g‘. “nay/(Igug , WHIH IIHIHHHIHHHW “" *§\_\41.‘P.R.1‘1/94/2,ooo ' 000 9 ,0 ‘ r , APPEAL OF PRISONER " § V N 3995 “. _, ,Name am v, Vii 2 waft 91mm Bench (Cnmw j\ ‘ : Fathers name E13 amnfr fHars'iT grxwh't. mgr—afar»€a?f’ J Resldence WTJTWT 9, KO g0! Age “J 33‘ # “,""""’ ‘ ' ’ y / ,. ‘ Sentenced t0 3fTEa’W3TT'ETaYH E0750 0/-0n HAQs/3B 7‘ e; 1 ‘ HT 8’ 13H? ‘ ,, Under secnon 595 3a7 momfao by maa‘h: 3W? ax. earurmr mew ,\ ‘Fmr ET? n‘nng-C: I ’ H; ‘ "/ It 1s explamed to the pnsoner that }f hestates or wnhes te Jeefepresented by legal 7 H practmoner the Appellate ( ourt W111 not proceed w1th the base fer seven days unless _ ethe legal practmoner appeals If the legal pract1t1oner does not appear w1thm seven V 31 V, days he may not heard at all If the prxsoner states that he does not Wlsh to be repre— ’ z sented by legal practlttoner the court may proceed at once w1th the case and w1ll not be obhged to glve a hearlng to any legal practltloner who should appear p Date of Aipplicatio‘n fOr copy ofiJud/gement , .I a. 2 Date on wh1ch copyrecelved 2V1 g/gg .7 [’ \ 3: L Date on wh1ch Appeal sent 33/W/9g / J l ’ ’ L S V r 4 7 Whether the pnsoner Wishes to be represented or not - Yes / No L1 N -' 3995' » Name man 31m rate mat—tit “at—u at neea‘ Conlinedm aizgfl—g Jail WWI? mogm I #381 /l’a’fnr/9a / Dated a? /I t/1998....;.....7»7w.‘.’..?...l.:.....‘..... ‘ Forwardedto the caseeeaneeiesaazmesstmt$nrfnuPinata ' aw rm newer gem awn .... \zm ri’ togather whtch a c’opy of Judgement or order passed 1n the case for favour of trans- ’ “i, it,“ m1ss1on to the proper Appellate Court. ‘ l , t :,\ p WH-_ an grater? yarn—I Lat/9! at Wfun ’gfa I Date of receipt in... .C ., office a t _ \ ’x Date of receipt record” to accompany the Memo of Appeal to the Appellate court x , ' No ’ .........,.2[)atca199 Forwarded to the ....'..;.. .7 :Date of receipt intAppellate Court i..t.{.,..\ ’ / z 9 ta 1. HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Aegeal No.3040 of 1998 Rarnmj alias Muchchhu and ofher‘s - Versus — STa‘re cf Madhyd Pradesh (now Chhah‘isgar'hj Criminal Appeal No.2638 of 1998 Lakhan and ofhers - Versus — Sfal'e of Madhya Pradesh (now Chha‘l’lisgarh) Presen’r: - Mr. Abhay Tiwari, Advocate: For all ’rhe appallants in Cr. Appeal No.2638198 and for appellants-PuniTr-um alias Mo’ru, Radhe 60nd & Laxman in Cr. Appeal No.3040/98‘ , Mr.R.K,Jain,AdvocaTe: For appellanl—Rumraj alias Muchchhu in Cri Appeal No.3040/ 1998. Mr. U.N.S. Deo, Addl. Public Prosecu‘lor with Mr. D‘K. Ewalre, Dy. 60m. Advocate : For the Stale/respondent DIVISION BENCH: - HON‘BLE MR. LC. BHADOO AND HON'ELE MR. V.K. SFRIVASTAVAK JJ. JUDGMENT (Delivered on 26m Sepfemberu 2006) The following 'udgmenT of lhe’ Cour‘i was delivered by LC Bhadaa J;— 1. Criminal Appeal No.3040/98, filed by appellanl's-Ramraj alias Muchchhu, Punifram alias Mo+u, Radhe Gond & Dayaram and Criminal Appeal No.2638/98, field by appellan‘is—Lakhan, Mangal Singh and Laxman are being disposed of by +his common judgmenf, as boTh +hese appeals are arising oul of The some iudgmen‘r passed in Sessions Trial No.144/91 by learned Addifional Sessions Judge, Bemefra rela‘iing +0 +he same inciderii’ da‘ied 30. 10. 1990. \ Pagu“ 2 0f 20 g. These appeals are direc‘red agains-r +he judgmen‘l‘ of convicfian and order of sen‘rence‘da‘red I17” Ocfober‘, 1998 passed by {earned Addi+ionql Sessions Judge, Bemefr-q, Disfr-ic‘f Durg in Sessions Tria! No.144/91, whereby (edrned Addi+ional Sessions, Judge affer hokding accused/appellanfs, Ramraj alias Muchchhu‘ Punee‘rr‘am aims Mo‘l‘u, Rgdhe Gond, Mange] Singh, Laxman, Dayamm and Lakhan, guiHy for commission of offence under Secfions 396 & 397 of fhe Indian Penal Code, sen'renced each of The accused 1'0 undergo R.I. for life, +0 pay a fine of Rs.500/- and in defoluii’ of paymenf of fine.+o fur'iher undergo R.I. for 6 mon’rhs and R..I. for 7 years respec‘iiveiy. Bofh fhe senfences are direcfed To run concurrenfiyr However, learned Addifional Sessions Judge acqui’rfed accused persons namely Khelandayal, Radhe alias Radheshyam & Ashwani from fhe aforesaid offences. 3‘ The case of prosecu‘iion/ in brief, was Thaf in +he infervening nighi of 3o” a 315* camber, 1990 ai abouf 11.30pm. when Meenaram along wifh his family members was sleeping in his house, he heard commofion in The village. On opening fhe doors, he saw fhai 9-10 persons sfanding in fhe sfreef were abusing and falking +0 em‘er his house, on which he closed The doors. Hedi his wife ran awoy from ihe house “iowards fhe fields The accused persons carrying bomb, axe and o'iher deadly weapons in fheir hands barged in his house and commif'ied dacoify. They also enfered “the house, where his broihers namely Beniram, Khemkumar & Ghanshyam were residing olongwifh fheir families. When Beniram <3¢ Khemkumor pui‘ resisfance, fhe accused persons exploded ju‘i-e sfring (bomb), as a resul‘f of which Beniram and Khemkumar susi’ained injuries and lafer on, Beniram succumbed fa +he injuries. Accused persons loofed gold <Si silver ornamenfs, +orch, wrisfwafches and cash amoun‘r from fhe house of Meenaram and his brofhers. Accused persons also barged in fhe house of Bisheshar, fa‘iher of Meenaram, which was in fhe fhreshing field and loofed forch, air gun, axe, crowbars, fape recorder efc. Meenaram reporfed The maHer in i'he same nigh? \ \ \ \ \ Page 3 of 2O Le. on 31.10‘90 af 4.00 a.m. in ’rhe Police Sfafion Ber-la, where ISw‘u‘rioh House Officer Shri $.K.A. Naqvi (PW-26) regisferedfhe Crime No.125/9O under secfions 395; 396 & 397 of H12 IPC fhrough F‘I.R{ EXP—20. He also regisfered The merg infimuficn No.21/9O (Ex.P-22) regarding deafh of Beniram, lef+ for +he scene'of occurrence and prepared The sH’e plan (Ex.P-1) of scene of occurrence. Haiku Pa‘rwari was also asked To prepare The si‘re pion of scene of occurrence, who prepared The sH'e pian Ex.P-23. AHer giving no+iee (Ex.P~6A) 1'0 +he Panchos,1‘he Invesfigqiing Officer prepared +he inquest repor‘r of ’rhe body of Beniram and serif fhe dead bady for posfmor‘rem examinofion under Ex.P-23Ai He oiso serif #he injured Khemkumar for medical examinofion under Ex.P—24. Posimor'i‘em on fhe body of Beniram was conducfed by Dr. MC, Mehnof (PW—31), who prepared Hie posfmorfem reporf Ex.P—42 and no’riced fhai fhere were bias'l' burn (gun— powder) injuries on ihe chesi, neek, ief+ hand and face. There was blackening of skin, a incergXed wound on fhe ieff shoulder and chesi in ihe size of 5" x 3" deep f0 ’rhe bone, muscles were damaged. Subclavion orferies were laceraied and ihere was ahole in ‘ihe arieries. Lefi scapula und humerus bones were frcciured. There was haemoihorax on fhe lefl‘ side of chest All ihese injuries were anfe morfem in nai'ure and caused by blas'l'. The doc‘ior opined fhai’ cause of deafh was shock and haemorrhage on accoum‘ of blasf injury. Dr. K.Shrivas+ava (PW-7) uf‘ier examinafion of injured Khemkumar, prepared “rhe injury repori Ex.P—15 and he also [noiiced burn injuries on fhe body of injured Khemkumar. . 0n 17.11.1990, while in police cusi‘ody, accused Punee‘iram alias Mo‘iu gave memorandum (Ex.P~11) under Sec'i‘ion 27 of ihe Evidence Ac‘i‘, accused Ramraj alias .Muchchhu gave memorandum Ex.P-22, accused Radhe Gond gave memorandum Ex ~23,accu3ed Lakhan gave memorandum Ex.P—24, accused Mango! Singh gave memorandum Ex.P‘251 accused Laxman gave memorandum Ex.P-26 and accused Dayaram gave memorandum Ex.P-27. In pursuance of + hese memorandums one forch was recovered a1" fhe ins’rance of Pagf: 4 of 20 accused Punee+rum alias Mo‘ru under Ex.P—28: explosive powder juTe sfr‘ing & copper wire were faken info possession (1+ fhe insfqnce of accused Ramraj alias Muchchhu under EXP—29. On produc‘rionby one Vinod Kumar Agarwal a lump of gold weighing 6.900 milh’gram and one regis‘rer‘ were faker: in1'o possession under Ex.P-14. A lump of silver weighing 495 gms and lump of gold weighing 39m 2 milligram were Token info possession under Ex.P— 20. One bill receipf regarding sale of Jewelry by accused Radhe was faken in’ro possession under Ex.P~32. A’r The ins‘i'ance of accused Lakhan one ladies wa+ch was faken in+o possession under EXP-33. One ‘l‘ape recorder’and larch were recovered ,a‘r fhe insfance of accused Mangal Singh under Ex.P-35. One golden nose ring and bunch of keys were faken in+o possession a+ +he ins‘i‘ance of accused Laxman from his house under Ex.P-3é. AH‘he ins'l'anee of accused Dayaram +wo live jufe sfring bombs were +aken in+o possession under Ex,P~39. 5. During inves‘iiga‘lion, lesf iden‘lificafion ‘parade of accused personswas conducled by l’W-32 Shri Anl‘hony Tirkey,Execu+ive Magis+rafe in which accused persons were indeniified by Babulal, Meenaram, Bishesar, Ghanshyam, Kansharam, Budhkumar, Parei'an, ‘ Dindayal, Sukhiram/ Pyaribai, Munnibai, Padumbai and iden‘iificaiion memo Ex.P-16 was prepared. Ideniiimm‘ion of recovered arficles i,e. wrisiwafch, forch, ‘l'ape recorder. on‘ keys, golden nose ring was also Conducied by fhe Exec Tive Magisfrafe in which Bisheshar, Meenaram, Podunwoi,Pyar rmi and Ghanshyam ideni‘ified +heir ari'icles and aCCc-sdingly, iden‘iificafion memo Ex.P-17 was prepared. Iden'l'ifica’ri in of: one pair of anklei was conducied by +he Tehsildar in which Vishesar, Padumbai & Pyaribai idenfified The silver anklel and iden‘iificalion memo Ex.P~18 was prepared. 6. The invesfigafing officer also seized +he blood sfained sasl and plain soil from The place of occurrence under Ex.P-7. He alSO Took in’ro possession fhe parficles of exploded bomb from The place of occurrence under Ex.P—8 and boxes under Ex.P“9 & Ex.P-11. He \ \ \ \ \ \ \ Page 5 0f 20 +ook info possession +wo parfs of door, which were cuf by fhe acqused per-sons wH-h fhe axe and whet; pieces of broken door under Ex.P-12. Par+icles of bomb and fwo live bombs were senf for exominofion +0 Forensic Science Labora-rory, Sugar, from where repor‘r Ex.P-41 was received. 7‘ Affer usual inves’rigafion, charge sheefwas filed agains+ fen accused persons including fhe presenf.aocused/appeHQn‘l-s infhe Courf of Iearned Addifional Chief Judicial Magis‘rra‘ie, Berne'l‘ra, who in furn commif'red fhe case +0 learned Sessions Judge, Durg from where learned Addifional Sessions Judge, Bemefra received fhe case on 'iransfer for +rial. Learned Addi‘rional Sessions Judge offer perusal of +he record was of fhe opinion fhal‘ prima facie offences under Sec'l'ions 396 & 397 of fhe IPC were made ouf againsf ”rhe accused persons, Therefore, charges were framed and explained ‘io fhe accused persons. The accused persons denied fhe charges and pleaded for ,‘l'rial. The prosecu‘l’ion, in order ‘l'o esfoblish fhe charges ogainsf fhe accused oersons, examined 32 wiinesses. Learned'Addi‘rional Sessions Judge recorded fhe s’raiemenf of accused persons under Secfion 313 of fhe Cr.P.C. in which fhey denied fhe ma'ierial appearing agains‘i Them in fhe prosecufion evidence and sfafed 'l'ho‘i fhey areinnoceni. They have furfher s‘i'afed ’rhai' fheir phofograph was faken of +he insfance of Sfa‘iion House Officer and same was shown fo fhe wifnesses before ’rheir fesf idenfificofion parade. . Learned Addii‘ional Sessions Judge affer hearing fhe argumeni’s of learned counsel for respecfive par-fies, convicfed & seni‘enced fhe accusedlappellanfs as indicafed in fhe earlier por'i' of fhis judgment 9i We have heard Mr, Abhoy Tiwari (Si Mr. R.K. Jain, learned counsel for fhe occused/appellanfs and Mr. U.N.S. Deo, Addifional Public Prosecufor wi’rh Mr. D.K. Gwalre, Dy. Govf. Advocafe on behalf of fhe Sfafe/respondenf. lO.Leorned counsel for fhe accused/oppellanfs have nof dispu’redfhe homicidal deafh of Beniram,‘injuriaes susfainedvby Khemkumar‘as \ \ Pagé: 6 of 2O also Hm facfum of commission of dacoify in fhe house of Meznaram, Benir'am & Bishesar in The infervening nigh‘l' of 30*” & 31“ Oc‘fober‘, 1990. They simply argued Hm? fhe prosecu‘fion has ufferly foiled in connec‘l’ing fhe accused/appeHan'fs wi‘rh +he dacoi+y in ques+ion. They argoed Thaf +he S.H.O., Policz 5+a+ion Berla before fes’r iden+ifico+ion parade 901' +he nccused/ appeHaMs phofographed and shown fheir' pho'rogrophs fo H12 wi‘rnesses. They also'argued +ho+ F.I,R. shows fhnf The accused persons were wearing monkey cop & muffler and only +heir eyes& face were visible, +herefore, in The circumstances, in pii‘ch of dark nigh‘l if was no'i possible for ihe wifnesses 1'0 iden+ify 1'hem. They also submi'I-ied fhaf in fhe FIR, descrip'rion & fea'rures of The body of accused persons or any o‘rher iden‘fificaiion mark has nof been men'rionecl, Therefore, reliance canno+ be placed on +he iden‘l‘ifica‘rion memo Ex.P-16 as also on ‘rhe evidence of prosecufion wi+nesses regarding iden+ifica+ion of The accused persons As far as recovery of looi‘ed arTicles ai‘ fhe insiance of accused persons is concerned, fhey argued +ha+ bo‘rh +he independenf recovery wifnesses have Turned hosi‘ile: ‘i'herefore, recovery was also no‘i esfablishedl Moreover, ‘i‘he ideni‘ificai‘ion of arficles by ’rhe wiinesses before ihe Execu‘iive Magis‘irai‘e was no+ conduc’red properly. The ariicies were no'i’ produced and 90+ ideniified by fhe wi‘i‘nesses during Trial, Therefore, by The alleged recovery of arTicles, The accused persons connoT be connecTed wiTh The dacoiTy in quesTion. The Tesi’ LienTifisoTion of accused persons & arTicles were condimwd’ beia'i-szdly, Therefore, reliance cannoT be placed on gifw.::2-n~ Ex.P—16,Ex.i’~17& Ex.P-18. 11. On The oTher hand, learned AddiTional Public ProsecuTor for The STaTe supporTed The judgmenT of The Trial courT. 12‘As for as firsT argumenT of learned counsel for The appallem ' as is \ concerned, PW-3Z, AnThony Tirkey, Executime MagisTT‘uWT has ‘ \ sTaTed ThaT on 212.1990 TesT idenTificaTion parade OF seven \_ persons was conducTed by him in which 29 persons were mixed \ .4? @ Page: 7 of 20 and The wifnesses iden‘rified The accused persons‘ Apar‘r from fha‘f, Padum Bui (PW-15) idenfified accused Punee’rram alias Mom & Ramraj alias Muchchhu. He prepared the reporf Ex.P-16. In cross-examma‘riom ‘Hqis witness has sfafed ’rhaf +here was no informafion +0 him regarding pho+ograph of'fhe accused persons‘ No specific quesfion was pu‘r To fhe Execu+ive Magis‘rrafe hy fhe defence counsel fhaf The accused persons-were phofogruphea before 'res‘r idenfificafion parade and Their pho‘i‘ograph was shown +0 +he wi+nessesp Perusal of iden‘fifica‘rion memo Ex.P-‘16 shows fhof i+ has nowhere been mem‘ioned +ho-r of The fime of Tesf idenTifica‘Hon parade The accused persons apprised ‘rhe Execufive Magistrate +ha+ before +es+ idenfificai-ion parade,fhe 5.H.O. goi' +hem pho+ographed and +heir phofograph was shown To fhe wifnesses. Moreover, fhe Invesfigafing Officer (PW-26) in his cross-examina’rion denied +hu+ he 90+ The accused persons phofographed and +heir pho+ograph Was shown +o 1'he wifnesses. Even Though, phaTograph Ex.D—1 has been Tendered inTo evidence and counsel for The accused/oppellanTs argued ThaT in This phoTograph The accused persons aiong wiTh"5.H.O. are visible,buT merely on The basis of This argumenT and evidence availabie on record iT cannoT be held ThaT The accused persons were phoTographed and ThereafTer, Their phoTo was shown To The wiTnesses‘ In all fairness, when The phoTograph Ex.D-1 was Tendered inTo evidence, iT was The duTy of defence counsel To confronT The InvesTigaTing Officer (PW-26) wiTh The phoTogroph by asking him ThaT in This phoTograph his phoTo is aT such and such place and each of The accused person is aT such and such place, wiThouT which mere Tendering info evidence The phoTographl iT cannoT be held ThaT This p‘noTograph is oT‘The accused persons and ThaT The some was shown To The wiTvnsses before TesT idenTificaTion parade. IT has also noT gem esTablished ThaT when This photograph was Token: I—n ordw 'l‘o prove The daTe & Time of phoTognegaTive of phoTo as well as phoTographer musT have been produced. \T Pag€ 8 of 2.0 13.Tesf iden+ifica+ion parade and memo is no‘r fhe subsfunfive piece of evidence, such Tesfs are primarily mean‘r for fhe purpose of hetping The inves‘Hga‘Hng agency wi‘rh an assurance fhaf fheir progress wifh The inves+iga+ion info fhe offence is proceeding on The righf lines. Simply based on The idenfificaHon memo,accused persons canno-i' be connec‘red wifh fhe crime unless during ihe course of frial +he wi‘rnesses iden‘l‘ifies The accused persons d ariicles in fhe court; Thaf is fhe subsfon'i'ive piece of evidence. The +es+ iden'rificai'ion parade memo is prepared fo ensure +ha+ fhe wifnesses jusf offer fhe occurrence iden‘rified fhe accused persons & ari‘icies in +he ’resf ideniifico+ion parade, same is admissible under Secfion 9 of fhe Evidence Acf and which simply gives credence To subslan‘rive evidence of 1'he wii‘nesses, which +hey deposed before The courT. As observed by The Hon'ble Apex CourT in VaikunTam Chandrappa Vs. STaTe of Andhra Pradesh kepomd in AIR 1960 sc 1340 nun “Hm subsranrive evidenceis flie sfafemem" of a wifnes’s in Cour? and fire purpose of fesf idenfificafian is fa fesf fbaf evidence, fire safe ru/e being fhaf fhe sworn Testimony of The wifness in Cour} as fa Me idenfifyof fke accused who is stranger To him, as a general rule, requires corroborafion in Hie form of an earlier idenfificafion proceeding. If Mere is no subsfanfive evidence abouf Hie appellanf having been one of five a’acoifs wnen Pi W10 saw fhem on January 28, 1963 Men Hie 7.1 parade as againsf nim cannoi b of any ass/sfance fa Hie prosecuh‘on". This prmmple waE; again reiTeraTed by The Hon‘ble Apex CourT in The maMw vof Hwib Vs. The STaTe of Bihar- reporTed in AIR 1972 $upreme CourT 283 and in The maTTer of MaTru alias Girish Chandra Vs! ine 5fa1’e of UTP. repomd in AIR 1971 supreme Cou'ri 1050‘ 14.Coupled wiTh The idenfificaTion memo, if we‘look inTo The evidence of wiTnesses who were examined in The courT, PW—S Bishesar, in whose house dacoiTy Was commiTTed, has sTaTed ThaT in The mid nighT abouT 12.00 when he opened The doors of his house, which was in The Threshingfield, in order To Take ouT The" \ \ Page 9 of 20 animals, he saw fha‘f 8—9 persons were sfunding a‘f The disfance of 10—12 s+eps from The door, one person dsked him fha‘!’ you are awakening even in late nighf and fhereaf‘rer he said fhaf ‘rhey wiH search his house These persons caughf him and also To anofher person nameiy Dindayai, who was in his house. He was wearing one wu‘i'ch, same was sna‘i’ched by one of The accused. From The rooms of his house, fhe accused persons had ‘ioo'fed crowbars, axe, Iafhis, air gun, fupe recorder and Torch. Nandu & Munnalal ca‘me and informed him abouf fhe dacoify in +he house of Meenuram and Beniram. In ‘rhe fes‘r iden‘rificafion parade, he had iden+ified accused Ramraj, Dayaram, Puneefram & Radhe. He has also sia‘i‘ed fhaf accused Punee‘rram was abusing him. He has furfher sfa‘red +ha+ +here was iigh+ in The house when The accused persons enfered his house, af fhaf Hme faces of +he accused persons were no'r covered wii'h fhe mask. He iden+ified Dayaram saying him as Radhe. As per evidence of PW-ZO, Meenaram, his wife Pyari Bai and he ran away, bui before running‘away he, saw The accused persons in ihe sfreei, ’rhey were abusing. He saw ‘i'hemin ‘rhe sireeT—iighf. PW-14 Munni Bai, wife of injured Ki‘iemkunxsu has deposed +ha+ 8 persons carrying club, axe, pis’rcxi an!» its!“ deadiy weapons en-i'ered 'iheir house a; i:m.v..v.n'ig open rhe door. The accused persons sna’rched wrisiwa’rch ofPam and one golden nose ring of her mofher~in-iaw. A+ ihaf Time There was sufficienT lighT, Therefore, she was ahie To memoriSe The irign‘iii‘y of accused persons in The iighT who are presri 2r in Coir? She has sTaTed in Para 3 ThaT TesT ids:~i!;i‘ica'i'ion,parade "’C\$ conducTed in Durg Jail in ThaT she ldenTified The acuused persons. IdenTificaTion memo Ex.P-16 bear“: ‘A‘ro A’ place. PW—15, Padumbai has sTaTed in he» -’; .«Jonce “he 8‘9 persons enTered Their house afTer breaking om Ia The dc irsl They were carrying bomb, pisTol, laThi. She has fanner sTaTei ihaT The acoused persons saaTched her wrisTwaTch and g: ider‘l nose ring of- her moTher-in—law. There was lighT in The hguse, Therefore, she was able To memorise The idenTiTy of accused persons sTanding in The CourT. TesT idenTificaTion parade was @ Pagc 10 0f 20 conducfed 'm Durg Jail, where idenfificqTion m¢mo (Ex.P-16) was prepared, which beaEs her signakmre a+ ‘B +0 B' place. PW-l8 Khemkumar, fhe injured wifness, has sf’a’red fha1‘ 8—9 persons en+ered fhe house. ‘They assaul‘red him & his bro-rher wi+h fhe Iafhi, buf fhey did nof leave +he place‘ fhereaffer‘, fhe accuséd perso'ns exploded 1-he bomb, as a resuH of which his younger bro‘fher Beniram susi'ained injures and died. He also sdsfained injuries. Thereaffer, fhe accused persons loo+ed jewelry of his moiher and ofher female members of 1‘he family. AT “lha'l' +ime, lighl was burning in +he house, accused persons were wearing mask, bu+ Their eyes and maulh were visible. PW-19 Babulal indica‘ring towards accused Khelandas has sfa‘ied fha‘i' excepf Khelandas ofher accused persons s+anding in +he cour'l’ were presen‘l‘ af ‘ihe Hme of dacoii‘y. in cross-examinai‘ion of +hese wiinesses, +he defence has no‘l been able ‘lo elicit any circumstance, which makes fhe evidence of “these wilnesses unreliable or unfrusTwori’hy regarding identificaffion of lhe accused persons. The incideni- 'l‘ook place in fhe in'l‘ervening nighf of 30” 6i 31“ 15. Oc‘l‘ober, 1990, +he accused persons Were arresled belween 17” fo 19*” November, 1990, fhereaffer wilhin a period of 15 days +es1‘ iden‘lificaiion parade was conduiclecl i.e. on 2.12.1590. Therefore. from +he da'le of commission of offence, fhe “res? idenfifica‘lion parade was conducfed wii'iiin :1 period of " :3 f3 33 days and +his fime gapis no+ much whereby fhe iztt'eni-ifita ‘ion ran be held 1'0 be delayed. Therefore; fhe evidence of above wi+nesses moiuding H18 evidence of Execufive Magis’rrafe inspire confi runcg of TheCour’r To hold fha’t ’rhe wifnesses were able fo memori fh a ideniiiy 01‘ 16. accused persons during commission of crime i~ ‘rhe .9h+. Their Cour? evidence regarding idenfification of accused persons S‘iand corroborafed by fhe fes+ iden+ifica+ion paradememo Ex.i"«£6. There is no reason +o disbelieve ihe evidence of “these wi‘rnesses, implicii‘ reliance can be placed on fhe evidence‘of ‘ihese wi+nesses 4‘ Page 11 0f20 and The frial cour‘r has righ‘Hy held fha‘r These wifnesses were able +0 memorise The idenTi‘ry of accused persons while Hwy were invo!ved in commission of dacoify and murder of Benir'am by exploding fhe ju‘re sfr'ing bomb. As far as second poinf argued by learned counsel for 'rhe appellan‘rs Thaf as per FIR, +he accused persons were wearmg monkey cap & muffler, +herefore, if was no+ possible for lhe proseculion wh‘nesses +0 iden’rify +hem is concerned/ in H16 firs‘r insl‘ance in Hie FIR i‘l' has been menfioned 'l‘hnf “the accused persons were wearing monkey cap & muffler, bul' ii- has noi been menfloned fhal‘ +heir faces were fofally covered, Therefore, fhe wi‘fnesses were no+ able 1'0 idenfify 1'he accused persons. Moreover, in cross—examinafion of fhese wi’rnesses The defence has no+ been able ’ro elici‘r fhm‘ fhe faces of accused persons were Tofally covered, fherefore, +hey were no+ able +0 idenfify +hem. In fheir evidence They have sfafed fha’r in +he lighf +hey were able fo memorise +he idenfiiy of accused persons. As far as evidence of PW—18 Khemkumar in which he has sfafed fha‘r accused persons were wearing mask and only fheir eyes d face were visible is concerned, in fhe firsf ins‘rance he has sfm‘ed Thaf fhe faces of accused persons were opened, Therefore, i‘r canno’r be said Thai’ fhey were no‘l‘ able fo iden‘l‘ify fhe accused persons. Even o‘l‘herwise/ wi‘rnesses have nof sfafed ‘i‘ha‘l‘ faces of accused persons were fofally covered. Therefore, we do no“? find any subsfance in This argumenf of learned counsel for fhe accused/appellanfs. As far as Third argumen‘i advanced by learned counsel for fhe accused/appellanfs Thai descripfion of accused persons or idenfifying marks, complexion or fea’ru‘res of The body have noT been indicaTed in The FIR, Therefore, The idenTificaTion of accused persons was noT disclosed aT The earliesT, as such The evidence of The prosecuTion wiTnesses do noT inspire confidence is concerned, iT is True ThaT any idenTificaTion mark, complexion or feoTure of The body of accused persons have noT been 17‘ 18‘ x Page 1'2. of 20 men‘l‘ioned in fhe FIR, had ‘rhqf been menHoned in fhe FIR, ‘rhen Tha‘r would have been a ground for giving more credence +0 fhe' evidence of wi’rnesses‘ bu+ such omission in fhe FIR becomes relevan‘i’ and impor’fani only when ofher‘ evidence adduced by fhe prosecu‘rion is no‘r cogen‘r & clear and ‘fhe evidence adduced by The prosecufion is shaky, Then fhe above argumen’r