Madras High Court
Sarder Basha vs The State Represented By on 9 June, 2007
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 09/06/2007 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Criminal Appeal (MD) No.117 of 2005 Criminal Appeal (MD) No.205 of 2005 1.Sarder Basha 2.Abbas 3.Abubakkar 4.Abubakkar 5.Rafiq @ Mohamed 6.Shariff 7.Mohamed baroof @ Umar Baroof ... Appellants A.2 to A.8 in Crl.A.No.117 of 2005 Mohamed Ali ... Appellant/A.1 in Crl.A.No.205 of 2005 Vs The State represented by The Inspector of Police, Velayudampalayam Police Station, Karur District. ... Respondent in both the Appeals Prayer in Crl.A.Nos.117 and 205 of 2005: Appeals filed under Section 374(2) of the Code of Criminal Procedure, against the conviction recorded and sentences imposed on the appellants by the learned Assistant Sessions Judge, Karur, in S.C.No.13 of 1999 dated 08.02.2005. !For Appellants ... Mr.A.Shanmuga Sundaram for A.1 Mr.A.Thirumalai Raj for A.2 to A.8 ^For Respondent ... Mr.A.Balaguru, Additional Public Prosecutor :COMMON JUDGMENT
These appeals are directed as against the judgment passed in S.C.No.13 of 1999 dated 08.02.2005 on the file of the learned Assistant Sessions Judge, Karur, wherein the appellants in both the appeals were convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,000/- each in default to undergo simple imprisonment for six months for the offence punishable under Section 395 I.P.C and the sentences were ordered to run concurrently.
2. The nitty-gritty, the gist and kernel, the warp and woof of the case of the prosecution as stood exposited from the records could be portrayed thus:
The accused Nos.1 to 9 conjointly acted together in concert with each other to plunder the bus passengers and in pursuance of such cahoot, they travelled in the Government Transport Corporation Bus bearing Registration No.TN-27-N-0664; while the bus was negotiating along the bye-pass road between Karur Navalnagar and Panduthakaran Pudur towards Salem, in between 04.00 a.m., and 04.30 a.m., on 05.03.1998, one among the accused under the knife point intimidated the driver of the bus to drive the bus slowly and thereby enabled the other accused to loot the remaining passengers other than the accused out of total sixty five passengers in the bus and thereby those passengers were relieved of their valuable articles and the accused decamped with the booty. Thereafter, the driver of the bus lodged the complaint Ex.P.1 with the police which resulted in the police registering a case in Cr.No.90 of 1998 under Section 397 I.P.C.
3. In the course of the investigation, the police arrested the first accused and pursuant to the confession of the first accused, other accused persons were located and arrested. The police recovered a sum of Rs.10,000/- (Rupees ten thousand only) M.Os.2 and 3 (M.O.2 - Rs.100/- X 50 = Rs.5,000/- and M.O.3 - Rs.50/- X 100 = Rs.5,000/- totalling Rs.10,000/-) from one Ibrahim who was traced pursuant to the confession made by the first accused. The police also recovered various other items; totally eighteen material objects were recovered and produced before the Court. Ultimately, the police laid the police report as against all the nine accused.
4. The trial Court framed charges as against the accused for the offences punishable under Sections 395 and 397 I.P.C, for which they pleaded non-guilty. The plea of the accused is one of total denial.
5. The prosecution marched P.Ws.1 to 36 during trial and Exs.P.1 to P.49 were exhibited along with M.Os.1 to 18.
6. During Identification Parade conducted by the learned Magistrate in response to the at the instance of the requisition given by P.W.35, the Investigating Officer, P.W.2 the Conductor alone identified A.1.
7. After hearing both sides, the learned Sessions Judge convicted A.1 to A.8. A.9 died during trial. The learned Sessions Judge acquitted all the accused for the offence punishable under Section 397 I.P.C, but convicted them for the offence punishable under Section 395 I.P.C and imposed the sentences as set out supra.
8. Being aggrieved by and dissatisfied with the conviction recorded and the sentences imposed, the above appeals have been filed by the respective accused, inter alia on the following grounds:
Despite P.W.7, P.W.8, P.W.9, P.W.11, P.W.12, P.W.13, P.W.15, P.W.18, P.W.19, P.W.20, P.W.21, P.W.22, and P.W.25 to P.W.29 having turned hostile, the trial Judge has chosen to record conviction without any evidence pointing towards the guilt of the accused. In the depositions of P.W.1, there are contradictions. The alleged witnesses to prove the confessions have all been treated as hostile witnesses and the witnesses for the recovery also turned hostile. The prosecution did not prove as to how the case properties are concerned with the offence. The identification parade was conducted belatedly and in the meanwhile, there were chances of the witnesses seeing the accused. Even though several persons claimed to have seen the accused, only P.W.1 and P.W.2 were given the opportunity to identify the accused at the Identification Parade. Even P.W.1 was treated as hostile witness. P.W.6 gave prevaricative versions, one in chief and another during the cross-examination. The witnesses did not identify the valuable properties such as the wrist watches and rings as the ones belonging to them. Accordingly, they pray for setting aside the conviction recorded and the sentences imposed on them.
9. The grounds raised in both the memoranda of appeals are almost one and the same.
10. The points for consideration are:
(i) (a) Whether the evidence of P.W.2 in identifying A.1, during the identification parade conducted by the Magistrate is reliable?
(b) Whether the identification of A.7 by P.W.5 and A.1 and A.7 by P.W.6 for the first time before the trial Court would constitute a reliable piece of evidence?
(c) Whether the accused have been satisfactorily identified at all in accordance with law?
(ii) Whether the confessions recorded and the facts and the facts leading to the recovery of articles, have been proved in accordance with law?
(iii) Whether there is any evidence to connect the accused with the crime and whether there is any infirmity in the convictions recorded and the sentences imposed by the trial Court?
Point No.(i)(a), (b) and (c):
11. The prosecution relied on P.W.1, the driver Soundararajan to prove the identification of the accused and their participation in the crime, but surprisingly and curiously, he would turn turtle by deposing in chief examination itself that one unidentifiable person while P.W.1 was driving the bus on that fateful day at about 04.30 a.m, pressed one knife or revolver on the side of his forehead and intimidated him to drive the bus slowly. Thereupon, he drove the bus slowly; P.W.1 could not turn back and see and to his backside some five or six persons among the passengers indulged in looting the other passengers who were shouting in agony. One among the criminals snatched away the money bag from P.W.2, the Conductor. Thereafter, those criminals one after another jumped out of the bus, even while the bus was moving slowly and took to their heels. P.W.1 also heard some sound inside the bus and thereupon, he stopped the bus across the road. Among the passengers four or five sustained injuries. Thereafter, he found some of the passengers having sustained injuries; subsequently, he got a lift in a lorry and went to Velayuthampalayam Police Station and lodged Ex.P.1, the F.I.R.
12. The prosecution expected that P.W.1 would identify A.1 as the person one among the miscreants. During chief examination, P.W.1 admitted that it was A.1 who did it so. However, during the same, he would state that at the identification parade, he identified one person as one among the criminals in the bus, but before the Court, he could not see that person whom he identified at the Parade. As such, during chief examination, P.W.1 made a mess of it relating to the identification. But, the fact remains that according to him, the incident took place. Ex.P.27, the proceedings of the Test Identification Report prepared by the learned Judicial Magistrate No.1, Karur, would demonstrate that A.1 to A.7 were arrayed in the Test Identification Parade along with as many as thirty six other persons. As per Ex.P.27, P.W.1 during the Test Identification Parade, correctly identified A.1 twice, despite reshuffling in the row of suspects in the Test Identification Parade. However in a most artificial and unbelievable manner, before the Court, P.W.1 would simply state as though the person whom he identified during the Identification Parade was not present in the Court, even though A.1 whom he identified earlier was very much present in the Court.
13. It is therefore clear that P.W.1 during cross-examination deliberately resiled from his previous commitment during the identification parade. P.W.2, the Conductor as per Ex.P.27 correctly identified A.1 twice during the identification parade and he also identified the same person, A.1, before the Court. The fact remains that P.W.2 did not identify any other accused during the investigation parade as well as before the Court.
14. The core question arises as to whether such identification by P.W.2 can be taken as sufficient and reliable evidence for the purpose of recording a conviction as against A.1.
15. The learned Senior Counsel Mr.N.Shanmuga Sundaram, by placing reliance on six decisions of the Honourable Apex Court, submitted that such belated conduct of identification parade can never be a ground for convicting the accused.
16. It is therefore just and necessary to consider those decisions in seriatim.
(a) The first decision in Wakil Singh and others v. State of Bihar reported in 1981 Supreme Court Cases (Cri) 634 is to the effect that the identification made by the witnesses in the Test Identification Parade conducted, three and half months after the occurrence, cannot be relied on as there might always be possibilities of mistake in identification. The Honourable Supreme Court also would advert to the fact that in the facts and circumstances of that case, the description of the accused were not found set out in the statements of the witnesses earlier to the Test Identification Parade. The learned Senior Counsel would develop his argument that absolutely, there was no description of the accused in the F.I.R or in the statements alleged to have been recorded earlier to the Test Identification Parade.
(b) The second decision in Manzoor v. State of U.P reported in (1982) 2 Supreme Court Cases 72, is also on the same point that the failure to specify identifying features of the accused persons in the statement earlier to the Test Identification Parade would lead to suspicion.
(c) The third decision in Soni v. State of Uttar Pradesh reported in (1982) 3 Supreme Court Cases 368 (I), would be on the point that the delay of forty two days even after arrest of the accused in conducting the Test Identification Parade, paved the way to look askance at the genuineness of the evidence of the witnesses. The learned Senior Counsel would highlight by pointing out that even though A.1 was arrested on 06.04.1998, the Test Identification Parade was conducted only on 18.08.1998 so to say, nearly above four months and twelve days after the arrest of the accused and the occurrence itself took place on 05.03.1998. As such placing reliance on the aforesaid cited decisions of the Honourable Apex Court, he would canvass the point that such identification parade by the witnesses cannot be relied on.
(d) The fourth decision in Subash v. State of U.P reported in AIR 1987 SUPREME COURT 1222, is on the very same point relating to conducting of Test Identification Parade.
(e) The fifth decision in State of Maharashtra v. Sukhdeo Singh reported in AIR 1992 SUPREME COURT 2100, is also on the very same proposition.
(f) The sixth decision in Shabad Pulla Reddy v. State of A.P reported in (1997) 8 Supreme Court Cases 495, would also highlight that the Test Identification Parade even after three or four months of the arrest of the accused, would be unreliable.
17. P.W.5, for the first time before the Court identified A.1 as the person who was indulging in intimidation at the time of perpetration of the crime. The same witness also would identify A.7 as the person armed with knife who was present at the time of the occurrence.
18. P.W.6, also for the first time, identified A.1 and A.7 as the persons who were present and indulged in perpetrating the crime. Indubitably and incontrovertibly, P.W.5 and P.W.6 for the first time identified A.1 and A.7 before the Court, but they were not made to participate in the said Test Identification Parade and identify the accused.
19. The learned Senior Counsel would submit that absolutely there is no plausible explanation for not making them to participate in the Identification Parade so as to identify the accused.
20. The learned Counsel appearing for the accused other than A.1, would argue that the very fact that P.W.2 did not identify A.2 to A.7, even though there were very much present in the Identification Parade along with A.1, would show that absolutely there is no identification evidence as against them and under that score, they are entitled to acquittal.
21. Such an argument makes the Court to look at the evidence of P.W.2 with utmost satisfaction that P.W.2 in such a case, should be a witness of truth in deposing that he could identify only A.1 alone, at the Identification Parade as well as before the Court despite other accused persons were present on both the occasions. Had really P.W.2, the Conductor, the public servant wanted to secure by hook or by crook a conviction, he could have very well, gone to the extent of just identifying the other accused also, as though he had seen them at the time of occurrence. But, his conscience did not permit him to do so. There is also nothing to show that P.W.2 is inimically predisposed towards A.1.
22. Relating to the identification made by P.W.2, it is just and necessary to consider various other decisions of the Honourable Apex Court. Pertinent as it is to highlight the law laid down by the Honourable Apex Court in various decisions to the effect that mere delay in conducting the Identification Parade would not be fatal to the case of the prosecution, if the witness who identified the accused in the Identification Parade, subsequently also identifies the same accused in the Court and deposes before the Court highlighting the fact of he having had the opportunity of observing the identity of the accused at the time of the commission of the offence for a considerable time. In this case, P.W.2, the Conductor, is the person who clearly and categorically deposed before the Court without mincing words that he could identify A.1, because for a considerable time, he had the opportunity of seeing him inside the bus indulging in atrocities. The occurrence obviously took place for a considerable time as the miscreants robbed several passengers in the bus. Even though the prosecution relied on P.W.2, the Conductor, to speak about the identity of various other accused, the Conductor spoke about the identity of A.1 alone properly and not others and that itself would add strength to his evidence. If P.W.2, the Conductor, is a false witness, he could have very well pleaded ignorance about the identity of A.1 also, but, he had not chosen to do so. Hence, the mere delay as highlighted by the learned Senior Counsel for A.1 is not fatal to the case of the prosecution as against A.1. The following decisions of the Honourable Apex Court could fruitfully be cited:
(i) Pramod Mandal v. State of Bihar reported in (2004) 13 Supreme Court Cases 150. An excerpt from it, would run thus:
"23. We find considerable force in the submission advanced by the learned Counsel for the State. This is not a case where the testimony of P.W.4 in court is not corroborated by an earlier identification in test identification proceeding. Since we have found no irregularity or unfairness in the holding of the test identification parade, it must be held that the evidence of P.W.4 is amply corroborated by the result of the test identification proceeding. Moreover, we have found that the occurrence did take place in the house of P.W.5. P.W.4 is an eyewitness, being a relative of P.W.5, residing with him. There was sufficient light to enable the witnesses to identify the dacoits. The presence of P.W.4 cannot be disputed because he bore the brunt of the attack by the dacoits having suffered three incised wounds and two other injuries. No reason has been suggested why this witness should have falsely implicated the appellant. The dacoity took place for about 25 minutes and P.W.4, being in the forefront of the defence, had ample opportunity to notice the appearance and physical features of the culprits. So far as the appellant is concerned, P.W.4 categorically stated that he had attempted to hit him with an iron rod. This fact he also stated before the Magistrate who conducted the test identification proceeding. We, therefore, find no reason to suspect the truthfulness and credibility of this witness. He appears to be a witness on whom the Court can place implicit reliance. The Courts below have found his evidence to be reliable after critical scrutiny of his testimony. The traumatic experience of that fateful day in which a young girl lost her life within his view, must have left the faces of the assailants imprinted in his memory which certainly would not have diminished or got erased within a period of only 30 days. There is, therefore, no reason to doubt either the genuineness of the test identification proceeding or the veracity of the witness."
(ii) Daya Singh v. State of Haryana reported in (2001) 3 Supreme Court Cases 468. An excerpt from it, would run thus:
"13. The question, therefore, is - whether the evidence of injured eyewitnesses P.W.37 and P.W.38 is sufficient to connect the appellant with the crime beyond reasonable doubt. For this purpose, it is to be borne in mind that the purpose of test identification is to have corroboration to the evidence of the eyewitnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the court. If that evidence is found to be reliable then absence of corroboration by test identification would not be in any way material. Further, where reasons for gaining an enduring impress of the identity on the mind and memory of the witnesses are brought on record, it is no use to magnify the theoretical possibilities and arrive at conclusion - what in present-day social environment infested by terrorism is really unimportant. In such cases, not holding of identification parade is not fatal to the prosecution. The purpose of identification parade is succinctly stated by this Court in State of Maharashstra v. Suresh as under: (SCC p. 478, para 22) "We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence."
23. The learned Public Prosecutor also whiling making his submissions would state that since A.1 had involved in various cases and that the Identification Parade could not be conducted swiftly at an earlier point of time.
24. Undoubtedly, the evidence of P.W.5 and P.W.6 in identifying some of the accused for the first time before the Court, without those witnesses having participated in the Test Identification Parade and identifying the accused, is totally inadmissible.
25. In view of my discussion supra, I am of the considerable opinion that the delay in this case is not fatal as P.W.2 established himself before the Court as a witness of truth and he is not having the bent of mind to utter falsehood. Accordingly, Point Nos.(i)(a), (b), and (c) are answered.
Point No:(ii) and (iii)
26. Blatantly and explicitly, it is clear that all the witnesses whom the prosecution relied on to prove the confession as well as the recovery, turned hostile and the learned Public Prosecutor fairly conceded to that fact.
27. The learned Senior Counsel would highlight that A.1 himself had not taken away any amount and handed over to the police. But, the police who claimed to have traced one Ibrahim, was not examined as a witness for the reasons best known to the prosecution and the police would claim that a sum of Rs.10,000/- (M.Os.2 and 3) were recovered from him and that too after lapse of several months. P.W.35, the Investigating Officer himself admitted that Ibrahim handed over a sum of Rs.10,000/- to P.W.35 as the amount which was entrusted to him as booty relating to a bank robbery case.
28. The learned Senior Counsel would correctly argue that if at all, the booty amount is relating to the bus robbery case, it would have some relevance, but it is stated to be the amount relating to a bank robbery case. Hence, absolutely M.O.2 and M.O.3 cannot be made use of to prove the case.
29. The learned Senior Counsel would point out that P.W.5 would disown M.O.18, the ring shown to him as the one not belonging to him; P.W.14 would disown M.O.15 the wrist watch to be that of his own. As such, it is clear that the prosecution could not press into service the evidence of M.O.18 and M.O.14 and the consequent recoveries have nothing to do with this case.
30. The learned Counsel for the accused other than A.1 would argue that the Investigating Officer would state that he recorded their statements in Tamil as they spoke in Tamil. Relating to this point, I would observe that at times, some of the accused might have in reality of speaking in Tamil also and the police might have recorded as such. The Court cannot jump to the conclusion that all those statements are fabricated ones in Tamil. The learned Counsel for the appellants also would convincingly canvass the point that in the F.I.R, the miscreants were stated to be five or six, whereas during trial, ten or sixteen persons were arrayed as assailants.
31. Surprisingly and shockingly, even though horrendous and horrible crime took place, owing to faulty investigation and lack of co-operation from the witnesses except as against A.1, the prosecution cannot succeed in driving home the guilt as against other accused. Accordingly, Point Nos.(ii) and (iii) are also answered.
32. Relating to the hostile witnesses, the findings given by the trial Court as though those witnesses during cross-examination agreed with the suggestion of the learned Public Prosecutor. In paragraph No.23 of the judgment of the trial Court, the trial Court wrongly understood the legal proposition and accordingly, relied on simply the admission made by the hostile witnesses during cross-examination when the learned Public Prosecutor suggested what were all contained in respective statements under Section 161 Cr.P.C.
33. In the result, Crl.A.No.117 of 2005 is allowed, setting aside the convictions recorded and sentences imposed by the learned Assistant Sessions Judge, Karur, in S.C.No.13 of 1999 dated 08.02.2005 and the appellants/A.2 to A.8 are acquitted of the offence with which they are charged and they shall be set at liberty and released forthwith unless they are not required to be detained for any other case. Fine amount, if any, collected from the appellants in Crl.A.No.117 of 2005/A.2 to A.8 shall be refunded to them. Crl.A.No.205 of 2005 is dismissed, confirming the conviction recorded and the sentence imposed on the appellant/A.1. In the facts and circumstances of this case and in view of my discussion supra, I do not incline to vary the order of the trial Court relating to disposal of the case properties as the trial Court in its wisdom had chosen to pass such an order relating to disposal of the case properties.
rsb To
1. The Inspector of Police, Velayudampalayam Police Station, Karur District.
2. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.