Rajasthan High Court - Jaipur
Vinod Sharma vs State Of Rajasthan on 6 May, 2016
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGEMENT IN D.B. Criminal Appeal No.1108/2009 Vinod Sharma Vs. The State of Rajasthan through Public Prosecutor
Date of Order ::: 06.05.2016 Present Hon'ble Mr. Justice Mohammad Rafiq Hon'ble Mr. Justice Vijay Kumar Vyas Mr. Suresh Sahni with Mr. R.M. Sharma, counsel for appellant Mrs. Sonia Shandilya, Public Prosecutor, for the State #### //Reportable// By the Court (Per Hon'ble Mr. Justice Mohammad Rafiq):-
This appeal has been filed by accused Vinod Sharma against judgment dated 15.10.2009 passed by learned Judge, Special Court (Fake Currency Note Cases), Jaipur City, Jaipur, whereby he has been convicted for offence under Sections 394 and 302 of the Indian Penal Code and sentenced to undergo life imprisonment on both counts with fine of Rs.5000/- on each count, and in default of payment of fine, to further undergo rigorous imprisonment of one year for each offence. Accused-appellant was tried along-with four other accused. However, learned trial court acquitted all four of them by same impugned judgment. The State has, on grant of leave, filed Criminal Appeal No.815/2014 against their acquittal, who were initially summoned by bailable warrants. Service on three of the accused-respondents was affected therein, except accused-respondent Sarvesh Yadav. Since he was avoiding service, this court, by order dated 21.09.2015, issued non-bailable warrant for his arrest. Prayer of learned counsel for accused-appellant Vinod Sharma for early hearing of the appeal in view of the fact that accused-appellant had already served sentence of ten years, was granted as it was ordered that the State Appeal, filed against acquittal of four accused, be detached and listed separately and appeal filed by the accused-appellant be heard.
Facts, in brief, giving rise to this appeal are that on 23.08.2005 informant Bhagwan Sahai submitted a written report (Exhibit P-7), to the Station House Officer, Police Station Sadar, Jaipur, sating that in the morning of that date, as per the daily routine, he went to the head branch of the State Bank of Bikaner and Jaipur behind Collectorate to collect the keys of the extension counters and on that day at about 10.30 in the morning, Shri Sunit Kumar Dutta, cashier of the bank, came to their counter. He was having cash to be distributed amongst four extension counters. They came in Ambassador car and reached the extension counter at about 10.35 AM. The informant was sitting in left side whereas Shri Sunit Kumar Dutta was sitting in right side of the back seat of the car. While Bhagwan Sahai Gurjar was driving the car, Kanhaiya Lal, peon of the bank, was sitting on front seat of the car. When the car reached in front of the extension counter, they got down from the vehicle. The informant went inside the extension counter but suddenly he heard the sound like cracker. When he came out, he saw a person having pistol in his hand open fire at Kanhaiya Lal second time, as a result of which Kanhaiyalal fell down. Kanhaiyalal was carrying suitcase of VIP make. The said person, who fired at him, took the suitcase, which had about twenty two lacs in cash. This incident was witnessed by Shri Sunit Kumar Dutta, driver of Ambassador car Shri Bhagwan Sahai Gurjar and gate-keeper. The person, who opened fire at Kanhaiyalal was of strong built and tall with round face. His colour was fair. He was about 40 years of age and wearing a T-shirt of lining and half pant of peanut colour. The informant immediately came inside the extension counter and informed the police control room on telephone and also Shri Kapoor, Bank Manager. Kanhaiyalal was taken to hospital in car by Shri Sunit Kumar Dutta. Later, the informant learnt that the person, who fired at Kanhaiyalal, ran away on motorcycle with someone who was waiting for him on the main gate of the power house. The police, on the basis of aforesaid written report, registered regular FIR for offence under Sections 397 IPC and commenced investigation. On completion of investigation, the police on 07.04.2006 filed charge-sheet against accused-appellant and four accused under Sections 396 and 120B of the IPC and under Section 4/25 of the Arms Act, and also kept investigation pending under Section 173(8) of the Cr.P.C. Case was committed for trial to the court of Special Judge, (Fake Currency Note Cases), Jaipur City, Jaipur. The police thereafter filed supplementary charge-sheet on 14.05.2007 for offence under Section 3/25 and 27 of the Arms Act against accused Vinod Sharma and Sarvesh Yadav and for offence under Section 396, 120B r/w Section 75 of the IPC against accused Radhey Shyam. The prosecution, in support of its case, examined 98 witnesses and got 221 documents exhibited. The defence produced one witness and got 26 documents exhibited. Learned trial court, on conclusion of trial, convicted and sentenced the accused-appellant in the manner indicated above and acquitted other co-accused. The trial court has acquitted accused-appellant for offence under the Arms Act and even for offence under Section 396 r/w Section 120-B IPC. Aggrieved thereby, the appellant has preferred the present appeal.
Shri Suresh Sahni, learned counsel for appellant, argued that impugned judgment is legally not sustainable being contrary to provisions of law as also material on record. Learned trial court, while passing impugned judgment, did not consider the fact that there are serious contradictions in statements of prosecution witnesses recorded in court and statements recorded by the police under Section 161 Cr.P.C. They had improved upon first version given by them to the police under Section 161 Cr.P.C. Learned trial court at page 29 of its judgment itself agreed that it is a case based on circumstantial evidence and direct evidence both. While, on one hand, the trial court totally denied circumstantial evidence, on other hand, it accepted direct evidence as true, whereas in this case direct evidence is intermingled with circumstantial evidence. In such a situation, if the circumstantial evidence is not believed, then no value can be attached to other evidence.
Learned counsel argued that in the instant case, the story of prosecution was that three accused persons, namely, Sarvesh, Vinod and Neeraj were present at the time of alleged crime but learned trial court has not believed the story of prosecution and found that only one person was present at the place of incident. It has ignored the fact that a pistol and four live cartridges were shown to have been recovered from accused-appellant Vinod vide Exhibit P-88 in presence of two attesting witnesses, namely, Ramhet (PW-69) and Shivraj (PW-84), but both of them have not supported the recovery and prosecution declared them hostile. The trial court failed to appreciate that this recovery was planted by the police, which was also further evident from the fact that FSL Report (Exhibit P-14) dated 16.06.2006 has not proved that the bullet extracted from the body of deceased was fired from same pistol, which was shown to have been recovered at the instance of accused-appellant vide Exhibit P-88 and therefore recovery of pistol has not been believed even by the trial court. When the case of the prosecution stood falsified, there was no justification for conviction of accused-appellant.
It is argued that learned trial court has failed to consider that test identification parade was doubtful because witnesses deposed in their statements that there were three queues, whereas the Judicial Magistrate, who conducted the test identification parade, deposed that there was only one queue. Arrest memo of the appellant (Exhibit P-164) indicates that he had a mark on the forehead. There is no definite statement by the Judicial Magistrate whether such mark on the forehead was covered by affixing paper slip or other persons with similar marks were mixed. Prejudice was also caused to the appellant because as per the relevant police rules 14 persons had to be mixed up with one accused for the purpose of Test Identification Parade, but in the present case there were though 14 persons but with two accused thus virtually only seven persons were mixed up with one accused, which raised proportionate probability of identification and prejudiced the accused.
Shri Suresh Sahni, learned counsel for accused-appellant argued that the trial court has not considered that Shiv Sahai (PW-1) has, in his statement, deposed that accused-appellant was wearing a cap on his head and he was having French cut beard but in the sketch (Exhibit D-10) there was no cap and no French cut beard drawn. Shiv Sahai (PW-1) also did not identify the accused-appellant during the course of trial. Learned trial court has not considered that during the test identification parade no one was wearing cap nor had French cut beard, whereas Shiv Sahai (PW-1) has stated that accused, who opened fire, was wearing a cap and having French cut beard. There are material contradictions in the statements of Sunit Kumar Dutta (PW-9) recorded by the police as Exhibit D-4, statement recorded by the S.O.G. as Exhibit D-5, and statement recorded during trial. Sunit Kumar Dutta (PW-9), in his examination in chief, has not asserted any specification about the accused, and therefore there are material contradictions in his statements Exhibit P-4 recorded by the police and Exhibit P-5 recorded by S.O.G. During investigation, Virendra Singh (PW-14) and Duli Chand (PW-64) identified accused Sarvesh and Vinod in test identification parade but learned trial court totally discarded this evidence and mentioned in impugned judgment that both these witnesses had already seen accused Sarvesh and Vinod earlier at police station prior to test identification parade. It is argued that learned trial court has failed to consider that in this case not a single penny was recovered from the accused-appellant. The police has planted lot of things in the investigation but could not recover the money. Unless the money was recovered, recovery of suitcase alone would not prove the dacoity. It is argued that the accused-appellant was allegedly brought from Firozabad (UP) but his arrest was shown at Jaipur on 12.01.2006. There is no evidence as to who were members of the police team visiting Firozabad, when they started from Jaipur and by what mode of transport, and whether they associated the local police of Firozabad with them in such arrest. No evidence has also been brought on record that the accused-appellant was kept 'baparda'. There was thus every possibility that the accused may have been shown to the witnesses before their identification in the Test Identification Parade. The accused-appellant has pointed out to the Judicial Magistrate, who conducted Test Identification Parade, that he was shown to witness Sunit Kumar Dutta (PW-9) at Police Station and this statement he made only with regard to Sunit Kumar Dutta and not other three eyewitnesses, who too identified him. Testimony of Shri Sunit Kumar Dutta could not be relied to convict the accused-appellant. It is contended that informant did not give physiognomy of accused nor did Sunit Kumar Dutta give their physiognomy or identification mark to the police in the statement under Section 161 Cr.P.C. The incident took place on 23.08.2005 whereas Test Identification Parade was conducted about five-and-a-half-month thereafter on 01.02.2006. It was therefore impossible for any person to remember the face of accused after such delay, whose face was seen by him for few seconds. Even the sketch prepared by the police does not match with face of accused, whereas substantial doubt has been raised about truth of prosecution version. Conviction under Section 302 IPC alone could not be recorded as no charge was framed for that offence. There is also no evidence to the effect that even after accused was arrested, he was kept 'baparda'.
Referring to Pages 46 and 47 of impugned judgment, learned counsel argued that the trial court has not believed recovery of suitcase and motorcycle. Trial court has also not believed recovery of sum of Rs.22800/- at the instance of co-accused Radhey Shyam, for whom it was alleged by the prosecution that he received Rs.2,00,000/- out of the loot and remaining amount was spent by his wife. The trial court failed to notice that all the accused, when they were arrested, were having injuries on their persons including accused-appellant, for whom it was said that he sustained such injuries while he was trying to flee and fell down in a 'nala' but in the arrest memo it was not indicated where 'nala' was located; whether at Firozabad or Jaipur or elsewhere. Mr. Arshad Ali (PW-86), Investigating Officer, has stated that accused-appellant was brought from Firozabad to Jaipur and was arrested. Even the attesting witness Phool Chand (PW-88) stated that he does not know wherefrom accused-appellant was brought. No independent witness has been associated with the arrest of accused-appellant. Apart from recovery of pistol, recovery of 'bermuda' was also concocted by the police and recovery of mobile also has not been believed by the trial court because the prosecution has failed to prove whether this mobile was used in the incident. Learned counsel for appellant submitted that the police, on the basis of information allegedly given by co-accused Neeraj Gupta under Section 27 of the Evidence Act, recovered from the house of Ashok Sharma @ Netaji of village Baharmand, Police Station Manpur, District Dausa, suitcase and motorcycle, wherefor they have recorded a story that Neeraj Gupta informed that they entrusted the suitcase, which carried looted money, and the motorcycle used in the loot, to said Ashok Sharma at his Jai Ambey Nagar residence. But, after some time, he shifted his residence to Devi Nagar and that owing to dispute with regard to distribution of money, they murdered Ashok Sharma. When they reached the rented accommodation of Ashok Sharma at Devi Nagar, landlord Shiv Raj Singh informed that after his death, his belongings have been carried away by his father to his native place and the recovery was thus shown from the house of deceased Ashok Sharma from his native place. If at all the police were acting on the story that Ashok Sharma had grabbed the entire money, which led to his eventual murder by accused-appellant, there was no reason why they did not further investigate the matter to pinpointedly say as to whether any FIR was lodged with regard to his murder and whether investigation linked the accused in the present case with the murder of Ashok Sharma. Learned counsel for accused-appellant argued that Arshad Ali (PW-86) stated that accused confessed to have committed the offence but no explanation has been given why his alleged confession was not recorded by the police under Section 161 Cr.P.C.
Learned counsel for accused-appellant, relying on judgment of the Supreme Court in Wakil Singh Vs. State of Bihar 1981 Supp SCC 28, argued that conviction of the accused cannot be recorded on the single testimony of investigating officer relying on Test Identification Parade in which only Sunit Kumar Dutta (PW-9) identified the accused. In the cited case, the Test Identification Parade was delayed by three-and-a-half months after the incident, which was conducted six days after the arrest, and the Supreme Court discarded the same. In the present case, the Test Identification Parade was delayed by five-and-a-half-months from the date of incident, whereas it was conducted 21 days after arrest of the accused. It is argued that even if in later judgment of the Supreme Court a different view has been taken without making reference to larger bench judgment, that should be treated as per-incurium not laying down good law. Learned counsel also relied on Division Bench judgment dated 30.01.2015 of this court in Ramraj Vs. The State of Rajasthan - D.B. Criminal Appeal No.905/2005, in which case also the Test Identification Parade conducted with delay of 18 days was held not believable.
Learned counsel for accused-appellant argued that learned trial court has not considered the fact that on very same facts and circumstances, it acquitted other four accused of all the charges. It has also failed to consider two cardinal principles of criminal jurisprudence, namely, (i) that the prosecution is required to prove the guilt against the accused beyond reasonable doubt and (ii) that the accused is entitled to benefits of reasonable doubts. Had the trial court followed the above two cardinal principles of criminal jurisprudence regarding appreciation of evidence, conviction of the appellant could not have been recorded. It is argued that the trial court has erred in law in not considering that burden on the accused is not so heavy as it lies on the prosecution. The burden on the accused in support of the plea taken by him, can be discharged even by showing the preponderance of probabilities in favour of the plea. Even if the appellant fails to substantiate the plea, he is entitled to get the benefit if reasonable doubt is created in the prosecution case.
Mrs. Sonia Shandilya, learned Public Prosecutor, while opposing the appeal, supported the judgment passed by the trial court. She argued that in the written report (Exhibit P-7) dated 23.08.2005 lodged by Bhagwan Sahai Verma regarding the bank robbery, it was specifically mentioned that one person, who had pistol, after murdering Kanhaiyalal, took away the suitcase carrying currency notes of Rs.22,00,000/-. This money was entrusted to Shri Sunit Kumar Dutta (PW-9) for being distributed amongst four extension counters attached to the main branch of State Bank of Bikaner and Jaipur situated near collectorate, Jaipur. Sunit Kumar Dutta (PW-9), head cashier, and car driver Bhagwan Shai Gurjar (PW-21) were witness to aforesaid incident. Shri Bhagwan Sahai Verma, Assistant Manager of Extension Counter, immediately came out and saw accused running with suitcase and deceased lying on the ground.
Learned Public Prosecutor has referred to testimony of Sunit Kumar Dutta (PW-9), Head Cashier, who proved that all four of them started from Collectorate Branch at about 10.20 AM for distributing the money at extension counters. Deceased Kanhaiyalal was sitting on front seat and was carrying the suitcase. When the car stopped in front of the extension counter, this witness and deceased Kanhaiyalal alighted from car and proceeded towards extension counter. It was at that time that suddenly accused came in front of Kanhaiyalal and commanded him two-three times to put the suitcase on the ground. When he did not abide, accused fired at him and thereby Kanhaiyalal instantaneously fell on the ground and accused ran away with the suitcase accompanied by co-accused, who was waiting for him outside the main gate of the power house. Learned Public Prosecutor submitted that it has been proved by ample evidence in the shape of debit vouchers (Exhibit P-15, 17, 19 and 21), all of which have been proved by Sunit Kumar Dutta (PW-9), that this money was exactly Rs.22,00,000/- and was meant for being distributed amongst four extension counters.
Learned Public Prosecutor argued that mere delay in Test Identification Parade by itself may not be a reason for discarding testimony of Sunit Kumar Dutta (PW-9), Head Cashier, who saw assailant from a very close range. Even though Sunit Kumar Dutta (PW-9) had seen the accused-appellant from a very close range for a few minutes but in view of the gravity of the incident, it was unlikely for him to forget his face. Sunit Kumar Dutta (PW-9) has remained unshaken in his cross-examination. It is denied that accused was not kept 'baparda'.
Learned Public Prosecutor, referring to arrest memo (Exhibit P-164), argued that accused-appellant was arrested on 12.01.2006 and that he was kept 'baparda'. Referring to memo of information given by the accused under Section 27 of the Evidence Act (Exhibit P-165) about place of incident, learned Public Prosecutor argued that it is clearly mentioned therein that accused-appellant was kept with muffled face ('baparda'). Learned Public Prosecutor also referred to site plan (Exhibit P-166) dated 13.01.2006, vide which he was taken to the place of incident, in which also it is clearly mentioned that accused-appellant was kept with muffled face ('baparda'). Learned Public Prosecutor also referred to Exhibit P-167 dated 18.01.2006, which is the memo of information given by accused-appellant under Section 27 of the Evidence Act, and Exhibit P-168 dated 23.01.2006, which is seizure memo of one mobile chip and two chips of Hutch company recovered at the instance of accused-appellant, in which also it was clearly mentioned that accused was kept with muffled face ('baparda'). All these memos were prepared in presence of attesting witnesses. Reference is also made to Exhibit P-88, which is recovery memo of one pistol (mouser) including four live cartridges and one 'bermuda', in which also it is mentioned that accused-appellant was kept 'baparda'. Learned Public Prosecutor argued that observation made by the Magistrate in the Test Identification Parade (Exhibit P-3) at the instance of accused-appellant that he was shown to witness Sunit Kumar Dutta (PW-9), was nothing but clearly an act of cleverness on his part because this witness had seen him firing at deceased. This observation does not in any manner diminish the evidentiary value of testimony of Sunit Kumar Dutta (PW-9), which otherwise inspires full confidence. Rather Shri Gajendra Singh Tenguriya (PW-98), the Magistrate has, in the Test Identification Parade, recorded that all four witnesses, in the first instance, identified the accused-appellant as one who opened fire at the deceased and snatched the suitcase containing money. Accused-appellant was identified not only by Sunit Kumar Dutta (PW-9), but also by Duli Chand (PW-64), Virendra Singh (PW-14) and Shiv Sahay (PW-1). Shri Gajendra Singh Tenguriya (PW-98), the Judicial Magistrate, who conducted the Test Identification Parade, has proved the same. It is denied that any prejudice was caused to accused-appellant because fourteen persons were mixed up with two accused. The Judicial Magistrate has clearly stated that he called seven persons for one accused, which is clear from Exhibit P-213 and Exhibit P-214, which are two lists each containing names of seven different persons. The accused and said persons were made to stand up in two lines. Accused Vinod was the only one, who was identified by all four witnesses. Report of Test Identification Parade is written on the back side of Exhibit P-26. Learned Public Prosecutor argued that in the memo of identification of goods (Exhibit P-10), it is mentioned that the colour of suitcase was light black and the suitcase was in the size of 22 and was kept with five other suitcases of VIP company, which were also of similar size. Bhagwan Sahai Verma (PW-5) and Bhagwan Sahai Gurjar (PW-21), both, identified the suitcase, which is Article-3. The memo of identification of goods is Exhibit P-10. The memo of Test Identification Parade of accused Vinod is Exhibit P-3. Gajendra Singh Tenguriya (PW-98), Judicial Magistrate, in his cross-examination, has stated that suitcase was mixed with other suitcases of similar kind and was identified by witnesses. Shiv Sahai (PW-1), Sunit Kumar Dutta (PW-9), Virendra Singh (PW-14) and Duli Chand (PW-64), in their examination-in-chief, have categorically stated that the person, who was having pistol in his hand, was wearing 'bermuda' (half pant). They are consistent in their statement in cross-examination. The 'bermuda' has been recovered at the instance of accused-appellant, which connects him with the crime. Learned Public Prosecutor argued that mere fact that entire money could not be recovered, does not in any manner disprove the fact that incident of robbery and murder of one person took place on 23.08.2005. Since accused succeeded in evading their arrest for about five-and-a-half-months, they got sufficient time to spend and pilfer the money.
Learned Public Prosecutor argued that while the trial court has discarded testimony of Shiv Sahai (PW-1) as he did not identify the accused in court but it has not given any cogent or valid reason to disbelieve the testimony of Virendra Singh (PW-14), who identified both accused-appellants Vinod and Sarvesh in jail in Test Identification Parade as well as in court. Finding of the trial court that these two witnesses could not see the face of the accused, is wholly perverse. In fact, a sum of Rs.22,800/- was recovered at the instance of co-accused Radhey Shyam, who received a sum of Rs.2,00,000/- as his share but rest of the money was spent by his wife. Merely because prosecution in this case was not required to investigate the murder case of Ashok Sharma as separate case was registered for that and therefore that cannot be taken as lacunae in the present case. Learned Public Prosecutor therefore prays for dismissal of the appeal.
We have given our anxious consideration to rival submissions and perused the material on record as also the impugned judgment of the trial court.
Although, it is true that the trial court has discarded testimony of other witnesses and not believed recovery of articles, namely, suitcase, mobile and motorcycle, at the instance of the accused-appellant, but the trial court, at the same time, has also observed that a sum of Rs.22,00,000/- indeed, by virtue of debit bank vouchers Exhibits P-15, P-17, P-19 and P-21, was carried in the suitcase for being distributed amongst four extension counters and aforesaid debit vouchers were prepared by Sunit Kumar Dutta (PW-9). Sunit Kumar Dutta (PW-9) first took the the money in a car, which was being driven by Bhagwan Sahai, to the extension counter at the power house. The Assistant Manager of the extension counter Shri Bhagwan Sahai Verma was in the same car sitting on its back seat and deceased was sitting with the suitcase on front seat. The trial court has not completely discarded the testimony of Virendra Singh (PW-14) and Duli Chand (PW-64), and has believed them to the extent that they reached the place of occurrence immediately after the incident took place. All what has been stated by them is that it was not possible for them to see the face of the accused from behind while they were fleeing from the place of occurrence on a motorcycle. The trial court has believed testimony of Sunit Kumar Dutta (PW-9), Head Cashier, in toto because he was the only eyewitness of sterling worth and stood the scrutiny of cross-examination. The trial court has believed him also because he identified the accused-appellant in the first instance in Test Identification Parade. Even if the trial court has not believed testimony of other three witnesses, who identified the accused-appellant in test identification parade, nonetheless their testimony in part has been believed by the trial court at-least to the extent of fact that they proved the manner in which the incident took place leading to robbery and murder. Learned Public Prosecutor has, with the help of various exhibits, demonstrated that the accused, while in custody of the police, was kept with muffled face (baparda). There is no material on record to believe that he was shown to witnesses, especially Sunit Kumar Dutta (PW-9) before test identification parade. The trial court has noted that Bhagwan Sahai Verma (PW-5), In-charge/Assistant Manager of the extension counter, has corroborated statement of Sunit Kumar Dutta (PW-9) in part that they started from main branch of State Bank of Bikaner and Jaipur at around 10.15 AM and that they (Sunit Kumar Dutta, he himself, Kanhaiyalal) reached the extension counter at 10.30 AM by Ambassador car, which was being driven by Bhagwan Sahai Gurjar. He first of all alighted from the car by opening the gate and went to his seat in the branch office, thereafter he heard sound like that of a cracker. On hearing the sound, he immediately turned back and saw one person having pistol in his hand standing in front of Kanhaiyalal. He immediately called the control room from telephone of the extension counter and thereafter informed Mr. Kapoor, the Branch Manager. When he came out, he saw Kanhaiyalal Meena lying on the ground. He has proved that the police reached the place of incident within half-an-hour. He stated that suitcase being carried by Kanhaiyalal was taken away by the accused. This witness also stated that age of the accused, who opened fire, was about 25-30 years.
Bhagwan Sahai Gurjar (PW-21), driver of Ambassador car, also corroborated the testimony of Sunit Kumar Dutta (PW-9) in part, by stating that he along-with other three, including deceased, came in the same car. When they reached the Ram Mandir extension counter at 10.35 AM, other three alighted from the car and he took the car ahead to turn it back to the same place, and during this period he heard the sound like a cracker. When he brought back the car to the same place, he saw Kanhaiyalal lying on the ground and one person running away on a motorcycle of another person with the suitcase. Testimony of Shiv Sahai (PW-1), who was the chowkidar of the power house, has also been believed to the extent of proving the manner of incident. His testimony also proves the incident as stated by Sunit Kumar Dutta (PW-9). The trial court has observed that there are not much serious contradictions between what has been stated by this witness in the court and in statement recorded under Section 161 of the Cr.P.C., but the trial court has not believed his statement because he did not correctly identify the accused in jail, although he did so in the Test Identification Parade. Laxman Singh (PW-6) has proved the incident but did not identify the accused. Smt. Krishna Devi Pareek (PW-10), who was working as peon at the said extension counter, has proved the manner in which the incident took place. She stated that when she heard the sound like cracker, she immediately came out and thereafter she heard another sound and saw Kanhaiyalal, peon, lying on the ground. Peoples were saying that he has been shot dead by the culprits. Kanhaiyalal used to bring cash from the main branch of the bank situated at Collectorate. This witness stated that Sunit Kumar Dutta and Bhagwan Sahai Gurjar also came with Kanhaiyalal in the said car. Subhash Batra (PW-11) has also proved the incident by making statement similar to that of Smt. Krishna Devi Pareek (PW-10). Shishpal (PW-82), who is said to have visited the office of R.S.E.B. (Vigilance) for some work on that fateful day, which is situated close to the place of incident, has proved the occurrence. Virendra Singh (PW-14) was posted as Constable in the office of Executive Engineer, Vigilance, R.S.E.B., Jaipur. He stated that he along-with Duli Chand, another constable, was coming on motorcycle to the office. When they reached the main gate of power house, they saw one person standing on the main gate with motorcycle, the engine of which was on. Suddenly another person came, who was carrying an attachi in his hand and 'katta' of revolver type in another hand, seated on rear seat of the motorcycle and both of them fled away.
Similar statement was made by Duli Chand (PW-64), who was also with Virendra Singh (PW-14). They both identified the accused-appellant in the Test Identification Parade but the trial court has not believed testimony of these two witnesses to that extent by observing that the incident had already taken place when they reached the place of occurrence and it was not possible for them to have witnessed the incident. The trial court has believed their testimony to the extent that they proved the incident as they arrived at the scene of occurrence immediately thereafter. The trial court has convicted the accused-appellant by relying on testimony of Sunit Kumar Dutta (PW-9), which finds part corroboration from testimony of other witnesses, referred to above, and also the fact that this witness was accompanying the deceased at the time of incident and was the first one, who saw the accused-appellant firing at deceased from a very close range. The trial court has also stated that even if two accused were identified simultaneously in one test identification parade, that would not cause any prejudice to accused-appellant because 14 other persons were mixed up with them in a test identification parade conducted under supervision of the Judicial Magistrate, which cannot be disbelieved and accused would not be entitled to any benefit of doubt on that count. Sunit Kumar Dutta (PW-9) has denied the suggestion that accused was shown to him ever before. He rather stated that he identified the accused-appellant in jail in test identification parade. The trial court has held that statement of Sunit Kumar Dutta (PW-9) that he saw the accused-appellant firing at deceased from a very close range, inspires confidence and it also believed that he correctly identified the accused in the test identification parade. Mere delay in conducting test identification parade would not be fatal to the evidentiary value of the test identification parade and would not diminish the value of testimony of Sunit Kumar Dutta (PW-9).
Although learned counsel for appellant has relied on judgment of the Supreme Court in Wakil Singh, supra, to argue that delay in conducting test identification parade would render it absolutely not reliable, but in the facts of this case that judgment cannot be applied. In fact, that judgment has been considered by the Supreme Court in subsequent judgment in Pramod Mandal Vs. State of Bihar (2004) 13 SCC 150. In that case too, the test identification parade was conducted with delay of one month and there was only one identifying witness. Dealing with similar argument, reliance therein was also placed on the judgment in Wakil Singh, supra, and it was held that the Supreme Court therein has not laid down an invariable rule that if test identification parade is held after three-and-a-half-month or if there is only one identifying witness, it would be unsafe to convict the accused because the Court rather prefaced this observation by the words In these circumstances unless the evidence is absolutely clear. Moreover, the judgment under challenge before the Supreme Court in Wakil Singh, supra, was of reversal of acquittal by the High Court and in Pramod Mandal, supra, it was held that if the court comes to the conclusion that the evidence does not prove conclusively the guilt of the accused, the court may order his acquittal. Such an order of acquittal cannot be set aside by a court sitting in appeal unless it records a finding that the view taken by the trial court was not a possible reasonable view of the evidence on record. Such are not the facts of the present case.
Following observations made by Supreme Court in a three-Judge Bench judgment in Malkhasingh Vs. State of M.P. - (2003) 5 SCC 746, are worth reproduction:-
...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.
On the basis of above observations, the Supreme Court in Pramod Mandal, supra, held that even in the absence of test identification parade the conviction of appellant would be fully justified on the basis of evidence of PW-4 alone, who identified him in court. In Pramod Mandal, supra, however, identification of accused in court was corroborated by his identification in the test identification parade.
The Supreme Court in Lal Singh and Others Vs. State of U.P. - (2003) 12 SCC 554 was dealing with a matter arising out of a train robbery. While considering the effect of delay in holding the test identification parade vis-a-vis its reliability, it was held that court should find out whether witnesses had sufficient opportunity to see the accused at the time of the occurrence and whether had any chance to see the accused before test identification parade. It was further held that where witnesses had ample opportunity to see the features of the accused persons at the time of dacoity and accused had not been shown to the witnesses before the parade, delay in holding the parade would not affect the evidence of identification in the parade.
In Munna Kumar Upadhyay alias Munna Upadhyaya Vs. State of Andhra Pradesh (2012) 6 SCC 174, again the Supreme Court held that the delay per se cannot be fatal to the validity of holding an identification parade, in all cases, without exception. The purpose of identification parade is to provide corroborative evidence and is more confirmatory in its nature. It cannot be accepted that merely because of delay, the court should reject the entire evidence of identification of the accused, more so when the accused persons were duly identified by the very same witnesses in the open court, while they were deposing. In Daya Singh Vs. State of Haryana (2001) 3 SCC 468, the Supreme Court held that the purpose of test identification is to have corroboration to the evidence of the eye witnesses 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. Power of perception and memorising differs from man to man and also depends upon situation. It also depends upon the capacity to recapitulate what has been seen earlier. But that would depend upon the strength or trustworthiness of the witnesses who have identified the accused in the court earlier. Therein, the identification parade was held 7-8 years after the incident and the Supreme Court held that from the evidence and the cross-examination of the witnesses, it was apparent that they gained an enduring impression of the identity of the accused during the incident. Therefore, delay would not affect the evidence of said witnesses.
In the present case, most part of delay has occurred because accused could not been apprehended immediately and their arrest could be made with delay of about five months. Besides, Sunit Kumar Dutta (PW-9) is the only witness, whose testimony with regard to identification, has been believed because he, in the facts of the case, was found to be the only witness, who could have seen the accused-appellant from a close distance. He got an enduring impression of the incident and memorized his face. Delay in the present case is not so huge as to completely wipe off the memory of witness i.e. Sunit Kumar Dutta (PW-9). This witness had seen the accused firing at the deceased from a very close range and, in fact, he must have also apprehended the death so near to him. We are, therefore, inclined to uphold the argument of learned Public Prosecutor that this witness also could not have forgotten the face of the accused and it was wholly natural for him to identify the accused-appellant in test identification parade as also in dock.
The Supreme Court in umpteen number of cases has held that conviction of an accused can be sustained on the testimony of sole eyewitness if it inspires confidence and is wholly reliable. There are, in this case, other witnesses, who corroborated testimony of Sunit Kumar Dutta (PW-9), who has been found by the trial court to be wholly reliable and trustworthy eyewitness. We may, in this connection, draw support from judgment of the Supreme Court in Anil Phukan Vs. State of Assam (1993) 3 SCC 282, para 3 of the report whereof reads as under:-
3. This case primarily hinges on the testimony of a single eyewitness Ajoy PW 3. Indeed, conviction can be based on the testimony of a single eyewitness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eyewitness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect. It is in the light of these settled principles that we shall examine the testimony of PW 3 Ajoy.
In Kartik Malhar Vs. State of Bihar (1996) 1 SCC 614, the Supreme Court after following its previous judgment in Vadivelu Thevar Vs. State of Madras AIR 1957 SC 614, held that conviction can be recorded on the basis of statement of a single witness provided the evidence of that witness is reliable and unshaken by any circumstance appearing on the record against him and the court at the same time is convinced that he is a truthful witness. Para 7 and 14 of the report are relevant for this purpose, which are reproduced as under:-
7. On a conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelyu Thevar's case (supra) and, therefore, conviction can be recorded on the basis of the statement of single eye witness provided his credibility is not shaken by any adverse circumstances appearing on the record against him and the Court, at the same lime, is convinced that he is a truthful witness. The Court will not then insist on corroboration by any other eye witness particularly as the incident might have occurred at a time or place when there was no possibility of any other eye witness being present Indeed, the Courts insist on the quality, and, not on the quantity of evidence.
14. We have already discussed above that it is open to the Courts to record a conviction on the basis of the statement of a single witness provided the evidence of that witness is reliable, unshaken and consistent with the case of the prosecution. The case of the prosecution cannot be discarded merely on the ground that it was sought to be proved by only one eye witness, nor can it be insisted that the corroboration of the statement of that witness was necessary by other eye-witnesses. The instant case, it may be pointed out, does not strictly fall within the category of those cases where only one witness is present and the case of the prosecution is sought to be proved by the statement of that witness alone. Here, three of the witnesses were produced but two of them turned hostile leaving the third alone and, therefore, on the principles already discussed, if the remaining eye witness is found to be trustworthy, it becomes the duty of the Court to convict the accused as observed by this Court in Vadivelu Thevar's quoted below;
"But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution.
As to who would be witness of sterling worth has been explained by the Supreme Court in Kuriya and Another Vs. State of Rajasthan (2012) 10 SCC 433. Para 24 of the report, which is relevant, is reproduced as under:-
24. Sterling worth is not an expression of absolute rigidity. The use of such an expression in the context of criminal jurisprudence would mean a witness worthy of credence, one who is reliable and truthful. This has to be gathered from the entire statement of the witnesses and the demeanour of the witnesses, if any, noticed by the court. Linguistically, sterling worth means thoroughly excellent or of great value. This term, in the context of criminal jurisprudence cannot be of any rigid meaning. It must be understood as a generic term. It is only an expression that is used for judging the worth of the statement of a witness. To our mind, the statements of the witnesses are reliable, trustworthy and deserve credence by the Court. They do not seem to be based on any falsehood.
Accused-appellant, in memorandum of appeal, has although not pressed argument of being prejudiced on the ground of framing of charge for offence under Section 396 IPC yet convicted him for offence under Section 302 IPC, but nonetheless, we may mention that this controversy is squarely covered by the Constitution Bench of the Supreme Court in Shyam Behari Vs. State of Uttar Pradesh AIR 1957 SC 320, wherein it was held that even if the accused could not be convicted under Section 396 IPC, he could still be convicted under Section 302 IPC, murder being one of the ingredients of offence under Section 396 IPC. Therefore, no prejudice can be said to have been caused to the accused-appellant on that account.
Merely failure of the police to recover the money, in the facts of the case, may not be fatal for their case for conviction of the accused-appellant, whose involvement in the crime has been proved beyond reasonable doubt by a trustworthy and reliable eyewitness, who has stood the scrutiny of cross-examination and therefore the argument of not pursuing the investigation in the matter of murder of Ashok Sharma, would not in any manner adversely affect the outcome of investigation and trial in the present case.
In view of the above discussion, the appeal fails and is hereby dismissed.
(Vijay Kumar Vyas) J. (Mohammad Rafiq) J. //Jaiman//