Hiralal Das vs State of Bihar

B.N.P. Singh, J.—Prosecution case without much of factual details, as has transpired in fardbeyan of Sahdeo Purbey and also narrations made by the witnesses at trial, was that in the intervening nights of 24.6.1992 and 25.6.1992 when house inmates were fast asleep in their houses, at the dead of night, unidentified miscreants having broken door planks of Post Office and also shop of Kari Purbey gained their access in inner apartment of house and shop and when villagers assembled and dared to resist them, lobbed bomb to scare villagers and began to retreat in the east. There too, they lobbed bomb near door of house of Shravan Purbey and made good their escape with booty. Pursuant to their retreat, while Raj Kumar Purbey was found dead on the road with gun shot injuries on his chest, other inmates of the house, namely, Ram Pari Devi was found writhing in pains for the injuries on her back and she too eventually succumbed to the injuries.

Fardbeyan of Sahdeo Purbey (P.W. 3) was recorded by S.I. D.N. Singh at the house of the former at about 5 hours on 25.6.1992, pursuant to which first information report was drawn up and investigation commenced. In the process of collection of evidence during investigation, Police Officer took necessary steps for apprehension of the suspects, on their apprehension forwarded them to Court, recorded statement of house inmates and other witnesses who had shown familiarity with the incident in question, got autopsy held over the dead body of Raj Kumar Purbey and Ram Pari Devi by a medical board, arranged test identification parade, effected recovery of part of booty from possession of some of them and eventually on conclusion of investigation, submitted preliminary charge sheet in the Court against Nathu Sah, Bharat Yadav and Ganeshi Mahto. Pursuant to that, supplementary charge sheet was submitted against Rajdeo Yadav and Hiralal Das. It seems from the proceedings of the Court below that since Nathu Sah and Bharat Yadav did not participate in the proceeding, their cases were split up and trial, as such eventually commenced only against Ganeshi Mahto, Rajdeo Yadav and Hiralal Das who are Appellants before this Court.

In the eventual trial that followed, the State examined altogether 15 witnesses, some of whom are family members of the deceased, other house inmates, who lost their house belongings, doctors, Police Officer and host of other witnesses. The defence too examined two witnesses, one of whom was Rajdeo Yadav, who is Appellant in Cr. Appeal No. 534 of 1999. They countered allegations attributed to the Appellants about their complicity and participation in the episode. Defence of the Appellants both before the Court below and this Court had been that of their innocence and their false implication. They also pleaded that before holding test identification parade, they were taken into the house of victims and also that while they were brought to the Police Station, their photographs were taken by the Police and they were got identified by the identifying witnesses. In their examination u/s 313 of the Code of Criminal Procedure also they took their defence about their identification by house inmates at the instance of the Police, preceding the test identification parade. However, the Court below having meticulously appreciated evidences placed on the record, while negativing contentions raised at Bar on behalf of the Appellants, recorded finding of guilt against the Appellants u/s 396 of the Indian Penal Code and sentenced them to suffer imprisonment for life.

Some sort of common arguments on behalf of all the three Appellants were made at Bar and for some of them, there had been different plea also to assail the findings recorded by Court below, and before we bestow our due consideration to the lucid submissions canvassed at Bar, we prefer to notice evidences that had come on the record during trial suggesting incriminating evidence against the Appellants about their complicity in the commission of dacoity. We may begin our exercise with the evidence of Sahdeo Purbey (P.W. 3) who was the maker of fardbeyan and we must say that evidence of the informant, though there is reiteration of his earliest version on broad features of the prosecution case, appears to be most cryptic without much of details, which was stated by him in the first information report. However, evidence of this witness is of little significance, as though he was maker of fardbeyan, claiming himself to have identified the miscreants during commission of dacoity, he did not allege so at the trial. Now we may switch over to the evidence of Yadshodhar Purbey (P.W. 1), who States during trial that in course of commission of dacoity, when his son apprehended miscreants, who had robbed bomb on him, he was shot dead by other miscreants. Dacoity was committed also in the house of Kari Purbey, where miscreants having broken door planks, removed house belongings. Dacoits also shot dead wife of Gokul Purbey and caused injury to other family members by lobbing bomb. The witness, claims to have identified some of them in the flash of torch light and also identified them during test identification parade. In Court too, he claimed to have identified them. The Witness was quite emphatic that the miscreants had not concealed then identity during commission of dacoity. Ram Dayal Panjiyar (P.W. 2), the other witness was in the orchard, adjacent to the house of Yashodhar Purbey. He heard sound of explosion of bomb and rushed to the house of Sahdeo Purbey, when dacoits lobbed bomb on him and he had provident(sic) escape. Dacoities were committed also the shop of Kari Purbey when dacoity executed killing of son and mother of Sahdeo Purbey'' and caused injuries (sic) other family members. He claimed to his identified three of them in flash of to(sic) light, participated in test identification parade, identified them there, and also (sic) Court. Though Kari Purbey (P.W. 4) too(sic) happened to be house inmate but he was not at his house on the day of the dacoity and he stated to have simply learnt about the incident later on. Similar was the case of Shivji Purbey (P.W. 5), as though he testified about commission of dacoity in his house and also in the shop of Kari Purbey and also about killing of two house inmates, he did not claim to have identified miscreants.

Another significant witness of the prosecution, happens to be Shatrughan Purbey (P.W. 6) who stated to have got awakened on alarms raised, about dacoity being committed in the houses. When he came out of his house, miscreants lobbed bomb on him and removed house belongings from the shop of Kari Purbey, breaking open locks, and killed Raj Kumar Purbey and Rampari Devi. He claimed to have identified dacoits who had broken locks of the shop of Kari Purbey and had lobbed bomb on him and they happen to be Ganeshi Mandal, Appellant, and Bharat Yadav, who have been identified during test identification parade and also in Court, during trial.

We may also take notice of the evidence of Deo Lal Singh (P.W. 7) who was investigating Officer. The Police Offer stated to have visited house of Sahdeo Purbey shortly on receipt of information about commission of dacoity in village Ganguly Sahi where fardbeyan of said Sahdeo Purbey was recorded by him, pursuant to which a Police case was registered and investigation commenced. In the process of collection of evidence, the Police Officer states to have recorded statement of witnesses, held inquest report over the dead bodies of Rajkumar Purbey and Rampari Devi, seized blood stained earth and reminiscences of bomb from the place of occurrence. The Police Officer has recorded objective finding about signs of commission of dacoity being writ large in house of Sahdeo Purbey and shop of Kari Purbey, where marks of violence were quite visible on entry door planks and almirahs embedded in the wall. He apprehended Ganeshi, Bharat Yadav and Nathu Sah, he got test identification parade of the suspects held by Shri Shabir Khan, Judicial Magistrate, and pursuant to his transfer, made over charge of investigation to his successor Shri B.N. Chaubey, S.I. of Police.

Ram Chandra Nayak (P.W. 8), who happens to be Pharmacist in the Madhubani hospital was a record keeper of the post mortem reports and he simply brought on the record, post mortem report in respect of Raj Kumar Purbey and Rampari Devi, deceased. The State also examined Dr. Mahendra Singh, who happens to be P.W. 9 who states about autopsy having been held over the dead body of Rampari Devi by Dr. Vijay Bihari Prasad, when he was observer. Autopsy over the dead body of Ram Pari Devi was held by Dr. Vijay Bihari Prasad and in this case too the witness was observer. The witness also testified presence of Dr. P.N. Khatri during holding of autopsy over the dead bodies of Raj Kumar Purbey and Rampari Devi. The doctor, who held autopsy over the dead body of the deceased, happens to be Dr. Vijay Bihari Prasad (P.W. 10) and he states to have noticed entry and exit wounds on body of both the deceased caused by fire arms.

Now we may consider testimony of five Judicial Magistrates, who conducted test identification parade. Shri Sahid Khan (P.W. 11), while he was posted as Judicial Magistrate, Madhubani, stated to have conducted test identification proceeding on 4th August, 1992, in Jail premises when Yashodhar Purbey (P.W. 1) Ramdayal Purbey (P.W. 2) and Shatrughan Purbey (P.W. 6) identified Appellant Ganeshi Mahto, with overtact attributed to him. Test identification parade was also held on 6th March, 1993 by Shri Om Prakash Singh (P.W. 12), Judicial Magistrate, Madhubani but that was not of much significance in the present context as Binod Mandal, suspect, who was put on test identification parade is neither Appellant before us, nor he was identified by the witness participating in the test identification parade.

Md. Murtaza Siddiqui (P.W. 13), Judicial Magistrate, Madhubani, conducted test identification parade in jail premises on 4th October, 1992 when Appellant Rajdeo Yadav was identified by Yashodhar Purbey (P.W. 1) and Ramdayal Panjiyar (P.W. 2). Evidence of Chandrika Ram (P.W. 14), Judicial Magistrate, Madhubani, was not of much significance in the present context, as the person who was put as suspect during test identification parade does not happen to be Appellant, and the last witness was Shri Komal Ram (P.W. 15) Judicial Magistrate, Madhubani, who conducted test identification parade in jail premises on 5th December, 1992 when Appellant Hiralal Das was identified both by Yashodhar Purbey (P.W. 1) and Ramdayal Panjiyar (P.W. 2). This is all the evidence that has been adduced on behalf of the State to bring home charges against the Appellants with which they were saddled at trial.

Now we may notice some of the prominent submissions canvassed at Bar. Contentions raised on behalf of Rajdeo Yadav and Ganeshi Mahto was that though Appellant had been saddled with accusation of commission of dacoity and also executing killing of two house inmates, the factum of commission of dacoity and killing of the house inmates were two distinct transactions which cannot be clubbed together to fasten guilt u/s 396 IPC against the Appellants and on this score, we must negative contention for the simple reason that both in the recital made in fardbeyan of Sahdeo Purbey and also narrations made by witnesses in their evidences, factum of commission of dacoity and also execution of killing of two house inmates were shown to be part of one and the same transaction. It was only in course of commission of dacoity that miscreants lobbed bomb and also fired shots to scare the villagers and also house inmates, who dared to resist them, and in backdrop of such evidences, it cannot be legitimately argued that factum of commission of dacoity and execution of killing of house inmates were two distinct happenings which did not form part of one transaction. Feeble attempts were also made that regard being had to the identification of the miscreants in the flash of torch light held by the miscreants, possibility of their identification was extremely remote, and we may negative those submissions too for the reasons to which we shall advert hereinafter.

Referring to evidence of Yashodhar Purbey (P.W. 1), one finds that he had occasion to identify the miscreants only from a distance of 15 ft. during commission of dacoity, we may not lose sight of evidence of Ram Dayal Panjiyar (P.W. 2) and Shatrughan Purbey too who were quite emphatic in their assertion that a number of dacoits were moving flash of torch light, during commission of dacoities and once this situation is accepted, identification of the miscreants was most probable by house inmates. The other argument was that since operation of dacoities, as has been stated by the witnesses, continued only for 15 minutes, within such short span of time. it(sic) was not possible for the house inmates tag identify the miscreants, and on this poind too we would negative contention, in view of explicit assertion made by witnesses about identification of the miscreants from a short distance in flash of torch light which was being moved by a number of miscreants in the house, and that apart, Identification of the object in the opposite direction from its reflect action, appears to be most probable.

As a corollary of these submissions, next submission is that since the miscreants were not known to the house inmates from before and they happened to be strangers, in that backdrop too, their identification was extremely remote and we reject this argument too in view of identification of the Appellants both in the test identification proceeding and also in Court by the house inmates.

Argument canvassed on behalf of Appellant Hiralal Das, who happens to be Appellant in Cr. Appeal No. 514 of 1999, was that since the Police Officer who arrested him was not examined at trial, he was prejudiced at trial, and the other argument was that since identifying witnesses while a identifying his Appellant had not made any explicit attribution about his overtact, identification of this Appellant must be taken to be a mistaken identity. Though the argument appears to be lucrative, it is fallacious for the reason that simply non-examination of the investigating officer, who apprehended the Appellant did not give reasonable cause to the Appellant for geting prejudiced at trial, and even though over tact attributed to the Appellant had not been stated by the identifying witness, during test identification parade, that did not diminish value of the test identification proceeding, there being assertion of witnesses about they identifying this Appellant both in the test identification parade and also in Court, at trial.

Lot of arguments were addressed to the Court about propriety of test identification parade and it was urged with the aid of the statement of Appellants recorded u/s 313 of the Code of Criminal Procedure and also the evidence of defence witness including that of Rajdeo Yadav (D.W. 1), that since the Appellants were shown to the witnesses by the Police Officer, preceding holding of test identification parade, significance of holding of test identification parade was completely lost, and on this score too we negative these submissions on premises, which we record hereinafter. Test identification parade of Appellant Hiralal Das was held in jail premises on 5.12.1992 and though the Appellant had occasion to move the Judicial Magistrate who conducted test identification proceeding to lay his grievance about his identification by house inmates, on behest of the Police Officer, preceeding holding of test identification parade, we find that no such grievance was ever laid before Shri Komal Ram, Judicial Magistrate, Madhubani, who had conducted test identification proceeding. Similar was the case with Rajdeo Yadav, the other Appellant, whose test identification parade was held in jail premises on 4th October, 1992, and in his case too no such grievance was ever laid before Shri Md. Murtaza Siddiqui, Judicial Magistrate, Madhubani, who had conducted test identification parade, ''about he having been identified by the house inmates on behest of Police Officer preceding holding of test identification parade. The case of Ganeshi Mahto also was not on a better footing, as in his case, Shri Shahid Khan, Judicial Magistrate, Madhubani, was quite emphatic in asserting that during holding of test identification parade, Ganeshi Mahto did not raise any such grievance before him. We find that though bald suggestions were given to the Officer conducting test identification parade that his identification mark was disclosed to identifying witnesses, defence of the Appellant was quite at variance. The defence of Hiralal Das, as per suggestion given to Yashodhar Purbey (P.W. 1) was that he was identified by witness on behest of Police at the Police Station. Similar suggestions were given to Ram Dayal Panjiyar (P.W. 2) about Police getting him identified by the witness at the Police getting him identified by the witness at the Police Station. Now, let us examine defence of Appellant Hiralal Das, which has surfaced in his statement recorded by Court, u/s 313 of the Code of Criminal Procedure. There, he only says that Police took him to Ganguly, where large number of persons had collected and his photographs were also taken at Benipatti Police Station. Defence of Hiralal must be rejected, also for the reason that though suggestions were given both to P.W. 1 and P.W. 2 that he was got identified by the Police Officer by the witnesses at the Police Station, no such explicit assertion was made by him before Court, in his statement, which he rendered before Court u/s 313 of the Code of Criminal Procedure, and that too was most vague defence, as the Appellant was not explicit as to by whom he was identified by the Police.

Now we may switch over to the defence of Ganeshi Mahto, the other Appellant. Suggestions were given to Yashodhar Purbey (P.W. 1) that the Police got him identified, both at house and also at the Police Station by the witness, preceding holding of test identification parade. Suggestion given to Shatrughan Purbey (P.W. 6) was only about his identification by the witness on behest of the Police only at the police Station. Now coming to the statement of the Appellant recorded u/s 313 of the Code of Criminal Procedure, though there too he took such a vague defence, he did not say about Police getting him identified by witness at the Police Station, and that too, by whom. Now we may switch over to the defence of Appellant Rajdeo, the other Appellant. The only suggestion given to Yashodhar Purbey (P.W. 1) on his behalf was that his photographs had been shown to the house inmates and the Police had put pressure on them for his identification during test identification parade. Suggestion given to Ramdayal Panjiyar (P.W. 2) was however, otherwise, as what was suggested to the witness was that police got him identified at Pandaul Police Station.

Taking these infirmities that have crept in the defence of the Appellants, we are afraid that it can be legitimately urged that the Appellants were shown to the witnesses preceding holding of test identification parade, by the police and hence identification of the witnesses was of no significance. Raising his grievance, Rajdeo Yadav (D.W. 1) also sought to place on the record exhibit A about his identification by house inmates, on behest of Police, preceding holding of test identification parade but there was no good evidence on the record to give due credence to this document, that it had come from custody of the Court. While considering defence of the Appellants, we have noticed that they are. too vague to merit consideration and their intrinsic value is not such to negative their complicity in the offence. We may notice the other argument too which have been canvassed at Bar on behalf of these Appellants and it was that since test identifications of the Appellants were held by the prosecution, quite belatedly, even there be identification, that was of no consequence

Now taking up the case of Hira Lal Das, the Appellant, he was arrested by the Police on 4.12.1992 and in his case test identification parade was held on 5.12.1992. There was no much time lag(sic) holding of test identification parade since the date of his apprehension. In case (sic) Rajdeo Yadav, we have noticed that he was apprehended by the Police on 28.9.1992 and test identification parade was held on 4.10.1992, within a period of less than fortnight. In case of Ganeshi Mahto, we have noticed that this Appellant was apprehended by the Police on 5.7.1992 and test identification parade was held on 4.8.1992. Human memory, true it is, is not infallible and also that chances of error cannot be ruled out but once witnesses are stating emphatically about identification of the assailants, without there being margin of error, intrinsic value of identification of the Appellants at test identification parade was not extinguished. We have noticed that apart from Ramdayal Panjiyar (P.W. 2) and Shitrughan Purbey (P.W. 6), Yashodhar Purbey (P.W. 1) was also one of them, whose son was killed in course of dacoity, who claimed to have identified some of the Appellants during test identification parade. We are not oblivious that if earlier test identification parade is held, it inspires confidence but sometimes crime itself is such that it would create deep impression on mind of witnesses who had occasion to see the miscreants. The circumstances in which in the instant case, occurrence took place were such that facial impression of miscreants would get embossed in memory of witnesses and hence mere lapse of one month in case of Ganeshi Mahto in holding test identification parade from the date of his apprehension would not diminish the intrinsic value of the test identification parade and though decisions on this subject are galore, we would refer to two decisions of the Apex Court and first of them is reported in the case of Brij Mohan and others Vs. State of Rajasthan, and the other decision is reported in the case of Daya Singh v. State of Haryana (2001) 3 SCC 553. That apart, Judicial Magistrates who conducted test identification proceedings have stated that the Appellants were mixed with suspects of similar description and physical features and that too rules out chances of mistaken identification by the witnesses. The defence can, however, question the propriety of test identification proceeding, if there has been good evidence about violation of the procedure for holding test identification parade, and we have noticed that though volley of questions were put to the Judicial Magistrates, for their conducting test identification proceeding, no such violation of procedure was brought to our notice in holding of test identification parade by them. Feeble attempts were also made by the learned Counsel for the Appellants that though miscreants were shown to have lobbed bomb but the doctor who held autopsy over the dead bodies of the deceased, had not noticed any injury caused by explosion of bomb, as positive finding of the doctor was that death of the deceased was caused by firearms, and on this score too, we notice that argument was devoid of merit, as not only in the fardbeyan of Sahdeo Purbey, there has been accusation against miscreants about lobbing bomb and also having fired shots explicit assertion was made by P.W. 1 that the miscreants had shot dead his son by fire arms and Rampari Devi too was too was shot dead by the miscreants. We may also refer to the evidence of P.W. 3 who states that Raj Kumar Purbey and Rampari Devi sustained gun shot injuries on their person and for these reasons too we find that the argument though appears to be lucrative was fallacious. In these circumstances, we find that the finding, of guilt recorded by the Court below was based on meticulous appreciation of evidence placed on the record.

Now coming to the magnitude of sentence, we find that considering orgy of violence, and killing of two house inmates in course of dacoity, sentences awarded to the Appellants cannot be said to be against weight of mass of evidence and hence, we find ourselves most reluctant to disturb the finding, recorded by the Court below both in respect of guilt and also sentences awarded to them. All the three appeals being meritless are accordingly dismissed. Since Appellants Hira Lal Das in Cr. Appeal No. 514 of 1999 and Rajdeo Yadav in Cr. Appeal No. 534 of 1999 are on bail, their bail bonds are cancelled and the trial Court is directed to take ail coercive steps for their apprehension and consignment to custody to serve out the remainder of sentences.

S.N. Jha, J.

I agree.