Madhya Pradesh High Court
Mohd. Jamil vs State Of Madhya Pradesh on 19 August, 2004
Equivalent citations: 2005CRILJ1470, 2004(4)MPHT85, 2005 CRI. L. J. 1470, (2004) 4 MPHT 85, (2004) 4 MPLJ 225, (2005) 26 ALLINDCAS 862 (MP)
Author: A.K. Shrivastava
Bench: Dipak Misra, A.K. Shrivastava
JUDGMENT A.K. Shrivastava, J.
1. Feeling aggrieved by judgment of conviction and order of sentence dated 29-11-1997 passed by Additional Sessions Judge, Umariya, Distt. Shahdol, in Session Trial No. 210/94 convicting the appellant under Section 302, IPC and sentencing him to suffer Rigorous Imprisonment for life, the appellant has knocked the door of this Court by preferring the appeal under Section 374(2) of Code of Criminal Procedure, 1973.
2. The facts shorn of unnecessary details lie in a narrow compass. Sushri Poonam Pandey (hereinafter referred to as 'the deceased') was a divorcee lady. She was living along with her mother Rukmani Pandey. One Tabeeb Khan outraged the modesty of deceased for one or two occasion and expressed her love to her but the deceased did not appreciate the act, on the contrary she pacified him that if he will not improve his attitude towards the deceased, she would narrate his shameful act to his wife and mother that he outraged her modesty. On this cause, said Tabeeb Khan provoked appellant against the deceased. Since the deceased was a divorcee, as a result of which appellant started outraging her modesty. Sometime he caused 'Marpeet' to her, sometime he threatened her, sometime he tried to defame her. He also brandished country made pistol to her, not only this, he also pasted poster by writing his love story at several places. Despite all these adverse acts towards the deceased when she did not pay any heed to appellant, on the fateful day when the deceased was at her work place, i.e., at Primary Health Centre, Pali, where she was working on the post of Nurse in the hospital, appellant entered in Medicine Distribution Department where the deceased was present and shooted her. The incident was witnessed by Pappu (P.W. 1) and Vijay Kumar Shrivastava (P.W. 2).
3. On being asked by Vijay Kumar Shrivastava, Pappu Sweeper (P.W. 1) named the appellant. Bal Govind Mishra (P.W. 8) reported the matter to Dr. Ashok Singh (P.W. 3). At that time one Mushaphir Singh (P.W. 15) was with him. These two persons rushed towards the spot and found the deceased to be dead. Dr. Ashok Singh (P.W. 3) saw appellant running away from the spot but he could not identify him properly. Later on Vijay Kumar Shrivastava reported the matter to Police Station who registered the case against appellant under Section 302, IPC and under Section 25/27 of Arms Act.
4. On lodging the First Information Report, criminal law was set in motion. The Investigating Officer arrived at the spot; seized the dead body; sent it for post-mortem; recorded the statement of witnesses; seized certain articles from the spot and after completing the investigation filed charge-sheet in the Competent Court which, on its turn, committed the case to the Court of Session and from where it was received by the Trial Court for trial.
5. Though appellant was charged under Section 302, IPC along with Section 25/27 of Arms Act but on account of lack of permission by District Magistrate charge under Section 25/27 of Arms Act was not taken into consideration by learned Trial Judge.
6. Appellant abjured his guilt and pleaded complete innocence. His offence is of maladroit implication but in his defence he did not choose to examine any witness. In order to prove the charges, prosecution examined as many as 17 witnesses and placed Exs. P-1 to P-13, the documents on record.
7. Learned Trial Judge, after appreciating and marshalling the evidence, categorically held that appellant committed the offence under Section 302, IPC, as a result of which convicted him under the said Act and passed sentence to suffer Rigorous Imprisonment for life. Hence this appeal,
8. We have heard Shri L.N. Sakle, learned Counsel for appellant and Shri S.K. Rai, learned Government Advocate for respondent.
9. The contention of learned Counsel for appellant is that star witnesses of prosecution are Pappu (P.W. 1) and Vijay Kumar Shrivastava (P.W. 2). By taking the assistance of the testimony of these witnesses, the submission which has been made by learned Counsel is that Pappu (P.W. 1) was declared hostile and he has said that he could not identify the assailant who fired the 'Katta' though he has categorically said that deceased was discharging her duty in Medicine Distribution Department and other witnesses Vijay Kumar Shrivastava and Bal Govind Mishra were also sitting in the same Chamber. At that juncture, one person who covered his face by cloth and whose face was blackish on account of rubbing of coal entered and shoot the deceased and thereafter the assailant fled from the spot in a 'Dumpher'. However, Vijay Kumar Shrivastava (P.W. 2) has said that he identified the assailant by his face, and on being asked by him, Pappu Sweeper told that assailant is appellant and he also named him.
10. The contention of learned Counsel for the appellant is that since Vijay Kumar Shrivastava (P.W. 2) was not acquainted by name of accused and he came to know his name only on the basis of information supplied by Pappu (P.W. 1) and since Pappu had said that he could not identify appellant, therefore, in absence of holding the test identification parade it would be hazardous to convict the appellant and, therefore, this appeal be allowed and appellant be acquitted.
11. Combatting the aforesaid submission of learned Counsel for appellant, it has been contended by Shri S.K. Rai, learned Govt. Advocate, that for a considerable time appellant was seen by Vijay Kumar Shrivastava (P.W. 2) and, therefore, even if the test identification parade was not held, it would not be fatal for prosecution because said Vijay Kumar Shrivastava rightly identified accused in Court which is a substantive piece of evidence. It has been propounded by learned Government Advocate that in a broad day light and that too in hospital appellant dared to kill deceased by gunshot injury. There is sufficient evidence in order to hold that appellant committed the offence and, therefore, learned Trial Judge did not err in convicting him. On these premised arguments, it has been contended by Shri S.K. Rai, learned Government Advocate, that this appeal be dismissed.
12. . After having heard learned Counsel for the parties, we are of the considered view that this appeal deserves to be dismissed.
13. It be seen that identification test do not constitute substantive evidence. Such tests are primarily meant for the purpose of helping the Investigating Agencies with an assurance that their progress with the investigation into the offence is proceeding on right lines. In absence of cogent evidence that by reason of visibility of light at the place of occurrence of proximity to the assailant, the witnesses had a clear vision of the action of the accused in order that his features could get impressed in their mind to enable them to re-collect the same and identified the assailant even after a long lapse of time, it would be hazardous to draw the inference that accused is the real assailant. But, if all these circumstances are totally lacking and a witness had sufficient opportunity to see in broad day light the assailant from a quite close distance then even if test identification parade is not arranged, it can not be said that, merely because the said witness has identified the accused in dock, his evidence is to be thrown just like a waste paper in a dustbin. Indeed identification of accused in a Court is a substantive piece of evidence. The test identification parade is only a corroborative piece of evidence.
14. It be seen that the accused has been named in the FIR though his name was informed by hostile witness Pappu (P.W. 1) to Vijay Kumar Shrivastava (P.W. 2) who is the author of FIR. But, this important fact can not be marginalised and blinked away that witness Vijay Kumar Shrivastava (P.W. 2) has sufficient opportunity to see the act of the accused/appellant as this witness was sitting in the same room in which the deceased was discharging her duty. There is a firm evidence of this witness that in broad day light the accused, entered inside the room where he and deceased were sitting and he (appellant) fired a 'Katta' and the bullet struck right temporal region of the deceased. On going through the testimony of this witness it is revealed that appellant did not flee away from the spot immediately but by putting his finger on his mouth, which is an indication not to shout, he directed everybody not so shout and thereafter he went away from the place of occurrence. This witness had identified the accused in Court. On being cross-examined this witness firmly stated that the face of appellant was not covered by any cloth. Though the factum of putting the finger on mouth and asking the persons present in the room not to shout, is not in his police statement but according to us, it is a minor discrepancy and even if this fact has not been stated in his police statement, it can not be said that it is material omission. On being asked a specific question to this witness that he noticed appellant only after he fired, he firmly denied the suggestion and said that he saw appellant firing to the deceased. This witness thereafter asked co-employee Bal Govind Mishra to call Dr. Ashok Singh who came and examined the pulse of deceased and declared that she is dead.
15. Dr. Ashok Singh (P.W. 3), in his testimony, has said that when he entered in the room, at that juncture probably Vijay Kumar Shrivastava was present.
16. In a recent decision in the case of Dastagir Sab and Anr. v. State of Karnataka, (2004) 3 SCC 106, the Supreme Court while dealing with similar situation held that non-holding of test identification parade would not by itself disprove the prosecution case. In the case of Dastagir Sab (supra), the accused was named in the FIR and in the present case also the accused has been named in the FIR. We have considered the testimony of star witness Vijay Kumar Shrivastava (P.W. 2) who had occasion to see the appellant for a sufficient time in broad day light, he also saw appellant firing the 'Katta' on deceased and thereafter he asked the persons who were present there not to shout and, therefore, even if the test identification parade was not arranged, it can not be said that the case of prosecution is to be discredited. In this context, we may profitably rely another decision of Apex Court in the case of State of M.P. v. Sunderlal, 1992 (1) Vidhi Bhasvar 331. In this case prosecutrix who was 13 years of age was taken over by the accused in night and at some distance he committed rape over her. The prosecutrix identified the accused in the light coming from the lamps. The Apex Court in that situation reversed the judgment of High Court holding that since test identification parade was not arranged, it would be difficult to convict the accused. The Apex Court by reversing the judgment of High Court, convicted the accused. The case of Sunderlal (supra) squarely covers the point in issue of the present case and is applicable in its entirety into the present factual scenario because in the case at hand the witness Vijay Kumar Shrivastava (P.W. 2) saw the accused in broad day light for sufficient time as when he entered into a room, he was having a 'Katta' and he fired on the deceased and thereafter he directed the persons including this witness not to shout. Thus, according to us, it was not necessary for the prosecution in the present facts and circumstances, to arrange a test identification parade. The matter would have been definitely different if the witness Vijay Kumar Shrivastava (P.W. 2) had only seen the assailant fleeting glance at him at the time of incident. In the case of Pappu v. State of M.P., 1996 JLJ 296, the Division Bench of this Court has held that when the witness had seen the accused in peaceful atmosphere before the quarrel started and thereafter seeing him inflicting knife blows it was not necessary for the prosecution to arrange test identification parade. Similar situation is also in the case at hand as witness Vijay Kumar Shrivastava (P.W. 2) has seen the act of appellant right from very beginning.
17. We have discussed hereinabove the evidence of Vijay Kumar Shrivastava in its entirety and after appreciating the evidence we can say that his evidence is clear, cogent and trustworthy. It is no use to imagine and magnify theoretical possibility with regard to the state of mind of the witness and with regard to their power of memorizing the identity of the assailant. Power of perception and memorizing differs from man to man and also depends upon situation. It would also depend upon capacity to recapitulate what has been seen earlier. The Apex Court in the case of State of Maharashtra v. Suresh, (2000) 1 SCC 471, while considering the scope of test identification parade categorically held and laid down the law of land that identification parades are not primarily meant for the Court. They are meant for investigation purposes. The object of conducting test identification parade is two-fold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is real one who has seen by them in connection with commission of crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses have seen in connection with the said occurrence. Thus, merely because the test identification parade was not arranged by the Investigating Agency, would not discredit the clear, cogent and trustworthy evidence of Vijay Kumar Shrivastava who firmly said, that he had an occasion to see the accused for considerable time in broad day light he had also seen the accused/appellant who had fired by 'Katla' to the deceased. This witness had seen the entire act of appellant right from very beginning. Thus, the argument in this regard advanced by learned Counsel for the appellant can not be accepted.
18. On the basis of aforesaid discussion, merely because test identification parade was not arranged, it was not fatal to the prosecution as there is substantive piece of evidence of identification of appellant by Vijay Kumar Shrivastava (P.W. 2) in Court, is very much there.
19. The evidence of Vijay Kumar Shrivastava (P.W. 2) is corroborated by Autopsy Surgeon, Dr. P.C. Jain (P.W. 11). His post-mortem report is Ex! P-1l. This doctor conducted post-mortem along with another Dr. A.K. Shrivastava. In the post-mortem report it has been opined by the doctors that deceased breathed her last on account of gun shot injury.
20. There is overwhelming evidence of prosecution that deceased was being tortured by appellant, she was sexually harassed, certain pamphlets incorrectly giving description of love affair of appellant and deceased was pasted at several places by appellant. In this regard evidence of Jagdamba Prasad (P.W. 9) is quite relevant on the issue. The evidence of Rukmani Pandey (P.W. 12) who is the mother of the deceased is also quite relevant. Those pamphlets have also been sent for handwriting expert and the opinion is in affirmative and it was held that those pamphlets are in the handwriting of appellant.
21. True the appellant was acquitted for the offence punishable under Section 25/27 of Arms Act as the recovery of 'Katta' was not found to be proved. Since there is directevidence against appellant connecting him with the crime, we have no scintilla of doubt to hold that the appellant committed the offence.
22. Even if the appellant was acquitted from the charges punishable under Section 25/27 of the Arms Act as the recovery of country made pistol was not found proved, it would not give a clean chit to him so far as his implication in the present case is concerned. In this regard we may profitably rely the pronouncement of Supreme Court in the case of Laljit Singh v. State of Punjab, 1994 SCC (Cri.) 509. In a later case Sewaka Alias Ramsewak v. State of M.P. and Anr., (2001) 10 SCC 1, the Supreme Court though disbelieved the recovery of 'Katta' held that disbelieving the recovery part of 'Kalta' would not cause any dent in the prosecution case in regard to commission of offence under Section 302, IPC. The Apex Court though set aside the conviction under Section 25 of Arms Act but confirmed the judgment of conviction passed under Section 302, IPC. Thus, by placing reliance on these two decisions, the argument of learned Counsel for appellant can not be accepted that merely because appellant has been acquitted from the offence punishable under Section 25/27, Arms Act, he should be acquitted from the offence under Section 302, IPC on the basis that recovery of 'Katta' was not found to be proved. Similar view was taken by the Apex Court tearlier in the case of Mohinder Singh v. State of Punjab, AIR 1965 SC 79, in which the accused was convicted for murder which he committed with a pistol. The conviction was confirmed by the High Court in appeal, subsequently, accused was acquitted under Section 19(1)(f) of Arms Act in a companion case started against accused. In that situation the Apex Court held that such acquittal under Section 19(1)(f) of Arms Act could not be taken into account in disposing appeal filed against conviction under Section 302 IPC.
23. We have X-rayed the view taken by learned Trial Judge holding appellant to be guilty of the offence and we find it to be quite cogent as it is based on evidence placed on record and we do not wish to deviate ourselves from those reasonings.
24. In the result, the appeal is found to be devoid of any substance and the same is hereby dismissed.