A^L I H1GM COURT OF CHHATTISGARH, BILASPUR CQRAM: Hon'ble Shri Raieev Gupta.C.J. & HonLbl^Shri Sunil Kumar Sinha, J. Criminal ADpeal No. 419 of 1991 Raja alias RajendraKumar Vs, State of Madhya Pradesh (Now State of Chhattisgarh) & Connected Criminal Appedl No. 506 of1991 JUDGMENT •^ For eonsideration Sd/- SunilKsimar Sinha Judge HON'BLESHRIJUSTICERAJEEVGUPTA -} ^^ Sd/- : GSiief Justic Post for Judgment :/0/08/2010 Sd/- Sunil Kumar Sinha Judge Wt 1 HIGH CQURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J.& Hon'bleShri SunilKumar Sinha, J. Criminjal ADpeal No.419 of1991: APPELLANT RESPONDENT Raja alias Rajendra Kumar Son of BhuneshWar Prasad aged 22 years .village Kotma Thana Kotma, District Shahdol Versus State of Madhya Pradesh (Npw State of Chhattisgarh) ^ APPELLANT RESPONDENT And Criminal Appeal No. 506 of 1991 ^ Samaylal aged about 26 years son of Mahipat Gond resident of village Bahera Tola, P.S. Kelhari, District Sarguja Versus THeStateofM.P. (Now Stateof Chhattisgarh) (Criminal ApDeals under Section 374 (2) ofThe Code of Criminal Procedure, 19731 }-\ '. ADuearance:/ Mrs. U?ha Chandrakar, Advocate for the appellant rn Cr.A. No. 419/1991. ^ ^ Mr. Malay Kumar Bhaduri, Advocate for the appellant in Cr.A. No. 506/1991. Mr. Akhil Mishra, Dy. Govt. Advocate for the State in both the Appeals. . '^'i,B^ :T>^. ^-^'^ '-^. il '"'81 .^ ^p/ '-—^' Cr.A. No. 419 of 1991 &Cr.A.No. 506 of 1991 /^?(/> >, JUDGMENT ( 10.08.2010) Following judgment of the Court was delivered by Syi!i! Kumar Sinha. J. (1) Being aggrieved with the judgment dated 27.3.91 passed in Sessions Trial No. 182/89 by the Additional Judge to the Court of Sessions Judge, Surguja at Manandragarh, the appellants have filed these appeals. (2) By the said judgment, the appellants have been convicted u/s 302/34 IPC and sentenced to undergo imprisonment for life. (3) A charge-sheet u/s 302/34 IPC wasfiled against the four accused persons namely Dharampal Singh.Raja @Rajendra Kumar, Samaylal and Shivcharan.. Shivcharan was discharged by the Sessions Court and the charges were framed u/s 302/34 IPC against the remaining three accused piersons. After the trial, all the three accused persons were cnnvicted u/s 302/34 IPC. They filed their separate appeals. The two appeals, filed by accused-. Raja @ Ranjendra Kumar andSamaylal, are being disposed of by this common judgment and the third appeal, filed by accused Dharampal Singh registered as Criminal Appeal No. 707/91, has been dismissed as abated on 23 July, 2010 on account of his death 'durlng the pendency of the appeal. ^ (4); Thefacts, brieflystated, are as under:- Deceased-Krishna Kumar Sharma was a forest-guard. He has developed illicit relations with Rambai (PW-1 - resident of .village Amadamak). Accused-Dharampal has also developed illicit CrA. No. 419 of 1991 & Cr.A. No. 506 of 1991 relations withRambai (PW-1). Rambai was residing in her house along with her sister- Asha (PW-2) and Shiveharan (PW-3 husband of Asha). In the intervening night of22"d & 23rd October, 1988, the deceased visited the house of Rambai. This any how came in the knowledge of accused-Dharampal. The allegations are that Dharampal along with other co-accused persons (appellants herein) went to the house of Rambai and assaulted the deceased by danda and hands & fists. The deceased was dragged out from the house of Rambai by the accused persons and was further assaulted in their Khaliyan (threshing place) and then he was dragged to a nearby rera nala, where again he was assaulted by the accused persons. The incident was witnessed by Rambai (PW- 1), Asha (PW-2) & Shivcharan (PW-3). The case ofthe prosecution is thaton 23.10.88 at about 3.00 p.m, accused Dharampal gave merg intimation (Ex.-P/50), based on which, the First Information Report (Ex.-P/49)was registered. He simply stated that the dead body of deceased Krishna Kumar Sharma was lying near the na/a having many injuries. Recording this information, Head Constable- Ram Nagina Singh (PW-10) reached to the place of occurrence in the eveningon 23.10.88. By that time a message was sent to Investigating Officer, Sub-lnspector.S.R. Dhritlahre (PW-12), who also reached to the place of occurrence at about 10.40 a.m. on 24.10.88. The inquest was prepared and the dead body was sent for its post-mortem examination and thereafter 161 Cr.P.C. statements of above 3 eye-witnesses were recorded at about 4.00 p.m.on 24.10.88. The case of the prosecution was based on the testimonies of Ihp'above 3 eye-witnesses. The learned Sessions Judge believed the testimonies of the above witnesses and convicted and sentenced the accused persons as aforementioned. (5) Mr. Malay Kumar Bhaduri and Mrs. Usha Chandrakar, tearned counsel appearing on behalf of the appellants, argued that the teslimoniesof .the above witnesses were not reliable; they made late Cr.A. No. 419 of 1991 & Cr.A. No. 506 of 1991 disclosure to the police. They argued that the two appeilants were not known to these witnesses, therefore, a test identification parade was nocessary for the identification of these appellants. Since no such identification parade was cpnducted, dock identification of these two appellants was highly doubtful. They also argued that in appreciation of the entire evidence of these witnesses, the involvement of the present two appellants appears to be suspicious, and the Sessions Court erred in law in convicting them along with accused Dharampal. (6) On the other hand, Mr. Akhil Mishra, learned Dy. Govt. Advocate a|)pearing bn behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (7) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (8) These witnesses claimed that they saw the incident in the intervening nightof22nd &23rd October, 1988 but they did not disdose Ihis fact in the village to any other person. On 23.10.88, Head Constable- Rarn Nagina Singh (PW-10) had already reached in the village in the evening. Even at that point oftime the above 3 witnesses did not diSclose to him as to how the incident occurred. The Investigating Officer S.R. Dhritlahre (PW-.12) also reached inthe villagein the morningof24.10.88 / . and started the investigation, but the above 3 eye-witnesses didnot disc;lose the incident to the Investigating OtFfjcer for wholeofthe day and lit ahout 4.00 p.m. in the evening on 24.10.88 their 161 Cr.P.C. statemerits were recorded; They did not offer anyexplanation as to why .the.'/.aid not disclbse the incident to anybody in the vil'age forabout 2 •.fSWiWt-WlSf-w f~~«WBI»sK.I**CiitA- '^-'^'a.' ^-•^A"^ /t^ '%. sa's§l] 1 K e" '•^r'-^"- ^y '"^-S.sffi^ ^^ Cr.A. No. 419 of 1991 & Cr.A. No. 506 of 1991 *^. ^ days.In theabove background, ifwe look into the evidence of Rambaj (F'W-1), she deposed thaton the fateful day, the deceased was inside her house. At about 10-11 p.m., accused Dharampal came there and thereafter he assaulted the deceased in her room and then dragged him out in the court-yard. Shedeposed that in the court-yard, the deceased waii assaulted by Dharampal and appellant Samaylal and then he was takon to the khaliyan, where another person was also standing. He had covered himself with blanket. He also participated in assaulting the doceased and then the deceased wastaken to na/a side, where again he waii assaulted by the above three persons. In the cross-examination, she did not offer any explanation for the delay in late disclosure. She admitted that in the morning when the villageKotwar told her that somebody has committed murder ofthe deceased, she did not disclose the story to him also, and ultimately she disclosed it to the police at about 4.00 p.m. on Monday i.e. oh 24.10.88. In Para-19 ofhercross-examination, she clearly admitted that she disclosed to the police that she does not know as to who assaulted the deceased. In Para-2Q of her cross-examination, she very clearly admitted that on Monday she was kept by the police in the house of Patwari from 6.00 a.m. to 8. a.m. She further added that she does not know accused Rajendra. Even she does not know his name and she does not knowthat he is resident ofwhich village. Shefurther added that: no identitication parade was conduct in this matter. '* ." . •" • . : ' . •• ' .'.'.' -<> '• ' . , . . , • ' • ' . ; (9.) Almost similar is the evidence ofAsha (PW-2). She also deposed as PW-1 by taking the name ofaccused Dharampal only. However she ' actded that Dharampal was accompahied by two other persons,whom t) stie IdeTitified in thecourt as the two appellants herein. Shivcharan (PW- •^s ^ •63 ^.y- ^tf" ^. 'sy..:' CrA. No. 419_Qf 1991 & Cr.A. No. 506 of 1991 <3) 3) has also deposed that Dharampal came to the house of Rambai. He assaulted the deceased. Dharampalwas accompanied by another person who was standing in the court-yard. When the deceased was dragged by Dharampal in the court-yard, the person accompanying Dharampal also assaulted the deceased q.nd thereafter the deceased was taken to khaliyan, where another person was standing and he also participated in assaulting the deceased. He also identified the two appellants for the first timfi before the court. (10) Even if we ignore the factum of late disclosure by the above 3 witnesses, we find their evidence intact against accused Dharampal only. Dhsirampalwas previously known to them. He was regularly visiting their house and allthe eye-witnessesdeposed that he came to the house of Rarnbai (PW-1) in the intervening night of22nd & 23rt October,1988 and assaulted the deceased. Though it comes in the evidence of eye- witnesses that the other two accused persons who accompanied Dharampal in the court-yard and in the khaliyan, were the two appellants before us, but the evidence regarding their identity appears to be doubtful. These appellants were not known to the witnesses. Rambai (PW-1) clearly deposed that she did not disclose the names of the accused persons tothe police in her 161 Cr.P.C. statement. Theother2 witnesses had also 'not disclosed the names of these appellants ahd the / ' ! ' - appeNants were identified by them in the court. We note that it was the incidentof October, 1988 and the evide&ce of these witnesses were recorded on 3.7.90. Therefore, we doubt that in such circumstance, they would be able to identify the persons accompanying accused Dhrampl aftQr:such a long period, specially when itwas the incident of dark-night '»?•';_. • . " • . ; . A Cr.A. No. 419 of 1991 &Cr.A. No^.506 of 1991 and one of the assailant wassaid to have covered his body by a blanket. The statement of a witness made in the court regarding identification by him of an accused is substantive evidence and the evidence of identification in the test • identification parade (T.I.P.) isonly a corroborative evidence. Ifa-witness identifies the accused in courtforthe firsl time after a long time, the probative value of such uncorroborated evidence becomes minimal, so much so that it becomes unsafe to rely on such piece of evidence. But ifa witness has known an accused earlier in such circumstances which lend assurance to identification by him in courf and if there is no inherent improbability or inconsistency, there is no reason why his statement in court about the identification of accused should not be relied upon as any other acceptable but uneorroborated testimony. This is what the Supreme Courtsaid in Ronnv alias Ronald James Alwaris. etc -Vs-Stateof Maharashtra. AIR 1998 SC 1251. (11) Therefore, the law is well settled that identification of an accused in court is the substantive evidence of theperson identifying and his earlier. identification in a T.1. parade corroborates the same and the admissibility of evidence of dock identification is never affected for want of a test identification parade(T.I.P.) to be conducted during the course of inveistigation. -(12) Inth^ pfesent case, where the witnesses were not knowing the appellants and according to their version,,they sabi them in the dark-night at.about 11-11.30 p.m. in the month of October and they deposed that one of the assailant had eovered his body by the blanket and it was an admitted position that the two appellants j whom they identified in dock "-.wefe, riot the .residents of their village, we do not find it safe to rely on the Gr.A. No. 419 of 1991 & Cr.A. No,506 of 1991 testimonies of the above eye-witnesses so far as identificationof the two appellants are concerned. It is not the case that the eye-witnesses had occasion to interact with these assailants or in any other manner they had an opportunity to observe'their features which had helped them to identify in the court. (13) For the foregoing reasons, we hold that the prosecution has failed to establish, beyond all reasonable doubts.the complicity of the two appellants in commission of murder of deceased Krishna Kumar Sharma and their conviction cannotbe sustain^d. (14) In the results, the appeals are allowed. The conviction and sentences awarded to the appellants u/s 302/34 IPC 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/- [ CSiiefJustic Sd/- Sunil Kumar Sinha Judge K