IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT 1. Gurmeet Singh Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.833/2005) 2. Baldeo Krishna Kalra Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.1022/2005) 3. Bageecha Singh Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.894/2006) D. B. Criminal Appeals under Sec.374 (2) Cr.P.C. against the judgment dated 8-8-2005 in Sessions Case No.55/2005 passed by Shri B.L. Lamror, RHJS, Additional Sessions Judge (Fast Track) No.1, Jaipur City, Jaipur. Date of Judgment: July 30, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Biri Singh Sinsinwar] for the appellants. Mr. Kamlendra Sihag ] Mr. Jinendra Jain, Public Prosecutor for the State. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) Term of life is fixed for every people; and when appointed time comes, there will neither be a moment's delay nor haste. On September 18, 2001 prior to 7.30 PM Chandra Mal did not know as to what the destiny restored for him. Around 7.30 PM while Chandra Mal was sitting at his jewellery shop, two miscreants entered the shop, opened fire at Chandra Mal, picked up ten gold chains and fled away in Maruti car. The miscreants were subsequently identified as Gurmeet Singh, Baldeo Krishna Kalra and Bageecha Singh (appellants herein). They were nabbed and put to trial before learned Additional Sessions Judge (Fast Track), No.1, Jaipur City, Jaipur, who vide judgment dated August 8, 2005 convicted and sentenced them as under:- Gurmeet Singh: U/s.302 IPC: To suffer imprisonment for life and fine of Rs.1000/-, in default to further suffer rigorous imprisonment for six month. U/s.307 IPC: To suffer rigorous imprisonment for ten years and fine of Rs.1000/-, in default to further suffer rigorous imprisonment for six months. U/s.394 IPC: To suffer rigorous imprisonment for ten years and fine of Rs.1000/-, in default to further suffer rigorous imprisonment for six months. U/s.397 IPC: To suffer rigorous imprisonment for seven years. U/s.5/25 Arms Act: To suffer rigorous imprisonment for five years and fine of Rs.500/-, in default to further suffer rigorous imprisonment for three months. Baldeo Krishna & Bageecha Singh: U/s.302/34 IPC: Both to suffer imprisonment for life and fine of Rs.1000/-, in default to further suffer rigorous imprisonment for six month. U/s.307/34 IPC: Both to suffer rigorous imprisonment for ten years and fine of Rs.1000/-, in default to further suffer rigorous imprisonment for six months. U/s.394 IPC: Both to suffer rigorous imprisonment for ten years and fine of Rs.1000/-, in default to further suffer rigorous imprisonment for six months. U/s.397 IPC: Both to suffer rigorous imprisonment for seven years. The substantive sentences were ordered to run concurrently. 2. It is the prosecution case that on September 18, 2001 at 10.50 PM Badri Narayan (Pw.10) ASI of Police Station Shipra Path Jaipur recorded parcha bayan (Ex.P-10) of injured Harish Kumar (Pw.4) wherein he stated that around 8 PM while he along with his brother Chandra Mal and servant Raju were sitting at their shop “Varsha Jewellers”, a white Maruti Car 800 came from the side of Man Sarovar and two persons entered the shop, out of which one person was having a attache case. One of them asked to show golden chain and instructed other person to take out money from the attache case. The other person opened attache and took out a rifle and opened fire at Chandra Mal that hit on the head, left thigh and abdomen of Chandra Mal. Harish and Raju also received injuries. The miscreants picked up ten gold chains and fled away in Maruti car. On that Parcha Bayan case under sections 394 and 397 IPC was registered and investigation commenced. It was revealed during investigation that miscreants involved in the incident were nabbed by the police of other State in a murder case and they were injudicial custody. The IO got the production warrants and arrested them. They were kept Baparda (with covered face). Identification Parade was held. On the basis of their disclosure statements golden chains got recovered, necessary memos were drawn, statements of witnesses were recorded and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No.1 Jaipur City Jaipur. Charges under sections 302, 302/34, 307, 307/34, 394 and 397 IPC 5/25 and 3/25 Arms Act were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 33 witnesses. In the explanation under Sec.313 CrPC, the appellants claimed innocence. Two witnesses were examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above. 3. We have heard the submissions advanced before us by learned counsel for the appellants and learned Public Prosecutor and with their assistance scanned the material on record. 4. As per post mortem report (Ex.P-76) following ante mortem injuries were found on the dead body:- 1. Stitched lacerated wound 4cm long present of (L) parito thyroid region with continued margins and ill defined swelling on dissection extra vassection of blood found covering the scalp tissue. 2. Inter costal drainage tube's inconsonation mark of 1.5cm x ¾ cm on (R) 6th initial costal level in the mid axillary line 3. Two wounds of size 1 x ½ cm each at the level of (L) libid tubococity at its either aspect 4. punctured lacerated wound of size 3cm x 1½cm x ?deep on (R) mid inguinal region with blackening and collor of abrasion at its margins with clotted blood. The wound situated 94cm above the (R)heal. 5. Punctured lacerated wound of size 1½ cm x 1cm x ?deep gluetal region at its upper outer quadrant. The swelling are of wound is ended with 10cm in diameter. The wound is situated 88cm from the (L) heal. In the opinion of Dr. Rajesh Kumar Verma (Pw.26), who performed autopsy on the dead body, the cause of death was hemorrhagic shock as as result of injuries No.4 and 5. 5. In order to prove its case the prosecution examined two eye witnesses viz.Harish (Pw.4) and Raju (Pw.7) and also led evidence regarding recovery of stolen articles fire arm and identification of the appellants. 6. The fact that robbery took place in the shop of Chandra Mal (deceased) is not in dispute. It is also not in dispute that in order to commit the robbery the intruders caused fire arm injuries to Chandra Mal and Harish, as a result of which Chandra Mal lost his life. What is now left to be considered is whether the evidence regarding identification of the appellants and recoveries is so reliable that conviction of the appellants can be sustained. 7. A look at the testimony of Harish (Pw.4) and Raju (Pw.27) demonstrates that they sustained injuries during the incident and had ample opportunity to see the faces of intruders. These witnesses identified the appellants in the identification parade as well as at the trial. 8. Factual situation, that emerges from the material on record, may be summarised as under:- (i) The appellants were arrested from Fazilka (Punjab) while they were in custody in a murder case. Narpat Singh IO (Pw.29) had gone to Fajilka and took the appellants in custody on November 12, 2001 vide arrest memo Ex.P-67, P-68 and P-69 and they were brought to Jaipur. (ii) Sh. Gyan Prakash Gupta, learned Additional Chief Judicial Magistrate (Pw.32) conducted identification parade of appellants on November 27, 2001 and drew memo Ex.P-12 to Ex.P-17. (iii) The disclosure statements made by the appellants were recorded in memos Ex.P-79, Ex.P-84 and Ex.P-88. (iv) On the basis of disclosure statements 6 robbed gold chains got recovered vide recovery memos Ex.P-59, Ex.P-62 and Ex.P- 63 in the presence of Motbirs Jai Ram Das (Pw.9) and Dilip Kumar (Pw.13). (v) Harish Kumar (Pw.5) identified the recovered six gold chains in the identification proceedings conducted by Sh.Gyan Prakash Gupta ACJM (Pw.32) who drew identification memos Ex.P-18 and Ex.P-19. (vi) Narpat Singh IO (Pw.29) seized AK-56 Rifle from Fajilka vide seizure memo Ex.P- 70. (vii) Seized articles were sent to FSL for examination. As per FSL report Ex.P-73 fire arm recovered was serviceable fire arm and it had been fired. 9. After having discussed ocular and documentary evidence, learned trial court has found established that- (i) all the three appellants on September 18, 2001 came in a Maruti car and around 7.30 PM entered the shop `Varsha Jewellers'. (ii) appellant Gurmeet Singh opened fire at Chandra Mal and caused injuries to Harish Kumar and Raju. (iii) the appellants robbed Gold chains from the shop out of which two gold chains got recovered from each appellants at their instance. The recovered chains were identified by Harish Kumar in the identification proceedings held by the Magistrate. 10. Learned counsel for the appellants took us through material on record to probablize that the appellants were falsely implicated in the case. According to learned counsel it could not be established that the appellants used white Maruti Car No.RJ-14/ 2C-6293 while committing the offence. It is further contended that as per FIR only two persons entered in the shop whereas the IO has nabbed three persons. Appellant Bageecha Singh is a Sikh and it is not the prosecution case that out of the miscreants, who committed offence one was wearing beard and turban on his head. It is also not the prosecution case that at the time of offence one Sikh was sitting in Maruti Car. It is also contended that appellant Baldeo Krishna Kalra did not reside in the house shown by the IO in memos. According to learned counsel the appellants were not kept `Baparda' and they were shown to the witnesses prior to conducting of identification parade. The alleged recovery of Gold chains at the instance of appellants is also farce and it could not be considered. 11. In the back drop of the aforesaid facts, we first proceed to consider the evidentiary value of test Identification Parade. The necessity for holding identification parade arises only when the accused are not previously known to the witnesses. With regard to evidentiary value of identification parade, their Lordships of the Supreme Court in Abdul Waheed Khan @ Waheed Vs. State of AP (2002)7 SCC 175, indicated thus:- “Identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye witnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code of Criminal Procedure,1973 and the Evidence Act. It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond their control and there is some delay, it cannot be said to be fatal to the prosecution.” 12. In Dana Yadav alias Dahu Vs. State of Bihar (2002)7 SCC 295, it was held as under:- “Identification parade are held during the course of investigation ordinarily at the instance of investigating agencies and should be held with reasonable dispatch for the purpose of enabling the witnesses to identify either the properties which are the subject matter of alleged offence or the accused persons involved in the offence so as to provide it with materials to assure itself if the investigation is proceeding on right lines and the persons whom it suspects to have committed the offence were the real culprits.” 13. In Jayawant Dattatraya Suryarao Vs. State of Maharashtra (2001)10 SCC 109, their Lordships of the Supreme Court propounded thus:- “Substantive evidence of a witness is his evidence in court. Identification parade is not primarily meant for the court but is meant for investigation purpose. It serves two purposes, namely, to enable the witness to satisfy that the prisoner whom he suspects is really the one who was seen by him in connection with the commission of the crime and for satisfying the investigation authority that the suspect is the real person whom the witness had seen in connection with the said occurrence. In case when the evidence is cogent, consistent and without any motive, it is no use to theoretically imagining that as the witness has seen the accused for a few minutes it would be difficult for him to identify. It always depends upon one's capacity to recapitulate what he has seen earlier. Power of perception and memorising differs from man to man and also depends upon the situation. Finally, appreciation of such evidence would depend upon the strength and trustworthiness of witnesses.” 14. Principles that may be deduced from the aforequoted pronouncements may be summarised thus:- (i) Identification tests do not constitute substantive evidence. They can only be used as corroborative of the statement in court. (ii) The main object of holding an identification parade during the investigation stage is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye witnesses of the crime. (iii) In order to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade, it is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. (iv) Appreciation of such evidence would depend upon the strength and trustworthiness of witnesses. 15. Coming to the testimony of Harish and Raju we find that they had ample opportunity to watch the faces of intruders since they remained in the shop for sufficient long time and saw the intruders opening fire at Chandra Mal and committing robbery by picking up gold chains. Harish in his Parcha Bayan tangibly depicted the physical status of two intruders, who entered the shop and committed murder and robbery. From the testimony of Narpat Singh IO, it is established that after their arrest the appellants were kept baparda and there was no opportunity for the witnesses to see the faces of appellants prior to identification parade. From the testimony of Sh.Gyan Prakash Gupta ACJM, it is proved that identification parade was conducted according to rules. Despite lengthy cross examination testimony of Harish, Raju, Narpat Singh IO and Gyan Prakash Gupta ACJM could not be shattered qua appellants Baldeo Krishna and Gurmeet Singh. So far as involvement of appellant Bageecha Singh is concerned we find that he is a Sikh wearing beard and turban. As per Parcha Bayan of Harish, no Sikh is found to have entered the shop on the date of incident. Even in the Maruti car, in which the intruders fled away, no Sikh was seen sitting in the car. In the explanation under section 313 CrPC Bageecha Singh stated that he never visited Jaipur and was falsely implicated in the case by the police of Fazilka. According to Bageecha Singh in another murder case Baldeo Krishna and Gurmeet Singh were arrested by Police Station Fazilka. In that case the police also nabbed him. Since he was accused along with Baldeo Krishna and Gurmeet singh in that case, Narpat Singh IO thought that he (Bageecha Singh) also accompanied Baldeo Krishna and Gurmeet Singh and committed offence of murder and robbery at Jaipur. Explanation of Bageecha Singh reads as under:- "सीडफाम[ अबोहरमɅ एकमड[रहोगयाथाǔजसकाइã जाममेरेलगगयाथा।दसरȣ ू पाटȹ नेमेरा नामझूठालगाǑदयाथा।पुिलसकȧ ǑहरासतमɅ हमनहȣंआयेइससेपुिलसवालेगुः सेमɅ थे। पंचɉ कोलेकरमɇ पुिलसमɅ पेशहोनेकेिलएगयाथातबमुझेपुिलसनेअरेः टकरिलया।एक ǑदनमुझेथानेमɅ रखा।पुिलसनेयहकहाǑकतूनेहमारेकोबहतु परेशानǑकयाहैइसिलएतुझे फंसादेगɅ Ǒफरपुिलसनेमेरेकोराजः थानपुिलसकोसɋपǑदया।मɇनेकभीजयपुरयाराजः थान पहलेसेनहȣंदेखाथा।मɇ िसखसरदारहं।ू मɇनेअपनेजीवनमɅ कभीभीबालदाढ़ȣ नहȣंकटवाये हɇ।मेरेपरयहǒबã कुलझूंठाकेसलगायागयाहै।मɇ िनदȾषहं।ू" 16. That takes us to the disclosure statements of the appellants and recovery of gold chains effected pursuant to those statements. 17. Section 27 of Evidence Act lays down an exception to the rule that a confession made by an accused person whilst he is in custody must be excluded from evidence and permits the admission of such a confession under the conditions prescribed by it. The law in India on the subject dealt with in Section 27 is wider than the common law in England. It appears from the provisions of Section 27 that it has been taken bodily from the English law. In both the laws there is a greater solicitude for a person who makes a statement at a stage when the danger in which he stands has not been brought home to him then for one who knows of the danger. In English Law, the caution gives him a necessary warning and in India the fact of his being in custody of a police officer serves the purpose. 18. Section 27 seems to be based on the view that if a fact is actually discovered in consequence of information given some guarantee is afforded thereby than the information was true and accordingly can be safely allowed to be given in evidence. It is not correct to presume that information given by the accused under section 27 is compelled testimony, so as to attract Article 20 (3) of the Constitution. 19. In Prakash Chand Vs. State (Delhi Admn.) [AIR 1979 SC 400] the Apex Court held that the evidence of circumstance simpliciter that an accused led a police officer and pointed out the place where weapon was found hidden, would be admissible as conduct, under section 8, irrespective of whether any statement made by him contemporaneously with or antecedent to such conduct falls within the purview of Section 27. 20. In Rammi Vs. State of MP (1999)8 SCC 649, the Apex Court held thus:- (Paras 11&12) “Regarding the recovery of weapons, the prosecution could utilise statements attributed to the accused on the basis of which recovery of certain weapons was effected. Section 27 of the Evidence Act permits so much of information which lead to the discovery of a fact to be admitted in evidence. Here the fact discovered by the police was that the accused had hidden the blood stained weapons. In that sphere what could have been admitted in evidence is only that part of the information which the accused had furnished to the police officer and which led to the recovery of the weapons.” “True, such information is admissible in evidence under Section 27 of the Evidence Act, but admissibility alone would not render the evidence, pertaining to the above information, reliable. While testing the reliability of such evidence the court has to see whether it was voluntarily stated by the accused.” 21. In Himachal Pradesh Administration Vs. Om Prakash (1972)1 SCC 249 the Apex Court interpreted Section 27 of Evidence Act thus:- “A fact discovered within the meaning of Section 27 must refer to a material fact to which the information directly relates. In order to render the information admissible the fact discovered must be relevant and must have been such that it constitutes the information through which the discovery was made. What should be discovered is the material fact and the information that is admissible is that which has caused that discovery so as to connect the information and the fact with each other as the `cause and effect' that information which does not distinctly connect with the fact discovered or that portion of the information which merely explains the material thing discovered is not admissible under Section 27 and cannot be proved. The concealment of the fact which is not known to the police is what is discovered by the information and lends assurance that the information was true. No witness with whom some material fact, such as the weapon of murder, stolen property or other incriminating article is not hidden, sold or kept and which is unknown to the police can be said to be discovered as a consequence of the information furnished by the accused. What makes the information leading to the discovery of the witness admissible is the discovery from him of the thing sold to him or hidden or kept with him which the police did not know until the information was furnished to them by the accused.” 22. In the instant cases we find from the testimony of Narpat Singh IO that appellants Baldeo Kirshna and Gurmeet Singh made disclosure statements voluntarily and gold chains got recovered pursuant to those statements. The recovery was made in presence of Motbirs Jai Ram Das (Pw.9) and Dilip Kumar (Pw.13). Rifle AK-56 was seized from the possession of Gurmeet Singh by Police Station Fazilka and Narpat Singh IO got it recovered vide memo (Ex.P-70). As per FSL report (Ex.P-73) the said rifle was a serviceable firearm and it had been fired. It is also established beyond reasonable doubt that Baldeo Krishna at the time of incident was residing in Man Sarovar Jaipur and Gurmeet Singh used to visit his house. If there is a mistake in mentioning correct house number of Baldeo Krishna it does not help him. The version narrated by defence witnesses and production of Ration card to show that Baldeo Krishna was not residing in the house shown by police in the memo do not help Baldeo Krishna in any way. Baldeo Krishna and Gurmeet Singh were correctly identified by Harish and Raju in the identification parade as well as in the trial court. The Gold Chains recovered at their instance were identified by Harish before learned ACJM. All these facts have established the charges against appellants Baldeo Krishna and Gurmeet Singh beyond reasonable doubt. 23. We however find that although the witnesses identified Bageecha Singh in the identification parade and in the trial and on the basis of his disclosure statements two gold chains got recovered but strong suspicion about involvement of Bageecha Singh creates in our mind since no reference of any Sikh was made in Parcha Bayan by Harish. Even no evidence has been adduced by the prosecution to establish that any Sikh was sitting in Maruti Car. In such a situation possibility of over implication of Bageecha Singh cannot be ruled out. The explanation given by Bageecha Singh in his statements under section 313 CrPC under these circumstances does not appear to us totally untruthful. In our considered opinion, appellant Bageecha Singh is entitled to benefit of doubt. 24. For these reasons, we dispose of the instant appeals in the following terms:- (i) We allow the appeal of appellant Bageecha Singh and acquit him of all the charges. Appellant Bageecha Singh, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. (ii) We find no merits in the appeals of Gurmeet Singh and Baldeo Krishna and the same stand dismissed. (iii) The impugned judgment of the trial court stands modified to the extent indicated above. (Mahesh Bhagwati),J.(Shiv Kumar Sharma)J. arn/