Rajasthan High Court - Jaipur
Rizwan vs State Of Rajasthan Through Pp on 23 March, 2017
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR
BENCH JAIPUR
JUDGMENT
SB Criminal Appeal No.441/2015
Rizwan son of Shri Babudeen, by caste Musalman, resident of near
Masjid, Govind Nagar, Udyognagar, Kota (Rajasthan)
...Accused-Appellant
Versus
State of Rajasthan
....Respondent
Date of Judgement ::::::: 23.03.2017
PRESENT
HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL
Mr.Suresh Sahni, for the appellant.
Mr.R.R.Gurjar, Public Prosecutor for the State.
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BY THE COURT:
The accused-appellant has preferred this Criminal Appeal under Section 374 Cr.P.C. against the judgment of conviction and order of sentence dated 28.4.2015 passed by the Additional Sessions Judge No.5, Kota in Sessions Case No.80/2012 whereby the learned trial Court after holding the appellant guilty for offence under Section 324 read with Section 34 IPC sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.2,000/- and in default thereof to further undergo simple imprisonment for seven days, for offence under Section 326 read with Section 34 IPC sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.3,000/- and in default thereof to further suffer simple imprisonment for fifteen days, for offence under Section 307 read with Section 34 IPC he was sentenced to undergo rigorous 2 imprisonment for seven years and to pay a fine of Rs.5,000/- and in default thereof to further undergo simple imprisonment for one month and also holding him guilty for offence under Section 394 IPC sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- and in default thereof to further suffer simple imprisonment for one month. It was further directed that all the substantive sentences would run concurrently. It is to be noted that alongwith appellant, co-accused-Shri Shankarlal was also tried and was similarly convicted and sentenced and the appeal filed by co- accused-Shri Shankarlal was dismissed as not pressed by the High Court vide order dated 16.5.2016 by the reason that he has already served the sentence imposed by the trial Court.
Brief relevant facts for the disposal of this appeal are that "Parcha-Bayan" of one-Shri Deepak Meena was recorded on 6.11.2008 by Shri Digvijay Singh S.I. Police Station Kunhari, Kota when the he was undergoing treatment at MBS Hospital, Kota in which it was alleged by the complainant that on 2.11.2008 in the night at about 10 p.m. he was going by motorcycle and when he reached in front of Saint John School, four persons came on a motorcycle and intercepted him as a result thereof he fell down and one of them fired at him in order to cause his death and the fire shot by that person after tearing through his hand hit and inflicted injury on the left side of his chest. It was further alleged that the person who fired at him was of the age of about 20-25 years whom he can identify if he comes before him. In 3 the "Parcha-Bayan" it was further stated by him that the persons involved in the incident took his motorcycle alongwith them. On the basis of Parcha-Bayan, FIR No.325/2008 for offences under Sections 394, 307 read with Section 34 IPC came to be registered at Police Station Kunhari, Kota and during the course of investigation appellant was arrested in this case from Central Jail, Kota on 5.8.2009 when he was in judicial custody in some other criminal case. Identification parade of appellant was conducted on 11.8.2009. It is to be noted that, apart from appellant, co-accused-Shri Shankarlal, juvenile-Shri Chetan Meena and one Shri Jahid were also found involved in the incident. After investigation charge-sheet for offences under Sections 307,394,324,326 read with Section 34 IPC and for offence under Section 5/27 of the Arms Act was filed against Shri Shankarlal and for offences under Sections 307, 394, 324, 326 read with Section 34 IPC was filed against the appellant whereas charge-sheet was filed against juvenile-Shri Chetan Meena before the Juvenile Justice Board. Investigation was kept pending under Section 173 (8) Cr.P.C. against Shri Jahid. Learned trial Court framed charge for offences under Sections 324/34, 326/34, 307/34, 394 IPC and for offence under Section 5/27 of the Arms Act against co-accused-Shri Shankarlal whereas charge was framed against the appellant for offences under Sections 324/34, 326/34, 307/34 and for offence under Section 394 IPC. In order to prove the charges prosecution produced oral as well as documentary evidence whereas appellant in his statement under 4 Section 313 Cr.P.C. denied the evidence produced on behalf of the prosecution and specifically stated that he has falsely been implicated but in defence no evidence was produced. Learned trial Court after considering the submissions made on behalf of the respective parties and appreciating and evaluating the evidence made available on record convicted and sentenced the appellant and co-accused-Shri Shankarlal as already stated.
Assailing the findings of the learned trial Court, counsel for the appellant submitted that it is an admitted fact that appellant was not known to the complainant-Shri Deepak Meena since before the alleged incident and the only evidence upon which the appellant has been found to be involved in the incident is his identification by complainant during the course of identification parade held on 11.8.2009 as well as during trial when he was examined as witness before the trial Court but it was not safe to convict the appellant only on the basis of his identification because during investigation at any point of time including in his "Parcha-Bayan" and statement recorded under Section 161 Cr.P.C. the complainant did not disclose the physionomy and special features of the appellant facilitating his identification on 11.8.2009 during identification parade more particularly in view of the fact that it was almost impossible for the complainant to correctly identify the appellant, a stranger for him, after nine months from the incident. It was further submitted that no evidence is available on record to show that sufficient light was 5 available at the place of incident in which it was possible for the complainant to have impressions and features of the persons involved in the incident in his mind more particularly in view of the fact that the incident occurred suddenly and lasted only for few minutes and no specific role was not attributed to the appllant in the incident. It was also submitted that no evidence has been produced by prosecution to satisfy the Court that sufficient precautions were taken by the investigating officer to rule out the possibility of complainant to see the appellant when he was in police custody during the course of investigation and in absence thereof it can be inteferred that appellant was shown to the complainant before identification parade was conducted on 11.8.2009 which facilitated the complainant to correctly identify appellant as one of the person involved in the incident. It was submitted that it is well settled legal position that if the accused is shown to a witness before actual identification parade is conducted, identification of accused by such witness during identification parade and trial carries no evidentiary value. It was also submitted that admittedly no recovery of any kind was made from the appellant which fact further fortifies the claim of appellant that he has falsely been implicated in the present case only by the reason that he was involved in some other crime and was in judicial custody in Central Jail, Kota from where he was arrested in this case also. Lastly, it was submitted that magistrate conducting the identification parade did not appear as witness during trial and in absence thereof whole exercise 6 of identification parade stood futile and inadmissible in evidence.
In support of his submissions, learned counsel for the appellant relied upon the case of Wakil Singh & Ors. Vs. State of Bihar reported in 1981 (Supp.) SCC 28.
On the other hand, learned Public Prosecutor submitted that although the sole evidence against the appellant in the present case is his identification by complainant during identification parade and trial but nothing has come in his cross-examination doubting veracity of his statement more particularly in view of the fact that appellant did not claim at any point of time that before identification parade he was shown to the complainant. It was further submitted that from the evidence available on record it is clear that at the place of incident sufficient light was available facilitating the complainant to see the faces of persons involved in the incident and to retain their features in his mind so as to identify them when occasion arises. It was also submitted that identification of appellant as a person involved by complainant cannot be doubted and rejected merely by the reason that incident is of 2.11.2008 and identification parade was held on 11.8.2009 more particularly in view of the fact that the appellant was arrested in the present case only on 5.8.2009. It was submitted that retention of facial features of a stranger for a quite long time depends upon the personal capacity of a particular person and it varies from person to person and no general principle can be laid down that after a long time it is almost impossible for a person to identify a stranger. 7 It was also submitted that from the evidence available on record it is clear that sufficient precautions were taken by the investigating officer so as to prevent the complainant to see the appellant before identification parade was conducted on 11.8.2009.
On consideration of submissions made on behalf of the respective parties and the evidence produced during the course of trial and the well settled legal position, I do not find any illegality, perversity or infirmity in that part of the impugned judgment whereby learned trial Court has found the appellant as a person involved in the incident. Although, the sole evidence by which the appellant has been found to be involved in the incident is his identification by complainant-Shri Deepak Meena during identification parade held on 11.8.2009 as well as during trial but nothing has come in his statement so as to doubt his claim that appellant was one of the persons involved in the incident. In his "Parcha-Bayan" Ex.P1A recorded on 6.11.2008 at 11.30 a.m. when complainant was undergoing treatment at MBS Hospital, Kota, apart from other, he stated that he can identify the person who fired at him who was about the age of 20-25 years. He further stated that he fell down when the bullet hit him and all the four person involved in the incident took his motorcycle with them. In his examination-in-chief the complainant has said that he can identify the persons involved in the incident. He further stated that identification parade was conducted by Magistrate and he correctly identified appellant as a person involved in the 8 incident. During his examination before Court also complainant identified the appellant, who was present, as a person involved in the incident. In his cross-examination complainant has said that although the incident occurred at night but it was not total dark and he identified the person involved in the incident in traffic and road light. In his cross-examination he denied the suggestion that before he identified the appellant on 11.8.2009 he was shown to him at Police Station. He further denied that he identified the appellant during identification parade by the reason that he was shown to him at Police Station. He also denied the suggestion that he saw the appellant for the first time during identification parade or during trial. It was clarified by him that he saw the appellant for the first time at the place of incident. It is thus clear that nothing has come in his lengthy and searching cross-examination that appellant was shown to him before identification parade was conducted on 11.8.2009. As per Ex.P16 arrest memo of appellant he was arrested in this case on 5.8.2009 at 2.15 p.m. when he was in judicial custody in Central Jail, Kota in some other case. As per the note made mentioned in the arrest memo appellant was kept "Baparda" and his features were not mentioned in the memo as identification parade was required to be held. This shows that sufficient precautions were taken by the investigating officer to rule out the possibility of complainant to see the appellant before identification parade is held. Although, as per Ex.P15 memo of inspection and verification of place of incident, it is shown that 9 appellant was taken to the place of incident to verify it on 5.8.2009 at 6.15 p.m. when he was in police custody but nothing has come on record to show that complainant was also present there affording opportunity to him to see the appellant. Otherwise also, looking to the fact that appellant was kept "Baparda" after his arrest possibility was totally ruled out for the complainant to see the appellant when he was taken to the place of incident for its verification. As per the remand- sheet dated 6.8.2009 available on record, it is further clear that the appellant was produced "Baparda" before the concerned magistrate on 6.8.2009 and he was immediately sent to judicial custody and thus he remained in police custody for less than twenty four hours. Although, no evidence is available on record to show that complainant was also present in the Court when appellant was produced before it for remand giving opportunity to the appellant to see the face of appellant but otherwise also this possibility was ruled out as appellant was produced "Baparda". Once the appellant was admitted in judicial custody, possibility to see him before identification parade was totally ruled out and, therefore, adverse inference cannot be raised against prosecution and identification parade can not be doubted and rejected merely by the reason that it has held with some delay on 11.8.2009. From the evidence available on record it is clear that the complainant had sufficient time and opportunity to see and observe the faces of the persons involved in the incident including that of appellant and there was sufficient road side light to do so and, therefore, it is not 10 unnatural on his part to identify the appellant as one of the person involved in the incident not only during the test identification parade but also in the Court during trial. No general criteria can be laid down that it is almost impossible for a person to recognize and identify a stranger involved in a criminal incident after lapse of long time. It depends upon the facts and circumstances of a case and also retention power of a particular person how long he can retained the features of a stranger involved in such an incident. It is to be noted that appellant neither during identification parade nor in his statement recorded under Section 313 Cr.P.C. stated that he was shown to the complainant before identification parade was conducted. So far as non-production of the magistrate conducting the identification parade as witness during trial is concerned, it does not adversely affect the evidence of the witness identifying the accused in identification parade and Court. It is thus clear from the evidence available on record that the appellant was one of the person involved in the incident and benefit of doubt cannot be given to him on account of any of the grounds raised on his behalf.
Now, it is to be seen whether trial Court was right to hold the appellant guilty for all the offences for which he was charged and tried. I am of the view that the appellant was not liable to be separately convicted for offences under Sections 324/34, 326/34, 307/34 IPC and he was liable to be convicted for offence under Section 394 IPC only. Section 394 IPC provides that if any person in 11 committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. Thus, as per this provision not only the person who actually causes hurt in committing robbery, but also any other person jointly concerned in it is liable to be similarly punished. In the present case, as per the evidence available on record it was co-accused-Shri Shankarlal who fired at the complainant and caused injury to him but as appellant was also involved in the incident he also committed offence under Section 394 IPC and is liable to be punished similarly. I am of the view that the appellant is liable to be acquitted for offences under Sections 324/34, 326/34, 307/34 IPC but in the overall facts and circumstances of the case and more particularly looking to the nature of injury caused to the complainant his conviction for offence under Section 394 IPC and sentence awarded by the trial Court for that offence is to be affirmed and upheld.
Consequently, the appeal is partly allowed and the appellant is acquitted for offences under Sections 324/34, 326/34 and 307/34 IPC but his conviction and sentence for offence under Section 394 IPC is maintained and upheld and his appeal to that extent is dismissed.
(PRASHANT KUMAR AGARWAL), J teekam Reserved judgment