Deshraj vs State of Madhya Pradesh.

D.P.S. Chauhan, J.

Having been convicted in S.T, No. 311/91 appellants Deshraj. Rajdhar and Buddha have by means of present appeal approached this Court for setting aside their conviction and sentence. Accused Deshraj and Rajdhar were convicted u/s 394/397/34 and 450/34, I.P.C. and accused Buddha was convicted u/s 394/397 and 450 I.P.C.

Appellants Deshraj and Rajdhar were sentenced to 7 years R.I. u/s 394/397/34 and 3 years R.I. u/s 450/34, I.P.C. and appellants Buddha was sentenced to 7 years R. 1. u/s. 394/397 I.P.C. and 3 years R.I. u/s 450 I.P.C.

The occurrence in question took place in the night of 23/24 th of May. 1990 at about 3 or 4 O'' Clock in the morning in the house of one Param in village Naroda. district Sagar. Report (Ex. P/1) of the incident was lodged on 24.5.1990 at P. S. Khurai at 13.30 hrs. by Param (P. W. 1).

According to the learned counsel for the appellants, the appellants were arrested on 28.6.1991 and from appellant No. 1 Deshraj one Sang" (Pointed instrument) was seized vide seizure memo Ex/ P/12 dated 20.6.1991. From appellant No. 2. Rajdhar one Lathi was seized vide Ex. P/11 dated 28.6.1991 and from appellant No. 3. Buddha one silver "Kardhani" was seized vide Ex. P/9 and "Katarna" was seized vide Ex. P/10, dated 28.6.1991.

The prosecution case in brief is that a dacoity was Committed in the house of Param (P. W. 1) in the night of 23/24th of May, 1990 in between 3-4 A. M., winch is situated in his field in village Naioda the appellants entered into the house of Param (P.W. 1) for committing dacorty armed with deadly weapons and robbed away one "Kardhani" worth Rs. 1200/-. In the night of occurrence Param (P.W. 1) along with his wife Pyaribai and daughters Sonabai and Shantibai was in side his house. Param was sleeping out side the house. In the night at about 3 or 4 A. M. Param (P.W. 1) saw torch light and saw 3 persons adjacent to him, who did not respond to his saying "Ram Ram." All the three persons came near to the complainant Param (P.W. 1), out of whom one was having "sang" and torch and the other was having "Katarna" and said handover the money and the ornaments as they may be having. The person who was armed with "Sang" hit Param (P.W. 1) on his right rib with that "Sang" The third person was said to have been armed with Lathi, who hit him with Lathi. At that time Sonabai. the daughter of Param (P.W. 1), out of fear ran away to the house of Mansing. Shanti, the elder daughter of Param (P.W. 1), was wearing "Kardhani" of Sonabai hide the same in side her clothes. It was also stated that one person was addressing the other as "Babloo". who entered into the house, and the person who was armed with "Sang" he searched the heeding where the "Kardhani" was hidden and he took the same. Thereafter, all the three persons went towards Thakur Baba. On hearing hue and cry people of the other hamlets came there and subsequently they went to side of Village Naroda.

The prosecution examined as many as 11 witnesses. Param, the complainant, was examined as P.W. 1. Pyaribai. the wife of Param (P.W. 1) was examined as P.W. 2. Sonahai. the daughter of Param (P.W. 1) was examined as P.W. 3. Shanti was examined as P. W, 4. Shriram from whom appellant No. 1 Deshraj borrowed the torch was examined as P.W. 5. Laxminarain before whom the memorandums of seizures were prepared was examined as P.W. 6. Asgar Ali Khan. Naib Tahsildar, who conducted the test indentification parade was examined as P.W. 7. Udham, who was the witness of seizure, was examined as. P.W. 8. Mahesh Prasad Rajoria. Assistant Sub-Inspector of Police, who took down the F.I.R. and made the initial investigation was examined as. P.W. 9. K. G. Vaidya. Town Inspector, was examined as. P.W. 10 and Ramniwas Khare. Revenue Inspector, who prepared the site plan was examined as P.W. 11.

The appellants as usual denied their involvement in the alleged incident of decoity; but did not lead any defence evidence.

Heard Shri Surendra Singh. Learned counsel for the appellants and Shri D.V. Pendharkar, learned Penal Lawyer for the State.

Learned counsel for the appellants made following six fold submissions:-

(i) That the lest inentification in the present case has no relevance as the accused persons belonged adjoining village, which is at a distance of hardly 2 furlongs and they know accused persons.

(ii) The appellants were shown to the identifying witnesses in the village of decoity where they were brought subsequent to their being taken into custody and as such the lest identification looses its significance,

(iii) The lest identification was held after lapse of one month and two days subsequent to the arrest of the accused persons, who were taken into custody on 28.6.1991 and were sent to prison on 29.6.1991 and thereafter brought before the Court on 29.6.91, 12.7.1991 and 25.7.1991 for remand purpose and were not kept "Baparda".

(iv) (a) As far as appellant No. 1 Deshraj is concerned, Section 397.1. P. C. would not apply in his case as he was alleged to have been armed with Lathi which was not a deadly weapon.

(b) That the offence u/s. 397, I.P.C. is an individuability and no aid of section 34, I.P.C. can be taken for fastening guilt on the appellants.

(v) Appellants No. 3 Buddha not having been identified in the lest identification parade but only identified by the witnesses in the Court, could at the most be fastened with the guilt u/s. 411,. I.P.C. as he has been found in possession of the stolen peoperty and his conviction u.s. 394/397. I.P.C. is not in accordance with the law.

(vi) The appellants cannot be fastened with the liability for offence u/s 450, I.P.C. as in view of the statement of P.W. 1 Parana who has stated that only one person entered into the house and according to the statement of P.W. 2 Pyaribai. the wile of the P.W. 1 Param, nobody entered into the house.

In support of the first submission, learned counsel for the appellants invited the attention of the Court to Paragraph 1 of the statement of Param (P.W. 1). which is as extracted below :-

He further invited the attention of the Court to paragraph ft of the statement of this witness, relevant extract of which is as extracted below :-

He also invited the attention of the Court to Paragraph 7 of the statement of Param (P.W. 1). which is as extracted below :-

He thereafter invited the attention of the Court to the statement of P.W. 2 Pyaribai, wife of Param (P.W. 1). In paragraph 2. she has stated as :-

On the basis of above, learned counsel for the appellants submitted that the witnesses already knew to the accused persons but in spite of that their names and details are neither given in the F.I.R. nor any description is given in the statement u/s 161, Cr.P.C.

Learned counsel for the State invited the attention of the Court to the statement of P.W. 3 Sonabai. Relevant extract of paragraph 1 of her statement is reproduced underneath :-

and on this basis learned counsel submitted that Sonabai (P.W. 3) has not stated about knowing the accused persons. In the cross-examination the witness has stated as under :-

This exross-examination in fact does not support the prosecution version rather it supports the defense case about knowing accused persons from earlier. as has been stated by Param (P.W. 1) and Pyaribai (P.W. 2).

So for as the lest identification is concerned no provision has been pointed out as to where it is contained and what are its requirements.

In Halsbury''s law of England (IV Edn. Volume II, para 363) this passage occcurs and is worth recalling :

It is undesirable that witnesses should be asked to identify a defendant for the first time in the dock at his trial: and as a general practice it is preferable that he should have been placed previously on a parade with other persons, so that potential witness can be asked to pick him out.

The conduct of an identification parade belongs to the realm and is part of the investigation. The evidence of lest indentification is admissible under S. 9. Evidence Act. But the value of the test identification, apart altogether from the other safeguards appropriate to a fair test of identification depends on the promptitude in point of lime with which the suspected persons are put up for test identification. If there is unexplained and unreasonable delay in putting up the accused persons for a test identification, the delay by itself detracts from the credibility of the test.

Thus the lest identification is the growth of judicial process. In Hasib v. State of Bihar (1) the Supreme Court observed :-

. The purpose of test identification is to test that evidence, the safe rule being that the sworn testimony of the witness in Court as to the identity of the accused who is a stranger to him. as a general rule requires corroboration in the form of an earlier identification proceeding..

Learned counsel for the appellants relied on the case of Hari Nath v. State of U. P. (2). In paragraph 7 the Court said, what emerges from the evidences that, at least. Kami a Prasad Yadav (P.W. 1) could reasonably be expected to have known some of the appellants as residents of villages in close vicinity, and as students of the same institution is a statable probability and that his feigned ignorance of any proper familiarity with their identity becomes irreconcilable with what are incidents of ordinary human intercourse. The omission to diselose their identity in the F.I.R. would raise a reasonable doubt about their complicity in the crime.

On the basis of above, learned counsel for the appellants submitted that in the present case evidence of Param (P.W. 1). Pyaribai (P.W. 2) and Sonabai (P.W. (3) establishes beyond reasonable doubt that the accused persons were known to the prosecution witnesses. Further reliance has been placed on the observations of the Supreme Court in the case of Bali Ahif v. State of Bihar 111 to the following passage at page 291.

.. This indicates that all was not well with the identification. The fact that the appellants belong to the neighbouring village at adistancc of less than a mile, that the wittnesses who came to identify the appellants had seen the accused from behind while escaping, that P.W. 2 had known Bali Ahir from before, yet he did not name him in the First Information Report and went to identify him when he fully knew Bali Ahir. that the identification of the two of the appellants look place after a gap of Tour days after their arrest, without explaining the cause for the delay, speaks for itself.

Accouding to him. in the present case, the distance between the village of accused persons and of the complainant was that of 2 furlongs only. He further submitted while relying on Paragraph II of the case of Hari Nath v. State of U. P. (supra) that absence of corrobo ration by test identification may not assume any materiality if either the witness had known the accused earlier or where the reasons for gaining an enduring impress of the identity on the mind and memory of the witness are. otherwise, brought out. The Supreme Court said:

Courts ought not to increase the difficulties by magnifying theoritical possibilities. It is their province to deal with matters actual and material to promote order and not surrender it by excessive theorising or by magnifying what in practice is really unimportant

The purpose of the test identification is for reassuring that clear impressions were garnered at the time of the occurrence. In the present case, the evidence itself has established that the accused persons were known to the prosecution witnesses and on that basis no credence can be given to the test identification. the whole purpose of which is reasssuring that clear impressions were gathered by the prosecution witnesses the lime of the occurrence. The adjoining village is only 2 furlongs away. The witnesses were knowing the accused persons. In view of this value of the test identification looses its significance. Thus the submission as advanced by the learned counsel for the appellants has got substance. It is a case where the prosecution witnesses were knowing the accused persons from before.

The second submission is regarding showing the appellants to the identifying witnesses in the village of dacoity itself were they were brought subsequent to their being taken into custody. In this connection, learned counsel for the appellants invited the attention of the Court to Paragraph 7 of the statement of Param (P W 1). which is to the following effect :

Apart from this, learned counsel for the appellants invited the attention of the Court to the statement of P.W. 2 Pyaribai. In paragraph 2 she has stated as under -

Learned counsel for the appellants submitted that it is at least one occasion when the accused persons were shown to the prosecution witnesses by the police. He submitted that there were also other occasions that while seeking remand of the accused persons on 29.6.1991. 12,7.1991 and 25.7.1991 they were not brought before the Court "Baparda." In this connection, learned counsel for the State invited the attention of the Court to the order-sheets dated 29.6.1991. 12.7.1991 and 25.7.1991 which find mention that the accused persons were produced before the Court in custody "Baparda". Therefore, the third submission as advanced by the learned counsel for the appellants is not founded on the evidence on the record and is accordingly rejected.

In the sequence of third submission, learned counsel for the appellants submitted that there was delay in identification parade and the delay by itself is latal for identification as it detracts from the credibility of the test. In this connection he pointed out from the case of Hari Nath v. State of U. P. (supra) that the value of the test identification, apart altogether from the other safeguards appropriate to a fair test of identification depends on the promptitude in point of lime with which the suspected persons are put up for test identification. Here in the present case identification was done alter 30 days of the arrest of the accused persons as the Investigating Officer Shri K. G. Vaidya (P.W. 10) has stated that the accused were arrested on 28th June. 1991. Learned counsel for the appellants also placed reliance on State of A. P. v. M. V. Ramana Reddy (1) where the delay was only of 10 days. The Supreme Court observed: In the absence of a valid explanation for the delay we do not think that this approach of the High Court can be said to be menifestly wrong to call for our intervention. In the present case, delay is of 30 days and for the delay there is no explanation on the record and as such the submission of the learned counsel for the appellants has got substance.

In supprot of submission iv (a), learned counsel for the appellants placed before the Court the following statement of Param (P.W. 1):

and according to him this witness does not say as to who was armed with what. The only statement is that one of the accused persons was carrying Lathi. Pyaribai (P.W. 2) and Sonabai (P.W. 3) have stated that appellant No. 1 was armed with Lathi. According to the learned counsel for the appellants, section 307, I.P.C. would not be attracted in the case of appellant No. 1 as Lathi is not a deadly weapon and the requirement of S. 397.I.P.C. is the user of the deadly weapon. In this connection he placed reliance on the case of this Court reported in Jagdish & others v. State of M. P. (1) where the Court held that Section 307. I.P.C. covers a case of person displays deadly weapons to frighten his victims or to make use of any deadly weapon for similar purpose. This section is merely a rider to section 304. I.P.C. and complimentary to section 392 thereof, but does not create any substantive offence. It merely regulates the punishment. Where the accused had only a Lathi and there is nothing to indicate that the Lathi had iron covering over it, and also there is no proof of its size, the offence in u/s 304 and section 307 is not attracted. In the present case it is not disputed that appellant No. 1 was not equipped with Lathi but there is nothing to indicate that the Lathi had iorn covering over it so as to make it a deadly weapon. Apart from this size of the lathi has also not been established by the prosecution. According to him case may not be u/s 397, I.P.C. but may be u/s. 304. I.P. C.

21 The next submission in regard to Point iv (b) is that the offence u/s 397 I. P. C is a individual liability and cannot be taken with the aid of S. 34. I.P.C. and in this connection reliance was placed on Phool Kumar v. Delhi Administration (2) and reliance was placed to the following passage :-

5.......The term ''offender'' in that section, as rightly held by several High Courts, is confined to the offender who uses any deadly weapon. The use of adeadly weapon by one offender at the-time of committing robbery cannot attract Section 307 for the imposition of the minimum punishment on another offender who has not used any deadly weapon.

In the present case the appellant No. 1 was armed with Lathi, which was not a deadly weapon, and as such he cannot be fastened with the liability u/s 397, I.P.C. in view of the aforesaid case of the Supreme Court.

The 5th submission as advanced by the learned counsel for the appellants that appellant No. 3 Buddha even otherwise not having been identified in the lest identification parade but was only identified by the prosecution witnesses in the Court could at the most, in the even of any liability of guilt is found, be said to be in possession of stolen property and a presumption could only be that of committing offence u/s 411. I.P.C. and not u/s 394/397. I.P.C. In this connection learned counsel for the appellants placed reliance on the case of Surjit Singh v. State of Punjab (1). The facts of that case were different. That was a case of murder and not of decoity. In a murder ease, the presumption regarding possession of" stolen property does not come. The case relied on is on different looting and is of no avail so far as the present appeal is concerned.

Learned State counsel invited the attention of the Court to the statement of P.W. 10 K. G. Vaidya, Town Inspector. In paragraph ft of his deposition this witness has stated that the accused are also connected with other crimes and. therefore. the conduct of the accused may be looked into. Learned counsel for the appellants invited the attention of the Court to Section 54 of the Evidence Act, which reads as under:

In criminal proceedings the fact that the accused person has a bad character is irrelevant unless evidence has been given that he has a good character, in which case it become relevant.

In view of this, learned counsel for the appellants submitted that previous conduct of the accused persons has no relevance or bearing with the present case as the bad character of the accused-appellants was not a fact in issue in the present case.

Since I am convinced by the submissions as advanced by the learned counself for the appellants that the accused persons were known to the prosecution witnesses and they were also shown to the prosecution, it is not necessary to record any finding on the alternative submission as the submission gels importance on the failure of submissions No. 1 and 2.

In view of above, the appeal is allowed. The conviction and sentence as imposed on the appellants are set aside. The appellants are in jail. They be released forthwith unless wanted in connection with any other crime.