,-' ...

BRIJ MOHAN AND ORS.

A v.

STATE OF RAJASTHAN

DECEMBER 16, 1993

[DR. A.S. ANAND AND N.P. SINGH, .JJ.] B

,. .

Indian Penal Code-Ss.394, 450 ahd 397/ 149 of the l.P.C.

Identification of witnesses in incidents at night-source of lighHield not an infimiity initiating the evidence of the Witnesses. c

Test identification-Necessity of promptness-Held : Test identification should be held promptly after the arrest of the accused to lend i~ sanctity.

Death sentence-Principles for imposition-On facts sentence of death D not warranted.

In an armed robbery at village B at about 1 A.M. at night there were assaults by lathis and pharasies as well as firing of gunshots, leading to 4 deaths. The culp!''ts thereafter decamped with several household goods and currency notes. There were five eye-witnesses who deposed in respect E of the occurrence. About a month later in another encounter with dacoits in another district the police arrested six person including the Appellants.

Thereafter the S.H.O. investigating the incident, onreceipt of information from the S.H.O. of the other district arrested the 4 accused and a day later .. the test identification was conducted by the Judicial Magistrate and eleven ' witnesses correctly identified the Appellants. Some robbed goods were a(so F seized from the house of one of the accused. The trial Court convicted the accused and sentence them to death and the High Court affirmed the conviction of the appellants and the seqtence of death under s.396 of the Indian Penal Code. Hence this appeal. '

Dismissing the appeal but modifying the sentence from death to life. G

imprisonment, this court

HELD: 1. The non-disclosure in the F.I.R. of the source of light for identification of accused in the electric light at night ls not an infirmity vitiating the evidence of the eyewitnesses of the incident. [984-A] H 979

2. The plea of false implication and the sighting of the accused by the witnesses prior to the test identification cannot be accepted on account of the fact that the test identification was conducted on day following the arrest by the SHO belied the claim of the unfairness of the identification parade. Once there is suspicion by the investigating officer about the

B accused's involvement with a particular dacoity, the accused should be put up for identification without delay to give sanctity to tht test identification.

In respect of a gruesome and cruel assault causing 4 deaths, 3 moth time was not long enough to erase the facial impression of the accused In the

minds of the eye witnesses. [98SFH, 986A] c 3, The•peculiar facts and circumstances at the case would take at out of the purview of the rarest of the rare cases warranting the Imposition ot a death sentence. [987-G]

Bachan Singh v. State of U.P., AIR (1980) S.C. 898, relied upon.

D CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 245-246 of 1991.

, From the Judgment and Order dated 20.4.90 of the Rajasthan High Court in Crl. A No. 453 and Crl. Murder Reference No. 3 of 1988

E R.K. Garg, P.K. Dey and Ms. Rani Jethmalani for the Appellants.

Sushil Kumar R. Sasiprabhu for the Respondent . .

The Judgment of the Court was delivered by

F N.P. SINGH, J. The three appellants, Brij Mohan, Gulla and Barchia, were convicted under sections 396, 397, 450 and 397/149 of the Penal Code by the learned Additional Sessions Judge, who passed sentence of death under section 398 against each of the appellants and various terms of imprisonment under the remaining sections. The High Court confirmed

G the conviction and the sentence against each of the three appellants, including the death sentence. On basis of leave granted by this Court the appellants have questioned, the legality of their conviction and sentence.

The prosecution case is that Chiranji Lal (PW-7) and the inmates of ..

his family were sleeping in their house in the night between 11th and 12th H October, 1983 in village aswa. At about 1.00 A.M. Chiranji Lal heard the

.....

DRU MOHAN v. STATE OF HARYANA [N.P. SINGH, J.) 981 -- ladies of his family weeping and crying. He came in his courtyard and saw Atwo or three persons giving blows to Smt. Gora (PW-6) and Smt. Guiab (deceased). The culprits also gave blows to Chiranji Lal (PW-&). In the meantime his brother's wife Smt. Saroj (PW-8) came to help them and she was also given blows. Some of the culprits were standing outside the house.

One of them fired a gun shot. Hearing the gun shot, Mool Chand B {deceased) rushed to the house of Chiranji lal (PW-7). The culprits assaulted him with Pha.rsies and Lathies. Panna Lal (deceased) whose house ,. was also near the house of Chiranji Lal also rushed to the spot and he was shot dead by the persons, wJ:io were standing outside the house, Smt, Shak\lntla {PW. 4) was also assaulted and beaten when she tried to resist the culprits. Bhetu Lal (deceased) whose house is also situated nearby c Cdlc beat the house of Chiranji Lal and one of the culprits shot at him causing bis death on the spot. The culprits thereafter decamped with tin boxes, suitcases, containing clothes, silver and gold ornaments, utensils and currency notes.

R.am Swroop (PWl), the brother of Chiranji Lal, who had also D <.

tushed to the spot hearing the gun shots, saw six or seven persons going towards the Nallah with bags, boxes and guns in their hands. He found Moot Chand, Panna Lal, Bheru Lal, Smt. Guiab, Smt. Gora(PW-6), Chiranji Lal (PW7), and Smt. Saroj (PW~) lying injured. He immediately

rusd to the police outpost and lodged a report' (Ex:.P-1) at about 2.15 E AM.. The police Bandikui registered a case on the basis of the said statement, Jai Singh (PW-34) arrived at the spot and inspected the site.

The injured persons were sent to the Government Hospital, Mool Chand, Panna Lal, Bheru Lal and Smt. Guiab were declared to be dead. The post .• mortem examination on the dead bodies '>f Panna Lal and Bheru Lal was F conducted by Dr. B.S. Thakuria (PW-15), who was of the opinion that the death was cause due to gun shot injuries. The post mortem examination of Smt. Guiab and Mool Chand was conducted by Dr. P.S. Agrawal (PW-19).

He noticed multiple ante mortem injuries on the dead bodies and according to him, the cause of death was the fracture of skulls. The investigating G officer found six fired 12 bore cartridges lying scattered. He also noticed foot impressions around the place of incident, on basis of which he got prepared moulds of the footprints. Smt. Shakuntla (PW-14) filed the list of looted properties, Chiranji Lal {PW-7) also gave the list of the stolen properties. The investigation continued but no clue could be found.

A _On 15.11.1983, Shashi Kant (PW-16), the then Station House Officer (hereinafter. referred to as the 'SHO'), Kherli, Alwar, had m encounter during the night near a hillock with some dacoits and after exchange of gun shots he arrested six persons - four men and two women. The four men, ·.who were arrested after an encounter, were the appellants Brij Mohan, Gnlla, Barchia and Nahar Singh who died during trial). After the arrest, B . on search, country made pistol, some fired and live cartridges, one barrel of 12 bore gun, apart from Clothes and silver ornaments were found in possession of the appellants. For that a separate case was registered and investigation proceeded. However, as the '11Dau opemrr&. of the dacoities . committed in the instant case at Baswa and in the case pending at Police C Station, Kherli, was common, the SHO, Shasbi Kant (PW-16) addressed a letter (Ex.P- 36) on 27.11.1983 to the SHO, Police Siation, Bandikui and sent under sealed packet the articles recovered from the accused persons at the encounter by police Kherli, Ram Kripal (PW-37), the SHO, Poiice Station Bandikui, who had taken up the investigation in respect of the D instant case went to District Jail, Alwar, on 12.1.1984 and arrested the

appellants' and Nahar Singh aforesaid and bought them to Bandikui Sub Jail on 13.1.1984 .. The test identification of these appellants along with Nahar Singh (deceased) was arranged on 13.1.1984 itself. The test identification was conducted by the Judicial Magistrate, Shri O.P. Gupta (PW- 17). At the said test identification, eleven witnesses correctly identified E these appellants. •

Consequence to information furnished by the accused persons, while they were in police custody, on 19.1.1984, some clothes, utensils and gold and silver ornaments looted in the dacoity at Baswa were recovered which . . F had been kept hidden and concealed in the house of the appellant Barchia •

. The specimen moulds of the footprints of the appellants were taken, were

5ent along with the footprints lifted from the place near the oence, for examination to the finger Print Bureau, Jaipur. On examination, it transpired that both the footprints tallied with each other. The six empty . cartridges lifted from the place of occurrence at village Baswa were found G to have been fired from.the pistol and barrel of the S.B.BL. gun recovered from the appellants in the encounter on 15.11.1983. The Trial Court convicted the appellants under different sections of the Penal Code

~-referred to above .and sentenced the appellants to death, as already mentioned, for offence under Section 396. The conviction and sentence of the H appellants were confirmed by the High Court, which is being questioned,

BRU MOHANv. STATEOFHARYANA[N.P. SINGH, J.j 983

in the present appeals.

Mr. Garg, appearing amicus curiae for the appellants, first challenged the claim made by the witnesses, that they had identified the appellants, during the occurrence as well as at the test identification.

According to him, as the dacoity was committed during the night in a B house, unless it is established on basis of reliable evidence that there was some source of light in which the witnesses could have identified the culprits, any claim of identification of the culprits by the witnesses should not be accepted, especially, when in the first information report as well as in the statements recorded during the investigation, no source of light was disclosed. It cannot be disputed that in cases relating to dacoity, the C identification by the witnesses is the main evidence, as such the prosecution has to satisfy, that the witnesses were in a posit!on to identify the culprits, during the commission of the dacoity. This claim is later tested at the test identification, which although not a substantive evidence but is a made to verify the claim of the witnesses before they identify the accused persons D in Court. Any such claim that the witnesses identified the culprits during the commission of the crime, has to be examined by the Court with reference to the circumstances of the particular case. The Court has to be satisfied that there was not only ample opportunity for the witnesses to identify the culprits but they had identified them with the help of some light either in the house or outside.

In the present case, all the witnesses have asserted that electric light was there in the house, as well as on the road, when the dacoity was committed. The Trial Court as well the High Court had dealt with this aspect of the matter in detail. The factum of there being electric connection F in house and on he road was not challenged on behalf of the appellants before the Trial Court. Only a suggestion was given that during the commission of the dacoity there was no supply of the electricity. Apart from a suggestion, there is nothing on the record on the basis of which it can be held that although the village had electric connection and electric light was in the house, but just at the time of commission of the dacoity there was a G power failure. The claim of the witnesses regarding identification of the culprits in the electric light, cannot be rejected merely on the ground that this fact was no mentioned in the first information report or in the statements made during investigation. It appears that as the village had e~ in the houses and on roads, the informant as well as the witnesses H

SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R. .. -- A proceeded on the assumption that they were not required to disclose the means of identification by them because that was not at all a relevant fact, necessary to be mentioned, in the first information report or in their statements before the police. In ~Hages whre there is no electricity and a claim is made regarding identification of the culprits during commission of ·

B dacoicy; witnesses are expected to disclose the source of light by which they •

have identified the culprits during the night.

It was then urged that the SHO, Kherli, Alwar, who arrested these 4-,.

appellants in an encounter on 15.11.1983, got them falsely implicated even c in the present case, by writing the aforesaid letter dated 27.11.1983 to SHO, Police Station BandikUi. It was also suggested that before the test identification was held on 13.1.1984, the appellants were shown to the witnesses.

Reference was made to suggestions given to the witnesses that they were made to identify the appellants, before they were put up for the test , identification. This has .been always a group in dacoity cases to challenge D the identification by witnesses at a test .identification by claiming that the police officer had shown the suspects to the witness before they were put up for test identification. Before accepting the identification by the witnesses at a tell: identification, the Court has to first consider the objection to such identification. Although, this task is not very easy, but the Court

E has to examine on the basis of the materials on record as to whether actually the suspects, who were to be put up for test identification, had 8lready been shown to the witnesses. In the instant case, it is an admitted position that SHO, Police Station, Bandikui, went to District Jail, Alwar, on 12.1.1984 an~ tocik custody of the appellants in connection with the present case and brought them to Bandikui and lodged them in Sub-Jail F on 13.1.1984. Same day, the test identification was held in the presence of the Judicial Magistrate, Shri O.P. Gupta (PW-17}, in which as many as 11

J.....

person from Baswa participated and they correctly identified the appellants, although they had bee_n mixed up with 11 others at the time of the test identification. If the SHO (PW-37) wanted to first get the appellants

G identified by the witnesses, in normal course, it was not expected that he ' . would have held the test identification on 13.1.1984 itself, the day the appellants were brought to Bandikui. There was no difficulty in fixing the ,.. test identification on any later date and in the meantime, the appellants could have been shown to the witnesses. But the promptness with which -~ the test identification was held, after the appellants were taken into custody H in connection with the present case, is a circumstance, which satisfies tbe

...

BRIJMOHANv. STATEOF.HARYANA[N.J.>.SINGH, J.) 985

conscious of the Court about the genuinness and fairness of the test A identification. When the appellants were produced before the Magistrate on 13.1.1984 for being remanded to custody, it was specifically mentioned in order sheet that they had been produced BAPARDA i.e. their faces had been concealed. This precaution was necessary, so that the witnesses may not see the appellants, while being produced for remand before the B Magistrate.

It was pointed out, on behalf of the appellants, that the aforesaid test identification was held virtually after three months of the occurrence and as such it was not safe to trust such identification. It is true that with lapse of time, the memory of the witnesses, who have seen the culprits at the C time of the commission of the dacoity gets dimmer and dimmer, and the earliest the test identification is hdd, t inspires mor:e faith about the fairness of the test identification. But no time limit can be fixed for holdin:

a test identification, after which the investigating officer will be debarre<l from putting the suspects for test identification. While accepting the posi- D tion that such test identifications should bt held at the earliest, at the same time it cannot be ignored that it is not always within tht: reach of the investigating officer or upto him. to hold such test identific .. tion. Any test identification can be held only if some persons are arrested, who are suspected to have participated in the dacoity in qu ... .stion. The position will be different where in spite of such suspects being in custody, the test E identification is postponed,. there being no reasonable cause for the same.

Once the investigating officer suspects that persons arrested are accused in connection with a particular dacoity, they should be put up for test identification at the earliest. It is imperative duty on the part of the investigating officer to put up such suspects at test identification without any delay. That gives sanctity to the test identification .

So far the present case is concerned, as the appellants were pi! on

test identification within 24 hours of their arrest in conn_ction with the present case, the identification made by the witnesses cannot be rejected merely on the ground that it was not possible for them to identify after G lapse of a period of three months. Th ·.s was not ordinary case of dacoity; for commission therefore, four person were killed, one of them being a lady. The gruesome and callous manner, in which the dacoity was committed by the culprits must have left a deep impression on the mind of the witnesses, who had occassion to see such culprits in the electric light during .H .

A the course of commission of assault, firing and removal of the articles from the house in question. This deep impression will also include the facial impression of the culprits, which in normal course must not have been erased only within a period of three months.

B So far the recovery of the articles on basis of the information giveIJ by three appellants from the residence of the appellant Barchia is concerned, the investigating officer as well as the witnesses, who witnessed the recovery have.fully supported the prosecution case. The Trial Court as well as the High Court have examined the different aspects relating to the said .... recovery and have come to the conclusion that the articles removed during ) c the dacoity had been .concealed in the different parts of the residence of the appellant Barchia and were recovered pursuant to the information given by the three appellants to the investigating officer. The only objection taken on behalf of the appellants before this Court is that it looked unnatural that stolen articles would have been kept at different places by D the three appellants but within the same compound i.e. the residence of the appellant Barchia. It is very difficult for Court to say as to how a set of culprits, would have behaved after commission of the dacoity, in respect rof disposal or concealment of the booty. According to us, tere is nothing unnatural or improbable on the part of the appellant's in keeping their . E share of the stolen articles, concealed in the resideqce of one o{ the appellants.

In the present case, the moulds of the footprints which had been compared 'Yi.th the moulds prepared of the footprints of the appellants

F after their arrest was an important piece of evidence. Unfortunately, such moulds were not produced before the Trial Court and only the expert

J.~ proved his opinion. The Trial Court accepted that circumstance, but the High Court has rejected the same on the ground that prosecution should have produced the moulds of the footprints, before the Trial Court. The

G same is the position in respect of the cartridges found on the spot of the occurrence. That has also been discarded by the High Court on the ground that they wer~ not produced before the Trial Court. We have doubt about the correctness of the approach of bOth the courts. But, even if the two circumstances, referred to above, are not taken into consideration, the identification of e appellants by 11 witnesses, coupled with the recovery H made of the stolen articles, pursuance to the information given by the

BRUMOHANv. STATEOFHARYANA(N.P.SINGH, J.) 987

appellants, prove the prosecution case beyond all reasonable doubt, that A these appellants along with others entered into the house of Chiranji Lal (PW-7) and while committing dacoity caused the death of Mool Chand, Panna Lal, Bheru Lal and Smt. Gulab.

The facts of the present case present a very tragic situation in which B for remOYal of certain ornaments and other household articles, the appellants have taken the lives of four persons which depicts the cruel and callous personalities of the appellants. But the question which still remains for consideration is as to whether it will be just and proper to affirm even the sentences of death passed against the three appellants, after a lapse of 10 years since the offence was committed. A Constitution Bench of this C Court in the case of Bachan Singh v. State of Punjab, AIR {1980) S.C. 898, held that the death penalty as an alternative punishment is not unreasonable and it is in public interest, but at the same time it was pointed out that legislative policy outlined in section 254(3) was that for person convicted for an offence, where it is open to the C:>urt concerned to impose D a sentence of death as well as imprisonment for life, "life imprisonment is 'the rule and death sentence an exception. A real and abiding concerned for the dignity of human life postulates resistance to taking a life through Jaw's instrumentality. That ought not to be done save in the rarest of rare case when the alternative option is unquestionably foreclosed." E

_ Indeed, the appellants caused death of four persons and that too for greed. The question, however, is, should they be awarded the extreme penalty of death? Keeping in view the facts and circumstances of the case, and particularly the accepted prosecution case that both Brij Mohan and F Barchia, who are alleged to be armed with fire arms, did not enter the house to commit the dacoity and remained outside the house and cause the death of two person outside the house, it was only the other accused persons who went inside the house differently armed, the number of _., injuries inflicted by them on the deceased inside the house and the weapons used in causing those injuries, while committing dacoity and not G keeping or using the ftrm arms, which were otherwise available, it is not possible to say that it is the "rarest of the rare cases" which may warrant the imposition of the sentence. of death for the occurrence which occured more than a decade ago. In our opinion, it will meet the ends of justice, keeping in view the peculiar facts and circumstances of the case, if we H

SUPREME.COURT REPORTS (1993) SUPP. 3 S.C.R. ·

A substitute the sentence of death with that of sentence for imprisonment for life on all the appellants while maintaining their conviction a::; recorded by the courts below.

Accordingly, he appeals are allowed to a limited extent, that the sentence of death passed against the three appellants are substituted by B life imprisonment. With this modification in sentence, the appeals are . dismissed.

M.M.

Appeal dismissed. .. ...