Rajasthan High Court - Jaipur
Shabbir And Ors. vs State Of Rajasthan on 6 August, 2007
Equivalent citations: RLW2008(1)RAJ594
Author: Guman Singh
Bench: Guman Singh
JUDGMENT Guman Singh, J.
1. In these two appeals, appellants have challenged the judgment dated April 2, 2003 of the learned Sessions Judge, Karauli, whereby appellants Shabbir and Saheed @ Saeeyo @ Tonta were convicted and sentenced as under:
Under Section 302/34 IPC, to suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months.
Under Section 392 IPC, to suffer rigorous imprisonment for 5 years and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months.
Under Section 460 IPC, to suffer rigorous imprisonment for 7 years and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months.
All the sentences were ordered to run concurrently.
2. According to the prosecution case, informant Gulab Singh Rajput R/o Indra Colony, Karauli lodged a written report (Ex. P. 1) at Police Station Karauli on Jan 23, 2001 at 3.35 AM whereby he informed that on the intervening night of 22 and 23 of January, 2001, unknown miscreants entered into the house of his younger brother Devi Singh. When the miscreants were taking away the stolen articles, Devi Singh's daughter's son Ravi Singh awoke and tried to catch hold the miscreants. One miscreant opened fire which hit him on his left chest causing his death at the spot. The dead body of Ravi Singh was kept in Hospital at Karauli. The miscreants succeeded in stealing one box from the house. The list of stolen articles could be furnished by Devi Singh later on.
3. On the aforesaid report, a case for the offences under Sections under Sections 460 and 380 IPC was registered. Investigation was entrusted to Jal Singh Choudhary, SHO, who had already proceeded to the place of occurrence from the police station. The investigation commenced and after due investigation, challan was filed against the present appellants while the investigation against two other accused persons Iliyar @ Iliyas and Awasar, was kept pending under Section 173(8) Cr.P.C. In due course, the case was committed and came to be tried by the Sessions Judge, Karauli and the appellants were chargesheeted for the offences under Sections 302/34, 392 r/w 397 and 460 IPC. The accused appellants pleaded not guilty and claimed to be tried.
4. The prosecution examined as many as 17 witnesses, namely Gayatri Devi (PW. 1), Gulab Singh (PW. 2), Devi Singh (PW. 3), Mani Ram (PW. 4), Ram Prasad (PW. 5), Gulabi Devi (PW. 6), Meena Kumari (PW. 7), Heera Singh (PW. 8), Wahid Khan (PW. 9), Dr. Pritam Chandra Gupta (PW. 10), Yashpal (PW. 11), Jamit Ahmed (PW. 12), Bulaki (PW. 13), Pancham Singh (PW. 14), Prem Chand (PW. 15), Shri Hari Mohan Gupta (PW. 16) and Jal Singh (PW. 17).
5. The statements of accused appellants under Section 313 Cr.P.C. were recorded. In their statements, the appellants stated that they have been falsely implicated and after their arrest they were subjected to physical torture and they were also shown to the witnesses by the police while in police custody. Appellant Shabbir also stated that he was brought from Jaipur as he used to work there as labour since last 6-7 years. In support of his aforesaid defence, appellant Shabbir has also examined himself as DW 1 under Section 315 Cr.P.C. and DW 2 Sagir Khan (his brother) as also DW 3 Suleman. While DW 4 Hamid Khan (elder brother of appellant Sahid) has been examined in defence on the point that he lived in his village and earned his livelihood as a labour.
6. The learned trial Judge on hearing final arguments, convicted and sentenced the accused appellants as indicated hereinabove.
7. Having scanned the material on record, we find that the death of Ravi Singh aged about 16 years was homicidal in nature. As per post mortem report (Ex. P. 25), the following ante mortem injuries were found on the dead body:
1. Oblique fire arm wound with lacerated wound margin with color of abrasion with blackening and tattooing 1 cm x 1 cm x depth leading inside and left thoracic cavity (skin, muscle, lung, heart with fracture of 6th left rib in space of 6-7 inter costal space) on anterior surface of left side of chest below 5 cm of let nipple. Injury is instantaneously dangerous to life by fire arm weapon, ante mortem in nature and is sufficient to cause death in ordinary course of life.
On dissection: There is fracture of left 6th rib with lacerated pleura in between 6 and 7 rib with laceration of pleura with laceration of left ventricle of heart 4 cm x 4 cm left muscle deep with laceration of both upper and lower ribs of left lung 4 cm x 4 cm with exit wound in left lower lobe along. Thoracic cavity in full of liquid dark red blood and clotted blood and after making out that liquid blood the bullet was found behind the lung particular part of thoracic cavity.
2. Two abrasions with clotted blood 4 cm x 1/2 cm on mid fore-head.
3. Abrasion with clotted blood 1 cm x 2 mm on left fore-head.
4. Multiple abrasions 4 cm x 2mm on right elbow joint and right lower and upper 1/3rd part obliquely placed.
5. Abrasion 2 cm x 1 cm on right side of face upper part with clotted blood.
6. Abrasion with clotted blood 2 cm x 2 cm left side of face maxillary region.
7. Abrasion 2 cm x 1/2 cm on outer surface of left hand.
All abrasions are simple blunt ante mortem in nature and all injuries are within 12 to 18 hours duration.
In the opinion of members of Medical Board the cause of death of Shri Ravi Singh Chauhan is due to shock resulting from external and internal hemorrhage by injury No. 1 by fire arm weapon causing injuries to heart and left lung etc.
8. All the injuries were ante mortem in nature and. according to the autopsy conducted by Dr. Pritam Chandra Gupta (PW. 10), the cause of death was due to shock resulting from external and internal hemorrhage due to injury No. 1 caused by fire arm damaging heart and left lung.
9. We have given our anxious consideration to the submissions advanced before us and carefully scrutinished the record. While advancing submissions on the point of identification of accused appellants, the learned counsel for the appellants have cited Bollavaram Pedda Narsi Reddy and Ors. v. State of Andhra Pradesh , State of M.P. v. Ghudan and State of Rajasthan v. Netrapal and Ors. 2007 CRI. L.J. 1783. While the learned Public Prosecutor has cited Ramanathan v. The State of Tamil Nadu and Bharat Singh v. State of U.P. .
10. The prosecution case is mainly based on the testimony of the witnesses to the occurrence and their capacity of observation, grasp and to memorise as to what they had seen earlier so as to establish the identity of the culprits who were stranger to them and this has been tried to be proved on the basis of the evidence led on the point of identification in the court especially in view of the test identification parade conducted during the investigation. Therefore, before we advert to the evaluation of the prosecution evidence, it would be of immense benefit to be appraised with the evidentiary nature of the identification as laid down by the Hon'ble Apex Court in Ronny alias Ronald James Alwaris v. State of Maharashtra , as under:
Section 9 of the Evidence Act deals with relevancy of fats necessary to explain or introduce relevant facts. It says, inter alia, facts which establish the identity of any thing or person whose identity is relevant, insofar as they are necessary for the purpose, are relevant. So the evidence of identification is a relevant piece of evidence under Section 9 of the Evidence Act where the evidence consists of identification of the accused person at his trial. The statement of the witness made in the Court, a fortiori identification by him of an accused is substantive evidence but from its very nature it is inherently of a weak character. The evidence of identification in the TIF is not a substantive evidence but is only corroborative evidence. It falls in the realm of investigation. The substantive evidence is the statement of the witness made in the Court. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what he has seen earlier, strength or trustworthiness of the evidence of the identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at this trial in Court. If a witness identifies the accused' in court for the first time after a long time, the probative value of such uncorroborated evidence becomes minimal, so much so that it becomes unsafe to rely on such piece of evidence. But if a witness has known an accused earlier in such circumstances which lend assurance to identification by him in court and if there is no inherent improbability or inconsistency, there is no reason why his statement in court about the identification of accused should not be relied upon as any other acceptable but uncorroborated testimony.
In Jayawant Dattatraya Suryarao v. State of Maharashtra their Lordships of the Supreme Court propounded thus:
Substantive evidence of a witness is his evidence in court. Identification parade is not primarily meant for the court but is meant for investigation purpose. It serves two purposes, namely, to enable the witness to satisfy that the prisoner whom he suspects is rally the one who was seen by him in connection with the commission of the crime and for satisfying the investigation authority that the suspect is the real person whom the witness had seen in connection with the said occurrence. In case when the evidence is cogent, consistent and without any motive, it is no use to theoretically imaging that as the witness has seen the accused for a few minutes it would be difficult for him to identify. It always depends upon one's capacity to recapitulate what he has seen earlier. Power of perception and memorising differs from man to man and also depends upon the situation. Finally, appreciation of such evidence would depend upon the strength and trustworthiness of witnesses.
Their Lordships of the Hon'ble Supreme Court in Abdul Waheed Khan @ Waheed v. State of A.P. indicated thus:
Identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can be used as corroborative of the statement in court. The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witness who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other works, the main object of holding an identification parade, during the investigation stage is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye witnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code of Criminal Procedure, 1973 and the Evidence Act. It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond their control and there is some delay, it cannot be said to be fatal to the prosecution.
11. On critical re-appraisal of the evidence in the light of above legal exposition, it is revealed that the place of occurrence is situated at Indra Colony, Karauli which is one of the district head-quarter of the State. The police station from the place of occurrence is situated at a distance of 2 furlongs. The occurrence took place in the intervening night of 22 and 23 of January at about 2.30 AM while Devi Singh and his wife were sleeping in their room and the other rooms marked 2, 3 and 4 in site map Ex. P. 2 were occupied by his daughter-in-law Meena Kumari (PW. 7), deceased Ravi Singh and Yashpal (PW. 11), respectively. They all were sleeping in separate rooms as stated above. The house had a small courtyard in the middle where doors of all the rooms opened. The theft is alleged to have taken place from room No. 6 which was a store where stolen box and other articles were allegedly kept under lock and key. As shown in the site map (Ex.P. 2), the miscreant had their entry from the roof of the house through the staircase which was allegedly closed by a shutter in the chowk by unlocking the shutter at the gate in the chowk. The police has recovered electric wire outside room No. 1 in which Devi Singh and his wife were sleeping as the wire was used to block the gate from outside and from the statement of Devi Singh and Gulab Devi, it is revealed that on hearing Ravi Singh crying 'Chor-Chor', they tried to open the doors but it could be opened after it was pushed hard because it was blocked from electric wire from outside. Likewise, a leather belt from outside the room No. 4 was also recovered which was used to block the door of the room in which Yashpal (PW. 11) was sleeping and Yashpal (PW. 11) has deposed to corroborate the fact that when he tried to open the gate on hearing Ravi Singh crying 'Chor-Chor', he found the gate blocked from outside with the belt and so he first untied the gate to come outside from the room by putting his hand out from the door.
12. On the point of testimony of the eye witnesses regarding identification of the miscreants at the time of occurrence, it has been strenuously argued by the learned counsel for the appellants that according to Devi Singh (PW. 3) when he came out of the room, he saw miscreants running from the chowk and were climbing the stairs and the deceased Ravi Singh was behind them and when he reached near stairs, the miscreants had already scaled 5-6 stairs and when he reached at the third stair, Ravi Singh had a scuffle with miscreants at the turn in the stairs and he was shot dead from a stair beyond the turn. According to the learned counsel for the appellants all other witnesses came following Devi Singh (PW 3) and as such none of them could see as to who shot dead Ravi Singh nor theyhad any occasion to see their faces. The learned Public Prosecutor has opposed the aforesaid proposition as Devi Singh (PW. 3), his wife Gulab Devi (PW. 6) and daughter-in-law Meena Kumari (PW. 7) had seen the miscreants running towards the staircase while Devi Singh being a male member chased them right upto stairs. It was further canvassed that the witnesses sleeping in separate rooms are supposed to act and react in their own way and their depositions on the point are required to be appreciated in that back ground.
13. In view of the above rival contentions, it may be noted that Ravi Singh deceased aged 16 years was Devi Singh's daughter's son and was a student and was permanently staying in the house. In fact, it was he who first of all came to know that the miscreants had entered into the house, so it was natural for him to cry as 'Chor-Chor' (thief - thief) so as to awake all the family members sleeping in the house. It was also natural for him that he cried so immediately as he woke up. In this regard the testimony of Meena Kumari (PW. 7) is quite pertinent as she was sleeping in the adjoining room to Ravi Singh and she immediately came out of the room as her door from outside was not blocked like others. According to her, she got up as she heard the voice of Ravi Singh crying 'Chor-Chor' and came out in the chowk and saw that two thieves who came running from the room meant for worship and two thieves came out from the room of Ravi who also followed them in the stairs. She has further deposed that her father-in-law and mother-in-law also came there and tried to climb the stairs. She also went behind them and soon after the miscreants fired at Ravi Singh who sustained injuries on his chest and ribs and came down tumbling. She has further deposed that she could see them properly and she could recognise them. She has in fact recognised the appellants in the test identification as well as in the court. In the cross examination, a question has been put to her as to why she did not tell to the police that she saw two of the miscreants coming from the room meant for worship and two from the room of deceased Ravi Singh. In reply to this question, she has explained that she was not asked by the police to state the incident in detail while recording her statement. The identification parade conducted by Prem Chand Sharma (PW. 15), the then Judicial Magistrate, Karauli has been proved by him as well as all the eye witnesses who had participated in the parade including Meena Kumari (PW. 7). In the identification memo (Ex. P. 18) prepared regarding appellant Shabbir Khan mentioned that Meena Kumari (PW. 7) had correctly identified the accused appellant and it is pertinent to note that at the time of identification she was excited and she uttered following words:
^;s gS oks lMs ewag dk dqRrk Likewise, while identifying appellant Saheed Khan vide identification memo Ex. P. 19, she uttered as under:
;s gS oks uhp The manner in which this witness Meena Kumari (PW. 7) reacted at the time of test identification shows her intensity of concern and confidence in recognising the two accused appellants as perpetrators of crime.
14. The testimony of Meena Kumari (PW. 7) has been further corroborated on material particulars by Gulab Devi (PW. 6) and she has deposed that when she came out, she saw two miscreants coming out of the room where boxes were kept while the other two miscreants came out of the room of Ravi Singh deceased and they were followed by Ravi Singh and Devi Singh (PW. 3) also followed and went on the stairs. Devi Singh (PW. 3) has also corroborated the fact that when he came out, he saw 3-4 persons going towards the stairs. Devi Singh (PW. 3) and Gulab Devi (PW. 6) have also identified the two accused appellants in the test identification as also in the court as the culprits of the alleged crime and thus the substantive part of the evidence has been further corroborated by test identification conducted in the case. Yashpal (PW. 11) has corroborated the manner in which incident had occurred but he has made improvement in the statements on the point that he could see the miscreants on the roof of Devi Singh (PW. 3) in light on the roof as well as on the roof of neighbour 'Patwari' in the light of the bulb on nearby street lamp post. This part of the statement of Yashpal (PW. 11) is though not worth credence but rest of the testimony of this witness cannot be altogether brushed aside.
15. On the point whether there was sufficient light in the house of Devi Singh at the time of occurrence, it may be noted that all the witnesses have supported the fact that the place of occurrence was chowk and the staircase of the house and there was sufficient light in the chowk and that a bulb alighted at the entrance of the staircase. This fact has been corroborated by Devi Singh (PW. 3), his wife Gulab (PW. 6), Meena Kumari (PW. 7) and also Yashpal (PW. 11). The learned counsel for the appellants has argued that in the site map (Ex. P. 2) it has not been shown as to which of the light was alighted and whether there was any electric point so that the witnesses could see the faces of the appellants as claimed by them. The argument of the learned counsel is not of much avail in the facts and circumstances of the case as the occurrence had taken place in the house where all the rooms in which the eye witnesses were sleeping opened in the chowk and the entrance of the staircase also opened in the chowk, therefore it was quite natural that the electric point was there in the house and from the testimony of the witnesses it has been proved that at the time of occurrence the light was on. In the facts and circumstances of the case, assigning any lacuna on the part of the investigation on the point that light point was not shown in the site map is not fatal as in a case where place of occurrence is a public street where location of lamp post may have a material bearing.
16. Learned counsel for the defence has argued that the appellants were in fact shown to the witnesses by the police before the test identification and thus the identification has been rendered meaningless. In this regard, it has been revealed that this question was put to Devi Singh (PW. 3), Gulab Devi (PW. 6), Meena Kumari (PW. 7) and Yashpal (PW. 11) but they have specifically denied that they were ever shown the appellants by the police before the test identification. Jal Singh (Investigating Officer) (PW. 17) has deposed in his statement that the appellants were kept by "Baparda" and in the cross examination he has already stated that they could recognise the miscreants. It was next argued that the witnesses did not state anything as to how the miscreants looked like or gave their description so as to test their veracity. In the instant case, the incident had taken place in the intervening night of 22 and 23 of January 2001 while the test identification was conducted on 22.2.2001 which is a period almost within a month and the period elapsed between the incident and test identification was not inordinately long which could diminish their memory which is evident from the straight forward unwaivering manner the accused appellants were identified at the test identification as well as in the court. The learned counsel for appellant Saheed has argued that Saheed had burn marks on his hands but no precaution was taken in this regard at the test identification and as such the credibility of the test identification has been lost. From the evidence on record, it is revealed that Prem Chand Sharma (PW. 15), Judicial Magistrate has expressed his ignorance whether accuse Saheed had burn marks on his hands. In this regard, it may be noted appellant Saheed had made no complaint that his burnt hands were shown to the witnesses in the police station while he reported to the Judicial Magistrate conducting the test identification that cover from his face was removed and a note to this effect was made in the test identification memo Ex.P. 19 while in the other memo prepared on the same day marked Ex. P. 9 while the appellant was put to test identification to Devi Singh (PW 3) and Yashpal (PW. 11), he even did not report that he was shown to the witnesses by the police. There is no mention of his hands having burn marks in the arrest memo Ex. P. 9. On being cross examined, Devi Singh (PW. 3) has shown his ignorance and has deposed that the accused appellant had kept his hands behind at the test identification. Likewise, Meena Kumari (PW. 7) has categorically deposed that she had identified the appellant Saheed by face and she has denied the suggestion that she was already told that he had burn identification mark on his hands and she had identified him on that basis, while there has been no cross examination on this point with Gulab Devi (PW. 6). In view of the above discussions, there is no basis to arrive at a conclusion that appellant Saheed was identified on the basis of burn marks on his hand.
17. The recovery of stolen silver ornaments is the other significant evidence to connect the appellants with the crime. The learned counsel for the appellants has challenged the said recovery on the ground that the recovery was not effected in the presence of independent 'Motbirs' and only police personnels were kept 'Motbir'. It has been also argued that there is no mention in the 'Malkhana' (stock) register Ex. P. 14 that the packets containing ornaments were taken out for identification and the same were again safely placed in 'Malkhana' on 16.5.2001, that creates a doubt regarding safe and secure custody of these articles and their movements as alleged. While adverting to the recovery part of the stolen ornaments it is revealed that the two accused appellants Shabbir and Saheed were arrested on 18.2.2001 vide arrest memo Ex. P. 8 and Ex. P. 9 and recovery of one pair of silver 'Paijeb' was recovered on the information and the instance of accused Saheed from his house vide recovery memo Ex. P. 12 while three pairs of silver 'Paijebs' were also recovered on the information and instance of accused Shabbir from his house vide recovery memo Ex. P. 10. The aforesaid recovery has been proved by Jal Singh (Investigating Officer) (PW. 17) and Mani Ram (PW. 4). It is revealed that Mani Ram (PW. 4) and Yad Ram have been witnesses to the aforesaid recovery memo and both are police personnel. In the cross examination of Mani Ram (PW. 4), it has been clarified by him that though neighbours were called to witness the recovery from the houses of the appellants but they failed to turn up as they were apprehensive of police. From the testimony of Meena Kumari (PW. 7) and Gulab Devi (PW. 6), it is further proved that the silver ornaments recovered were identified by them before the Judicial Magistrate Hari Mohan Gupta (PW. 16) in the test identification as well as in the court. The fact that these articles were the same which were stolen in the incident has also been confirmed from the fact of recovery of stolen box vide memo Ex. P. 6, a day after the incident from nearby Jungle of river Bhadrawati and the articles recovered in the box were also identified by Meena Kumari (PW. 7) as her own. This witness has also deposed about the stolen silver ornaments missing from the aforesaid box and there is also mention of missing silver ornaments from the empty bag found in the box listed at S. No. 15. Ram Prasad (PW. 5) 'Malkhana' incharge has though admitted in the cross examination that no entry regarding the articles taken out of 'Malkhana' has been made in 'Malkhana' Register Ex. P. 14 but he has explained that the necessary entry to this effect is made in the Rojnamcha (daily diary) of the police station. From the testimony of the police station. From the testimony of Hari Mohan Gupta (PW. 16), Judicial Magistrate who conducted test identification, it has been proved that the ornaments kept in the sealed packet E and F were produced before him on 15.5.2001 and after identification on 16.5.2001, the same were handed over to the police personnel who had brought them and the proceedings in this regard were drawn as mark Ex. P. 30. The 'Malkhana' incharge, has though agreed to the suggestion that these articles were not taken out of 'Malkhana' before 16.5.2001 but that has been stated without any reference to the record in this regard. Thus, though the testimony of Ram Prasad (PW. 5) has not been up to the mark on the point of movements of articles kept vide register entry Ex. P. 14 but in view of the evidence discussed above, the prosecution case of recovery of the stolen articles and identification thereof by the witness in the test identification as well as in the court cannot be doubted. Therefore, in spite of the fact that recovery of stolen ornaments was made almost after a month from the occurrence but in view of the sequence of the evidence on identification of the accused appellants the alleged recovery lends further credence as a corroborative evidence that the appellants were amongst the four culprits who committed the crime.
17. 1 The accused appellants have tried to lead defence on the point that they were falsely implicated in the case and at the time of alleged occurrence they were at their respective places of abode where they earned their livelihood through physical labour. But the evidence led on the point is not of conclusive nature so as to probablise their defence of alibl. Likewise, appellant Shabbir has tried to canvass that he was falsely implicated by the police and he had complained about it to the Human Rights Commission, New Delhi and also to the District Judge, but there being nothing on record to reach to the aforesaid conclusion especially in view of the evidence adduced by the prosecution, the plea taken by the accused is not of much significance.
18. In view of the above discussions, the prosecution has been successful in proving beyond reasonable doubt that the two accused appellants Shabbir and Saheed were amongst the four persons who jointly committed house breaking by night and while committing theft one of them voluntarily caused death of Ravi Singh and therefore, the accused appellants are guilty for the offences under Sections 460 and 392 IPC. It has also been proved beyond doubt that deceased Ravi Singh grappled to catch hold them in the staircase and he was shot dead at point blank by one of them and it could not be ascertained whether he was shot dead by any of the appellants or by any body else who participated in the crime, and therefore, all the culprits who participated in the crime have to be attributed with the common intention to cause death of deceased Ravi Singh which is apparent on the face that all the participants were acting under a common intention to accomplish the act and had common intention to even cause death in a situation or circumstance of the case. Therefore, the accused appellants are liable to be punished for murder Under Section 302/34 IPC committed in furtherance of common intention.
20. For these reasons we find no merits in the instant appeals and the same stand accordingly dismissed. Conviction and sentence of appellants Shabbir and Saheed @ Saeeyo @ Tonta under Sections 302, 34, 392 and 460 IPC are maintained.