Jharkhand High Court
State Of Jharkhand vs Krishna Ganjhu & Anr on 20 August, 2010
Author: J.C.S. Rawat
Bench: J.C.S. Rawat
Death Reference No.02 of 2009
Against the judgment of conviction and order of sentence dated 22.08.2009
and 26.08.2009 respectively passed by Shri Shrikant Roy, Addl. Sessions
Judge, F.T.C.-III, Chatra in S.T.No.18 of 2001 arising out of Simaria P.S. Case
No. 85 of 1998.
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The State of Jharkhand. ... ... ... ... ... ...
-Versus-
1. Krishna Ganjhu.
2. Ramdeo Mahto. ... ... ... ... ... ...Convicts
With
Cr. Appeal (D.B.) No. 872 of 2009
1.Krishna Ganjhu.
2.Ramdeo Mahto. ... ... ... ... ...Appellants
-Versus-
The State of Jharkhand. ... ... ... ... ... ...Respondent
For the Appellants: Mr. B.K.Dubey, Advocate.
For the State: Mr. R. Mukhopadhyay, A.P.P.
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C.A.V. on 14.05.2010 : Pronounced on 20.08.2010
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PRESENT
THE HON'BLE MR. JUSTICE J.C.S. RAWAT
THE HON'BLE MR. JUSTICE D.K.SINHA
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D.K.Sinha,J. The Death Reference under Section 366(i) Code of Criminal Procedure
as well as the Criminal Appeal referred to above, arising out of common judgment of conviction and order of sentence recorded against the appellants/convicts are taken up together for consideration.
2. Heard Mr. Dubey, learned Counsel appearing for and on behalf of the convicts-appellants and Mr. R. Mukhopadhyay, learned A.P.P. for the State.
3. The appellants 1. Krishna Ganjhu and 2. Ramdeo Mahto have been convicted under Sections 148,307/149,302/149,353/149,435/149 and under Sections 379/149 of the Indian Penal Code (hereinafter referred to as the Act). Each of the appellants has further been convicted under Section 27(i) of the Arms Act. They were sentenced to undergo rigorous imprisonment for various terms in different counts in corresponding offences referred to here-in-before. Besides, each of them was awarded death sentence by the Court of Shri Shrikant Roy, Additional Sessions Judge, F.T.C.-III, Chatra to be hanged by neck till their death for their conviction under Sections 302/149 of the Indian Penal Code in Sessions Trial No. 18 of 2001 arising out of Simaria P.S. Case No. 85 of 1998.
4. The informant P.W. 5 Saryu Pandit, the then Officer-in-Charge of Simaria Police Station recorded his self statement on 24.11.1998 at about 14 hours near Athampur Primary School who narrated that on the same day at about 10.30 am. while he was returning from Lawalong after police petrol along with the A.S.I. Brij Mohan Singh and arrived near Athampur Primary School, he heard firing like sound and out of curiosity he alighted from the vehicle along with other police personnel. He further narrated that while he was asking from an old woman as to the origin of such sound, he confronted with extensive fire originated from the hillock and the forest side. He immediately rushed with other police personnel towards the pitch road to take 'Morcha' from behind the police vehicle, which was left on the road and retaliated fire. In the meantime, he heard screaming from behind, as such, he had reason to believe that some constables had sustained gun shot injuries. The police party retaliated the fires. The informant presumed that it were the M.C.C. ultras who were shouting slogans 'M.C.C. Jindabad' and also 'Lal Salam' and intensified the fire. In the meantime, a home guard of the police party also sustained gun shot injuries. The informant anyhow slipped and escaped from the heavy exchange of fire and went to Simaria Police Station to inform the occurrence by boarding 'Vikas' bus. He immediately returned back with the police force and the C.R.P.F. to the place of occurrence and witnessed smoke coming out from the police vehicle which was set on fire by the ultras and further witnessed that the constable No.34 Nagendra Kumar Vatsa, one home guard Binod Singh and the son of the village Chaukidar namely Chandra Dusadh had succumbed their injuries in the extensive fire shot from the extremists side. The M.C.C. ultras had not only snatched the rifles and the cartridges and the uniforms from the bodies of the constable and home guard but had also cut them with axe. They were about 35/40 in number, variously armed with S.L.R., sten guns, carbines and police rifles. The Senior Police Officer from Chatra arrived at the place of occurrence and it could be gathered from the villagers that M.C.C. extremists were moving in the area for the last 3 /4 days and on the date of occurrence they were seen in the house of one Kauleshwar Bhuiyan of Athmpur at about 8 a.m. The villagers further apprised that amongst M.C.C. people, they identified Ajay Yadav, Nagdeo Turi, Kauleshwar Bhuiyan and Pankaj Ganjhu @ Pankaj Ji. The informant narrated that the named accused persons, who were the members of the M.C.C. committed gruesome murder of a constable, a home guard and the son of a Chawkidar in prosecution of their common object, put obstruction in the Government work, set the police vehicle on fire and snatched the guns and cartridges as aforesaid. The M.C.C. ultras escaped from the place of occurrence taking advantage of the forest and hillocks after commission of the offence. A case was registered for the alleged offence under Sections 147/148/149/307/302/353/435/379 of the Indian Penal Code, 27 of the Arms Act and under Section 17(i) (ii) of the C.L.A. Act against the named accused persons giving rise to Simaria P.S. Case No. 85 of 1998. The Investigating Officer submitted charge-sheet only against 5 accused persons after investigation and they were Lakhan Yadav, Mukesh Yadav, Krishna Ganghu (appellant No.1) Nepali Ganjhu and Ramdeo Mahto (appellant No.2).
5. After commitment of the record, the case was transferred to the Court of 1st Additional Sessions Judge, Chatra under the orders of the Sessions Judge. All the 5 accused including the appellants were put on trial after framing of charge against them for the alleged offences under Sections 148,307/149, 302/149,353/149, 435/149,379/149, Section 27 of the Arms Act and under Section 17(i) (ii) of the Criminal Law Amendment Act. The accused pleaded not guilty and claimed their trial.
6. The prosecution examined altogether 13 witnesses. Besides, after statement of the accused recorded under Section 313 Code of Criminal Procedure, D.W. 1 Lakhan Yadav, an accused of the case was permitted to adduce evidence as defence witness. After trial the appellants were convicted but other two accused Mukesh Yadav and Nepali Ganjhu were acquitted in view of insufficient evidence whereas the co-accused Lakhan Yadav absconded during trial.
7. The prosecution proved the written statement of the informant with the signature thereon ( Xerox copy) Ext. P. 1A, formal F.I.R. (Xerox copy) Ext. P. 2A, seizure list of the fired cartridges and other items with the signature of the witnesses thereon, Ext. P. 3, inquest reports with the signature of the witnesses thereon, Ext. P. 4A, Ext. P5A and Ext. P6A. The dead bodies challans of the deceased were marked exhibits P. 7A, P.8A and P. 9A. All the exhibits were proved without objection from the defence side.
8. P.W. 1 Kirtan Gosai and P.W. 2 Rajesh Gosai expressed their ignorance about the shooting, which took place on 24.11.1998 near Lawalong as such, they were declared hostile. Nothing material could be elicited from their evidence. Similarly, P.W. 6 Braj Mohan Sao, P.W. 7 Madan Sao, P.W. 8 Ramji Sao, P.W. 9 Hazari Prasad Sahu and P.W. 13 Markus Tirkey were unfavourable to the prosecution and hence they were declared hostile and nothing much less material could be gathered from them relevant to the present case.
9. The case was investigated initially by P.W. 4 Balanand Singh, S.I. of police, who visited the place of occurrence and prepared the inquest report of the deceased and also the seizure list of different articles. The charge of investigation was then given to P.W. 10 Inspector of Police Nawal Kishore Singh. He organized Test Identification Parade of the accused. P.W. 11 Ashok Kumar was the last Investigating Officer, who submitted charge-sheet against the accused persons. P.W. 5 S.I. Saryu Pandit was the informant Police Officer, the then Officer-in-Charge of Simariya Police Station. On the basis of his self recorded statement, Simariya P.S. Case No. 85/1998 was registered and law was set in motion. It would be relevant to mention that statement of P.W. 4 Balanand Singh S.I. was repeated as P.W. 12. The Trial Judge therefore, discarded his subsequent evidence recorded as P.W. 12.
10. P.W. 3 Braj Mohan Singh testified that on 24.11.1998 he was posted as A.S.I. at the police picket, Lawalong within the jurisdiction of Simaria Police Station whereas Saryu Pandit was posted as Officer-in-Charge of Simaria Police Station at the relevant time. He identified the self recorded statement of the informant Saryu Pandit giving rise to Simaria P.S. Case No. 85 of 1998 which was marked Ext. P/1 with the signatures of the informant Saryu Pandit thereon Ext. A and B. He proved the formal F.I.R. Ext. P/2 (Xerox copy). The witness testified that the informant Saryu Pandit came to Lawalong police picket with the armed police for dropping A.S.I. Mithilesh Kumar Jha there and relieving him from the picket. Accordingly, Mithilesh Kumar Jha was dropped there and he accompanied the informant on the police vehicle on their way to the Simaria Police Station. At about 11.00 a.m. when they arrived at Athampur Primary School, he heard burst like sound appeared to be fired from muzzle loading gun. He with the informant alighted from the vehicle to find out the origin of the burst but suddenly confronted with extensive fire from behind the school as also from the side of the hillock targeting the police party and the constable 'Vatsa' sustained shot injury fired from their side. The police party retaliated by taking position. But on account of insufficient force to counter the attack, he along with the informant slipped away by leaving the vehicle there and informed the control room of B.M.P. He again returned back at the place of occurrence with the police party and found the dead bodies of the home guard Binod Kumar, constable 'Vatsa' and one Chandra Dusadh, who happened to be the son of Chawkidar. All the three had succumbed their injuries from the shots fired by the extremist. The vehicle of the police was set on fire causing monetary loss of about 2 lakhs. The witness finally deposed that he could not identify any of the extremists involved in such firing but admitted having heard the slogan "Lal Salam Jindabad", as such, he addressed them as extremist.
11. P.W. 4 Balanand Singh testified that on 24.11.1998 he was posted at Simaria Police Station as Sub-Inspector of Police and on that day, he was informed by the constable Shishupal Mahto about the confrontation of police with the M.C.C. ultras at Athampur. The constable apprised that the extremist had set the Government vehicle on fire. The witness informed the Senior Police Officer on wireless. In the meantime, the informant Saryu Pandit arrived at the Police Station with the another police officer. They along with the Central Reserved Police Force proceeded to Athampur i.e. at the place of occurrence where the informant Officer-in-Charge Saryu Pandit recorded his self-statement. The fired cartridges of S.L.R., 303 rifle, badge of B.M.P. and the remains of police vehicle 407 in complete burnt condition were seized to which a seizure list was prepared. The inquest reports of the deceased were prepared and thereafter the investigation of the case was assigned to him by the Officer-in-Charge-cum-Informant Saryu Pandit. Pursuant to such assignment he visited the place of occurrence, found the burnt Jeep of the Government and further found blood scattered there. He recorded the statements of the constables and Hawildars, who were present there. After some time he made over the charge of investigation of the case to one Ashok Kumar S.I. ( P.W. 11) under the instructions of the Senior Officer. He proved several documents, which were marked exhibits. He admitted that the informant had recorded his self statement in his presence at the place of occurrence, which took place at about 11.00 a.m. He further admitted having not visited the place of occurrence after that day and that he had arrested one Saukat Mian in course of investigation.
12. P.W. 5 Saryu Pandit, the then Sub-Inspector of Police of Simaria Police Station deposed that on 24.11.1998 at about 8.00 a.m. he proceeded along with the A.S.I. Mithilesh Kumar Jha, Hawildar Kartik Hazam and many other constables to Lawalong to drop A.S.I. Mithilesh Kumar Jha at Lawalong picket. One Chandra Dusadh son of village Chaukidar was taken by them as a guide. He arrived at Lawalong at about 10.30 a.m. and dropped A.S.I. Mithilesh Kumar Jha by relieving him and lifting Braj Mohan Singh with him on way back to Simaria. At about 11.00 a.m. when he arrived opposite the Athampur school, he heard the sound of shooting fire from behind as such the vehicle was stopped. Some Constables and Hawildar alighted from the vehicle and while they were asking from a woman about the source of such firing, they confronted extensive firing from the side of Primary School Athampur and also from the hillocks. In the meantime, he heard the screaming of constable Nagendra Kumar Vatsa. Consequently, the members of the police party left the vehicle and retaliated fires by taking position. The extremist continued firing from both the directions and one home guard Binod Singh also sustained gun shot injury who screamed. The extremists were about 35/40 in number, variously armed with S.L.R., Carbine, rifle and light machine guns, shouting slogans 'M.C.C. Jindabad'. In the meantime, constable Shishupal Mahto slipped from the place of occurrence. The witness further deposed that realizing insufficient police force to counter the attack he boarded "Vikas" bus and went to Simaria Police Station where he found Shishupal Mahto who had already come there. He communicated the occurrence and informed the Senior Police Officers and again returned back with other Senior Police Officers and the C.R.P.F. to the place of occurrence at Athampur Primary School where he witnessed smoke coming out from the vehicle, as such, he presumed that Government vehicle of the police was set on fire by the extremists. The other Senior Police Officers from Chatra also arrived there. They found that Constable Nagendra Kumar Vatsa, home guard Binod Singh and Chandra Dusadh were shot dead in the indiscriminate firing resorted by the extremists. The deceased were brutally assaulted by means of axe after they were shot dead. The extremists had removed and taken away the uniforms from the bodies of both of them. He could gather that the gang of extremists consisted of 30/35 members accompanied by Bideshi Bhuiyan and Kauleshwar Bhuiyan. He recorded his self statement at the place of occurrence and proved the same in the Trial Court. He further identified the formal F.I.R., which was earlier proved. The inquests of the dead bodies were prepared by him, which were proved and marked Ext. P/4, P/5 & P/6 under his signatures. The dead bodies were sent to Chatra Sadar Hospital for postmortem. Several fired cartridges of different weapons, blood stained earth and the burnt police vehicle were seized to which he prepared seizure list in his pen. Before that he had already prepared the dead bodies challans, proved and marked Ext. P/7, P/8 and Ext. P/9. The witness testified that the Test Identification Parade of the accused of the case was held at Chatra Jail which was attended by him wherein, he had identified the accused Krishna Ganjhu, Lakhan Yadav and Ramdeo Mahto. In the cross-examination, the witness deposed that he was posted at Simaria Police Station since about a month prior to the alleged occurrence and he had visited Lawalong once or twice but he could not remember the dates and months of such visits. Lawalong was connected by a Kacchi road from Bagra which was not in a good condition. He further testified that Athampur village was situated at the distance of about 8 kms from Lawalong and Simaria Police Station was at the distance of 15 kms from Athampur. He could not see the children and teachers of the school at the relevant time on account of extensive fire and when he arrived there for the second time at about 12 O'clock, he did not find anyone in the school. Fires were coming from the western side at about distance of 50/100 yards. He claimed having seen the extremists resorting fires but admitted having not recognized any of them from before. None of the extremists could be apprehended at the place of occurrence on the day of occurrence. The Test Identification Parade was held on 15.01.2001 in presence of the Magistrate Mr. B. Sukla and he had identified the suspects from amongst 50/51 persons. The Test Identification Parade of the suspects was attended by him, the driver and one constable Kanchan Rajak, who identified the culprits. He denied the suggestion that the appellants to whom he had identified in the Test Identification Parade were shown to him at the Jail gate itself.
13. P.W. 10 Nawal Kishore Singh was the second Investigating Officer, who had taken the charge of the investigation of this case from P.W. 4 when he joined the post of Officer-in-Charge at Simaria Police Station on 27.11.2001. A Test Identification parade was conducted in respect of the prisoners Nepali Ganghu, Krishna Ganghu, Lakhan Yadav, Mukesh Yadav and Ramdeo Mahto which was attended by the witnesses viz. constable 220 Permanand Prasad, Sub-Inspector Saryu Pandit, Hawilder Kartik Hazam and one Kanchan Rajak. He testified by affirming that Saryu Pandit had identified the accused Lakhan Yadav, Krishna Ganghu and Ramdeo Mahto in the said Test Identification Parade and that after investigation submitted charge- sheet against Lakhan Yadav, Mukesh Yadav, Krishna Ganghu, Nepali Ganghu and Ramdeo Mahto for the offences under Sections 147,148,302/353/435/307/379 r/w 149 of the Indian Penal Code, 27 of the Arms Act and under Section 17(i) (ii) of the C.L.A. Act pending investigation against the other accused persons. He admitted having visited the place of occurrence and recorded the statements of the witnesses Ramji Prasad, Braj Mohan Sao, Madan Sao after he had assumed the charge. Test Identification Parade was conducted in presence of the Magistrate Mr. B. Shukla and at the relevant time he had not entered into the Jail. He had arrested the accused Rajendra Yadav and Deoki Yadav in course of investigation on 05.02.1999 and forwarded them to the Court of C.J.M. on 06.02.1999. They were arrested on the basis of the secret information that they were seen at the time of alleged occurrence which took place near Athampur Primary School. He submitted charge-sheet against Rajendra Yadav, Deoki Yadav, Govind Yadav and Saukat Mian under various Sections of I.P.C. as also under Section 17(i) (ii) of the C.L.A. Act after obtaining the supervision note. He admitted that these four accused were not named in the F.I.R. and he had not obtained any process from the Court of C.J.M. before the arrest of Deoki Yadav and Rajendra Yadav and that no evidence could be gathered before their arrest.
14. After examination of all the 13 witnesses on behalf of the prosecution all the five accused Mukesh Yadav, Krishna Ganghu (appellant No.1), Nepali Ganghu, Ramdeo Mahto ( appellant No.2) and Lakhan Yadav were examined and their statements were recorded under Section 313 of the Code of Criminal Procedure. Each of them was confronted with the materials collected against them in course of trial to which they individually denied their guilt. D.W. 1 Lakhan Yadav, an accused of this case was permitted to adduce his evidence, who deposed that he was an accused along with the other accused. He was arrested from his house and was confined along with others at the Police Station for three days where their photographs were taken. They were taken to S.P. Office, Chatra. He was remanded in the instant case as such was sent to jail. He was identified on the basis of his photograph earlier taken to which he had sent an application duly drafted by one Vijay Giri from the Jail and signed by all the accused. He proved said application which was marked Ext. A/5. In the cross-examination, the witness deposed that separate photographs of the accused were taken by the photographer. But he did not know the photographer. He was carried in a police vehicle to Chatra. The accused witness affirmed having not complained of taking such photographs by the photographer to the Magistrate. He expressed ignorance as to in which case Vijay Giri was lodged in the jail.
15. Mr. Dubey, learned Counsel appearing for the convicts/appellants submitted at the outset that the instant case did not come in the category of the rarest of the rare case so as to call for extreme punishment by way of death sentence to the appellants in the facts and circumstances of the case. The case of the prosecution was that the police party was attacked by 35/40 extremists (M.C.C.) from two directions and the fire was retaliated but in the transaction of fire a constable, a home guard and a son of village Chaukidar sustained injuries, who later on succumbed. None of the witnesses at the outset claimed having identified any of the M.C.C. ultras engaged in firing shots upon the police party. It was admitted by the informant that he slipped along with another Police Officer from the place of occurrence by leaving a few number of constables/Hawildars at the mercy of God and when he returned back with the additional police force, the informant found the police vehicle set on fire, smoke coming out from the said vehicle and three dead bodies. In course of investigation, some innocent persons were arrested, put on T.I.P. at Chatra Sub-Jail and it was stated that the appellants and D.W. 1 Lakhan Yadav were identified only by the informant P.W. 5 Saryu Pandit and none else. Attracting the attention towards the observation of the Trial Judge, as contained in paragraph No.7 of the judgment, it was stated that a number of important witnesses and documents could not be produced in this case for the reasons best known to the prosecution. Admittedly, the case was instituted against Bideshi Bhuiyan, Ajay Yadav, Kauleshwar Bhuiyan, Pankaj Ganghu as named accused and 35/40 unknown but none of the named accused could be put on trial. The manner of occurrence presented by the prosecution in which a constable, a home guard and a son of village Chaukidar succumbed injuries is not denied but the complicity of appellants in the alleged offence is denied. There was no legal evidence against the appellants except their identification by the informant P.W. 5 in the Test Identification Parade and that too without specifying their overt act in the alleged offence. The Magistrate in whose presence Test Identification Parade was held abstained from the witness box before the Trial Court which caused prejudice to the appellants and in that manner the prosecution case could not be proved for the alleged charge against the appellants. Yet, their case was considered in the category of rarest of the rare case and both were awarded death sentence contrary to the settled principles, which calls for interference by allowing the appeal and that the death reference U/s 366(i) Code of Criminal Procedure needs no concurrence of this Court hence, the conviction of the appellants be set aside and they may be set at liberty.
16. Having regard to the totality of facts and circumstances of the case, we find that the conviction of the appellants is based mainly upon the statements of P.W. 3 Braj Mohan Singh, P.W. 4 Balanand Singh and P.W. 5 Saryu Pandit, all Police Officers posted at Smariya Police Station at the relevant time of the occurrence. They are consistent having seen the occurrence. P.W. 3 and P.W. 5 admitted having been confronted indiscriminate firing from the M.C.C. ultras. The witnesses produced on behalf of the prosecution were consistent about the manner of occurrence and they identified from the slogans shouted by them they were extremists, about 35/40 in number shouting 'M.C.C. Jindabad' and 'Lal Salam'. They were identified as also by their modus operandi of ambushing the police party, resorting indiscriminate fire, by setting the police vehicle on fire thereby killing a constable, a home guard and an innocent son of village Chawkidar. The M.C.C. ultras not only killed them but also displayed extreme form of brutality by cutting their body by means of axe after removing the uniforms and rifles from the possession of two of the deceased. Their postmortem reports depicted their extreme form of brutality as against the victims.
17. As regards the complicity of the appellants Krishna Ganghu and Ramdeo Mahto is concerned, we find that these appellants were arrested during investigation and were lodged in Chatra Jail. We find that since the informant P.W. 5 Saryu Pandit the then Officer-in-Charge of Simariya Police Station was heading the police party in the police jeep, confronted indiscriminate firing from two directions by the M.C.C. ultras, as claimed in his self recorded statement, recorded first point in time at the place of occurrence that all of them were in the green coloured uniforms of the military, variously armed with sten guns, self loading rifles, carbine and police rifles as such we have reason to believe that he had occasion to see them at a close distance, therefore, P.W. 5 Saryu Pandit was a competent witness to appear at the Test Identification Parade for the identification of the suspects. The Test Identification Parade was held in presence of the Magistrate Shri B. Shukla and P.W. 5 had identified the appellants Krishna Ganghu, Ramdeo Ganjhu and one Lakhan Yadav amongst about 50/51 prisoners at the Chatra Jail by following all the formalities. Such identification of the appellants cannot be held as unusual. The witness who had initially participated in retaliation of fire had abundant opportunity to notice the features of the extremists from near proximity. As such their faces must have got imprinted in the memory of P.W. 5 and there was no chance of his making any mistake about the identify of the appellants. No reason could be assigned from the defence side for false implication of the appellants by the informant P.W. 5 who had experienced the trauma of fire from the ultras from two directions. But admittedly neither the T.I.P. chart could be proved nor the Magistrate in whose presence T.I.P. held could be produced in the witness box. Yet, we are of the considered opinion that the defence of the appellants has not been prejudiced.
18. The Supreme Court of India in Mulla and another Versus State of Uttar Pradesh, reported in (2010) 3 Supreme Court Cases 508 observed, " The evidence of test identification is admissible under Section 9, Evidence Act, 1872. The identification parade belongs to the stage of investigation by the police. The question whether a witness has or has not identified the accused during the investigation is not one which is in itself relevant at the trial. The actual evidence regarding identification is that which is given by witnesses in court. There is no provision in Cr.P.C. entitling the accused to demand that an identification parade should be held at or before the inquiry in the trial. The fact that a particular witness has been able to identify the accused at an identification parade is only a circumstance corroborative of the identification in court.
Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law. Where identification of an accused by a witness is made for the first time in court, it should not form the basis of conviction.
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 only be used as corroboration of the statement in court.
The necessity for holing an identification parade can arise only when the accused persons are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses 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 words, 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 eyewitnesses of the crime.
In view of the above proposition, the identification of the appellants in the Test Identification Parade had corroborative value which could be substantiated when both the appellants were identified by the P.W. 5 Saryu Pandit during trial in the Court. It would be relevant to mention that the co-accused Lakhan Yadav, who was also identified in the Test Identification Parade put objection by sending application to the Court as to the veracity of such test as his photograph was taken at the Police Station, but failed to substantiate such allegation and that during trial he escaped from the custody. We are, therefore, find and hold that the identification of the appellants before the Trial Court was without infirmity, as such, conviction of the appellants based upon such identification needs no interference.
19. Considering the totality of facts as brought on the record as consistently narrated by the prosecution witnesses in their substantive evidence, we find that the prosecution could be able to prove the charge against each of the appellants under Sections 307/149,302/149,353/149,435/149 and under Section 379/149 and under Section 27(i) of the Arms Act. Apart from adequate punishment awarded to the appellants on each count, we find that the punishment to the appellants for their conviction under Section 302/149 of the Indian Penal Code by which each of them was awarded death sentence by holding the instant case being one under 'the rarest of the rare' case, we do not subscribe such view of the Trial Court.
20. In Mulla's case (Supra) the Apex Court held, " It is settled legal position that the punishment must fit the crime. It is the duty of the court to impose proper punishment depending upon the degree of criminality and desirability to impose such punishment. As a measure of social necessity and also as a means of deterring other potential offenders, the sentence should be appropriate befitting the crime.
In Panchhi V. State of U.P. this Court also elucidates on "
when the alternative option is foreclosed" benchmark in the following terms (SCC p. 182, para 16).
"16. When the Constitution Bench of this Court, by a majority , upheld the constitutional validity of death sentence in Bachan Singh V. State of Punjab this Court took particular care to say that death sentence shall not normally be awarded for the offence of murder and that it must be confined to the rarest of rare cases when the alternative option is foreclosed. In other words, the Constitution Bench did not find death sentence valid in all cases except in the aforesaid freaks wherein the lesser sentence would be, by any account, wholly inadequate. In Machhi Singh V. State of Punjab a three-Judge Bench of this Court while following the ratio in Bachan Singh case laid down certain guidelines among which the following is relevant in the present case: (SCC p. 489, para 38)"
21. We find from the facts that the appellants were convicted for the charge of murder in prosecution of common object i.e. under Section 302/149 of the Indian Penal Code without specifying the overt act attributed to any of them except that both of them were identified amongst the 35/40 members of M.C.C. ultras, who were indiscriminately firing with certain motives and that it was not the individual act of the appellants to call for extreme punishment. In that view of the matter, we do not categorize the instant case to be one under rarest of the rare case so as to award death sentence to each of them.
22. In the result, upholding the conviction of the appellants in different Sections of Indian Penal Code and the Arms Act with the adequate punishment awarded to them in each count thereto, we modify the death sentence of each of the appellants for their conviction under Section 302/149 and award rigorous life imprisonment to them. With such modification of the extreme sentence, this Criminal Appeal is dismissed. Accordingly, the death reference under Section 366(i) Code of Criminal Procedure as against the appellants for confirmation of death sentence is not accorded.
[D.K.Sinha,J.] [J.C.S. Rawat,J.] [J.C.S.Rawat,J.] Jharkhand High Court, Ranchi Dated the 20 August, 2010 P.K.S./A.F.R.