Madhya Pradesh High Court
Purushottam @ Pappu vs The State Of Madhya Pradesh on 1 August, 2019
Equivalent citations: AIRONLINE 2019 MP 847
1 Cr.A. Nos.552/2015, 607/2015 and 1297/2017
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE G.S. AHLUWALIA
Criminal Appeal No.552/2015
.........Appellant: Purushottam @ Pappu
Versus
.........Respondent: State of M.P.
Criminal Appeal No.607/2015
.........Appellant: Preetam Dhakad
Versus
.........Respondent: State of M.P.
&
Criminal Appeal No.1297/2017
.........Appellant: Ghanshyam
Versus
.........Respondent: State of M.P.
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Shri R.K.S. Kushwah, learned counsel for the appellant in
Criminal Appeal No.552/2015.
None for appellants in Criminal Appeal Nos.607/2015 and
1297/2017.
Shri Vinay Kumar who is in the list of Legal Aid Services
Authority is appointed as amicus curiae in Criminal Appeal
Nos.607/2015 and 1297/2017.
Shri Purushottam Rai, learned Panel Lawyer for the
respondent/State in all the three Criminal Appeals.
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Date of hearing : 27/07/2019
2 Cr.A. Nos.552/2015, 607/2015 and 1297/2017
Date of Judgment : 01/08/2019
Whether approved for reporting :
Law laid down :
Significant paragraphs :
JUDGMENT
(01/08/2019) By a common order, all the three appeals shall be decided as they arise out of the same incident. Since, Ghanshyam and Preetam Dhakad were absconding and were arrested at a later stage, therefore, they have been convicted by separate judgments and sentences.
2. These Criminal Appeals have been filed under Section 372 of Cr.P.C.
3. Cr.A. No. 552 of 2015 has been filed against the judgment and sentence dated 27-3-2015 passed by IVth Additional Sessions Judge, Guna in S.T. No. 26/2014.
4. Cr.A. No. 1297 of 2015 has been filed against the judgment and sentence dated 29-7-2017 passed by 3rd Additional Sessions Judge, Guna in S.T. No. 26/2014.
5. Cr.A. No. 552 of 2015 has been filed against the judgment and sentence dated 12-5-2015 passed by IVth Additional Sessions Judge, Guna in S.T. No. 26/2014.
6. All the appellants have been convicted for the following offences :
1 Under Section 452 of 7 years R.I. and fine of Rs. 2000 in I.P.C. default 2 months R.I. 2 Under Section 394/397 10 years R.I. and fine of Rs. 1000 in IPC default 1 month R.I. 3 Cr.A. Nos.552/2015, 607/2015 and 1297/2017
7. The prosecution story in short is that on 7-11-2013, the complainant Gendi bai lodged a report that she was all alone and was sleeping in the porch of her house. At about 2 A.M. in the night, four persons came there and gagged her mouth by tying a cloth and took out her silver Kade, Silver Khangwari, Gold Tops, Gold ring and also took away Rs. 6000/-. Since the tops were pulled from her ears, therefore, her pinna got injured. The appellant Purshottam assaulted on her face, therefore, her teeth have broken. On this report, the police registered crime No. 280/2013 for offence under Sections 394,452,325 of I.P.C.
8. The police arrested the appellant Purshottam, Ghanshyam, Preetam as well as one Laxminarayan and recovered one gold tops from the possession of the appellant Purshottam, Rs. 6000 from Laxminarayan, Silver Khangwari from Ghanshyam and two silver Kade from Preetam.
9. The police after completing the investigation, filed the charge sheet against four persons for offence under Sections 394,452 and 325 of I.P.C..
10. The Trial Court by order dated 23-1-2014 framed charges under Sections 452,394 read with Section 397 of I.P.C.
11. The appellants abjured their guilt and pleaded not guilty.
12. The prosecution in order to prove its case, examined Gendibai (P.W.1), Balram (P.W.2), Govind Prasad Sharma (P.W.3), Dr. A.P. Singh (P.W.4), Madanlal (P.W.5), Sunil Verma (P.W.6), Dr. Vinod Chourasia (P.W.7), Hazarilal (P.W.8), Ramcharan (P.W.9), and Santosh Bhargava 4 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 (P.W.10). The appellants didnot examine any witness in their defence.
13. It appears that after the prosecution evidence was over, the appellants Ghanshyam and Preetam Dhakad did not appear before the Trial Court and accordingly, they were declared absconding by order dated 24-3-2015. The accused statement of Purshottam was recorded on the same day.
14. The Trial Court by judgment dated 27-3-2015 convicted the appellant Purshottam, by judgment dated 29-7-2017 convicted the appellant Preetam Dhakad and by judgment dated 12-5-2015 convicted the appellant Ghanshyam for the above mentioned offences.
15. Challenging the conviction and sentence recorded by the Court below, the Counsel for the appellant Purshottam submitted that although in the F.I.R., the name of the appellant was mentioned but in the Test Identification Parade, the complainant Gendibai (P.W.1) could not identify the appellant Purshottam, although again in dock identification, She has identified the appellant Purshottam, thus identification is doubtful.
16. So far as the identification of the appellants Preetam Dhakad and Ghanshyam is concerned, it is submitted by their Counsel that they were not identified by the complainant Gendibai either in Test Identification Parade or in the dock. Thus, it is submitted that the identification of the appellant Preetam Dhakad and Ghanshyam has not been established at all.
17. So far as the recovery of incriminating articles is concerned, it is 5 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 submitted by the Counsel for the appellants that it is clear from the cross examination of Gendi bai (P.W.1) that before holding the test identification parade, the articles were shown to the complainant.
18. Per contra, it is submitted by the Counsel for the State that the identification of the appellants is proved beyond reasonable doubt and the incriminating articles seized from the possession of the appellants were duly identified by the complainant, therefore, the prosecution has proved the guilt of the appellants beyond reasonable doubt.
19. Heard the learned Counsel for the parties.
20. Gendibai (P.W.1) has lodged the F.I.R., Ex. P.1. She has stated that the appellants came inside the house and broke her teeth. Her mouth was gagged by tying a cloth. The tops were pulled from her ear. Her hands were tied. Her box was broken and silver Kade, silver Khangwari, gold tops and a cash of Rs. 7000 was taken away. After the miscreants left the house, the complainant started screaming as a result of which her neighbour Madan came who was followed by Balram and Jairam. They went to police outpost at about 3-4 A.M. She was sent for medical examination. The spot map Ex. P.2 was prepared. The identification memo of the articles is Ex. P.3. She had identified Purshottam in jail and had also identified Ghanshyam in jail. The identification memo is Ex. P.4. In cross examination she stated that she had lost her husband about 15 years back. Prior to incident, her eye vision was good, but after the cloth was tied, her eye vision has dropped. She further admitted that She does not have any watch but had narrated 6 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 the time as per her assessment. She denied that the name of Purshottam was informed by the neighbours. On her own, this witness said that Purshottam is her Samadhi. She admitted that Madan untied the cloth from her mouth. She further admitted that when she went to police outpost, the appellant Purshottam and Ghanshyam were shown by the police. The stolen articles were also shown in the outpost Jhagar. She further admitted that identification memo Ex. P.3 was got signed by Daroga.
21. Balram (P.W.2) has stated that he was informed by Madan on phone and when he went to the house of the complainant who is the mother, he found that She was tied and her teeth were broken and ear pinnas were teared and the assailants had taken away gold tops, silver Khangwari, Silver Kade, and about Rs. 6000/-. The complainant had informed that Purshottam and Laxminarayan were amongst the assailants. In cross examination, this witness denied the suggestion that some unknown persons had committed the offence.
22. Govind Prasad Sharma (P.W3) had recorded the F.I.R. on the basis of report which was brought by constable Damodar from Police outpost Jhagar.
23. Dr. A.P. Singh (P.W.4) had examined the complainant Gendibai and found empty socket of left and right Lateral Inciser and left central Inciser were filled with blood cot and was exfoliated due to injury. The MLC report is Ex. P.6.
24. Madan (P.W.5) has also supported the prosecution story and stated 7 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 that after hearing the screaming of the complainant Gendibai (P.W.1), he went to the spot and found that the ears of Gendibai were injured and her teeth were broken and hands were tied and one towel and rope was tied around her neck. He also informed Balram, the son of the complainant. Gendibai had disclosed the name of the appellant Purshottam and Laxminarayan. Thereafter they went to Police outpost and lodged the F.I.R. This witness turned hostile against the appellant Ghanshyam and Preetam and accordingly he was declared hostile.
25. Sunil Verma (P.W.6) had conducted the Test Identification Parade of the accused persons, and stated that the complainant had identified Laxminarayan only. The TIP memo is Ex. P. 4.
26. Dr. Vinod Chourasia, (P.W.7) had medically examined the complainant and found the following injuries :
"1. Lacerated wound, ¼ Cm. X ¼ Cm. X deep upto muscular on left ear labret.
2. Lacerated wound, ¼ Cm. X ¼ CM. X deep upto muscular on right ear labret.
3. Abrasion, ¼ Cm. X ¼ Cm., on frontal part of neck.
4. Abrasion, ¼ Cm. X ¼ Cm., on left forearm.
5. Diffused swelling, 4 X 3 CM., on left hand.
6. Abrasion, ¼ Cm. X ¼ Cm., on right hand."
The MLC report is Ex. P.8.
27. It is clear that the complainant Gendibai (P.W.1) had sustained various injuries and thus it is clear that an incident did take place. Now, the question for consideration is that whether the appellants have 8 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 committed the offence or not?
Appellants Preetam Dhakad and Ghanshyam
28. The names of these appellants are not mentioned in the F.I.R., Ex. P.1. These appellants were put for Identification, and the complainant in the Test Identification Parade, Ex. P. 4, could not identify these appellants. Further the complainant could not identify the appellants in dock also. Thus, the prosecution has failed to establish the identification of these appellants.
29. Now, the entire case rests upon the seizure of incriminating articles.
30. Hazarilal (P.W.8) is the witness of seizure and he has proved the statement of Ghanshyam made under Section 27 of Evidence Act, Ex. P.17 and seizure of Silve Khangwari from the possession of appellant Ghanshyam by seizure memo Ex. P.19. This witness has stated that Silver Khangwari was taken out after removing earth. Thus, it is clear that although the silver Khangwari was kept in a public place but it was not visible and was kept in a hidden condition and only the appellant Ghanshyam was aware of the said fact. Similarly, this witness has proved the statement of the appellant Preetam under Section 27 of Evidence Act, Ex. P.18 and recovery of Silver Kade by seizure memo Ex. P.20. The investigating officer, Santosh Bhargava (P.W.10) has also proved the seizure of above mentioned articles. Therefore, it is held that the prosecution has proved the seizure of Silver Khangwari and Silver Kade from the possession of Ghanshyam and Preetam Dhakad 9 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 respectively.
31. Now the pivotal question for determination is that whether the prosecution has established the identification of these articles. The complainant Gendibai (P.W.1), has stated that the articles were shown by Daroga in the Police Station and identification memo Ex. P.3 was prepared, whereas according to the prosecution case, the test identification parade for identification of seized articles was conducted by Ramcharan, Sarpanch Gram Panchayat Sujakhedi (P.W. 9). Ramcharan (P.W. 9) has not supported the prosecution case, and has stated that he was called in Police Outpost Jhagar, where the articles were handed over to the complainant by police and identification memo, Ex. P.3 was prepared by the police in the police station itself and his signatures were obtained. Thus, it is clear that the prosecution has failed to establish that the articles seized from the possession of the appellants Ghanshyam and Preetam were that of the complainant Gendi bai (P.W.1). There is no other evidence against the appellants Ghanshyam and Preetam. Accordingly, it is held that the prosecution has failed to establish the guilt of the appellants Ghanshyam and Preetam Dhakad, beyond reasonable doubt, therefore, they are acquitted of all the charges.
Appellant Purshottam
32. The name of the appellant Purshottam is specifically mentioned in the F.I.R., Ex. P.1, however, the complainant Gendibai (P.W.1) could not identify the appellant Purshottam in the Test Identification Parade, Ex.
10 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 P.4, but again identified the appellant Purshottam in the dock. The Court has appended a note that the complainant Gendibai (P.W.1) has identified the appellant by going nearer to him. Thus, it is clear that the eye vision of the complainant Gendibai (P.W.1) was poor, therefore, there is every possibility that because of poor eye vision, she could not identify the appellant Purshottam in Test Identification Parade. Further, the T.I.P. is meant for investigation purposes and is not a substantive piece of evidence. The substantive piece of evidence is the identification of the accused in the Court.
33. The Supreme Court in the case of Sheo Shankar Singh Vs. State of Jharkhand reported in (2011) 3 SCC 654 has held as under :
46. It is fairly well settled that identification of the accused in the court by the witness constitutes the substantive evidence in a case although any such identification for the first time at the trial may more often than not appear to be evidence of a weak character. That being so a test identification parade is conducted with a view to strengthening the trustworthiness of the evidence. Such a TIP then provides corroboration to the witness in the court who claims to identify the accused persons otherwise unknown to him. Test identification parades, therefore, remain in the realm of investigation.
47. The Code of Criminal Procedure does not oblige the investigating agency to necessarily hold a test identification parade nor is there any provision under which the accused may claim a right to the holding of a test identification parade. The failure of the investigating agency to hold a test identification parade does not, in that view, have the effect of weakening the evidence of identification in the court. As to what should be the weight attached to such an identification is a matter which the court will determine in the peculiar facts and circumstances of each case. In appropriate cases the court may accept the evidence of identification in the 11 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 court even without insisting on corroboration.
48. The decisions of this Court on the subject are legion. It is, therefore, unnecessary to refer to all such decisions. We remain content with a reference to the following observations made by this Court in Malkhansingh v. State of M.P. [(2003) 5 SCC 746]:
(SCC pp. 751-52, para 7) "7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly 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, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. 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.
They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Admn. [AIR 1958 SC 350], Vaikuntam Chandrappa v. State of A.P. [AIR 1960 SC 1340], Budhsen v. State of U.P. [(1970) 2 SCC 128 ] and Rameshwar Singh v.
12 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 State of J&K [(1971) 2 SCC 715].)"
49. We may also refer to the decision of this Court in Pramod Mandal v. State of Bihar [(2004) 13 SCC 150 ] where this Court observed: (SCC p. 158, para
20) "20. It is neither possible nor prudent to lay down any invariable rule as to the period within which a test identification parade must be held, or the number of witnesses who must correctly identify the accused, to sustain his conviction. These matters must be left to the courts of fact to decide in the facts and circumstances of each case. If a rule is laid down prescribing a period within which the test identification parade must be held, it would only benefit the professional criminals in whose cases the arrests are delayed as the police have no clear clue about their identity, they being persons unknown to the victims. They, therefore, have only to avoid their arrest for the prescribed period to avoid conviction.
Similarly, there may be offences which by their very nature may be witnessed by a single witness, such as rape. The offender may be unknown to the victim and the case depends solely on the identification by the victim, who is otherwise found to be truthful and reliable. What justification can be pleaded to contend that such cases must necessarily result in acquittal because of there being only one identifying witness? Prudence therefore demands that these matters must be left to the wisdom of the courts of fact which must consider all aspects of the matter in the light of the evidence on record before pronouncing upon the acceptability or rejection of such identification."
50. The decision of this Court in Malkhansingh case [(2003) 5 SCC 746]: and Aqeel Ahmad v. State of U.P. [(2008) 16 SCC 372 ] adopt a similar line of reasoning.
The Supreme Court in the case of Prakash Vs. State of Karnataka reported in (2014) 12 SCC 133 has held as under :
15. An identification parade is not mandatory (Ravi Kapur v. State of Rajasthan, (2012) 9 SCC 284) nor can it be claimed by the suspect as a matter of right. ( R. Shaji v. State of Kerala, (2013) 14 SCC 266 )The purpose of pre-trial identification evidence is to assure 13 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 the investigating agency that the investigation is going on in the right direction and to provide corroboration of the evidence to be given by the witness or victim later in court at the trial. ( Rameshwar Singh v. State of J&K, (1971) 2 SCC 715 ) If the suspect is a complete stranger to the witness or victim, then an identification parade is desirable (Mulla v. State of U.P., (2010) 3 SCC 508,Kishore Chand v. State of H.P., (1991) 1 SCC 286 ) unless the suspect has been seen by the witness or victim for some length of time. (State of U.P. v. Boota Singh, (1979) 1 SCC 31 ) In Malkhansingh v. State of M.P. (2003) 5 SCC 746 it was held: (SCC pp. 751-52, para 7) "7. ... 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. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact."
The Supreme Court in the case of State of Rajasthan Vs. Daud Khan reported in (2016) 2 SCC 607 has held as under :
Dock identification: Submissions and discussion
42. It was contended by Daud Khan that the three chance witnesses, PW 7 Mahabir Singh, PW 23 Narender Singh and PW 24 Rishi Raj Shekhawat were all from out of town. As such, they could not have identified Daud Khan or Javed. It was further contended that no test identification parade (for short "TIP") was conducted and reliance could not have been placed only on their dock identification.
43. No such argument was raised by Daud Khan either in the trial court or in the High Court and we see no reason to permit such an argument being raised at this stage.
44. That apart, it was recently held in Ashok Debbarma v. State of Tripura that while the evidence of identification of an accused at a trial is admissible as a substantive piece of evidence, it would depend on the facts of a given case whether or not such a piece of evidence could be relied upon as the sole basis for conviction of an accused. It was 14 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 held that if the witnesses are trustworthy and reliable, the mere fact that no TIP was conducted would not, by itself, be a reason for discarding the evidence of those witnesses. In arriving at this conclusion, this Court relied upon a series of decisions. Earlier, a similar view was expressed in Manu Sharma v. State (NCT of Delhi).
45. In any event, there were two other witnesses to the shooting, namely, PW 11 Narendra Kumawat and PW 19 Suraj Mal who were local residents and knew Nand Singh and Daud Khan and could easily identify them.
46. Five witnesses have testified to the events that took place at Bathra Telecom on the night of 19-6-
2004. We see no reason to disbelieve any of them, particularly since they have all given a consistent statement of the events. There are some minor discrepancies, which are bound to be there, such as the distance between the gun and Nand Singh but these do not take away from the substance of the case of the prosecution nor do they impinge on the credibility of the witnesses.
The Supreme Court in the case of Mukesh and another Vs. State (NCT of Delhi) and others reported in (2017) 6 SCC 1, has held as under:-
"143. In Santokh Singh v. Izhar Hussain, it has been observed that the identification can only be used as corroborative of the statement in court.
144. In Malkhansingh v. State of M.P., it has been held thus:
"7. ... 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. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. ..."
15 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 And again:
"16. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. ..."
145. In this context, reference to a passage from Visveswaran v. State represented by S.D.M. would be apt. It is as follows:
"11. ...The identification of the accused either in test identification parade or in Court is not a sine qua non in every case if from the circumstances the guilt is otherwise established. Many a time, crimes are committed under the cover of darkness when none is able to identify the accused. The commission of a crime can be proved also by circumstantial evidence. ..."
146. In Manu Sharma v. State (NCT of Delhi), the Court, after referring to Munshi Singh Gautam v. State of M.P., Harbhajan Singh v. State of J&K and Malkhansingh (supra), came to hold that the proposition of law is quite clear that even if there is no previous TIP, the court may appreciate the dock identification as being above board and more than conclusive.
147. In the case at hand, the informant, apart from identifying the accused who had made themselves available in the TIP, has also identified all of them in Court. On a careful scrutiny of the evidence on record, we are of the convinced opinion that it deserves acceptance. Therefore, we hold that TIP is not dented." The Supreme Court in the case of Prakash Vs. State of Karnataka reported in (2014) 12 SCC 133, has held as under :
"15. An identification parade is not mandatory (2012) 9 SCC 284 nor can it be claimed by the suspect as a matter of right. (2013) 14 SCC 266 The purpose of pre-trial identification evidence is to assure the investigating agency that the investigation is going on in the right direction and to provide corroboration of the evidence to be given by the witness or victim later in court at the 16 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 trial. (1971) 2 SCC 715 If the suspect is a complete stranger to the witness or victim, then an identification parade is desirable (2010) 3 SCC 508 unless the suspect has been seen by the witness or victim for some length of time. (1979) 1 SCC 31 In Malkhansingh v. State of M.P. (2003) 5 SCC 746 it was held: (SCC pp. 751-52, para 7) "7. ... 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. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact."
16. However, if the suspect is known to the witness or victim (1970) 3 SCC 518 or they have been shown a photograph of the suspect or the suspect has been exposed to the public by the media (2013) 14 SCC 266 no identification evidence is necessary. Even so, the failure of a victim or a witness to identify a suspect is not always fatal to the case of the prosecution. In Visveswaran v. State (2003) 6 SCC 73 it was held:
(SCC p. 78, para 11) "11. ... The identification of the accused either in a test identification parade or in court is not a sine qua non in every case if from the circumstances the guilt is otherwise established.
Many a time, crimes are committed under the cover of darkness when none is able to identify the accused. The commission of a crime can be proved also by circumstantial evidence."
The Supreme Court in the case of State of Rajasthan Vs. Daud Khan reported in (2016) 2 SCC 607 has held as under :
44. That apart, it was recently held in Ashok Debbarma v. State of Tripura (2014) 4 SCC 747 that while the evidence of identification of an accused at a trial is admissible as a substantive
17 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 piece of evidence, it would depend on the facts of a given case whether or not such a piece of evidence could be relied upon as the sole basis for conviction of an accused. It was held that if the witnesses are trustworthy and reliable, the mere fact that no TIP was conducted would not, by itself, be a reason for discarding the evidence of those witnesses. In arriving at this conclusion, this Court relied upon a series of decisions. AIR 1958 SC 350 Earlier, a similar view was expressed in Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1.
The Supreme Court in the case of Suraj Pal Vs. State of Haryana reported in (1995) 2 SCC 64 has held as under:
"14......... It may be pointed out that the holding of identification parades has been in vogue since long in the past with a view to determine whether an unknown person accused of an offence is really the culprit or not, to be identified as such by those who claimed to be the eyewitnesses of the occurrence so that they would be able to identify the culprit if produced before them by recalling the impressions of his features left on their mind. That being so, in the very nature of things, the identification parade in such cases serves a dual purpose. It enables the investigating agency to ascertain the correctness or otherwise of the claim of those witnesses who claimed to have seen the offender of the crime as well as their capacity to identify him and on the other hand it saves the suspect from the sudden risk of being identified in the dock by such witnesses during the course of the trial. This practice of test identification as a mode of identifying an unknown person charged of an offence is an age- old method and it has worked well for the past several decades as a satisfactory mode and a well- founded method of criminal jurisprudence. It may also be noted that the substantive evidence of identifying witness is his evidence made in the court but in cases where the accused person is not known to the witnesses from before who claimed to have seen the incident, in that event identification of the accused at the earliest possible opportunity after the occurrence by such
18 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 witnesses is of vital importance with a view to avoid the chance of his memory fading away by the time he is examined in the court after some lapse of time."
The Supreme Court in the case of Dara Singh Vs. Republic of India reported in (2011) 2 SCC 490, it has been held as under :
"40. It is relevant to note that the incident took place in the midnight of 22-1-1999/23-1-1999. Prior to that, a number of investigating officers had visited the village of occurrence. Statements of most of the witnesses were recorded by PW 55, an officer of CBI. In the statements recorded by various IOs, particularly the local police and State CID, these eyewitnesses except few claim to have identified any of the miscreants involved in the incident. As rightly observed by the High Court, for a long number of days, many of these eyewitnesses never came forward before the IOs and the police personnel visiting the village from time to time claiming that they had seen the occurrence. In these circumstances, no importance need to be attached on the testimony of these eyewitnesses about their identification of the appellants other than Dara Singh (A-1) and Mahendra Hembram (A-3) before the trial court for the first time without corroboration by previous TIP held by the Magistrate in accordance with the procedure established.
41. It is a well-settled principle that in the absence of any independent corroboration like TIP held by the Judicial Magistrate, the evidence of eyewitnesses as to the identification of the appellant-accused for the first time before the trial court generally cannot be accepted. As explained in Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1, that if the case is supported by other materials, identification of the accused in the dock for the first time would be permissible subject to confirmation by other corroborative evidence, which are lacking in the case on hand except for A- 1 and A-3.
42. In the same manner, showing photographs of the miscreants and identification for the first time in the trial court without being corroborated by TIP held before a Magistrate or without any other
19 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 material may not be helpful to the prosecution case. To put it clearly, the evidence of witness given in the court as to the identification may be accepted only if he identified the same persons in a previously held TIP in the jail.
43. It is true that absence of TIP may not be fatal to the prosecution. In the case on hand, A-1 and A-3 were identified and also corroborated by the evidence of slogans given in his name and each one of the witnesses asserted the said aspect insofar as they are concerned. We have also adverted to the fact that none of these witnesses named the offenders in their statements except few recorded by IOs in the course of investigation. Though an explanation was offered that out of fear they did not name the offenders, the fact remains, on the next day of the incident, the Executive Magistrate and top-level police officers were camping in the village for quite some time. Inasmuch as evidence of the identification of the accused during trial for the first time is inherently weak in character, as a safe rule of prudence, generally it is desirable to look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier TIP. Though some of them were identified by the photographs except A-1 and A-3, no other corroborative material was shown by the prosecution.
44. Now let us discuss the evidentiary value of photo identification and identifying the accused in the dock for the first time.
45. The learned Additional Solicitor General, in support of the prosecution case about the photo identification parade and dock identification, heavily relied on the decision of this Court in Manu Sharma (2010) 6 SCC 1. It was argued in that case that PW 2, Shyan Munshi had left for Kolkata and thereafter, photo identification was got done when SI Sharad Kumar, PW 78 went to Kolkata to get the identification done by picking up from the photographs wherein he identified the accused Manu Sharma though he refused to sign the same. However, in the court, PW 2 Shyan Munshi refused to recognise him. In any case, the factum of photo identification by PW 2 as witnessed by the officer concerned is a relevant and an admissible piece of evidence.
20 Cr.A. Nos.552/2015, 607/2015 and 1297/2017
46. In SCC para 254, this Court held: (Manu Sharma case (2010) 6 SCC 1, SCC p. 96) "254. Even a TIP before a Magistrate is otherwise hit by Section 162 of the Code.
Therefore to say that a photo identification is hit by Section 162 is wrong. It is not a substantive piece of evidence. It is only by virtue of Section 9 of the Evidence Act that the same i.e. the act of identification becomes admissible in court. The logic behind TIP, which will include photo identification lies in the fact that it is only an aid to investigation, where an accused is not known to the witnesses, the IO conducts a TIP to ensure that he has got the right person as an accused. The practice is not borne out of procedure, but out of prudence. At best it can be brought under Section 8 of the Evidence Act, as evidence of conduct of a witness in photo identifying the accused in the presence of an IO or the Magistrate, during the course of an investigation."
47. It was further held: (Manu Sharma case (2010) 6 SCC 1, SCC pp. 98-99, para 256) "256. ... '7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly 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, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no 21 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 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. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.'*"
It was further held that: (Manu Sharma case (2010) 6 SCC 1, SCC p. 99, para 259) "259. ... The photo identification and TIP are only aides in the investigation and do not form substantive evidence. The substantive evidence is the evidence in the court on oath."
48. In Umar Abdul Sakoor Sorathia v. Narcotic Control Bureau (2000) 1 SCC 138 the following conclusion is relevant: (SCC p. 143, para 12) "12. In the present case prosecution does not say that they would rest with the identification made by Mr Mkhatshwa when the photograph was shown to him. Prosecution has to examine him as a witness in the court and he has to identify the accused in the court. Then alone it would become substantive evidence. But that does not mean that at this stage the court is disabled from considering the prospect of such a witness correctly identifying the appellant during trial. In so considering the court can take into account the fact that during investigation the photograph of the appellant was shown to the witness and he identified that person as the one whom he saw at the relevant time."
49. In Dana Yadav v. State of Bihar (2002) 7 SCC 295, SCC para 38, the following conclusion is relevant: (SCC p. 316) "(e) Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form the basis of conviction, the same being from its 22 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law."
50. It is clear that identification of accused persons by a witness in the dock for the first time though permissible but cannot be given credence without further corroborative evidence. Though some of the witnesses identified some of the accused in the dock as mentioned above without corroborative evidence the dock identification alone cannot be treated as substantial evidence, though it is permissible."
34. Thus, it is clear that in order to rely upon the dock identification of accused, it is not necessary that dock identification must be preceded by T.I.P. In fact the dock identification is the substantive piece of evidence and if the evidence of a witness is found reliable, then the identification of the accused in the dock can be relied upon.
35. Thus, it is held that the identification of Purshottam is duly established by the prosecution beyond reasonable doubt.
36. So far as the seizure of Gold Tops is concerned, Hazarilal (P.W.8) has proved the statement of the appellant Purshottam under Section 27 of Evidence Act, Ex. P.13 and recovery of Gold Tops by seizure memo Ex. P.24. The investigating officer, Santosh Bhargava (P.W.10) has also proved the seizure of above mentioned articles. Therefore, it is held that the prosecution has proved the seizure of Gold Tops from the possession of Purshottam. But the prosecution has failed to prove the identification of the Gold Tops for the reasons already mentioned while considering 23 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 the case of appellants Ghanshyam and Preetam Dhakad. Accordingly, it is held that although Gold Tops were seized from the possession of appellant Purshottam, but since, its identification could not be established by the prosecution, therefore, the seizure of gold tops loses its importance.
37. However, in view of the fact that Purshottam was specifically named by the complainant Gendibai (P.W.1) in the F.I.R., Ex. P.1 which was lodged within a period of 4 hours, because the incident took place at about 3 A.M. in the night and the F.I.R. was lodged at 7:00 A.M., as well as that he was identified by the complainant in the Court, coupled with the fact that the ocular evidence of complainant Gendi bai (P.W.1) is supported by medical evidence, Ex. P.6 and P.8, it is held that the prosecution has succeeded in establishing the guilt of the appellant Purshottam beyond reasonable doubt.
38. The Trial Court has convicted the appellant Purshottam for offence under Section 394/397 of I.P.C. Since, the complainant Gendibai (P.W.1) had suffered dismemberment of her teeth, therefore, the conviction of the appellant Purshottam for offence under Section 397 of I.P.C. is affirmed. Accordingly, the appellant Purshottam is held guilty of committing offence under Section 452 and 397 of I.P.C.
39. So far as the question of sentence is concerned, the minimum sentence for offence under Section 397 of I.P.C. is seven years. Hence, the jail sentence of Rigorous imprisonment of 10 years for offence under Section 397 of I.P.C. is reduced to rigorous imprisonment of 7 years and 24 Cr.A. Nos.552/2015, 607/2015 and 1297/2017 fine of Rs. 2,000. In default, the appellant Purshottam shall undergo the rigorous imprisonment of 6 months.
40. The appellant Purshottam is on bail. His bail bonds are hereby cancelled. He is directed to immediately surrender before the Trial Court for undergoing the remaining jail sentence.
41. The appellant Preetam Dhakad is on bail. His bail bonds are discharged.
42. The appellant Ghanshyam is in jail. He be released if not required in any other case.
43. Accordingly, the judgment and sentence judgment and sentence dated 27-3-2015 passed by IVth Additional Sessions Judge, Guna in S.T. No. 26/2014 is hereby affirmed with above mentioned modifications.
44. The judgment and sentence dated 29-7-2017 passed by 3rd Additional Sessions Judge, Guna in S.T. No. 26/2014 and dated 12-5- 2015 passed by IVth Additional Sessions Judge, Guna in S.T. No. 26/2014 are hereby set aside.
45. The appeal filed by appellant Ghanshyam and Preetam Dhakad are allowed and appeal filed by appellant Purshottam is partially allowed.
(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2019.08.02 09:47:54 +05'30'