(^ HIGH^OURT OF CHHATTISGARH. BILASPUR CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI SUNIL KUMAR SINHA, J, CriminalABpealNp. 931 of 2005 Mansharam Vs. State of Chhattisgarh (And other connected Cr.A. No. 761 of2007) JUDGMENT ^s^7^ For consideration Sd/- Sunil Kumar Slnha 7 'Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA J A^r^^-^--,— ~(] Sd/- Chief Justice Post for Judgment : 2.^" /08/2009_ Sd/- SunilKumarSinha Judge ...u 1s HIGH COURT OF CHHATTISGARH. BILASPUR ^s-^ CORAM: HON'BLE SHRI RAJEEV GUPTA. C.J. & HON'BLE SHRI SUNIL KUMAR SINHA, J. Critninal Appeal No. 931 of 2005 Appellant Mansharam S/o Jhitku Gond, aged 40 years, R/o Village Angara, P.S. Mohala, District Rajnandgaon (C.G.) . Versus Respondent State of Chhattisgarh Through Police Station Mohala, District Rajnandgaon (C.G.) i.aii Appellants Respondent And Criminal Appeal No.761 of 2007 1. Chainu S/o Mansingh, Aged 35 yrs., R/o Village- Iragaon, P.S.- Mohala, District Rajnandgaon (C.G.) 2. Ankalu S/o Rainu Mandavi, Aged 35 yrs., R/o Village- Kharadi, P.S.- Mohala, District Rajnandgaon (C.G.) yersus State of Chhattisgarh Through Police Station- Mohala, District Rajnandgaon (C.G.) (APPEALS U/S 374 (2) OF THE CODEQF CRIMINAL^ROCEDURE) Appearance: Mr. Satish Chandra Verma, counsel for the appellants in Cr.A. No. 761/2007. Ms. Shipra Vishwa, counsel for the appellant in Cr.A. No. 931/2005. Mr. Ravindra Agrawal, Panel Lawyer for the State. ^ Crimmal Appeals No. 931 of2005 & 761 of 2007 JUDGMENT {i ^.08.2009) Following judgment of the Court was delivered by Sunil Kuinar Sinha, J, (1) These appeals havebeen directed against the judgment and order dated 6.8.2005 passed in Sessions Trial No. 135/2001, by the First Additional Sessions Judge, Rajnandgaon (C.G.), whereby the appellants have berin convicted and sentenced in the following manner with a furt^er direction to run the sentences concurrently:- Conviction u/s 302 IPC u/s 395 IPC u/s 396 IPC u/s 323/34 IPC u/s 120-BIPC Sentence Rigorous imprisonment for life Rigorous imprisonment for 7 years FUgorous imprisonraent for life Rigorous imprisonment for 6 months (in four counts) Imprisonment for life (2) The facts, brieQy stated, are as under:- Complainant Mahar Singh (PW-6) of village Gobiyagarh was sleeping in his house in the interyening night of 16.6.2001 & 17.6.2001. At about 12.30 a.m., Mansaru (acquitted accused No.l) came to his house asking for some food materials saying that soine daddas ' have come to her house and she had to prepare meal for ^ifflSZll f€ •:'f '^-^itEBiS \ "% t'li!-, '"- i'sassg a»ii Criminal Appeals No. 931 of 2005 & 761 of 2007 them. She went back after taking those materials. At about 1.00 p.m., she again came with 5 persons. They took his father Itwaru Gond with them. After half an hour, they again returned back \vith the dead body of his father and threw it in front^ of his house. They demanded money from fhe complainant. When he denied, they assaulted him and thereafter they committed dacoity of various silver ornaments belonging to the complainant. They again demanded Rs.10,000/- from the complainant which he denied. Appellant Mansharam was one of the 5 accused persons who were with accused Mansaru. They also caught uncle of- the l.complainant namely Buturam. They were \ denianding nidney from Buturam. When he denied, they started b'eating him with danda. Buturam died instantaneously. Thereafter, appellant Masharam and the above 5 persons looted Rs.2,000/- from the house of Deoprasad, Rs.1,000/- 8s a saree from the house of Itwar and Rs.100/- along with paint-shirt from the house of Ramcharan. In the process of committing dacoity, they assaulted Basanti (PW-21), Deoprasad (PW-15), Mehatar (PW-12), Jyoti (PW-16) and Saysai Bai. 'Si!| The matter was reported to the polic.e by Mahar Singh (PW-6) in village Khadgaon on 17.6.2001 itself, on which a Dehatinalishi (Ex.-P/''13) was recorded. It contains the names of-two accused persons i.e. Mansharam & Mansaru along with 5 other unknown persons. It also contains the details of property looted by the accused persons. Based on the aforesaid nalishi, a First Information Report (Ex.-P/12) was registered in police station Mohala. Merg intimations were registered under Ex.-P/14 8s P/15. Site plan was prepared under Ex.-P/lO. After giving notices (Ex.-P/36 & P/37) to the Panchas, inquest on the bodies of the deceased persons were prepared under Ex.-P/38 Ss, D/2. The dead bodies of the deceased persons were sent for their post- mortem to Community Health Centre, Mohalla, where the post-moEtem examinations were conducted by Dr. S.R. ^•".•'^ ~'\ !'i!na^a i.-»s;s5t' .^^l^l CriminalADpealsNo.931 of2005 & 761 of 2007 Mandavi (PW-9), who prepsu-ed his reports Ex.-P/23 8s P/24. The Autopsy Surgeon noticed many external injuries, including the fractures on the bodies of the deceased persons and opined that the injuries were ante-mortem in nature and were caused by hard and blunt object. He further opined that the causes of death were shock, due to extensive hurt and the death were homicidal in nature. After takihg the accused persons Safura @ Meena, Matho Bai @ Kavita, Chainu 85 Ankalu into custody, their memorandym statements (Ex.-P/2, P/3, P/4 & P/5) were recorded u/s, 27 of the Evidence Act and various articles, including the'jornaments were seized from their possession under Ex.-P/6, P/7, P/8 SE P/9. Ornaments were put for identification and they were rightly identified through Ex.- p/1. Injured Sanghmaya Bai, Joti (PW-16), Deoprasad (PW-15), Tijan (PW-14), Mehatar (PW-12), Mahar Singh (another victim than complainant), Basanti Bai (PW-21) 85 Mahar Singh S/o Itwaru Gond (complainant - PW-6) were also sent for their medical exarainations and their MLC reports were collected under Ex.-P/25, P/26, P/27, P/28, P/29, P/30,P/31 &P/32. After arrest of the accused persons accused Safura @ Meena and Matho @ Kavita were put for their identification on 24.7.2001 and they were identified by Mahar Singh (PW- 6) through T.I.P. memo Ex. P/17. Appellants Chainuram and Ankalu were also put for identification on 16.07.2001 and they were also identified by Mahar Singh (P.W.6) through T.I.P. memo Ex.P/16. After completion of usual investigation, the charge- sheet was filed in the Court of Judicial Magistrate, First Class, Ambagarh Chowki against 7 accused persons, who in turn committed the matter to the concerned Sessions Cdurt, from where, it was received on transfer by the First 1 -^// tSlh ^ Criminal Appeals No. 931 of 2005 & 761 of 2007 Additional Sessions Judge, Rajnandgaon, who conducted the trial and convicted the accused/appellants as aforementioned. However, the other accused persons namely Mansaru (A-l), Matho Bai @ Kavita (A-3), Safura @ Meena (A-4) and Badbud @ Nawluram (A-7), were acquitted. (3) The conviction of the appellants is based on the testimonies of Mahar Singh (PW-6), Mehatar (PW-12) and Tijan (PW-14) corroborated by the evidence of test identification parade conducted by the Executive Magistrate, Sudhir Taram (PW-10) on 16.7.2001 through»Ex.-^/16 in which Mahar Singh (PW-6) rightly identified appellants Ankalu and Chainu. (4) Learned counsel for the appellants argued that Mahar Singh (PW-6) is the son of deceased Itwaru and nephew of deceased Buturam, therefore, he is an interested witnesses and his testimony cannot be relied on. They also argued that the evidence of Mahar Singh (PW-6) was not believed in relation to the test identification parade conducted for identification of Matho Bai @ Kavita (A-3) and Safura@ Meena (A-4) vide Ex.-P/17, therefore, he should be disbelieved for the entire evidence including the test identification parade of appellants Ankalu and Chainu. They referred to Para-39 ofthe impugned judgment. (5) On the other hand, Mr. Ravindra Agrawal, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment and order passed by the Sessions Courf. ags^^^^E^s-? ^:&@g_'g^5^.S tm Criminal A2peds^oJ^3rof2005_&76_l_o£lQ07 (6) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (7) In Harbans Kaur and another -Vs- State of Haryand, 2005 AIR SCW 2074, it was held that there is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely impUcate the accused. (8) In Namdeo -Vs- State of Maharcishtra, 2007 AIR SCW 1835, the Apex Court held that a witness who is a relative of deceased or victim of the crime cannot be characterized as 'interested'. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive. The Apex Court also observed that a close relative cannot be characterized as an 'interested' witness. He is a natural witness. His evidence, however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the 'sole' testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence; On the contrary close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implieate an innocent one. T:T'H!'n!;iR'T-ir ?T?:;B®as^e^S—&- -t-'-lttit,,. l--';a^?"1 Criminal AucealsNo. 931 of 2005 & 761 of2007 (9) In the matter of Sonelal -Vs- State ofM.P.. 2008 AIR SCW 7988, the Apex Court again said that merely because the eye witnesses are family niembers their evidence cannot be per-se discarded. Relationship is- not a factor to affect credibility of a witness. It is more ofteo than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Coyrt has to adopt a careful approach and analyse evidence to ffp.d ouf whether it is cogent and credible. (10) Therefore, this argument cannot find favour that the testimony of relative witness cannot be relied on, only on the ground that he is the relative of the deceased. However, his evidence is to be scrutinized with due care and caution and if the evidence is found credible in appreciation, the conviction can well be based on such testimony of the witness. (11) Now we shall examine the.,.evidence of PW-6, Mahar Singh. Mahar Singh deposed that "deceased Itwaru was his father and deceased Buturam was his uncle. On the fateful night at about 1.00 a.m., Mansaru Bai (A-l) and her husband Dayal came to his house. Mansaru told to his wife that daddas have come, she has to prepare meal for theni, therefore, some onion, oil dnd water etc. be given. On this, his wife Saroj gave her oil, chilly, onion 85 water. She took these things. After half an hour, brother of Mangaru- appellant Mansharam and another persons came to his house and 'l;; H' T''r"j-:7:i"Ti"!':~T—3;"j^J l^ ¥ lll CriminalApuealsNo. 931 of 2005 & 761 of 2007 demanded Rs.10,000/-. When he denied, they pressurized him to search the money in boxes. He took them inside his house. They opened the boxes and took the silver ornaments of his wife. They also took his wrist-watch.- He saw that his father was thrown in front of his house. Mansharam threatened him. by showing the dead body of his father. He said that they will do the same with him. Mansharam and other 5 accused persons took him towards the forest. In all there were .6 persons. They surrounded him in the forest. They were a&king about the raoney. When he replied negative, he was assatilted by them by stones. He requested them to take him to his house saying that he will give them Rs.2,000/-. When he was being brought to his house from the forest, his uncle Buturam met on the way. He obstructed the accused persons. On this, Manshararu and his associates assaulted his uncle. They took him towards the tank. The accused persons cominitted murder of his uncle. He also received many injuries on his arms, abdomen and back. In further examination, he deposed that he had participated in the identification of the accused persons Chainu and Ankalu. The learned Sessions Judge has observed in deposition sheet that the witness went to the place of accused persons from the witness-box and identified Chainu and Ankalu. He further deposed that he had identified the two ladies accused namely Safura @ Meena and Matho Bai @ Kavita. He also admitted the signatures over the identification memos (Ex.-P/16 8s '''!> Criminal Appeals No. 931 of2005 & 761 of 2007 (12) The learned Sessions Judge has not believed the evidence of this witness, so far as it relates to identification of Safura @ Meena and Matho Bai @ Kavita vide identification memo Ex.-P/17 because he has not mentioned in Dehatinalishi or the police case diary statement (Ex.-P/30) that any lady accused was also involved in the matter. The Sessions Judge has also observed that none of the prosecution witnesses deposed about involvement of lady accused persons Mansaru Bai (A-l), Matho Bai @ Kavita (A- 3) and Safura @ Meena (Aj-4), therefore, their involvement appears to be doubtful. It is'on these grounds, identification of those accused persons by Mahar Singh (PW-6) was disbelieved. (13) So far as identification of appellants Chainu and Ankalu is concerned, PW-6 Mahar Singh, has categorically admitted in his cross examination vide Para-17 that police personnels belonging to Mohala police were present at the tiine of identification of appellants Chainu and Ankalu. According to the Executive Magistrate (PW-10), identification parade was conducted in the verandah of sub-jail, Rajnandgaon. Though he deposed that no police officers were present at the time of test identification parade, but we have no reason to discard the evidence of PW-6, Mahar Singh, regarding the presence of the police officers of the Same police station while conducting the T.I. parade of appellants Chainu and Ankalu. (14) 'As a general rule, the substantive evidence of a witness is a staferoent inade in Court. The evidence of mere identification of ..; ^a'ss^^ .•::;;ir\ f ''• /'% '^ j@ '. ^y^^f " ,-!,.^:' m 10 Cnminal Appeals No. 931 of 2005 & 761 of 2007 the accused person at the trial for the Grst time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circurastances he came to pick out the particular accused person and the details of fhe part which the accused played in the crime in question with reasonable particularity. 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 tdi, generally look for corroboration of the sworn testimony of wifnesses in Court as to the identity of the accused who are strangers to theni, in the form of earlier identification proceeding. There may, however, be exceptions to this general rule, 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 investigation stage. They are generally held during the course of investigation with the primary object of enabling the witnesses to identify persons concerned in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in Court. Identification proceedings in their legal effect araount simply to this; that certain persons are brought to jail or some other place and make statements either express or iraplied that certain individuals whom they point out are persons whom they recognize as having been concerned in the crime. They do not constitute •t „..«,„1 i",, "i:'r'^^ '^••.. 'i^ m aii 11 Criminal Aopeals No. 931 of 2005 & 761 of 2007 substantive evidence. These parades are essentially governed by Section 162, Cr.P.C. (Ptease see - Budhsen and another -Vs- State ofU.P.. AIR 1970 SC 1321]. (15) The presence of the police officers at the test identification parade looses the value of the said parade as in such situation, it cannot be said to be held free from all encumbrances. Therefore, if the identification ofthe Court is not corroborated by the factum of a free test identificatioia parade, it creates a doubt regardin^ involvements of the accused persons in crime in question and the factor of their right dock identification, as in such cases an element of influence by the police in their test identification during the investigation would not be fully ruled out. The position would be different if no T.I. parade was organized and the witness identiBes the culprits directly in the Court. The prudence requires the corroboration of identification in Court by prior T.I.Ps., but absence of T.I.Ps. would not be fatal if the accused persons were known earlier to the witness -or if they had been sufficiently described in the complaint or if the accused persons had been arrested at the spot. In appreciation of entire evidence of PW-6, Mahar Singh, we have a doubt about involvenient of appellants Ankalu and Chainu in crime in question. For the aforesaid reasons, the test identification parade in this case could not be considered to provide safe and trustworthy evidence on which the conviction of these accused persons could be sustained. lis^'"-y7H 12 Criminal Appeals No. 931 of 2005 & 761of2007 (16) Mehatar (PW-12) also deposed in Para-4 of his examination- in-chief that it was a dark night. Mansharam. and his 5 associates had assaulted him. He could identify appellant Mansharam but he could not identify the other persons who were wearing black cloths. Tijan (PW-14) alsa deposed that at about 12 in the night Mansharam and his associates carae in the village. They had assaulted his grand-father Buturam. They had also assaulted him by danda, due to whieh he received injury on his left thigh. He was medically examinedY(in the government hospital, Mohala. In appreciation of entire evidence on record, the involvenient of appellant Mansharam in crime in question cannot be denied. He was previously known to the witness who had identified him in the night and they have also deposed about the role played by him. The evidence of Mahar Singh (PW-6), so far as Mansharam is concerned, is intact. Name of appellant Mansharam. finds place in Dehatinalishi and the F.I.R. proniptly lodged by him. This corroborates the evidence of P.W.6 about appellant Mansharam. The learned Sessions Judge was fully justified in convicting appellant Mansharam on the above evidence on record. (17) In the result Cr.A. No. 761/2007 is allowed. The conviction and sentences awarded to appellants Chainu and Ankalu are set aside. They are acquitted of the charges framed against them. It is stated that they are in jail since 8.7.2001. They be set at liberty, forthwith, if not required in any other case. ~^="-' 13 Criminal AcuealsNo. 931 of 2005 & 761 of 2007 (18) The Cr.A. No. 931/2005 filed on behalf for appellant Mansharam is dismissed. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge rarti -ilSii Sl!!i