1 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 266 of 2011 1. [ENTITY] S/o Dhanesh Ram, aged about 25 years 2. [ENTITY] S/o Phool Singh Markam, aged about 20 years Both R/o village Mukundpur, Police Station Sihawa, District Dhamtari, CG Appellants Versus 1. [ENTITY] through the Police Station Magarlod, District Dhamtari, CG Respondent
CRA No. 350 of 2011
1. [ENTITY] S/o Shri Paklu Ram Salam, aged about 22 years
2. [ENTITY] S/o Hira Singh, aged about 20 years
3. [ENTITY] S/o Shri Gada Ram, aged about 19 years All R/o village Rautmuda, Police Station Magarlod, District Dhamtari, CG
Appellants Versus
1. [ENTITY] through the Police Station Magarlod, District Dhamtari, CG
Respondent AND
1. [ENTITY] aged about 20 years, son of Shree Goverdhan Singh Markam, R/o village Mukundpur, PS Sihava, District Dhamtari, CG
Appellant Versus
1. [ENTITY] through the Police Station Magarlod, District Dhamtari, CG
Respondent For Appellants : Shri [ENTITY], Shri [ENTITY] and Shri [ENTITY], Advocates For Respondent/State : Shri [ENTITY], GA Hon'ble Shri Justice [ENTITY] Hon'ble Shri Justice [ENTITY] Judgment on Board by [ENTITY], J 04/01/2018 As the aforesaid three Criminal Appeals arise out of the same judgment dated 04.03.2011 passed by Additional Sessions Judge (FTC) Dhamtari in [CASE NUMBER] convicting the accused/appellants under [SECTION] [ACT] and sentencing each of them to undergo imprisonment for life and pay fine of Rs. 500/- plus default stipulations, they are disposed of by this common judgment.
2. As per the case of prosecution, on 11.08.2010 FIR (Ex.P-
1) was lodged by [ENTITY] (PW-1) to the effect that in the intervening night of 15/16.07.2010 when he along with other family members was sleeping in his house someone knocked at the door but as there was a rumor in the village that after threatening the villagers the Naxalites were committing dacoity, he did not open it. FIR further states that sometime thereafter few persons came to his courtyard by jumping over the roof, started knocking at the door again and asked to open the door calling him by name. Those persons are also alleged to have threatened him of being shot at in case the door was not opened and then on account of fear he opened the back door of the courtyard. FIR further goes to state that two persons then came inside the room - one carrying gun and the other carrying knife, and got opened the front door also on the point of gun. On opening the front door, 4-5 other persons - all in green uniform also got in and out of them two were carrying knife-like weapons. One of those two, kept his children aside whereas the other demanded Rs. 3 lakhs from him. When he expressed his inability to pay that much of amount and asked them to take away the household items, they did did not agree for that and remained adamant on their demand for money. They asked him to part with whatever amount was with him or else he and his entire family would be done away with. Thereupon, he took out Rs.
16,000/- from his shop and gave it to them. According to the lodger of FIR, he could identify the said persons if happened to see them though 1-2 of them were hiding their faces. FIR states that after those persons left his house, he heard their voice emanating from the house of his neighbour [ENTITY] but on account of fear he did not come out of his house and on the next day he came to know that they took away Rs. 5000/- from the house of [ENTITY], Rs. 20,000/- from the house of [ENTITY], Rs. 10,000/- from [ENTITY], Rs. 32,000/- from [ENTITY] and Rs. 25,000/- from [ENTITY] by putting all under the threat of life. FIR states that taking those persons as Naxalites they remained silent on account of fear and subsequently after reading the news of some persons being arrested by the police of police station Nagri, they gathered courage of lodging the report. It states that these persons including [ENTITY] had committed the dacoity by threatening them of life. Based on this FIR, offence under [SECTION] [ACT] was registered against [ENTITY] and others. After inquiry, except accused [ENTITY] who was already arrested by the police on 10.08.2010 (in arrest memo it is mentioned as 10.09.2010), the others were arrested on 12.08.2010 on the basis of disclosure of their names by [ENTITY]. On 12.08.2010 itself on the memorandum of accused [ENTITY] Ex. P-6, seizure of black colour mask, photocopy of ration card of [ENTITY] and cash of Rs. 500/- was made from him under Ex. P-7; on the memorandum of accused [ENTITY] Ex. P- 8, seizure of knife, voter ID card of [ENTITY] and a cash of Rs. 500/- was made from him under Ex. P-9; on the memorandum of accused [ENTITY] Ex. P-10, seizure of knife, bag (pitthu), Naxalite uniform and a cash of Rs. 500/- was made from him under Ex. P-11; on the memorandum of accused [ENTITY] Ex. P-12, seizure of black mask and a cash of Rs. 500/- was made from him under Ex. P-13; on the memorandum of accused [ENTITY] Ex. P-14, seizure of gun, voter ID card of [ENTITY] and cash of Rs. 1000/- was made from him under Ex. P-15. Likewise, 49 currency notes of 500 denomination totaling to Rs. 24,500/- were seized from [ENTITY] (PW-3) under Ex. P-16. On 09.10.2010, Test Identification Parade (TIP for short) was conducted vide Ex. P-4, P-22, P-23, P-24 and P-24 by [ENTITY] (PW-16) - the Naib Tehsildar, and it is said that all the five complainants in whose houses dacoity was committed namely [ENTITY] (PW-1), [ENTITY] (PW-4), [ENTITY] (PW-5), [ENTITY] (PW-7) and [ENTITY] (PW-8) have identified the accused persons - five in number namely [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY]. After investigation, challan was filed by the police under [SECTION] [ACT] followed by framing of charge by Court below accordingly.
3. In order to prove its case the prosecution has examined 16 witnesses including the victims - six in number, in support of its case. Statements of the accused/appellants were also recorded under [SECTION] of the [ACT] in which they denied their guilt and pleaded innocence and false implication in the case.
4. After hearing the parties the Court below has convicted and sentenced the accused/appellants as mentioned above by the judgment impugned.
5. Counsel for the accused/appellants submit as under:
(i) That there is inordinately delay of 27 days in lodging the FIR.
(ii) That the alleged dacoity was committed in the house of the victims in the intervening night of 15/16.07.2010 but suprisingly they kept quiet till 11.08.2010.
(iii) That the unexplained inordinate delay in lodging the FIR appears to be quite un-natural to be accepted because except saying that on account of fear the report could not be lodged, no plausible and convincing reason has been assigned by the complaint.
(iv) That the entire story appears to have been cooked up against the accused/appellants only after the arrest of [ENTITY] - accused in some other case relating to dacoity and that too after publication of his photograph in a newspaper.
(v) That accused [ENTITY] was arrested on 10.08.2010 vide Ex. P-31 (though mentioned as 10.09.2010) whereas the other accused persons were arrested on 12.08.2010 but their TIP was conducted on 09.10.2010 by PW-16 and no explanation has been offered by the prosecution for this inordinate delay in so doing. This delay in conducting the TIP is fatal to the case of the prosecution and on this ground alone the accused/appellants are entitled for acquittal.
(vi) That as per the FIR and the statements of the victims, some of the accused persons had covered their faces with the piece of cloth and therefore the question of their identification becomes doubtful particularly when there is no evidence to show that they were kept [ENTITY] before conducting TIP.
(vii) That it is literally imposible for the prosecution to keep all the accused [ENTITY] for more than two months.
(viii) That as many as 09 TIPs were conducted by the prosecution on 09.10.2010 itself in number of cases without mixing the persons properly and therefore also the TIP is doubtful.
(ix) That there is no evidence to show that the seized articles were the same which are said to have been taken away by the accused/appellants because no identification in respect of those things has been conducted.
(x) That the accused/appellants are in jail for about seven and a half years, that they are rustic villagers and have been implicated in a false case, they may be set free forthwith.
6. On the other hand counsel for the respondent/State supports the judgment impugned and submits that the findings recorded by the Court below convicting the accused/appellants under [SECTION] [ACT] are strictly in accordance with law and there is no infirmity in the same.
7. Heard counsel for the parties and perused the evidence available on record.
8. [ENTITY] (PW-1) has stated that in the intervening night of 15.07.2010 and 16.07.2010 when he was sleeping in his house, someone knocked at the door hurling abuses but he did not open the same. Thereafter, accused [ENTITY] and [ENTITY] came to his courtyard by getting over the roof and on the gun point they asked him to open the door. On his opening the door these two persons entered his room. By touching accused [ENTITY] and [ENTITY], this witness has identified them to be the persons who had come to his courtyard by getting over the roof and then entered the room after he opened the door. He has further stated that after accused [ENTITY] and [ENTITY] opened the outside door, accused [ENTITY] also came inside and the remaining accused kept standing outside. Accused [ENTITY] is stated to have held the gun whereas the other one had knife and gun and on the point of those weapons they demanded Rs. 03 lakhs from him. On showing his ability to pay that much amount and in turn offering the household items to be taken away, they remained stuck to the demand of money and ultimately he gave Rs. 16000/- to accused [ENTITY] after taking out from the almirah. While leaving his house, the accused persons are stated to have broken the electric fixtures and threatened him of life in case they informed anyone about the incident. According to this witness, in the next morning he came to know that the accused persons had also taken away Rs. 5000/- from [ENTITY], Rs. 20,000/- from [ENTITY], Rs. 10,000/- from [ENTITY], Rs. 32,000/- from [ENTITY], Rs. 25,000/- from [ENTITY] by putting all under threat of life. Accused persons are stated to be in Naxalite uniform and for that he got scared taking them to be Naxalites. He has further stated that some days thereafter he read a newspaper having the photographs of accused persons, he came to know that it is they who committed dacoity in his house also and then the report was lodged. According to him, he identified the accused persons in the TIP conducted by the Nayab Tehsildar vide Ex. P-4. [ENTITY] (PW-2) - the witness to memorandum and seizure has supported the case of the prosecution. [ENTITY] (PW-
4) - another victim from whose house Rs. 5000/- were taken away has stated that in the Court he identified accused [ENTITY], [ENTITY] and [ENTITY] by touching them. [ENTITY] (PW-5) is also one of the victims from whose house Rs. 32,000/- were taken away by the accused persons who had come in Naxalite uniform. In the Court he identified accused [ENTITY], [ENTITY] and [ENTITY] by touching them to be the persons entering in his house and taking away the said amount. In the TIP he however is stated to have identified all the accused persons. [ENTITY] (PW-6) - the witness to test identification parades conducted under Ex. P-4 and Ex. P- 22 to Ex. P-25 has supported the case of the prosecution. [ENTITY] (PW-7) - one of the victims from whose house Rs. 10,000/- and five biscuit packets were taken away is stated to have identified the accused persons as per identification memo Ex. P-23. [ENTITY] (PW-8) - yet another victim from whose house Rs. 20,000/- were taken away is stated to have identified all the accused persons in test identification parade vide Ex. P-24. Smt. [ENTITY] (PW-9) is the wife of PW-8 has stated that three accused persons entering her house were in green colour uniform. In the Court also she identified them by gesture as [ENTITY], [ENTITY] and [ENTITY] who entered her house. [ENTITY] (PW-10) is also one of the victims from whose house the accused persons are stated to have taken away Rs. 25,000/- from his house. According to him, out of seven persons involved in the incident, three were identified by him in the Court by gesture to be [ENTITY], [ENTITY] and [ENTITY]. [ENTITY] (PW-11) is the son of PW-10 who has also stated that a total sum of Rs. 25,000/- was taken away by the accused persons. [ENTITY] (PW-12) is the investigating officer who has duly supported the case of the prosecution. He has admitted that the currency notes seized from the accused persons are common in circulation in the market. [ENTITY] (PW-13) has stated almost the same thing like PW-10 and PW-11 who are his father and brother respectively. In the Court he is stated to have identifed accused [ENTITY], [ENTITY] and [ENTITY] by touching to be the persons who entered his house. [ENTITY] (PW-15) is the Patwari who prepred spot map Ex. P-3. [ENTITY] (PW-16) is the Nayab Tehsildar who conducted test identification parade.
9. True it is that five accused persons have been identified in the test identification parade conducted by PW-16 on 9.10.2010 whereas some of the accused persons have been identified in the dock identification, but there is no evidence on record to show that from 12.08.2010 when the accused persons were arrested, to 09.10.2010 when the TIP was conducted they were kept [ENTITY]. On the contrary, the evidence on record reflects that after arrest of the accused persons on 12.08.2010 their memornadums were recorded at village Mukundpur itself and being so the possibility of accused persons being seen by the witnesses before the TIP was conducted cannot be ruled out. Furthermore, two months' delay in conducting the TIP has also not been properly explained by the prosecution. Record shows that from the date of arrest till the date when the TIP was conducted, the accused persons were taken on remand on six occasions and therefore, in the absence of any positive evidence that all the time they were kept [ENTITY], TIP falls within the shadow of doubt. Needless to say, to keep one [ENTITY] for such a long period is not practically possible.
10. It is a settled position of law that the test identification parade should be conducted as soon as possible after the arrest of the accused and this becomes necessary to eliminate the possibility of accused being shown to witnesses prior to parade. It is also a settled position of law that delay in conducting test identification parade is not always fatal especially when sufficient cause has been assigned by the prosecution to substantiate such delay. In the case of [PRECEDENT] while discussing the cases germane to the question of identification parades and the effect of delay in conducting them it has been held by the Apex Court as under:
"43. It will thus be seen that the evidence of identification has to be considered in the peculiar facts and circumstances of each case. Though it is desirable to hold the test identification at the earliest-possibile opportunity, no hard and fast rule can be laid down in this regard. If the delay is inordinate and there is evidence probabalising the possibility of the accused having been shown to the witnesses, the Court may not act on the basis of such evidence. Moreover, cases where the conviction is based not solely on the basis of identification in Court, but on the basis of other corroborative evidence, such recovery of looted articles, stand on a different footing and the Court has to consider the evidence in its etirety."
11. In the case of [ENTITY] v. State of UP (2003) 3 SCC 569 it has been held by the Apex Court as under:
"It is to be seen that apart from stating that delay throws a doubt on the genuiness of the identification parade and observing that after lapse of such a long time it would be difficult for the witnesses to remember the facial expressions, no other reasoning is given way such a small delay would be fatal A mere lapse of some days is not enough to erase the facial expressions of assailants from the memory of father and mother who have seen them killing their son "
12. In another case of [PRECEDENT] placing reliance on the case of [ENTITY] (supra) the Apex Court observed as under:
"It is neither possible nor prudent to lay down any invariable rule as to the period within which a Test Identification Parade must be held, or the number of witnesses who must correctly identify the accused, to sustain his conviction. These matters must be left to the Courts of fact to decide in the facts and circumstances of this case. If a rule is laid down prescribing a period within which a Test Identifiction Parade must be held, it would only benefit the professional criminals in whose cases the arrests are delayed as the police have no clear clue about their identity, they being persons unknown to the victims. They therefore, have only to avoid their arrest for the prescribed period to avoid conviction. Similarlh, there mahy be offences which by their very nature may be witnessed by a single witness, such as rape. The offence may be unknown to the victim and the base depends solely on the identification by the victim, who is otherwise found to be truthful and reliable. What justifiction can be pleaded to contend that such cases must necessarily result in acquittal because of their being only one identifying witness. Prudence therefore, demands that these matters must be left to the wisdom of the Courts of fact which must consider all aspects of the matter in the light of the evidenc eon record before pronouncing upon the acceptability or rejection of such identification."
13. In the matter of [PRECEDENT] it has been held by the Apex Court as under:
"Therefore, the following principles regarding identification parade emerge: first an identification parade ideally must be conducted as soon as possibile to avoid any mistake on the part of the witnesses; this condition can be revoked if proper explanation justifying the delay is provided; and (3) the authorities must make sure that the delay does not result in exposure of the accused which may lead to mistakes on the part of the witnesses."
14. Yet another important aspect of the case which creates doubt in the prosecution story is that dacoity has been committed in the house of as many as six persons in this case and in four other cases where also the accused persons have been convicted but yet these victims kept quiet for about 27 days in lodging the FIR. In the case in hand the incident took place in the intervening night of 15/16.7.2010 whereas for the first time the matter was reported to the police by one of the victims namely [ENTITY] (PW-1) on 11.08.2010. This un-explained inordinate delay in lodging the FIR also creates doubt in the prosecution story especially when it has been lodged after seeing the photograph of one of the accused [ENTITY] appering in a newspaper. Dealing with the question of delay in lodging FIR in the matter of [PRECEDENT] it has been held by the Apex Court as under:
"9. In criminal trial one of the cardinal principles for the court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the court at the earliest instance. That is why if there is delay in either coming before the police or before the court, the court always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case.
10. In [PRECEDENT] it was held that the delay in lodging the first information report quite often results in embellishment as a result of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaniety, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation.
11. In [PRECEDENT] the position was explained that whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution must depend upon a variety of factors which would vary from case to case. Even a long delay can be condoned if the witnesses have no motive for implicating the accused and/or when plausible explanation is offered for the same. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness or authenticity of theversion of the prosecution.
12. The complainant has attempted to explain the delay by stating that the matter was reported to the police but the police did not take any action. Such statement can hardly be taken to have explained lthe delay. It is the wimplest of things to contend that the police, though report had been lodged with it, had not taken any steps. But it has to be established by calling for the necessary records from the police to substantiate that in fact a report with the police had been lodged and that the police failed to take up the case."
15. Further in the matter of [PRECEDENT] represented by [PRECEDENT] it has been held by the Apex Court as under:
"9. In [PRECEDENT] this Court has observed as under:
16. It is trite that mere delay in lodging the first inforamation report is not by itself fatal to the case of the prosecution. Nevertheless, it is a relevant factor of which the court is obliged to take notice and examine whether any explanation for the delay has been offered and if offered, whether it is satisfactory or not. If no satisfactory explanation is forthcoming, an adverse inference may be drawn against the prosecution. However, in the event, the delay is properly and satisfactorily explained; the prosecution case cannot be thrown out merely on the ground of delay in lodging the FIR.
Obviously, the explanation has to be considered in the light of the totality of the facts and circumstances of the case.
10. In [PRECEDENT] this Court observed as under:
14. When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon amaong urban people alos. They might not immediately think of going to the police station.
Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquility of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident."
16. Another important aspect of the case is that the articles seized on the basis of memorandums of the accused persons have not been put to identification proceedings. As regards seizure of the currency notes, they being commonly available in the market for circulation, cannot be connected with the crime in question being the same currency notes which were taken away by the accused persons from various victims. This fact has even been admitted by the investigating officer.
17. Thus viewing the aforenoted lacuna in the prosecution case in the light of the legal position adumberted above, this Court is of the considered opinion that the prosecution has not been able to prove its case to prove its case beyond all reasonable doubt and for that the accused/appellants are entitled to have the benefit of doubt. Accordingly, the appeals are allowed, the judgment impugned is set aside and the accused/appellants are acquitted of the charge levelled against them. They being in jail are directed to be released forthwith if not required in any other case.
Sd/- Sd/- ([ENTITY]) ([ENTITY]) Judge Judge [ENTITY]