•;'TIT:?; .'..• 1; IN THE HIGH COURT OF TUDICATURE AT BILASPUR CHHATTISGARH CRIMINAL APPEAL N0. -3 2-7" /2004 APP1 ELLANTS (INIIAIL) I* *1»««« .("' "'ci. ^ RES iPONDENT a-> ^ -3] /4] Jagan Nagesia S/o Beegu Nagesja, Aged 'doucfiVs}'yvws, Occupation-Cultivator, R/o Village Piyar Toli Para, Baksapur, P.S. Kusami, Distt. Surguja (C.G.) Mandeep @ Prashant @ Prabhat Thakur, S/o Prasiddha Thakur (Nai) Aged about 21 years, Occupation - Cultivator, R/o. ViUage Bandu Chatan-i, P.S.Ranka/Distt.Gadawa (JharKhand) Mandev S/o Ladaiya Bhuihar Aged about 31 years Occupation Gultivator, R/o. Viltage Bhalu Pani, P.S.ShankargaTh,Distt.Surug]a(C.G.) Indraj'eet Nagesia S/o Dewar Nagesia, Aged about 36 years, Occupation-Cultivator, R/o. Village Charhafkhurd, P.S. Kusami, Distt. Surguja (C.G.) VERSUS State of Chhattisgarh Through: P.S. Kusami, Distt. Surguja (C.G.) APPEAL Ui^DER SECTJON 374(2) OF THE CODE OF CRIMINAL PROCEDURE K .^ ^) HIGH COURT OFCHHATTISGARH AT BILASPUR Cr.A. No. 327/2004 APPELLANTS Jagan Nagesia and others VERSUS RESPONDENT StateofChhattisgarh. Shri Manoj Paranjape counsel for the appellants. Shri D.K. Gwalre Panel lawyer for the respondent/State. J U DG IV) E N T (Delivered on ofc-10-2005) DhirendraMishra, J The appellants have preferred this appeal agalnsf the iniptigneci judgment dated 22.1.2004 passed by First Additional Sessipn| Ambikapur, District Sarguja, in Sessions Trial No. 45/2003 wheretsy f-iave been convicted under sections 307, 147, 148, 152, 186 and the Indian Penal Code and sentenced to undergo R.l.forSyears ofRs.500/-,;2 years with fine ofRs. 1GO/-;1 yearwith fineofRs. p|(p0/- monthswith fjne ofRs. 500/-, 3 months,,and 2yearswithfine ofRs|.| respectively. ' , wlth 2. Case of the prosecytion isthat PW-8 Suresh Ghandra MJFE, the Head Constable of PoIic&Station Kusmi lodged a Dehati Nalisi agajlistthe >Jludge, they 13531 of fine JOCV-, 3 J500/- unknown personson 10.8.2001 atabout 6.30 p.m. to the effectfhj itthe SSation House Offieer of Police Station Kusmi received a yecrete information that absconding accused namely Dashrath Nagesia i^ljiiding in his house at village Dhavai Toli (Tati Jharia) and aetingi|up|on ttiat information thg Police Party corisisting of l-laricharan Singh^ SH^Sj (RA^- 17), Suresh Ghandra Minz, Head Constable (RijV-8), Hanncii^lfSsS^, Constable (PW-18), Pushpendra Rao, Gonstalale, jRamjsaj Constable and Rakesh Kumar,! Dnv®^i(l;'W-6)iwhichlwas fte^i^SS^ R^K.; ti:::! —2.— Kurre, SDO (P), proceeded to arrest him at 17.00 hours on 9.8.2001 and they came to know that inthe houseof Sukhna Nagesia and BalesKwar Nagesia foodfor 20-23 Naxalites was prepared and after having theilood the said Naxaiites had gone towards yillage Laxmanpur. While Ramchandra Nagesia was being interrogated by the Police regarding the whereabouts of Naxalites, Driver Rakesh Kumar Singh reached the[ie| and 'l II told the Polic®officialsthat Naxalites were approaching them. Therei^son, the Police party took position and warned the Naxalites to surrender. However, instead ofsurrender the Naxalites started firing at the Rolice which continued throughout the night. However, in the morning at 5.20 a.m. on 10.8.2001 when Naxalites stopped firing, the Police Party took off their position thinking that the Naxalites had fled away, finng from theside of Naxalites was again started and in the said firihg one bullet hit tlnjs ieft side of chest of SHO Haricharan Singh andcame out piercing his||3ack. II! Thereafter, allthe Naxaliteswho were 20-23 in number includinglthree Naxalite ladies wearing Khaki dress, fled away from the scene. Subsequently, on the basis of Dehati Nalisi (Ex P-8) First Information Report (Ex P-9) was registered. During invest^ation spot map (E?;|P-1 and P-2) was prepared by the Patwari namely Rengu Singh (RVV-2). Thereafter, injured Station House Cfficer Was sent for medical examination ahd the medical examination report is Ex P-7. The sejzed articles were sent to the Fprensic Science Laboratory, RaipUrl for examination ancf the FSL Report is Ex P-5. After the investigation i was over, the District Magistrate accorded permission for prosecution of| the accused persons yide Ex. P-16. However, the appetlants pleaded their false implication inthecase, theywere puttatrial. . 3. During trial the prosecution examined as many as 18 witnesses namely Ramsai Toppo, Constable (PW-1), Rengu Singh, Patwari (P^-2), H.P.Singh, Inspector (PW-3), Begun Ram (RA/-4), Dr. T.S^i (F^-5), Rakesh SinghSengar, Driver(PW-6), Ravi Kumar Kurre, SDO (P)|(PW- 7), Suresh Chandra Minz, Head Constable (PW-8), Inder (PW-9), Htei^dev (FW-10), Manppd (PW-11), Ramchandra (R/V-12), Jathuram (PVU-13), J.B. Panda (PW-14), R.N. Yadav, Inspector (PW-15), Barnabas gf<ka, Head Constable (PW-16), Haricharan Singh, Inspector (PW-17] ijand Harindra Nath, Head Constable (PW-18). The trial Coig'-'s^ing up6i|(the :> 1 — ^_ statements of witnesses namely PW -3, PW-5, PW-6, PW-7, PW-17and PW-18, convicted and sentenced the accused persons as mentioned above. 4; Learned counsel for the appeUants has assailed the impugned judgmentofthetrialCourtonthefollowinggrounds: ;| ^ (A) that the FIR has been lodged by R.K.Kurre (PW-7) a§ijser the information given by injured witness namely Harich^|an Singh (PW-17) which is againstthe unknown persons; ! H 1 (B) no Test Identification Parade wasi conducteci dunng investigation and the accused persons are not known to <he witnesses and solely on the basis of their jdentification in Ihe Courtfor the first time during trial, the appellants have b^en convictedfortheoffencesmentionedabove; II (C) that all the witnesses are Police personnel and none of them has stated either in the diary statement or in the Det-pti Nalisi that they recognized the accused persons and sjriee they have improvedtheir statements before the Court, thiey are not reliable buteven then Ihe learned trial Court relying on their statements has convicted and sentenced accused persons as above; (D) th< that nothing has been seized from the appeilantswhich mpy connect them with the aforesaid offence. Though it is allegfed that the firing continued throughout the night, no empties have been recoveredfrom the spot; j (E) thatthough it is alleged that 20-23 Naxalites were involveti the incident, none of them has stated that the appellqi were carrying gun prfiring with the guns and only pn basis of general altegations the appellants ha^ convieted for the offences mentioned above. i H 5. i:b! On the other hand learned,c;ounsel'fbr,thie;iji'esF|oncf^|^|^ supporting the impugned «judgment of the triall 6Qurt cohvictin^pma ' --i •;:.'i'l:i 1 :S!lfi :l)i:i. nmi SMS fSSK IJJBI UL-1. Li : 1 ^. •i.", !;;"li Kt!:;^ -Lf- :1 ': :i: ii; ii; :t: ^ sentencing the appellants as above, submits that it is just and proper and no interference with the same is called for in this appeal. 6. I havs heard learned counsel fbr the parties and perused|the evidence available on record. 7. The judgment of the tria! Court convicting and sentencing i |the appellants as mentioned above, is solely based on the stetement of RW-5, the dotftor who treated the injured. The said doctor has bpined that injuries No. 1 and 2 caused on the person ofthe injured were caused bygun.|He further opined that these injuries were grievous in natyre and were caused 12 hours prior to the examination. Since the injuries have been caused with the help of gun on the vital part of the body of the injured, |he intentionofcommittingmurderhas been inferred. | 8. Learned trial Court has further relied upon the statement of injured wjtness (PW-17), who has stated that he accompanied the Police Partylon the date of incident and he identified the accused persons by facethough ha did not knowthem byname. He hasfurtherstatedthatwhenthePoljce partywas pn the way, the accused persons came Trom behind and started finng with an intentionto killthem and'the firing continuedthroughoutthe night and itstopged at about 5.20 a.ni. t-lowever, after a brief stopp^ge the Naxalites again fired and one bullet hit onthe left portion of the ch^st ofthe injured and came out piereing his back. This witness has how^ter admitted in pwagraph 9 of his eross examination that at the timeiof lodging Dehati Nalisi by Suresh Chandra Minz, he was unconsciou&'^nd therefore, the factthat he recognized ths accused persons by face and saw them running away could not be disctosed to said Suresh Chanijlra Minz. He also admitted the factthat he had first seen the accused perso^ r;-':1il.r at the place where the incident took place and thereafter he saw theijril in the Court. tre tts^ M 9. Learned trial Court has also relieci ypon the statement ofR.K.I (PW-7) who has stated in his eviaence that he recognjzedthe hamely Mandeep and Jagan andxiid notrecognizeiothers. Mffhasl stated thatwhen;they were proceeding to nab th^ absconding!ac;ei| tfutt :m :;i:;ti' S-— w (v I .dB.iltatJi-td persons, the firing was started hy the Naxalites at the Police party in Laxmanpur village as a result of which Sublnspector Haricharan Singh sustained bullet injuries over his chest. He howeveradmitted that he did not mention this fact while lodging Dehati Nalisi-as his attention at that time was towards the injured Sub Inspector l-1aricharan Singh and the diary statement was not recorded during investigation.. 10. Rakesh Singh Sengar (PW-6), the driver of the jeep which t^ Police Party had boarded, has stated in hisstatement thal he recognized the appellants namely Mandeep and Jagan but did not recognize th§ others. He has also stated thatwhenthe Police party reached Laxmanpur, the accused persons who were 15-20 in number opened firing atthem and thereafter the Police tookthe position and firing started from both the sides and in this firing which continued throughout the night, SHQ Haricharan Singh (PW-17) sustained injuries. However, in the crossj examination he has stated that whateverstatementhe had given is atthe behestofSDO (Police) ashe was his subordinate. 11. 1 hlarindra Nath (PW-1 8), the head constable has stated in His statgrnent ttiat he.recognized all the accused pereons. He has fartheij stat^d that^on th®lateful day h& liad aceompanied the Police party and theylleft tlieir jee^Wiyillage TathJharia anctiproceed on foot. When they reached yillage ill.^xmanpur 20-22 ilslaxalites inciuding twd femal^ members carryjriglriflesandgunsstartedfinngatthe Police party and wi retaliation the PoliGe party also fired at them and in the said firing the SHGI (PW-17) sustained bulletinjuries on his chest. 1-te has further.stated-thai! as the Naxalites had come very close to them, he saw their faces. l-1e hasj also stated that the accused persons who were present in the Court had jn fact, fired at them. However.in paragraph 7 of his deposition he stafa thatwhile making diary statement before the Police hetoldthem that He] recognized the accused personswhen heturhed around aridsawthem. 12. The only question to be decided in ihis appealIliswhetKisrljH^ accused persons beirig strangerare notkno\OTitQtli^|eyewitF»^ses|!a|<j| the prosecution dicl hot cpnduct !th&it6stJtilehtificaiJon|jparade|li|§J|| investigation and whether the^ identifiCatioh by the Wftriesses fort tf-jeljfi^ ifel lii! t'^!i^ IUII iffi ll%il isisa :;1 :;;: ili:!,; liiiil'i? w» c»-a~* time in the Court during the tria! can be relied upon by the triai Court fpr convicting and sentencing the accused persons. 13. !t is not disputed that failure to hold test identification parade would not make inadmissib!e the evidence of identification in Court asthe evidence of identification in Court is the substantive pieceof evidence and the test identification parade provides corroboration to the sworn testimony of the witnesses in court as to fhe identity of the accused. In appropriatecases, the Court mayaccept the evidence ofidentificationiin Court even without insisting on such or other corroboration as is he!d by theApex Court in its variousjudgments. < 14. In ths present case, l am of the opinion that it is not safe to rely upon the statements of the witnesses wherein they claim to have identified the accused personsfor the first time in the Court and that too when thjs' identification is not corroborated by the test identification parade, for the following reasons: (1) that all the witnesses who have recognized the appelianfe are the Police officers and all the independent witness^s who are examined as PW-9, PW-10, FW-11, R/V-12 and PW-13 have not supported the case ofthe prosecution; ; | (II) that the appellants were stranger to the wjtnesses and the incident took place in the night as already discussed in thte preceding paragraphs, none of the witnesses yj/hoste statements have been relied upon bythe trial Court hav6 disclosed this fact that they recognised the accused persons who were involved in the incident and they could identify them.rThis apart, no description has been given by anyjclf the witnesses either in the RojnamachaSana or inthe diary statements.Thustaking into consideration the fact that evbiji .I]'.' according to the prosecution 20-23 personswereinvolved|in the incident, identification for thefirsttime in the Courtduring trial by the witnesses who are none felse but thei Rplitie officials, is not credibte. .--i-1- 7- 9t 15. Learned counsel for the respondent/State relied upon the judgment of the Apex Court in the matter of MaSkhansinah and others Vs.Stateof IV1.P. reported in (2003V 5 SCC 746 and argued that faiiure to hold teist identification parade would not make inadmissible the evidence of identification in Court as the test identification parade does not constittfte substantive evidence and the substantive evidence is the evidence||of identification in Courtand the Testldentification Parade provides corroboration to the sworn testimony of the witnesses in Court as to|the identity of the accused. As already discussed in the foregoing paragrapHs, in appropriate cases the accused can be convicted on the basis iof evidence of identification in the Court and such identification mustdepend upon the facts and circumstances of each case and no general rule oan be laid in this regard. In paragraph 10 oftheabove cited judgment it has been held that much evidentiary value cannot be attached tp tlne identification of the accused in Court where identifying witness is a tdtal strangerWho had just a fleeting glirapse ofthe person identified or who had no particular reason to remember the person concemed.if tfie identification ismadeforthefirsttimeincourt. i 16. Irc the present case also apart from that, none of the witnesses has stated durjng ihvestigation that they were in a position to reGognize |tljie accused personsiasthey haye notistatectany particuiar reason in their deposition for identifying the appellahtsbeforethecourt. l^! 17. In the present case the appellants were arrested almost one yejar after the date of incident i.e. on 28.8.2002, 30.8.2002, 19.9.2002 a(id 30.9.2002 and that almost all the witnesses were Police officials it wasl&ll "^ the more necessary for the prosecution to conduct test jdentifica]tron parade to establish identity of the accusedpersons. 18. In view of the aforesaid anatytical discussion l am of the consid^iiejjl view that it is not possible to sustain the conviction and1 senteric^jjiin respect of any of the accused persons. As such theiappeal sticge^sj rX' Impugned judgment of the trial Court eonvicting! an|ia sentei'roinigj appellants as mentioriS8?'ab6ve%'set asjHe. Appellan^ ar^ acqpijggiil :'; a8: p'il.:- iv»B®tvaaNsinHa •-/PS .j ,• J 'esBojsqio AUBUI pejinbsjtou ^i yiiMqvo.} A}jeqi| }B }ss sqoi pspsjjp eje Asqj. 'uie^} isuieBe ps|3AS] ssSjeLjo 041 -•8- IB