Chattisgarh High Court
Hemlal vs State Of C.G on 30 January, 2023
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Judgment reserved on 06/12/2022
Judgment delivered on 30/01/2023
Criminal Appeal No. 1324 of 2016
Shyam Kumar S/o Krit Kumar Barman, Aged about 32
years, R/o Village Chakapendra, Police Station Nandghat,
District Bemetara, Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh through Station House Officer, Police
Station Bilaigarh, Out post (Chowki) : Bhatgaon, Distt.
Baloda Bazar, Bhatapara, Chhattisgarh.
---Respondent
For Appellant :- Mr. C.R. Sahu, Advocate
For State :- Mr. Ashish Tiwari, G.A.
Criminal Appeal No. 460 of 2015
Virendra S/o Shankarlal Joshi, Aged about 32 years, R/o
Chakapendra, Police Station Nandghat, Distt. Bemetara,
Chhattisgarh.
---Appellant
Versus
2
State of Chhattisgarh through Station House Officer, Police
Station Bilaigarh, Out post (Chowki) : Bhatgaon, Distt.
Baloda Bazar, Bhatapara, Chhattisgarh.
---Respondent
For Appellant :- Mr. Sakib Ahmad, Advocate
For State :- Mr. Ashish Tiwari, G.A.
Criminal Appeal No. 1008 of 2013
Jwala Prasad S/o Khorbahra Baghel, Aged about 43 years,
R/o Village Belsari, Post Office Belsari (Dak) Police station
Takhatpur, Civil and Revenue District Bilaspur,
Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh through Station House Officer, Police
Station Bilaigarh, Out post (Chowki) : Bhatgaon, Distt.
Baloda Bazar, Bhatapara, Chhattisgarh.
---Respondent
For Appellant :- Mr. Satya Prakash Verma, Advocate
For State :- Mr. Ashish Tiwari, G.A.
Criminal Appeal No. 86 of 2014
Devendra @ Pandu S/o Kumar Pradhan, Aged about 19
years, R/o Village Belsari, Police Station Takhatpur, Civil
3
and Revenue District Bilaspur, Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh through Station House Officer, Police
Station Bilaigarh, Out post (Chowki) : Bhatgaon, Distt.
Baloda Bazar, Bhatapara, Chhattisgarh.
---Respondent
For Appellant :- Mr. Mahesh Mishra, Advocate
For State :- Mr. Ashish Tiwari, G.A.
Criminal Appeal No. 1047 of 2013
Hemlal S/o Ramdayal Jaiswal, Aged about 42 years, R/o
Village Purgaon, Police Station Bilaigarh, District Baloda
Bazar, Chhattisgarh, Revenue District Balodabazar, civil
District Baloda bazar, Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh through Station House Officer, Police
Station Bilaigarh, Out post (Chowki) : Bhatgaon, Distt.
Baloda Bazar, Bhatapara, Chhattisgarh.
---Respondent
For Appellant :- Dr. N.K. Shukla, Senior Advocate
with Mr. Himank Saluja, Advocate
For State :- Mr. Ashish Tiwari, G.A.
4
Criminal Appeal No. 1149 of 2013
Suraj Kumar S/o Santosh Kumar Mochi, Aged about 27
years, R/o Village Talapara, Police Station Civil Line, Civil
and Revenue District Bilaspur, Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh through Station House Officer, Police
Station Bilaigarh, Out post (Chowki) : Bhatgaon, Distt.
Baloda Bazar, Bhatapara, Chhattisgarh.
---Respondent
For Appellant :- Mr. Ashutosh Trivedi, Advocate
For State :- Mr. Ashish Tiwari, G.A.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
CAV Judgment
Sanjay K. Agrawal, J.
1. This batch of six criminal appeals under Section 374(2) of CrPC have been preferred by the six appellants namely Shyam Kumar (A-1), Virendra (A-2), Jwala Prasad (A-3), Devendra (A-4), Hemlal (A-5) and Suraj Kumar (A-6) against impugned judgment dated 25/09/2013 passed by learned 5 2nd Additional Session Judge, Balodabazar in Sessions Trial No. 02/13 and since common question of law and fact are involved in all these appeals, therefore, they have been clubbed together, heard together and are being decided by this common judgment.
2. By impugned judgment dated 25/09/2013, the appellants/ accused persons have been convicted and sentenced as under :-
Appellant/Accused Conviction Sentence U/s 395 of IPC R.I. for life with fine of Rs. 1000/- each in default of payment of fine, additional R.I. for 6 Shyam Kumar (A-1) months.
U/s 397 of IPC R.I. for 10 years Virendra (A-2)
U/s 120(B) of IPC R.I. for life with fine of Jwala Prasad (A-3) Rs. 1000/- each in default of payment of Devendra (A-4) fine, additional R.I. for 6 months.
Hemlal (A-5) U/s 457 of IPC R.I. for 3 years with fine of Rs. 1000/- each in default of payment of fine, additional R.I. for 6 months.
Suraj Kumar U/s 412 of IPC R.I. for 10 years with
(A-6) fine of Rs. 1000/- in
default of payment of
fine, additional S.I. for 6
months.
Shyam Kumar (A-1) U/s 25 of Arms R.I. for 2 years with fine and Act of Rs. 200/- each in Devendra (A-4) default of payment of fine, additional R.I. for 2 months.6
3. Case of the prosecution, in short, is that on the intervening night of 24-25/09/2012 at about 01:30 AM, the appellants herein, with common object and conspiracy of committing dacoity, trespassed into the house of Rajeev Dadsena (P.W.-
1) armed with lethal weapons and in furtherance of their common intention, they committed dacoity and thereby, committed the aforesaid offences.
4. Further case of the prosecution is that complainant Rajeev Dadsena (P.W.-1), who was working as a Clerk in District Cooperative Bank, Bhatgaon, had constructed his house at Sindhichua Road, Bhatgaon within the ambit of Police Station Bilaigarh three years prior to the date of the incident and was residing in the said house along with his wife Nirupama Dadsena (P.W.-4), his mother Laxmi Devi (P.W.-3) and niece Poonam (P.W.-18). On 25/09/2012, the complainant had gone to his office and came back to his house around 6-6:30 PM and thereafter, at around 10:30 PM, he along with his wife (P.W.-4) and their kids was sleeping in one room and his mother (P.W.-3) along with the kids of his elder brother were sleeping in another room near the kitchen and the main door of the house was locked from inside and the door of the house was latched from inside. At around 01:30 AM, complainant's wife Nirupama Dadsena (P.W.-4) saw torch light and noticed that the curtains of the 7 door were opened upon which she informed the complainant Rajeev Dadsena (P.W.-1), who went out of the room and saw that kitchen door was opened. When he tried to shut the door of the kitchen, suddenly three persons entered his bedroom and caught hold of his wife (P.W.-4) and pressed her mouth. The complainant (P.W.-1) pushed one person aside, but he hit the complainant near his right ear with a sharp object. Thereafter, two persons caught hold of the complainant- Rajeev Dadsena (PW-01) and three persons caught hold of his wife- Nirupama Dadsena (PW-04) and took both of them to their mother's bedroom and tied them with blouse, banyan, bedsheet, etc. Thereafter, the appellants/accused persons threatened them with life of their child and asked for the key of almirah to take jewellery and cash. Complainant's mother Laxmi Devi (P.W.-
3) told them to take whatever they wanted but to leave their child. Thereafter, one accused person took the key from Nirupama (P.W.-4) and opened the almirah and after searching and stealing cash as well as gold ornaments, the appellants/accused persons left the house at around 3 AM. Thereafter, the complainant (P.W.-1) untied himself and other family members and informed about the incident to his neighbour Santosh Patal (P.W.-2) that one gold necklace, a pair of gold ear tops, earrings, three gold 8 bangles, 4 gold chains, one pair of gold rings, 6 pair of silver anklets, Mangalsutra, 6 lockets, 2 pearls and Rs. 30000/- cash and one nokia mobile phone was missing. The jewellery amounted to Rs. 2,17,000/- which was purchased from Laxmi Jewellers, Bhatgoan.
5. Complainant- Rajeev Dadsena (PW-01) reported the matter at Police Station Bilaigarh and lodged first information report (Ex. P/1) on 26/09/2012 upon which spot inspection was done vide Ex. P/2 and inspection panchnama was prepared vide Ex. P/3. Nazri naksha was prepared vide Ex. P/4. Jewellery receipts and other documents were seized vide Ex. P/5. MLC of injured Rajiv Dadsena was conducted on 29/09/2012 by Dr. Narayan Singh (P.W.-17) and the report was prepared vide Ex. P/35 according to which, injuries were found to be simple in nature which were caused by some sharp edged weapon. The appellants/accused persons were suspected to be the authors of the crime in question and after taking them into custody on 04/10/2012, their memorandum statements were recorded vide Ex. P/23 to 27 and following articles were seized from them :-
Appellant/ Memoran Seizure Accused dum
Shyam Kumar Ex. P/23 Ex. P/30 a. 2 pieces of gold made Barman bangle with cut in the mid 9 (A-1) weighing 12 gm of value Rs.40,000/-
b. One set of thick silver anklet with bells weighing 35 tola (355gm) of value of Rs.20,000 c. Rs. 3,000 cash with 30 notes of Rs.100 d. One Country made iron pistol e. Two bullets f. One screwdriver Virendra Ex. P/24 Ex. P/31 a. 2 gold made bangles with Kumar Joshi cut in the mid weighing 40 (A-2) gm of value Rs.40,000.
b. 1 set of Gold made tops
weighing 3gm of value
Rs.9000
c. 1 set of gold made beads
grain weighing 0.40 gm of
value Rs.1400
d. 2 set of gold made beads
grain weighing 0.10 gm of
value Rs.500
e. Rs. 4,000 cash with 40
notes of Rs.100
denomination
f. One screwdriver
g. One mobile phone of Nokia
company
h. 5 key bundle with 29 keys
i. One motorcycle splendor
plus CG 10 EE 5681
Jwala Prasad Ex. P/25 Ex. P/32 a. 1 gold made bangle with Baghel cut in the mind weighing 8 (A-3) gm of value Rs.25,000 b. 1 gold made locket weighing 3.5 gm of value Rs.10,000 c. 3set of gold made bead weighing 1.5 gm of value Rs.4500 d. 1 set of gold made locket grain weighing 1 gm of value Rs.2300 e. 4 set of silver bangle weighing 15 gm of value Rs.1500 10 f. Rs.5000 cash with 50 notes of Rs.100 denomination g. One polythene with clothes and one bamboo stick.
Pandu @ Ex. P/26 Ex. P/33 a. 1 gold made chain
Devendra weighing 7gm of value
Pradhan Rs.20,000
(A-4) b. 1 gold made locket
weighing 1 gm of value
Rs.3,000
c. 2 set of gold made bead
weighing 0.20 gm of value
Rs.600
d. One Iron knife with steel
and wooden handle
e. Rs.2000 cash with 20
notes of Rs.100
Hemlal - Ex. P/29 One nokia company mobile
(A-5) phone
Suraj Kumar Ex. P/27 Ex. P/34 a. One gold made molted coin (A-6) like object weighing 35 gm of value Rs.1,00,000 b. One motorcycle HeroHonda CD delux CG 09 H 0558
6. Immediately thereafter, test identification parade of the appellants/accused persons as well as the articles seized from their possession was conducted vide Ex. P/6 to P/10 wherein Rajeev Dadsena (P.W.-1) identified 4 accused persons except Hemlal (A-5), who was already known to him. The articles seized from appellants were identified by Nirupama Dadsena (P.W.-4) as well as Laxmi Devi (P.W.-3). The statements of prosecution witnesses were recorded under Section 161 of CrPC and after due investigation, the six appellants/accused persons were charge-sheeted for 11 offences punishable under Sections 395, 397, 120B, 457 of IPC and Section 25,27 of the Arms Act. The appellants/accused persons abjured their guilt and entered into defence.
7. In order to bring home the offence, prosecution examined as many as 22 witnesses and exhibited 52 documents on record. The statements of the appellants/accused persons were taken under Section 313 of CrPC, wherein they denied guilt, however, they examined none in their defence.
8. Learned trial Court, upon appreciation of oral and documentary evidence no record, proceed to convict the appellants/accused persons for the aforesaid offences and sentenced them as aforesaid against which this batch of six criminal appeals have been preferred by them.
9. Mr. Satya Prakash Verma, learned counsel for the appellants/accused persons namely Shyam Kumar (A-1) and Jwala Prasad (A-3), would submit that the test identification parade has not been conducted in accordance with law as Police had already shown the accused persons to Rajeev Dadsena (P.W.-1) and therefore, the test identification parade was only a farce and it is liable to be rejected. They would rely upon the decisions rendered by the Supreme Court in the matters of Bharat v. State of 12 M.P.1 and A. Shankar v. State of Karnataka 2 to buttress this submission. They would further submit that memorandum and seizure has been carried on by the prosecution in the presence of two witnesses namely Rajkumar (P.W.-16) and Lokesh Kumar Sahu, who has not been examined before the Court for the reasons best known to the prosecution and moreover, Rajkumar (P.W.-16) is an interested witness as he is not the resident of the village where recovery has been made. Prosecution could have gone for a local resident to be made as panch witness and in that view of the matter, memorandum and seizure has also not been proved in accordance with law, therefore, conviction of the appellants/accused persons namely Shyam Kumar (A-1) and Jwala Prasad (A-3) is liable to be set aside. Even otherwise, prosecution has miserably failed to establish the charge under Section 120B of IPC, as such, they are liable to be acquitted of the charges levelled against them.
10. Mr. Sakib Ahmad, learned counsel for appellant/accused namely Virendra (A-2), would submit that seizure of gold ornaments made from Virendra (A-2) pursuant to his memorandum statement (Ex. P/22) has not been duly proved by the prosecution and so far as the test 1 (2003) 3 SCC 106 2 (2011) 6 SCC 279 13 identification parade is concerned, the accused persons had already been shown to the complainant Rajeev Dadsena (P.W.-1), as such, it was conducted in mere formality and is liable to be rejected and therefore, the conviction of appellant/accused Virendra (A-2) is liable to be set aside. He would rely upon the decision rendered by the Supreme Court in the matter of Rajamoori Ram Reddy and others v. State of Andhra Pradesh3 to buttress his submission.
11. Mr. Mahesh Mishra, learned counsel for appellant/accused namely Devendra alias Pandu (A-4), would submit that memorandum (Ex. P/24) and seizure (Ex. P/33) has been proved by a sole witness namely Rajkumar (P.W.-16), however, he is an interested witness which appears from the statements of Santosh Patel (P.W.-2) and Investigating Officer Kishore Chandrakar (P.W.-20), therefore, his testimony could not have been relied upon by the trial Court. Even otherwise, if the testimony of Rajkumar (P.W.-
16) is excluded, the prosecution case would fail. He would further submit that test identification parade so conducted is not in accordance with law and as such, the conviction of appellant/accused Devendra alias Pandu (A-4) is liable to be set aside.
3 2015 SCC Online Hyd 500 14
12. Dr. N.K. Shukla, learned senior counsel appearing for appellant/accused Hemlal (A-5), would submit that the trial Court has not recorded an express finding of guilt against Hemlal (A-5) and furthermore, without even recording his memorandum statement, only seizure of nokia mobile phone has been made from him vide Ex. P/29 for which production of mandatory certificate under Section 65-B of Indian Evidence Act,1872 would be required to prove the call details in light of the decision rendered by the Supreme Court in the matter of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal4. He would further submit that plea of alibi is fully established in favour of appellant/accused Hemlal (A-5) pursuant to the statement of Rajeev Dadsena (P.W.-1), who has clearly admitted in paragraph 15 that Hemlal (A-5) was at his brother's house in Sukma, Bastar from 23/09/2012 to 28/09/2012, as such, the trial Court is absolutely unjustified in convicting him for the aforesaid offences. Furthermore, other incriminating circumstances which have been relied upon by the prosecution have not been put to Hemlal (A-5) in the statement recorded under Section 313 of CrPC. He would also rely upon the decision rendered by the Supreme Court in the matter of Harpal Singh alias Chhota v. State of Punjab5.
4 2020 (7) SCC 1 5 AIR 2016 SC 5389 15
13. Mr. Ashutosh Trivedi, learned counsel for the appellant/accused Suraj Kumar (A-6), who has allegedly purchased the property of said dacoity, would submit that it has not been proved by the prosecution beyond reasonable doubt that the gold coin so seized from Suraj Kumar (A-6) vide Ex. P/34 pursuant to his memorandum statement (Ex. P/27), was made after melting the gold ornaments stolen by the other appellants/accused persons, as alleged by the prosecution and therefore, the ingredients of Section 412 of IPC is absolutely missing. Moreover, the sole seizure witness namely Rajkumar (P.W.-16) has clearly stated that seized articles were brought out by Investigating Officer Kishore Chandrakar (P.W.-20) from the house of Suraj Kumar (A-6), as such, recovery has not been proved in accordance with law and therefore, he is liable to be acquitted of the charges levelled against him.
14. Vehemently opposing the submissions made by learned counsels for the appellants/accused persons, Mr. Ashish Tiwari, learned Government Advocate, would submit as follows :-
i) that, test identification parade has been conducted strictly in accordance with law by official witnesses namely Sitaram Hardale (P.W.-7), who at the relevant point of time, was an Executive Magistrate and he has clearly proved the test 16 identification parade (Ex. P/6 to P/9) by which appellants/accused persons (A-1 to A-4) were identified by complainant Rajeev Dadsena (P.W.-1). Moreover, the incident took place on 25/09/2012 and immediately thereafter, test identification parade was conducted on 04/10/2012. He would further submit that seized articles were also identified by complainant's wife Nirupama Dadsena (P.W.-4) in test identification parade conducted by M.R. Dhurve (P.W.-8), Tahsildar Bilaigarh on 20/12/2012 vide Ex. P/10. Therefore, merely on the basis of some minor discrepancies, the test identification parade cannot be rejected as unsustainable and bad in law in view of the decision rendered by the Supreme Court in the matter of Iqbal v. State of U.P.6.
ii) that, the conspiracy hatched by appellants/accused persons (A-1 to A-5) is duly established as per memorandum statements of A-1 to A-4 and A-6 recorded vide Ex. P/23 to P/27 by virtue of Section 27 read with Section 30 of the Evidence Act.
iii) that, pursuant to the memorandum statements of the appellants/accused persons, recovery of stolen articles have been made within 10 days from the date of the incident and moreover, seizure of stolen articles from the possession of 6 (2015) 6 SCC 623 17 appellants/accused persons (A-1 to A-4 and A-6) has also not been explained by them in their statements under Section 313 of CrPC, therefore, conviction recorded and sentence awarded to the appellants/accused persons for the aforesaid offences is unexceptionable and all these six criminal appeals deserve to be dismissed.
15. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.
16. The question would be whether the learned trial Court is justified in convicting the appellants herein for offences under Sections 395 & 397 of IPC ?
17. On the date of incident i.e. on 25.09.2012 the appellants were suspected to be authors of crime in question and, therefore, they were taken into custody on 04.10.2012 and their memorandum statements were recorded vide Ex.P/23 to 27, pursuant to which, stolen articles i.e. gold bangles, silver anklets, gold tops, gold locket and cash etc. were seized on 04.10.2012 vide seizure memos (Ex.P/30, P/31, P/32, P/33 and P/34) respectively except from appellant- Hemlal (A-5), as from his possession only one Nokia Mobile Phone is seized vide Ex.P/29.
18
18. It is well settled law that under Section 27 of Evidence Act only so much of the information as distinctly relates to the facts really thereby discovered is admissible. The word 'fact' means some concrete or material fact to which the information directly relates. As held by Sir John Beaumont in the matter of Pulukuri Kotayya v. King-Emperor7, "... it is fallacious to treat the "fact discovered"
within the section as equivalent to the object produced ; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact."
19. Following the principle of law laid down in Pulukuri Kotayya (supra), their Lordships of the Supreme Court in the matter of Asar Mohammad and others v. State of U.P.8, with reference to the word "fact" employed in Section 27 of the Evidence Act, have held that the facts need not be self-probatory and the word "fact" as contemplated in Section 27 of the Evidence Act is not limited to "actual physical material object". It has been further held that the discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place and it includes a discovery of an object, 7AIR 1947 PC 67 8AIR 2018 SC 5264 19 the place from which it is produced and the knowledge of the accused as to its existence.
20. In order to make Section 27 of the Evidence Act applicable, two conditions are prerequisite, namely (1) the information must be such as has caused discovery of the fact; and (2) the information must 'relate distinctly' to the fact discovered. In the present case, the incident occurred in the intervening night of 24th & 25th September, 2012 and on 04.10.2012, as pointed out by the appellants, pursuant to their memorandum statements, the stolen articles i.e. gold bangles, silver anklets, gold tops, gold locket and cash etc. were seized vide seizure memos (Ex.P/30, P/31, P/32, P/33 and P/34). As such, recovery made from the appellants pursuant to the disclosure statements satisfies the requirement of Section 27 of the Evidence Act and that being so, the statements made by the appellants under Section 27 vide Ex.P/23 to 27, are clearly admissible in evidence.
21. Further, test identification parade was conducted by Sitaram Hardale (PW-07), who was at the relevant point of time was working as Executive Magistrate and has clearly proved the test identification parade conducted vide Ex.P/06, by which complainant- Rajeev Dadsena (PW-01) identified four accused persons i.e. appellants A-1 to A-4 20 herein. The aforesaid identification has been called in question on behalf of the appellants mainly on the ground that police had already shown the accused persons to Rajeev Dadsena (PW-01) and thereafter test identification was conducted, which was farce and liable to be rejected. In this regard, in a recent pronouncement reported in the matter of Rajesh vs. State of Haryana9 the law regarding test identification parade has been summarized by their Lordships of Supreme Court and the manner in which it has to be conducted and weight to be ascribed to identification in the course of a test identification parade and the circumstances in which adverse inference has to be drawn against the accused who refuses to undergo the process and laid down the principles in Para-43.1 to 43.12 as under:
"43.1. The purpose of conducting a TIP is that persons who claim to have seen the offender at the time of the occurrence identify them from amongst the other individuals without tutoring or aid from any source. An identification parade, in other words, tests the memory of the witnesses, in order from the prosecution to determine whether any or all of them can be cited as eyewitness to the crime.
43.2. There is no specific provision either in CrPC or the Evidence Act, 1872 ("the Evidence Act") which leads statutory authority to an identification parade. Identification parades belong to the stage of the investigation of crime 9 (2021) 1 SCC 118 21 and there is no provision which compels the investigating agency to hold or confers a right on the accused to claim a TIP.
43.3. Identification parades are governed in that context by the provision of Section 162 CrPC. 43.4. A TIP should ordinarily be conducted soon after the arrest of the accused, so as to preclude a possibility of the accused being shown to the witnesses before it is held.
43.5. The identification of the accused in court constitutes substantive evidence. 43.6. Facts which establish the identity of the accused person are treated to be relevant under Section 9 of the Evidence Act.
43.7. A TIP may lend corroboration to the identification of the witness in court, if so required.
43.8. As a rule of prudence, the court would, generally speaking, look for corroboration of the witness' identification of the accused in court, in the form of earlier identification proceedings. The rule of prudence is subject to the exception when the court considers it safe to rely upon the evidence of a particular witness without such, or other corroboration.
43.9. Since a TIP does not constitute substantive evidence, the failure to hold it does not ipso facto make the evidence of identification inadmissible. 43.10. The weight that is attached to such identification is a matter to be determined by the court in the circumstances of that particular case.
43.11. Identification of the accused in a TIP or in court is not essential in every case where guilt is established on the basis of circumstances which lend assurance to the nature and the quality of the evidence.22
43.12. The court of fact may, in the context and circumstances of each case, determine whether an adverse inference should be drawn against the accused for refusing to participate in a TIP. However, the court would look for corroborating material of a substantial nature before it enters a finding in regard to the guilt of the accused."
22. Reverting to the facts of the present case in light of principle of law laid down by their Lordships of Supreme Court relating to the manner in which test identification parade has to be conducted and weight to be ascribed to identification in the course of a test identification parade, it is quite vivid that in the instant case the main allegation is that the police had show the accused persons already in advance to the identifier [i.e. complainant- Rajeev Dadsena (PW-01)] and, therefore, test identification parade is farce and inadmissible in law. In this regard, it is profitable to notice here the statement of the investigating officer i.e. Kishore Chandrakar (PW-20), who in Para-38 of his statement has clearly refuted the suggestion that accused persons were shown to the complainant (PW-01). Further, Rajeev Dadsena (PW-01) has also refuted the suggestion on behalf of the defence that prior to test identification parade, the accused persons were shown to him and in Para-25 & 33 of his statement he has clearly stated that the accused persons were brought to the place of identification with their covered faces. As such, the argument raised on behalf 23 of the appellants that the accused persons were shown to the complainant (PW-01) before conducting the test identification parade vis-a-vis test identification parade is farce and inadmissible in law is not established. Moreover, though faintly it has been argued that there is delay in conducting the test identification parade, but no foundation has been laid in this regard by the defence, however, it is quite apparent from the record that incident took place on 25.09.2012 and the accused-appellants were apprehended on 04.10.2012 and, immediately on the same day, test identification parade was conducted and, as such, the argument that there is delay in conducting the test identification parade is also not established. Indeed, the Executive Magistrate, namely, Sitaram Hardale (PW-07) has also clearly supported the test identification parade conducted vide Ex.P/06 and, though he was subjected to some extent of cross-examination, but nothing could be extracted to hold that test identification parade was not conducted in accordance with law. Accordingly, we hold that test identification conducted by Sitaram Hardale (PW-
07) vide Ex.P/06 was strictly in accordance with law and the judgments relied upon in the matters of Bharat (supra), Rajamoori Ram Reddy (supra) and A. Shankar (supra) are clearly distinguishable to the facts of the present case. 24
23. Now the seized articles i.e. gold bangles, silver anklets, gold tops, gold locket etc. seized from the accused-appellants (i.e. A-1, A-2, A-3, A-4 & A-6) were subjected to identification vide Ex.P/7 to P/10 and same were identified by the complainant- Rajeev Dandsena (PW-01), Laxmi Devi (PW-03) and Nirupama Dadsena (PW-04), who have identified the articles belonging to the complainant and his family. This test identification parade was conducted by M.R. Dhruve (PW-08), another official witness. Further, Rajeev Dandsena (PW-01), Laxmi Devi (PW-03) and Nirupama Dadsena (PW-04) were subjected to cross- examination, but nothing could be elicited to hold that the said test identification parade of the seized articles were not conducted in accordance with law.
24. In our considered opinion, though the seized articles i.e. ornaments can be said to be ornaments in common use, but witnesses particularly Laxmi Devi (PW-03) and Nirupama Dadsena (PW-04), who are mother and wife of the complainant- Rajeev Dadsena have not committed any mistake in identifying the aforesaid ornaments i.e. seized articles. The Supreme Court in the matter of Earabhadrappa alias Krishnappa v. State of Karnataka 10 has held that it is a matter of common knowledge that 10 (1983) 2 SCC 330 25 ladies have an uncanny sense of identifying their own belongings particularly articles of personal use in the family. As such, the submission on behalf of the appellants that memorandum and pursuant seizure have not been proved in accordance with law and further, the ornaments have not been identified in a duly constituted test identification proceeding, has no merit and deserves to be and is accordingly rejected. Further, the prosecution has also examined Kishore Sharma (PW-10), who is owner of Laxmi Jewellers and has identified the receipts seized from the possession of the complainant (PW-01) vide Ex.P/13 to P/18. As such, the ownership of the stolen articles have been duly proved by the prosecution.
25. Now the next submission made on behalf of the appellants is that even if the seized articles were owned by the complainant (PW-01) and are found in possession of the appellants, they cannot be convicted for offences under Section 395 and 397 of IPC, whereas it is the case of the respondent-State that since accused-appellants A-1, A-2, A- 3, A-4 & A-6 were found in possession of the stolen articles, the presumption under illustration (a) to Section 114 of the Evidence Act would be drawn, as the prosecution has led sufficient evidence to connect the appellants with the commission of the offences in question.
26
26. In order to consider the submission, it would be appropriate to notice Illustration (a) to Section 114 of the Indian Evidence Act, 1872, which states as under: -
"114. Court may presume existence of certain facts.
--The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations The Court may presume--
(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;"
27. In order to draw an inference that fact in dispute has been established, there must exist, on record, some direct material facts or circumstances from which such inference could be drawn. Inference of proof of that fact could be drawn from given objective facts, direct or circumstantial (see R. Puthunainar Alhithan, etc. v. P.H. Pandian and others11).
28. Furthermore, the illustrations appended to the aforesaid section are not exhaustive but merely illustrate the principle underlying the main provision. The presumption to be drawn under that provision is one of fact and whether it should be drawn or not in a particular case must depend upon the facts of that case.
11 AIR 1996 SC 1599 27
29. In the matter of Tulsiram Kanu v. The State12, while considering Illustration (a) appended to Section 114 of the Evidence Act, their Lordships of the Supreme Court have held that the presumption permitted to be drawn under Section 114, illustration (a), Evidence Act, has to be read along with the important time-factor. If ornaments or things of the deceased are found in possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months expire in the interval, the presumption may not be permitted to be drawn having regard to the circumstances of the case. Their Lordships observed in paragraph 7 as under: -
"7. Apart from this confession, the judgment of the High Court is based on the identification of the gold ornaments. The Sessions Judge recognised that if the ornaments had been proved to have been the property of the deceased it would have been possible to infer that the accused was the person who committed the murder and robbed the murdered man. In our opinion, this reasoning, under the circumstances of the case, is unsound. The alleged murder took place on 28-5-1949 and assuming that the ornaments were traced to the accused at the end of October 1949, no legitimate inference could be drawn about the appellant being the murderer of the deceased. The important factor which appear to have been overlooked is that five months had elapsed between the date of the alleged murder and the tracing of the ornaments. The presumption permitted to be drawn under S. 114, illu. (a), 12 AIR 1954 SC 1 28 Evidence Act, has to be read along with the important time factor. If ornaments or things of the deceased are found in the possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months expire in the interval, the presumption may not be permitted to be drawn having regard to the circumstances of the case. The criticism applied equally to the reasoning of the High Court for its conclusion.
30. Thereafter, in the matter of Wasim Khan v. The State of Uttar Pradesh13, the Supreme Court posed a question for consideration, whether the evidence in the case establishes that the appellant murdered and robbed Ram Dularey and their Lordships answered the question that recent and unexplained possession of stolen articles can well be taken to be presumptive evidence of the charge of murder as well as robbery.
31. Thereafter, in the matter of Alisher v. State of Uttar Pradesh14, it has been held by their Lordships of the Supreme Court that illustration (a) to Section 114 of the Evidence Act makes it plain that the time factor has a material bearing and the Court must keep it in view before it can draw the presumption in accordance with the illustration. It was further held that the presumption can be raised if a person is found to be in possession of stolen goods soon after the theft. If, however, a long period elapses 13AIR 1956 SC 400 14(1974) 4 SCC 254 29 between the date of the theft and the date on which a person is found to be in possession of the stolen articles, the Court would not be justified in drawing the presumption in accordance with illustration (a) to Section 114. It was also held that the question as to how much period should elapse after the theft in order to rule out the presumption under illustration (a) would depend on the nature of the stolen article and the facts of each case.
32. In the matter of Baiju alias Bharosa v. State of Madhya Pradesh15, the Supreme Court following the decisions in Wasim Khan (supra) and Alisher (supra) and while dealing with the presumption to be drawn under illustration (a) to Section 114 of the Evidence Act has held that it is a matter which depends on the evidence and circumstances of each case. Further, their Lordships pointed out the following factors in order to attract illustration (a) to Section 114 of the Evidence Act: -
1. The nature of the stolen article,
2. the manner of its acquisition by the accused,
3. the nature of the evidence about its identification,
4. the manner in which it was dealt with by the accused,
5. the place and circumstances of its recovery,
6. the length of the intervening period, and 15(1978) 1 SCC 588 30
7. the ability or otherwise of the accused to explain his possession, are factors which have to be taken into consideration in arriving at a decision.
33. Thereafter, in the matter of Gulab Chand v. State of M.P.16, following the decision of the Supreme Court in Tulsiram Kanu (supra), their Lordships have held that the presumption permitted to be drawn under Section 114, Illustration (a) of the Evidence Act has to be read along with the "important time factor" and if the ornaments in possession of the deceased are found in possession of a person soon after the murder, a presumption of guilt may be permitted, but if several months had expired in the interval, the presumption cannot be permitted to be drawn having regard to the circumstances of the case.
34. Similarly, in the matter of George v. State of Kerala17, relying upon the earlier decision in Baiju (supra), the Supreme Court while dealing with the phrase "soon after"
employed in illustration (a) to Section 114 of the Evidence Act held as under: -
"7. ... The possession of the articles which had been duly identified by the witnesses as belonging to the deceased were found in his possession within less than 24 hours of the incident. It would lead to inference under 16(1995) 3 SCC 574 17(2002) 4 SCC 475 31 Section 114(a) of the Evidence Act that the appellant has himself committed the robbery, an offence punishable under Section 392 IPC. According to the statement of PWs 10, 12 and 13 the deceased had been saying "take whatever you want, leave me alone", which shows that he must have been under some apprehension or threat thereof."
35. Reverting to the facts of the present case in light of aforesaid principle of law laid down by their Lordships of Supreme Court to invoke illustration (a) to Section 114 of the Evidence Act, it is quite vivid that incident is of 25.09.2012 at about 01:30 AM and immediately thereafter accused- appellants were suspected and taken into custody on 04.10.2012 and pursuant to memorandum statements of appellants (A-1 to A-4 & A-6), gold bangles, silver anklets, gold tops, gold locket belonging to the complainant and his family were seized on 04.10.2012 at about 12:30 AM i..e within 11 hours from the incident. Thus, the ornaments belonging to the complainant and his family members were found in possession to the appellants (A-1 to A-4 & A-6) soon after the incident and, therefore, it satisfies the requirement of important time factor envisaged by the Supreme Court in Tulsiram Kanu (supra) to invoke illustration (a) to Section 114 of the Evidence Act, as the ornaments were duly identified by Rajeev Dandsena (PW- 32
01), Laxmi Devi (PW-03) and Nirupama Dadsena (PW-04) as belonging to them.
36. The Supreme Court in Earabhadrappa alias Krishnappa (supra) in the like case it has been held that denial by the accused where the accused has no satisfactory explanation to offer for his possession of stolen articles, as in this case no satisfactory explanation has been offered, rather it has been denied, their Lordships held that false denial by itself is an incriminating circumstance (see para 13). But, no satisfactory explanation has been offered on behalf of the appellants with regard to the possession of the stolen articles, rather it has been denied. As such, the appellants have failed to give explanation about the ornaments/stolen articles which were recovered pursuant to their memorandum statements, on 04.10.2012 at about 12:30 AM i.e. within 11 hours from the incident and has given false explanation, which itself is an incriminating circumstance.
37. The molted gold was found in the possession of accused- Suraj (A-6) as per his seizure, which is supported by Rajkumar (PW-16), who was an important seizure witness in this case and no document has been brought on record by the accused- Suraj regarding ownership of the molted gold or to demonstrate that he has purchased the same 33 from someone else under disbelieve or mistake. No such plea has been taken by accused- Suraj and no such explanation has been offered by accused- Suraj in his statement under Section 313 of CrPC.
38. The appellants have also been convicted under Section 397 of IPC. The Supreme Court in the matter of Shri Phool Kumar vs. Delhi Administration18 has observed as under:
"5. Section 392 of the Penal Code provides:
Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. The sentence of imprisonment to be awarded under Section 392 cannot be less than seven years if at the time of committing robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person: vide Section
397. A difficulty arose in several High Courts as to the meaning of the word "uses" in Section 397. The term 'offender' in that section, as rightly held by several High Courts, is confined to the offender who uses any deadly weapon. The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon. In that view of the matter use of the gun by one of the culprits whether he was accused Ram Kumar or somebody else, (surely one was there who had fired three shots) could not be and 18 (1975) 1 SCC 797 34 has not been the basis of sentencing the appellant with the aid of Section 397. So far as he is concerned, he is said to be armed with a knife which is also a deadly weapon. To be more precise from the evidence of PW 16 "Phool Kumar had a knife in his hand". He was therefore carrying a deadly weapon open to the view of the victims sufficient to frighten or terrorize them.
Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offender within the ambit of Section 397 of the Penal Code."
(Emphasis supplied)"
39. Similarly, in the matter of Dilawar Singh vs. State of Delhi19 the Supreme Court laid down the essential ingredients of Section 397 of IPC as under:
"19. The essential ingredients of Section 397 IPC are as follows:
1. the accused committed robbery.
2. while committing robbery or dacoity (i) the accused used deadly weapon (ii) to cause grievous hurt to any person (iii) attempted to cause death or grievous hurt to any person.
3. "Offender" refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But the other accused are not vicariously liable under that section for acts of the coaccused.
21. In the instant case admittedly no injury has been inflicted. The use of weapon by offender for 19 (2007) 12 SCC 641 35 creating terror in mind of victim is sufficient. It need not be further shown to have been actually used for cutting, stabbing or shooting, as the case may be."
(Emphasis supplied)"
40. Furthermore, in the matter of Ram Ratan vs. State of M.P.20 the Supreme Court relied upon its earlier decisions rendered in the matters of Shri Phool Kumar (supra) and Dilawar Singh (supra) and held that use of weapon to constitute offence under Section 397 of IPC does not require that 'offender' should actually fire from firearm or actually stab if it is a knife or a dagger, but mere exhibition of same, brandishing or holding it openly to threaten and create fear or apprehension in mind of victim is sufficient. It has been further held that if the charge of committing offence is alleged against all accused and only one among 'offenders' had used firearm or deadly weapon, only such 'offender' who has used firearm or deadly weapon alone would be liable to be charged under Section 397 of IPC and held in Para-17 & 18 as under:
"17. From the position of law as enunciated by this Court and noted above, firstly, it is clear that the use of the weapon to constitute the offence under Section 397 IPC does not require that the 'offender' should actually fire from the firearm or actually stab if it is a knife or a dagger but the mere exhibition of the same, brandishing or holding it 20 2021 SCConline (SC) 1279 36 openly to threaten and create fear or apprehension in the mind of the victim is sufficient. The other aspect is that if the charge of committing the offence is alleged against all the accused and only one among the 'offenders' had used the firearm or deadly weapon, only such of the 'offender' who has used the firearm or deadly weapon alone would be liable to be charged under Section 397 IPC.
18. Though the above would be the effect and scope of Section 397 IPC as a standalone provision, the application of the same will arise in the totality of the allegation and the consequent charge that will be framed and the accused would be tried for such charge. In such circumstance, in the teeth of the offence under Section 397 IPC being applicable to the offender alone, the vicariability of the same will also have to be noted if the charge against the accused under Sections 34, 149 IPC and such other provisions of law, which may become relevant, is also invoked along with Section 397 IPC. In such event, it will have to be looked at differently in the totality of the facts, evidence and circumstances involved in that case and the provisions invoked in that particular case to frame a charge against the accused. In the instant case, the charge under Section 34 IPC was not framed against the appellant nor was such an allegation raised and proved against the appellant. Hence, benefit of the interpretation raised on the scope of Section 397 IPC to hold the aggressor alone as being guilty, will be available to the appellant if there is no specific allegation against him."
41. Rajeev Dandsena (PW-01), Laxmi Devi (PW-03) and Nirupama Dadsena (PW-04) have categorically stated about the use of country made pistol and knife by the appellants during dacoity. Knife has been seized from appellant- Shyam Kumar (A-1) and Devendra (A-4) and further 37 complainant- Rajeev Dandsena (PW-01) received injury on the upper part of his neck, for which MLC (Ex.P/35) was conducted by Dr. Narayan Singh (PW-17), thus, the appellants have been convicted for offence under Section 397 of IPC i.e. for using deadly weapon and causing grievous hurt at the time of committing robbery or dacoity, which is strictly in accordance with law.
42. Further, it has been contended on behalf of the appellant- Hemlal (A-5) that plea of alibi is fully established in his favour, as complainant- Rajeev Dadsena (PW-01) in Para-15 of his cross-examination has stated that appellant- Hemlal (A-5) has visited Sukma, Bastar to his elder brother's house from 23.09.2012 to 29.09.2012, which the learned trial Court has not found favour with. A bare perusal of Para-15 of the statement of Rajeev Dadsena (PW-01) would show that he has admitted before the Court that he has only knowledge that appellant- Hemlal (A-5) has gone to Sukma, Bastar on 23.09.2012 and, he has further knowledge that on 29.09.2012, Hemlal (A-5) has gone from Sukma, Bastar to Purgaon and except this there is no other corroborating evidence available on record to show that appellant- Hemlal (A-5) was really in Sukma, Bastar from 23.09.2012 to 29.09.2012.
38
43. Plea of alibi has been considered by the Supreme Court in the matter of Darshan Singh v. State of Punjab21 and it has been held as under: -
"The word alibi means "elsewhere". The plea of alibi is not one of the General Exceptions contained in Chapter IV of IPC. It is a rule of evidence recognized under Section 11 of the Evidence Act. However, plea of alibi taken by the defence is required to be proved only after prosecution has proved its case against the accused. In the present case said condition is fulfilled."
44. It is well settled that strict proof is required for establishing plea of alibi and finding of fact disbelieving the plea of alibi based on weight and sturdy reasons should not be interfered with. (See Binay Kumar Singh v. State of Bihar22.)
45. It is well settled that a plea of alibi must be proved with absolute certainty so as to completely exclude the possibility of the presence of the person concerned at the place of occurrence. (See State of Maharashtra v. Narsingrao Gangaram Pimple23.)
46. In the matter of Sahabuddin and another v. State of Assam24, Their Lordships of the Supreme Court have held 21(2016) 3 SCC 37 22AIR 1997 SC 322 23AIR 1984 SC 63 24(2012) 13 SCC 213 39 that once the Court disbelieves the plea of alibi and the accused does not give any explanation in his statement under Section 313 of the CrPC, the Court is entitled to draw adverse inference against the accused taking the plea of alibi.
47. Reverting to the facts of the case in light of principles of law laid down by their Lordships of Supreme Court in above mentioned matters with regard to plea of alibi, it is quite vivid that the plea of alibi so taken by appellant- Hemlal (A-
5) is that he was at Sukma at the time of offence is solely based on a baled statement of complainant- Rajeev Dandsena (PW-01) that he had knowledge that appellant- Hemlal (A-05) had gone to Sukma, Bastar to his elder brother's house and except this there is no other corroborating, legally admissible evidence available on record to substantiate the fact that appellant- Hemlal (A-5) was really in Sukma, Bastar at the time of commission of offence in question and, that being the reason, the learned trial Court in its judgment has not found the plea of alibi to be proved. Therefore, the plea of alibi raised on behalf of appellant- Hemlal (A-5) is vacillating and it has rightly been rejected by learned trial Court. We hereby affirm the said finding.
40
48. It has also been submitted on behalf of the appellant- Hemlal (A-5) that recovery of Nokia Mobile Phone from his possession vide Ex.P/29 is not established beyond reasonable doubt, as the same was seized without recording his memorandum statement and further it lacks from production of mandatory certificate under Section 65-B of the Indian Evidence Act, 1872, as call details are required to be proved in light of decision rendered in Arjun Panditrao Khotkar (supra). The aforesaid submission is well founded, but in light of the fact that appellant- Hemlal's (A-05) involvement in the instant crime has been duly proved/established on the basis of other evidence available on record, therefore, the appeal of appellant- Hemlal (A-5) deserves to be dismissed.
49. Furthermore, the charge of conspiracy has also been found proved against the accused persons by the learned trial Court. We have gone through the evidence relating to the conspiracy and we find that the trial Court is absolutely justified in holding that the charge of conspiracy is established. In that view of the matter, we do not find any infirmity in holding that the charge of conspiracy under Section 120 of IPC is duly established.
50. Resultantly, all the appeals preferred by six appellants herein deserves to be and accordingly dismissed having no 41 merit. Since the appellants are on bail, their bail bonds shall stand forfeited. They are directed to surrender forthwith to serve out remaining sentence, failing which they shall be apprehended in accordance with law.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Harneet/s@if