Allahabad High Court
Gulab Chand & Another vs State Of U.P. on 4 April, 2018
Bench: Bala Krishna Narayana, Shailendra Kumar Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved A.F.R. Court No. - 4 Case :- CRIMINAL APPEAL No. - 753 of 1984 Appellant :- Gulab Chand & Another Respondent :- State Of U.P. Counsel for Appellant :- Amar Saran,Alok Kumar Yadav,H.N.Singh Counsel for Respondent :- D.G.A.,A.G.A.,V.K.Shukla Hon'ble Bala Krishna Narayana,J.
Hon'ble Shailendra Kumar Agrawal,J.
(Delivered by Hon'ble Bala Krishna Narayana, J.)
1. This criminal appeal has been preferred by the accused-appellants Gulab Chand (A1) and Ghanshyam (A2) against the judgment and order dated 9.3.1984 passed by Additional Sessions Judge, Gyanpur, Varanasi in S.T. No. 30 of 1983 (State Vs. Gulab Chand and another) by which (A1) Gulab Chand has been convicted and sentenced to imprisonment for life under Section 302 IPC read with Section 34 IPC while (A2) Ghanshyam has been convicted and sentenced under Section 302 IPC simplicitor respectively.
2. Briefly stated the facts of this case are that the deceased Ram Naresh Singh who was working as Jamadar in E.Hill Company, Khamaria for more than 20 years preceding the date of incident, was allotted a residential quarter within the campus of E.Hill company itself. The informant Brijnath Singh (P. W. 1), the real elder brother of the deceased Ram Naresh Singh was residing in his house in Village Tikra, P. S. Mirzamurad, District Varanasi. The mother of the informant Brijnath Singh P. W. 1 and deceased Ram Naresh Singh used to live with Ram Naresh Singh. On 20.9.1979, the date of occurrence, informant Brijnath Singh had come to Khamaria to meet his mother. After staying in the house of the deceased Ram Naresh Singh for sometime, at about 7:30 P.M. on the same day, the informant Brijnath Singh P. W. 1 and Ram Naresh Singh left for market for purchasing some medicines and other items of daily use on a motorcycle which was driven by Ram Naresh Singh while the informant Brijnath Singh P. W. 1 was riding on the pillion. When they reached near the gate of E.Hill company on the western side, Ram Naresh Singh stopped the motorcycle as he wanted to purchase betel. While Ram Naresh Singh remained sitting on the motorcycle with both his feet grounded, Brijnath Singh P. W. 1 got down from the motorcycle and started walking towards the betel shop located on the opposite side of the road. P. W. 1 Brijnath Singh had hardly reached the betel shop, (A1) Gulab Chand who was standing behind a neem tree and who was already known to P. W. 1 Brijnath Singh, exhorted his son (A2) Ghanshyam by shouting loudly "maar do ram naresh sale ko jan se ab kya dekhate ho" and although the informant neither knew his son's name nor he had met him before, he claimed to know him by face, on which Ghanshyam (A2) who was armed with a country made pistol came towards Ram Naresh Singh and fired a shot with his country made pistol at Ram Naresh Singh from behind. The shot so fired by Ghanshyam (A2) hit Ram Naresh Singh on his back and he cried out "bachao ghanshyam ne mujhe maar diya" and on hearing his cry, P. W. 1 Brijnath Singh, P. W. 2 Sheo Bachan Singh and Vindhyachal who were sitting in front of the betel shop ran towards the place of occurrence and tried to apprehend (A1) Gulab Chand and (A2) Ghanshyam but since (A2) Ghanshyam fired another shot, terrified, they did not proceed any further with their pursuit as a result (A1) Gulab Chand and (A2) Ghanshyam made good their escape. Informant Brijnath Singh P. W. 1 and other persons ran towards Ram Naresh Singh and when they came near him; they found Ram Naresh Singh had fallen on the ground along with the motorcycle with one of his leg under the motorcycle and the other over it and he had died on the spot. Thereafter, P. W. 1 Brijnath Singh went to P. S. Aurai and gave a written report of the occurrence Ext. Ka1 which was registered as case crime no. 159, under Section 302 IPC at P. S. Aurai, District Varanasi against the appellants (A1) Gulab Chand and (A2) Ghanshyam. P. W. 1 Brijnath Singh had also stated in the written report that the place of occurrence was illuminated from the light of the three lit electric rods installed in front of the gate of E.Hill company and electric bulbs fitted on the boundary wall of the company. On the basis of the written report Ext. Ka1, chek FIR Ext. Ka2 and relevant G.D. Entry vide rapat no. 29 at 20:30 hours on 20.9.1979 Ext. Ka3 were prepared by P. W. 4 Bahadur Ram. Inquest report Ext. Ka7 and other related documents, letters addressed to the Medical Officer, In-charge, Gyanpur and R.I., challan lash, photo lash Ext. Ka11 to Ext. Ka14 were prepared by I.O. after holding the inquest. The dead body of the deceased was dispatched to the mortuary for conducting postmortem. The postmortem on the dead body of the deceased Ram Naresh Singh was conducted by P. W. 5 Dr. J. S. Pawar who noted following ante mortem injuries on the dead body of Ram Naresh Singh :
Five circular gun shot wounds of entry in an area of 5 cm x 3.5 cm. Each wound measured one centimetre in diameter on upper inter-scapular region of back. No burning or charring present around the wounds. Direction forwards and upwards.
According to P. W. 5 Dr. J.S. Pawar who had conducted postmortem and prepared the postmortem report Ext. Ka6, the death was as a result of bleeding due to gun shot wounds.
3. He also seized an empty cartridge and two tikulis and one cartridge from the spot and prepared the recovery memo Ext. Ka8. The motorcycle which was lying near the dead body of Ram Naresh Singh was also taken into custody by him and given it into the supurdgi of the elder brother of deceased Ram Naresh Singh, P. W. 1 Brijnath Singh, and it's recovery memo Ext. Ka9 was prepared, Bloodstained and plain earth were also recovered from the place of incident and recovery memo Ext. Ka10 was prepared by the I.O. on the spot. Memos of recovery of towel, pair of shoes worn by the deceased Ram Naresh Singh at the time of his death and a lungi were also prepared on the spot and marked as material Ext. 11 to Ext. 14.
4. After completing the investigation, charge-sheet was submitted by the Investigating Officer P. W. 4 Shri Bahadur Ram on 18.10.1979 Ext. Ka5.
5. The case was committed for the trial of the accused to the Court of Additional Sessions Judge, Gyanpur, Varanasi by Munsif Magistrate, Gyanpur by his order dated 31.1.1983. Charge against the accused-appellants was framed on 15.4.1983 under Section 302 read with Section 34 IPC to which the appellants pleaded not guilty and claimed trial.
6. The prosecution in order to establish the guilt of the accused-appellants produced as many as six witnesses of whom P. W. 1 Brijnath Singh, P. W. 2 Sheo Bachan Singh were examined as witnesses of fact while Head Constable Jagarnath Singh P. W. 3, Sri Bahadur Ram, S.O. (I.O. of the case) P. W. 4 , Dr. J.S. Pawar P. W. 5 and Sri Prabhunath Pathak, S.I. P. W. 6 were produced as formal witnesses.
7. After the close of the prosecution evidence, the statements of accused-appellants (A1) Gulab Chand and (A2) Ghanshyam were recorded under Section 313 Cr.P.C. Gulab Chand (A1) stated that he was working as Time keeper in E.Hill company. He recorded the timings of the arrival of the employees of the company. One Jilodhar Singh, an employee of the company who was in the habit of coming late wanted Gulab Chand (A1) not to record the correct time of his arrival in the register to which he did not consent. As a result a quarrel took place between Gulab Chand (A1) and Jilodhar Singh who had started fostering grudge against Gulab Chand (A1) and it was on account of the aforesaid animosity and at his behest he was falsely implicated in the aforesaid case. The deceased Ram Naresh Singh was inspecting the looms and in that connection he generally remained out. Ram Naresh Singh had also obtained a contract for running canteen within the company campus and P. W. 2 Shoe Bachan Singh was working in his canteen and hence he was an interested witness.
8. Ghanshyam (A2) also stated that his implication was on account of enmity.
9. The appellants also examined Shoenath D. W. 1, Brijnath D. W. 2 and Dudhnath D. W. 3 as defence witnesses.
10. The learned Additional Sessions Judge, Gyanpur, Varanasi after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record convicted Gulab Chand (A1) under Section 302 IPC read with Section 34 IPC and Ghanshyam (A2) under Section 302 IPC simplicitor and awarded imprisonment for life to both the appellants.
11. Hence this appeal.
12. Learned counsel for the appellants submitted that some unknown person had shot Ram Naresh Singh dead. The appellants were falsely implicated in the present case at the behest of one Jilodhar Singh who harbored animosity towards Gulab Chand (A1). He next submitted that the incident had taken place in dark and hence there was no possibility of either the informant P. W. 1 Brijnath Singh or the other witnesses present on the spot having identified the culprits. Although in the FIR it was alleged that the accused were identified in the light of the electric rod and bulbs which had been fitted on the boundary wall of the company but no cogent evidence whatsoever has come on record proving that the place of occurrence was sufficiently illuminated to enable the witnesses to identify the accused. Both the witnesses of fact produced during the trial are highly interested witnesses one of them being the elder brother of the deceased and the other deceased's employee and hence it is not at all safe to maintain the conviction of the appellants on the basis of their evidence. He next submitted that as far as Ghanshyam (A2) is concerned, he was neither known to the informant nor the other witnesses previously. There is absolutely no cogent or reliable evidence on record connecting him with the crime in question. The discrepancy with regard to the position in which the dead body of Ram Naresh Singh lay on the ground after being shot as narrated by the informant P. W. 1 Brijnath Singh in the FIR as also in his statement recorded before the Court vis-a-vis the position in which Ram Naresh Singh's dead body was found by the I.O. as noted by him in the inquest report clearly shows that P. W. 1 Brijnath Singh had arrived at the place of occurrence after the incident had taken place and thereafter, the written report of the incident containing a concocted story falsely implicating the appellants was prepared at the behest of Jilodhar Singh, who was his brother-in-law (bahnoi). Neither the recorded conviction of the appellants nor the sentence of life imprisonment awarded to them can be sustained and are liable to be set aside.
13. Per contra Shri J.K. Upadhyaya, learned AGA appearing for the State submitted that although the incident had taken place after sunset but it is proved from the evidence of P. W. 1 Brijnath Singh and P. W. 2 Sheo Bachan Singh that the deceased Ram Naresh Singh was shot by Ghanshyam (A2) on the exhortation of Gulab Chand (A1). The FIR of the incident was lodged promptly within one hour of the occurrence leaving no time for any deliberation or discussion or concoction of a false story. P. W. 1 and P. W. 2, eye-witnesses of the case have fully corroborated the prosecution case as stated in the FIR with regard to all material particulars relating to the time, place and manner of assault and the identity of the perpetrators of the crime. Their evidence is not liable to be disbelieved or thrown out merely on account of there being a minor discrepancy in their testimonies with regard to the position in which the deceased lay on the ground after being shot dead vis-a-vis the position in which the dead body was found lying on the ground by the I.O. as described by him in the inquest report and in his evidence recorded before the trial court. There is no law which says that the evidence of related or interested witnesses is liable to be discarded. A conviction can be based on the basis of a witness who is either related to the deceased or interested, if the Court after cautious appraisal of his evidence finds his testimony to be reliable. This appeal lacks merit and is liable to be dismissed.
14. The only question which arises for our consideration in this appeal is that whether the prosecution has been able to provide it's case against the accused-appellants beyond all reasonable doubts or not.
15. The prosecution produced two witnesses of fact, as already noted earlier, namely P. W. 1 Brijnath Singh and P. W. 2 Sheo Bachan Singh who claim themselves to be the eye-witnesses of the occurrence.
16. P. W. 1 Brijnath Singh in his examination-in-chief deposed that he is the elder brother of the deceased Ram Naresh Singh, he had come on the date of the incident at about 6 P.M. from his village to his brother's house to see his mother who was living with his younger brother Ram Naresh Singh (deceased) at Khamaria. After staying for sometime in the house of Ram Naresh Singh which is within the campus of E.Hill company he left the house of Ram Naresh Singh at 7:30 P.M. on his motorcycle which was driven by deceased Ram Naresh Singh while P. W. 1 Brijnath Singh was riding on the pillion for market to purchase some medicines and other items of daily use. When they reached near the main gate of E.Hill company on the western side, Ram Naresh Singh stopped the motorcycle and asked him to buy betel. He remained sitting on the motorcycle with both his feet grounded while P. W. 1. Brijnath Singh got down from the motorcycle and started walking towards the betel shop located on the other side of the road. He had hardly reached near the betel shop, when he heard Gulab Chand (A1) who was hiding himself behind a neem tree, shouting "maar do ram naresh sale ko jan se ab kya dekhate ho". He further deposed that he knew Gulab Chand (A1) previously as he was also working in the E.Hill company where his brother Ram Naresh Singh was employed and since Ram Naresh Singh was working in the company since a long period of more than 20 years, he while visiting his brother's house had became acquainted with many persons working in the E.Hill company. He also deposed that he did not know Ghanshyam (A2) previously by name, although he knew him by face. Gulab Chand (A1) had accused Ram Naresh of troubling him in the factory and on his exhortation Ghanshyam (A2) who was armed with a country made pistol had fired at Ram Naresh Singh from behind. On being shot, Ram Naresh Singh had cried out "bachaon ghanshyam ne mujhe maar diya". On hearing the hue and cry, he and witnesses Shoe Bachan Singh P. W. 2 and Vindhyachal who were sitting in front of the betel shop ran towards Ram Naresh Singh and the appellants with the object of apprehending them, however, when Ghanshyam (A2) fired again, they got terrified and ran towards north through a Gali adjacent to the shop of Diwakar. Then P. W. 1 Brijnath Singh and the witnesses turned towards Ram Naresh Singh who had fallen on the ground on being shot along with the motorcycle, his one leg was over the motorcycle and the other leg underneath it and he had died on the spot. Thereafter, he went to Ram Naresh Singh's residence, scribed the FIR and went to P. S. Aurai. He also deposed that at the time of incident, the place of occurrence was sufficiently illuminated by the electric tubelight fitted on the gate of E.Hill company, lit electric bulbs affixed on the boundary wall of the company and the light generated by private generator of E.Hill company.
17. P. W.1. Brijnath Singh was cross-examined by the defence counsel extensively and it was endeavoured to extract from him that he was not present at the time of occurrence. The suggestion given by the defence counsel to him that P. W. 1 Brijnath Singh was called subsequently from his village after the incident and he had not seen any occurrence and that the other witnesses Sheo Bachan Singh P. W. 2 was also not there at the time of occurrence but he being in fiduciary relationship with the deceased was nominated as an eye-witness of the occurrence by P. W. 1 Brijnath Singh and forced to give false evidence against the appellants but they denied the aforesaid suggestions.
18. P. W. 2 Sheo Bachan Singh corroborated the evidence of P. W. 1. in his evidence recorded before the trial Court on all material points. A suggestion was given to him by the defence counsel during his cross-examination that he had not seen the occurrence and he was giving false evidence against the appellants on account of his being an employee in the canteen which was run by the deceased Ram Naresh Singh in the campus of the company. The factum of P. W. 2 Sheo Bachan Singh being an employee of deceased Ram Naresh was admitted by him in his cross-examination but he denied that the canteen was being run by the deceased Ram Naresh Singh. Learned counsel for the appellants tried to impress upon us that none of the witnesses were present at the place of occurrence at the time of incident by inviting our attention to a glaring discrepancy in the statements of P. W. 1 Brijnath Singh and P. W. 2 Sheo Bachan Singh on the point of the position in which the dead body of Ram Naresh Singh lay after the incident and it was not disturbed at all vis-a-vis the statement given by P. W. 4, Shri Bahadur Ram, I.O. of the case who had prepared the inquest report of the deceased Ram Naresh Singh during the trial. According to P. W. 6 Prabhunath Pathak, the dead body of deceased Ram Naresh Singh was lying with face upwards and it was covered with a lungi when he had reached the place of occurrence. According to learned counsel for the appellants, his statement shows that the dead body of Ram Naresh Singh was not found in the position as stated by both the prosecution witnesses of fact. Learned counsel for the appellants further submitted that the deposition made by P. W. 6 Prabhunath Pathak regarding the position of the dead body of the deceased found by him on his arrival at the place of occurrence finds further corroboration from the evidence of D. W. 3 Doodhnath who had stated that after the incident, he had reached the place of occurrence on hearing the sound of gun shot and at that time there were complete darkness. He carried a torch with him and noticed in the torch light that Ram Naresh Singh was lying dead and intimated his relations and pattidars namely Jilodhar Singh, Mahendra Singh and others who reached the spot soon and took the dead body of deceased Ram Naresh Singh to Dr. Rajan of E.Hill company who was residing in the campus of the company but he declared him dead and asked them to take away the dead body of Ram Naresh Singh and keep it at the place from where they had brought it, on which they placed it at the place of incident. He next submitted that the discrepancy with regard to the position in which the dead body of the deceased was found lying on the spot as described by P. W. 1 and P. W. 2 in their statements vis-a-vis the statement of P. W. 6 Prabhunath Pathak and D. W. 1 Doodhnath which the prosecution has miserably failed to explain is an indicator of the fact that neither of the two so-called eye-witnesses had seen the occurrence.
19. Upon perusal of record, we find that the discrepancy with regard to the position in which the dead body of Ram Naresh Singh lay with one of his feet under the motorcycle and the other over it as stated in the FIR and by the two witnesses of fact P. W. 1 Brijnath Singh and P. W. 2 Sheo Bachan Singh and their having remained emphatic throughout the recording of their testimonies that the dead body of Ram Naresh Singh was not disturbed by anyone at all and it kept lying in the same position in which Ram Naresh Singh had fallen on the ground after being shot and the position in which the dead body of Ram Naresh Singh was found by P. W. 6 Prabhunath Pathak on his arrival at the place of incident as deposed by him in his examination-in-chief on page 21 of the paper book indicates that the dead body of Ram Naresh Singh was lying with face upwards and it was covered with a lungi, which shows that the dead body of Ram Naresh Singh was not found in the same position as deposed by both the prosecution witnesses which creates a dent in the credibility of the claim of P. W. 1 Brijnath Singh and P. W. 2 Sheo Bachan Singh of their being the eye-witnesses of the occurrence. More so when no explanation whatsoever has come forth from the side of the prosecution to explain the aforesaid discrepancy.
20. With regard to the source of light at the place of occurrence at the time of the incident, learned counsel for the appellants has submitted that although P. W. 1 Brijnath Singh and P. W. 2 Sheo Bachan Singh have deposed that the place of occurrence was illuminated by the light emanating from lit electric rods and electric bulbs affixed on the boundary wall of the company generated by a generator but the aforesaid fact does not find corroboration from the site plan prepared by the Investigating Officer. From the perusal of the site plan Ext. Ka4, it transpires that the same does not mention that any electric tubelight was installed on the main gate of E.Hill company. The site plan takes note of one bulb alone which was affixed on the boundary wall of the company towards west of the gate near the place of occurrence but no mention of existence of any source of light either on the main gate of E.Hill company or at any place near the crime scene has been made in the site plan. Even the Presiding Officer who had inspected the spot on the application of the defence found only one electric tubelight installed on the main gate of E.Hill company. The defence had produced one Doodhnath D. W. 3 who deposed that on the date of incident no tubelight or bulb existed at the main gate of E.Hill company and there was complete darkness, although one tubelight was fitted on the main gate of E.Hill company after one year of the occurrence. There were no bulbs on the boundary wall either on the date of incident or on the date on which his evidence was recorded. We do not find from the evidence of P. W. 1 Brijnath Singh and P. W. 2 Sheo Bachan Singh that the place of occurrence was illuminated in the manner as described by them in their evidence. However, from the overall evidence adduced by the parties on the point of availability of light at the place of occurrence at the time of incident, we find that only one bulb was affixed on the boundary wall of the company towards the west of the second gate near the place of occurrence.
21. However, the question which has engaged our anxious consideration is that even if it is assumed for the sake of arguments that the prosecution has been able to prove the complicity of (A1) Gulab Chand in the commission of the crime by leading cogent and reliable evidence whether the prosecution has been able to establish by any reliable evidence that the person who had shot Ram Naresh Singh on the exhortation of Gulab Chand (A1) was Ghanshyam (A2) son of Gulab Chand (A1) or some other person. It is undisputed case of the prosecution that although Gulab Chand (A1) was known to both the witnesses previously but Ghanshyam (A2) was not known to either of the two witnesses of fact, although they claimed to have seen him before. The evidence on the basis of which the prosecution tried to prove that the person who had shot the deceased from behind was Ghanshyam (A2) son of Gulab Chand (A1) are the last words allegedly uttered by the deceased after he was shot from behind before he fell on the ground and died "bachaon ghanshyam ne mujhe maar diya" both the witnesses have deposed in their examination-in-chief that those were the last words uttered by the deceased Ram Naresh Singh before he died, attributing the role of firing to (A2) Ghanshyam and his identification by the witnesses of fact in the Court. The specific case of the prosecution with regard to the manner of assault is that while Gulab Chand (A1) who was hiding under the neem tree, on noticing Ram Naresh Singh sitting on his motorcycle with both his feet grounded exhorted his accompalice to kill Ram Naresh Singh as he was causing lot of trouble to him on which his partner in crime walked towards Ram Naresh Singh and shot him from behind. None of the witnesses have deposed that on being shot from behind, deceased Ram Naresh Singh who was sitting on the motorcycle with his feet grounded had turned around and after having a look at his assailant he had identified him as Ghanshyam (A2).
22. The question which next arises is that how could Ram Naresh Singh have identified his aggressor without turning around his head as he was shot from behind. Thus, the last words uttered by the deceased before he died was to identify his assailant as alleged by the two witnesses of fact in our opinion have been concocted by them.
23. We have very carefully gone through the statements of P. W. 1 and P. W. 2 but we do not find that Ghanshyam (A2) was identified by P. W. 1 Brijnath Singh in the court as the same person who had shot Ram Naresh Singh. The identification of Ghanshyam (A2) by P. W. 2 Sheo Bachan Singh for the first time in the Court as the person who had shot Ram Naresh Singh on the exhortation of Gulab Chand (A1), in the face of the admitted factual position that the identification of Ghanshyam (A2) in the Court by P. W. 2 Sheo Bachan Singh was not preceded by holding of any test identification parade during the investigation which was fatal to the prosecution case and the same was of no legal consequence specially in view of the candid admission of the two witnesses of fact that Ghanshyam (A2) was not known to them previously but they knew him by face. Moreover, from the evidence on record, it transpires that the place of occurrence was not sufficiently illuminated and the witnesses did not have an opportunity of seeing the accused for more than a few seconds. In such a situation no reliance could be placed on the identification of the accused by witness in the Court alone.
The issue whether the identification of an accused by the witness for the first time in the Court without being preceded by any test identification parade has any evidentiary value or not has been examined by the Apex Court on several occasions.
In Suresh Chandra Bahri vs. State of Bihar : 1995 Supp (1) SCC 80 this Court held that it is well settled that substantive evidence of the witness is his evidence in the court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of great importance because it furnishes an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. From this point of view it is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused. It is in adopting this course alone that justice and fair play can be assured both to the accused as well as to the prosecution. Thereafter this Court observed :-
"But the position may be different when the accused or a culprit who stands trial had been seen not once but for quite a number of times at different point of time and places which fact may do away with the necessity of a TI parade."
In State of Uttar Pradesh vs. Boota Singh and others : (1979) 1 SCC 31 this Court observed that the evidence of identification becomes stronger if the witness has an opportunity of seeing the accused not for a few minutes but for some length of time, in broad day light, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes.
In Ramanbhai Naranbhai Patel and others vs. State of Gujarat : (2000) 1 SCC 358 after considering the earlier decisions this Court observed :-
"It becomes at once clear that the aforesaid observations were made in the light of the peculiar facts and circumstances wherein the police is said to have given the names of the accused to the witnesses. Under these circumstances, identification of such a named accused only in the Court when the accused was not known earlier to the witness had to be treated as valueless. The said decision, in turn, relied upon an earlier decision of this Court in the case of State (Delhi Admn.) vs. V.C. Shukla wherein also Fazal Ali, J. speaking for a three-Jude Bench made similar observations in this regard. In that case the evidence of the witness in the Court and his identifying the accused only in the Court without previous identification parade was found to be a valueless exercise. The observations made therein were confined to the nature of the evidence deposed to by the said eyewitnesses. It, therefore, cannot be held, as tried to be submitted by learned counsel for the appellants, that in the absence of a test identification parade, the evidence of an eyewitness identifying the accused would become inadmissible or totally useless ; whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case. It is, of course, true as submitted by learned counsel for the appellants that the later decisions of this Court in the case of Rajesh Govind Jagesha vs. State of Maharashtra and State of H.P. vs. Lekh Raj had not considered the aforesaid three-Judge Bench decisions of this Court. However, in our view, the ratio of the aforesaid later decisions of this Court cannot be said to be running counter to what is decided by the earlier three-Judge Bench judgments on the facts and circumstances examined by the Court while rendering these decisions. But even assuming as submitted by learned counsel for the appellants that the evidence of these two injured witnesses i.e. Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai identifying the accused in the Court may be treated to be of no assistance to the prosecution, the fact remains that these eyewitnesses were seriously injured and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well remain imprinted in their minds especially when they were assaulted in broad daylight. They could not be said to be interested in roping in innocent persons by shielding the real accused who had assaulted them."
Although the Apex court in the case of Malkhan Singh and others Versus State of Madhya Pradesh (2003) 5 SCC 746 had reiterated that the evidence of identification in Court is a substantive evidence but the Apex Court in para 7 and 10 of the same judgement has observed as hereunder:
7. It is trite to say that the substantive evidence is the 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.............
10. It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in court.
24. The issue which next arises is that since we have come to the conclusion that the prosecution has not been able to prove it's case against (A2) Ghanshyam beyond all reasonable doubts, whether the conviction of the Ghanshyam (A2) recorded by the trial court under Section 302 IPC by taking aid of Section 34 IPC can be maintained, specially in view of the specific case of the prosecution that only two persons had participated in the offence namely Gulab Chand (A1) and Ghanshyam (A2) and there being no evidence or suggestion indicating that apart from the two named accused any other person had participated in the offence. While examining an identical issue, the Apex Court in the case of Krishna Govind Patil Versus State of Maharashatra AIR 1963 SC 1413 in its paragraphs 6, 7 and 8 has held as hereunder:
(6) Learned counsel for the respondent counters this argument by stating that though the charge as well as the evidence was directed against the 4 named accused, a court could come to the conclusion that 3 of the 4 named accused are not identified but more than one had taken part in the commission of the offence and that in the present case on a fair reading of the entire judgment we should hold that the High Court found that though accused 1, 3 and 4 were not identified, 3 unidentified persons must have taken part in the murder. Section 34 of the Indian Penal Code reads :
"When a criminal act is done by several per- sons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
It is well settled that common intention within the meaning of the section implied a pre-arranged plan and the criminal act was done pursuant to the prearranged plan. The said plan may also develop on the spot during the course of the commission of the offence; but the crucial circumstance is that the said plan must precede the act constituting the offence. If that be so, before a court can convict a person under Section 302, read with Section 34, of the Indian Penal Code, it should come to a definite conclusion that .the said person, had a prior concert with one or more other persons, named or unnamed, for committing the said offence. A few illustrations will bring out the impact of Section 34 on different situations.
(1) A, B, C and D are charged under Section 302, read with Section 34, of the Indian Penal Code, for committing the murder of E. The evidence is directed to establish that the said four persons have taken part in the murder.
(2) A, B, C and D and unnamed others are charged under the said sections. But evidence is adduced to prove that the said persons, along with others, named or unnamed, participated jointly in the commission of that offence.
(3) A, B, C and D are charged under the said sections. But the evidence is directed to prove that A, B, C and D, along with 3 others, have jointly committed the offence.
As regards the third illustration, a Court is certainly entitled to come to the conclusion that one of the, named accused is guilty of murder under Section 302, read with Section 34, of the Indian Penal Code, though the other three named accused are acquitted, if it accepts the evidence that the said accused acted in concert along with persons, named or unnamed, other than those acquitted, in the commission of the offence. In the second illustration, the Court can come to the same conclusion and convict one of the named accused if it is satisfied that no prejudice has been caused to the accused by the defect in the charge. But in the first illustration the Court certainly can convict two or more of the named accused if it accepts the evidence that they acted conjointly in committing the offence. But what is the position if the Court acquits 3 of the 4 accused either because it rejects the prosecution evidence or because it gives the benefit of doubt to the said accused ? Can it hold, in the absence of a charge as well as evidence', that though the three accused are acquitted, some other unidentified persons acted conjointly along with one of the named persons ? If the Court could do so, it would be making out a new case for. the prosecution : it would be deciding contrary to the evidence adduced in the case. A Court cannot obviously make out a case for the prosecution which is not disclosed either in the charge or in regard to which there is no basis in the evidence. There must be some foundation in the evidence that persons other than those named have taken part in the commission of the offence and if there is such a basis the case will be covered by the third illustration.
(7) In support of the contention that a Court, even in the first illustration, can acquit 3 of the 4 accused named in the charge on the ground that their identity has not been established, and convict one of them on the ground that more than one took part in the commission of the offence, reliance is placed upon the decision of this Court in Mohan Singh v. State of Punjab AIR 1963 SC 174 at page 179. There, the appellants, along with three others, were charged with having committed offence under Section 302, read with Section 149, as well as Section 323, read with Section 149 of the Indian Penal Code. The Sessions judge acquitted two of them, with the result 3 of them were convicted. One of the accused was convicted under Section 302 and Section 147 and two of the accused were convicted under Section 302, read with Section 149 and Section 147, of the Indian Penal Code. The High Court confirmed their convictions. On appeal by special leave to this Court, two of the accused convicted under Section 302, read with Sections 149 and 147, of the Indian Penal Code, contended, inter alia, that as two of the five accused were acquitted, their conviction under Section 302, read with Sections 149 and 147, was bad in law, This Court held on the evidence that the said two accused had done the act pursuant to a pre-arranged plan and therefore they could be convicted under Section 302, read with Section 34, of the Indian Penal Code. But in the course of the judgment different situations that might arise in the context of the question now raised were noticed. Adverting to one of the situations similar to that now before us, this Court observed :
"Cases may also arise where in the charge, the prosecution names five or more persons and alleges that they constituted an unlawful assembly. In such cases, if both the charge and the evidence are confined to the persons named in the charge and out of the persons so named two or more are acquitted leaving before the court less than five persons to be tried, then Section 149 cannot be invoked. Even in such cases, it is possible that though the charge names five or more persons as composing an unlawful assembly, evidence may nevertheless show that the unlawful assembly consisted of some other persons as well who were not identified and so not named. In such cases, either the trial court or even the High Court in appeal may be able to come to the conclusion that the acquittal of some of the persons named in the charge and tried will not necessarily displace the charge under section 149 because along with the two or three persons convicted were others who composed the unlawful assembly but who have not been identified and so have not been named. In such cases, the acquittal of one or more persons named in the charge does not -affect the validity of the charge under section 149 because on the evidence the court of facts is able to reach the conclusion that -the persons composing the unlawful assembly nevertheless were five or more than five. It is true that in the last category of cases, the court will have to be very careful in reaching the said conclusion. But there is no legal bar which prevents the court from reaching such a conclusion."
It will be seen from the said observations that this Court was visualizing a case where there was evidence on the record from which the court can come to such a conclusion. It may be that the charge discloses only named persons; it may also be that the prosecution witnesses named only the said accused; but there may be other evidence, such as that given by the court-witnesses, defence witnesses or circumstantial pieces of evidence, which may disclose the existence of named or unnamed persons, other than those charged or deposed to by- the prosecution witnesses, and the court, on the' basis of the said evidence, may come to the conclusion that others, named or unnamed, acted conjointly along with one of the accused charged. But such a conclusion is really based on evidence. The observations of this Court really apply to a case covered by the third illustration given by us.
(8) But the present case falls outside the said three illustrations. The High Court gave conflicting findings. While it acquitted accused 1, 3 and 4 under Section 302, read with Section 34 of the Indian Penal Code, it convicted accused 2 under Section 302, read with Section 34, of the said Code, for having committed the offence jointly with the acquitted persons. That is a legally impossible position. When accused were acquitted either on the ground that the evidence was not acceptable or by giving benefit of doubt to them, the result in law would be the same : it would mean that they did not take part in the offence. The effect of the acquittal of accused 1, 3 and 4 is that they did not conjointly act with accused 2 in committing the murder. If they did not act conjointly with accused 2, accused 2 could not have acted conjointly with them. Realizing this mutually destructive findings of the High Court, learned counsel for the State attempted to sustain the findings of the High Court by persuading us to hold that if the said finding was read in the context of the whole judgment, it would be clear that the learned judges meant to hold that persons other than the acquitted accused conjointly acted with the convicted accused. We have gone through the entire judgement carefully with the learned counsel. But the observations of the learned judges ;is regards the "'other participants" in the Grime must in the context refer only to the "'one or other of the said three acquitted accused participated in the offence committed by accused 2. There is not a single observation in the judgment to indicate that persons other than the said accused participated in the offence, nor is there any evidence in that regard. We, therefore, hold that the judgment of the High Court cannot stand. We are satisfied that on the findings arrived at by the High Court, the conviction of accused 2 is clearly wrong.
25. Thus, in view of the law propounded by the Apex Court in the case of Krishna Govind Patil (supra), the recorded conviction of Gulab Chand (A1) under Section 302 read with Section 34 IPC cannot be maintained and he is also entitled to acquittal.
26. For the aforesaid reasons, this appeal succeeds and is allowed. The impugned judgment and order dated 9.3.1984 passed by Additional Sessions Judge, Gyanpur, Varanasi in S.T. No. 30 of 1983 (State Vs. Gulab Chand and another) are hereby set aside. The appellants are acquitted of all the charges framed against them. The appellants are on bail. They need not surrender. Their bail bonds are cancelled and their sureties discharged.
27. However, keeping in view the provisions of Section 437-A Cr.P.C., appellants are directed to forthwith furnish a personal bond in the sum of Rs. One lakh and two reliable sureties in the like amount before the trial Court, (which shall be effective for a period of six months) to the effect that in the event of filing of Special Leave Petition against the Instant Judgment or for grant of leave, the appellants on receipt of notice thereof shall appear berfore the Hon'ble Supreme Court.
Order Date:- 4.4.2018 SA