Himachal Pradesh High Court
Amrish Rana vs State Of Himachal Pradesh on 10 August, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HEMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 326 of 2014
Reserved on: August 07, 2015.
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Decided on: August 10, 2015.
Amrish Rana ......Appellant.
Versus
State of Himachal Pradesh .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
of
Whether approved for reporting? Yes.
For the appellant: Mr. Y.P.S. Dhaulta, Advocate.
For the respondent: Mr. Ramesh Thakur, Asstt. AG.
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Justice Rajiv Sharma, J.
rt This appeal is instituted against the judgment/order dated 4/10.1.2014, rendered by the learned Sessions Judge (Forests), Shimla, H.P. in Sessions Trial No. 26-S/7 of 2012/11, whereby the appellant-
accused Amrish Rana (hereinafter referred to as accused), alongwith other co-accused, was charged with and tried for offences punishable under Sections 147, 148, 307, 323, 326 IPC and Section 25 of the Arms Act and was convicted and sentenced alongwith co-accused Gurjant Singh to undergo rigorous imprisonment for 10 years and fine of Rs. 10,000/- and in default of payment of fine to further undergo one month's imprisonment under Section 307 IPC. They were sentenced to undergo 10 years rigorous imprisonment and fine of Rs. 5000/- and in default of payment of fine to further undergo imprisonment for one month under Section 326 IPC. They were sentenced to undergo one year rigorous imprisonment and fine of Rs. 1000/- and in default of payment of fine to further undergo imprisonment for one month under Section 323 IPC.
::: Downloaded on - 15/04/2017 18:43:46 :::HCHP 2They were sentenced to undergo one year imprisonment and fine of Rs.
1000/- and in default of payment of fine to further undergo imprisonment .
for one month under Section 147 IPC. They were also sentenced to undergo one year imprisonment and fine of Rs. 1000/- and in default of payment of fine to further undergo imprisonment for one month under Section 148 IPC. They were also sentenced to undergo imprisonment for of one year and fine of Rs. 1000/- and in default of payment of fine to further undergo imprisonment for one month under Section 25 of the Arms Act. rt
2. The case of the prosecution, in a nut shell, is that complainant PW-11 Naresh Kumar on 19.3.2003 was coming from Ghanatti Bazar. He alighted from the bus at point which bifurcates to Kanda Jail. He had covered a distance of 2 meters approximately where he found a white Maruti Car coming from back. The car stopped at a short distance. Accused Gurjant Singh came out from the car and fired at the complainant Naresh Kumar. The complainant Naresh Kumar grappled with the accused and snatched country made pistol. The fire shot hit right eye of the complainant. In the meantime, another occupant sitting on the driver seat came out of the vehicle. He also fired at him with country made pistol. The fire shot missed and it did not hit him. Thereafter, the complainant rushed towards the jungle and reached the house of PW-2 Champa Devi who informed the jail authorities. Statement of complainant Ext. PW-11/A was recorded. The blood stained clothes were ::: Downloaded on - 15/04/2017 18:43:46 :::HCHP 3 also taken into possession. The police visited the spot. Pistol Ext. P-6, pallet Ext. P-7 and blood stained stone Ext. P-4 were recovered. One .
barrel Ext. P-9 was also recovered from the spot. Maruti car was also taken into possession. FIR Ext. PW-14/A was recorded. The case property was sent for chemical examination. On completion of the investigation, challan was put up in the Court after completing all the of codal formalities.
3. The prosecution, in order to prove its case, has examined as many as 21 witnesses. The accused were also examined under Section rt 313 Cr.P.C. Accused Gurjant Singh and Amrish Rana took defence that they were making complaints against the jail authorities about the ill-
treatment of jail inmates. The complaint was inquired into by the learned Sessions Judge. Thereafter, the doctor was transferred and the Jail Authorities had enmity towards them. Due to this reason, they were falsely implicated. They were innocent. The learned trial Court convicted and sentenced accused Gurjant Singh and Amrish Rana, as noticed hereinabove. Accused Harjit Singh and Harmit Singh were acquitted and accused Rajesh Kumar had absconded. Hence, this appeal on behalf of appellant Amrish Rana.
4. Mr. Y.P.S. Dhaulta, Advocate for the accused has vehemently argued that the prosecution has failed to prove the case against the accused. On the other hand, Mr. Ramesh Thakur, Asstt. Advocate ::: Downloaded on - 15/04/2017 18:43:46 :::HCHP 4 General, appearing on behalf of the State, has supported the judgment/order of the learned trial Court dated 4/10.1.2014.
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5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully.
6. PW-1 Jitender Kumar testified that he was posted as warder in Model Central Jail, Kanda. Naresh was also warder in the Jail at the of relevant time. Gurjant Singh, was under trial prisoner in the jail at that time. On 27.1.2003, Gurjant Singh had assaulted Naresh in the jail and police case was filed. Because of this, Gurjant was inimical towards rt Naresh and he used to advance threats to him. Gurjant was lateron taken to Chandigarh in a court case and he fled away from the police custody. On the occasion of Holi in the year 2003, one Champa Devi telephonically informed the jail authorities that Naresh Kumar, employee of the jail had come to her house wounded by gun shots and was bleeding profusely. He alongwith 4-5 persons went to Champa Devi's house. They took Naresh first to Kanda jail and then to IGMC, Shimla. On way to hospital, he disclosed that he got down from the bus, on a bifurcation and then was coming towards Kanda jail, when a car came from behind and stopped near him and the occupants thereof assaulted him. He told that he was fired at with revolver by the occupants. Naresh Kumar had received injury near his eye. He had seen the injury. Naresh, however, did not tell about the names of the assailants. The police lifted one turban, one blood stained stone, one barrel and one country made pistol ::: Downloaded on - 15/04/2017 18:43:46 :::HCHP 5 in their presence from the spot. Turban and blood stained stone were wrapped in a cloth parcel and sealed with seal "T" and taken into .
possession vide memo Ext. PW-1/A. He identified turban Ext. P-2 and stone Ext. P-4. On the same day, police alongwith them went to jungle and recovered from there one country made pistol. The place was about 150 meters down from the road. The pistol was wrapped in a cloth parcel of and then sealed with seal impression "T". The pistol was checked and it was found loaded with one bullet. It was taken into possession vide memo Ext. PW-1/B. He identified pistol Ext. P-6 and bullet Ext. P-7. The rt police also recovered one barrel from the road where the incident happened. The barrel was also wrapped in a cloth parcel and sealed with seal "T". It was taken into possession vide memo Ext. PW-1/C. He identified one rusted steel barrel Ext. P-9. The sketch of Ext. P-9 was also prepared. Maruti car was also taken into possession. In his cross-
examination, he deposed that the phone call from Champa Devi was received in the jail around 6-6:30 PM.
7. PW-2 Champa Devi deposed that her house is adjoining to Model Central Jail, Kanda. On 19.3.2003, she was in her house. She heard someone saying "save me". When she came out of her house, she found one man outside her house. He told her that he had been hit with a bullet. He was in a bad condition. He requested her to telephonically inform about it in the Central Jail. He also disclosed the telephone ::: Downloaded on - 15/04/2017 18:43:46 :::HCHP 6 number of the jail. As such, she rang up in the Central Jail. Thereafter, some persons came from the Central Jail and took the injured.
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8. PW-3 Laiq Ram deposed that on account of assault, Naresh Kumar had received injuries. He was admitted in the IGMC, Shimla. He and Narotam were deputed in the IGMC for protection of Naresh Kumar on guard duty. On 23.3.2003, the police came to IGMC and took into of possession the blood stained clothes, namely, kamiz and Pajama of Naresh Kumar.
9. PW-4 HC Santosh Kumar, deposed that on 31.3.2003, MHC rt Joginder of PS West gave him four sealed parcels, one envelope bearing seal of CMO and one forwarding letter for depositing with FSL, Bharari.
He deposited them in the FSL on the same day. One another parcel sealed with seals was given to him for depositing in FSL Bharari. He also deposited the said parcel on that date and gave receipt to the MHC. He took these parcels to FSL vide RC No. 37/2003. He was declared hostile and cross-examined by the learned P.P. He admitted in his cross-
examination that 5 parcels in which one country made pistol, another parcel in which barrel was said to be there and another parcel containing stone were sealed with seal "T". One parcel containing bullet sealed with seal of CMO, another parcel containing blood stained cloth and sealed with seal "K" were handed over by the MHC to him and he deposited them with FSL Bharari alongwith documents on that date vide RC No. 37/03.
::: Downloaded on - 15/04/2017 18:43:46 :::HCHP 710. PW-5 Prem Raj deposed that there was festival of Holi. At 5:15 PM, he came out of his quarter and found that many persons had .
assembled on the gate of jail. There Naresh Kumar, Warder was bleeding from his face and he disclosed that he had been fired at by one person when he was on Ghanatti-Kanda link road. He was also declared hostile and cross-examined by the learned P.P. of
11. PW-6 ASI Jai Singh deposed that on 3.6.2003, he went to P.P. IGNOU Mehroli, Delhi with ASI Rajinder Singh. ASI Surinder Singh Dhaiya was in-charge of P.P. IGONU.
rt The In-charge was requested to hand over the disclosure statements of Amrish Rana and Rajesh, which they had made, in respect of FIR No. 272/03 dated 1.6.2003 under Section 399, 402 IPC and 25 of the Arms Act of PS Mehroli. Memo Ext.
PW-6/A was prepared to this effect.
12. PW-7 Roshan Lal deposed that on 11.10.2003, he was at Gahanatti Bazar with Ashok Kumar. The police came there. They asked them to join the investigation. One Harjit was also with the police and his name was disclosed to them by the police. The police took Harjit to Nehra road where Maruti car bearing No. HP-03-8537 was parked. He disclosed to the police that before coming to the spot for committing crime, they had put a fake number plate on that vehicle. He identified the place where the vehicle was parked. On the same day, the police took Harjit Singh on Kanda road where the incident had taken place. He disclosed that first Rajesh alias Guddu had fired at Naresh and when the victim was running ::: Downloaded on - 15/04/2017 18:43:46 :::HCHP 8 from the spot, Amrish fired at him. He also said that Gurjant was also present there. Memos regarding identification of the places where the .
vehicle was parked and incident took place were prepared. He was also declared hostile and cross-examined by the learned P.P. In his cross-
examination by the learned P.P. he deposed that since the incident occurred many years before, so he was not in a position to recollect this of case clearly.
13. PW-8 Ashok Kumar deposed that on 11.10.2003, he was in Ghanatti Bazar with Roshan Lal, Pradhan, G.P. Ghanatti.
rt The police came there. Harjit was in the custody of the police. They alongwith police and Harjit went in the vehicle to Nehra road. There, Harjit identified the place where they had parked the car and fled away. Harjit also disclosed that they had put fake number plate on the vehicle. Then they came to Kanda road and there Harjit told that Rajesh had fired at Naresh and Amrish also fired at him. The police prepared memos Ext. PW-7/A and PW-7/B in this regard.
14. PW-11 Const. Naresh Kumar deposed that on 19.3.2003, he had gone to Ghanatti bazaar for haircut. He boarded the bus at Ghanatti for his workplace. He alighted at point where road bifurcates to Kanda Jail. He had covered a distance of 20 meters from that point when he found white coloured Maruti car coming from his back side. He could read only HP-03 on its number plate. The vehicle crossed him and stopped after a short distance. Five persons were occupying the vehicle.
::: Downloaded on - 15/04/2017 18:43:46 :::HCHP 9Amrish Rana and Gurjant Singh were amongst the occupants of that vehicle. He knew both of them since they had been the inmates of Kanda .
jail during his posting. At the relevant time, they were absconding. In January, 2003, accused Gurjant Singh had hit him on his leg with some sharp object. Gurjant was sitting on a seat next to the driver. He came out of the vehicle and fired at him. He grappled with him and snatched of country made pistol from him. The fire shot hit him near his right eye. In the meantime, the person on the driver seat also came out of the vehicle.
He was also having country made pistol with him. He also fired at him but rt it did not hit him. The other three occupants of the vehicle were not known to him. Thereafter, he ran towards the jungle. He ran towards to the house of Champa situated just near the jail. The officials from Kanda jail came to Champa's house and took him to jail. He was taken to IGMC, Shimla from there by the staff for treatment. The police met him in IGMC, Shimla in the same evening. Police recorded his statement Ext. PW-11/A. The police took his clothes on 22.3.2003, which were being worn by him on the date of incident. He identified the gray coloured shirt and pajama.
He also identified the pistol Ext. P-6 and rusted barrel like object Ext. P-9.
He identified Gurjant and Amrish Rana in the Court. He was also declared hostile by the learned P.P. He denied the suggestion that in order to save Harjeet, Harmeet and Rajesh, he was deposing falsely. In his cross-examination by the Advocate appearing on behalf of the ::: Downloaded on - 15/04/2017 18:43:46 :::HCHP 10 accused, he deposed that he grappled with Gurjant for about half a minute.
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15. PW-12 Dr. G.C.Rajput, has noticed following injuries on the person of Naresh Kumar:
"1. There was entry wound 1 cm below inner canthus of right eye with inverted edges.
2. Multiple soot particles with pin pointed black spots seen over the peri orbital region on the right side of face and of near the inner canthus of left eye."
He issued final opinion Ext. PW-12/C. According to him, the injury No. 1 was bullet injury and the same could be dangerous to life.
rt Injury No. 2 was simple injury.
16. PW-13 R.L.Chaudhary has proved disclosure statement made by Amrish Rana mark A-1 and A-2 and disclosure statement made by Rajesh vide mark A-3.
17. PW-15 Dr. Rajesh Kumar has proved his report Ext. PW-
15/A. According to his opinion, item No. 1 was fire worthy and it was recently fired. The chamber of item No. 1 (i.e. country made pistol) was made for 8 mm (.315) cartridge. The caliber of item No. 1 i.e. the spent cartridge was 8 mm. Evidence of firing was also found in item No. 3 i.e. the broken barrel. The caliber of item No. 4 i.e. the mutilated bullet was also 8 mm (.315).
18. PW-16 SI Rajinder Kumar deposed that he was informed by Prem Raj Sharma from Central jail, Kanda that Naresh Warder was fired upon near Ghanatti. In this regard, rapat was recorded. The statement ::: Downloaded on - 15/04/2017 18:43:46 :::HCHP 11 of Naresh Kumar was recorded vide Ext. PW-11/A. FIR Ext. PW-14/A was also registered. Naresh Kumar was medically examined. His clothes .
were also taken into possession. He also recorded the statements of witnesses under Section 161 Cr.P.C.
19. PW-17 SI Sita Ram deposed that during the course of investigation, he visited the spot on 11.10.2003. He got the spot of identified where the vehicle was left behind by the accused. Memo Ext.
PW-7/A was prepared to this effect. The accused persons identified the place from where they had fired at Naresh Kumar vide memo Ext. PW-
rt 7/B.
20. PW-18 Insp. Surinder Kumar Dahiya deposed that he was posted as Incharge Indira Gandhi Open University under PS Mehroli. On 1.6.2003, accused Amrish Rana, Rajesh, Nazeen and Prem Kumar were arrested in case No. 272/2003 under Sections 399, 402 IPC and Sections 25,54 and 59 Arms Act, at PS Mehroli. Accused Amrish and Rajesh had disclosed in their statements that in the month of March, 2003 they had committed some crime at Shimla with Gurjant, Kewal, Harmeet and Harjeet. The disclosure statement made by Amrish Rana was reduced into writing at his dictation and was written by one of the members of the raiding party. The statement was recorded under Section 27 of the Evidence Act vide Ext. PW-18/A. Similarly statement of accused Rajesh was recorded under Section 27 of the Evidence Act vide Ext. PW-18/B. ::: Downloaded on - 15/04/2017 18:43:46 :::HCHP 12
21. The statements made by accused Amrish Rana under Section 27 of the Evidence Act Ext. PW-18/A and accused Rakesh alias Guddu .
Ext. PW-18/B were proved by PW-19 Naveen.
22. PW-20 Dr. Rohit Sharma has examined and operated upon Naresh Kumar. The following findings were recorded by him:
"1. Edema over maxillary region on right side.
2. Irregular lacerated wound on right maxillary region 2 of cm in length margins of which were inverted about 1.5 to 2 cm below inferior orbital plate.
3. There were multiple small black spots in the forehead (tattooing) on right side nose, lower half of face extending on medial rt aspect of face. Oropharynx-NA D."
He issued summary vide Ext. PW-20/A. According to him, the injuries could be caused by a person from a distance of approximately within five meters. He also admitted in his cross-examination that the injuries were possible with pellets.
23. PW-21 Dr. Ravinder Shamra, has issued opinion on the back side vide Ext. PW-12/A.
24. The most material witness is injured Naresh Kumar (PW-11).
He has categorically stated that when he was coming back from Ghanatti bazaar and when he got down at bifurcation, a car came from behind and crossed him. It stopped at some distance from him. Accused Amrish Rana and Gurjant were amongst the occupants of the vehicle. He knew them since they had been inmates of Kanda Jail during his posting, though at the relevant time they were absconding. Accused Gurjant Singh had hit him on his leg with some sharp object in the month of ::: Downloaded on - 15/04/2017 18:43:46 :::HCHP 13 January, 2003. Gurjant Singh came out of the vehicle and fired at him.
He grappled with him and snatched the country made pistol from him.
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The fire shot hit him near his right eye. In the meantime, the person on the driver seat also came out of the vehicle. He was also having country made pistol with him. He also fired at him but it did not hit him. The other three occupants of the vehicle were not known to him. He did not of identify them at that time. Thereafter, he ran towards the jungle and reached the house of Champa Devi situated just near the jail. The officials from Kanda jail came to Champa's house and took him to jail. He rt was then taken to IGMC, Shimla from there for treatment. The statement of PW-11 Naresh Kumar was corroborated by PW-1 Jitender Kumar on all material aspects, including the manner in which the incident has happened on 19.3.2003 and also that Gurjant had assaulted Naresh Kumar on 27.1.2003.
25. PW-2 Champa Devi has also supported the version of PW-11 Naresh Kumar. According to her, on 19.3.2003, she was in her house.
She heard someone crying "save me". When she came out of her house, she found one man outside her house. He told her that he had been hit with a bullet. He was in a bad condition. He requested her to telephonically inform about it in the Central Jail. He also disclosed the telephone number of the jail. She rang up in the Central Jail and some persons came from there and took the injured. Pistol is Ext. P-6 and bullet Ext. P-7. These were identified by PW-1 Jitender Kumar. PW-1 ::: Downloaded on - 15/04/2017 18:43:46 :::HCHP 14 Jitender Kumar also identified rusted steel barrel Ext. P-9. PW-7 Roshan Lal and PW-8 Ashok Kumar deposed the manner in which the accused .
have got the place identified where the car was parked and firing had taken place.
26. PW-12 Dr. G.C.Rajput has issued final opinion Ext. PW-12/C. He has noticed entry wound 1 cm below inner canthus of right eye with of inverted edges. He also noticed multiple soot particles with pin pointed black spots seen over the peri orbital region on the right side of face and near the inner canthus of left eye. According to him, injury No. 1 was rt bullet injury and the same could be dangerous to life. Injury No. 2 was simple. PW-20 Dr. Rohit Sharma has operated upon Naresh Kumar. He has noticed edema over maxillary region on right side, irregular lacerated wound on right maxillary region 2 cm in length margins of which were inverted about 1.5 to 2 cm below inferior orbital plate. He also noticed multiple small black spots in the forehead on right side nose, lower half of face. PW-21 Dr. Ravinder Sharma has given opinion on back side of PW-
12/A. The prosecution has conclusively proved that it was accused Amrish Rana alongwith Gurjant who had fired at Naresh Kumar. Naresh Kumar was injured. He was taken to IGMC Shimla. His clothes were taken into possession. PW-15 Dr. Rajesh Kumar has issued report Ext.
PW-15/A. He has opined that item No. 1 was fire worthy and it was recently fired. The chamber of item No. 1 (i.e. country made pistol) was made for 8mm (.315) cartridge. The caliber of item No. 1 i.e. the spent ::: Downloaded on - 15/04/2017 18:43:46 :::HCHP 15 cartridge was 8mm. Evidence of firing was also found in item No. 3 i.e. the broken barrel. The caliber of item No. 4 i.e. the mutilated bullet was .
also 8 mm (.315).
27. In the instant case PW-11 Naresh Kumar knew the accused when he was serving as warder in the jail where the accused were lodged.
He has given the name of one accused Gurjant in the FIR and identified of Gurjant and accused Amrish Rana in the Court. Thus, it would not be material that name of other co-accused were not given in the FIR.
28. Their lordships of the Hon'ble Supreme Court in the case of rt Visveswaran vrs. State Rep. by S.D.M., reported in AIR 2003 SC 2471, have held that identification of accused in Court or test identification parade is not a sine qua non for conviction. Commission of crime can be proved by circumstantial evidence. It has been held as follows:
"11. It is unfortunate that despite the aforesaid facts, the test identification parade was not held. An important aspect of the case is that the appellant had beard and moustaches when PW1 and PW2 were examined as witnesses for the prosecution. It was not so at the time of the occurrence. PW1 and PW2, therefore, it is evident, could not identify him in Court and stated in their deposition that the said person is not in Court. It does not mean that the acquittal is to follow as a natural corroboratory from the statements of PW1 and PW2.
The identification of the accused either in test identification parade or in Court is not a sine qua non in every case if from the circumstances the guilt is otherwise established. Many a times, crimes are committed under cover of darkness when none is able to identify the accused. The commission of crime can be proved also by circumstantial evidence. In the present case, there are clinching circumstances unerringly pointing out the accusing finger towards the appellant beyond any reasonable doubt."
29. Their lordships of the Hon'ble Supreme Court in the case of Malkhan Singh and others vrs. State of M.P., reported in (2003) 5 ::: Downloaded on - 15/04/2017 18:43:46 :::HCHP 16 SCC 746, have held that failure to hold test identification parade would not make inadmissible the evidence of identification in Court. Test .
Identification does not constitute substantive evidence. The substantive evidence is the evidence of identification in Court and the TI parade provides corroboration of the sworn testimony of the witness in Court as to the identity of accused. In appropriate cases, the Court may accept the of evidence of identification in Court even without insisting on such or other corroboration. It has been held as follows:
"[7] It is trite to say that the substantive evidence is the rt evidence of identification in Court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification ::: Downloaded on - 15/04/2017 18:43:46 :::HCHP 17 even without insisting on corroboration. (See Kanta Prashad v. Delhi Administration, AIR 1958 SC 350; Vaikuntam Chandrappa and others v. State of Andhra Pradesh, AIR 1960 .
SC 1340; Budhsen and another v. State of U.P., AIR 1970 SC 1321 and Rameshwar Singh v. State of Jammu and Kashmir, (1971) 2 SCC 715.
[16] It is well settled that the substantive evidence is the evidence of identification in Court and the test identification parade provides corroboration to the identification of the witness in Court, if required. However, what weight must be attached to the evidence of identification in Court, which is not preceded by a test identification parade, is a matter for of the Courts of fact to examine. In the instant case the Courts below have concurrently found the evidence of the prosecutrix to be reliable and, therefore, there was no need for the corroboration of her evidence in Court as she was found to be implicitly reliable. We find no error in the reasoning of the rt Courts below. From the facts of the case it is quite apparent that the prosecutrix did not even know the appellants and did not make any effort to falsely implicate them by naming them at any stage. The crime was perpetrated in broad day light. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other. Before the rape was committed, she was threatened and intimidated by the appellants. After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience, the facts of the appellants must have got imprinted in her memory, and there was no chance of her making a mistake about their identity. The occurrence took place on March 4, 1992 and she deposed in Court on August 27, 1992. The prosecutrix appears to be a witness on whom implicit reliance can be placed and there is no reason why she should falsely identify the appellants as the perpetrators of the crime if they had not actually committed the offence. In these circumstances, if the Courts below have concurrently held that the identification of the appellants by the prosecutrix in Court does not require further corroboration, we find no reason to interfere with the finding recorded by the Courts below after an appreciation of the evidence on record."
::: Downloaded on - 15/04/2017 18:43:46 :::HCHP 1830. Their lordships of the Hon'ble Supreme Court in the case of Kulwinder Singh and another vrs. State of Punjab, reported in .
(2015) 6 SCC 674, have held that failure to hold TIP would not make inadmissible evidence of identification in the Court. Weight to be attached to such identification should be a matter of fact for Courts. It has been held as follows:
of "10. First, we shall deal with the facet of test identification parade. There is no dispute that the test identification parade has not been held in this case.
The two witnesses, namely, PW-2 and PW-3 have identified the accused- appellants in court. As per their evidence they had seen the accused- appellants in torch light and they had also seen them running away. It has rt also come in the evidence that they chased them but they could not be apprehended. Learned trial Judge as well as the High Court has taken note of the fact that it was 4:00 a.m. in the month of April and, therefore, it was not all that dark and with the help of torch light, they could have identified the accused persons. The suggestion given to these witnesses is absolutely vague. Nothing really has been elicited in the cross-examination to discard the testimony of these witnesses.
11. In Matru v. State of U.P., it has been held that the identification test does not constitute substantive evidence and it is primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation of an offence is proceeding on the right lines.
12. In Santokh Singh v. Izhar Hussain, it has been observed that the identification can only be used as corroborative of the statement in Court.
13. In Malkhan Singh & Others v. State of M.P., it has been held thus:-
"......7. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact."
14. In this context, a reference to passage from Visveswaran v. State, would be apt. It is as follows:-
"...11. The identification of the accused either in test identification parade or in Court is not a sine qua non in every case if from the circumstances the guilt is otherwise established. Many a time, ::: Downloaded on - 15/04/2017 18:43:46 :::HCHP 19 crimes are committed under the cover of darkness when none is able to identify the accused. The commission of a crime can be proved also by circumstantial evidence."
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15. In the case at hand, as the witnesses have identified the accused-
appellants in the Court and except giving a bald suggestion that they have not seen the accused persons, there is nothing in the cross-examination we are disposed to accept the identification in Court. Hence, the submission canvassed by the learned counsel for the appellants on this score pales into insignificance."
31. In the instant case, accused Amrish Rana had fired at Naresh of Kumar. The causing of injury was not necessary since he had the necessary intention to use the firearm to kill Naresh Kumar.
32. Their lordships of the Hon'ble Supreme Court in the case Om rt Parkash vrs. State of Punjab, reported in AIR 1961 SC 1782, have held that a person commits an offence under Section 307, when he has an intention to commit murder and, in pursuance of that intention, does an act towards its commission irrespective of the fact whether that act is the penultimate act or not. Their lordships have further held that in cases of attempt to commit murder by fire arm, the act amounting to an attempt to commit murder is bound to be the only and the last act to be done by the culprit. Their lordships further held that till he fires, he does not do any act towards the commission of the offence and once he fires, and something happens to prevent the shot taking effect, the offence under Section 307 is made out. It has been held as follows:
"9. Section 307 of the Indian Penal Code reads:
"Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may ::: Downloaded on - 15/04/2017 18:43:46 :::HCHP 20 extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment .
as is hereinbefore mentioned. When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death."
Section 308 reads:
"Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to of murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either rt description for a term which may extend to seven years, or with fine, or with both."
Both the sections are expressed in similar language. If s. 307 is to be interpreted as urged for the appellant, s. 308 too should be interpreted that way. What-' ever may be said with respect to s. 307, being exhaustive or covering all the cases of attempts to commit murder and s. 511 not applying to any case of attempt to commit murder on account of its being applicable only to offences punishable with imprisonment for life or imprisonment, the same cannot be said with respect to the offence of attempt to commit culpable homicide punishable under s. 308. An attempt to commit culpable homicide is punishable with imprisonment for a certain period and therefore but for its being expressly made an offence under s. 308, it would have fallen under s. 511 which applies to all attempts to commit offences punishable with imprisonment where no express provisions are made by the Code for the punishment of that attempt. It should follow that the ingredients of an offence of attempt to commit culpable homicide not amounting to murder should be the same as the ingredients of an offence of attempt to commit that offence under s. 511. We have held this day inAbhayanand Mishra v. The State of Bihar (1) that a person commits the offence of attempting to commit a particular offence, when he intends to commit that particular offence and, having made preparations and with the intention to commit that offence does an act towards its commission and that such an act need not be the penultimate act towards the commission of that offence, but must be an act during the course of committing such offence. It follows therefore that a person commits an offence under s. 308 when he has an intention to commit culpable homicide not amounting to murder and in pursuance of that intention does an act towards the commission of that offence whether that act be the penultimate act ::: Downloaded on - 15/04/2017 18:43:46 :::HCHP 21 or not. On a parity of reasoning, a person commits an offence under s. 307 when he has an intention to commit murder and, in pursuance of that intention, does an act towards its commission .
irrespective of the fact whether that act is the penultimate act or not.
It is to be clearly understood, however, that the intention to commit the offence of murder means that the person concerned has the intention to do certain act with the necessary intention or knowledge mentioned in s. 300. The intention to commit an offence is different from the intention or knowledge requisite for constituting the act as that offence. The expression 'whoever attempts to commit an offence' in s. 511, can only mean 'whoever intends to do a certain act with the intent or knowledge necessary for the commission of that of offence'. The same is meant by the expression 'whoever does an act with such intention or knowledge and under such circumstances that if he, by that act, caused death, he would be guilty of murder' in s.
307. This simply means that the act must be done with the (1) [1962] 2 S.C.R. 241.,intent or knowledge requisite for the commission of the offence of murder. The expression by that act' does not mean that rt the immediate effect of the act committed must be death. Such a result must be the result of that act whether immediately or after a lapse of time.
16. It may, however, be mentioned that in cases of attempt to commit murder by fire arm, the act amounting to an attempt to commit murder is bound to be the only and the last act to be done by the culprit. Till he fires, he does not do any act towards the commission of the offence and once he fires, and something happens to prevent the shot taking effect, the offence under s. 307 is made out. Expressions, in such cases, indicate that one commits an attempt to murder only when one has committed the last act (1) (1932) I.L.R. 56 Bom 434., necessary to commit murder. Such expressions, however, are not to be taken as precise exposition of the law, though the statements in the context of the cases are correct."
33. Their lordships of the Hon'ble Supreme Court in the case of Liyakat Mian and others vrs. The State of Bihar, reported in (1973) 4 SCC 39, have held that absence of names of accused persons in the first information report is not necessarily fatal. The person lodging the first information report may be in such a frame of mind as to discuss about the names of the culprits before he leaves for the police station. Their lordships have further held that non-mention of names of culprits may on ::: Downloaded on - 15/04/2017 18:43:46 :::HCHP 22 the other hand inspire confidence that the informant was not out to implicate his enemies. It has been held as follows:
.
"7. On appeal the High Court was impressed by the fact that P.W. 15 Hardeo Mahaton had made no attempt to implicate the appellants falsely because if he had wanted to do so there was nothing to prevent him from mentioning in his first information report that he had learnt from the womenfolk of the family that Liayakat and Jashim son of Jainul Mian were amongst the dacoits. In this connection it may be pointed out that in the first information report of all that Hardeo Mahaton had said was that the dacoits had been identified by the ladies in the house and they were in a better position to state about the identity of the dacoits. The High Court also believed the testimony of P.W. 11 (Burhan Mahaton) who as a result of the injuries inflicted on him had remained somewhat rt unconscious for considerable time. In the opinion of the High Court nothing had been elicited in his cross-examination which could induce it to disbelieve his Statement about Liayakat and Sahajud son of Jainul being the two persons who had a scuffle with him. His dying declaration was considered by the High Court to be trustworthy and acceptable which fully corroborated his evidence in Court. His evidence against the appellants was also considered to be free from blemish. While dealing with the absence of the names of the dacoits in the first information report the High Court observed "neither P.Ws. 3 and 13 nor P.W. 15 could have been in such a frame of mind as to discuss about the names of the culprits before P.W. 15 had left for Jori Hospital with Barho in an unconscious condition".
The criticism about the test identification parades also did not impress the High Court and it came to a positive conclusion that the test identification parades had been fairly held and that the claims of identification of the accused persons including Jashim Mian alias Sahajad Mian could safely be relied upon. It was on these findings that the High Court dismissed the appeal."
34. Their lordships of the Hon'ble Supreme Court in the case of Sarju Prasad Vrs. State of Bihar, reported in AIR 1965 SC 843, have held that the fact that no vital organ of A has been cut would not by itself be sufficient to take the act of accused out of the purview of S. 307. It has been held as follows:
::: Downloaded on - 15/04/2017 18:43:46 :::HCHP 23"6. All these decisions were considered by this Court in Om Prakash v. State of Punjab, and though Cassidy's case, 4 Bom HC (Cr.) 17 was not expressly dissented from the actual view taken by this Court is .
more in consonance with the view taken by Beaumont C. J. in Gogte's case, ILR 56 Bom 434 : (AIR 1932 Bom 279) and the view taken by the Allahabad High Court in Niddha's Case, ILR 14 All 38 than that taken in Cassidy's case, 4 Bom HC (Cr.) 17. In Gogte's case, ILR 56 Bom 434: (AIR 1932 Bom 219) no injury was in fact occasioned to the victim Sir Earnest Hotson, the then acting Governor, due to a certain obstruction. Even so, the assailant Gogte was held by the court to be jointly (sic) under Section 307 because his act of firing a shot was committed with a guilty intention and of knowledge and in such circumstances that but for the intervening fact it would have amounted to murder in the normal course of events. This view was approved by this Court. Therefore, the mere fact that the injury actually inflicted by the appellant did not cut any vital organ of Shankar Prasad is not by itself sufficient to take the act out of the purview of Section 307.
rt
7. Having said all this we must point out that the burden is still upon the prosecution to establish that the intention of the appellant in causing the particular injury to Shankar Prasad was of any of the three kinds referred to in Section 300, Indian Penal Code. For, unless the prosecution discharges the burden the offence under Section 307, I. P. C. cannot possibly be brought home to the appellant The state of the appellant's mind has to be deduced from the surrounding circumstances and as Mr. Kohli rightly says the existence of a motive to cause the death of Shankar Prasad would have been a relevant circumstance. Here, the prosecution has led no evidence from which it could be inferred that the appellant had a motive to kill the victim of his attack. On the other hand he points out that as the appellant had no enmity with Shankar Prasad that neither of them even knew each other and that as the appellant inflicted the injury on Shankar Prasad only to make him release the wrist of Sushil while Sushil was in the act of stabbing Madan Mohan he cannot be said to have had the motive to kill Shankar Prasad and, therefore, no intention to cause murder or to cause any injury which may result in death could be inferred. Now, it is the prosecution case that about a week before the incident Sushil, for certain reasons, had given a threat to Madan Mohan to the effect that he would be taught a lesson and according to the prosecution Sushil and the appellant Sarju were lying in wait for Madan, Mohan in the chowk on the day in question with chhuras with the intention of murdering him. The prosecution wants us to infer that these two persons also had the intention of murdering any one who went to the rescue of Madan Mohan. It seems to us that from the facts established it cannot be said that the appellant had the intention of causing the death of Shankar Prasad or of any one who went to Madan Mohan's rescue. If ::: Downloaded on - 15/04/2017 18:43:46 :::HCHP 24 such were his intention then another significant fact would have possibly, though not necessarily, deterred him and that is that Madan Mohan and Shankar Prasad were not the only persons there .
at that time but were accompanied by some other persons. Moreover the incident occurred in broad day light in a chowk which must be a well-frequented area. It is not easy to assume that in such circumstances the appellant could have intended to commit a crime for which the law has provided capital punishment.
10. In this state of the evidence we must hold that the prosecution has not established that the offence committed by the appellant falls squarely under Section 307, I. P. C. In our opinion, it amounts only of to an offence under Section 324, I. P. C."
35. Their lordships of the Hon'ble Supreme Court in the case of Girija Shankar vrs. State of U.P., reported in 2004 Cri. L.J. 1388, rt have held that to justify conviction under S. 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. It has been held as follows:
"12. That brings us to the question regarding the legality of conviction under Section 307 IPC read withSection 34 IPC. PW-3 has sustained, as noted in the injury report, serious injuries on different parts of his body. It has been established by the evidence of PW-3; an injured witness and other eyewitnesses that he was assaulted by the appellant and the other accused persons. Learned counsel for the appellant submitted that the injuries which can be attributed to the appellant were not of very serious nature, and the most serious injury was the one which PW-3 sustained on account of the firing by A-1. We find that PW-3 had sustained 11 injuries. Though injury no.1 was attributed to fire arm, there were two other injuries which were considered to be very serious.
15. When the factual background is considered in the background of true ambit of Section 307, the inevitable conclusion is that the ::: Downloaded on - 15/04/2017 18:43:46 :::HCHP 25 appellant has been rightly convicted under Section 307 read with Section 34 IPC."
.
36. Their lordships of the Hon'ble Supreme Court in the case of R. Prakash vrs. State of Karnataka, reported in (2004) 9 SCC 27, have reiterated that it is not essential that bodily injury capable of causing death should have been inflicted while proving case under of Section 307 IPC. Their lordships have further held that intent coupled with some overt act in execution thereof, is sufficient. Their lordships have held as follows:
rt "9. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overtact in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Sections makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, it is not correct to acquit an accused of the charge under Section 307 IPC merely because the injuries inflicted on the victim were in the nature of a simple hurt."
31. In the instant case, accused Gurjant has also assaulted Naresh Kumar on 27.1.2003. Accused Gurjant and Amrish Rana were bearing grudge against Naresh Kumar since complaint was filed against them. Accused Gurjant had absconded from the police custody while taken to Chandigarh. Accused Amrish Rana and Gurjant were present in the car. They came out and fired at Naresh Kumar near Kanda Jail.::: Downloaded on - 15/04/2017 18:43:46 :::HCHP 26
Accused Amrish and Gurjant were identified by Naresh Kumar. In his statement recorded under Section 154 Cr.P.C., Naresh Kumar has .
mentioned the name of accused Gurjant. He has identified Gurjant and Amrish Rana, since they were also inmates of the Central Jail, where Naresh Kumar was working as warder. Thus, it cannot be said, as argued by Mr. Y.P.S.Dhaulta, Advocate that Naresh Kumar did not identify the of accused. Thus, the conviction of accused under Sections 307, 326, 323, 147 and 148 IPC and under Section 25 of the Arms Act stands proved and is upheld. There is no occasion for this Court to interfere with the well rt reasoned judgment/order the learned trial Court dated 4/10.1.2014.
31. Consequently, there is no merit in this appeal and the same is dismissed.
( Rajiv Sharma ), Judge.
August 10, 2015, ( Sureshwar Thakur ),
(karan) Judge.
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