where the court held that section 397, indian penal code covers a case of a person who displays deadly weapons to frighten his victims or to make use of any deadly weapon for similar purpose. this section is merely a rider to section 394, indian penal code and complementary to section 392 thereof, but does not create any substantive offence. it merely regulates the punishment. where the accused had only a lathi and there is nothing to indicate that the lathi had iron covering over it, and also there is no proof of its size, the offence is under section 394 and section 397 is not attracted. in the present case it is not disputed that appellant no. 1 was not equipped with lathi but there is nothing to indicate that the lathi had iron covering over it so as to make it a deadly weapon. apart from this size of the lathi has also not been established by the prosecution. according to him case may not be under section 397, indian penal code but may be under section 394, indian penal code.21. the next submission in regard to point iv (b) is that the offence under section 397, indian penal code is an individual liability and cannot be taken with the aid of section 34, indian penal code and in this connection reliance was placed on phool kumar v. delhi administration, air 1975 sc 905 and reliance was placed to the following passage :-'5.....the term 'offender' in that section, as rightly held by several high courts, is confined to the offender who uses any deadly weapon. the use of a deadly weapon by one offender at the time of committing robbery cannot attract section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon..'in the present case, the appellant no. 1 was armed with lathi, which was not a deadly weapon, and as such he cannot be fastened with the liability under section 397, indian penal code in view of the aforesaid case of the supreme court.22. the 5th submission as advanced by the learned counsel for the appellants that appellant no. 3 buddha even otherwise not having been identified in the test identification parade but was only identified by the prosecution witnesses in the court, could at the most, in the event of any liability of guilt is found, be said to be in possession of stolen property and a presumption could only be that of committing offence under section 411, indian penal code and not under sections 394/397, indian penal code. in this connection, learned counsel for the appellants placed reliance on the case of surjit singh v. state of punjab, air 1994 sc 110. the facts of that case were different. that was a case of murder and not of dacoity. in a murder case, the presumption regarding possession of stolen property does not come. the case relied on is on different footing and is of no avail so far as the present appeal is concerned.23. learned state counsel, invited the attention of the court to the statement of p.w. 10 k.g. vaidya, town inspector. in paragraph 6 of his deposition this witness has stated that the accused are also connected with other crimes and, therefore, the conduct of the accused may be looked into. learned counsel for the appellants invited the attention of the court to section 54 of the evidence act, which reads as under :-'54. in criminal proceedings the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant.'in view of this, learned counsel for the appellants submitted that previous conduct of the accused persons has no relevance or bearing with the present case as the bad character of the accused-appellants was not a fact in issue in the present case.24. since i am convinced by the submissions as advanced by the learned counsel for the appellants that the accused persons were known to the prosecution witnesses and they were also shown to the prosecution, it is not necessary to record any finding on the alternative submission as that submission gets no importance on the failure of submissions nos. 1 and 2.25. in view of above, the appeal is allowed. the conviction and sentence as imposed on the appellants are set aside. the appellants are in jail. they be released forthwith unless wanted in connection with any other crime.