^. HIGH COURT OF CHHAmSGARH. BILASPUR APPELLANT: RESPONDENT: APPELLANTS: RESPONDENT: Criminal ADpeal No.l83of 2005 KedarYadav @ PappoYadav Versus The State ofChhattisgarh AND Criminal Appeal No.304 of 2005 Prahlad Yadav and others Versus The State of Chhattisgarh Post for oronouncement of iudament on 10th Auaust,2009 Sd/- T.P.Sharma Judge ^ '^ HIGH COURT OF CHHATTISGARH, BXLASPUR APPELLANT: (In J^il) NON-APPELLANT: APPELLANTS: (InJait) RESPONDENT: Criminal Appeal No. 183 of 2005 Kedar Yadav @ Pappo Yadav, S/o Late Shri Bharat Yadav, aged about 31 years, R/o Village Nawapara, P.S. & Tahsil Ramanujganj, Distt. Surguja (C.G.) Versus The Stateof Chhattisgarh AND Criminal Appeal No.304of 2005 1. Prahlad Yadav, S/o Kishun Yadav, aged 30 years 2. Shankar Thakur, S/o Surajdeo Thakur, aged 25 years 3. Santosh Thakur, S/o Surajdeo Thakur, aged 26 years Alt byoccupation Agricultural, No.l R/o Village Navapara/ P.S. Ramanujganj, Distt. Sarguja (C.G.) No.2 R/o Vill. Deviganj, P.S. Ramanujganj, Distt. Sarguja (C.G.) No.3 R/o Vill. Tetardih, P.S. Ramanujganj, Distt. Sarguja (C.G.) Versus The State of Chhattjsgarh, Through P.S. Ramanujganj, Distt. Sarguja •CCriminal appeals underSection 374 (2)of the Code of Crjminal Procedure, 1973} Present: Mr. P.P. Sahu/counselforthe appellant in Cr.A.No. 183/2005. Mr. D.N. Prajapati, counsel for the appellants inCr.A.No.304/2005. Mr. Sushil Dubey, Govt. Advocate for the State/respondent. Sinale Bench: Hon'ble Mr. T.P. Sharma. J JUDGMENT (Delivered on 10th August, 2009) i. Since the aforesaid two criminal appeals are arising out of the common judgment of conviction & order of sentence dated 29-1- <$; ~^ hNIN(t )05 passed by the Addjtional Sessions Judge (F.T.C.), Ramanujganj in Sessions Trial No.348/2001,they are being disposed of by this common judgment. 2. By these two appeals the appellants have challenged legality & propriety of the judgment of convictionand order of sentence dated 29-1-2005 passed by the Additional Sessions Judge (F.T.C.), Ramanujganj in Sessions Trial No.348/2001, whereby & whereunder learned Additional Sessions Judge after holding the accused/ appellants guilty for commission of the offence of dacoity & other offences, convicted & sentenced themas under: - 3. Conviction & sentences are challenged on the ground that withoufr any iota of evldence especially the evidence of identification/ the Court below has convicted and sentenced the appellants only on the basis of conjectures & surmises and thereby committed illegality. 4. I have heard learned counsel for the parties and perused the impugned judgment as also the record ofthe trial Court. 5. Case ofthe prosecution, in brief, is that on 27-10-2002 at about 10.30 a.m. Vinod Prasad Gupta (PW-1), driver of Om Prakash Bus Service, was driving the public transport bus bearing No.CG-15/ZA- 0103 carrying passengers, while he was crossing near Village Kanakpur, the accused persons intercepted the bus on the point of country made pistol and brought down the driver from the bus and assaulted him with club, they snatched Rs.1,000/- from his pocket& watch from his hand, they also snatched the money collected by conductor Sunii Jayaswal (PW-3) andsnatched money & other Name of the accused Conviction Sentence KedarYadav, ShankarThakur & Santosh Thakur Sec. 395 I.P.C. R.I. for ten years & fine of Rs.5,000/- each, in default additional R.I. for two years. Sec. 398 I.P.C. R.I. for seven years. Sec. 25 (1) Arms Act R.I. for three years & fineof Rs.2,000/- each, in default additional R.I. for two years. Sec. 27 (1) Arms Act R.I. for three years & fine of Rs.3,000/- each, in default additional R.I. for two years. Prahlad Yadav Sec. 395 I.P.C. R.I. for ten years & fine of Rs.5,000/-, in default additional R.I. for oneyear. Sec.398 I.P.C. R.I. for seven years. ^ •^ y articies from passengers of the bus. After the commission of offence, Vinod Prasad Gupta (PW-1) immediately rushed to Police Station Ramanujganj andlodged the F.I.R. vide Ex.P-1. Injured Vinod Prasad, Nishar, Amerika, Gafur, Ibrahim & Abdul Gafur were examined by the doctor and injuries were found on their bodies vide Exs.P-19 to P-24. The accused persons were arrested vide Ex.P-26. Spot map was prepared vide Ex.P-2. The accused persons absconded from the spot after commission of offence, but lastly they were arrested and taken into custody. Accused Shankar Thakur made discloser statement vide Ex.P-4 relating to Rs.8,500/- & country made pistol along with cartridge. Rs.8,500/- & country made pistol along with one cartridge were recovered at the instance of accused Shankar Thakur vide Ex.P-5. Accused Santosh Thakur made discloser statement of country made pistol along with cartridges & currency notes of Rs.4/000/- vide Ex.P-6 and the same were recovered at his instance vide Ex.P-7. Accused Sudeshwar also made discloser statement of Rs.15,500/-, one Bharmar (fire arm) & substance for preparing cartridge vide Ex.P-8 and the same were recoveredat his instance vide Ex.P-9. Accused Kedar Yadav also madediscloser statement ofRs. 11/245/-, ear tops, one pair of Payal &country made pistol vide Ex.P-10 and the same were recovered at his instance vide Ex.P-11. Accused Prahlad made disclpser statement of Rs.6,240/-, one tocket, country made pistol & one cartridge vide Ex.P-12 and the same were recovered at his instance vide Ex.P-13. Fire arms weresent forexamination to the armourer and they were found jn service condition and the cartridges were found alive vide Exs.P-lSA to P-18A. Sanction for prosecution under Section 39 of the Arms Act was accorded by the District Magistrate, Sarguja vide Ex.P-25. Identification parade wasconducted by the Executive Magistrate and accused Prahlad was identified by witness Vinod. 6. According to the case of the prosecution, after commission of the instant offence, the accused persons also committed different offences of dacoity and common discloser statements were recorded after their detention. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Ramanujganj who in turn committed the case II the Court of Sessions, Annbikapur, from where learned Additional Sessions Jydge (F.T.C.), Ramanujganj received the case on transfer fortrial. 7. In order to prove the guilt of the appellants, the prosecution has examined as many as 16 witnesses. Statements of the accused were recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against them and pleadedinnocence & false implication. 8. After affording opportunity of hearing to the parties, learned Addjtjonal Sessions Judge convicted &sentenced the appellants in the aforesaid manner. 9. Learned counsel for the appellants vehemently argued that this is a caseof aileged bus dacoity and the accused persons were not known to bus driver, conductor & passengers. No specific features have been recorded in the F.I.R. and the alleged identification parade was conducted on 13-3-2003 after lapse of more than four months, therefore, reliance upon the alleged identificatjon is not safe. The witnesses have deposed in their evidence that they have not jdentified and they do not know the appellants, only Kanhai Ram (PW-2) has deposed that he knows the appellants because they are residents of his village namely, Aaragahi, heis interested witness and his evidence is not reliable. The property hasalso not been identified by the persons from whom it was robbed. Learned counsel further submjts that definitely the pffence isserious, but the prosecution was required to prove the cQmmission of offence against the present appellants andin absence of such proof, convictjon & sentences imposed upon the appellants are notsustainable under the law. Learned counsel placed reliance in the matterof Mohanlal Gangaram Gehani v. State of Maharashtra in which it has been held by the Apex Court that identification of the accused before the Court when he was not known to the complainant hasno valueand cahnot be relied upon. Learned counsel further placed reliance in the matter of Ahmed Bin Salam v. State of A.P.2 in which the Apex Court has held that in absence of cogent evidence relating to jdentification, conviction is not safe. Learned counselalso placed 11982 STPL(LE) 11029 SC 21999STPL(LE)26121SC 5 liance in the matter of Musku Pentu and Another v. State of A.P.3 in which theAndhraPradesh High Court has held that accused persons not identjfied in the test identificatjon parade, not safe for conyictiQn under Section 395 of the I.P.C. Learned counsel lastly placed reliance in the matter of Hari Nath and another etc. v. State of U.P. in which the Apex Court has held thal: person known to the accused persons did not disclose the identity of accused in F.I.R. raise reaspnable doubt about their complicity in the crime and test identificatjon parade conducted after unexplained delay of four months is not safe to rely. 10, On the other hand, learnedcounsel appearing on behalfofthe State/ respondent supported the judgment and argued that identification of mostof the accused was conductedon 13-3-2003 andthearticles were identified by their owners. This is a case of bus dacoityin which the persons effected have identified the accused persons. lt.In orderto appreciate the contentions of the parties, I have examined the evjdence available onrecord. i2.Vinod Prasad (PW-1), driver of the bus, has deposed that he knows the appellants, at the time of incident the accused persons stopped the bus near Kanakpur on the point of/Ca a, they brought down him and assaulted with club, and snatched Rs.1,000/- &one wrist watch of HMT make. The accused persons also snatched Rs.8,000-9,000/-, the collection ofthat day, from conductor Sunil Kumar Jayaswal and also robbed money & articles from the passengers and also assaulted them. They again directed the passengers & him to board the bus and not to leave the place before two hours, and they fled away. After the commission of dacoity, he took the bus along with the passengers to Police Station Ramanujganj where he lodged the report vide Ex.P-1. Spot map was prepared vide Ex.P-2. He was examined by the doctor. He identified the accused persons in the identification parade vide Ex.P-3. i3.Conductor Sunil Jayaswal (PW-3) has also stated the commjssjon of bus dacoity near Kanakpur forest by the miscreants on the point of betel axe/axe, stick &country made pistol. He has deposed that the miscreants have robbed the passengers and also snatched 3 2005 Cri.L.J. 1355 4AIR 1988 SC 345 "^ '% \ "*-. Rs.5,000/- from him and assaulted him with stick. 7-8 persons have committed the dacoity. Thereafter, they went to the Police Station and lodged the report. i4.Kalamuddin (PW-5), passenger, has deposed that the miscreants have snatched Rs.160/- from him and assaulted him. Imamuddin (PW-6) has also deposed relatirig to the bus dacoity and that the miscreants have robbed Rs.60/- from him, they were holding axe & stick. He has identified accused Banshidhar, Santosh & Prahlad, and specjfically deposedthat the said dacoity has beencommitted in the daylight. Nisar (PW-7), another passenger, has also deposed about commission of bus dacoity and that he has identified accused Sudeshwar & Banshidhar as miscreants. Abdul Gafur (PW-8), another passenger of the bus, has also supported the case of the prosecution and deposed that the miscreants have robbed Rs.500/- from him, they were armed with country made pistol, betel axe & sttck, and they have assaulted the passengers with stick. Amerika (PW-11) has also deposedabout the commission of bus dacoity and deposed that at that time he was having nothing therefore, the miscreants have assaulted him with stick. Ibrahim (PW-16) has also supported the case of the prosecution and deposed that the miscreants have robbed Rs.3,000/- from him, they were 7-8 in number and armed with gun & stick, they were assaulting the passengers and also assaulted him. Doctor has examined him. He has further deposed that he has identified some accused, he has identifjed accused Shankar Thakur. He has also deposed that at the time ofcommission ofoffence face ofaccused Shankar Thakur was covered but afterwards cover on the face of the accused was open/ therefore, he has identified ShankarThakur. 15.J.P.N. Singh (PW-13) who has conducted substantial part of investigation has deposed in his evidence that on 27-10-2002 Vjnod Prasad Gupta has lodged a report in Crime No. 126/2002 vide Ex.P-1. He has prepared the spot map on the spot vide Ex.P-2. He has recorded the memorandumstatement of Shankar Thakur vide Ex.P-4 on the basis of which he has recovered Rs.8,500/- & country made pistol along with cartridge from the accused vide Ex.P-5; the memorandum statement of Santosh Thakur vide Ex.P-6 on the basis ofwhich he has recovered country made pistol along with cartndges & currency notesof Rs.4,000/- from the accused vide Ex.P-7; the t^ memorandum statement of Sudeshwar vide Ex.P-Son the basis of which he has recovered Rs.15,500/-, one Bharmar (fire arm) & substance for preparing cartridge from the accused vide Ex.P-9; the memorandum statement of Kedar Yadav vide Ex.P-10 on the basis of which he has recovered Rs.24,550/-, ear tops, one pair of Payal ^. country made pistol from the accused vide Ex.P-11; and the memorandumstatement of Prahlad Yadav vide Ex.P-12 on the basis of which he has recoveredRs.6/240/-, one locket, country made pistot & one cartridge from the accused vide Ex.P-13. 3.P.N. Singh (PW-13) has also stated that he has arrested the accused persons videExs.P-14, P-26 & P-27. He has also stated that the original memorandum &seizure have been kept in Crime No. 19/2003. i6.Kanhai Ram (PW-2) &Bajranglal Agrawal (PW-4), the wjtnessesof memorandum & recovery, have corroborated the evidence of J.P.N. Singh (PW-13). Dr. B.R. Ratre (PW-10) has deposed in his evjdence thaton 27-10-2002 he has examined Vinod Prasad, Nishad, Amerika, Gafur, Ibrahim & Abdul Gafur S/o Jeetan Miya, and found jnjuries asstated jn Exs.P-19 to P-24. Nothing has been cross- examined to this witness by the defence. 17.H.N. Nag (PW-14) has deposed in his evidence that on 13-3-2003 he conducted identification parade vide Ex.P-3 and wJtnessVinod Prasad Gupta has identified accused Prahlad. In his detailed cross- examination he has deposed about the manner in which he has arranged the identification parade and that guards were not present atthe place of identification. He has conducted identification parade inside the high school. is.Vinod Prasad (PW-1) has deposed in para 3 of his evidence that he has correctly identjfied the accused persons. In his cross- examination para 6 he has deposed that on what basis he has jdentified the accused persons. He has also stated that in test identification parade he hasidentified one person, but in para 15 of his cross-examjnation has admitted that the Police were present during identjfication. He has denied the suggestion that he has not jdentified any person but at the instance of Police heis implicating the accused persons falsely. However/in para 18 he has specifically admitted thathe has identified only one person. ..^ ^B(. h^ 8 t9.Ihjured persons Sunil Jayaswal (PW-3) - conductor, Kalamuddin (PW-5), Abdul Gafur (PW-8), Amerika (PW-11) & Ibrahim (PW-16) have not deposed that they have identified the accused persons. But Imamuddin (PW-6) has deposed that he has seen two persons who are committjng the dacoity and he may identify them. He has jdentjfiedaccused Santosh & Prahlad in dock identification. In para 8 of his cross-examination he has deposed that after the incident, first time he has seen the accused perspns in the Court. Nisar (PW-7) has identified accused Sudeshwar & Banshidhar in dock identification. He has also admitted in para 6 of his cross- examjnation that after the incident he has seen the two accused persbns first time in the Court. 20.1dentification in Court i.e. dock jdentification is a substantjve piece of evidence and admissible in evidence. Test identification attaches only corroborative value, it is not sine qua non in every case. Test jdentification is a rule of prudence and caution for accusation. If dock identification is otherwise reliable, then reliance can be placed upon the same. In the matterof SurajPal and others v. Stateof Haryana5while dealing with the same question it has been held by the Apex Court that the dock identification is accepted if otherwise found to be reliable. Relevant portion reads thus: "Before dealing with the various contentions advanced by the learned counsel for the appellants as referred to above, we shall first state the object, purpose and importance of the test identification parade.It may be pointed out that the holding of identification parade has been in vogue since long in the past with a view to determine whether an unknown person accused of an offence is really the culprit or not, to be identified as such by those who claimed to beeyewitnesses ofthe occurrence so that they would be able to identify the culprit if produced before them by recalling the impressions of his features left on their mind. That being so, in the very nature of things, the identification parade in such cases serves a dual purpose. It enables the investigating agency to ascertain to correctness or otherwise of the claim of those witnesses who claimed to have seen the offender of the crime as well as their capacity to identify him and on the other hand it saves the suspect from the sudden risk of being identified in the dock by such witnesses during the courseof the trial. Th'is practice of test identification as a mode of identifying an unknown person charged of an offence is an age-old method ^^ x (1995)2 SCC 64 ^ rA^ l^ 1 and it has worked well for the past several decades as a satisfactory mode and a well-founded method of criminal jurisprudence. It may also be noted that a the substantive evidence of identifying witness is his evidence made in the court but in cases where the accused person is not known to the witnesses from before who claimed to have seen the incident, in that event identification of the accused at the earliest possible opportunity after the occurrence by such witnesses is of vital importance with a view to avoid the chance of his memory fading away by the time he is examined in the court after some lapse of time." 2i.In thematter of DayaSingh v. State of Haryana6 it hasbeen held by the Apex Court that delayin trialand identification of accused in Courtafter seven or eight years would not affect evidence pf said witnesses and conviction of accused on the basis of their testimony even in the absence of test identification their statement relating to dock identification can be relied upon. Relevant portion js reproduced as under: "It is to be borne in mind that purpose of test identification is to have corroboration to the evidence of the eyewitness in the form of earlier identification and that substantive evidenceof a witness is the evidence in the Court. If that evidence is found to be reliable then absence of corroboration by test identification would not be in any way material. Further, where reasons for gaining an enduring impress of the identify on the mind and memory of the witnesses are brought on record, it is no use to magnify the theoretical possibilities and arrive at conclusion - what in present day social environment infested by terrorism is really unimportant.In such cases, not holding of identification parade is not fatal • to the prosecution." 22.In thecase of Ramanbhai Naranbhai Pateland others v. State of Gujarat it has been held been held by the Apex Court that identificatjon of accused for the first time in court by eyewitnesses when they did not know him earlier and when no test identification parade was held, such identification is not irrelevant or inadmissible. 23. In the matter of Sampaf Tatyada Shinde v. State of Maharashtra8 it has been held by the ApexCourt that the evidence of test identification is admissible under section 9 of the Evidence Act. 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BUfpjeBDJ SSeU^IMejO 93U9p!A9 9^ UJjyUOD O^ p9J9pU9^ OQ UB3 ^B^ 93U9plA9 ^o QdA^ A/uo s^ uopBDypuapi ^sa^ si JON 'an/eA ju9pu9d9pu! ou seif /.//9S^./ Aq /9pejed uo!ye3Lfpu9pi fS9^ 9Llf ye S9SS9Uf!M 9(/J Aq Dpeuj uopeD^puopi J911.1B9 9t/_/. '^DB leUIUJUD 9^ JO J90p 9Lf^ Se pSSnDDB 9(/7 ./o uope3ypu9p! 6uipje69j ^jnoD ui sassauyM 9t/f Aq u9Ai6 93U9pfA9 QApuB^sqns 9^ ^BJOqOJJOD 0} Afuo p9sn aq UBD yi 'ODuapiAa Bupjoddns /fsoq ye /si fi ^DV 9Du9p{A3 a^ ^o 6 uopoas J9pun aiqissiujpe si uopeD.wuopi ^sa} jo 93U9pfA9 QLJ^ :j9punse speaj uoi^jod ^ueAaiay -pasnooe 8L|4 jo uoReoynusp! 6uipje6aj ijnoo ui sasssu^iM 91)4 Aq uaAiB 01 IN^ >. ^- 11 witnesses have deposed that theaccused persons have given memorandum statements Exs.P-4, P-6, P-8, P-10 & P-12 which contain discloser partand also the commission of offence. Part of memorandum statements relating to commissjonof offence against theaccused persons is rejected as not admissjble in accordance with Section 27 of the Evidence Act. The only part relating to discloser of fact based on recovery inspires confidence which reveals that on the basjsofthe discloserstatementsofthe accused persons/property of dacoitY & arms have been recovered from different accused persons. J.P.N. Singh (PW-13) has deposed that another case in Crime No.19/2003 has also been registered relating to dacoity and seven accused persons have been tried for that offence, but out of seven only fouraccused persons namely, Prahlad, Santosh, Sudeshwar& Banshidhar have beenidentified by Vinod Prasad (PW-1), Imamuddin (PW-6) &Nisar (PW-7). 27.As regards the qyestjon of commission of offence under Sections 25 (1) & 27 (1) of the ArmsAct/fire arms have been recovered from the appellants on the basis of their discloser statements and on their examinatjons the fire arms were found in workable condition. Sanction for prosecution of the appellants has been accorded by the DJstrict Magistrate vide Ex.P-25 which has been duly proved. 28.After appreciating the evidence available on record, learned AdditiQnal Sessions Judge has convicted & sentenced the appellants in the manner mentioned above. Conviction & sentences of appellants Kedar Yadav, ShankarThakur & Santosh Thakur under Sections 25 (1) & 27 (1) of the Arms Act are based on legal and clinching evidence sustainable under the law. 29.As regards the questjon of conviction 8isentences of the appellants underSections 395 &398 oftheI.P.C., offence underSection398 of the I.P.C. is not substantive offence and it is an exaggerated form of dacoity or robbery, therefore, independent conviction & sentences of the appellants under Sections 395 & 398 of the I.P.C. are not sustainable underthe law. 30.In theresult, the appeals are partly allowed. Judgment of conviction & orderof sentences ofthe Court below is modified as follows: - ^ 12 a. Conviction & sentences imposed uponKedar Yadav, Shankar Thakur & Santosh Thakur under Sections 25 (1)& 27 (l)ofthe Arms Act are maintained. b. Conviction & sentences of all the four appellants under Sections 395 & 398 ofthe I.P.C. are hereby set aside, instead thereof, they are convicted under Section 395 read with Section 398 of the I.P.C. and sentenced to undergo R.I.