'3]l,,.ll:, A ": ,A,/i.' '^^ C:,^^y HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench: Hon'ble Shri Justice Radhe Shyam Sharma Crjminal Appeal No.1618 of 1994 RNISI'<g!jig||, "7 ';I^' ^^'"'^sys^ Matlu and others versus State of Madhya Pradesh (now State of Chhattisgarh) ;:;*i:IS:''''^Si'M- .;:;^:i@^ JUDGMENT Postfor 01-12-2011 Sd/- R.S. SiiarEia Judge ..•^ ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Radhe Shyam Sharma, J. Criminal Appeal No.1618 of 1994 Appellants Respondent 1.- 2. 3. versus Matlu son of Hakandu, aged about 29 years, resident of Ghoutatoli, Police Station Jashpurnagar, Distt. Raigarh Raimun, son of Lukas, aged about 22 years, resident of Ghoutatoli, P.S. Jashpurnagar, Distt. Raigarh William, son of Smile, aged about 21 years, resident of Tigra, Police Station Dumri (Bihar) State of Madhya Pradesh (Now State of Chhattisgarh) through Station House Officer, Police Statjon Jashpurnagar, Distt. Raigarh Criminal Appeal under Section 374(2) Cr.P.C. Present: Smt. Indira Tripathi, counsel for the appellants. Shri Ajay Dwivedi, Deputy Government Advocate for the State/respondent. JUDGMENT (Delivered on °1 December, 2011) This appeal is directed against judgment dated 28 November, 1994 passed by the Additional Sessions Judge, Jashpurnagar, District Raigarh in Sessions Trial No.211/92. By the impygned judgment, accused persons Matlu, Binay, P-radeep, Raimun and William have been convicted under Sections 395/397 ofthe Indian Penal pode and sentenced to undergo R.l. for 7 years each and to / pay fine of Rs.3,0'00/- each, in default, to furi:her undergo R.l. for four months each, but only three accused persons Matlu, Raimun and William have preferred the instant appeal challenging the judgment of conviction and sentence. 2. Case ofthe prosecution, in brief, is as under: aai-aiis w wwg-s Complainant Hilariyus Minj (PW-2) is Head Father of Bada-Karaunja Mission. On 25-6-1992 at about 8-9 P.M., Hilariyus Minj (PW-2) had gone to Village Bada-Karaunja leaving behind him another Father Tyophil Lakda (PW-3), servant Yakub (PW-7) and his wife Rozliya Minj (PW-1) in the Mission. At about 8-9 P.M., the appellants came there and knocked the door ofthe Mission. Yakub (PW-7) opened the door. The appellants, who were armed with deadly weapons, entered the Mission and committed dacoity. During commission of dacoity, Hilariyus Minj (PW-2) came back to the Mission. He found that the dacoits were committing dacoity. He shouted for help. Villagers gathered there. The appellants assaulted Tyophil Lakda (PW-3) and Yakub (PW-7) during commission of dacoity. Hilariyus Minj (PW-2) lodged First Information Report (Ex-P/2) in Police Station Jashpurnagar. The police reached the place of occurrence and injured Tyophil Lakda (PW-3) and Yakub (PW-7) were sent for medical examination. Dr. Sanjay Goyal (PW-9) examined both the injured persons and gave his report vide Ex-P/21 and P/22. He found that Tyophil- Lakda (PW-3) sustained (i) linear abrasion at the level of 9 and 10 rib, left side 1 inch to anterior axillary line of size 2cmsx1/4cm, (ii) abrasion on left shoulder of size 2cmsx14cm and (iii) Abrasion of size 2cmsx14cm at left side at the back region at the level of 9 and 10th rib in mid-clavicular line. Yakub (PW-7) sustained (i) abrasion at the back region at the level of T8 vertebra 1 inch laterial to mid-line at left side of size 3Cmsx1cmx1/<cm, (ii) linear abrasion of size 2cmsx1/4cm below injury No.(i). The Investigating Officer prepared spot-map vide Ex-P/20 and Patwari also prepared spot-map. h/lemorandum stat^fnent (Ex-P/4) of accused Pradeep was recorded under Section 27 of the Evidence Act on^O.6.92 and at his instance, two knives, spectacles, currency notes of Rs.150/- and coins were seized vide Ex-P/11. Memorandum statement (Ex-P/5) of appellant Matlu was recorded and at his instance, one suitcase, sweaters, shawl, towel, t-shirt, shirt and bag were seized J!i, ''^ iai^iiil"il ;IES!S^^'1 'l^-li:5Si^;i vide Ex.P/12. Memorandum statement (Ex-P/6) of appellant Raimun was recorded and at his instance, one jeep-torch, shirt and currency notes of Rs.220/- were seized vide Ex.P/13 and shirts, sandals and comic-books were seized vide Ex.P/14. Memorandum statement (Ex-P/7) of accused Binay was recorded and at his instance, hand bag, currency ndtes of Rs.266/- and panama cigarettes were seized vide Ex-P/15 and record player, currency notes of Rs.995/-, transistor, wall clock, wrist watch, handbag were also seized vide Ex-P/16. One HMT wrist watch, one yellow air-bag and currency notes of Rs.200/- were seized from appellant William vide Ex-P/17 and transistor, handbag, coins and currency notes of Rs.20/- were also seized from him vide Ex.P/18. Panama Cigarettes and massage machine were seized from the place of occurrence vide Ex-P/8 and one receipt book and booklet were seized from Tyophil Lakda (PW-3) vide Ex-P/9. Identification of the appellants was conducted by J.L.Thakur, Tahsildar/Executive Magistrate (PW-8) vide Ex-P/1 and the appellants were identified by the witnesses. Identification of seized articles was also conducted by J.L.Thakur (PW-8) vide Ex-P/3. Witnesses Tyophil Lakda (PW-3) and Hilariyus Minj (PW-2) identified the articles. After completion of the investigation, charge sheet was filed against the accused persons including the appellants in the Court of Judicial Magistrate, First Class, Jashpurnagar, who, in turn, committed the case to the Court of Session, from where, it was received on transfe.r by the Additional Sessions Judge, Jashpurnagar, District Raigarh, who conducted the trial, convicted and sentenced the accused persons including the appellants as mentioned above. / 3. Charges under. Sections 395/3974PC were framed against the appellants. The appellants abjured the guilt. fn support of its case, the prosecution has examined as many as 10 witnesses. n• ''SS-A 4. Smt. Indira Tripathi, learned counsel for the appellants argued that the evidence of prosecution witnesses Rozliya Minj (PW-1), Hilariyus Minj (PW-2), Tyophil Lakda (PW-3) and Yakub (PW-7) are not reliable. Test Identification Parade was not conducted by J.L.Thakur (PW-8) in a proper manner. The appellants as well as the seized articles were shown to the witnesses before the Test Identification Parade. From their evidence, conduct of the prosecution witnesses does not appear to be natural, therefore, their evidence is not reliable and conviction cannot be based on their testimonies. Hence, the appellants deserve to be acquitted of the charges framed against them. She placed reliance on State of Madhya Pradesh vs. Chamru alias Bhagwandas etc. etc., AIR 2007 SC 2400. 5. On the other hand, Shri Ajay Dwivedi, learned Deputy Government Advocate for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellants do not warrant any interference by this Court. 6. I have heard learned counsel for the parties at length and perused the impugned judgment as also the record of the sessions case. Conviction of the appellants under Sections 395/397 IPC is based upon the testimonies of the witnesses Rozliya Minj (PW-1), Hilariyus Minj (PW-2), Tyophil Lakda (PW-3) and Yakub (PW-7), identification of the appellants (Ex-P/1) and identification of the seized articles (Ex-P/3), which were conducted by J.L.Thakur (PW-8). 7. Rozliya Minj (PW-1), Hilariyus Minj (PW-2), Tyophil Lakda (PW-3) and Yakub (PW-7) dep,o'sed that on 25-6-1992, Hilariyus Minj (PW-2) was working as father pf-Karaunja Mission. They further deposed that on 25-6-1992, Rozliya Minj (PW-1,), Tyophil Lakda (PW-3) and Yakub (PW-7) were present in the Mission. Rozliya Minj (PW-1), Tyophil Lakda (PW-3) and Yakub (PW-7) deposed that on 25-6-1992, at about 8 P.M., dacoits entered the premises ofthe Mission and tried P:r-K VSSSS to get its door opened. They did not open the door. Then the dacoits threatened to blast the premises with bomb. Thereafter, Tyophil Lakda (PW-3) and Yakub (PW-7), due to fear, opened the door. Three members of the dacoits entered the Mission, they caught hands of Tyophil Lakda (PW-3) and Yakub (PW-7) and they enquired about head father of the- Mission Hilariyus Minj (PW-2). They told the dacoits that Hilariyus Minj (PW-2). had gone to the village. They further deposed that the dacoits asked them about the place where the money was kept and the dacoits took out the money, clothes, radio, wall clock, massage machine from the almirah and they looted the wrist watches of Tyophil Lakda (PW-3) and Yakub (PW-7). 8. Hilariyus Minj (PW-2) deposed that on 25-6-1992, he had gone to the village and at about 9:30 P.M., he came to the Mission. When he entered the Mission, he saw that the books and pther articles of the Mission were spread here and there. After sometime, some unknown person threw light of a torch on him, showed him a pistol and threatened him. Due to fear, he screamed. The dacoits fled. Having heard the voice of screaming-and crying, villagers came there. He further deposed that he lodged First Information Report in Police Station Jashpurnagar vide Ex. P-2. 9. Rozliya Minj (PW-1) deposed that after two weeks of the incident, she had gone to Jashpur Jail for identification of dacoits. In identification parade, she identified Matlu (appellant No.1), Raimun (appellant No.2) and other accused Binay. /The accused Binay is not impleaded as appellant in the instant appeal. Hilariyus Minj (PW-2) deposed that the Tahsildar conducted the identification of articles and he idfentified the articles vide Ex.P-3. Tyophil Lakda (PW-3) deposed that he identified the dacoits in jail and he identified the dacoits except appellant No.3 William. Yakub (PW-7) also deposed that he identified the looted articles. d l-ili»;, . i;'aaia> 1 -WV& !SS»»ar MO. Now, it is to be seen whether the statements of Rozliya Minj (PW-1), Hilariyus Minj (PW-2), Tyophil Lakda (PW-3) and Yakub (PW-7), so far as they relate to identification of the appellants and the seized articles, are reliable. 11. In Ravindra alias Ravi Bansi Gohar vs. State of Maharashtra and others, (1998) 6 SCC 609, the Hon'ble Supreme Court observed that the identification parades belong to the investigation stage and they serve to provide the investigating authority with materials to assure themselves if the investigation is proceeding on the right lines. In other words, it is through these identification parades that the investigating agency is required to ascertain whether the persons whom they suspect to have committed the offence were the real culprits and not by showing the suspects or their photographs. Such being the purpose of identification parades, the investigating agency, by showing the photographs ofthe suspects whom they intended to place in the Tl parade, made it farcical. If really the investigating agency was satisfied that the witnesses did know the appellants from before and they were in fact amongst the miscreants, the question of holding the Tl parade in respect of them for their idehtification could not have arisen. A vital factor for determining the value of an identification parade is the effectiveness of the precautions taken by those responsible for holding them against the identifying witnesses having an opportunity of seeing the persons to be identified by them before they are paraded with other persons and also against the identifying witnesses being provided by the investigating authority with other unfair aids or assistance so as to facilitate the identification of the accused concerned. In the present case, not only the photographs of the appellants and other accused were shown b&fopfe the Tl parades, but they were held in the lock-up of the investigating age'ncy thereby givtag sufficient opportunity to the identifying witnesses of seeing the persons fo be identified. Having regard to the fact that the two identifying witnesses were police constables attached to the police station concerned, if was all the more necessary for the investigating agency to ensure that the Tl parade was held in a manner and at a place (preferably in jail) so as to avoid any criticism about its legitimacy. To sustain the conviction, the High Couri: was required to record a positive finding on the basis of reliable and acceptable evidence that the two witnesses knew the appellants from before and not on the basis of a high degree of probability. Rather, it appears tbat the defence of the appellants that while they were in the lock-up earlier, their photographs were taken and thereafter shown to the witnesses to implicate them in the case is probabilised by the admission made by the Investigating Officers as also the witness, that they were shown their photographs. 12. In State of Madhya Pradesh vs. Chamru alias Bhagwandas etc. etc. (supra), the Hon'ble Supreme Court observed thus: "10. ...... the photographs of accused Chamru were shown to two of the ehild witnesses before the Test Identification Parade. That took away the effect of the Test Identification Parade. Learned counsel for the appellant has referred to the evidence of PW-3 to contend that she was not shown the photographs. Even a bare perusal of her evidence in court shows that she was not a credible witness and was tutored. i" !:SsE%ssr She has categorically stated that she knew the accused by name. As noted above, her evidence also shows that she was tutored. For example, the voltage of the bulb which was supposed to be lighted at a distance of about 200 yards was stated to have been seen by her. Most other statements in court were exaggerations and embellishments. Secondly, most of the vital facts were not stated during investigation." 13. The inveSti^ating agency must take precautions to avoid all opportunities of fte accused being seen by the idenlffying witnesses prior to the test identification parade. The evTdence of identification ofthe accused cannot be accepted unless the Court is satisfied that the identification witnesses were not given opportunities ;;i::^i]lt ';esii^*s.^ ["SKSS9S3 to see and recognise the accused after their arrest and before they were put up for identification in a Test Identification Parade. The Court, after coming to a conclusion that the evidence of identification of the accused has been somewhat weakened,should not act upon it for the purpose of convicting the accused. 14. Rozliya Minj (PW-1) deposed in her cross-examination that it is true that she knew accused persons William and Pradeep prior to the incident. When she had gone to the police station, she had seen accused Raimun sitting in the police station. She further deposed that on the next day of the incident, four dacoits were brought to the Mission and police personnel had told her that she is to identify them because their identification parade will be conducted later. It is true that she, Tyophil Lakda (PW-3) and Yakub (PW-7) had seen the dacoits carefully and before the identification parade, they saw the appellants. The appellants were already sitting under a tree. At that time, police personnel were also present there. 15. Tyophil Lakda (PW-3) deposed that he was called to the police station to identify the dacoits. It is true that the police personnel had taken the accused persons to the Mission and stayed there. 16. J.L.Thakur (PW-8) deposed that on 19-7-1992, identification parade was conducted by him and Rozliya Minj (PW-1), Tyophil Lakda (PW-3) and Yakub (PW-7) identified the appellants. Rozliya Minj (PW-1) and Tyophil Lakda (PW-3) identified accused persons Matlu, Pradeep and Raimun. Rozliya Minj (PW-1) and Tyophil Lakda (PW-3) also identified accused Binay and one Jagat vide identification memo (Ex. P-1). He further deposed that on 18-7-1992, he conducted identtfication of the seized articles. In the identification of seized articles, Yakub (PW-7), Tyophil Is&kda (PW-3) and Hilariyus Minj (PW-2) had identified the articles. 17. Now, l shall examine whether the identification was proper and is reliable? ij^^i;.; ,^fe»fl>' i:;SSg;s,gg' 18. Rozliya Minj (PW-1) deposed that when she had gone to the police station, she had seen accused Raimun sitting in the police station. She further deposed that four dacoits were brought to the Mission and police personnel had told her that she was to identify them. Tyophil Lakda (PW-3) and Yakub (PW-7) had seen the dacoits before the identification parade. 19. In State of Nladhya Pradesh vs. Chamru alias Bhagwandas etc. etc. (supra), the Hon'ble Supreme Court observed that when the photographs of the accused were shown to the witnesses before the test identification parade, that took away the effect of the test identification parade. 20. In the instant case, the appellants were shown to the prosecution witnesses in the police station as also in the Mission before the Test Identification Parade. As far as the Test Identification Parade is concerned, that has absolutely no value in this case, because the appellants w.ere shown to the prosecution witnesses and Rozliya Minj (PW-1), Tyophil Lakda (PW-3) and Yakub (PW-7) specifically deposed that the police itself shown them the appellants beside the police station and in the Mission and at that time police personnel were present there. Therefore, 1 am of the considered opinion that no reliance can be placed on the testimonies of these witnesses and the conviction based upon their testimonies cannot be sustained. Hence, the trial Court erred in law in placing reliance and convicting the appellants on the basis of identification evidence. 21. Seized articles were also shown to the prosecution witnesses in the Mission prjor to their identi^teation and the said articles were identified by them. / '22. Sp far as the identification ot'seized articles is concerned, the prosecution did. not prove that the said articles were seized from the appellants. Babulal Bhagat (PW-4) did hot support the prosecution case. Gosai Singh (PW-6) deposed that the pqlice recorded memorandum of appellants Matlu and Raimun, 1 10 "; twm KWMs- Blni/Qopal but in cross-examination, he deposed that police personnel had stayed at the village for two days and had recorded memorandum and made seizures. Gosai Singh (PW-6) is a professional witness of the police. Gosai Singh (PW-6) admitted that it is true that he was a witness against appellant Matlu in another criminal case. It is also true that police personnel used to engage him as a witness in many cases. He further.deposed that police personnel were committing MarpeetwWn the appellants. Therefore, the evidence of Gosai Singh (PW-6) is not reliable. On the basis of his evidence, it is not proved that at the instance of appellant No.1 Matlu and appellant No.2 Raimun, seizure was made from them or any articles were seized from them. 23. For the foregoing reasons, the impugned judgment of the trial Court cannot be sustained and the same deserves to be set aside. Accordingly, the appeal is allowed. The conviction and sentence awarded to the appellants are set aside. They are acquitted of the charges framed against them. It is stated that the appellants are on bail. Their bail bonds are cancelled and sureties stand discharged. Sd/- R.S. SStarma Judge