Jeevan vs State of M.P. (Now C.G.)

Sunil Kumar Sinha, J.—Cr.A. Nos. 3160/99, 3376/99, 13/2000 & 37/2000 have been filed against the judgment dated 4th of November, 1999 passed in Session Trial No. 389/1997 by the Fourth Additional Session Judge, Bilaspur and Cr.A. No. 73/2006 has been filed against the judgment dated 28th of December, 2005 passed in Session Trial No. 389/97 (on a subsequent trial of an absconding accused) by the First Additional Session Judge, Bilaspur. By the impugned judgments, the appellants have been convicted u/ss. 395 & 397 IPC and sentenced to undergo imprisonment for life & to pay fine of Rs. 1,000/-; and R.I. for 7 years. Appellant-Sahebdas has been further convicted u/ss. 25/27 of the Arms Act and sentenced to undergo R.I. for 1 year and to pay fine of Rs. 500/-.

The facts, briefly stated, are as under:-

(i) A charge-sheet u/ss. 395 & 397 IPC and Sections 25/27 of the Arms Act was filed against 13 accused persons (A-1 to A-13). Ganesh (A-12) was absconding. Therefore, only 12 accused persons (A-1 to A-11 & A-13) were tried at the first instance and judgment dated 4th of November, 1999 was pronounced. Later on Ganesh (A-12) was subjected to trial whereafter the second judgment dated 28th of December, 2005 was pronounced.

(ii) The case of the prosecution is that in the intervening night of 15th -16th May, 1997, the appellants alongwith their associates committed dacoity in the house of Vallabh Singh (PW-8) and took cash and various articles, including silver and gold ornaments, amounting to Rs. 2 Lakhs. At the time of committing dacoity, the appellants caused grievous injuries to Vallabh Singh (PW-8). The allegations are that at that time, the appellants were holding illegal arms. In the fateful night Vallabh Singh (PW-8) was sleeping in the courtyard of the house. Dhanbai (PW-9 - wife of Vallabh Singh) was also sleeping near Vallabh Singh. At about 12 ''O'' clock Vallabh Singh woke up and saw that 6 persons wearing black pant, black-shirt and loongi etc. were present in the courtyard of their house. They caught the hands of Vallabh Singh (PW-8) and started beating him by danda. When Vallabh resisted, he was taken to a room and Vallabh Singh (PW-8), his wife Dhanbai (PW-9) and other members of the family all were put in the room by dacoits and the room was locked. The dacoits snatched gold and silver articles from Dhanbai (PW-9). Vallabh Singh was having an American licensed revolver. The revolver was also taken by the dacoits. The dacoits took the keys of various rooms of the house and searched gold and silver articles. When after commission of dacoity, the dacoits ran away from the house of Vallabh Singh (PW-8), he any how came out from the room and got a tractor and went to Mungeli, where he was examined by Dr. N.S. Chandel (PW-25) who found following injuries on his person:-

(i) Incised wound on left parietal region 4 cm x 2 cm x bone deep;

(ii) Lacerated wound on right parietal region 3 cm x 1 cm x 1 cm;

(iii) Lacerated wound on parietal region 8 cm x 1 cm x 14 cm;

(iv) Lacerated wound on right forearm 3 cm x 1 cm x 1 cm

&

(v) Contusion on left forearm.

The Doctor opined that all the injuries were caused within 6 hours. X-ray examination was advised for injury on left forearm. The injury report is Ex.-P/22. After X-ray examination it was found that there was fracture in the left forearm. X-ray reports are Ex.-P/48 & P/49. Vallabh Singh (PW-8) reported the matter to police station Lalpur, on which the First Information Report (F.I.R.- Ex.-P/10) u/ss. 395 & 397 IPC was registered. Vallabh Singh (PW-8) mentioned in the F.I.R. that he shall identify the dacoits. About the specific articles, he mentioned that he can produce the list of specific articles after verification in his house. Later on a list of specific articles (Ex.-P/11) was produced by Vallabh Singh (PW-8) which contains various gold and silver ornaments, American revolver, live cartridges, a 12 bore gun, silver coins and Rs. 4,500/- cash. License of revolver etc. were seized from Vallabh Singh (PW-8) vide seizure memo Ex.-P/12.

(iii) During the course of investigation accused-Ramadhar (A-6) was taken into custody on 24.6.97 and his discovery statement (Ex.-P/30) u/s. 27 of the Evidence Act was recorded and on his instance various gold articles were seized from the possession of accused-Mustafa (A-7) vide seizure memo Ex.-P/34 on the same day. On 24.6.97 accused-Chhote Kumar (A-2) was also taken into custody and his discovery statement (Ex.-P/31) u/s. 27 of the Evidence Act was recorded and on his instance a pocket transistor was seized from the possession of accused-Jeevan (A-3) vide seizure memo Ex.-P/35. Accused-Sahebdas (A-1) was also taken into custody on 24.6.97 and his discovery statement (Ex.-P/32) u/s. 27 of the Evidence Act was recorded and various articles (weapons of offence) were seized from his possession vide seizure memo Ex.-P/37. Accused-Kunjram (A-5) was taken into custody on 25.6.97 and his discovery statement (Ex.-P/33) u/s. 27 of the Evidence Act was recorded and a deshi-katta along with a live cartridge of 12 bore was seized from his possession vide seizure memo Ex.-P/38. Accused-Vyas Narayan (A-10) was taken into custody on 317.97 and his discovery statement (Ex.-P/24) u/s. 27 of the Evidence Act was recorded and American revolver of 32 bore loaded with 5 live cartridges and several other cartridges along with black-belt were seized from his possession vide seizure memo Ex.-P/25. Accused-Dharamdas (A-11) was taken into custody on 1.8.97 and his discovery statement (Ex.-P/43) u/s. 27 of the Evidence Act was recorded and full-pant and 2 live cartridges of 12 bore we''re seized from his possession vide seizure memo Ex.-P/44. On 24.6.97 and 25.6.97 one motorcycle, its registration book, various silver coins and loongi were seized from the possession of Chhote Kumar (A-2) vide seizure memos Ex.-P/39 & P/40.

(iv) Sahebdas (A-1), Chhote Kumar (A-2), Jeevan (A-3) and Balloo @ Dharam Singh (A-4) were put for identification on 17.7.97. The Test Identification Parade (T.I.P.) was conducted by Executive Magistrate N.K. Tiwari (PW-29). Out of 4 accused persons, Sahebdas (A-1), Chhote Kumar (A-2) and Jeevan (A-3) were identified in T.I.P. by Vallabh Singh (PW-8). However Vallabh Singh (PW-8) could not identify Ballu @ Dharam Singh (A-4). The T.I.P. memo is Ex.-P/13. Another T.I.P. was conducted on 3.8.97 by Executive Magistrate, R.P. Tiwari (PW-26). Vallabh Singh (PW- 8), in this T.I.P., identified accused-Vyas Narayan (A-10) and Dharamdas @ Kalloo (A-11). The second T.I.P. memo is Ex.-P/14.

(v) The seized articles i.e. radio transistor, silver coins, one pair of gold-bali, one pair of gold tops and one Motimala were put for identification on 10.7.97 and were duly identified by Vallabh Singh (PW-8). Their identification memo is Ex.-P/42.

(vi) Accused-Ganesh (A-12) was taken into custody on 10.5.2004 i.e. after a very long period of passing the earlier judgment on 4.11.99. In trial Vallabh Singh (PW-8) who was examined as PW-1 in second trial identified him during the trial.

(vii) The learned Session Judge on the above evidence, held that it was proved beyond all reasonable doubts that the above appellants and accused-Kalloo @ Dharamdas had participated in dacoity and they had caused grievous injuries to Vallabh Singh (PW-8), therefore, they were liable for punishment u/ss. 395/397 IPC. The Session Judge, in first trial, further held that accused-Sahebdas (A-1) and Kunjram (A-5) were also liable for punishment u/ss 25/27 of the Arms Act. Therefore above sentences were awarded to them. Kunjram (A-5) was convicted u/ss 25/27 of the Arms Act. He had already undergone for 1 year, 2 months & 6 days. It was stated at bar that Kunjram (A-5) has not challenged his conviction by filing any appeal.

(viii) Kalloo @ Dharamdas (A-11) challenged his conviction by filing a separate appeal being Cr.A. No. 3391/1999. As he died during the pendency of the said appeal on 26.8.2005, the said appeal filed on behalf of Kalloo @ Dharamdas (A-11) was dismissed as abated vide order dated 12th of January, 2009.

Learned counsel appearing on behalf of appellants-Jeevan (A-3), Sahebdas @ Ashwani Kumar (A-1), Chhote Kumar (A-2) and Vyas Narayan @ Anand (A-10) argued that the findings relating to identification of these appellants are perverse; There was no sufficient light to identify the assailants; Vallabh Singh (PW-8) was not in a position to identify the assailants; the 2 Test Identification Parades (T.I.Ps.) were mere formalities; therefore, they cannot be considered for corroboration of dock-identification by Vallabh Singh.

Vallabh Singh (PW-8) is the witness of identification. He deposed that on the fateful night, at about 12 ''O''clock when he woke up, he saw that 6 assailants came near his cot. When he tried to take out is revolver, which was kept below the pillow, 2 assailants caught his hands and took him to a distance of 5-7 steps. They started beating him. One of the assailants took out his revolver. The assailants were assaulting by danda. One of the assailants asked him to open the door of the house. In fact, he took the keys and unlocked the house. In the meantime, the children sleeping on the first floor of the house came down. The assailants took all the inmates to a room which was adjacent to the verandah. Windows of the room were opened by them. There the assailants demanded Rs. 1 Lakh. When he denied, the assailants asked for keys of almirah. He told them the place of keys. The assailants took out the keys and opened the almirahs. All the inmates were made to sit in the room. 2 assailants were guarding on the door of the room. One was holding a tangli and the other was holding a sword like knife. 2 assailants were holding danda. They were standing near the gate of courtyard. Other 2 assailants were taking out the articles from almirahs. After keeping them sitting in the room gold ear tops and silver chain, which his wife was wearing, were snatched by the assailants. He has given, description of various articles. After commission of dacoity when the assailants left his house, the room in which all the inmates were confined was locked by the assailants from outside and keys were thrown inside the room through a window. The assailants had directed them to get open the lock after half an hour. According to Para-8 of his evidence, he identified on dock Sahebdas (A-1), Vyas Narayan (A-10), Kalloo @ Dharamdas (A-11), Jeevanlal (A-3), Suresh (A-13) and Chhote Kumar (A-2) and clearly deposed that these persons had entered into his house and had participated in committing dacoity. He also deposed about the 2 Test Identification Parades (T.I.Ps.) conducted by Executive Magistrates on 2 different dates.

Learned counsel for the appellants had argued that since it was a dark-night, therefore, identification was not possible. Vallabh Singh (PW-8) has been cross-examined on this point. In Para-25 of his cross-examination, he denied the suggestion that it was a dark-night. He deposed that he had told the police that he can identify the assailants because he had seen the assailants in moon-light and also in the torch-light because the assailants were searching the things in his house in the light of torch which they were holding. Vallabh Singh (PW-8), therefore, has claimed that he had identified them in the moonlight and in the torch-light. He denied the suggestion that the assailants had covered their faces at the time of the incident. In Para-26 & 27 of his evidence he has deposed about the weapons held by the assailants and the cloths worn by them. He has proved the proceedings of T.I.P. by saying that he had identified the assailants by putting his fingers over them in the T.I.P. He has denied the suggestion that when the assailants were arrested, he had gone to police station Koni. That is to say that he clearly denied that he had any occasion to see the assailants prior to the T.I.Ps.

Mr. Marhas has argued that Dhanbai (PW-9) did not identify the appellants during the trial, therefore, their identification by Vallabh Singh (PW-8) becomes doubtful. If one of the witness could not identify the assailants on her own account, that does not mean that the evidence of identification by the other witnesses would render doubtful. In fact, this depends on capability of each witness as also various opportunities which they get to identify a person and the situation in which they get such opportunities. Dhanbai (PW-9) has clearly stated that the assailants were holding a torch and they were using the torch while committing dacoity. The dacoits had conversation with Vallabh Singh (PW-8). They had assaulted him and they had asked keys of the almirahs from Vallabh Singh. Vallabh Singh (PW-8) had told them the place where the keys were kept. The keys were searched by the assailants in the torch-light in presence of Vallabh Singh (PW-8). All the assailants took Vallabh Singh (PW-8) and his family members in a room. The assailants had not covered their faces. Therefore, Vallabh Singh (PW-8) was having ample opportunity to see their faces. Vallabh Singh (PW-8) identified the appellants in T.I.Ps. and he further identified them during the trial. The dock-identification of the above appellants made by Vallabh Singh during the trial is fully corroborated by the 2 T.I.Ps. conducted during the investigation. At the time of conducting the first T.I.P., the accused persons who were put to identification in the second T.I.P. were not arrested. Vallabh Singh (PW-8) had identified Sahebdas (A-1), Chhote Kumar (A-2) and Jeevan (A-3) in the first T.I.P. which was conducted on 17.7.97. In the second T.I.P. which was conducted on 3.8.97, he identified Vyas Narayan (A-10) and Dharamdas @ Kalloo (A-11) and he rightly identified all these persons in the dock-identification. Therefore, we do not find any infirmity in the findings recorded by the Session Court that Vallabh Singh (PW-8) had enough opportunity to identify the above appellants whom he identified during the T.I.Ps. and also during the trial and his dock-identification was fully corroborated by Test Identification Parades (T.I.Ps.).

Learned counsel for the above appellants further contended that discoveries and seizure of various articles are doubtful.

Sub-Inspector, S.P. Singh (PW-35) is the Investigation Officer. He deposed that he had recorded above discovery statements of the appellants who gave information relating to various articles and those articles were seized at the instances of appellants. Tulsiram (PW-18) is one of witnesses of memorandum and seizure. In examination-in-chief, he deposed about the discovery statements made by the appellants and seizure effected thereon. But, he admitted in the cross-examination that all the proceedings were drawn in police station Koni and all the articles were kept in the police station and those articles were shown to him in the police station. It is on this evidence it was argued that the discoveries and seizure become doubtful. Though Tulsiram (PW-18) has admitted the above facts in the cross-examination, but on this account it can not be held that the discoveries and seizure from the possession of the respective appellants become doubtful and the same cannot be acted upon.

In AIR 1978 1511 (SC) the witness attesting the seizure did not support the prosecution version. The Supreme Court laid down that if the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses do not support the prosecution version.

It is well settled that if the evidence of the Investigating Officer is found to be trustworthy and dependable and nothing material has been brought to discredit his evidence in the cross*examination or his evidence is otherwise not unreliable, the Criminal Court would be justified in convicting the accused on the sole testimony of the Investigating Officer (Please see Lopchand Naruji Jat and Another Vs. State of Gujarat, Normally in cases where the evidence led by the prosecution as to a fact depends solely on the police witnesses, the courts seek corroboration as a matter of caution and not as a matter of a rule. Thus, it is only a rule of prudence, which makes the court to seek corroboration from an independent source, in such cases while assessing the evidence of the police. But in cases where the court is satisfied that the evidence of the police can be independently relied upon then in such cases, there is no prohibition in law that the same cannot be accepted without an independent corroboration (Please see Praveen Kumar Vs. State of Karnataka,

We have carefully examined the evidence of Sub-Inspector, S.R. Singh (PW-35). He has proved the discoveries and seizure of looted articles at the instance of respective appellants in his evidence. Nothing adverse could be brought in his cross-examination regarding the discoveries aneftseizure so as to hold his evidence unreliable. We find no infirmity in his evidence so as to hold him unreliable for the purpose of discoveries and seizure of looted articles. Moreover, the case of the prosecution is not solely based on discoveries and seizure and is mainly based on identification of the dacoits by Vallabh Singh (PW-8) who duly identified them in the Court as also in the T.I.Ps.

It was also argued that the identification of the articles is also suspicious. We do not find any good ground to reject the identification of the looted articles. The Identification memo is Ex.-P/42. The identification was conducted by Executive Magistrate, J.P. Jatav (PW-36). The articles were identified by Vallabh Singh (PW-8). Various other articles of similar type were mixed with the articles put for identification and Vallabh Singh (PW-8) rightly identified his own articles. Therefore, the learned Session Judge has rightly held that the looted articles, which were seized from possession of the accused persons on various discoveries were rightly identified by Vallabh Singh (PW-8).

On appreciation of entire evidence available on record, we do not find any infirmity in the judgment and findings recorded by Fourth Additional Session Judge, Bilaspur, whereby it was held that appellants Jeevan (A-3), Sahebdas @ Ashwani Kumar (A-1), Chhote Kumar (A-2) and Vyas Narayan @ Anand (A-10) participated in commission of dacoity and were liable for punishment u/ss 395/397 IPC.

Now we shall consider the case of appellant-Ganesh (A-12).

Mr. Yogeshwar Sharma, learned counsel appearing on behalf of appellant-Ganesh (A-12), has argued that there is no discovery statement of this appellant; there is no seizure from his possession; this appellant was not put for T.I.P.; therefore, his conviction based on the dock-identification by Vallabh Singh (PW-1 in subsequent trial) can not be sustained.

In Sampat Tatyada Shinde Vs. State of Maharashtra, . the Supreme Court held that "The evidence of test identification is admissible u/s 9 of the Evidence Act; it is, at best, supporting evidence. It can be used only to corroborate the substantive evidence given by the witnesses in court regarding identification of the accused as the doer of the criminal act. The earlier identification made by the witnesses at the test identification parade, by itself, has no independent value. Nor is test identification the only type of evidence that can be tendered to confirm the evidence of a witness regarding identification of the accused, in court, as the perpetrator of the crime."

In George and Others Vs. State of Kerala and Another, the Supreme Court held that "The identification of an accused in Court is the substantive evidence of the person identifying and his earlier identification in a T.I. parade corroborates the same. In other words, want of evidence of earlier identification in a T.I. parade does not affect the admissibility of the evidence of identification in Court."

In Daya Singh Vs. State of Haryana, the Supreme Court held that "The purpose of test identification is to have corroboration to the evidence of the eye-witnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the Court."

In Munshi Singh Gautam (D) and Others Vs. State of M.P., he Supreme Court held in Para-17 that "It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant u/s 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad Vs. Delhi Administration, ; Vaikuntam Chandrappa and Others Vs. State of Andhra Pradesh, Budhsen and Another Vs. State of U.P., & Rameshwar Singh Vs. State of Jammu and Kashmir,

It is therefore clear that the test identification parades, which are conducted during the course of investigation of a crime do not constitute substantive evidence. One of their purpose is of helping the investigating agency with an assurance that the progress in the investigation into the offence is proceeding in the right direction. The identification parades are essentially governed by Section 162 of the Code of Criminal Procedure and their further purpose is to have corroboration of the evidence of the eye-witnesses in form of earlier identification. Therefore, the conviction cannot be based merely on the evidence of test identification parades 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.

In the instant case, Ganesh (A-12) was absconding. He was arrested on 10.5.2004. Therefore, no recovery could be effected. His conviction is based on the dock-identification by Vallabh Singh (PW-1). Vallabh Singh (PW-1) gave similar kind of evidence in his trial and gave similar reasons for his identification on the dock. Vallabh Singh (PW-1) has been put to lengthy cross-examination by the defence. There is no such circumstance on which his evidence of dock-identification may be discarded. The learned Session Judge has discussed about the evidence of Vallabh Singh (PW-1) in Paras -8 & 9 of the impugned judgment. Vallabh Singh (PW-1) has deposed that some light was coming from the window and it was sufficient for identification of any person and he identified the accused in the said light. He deposed in clear words that appellant-Ganesh (A-12) was also one of the assailant who entered into his house and committed dacoity on the fateful night. We have gone through the entire evidence of Vallabh Singh (PW-1) which was recorded in this subsequent trial and we find his evidence to be trustworthy for appellant-Ganesh (A-12) also. The learned First Additional Session Judge has rightly held that he was also one of the participants of the dacoity which was committed in the house of Vallabh Singh (PW-1).

Now we shall considered about the sentences awarded to the appellants.

It was argued by learned counsel for the appellants that harsh sentences of life imprisonment have been awarded to each appellant. So far as question of awarding jail sentences are concerned, it is important to keep in mind the "doctrine of just desert'' which is foundation of a criminal sentence which is to be awarded for a punishment. What one really deserves for punishment for having committed a crime is the underlying principle. The punishment must not be disproportionately great is a corollary of "just desert'' which is governed by the same principle which says that there cannot be a punishment without guilt and the basic element behind the principle is the proportion between crime and punishment. However, the determination of the quantum of-punishment would always depend upon the ancillary factors which further would be subject to the statutory obligations specifically provided by law in force.

In the instant case full sentence of life imprisonment has been awarded. Heavy and deterrent sentences should be awarded in cases of serious dacoity. It is not a case in which dacoity was committed in broad day-light. There was no assault by gun shot. The deadly weapons used while committing dacoity were not the fire arms. We are of the view that in the above facts and circumstances of the case, the sentences awarded to the appellants deserve to be modified as this matter does not call for awarding full sentences (life imprisonment) to the appellants.

We further note that separate sentences have been awarded to the appellants u/ss 395 & 397 IPC. U/s. 395 the appellants have been awarded imprisonment for life and to pay fine of Rs. 1,000/- and u/s. 397 R.I. for 7 years has been awarded to each appellant.

Section 397 IPC does not create a separate offence. It has to be read with principle offence i.e. ''robbery'' or ''dacoity''. Punishment for robbery has been provided in Section 392 and punishment for dacoity has been provided in Section 395. An accused can not be convicted u/s. 397 alone. It is only an enabling Section to provide the minimum sentence of 7 years in cases of ''robbery'' and ''dacoity'' where the offender uses a deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person.

Thus in a case like the present one, the appellants could have been convicted and sentenced u/s. 395 with the aid of Section 397 and not separately u/s. 397 IPC. Separate sentences awarded to the appellants u/s. 397 IPC, therefore, have to be set-aside For the foregoing reasons, the appeals are partly allowed. Conviction and sentences awarded to the appellants u/s. 395 and u/s. 397 IPC separately are set-aside. Instead thereof, the appellants are convicted u/ss 395/397 (395 r/w 397) IPC and sentenced to undergo R.I. for 7 years and to pay fine of Rs. 1,000/- with default sentences of R.I. for 1 year. Conviction and sentences awarded to appellant-Sahebdas @ Ashwani Kumar (A-1) under Arms Act are maintained. The direction to run the sentences concurrently shall be applicable to appellant-Sahebdas @ Ashwani Kumar (A-1).