Madhya Pradesh High Court
Ramdayal vs State Of M.P. on 15 April, 2019
HIGH COURT OF MADHYA PRADESH
1 Cr.A. No. 858/2005
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE ANAND PATHAK
Criminal Appeal No.858/2005
Ramdayal
Versus
State of Madhya Pradesh
Shri S.S. Kushwaha, learned counsel for the appellant.
Shri Sushant Tiwari, learned Public Prosecutor for the respondent-
State.
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Judgment (Pronounced on 15th day of April, 2019) The present appeal under Section 374 of Cr.P.C. has been preferred against the judgment of conviction and order of sentence dated 23/11/2005 passed in Special Trial No.68/2002 by Special Judge (SC & ST ) Act, Guna whereby appellant has been convicted under Section 3(1)(XI) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to undergo one year rigorous imprisonment alongwith fine of Rs.1,000/- with default stipulation.
2. As per the story of the prosecution, Rumalibai w/o Ajay Singh r/o village Kaver, Police Station Banmori filed a complaint on dated 19/01/2002 in respect of incident dated 17/01/2002 on which FIR HIGH COURT OF MADHYA PRADESH 2 Cr.A. No. 858/2005 (Ex.P-1) was registered. It was alleged in the FIR that on 17/01/2002, when her husband went for irrigating the agriculture field and she was alone in her home, two unknown persons riding on motor cycle, came to enquire about her husband and asked for her husband for construction of well and later on, they went back. On the same day, after sometime around 12-1 pm in afternoon when she was working in her home, one male (who visited earlier) came on motorcycle and asked about her husband. He asked the complainant to bring some water for which when she moved inside in her house, then suddenly he made an attempt to outrage her modesty knowing fully well that she is a member of scheduled tribes, on her shout, Longu Bai (PW-2) came and thereafter, accused escaped from the spot.
3. After returning back from the field, complainant informed her husband and thereafter, on next day, her husband enquired about the identity of the accused and came to know that he was Ramdayal s/o Omkar Kirar r/o Jaitpura. On 3rd day, she accompanied her husband and FIR was registered. Investigation was carried out and accused was arrested. Caste certificate of the complainant was obtained thereafter, charge-sheet was filed.
4. Accused abjured his guilt and trial was conducted. It was the defence of the accused that he was falsely implicated because he fixed an amount of Rs.500/- with husband of the prosecutrix for construction of well but later on, her husband asked for Rs.2000/- and HIGH COURT OF MADHYA PRADESH 3 Cr.A. No. 858/2005 therefore, dispute erupted between them and the result is registration of a false case.
5. Trial was conducted and after considering the rival submissions and evidence led by the parties, trial Court convicted the accused as referred about therefore, this appeal has been preferred.
6. Learned counsel appearing for the appellant vehemently submitted that in the present case, appellant was never unknown to the complainant and only on the basis of dock identification at the time of evidence of prosecutrix, accused cannot be implicated. According to him, dock identification is not sufficient that too, after three years in the present case to implicate the appellant. He relied upon the judgments of the Hon'ble Apex Court in the case of Rameshwar Singh Vs. State of J. and K., AIR 1972 SC 102, Kanan and Others Vs. State of Kerala, AIR 1979 SC 1127, State (Delhi Administration) Vs. V.C. Shukla and Another, AIR 1980 SC 1382, State of Maharastra Vs. Sukhdeo Singh and Another, AIR 1992 SC 2100 as well as Dana Yadav alias Dahu and Others Vs. State of Bihar, AIR 2002 SC 3325 and submits that the dock identification is Rule of Prudence and not of Law. Since no Test Identification Parade (hereinafter referred as "TIP") was undertaken by the prosecution earlier to establish the identity of appellant therefore, dock identification after three years is not sufficient to establish the identity of the appellant. While referring the tenor and HIGH COURT OF MADHYA PRADESH 4 Cr.A. No. 858/2005 texture of the prosecution case, wherein prosecutrix was the sole witness and therefore, her testimony deserved to be appreciated with an amount of caution and on the touch stone of other material on record.
7. It is the submission of the counsel for the appellant that Longu Bai (PW-2) was the sister-in-law (Bhabi) of the prosecutrix (PW-1) and her Court statement is not implicative in nature. While relying upon Principle of Best Evidence Proof, as elaborated in the case of Mohanlal Shamji Soni Vs. Union of India and Another, AIR 1991 SC 1346, he submits that Ramcharan was the person who was required to be called as witness by the prosecution to establish the fact about the identity of the appellant because on the fateful day, in first round Ramdayal accompanied Ramcharan to victim's place therefore, Ramcharan was the best evidence available with the prosecution to establish the guilt of accused. In absence of best evidence proof, case of the prosecution is shakened.
8. Tenacity of the arguing counsel for the appellant continues when he submits that on the basis of hearsay evidence, appellant cannot be convicted. Husband of the prosecutrix Ajay Singh (PW-3) on information of her wife (prosecutrix), caused writing of the FIR therefore, he was hearsay evidence/ witness and was not the eye witness therefore, his testimony cannot be relied. He referred the judgment of the Hon'ble Apex Court in the case of Bhagwan HIGH COURT OF MADHYA PRADESH 5 Cr.A. No. 858/2005 Tukaram Dange Vs. State of Maharastra, 2014 (4) SCC 270.
9. The trial Court caused perversity while recording conviction against the appellant whereas defence witness Gajraj Singh (DW-1) categorically suggested that due to enmity, case has been registered whereas trial Court writes in its judgment that no such suggestion has been given to the prosecutrix and her husband, whereas suggestions were given to them, and they denied. Thus, perversity is apparent.
10. Last but not the least, learned counsel for the appellant referred caste certificate of prosecutrix as Ex.P-4 to submit that caste certificate was given by the Sarpanch of the Gram Panchayat but Sarpanch was not the competent authority to issue said caste certificate. Even otherwise, the prosecution ought to have called the Sarpanch to prove the caste of the prosecutrix, but the same has not been done. He seeks acquittal of the appellant. Alternatively it is submitted that appellant already suffered jail sentence of some days therefore, his punishment be reduced to the extent undergone by him.
11. On the other hand, learned Public Prosecutor for the respondent-State opposed the prayer and on the basis of testimony of witness submits that prosecutrix identified the accused atleast in dock therefore, appeal be dismissed. He further raised the point of defective investigation and while relying upon the judgment of the Hon'ble Apex Court in the case of Karnel Singh Vs. State of M.P., (1995) 5 SCC 518 submits that defective investigation by the police cannot be HIGH COURT OF MADHYA PRADESH 6 Cr.A. No. 858/2005 a ground for acquitting the accused because defective investigation itself is not a ground for acquittal, unless prosecution case is established by other cogent evidence. He relied upon the judgment of the Hon'ble Apex Court in the case of Paras Yadav Vs. State of Bihar, AIR 1992 (2) SC 126, State of U.P. Vs. Jagdeo and Others, AIR 2003 SC 660 and Rakesh Kumar Vs. State of Haryana, (2009) 3 SCC (cri) 1243.
12. It is further submitted by counsel for the respondent-State that dock identification is substantive evidence and it is not totally irrelevant and inadmissible and if the witness is trust worthy then his testimony cannot be discarded because of omission to conduct the TIP. He relied upon the judgments of the Hon'ble Apex Court in the case of Jameel Vs. State of Maharashtra, AIR 2007 SC 971, Md. Kalam alias Abdul Kalam Vs. State of Rajasthan, AIR 2008 SC 1813, Ganesh Singh Vs. State of M.P. [ILR] 2009 M.P. 2101 as well as Vutukuru Lakshmaiah Vs. State of Andra Pradesh, 2015 AIR SCW 2741 and prayed for dismissal of the appeal.
13. Heard the learned counsel for the parties at length and perused the record.
14. The present case mainly revolves around the testimony of the prosecutrix and her identification. Prosecutrix in her court statement admits the fact that she did not know the appellant Ramdayal and she never met him before. In the morning appellant Ramdayal alongwith HIGH COURT OF MADHYA PRADESH 7 Cr.A. No. 858/2005 Ramcharan visited the house of the prosecutrix and thereafter mischief as alleged by the prosecutrix has been committed therefore, the testimony of the sole witness i.e. prosecutrix (PW-1) is important. She recognized the appellant after three years in dock before the Court. The said period of three years is sufficiently long to recognize a person. Hon'ble Supreme Court in the case of Dana Yadav alias Dahu (supra) has held that failure to held TIP does not make the evidence of identification in the Court inadmissible rather the same is very much admissible in law, but ordinarily identification of an accused by way of a witness for the first time in Court should not found basis for conviction, the same being from its very nature, inherently of a weak character unless it is corroborated by his previous identification in the TIP or any other evidence. It is explained by the Apex Court that previous identification in the TIP is a check value to the evidence of identification in Court of an accused by a witness and the same is a Rule of Prudence and not Rule of Law.
15. Here in the present case, the accused is not named in the FIR therefore, his identification by witness in Court should be relied upon with caution. In the case of Sukhdeo Singh (supra), the said aspect has been dealt with and while relying upon the judgment of the Apex Court in the case of Kanan (supra), following observation of the Court has been reproduced for better understanding, which reads as under:-
HIGH COURT OF MADHYA PRADESH 8 Cr.A. No. 858/2005 "It is well settled that where a witness identified an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. Parade to test his powers of observations. The idea of holding T.I. Parade under S.9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T.I. Parade is held then it will be wholly unsafe to rely on his testimony regarding the identification of an accused for the first time in Court.
We are in respectful agreement with the aforequoted observations."
16. This fact became more glaring when it is seen that the act of omission of prosecution not to bring Ramcharan into dock which could have been the best possible prosecution witness in the case. In the case of Mohanlal Shamji Soni (supra), the Apex Court has dealt with the said aspect and held as under:-
"It is cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence' to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavourable to HIGH COURT OF MADHYA PRADESH 9 Cr.A. No. 858/2005 the party withholding such evidence, the Court can draw a presumption under illustration (g) to Section 114 of the Evidence Act. In such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice ? It is a well accepted and settled principle that a Court must discharge its statutory "functions whether discretionary or obligatory- according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done."
17. Judgment relied upon by the Hon'ble Apex Court in the case of Chandru @ Chandrasekaran Vs. State rep. By Deputy Superintendent of Police CB CID and Anr., (2019) SCC Online SC 176 wherein while dealing with the law related to circumstantial evidence, best evidence theory has been reiterated. The Apex Court in the discussion of this judgment referred Sir Alfred Wills's Book "Wills on Circumstantial Evidence" (chapter-VI) wherein he laid down the principles for the best of circumstantial evidence.
18. Only on the basis of such testimony of the prosecutrix wherein she identifies the accused after three years in dock it could not be safely inferred that the prosecution has proved the case beyond HIGH COURT OF MADHYA PRADESH 10 Cr.A. No. 858/2005 reasonable doubt. Other witness Longu Bai (PW-2) did not support the story of the prosecution in categorical terms because she reached the spot after accused left the place. A suggestion was given to the said witness regarding previous dispute in relation to money transaction, but she denied. Same suggestion has been given to the prosecutrix and her husband (PW-3) and they denied the said aspect therefore, the trial Court erred when it recorded the discussion of DW- 1 Gajraj Singh that no suggestion was given by the defence for prosecution witness. Infact suggestions were given as referred in the preceding paragraph therefore, finding of the trial Court in para 13 is not supported by the record.
19. Caste certificate (Ex.P-4) was issued by the Sarpanch and therefore, Sarpanch should have been called by the prosecution for ascertaining the caste of the prosecutrix. Even otherwise, authority to issue caste certificate lies with someone else then with Sarpanch and if the prosecution wanted to establish identity/ caste status of the prosecutrix then Sarpanch ought to have been called in the dock therefore, case of the prosecution looses steam because of such omission.
20. In the considered opinion of this Court, prosecution could not prove the case beyond reasonable doubt. Besides that the case is of year 2002 and after judgment of the trial Court, appeal was pending since 2005 therefore, long span of time has passed since then and HIGH COURT OF MADHYA PRADESH 11 Cr.A. No. 858/2005 pendency of the appeal and regular appearance of the appellant itself is a punishment. Specially, when prosecution could not prove the case beyond reasonable doubt. Therefore, benefit of doubt must be given to the accused.
21. Resultantly, appeal stands allowed and judgment of conviction dated 23/11/2005 passed in Special Trial No.68/2002 by Special Judge (SC & ST Act), Guna is hereby set aside. Appellant is already on bail therefore his bail bond stands discharged and appellant is set free.
22. Copy of this order be sent to the trial Court for information and compliance.
23. Appeal stands allowed and disposed of.
(Anand Pathak) Judge vc VARSHA CHATURVEDI 2019.04.16 13:55:50
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