Gauhati High Court
Nibaran Borah vs State Of Assam on 19 July, 2006
Equivalent citations: 2006CRILJ4222, 2006 CRI. L. J. 4222, 2007 (1) AJHAR (NOC) 287 (GAU) 2006 GAULT(SUPP) 110, 2006 GAULT(SUPP) 110
Author: I.A. Ansari
Bench: I.A. Ansari
ORDER I.A. Ansari, J.
1. By the impugned judgment and order, dated 5.3.2002, passed, in Criminal Appeal No. 63/2001, the learned Sessions Judge, Kamrup, Guwahati, has dismissed the appeal of the present accused-petitioner and upheld thereby the judgment and order, dated 18.10.2001, passed, in G.R. Case No. 5781/1998, by the learned Speclal Judicial Magistrate, Guwahati, convicting the present accused-petitioner under Sections 392, IPC and sentencing him to undergo rigorous imprisonment for 2 (two) years and pay a fine of Rs. 300/- and, in default of payment of fine, suffer rigorous imprisonment for a further period of 15 days.
2. The case against the accused-petitioner, as surfaced at the trial, may, in brief, be stated as follows:
On 13.12.1998, Badri Bahadur Biswakarma (hereinafter referred to as "the informant") along with his minor son, Suraj Bahadur Biswakarma, came from Shillong to Guwahati on their way to Siligri and Oil that day, i.e. 13.12.1998, at about 5.45 p.m. while the informant was sitting inside the bus, which is run under the name and style of Blue in bound Transport', two police personnel, one of whom was a Havildar, came to the bus and took the informant's identity card and started checking his bags and as the policemen found a "Khukri" In his bag, they brought him down from the bus with the three bags, which the informant had been carrying. After the bags were so brought down to the ground, the Havildar took away the said Khukri. On being asked by the police personnel, the Informant opened his remaining bags. One of these bags had two bundles of currency notes, one bundle contained Rs. 12,000/- (Rupees twelve thousand) and the other one Rs. 3,000/- (Rupees three thousand). The police personnel, then, asked the Informant to accompany them to their police station, they took the informant to the backside of the ASTC bus stand and took away the bundle of Rs. 12,000/- and asked him to go back. Before sending him back, one of the police personnel asked the informant to take back his Khukri, but the informant did not, out of fear, take back the said Khukri. However, before the informant left, one of the police personnel intimidated the informant by saying that if he raised alarm, they would cut him into pieces. With the threats, so given, the two police personnel went away with the Khukri and also the said sum of Rs. 12,000/-. In the meanwhile, however, the bus left with the informant's 12 year old son, Suraj Bahadur Biswakarma. In the bus. The informant, then, went back to the bus-counter and reported to them about what the police had done to him. On the following day, i.e. 14-12-1998, the informant lodged a written Ejahar. Based on the Ejahar and treating the same as FIR a case was registered against the unknown police personnel. On that day, i.e. on 14.12.1998, the informant also went to the Superintendent of Police and informed him about the occurrence. The Superintendent of Police brought the informant to Paltanbazar Police Station and asked the Officer-in-Charge thereof to make the police personnel, who were present there, to stand in a row. In compliance with the direction so given, about 40/50 police personnel were made to stand in a row, but the informant did not identify any of them as a person involved in the said occurrence. The informant was, then, taken to the office chamber of the Officer-in-Charge of Paltanbazar Police Station and there the informant, having found the two police personnel, who had taken away his money and Khukri, identified them accordingly. On further instructions given by the Superintendent of Police, the residential quarters of the said two police personnel were searched and from the residence of the present accused-petitioner, the Khukri was recovered and seized. On completion of investigation, police laid charge-sheet under Section 392, IPC against the present accused-petitioner, namely, Nobran Bora, a Havildar, and Bipul Mahanta, a Home Guard personnel (since acquitted).
3. During the trial, both the accused persons aforementioned pleaded not guilty to the charge framed against them under Section 392, IPC.
4. In support of their case, the prosecution examined as many as eight witnesses. The accused were, then, examined under Section 313, Cr.P.C. In their examination aforementioned, while both the accused claimed that whatever they had done was done by them in the discharge of their duties, they denied that they had taken away any money of Khukri as alleged against them. No evidence was, however, adduced by the defence. On conclusion of the trial, the learned trial Court, having not found adequate evidence against accused Bipul Mahanta, acquitted him accordingly. Having, however, found adequate and convincing evidence against the present accused-petitioner, the learned trial Court convicted him under Section 392, IPC and passed sentence against him as has been mentioned hereinabove. The accused-petitioner preferred an appeal and as the appeal also failed, the accused-petitioner has, now, come to this Court with the help of this revision petition.
5. I have heard Mr. J.M. Choudhury, learned senior counsel, appearing on behalf of the accused-petitioner, and Mr. B.S. Sinha, learned Additional Public Prosecutor, Assam, appearing on behalf of the State respondents.
6. At the time of hearing of the present revision, the challenge to the conviction of the accused-petitioner has been posed on two grounds, namely, that there ought to have been a Test Identification Parade (TIP) and since there was no TIP held in the present case, it was highly unsafe, in the facts and circumstances of the present case, to convict the accused-petitioner. The second ground on which the conviction has been assailed is the fact that a Khukri, according to the evidence on record, can be easily found in markets and, hence, it ought not to have been held by the learned Courts below that the Informant's Khukri had been recovered from the possession of the accused-petitioner. Since, according to Mr. J.M. Choudhury, there was no evidence to safely rely upon the fact that the accused-petitioner was correctly Identified by the Informant and, secondly, when there is, submits Mr. Choudhury, no convincing evidence that the Khukri, which the informant spoke of, was the one, which had been allegedly recovered from the possession of the accused-petitioner, there remains, contends. Mr. Choudhury, no evidence sufficiently convincing and safe to found the conviction of the accused-petitioner thereon.
7. While considering the above submissions made on behalf of the accuse-petitioner, let me, first, take note of the evidence of the informant, who has been examined as P.W. 4. According to the evidence of P.W. 4, on 13.12.1998, at about 5.45 p.m. having come from Shillong to Guwahati, on way to Siliguri, he sat along with his 12 year old son, as passenger, In the bus of 'Blue In bound Transport' for going to Siliguri and while he was so sitting inside the bus, two police personnel, one of whom was a Havildar. came inside the bus and, took his (P.W. 4's) identity card fctft started checking his bags and as the policemen found one Khukri In one of the bagsfthey brought down all his three bags from the bus and, on being asked by them, when he opened the bags, the police found two bundles of currency notes, one of them being of a sum of Rs. 12.000/- and the other one of Rupees 3,000/- and after finding the money, they told him that he would be taken to their police station and asked him to take the three bags to the police station. P.W. 4 has also deposed that while they were proceeding towards the police station, the two police personnel assaulted him in a comer, at the backside of the ASTC bus stand, and took away the bundle of Rs. 12,000/- and sent him back to the bus station. P.W. 4 has further deposed that by the time he reached the transporter's ticket-counter, the bus had already left with his son Inside the bus. It is in the evidence of P.W. 4 that on 14.12.1998, he reported the matter to the Superintendent of Police, who, in turn, took him to Paltanbazar Police Station, where he (P.W. 4) was asked to identify the police personnel out of 40/50 policemen, but he could not Identify them and, thereafter, when he was taken to the office chamber of the Officer-in-Charge of the said police station, he identified the two police personnel, who were present there, as persons Involved in the said occurrence. It is also in the evidence of P.W. 4 that on being asked by the Superintendent of Police, the Officer-in-Charge of the said police station, checked the quarter of the said two police personnel and found 'the Khukri' at the quarter of accused Nibaran Bora (i.e. the accused-petitioner), the police seized the said Khukri, Exhibit 1 being the seizure list in this regard and Exhlbit-2 is the FIR, which he (P.W. 4) had lodged.
8. It is, now, of Immense Importance to note that In his further evidence, P.W. 4 has clarified that accused Nibaran Bora, (i.e. the present petitioner) had threatened to cut him Into pieces if he raised hue and cry and that while taking away the money, the accused had offered to return the Khukri, but, being scared of them, he (P.W. 4) declined to take back the Khukri. In his cross-examination, P.W. 4 has clarified that he (P.W. 4) went along with policemen to the house of the said two police personnel, who were involved in the occurrence, and found 'the Khukri' inside the house or accused Nibaran Bora.
9. From the above evidence of P.W. 4, what transpires in that accused Nibaran Bora, accompanied by the associate, left P.W. 4 by taking with him the said sum of Rs. 12,000/- and the said Khukri. What is, however, Important to bear in mind is that while money was taken without even asking P.W. 4, the Khukri was taken from P.W. 4, when P.W. 4 declined, out of fear, to take back the Khukri.
10. Close on the heels of the evidence of P.W. 4, P.W. 3, who was at the relevant time, Assistant Manger of 'Blue in bound Transport' Private Ltd. has deposed that on the day of the occurrence, when their bus was to leave, they found that the passenger of Seat No. 13, namely, Shri Badri Bahadur Biswakarma (P.W. 4) was missing and he (P.W. 3) was informed that the said passenger was taken away by police for checking and at about 8.30 p.m. P.W. 4 came to their ticket counter and told him that the police had taken away his money and Khukri.
11. What is, now, of great significance to note is that the evidence of P.W. 4 and P.W. 3 has remained unshaken on material particulars. Though, as already indicated hereinabove, it has been submitted, on behalf of the accused-petitioner, that a TIP ought to have been held and the same, having not been held, identification of the accused-petitioner by P.W. 4, in the office chamber of the Officer -in-Charge of the Paltanbazar Police Station was valueless, what is of utmost importance to note is that in his examination under Section 313, Cr.P.C., the two accused persons did not dispute the fact that they had come to the bus, in question, and had brought down P.W. 4 from the bus. In fact, the checking of the bus by the two police personnel was never in dispute, rather, the present accused-petitioner, in his examination under Section 313, Cr.P.C. asserted that they had merely done their duties. In the face of this admission, the question, which remains to be decided, is as to whether accused-Nibaran Bora had taken away the money from P.W.4 as alleged by the latter and/or whether there was possibility of error having been committed by P.W. 4, while identifying the present accused-petitioner.
12. While considering the questions posed above, what is of paramount importance to note is that the present accused-petitioner did not assert, at the trial, either while cross-examining the prosecution witnesses including P.W. 4 or while making statement under Section 313, Cr.P.C. that they had not taken the identity card of P.W. 4, that they had not got P.W. 4 to bring down the three bags, which belonged to P.W. 4, and/or that the bags were not opened nor were the same checked. It is In the backdrop of these facts that the question of identification of the accused-petitioner becomes relevant. While considering the question if P.W. 4 had committed any error in identifying the present accused-petitioner, it cannot be ignored that the clear and categorical assertion of P.W. 4 is that the present accused-petitioner, Nibaran Bora, had threatened him to cut into pieces if he raised hue and cry. In such a situation, it was not impossible for P.W. 4 to have remembered the face of the persons, who had checked his bags. The identification of the accused petitioner at the police station was not substantive part of the evidence, for, the said identification was still in the realm of investigation. The substantive part of the evidence of P.W. 4 was his assertion that accused Nibaran Bora (i.e. the present petitioner) had threatened to cut him (P.W. 4) into pieces if he raised hue and cry. This assertion of P.W. 4 could not be shaken by cross-examination.
13. In Kanta Prashad v. Delhi Administration , the Apex Court has made it clear that failure to hold a TIP does not make the evidence of identification, at the trial, inadmissible. However, the weight to be attached to such identification would be for the Court of fact to decide and that it is prudent to hold TIP with respect to witnesses, who did not know the accused before the occurrence. The relevant observations made in Kanta Prashad (supra) run as follow (para 5):
It would no doubt; have been prudent to hold a test identification parade with respect to witnesses who did not know the accused before the occurrence, but failure to hold such a parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification would be a matter for the Courts of fact and it is not for this Court to re-assess the evidence unless exceptional grounds were established necessitating such a course.
14. Having taken into account the decisions in Kanta Prasad 1958 Cri LJ 698 (supra); Harbhajan Singh v. State of Jammu and Kashmir ; Jadunath Singh v. State of U.P. some Ors. authorities, the Apex Court held, in George v. State of Kerala , as follows (para 29):
It cannot be denied however that though not fatal, absence of the corroborative evidence of prior identification in a T.I. parade makes the substantive evidence of identification in Court after a long lapse of time a weak piece of evidence and no reliance can. be placed upon it unless sufficiently and satisfactorily corroborated by other evidence.
15. From what have been observed in George (supra), it is clear that though absence of Identification parade does not make the evidence of identification at the trial, Inadmissible, the Court has the duty to ascertain as to how far the evidence of identification of the accused, at the trial, can be safely relied upon. In short, while the evidence of identification of an accused, at a trial, is admissible and substantive piece of evidence, it will depend on the facts of a given case as to whether or not such a piece of evidence can be relied upon as the sole basis of conviction of an accused. The rule of prudence may urge a Court, in a given case, that the Court should look for some corroborative piece of evidence.
16. During the stage of investigation of a crime, the Investigating agency is required to hold identification parade for the purposes of enabling the witness to identify the person alleged to have committed the offence, particularly, when such person was not previously known to the witness or the Informant. The absence of test identification may not be fatal if the accused is known or sufficiently described in the complaint leaving no doubt in the mind of the Court regarding his involvement. Identification parade may also not be necessary in a case, where the accused persons are arrested at the spot. The evidence of Identification of an accused person, for the first time, at the trial is, from Its very nature, Inherently of a weak character. The Supreme Court In Budhsen v. State of U.P. . held that the evidence of identification of an accused, at the trial, In order to carry conviction should, ordinarily, clarify as to how and under what circumstances the complainant or the witness came to pick out the particular accused person and the details of the part, which the accused allegedly played in the crime, in question, with reasonable particularity. In such cases, test identification is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused, who are strangers to them. There may, however, be exceptions to this general rules, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely without such or other corroboration. Though the holding of identification proceedings are not substantive evidence, yet they are used for corroboration and in order to enable the Court to believe that the person brought before the Court was the real person involved in the commission of the crime. The identification parade, even if held, cannot. In all cases, be considered as safe, sole and trustworthy, evidence on which the conviction of the accused could be sustained. It is a rule of prudence, which is required to be followed in the cases, where the accused is not known to the witness or the complainant See State of H.P. v. Lekh Raj .
17. In the case of Malkhan Singh v. State of M.P. , the Apex Court has clarified that the TIP is not substantive piece of evidence and to hold the TIP is not even the rule of law, but a rule of prudence so that the identification of the accused inside the Court-room, at the trial can be safely relied upon in Malkhan Singh (supra), the Court, while observing that identification of an accused in a Court should, as a rule of prudence, be preceded by a TIP, has, in no uncertain words, clarified that this rule of prudence is, however, subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony It can, without such TIP or other corroboration, safely rely. The Apex Court has also clarified, in Malkhan Singh (supra), that the identification parades belong to the stage of investigation and there is no provision In the Code of Criminal Procedure, which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test; identification parade, the TIPs do not, points out the Apex Court in Malkhan Singh (supra), constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure and, hence, failure to hold a test identification parade would not make inadmissible the evidence of identification In Court, though the weight to be attached to such identification should be a matter for the Courts of fact to determine. Asserted the Apex Court, in Malkhan Singh (supra), that in appropriate cases, the Court may accept the evidence of identification even without insisting on corroboration. Kanta Prashad v. Delhi Administration ; Vaikuntam Chandrappa v. State of Andhra Pradesh ; Budhsen v. State of U.P. and Rameshwar Singh v. State of Jammu and Kashmir .
18. What emerges from the above discussion is that the identification of an accused inside the court-room, at a trial, is an admissible piece of evidence and because such identification of an accused is admissible in evidence, such evidence of identification is a substantive piece of evidence. It is, therefore, permissible to rely on such piece of evidence as a rule of law, but the rule of prudence demands that in the absence of a TIP having been held properly and in accordance with law, the conviction of an accused must not be based entirely on his being Identified, at the trial, by a witness, who did not know the accused. There is, however, no legal impediment in convicting an accused on the basis of his identification at the trial provided that the Court has good reasons to believe the evidence of identification at the trial, particularly, when there is other corroborative evidence on record, direct or circumstancial.
19. I have already indicated above that in the face of the admission of the accused-petitioner himself that whatever he did was in the discharge of his duties and when the defence did not deny, at any stage, that the accused-petitioner was present in the police party, which had checked the luggage of P.W. 4, there can remain no doubt that the accused-petitioner was one of those police personnel, who had checked luggage of P.W. 4. The present one, we must bear in mind, is not one of those cases, where the witness, such as P.W. 4, had only a fleeting glimpse of the appellant; rather from (the events, as unfolded by the evidence of P.W. 4, it is clear that P.W. 4 had sufficient opportunity to observe and talk to the accused-appellant. In such circumstances, the fact that the identification of the accused-petitioner by P.W. 4, at the trial, did not precede by any TIP can be of no serious consequence and cannot adversely affect the veracity of the evidence of P.W. 4 if his evidence, is, otherwise, found to be trustworthy and reliable.
20. The question, however, remains If the accusation made by P.W. 4 that he had been harassed, in the manner as described by him, he was beaten and his money had been taken away by the police personnel and that the police personnel had also taken away his Khukri, on his declining to take back the Khukri, can be safely believed?
21. While considering the above aspect of the case, It is of utmost importance to note that there is no apparent reason for P.W. 4 to make such accusation, as he has made, falsely. This apart, neither from the cross-examination of P.W. 4 nor from the cross-examination of any other witness(s), the defence could elicit anything to show that the accusations made by P.W. 4 against the police personnel, who had checked his luggage, suffer from malice or falsehool. Situated thus, I see absolutely no eason not to agree with the views, expressed by the learned Courts below, that, the evidence of P.W. 4 that money and Khukri had been taken away by the two police personnel, who had checked his luggage, cannot be doubted at all, particularly, when I notice that the fact that the accused-petitioner's luggage had been checked by the police party, which included the present accused-petitioner, had not been In dispute. What, however, still remains to be decided is as to whether the accusations of P.W. 4 that the accused-petitioner was the one, who had taken away money and Khukri were true or not. While considering this aspect of the case, it is crucial to note that no malice or animus Is either alleged or is shown to have been existed between the accused-petitioner, on the one hand, and P.W. 4, on the other. There is also no reason as to why P.W. 4, who was not even known to the accused-petitioner, would, on his way to Siliguri, stop at Guwahati, to falsely implicate the accused-petitioner as a person, who had taken away the money and the Khukri.
22. While considering the above aspect of the case, it is also important to note that P.W. 1 (a police constable) has deposed that on 14.12.1998, he was working at Paltanbazar Police Station and on that day, at about 5.30/6.00 p.m. he went along with S.I. Barbhuiya (P.W. 5) to search the house of the present accused-petitioner and found there one Nepali Khukri, which was seized by Seizure List, which is Exhibit 1. In his cross-examination P.W. 1 has clarified that he went inside the house of accused. Nibaran Bora and found Khukri inside a bag, which was found locked, and it was the accused-petitioner, who had opened the lock and, on being so opened, the Khukri was found kept there.
23. In tune with the above evidence of P.W. 1 is the evidence of P.W. 5. No animosity against P.W. 1 and P.W. 5 was alleged by the defence. In a situation, such as the present one, there is no reason to doubt the veracity of the evidence of P.W. 1 and P.W. 5 given to the effect that a bag was lying kept locked at the house of the accused-petitioner, the accused-petitioner opened the lock and a Khukri, on being found inside the said bag, was recovered and seized.
24. Coupled with the above, the evidence on record further discloses that P.W. 4 was present at the said place of recovery and his evidence is to the effect that 'the Khukri' was found meaning thereby 'the Khukri', which had been taken away by the said Havildar, was found at the house of the accused-petitioner. The question, now, is as to what the case of the defence on this aspect of the evidence on record was. It is extremely important to note, in this regard, that the present accused-petitioner denied that 'the Khukri' was recovered from his house. Had it been the case of the defence that the Khukri belonged to the accused-petitioner, then the possibility could not have been boldly ruled out that P.W. 4 might have committed error in claiming the recovered Khukri to be his own Khukri, but when the present accused-petitioner denies that he owns the recovered Khukri and when he also denies that any Khukri was recovered from him and when notwithstanding his denial, the evidence on record speak, loud and clear, that a Khukri was, indeed, found and recovered as indicated hereinbefore, the identity of 'the Khukri' by P.W. 4 as the one, which had been taken away by the accused-petitioner, cannot be said to be unbelievable or unsafe to rely upon. I must hasten to point out that in the light of the evidence of P.W. 4, since the Khukri was offered to be returned to him, but out of fear, he (P.W. 4) did not take back the Khukri, the accused-petitioner cannot be held liable for forcibly taking away the Khukri. The fact, however, remains that the recovery of the Khukri gives credence to the evidence of P.W. 4 that what he had alleged against the accused-petitioner was true. When there is no animosity between P.W. 4 and the accused-petitioner and when there is no reason for a hapless passenger, such as P.W. 4, who had come from Shillong and was on way to Siliguri with his minor son, to falsely implicate an unknown police personnel in the middle of his journey, at Guwahati, there is no reason why the evidence of P.W. 4 be not believed. Had 'the Khurki' not been taken away by the accused-petitioner, how P.W. 4 would have placed a Khurki inside a bag, which could be unlocked by none other than the accused-petitioner himself. In these circumstances, one cannot help, but treat the evidence of P.W. 4 as evidence of a reliable and trustworthy witness, particularly, when the accused petitiner is the one, who had opened the lock of the bag, wherein the 'Khukri' was found kept, and when the accused-petitioner denies that he ever owned or possessed the said 'Khukri'.
25. What crystallises from the above discussion is that notwithstanding the denial by the accused-petitioner that a Khukri was found inside a bag, which was lying at the house of the accused-petitioner and whose lock was opened by the accused-petitioner, when the evidence on record convicingly prove that a 'Khukri' was, indeed, recovered in the circumstances as discussed hereinbefore, the recovery of the 'Khukri' reinforces the interference that P.W. 4 had committed no error and played no mischief in putting his accusing finger to the accused-petitioner as the person, who has taken away P.W. 4's 'Khukri' and money in the manner as has been described by P.W. 4.
26. Because of what have been discussed and pointed out above, I find that the conclusion reached by the Courts below to the effect that the accused-petitioner was involved In putting P.W. 4 into fear and unlawfully taking away his money is correct and requires no interference.
27. Situated thus, I have no hesitation in holding that the conviction of the accused-petitioner under Section 392, IPC is fully supported by the evidence on record and deserves no interference.
28. Turning to the sentence passed against the accused-petitioner, it needs be pointed out that a policeman is expected to protect the lives and properties of others; but when they behave with persons, who are mere travellers and who are far away from their near and dear ones, in the manner as the accused-petitioner behaved with P.W. 4, he (i.e. the accused-petitioner) deserves to be severely punished and the sentence passed against him must reflect the serious disapproval of his acts by the society at large. Viewed thus, I do not find that the sentence passed against the accused-petitioner deserves any reduction.
29. In the result, and for the reasons discussed above, this revision fails and the same shall accordingly stand dismissed.
30. The accused-petitioner is hereby directed to surrender, forthwith, in the Court of the Chief Judicial Magistrate Kamrup, Guwahati, in order to serve the sentence of imprisonment passed against him.
31. Send back the LCRs with a copy of this order to the learned Court below.