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Judgment
Sunil Kumar Sinha, J.—This appeal is directed against the judgment dated 27th of April, 1995 passed in Sessions Trial No. 92/1994 by the Fifth Additional Sessions Judge, Bilaspur. By the impugned judgment, the appellants have been convicted in the following manner with direction to run the sentences concurrently:--
The facts, briefly stated, are as under:--
Out of five accused (A-1 to A-5), except A-4 all were charged with the offences punishable under sections 396 and 307 - 307 IPC for commission of dacoity with murder of deceased-Alexander Munda and attempting lives of Mohd. Yusuf Ansari (PW-2) and Anthrex Munda (PW-7). The deceased and the victims were employees of a petrol pump namely-Korba Service Center. On 24-9-93 at about 8.00 p.m. the accused persons (A-1 to A-3 and A-5) and absconding accused-Chhotelal came there and looted Rs. 500/- from Anthrex Munda (PW-7). They were holding knifes. They caused knife injuries to Anthrex Munda (PW-7). The 2 persons playing main role were A-1 and A-2 (appellants herein). After looting Rs. 500/-, A-2 went to the inner cabin of the show-room of the petrol pump and gave knife blows to deceased-Alexander Munda. When Alexander (deceased) made cries, Yusuf Anasari (PW-2) also came there, A-1 gave knife blows to Yusuf Ansari and looted the entire cash amount put in the drawer of the almirah, and thereafter they ran away from the petrol pump. Anthrex Munda (PW-7) lodged First Information Report (F.I.R. - Ex.-P/6) within 20 minutes of the incident i.e. at 8.20 p.m. Anthrex (PW-7), Yusuf (PW-2) and Alexander (deceased) were sent for their medical examinations to PHC Bankimongra. Dr. R. S. Kanwar (PW-11) examined Anthrex Munda (PW-7) and found following injuries:--
(i) Incised wound 1 x � x � inch on the right elbow;
(ii) Incised wound 1 x � x � inch, 2 inches above the right elbow; and
(iii) Incised wound 1 x � x � inch on the nipple in chest.
The injuries were caused by sharp and hard object. His MLC report is Ex.-P/9.
Dr. D. K. Shrivastava (PW-6) examined Mohd. Yusuf Ansari (PW-2) and noticed following injuries on his person:--
(i) Incised wound 2� x 1 cm on the left thigh. The injury was caused by hard and sharp object. This was also a simple injury. His MLC report is Ex.-P/5.
Dr. D. K. Shrivastava (PW-6) also examined deceased-Alexander Munda and declared him dead. Information of his death was sent to the concerned police station and merg intimation was registered. Autopsy on the dead body of deceased-Alexander Munda was conducted by Dr. Surjeet Singh (PW-8). He noticed one stab wound of 3 x 2 cm having depth of 10 cm on the left portion of abdomen. There was profuse bleeding and about 3 litre blood was collected in abdomen cavity. There was stab wound on the spleen also. He opined that the cause of death was shock due to massive internal haemorrhage as a result of above stab injury on abdomen and spleen and it was homicidal in nature. The post-mortem report is Ex.-P/8.
The accused persons (A-1 to A-5) were arrested and were put for identification on 20-10-93. Test Identification Parade (T.I.P.) was conducted by Executive Magistrate, Anujram Dhire (PW-17). In the T.I.P., Anthrex Munda (PW-7) identified A-1, A-2 and A-3; Yusuf Ansari (PW-2) identified A-2 and A-5 and Gabrel (PW-1), another eye-witness, identified A-1 and A-2. The proceedings of T.I.P. are Ex.-P/1.
In further investigation, the accused were taken into custody and their memorandum statements u/s 27 of the Evidence Act were recorded and different articles were seized from their possession on the discoveries. On the discovery made by A-2, knife was seized from his possession. On the discovery made by A-3, Rs. 5,000/- were seized from his possession. On the discovery made by A-5, Rs. 3,500/- were seized from his possession. One small suitcase (attechhy) and Rs. 4,450/- were seized from the possession of A-4.
Mohd. Yusuf Ansari (PW-2), Anthrex Munda (PW-7) and Gabrel (PW-1) could only identify the 2 assailants before the trial Court namely-Anil Prasad (A-1) and Tileshwar Prasad (A-2). The learned Sessions Judge, therefore, relying on the testimonies of above eye-witnesses, convicted and sentenced the 2 accused persons (A-1 and A-2 - appellants herein) as aforementioned. However, the other accused persons were acquitted of the charges framed against them.
Mr. Arun Kochar, learned counsel appearing on behalf of the appellants, vehemently argued that the eye-witnesses are not reliable; their testimonies cannot be relied on; they had no opportunity to identify the assailants; therefore, conviction based on their testimonies, particularly on identification of the appellants cannot be sustained. He also argued that there was no charge u/s 302 IPC, therefore, there cannot be a conviction under the said section.
On the other hand, Mr. J. A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court.
We have heard learned counsel for the parties at length and have also perused the records of the sessions case.
Firstly we shall consider the argument as to whether in a case like present one where the charge was framed u/s 396 IPC the conviction was possible u/s 302 IPC or not?
Section 396 IPC relates to dacoity with murder. It provides that if any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. Where a person charged with the offence of section 396 IPC can be punished u/s 302 IPC without a particular charge being framed for this section has been considered by the Supreme Court in Rafiq Ahmed @ Rafi Vs. State of U.P., . The Supreme Court observed in Para-62 that:
On the conjoint reading of sections 396 and 302 IPC, it is clear that the offence of murder has been lifted and incorporated in the provisions of section 396 IPC. In other words, the offence of murder punishable u/s 302 and as defined u/s 300 will have to be read into the provisions of offences stated u/s 396 IPC. In other words, where a provision is physically lifted and made part of another provision, it shall fall within the ambit and scope of principle akin to "legislation by incorporation" which normally is applied between an existing statute and a newly enacted law. The expression "murder" appearing in section 396 would have to take necessarily in its ambit and scope the ingredients of section 300 IPC. In our opinion, there is no scope for any ambiguity. The provisions are clear and admit no scope for application of any other principle of interpretation except the "golden rule of construction" i.e. to read the statutory language grammatically and terminologically in the ordinary and primary sense which it appears in its context without omission or addition. These provisions read collectively, put the matter beyond ambiguity that the offence of murder, is by specific language, included in the offences u/s 396. It will have the same connotation, meaning and ingredients as are contemplated under the provisions of section 302 IPC.
In light of the above quoted dicta of the Supreme Court, it is clear that even if a charge of murder u/s 302 IPC is not separately framed against the accused and the charge is framed u/s 396 IPC only, there is no hurdle in convicting and sentencing the accused u/s 302 IPC, as offence of murder is, by specific language, included in the offences u/s 396 which consists of two parts:-- firstly, dacoity by five or more persons, and secondly, committing of a murder in addition to the offence of dacoity. For the foregoing reasons, we do not find any force in the argument advanced by Mr. Kochar.
Coming to the case, on merits we find that out of 3 eye-witnesses, Yusuf Ansari (PW-2) and Anthrex Munda (PW-7) were injured witnesses. They have chronologically narrated the incident and have stated as to how the 2 assailants entered into the show room of the petrol pump, caused injuries to them and deceased-Alexander, and how they took entire cash in a bag from their possession. The version of above 2 injured witnesses is corroborated by the version of Gabrel (PW-1). The incident took place at about 8.00 p.m. It comes in the evidence that the TV show (chitrahar) was going on at that time and sale in the petrol pump was also on. Therefore, there was proper light and there was full opportunity to the witnesses to identify the assailants. It is not the case that the assailants had covered their faces and they could not have been identified. Why a person will not be able to identify the assailants when he himself was assaulted by knife from a very short distance. The assailants were arrested on 12-10-93 and were put for identification on 20-10-93. Though the above witnesses had identified 4 assailants in the T.I.P., but they could not identify all of them during the trial. We gather from their evidence that there is dock-identification of only 2 assailants namely-Anil Prasad (A-1) and Tileshwar Prasad (A-2). The above eye-witnesses were put to lengthy cross-examinations by the defence, but nothing material could be elicited in their cross-examinations on which their testimonies may be discarded.
The T.I.P. does not constitute substantive evidence and its very purpose is to help the investigation agency to make it sure that their investigation is going on in a right direction. The T.I.P. is an event of the course of investigation and it can only be used for corroboration or contradiction of the court statements of the witnesses concerned. In the instant case, the evidence of eye-witnesses relating to dock-identification of the 2 assailants (appellants herein) is intact and unimpeachable. We are of the view that the learned Sessions Judge, therefore, was fully justified in convicting the 2 assailants (appellants) in the above facts and circumstances of the case, while acquitting the others on the ground of their non-identification in trial. For the foregoing reasons, we do not find any substance in the appeal. The appeal filed by the appellants, therefore, is liable to be dismissed and is hereby dismissed.