Rajasthan High Court - Jaipur
Dharam Pal vs State Of Rajasthan on 15 January, 2004
Equivalent citations: RLW2004(2)RAJ1290, 2004(2)WLC398
JUDGMENT Shiv Kumar Sharma, J.
1. The appellant was placed on trial before, the learned Additional Sessions Judge Kishangarhbas District Alwar in Sessions Case No. 42/1998 on the allegations of robbery and murder. The learned Judge vide judgment dated Feb. 8, 2001 convicted and sentenced the appellant, as under:-
Under Section 302 IPC To suffer Imprisonment for life and fine of Rs. 25,000/- in default to further suffer one year Rigorous Imprisonment. Under Section 394/397 IPC To suffer Seven Years Rigorous Imprisonment and fine of Rs. 20,000/- in default to further suffer, One Year Rigorous Imprisonment. Under Section 120B IPC To suffer Seven Years Rigorous Imprisonment and fine of Rs. 10,000/- in default to further suffer One Year Rigorous Imprisonment. Under Section 3/25 Arms Act: To suffer One Year Rigorous Imprisonment and fine of Rs. 1,000/- in default to further suffer. Three Months Rigorous Imprisonment. All sentences were ordered to run concurrently.
2. A Jweller Krishna Kumar was robbed and killed outside his shop on February 18, 1998 at around 9 p.m. when he alongwith his wife Anita Devi came out of his shop with the bag containing gold and silver ornaments. Report of the incident was lodged by Hariom with the Police Station Bhiwari where a case under Sections 394 and 302 IPC was registered and investigation commenced. The Investigating Officer arrested appellant Dharam Pal and at his instance got recovered ornaments vide memo (Ex.P-9) and 12-bore Deshi Katta (country made gun) vide memo (Ex.P-13). Witnesses Hari Om (PW.1) and Anita Devi (PW.7) identified Dharampal in the Identification Parade held before the Magistrate. The ornaments recovered at the instance of Dharam Pal also got identified by these witnesses.
3. On completion of the investigation charge sheet was filed against the appellant Dharam Pal and other co-accused persons Chochu @ Afsar, Hukma @ Hukam Chand, Yusuf and Kanwar Singh. As Chochu @ Afsar, Yusuf and Kanwar Singh absconded, standing warrant was issued against them and the case came up for trial only against Dharam Pal and Hukma @ Hukam Chand. Charges under Sections 394, 120B, 397 and 302 IPC and 3/25 Arms Act were framed against the appellant, who denied the charges and claimed to be tried. The prosecution in support of its case examined as many as 20 witnesses. In the explanation under Section 313 Cr.P.C., the appellant claimed innocence. In defence Hukam @ Hukam Chand examined himself. Learned Trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. Co-accused Hukma @ Hukam Chand was however acquitted.
4. Learned trial judge primarily founded the conviction of the appellant on substantive evidence of identification supported by corroborative evidence in the form of recoveries of looted ornaments and 12 Bore country made gun from the possession of appellant. When the instant appeal came up for hearing in the month of July 2003 we had to invoke Section 391 Cr.P.C. for the purpose of recording of the statement of the Investigating Officer. We have now heard the final submissions.
5. Learned counsel for the appellant vehemently criticised the findings of the learned trial judge and made following submissions :
(i) Witness Hariom (PW.1) and Anita Devi (PW.7) were not present at the time of occurrence and their testimony could not have been relied upon.
(ii) No independent person was examined and details of looted ornaments were not incorporated in FIR.
(iii) As photograph of the appellant was published in the news paper prior to conducting the identification parade, identification of the appellant looses significance.
(iv) The Investigating officer planted the recoveries of ornaments and fire arm in order to falsely implicate the appellant.
6. In support of the contentions learned counsel placed reliance on Girja Shankar Misra v. State of U.P. (1), wherein their Lordships of the Supreme Court, indicated as under:
"It is true that the test identification parade is a step in investigation, but it is the identification in the Court that is an evidence. The test identification parade assumes importance particularly if held within a reasonable time after the commission of the offence. It loses its significance when there is enormous delay in holding it."
7. In Wakil Singh and Ors. v. State of Bihar (2), Hon'ble Supreme Court propounded that where none of witnesses gave any description of dacoits in their statements or in oral evidence nor gave any identification marks, such as stature of accused or whether they were fat or thin or of fair colour or black colour, and only one witness identified dacoits after certain days from test identification parade. Conviction, cannot be based only on identification by single witness.
8. In Ravindra @ Ravi Bansi Gohar etc. v. State of Maharashtra and Ors. (3), it was held as under :
"The identification parades belong to the investigation stage and they serve to provide the investigating authority with materials to assure themselves if the investigation is proceeding on right lines. In other words, through these identification parades that the investigating agency is required to ascertain whether the persons whom they suspect to have committed the offence were they suspect to have committed the offence were the real culprits and not by showing the suspects of their photographs. Such being the purpose of identification parades the investigating agency, by showing the photographs of the suspects, whom they intended to place in the test identification parade, made it farcical."
9. In Laxmipat Choraria and Ors. v. State of Maharashtra (4), it was held that there can be no doubt that if the intention is to rely on the identification of the suspect by a witness his ability to identify should be tested without showing him, the suspect or his photograph, or furnishing him the data for identification. Showing a photograph prior to the identification makes the identification worthless.
10. In Vijayan v. State of Kerala (5), where the witness had identified the accused in test identification parade but failed to identify him in court, it was observed that not only photograph of the accused shown to the witness but also in all local news papers his photograph published, in such circumstances test identification parade rightly disbelieved by the trial judge. It was further observed that a witness seeing an unknown man running cannot identify him at a later point of time particularly when no special feature indicated by the witness.
11. Before analysing the submissions advanced before us we deem it appropriate to scan the relevant material collected by the prosecution against the appellant.
12. Dead body of the deceased was subjected to autopsy and as per post mortem report, (Ex.P-30) the deceased sustained following antemortem injuries-
"On abdominal wall 2.5cm above the umblicus there is a wound of entry of 2x2cm in diameter the skin around the wound 7x7cm blackening. The internal abdominal mass is coming out through the hole. The skin which having the wound of entry is preserved.
On dissection the wound is passing upward and laterally on Lt.side. The abdominal cavity is full of blood. The posterior wall of stomach having a hole of size 4x4cm in diameter on opening the stomach some pallets with a hard circular piece of diameter 2x2cm. The size of pallets is equal to (MASOOR KI DALKE DANE KE BRABER) on further dissection transverse colon embedded with pallets, Some pallets also recovered from Ms. of Lt. chest wall Lt. side of diaphragm and lower part of Lt. lung.
The cause of death is haemorrhagic shock due to injury to abdominal and thoracic viscera due to bullet injury."
13. After arresting the appellant, ornaments made of gold and silver, details of which are given below, got recovered vide memo (Ex.P.9) at the instance of the appellant:
Gold:
(i) One ring.
(ii) two lockets.
(iii) Two Jhumkies.
(iv) 16 Ear rings round shape.
(v) One small locket.
(vi) Five ear-rings.
(vii) One small chain.
(viii) one piece of chain.
(ix) 10 round pieces of Gold.
(x) 118 Nose pins.
Total weight 70 Cms.
Silver :
(i) One coin Ambedkar.
(ii) 41 Coins (one rupee).
(iii) 64 Coins of Swastik, Laxmi and Ganesh.
(iv) 20 big size coins.
(v) Five chains with lockets.
(vi) Six waist ornaments.
(vii) Sixbangles.
(viii) 35 Chains plain.
(ix) 15 chains with lockets.
(x) 20 pairsof anklets.
(xi) 21 Anklets.
(xii) Three pairs of ear rings.
(xiii) Two rings.
(xiv) Five lockets without chain.
(xv) Two long chains for the waist Total weight 5kg. 750 gms.
14. Twelve Bore Country made gun and one live bullet got recovered at the instance of the appellant vide recovery memo Ex.P. 13.
15. Anita (PW.7) got identified the appellant in the identification parade and the proceedings of identification parade were drawn in the memo Ex.P.15.
16. In order to appreciate the contentions raised by the learned counsel we proceed to scan the testimony of Anita (PW.7). In her deposition Anita stated that she used to sit in the jwellers shop with her husband Krishna Kumar and at the time of incident she was with him and incident occurred in her presence. She had seen the faces of the assailants property. The assailant who snatched the bag was short in height. She gave the list of ornaments about about 7-8 days of the occurrence. She had identified the assailants in jail. She also identified the ornaments and put her signatures on the memos. She did not see the photographs of the assailants in the news paper and the assailants were not shown to her by the police before she identified them in Jail. She had identified appellant Dharam Pal in the trial court and deposed that this short statured man had snatched the bag.
17. The evidence of identification of culprits plays a very significant role and if found trustworthy is sufficient to seek their conviction. But before the identification is made the foundation of conviction it should be fair and free from all taints. The fact of identification whether of person or property, is relevant and admissible in evidence under Section 9 of the Evidence Act, the substantive evidence regarding identification is that which is given by the witness in court during trial. But as has been consistently held a mere identification of a culprit in court has little or no evidentiary value in the absence of prior test identification parade. In Jayawant Dattatraya Suryarao v. State of Maharashtra (6), their lordships of the Supreme Court propounded thus:-
"Substantive evidence of a witness is his evidence in court. Identification parade is not primarily meant for the court but is meant for investigation purposes. It serves two purposes, namely, to enable the witness to satisfy that the prisoner whom he suspects is really the one who was seen by him in connection with the commission of the crime and for the investigating authority that the suspect is the real person whom the witness had seen in connection with the said occurrence. In case where the evidence is cogent, consistent and without any motive, it is no use to theoretically imaging that as the witness has seen the accused for a few minutes it would be difficult for him to identify. It always depends upon one's capacity to recapitulate what he has seen earlier. Power of perception and memorising differs from man to man and also depends upon the situation. Finally, appreciation of such evidence would depend upon the strength and trustworthiness of witnesses."
18. On examining the testimony of Anita (PW.7) from the point of view of trustworthiness we find it cogent, consistent and without any motive. From her evidence we find that when she along with her husband Krishna Kumar came out of the shop one person who was short in height made attempt to snatch the bag of ornaments, when Krishna Kumar did not loose the grip of the bag, another person whose height was long gave three-four blows on the person of Krishna Kumar, thereafter he was shot down and assailants took away with them the bag of ornaments. Anita handed over the list of looted ornaments on February 19, 1998 (Ex.P.14). Short statured person was identified by Anita as Dhararn Pal in the identification parade held before Shri Satish Chand Kaushik Judicial Magistrate Kishangarhbas (Alwar) (PW.20) held on February 27, 1998 only after nine days of the incident. Appellant Dharam Pal was also correctly identified by Anita before the learned trial court. The appellant was arrested on February 26, 1998 vide arrest memo (Ex.P.31) and on the next day i.e. on February 28, 1998 identification proceedings (Ex.P.15) was drawn. Appellant after his arrest gave information on February 26, 1998 that he had kept the silver ornaments in two polithene bags and gold ornaments in one polithene bag and concealed them in a pit on the right corner of his animal cottage and he could get those ornaments recovered. This information was noted down in a memo Ex.P.43 and the ornaments got recovered from the informed place at the instance of the appellant vide memo Ex.P.9. Similarly appellant gave information after his arrest about 12 Bore country made gun and one live bullet got recovered vide recovery memo Ex.P.13. Puskar Raj Sharma (PW. 16) who was Tehsildar Tijara conducted identification proceedings of the ornaments vide memos Ex.P.5, Ex.P.6 and Ex.17, Ex.P.18 and Ex.P.19 and Anita correctly identified the ornaments.
19. Section 27 of the Evidence Act lays down that when any fact is deposed to as discovered in consequence of information received from a person accused of an offence, in the custody of Police Officer, so much of information, whether it amounts to confession or not, as relates distinctly to the fact thereby discovered may be proved. This section is founded on the principle that even though the evidence relating to confessional or other statements made by a person, whilst he is in custody of Police officer is tainted, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted, in so far it distinctly relates to a fact thereby discovered. It rests on the view that if a fact is actually discovered in consequence of information given by the accused some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. Before the provisions of Section 27 can be attracted two essential requirements should be satisfied, namely -
(i) the person making the statement must be accused of any offence, and
(ii) he must be in the custody of a police officer.
It is only when both the above requirements are satisfied that the information relating to the discovery can be received in evidence.
Section 27 is based on the doctrine of confirmation by subsequent facts. That doctrine is, that where, in consequence of a confession otherwise inadmissible, search is made and facts are discovered which confirm it in material points, then such discovery is a guarantee that the confession made was true. But only that portion of the information can be proved which relates distinctly or strictly to the facts discovered. Conduct and concealment are incriminating circumstances and their discovery becomes relevant and admissible under Section 27.
20. Fact situation emerges in the case on hand, may be summarised as under-
(i) At the time of incident Anita (PW.7) was with her husband Krishna Kumar (deceased) and she had ample opportunity to see faces of the assailants.
(ii) There is nothing on record that could suggest that Anita did not possess capacity to recapitulate what she has seen earlier or her power of perception and memorising was less.
(iii) Anita neither saw photograph of Dharam Pal, in the newspaper nor Dharam Pal was shown to her by the police.
(iv) Identification parade was conducted without any delay by the Judicial Magistrate and Anita identified appellant Dharam Pal in the said parade.
(v) Anita after giving description of the height of Dharam Pal, correctly identified him before the learned trial court.
(vi) On the basis of information supplied by appellant Dharam Pal ornaments made of gold and silver got recovered from the place belonging to Dharam Pal and which was not accessible to other persons.
(vii) 12 Bore country made gun and one live bullet got recovered at the instance of appellant.
(viii) Appellant himself led evidence that he was involved in transport business and had a shop in the vicinity of the shop of the deceased.
(ix) Anita did not have any knowledge that appellant's shop situated in the same market where her deceased husband's Jwellery shop existed.
(x) Appellant could not explain as to how he came into possession of large number of gold and silver ornaments and how the said ornament kept concealed in a pit at a place belonging to him.
21. We find no substance in the submission of learned counsel that appellant Dharam Pal was falsely implicated in the case. Although Hukam Chand (DW.1) deposed that he and Dharam Pal jointly run transport business and their shop existed in the main market of Bhiwadi just 200 yds. away of the shop of Krishna Kumar but Anita categorically denied the suggestion that she had knowledge of the fact that Dharam Pal's shop situated in the same market. We find it inexplicable that if Dharam Pal was transporter than in what manner he came in possession of hundreds of chains earrings and other ornaments made of gold and silver and why they were kept concealed in a pit inside his animals cottage. The infirmities shown to us in the prosecution case by learned counsel are not material. Inconsistency in the ocular and documentary evidence in regard to handing over the list of looted ornaments at the police station, in our opinion, hardly affects the truthfulness of the prosecution story. Even if we ignore the testimony of informant Hariom, conviction of appellant can be safely based on the cogent and trustworthy evidence of Anita. We find no substance in this contention that recoveries of ornaments and fire arm were planted. Having appreciated the entire evidence on the record we are satisfied that the learned trial court was right in convicting and sentencing the appellant.
22. That being so, it would not be appropriate in the circumstances of the case to interfere with the impugned judgment of the learned trial court. The appeal fails and is dismissed.