Himachal Pradesh High Court
Banti vs State Of Himachal Pradesh on 3 March, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 94 of 2013
Reserved on: March 03, 2015.
.
Decided on: March 03, 2015.
Banti ......Appellant.
Versus
State of Himachal Pradesh .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? Yes.
For the appellant: Mr. Bhupinder Ahuja, Advocate.
For the respondent: Mr. Neeraj K. Sharma, Dy. AG.
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Justice Rajiv Sharma, J.
This appeal is instituted against the judgment dated 27.11.2012, rendered by the learned Sessions Judge, Sirmour at Nahan, H.P. in Sessions Trial No. 18-ST/7 of 2009, whereby the appellant-
accused (hereinafter referred to as the accused), who was charged with and tried for offences punishable under Sections 458, 395, 342 and 120 B of the IPC, has been convicted and sentenced to undergo simple imprisonment for 6 months under Section 342 IPC. He was further sentenced to undergo RI for a period of 5 years and to pay find of Rs.
5000/- and in default to further undergo simple imprisonment for 6 months under Section 458 IPC. He was further sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 10,000/- and in default to undergo simple imprisonment for one year under Section 395 IPC. He was further sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs. 5000/- and in default to undergo simple ::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 2 imprisonment for 6 months under section 120 B IPC. All the substantive sentences awarded were ordered to run concurrently.
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2. The case of the prosecution, in a nut shell, is that PW-10 Parma Nand was running a Karyana shop on the road side in his village Timbi. He was residing with his wife PW-12 Chemali, children and mother PW-11 Manso Devi. On 24.11.2008, PW-10 Parma Nand had gone to the house of his sister in Village Dharma. During the intervening night of 24/25.11.2008 at around 1:30 AM, two unknown persons called from outside for "lalaji" and demanded petrol. PW-12 Chemali Devi wife of PW-10 Parma Nand replied that they don't have petrol and then they told her that they were to make payment to her husband. She told them to come on the next day. Thereafter, they demanded water, which she provided through the door grill and took back the tumbler. Later three persons entered the room of PW-11 Manso Devi. Two of them caught hold of her by her arm and the third one from her hair and took her to the veranda outside. When she tried to raise hue and cry, she was threatened by them with dire consequences. On hearing commotion, her daughter-in-law Chemali came out. One of them put a knife on her neck and threatened to kill her if she made noise. Thereafter, both of them were taken inside the room. The assailants had muffled their faces below their eyes. Manso Devi PW-11 and Chemali Devi PW-12, both were confined in a room where children were sleeping and room was bolted from outside. After some time, they entered again and tied their hands ::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 3 with Chunni. Then, they broke open the Almirah of one of the room and trunk in the third room. They removed all the jewellery, cash, clothes, .
one suit case, bed sheets, CD player, remote control and dish receiver.
The assailants were also joined by their other 2/3 accomplices. After committing dacoity in their house, they went to the shop of PW-10 Parma Nand and broke open the lock of the shop. They removed the shoes and cash lying in the shop. Thereafter, they came down to the house of PW-
11 Manso Devi, prepared tea in the kitchen and after taking tea, left the place. PW-11 Manso Devi heard the sound of starting of the vehicle.
After coming to know about the theft in their house, in the morning at around 6/7 AM, villagers visited their house. PW-10 Parma Nand was telephonically contacted by the co-villagers and informed about the incident. He rushed to his village. He noticed the Almirah kept in the room of his mother was broken. The gold and silver ornaments worth Rs.
20,000/- were found stolen. Thereafter, he inspected the wooden Almirah of his room. Its bolt was found broken. Rs. 80,000/- were found missing.
On 25.11.2008, PW-22 SI Jeet Singh received secret information about the dacoity in the village at the house of PW-10 Parma Nand. He effected the necessary recoveries from the spot. On 26.12.2008, he interrogated 8 accused persons who were arrested in another FIR No. 71 of 2008 in a bank dacoity case. Out of them, four accused, namely, Promod Kumar, Balbir Singh, Ramesh Kumar and Banti were found involved in this case.
On 6.1.2009, accused Banti while in police custody made disclosure ::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 4 statement Ext. PW-1/B and on the basis of this disclosure statement, he got CD player Ext. P-6, shoes Ext. P-8 and sweater Ext. P-7 recovered vide .
memo Ext. PW-5/A. On completion of the investigation, challan was put up after completing all the codal formalities.
3. Accused persons were charge sheeted under Sections 342, 458, 395 and 120 B IPC. They pleaded not guilty and claimed trial.
Accused Banti absconded and was declared as Proclaimed Offender. The remaining accused persons were tried and at the end of the trial, the trial Court convicted accused Balbir Singh, Suraj and Bablu alias Nona under Sections 342, 458, 395 and 120 B IPC. This Court vide judgment dated 30.9.2011, in Cr. Appeal No. 33/2011, 64/2011 and 204/2011 acquitted accused Balbir while the appeals filed by Suraj and Bablu were dismissed.
Accused Banti was re-arrested and put to trial. During trial, 5 witnesses whose statements were earlier recorded in the absence of this accused were recalled for further examination. His statement was recorded under Section 313 Cr.P.C. He denied the case of the prosecution. The learned trial Court convicted the accused, as noticed hereinabove. Hence, this appeal.
4. Mr. Bhupinder Ahuja, Advocate for the accused has vehemently argued that the prosecution has failed to prove the case against the accused. On the other hand, Mr. Neeraj Sharma, learned Dy.
Advocate General, appearing on behalf of the State, has supported the judgment of the learned trial Court dated 27.11.2012.
::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 55. I have heard learned counsel for both the sides and gone through the records of the case carefully.
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6. PW-1 Balbir Singh testified that the accused Banti had disclosed that he had concealed one CD player, one lady sweater and one sweater in his house. His statement Ext. PW-1/B was recorded by the police. He signed the same.
7. Statements of PW-2 Gulab Singh, PW-3 Jalam Singh and PW-
4 Liaq Ram are formal in nature.
8. PW-5 Raju Ram deposed that he alongwith police and accused Banti went to Patiala Sarhind, where they went to the house of accused Banti. Banti produced one CD player, one pair of shoes and one sweater. The said articles were taken into possession vide memo Ext. PW-
5/A. He identified Ext. P-6 CD player, Ext. P-7 sweater and Ext. P-8 shoes. Banti also produced one Panna which was also taken into possession after sealing the same in a packet vide memo Ext. PW-5/B. He identified Panna Ext. P-9.
9. PW-6 Ram Sarup, did not support the case of the prosecution and he was declared hostile. According to him, none had come to him for selling the articles.
10. Statements of PW-7 to PW-9 are formal in nature.
11. PW-10 Parma Nand deposed that on 24.11.2008, he had gone to the house of his sister at village Dharma. He received the information of the dacoity. He returned to his house on the morning of 25.11.2008.
::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 6The articles of gold and silver and cash of Rs. 20,000/- was found stolen.
Cash of Rs. 80,000/- was kept in the Almirah which was also found .
stolen. The matter was was reported to the police. His mother made statement under Section 154 Cr.P.C. The police prepared the site plan of the house.
12. PW-11 Smt. Manso Devi and PW-12 Chameli are the material witnesses.
13. PW-11 Smt. Manso Devi deposed that his son runs a karyana shop. She was working as Beldar in the department of Horticulture for the last 20-25 years. Her son PW-10 Parma Nand had gone to the house of her sister at Village Dharma. On that night, she was with her daughter-in-law and children. On the intervening night of 24/25.11.2008, at about 1 or 1:30 AM, three persons entered the room in which she was sleeping. Two of them held her by arms and the third one by hair and took her in the verandah outside the room. On hearing her cries, they threatened to kill her. On hearing the commotion, her daughter-in-law Chameli Devi came out and they put a knife on her neck and threatened to kill her in case she also raised noise. They took both of them inside the house. Their faces were muffled just below their eyes.
They were confined in a room alongwith the children and the room was bolted from outside. After some time, they tied their hands with Chunnis.
Thereafter, they broke open the Almirah in one room and the trunk in the third room. They removed jewellery and cash and clothes and one suit ::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 7 case, bed sheet, CD player. Before that, 2-3 other persons had also joined them. After removing the articles from the rooms, they went in the shop .
and broke open the lock. They removed shoes and cash lying in the shop.
Thereafter, they came down, consumed tea and milk lying in the kitchen.
Thereafter, they went up and went away in a vehicle as she heard the noise of a vehicle. At about 6 or 7:00 AM, the villagers came to their house on knowing the commission of theft. According to her, the accused persons might have left at about 3:00 AM. The villagers rang up her son and he came after some time. The police was informed by the villagers.
The police came at about 8 or 8:30 AM. Her statement Ext. PW-11/A was recorded. The police called her and her daughter-in-law Chameli to PS Paonta, upon which she alongwith her daughter-in-law and son Parma Nand visited PS Paonta. The police had arrested few persons and asked them to identify if any of them was involved in the commission of the theft. She identified accused Banti and Ramesh as persons involved in the theft. In her cross-examination, she deposed that after the occurrence, accused Banti was seen by her in the Police Station, Paonta.
14. PW-12 Chameli Devi deposed that on 24.11.2008, her husband had gone to Village Dharma to meet his sister. She alongwith her mother-in-law and children were at home. At about 12:00 in the mid-
night, she heard the voice that "Lala Ji Petrol Chaiaah". At this, she said from inside the room that patrol is not with them. Then they said that they have come to make the payment to 'Lala'. She told them that the ::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 8 payment be made tomorrow. One of them asked for water for drinking.
She went to the kitchen and without opening the gate of the house, she .
gave glass of water to the said person. One person was also standing behind him. There was moon light at that time. After taking glass from the unknown person, she got inside the room. After few minutes, she heard the cries of her mother-in-law and came out of her room. She came out in the verandah where two persons were found standing. One of them put knife or dagger type weapon on her neck and threatened her that in case she will raise noise, they will kill her and her family members. Then, she alongwith her mother-in-law and children were confined in a room and their hands were tied with chunnies. The accused started looting their house. In her examination-in-chief, she deposed that after about one month of the incident, she alongwith her mother-in-law was called to PS Paonta, where the police had detained few persons in the lock up and they were asked to identify among those persons, the persons involved in the commission of theft in their house. She identified accused Banti, present in the Court alongwith other accused Ramesh.
15. PW-13 Dalip Singh has taken the photographs Ext. P-13/A1 to Ext. P-13/A-10.
16. Statements of PW-14 to PW-20 are formal in nature.
17. PW-21 ASI Kamal Nain deposed that on 19.12.2008, at about 3:00 AM, he got a wireless message from PS Shillai regarding dacoity in H.P. Co-operative Bank at Shillai. He was informed that the accused ::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 9 persons had also taken away the chest of the bank alongwith cash in a vehicle. SDPO Paonta directed them to block the exit roads. He had .
blocked the road named Killore border Uttrakhand alongwith his employees at about 5:30 PM. A Pick-Up came from the side of Uttrakhand which was stopped by them. On inquiry, a person sitting nearby the driver disclosed his name as Ramesh Kumar and informed them that he deals in the trade of Buffalo and was resident of Punjab. He was holding a bag of black colour in his hands. On asking, the same was opened and found containing huge currency notes.
r Nine persons were sitting in the Pick-up van. Again stated that only 3 persons were the same named Ramesh Parmod etc. These persons attacked the Constables who were sitting in the Pick-up van. Three persons were apprehended and remaining had escaped from the spot.
18. PW-22 SI Jeet Singh, deposed that he reached at Village Timbi at about 8:00 PM along with other police officials on receipt of secret information from unknown person on 25.11.2008. The statement of Manso Devi was recorded under Section 154 Cr.P.C. He also recorded the statements of Parma Nand, Chameli Devi and Gulab Singh. He took into possession three small purses and a small jewellery box from the room in which dacoity was committed vide memo Ext. PW-11/C. He also got prepared the spot map.
19. PW-23 Hari Ram, testified that he received the file of the present case for further investigation on 25.12.2008. He recorded the ::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 10 statement of Parma Nand, Chameli Devi and Manso Devi. On 26.12.2008, he interrogated 8 accused who were arrested in connection .
with FIR No. 71/2008 in a Bank Dacoity case. Four accused, namely, Parmod, Balbir, Ramesh and Banti were found involved in the commission of this crime. On 8.1.2009, accused Banti led the police party to Roshan Colony, Old Rajpura in his house from where the Godrej Almirah, CD Player Ext. P-6, shoes Ext. P-8, ladies sweater Ext. P-7 were recovered and taken into possession vide memo Ext. PW-5/A. The accused also got recovered iron Panna from his house which was taken into possession vide memo Ext. PW-5/B. Iron Panna is Ext. P-9. In his cross-examination, he has categorically admitted that he did not call Manso Devi and Chameli Devi for identification of the accused.
20. According to the contents of rukka Ext. PW-11/A, recorded under Section 154 Cr.P.C., PW-11 was working as Beldar. She was staying with her son Parma Nand (PW-10) and her daughter-in-law Chameli Devi (PW-12) and her children. Her son had gone to visit his sister Kamla Devi on 24.11.2008. She alongwith her daughter-in-law were in her house. At about 1:00 AM on 25.11.2008, her room was knocked by unknown persons. She was dragged out of the room towards the verandah. She was threatened. She aongwith her daughter-in-law and children were confined to one room. Thereafter, theft took place.
21. What emerges from Ext. PW-11/A is that the door was knocked by unknown persons. PW-11 Manso Devi in her examination-in-
::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 11chief has categorically admitted that the faces of the accused persons were muffled below their eyes. After theft in their house, another theft .
took place in Shillai 25 days later. The police called her and her daughter-in-law Chameli to Police Station Paonta Sahib. She alongwith her daughter-in-law Chameli and son Parmanand visited PS Paonta. The police had arrested few persons and asked them to identify if any of them was involved in the commission of the theft. She identified accused Banti and Ramesh as persons involved in the theft. Similarly, PW-12 Chameli, stated in her examination-in-chief that after about one month of this incident, she alongwith her mother-in-law were called to PS Paonta where the police had detained few persons in the lock up and they were asked to identify among those persons, the persons involved in the commission of theft in their house. She identified accused Banti present in the Court alongwith other accused Ramesh. However, PW-23 SI Hari Ram in his cross-examination, has categorically admitted that he had never called Manso Devi and Chameli Devi for identification of the accused. The alleged identification of the accused is in the Police Station. Their identification in the Police Station is hit under Section 162 Cr.P.C. It could not be used as a piece of evidence against the accused. The learned trial Court has failed to take this vital question into consideration while convicting the accused. The learned trial Court has erred in relying heavily upon the disclosure statement made by the accused to convict him. PW-23 SI Hari Ram, as noticed hereinabove, has admitted that no ::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 12 test identification parade was conducted. The faces of the accused, as per PW-11 Manso Devi were muffled just below the eyes. They were called to .
the Police Station and they have been made to identify the accused in the Police Station at Paonta Sahib. Thus, the identification of the accused has not been proved and the subsequent disclosure statement could not be taken into consideration to convict the accused. Since, the accused were not known to the parties, the test identification parade was necessary in this case. The evidence of identification of the accused was inadmissible under Section 162 Cr.P.C.
r The matter is required to be considered yet from another angle. According to PW-11 Manso Devi, the villagers had informed the police and police came to their house at 8 or 8:30 AM. PW-10 Parma Nand deposed that the matter was reported to the police. However, PW-22 Jeet Singh has categorically stated that he visited the spot on the basis of the secret information received. It further casts doubt on the case of the prosecution.
22. Their lordships of the Hon'ble Supreme Court in the case of Ramkishan Mithanlal Sharma and ors. Vrs. State of Bombay, reported in AIR 1955 SC 104, have held that in a case where the whole of the identification parades were directed and supervised by the police officers and the role of the Panch witnesses was minor, the test identification attracted the operation of Section 162 and the evidence of identification at those parades was inadmissible against the accused. It has been held as follows:
::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 13"19. ...........The distinction therefore which has been made by the Calcutta and the Allahabad High Courts between the mental act of .
identification and the communication thereof by the identifier to another person is quite logical and such communications are tantamount to statements made by the identifiers to a police officer in the course of investigation and come within the ban of section
162. The physical fact of identification has thus no separate existence apart from the statement involved in the very process of identification and in so far as a police officer seeks to prove the fact of such identification such evidence of his would attract the operation of section 162 and would be inadmissible in evidence, the only exception being the evidence sought to be given by the identifier him- self in regard to his mental act of identification which he would be entitled to give by way of corroboration of his identification of the accused at the trial. We therefore approve of the view taken by the Calcutta and Allahabad High Courts in preference to the view taken by the Madras High Court and the Judicial Commissioner's Court at Nagpur.
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21. This argument would have availed the learned Attorney-
General if after arranging the test identification parade the police had completely obliterated themselves and the Panch witnesses were left solely in charge of the parade. The police officers would certainly arrange the parade, would call the persons who were going to be mixed up with the accused in the course of the parade and would also call the Panch witnesses who were to conduct the parade. But once the Panch witnesses were called for the purpose the whole of the process of identification should be under the exclusive direction and supervision of the Panch witnesses.
If the Panch witnesses thereafter explained, the purpose of the parade to the identifying witnesses and the process of identification was carried out under their exclusive direction and supervision, the statements involved in the process of identification ::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 14 would be statements made by the identifiers to the Panch witnesses and would be outside the purview of section 162.
.
In the case of the, identification parades in the present case however the police officers were present all throughout the process of identification and the Panch-witnesses appear only to have been brought in there for the purpose of proving that the requirements of law in the matter of holding the identification parades were fully satisfied. Not only were the police officers present when the identifying witnesses were brought into the room one after the other and identified the accused, they also prepared 'the Panchnama, read out and explained the contents thereof to the Panch witnesses, and also attested the signatures of the Panch witnesses which were appended by them at the foot of the Panchnama.
The whole of the identification parades were thus directed and supervised by the police officers and the Panch witnesses took a minor part in the same and were there only for the purpose of guaranteeing that the requirements of the law in regard to the holding of the identification parades were satisfied. We feel very great reluctance in holding under these, circumstances that the statements, if a any, involved in the process of identification were statements made by the indentifiers to the Panch witnesses and not to the police officers as otherwise it will be easy for the police officers to circumvent the provisions of section 162 by formally asking the Panch witnesses to be present and contending that the statements, if any, made by the identifiers' were to the Panch witnesses and not to themselves. We are therefore of the opinion that the test identification parades in regard to the accused 4 which were held between the 16th January, and the 22nd January, 1952, attracted the operation of section 162 and the evidence of identification at those parades was inadmissible against accused 4."
23. In the case of Gopal and others vrs. State of U.P. & connected matter, reported in (2002) 9 SCC 744, their lordships have held that the test identification parade becomes necessary for the ::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 15 investigating officer if eye witnesses questioned by him had not given any indication of identity of the assailants. It has been held as follows:
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"12. Learned counsel, alternatively, contended that a test identification parade should have been conducted by the investigating officer and non-conduct of such a parade had impaired the worth of the evidence of the eyewitnesses. The test identification parade would have been necessary for the investigation officer if the eyewitnesses questioned by him had not given any indication of the identity of the assailants. In the present case we have noticed that PW-1 has given details of the names of the assailants in the FIR itself. In such a situation no investigating officer would normally resort to a test identification parade."
24. In the case of Dilip Mahendra Thapa and others vrs. State of Maharashtra, reported in 2003 Cri. L.J. 4280, the learned Single Judge of the Bombay High Court has held that when no test identification parade was held and the witnesses claimed to have identified appellants when they were alighting from police van, it amounts to statement made to police and is hit by Section 162 Cr.P.C. and such an identification evidence is valueless. It has been held as follows:
"5. In these three judgments, the Supreme Court has held that, when a witness identifies the accused in the Court, when he happens to be giving evidence in the trial and when the accused happens to be a stranger to him, such evidence of identification becomes valueless in the absence of test identification parade. In this case, no tests identification parade has been held. The evidence which has been adduced by the prosecution is that, P.W. Raju Chandwani saw all these appellants in Vakola Police station, when they were alighting from the police van and nothing more than that. In the matter of Ramkishan Mithanlal Sharma and Ors. v. State of Bombay, , the Supreme Court has held that the identification of the witnesses in the presence of police, which amounts to a statement made to such police officers during the course of investigation, is hit by provisions of Section 162 of Criminal Procedure Code. Thus, the evidence of P.W. Raju Chandwani in context with identification of the appellants before the police, as indicated above, is absolutely of no use for ::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 16 prosecution. If that is ignored, what remains is the statement made on oath by P.W. Raju Chandwani identifying the appellants in the Court. The incident pertains to the year 1994 and this witness was .
giving evidence in the year 1998. When this witness was giving evidence after nearly 4 years, and when all the appellants were strangers, it is not a good evidence for basing conviction.
6. The learned trial Judge has not considered the evidence in proper perspective and has dealt with the evidence in a sweeping way and therefore, he has landed in error of accepting that evidence and basing conviction on it. When the judgment is studded with such reasons leading to the conclusion of the guilt of the appellants, that judgment cannot be upheld. It will have to be set aside. The appellants will have to be acquitted of the charge levelled against them."
25. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 27.11.2012, rendered by the learned Sessions Judge, Sirmaur at Nahan, H.P., in Sessions trial No. 18-ST/7 of 2009, is set aside. The accused is acquitted of the charges framed under Sections 458, 395, 342 and 120 B IPC, by giving him benefit of doubt. Fine amount, if any, already deposited by the accused is ordered to be refunded to him.
Since the accused is in jail, he be released forthwith, if not required in any other case.
26. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.
March 04, 2015, ( Rajiv Sharma ),
(karan) Judge.
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