in.iui..>i, ^s^ .'.5s\\' r. HjGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.N. CHANDRAKAR, JJ. Criminal Appeal No.212 of 2006 Santosh Shrivas and another - Versus - State of Chhattisgarh JUDGIVIENT FOR CONSIDERATION Sd/- T.P. Sharma Judge HON'BLE MR. JUSTICE R.N. CHANDRAKAR e^o\}^-e^— <7 Sd/- R.N. CHANDRAKAR. Judge Post for pronouncement of judament on "3 o June,2011 Sd/- ^-6-2011 HIGH COURT OF CHHATTISGARH. BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.N. CHANDRAKAR, JJ. APPELLANTS: (In Jail) RESPONDENT: Criminal Appeal No.212 of 2006 1. Santosh Shrivas, S/o Shri Kanhaiya Lal Shrivas, Aged about 23 years. 2. Purshottam Gadaria, S/o Shri Shiv Chandra Gadaria, Aged about 19 years. Both are residents of Village Mopka, P.S. Sarkanda, Bilaspur (C.G.) Versus State of Chhattisgarh, Through Police Station Sarkanda, Bilaspur (C.G.) {Criminal appeal underSection 374 (2) ofthe Criminal Procedure Code} Present: Mr. G.S. Ahluwalia, counsel for the appellants. Mrs. Madhunisha Singh, Panel Lawyer for the State/respondent. JUDGMENT ( ^g June,2011) The followina iudament of the Court was delivered by T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 27-2-2006 passed by the 1 Additional Sessions Judge, Bilaspur, in Sessions Trial No.150/2005, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of culpable homicide amounting to murder of Naresh Pandey and committing robbery, convicted the appellants under Sections 302 & 392 of the IPC and sentenced them to undergo imprisonment for life & pay fine of Rs.200/- each, in default of payment of fine to further undergo Rl for three months and to undergo Rl for seven years & pay fine of Rs.200/- each, in default of payment of fine to further undergo Rl for three months, respectively. 2 (^\) 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellants, and thereby committed illegality. 3. As per case of the prosecution, on 29-12-2004 Kum. Rajeshwari Dewangan (PW-5) having intimacy with Naresh Pandey (since deceased) was going towards Village Mopka by motorcycle, at about 7.30 p.m. two unknown persons came by motorcycle, they demanded money from these two persons on the ground that they have come there for illicit purpose and they also threatened these two persons that they will produce them before the police. Thereafter, at the instance of one accused, second accused assaulted Naresh Pandey by stick over his head three times. Naresh Pandey fell down and became unconscious. Bodyof Naresh Pandey was stained with blood. The accused persons assaulted Naresh Pandey, took out some papers from his pant and fled away from the spot. Kum. Rajeshwari Dewangan (PW-5) cried for help and called the persons going by motorcycle on the road on which two persons came, they introduced themselves as police and took Naresh Pandey to CIMS, Bilaspur where he was admitted. At the time of incident, she has seen the miscreants and has informed their description to the police. The factum of incident was intimated to brother of Naresh Pandey who lodged dehati nalsi vide Ex.P-10 on 29-12-2004 at 8.30 p.m.. Injured Naresh Pandey was examined by Dr. S.K. Mishra (PW-3), the then CMO, CIMS, Bilaspur, who noticed lacerated wound over right knee with active bleeding and multiple bruises over waist. Condition of Naresh Pandey was serious, he was immediately admitted in the Surgical Ward and advised for C.T. scan and X-ray vide Ex.P-8. During the course of treatment, Naresh Pandey was examined by Dr. Sunil Sharma (PW-20) vide Exs.P-26 & P-27 and during the course of y L-c:%p]?3il ^^^^ n s ~*s/'' ""!>aan ^)/ treatment, Naresh Pandey died. Death of Naresh Pandey was intimated to Police Station Sarkanda, vide Ex.P-16. Merg was recorded vide Ex.P- 15. The Investigating Officer left for hospital and after summoning the witnesses vide Ex.P-13, prepared inquest over the dead body of the deceased vide Ex.P-14. Dead body was sent for autopsy to CMO, CIMS, Bilaspur vide Ex.P-18A. Dr. Vinod Kumar conducted autopsy vide Ex.P-18 and found following injuries: - (1) Abrasion of 2 cms. over right knee. (2) Abrasion of 4 cms. over left side of face. (3) Abrasion over left part of head. (4) Abrasion over left ear. (5) Abrasion over left shoulder of 3 c.m. x 1 .5 c.m. (6) Bruises over left hand, right hand and right knee. (7) Left parietal bone was found fractured. (8) Brain was congested. Mode of death was coma. During the course of investigation, one motorcycle belonging to deceased Naresh Pandey was seized vide Ex.P-11. FIR was lodged vide Ex.P-22. Spot map was prepared vide Ex.P-24. During the course of investigation, appellant Santosh Shrivas was taken into custody, he made discloser statement of two sticks, purse and currency notes vide Ex.P-1 and same were recovered at his instance vide Exs.P-3 & P-4. Appellant Purshottam also made discloser statement of currency notes and paper cutting vide Ex. P-2 and same were recorded at his instance vide Ex.P-5. Identification parade was conducted vide Ex.P-9 and both the appellants were identified by Kum. Rajeshwari Dewangan (PW-5). 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Couri: ofAdditional Chief Judicial Magistrate, Bilaspurwho committed 1^ g. the case to the Court of Sessions Judge, Bilaspur, from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused, the prosecution has examined as many as nineteen witnesses. The accused persons were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge, convicted & sentenced the appellants in the aforesaid manner. 7. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 8. Learned counsel for the appellants vehemently argued that conviction of the appellants is substantially based on evidence of Kum. Rajeshwari Dewangan (PW-5) and her evidence relating to identification of the appellants. Initially, the offence was committed by unknown persons and on the basis of test identification of the appellants by Kum. Rajeshwari Dewangan (PW-5), the appellants herein have been implicated in the crime in question. Learned counsel further argued that evidence relating to identification of the appellants does not inspire confidence and it is not trustworthy. Kum. Rajeshwari Dewangan (PW-5) was not having opportunity to see the appellants at the time of incident on account of darkness, the appellants were previously not known to her and she has not given detailed description ofthe appellants prior to test identification, she has seen the photographs and the accused in police custody and on the basis of such photographs and opportunity, she has formally identified the appellants as miscreants. Except the evidence of Kum. Rajeshwari Dewangan (PW-5) relating to identification, the prosecution has not collected any evidence against the appellants. In absence of credible and clinching evidence, conviction & sentences of the appellants are not sustainable under the law. Test identification has been conducted after lapse of considerable delay which is also fatal to the prosecution. Learned counsel also argued that there is contradiction between ocular and medical evidence, even there is inconsistency between the two medical evidences. 9. Learned counsel for the appellants placed reliance in the matter of Budhsen and another v. State of U.P. in which the Supreme Court has held that "facts which establish the identity of an accused person are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is a statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to t'nem, in the form of earlier identification proceeding". Learned counsel further placed reliance in the matter of Satrughana alias Satrughana Parida and others v. State of Orissa in which the Supreme Court has held that unexplained delay in holding test identification parade 1AIR 1970 SC 1321 21995Supp(4)SCC448 ^ .^'" ^-;'^ "•& f .f:-~is^. ''%., r /f'- "^:s. ''% ^ '^i.-.'^'y ^ adversely affects the value of evidence of identification. Learned counsel also placed reliance in the matter of Rajesh Govind Jagesha v. State of Maharashtra in which the Supreme Court has held that in case of specific description like beard and long hair of the miscreants, identification of person not having beard and long hair, in absence of inclusion of persons of such specification and also inordinate delay in conduction of identification parade, evidence of identification is not safe to rely. Learned counsel relied upon the matter of Shyam Singh & Anr. v. State of U.P. in which Division Bench of Allahabad High Court has held that identification parade conducted after 35 days of arrest of the appellant and in absence of proper care to ensure that identity of the appellant was not revealed when they were produced in court, reliance on aforesaid evidence of identification is not safe. Learned counsel further relied upon the matter of Ravi @ Ravichandran v. State Rep. by Inspector of Police in which the Supreme Court has held that in case of FIR against unknown persons, identification parade should be held as early as possible and conviction cannot be based on vague identification. 10.0n the other hand, learned State counsel vehemently opposed the appeal and submitted that conviction of the appellants is substantially based on evidence of Kum. Rajeshwari Dewangan (PW-5) before whom the appellants have assaulted Naresh Pandey by stick. Kum. Rajeshwari Dewangan (PW-5) was having ample opportunity to see the appellants, initially4he appellants have not caused injury to Naresh Pandey but after conversation they demanded money, they threatened both the persons and then they assaulted Naresh Pandey on which Naresh Pandey fell down, thereafter they took out purse and papers from 3 2000 Cri. L. J. 380 (SC) 4 2003(1)crime8 89 5 2007 Cri. L. J. 2740 (SC) / / f! •uoiinoesojd eLitp.tieqeq uo psonppe souapiAa aL|} psuiaiexs SABLI QM 'saiyed SL|I ^o ^eqeq uo peoueApe stuaainBje 9qt a}ep9jdde 0} jepjo ur 1.1. •p|eq ueeq seL) epejed uoiieoyjtuep] }S3} ou i\ ueAe )e paMjje eq ueo uoitoiAuoo p )uauj6pnf e pue pnoo 94) ui epeiu euo 94) si pesnooe ue ^o uoiteoyiiuepi ^o eouapiAe eAiiuetsqns eq^ '(ejdns) lAey ^o jeueLU ei^) ui pnoQ eLuejdng eq) Aq p|eq se }Bqi peiiiujqns jaLfynj |asunoo 9ie}s psujea-i •jauueiu piesejojE eqi ui s}ue||adde SL|I psoueiuss '§peioiAuoo seq ijnoo |BUt 941 'pjooej uo eiqeiiBAB eouepiAe p uoiteioejdde jeyv 'uoi^sanb uj saiuo sq) q^iM s}ue||9dde aqi spauuoo OS|B qoii^M siuB||9dde eq} 0104 peziss ueaq SBL| stue||3dde 9qi Aq pssesoap 041 p te^ood eL|} 0104 U3i\e} Buiuno jeded SUQ 's}ue||adde eqi ^o uoipiAUOo jo^ A[9j o) e^es pue AqpoM}snji si ti 'aouapyuoo sejidsui (s-AAd) ue6ueM3a ueMqssfey 'Lun>| p souspiAg 'uojieoyituap! >|oop ui AtiLUjyui Aue si sjeqt }BL|} jo uoiteoyituepi ^joop ui stue||9dde eq^ peyiiuepi tou seq sqs teqi MOL|S G} ss9U)iM siqi 0} pa)ss66ns ueaq seq Ouiqtou 'eseo )uesejd 9qi u| 'oouapiAS |B!}UB}sqns e si (Jnoo aqi ui suosjed pesnooe p uoiteoi^uap! •8'] uoiiBo^uapi >|ooa 'pnoo SL|) ui stueiiedde eqt p uoiteoyituspi JQ |eut aqi SIBIIIA }ou ||IM uopoijituep! ui A}ue|n6ajJ! Aue pue uoiioejip (q6u ui uo BuioB si uoiieBitsaAui eqi ^eqi ajnsus o) A|UO si uo^eoyiiuep! }S9} jo oouapiAe 'esiMjeqio UBA^ -AqiJOMisnj) si }\ pue eouepyuoo sajjdsui sseufiM siqi p uoiieoyituep! p eouspiA^ •stue||3dde aq} p Ai^uspi eq} ie6joj JO SSILU 0} JSL| JO^ eiqissod IQU SBM }; 'ejopjeqi 's^i jeq p >|su sem ajaqi pue soe|d A|euo| e ui auoie SJSM Aepued qsejBN '? 3i|s uei^M jsq jo^ tU9A9 jofeai e SBM i| 's}UE||edde aqi peyitusp] seq eqs 'Aiiunjjoddo piesajo^e jo siseq SL|( uo pue SLUII 6uo| JQJ punos pue JSUUBLU jiaqi q3)BM 01 'pnpuoo jieq} qo}BM 0} 's)UB||edde eq} ees 0} Afiuntjoddo lueioiyns 6uiAeq SBM SSSUIIM siqi 'Aepued qsajeN io is^ood aq} L :^! 12.1n the present case, homicidal death of deceased Naresh Pandey as a result of fatal injuries found over his person has not been substantially disputed on behalf of the appellants, even otherwise, it is established by evidence of Dr. A.P. Rai (PW-15), autopsy report Ex.P-18, evidence of Dr. S.K. Mishra (PW-3) and injury report Ex.P-8 that death of deceased Naresh Pandey was homicidal in nature. 13.As regards complicity of the appellants in the crime in question, conviction of the appellants is substantially based on evidence of Kum. Rajeshwari Dewangan (PW-5) who has deposed in her evidence that on the fateful day while she was going with deceased Naresh Pandey by motorcycle and when they were near Mopka, two unknown persons came, they were holding stick, they introduced themselves as police personnel and demandedmoney and also threatened that they will take them before the police. Both the unknown persons caught hold of her (this witness) and tried to take her towards the field on which Naresh Pandey tried to rescue her whereupon they abused Naresh Pandey. One out of the two miscreants directed the second miscreant to kill Naresh Pandey, then the second person assaulted Naresh Pandey by stick over his head and caused repeated injuries, thereafter the first miscreant also assaulted Naresh Pandey by stick over his head & leg. Naresh Pandey fell down on the land, he was notin a position to talk and his body was stained with blood. The miscreants removed some papers from the pocket of Naresh Pandey and fled away from the spot. She requested the persons passing on the road for help on which two persons came and introduced themselves that they are police persons and they took Naresh Pandey to CIMS, Bilaspur for treatment. After some time she identified the appellants vide Ex.P-9. / // /''~~~:' ''^, 3 f*..^-'?"""*, ti •'®S?^'^:i^^.\ '^ ^^ '^h,. ''^'.^' i^n 14.As per case of the prosecution, the incident took place on 29-12-2004. FIR was lodged against unknown persons. Both the appellants were taken into custody on 30-1-2005 vide Exs.P-6 & P-7 and their memorandums were recorded vide Exs.P-1 & P-2. Injured Naresh Pandey died during the course of treatment on 3-1-2005. He was unconscious during his treatment. Therefore, after arrest of the appellants and before the death of Naresh Pandey, Naresh Pandey was not in a position to identify the appellants or the miscreants. In these circumstances, only the evidence of Kum. Rajeshwari Dewangan (PW- 5), who was present on the spot for long time, remains for consideration. 15.1dentification parade has been conducted on 18-3-2005 in Central Jail, Bilaspur vide Ex.P-9, after 2 months 18 days of arrest of the appellants. As per evidence of S.S. Dubey (PW-4) - Executive Magistrate, he has conducted test identification parade inside the jail, seven other persons have been added in the test identification parade in which Kum. Rajeshwari Dewangan (PW-5) has identified the appellants by putting her hand over their head. In his cross-examination, he has admitted that he has not obtained signature ofanyjail authority. He has also admitted that he has not mentioned in Ex. P-9 relating to order of persons at the time of identification, he does not notice any mark on face of the appellants and, therefore, he has not mentioned the aforesaid facts in the test identification memo Ex.P-9. He has deposed in para 4 of his cross-examination that he has complied the necessary point of test identification. 16.As regards the question of identification, Kum. Rajeshwari Dewangan (PW-5) has deposed in para 5 of her evidence that she was called for identification, she went inside the jail where she identified both the appellants amongst other persons, faces of the persons placed for 10 identification were visible and remaining portion of the body was covered. In para 13 of her cross-examination, she has admitted that on 5 of January, 2005, 12 persons were inside the lockup whom she had seen and on being asked she told the police authorities that miscreants were not amongst the aforesaid 12 persons. She has denied the suggestion that she has wrongly identified one person. She has specifically deposed that she has told to the police officer that she will identify the miscreants. She has further admitted in para 1 3 of her cross- examination that photographs of the miscreants were published in the newspaper and she has also seen the photographs of the miscreants whose heads were covered. She has denied the suggestion that she has seen the photographs of the miscreants whose heads were not covered. She has specifically admitted in para 14 of her cross- examination that after 2 % months of the incident she was called by the police for identification. She has further denied the suggestion that the police has shown her photographs before identification. She has given detailed description relating to identification in para 14 of her cross- examination. In para 15 she has specifically admitted that she took 5-7 minutes for identifying the miscreants and after 5-7 minutes she came out. In para 18 of her cross-examination she has admitted that at the time of incident there was darkness and it was not possible to identify within a distance of 1 % ft.. 17.There are contradictions and offlissions in her Court evidence and statement recorded by the police under Section 161 of the CrPC as Ex.D-2. In Ex.D-2 she has stated that out of two accused persons one was dark in colour, thin body and was wearing grey colour jacket with chain. Her detailed evidence reveals that she was having intimacy with deceased Naresh Pandey, both the persons were having love and .^'- -Cf c. 11 affection between each other and they were talking in lonely place where the incident took place. But she is an unmarried lady, inter alia, deceased Naresh Pandey was married person and, therefore, she has tried to save herself by answering the question put to her by saying that she was not having any intimacy or affection with the deceased. The incident took place at 7 p.m. in the month of December. Much stress has been laid by the defence that in the state of darkness it was not possible for the witness to identify the miscreants. Only on the ground of darkness, the factum of test identification or dock identification is not safe to rely. The police has recorded her statement Ex.D-2 on 7-1-2005 within eight days of the incident. As per the material collected and evidence adduced on behalf of the prosecution, she was present on the spot, she visited up to CIMS, Bilaspur with injuredNaresh Pandey and police were presentin the hospital, but during the aforesaid period her statement was not recorded, may on account of seriousness of the injured. She has substantially supported case of the prosecution. The alleged contradictions and omissions in her statement recorded under Section 161 of the CrPC and evidence before the Court are trifle in nature. There is no contradiction and omission in material particulars. 18.Kum. Rajeshwari Dewangan (PW-5) has categorically deposed in her evidence about the details of incident like where they were standing, how many persons came, what weapons they were holding, what they asked and what Naresh Pandey replied. The incident of holding her by two persons and taking towards the field; attempt of Naresh Pandey to rescue her; abusive language used by the appellants; request of Naresh Pandey; discussion of both the appellants and causing injury by both the appellants; result of injury over the body of Naresh Pandey that he was agonizing; falling down of Naresh Pandey; dress i.e. jacket of grey colour '/ / •Vs" ! P^ ^ •^'/ "•'•C'c-a-S!!*" 12 r~/'~^ {[0\/ with chain which one of the accused persons was wearing, his status of health, body colour and the fact that he was thin, show that she was having complete and full opportunity to see the miscreants and to watch their conduct & behaviour. Even she has seen the body colour of one of the miscreants, colour of his cloth and the fact that one was lean and thin. The weapon which they were holding and part of body on which they have caused injury, result of injury i.e. Naresh Pandey was agonizing and falling down of Naresh Pandey on the floor, show that she has seen the incident within close distance which was visible. It was a major/mega incident for her in which particularly, she lost her affectionate person whom she was loving, and her life was almost in danger, but some how she saved herself from life. As suggested by the defence in para 13 of her cross-examination, she has specifically admitted that twelve persons were shown by the police on 5-1-2005 and amongst the said twelve persons the miscreants were not present, thereafter, she has seen the head covered photographs of the miscreants which means that she has not seen the photographs of the face of the miscreants before such identification. After 2 1/2 months of the incident she was called inside the jail where she has identified two miscreants on the basis of theirface. 19.The purpose of test identification is to ensure the fact that the investigation is going on in right direction and to ensure that whether the persons before whom the incident took place are able to point out and identify the miscreants. Evidence of identification in Court i.e. dock identification is a substantive evidence. 20.Dock identification i.e. identification in the Court is substantive evidence for establishing the identity of the accused/appellants. Evidence of test identification can be used to corroborate the substantive evidence given 13 by the witnesses in the Court regarding identification of the accused. The object of the test identification is to make aware and give assurance to the Investigating Agency that the crime in question has been • committed by the person whom the complainant has identified in the test identification and on the basis of such test identification the investigating agency may proceed further against such person. But if identification of the accused is otherwise established i.e. from circumstantial evidence, statement given by the complainant or the person who saw the accused in the court, physical appearance of the accused or because of sufficient opportunity available to the complainant of seeing the accused, it can safely be relied by the Court and in that case absence of test identification or any infirmity in the same, will not make the substantive evidence infirm and unreliable. 21.While dealing with the question of identification, the Supreme Court in para 17 of its judgment in the matter of Ravi (supra) has observed thus, "17. It is no doubt true that the substantive evidence of identification of an accused is the one made in the court. A judgment of conviction can be arrived at even if no test identification parade has been held. But when a First Information Report has been lodged against unknown persons, a test identification parade in terms of Section 9 of the Evidence Act, is held for the purpose of testing the veracity of the witness in regard to his capabiiity of identifying persons who were unknown to him. The witnesses were not very sure as to whether they had seen the appellant before. Had the accused been known, their identity would have been disclosed in the First Information Report. PW-1 for the first time before the court stated that he