RESPONDENT : HIGH COURT OF CHHATTISGARH, BILASPUR rminal Appeal No.415 of 20 Ci 05 APPELA: LNT Bansidhar h Yadav Versus State of Chhattisgarh Criminal Appeal No.453 of 2005 : Kedar Yadav @ Pappu adav APPELLANTS Y Versus State of Chhattisgarh, Criminal Appeal No.489 of 2005 Shankar Thakur and thers o Versus The State of C hhattisgarh RESPONDENT : APPELARITS: E RESPONDtNT : AND riminal Appeal No.520 of‘200 C 5 : Phlad Yadav APPELLANT ra VerSUS RSPNE EODNT: The State of Chhattisgarh ost for pronouncement of judqment on 10th August, 2009 Sdl- T. P. Sharma Judge 108-009 -2 P M” IGH COURT OF CHHATTISGARH, BI‘LASPUR Criminal Appeal No.415 of 200 Banshidhar Yadav, S/o Late Bandhan Yadav, aged about 33 years, R/o Viilage Nawapara, P.S. Ramanujganj, Distt. Sarguja (C.G.) Versus State of Chhattisgarh, Through Station House Officer, Ramanujganj, Distt. Sarguja (C.G.) APPELLANT: In Jan) RESPONDENT: Criminal Appeal No.453 of 200 5 Kedar Yadav @ Pappu Yadav, S/o Late Shri Bharat Yadav, aged about 31 years, Occupation Agriculturist, /o Viliage ‘ Nawapara, P.S. Ramanujganj, Distt. Sarguja (C.G.) V _ APPELLANT: (In Jail) ‘e‘? ersus State of Chhattisgarh, Through Station House Officer, Ramanujganj, Distt. Sarguja (C.G.) RESPONDENT: CriminalAppeal No.489 of 200 5 Shankar Thakur, S/o Suraj Deo Thakur, aged about 25 years; Raju Singh @ Rajeshwar, S/o Shivnandan Khairwar, aged about 27 years; Both by Occupation Agriculturist,- R/o Village Deviganj, P.S. Ramanujganj Distt. Surguja (C.G.) ‘ Santosh Thakur, S/o Sura Deo Thakur, aged about 27 years, B Occupation Agriculturist, R/o Village Tetardeeh, P.S. Ramanuganj, Distt. Surguja (C.G.) Versus The State of Chhattisgarh, Through the Police Station Ramanujganj, Distt. Sarguja (C.G.) AND 1. : (I Jail ‘ RESPONDENT: Criminal Appeal No.520 of 200.5 Prahlad Yadav, S/o Kishun Yadav, aged 29 yrs., by occupation ‘ Agriculturist, R/o Village Navapara, P.S. Ramanujganj, Distt. Sarguja (C.G.) PPELLANT: \ (In Jail) \ \ H 5 ( R APPELLANTS n ) h j y j A \ 1 2 Versus The State of Chhattisgarh, Through P.S. Ramanujganj, Distt. Sarguja (C.G.) {Criminal appeals under Section 374 (2) of the Code of Criminal Procedure, 1973} RESPONDENT: Present: ’ Mr. Arun Shukia, counsel for the appellant in Cr.A.No.415/2005. Mr. Deepak Jain, counsel for the appellant in Cr.A.No.453/2005. Mr. D.N. Prajapati, counsel for the appellants in Cr.A.Nos.489/2005 '& 520/2005. s Mr. Sushil Dubey, Govt. Advocate for the State/respondent. e .3 Sing‘ le Bench: Hon'ble Mr. T.P. Sharma. J - JUDGMENT » (Delivered on 10th August, 2009) ‘1. Since the aforesaid four criminal appeals are arising out of the a common judgment of conviction & order of sentence dated 13-4— 2005 passed by the Additional Sessions Judge (F.T.C.), Ramanujganj in Sessions Trial No.397/2003, they are being disposed of by this I t common judgment. . Vide the judgment of conviction and order of sentence dated 13-4— 2005 passed by the Additional Sessions Judge (F.T.C.), Ramanujganj in Sessions Trial No.397/2003, learned Additional Sessions Judge has convicted & sentenced the appellants as under: - Name of the accused Conviction Sentence * Kedar Yadav @ Pappu Sec. 395 I.P.C. R.I. for ten years & fine of Yadav, i Rs.15,000/- each, in default Shankar Thakur& additional R.I. for two Santosh Thakur . ‘ years. Sec. 398 I.P.C. R.I. for ten years & fine of Rs.15,’000/— each, in default additional R.I. for two years. Sec. 25 (1A) R.I. for seven years & fine Arms Act of Rs.5,000/- each, in default additional R.I. for two years. 3 Sec. 27 (1) R.I. for seven years & fine l ~ Arms Act of Rs.5,000/- each, in l default additional R.I. for / two years. Prahlad Yadav, . Sec. 395 I.P.C. R.I. for ten years & fine‘of Raju‘@ Rajeshwar & Rs.15,000/- each, in default Banshidhar additional R.I. for 18 ‘ eighteen months. § . __1 3 Sec. 398 I.P.C. R.I. for ten years & fine of Rs.15,000/— each, in default additional R.I. for eighteen months. . Conviction & sentences are challenged on the ground that withou any iota of evidence especially the evidence of identification, the Court below has convicted and sentenced the appellants and thereby committed illegality. . I haVe heard learned counsel fbr the parties and perused the mpugned judgment as also the record of the trial Court. Case of the prosecution, in brief, is that on 8-3-2003 at about 3.3 a.m. (night) Arun Kumar Patel (PW-11), driver of Shivam Transport Bus uNfo.CG-15/ZA-0176, was carrying passengers, while he wa driving the‘bus-near Lurga hill, he saw that stones were kept on the road and suddenly eight persons came from the forest, one person on the; point of‘ pistol compelled him to drive the bus towards Nawadih road, when the driver drove the bus inside the forest after 50 meters from the main road, the said eight persons brought down the passengers one by one and snatched money & articles from them and they also snatched Rs.350/- from driver; Rs.3,000/- from Krishna Thakur (PW-1); Rs.2,000/- from A.N. Tiwari (PW-3) Rs.3,000/— from Mithilesh Singh; Rs.5,000/- from Anil Sharma; Rs.9,000/- from Ramji Yadav; Rs.500/- from Shashi Bhushan; Rs.500/- from Anil, S/o Dukhi Sharma; Rs.1,000/- from Nizamuddin; Rs.5,000/- from Hariram; Rs.2,000/— from Dudhnath; Rs.20,000/_— from Ravi Bhagat (one golden Manga/ Sutra, golden ear tops & tw gold rings); Rs.100/- from Sanjeev Gupta (PW—17); Rs.100/- from Murli Yadav (PW—18); Rs.1,000/— from Lalchand; Rs.2,000/— from Suresh Sharma; Rs.1,000/— from Surendra Sao; Rs.3,000/- from Dinesh Bhagat; Rs.2,000/- from Mukhtar Khan; Rs.3,000/- from Sudama Gupta & Rs.2,000/- from Shahid Khan; total Rs.56,600/— They committed robbery and dacoity for one hour, and they were armed with gun, Gandasa, sword & stick. After the commission of ,soffence, they fled away inside the forest. The driver took the passengers in the bus to Police Station Ramanujganj and lodged Fil.R. vide EXP-30. Spot map was prepared vide Ex.P-31. On 13-3- \ 2003 the accused persons were taken into custody. \ t i . 0 s ; o r . ccused Prahlad made discloser statement of Rs.6,240/—, one locket, ‘ country made pistol & one cartridge vide Ex.P—5 and the same were recovered at his instance vide Ex.P-12. 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—13. Accused Shankar Thakur'made discloser statement vide Ex.P—7 reiating to Rs.8,500/— & country made pistol along with cartridge and the same were recovered at his instance vide Ex.P—15. 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 recovered at his instance viderEX.P-14. Accused Raju Singh @ Rajeihyvar made discloser statement of Videocon T.V. & iron Bhala (spear) vide E>.<.P-9 and the same were recovered at his instance vide Ex.P-17. Accused Banshidh‘ar made discloser statement, of Rs.1,40‘O/— & axe and the same were recovered at his instance vide Ex.P-18. Accused Kedar Yadav also made discloser statement of Rs.24,550/—, ear tops, one pair of Payal & country made pistol vide Ex.P-11 and the same were recovered at his instance vide Ex.P-16 Receipt of ornaments were recovered from J.VM. Bhagat vide Ex.P-8. 7. Weapons were sent for examination, same were found in working condition and cartridges were found alive vide Exs.P—1 to P-4. Sanction for prosecution of the accused persons was accorded by the District Magistrate vide Ex.P-26 at the request of Superintendent of Police, Balrampur vide Ex.P-25. Identification parade was conducted and accused Kedar Yadav, Prahlad Yadav, Santosh Thakur, Shanka Thakur & Sudeshwar were identified by Arun Kumar Patel vide Ex.P— 29. Ornaments were identified by Urmila DeVi vide Ex.P—32. Accused Banshidhar Yadav was identified by witness Urmila Devi vide Ex.P-33. 8.‘ Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed ‘Jbefore the Court of Judicial Magistrate First Class, Ramanujganj who A in turn committed the case to the Court of SeSsions, Ambikapur, from where learned Additional Sessions Judge (F.T.C.), Ramanujgan rec he case on raer for tri. I . r j eived t tnsf al . n order to prove the guilt of the appellants, the prosecution has examined as many as 19 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 pleaded innocence & false implication. 1olAfter affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellants in the aforesaid manner. 11.Learned counsel for the appellants vehemently argued that the accused persons were not known to the passengers, driver & conductor of the bus. Identification parade of accused Banshidhar Yadav was conducted after unexplained delay. Statements of th witnefsses do not inspire confidence and they are not trustworthy, not safe to rely. Details of the accused persons have not been mentioned in the F.I.R. Witnesses examined by the prosecution have'specifically"deposed that they do not know the accused person and in absence of such. identification, suspicion howsoever grave it may be cannot take the place of evidence. In absence of such credible and clinching evidence, conviction & sentences awarded to the appellants are not sustainable under the law. Learned counsel placed reliance in the matter of Mohanlal Gangaram Gehani v. State of Maharashtral 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 has no value and cannot 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 identification, conviction is not safe. Learned counsel also placed reliance in the matter of Musku Pentu and Another v. State of A.P.3 in which the Andhra Pradesh High Court has held that accused persons not identified in the test identification parade, not safe for conviction 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.4 in which the Apex ,Court has held that person known to the accuSed persons did not .disclose the identity of accused in F.I.R. raise reasonable doubt 1 1982 STPL(LE) 171029 sc l 2 1999 STPL(LE) 26121 sc l 3 2005 Cri.L.J. 1355 4 AIR 1988 sc 345 e s about their complicity in the crime and test identification parade conducted after unexplained delay of four months is not safe to rely. .On the other hand, learned counsel appearing on behalf of the State/ respondent supported the judgment and argued that identification of most of the accused was conducted on the same day i.e. 13-3-2003 nd the articles were identified by their owners. This is a case of bu acoity in which the persons effected have identified the accused a s d persons. .n order to appreciate the contentions of the parties, I have xamined the evidence of the witnesses and documents adduced on r I e behalf of the prosecution. n thtsscase, it is not substantially disputed that the dacoity has not been committed near Lurga hill and the passengers were not travelling in the'bus bearing N0.CG-15/ZA-0176 of Shivam Transport driven by Arun Kymar Patel (PW—11) of which the conductor was Krishna Thakur (PW-1). The appellants have substantially disputed commission of dacoity by them. They have also disputed the factum of recovery on the basis of their discloser statements, their identification and identification of the articles. They have contested he case on the ground that Mangal Sutra, ear tops, ring & othe rticles are the articles of common use, neither the witnesses have stated specific marks of identification at the time of investigation, nor they have identified the articles on the basis of such special and distinguishing marks. .Krishna Thakur (PW-1), conductor of the bus, has deposed in his evidence that while the bus was crossing near the place of incident the driver stopped the bus, stones were kept on the road, immediately 8-10-persons came from the forest side and compelle the driver on the point of pistol to take the bus inside the forest. O the place of incident the dacoits brought down the passengers one by one and snatched currency & ornaments from them, and they also snatched Rs.500-600/- from him. After committing the robbery they fled away inside the forest. They were talking in Bihar language and armed with country made pistol. He has further deposed that he has not identified any of the accused persons. .I t r ‘ a , d n i l l w 1'6’.A.N. Tiwari (PW-3), passenger who was going to Gadhwa by the said bus, has deposed the commission of dacoity of currency, ornaments. and articies. Lastiy they reached to the Police Station and lodged the report. He has identified accused Banshidhar Yadav who has committed robbery on‘the passengers. In his cross-examination, he has‘denied the’suggestion that he was not travelling in the said bus. He has deposed that he was sitting in seat No.38. He has identified the accused on the basis of his height, but such description does not find place in his previous statement Ex.D-1. 17.S.K. Sen (PW-10) has deposed that he has registered F.I.R. Ex.P-3 and has recorded the statement‘pf witnesses and also prepared the spot map. 18.Arun Kumar Patel (PW—11), driver who was driving the vehicle at the i \ \ \ \. @ u a time of incident, has deposed the details of dacoity. In para 5 of his evidence he has deposed that he is not in a position to identify the present accused persons. This witness has further deposed that he has identified the accused persons vide Ex.P-29, but in his cross- examination para 6 he has specifically admitted that he has identified the accused persons in Police Station before conduction of identification parade, and on the basis of such identification at Police Station he has identified the accused persons. Identification parade makes his statement of identification inadmissible. He has also not identified the accused persons in the Court. 19.Ravi Bhagat (PW—12), Chartered Accountant who was also th passenger, has also deposed the factum of dacoity. He has deposed that his amount of Rs.2,000/— and his mother’s golden Mangal Sutra, ’ear tops, golden ring & golden pulley were snatched by the dacoits, they were talking in Hindi & Bihari language. He has further deposed that he identified accused Prahlad as one of the dacoits. In his cross-examination he has admitted that he was not called in the identification parade and even he has not stated in his previous statement Ex.D-2 relating to identification 0f any accused. 20.‘Urmila Devi (PW-13) — mother of Ravi Bhagat (PW—12) & other passengers also deposed the factum of dacoity and robbery of Mangal Sutra, ear tops, ring, golden pulley etc.. Urmila Devi (PW-- l 13)‘ has deposed in her evidence that she had identified her articles \ l before the Tahsildar and she has also identified accused Banshidhar. l e owever, in her cross-examination she has admitted that faces of he accused persons were covered with clothes at the time of ffence, she had identified her articles on the basis of long use and further admitted that the Mangal Sutra is easily available in the market. She has admitted the presence of Police at the time of identification of the article's & accused. .C.S. Sharma (PW—16) has deposed that he has seized the purchase receipt of the articles vide Ex.P-28. Sanjeev Gupta (PW-17), bu agent who was also travelling in the bus, has deposed that the dacoits had committed dacoity and they also snatched Rs.200/— from him. Murli Yadav (PW—18) has also supported the incident of acoity. S.K. Tiwari (PW-19), Tahsildar, has deposed that he has conducted identification of golden articles vide Ex.P-32 & dentification of accused Banshidhar vide Ex.P-33, and Urmila Devi has ideptified the articles & accused Banshidhar. In his detailed cross-examination, i ’he has supported the evidence relating to .H.N.' Nag (PW-9), Tahsildar, has aiso conducted identification of te accused persons. He has deposed that driver Arun Patel had identified accused Kedar Yadav, Prahlad, Santosh, Shankar Thakur & SUdeshwar @ Chethla vide Ex.P-29. In his detailed cross- examination relating to identification he is firm in his statement regarding identification. Bajranglal Agrawal (PW—4) & Kanhai Ram (PW—5) are the witnesses _ of memorandum & seizure. Bajranglal Agrawal (PW-4) has deposed in his evidence that accused Prah’lad gave memorandum statement Ex.P—l before him to the Police. He has admitted his signatures on Ex.P—6, the discloser statement of accused Santosh Thakur; Ex.P—8,‘the discloser statement of accused Sudeshwar; Ex.P-9, the discloser statement of Raju Singh, but has stated that they have not disclosed anything. He has further stated that Banshidhar has made discloser statement vide Ex.P—10 and Kedar has made discloser statement of currency & rnaments vide Ex.P-11. He has further deposed that Rs.6,240/- Was recovered from Prahlad vide Ex.P—12, Rs.4,000/— & articles were reCovered’from Santosh vide Ex.P-13, Rs.8,500/— & articles were recoVered from Sudeshwar vide Ex.P-14, Rs.15,500/— & articles were hp dentification of articles and accused. M H t o h s d i . . o ._ ywj‘ 9 recovered from Shankar Thakur vide Ex.P-15, Rs.11,245/- & articles were recovered from Kedar Yadav vide Ex.P-16, articles were recovered from Raju Singh vide Ex.P-17, and Rs.1,400/- & articles were recovered from Banshidhar vide Ex.P-18. This witness has also deposed that Police arrested these accused persons vide Exs.P-19 t P-23. .Kanhai Ram (PW—S), another witness of memorandum & seizure, has admitted his signature over Exs.P-6 to P-10 and also supported the seizure of Exs.P—12 to P—19 from the aforesaid accused persons and their arrest vide Exs.P—20 to P—24. .J.P.N. Singh (PW-7), the Inspector who has recorded the discloser statements, has deposed that he has recorded the disclose statemEntstof Prahlad Yadav vide Ex.P-5, Santosh Thakur vide Ex.P- 6, Shankar Thakur vide'EX.P-7, Sudeshwar vide Ex.P-8, Raju Singh vide ExsP—9, Banshidhar Yadav vide Ex.P-10 & Kedar Yadav vide Ex.P—ll and seized Rs.6,240/-, one golden locket, one country made pistol & live cartridge from Prahlad vide Ex.P—12; Rs.4,000/-, on golden ring, one country made pistol, one live cartridge from Santosh Thakur vide Ex.P-13; Rs.15,500/—, one country made gun & explosive material vide Ex.P-14 from 'Sudeshwar; Rs.8,500/—, one country made pistol & one live cartridge from Shankar Thakur vide Ex.P.—15; Rs.11,245/-, golden tops, silver Paya/ & country made revolver from Kedar Yadav vide Ex.P-16-; one Videocon T.V. & one spear from Raju Singh vide Ex.P-17; and Rs.1,400/- & one axe (Tangi) from Banshidhar vide Ex.P-18. J.P.N. Singh (PW-7) has also v deposed that he has sent the fire arms for examination vide Exs.P-l to P-S. In his cross-examination he has admitted that he recorded the statements before Bajranglal & Kanhai Ram and also deposed that the witnesses are not supporting the factum of discloser statements and seizure due to fear. He has denied the suggestion that Banshidhar Yadav has not made any discloser statement and he recorded the statements in its own‘ way 27.:Total case of the prosecution is based on identification of the accused persons/appellants, recovery on the basis of their discloser l » statements and identification of the said articles. Bajranglal Agrawal (PW—4) has substantially stated that the articles were seized from different accused persons. But, he has not supported the discloser fhg; o r e . tatements of the accused persons. Kanhai Ram (PW-5) has deposed in para 21 of his cross—examination that he knows all the accused persons, they are'residents of Nawapara, Tetardih. He has deposed in his cross-examination that the accused persons have made statements and articles were recovered on the basis of their statements. .H.N. Nag (PW-9), Tahsiidar, has conducted identification parade vide Ex.P—29 and according to Ex.P-29, accused persons Kedar, Prahiad, Santosh, Shankar & Sude‘shwar were identified by driver Arun Kumar Patel & conductor Krishna Thakur. However, Krishna Thakur (PW-1) has specificaiiy deposed that he has not identified the accused persons. Arun Kumar Patei (PW—11) has also stated that he has not identified the accused persons. .Another accused Banshidhar Yadav was identified by Urmila Devi vide identification.memo Ex.P-33. Identification parade of accused Banshidhar Yadav”was conducted by S.K. Tiwari (PW-19). Urmila Devi' (PW-13) has deposed that she has identified her articles and also accused Banshidhar, but in para 4 of her cross-examination she ‘has deposed that Police were present at the time of identification of articles & accused. She has admitted in para 5 of her cross- examination that she had already identified her articles before the identification parade. .A.N. Tiwari (PW—3) had not identified ' any accused in any identification parade, even he has not stated in his statement (Ex.D— . 1) recorded under Section 161 of the Cr.P.C. the description of any of the accused, but in his evidence before the Court he has identified ‘ one accused Banshidhar. \ Admittedly, this is a serious case of bus dacoity in which passenger . s were robbed by eight persons in the forest while they were travelling in the bus, but the only factum of dacoity or commission of offence is not sufficient to fasten liability upon the accused persons, the prosecution is required to establish complicity of the accused by cogent & reliable evidence. Case of the prosecution is based on identification of the‘accused persons, identification of articles & recovery of articles on the basis of discloser of facts made by the accused persons. s 32.Krishna Thakur (PW-1) & Arun Kumar Patel (PW—11) have no identified any of the accused/appeHants. Urmiia Devi (PW-13) has identified accused/appeHant Banshidhar, but she has specifically admitted presence of Police at the time of such identification, otherwise also she has not stated that she was having ample opportunity to see the aCcused/appellant and on the basis of such ample opportunity she has been able to identify accused/appellant Banshidhar. The aforesaid evidence is not sufficient to establish identity of the appellants in the crime in question. .As regards the question of identification of articles and possession thereof with the appellants, except the golden articles remaining articles of dacoity are currency notes. Urmila Devi (PW-13) has deposed that she has identified her articles before the Tahsildar, though she has admitted the presence of Police at the time of identification. Factum of presence of Police Officer has not been admitted or deposed by the Officer who has conducted identification i.e. S.K. Tiwari (PW—19), Tahsildar. However, Urmila Devi (PW-13) has admitted in para 5 of her cross—examination that she has identified the articles in earlier identification i.e. before the identification of the articles at the Tahsildar’s Office which reveals that firstly the articles were shown to the witnesses. Ravi Bhagat (PW-12), son of Urmila Devi,‘has also stated that he has identified accused Prahlad in identification parade, but his name does not find place in any of the identification memos, even these facts do not find lace in his statement EX.D—1 recorded under Section .161 of th p e Cr.P.C. Discloser statements have been recorded by J.P.N. Singh (PW-7), Inspector of Police, but he has deposed that he has recorded the discloser statements on the basis of the statements given by the accused persons. .Learned Additional Sessions Judge has relied uponlthe evidence of run Kumar Patel (PW-11) relating to identification of the accused persons. Arun Kumar Patel (PW-11) has deposed that he has dentified the accused persons, but in his cross-examination he has specifically admitted that prior to identification, he'has identified the accused persons in Police Station and on the basis of such identification he has identified the accused persons. Evidence of this witness is ofino use for identification of the accused persons. t A i l 12 35.ther witnesses have also not deposed that they have ample opportunity to see the accused and on the basis of such opportunity and memory though they have not identified the accused in test identification, they have been able to identify the accused in dock identification. Such evidence of identification of the assaiiants is not sufficient to connect the appeiiants with the crime‘ in question. Sections 25 & 26 of the Indian Evidence Act, 1872 (for short