/^^ ^ <^<\v ^ F^_ HIGH COURT OF CHHATTISGARH. BILASPUR Single Bench: Hon'ble Shri Sunil Kum.ar Sinha, J. Criminal Appeal No. 433 of 1995 Vinod Kumar & Others ^ Vs. State ofM.P. (Now State of Chhattisgarh) & (Connected Cr.Appls. No. 434/95, 593/95 & 707/95) JUDOMENT Post.for Judgment :^/08/20n_ Sd/- SunilKumarSinha Judge 2 A F R-. HIGH COURT OF CHHATTISGARH. BILASPUR Sinele Bench: Hon'ble Shri SunU Kumar Sinha, J. APPELLANTS y'" Criminal Appeal No. 433 of 1995 1 Vinod Kumar S/o Rara Lal Mochi Harijan, aged about 19 years, R/o Sheetala Mandir, Camp-2, Bhilai, Durg 2 Munna alias Ranapratap S/o Jailal, aged about 19 years, R/o Near Sheetala Mandir, Durg 3 Mahendra Singh S/o Rainashankar Rajput, aged 18 years, R/o Nandni Road, Opp, Jain Mandir, Distt. Durg Versus RESPONDENT APPELLANT » State of M.P. (Now State of Chhattisgarh) Through: Dista-ict Magistrate, Durg Criminal Appeal No. 434 of 1995 Surendra Yadava, S/o Ramdeo Yadava, aged 18 years, resident of Camp-2, Near Sheetala Mandir, Bhilai, Durg Verstis RESPONDENT APPELLANT State of M.P. (Now State of Chhattisgarh) Through: District Magistrate, Durg Criminal Appeal No. 593 of 1995 Surya Narayan Rao alias Surya, S/o Rajarao Telgu, aged about 19 years, resident of Near Sheetala Mandir, Camp-2, Bhilai, Durg Versus 9^"\ )J ^y Criminal Appeals No. 433/95.434/95^593/95^707/95 RESPONDENT APPELL^TT RESPONDENT State of M.P. (Now State of Chhattisgarh) Through: District Magistrate, Durg And Criminal Appfial No.707 of 1995 V. Gopal, aged 19 years, son ofV.J. Sadashiv, Telgu, resident of Housing Board Colony No. B/3, Near Post Office, Jamul, Durg yersus State of M.P. (Now State of Chhattisgarh) Through: Distdct Magistrate, Durg (Criminal Appeals under Section 374 (21 ofThe Code of Criminal Procedure, 19731 Aooearance: Mr. R.K. Jain, Advocate for the appellants in Cr.A. No. 433/95. Mr. D.N. Prajapati, Advocate for the appellant in Cr.A. No. 434/95. Mr. Awadh Tripathi, Advocate for the appellants in Cr.A. No. 593/95 8s 707/95 Mr. Satish Gupta, Govt. Advocate forthe State. JUDGMENT (1^.08.2011) -^ "%. .\ (1) These appeals are directed against the judgment dated 8th of March, 1995 passed in Session Trial No. 186/92 by the First Additional Session Judge, Durg. By the impugned judgment, the appellants have been convicted u/s 395 IPC and sentenced to' imdergo R.I. for 5 years. -^^ w^ ,:/ ^1-';^^. ^cSN^ Criminal Appeals No. 433/95.434/95.593/95 & 707/95 (2) In all 7 accused persons (A- 1 to A-7) were prosecuted for the offences punishable u/ss 395 & 397 IPC. Out of them, accused- Manbahadur (A-5) has been acquitted, whereas, the above 6 appellants/accused persons have been convicted. y'" t \ (3) The facts, brieUy stated, are as under:- On 10.2.92 at about 11.45 p.m. complainant- Nakchhed Shanna was retuming to his house along with his friend- Pardeshi. When they reached near Jogendra Hotel, Nandni Road, they were obstructed and surrounded by the accused persons who came out from a Maniti Van bearing registration No. MP-24 - D 2372. Satmghan Sinha (PW-4) also reached there. The allegations are that the accused persons looted Rs.185/-, a black regzin bag, a receipt of Punjab National Bank and one HMT Kohinoor Wrist Watch frora the possession of complainant- Nakchhed Shanna. They also looted one ganichha from Pardeshi and ftiey snatched Rs.50/-, a diaiy, a handkerchief and HMT Sona Wrist Watch from Satrughan Sinha (PW-4), and fled from the place of occurrence by their Maruti Van. During the course of incident Nakcbhed Sharma identified accused- Mahendra (A-l), Munna (A-3), Gopal (A-6) and Babuwa. He immediately went to police station Chawni and lodged the First Information Report (Ex.-P/lS). Nakchhed Sharma, Pardeshi and Satrughan Sinha (PW-4) all were sent for their medical examinations. Later on, Mahendra (A-l) was taken into custody and his memorandum statement (Ex.-P/4) u/s 27 of the Evidence Act was recorded, based on which various articles were seized from the possession of Mahendra (A-l), Vinod (A-2), Suryanarayan (A-4), Munna @ Ranapratap (A- 3), V. Gopal (A-6) and Manbahadur (A-5) vide seizure memos Ex.-P/S to Ex.-P/lO. The accused persons were put for their identification in two different T.I.Ps. The identification memo !^^-A< Criminal Aopeals No. 433/95.434/95.593/95 & 707/95 ^ ^ -.4\ %'I. of Surendra (A-7) is Ex.-P/l and the identification memo of the other accused persons is Ex.-P/2. These identifications were conducted by Executive Magistrates K.K. Behar (PW-1) and N.R. Sahu (PW-2). Further Nakchhed identified his writ watch and Satrughan (PW-4) also identifled his writ watch vide memo Ex.-P/11. After completion of usual investigation, the charge- sheet was fi.led in the Court of Chief Judicial Magistrate, Durg, who in turn committed the matter to the concemed Session Court, froin where, it was received on transfer by the First Additional Session Judge, Durg, who conducted the' trial and convicted & sentenced the 6 accused persons as aforementioned. However, Manbahadur (A-5) was acquitted. Nakchhed Sharma and Pardeshi both were not examined during the tiial. The leamed Session Judge relied on the testimony of Satrughan Sinha (PW-4), test identification parades (T.I.Ps.) and seizure & identification of articles from the accused persons at the instance of memorandiim statement (Ex.-P/4) ofMahendra (A-l), (4) Leamed counsel for the appellants argued that complainant- Nakchhed Shanna and Pardeshi were not examined; Nakchhed Sharma was the witness who allegedly identified the accusedy persons vide T.I.Ps. conducted on 21.2.92 and 6.3.92; the Session Judge has wrongly based the conviction on the evidence of conducting the T.I.Ps. by Executive Magisti-ates; the above evidence was not substantiye evidence; in absence of dock- identification nothing was possible on the evidence of T.I.Ps. said to be conducted by 2 Executive Magistrates; memorandum (Ex.- P/4), leading to discoveries of various articles, was also not .\ 'K ->.^. y f» lll Criminal Appeals No. 433/95. 434/95. 593/95 & 707/95 proved; and Satrughan Sinha (PW-4) could not identify the assailants on dock; therefore, the conviction was not possible. (5) On the other hand, leaned Govt. Advocate for the State opposed these arguments and supported the judgment passed by the Session Court. (6) I have heard the learned counsel for the parties at length and have also perused the records ofthe sessions case. (7) Firstiy I shall consider the question of identification of the appellants/accused persons. (8) After the arrest, accused- Surendra (A-7) was put for identification on 6.3.92. His T.I.P. memo is Ex.-P/l. The other accused persons (A-l to A-6) were also put for their identification on 21.2.92. Their T.I.P. memo is Ex.-P/2. Perusal of both the T.I.P. memos would show that they were duly identified by complainant- Nakchhed Sharma. Identification parades were conducted by 2 Executive Magistrates namely K.K. Behar (PW-1) and N.R. Sahu (PW-2). Nakchhed Sharma has not been examined by the prosecution. The leamed Session Judge held that since the accused persons were duly identified in the test identification parades conducted by the 2 Executive Magistrates, which was also proved by them, they were the relevant evidence against the appellants. The Session Judge held that the above evidence of conducting the test identiflcation parades shows that the ^ ^ Criminal Appeals No. 433/95.434/95. 593/95 & 707/95 appellants/accused persons had participated in commission ofthe offence. I am unable to approve the view taken by the leamed Session Judge. It is almost well settled that the evidence of test identification is at best supporting evidence. It can be used only to corroborate the substantive evidence given by the witnesses in the court regarding identification of the accused. The earlier identiflcation made by the witnesses at the test identiflcadon parade, by itself, has no independent value. The identiflcation of an accusod in court is the substantive evidence of the person identifying and his earlier identification in a T.I. parade corroborates the same. The purpose oftest identiflcation is to have corroboration to the evidence of the eye-witnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the Court. In the present case as stated above, complainant- Nakchhed Sharma has not been examined, therefore, the evidence of T.I.Ps. in which the accused persons were allegedly identified by Nakchhed Sharma would not be read as substantive evidence against them. I ain of the view that the Session Judge fell into error m treating 2 T.I.Ps. as substantive evidence and making them basis to hold that by the said evideAce it was proved that the appellants/accused persons participated in committing dacoity in the fateful night. (9) Pardeshi the other eye witi-iess has also not been examined by the prosecution. The other evidence of identiflcation of the accused personsis the evidence of Satrughan Sinha (PW-4). He / 1^'\ !tesa.. y H •^ NT Criminal Appeals No. 433/95.434/95. 593/95 & 707/95 ^ deposed that he does not know the naraes of the accused persons. In the fateful night the accused persons caught him and snatched his HMT Watch and Rs.50/- from his possession. In Para-2 of the evidence, he deposed that he does not identify the accused persons present in the Court. In cross-examination, in Para-8, he admitted that there was darkness at the place of occurrence and he was unable to see the assailants properly. On appreciation of his entire evidence, it appears that he was Unable to identify the assailants who took his watch and money and his evidence regarding dock-identification was shakey and untrustworthy. (10) Except the above, there is no other evidence of identification of the accused persons. I am of the view that in light of the above evidence available on record, it was not established beyond all reasonable doubt that the appellants had participated in commission of the aforesaid offence and they were duly identified by the victims at the place of occurrence itself. (11) The other evidence is regarding seizure of various articles on the memorandum statement (Ex.-P/4) of Mahendra (A-l). The 2 witnesses of the memorandiun statements are Pardeshi and Satrughan Sinha (PW-4). As I have already stated that Pardeshi has not been examinedjand Satrughan Sinha (PW-4) deposed in Para-4 of his evidence that though memorandum (Ex.-P/4) bears^ his signature, but the police did not ask anything before him from the accused persons. In Para-11, he further admitted that the police took his signature on all the papers collectively in the police //r^'\ m^sv- ^ JJ Criminal Appeals No. 433/95.434/95. 593/95 & 707/95 ^ station at one point of time. The above evidence of Satrughan Sinha (PW-4) makes the discovery doubtful. On appreciation of the entire evidence on record, we find that it was not proved beyond all reasonable doubt that Mahendra (A-l) gave the discovery statement (Ex.-P/4) in presence of Satrughan Sinha (PW-4). (12) HMT Sona Watch of Satmghan (PW-4) is shown to have been seized from the possession of Mahendra (A-l) vide seizure memo' Ex.-P/S. Pardeshi and Satrughan Sinha (PW-4) are the 2 witnesses of this seizure also. In fact, Pardehsi and Satrughan Sinha (PW-4) are the witnesses in all the seizure memos prepared by potlce. The above watch was put for identification from Satrughan Sinha (PW-4) vide identification memo (Ex.-P/ll). When the watch itself was allegedly seized in presence of Satrughan Sinha, there was no proprietary for putting it for identification by him. In Para-7 of his evidence, Satrughan deposed that the identification of property (wrist watch) was conducted by police officers. In view of his evidence in Para-11 of> the cross-examination that all the papers including the above identification memos were signed by him at one point of time in the police station and further in view of his conduct relating to identification of the accused persons and that of the memorandum statement allegedly given by Mahendra (A-l), his evidence relating to seizure and identification of the watch cannot be relied on. I am of the view that it was not proved beyond all \ ^ . y y SiASE-1' '_ •^^ ^SSfft"- ..^-s yS^g^!^^- ^' -^..-^ ^ Criminal Appeals No. 433/95.434/95. 593/95 & 707/95 reasonable doubt that the watch, in fact, was seized from the possession of Mahendra (A-l) on his discovery memo (Ex.-P/4) and it was duly identified by Satnighan Sinha (PW-4). (13) Mr. Satish Gupta, learned Govt. Advocate, has argued that the evidence of Investigation Officer, Inspector- B.B.S. Rajput (PW- 6) should be relied on and conviction can be raaintained relying on his sole testiniony. I have no doubt about the legal proposition fhat the conviction can be based on the sole testimony of the police officer, but the important factor in such a situation would be that the evidence of the police officer should be fully reliable and of such quality that no doubt can be cast on his testimony. The present is not a case of that category. In the present case, we flnd that after reeording of the F.I.R., the 3 eye-witnesses were sent for their medical exainination and 2 of them i.e. Satrughan Sinha (PW-4) and Pardeshi (not examined) were made witnesses of all the police documents i.e. memorandum statements and various seizure memos etc.-etc., which Satrughan Sinha (PW-4) admitted to sign at one point of time in the police station itself. This creates a doubt on the fairness of the investigation conducted by the Investigation Officer and his sole testimony, in light of the above evidence available on record cannot be relied on for conviction of the appellants holding the alleged seizure and identification of the properties to be proved. y^^ ^ y :y / ^^^.^ »NI 10 Criminal Appeals No. 433/95.434/95. 593/95 & 707/95 (14) In the above facts and circumstances of the case, I ain unable to sustain the conviction ofthe appellants on the above set of evidence. The prosecution has utterly failed to prove the guilt of the appellants beyond all reasonable doubts. Neither identification of the appellants/accused persons was established nor it was established that the wrist watch was seized from the possession of Mahendra (A-l) on his discovery statement. I am of the view that in the facts and circumstances of the case, the appellants ai^ entitled to get benefit of doubt and their appeals deserve to be allowed. (15) For the foregoing reasons, the appeals are allowed. The conviction and sentences awarded to the appellants u/s 395 IPC are set-aside. The appellants are acquitted of the charges framed against them. Sd/- Sunil KumarSinha Judge ^ vatti