s; ONsion tw^ m THE mOH COTJRT OF CHHATHSGARH AT BHASPUR (C.G. CRimNALAPPEAL N0. '^ r)- \ /2009 APPELLANT INJAIL""1^^ .-^••' y-i^ ^V ,\A -V RESPONDENT Parmeshwar @ Parsia @ Shipa S/o Vaykanti @ Ishwar Kale Aged about 30 years R/o Kektapangri, P.8. Gevarai, District-Beed, Maharstra. VERSUS State of Chhattisgarh Through- P.S. Purani Bhilai, District-Durg (C.G.) S.T. No.141/2006 rf--" Offence U/s. 395, 302 r/w 396, 307 r/w 396, 398 ofI.P.C. CRmONAL APPEAL UNDER SECHON 374 (21 OF THE CODE OF CRDfflNAL PROCEDURE K'W»1"Nt-'"'ii-l'*» 7 ^atft is°i^ HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARIVIA AND HON'BLE MR. R.L. JHANWAR, JJ. Criminal Appeal No.721 of 2009 Parmeshwar @ Parsia @ Shipa - Versus - State of Chhattisgarh JUDGIVIENT FOR CONSIDERATION HON'BLE MR. JUSTICE R.L. JHANWAR th Sd/- T.P. Sharma Sd/- R.L. Jhanwar Judge Post for eronoyncement ofjydgmentoiLl3lL' April. 2011 Sd/- T.P. Sharma Judge .^aiKCKSaL F; ^^T^^T^^^^^ ^jl'i3^ \sfw^^ liW '^-s"'iri ft '°1fe' / ili? ^ s^ .'y 'lli.. ??iE£'^. 'vo i'-aea' :~^-^^v ^ HIGH COURT OF CHHATTISGARH. BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. APPELLANT: (In Jail) Criminal Appeal No.721 of 2009 Parmeshwar @ Parsia @ Shipa S/o Vaykanti @ Ishwar Kale Aged about 30 years R/o Kektapangri, P.S. Gevarai, District Beed, Maharashtra. Versus State of Chhattisgarh Through P.S. Purani Bhilai, District Durg(C.G.) RESPONDENT: {Criminal appeal under Section 374(2) ofthe Code of Criminal Procedure} Present: Mr. R.K. Jain, counsel forthe appellant. Mr. R.R. Sinha, Panel Lawyerforthe State/respondent. JUDGMENT (Delivered on 13thApril, 2011) The followina iudament of the Court was passed by T.P. Sharma, J: - 1. Challenge in this appeal is to the judgmentof conviction & order of sentence dated 12-8-2009 passed by the 8 Additional Sessions Judge (FTC), Durg in Sessions Trial No.141/2006, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of dacoity with murder of Balwant Bhai & Jayesh Bhai by using deadly weapons and attempt to murder of Shailesh, Hariram, Smt. Indira & Smt. Sangeeta, convicted the appellant under Sections 395, 302 read with Section 396 and 307 read with Section 397 of the IPC and sentenced him to undergo imprisonment for life & pay fine of Rs.1,000/- under Sections 395 & 302 read with Section 396 of the IPC and to uridergo Rl for ten years under Section 307 read with Section 397 of the ''<--. ••• ~." ^- -1.^-t; . •i^'"'' ?i >?IJ IPC, in default of payment of total fine amount of Rs.2,000/- to further undergo Rl for three months. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant as aforementioned and thereby committed illegality. 3. As per case of the prosecution, on the fateful night of 16-11-2004 betw/eeh 0.30 hours and 1.15 hours at night, six persons entered in the house of Shailesh Kumar Shah (PW-8) situate at Padum Nagar, Bhilai-3, Distt. Durg, they were armed with deadly weapons, they snatehed ornaments of Sangeeta—wife ofShailesh Shah, Indira - sister-in-law of Shailesh Shah and committed dacoity from his house and during the course of dacoity, they committed murder of his brothers Balwant Bhai & Jayesh Bhai. The accused persons assaulted this witness Shailesh Shah & Hariram and attempted to commit murder of Shailesh, Hariram, Smt. Indira & Smt. Sangeeta, but some how this witness jumped from his house, came out of his house and informed to the police who were on patrolling duty. Thereafter, police came to the house of Shailesh Shah and recorded dehati nalshi vide Ex.P-31 and on the basis of dehati nalshi, FIR Ex.P-36 was lodged. Injured were sent for immediate medical treatment. On account of death of Balwant Bhai & Jayesh Bhai, merg Exs.P-9 & P-10 were recorded. Numbered merg was recorded vide Exs.P-37 & P-38. After summoning the witnesses vide Exs.P-43 & P-44, inquest over the dead bodies of Balwant Bhai & Jayesh Bhai was prepared vide Exs.P-45 & P-46. Injured Sangeeta and injured Indira were examined by Dr. B.P. Panda (PW-12) vide Exs.P-33 & P-34, respectively. Other injured Shailesh Shah (PW-8) and Hariram were , examined by Dr. S.K. Bhoi (PW-6) vide Exs.P-22 & P-23, respectively. Dead body of Balwant Bhai was sent for autopsy to Government .•- -^ga Hospital, Durg, vide Ex.P-1 and autopsy was conducted by Dr. V.R. Meshram (PW-20) vide Ex.P-52. Cause of death of Balwant Bhai was asphyxia as a result of compression over neck. Dead body of Jayesh Bhai was sent for autopsy to Government Hospital, Durg, vide Ex.P-2 and autopsy was conducted by Dr. V.R. Meshram (PW-20) vide Ex.P-53. Fire arm injuries and internal injuries were found on the person of Jayesh Bhai. Cause of death of Jayesh Bhai was shock and haemorrhageas a result of ante mortem fire arm injuries. Viscera of Balwant Bhai was sealed and seized vide Ex.P-3. Viscera and bullet found over the body of Jayesh Bhai were sealed and seized vide Ex.P-4. Blood stained and plain soil were recovered from the spot vide Exs.P-11& P-12. Blood stained bat was seized vide Ex.P-13. Blood stained soil was seized vide Exs.P-14& P-15. Empty cartridges were examined vide Exs.P-16 & P- 17. Injured weretreated vide Exs.P-18 to P-29. Grievous injuries were found over the bodies of the injured. Spot map was prepared by the Patwari vide Ex. P-30. During the course of dacoity, wrist watch of Shailesh Shah was also taken by the accused. Documents of medical examination were seized vide Ex.P-35. During the course of investigation, the appellant was taken into custody, he made discloser statement of wrist watch and the house where the dacoity was committed, vide Ex.P-48. Wrist watch was recovered from the appellant at his instance vide Ex. P-47. Another co-accused Nanya @ Prem @ Navnath made discloser statement vide Ex.P-50, but nothing has been recovered at his instance. Identification of the appellant was conducted vide Ex. P-54 and the appellant was identified by Shailesh Shah (PW-8). Some pieces of paper were also seized vide Ex.P-55. Panchnama of the house was prepared vide Ex. P-56. Discloser statement of another accused Sanjay @ Rahul @ Papadiya was recorded vide Ex. P-57 and panchnama of the place of incident was prepared vide Ex.P-58. Initially spot map was prepared by the Investigating Officer vide Ex.P-61. Seized articles were sent for chemical examination vide Ex. P-62. Sanction for prosecution of the appellant for the offence punishable under the Arms Act was applied vide Ex. P-63. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Courtof Additional Chief Judicial Magistrate, Durg, who committed ttie case to the Court of Sessions, Durg, from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused, the prosecution has examined as many as thirty-five witnesses. The accused were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge while acquitting co-accused Sanjay Papadiya, convicted & sentenced the appellant in the aforesaid manner. 7. We have heard learned counsel for the parties, perused the judgment and record of the trial Court. 8. Mr. R.K. Jain, learned counsel for the appellant, vehemently argued that this is a brutal case of dacoity with murder of two persons and attempt to commit murder of four persons by six or more than six persons. Considering gravity of charge, the prosecution was under obligation to prove the charge by examining witnesses of sterling quality. In case of ,, heinous charge, duty to prove charge against the accused is heavy on the prosecution. Mr. R.K. Jain submitted that he is not disputing brutal murder of two persons, attempt to commit murder of four persons and commission of dacoity from the house of Shailesh Shah (PW-8). However, he further submits that commission of aforesaid serious offence is not sufficient for conviction of the appellant, in absence of any cogent and reliable evidence, to connect the appellant with the crime in question. As per case of the prosecution, the accused/appellant was not known to the complainant party and, therefore, in order to connect the appellant with the crime in question, the prosecution was under obligation to establish the fact by adducing evidence and to conduct identification that the appellant was present at the time of commission of offence and he has participated in commission of dacoity and murder. Property taken by the accused at the time of dacoity has been recovered from the possession of the appellant, but the prosecution has utterly failed to prove the aforesaid facts and in absence of aforesaid evidence, conviction & sentences of the appellant are not sustainable under the law. 9. Mr. R.K. Jain, learned counsel for the appellant, placed reliance in the matter of Bharatv. State of M.P. in which the Supreme Court has held that identificationof article having specific mark of identification is not proper, likewise evidence of witnesses of recovery of articles in terms of Section 27 of the Indian Evidence Act, 1872 containing signature of witnesses on the dotted lines, is not reliable. 10.0n the other hand, Mr. R.R. Sinha, learned Panel Lawyer appearing on behalf of the State/respondent, opposed the appeal and submitted that the prosecution has adduced sufficient evidence to connect the appellant with the crime in question. Shailesh Shah (PW-8) has identified the article taken from him and he has also identified the appellant at the time 1 2003 SCC (Cri) 738 2:/ of test identification and also at the time of evidence in the Court. After appreciating the evidence available on record, the trial Court has rightly convicted & sentenced the appellant as aforesaid. 11 In order to appreciate the arguments advanced on behalf ofthe parties, we have examined the evidence adduced on behalf ofthe prosecution. 12.Virtually, in the present case, dacoity, murder oftwo persons andattempt to commit murder of four persons, have not been substantially disputed on behalf of the appellant. Even otherwise, it is established by the evidence of Dr. S.K. Bhoi (PW-6), medical reports Exs.P-18 to P-25, evidence of Dr. Lata Dewangan (PW-7), medical documents Exs.P-26 to P-29, evidenceof Dr. B.P. Panda (PW-12), medical documents Exs.P-33 & P-34, evidence of Dr. V.R. Meshram (PW-20) and autopsy reports Exs. P-52 & P-53, that death of Balwant Bhai & Jayesh Bhai was homicidal in nature and that the accused persons have committed attempt to commit murder of Shailesh, Hariram, Smt. Indira & Smt. Sangeeta. 13.As regards complicity ofthe appellant in the crime in question, conviction is substantially based on the evidence of Shailesh Shah (PW-8), Vishal Shah (PW-9), Sangeeta Shah (PW-10), Indira Shah (PW-11), Murtaja (PW-18), M.R. Janghel (PW-21) - the Executive Magistrate who has conducted identification of wrist watch, Ganga Prasad Kosre (PW-24) and Vijay Saheb Raut (PW-32) - Executive Magistrate who has conducted identification of the appellant. 14.Factum of dtecloser statement of wrist watch vide Ex.P-48 has not been substantially corroborated by Murtaja (PW-1 8), but as per his evidence, the alleged miscreant was also accompanying them to the house from where the wrist watch was recovered from inside a box vide Ex.P-47. Ttiis witness has not corroborated the discloser statement, but has @ corroborated recovery of wrist watch vide Ex.P-47. He has admitted signature over both the documents. He has not deposed that the appellant was accompanying them, but he has specifically deposed that one miscreant was accompanying them. 15.lnvestigating Officer P.C. Tiwari (PW-34) has specifically and categorically deposed in para 8 of his evidence that he has recorded discloser statement of wrist watch made by the appellant vide Ex.P-48 and the wrist watch has been recovered from the house of the appellant vide Ex.P-47 at his instance. In detailed cross-examination, defence has not taken defence by way of suggestion that this witness has not accompanied the appellant up to his house situate at Slum Area of Aurangabad or that they have not gone to the house of the appellant along with the appellant. In para 15 of his evidence, he has denied the suggestion that he has not noticed other articles in the house of the appellant. This witness also supports the fact that he went to the house of appellant along with the appellant from where he has recovered the wrist watch. Factum of recovery of wrist watch is well supported by evidence of Murtaja (PW-18). There is some discrepancy in the evidence of Murtaja (PW-18) relating to discloser statement of wrist watch, but the evidence of Investigating Officer P.C. Tiwari (PW-34) cannot be discarded only on the ground that he is police officer and is interested in the out come of the case. 16.As held by the Supreme Court in the matter of Anil alias Andya Sadashiv Nandoskar v. State of Maharashtra witnesses being police officers does not by itself create a doubt about their creditworthiness if non-examination of Panch witnesses is explained satisfactorily. Police officers are also normal witnesses and their evidence cannot be ^AIR1996 SCW 2943 . / discarded only on the ground that they are police officers and are interested in the outcome of the case, unless interestedness or departure from the procedure prescribed is shown. 17.1n the present case, evidence of Investigating Officer P.C. Tiwari (PW- 34) substantially corroborated by evidence of Murtaja (PW-18) is sufficient for drawing inference that the appellant has made discloser statement of wrist wateh vide Ex.P-48 and same has been discovered from the house ofthe appellant at his instance vide Ex.P-47. 18.As per evidence of Shailesh Shah (PW-8), murders and dacoity have been committed in his house, 5-6 persons entered in his house, his brother Balwant Bhai (since deceased) who was badly injured was lying on the floor, his sister-in-law Indira was standing near the body of Balwant Bhai and one person was standing near his sister-in-law who has subsequently assaulted him by rod over his hand & leg, but some how he jumped from the door and came out on the road, he informed police who were on patrolling duty about the incident and became unconscious. In his detailed evidence, he has deposed about the situation of his house and commission of offence. In para 6 of his evidence, he has deposed that he was informed by the police that one accused has been arrested at Beed, District Pune, Maharashtra, then he proceeded to Maharashtra with the police officer where he went inside the jail and identified the person who was present near his sister-in-law (bhabhi) and had assaulted him by rod. He has also identified thewrist watch which his brother Jayesh Bhai (since deceased) was wearing, vide Ex.P-32. On the date of evidence of this witness, the appellant was not present and the case was adjourned, thereafter, when the appellant was • present in the Court, after seeing the appellant this witness has deposed that as per his memory, he was the person who was present near his f" -y sister-in-law and had assaulted him, but there is some doubt on the ground of his beard. Vishal Shah (PW-9), Sangeeta Shah (PW-10) & Indira Shah (PW-11), have proved the factum of commission of dacoity and murders, but they have not deposed anything relating to identification of property or person. 19.As per para 5 of the evidence of Investigating Officer P.C. Tiwari (PW- 34), the appellant has made discloser statement of gents wrist watoh of golden chain (Rado make) vide Ex. P-47 and same was recovered at the instance of the appellant from his house situate at Slum Area of Rajiv Nagar, Aurangabad. Thiswitness has denied the suggestion that he has not recovered the wrist watch from the house of the appellant. 20.As per evidence of Murtaja (PW-18), he had accompanied the police officer up to Aurangabad, he was driving the vehicle and the person from whose house the wrist watch has been recovered, was sitting on back seat. This witness has admitted signature over memorandum Ex.P-48 and has deposed that he along with the police officer and the alleged offender went to one house which was locked, lock of the house was broke open and the wrist watch was found in a box, at that time, that person, the alleged offender, was also present. The prosecution has declared him hostile. In his evidence, he has not identified the appellant herein. 21.Defence has cross-examined Investigating Officer P.C. Tiwari (PW-34), relating to discloser statement and recovery of wrist watch. In para 15 of his cross-examination, he has deposed that he has not recovered any article from the house of the appellant and even he has not searched the house of the appellant. He has further denied the suggestion that he has obtained the wrist wateh from market. He has admitted that Shailesh ,-•"% .f '^•1 Ifc "-^s^ (f ^ '^ Shah (PW-8) and his relatives have not produced any receipt of the said watch and that key of the house was not found with the appellant. 22.As per para 3 of cross-examination of M.R. Janghel (PW-21), the Executive Magistrate who has conducted identification of wrist wateh vide Ex.P-32, he has admitted that he has prepared Ex.P-32, the police arranged other wrist watehes and that the wrist watch which has been identified was of Rado make. He has specifically admitted in para 3 of his cross-examination that complainant Shailesh Shah (PW-8) is educated person and name of the manufacturing company was mentioned in the wrist watch. He has further admitted that the wrist watch of Rado make was notavailable for mixing and, therefore, he has mixed the wrist watches of other companies with the wrist watch in question. 23. Pyarelal (PW-22) and other witnesses of identification have deposed that about 14 wrist watches were taken by the police for mixing. Pyarelal (PW-22) has deposed that identification has not been conducted before him, but has admitted signature over Ex.P-32. 24.Shailesh Shah (PW-8) has deposed in para 8 of his evidence that he has identified the wrist watoh of Rado make of his brother Jayesh Bhai vide Ex.P-32. In para 17, he has deposed that about 5-10 wrist watches were mixed with the wrist watch in question and his brother was wearing the wrist watch of Rado make. As per paras 8, 17 & 18 ofthe evidence of this witness, he has identified the wrist watch which his brother was wearing, vide Ex. P-32 before the Tahsildar. He has specifically admitted that receipt of the wrist watch was with his brother who is no more and he has been murdered at the time of incident. Although Pyarelal (PW- 22) has not supported the factum of identification, but as per detailed '"'"""""^.^. ''''-3?. •'"^ia,^- x evidence of M.R. Janghel (PW-21), he has supported the factum of identification. 25.Evidence of Shailesh Shah (PW-8) relating to wrist watch and its identification are sufficient to establish the fact that his brother was wearing the wrist watch of Rado make and same has been identified by him before the Executive Magistrate. As per evidence of M.R. Janghel (PW-21), the Executive Magistrate, only one wrist wateh of Rado make was kept for identification along with other watches of similar appearance and of different companies. Shailesh Shah (PW-8) has identified the wrist watch on the basis that it was previously used by his brother and not on the basis that only one wrist watch of Rado make was available for identifjcation. In the initial report, he has not stated anything relating to dacoity of such wrist watoh. Evidence of this witness and other witnesses are very specific relating to commission of offence. At the time of incident, six persons have been badly injured and out of six, two died as a result of fatal injuries. The assailants have used fire arms and other deadly weapons. The injured were immediately shifted to hospital for treatment. During the course of offence, Shailesh Shah (PW-8) jumped from the house and came out on the road where he luckily found police who.was on patrolling duty whom he informed about the incident and became unconscious, This shows the gravity of commission of offence. In these circumstances, it was not possible for any person to enquire about the properties stolen from his house or to make inventory of the properties which were not found in his house. On the aforesaid ground, his evidence cannot be discarded. 26.As held by the Supreme Court in Bharat's case (supra), identification on the basis of specific mark is not proper. In the present case, virtually, 5 to 10 wrist watches of similar appearance but of different companies ^ have been mixed and kept for identification, and out of aforesaid wrist watches, the witness has identified the wrist wateh which was earlier used by his brother and not on the ground that same was of Rado make. The case of Bharat (supra) is distinguishable on facts to that of the present case. 27.Evidence of Shailesh Shah (PW-8) and M.R. Janghel (PW-21), Executive Magistrate, relating to identification of wrist watch inspire confidence and is trustworthy. 28.As regards identification ofthe appellant in the crime in question, as per evidence of Vijay Saheb Raut (PW-32), Executive Magistrate, the complainant has identified the appellant in jail amongst four other persons of similar face. At the time of identification, place of the appellant was changed and the complainant has identified the appellant twice vide Ex.P-54. In his detailed cross-examination, Vijay Saheb Raut (PW-32) has specifically deposed in para 8 that the complainant has identified the appellant before the witnesses, but he has not taken signature on Ex.P-54. He has specifically denied the suggestion in para 11 that during the course of identification other persons were kept for identification. In para 7 of his cross-examination he has further admitted that the appellant was mixed up with other persons at the time of identification. His detailed evidence reveals that he has conducted identification of the appellant inside the jail and complainant Shailesh Shah (PW-8) has identified the appellant during the course of identification. Para 7 of his evidence further reveals that he has conducted identification ofthe accused i.e. the appellant herein. 29.Shailesh Shah (PW-8) has identified the appellant in jail. As per paras 6, 9, 10, 11 & 13 of the evidence of Shailesh Shah (PW-8), he has identified the appellant inside thejail. In his detailedcross-examination, especially in para 15, after seeing the appellant from close distance, he has specifically deposed that he is not sure whether the accused present in the Court is the same person whom he has identified in jail, he has expressed little doubt about identification. In para 10 of his examination, he has deposed that at the time of identification inside the jail, the appellant was having large amount of hair and beard, but in the Court he was not having such beard or large amount of hair which creates little doubt. As per his detailed evidence, he has identified the appellant in jail, butthere is some doubt because of hair and beard. 30.Evidence ofVijay Saheb Raut (PW-32) - Executive Magistrate and Ex.P- 54 reveal that during the course of identification in jail, witness Shailesh Shah (PW-8) has identified the appellant herein but due to beard and long hair, there may be little doubt relating to identification, however this witness has not stated that he has not identified the appellant. Shailesh Shah (PW-8) has stated that there is little doubt relating to identification that too due to beard and long hair. 31.There may be some discrepancy or doubt relating to surety of identification, but only on this ground entire evidence of the prosecution cannot be discarded. Even otherwise, identification of the accused is corroborated and proved by other evidence. In this regard, evidence of Vijay Saheb Raut (PW-32) is a substantive piece of evidence which clearly establishes the fact that Shailesh Shah (PW-8) has identified the appellant inside the jail. As per evidence