Rajasthan High Court - Jaipur
Raju Alias Rajendra Prasad And Etc. Etc. vs State Of Rajasthan on 24 January, 1995
Equivalent citations: 1996CRILJ1951
Author: V.G. Palshikar
Bench: V.G. Palshikar
JUDGMENT B.R. Arora, J.
1. These nine appeals are directed against the judgment dated 31-8-87, passed by the Additional District and Sessions Judge, Nagaur, by which the learned Additional Sessions Judge convicted and sentenced the accused-appellants for the offences under Sections 460, 396, 395, 397 and 307/34 I.P.C. As all these nine appeals relate to the same incident, therefore, they are being disposed of by this common judgment.
2. Appellants Raju alias Rajendra Prasad, Rajveer, Karan Singh, Balveer Singh, Virendra Singh, Lohre and Murari, alongwith Bhera Ram and Ram Mohan were tried by the learned Additional Sessions Judge for the offences under Sections 460, 396, 395, 397, 304/34 and 120B, I.P.C. The case of the prosecution is that on 29-10-83, P. W. 4 Hanwant Singh was sitting in his fortress situated in village Dugholi. At that time Prahlad Singh, Nathu Singh, Ganpat Singh and Bal Singh were also, sitting with him. Nathu Singh, Bal Singh and Ganpat Dass had come to enquire about the health of Hanwant Singh as in those days he was not keeping the good health. Prahlad Singh was living with Hanwant Singh in the fortress. Bal Singh went to make the call of the nature and in the meanwhile seven-eight persons, armed with guns and country made pistols etc. entered in the room. One of them enquired, "Who is the Thakur", whereupon Hanwant Singh replied that he is the Thakur. Accused Virendra Singh started giving beatings to Hanwant Singh with a Chain. Nathu Singh and Ganpat Singh tried to intervene but they were threatened and put at the gun point. The accused thereafter broke the latches of the Almirahs and took-away the guns and cash lying therein. The accused, also, broke the upper almirah and took away fifteen bundles of Biris and four packets of Agarbaties and put them in their pockets and threw the other goods on the floor. Thereafter three accused remained there to keep a watch on them and two-three accused went into the other room as well as in the upper Hall and ransacked the whole house, broke open the doors of the almirahs, took-away the attache, also, and broke the locks of the attachee and the boxes and took away gold and silver articles and jewelleries and a cash of Rs. 100/ -. They, also, took-away gold Zumeries Pair, one Topus, gold chain with locket, one Madaliya of gold, Paijebs (big and small), silver Kadlas etc. P. W. 7 Man Singh and P. W. 8 Bhanwar Singh had come earlier and were repairing the electric fan in another room. When they were repairing the electric fan they heard the noise in the Drawing room and when they peeped in that room, from where the noise was coming, they saw the accused giving beatings to Thakur Sahib. Man Singh and Bhanwar Singh, threatened of the incident, left the house from the Western-side door of the house. Man Singh went to the shop of Tulsi Ram and informed Ram Dhan, Sawant Ram, Tulsi Ram, Jeeta and ten-fifteen other persons sitting there that dacoits had come in the fortress. Tulsi Ram asked to collect the villagers and suggested that they will collectively go to the fortress but Ramdhan and Sawant Ram asked who was going to kill them and they proceeded towards the fortress. Thereafter 25-30 more persons collected near the shop of Tulsi Ram and Man Singh, also went with them towards the fortress. When they reached near the Southern corner of the fortress they heard the sound of firing. The villagers, on hearing the sound of fire, ran away. P. W. 8 Bhanwar Singh came out of the fortress from the Western side with Man Singh and went towards the shop of Nathu and informed the villagers that the dacoits had come in the 'Garh' and are beating Thakur Sahib. Thereafter Sawanta Ram and Ram Deen ran towards the fortress and he, also, followed them and when they reached near the corner they heard the sound of firing. On seeing the firing he, also, ran away along with the villagers. Though all other accused went inside the fortress and ransacked the house but two persons remained at the main gate to keep a watch. When Sawanta Ram and Ramdeen reached near the main gate, these two accused, who were keeping watch on the main gate, alerted them not to proceed further and Raju Singh fired towards Sawanta Ram and Ramdeen. The fire, made by Raju, hit Sawanta Ram. The other accused fired on Ramdeen, which hit him on his stomach and on receiving the injury Ramdeen fell down on the ground and breathed his last. Mohan Ram and Sawant Ram dragged Ramdeen. In the meantime all the accused came out from the fortress and thereafter went towards the Northern side. P. W. 20. Madhuraj Singh, who is the son of Hanwant Singh, was in his room and was changing his clothes. When he heard the sound of firing, he tried to see from the window of his room: what was happening in the drawing room and saw eight-ten strangers in the room who were armed with guns and chains and were making enquiry from his father and at that time the locks of the almirahs were broken. He immediately left the house from the back door and went to Police Station, Jayal, in a bus and reported the matter to the police. At the time of the incident, Yuvraj Singh - the other son of Hanwant Singh - was, also, in his room and Smt. Shanti Devi, the servant, was, also, in the internal side of the fortress called "Jananakhana". They had, also, seen the accused as well as the incident. The prosecution, in support of its case, examined twenty-eight witnesses. The accused did not examine any witness in their defence. The learned trial Court after trial, acquitted accused Bhera Ram by giving him the benefit of doubt but convicted accused-appellants and Ram Mohan for the offences under Sections 460, 396, 395, 397 and 307/34 I.P.C. and sentenced each of them to undergo imprisonment for life and a fine of Rs. 2,000/- each and in default of payment of fine further to undergo two month's rigorous imprisonment for the offence under Section 460 I.P.C; imprisonment for life and a fine of Rs. 2,000/- each and in default of payment of fine further to undergo two month's rigorous imprisonment for the offence under Section 396 I.P.C; imprisonment for life and a fine of Rs. 2,000/- each and in default of payment of fine further to undergo two months' rigorous imprisonment for the offence under Section 395 I.P.C; five years' rigorous imprisonment and a fine of Rs. 1,000/- each and in default of payment of fine further to undergo one month's rigorous imprisonment for the offence under Section 397 I.P.C. and imprisonment for life and a fine of Rs. 2,000/- each and in default of payment of fine further to undergo two months' rigorous imprisonment for the offence under Section 307/34 I.P.C. All the substantive sentences were directed to run concurrently. It is against this judgment dated 31-8-87, convicting and sentencing the accused that the appellants have preferred these nine appeals. Accused Ram Mohan, also, preferred an appeal which was registered as D.B. Criminal Appeal No. 398 of 1987, but during the pendency of the appeal he breathed his last and, therefore, his appeal was dismissed on 23-8-93, as it stood abated.
3. It is contended by the learned counsel for the appellants that (i) in the FIR., lodged at Police Station, Jayal, the features of the accused or their identification marks were not given and, therefore, it was not possible for any human-being to remember the features of the accused after a long lapse of time during the identification parade and there was every likelihood of committing a mistake by the witnesses in the identification and in the absence of any particular features and identification marks of the accused it is unsafe to convict the accused-appellants for such serious offences on the basis of the identification parade; (ii) during the identification parade neither the names of the persons, who were mixed with the accused at the time of the identification parade, have been given nor it has been shown that what precautions were taken by the learned Magistrate at the time of holding the identification parade and the accused were shown to the witnesses at the Police Station before the identification parade was held and in the Court accused Virendra Singh was identified only by P. W. 4 Hanwant Singh and no other witness has identified this accused; (iii) Bal Singh and Madhuraj Singh are not the reliable witnesses; (iv) the recoveries have been made from the jungle and not from the accused-appellants; and (iv) accused Balveer Singh has the marks of small-pox on his face and accused Rajveer Singh has a wink in his eye and the persons similar to them were not mixed during the identification parade and looking to these infirmities the appellants deserve to be acquitted. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below.
4. We have considered the submissions made by the learned counsel for the parties.
5. P. W. 3, Bal Singh, P. W. 4, Hanwant Singh, P. W. 6, Prahlad Singh, P. W. 9, Ganpat Dass and P. W. 12, Nathu Singh were sitting in the drawing room of the fortress of Hanwant Singh when the accused came there. They ransacked the house. There was a light in the room and these witnesses had ample time and opportunity to see these accused persons with their naked eyes. The accused were not with muffled faces. Sufficient time was taken by the accused in ransacking the house. These witnesses had seen the accused from a very close proximity. They have the structures of the accused in their minds and rightly identified the appellants during the identification parade held by P. W. 16 Mr Ayyaz Mohammed - the Munsif and Judicial Magistrate, Nagaur. P. W. 16. Mr. Ayyaz Mohammed has stated that accused Raju was correctly identified by Sanwta Ram, Hanwant Singh, Yuvraj Singh and Bal Singh; accused Rajveer Singh was identified by Hanwant Singh. Prahlad Singh. Nathu Singh, Ganpat Dass and Yuvraj Singh; accused Virendra Singh and Balveer Singh were identified by Hanwant Singh, Prahlad Singh, Nathu Singh, Ganpat Dass, Yuvraj Singh, Bal Singh and Madhuraj Singh; accused Lohre was correctly identified by Hanwant Singh, Prahlad Singh, Nathu Singh, Ganpat Dass, Yuvraj Singh and Bal Singh; accused Ram Mohan was correctly identified by Madhuraj Singh, Hanwant Singh, Bal Singh, Ganpat Dass, Yuvraj Singh and Bhanwar Singh and accused Murari was correctly identified by Madhuraj Singh, Hanwant Singh and Yuvraj Singh. The accused have, also, been identified by these witnesses in the trial Court during the trial. Merely because the description of the dacoits have not been given in the FIR., the evidence of these witnesses, who were admittedly present there when the incident took place and had ample opportunity to see the accused and had seen them, identified them during the trial as well as during the identification parade held by the Magistrate, cannot be disbelieved. Even otherwise, Madhuraj Singh had seen the incident from the window of his room and immediately left the place and proceeded towards Police Station, Jayal and immediately lodged the report and the police, after registering the report, proceeded towards the place of the incident. The dacoity took place on 29-10-83 and the identification parade was held on 11-11-83, i.e., only after twelve days of the incident and the memory of the incident was fresh in the minds of these witnesses and, therefore, there was every possibility of keeping in mind the particulars of the health, structure etc. of the dacoits. These witnesses, in their statements recorded under Section 161 Cr.P.C., have clearly stated that they had properly seen the miscreants and would be able to identify them if they are shown to them. They had opportunity to see the faces and the features of the miscreants and to keep them in their mind and, therefore, the identification of the accused by these witnesses during the identification parade as well as in the Court during the trial, cannot be said to be unreliable. These witnesses had seen the accused from a very close proximity and remembered their features and identified them correctly and, therefore, their evidence inspires confidence. The evidence of these witnesses and their identifying the accused in the trial Court finds corroboration from the identification parade held by P. W. 16 Ayyaz Mohammed. The contention, raised by the learned counsel for the appellants, is, therefore, devoid of any force.
6. The next contention, raised by the learned counsel for the appellants, is that what precautions have been taken by the learned Magistrate in conducting the identification parade, have not been mentioned in the Memos prepared by him and the names of the persons, who were mixed with the accused, have not been shown by him in the Memo relating to the identification parade. P. W. 16 Mr. Ayyaz Mohammed, the Munsif and Judicial Magistrate, Nagaur, has stated that he conducted the identification parade in the District Jail, Nagaur, and mixed eight convicts with each of the accused while conducting their identification parade. The eight convicts of the identifical structure, size and health were mixed with the accused and, thus, he followed all the necessary Instructions in connection with the Identification Parade. All necessary precautions were taken by the learned Magistrate in conducting the identification parade. Learned counsel for the appellants have not been able to show any infirmity in the identification parade held by the learned Magistrate. The identification of the accused were made in accordance with the law and there is no infirmity in the identification parade held by the Magistrate. Merely because the names of the persons mixed with the accused have not been given, it will not vitiate the identification parade unless some basic infirmity is pointed-out.
It is true that no persons having a wink in his eye and having the marks of small-pox on his face, were mixed with the accused as no such persons were available in the District Jail, Nagaur, but merely on this count, the identification parade will not be vitiated.
7. The next contention, raised by the learned counsel for the appellants is that appellant Virendra Singh has been identified in the Court only by Hanwant Singh and not by any other witness. The dacoity took place in the fortress of Hanwant Singh. Accused Virendra Singh gave beatings to Hanwant Singh by a chain. He was in the close proximity of Hanwant Singh and this witness had ample opportunity to see this accused and to remember his features. He rightly identified this accused Merely because the other witnesses have not identified this accused in the Court, the evidence of P. W. 4 Hanwant Singh cannot be rejected. He is a truthful witness and has rightly identified accused Virendra Singh.
8. The next contention, raised by the learned counsel for the appellants is that P. W. 3 Bal Singh and P. W. 20 Madhuraj Singh are not reliable witnesses and on the basis of their evidence, no conviction of the accused can be based. P. W. 3 Bal Singh was with Hanwant Singh. He left the place to meet the call of the nature sometime before the accused came and returned after sometime. We have gone-through the statement of these witnesses. A lengthy cross-examination has been conducted on these two witnesses but nothing could be elicited which could make their evidence unreliable. The testimony of these witnesses remained unshaken in the cross-examination. We are of the opinion that both these witnesses are truthful and they were present at the scene of the occurrence when the incident took place. P. W. 3 was with Hanwant Singh and had gone to meet the call of the nature, returned after sometime and had seen the occurrence within the room as well as out-side the room. P. W. 20 Madhuraj Singh heard the sound of gun-fire and immediately left the house to lodge the report. The evidence of both these witnesses and that of the other eye-witnesses of the occurrence, viz., P. W. 4 Hanwant Singh, P. W. 6 Prahlad Singh, P. W. 9 Ganpat Dass, P. W. 10, Sawanta Ram (who is an eye witness of the second incident), P. W. 12 Nathu Singh, P. W. 18 Hari Singh (a witness to the second incident), thus, inspires confidence. They are the witnesses of sterling worth and the learned lower Court committed no illegality in placing reliance over the statements of these witnesses.
9. The next contention, raised by the learned counsel for the appellants is that there are material contradictions in the statements of the prosecution witness which makes them fully unreliable and on the basis of the evidence of these witnesses, no conviction can be based. We have gone-through the statements of all the prosecution witnesses. After going-through the statements of these witnesses we are of the opinion that there are no material contradictions in the statements of the prosecution witnesses which may make their evidence untrustworthy and their evidence thus inspires confidence.
10. The last contention, raised by the learned counsel for the appellants is that the recoveries were not made on the information and at the instance of the accused but they have been made from the open places accessible to all. This contention, raised by the learned counsel for the appellants, is, also, devoid of any force. The arrests of the accused were made in the presence of P. W. 5 Laxman Singh and P. W. 14 Moti Singh. The recoveries were, also, made in their presence. From the evidence of these two witnesses and that of P. W. 26 Chain Singh, S.H.O., who was the investigating officer, it is clear that the recoveries were made on the informations and at the instance of the accused. The recoveries made in the presence of these witnesses, thus, inspire confidence. No illegality has been pointed-out by the learned counsel for the appellants how the accused-appellants are not connected with these recoveries.
11. The prosecution has, therefore, been able to prove the case against the accused-appellants beyond reasonable manner of doubt and we see no infirmity in the judgment passed by the learned lower Court. The accused-appellants were rightly convicted and sentenced for the aforesaid offences by the learned trial Court.
12. In the result, we do not find any merit in these nine appeals and the same are hereby dismissed.