||||||H|||||||||HH|||ll|l||| E ||\ ’ CFOOOOO " z _ 9ivision Bench (Frmna Z/ lm i‘nn nlia‘rn @UUM.‘ OJS‘ Max“. A33 JABA‘LWB'U’rl. / jA‘ , @RIM;RALATPE£$ L U/S 3’74 ero?.@u ”‘1‘ . @l‘a Ag N0¢3Q HQ 9f 98v A??EI:IIANT $ .. 1a v‘ Ranrg alias Mucehchu aged §bou£ r V ‘ 77 yrs, s/o Dukhaldka, batmagrig$§> ~8t, r/e Dodekala, ?.S.Dharsiwa,lig§* ‘77'7/ . Raipur, P Wwlamgiy f’ a 2“ Iunltram alias Motu aged aboui W a $MCMK'VWJf-1-Z years, s/o mom. ahua , agricultu WW”. r/o Lodhipara. Kampa, Lso giving“. Raipur,M-P. a“ Wk was&&&%i~£$% 4° Rama “cam, aged about 4o yrs. $/o 4 i Mandari Goand, Ian Thelaywla, r/o Jami raS. Tumgaon, Dist‘b. Ram M-r’ # wjw ugé‘yrsgfc Ihm iSttw 3’. . 1‘ _\ \cXl\‘\c‘ awxxwjg « {H45 6° Laxnan s/9 ré/o $hobha‘Iadava, givil aged abow MW yrao Gwala. Lodhipara, Liné Raipur,M.P. Ml“ “WW“ mult$w Jakexcg‘f’ (N id ck‘) MmM +§—y—rs—,——r WW Wt” ‘ 1 0 0 “3‘ Aw) m6“ vmwa N 9““,‘1 7 7 wommmu’ ” $tate" or taro HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.3040 of 1993 Ramraj alias Muchchhu and o+hers - Versus - S+a+e of Mudhya Pradesh (nbw Chhaffisgar‘h) Criminal Appeal No.2638 of 199$ \ Lakhan and c‘rhers - Versus - Sfa’re of Madhyn Prade3h (now Chha‘rfisgar‘h) a JUDGMENT FOR ¢ON5IDERATION Sdl- x L.c.BHADoo l Judge 25-9- 2006 . "\.FW 'BLE MR. JUSTICE V.K. Sl—RIVTAVA bk; ay i Sd/- w r V.K. Shrivatava Judge 25 3-2006 rsT FOR JUDGMENT ON 2s“ sEPTEMBER zoos . ’ Sdl- s k ;;, L.c.BHADoo (I : ‘: Judge "’ J Ub’gE y7¢\.—9,—2006‘ r 0N AS l HIGH COURT OF CHHATTISGARH EILAsPUQ Criminal Appeal No.3040 of 1998 Rammj anus Muchchhu and ofhers - Versus — Sm‘l‘e of Madhya Pradesh (now Chhaffisgarhj Criminal Appeal No.2633 of 199a Lnkh an and ofhers ~ Versus — Sfa‘l'e of Madhya Pradesh (rmw Chhaf‘risgar'h) Preseni:- i ‘ i . Mr. Abhay Ti vari, Advocate: For- a” fhe uppelianfs in Cr. Appeal Na.2638/98 and for appellants—Punitram alias Mofu, Radhe amt] & Laxman in Cr. Appeai No.3040f98. Mr. R.K. Jain,§ Advocai‘e: For appeilan’r—Rammj alias Muchchhu in Cr. Appeal No.3040/1998. i Mr. U.N.S. Deb, Addl. Public Prosecufor ’ l ) i i i wifh Mr. D.K. Fwaire, Dy. 6am. Advocufe : For the Sm‘te/respondeni‘. DIVISION BENCH: ' ‘K HOM'BLE MR. LC. BHADOO AND HON'BLE MR. VJL SPRIVASTAVA JJ. JUDGMENT (Delivered on 26m Sepfembzr", 2006) l l l'l’he following judgmeni' of fhé Cour-i was delivered by LC: Ehad‘aa, J:- 1. Criminal Appeal No.3040/98,’ filed by appellonfs-Ramraj alias Muc‘hchhu, Punil'rom alias "Mo#u, Radhe‘ 60nd & Dayaram and Criminal Appeal No:2638/9S, field by uppellon‘rs-Lakhan, Mongol Singh and Laxmun ore’being disposed of by fhis common judgment as bo'l-h +hese appeals are arising oui of‘i‘he 5ame judgimen+ passed in Sessions Trial No.144/91 by learned Addi‘fio‘nal Sessions Judge, Bemei’ra relal'ing "to fhe same inciden'l‘ da‘l'ed 30. 10. 1990. ‘ww' i i i Page 2 of 20 2. THese appeals are direc‘l‘e’d againsf The judgmenf of canvicfian anid order of sen’rence da‘fed ’17” Ocfober} 1998 passed by leairned Addifionai Sessions Judge, Beme‘rra, Disfricf Bur-g in $e;ssions Trial No.144/91, whereby !edrned Addifional Sessiani Juidge affer- holding‘nccused/nppelianfs, Ramraj aiias Muchchhu Pufneefmm aiias Mo‘l'u, Radhe Gon‘d, Mangal Singh, Lnxman, Dqyamm and Lakhun, guil‘fy for commission of offence under- Sec-Hons 396 & 397 of The Indian Pencil Code sen‘renced each of 1'he accused +0 undergo R I for iife +0 pay o fme of Rs 500K- und In defauli' of paymenf of fine 1‘0 furfher undergo R I for 6 mo‘n‘fhs and R I for I’yeare respechvely Bofh ihe senfences are direc‘i‘cd +0 run eoncurrenfiy.‘ However, learned Addifional Seissiops Judge‘ocquiffed accused persons nomeiy Kheiundnyul, Roidhe alias Radh-whyam & Ashwoni from The aforesaid offences. . Thle cage of prosecufian in brief was Thai“ in fhe iniervening nigh'!‘ of 30*h & 315+ Ocfober 1990 a‘r abou'i 11 3O p n1 when Meenaram along wifh his family members was sleeping In his honse, he heard commohon in fhe Village. On opening fhe doors, he‘sow fhaf 9-10 persons sfanding in 'i'he sireei‘ were abusing and fo‘king +0 enfer his’house, on which he close‘d The doors‘ He& his wife ron away from +he house fowards fhe field. The accused persons carrying bomb, axe and ofhendeadly weapons in fheir hands barged‘in his house and commih‘ed dacoify. They also enfered ‘i'he house where his brofhers namely Benirom Khemkumor & Ghonshyam were residing olongwi‘ih +heir families : Wllen Bemram & Khemkumor pu'i resisl‘ance The accused persons exploded Jufe sfring (bomb) as o resul‘l‘ of which Beniram and Khemkumar susfained inJuries and lafer on Benirom succumbed 1‘0 1'he inJurIes. Alecused persons loo‘red gold <5: silver ornamen‘rs, Jonah, wrisi-wofches and" cosh amoun‘l‘ from fhe house of Meenoram and his bro'l'hers. Accused personsol’so barged in 'ihe house of Bisheshar, fa‘l'her of Meenaram, which was in fhe Threshing field and loofed ‘i'orch, air gun, axe, crowbars, fape re order e'i'c. Meenaram reporfed 'l'he moffer in The some nigh? Page 3 of 20 W I Le. 6n 31.10.90 af 4.00 mm. in The Poliw 5+a1’ion Berla, whet-e Sfafion House Officer Shri S.K.A. Naqvi (PW—"6) regis‘reredfhe Crimé No.125X90 under 'Secfipns 395, 396 & 397 of The IPC Throl‘ggh FLR. Ex.P-20. He also regisferecl fhe merg infimcd'ion No.21‘1I90 (Ex.P-22) regarding deafh of Benimm, lef+ for ‘Hqe scené of occurrence and prepared the sH'e pmn (Ex.P~1) of scene of ocicurrence. Haiku Pa-rwari was also asked fa prepare The {We plan :of scene of occurrence, who prepared The sH-e plan Ex.P-23. Af'1'eL giving no+ice (Ex.P-6A) +o‘1‘he Panchas, fhe Invesfigafing Offhper' prepared +he inquesf reporf of fhe body of Beniram dnd sen'i- phe‘dead body for poei‘mor’rem examinofion under Ex.P—23A. He aiso seni‘ +he‘injured Khemkumar for medical examinm‘ion under Ex.P-Z4 Posimor'i'em on ‘i‘he body of Benirnm was conducfed by Dr A313. Mehnof (PW 31) who prepared ihe posimorlem repori‘ Ex P 42 and no‘hced fhq‘i 'l‘here were blasl‘ burn (gun- powder) InJuries on +he ches‘i neck lefi hand and face There woe blackening of skin a lacera'i'ed wound on +he leff shoulder and apes-i m The size of 5" 3" deep 1'0 +he bone muscles were damagled. Subclavian ar'i-eries were locera‘i‘ed and +here was ahole l in +hel orieries. Lef‘i scapula and humerus bones: were fraciured. Ther was haemo‘ihorox on 'l'he left side ofxehesf. All fhese injurileé were an‘le mom‘em in na‘rure and caueed by blas+. The clocfolr opined fha'r cause of deafh was shock and haemorrhage on accoun‘l‘ of blas‘r injury. Dr. K.5hrivas+ava (PW—?) affer examina'fion of injured Khemhumar, prepared fhe injury reparf EXP-f5 and he also nofieed burn injuries on 'I'he body of injured l Khemkumor. . On 17111 1990 while In police cusfody, accused Punee'i-ram alias Mofuigave memorandum (EXP-11) under Secflon 27' of fhe Evideilice Ac‘l‘, acqused Ramraj alias Muchchhu gave memorandum ExeP-g2, accused Radhe GoiTd‘lgave memordndum Ex.P—23, accused ‘ l Lakhaln gave memorandum Ex.P-24, accused Mangal Singh gave l memorlandum Ex.P—25, accused Laxman gave memorandum Ex.P—26 and adcused ‘Dayaram gave memorandum Ex.P-27. 1n pursuance of These memorandums one Torch was recovered a‘r 'i‘he insfance of Y Page 4 of 20 @ accujsed Puneefmm alias Mom under'Ex.P—28: explosive powder ju’refsh‘ing & copper wire were faken info possession c1+ 1'he ins‘rqnce of accused Ramraj alias Muchchhu under- Ex.P—29. On prodhcfion by one Vinod Kumar- Agarwul a lump of gold weighing 69001 milligrqm and (me regis‘rer were faken info passession lundelr Ex.P-14‘. A lump of silver weighing 495 gms and lump of gold weigHing 3gm 2 milligram were faker: info possession under Ex.P— 20. One bill receipi- regarding sole of jewelry by accused Rodhe was foken info possessmn under Ex P 32 Af fhe insi‘ance of occused Lqkhan one ladies wafch was Token info possession under Ex.P-3§‘ One fape recorder and forch were recovered of fhe insfalnce of occused Mongol Singn under Ex F 35 One golden nose ring and bunch of keys were faken info possession of fhe insfance of ac‘cused Laxmun from his house under Ex P 36 Af fhe insfonce of aclcused Duyorom fwo live jufe sfring bombs were faken'info possession under EXP—39. . Durinig invesiiga‘iion, fesi‘ iden‘l‘ifica‘iion parade of accused persdns was conducfed by PLW-32 Shri Anfhony Tirl<ey,E$<ecufiye Magisfrafe in which accused persons were idenfified by Babulal‘ Meen‘oram, Bishesari Ghanshyam, Kansharom, Budhkumar, Porefcm, Dind y’al, Sukhirom, Pyariboi, Munnibaii‘ Padumboi and idenfificafion memo EXP-16 was prepared. Idenfificafion of i . . . ' ‘ recoviered orficlea i.e. wrisfwafch, forch, fape recorder, anklef, keys, golden nose ring was also conducfed by fhe Execufive Magislfrafe in which Bisheshar, Meenaram, Padumbai,Pyariboi and &hans}hyam idenfified fheir arficles and ‘occordingly, l idenffficafion memo Ex.P—17 was prepared. Idenfificofion of one pair olf onklef was canducfed by fhe Tehsildar in which Vishesar,‘ P’aduWbai di Pyoribai ide’hfifi-ed The silver onklef and idenfificufion memo\Ex._P:18 was prepared. “‘Eiyxf C} . The invesfigafing officer also seizelldllfhe blood sfained soil and plain soil from fhe place of occurrence under Ex P 7 He also fook info piossessmn fhe parficles of exploded bomb from fhe place of ren‘ce under Ex.P—8 and boxes under Ex.P-9 di Ex.P-11. He OCCLH“ e Page 5 of 20 Took? info possession fwo pum‘s of door, which were cu'l‘ by The accused persons wi'rh fhe axe and o‘l'her- piaces of broken door under- Ex.P-12. Parficles of bomb and fwo live bombs were sen‘r for jexamina'rion +0 Forensic Science Labercwory, Sugar, from where reporf Ex.P—41“wos reeeived. .Af‘rér usual invesfiga‘i‘ion, charge sheer was filed againsf fen accused persons including +he presen‘r occusedfappellan'rs in+he Courl‘l of learned Addiiional Chief Judmlal Magls‘l‘rafe Beme+ra who im furn tommi‘l‘fed 'H1e case +0 learned essions Judge Durg ’from where learned Addmonol Sessions Judge, Bemefra'received lu‘ +he base onlronsfer for 'l'rinl. Learned Addilional Sessions Judge offdr perusal of +he reoord was of +he opinion fhaf prima focie offelnce§ under Sec‘iions 396 d: 397 of fhe IPC were made ou'r agaihsf 'l‘he accused persons‘ Therefore, charges were framed and expllained To The accused persons. The accused persons denied The lcharges and pleaded for Trial The prosecuTion, in order To esTdblish The charges ogainsT The accused persons, examined 32 wiTnlesses. Learned/Addi‘iional Sessions Judge recorded The sToTiemenT of accused persons under SecTion 313 of The Cr.P.C. in whioh They denied The maTerial appearing againsT Them in The prodecuhon ewdence and sTaTed ThaT They ore innocenT They havd} furTher sTaTed ThaT Their phoTograph was Taken aT The insThnce of STaTion House Officer and same was shown To The wiTnesses before Their TesT idenTificoTion parade. . Learlned AddiTional Sessions Judge ofTer hearing The orgumenfs of le‘orned counsel for respecTive parfies, convicTed di senTenced The laccusedfappellani‘s as indicaTed in The earlier parT of This v‘judgtmenT . We have heard Mr Abhay Tiwari (Si Mr R K Jain learned counsel f’or The l accusedXappellanTs and Mr U W5 Deo AddiTional Public ProsecuTor wiTh Mr. D.K. &walre, Dy. GovT. AdvocaTe on behalf of The lSTaTe/respondenT. 10.Learl‘ned counsel for The accused/appellanTs have noT dispuTed The homicidal deaTh of Beniram,‘ injuries susTained by. Khemkumar as r l l. Page 6 of 20 also :The fac-fum of commission of dacoify in fhe house 0f Meenaram, Beniram & Bishesar in ‘i‘he infer-vening nighf of 30” & 31“ Ociober, 1990. They simply argued The? The prosetufion has uH'erfly failed in connecfing The accused/appellanfs wi‘l‘h fl'he dacoiii'y in quzsfion. They argued +hn+ +he S.H.O.( Police Sl'crl'ion gerla; before +es+ iclen‘lificm‘ion par‘ade goi- fhe aecusedf uppel’lun‘i‘s phoi‘ogrnphed and shown fheir pho+ographs 1‘0 The wi+ne"sses. They alslo argued l‘haf F.I.R. shows Hm’l‘ Hie accused ‘persdns were wearing monkey cap‘dl muffler and only Their eyes d face were visible, 'l‘herefore, in‘Thegrcumsi‘ances, in pii'ch of dark inT‘gTn‘ if was no‘l pessible for ‘l'he wi‘l‘nesses 1'0 iden‘l‘ify "Them. Theylalso submi'Hed Thu? in Hie FIR, descripfion & fea‘rures of The bladyiof accused persens or any o‘l'her ideniificofion mark has n01” bleen men‘lioned‘, Therefore, reliance canno’r be placed on fhe ideni‘lificaiion memo Ex.P-16 ao also on fhe evidence of prosecufion wifnesses regarding idenl‘ifica'i-ion of +he accused persons. As far as recovery of loo-red ar‘l'icles al‘ +he insl‘ahce of accusjed- persons is concerned, They argued +ho‘l‘ bo‘l‘h fhe indedendenf recovery wifnesses have Turned hos'l'ile: +herefore, recovery was also no'l es‘lablished. Moreover, The idenTificaTion of arfricles by The wiTnesses before The Execu‘five MagisTraTe was noT clonducTed properlyhThe arTicles were noT produced and goT idenfified by The wiTnesses during Trial, Therefore, by The alleged recovery of arTicles‘ The accused persons cannoT be connecTed wiTh The dacoiTy in quesTion. The TesT idenTificaTion of accused persons é: arTicles were conducTed belaTedly‘ Therefore, reliance cannoT be placed on Memos Ex.P-16,Ex.P—17& Ex.P-18. .On The oTher. hand, learned AddiTional Public ProsecuTor for The 6TaTIe supporTed The judgmen‘f of The Trial courT. .As f ‘r as firsT argumenT of learned counsel for The appellanTs is concerned, PW-32, AnThony Tirkey, ExecuTive MagisTraTe, has sTaTeidlThaT on 2.12.1990 TesT idenTificaTion parade of seven personswas conducTed by him in which 29 persons were mixed i. \_‘ or 5 W Pags 7 of 20 and The wifnesses idenfified The accused persons. Apam‘ from Hunt Padum Bai (PW—15) idenfified accused Runee’rram nlias Mm‘u & Rdmmj alias Muchchhu. He prepared The r‘epor‘l‘ Ex.P—16. In crogs-examinafion, this wi'rness has sfnfed Tha‘r ’rhere was no infofma+ion 'ro him regarding phofogmph of 'Hne accused persons. No épecific quesfion was pu‘r 1'0 1‘he Execu‘l‘ive Magisfram hy +he defence counsel Tho‘l' The accused personswere photographed i3 befére fesf idenfifica‘rion parade and fheir phafograph was shown To + e wi+nesses Perusal of iden‘r’ificaHon memo Ex P—16 shows That :T has nowhere been menTIoned ThaT aT The Time of TesT :denT‘ff‘caTlon parade The accused persons appmsed The ExecuTwe MagIsTraTe ThaT before TesT ldenTIfIcaTlon parade The S H O goT Them phoTographed and Their phoTograph was shown To The mTnesses Moreover The IrvesTIgaTmg Offleer (PW 26) m his T x ' r cross examInaTmn denied ThaT he goT The accused persons phoTographed and Thelr phoTograph was shown To The mfnesses Even Though phoTograph Ex D 1has been Tendered mTo ewdence and‘ counsel for The accused/appeHanTs argued ThaT m This pho‘Tograph The accused persons aiong wiTh S.H.O. are oisibIeJauT medely on The basis of This argumenT and evidence availabie on record iT cannoT be held ThaT The acc‘hsed persons were phdTographed and ThereafTer, Their phoTo was shown To The wifhesses. «g: l In all fairness, when The phoTograph Ex.D-1 'was Tenldered inTo evidence, iT was The duTy of defence counsel To co Tron-T The InvesTigaTing Officer (PW-26) wiTh The phoTograph by ‘osking him ThaT in ThisphoTograph his phoTo is aT such and i . sudh place and each of The accused person is aT such and such plajlce wiThouT which mere Tendering inTo evidence The phpTograph 1T cannoT be held ThaT This phoTograph is of The accused persons and ThaT The same was shown To The WiTnesses before TesT idenTificaTion parade IT has also noT been esTablished ThaT when This phoTograph was Taken. 1n order To prove The daTe d Time of phoTo, negaTive of phoTo as well as phoTographer musT have been produced. ~\ i’l Page 8 of 20 1a ‘ i 13.TesT :idenTificaTion parade and memo is noT The subsTonTive piece of evidence, such fesfs are primarily mean? For The purpose of helpir?1g The inves‘figafing agency wifh an assurance fha‘r Their progr'fess wi'fh The invesTiguTion inTo The offerme is proceeding 0n The r‘jghT lines. Simply based on The idenTificaTion memomccused persons canneT be connecTed wiTh The‘cr‘irne uniess during The course of Trial The wiTnesses idenTifies The accused persons & arTic es in The courT, ThnT is The subsTcmTive piece of evidence. The T§e5T idenTificuTion parade rriemo is prepared To ensure ThaT The uhTnesses jusT ofTer The oecurren'ce idehTified The accused persons & arTicles in The TesT idenTificaTion parade, same is admissihie under SecTion 9 of The Evidence AcT and which simpiy givesi cre‘dence To-subsTcmTive evidence of The wiTnesses, which They'deposed befone The courT, As observed by The Hon'ble Apex Cour-T in VaikunTam Chandrappn Vs. 5ToTe of Andhr-a Pradesh reponTed in AIR 1960 SC 1340 ThaT “The subsv‘anfive ew‘deneeis‘ The sfafemenf of a witness in €aurf end Me purpese of fesf fa’enfificafian fs' To fesf f/mf evidence, fne safe rule being fbaa‘ Hie deform fesi‘imany of The Mfness in Ceurf as fa The idenfify of Hie ceased Who is stranger fa nim, as a generel rule, requires corraeerah‘an in Hie form of an ear/fer iden ff icafion praceedr‘ng. If f ere £3 no subsfanh‘ve evidence abouf The appeflanr having beenjene af Hie daco/‘fs wiren P. W10 saw Them an January 28, 19453‘ fnen Hie II. parade as againsf Mm cannaf he ef nny ass'i fence f0 Me pranecuh‘on”. This principle was again reiTe’raTed by The Hon'ble Apex CaurT in The muTTer of Hasib Vs. The j5Td'i-e of Bihnr reporTed in AIR 1972 Supreme CourT 263 and iin The maTTer of MaTru alias Girish Chandra Vs. The $Tme of Ul.P. ‘reporTed in AIR 1971>5upreme Cour? 1050. e evidence of wiTnesses who were examined in The courT, PW-8 l i 14.6%uplled wiTh The‘idenfi‘fxic'lnTion .memoTif we look inTo Th l l l l N _ \TR‘ Bish‘esor, in whose house dacoiTy was commiTTecl, has sToTed ThoT in TTle mid nighT ubouT 12.00 when he opened The doors of his e, which was in The Threshing field, in order To Take ouT The“ hous I i . i xx ‘li‘ Page 9 of 20 L animhls, he saw fhn'r 8-9 persons were S‘randing (11' 1he disfance of 10—12 s1'eps from +he door, une person asked him +ha+ you are awakkning even in !u+e nigh‘r and Thereuf‘l‘er he said ‘Hm'r They wiH searéh his house. These persons caughf him and also To anofher persém namely Dindaya‘L who was in his hause. He was wearing one wa’rcih, same was snatched by one of fhe accused. From fhe rooms of his house, +he accused persons had 'Ioofed crowbons, axe, Jofhifs‘ air gun/ fape recorder and Torch. Nandu & Munnalai came and ifrmed him abou'i' “the dacoii'y in The house of Meenar and Beniam In +he fesf iden‘i‘ificafion parade he had iden'rified accue ara Daram Pune'i'ram & Radhe He ha also sfai'ed +ha+accused Puneeiram was ausg h He furfher s‘l‘a‘rd +ha++hee was lh‘l‘ n 1'he house when The accused persons en‘h e fa e wl f e e a e yiv h e e Par Bai and e ran away, buf before running away h saw Th accued persons in Te sfrf, fhey were abusin He s‘fhein The TreT ligh PW 14 Munni Bai wie of injured Khemkumar h d so ci pi dly ei ho er bi ‘ i n o gel sic h , w Th ds T h s on uTe i Ji i T iii i no am d i { bm im has e E€r lg i feied his house: a+ fhai' lim ces of fhe accusd persons ere no covred wi‘i‘h fhe mask. He idenfifid Dayaram saying him s Radhe. As per- evidenc of PW—20, Meenaram, his wife plae i sTe i Vi h o ' hug Te 9 i s h ee g. awm se T f as eposed ThaT 8 perns arryng club axe sTol and oTher dea weapons enTered Thr use afT reakng open The door The accused persons snaTched wrsTwaTch of Padumad ne oldn nose ring of her moTher—in-law. AT ThaT Time There was uffienT ligT, Therefore she as able To memorise e idenTiTy of acued persons in The ligh who are presenT in CourT. She as TaTed in Para 3 ThaT TesT idenTificaTi parade was condcd n Durg al n haT she denTfed The accused o IdiiaTi 6 brs i o persns enTfcon memo Ex P 1 ea her sgnafure aT ‘A T A c PW-15, Padumba has Tad n her edence TaT 8—9 persns enTeredTheir og‘afTer breaking open h doors,They werel carrying bomb, pisTol, laThi. ‘She has furTher sTaTed ThaT The accused persons snaTched her wrisTwaTch and golden nose ringlof her moTher-in—law. There was iighT in The house, Therl fore, she was able To memorise The idenTiTy of accused personsisTanding in The CourT. TesT idenTificaTion parade was f sd RmJ ya e s l ® Page 10 of20 canduicfed in Durg Jail, where idenfifica‘h’en memo (Ex.P-16) was prepared, which bears her signafure (11’ ‘B 1c B‘ place‘ PW-18 Khemkiumar, fhe injured wifness, has s'rafed fhm‘ 8-9 per-sons en'rer-ejd #ha house. ‘They nssauH'ed him & his brofher wifh 1‘he 'lafhi,§bu‘i They did n01“ ieave ‘i'he place, Thereafier +he uccuséd i persohs exploded ihe bomb as a resul‘ of which his younger i brofheir Bemram susfamed inJures and died He aisu susfamed mJuries. Thereaffer +he accused persons ioo‘i‘ed jeweiry of his mo‘rheh and o+her female member's 0f The family Af Thal Time Ii 9 h‘l' ”r as burnm 9 In +he house accused P ersons were weamn 9 mask 'b‘uf Them eyes and moufh were Visible PW 19 Babulal mdlcahng fowards accused Khelandas has siafed ‘I'hal excepf Khelan,dasAo+her accused persons slandmg In +he cow-f were presen’l' a‘i The lime of dacov‘l'y In cross examine-hon of “lhese wifnesses, fhe defence has noi been able To elici‘i‘ any circums‘i‘ance, which makes +he evidence of These wifnesses i Wyunreliajble or unfrus‘i'worfhy regarding idem‘ifica‘iion of “the aceuseli persons. 15.Th,e indidenf foo‘k place in 'rhe infervening nigh‘l' of 307% d 315* Ocfober, 1990, +he accused persons were arres‘l‘gd be'l'ween 17““ +0 19*WNovember, 1990, +hereaf+er wi1‘hin a period of 15 days fesf i enfificm‘ion parade was conducfed i.e. on 2.12.1990.” Therefore, from fhe da+e of eommission of offence, The TesT idenfificafion parade was conducTed wiThin a period of 30 To 33 days and This Time gapie noT much whereby The idenTificaTion can ‘ be held To be delayed. ‘l \ 16 Therefdre The emdence of above wiTnesses including The l r ewdencp of Execufive MagisTraTe inspire confidence ofTheCourT i To hold fhaT The wxTnesses wefgxeable To memorise The idenTiTy of accutsed': persons during commission aficrime in The lighT Their Cour'i' evidence regarding idenTificaTion of accused persons sfand corroboraTed by The TesT idenTificaTion parade memo Ex P 16 There isx no reason To disbelieve The evidence of These wiTnesses impiicri- reliance can be placed on The ewdence ofThese wiTnesses l i k J ¢ ‘ t v ‘ } Page 11 0f20 and fhe Trial com-1' has righ+!y held Hmf These wi'rnesses were ableVfo memorise The iden+i+y of accused per$ons while fhey were invollved in commission of ddcoifiy and murder of Benimm by exploding fhe ju‘i‘e sfring bomb. 17.As flar as second poinT argued by learned counsel for The appegianis fha‘i‘ as per FIR, fhe accused persons were wearing monk‘ey cap <Si muffler, iherefare, if was nof possible for The prosecu‘fion wiTnesses To idenTify Them is concerned, in The firs'T insTclnce in The FIR iT has been menTioned ThaT The accused persons‘were wearing monkey cap (Si muffler, buT iT has noT been i‘e menTlioned ThaT Their faces were ToTally covered, Therefore, The wiTnelsses were noT able To idenTify The accused persons. Morelovef', in cross-examinaTion of These wiTnesses The defence i l i has iTloT been able Ta eliciT ThaT The faces of accused persons l werelToTally covered, Therefore, They were noT able To idenTify Theml. In Their evidence They have sTaTed ThaT in The lighT They m; werelable To memorise The idenTiTy ef accused persons. As far as evideince of PW-18 Khemkumar in which he has sTaTed ThaT accused persons were wearing mask and onl‘yTheir eyes (Si face _ were visible is concerned, in The firsT insTaQce he has sTaTed ThaT The faces cf accused persons were apened, Therefore, iT cann T be said ThaT They were noT able To idenTify The accused persqns. Even oTherwise, wiTnesses have noT sTaTed ThaT faces of accused persons were ToTally covered. Therefore, we do noT find any subsTance in This argumenT of learned counsel for The acc‘used/appellanTs. :i 18.As far asThird orgumenT advanced by learned counsel for The accus‘edKappellanTs Tho-I- descripTion of accused persons or idenTifying marks, complefion or feaTures of The body have noT been‘ indicaTed in The FIR, Therefore, The idenTificaTion of accused persons was noT disclosed aT The eorliesT, as such The evide’nce of The prosecuTion wiTnesses do noT-inspire confidence is concerned, iT is True ThaT any idenTificaTion mark, complexion or feaTure of The body of accused persons haye noT been Page 12 of 20