Madhya Pradesh High Court
Santosh And Anr. vs State Of M.P. on 16 July, 2003
Equivalent citations: 2004(2)MPHT368
JUDGMENT S.L. Kochar, J.
1. This Judgment governs the disposal of Criminal Revision No. 392/ 2003, Komal v. State of M.P. and Cr. Revision No. 393/2003; Shrilal v. State of M.P., as the same arise out of the same judgment.
2. The aforesaid criminal revisions have been filed by the applicants against the judgment dated 21-4-2003 rendered by Additional Sessions Judge, Narsinghgarh arising out of judgment dated 22-4-2002 passed by learned Judicial Magistrate, First Class, Narsinghgarh thereby convicting the applicants for the offence punishable under Section 394, IPC and sentencing each of them RI for 3 years and fine of Rs. 500/- in default of payment of fine, they shall undergo R.I. for 2 months.
3. On appeal, learned Appellate Court maintained the conviction and sentence as passed by the Trail Court.
4. The prosecution case in nutshell, before the Trial Court was that on 23-10-2000 while Satyanarayan, Rajni, Prakash Sahu, Anita Sahu and Arvind Sahu were travelling in their motor car, on the way, near Village Teejbadli, tyre of their motor car was punctured and they were changing the same, at that juncture, four persons came over there, assaulted them by lathi and committed robbery. While committing robbery they used country made pistol and looted cash amount, silver and golden ornaments, one blue coloured purse and one brown lady bag. The property was worth Rs. 75,000/-. The FIR was lodged by Arvind Sahu in the police station to this effect against unknown persons. During investigation, accused Shrilal was taken into custody on 2-12-2000. On being inquired he got recovered 5000/- rupees cash, one silver payal and one bag and one purse. The Test Identification Parade of accused Shrilal was held. Accused was put for identification in test identification parade in jail vide Ex. P-4 and identified by prosecution witnesses Prakash (P.W. 4) and Anita Sahu (P.W. 6). The property was also identified in its test identification parade. After usual investigation, charge-sheet was filed before learned Magistrate for the offence under Section 394, IPC. Learned Magistrate (Mr. Kapil Mehta), Narsinghgarh, District Rajgarh framed charge only under Section 394, IPC. According to the applicants, they were falsely implicated in the case. In defence, Mahendra Singh (D.W. 1) was examined. Learned Trial Court, after examining the prosecution witnesses and on hearing both the parties, convicted the applicants as mentioned above.
5. Against concurrent findings of facts arrived at by both the Courts below, ordinarily, this Court is slow in re- appreciating the evidence but against some glaring legal defect this Court is constrained to interfere in these revisions. It is admitted position that applicant Shrilal was arrested vide arrest memo dated 2-12-2000 at 5.00 p.m. vide Ex. P-3 and he alone was put for identification in test identification parade. Memo is Ex. P-4. He was duly identified by witnesses Prakash (P.W. 4) and Anita (P.W. 6). On the memorandum statements under Section 27 of the Evidence Act vide Ex. P-1 looted property, i.e., cash Rs. 5000/-, one silver payal, one blue coloured purse and one brown lady bag were seized. The property was also identified in Test Identification Parade by Anita (P.W. 6). She has also identified the property in Court. Accused Shrilal is also identified by both the witnesses in Court but for other 3 applicants named Santosh, Manoj and Komal, their names are not mentioned in the FIR. They have also not been named in 161, Cr.PC statement by the witnesses. Even then they were not put for identification in test identification parade. No property has been seized from their possession. No evidence has been led in Court by the prosecution as to on what basis they were arrested and put for trial.
6. Learned Trial Court has convicted these three applicants on the basis of dock identification by Prakash (P.W. 4) and Anita Sahu (P.W. 6). Arrest memo of all these three accused/applicants have not been proved by the prosecution. In the light of these fact and in the opinion of this Court, dock identification of these three applicants, is not sufficient for holding them guilty. The miscreants were not known to the witnesses prior to the date of incident and they were also not in the company of the witnesses for a long duration that is days together. The incident had taken place in the night. Therefore, their identification for the first time in Court by Prakash (P.W. 4) and Anita (P.W. 6) on 27-7-2001 after about nine months, would not be safe to rely. In Bollavaram Pedda Narsi Reddy v. State of A.P. (AIR 1991 SC 1468) the Supreme Court held that:--
"In a case where the witness is a stranger to the accused and he identifies the accused person before the Court for the first time, the Court will not ordinarily accept that identification as conclusive."
[Also see State of Mah. v. Sukhdeo Singh, AIR 1992 SC 2100; AIR 1994 SC 826; 1996 SC 607; 1996 JT (9) SC 96, Jaspal Singh @ Pali v. State of Punjab]. In the case in hand, the prosecution has not led any evidence to explain as to when these applicants were arrested and why they were not placed for identification in test identification parade during the course of investigation.
7. The need and necessity of holding Test Identification Parade of the accused has been explained by the Supreme Court in the case of Rameshwar Singh v. State of Jammu and Kashmir (AIR 1972 SC 102). The Supreme Court in Paragraph 6 held as under:--
"Identification of the accused by the concerned witness where the accused is not previously known to the witness furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition to the furnishing corroboration of the evidence to be given by the witness later in Court at the trial. From this point of view such identification is a matter of great importance both for the investigating agency and for the accused."
8. There is no settled law that dock identification of the accused can not be relied on in Court but there must be a situation alive. The Supreme Court has explained this in the case of Suresh Chandra Bahri v. State of Bihar (AIR 1994 SC 2420) as under :--
"The position may be different when the accused or a culprit who stands trial had been seen not once but for quite a number of times at different point of time and places which fact may do away with the necessity of test identification parade. In the present case and in the facts and circumstances discussed above test identification parade was not necessary at all as the witnesses had seen the appellant Raj Pal Sharma continuously for several days and they had the opportunity of knowing and recognising him since before they made their statement in the Court."
9. The above situation, does not exist in the present case. Therefore, dock identification of these applicants has wrongly been relied on by both the Court below. Therefore, these applicants are entitled for acquittal. Thus, the aforesaid Criminal Revisions, except Criminal Revision No. 393/2003 filed by Shrilal, are allowed. The applicants are directed to be released forthwith if not required in any other criminal case. The amount of fine, if deposited, be refunded to them. Criminal Revision No. 393/2003, Shrilal v. State is hereby dismissed.
10. Before parting with this judgment it is pertinent to note some glaring defect committed by Investigating Agency and thereafter by the learned Magistrate. The First Information Report (Ex. P-5) proved by Arvind Sahu (P.W. 5) its author, has specifically mentioned that miscreants were having country made pistol in their hand. Therefore, Police, Narsinghgarh should have registered the offence under Section 397, IPC for use of deadly weapon and after arrest of acquitted accused/applicants they must have been placed for identification in test identification parade during investigation. The offence under Section 397, IPC is triable by the Sessions Court and minimum 7 years jail sentence is prescribed in the Indian Penal Code. While filing the challan, this defect has not been looked into by the PP/APP. Learned JMFC has also not cared this important and material lacuna while framing the charge. It is duty of the learned Magistrate to frame charge on the basis of the material available in the charge-sheet and not only on the basis of the offence registered by the police.
11. It is expected that in future concerned police, prosecuting agency and Courts will be careful in dealing with criminal cases in this regard.
12. Consequently, in the terms indicated above, Cr. Revision No. 334/2003, Santosh and another v. State and Cr. Revision No. 392/2003, Komal v. State are allowed and Cr. Revision No. 393/2003, Shrilal v. State is hereby dismissed.
Copy of this judgment be placed in connected criminal revision.