Reserved
Court No. - 5
Case :- CRIMINAL APPEAL No. - 1053 of 1984 Appellant :- Ram Singh Respondent :- State Of U.P.
Counsel for Appellant :- From Jail,R.K.Yadav,S.Afasar Ali Counsel for Respondent :- A.G.A.
With
Case :- CRIMINAL APPEAL No. - 1249 of 1983 Appellant :- Ramendra alias Ravinder Respondent :- State Counsel for Appellant :- P.N. Mishra,Pankaj Bharti Counsel for Respondent :- A.G.A.
Hon'ble Pradeep Kumar Singh Baghel,J. Hon'ble Harsh Kumar,J.
(Delivered by: Hon'ble Pradeep Kumar Singh Baghel,J.)
The appellants, Ram Singh and Ramendra alias Ravinder by way of this criminal appeal have assailed the judgment and order of the Additional Sessions Judge, Muzaffar Nagar dated 18.5.1983 convicting both Ram Singh and Ramendra alias Ravinder for commission of the offence under Section 302 read with Section 34 I.P.C..
The prosecution case insofar as the material for disposal of this appeal is; on 21.10.1981 at 4.45 P.M. the P.W.-1 Sewa Ram who is first informant went to his agricultural field along with his nephew Pramod on tractor, which had an attached trolley, to collect Munji which was being harvested by his another nephew Brijnandan since morning. Pramod was driving the tractor. When they reached at the field, the P.W.-1-Sewa Ram alighted from the tractor and with the help of one Ram Pal and Brijnandan they started uploading the Munji on the trolley of the tractor. In the meantime three persons emerged from adjoining sugarcane field. Two were armed with gun and third one with lathi. They came near Brijnandan and asked him that why he had abused them. The two assailants who had gun, immediately thereafter opened fire hitting Brijnandan. The gunshot caused grievous injuries to Brijnandan on his face and chest, as a result of which Brijnandan fell down on the ground and succumbed to his injuries.
The P.W.-1, Pramod Kumar and Ram Pal who were present on the spot sounded an alarm. Having heard the noise of the gunshot and their alarm, Om Prakash P.W.-3 and Raj Kumar P.W.-4, who were returning from Deoband towards the village rushed to the spot. The aforesaid two persons saw the assailants who were standing at the spot. After sometimes several other residents of the village assembled on the scene.
The motive which has been attributed for the said offence is stated to be; on the same day in the morning police party came to the village in search of one Meharchand. The P.W.-1's nephew Pramod was sitting along with Dharmpal, Ram Kumar and Om Prakash on the Kolhu of Om Prakash. The police party came there and asked the location of Meharchand's gher. Pramod escorted the police and pointed out the place of Meharchand. The police party thereafter arrested the elder brother of Meharchand, Pyare Lal and they inquired from him about one Harpal. The police after taking Pyare Lal in their custody took him to police station for further interrogation.
The P.W.-9 Dushyant, who was present there, later informed Om Prakash, father of Brijnandan (deceased) that Pramod had pointed out the place of Meharchand and the police had arrested Pyare Lal, took him in custody for further interrogation. Om Prakash, father of Brijnandan (deceased) approved the conduct of Pramod Kumar and said that for maintaining peace in the area such action is required. He also said that some persons of village are giving shelter to unsocial elements which is not good. At the same time his another son Brijnandan was going to his agricultural field for cutting Munji. He asked Pramod to bring the tractor and trolley to collect Munji from the field and carry it to home.
Ram Kumar (appellant) who was present at kolhu and had seen Pramod Kumar pointing out the place of Meharchand to the police, left the place along with another accused Jodha to inform Meharchand about the said incident.
It is stated that on the same day in the evening at 3.00 P.M., P.W.-5- Tara Chand and P.W.-6 Anand Swarup went to drink water at a hand pump near the kolhu of Meharchand. They saw, Meharchand, Jodh Prakash and Ram Kumar (accused persons) were sitting along with one Harpal near the kolhu and they were busy in hatching criminal conspiracy for murder of Brijnandan. The morning incident was genesis of conspiracy to Brijnandan.
The prosecution has tried to establish that both the witnesses P.W.-5 and P.W.-6 overheard the conspiracy which was being entered into by the accused persons, although P.W.-5 and P.W.-6 did not go there together but after a gap of few minutes. It is further their case that to execute the conspiracy the accused persons, namely, Ram Kumar, Jodh Prakash and Harpal left the kolhu and shortly thereafter Brijnandan was shot dead in the presence of the first informant Sewa Ram, his younger brother Pramod Kumar, one Rampal, his wife and his children who were also present there as they were cutting Munji crop.
The murder of Brijnandan took place at 4.45 P.M., the P.W.-1 who is the uncle of the deceased Brijnandan submitted a written report (Tahrir) (Exh. Ka-1), to Police Station Kotwali, Muzaffar Nagar, which is at a distance of 16 kms. from the place of the incident. The chick F.I.R. was prepared on the basis of the written report at 6.35 P.M. and a case was registered against the accused persons in the presence of P.W.-13 Babu Ram under Section 302 I.P.C.1.
The investigation was entrusted to P.W.-13 who recorded the statement of the first informant at the police station and reached at the scene of occurrence.
The inquest was undertaken on the body of the deceased in the presence of independent witnesses and the body was sent for postmortem. The I.O. had collected bloodstained earth from the spot and the normal earth and fard was prepared (Exh. Ka-13).
1 The Indian Penal Code, 1860 Two constables Tejvir Singh (P.W.-8) and Jagdish Bhati carried the body to the mortuary. The body was received for postmortem on 22.10.1981 at 10.30 A.M..
P.W.-7 Dr. D.C. Mohar conducted the autopsy on the body of the deceased. According to his opinion death was caused due to shock and hemorrhage as a result of gunshot wound. The doctor found the following injures on the body of the deceased:
“Ante Mortem injures:
1. Multiple Gun Shot wound of entry in an area 5” x 4” on front of neck and front of chest upper part, size 1/8” x 1/8” each, some are skin deep, some are muscle deep, some are superficial, (8) Metallic shots recovered from the muscle of the neck. No blackening & tattoing present.
2. Multiple Gun shot wound of entry in an rea 5” x 5” on front of chin, left side face lower part & left side neck upper Two third, size 1/8” x 2/8” each, some are superficial, some are skin, some are muscle deep. Five metallic shots recovered from chin & neck region under injury. No blackening & tattooing present.
3. Gun shot wound of entry 2” x 2”x chest cavity deep on right side chest upper part extending upto neck lower part. No Blackening and tattooing. There is fracture Ist rib under injury. The upper lobe right side lung is badly lacerated, pleura lacerated under injury, pleural cavity contain about (2) lb of fluid & clotted blood. (47) Metallic shots & two wadde piece recovered from the lung tissue and pleural cavity.
4. Lacerated wound 1” x 1/2”x through & through on posteriar & medial surface of left thumb terminal phalanx. The distal part of thumb hanging with a tag of skin & muscle. There is fracture terminal phalanx of left thumb.”
Two accused persons Ram Singh (appellant in Criminal Appeal No. 1053 of 194) was arrested on 12.11.1981 and identification parade was held on 28.11.1981. He was in District Jail, Muzaffarnagar. Another accused Ramendra alias Ravinder (appellant in Criminal Appeal No. 1249 of 1983) had surrendered on 21.12.1981 and the identification of Ramendra was held on 21.12.1981 by P.W.-2 Bihari Lal, Special Executive Magistrate.
Both the accused persons were identified by Sewa Ram (P.W.-1), Pramod Kumar (not produced), Om Prakash (P.W.-3), Raj Kumar (P.W.-4), Rampal (not produced) but Rampal who was alleged to be present at the time of occurrence of incident could not identify any of the accused.
Amongst other one of the submissions of learned counsel for the appellants is regarding serious irregularities in conducting the identification parade, that shall be dealt with at appropriate place of the judgment.
The prosecution in its support has examined the following witnesses. P.W.-1 Sewa Ram who is uncle of the deceased and the first informant P.W.-2 Bihari Lal, Special Executive Magistrate in whose presence the identification of the two accused were held, P.W.-3 Om Prakash and P.W.-4 Raj Kumar, P.W.-5 Tara Chand, P.W.-6 Anand Swaroop (P.W.-6 Anand Swarup and P.W.-5 Tara Chand, the witnesses who overheard the conspiracy when it was being concocted at the Kolhu of Meharchand. P.W.-
6 is the doctor, Dr. D.C. Mohar who had conducted postmortem examination on the body of the deceased and issued the postmortem report.
The statements of the accused persons were recorded under Section 313 Cr.P.C.. They had denied the allegations. The trial court after analyzing the evidence on record found that the prosecution has failed to prove the case of conspiracy beyond doubt against Ram Kumar, Mehar Chand and Jodh Prakash and they were acquitted of offence under Section 120-B I.P.C.. It further found that two accused persons Ram Singh and Ramendra were found guilty under Section 302 read with Section 34 I.P.C. respectively and they have been sentenced to imprisonment for life.
Learned amicus curiae Sri Raghuraj Kishore submits that when the trial court has disbelieved the story of the conspiracy and has acquitted some of accused persons, it was not justified to convict the appellants who are said to have executed the conspiracy. The trial court has rest the conviction of the appellants on the evidence of P.W.-3 and P.W.-4, whose presence on the scene is doubtful, in fact they are planted witnesses.
It is contended that the identification parade itself was illegal as the material irregularity has been committed thus no reliance could be placed on such identification test. Elaborating his submission, he submits that one of the appellants Ramendra's identification was done on 21.12.1981 that is after about two months of the incident. Similarly, identification of Ram Singh was held on 28.11.1981, after 38 days of occurrence of the incident. He further submitted that Ram Pal, the only witness, who was present at the time of occurrence of offence could not identify any of the accused and the result of identification has been mentioned as nil.
He further submits that on both dates 28.11.1981 and 21.12.1981 when the said identification of both the accused persons Ram Singh and Ramendra was conducted, one of the witnesses, Pramod who was also present on the spot when the incident took place, correctly identified the accused persons but he was not produced by the prosecution for the reasons best known to them.
It was pointed out that identification of Ram Singh was held on 28.11.1981 and on the same day before the identification test, he was sent to District Court where he was produced in another criminal case, thus the witnesses had ample opportunity to identify and recognize him before the official time fixed for identification. In fact, the accused persons were purposely exposed so that witnesses could identify them before holding identification parade, it was submitted that this was the reason why both the witnesses, P.W. 3 and P.W.-4 successfully identified the accused persons during identification but Ram Pal who was present at the scene when incident took place, could not identify any of the accused persons. Therefore, it was contended that the entire identification was a farce. It was further contended that P.W.-3 Om Prakash and P.W.-4 Raj Kumar are chance witnesses and their presence on the spot is very much doubtful.
The learned A.G.A. has submitted that the incident had taken place in the evening at 4.45 P.M. on 21.10.1981 when there was sufficient light in the month of October and the witnesses have recognized the two accused persons. P.W.-3 and P.W.-4 are independent witnesses and there is no reason to disbelieve their testimony. He further submitted that accused persons have been identified in jail during the course of identification parade by following norms and there was no illegality in identification test, which was conducted by the Magistrate.
We have heard learned counsel for the parties and perused the record.
The P.W.-1 is the first informant and uncle of deceased Brijnandan. On the fateful day deceased Brijnandan had gone alone to his agricultural field to cut the Munji (a crop). P.W.-1 along with his cousin Pramod Kumar who was driving the tractor went to the agricultural field where Brijnandan was cutting Munji, to collect it and to bring it home. According to him while they were loading the Munji on their tractor trolley, three unknown persons emerged from a field (shisham wale khet se). Out of three assailants two were armed with single barrel guns and one was carrying lathi. One of the assailants opened fire at Brijnandan. At the same time the second person who was also carrying a gun shot him, due to which he sustained bullet injuries and fell on the ground. He has stated at that time only three other persons namely Pramod Kumar, Ram Pal, his wife and two children were present. The P.W.-3 Om Prakash and P.W.-4 Raj Kumar came after Brijnandan was shot dead. But neither Ram Pal or Pramod Kumar, who was the real brother of deceased Brijnandan were produced by the prosecution.
The prosecution's case rests on the conspiracy story. The motive for the conspiracy in short is that on 21.10.1981 in the morning P.W.-9 Dushyant was going to ease near a brick kiln. On the way at Om Prakash's Kolhu he found that Pramod (brother of the deceased) was sitting along with Dharmpal, Ram Kumar and Om Prakash. At the same time the police came in tractor trolley and they asked them about the location of gher of Meharchand. Pramod, who was present there, took a lead by accompanying the police party and pointed out the gher of Meharchand. On his pointing out police arrested Pyare Lal, elder brother of Meharchand. The P.W.-9 told the fact to Om Prakash about the said incident who approved the conduct of Pramod Kumar and added that to maintain peace in the area it is necessary that people should help the police to identify the persons who give shelter to criminals in their home. But Ram Kumar disapproved the same. When Meharchand came to know about the said fact, on the same day in the afternoon around 3.00 P.M. at his gher along with Haripal, Jodh Prakash and Ram Kumar hatched a conspiracy to teach a lesson to Brijnandan who was cutting Munji at his field. Meharchand informed them that police was informed by one Om Prakash Seth and Pramod had pointed the home of Pyare Lal/ Meharchand. Jodh Prakash, Ram Kumar and Hari Pal supported Meharchand.
It is stated that the said conspiracy was overheard by P.W.-5 Tara Chand who had gone to take water from the hand pump near Kolhu of Meharchand. The P.W.-6 Anand Swarup also happened to reach on the same spot within 4-5 minutes and at almost same time when Tara Chand P.W.-5 had overheard the accused persons where they were conspiring to kill Brijnandan. After the said scheming Jodh Prakash, Ram Kumar and Haripal left the place. Both the witnesses had deposed that at 5.00 P.M. they heard sound of two firearms and after about 20 minutes the aforesaid persons Jodha and Ram Kumar returned to the same place. Jodha and Ram Kumar told Meharchand that they have finished Brijnandan and thereafter they left for their houses.
The P.W.-6 in his statement has stated that after hearing the conversation of Meharchand, Ram Kumar, Hari Pal and Jodh Prakash he returned to his field and at around 5.00 P.M. when he was at the field of Jagat, he heard the noise of firing. He has stated that he did not divulge the said fact to anyone.
The trial court has disbelieved the testimony of P.W.-5 and P.W.-6, not-trustworthy and unnatural thus it rejected the theory of conspiracy. The trial court has analysed the deposition of P.W.-5 and P.W.-6 in detail. We have also perused their statement carefully and we are also of the opinion that their testimonies did not inspire confidence and the trial court has rightly rejected their evidence.
The trial court has also found that P.W.-5 did not mention the fact regarding the conspiracy to the police at the time of preparation of the inquest report. He has also denied his statement under Section 161 Cr.P.C. but the I.O. has stated that he had recorded statement of Tara Chand along with Om Prakash, Raj Kumar, Anand and Dushyant. The trial court has found that his statement under Section 161 Cr.P.C. is totally contradictory to his evidence in the court. The P.W.-5 had deposed that he heard the conspiracy from a distance of about 8-10 yards. The trial court after referring the site-plan has also found that the statement of witness P.W.-5 when he heard the conversation of the accused persons while he was taking water at the hand pump was impossible since the hand pipe is at the distance of about four paces from the side in the west of Kotha. It was quite impossible for the P.W.-5 to hear their conversation from the hand pipe which is in East to the Kotha.
Consequently, all the three accused, namely, Mehar Chand, Ram Kumar and Jodh Prakash have been acquitted by the trial court of the offence under Section 120-B IPC against the aforesaid accused persons.
The P.W.-3 has stated that for the first time when he saw the assailants he was at a distance of 50-60 yards. As soon as he saw them, they started running for the place towards east in sugarcane field which was 60- 65 paces from there. In his cross examination he had deposed that they were returning from Deoband where they had gone to purchase she-buffalo. P.W.-3 stayed near the dead body for four hours till the police had taken the dead body for postmortem. P.W.-3 after seeing Ram Singh said that he has not seen any scar of small pox on the face of Ram Singh who has dark complexion. He has stated that in the identification parade no other person who had small pox scars was standing along with Ram Singh. Thus the witness has contradicted the statement of Executive Magistrate, Bihari Lal P.W.-2 who has stated in identification parade that several other persons who had also small pox, were standing along with the appellant Ram Singh.
P.W.-4 Raj Kumar had deposed that while he was returning from Deoband when he reached near the chak of Om Prakash, he heard noise of two firearm shots. Along with Om Prakash when he reached at the field of the deceased Brijnandan he saw three assailants were standing there and when they noticed the P.W.-4's presence they fled from the scene. The body of Brijnandan was also lying there on the spot. It is stated that Pramod, Sewa Ram, Rampal, his wife and two children were present.
Learned amicus curiae submitted that it was also possible that the appellant-Ram Singh got identified in the kutchery itself by the witnesses. There is also contradiction in the statements of P.W.-2 Executive Magistrate and the P.W.-4 Raj Kumar to the effect that P.W.-2 the Magistrate has said that along with Ram Singh there were other persons also who had marks of small pox, whereas the P.W.-3 Om Prakash has failed to prove that there was any other person with the small pox marks. Moreover, the P.W.-2 has stated that on the special marks he had fixed papers. The learned court submitted that the procedure adopted by the Magistrate is contrary to the law laid down by the Division Bench of this Court in the case of Asharfi and another v. The State2.
The P.W.-3 Om Prakash has deposed that other persons who were standing with Ram Singh-appellant no. 1 for identification, no one had marks of smallpox, thus both the witnesses have contradicted the statement of Magistrate.
Now the next question arises for our consideration is whether there is delay and irregularity in the identification parade and finding of the trial court holding the appellant Ram Singh and Ramendra guilty for the commission under Section 302 IPC.
The learned amicus curiae has laid much emphasis on the fact that
2 1961 (1) Cri. L. J. 340 : AIR 1961 Allahabad 153 there was a considerable delay in identification and the irregularity committed in identification test has caused serious prejudice to the accused persons. It is a trite law that purpose of holding identification during the investigation stage is to test the veracity and the memory of the witness which is based upon first impression of the accused who was not known to the witness and he had seen the accused for the first time while he was committing offence.
The identification test is not a substantive evidence. It only corroborates the evidence which the witness tenders before the court. One of the purposes of identification parade is to demonstrate that the progress of the investigation is in correct direction as the witnesses have identified the accused persons. The prosecution also decides to produce the witnesses in the court on the basis of identification test.
In a long line of decisions the Supreme Court has also held that it is always appropriate for the investigating agency to hold the identification parade without any delay and at the earliest following the law. But, if the delay occurs for some valid reasons, it will not be fatal for the prosecution's case as the identification test is not a substantive evidence unless it is corroborated by the ocular evidence in the court.
In the case of Matru alias Girish Chandra v. The State of Uttar Pradesh3, the Supreme Court held that one of purpose of identification is helping the investigating agency that its investigation is proceeding on right line. In the case of Santosh Singh v. Izhar Hussain and another4 the Court has held that the nature of identification proceeding is only of a test and for the said reason there is no provision for it in the Cr.P.C. or the Evidence Act. However, it is desirable that identification parade should be conducted as soon as after the arrest of the accused. It also eliminates the possibility of the accused being shown to the witness prior to the identification parade which is a very common plea of the accused persons, therefore, the prosecution has to be cautious to ensure that defence may not
3 1971 (2) SCC 75
4 (1973) 2 SCC 406 take a plea that the accused persons were shown to the witnesses. In the case of Munna Kumar Upadhyay alias Munna Upadhyaya v. State of Andhra Pradesh through Public Prosecutor, Hyderabad, Andhra Pradesh5, quoted with approval its earlier judgment in the case of Malkhansingh and others v. State of M.P.6, (SCC pp. 751-52, para 7):
“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. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.”
Our attention was drawn to a Division Bench judgment of this Court in the case of Asharfi and another v. State. The Division Bench after
5 (2012) 6 SCC 174
6 (2003) 5 SCC 746 considering a large number of previous judgments of the Supreme Court and other High Courts as well as instructions issued by the State Government, has laid down detailed guidelines in respect of identification test. The Court has found that the instructions issued by the State Government are mostly based on the decisions of the High Court and has also referred General Rules (Criminal) which have prescribed forums in which the memorandum of identification proceedings should be kept. The Court has further held that the precautions mentioned in the instructions should invariably be adopted and they are not mechanical but are calculated to guarantee against innocent persons so it is imperative that they be scrupulously followed both in letter and spirit. The Court after referring elaborate instructions issued by the U.P. Government has culled out the following principles:
“(33). CONDITIONS NECESSARY FOR ACCEPTABLE IDENTIFICATION EVIDENCE: The Court is bound to follow the rule that evidence as to the identification of an accused person must be such as to exclude with reasonable certainty the possibility of an innocent person being identified. In the very recent case of State of Madhya Pradesh v. Manka, 1980 MPC 216, a Division Bench of the Madhya Pradesh High Court, after examining some Indian, English and American rulings, held:
"The evidence of identity must be thoroughly scrutinised, giving benefit of all doubt to the accused; but if after a thorough scrutiny there appears to be nothing on the record to suspect the testimony of the identification witnesses, the Court ought not to fight shy of basing a conviction on such evidence alone, because of the bare possibility that there could be honest though mistaken identification."
Applying these principles in the facts of the present case we find that there is no considerable delay in this case which has caused any prejudice to the appellants. Ram Singh was arrested on 12.11.1981 and his identification test was held on 28.11.1981. Hence we do not find any unreasonable delay in holding identification test. He was identified by four persons P.W.-1 Sewa Ram, Pramod (not produced), Om Prakash P.W.-3, Raj Kumar P.W.-4, Rampal (he could not identify any of the accused persons although it was claimed that he was present during commission of the offence). The appellant Ramendra alias Ravinder had surrendered on 8.12.1981 and his identification test was held on 21.12.1981. In his case also there was no delay, however, we find that certain serious irregularities have been committed in the identification test.
Learned amicus curiae has stated that the appellant Ramendra's identification test was held on 21.12.1981. On the same day he was produced in another criminal case in district court and his identification test was held in jail at 5.00 P.M.. When the P.W.-2 the Executive Magistrate Bihari Lal reached in the jail for identification test the counsel for the accused had submitted an application (Exh. Kha-2), wherein he made a protest that the accused was sent to kutchery so there was a possibility that the police may show things to the witnesses. On his application, the Magistrate asked a report from the Jailer thereafter a constable was sent from jail to bring Ramendra from hawalat of kutchery to jail and thereafter his identification parade was conducted. This fact is clear from cross- examination of P.W.-2, whereas P.W.-3 Om Prakash has denied this fact.
P.W.-3 in his statement has denied this fact but he has stated that he reached the jail at around 1:00 – 2:00 P.M. in the noon, thus there is a material contradiction in the statements of P.W.-2 and P.W.-3. We find sufficient force in the submission of learned amicus curiae that there was a possibility that when Ramendra was brought to the jail from the District Court Hawalat, the P.W.-2 who was present at the gate of the jail might have seen the accused person with the help of police.
The prosecution has not led any evidence that they had taken sufficient precaution to conceal the identity of Ramendra-appellant from the witnesses. In our view there was no justification to hold the identification test on the same day when Ramendra was required to be produced in another criminal case in district court. The possibility that the witness had seen the accused cannot be ruled out as we find that no sufficient precaution was taken by the prosecution in this regard except a bald statement by the concerned constable that accused was brought in the jail Baparda.
Similarly, in respect of Ram Kumar also the procedure adopted in his identification test was contrary to the instructions issued by the U.P. Government and the law laid down by the Division Bench considering those instructions.
Admittedly, Ram Singh has small pox marks. According to the prosecution his marks were concealed by pasting slips of paper on each mark. This procedure has been disapproved by the Division Bench in Asharfi (supra). While dealing with the small pox marks the Court has held that other inmates who have small pox marks could be included among other persons who stand along with the accused persons instead of pasting the papers on the small pox marks. The Court held thus:
“22...
These instructions are mostly based on decisions of the High Court, and are admirable. Further, this Court in its General Rules (Criminal) has prescribed Forms in which the memorandum of the identification proceedings should be kept, Form No.
34 (Chapter VIII, rule 64) being the Form for suspected offenders and Form No. 37 for property. At the bottom these Forms enumerate the appropriate precautions that are essential.
These precautions should invariably be adopted and the memorandum prepared on the appropriate Form, each column of the Form being faithfully filled up. The legal importance of these memoranda has already been discussed. Here we should like to emphasise that these elaborate rules of conduct of test identifications of suspects and property are not mere mechanical devices but are calculated to guarantee against innocent persons or wrong property being pointed out, and accordingly it is imperative that they be scrupulously followed both in letter and in spirit.
*** *** *** *** *** *** “29. Smallpox marks deserve separate mention, for we have actually come across a case where the Magistrate had scrupulously pasted slips of paper on each pox mark of the suspect. Such marks are usually so large in number that any attempt at concealing them with slips of paper would make the face totally unrecognisable. Nonetheless it is a fact that people with poxmarked faces are to be found in all jails, hence what the Magistrates should do is not to attempt to conceal the pox marks of the suspect (but instead to make sure that a number of innocent men in the parade bear such marks.”
From the aforesaid fact it is evident that the procedure followed in the case of Ramendra is contrary to the law laid down by the Division Bench in Asharfi (supra).
From the aforesaid fact it is evident that in the case of Ram Singh also there is violation of instructions as well as law laid down by the Division Bench in the above extracted paragraph.
However, as held by the Supreme Court in the cases referred to above that identification test is not a substantive evidence and it has to be corroborated by the witnesses in the court in the light of law laid down by the Supreme Court. It cannot be held that merely on the ground that there was an irregularity in holding the identification test both the appellants are entitled for acquittal. The Court has to consider the ocular evidence of eye- witnesses.
In the present case the P.W.-1 the first informant has stated that when three persons suddenly came out from an adjoining field and two of them who were carrying gun, opened fire on Brijnandan and third one Ram Singh-appellant was armed with lathi. At the time of commission of said offence at the spot only Sewa Ram- P.W.-1, Pramod (brother of the deceased Brijnandan but he was not produced), Ram Pal, his wife and two children were present on the spot. He has clearly mentioned that P.W.-3 and P.W.-4 came to the spot after commission of the offence.
The P.W.-3 had deposed that one of the assailants had concealed his face. Only his eyes and nose were visible. It was stated by him that on the day when the incident occurred he was returning from Deoband at about 4.45 P.M. when he reached the border of Rohana he heard sound of gunfire and he also heard that someone was shouting "MAR LIYA MAR LIYA".
On hearing the said noise he along with Raj Kumar P.W.-4 rushed to the spot where they saw that all the three assailants were standing near the dead body and two were armed with gun and one miscreant was armed with lathi. The accused persons left the place only when they saw that P.W.-3 and P.W.-4 had arrived at on the spot.
In his statement P.W.-3 has stated that he could not recognize any of the assailants because he had not seen them earlier. In his cross- examination he had deposed that they were returning from Deoband, where they had gone to purchase a she-buffalo and when they heard the gunshot noise they rushed to the spot and had seen the assailants from a distance of 50-60 yards.
As noticed above, the P.W.-1 has clearly mentioned that at the time of commission of offence, the P.W.-3 and P.W.-4 were not present. Only eye- witness was Pramod Kumar, the real brother of the deceased Ramapal, his wife and two children. There is no plausible explanation why these two witnesses of the commission of offence were not produced by the prosecution. Relevant part of the statement of P.W.-1 is quoted below:
**tc eSa dry gksus ds ckn ?kVuk LFky ls pyk rks ekSds ij 3&4 vkneh NksM+dj pyk Fkk tks vkse izdk'k] jktdqekj] jkeiky o jkeiky dh ifRu o 2&2 cPps Fks A vkSj dksbZ ugha Fkk A bu lc yksxkas us dry gksrs ;k xksyh pykrs ugha ns[kk Fkk A dsoy jkeiky vkSj mldh iRuh us xksyh pykrs ns[kk Fkk A xksyh pyus ds le; eSa] izeksn] jkeiky vkSj mldh ifRu vkSj cPps ekSdk ij Fks vkSj dksbZ ugha Fkk A tc eqyfteku Hkkx x;s rc eSa ekSds ls pyk Fkk A** (emphasis supplied) Pramod Kumar is the real brother of the deceased and he was sitting at the driver seat of the tractor and Brijnandan the deceased was approximately 5-7 yards from the trolley towards the North East direction.
P.W.-3 and P.W.-4 according to their statement heard noise of the gun for the first time at place 'A' in the site plan. They were on the chakroad at the place 'A'. In the site plan the distance from place 'A' to 'C' from where they had seen the accused has not been mentioned nor in their evidence they have disclosed the said distance.
It is highly improbable that both the witnesses P.W.-3 and P.W.-4 after hearing sound of the gun shot at place 'A' would rush to the spot although both of them were unarmed and one of the witnesses P.W.-4 has stated that when he heard the gunshot noise he was scared of but they rushed to the spot from where sound of gunfire was coming.
We have carefully considered the statements of P.W.-3 and P.W.-4. Their statements do not inspire confidence. The place 'A' in the site-plan from where both the witnesses heard the noise of gunfire cannot be seen the place of occurrence. They were on the chak-road and the incident had taken place in the field which is towards South and West of the said place.
Both the witnesses have also stated that when they reached on the spot, the appellants were standing there. The P.W.-1 in his statement has said that when the accused persons opened fire, the P.W.-3 and 4 were not present. Only Rampal, his wife and children and Pramod were present. It is highly improbable that accused persons after killing Brijnandan will remain present at the spot without any reason and they ran away from the spot only when P.W.-3 and 4 came from place 'A' to place 'C'. The distance from place 'A' to 'C' has not been mentioned in the site plan and a contradictory statement has been given by both the witnesses regarding the said distance.
The P.W.-4 says that he had seen the incident from the place 'A'. It was highly improbable that P.W.-3 says that after hearing the noise he rushed to the spot and when he saw the accused persons, they were at the distance of 50-60 yards and they were standing. There was no reason that after killing deceased Brijnandan the accused persons will remain standing at the spot, thus the statements of P.W.-3 and P.W.-4 that they had seen the accused persons, is not believable.
Both the witnesses P.W.-3 and P.W.-4 had identified Ram Kumar and Ramendra. It is not clear that when the accused persons were not known to them, how they could identify them in a fleeting moment, when the accused persons were running away from the scene and they could not have got even a glimpse of their face. It was not possible to remember their face after more than a month. They fled towards sugarcane field of Ratan Prakash and Om Prakash.
Learned amicus curiae has invited our attention to the statements of P.W.-3 and P.W.-4 where they have stated that they had gone to purchase she-buffalo to Deoband and when they were returning to their home they had also gone to Jaroda and the distance from Jaroda to the place where they heard noise of gunfire was one and half kms..
Pertinently, the P.W.-13 - I.O. has deposed that P.W.-3 Om Prakash and P.W.-4 Raj Kumar had not told him that they were returning from Deoband or Jaroda. This fact was not recorded in their statement under Section 161 Cr.P.C..
Learned amicus curiae submitted that to make it probable that both the witnesses were near the seen of occurrence, they for the first time introduced the new fact that while they were returning from Deoband they had also gone to Jaroda, but this fact was not recorded in their statements under Section 161 Cr.P.C.. When they were confronted with this fact they had stated that they told the I.O. regarding their visit to Jaroda but it was not recorded. As mentioned above, P.W.-13 I.O. has denied the said fact.
From the above discussion, we find that conduct of P.W.-1, P.W.-2 and P.W.-3 were clearly unnatural which make their evidence extremely suspicious.
Another important feature is that the postmortem report shows that injury no. 4 is caused by a blunt weapon and it is a lacerated wound (1'' x 1/2") thus this injury shows that it was not caused by a gunshot. There is no evidence that the sole appellant in Criminal Appeal No. 1053 of 1984 who was armed with lathi assaulted the deceased. The statement of P.W.-1, the only eye witness, who was present when the deceased was shot by two assailants, has deposed that Ramendra and unknown assailants had opened fire and there is no evidence that appellant Ram Singh (sole appellant in Criminal Appeal No. 1053 of 1984) had caused any injury to the deceased.
The finding of the trial court that even a pallet of gun is blunt weapon is not correct in our view. The doctor in his statement has clearly stated that the injury no. 4 was caused by a blunt weapon. The trial court has also recorded that the lathi was not used because the fire of the gun was more than sufficient to bring end of the deceased and after receiving the gunshot wound he fell down on the ground and died. There was no need of lathi blow. Thus, the trial court has not recorded any clear finding about the injury no. 4, moreover, we do not agree with the view of the trial court that a pallet can also be treated as a blunt weapon. The injury no. 4 is a lacerated wound (1'' x 1/2'') which cannot be caused by pellet.
For the reasons mentioned above, we find that the trial court has erred in placing reliance on the testimony of P.W.-1, P.W.-2, P.W.-3 and P.W.-4 regarding the occurrence of incident. The combined reading of the evidence of P.W.-1, P.W.-2, P.W.-3 and P.W.-4 clearly demonstrates that their evidence fail to inspire confidence. The P.W.-1, P.W.-2, P.W.-3 and P.W.-4 do not appear to be trustworthy. Hence, in our view the prosecution failed to process its case beyond reasonable doubt. There are many contradictions in the statement of main witnesses on the material points, which we have discussed above.
It is pertinent to mention that as per evidence of three eye-witnesses, there were three assailants who were present on the scene and two of them who were armed with gun had opened fire and third one Ram Singh- appellant had lathi. Out of two assailants, the prosecution has charged only Ramendra under Section 302. The unknown third assailant was not arrested nor any chargesheet has been filed.
The trial court has also failed to consider that when it had found that a conspiracy for murder was not established, the resultant commission of offence was merely an execution of the conspiracy coupled with the fact that two assailants who have been held guilty could not be recognized by the P.W.-1 at the time of commission of offence, one of them was covering his face to conceal his identity thus his evidence was accepted only on the basis of his identification of the accused in the jail, for the reasons recorded above it is not safe to rely on the identification test, as mentioned above, hence there is a reasonable doubt about the involvement of the appellants in commission of the said offence. Accordingly we set aside the order and judgment of the trial court dated 18.5.1983. All the appellants are on bail. They need no to surrender and their bail bonds and sureties are discharged, if they are not wanted in any other case. Appeals are accordingly allowed.
Let a copy of this judgment and lower court record be sent to the Lower Court for intimation and compliance.
Before parting the case we would like to record our deep appreciation for the extremely valuable assistance provided by the learned amicus curiae Sri Raghuraj Kishore.
Judgment be certified and placed on record.
Order Date :-24.4.2018 Digamber