Hem Kant Jha vs State of M.P. (Now Chhattisgarh)

Sunil Kumar Sinha, J.

These appeals are directed against the judgment dated 29th of June, 1993 passed in Sessions Trial No. 198/ 91 by the Second Additional Sessions Judge, Raigarh. By the impugned judgment, the appellants have been convicted under Sections 395 & 450 IPC and sentenced to undergo R.I. for 7 years and R.I. for 5 years respectively, with a further direction to run the sentences concurrently.

The facts, briefly stated, are as under:

Eight accused persons were tried for the offence punishable under Sections 450, 395 & 397 IPC. Five of them, i.e. the four appellants and co-accused Ravichand Nayak were convicted and sentenced as aforementioned and 3 of them were acquitted giving benefit of doubt to them. The case of the prosecution is that in the intervening night of 9th 10th of September, 1991, the accused persons came to the house of the complainant Shyamlal (PW1) on a Jeep. Some of them entered into his house. They were armed with dandas and knifes. They assaulted the complainant and his family members and committed dacoity of cash amount(s), cloths and ornaments. A dehati nalishi (Ex.P2) was lodged by Shyamlal (PW 1) on 10.9.91. The accused persons were taken into custody and they were put for identification on 5.10.91. The Test Identification Parade (T.I.P. Ex.P1) was conducted by the Executive Magistrate. Shyamlal (PW1), Shesav Bai (PW24 wife of Shyamlal) and Ishwar Prasad (PW14 son of Shyamlal) identified the appellants in T.I.P. In further investigation certain articles (cloths & torches etc.) were seized from the possession of different accused persons vide seizure memos Ex.P13, P14, P15, P16, P19, P20 & P21 and were put for identification on 26.10.91 vide identification memo Ex.P3. These articles were also identified by Shyamlal (PW1), Shesav Bai (PW24) and other witnesses. Six currency notes of Rs.50 total amounting to Rs.300 were seized from the possession of appellant Hemkant Jha on 13.9.91 vide seizure memo Ex.P17. The weapons, which were allegedly seized along with property of dacoity and certain cloths and soil etc. on which blood like stains were found, were sent for chemical examination to Forensic Science Laboratory (F.S.L.), Sagar from where, a report (Ex.P46) was received. Blood stains were found on certain articles. These articles were sent for Serologist examination and a report (Ex.P47) was received. According the Serologist report, blood stains found on cloths were human blood, whereas origin of the blood stains found on lathis could not be ascertained:

The prosecution mainly relied on two sets of evidence first, identification of the accused persons; and second, identification of the property belonging to the complainant and his family members.

The learned Sessions Judge, vide Para 25 of the judgment, did not believe the evidence of identification of the property and recorded the finding that it was not established that the articles put for identification were the same articles which were looted from the house of complainant Shyamlal (PW1). However relying on the evidence of identification of the accused persons, the Sessions Judge held that it was proved beyond all reasonable doubts that the 4 appellants as also co-accused Ravichand Nayak participated in commission of dacoity in the house of the complainant, therefore, they were liable for punishment under the aforementioned Sections of IPC.

Mr. Afroj Khand and Mr. Vijay K. Deshmukh, learned counsel appearing on behalf of the appellants, argued that the evidence relating to identification of the appellants was shaky, therefore, conviction based on such evidence can not be sustained.

On the other hand, Mr. Satish Gupta, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court.

I have heard learned counsel for the parties at length and have also perused the records of the Sessions case.

Shyamlal (PW1) categorically deposed about the incident. He identified accused Ramukishan, Raju Das, Ravichand Nayak, Hemkant Jha, Govind, Balram Tadu, Vidyadhar and Bahadur @ Sukru. He deposed that since the accused persons were having torches in their hands and they were moving in his house along with their torches on, he identified them in the torch light. About Hemkant Jha, he deposed that he was sitting in Jeep along with another accused. He had seen 2 persons in the jeep one of them was Hemkant Jha. In further examination, he deposed that he was called for identification of the accused persons and had participated in T.I.P. along with his wife Shesav Bai (PW24), son Ishwar Prasad (PW14) and daughter Surekha. In T.I.P. all the accused persons were not produced. He very categorically deposed that only 4 accused persons were identified by him in T.I.P. who were accused Ramukishan, Ravichand Nayak, Sukru Kishan and Vidyadhar Buda. He very categorically deposed that only 4 accused persons were put for identification and other accused persons were in the jail.

Shesav Bai (PW24) is the other witness of T.I.P. She very categorically deposed that she had participated in T.I.P. and had identified some accused persons therein, but she could not identify them in the Court.

Ishwar Prasad (PW14) is also a witness of identification. He deposed that in the torch light, he had identified accused Raju, Balram, Ramukishan, Sukru Kishan, Hemkant Jha, Vidyadhar Buda and Govind. About Hemkant Jha, he deposed that he had also entered into their house along with other accused person.

In appreciation of evidence of the above witnesses of identification, we find that so far as identification of Ramukishan, Bahadur @ Sukru and Vidyadhar is concerned, the same is intact as the 2 witnesses of the identification i.e. Shyamlal (PW1) and Shesav Bat (PW24) have identified them in the dock and their dock identification was also corroborated by the contents of T.I.P. (Ex.P1). Therefore, the finding of the learned Sessions Judge regarding participation of the above 3 appellants i.e. Ramukishan, Bahadur @ Sukru and Vidyadhar is based on sufficient evidence and it is proved beyond all reasonable doubts that they entered into the house of the complainant and participated in commission of dacoity along with other assailants.

So far as case of Hemkant Jha is concerned, Shyamlal (PW1) very clearly deposed that Hemkant did not enter into their house as he was sitting in the Jeep which was kept at some distance from their house. The above evidence of Shyamlal is contradicted by the evidence of Ishwar Prasad (PW14) who categorised deposes that Hemkant also entered in their house and participated in dacoity by entering in the house. Apart from the above, there is no evidence to show that there was light in jeep and the complainant had identified Hemkant in the said light. According to the complainant, the Jeep was on the road and he had seen Hemkant in the Jeep from some distance. Apart from the above, Shyamlal also deposed that only 4 persons were brought for identification during the T.I.P. in which he does not take the name of Hemkant. In appreciation of evidence of Shyamlal (PW1) and Ishwar Prasad (PW14) it would appear that the identification of Hemkant becomes suspicious. I am of the view that though Hemkant was identified in T.I.P. by the above witnesses, but the evidence of his identification, in light of above facts and circumstances of the case, does not appear to be trustworthy.

Mr. Satish Gupta, learned Govt. Advocate, argued that Hemkant was duly identified in T.I.P. by 2 eye-witnesses, therefore, there was sufficient evidence for his conviction as the contents and proceedings of T.I.P. have been held to be proved.

The identification of an accused in Court is the substantive evidence of the person identifying and his earlier identification in a T.I.P. corroborates the same. The purpose of T.I.P. is to have corroboration evidence to the evidence of the dock identification which is the substantive evidence. The identification parades are essentially governed by Section 162 Cr.P.C., therefore, conviction cannot be based merely on the evidence of T.I.P. conducted during the course of investigation. The real and substantive evidence of the identity of the accused comes when witnesses give statement in the Court, identifying the accused. Therefore the arguments of learned counsel for the State cannot be accepted. Pleas see Sampat Tatyada Shinde Vs. State of Maharashtra, George and Others Vs. State of Kerala and Another, Daya Singh Vs. State of Haryana, and Munshi Singh Gautam (D) and Others Vs. State of M.P.,

Apart from the above, the other evidence against Hemkant is the seizure of Rs.300 from his possession vide seizure memo Ex.P17. From this alone, nothing can be held to be established beyond all reasonable doubts that he also participated in commission of the incident.

For the foregoing reasons, I am unable to sustain the conviction of appellant Hemkant Jha and the finding of the learned Sessions Judge that appellant Hemkant also participated in commission of the said offence has to be set-aside.

In the result, Cr.A. No. 763/93, Hemkant Jha v. State, is allowed. The conviction and sentences awarded to appellant Hemkant Jha are set aside. He is acquitted of the charges framed against him. Appellant Hemkant was sent to jail on 15.9.91 and was released on bail on 7.11.94. Presently he is on bail. His bail bonds are cancelled and surety stands discharged. Other criminal appeals, i.e. Cr.A. No. 986/93; Cr.A. No. 987/93 & Cr.A. No. 988/93 deserve to be dismissed and are accordingly dismissed.

Appeal No. 763 allowed. Other appeals dismissed.