HIGH COURT OF CHHATI'ISGARH AT BILA5PUR CRIMINAL APPEAL NO.871/2004‘ \ £ H POST ON H sEPTEMBEwRzggzf/g sdl- ‘x/ai' RAWY‘BN APPELLANTS Idris and anofher‘ Vs RESPONDENT STaTe of ChhaTTisgarh JUDGMENT Page 1 of 7 HIGH COURT OF CHHA'I'FIsGARH AT BILASPUR CRIMINAL APPEAL NO.871/ZOO4 APPELLANTS 1. Idris, son of Shaukaf, aged 28 year's, residen‘r of Johwar‘, P.$. Rum, Dis‘rr‘icf ‘ Kanpur(UP) 2. Lalji, son of Karmnsem aged 20 years, CasTe-Panika, residen‘r of Karhi-kachhar‘, P.$. Kargi Rood, DisTr‘ic’r Bilaspur' (6.6.) RESPONDENT S‘ra're of Chha‘rfisgar‘h, Through The S.H.O., P.$. G.R.P. Bilospur' (C.G.) Vs Present Mr'. N.K.Molviya, Advocafe for appellanfs. Mr. G.K. BeniwaL Dy. Advocofe General for fhe Sfofe. ‘ JUDGMENT (Delivered on _]_L_.9.2007) Per Dhirendra Mishra, J; 1. The insfan’r appeal is direcfed againsf fhe judgmenf da’red 5"“ Oc’rober, 2004 pGSSed in S.T. No.210/04 by Iearned 5”“ Addifional Sessions Judge, BilospUr whereby fhe oppeHanfs herein have been convic‘red under ,Secfions 394, 397, 342 of The I.P.C. (St Secfions 146 & 151 of The Railwoy Acf and each of‘fhem has been senfenced To undergo rigorous imprisonmen’r as under:- Secfion 394 of IPC R1. for 5 years and To pay a fine of Rs.1,000/-, in defaulT of paymenT of fine To furTher undergo RI. for 6 monThs. R.I. for 7 years. SecTion 397 of IPC SecTion 342 of IPC R.I. for 3 monfhs. RI. for 1 monTh. SecTion 151 of Railway AcT 2. Case of The prosecuTion, in brief, is ThaT on 17.8.2003 aT abouT 11.00 in The nighT The STaTion Manager of Salka Road Railway STaTion namely M. Rambabu (PW—1) was informed ThaT four miscreanfs are commiTTing robbery in The railway sTaTion. On which he reached sTaTion where he SecTion 146 of Railway AcT R.I. for 1year. “ Page 2 of 7 heard The sound of fire, one miscrean’r caught him and Tied bo’rh his hands on his back side. They had caugh’r fhe Sfa’rion Masfer also. They were four in numbers and They fook bo’rh of Them To ’rhe quarfer of M. Rambabu, They en’rered his quarfer and looTed CD player and o’rher ornamen’rs valuing Rs.15,000/— from his wife a son and Thereaf’rer They iocked ail The family members inside The house. They Took K. SushiTaam (PW—4) To his quarTer inside The railway sTaTion and There also They commiTTed robbery. He was laTer on informed ThaT They had snapped The‘ Telephone wire of The railway sTaTion. They had also robbed Rs.1100/- from The TickeT counTer. They had also commiTTed robbery in The “house of railway employees namely Nazir Mohammed & Chandrakumar. . WriTTen£ reporT of‘EXP—l was lodged on 18.8.2003 on The basis of which DehaTi Nalishi of EXP—2 was regisTered in G.R.P. Police STaTion,‘Bilaspur. During invesTigaTion, on 31.8.2003 The appellonTs were Taken inTo cusTody on The basis of suspicion. On The memorandum (EXP-8) of appellanT Lalji looTed arTicles CD player & axe were seized vide EXP-10 & P-11 respecTively. Similarly, on The memorandum (EX.P~9) of appellanT Idris counTry made revolver and live carTridges were seized under Ex.P- 12, one walkman, camera, ornamenTs and case of Rs.6,250/— were Taken inTo possession vide Ex.P—13. TesT idenTificaTion parade was held in The CenTral Jail, Bilaspur on 24.9.2003 by >Shri P.C. Kori, Naib Tehsildar, Bilaspur, whereas, idenTificaTion of seized looTed arTicles was held in Tehsili Office on 19.9.2003 & 15.3.2004 vide Ex.P—5 & EXP-4. AparT from The appellanTs herein during invesTigaTion involvemenf of accused Raees, Nirmala Bai and absconding accused Rambaran Singh was also found and accordingly, afTer compleTion of invesTigaTion The charge sheeT was filed againsT The appellanTs and above Three accused persons %howing accused Rambaran Singh as absconding. . The Trial courT on The basis of sTaTemenT of M. Rambabu (PW-1), SmT. M. Varlaxmi (PW—2), K. SushiTaam (PW-4), M. Kishore Kumar (PW-5) 6i Nazir Mohammed (PW-6) has held ThaT The eyewiTnesses parTicularly ,‘L my, Page 8 of 7 @ Nazir‘ Mohammad (PW-6) has correcfly idem‘ified 'rhe appellants in The Tes’r identificafion parade. Convic‘rion of appellanf Lalji is also based on the recovery of loofed CD player on The basis of memorandum of appellanf Lalji, as The memorandum & recovery has been proved by Samosh Kumar (PW—3). IT has been furfher held Thaf fhe Ioo’red CD player, which was reCOVered on The basis of memorandum of appellanT Lalji, was duly idenTified by M. Kishore Kumar (PW—5). However, The Trial courT has disbelieved The recovery of looTed arTicles on The basis of memorandum (EXP-9) of appellanT Idris and accordingly, The conVicTed The appellanTs as menTioned in Para 1 of This judgment However, The Trial courT has acquiTTed oTher Two accused persons namely Nirmala alias Maharajin 6i Anil Mishra alias Raees Khan of all The charges.‘ . Learned counsel for The appellanTs argued ThaT The convic'Tion of appellanTs Idrish & Lalji is based on The sTaTemenT of eyewiTnesses who have correcTly idenTified Them in The TesT idenTificaTion parade os also on The basis of sTaTemenT of M. Kishore Kumar (PW-5) and Tehsildar Shri P.C. Kori, who conducTed The idenTificaTion of The looTed arTicles wherein M. Kishore Kumar (PW—5) idenTified The CD player. Referring To sTaTemenT of above wiTnesses iT has been argued ThaT M. Rambabu (PW— 1) in Para 28 of his sTaTemenT has sTaTed ThaT afTer The incidenT he had _ gone To GRP. Police STaTion and had seen The accused persons There. K. SushiTaam (PW-4) has also sTaTed in Para 17 & 18 of his deposiTion ThoT he saw Lalji & Idris in GRP Police STaTion and 25 days afTer ThaT he parTicipaTed in The TesT idenTificaTion parade along wiTh oTher wiTnesses. M. Kishore Kumar (PW-5) has also admiTTed ThaT he knew The appellanTs from The daTe when he was shown To Them by The InspecTor in The police sTaTion. . Referring To Para 12 of The STaTemenT of Nazir Mohammed (PW-6) iT has been argued ThaT before deposing in The case he discussed The case wiTh M. Rombabu who had apprised him abouT The quesTions puT To him in The courT and because of ThaT informaTion he did noT go To GRP Police STaTion. Learned counsel for The appellanTs has placed his vr o Page 4 of 7 @ reliance on The judgments in the ma‘f‘rer‘s of Ahmed Bin Salam Vs. Sfafe of Andhra Pradeshl' ChiTfu ali‘as Hemanf & others Vs Sfa‘l'e of M P (Now C G )2 & State of Madhya Pradesh Vs Chamru @ Bhagwandas etc etc . It Is also argued that the trla| court has heavuly rehed upon the Identification of looted CD player by the witness M. Kishore Kumar (PW-5). However, two CD players mixed with the looted CD player were of different company and therefore, even the identification of CD player is vitiated and as such, the prosecution has utterly failed to prove the involvement of the appellants herein in crime in question and the impugned judgment deserves to be set aside. ‘ a v . On the other. hand, learned Dy. Advocate General for the State supports the impugned judgment. $ . I hav‘e heard learned counsel for the parties and perused the record as also the impugned judgment. . M. Rambabu (PW-1) in'his deposition before the court has reiterated the allegations present in the FIR. He has categorically stated that out of four persons two had covered their faces with mask. He saw them from a distance of 10 paces. Three out of them went inside his house and after 10 minutes they called them inside the room and thereafter locked them and fled from there. His son informed that apart from jewelry, the dacoits have also looted the CD player of Navrang company. In Para ‘ 18 he has stated that he can recognize the persons who had not put on the mask. He had participated in the test identification parade and test identification parade memo of EXP—3 bears his signature. He has further stated that the looted articles were put for identification in Tehsili Office, Bilaspur and he had correctly identified the Navrang CD player apart from other articles vide identification memo of EXP-4. . KySushitaam (PW-4) has also stated that on the date of incident he was present in the office, at that time he saw four persons entering the i ‘AIR 1999 SUPREME COURT 1617 22005 (2)CGLJ 67 3 AIR 2007 SUPREME COURT 2400 age 5 of 7 office and Two of fhem were holding counTr'y made revolver. He raised damn, however, one of fhem snapped Telephone wire. They enquired obouf The omounf of paymen’r and cash of sfafion. They caughf hold of hint and fied his bofh hands from The back side. He has idem‘ified The appelIanTs as The persons who were presenT aT The fime of inciden’r. Thereaffer They asked him To fake Them To his quarTer. On The way, They meT Rambabu, They caughT him also and ThereafTer They wenT To The house of Rambabu and commiTTed robbery. ThereafTer They Took himfTo his quarTer, enTered inTo his quarTer afTer Taking key from his p fi pockeT. He has furTher sTaTe’d ThaT aT The Time of incidenT The Tube "\ lighTs‘iH The sTaTion were on and he saw The faces of accused persons in The lighT and he correcTly idenTified The appellanTs in The Te‘sT idenTificaTion parade conducTed by The Tehsildar in Bilaspur jail. He also idenTified his walkman in The documenTs of‘Ex.P—3 TesT identificaTion memo & idenTificaTion memo (EXP-5) bears his signaTure. 10.M. lKishore Kumar (PW-5), son of M. Rambabu (PW-1), has also corroboraTed The sTaTemenT of STaTion MasTer and his faTher M. Rambabu and sTaTed ThaT dacoiTs Took Them near his house and ThereafTer Took him inside his room, They were holding counTry made revolver, he was forced To open almirah, ThereafTer accused Lalji Took CD player and afTer compIeTing The robbery The dacoiTs locked The whole family inside The room from ouTside and fled from There. 11. Nazir Mohammed (PW-6) has idenTified Two ouT of The four accused persons in The courT. He has sTaTed ThaT on The daTe of incidenT aT abouT 11.35 p.m. The bell of his quarTer rang, whereupon he opened The door and saw Three persons, oneof Them was holding counTry made revolver, whereas, oThers were holding dagger. 4*“ person was sTanding ouTside The house w1Th a KaTTa They looTed his house on The gun pomT They Took away ornamenTs from Almirah He saw ThaT 4*“ person was holding CD player In his one hand and KaTTa In anoTher hand. AfTer commITTIng robbery They locked him inside The room from ouTside. OuT of four, Two persons had covered Their faces wiTh mask, however, he was able To g ”i P Page 6 of 7 a) recognize fwo o’rher's who had noT covered Their faces wifh mask. In Pam 5 he has sfafed ’rhaT he recognized The accused/ appellanfs in The jail and Tes’r iden’rificafion memo (EXP—3) bears his signafure. He has cafegorically sfa’red Thai affer The incidenT he was noT caHed by The polijce in The GRP Police STaTion. As already menTioned above ThaT The Trial courT has relied up'on The sTaTemenT of This wiTness for The purpose ‘of iidenTificaTion of The appellanTs and has based The convicTion on The sTaTemenT of This wiTness. 12. In The maTTer of Ahmed Bin Salaml reporTed Three accused persons came on a scooTer and hurled five bombs resulTing in injuries To The eye wiTnessés and deaTh of Two persons. Injured eye—wiTnesses on being asked by The police replied in affirmaTive, ThereafTer The accused personslwere sho‘l/im To him for idenTificaTion and They idenTified, however, The Hon'ble Apex CourT held ThaT iT cannoT be held To be a TesT idenTificaTion parade. In The maTTer of ChiTTu alias HemanTZ This CourT considering The facT ThaT alleged’eyewiTness idenTified The accused persons in The TesT idenTificaTion parade conducTed belaTedly and also considering ThaT They did noT disclose wheTher The assailanTs were carrying weapon or noT in their hands and one of Them claimed ThaT They were beaTing The deceased wiTh fisT and kicks, Their TesTimonies were held wholly unreliable and iT was observed ThaT convicTion of The accused cannoT be based on such idenTificaTion. In The maTTer of STaTe of M.P. Vs. Chamru3 considering The facT ThaT The case of The prosecuTion was based on The sTaTemenT of Two child wiTnesses, who have been ciTed as eyewiTnesses and who have idenTified The accused of murder in The TesT idenTificaTion parade, The Hon’ble Apex CourT did noT consider The TesT idenTificaTion parade credible on The ground ThaT The phoTographs of The accused was shown To The child wiTnesses before The parade. 13. The Trial courT relying upon The sTaTemenT of Nazir Mohammed (PW-6), who correcTly idenTified The accused persons in The TesT idenTificaTion parade conducTed in The jail and also idenTified The accused persons during Trial, has held him To be a reliable wiTness, as There is no E« Qashcm/- allegcrrion againsf fhis wifness Thaf he is an inferesfed wifness or he has any old animosi’ry wiTh fhe accused persons. 14. It is se’rTled law Tha‘r ’rhe iden’rification parade did no‘r consTiTuTe substam‘ive evidence. They ar'e primariiy mean’r for The purpose of helping The invesfigafing agency wi‘rh an assurance fhaf Their progress wiTh The invesTigaTiori‘inTo The offence is proceeding on The righT iines and The idenTificaTion of The accused during Trial is only subsTanTive evidence. In The insTanT case, Nazir Mohammed (PW—6) has correcTly idenTified The accused persons, during Trial, There is no evidence aVaiIabIe on record ThaT he had an opporTuniTy To see The accused perso‘hs in The police sTaTion and Therefore, The finding of The Trial courT ThaT The appellanTs were idenTified by The eye wiTness cannof be quesTiéned. AparT from The idenTificaTion of The appeilanTs by The eyewiTness, The Trial courT has also relied upon The recovery of CD player on The memorandum of accused Lalji and sTaTemenT of SanTosh (PW-3), wiTness of memorandum of accused Lalji and recovery of CD player & axe on his memorandum, and held ThaT The appellanT Lalji led To recovery of above arTicles, which was correcTly idenTified by The wiTnesses in The TesT idenTificaTion. . Thus, afTer going Through The evidence available on record, This CourT is of The considered opinion ThaT The appellanTs have been convicTed by The Trial courT on The basis of TrusTworThy and reliable evidence available againsT Them on The record and There is no illegaIiTy or irregulariTy in The impugned judgmenT, as The same is based on proper appreciaTion of evidence available on record. 16. In The resulT, The appeal being devoid of meriT is liable To dismissed and The same is hereby dismissed. ,f Sd/- i’ DHIRENDRA MISHRAjl Judge