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Judgment
Since both the aforesaid revision applications arises out of the common judgment of conviction passed by the learned trial Court and upheld by the
learned appellate Court as such both these applications are being disposed of by this common judgment.
Criminal Revision No. 974 of 2014 has been preferred by the petitioner- Karam Chand Soren @ Hukey, whereas Criminal Revision No. 830 of 2014
has been preferred by the rest of the petitioners namely, Dashrath Murmu, Mosho Baskey @ Charka and Hiral Manjhi @ Lala Manjhi.
The petitioners have challenged the common judgment dated 6th May, 2014 passed by the learned Additional Sessions Judge-I, Bokaro at Tenughat in
Cr. Appeal Nos. 137 of 2013 and139 of 2013, whereby the appeals preferred by the petitioners have been dismissed and the judgment of conviction
and order of sentence dated 18.07.2013 passed by the learned Judicial Magistrate, Bermo at Tenughat in G.R. No. 460/2010 (T.R. No. 777 of 2013),
whereby the petitioners have been convicted for the offence under Section 394 of the I.P.C., and were sentenced to undergo R.I. for the period of six
years with fine of Rs.5,000/- each, has been affirmed.
The prosecution case was lodged on the basis of Fardbayan (Ext-1) of the informant Naresh Kumar Manik (P.W.2) wherein it has been alleged that
on 13.05.2010 the informant was in his office at petrol pump and doing his daily routine work. At that time one young man of average height aged
about 25-30 years came and directed him on gun point to handover the money. Then due to fear he gave the money. In the meantime another staff of
petrol pump Ramjee Prasad (P.W.3) was threatened by another miscreant who also handed over the money. The miscreants took Rs. 34,000/-
wrapped in a paper, Rs.14,000/- kept in the pocket, Rs.4,000/- kept inside the table along with his PAN Card, Voter Card and Driving license and also
PAN card of his wife and car registration papers. Thereafter, both the miscreants further demanded more money. When the informant denied, the
miscreants attacked him with Bhujali but anyhow he saved himself. It is further alleged that Ramjee Prasad took away one miscreant on the pretext of
giving money and came outside from the back door. Thereafter, both the miscreants came outside and the informant also came from back side of the
petrol pump then his staff Hemant Kumar Dubey told him that one miscreant has taken away Rs.7,00/- and a LG mobile phone bearing
No.9693830054 after beating him with the butt of pistol. It is further alleged that the miscreants had looted Gautam Pandey (P.W.5) and Ashok
Kumar Sinha (P.W.6) too. One miscreant looted a Samsung mobile phone bearing no. 9853815030 and Rs.7,300/- from Ashok Kumar Sinha and
Rs.43,080/- and a china mobile No. G5-9471110624 from Gautam Pandey. When Aman Kumar Dubey wanted to flee from the quarter then one
miscreant who was watching from outside caught hold him. The miscreants remained there for about 5-7 minutes. Thereafter, all the miscreants fled
away towards Pits Modern School. The total looted amount was Rs.1,03,080/-. It is further alleged that the informant along with other staffs have
seen the miscreants in the electric light and could identify them. The accused persons also carried away one brown color bag.
On the basis of aforesaid fardbeyan of the informant the F.I.R. was registered and after investigation police submitted charge-sheet. Charges were
framed against all the petitioners and they claimed not guilty and sent up for trial.
Learned trial Court after dealing with the evidences, both oral and documentary, convicted the petitioners for the offence under Section 394 of the
I.P.C. and the same has been upheld by the learned appellate Court.
Learned counsel for the petitioner (Karam Chand Soren @ Hukey) submits that this petitioner was never put in Test Identification Parade and first
time he has been identified by P.W.-3 and P.W.-6. in the Court of Trial itself. As a matter of fact even the informant victim has not identified the
petitioner. He further submits that even the P.W.3 and P.W.6 identified the petitioner first time in the dock and the law is well settled that
identification of the petitioner in the dock without putting him in T.I.Parade is not a substantial piece of evidence and on that score alone the petitioner
deserves to be acquitted. This is a fit case in which the petitioner- Karam Chand Soren @ Hukey should have been acquitted, but the importance of
T.I.Parade has not been considered either by the learned trial Court or by the learned appellate Court as such, the instant application should be
allowed and the petitioner-Karamchand Soren should be discharged from his guilt.
The learned counsel for the petitioners- Dashrath Murmu, Mosho Baskey @ Charka and Hiralal Manjhi @ Lala Manjhi confines his argument on the
question of sentence and submits that petitioner nos. 1 and 2 has completed almost three years of custody out of total sentence of six years whereas
petitioner no.3 has served more than three and half years. He further submits that looking into the period of custody and the fact that after release on
bail they have never misused the privilege of bail and are busy in their life with their families, some leniency may be granted by this Court. He
concluded his argument by submitting that sending these petitioners back to custody will ruin their entire family and the family will face consequences.
Per contra, learned Addl. P.P. supports the impugned orders and submits that even Karam Chand Soren @ Hukey (petitioner in Cr. Revision No. 974
of 2014) has been duly identified by P.W.3 and P.W.6. P.W.3 has categorically stated that at the time of occurrence he was present along with the
other convicts. So far petitioners- Dashrath Murmu, Mosho Baskey @ Charka and Hiralal Manjhi @ Lala Manjhi in Cr. Revision No. 830 of 2014 are
concerned, they have been identified in T.I. Parade also, so no leniency should be granted against them. However, the learned Addl. P.P. did not
dispute the fact that all the petitioners have never misused the privilege of bail.
Heard learned counsel for the petitioner and learned Addl. P.P. for the State.
After going through the impugned orders and the LCR, it appears that petitioner- Karam Chand Soren @ Hukey was never put on T.I.Parade and for
the first time he has been identified in the dock. So much so that the main victim of the entire occurrence who is P.W.1 has not even identified him. It
also appears that there is a material contradiction between the depositions of P.W.3 and P.W.6 who happens to identify the petitioner Karam Chand
Soren @ Hukey. P.W.3 has deposed that the petitioner- Karam Chand Soren @ Hukey along with Dashrath Murmu, Mosho Baskey @ Charka and
Hiralal Manjhi
@ Lala Manjhi took this P.W.3 to the office where P.W.1 was sitting. He further deposed that at the time of occurrence he went to the adjacent
quarter and requested two persons to inform the police whereas P.W.6 claims to identify the petitioner and deposed that while the other co-convicts
were inside the room with P.W.1, one person that is Karam Chand Soren @ Hukey was standing outside. Thus there is material contradiction
inasmuch as P.W.3 is stating that Karam Chand Soren @ Hukey along with Dashrath Murmu took him to P.W.1 whereas P.W.6 says that Karam
Chand Soren @ Hukey was standing outside, as such relying only on the question of identification and that too in the dock will not be very safe.
It is well settled principle that ordinarily identification of an accused for the first time in Court by a witnesses should not be relied upon, the same being
from its very nature, inherently of a week character unless it is corroborated by his previous identification in the T.I. Parade or any other evidence. In
exceptional cases only evidence on identification for the first time in Court without the same being corroborated by previous identification in the Test
Identification Parade or any other evidence can form the basis of conviction. In this regard the Hon’ble Apex Court in the case ofD ana Yadav
V. State of Bihar, reported in (2002) 7 SCC 295, wherein the law has been laid down in para- 6, 7 & 38 as under;
“6. It is also well settled that failure to hold test identification parade, which should be held with reasonable dispatch, does not make the
evidence of identification in court inadmissible, rather the same is very much admissible in law. Question is, what is its probative value?
Ordinarily, identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very
nature, inherently of a weak character, unless it is corroborated by his previous identification in the test identification parade or any other
evidence. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has
seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable
corroborative evidence of the witness identifying the accused at his trial in court. If a witness identifies the accused in court for the first
time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law,
unsafe to rely on such a piece of evidence. We are fortified in our view by a catena of decisions of this Court in the cases of Kanta Prashad
v. Delhi Admn., Vaikuntam Chandrappa1, Budhsen, Kanan v. State of Kerala, Mohanlal Gangaram Gehani v. State of Maharashtra,
Bollavaram Pedda Narsi Reddy, State of Maharashtra v. Sukhdev Singh, Jaspal Singh v. State of Punjab, Raju v. State of Maharashtra,
Ronny, George v. State of Kerala, Rajesh Govind Jagesha, State of H.P. v. Lekh Raj and Ramanbhai Naranbhai Patel v. State of Gujarat.
Apart from the ordinary rule laid down in the aforesaid decisions, certain exceptions to the same have been carved out where
identification of an accused for the first time in court without there being any corroboration whatsoever can form the sole basis for his
conviction. In the case of Budhsen it was observed:
“There may, however, be exceptions to this general rule, when for example, the court is impressed by a particular witness, on whose
testimony it can safely rely, without such or other corroboration.â€
In view of the law analysed above, we conclude thus:
(a) If an accused is well known to the prosecution witnesses from before, no test identification parade is called for and it would be
meaningless and sheer waste of public time to hold the same.
(b) In cases where according to the prosecution the accused is known to the prosecution witnesses from before, but the said fact is denied
by him and he challenges his identity by the prosecution witnesses by filing a petition for holding test identification parade, a court while
dealing with such a prayer, should consider without holding a mini-inquiry as to whether the denial is bona fide or a mere pretence and/or
made with an ulterior motive to delay the investigation. In case the court comes to the conclusion that the denial is bona fide, it may accede
to the prayer, but if, however, it is of the view that the same is a mere pretence and/or made with an ulterior motive to delay the
investigation, question for grant of such a prayer would not arise. Unjustified grant or refusal of such a prayer would not necessarily
ensure to the benefit of either party nor the same would be detrimental to their interest. In case prayer is granted and test identification
parade is held in which a witness fails to identify the accused, his so-called claim that the accused was known to him from before and the
evidence of identification in court should not be accepted. But in case either prayer is not granted or granted but no test identification
parade held, the same ipso facto cannot be a ground for throwing out evidence of identification of an accused in court when evidence of
the witness, on the question of identity of the accused from before, is found to be credible. The main thrust should be on answer to the
question as to whether evidence of a witness in court to the identity of the accused from before is trustworthy or not. In case the answer is in
the affirmative, the fact that prayer for holding test identification parade was rejected or although granted, but no such parade was held,
would not in any manner affect the evidence adduced in court in relation to identity of the accused. But if, however, such an evidence is not
free from doubt, the same may be a relevant material while appreciating the evidence of identification adduced in court.
(c) Evidence of identification of an accused in court by a witness is substantive evidence whereas that of identification in test identification
parade is, though a primary evidence but not substantive one, and the same can be used only to corroborate identification of the accused
by a witness in court.
(d) Identification parades are held during the course of investigation ordinarily at the instance of investigating agencies and should be held
with reasonable dispatch for the purpose of enabling the witnesses to identify either the properties which are the subject-matter of alleged
offence or the accused persons involved in the offence so as to provide it with materials to assure itself if the investigation is proceeding on
right lines and the persons whom it suspects to have committed the offence were the real culprits.
(e) Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much
admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form the basis of conviction,
the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test
identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of
identification in court of an accused by a witness and the same is a rule of prudence and not law.
(f) In exceptional circumstances only, as discussed above, evidence of identification for the first time in court, without the same being
corroborated by previous identification in the test identification parade or any other evidence, can form the basis of conviction.
(g) Ordinarily, if an accused is not named in the first information report, his identification by witnesses in court, should not be relied upon,
especially when they did not disclose name of the accused before the police, but to this general rule there may be exceptions as enumerated
above.â€
As discussed hereinabove, neither the petitioner-Karam Chand Soren @ Hukey was put on Test Identification Parade nor there is any other
corroborative evidence except depositions of P.Ws 3 and 6 which is also contradictory in itself. Further it has also come in evidence of the prosecution
witnesses that there were other people also standing outside the office in the petrol pump as such simply on the basis of confession of the co-accused
the conviction of the petitioner is not safe.
It is well settled principle that the prosecution has to put everything to prove its case and there is no scope of any presumption or conjecture.
The learned trial Court has convicted the petitioner-Karam Chand Soren @ Hukey only on the basis of the confessional statement of the co-convicts
as well as his identification by P.W. 3 and P.W.6. However, the learned trial court itself in paragraph no.24 of its judgment has stated that the
recovery of money was from the house of other co-convicts i.e. Dasrath Murmu and Mosho Baskey and not from the custody of the petitioner.
In view of the aforesaid facts, discussions and judicial pronouncement, I am of the considered opinion that the learned trial Court has committed a
gross error in ignoring the settled principle on T.I.P and convicted the petitioner and the same error has been committed by the learned appellate Court
which deserves to be set aside.
As a result Cr.Revision No. 974 of 2014 is allowed and the petitioner- Karam Chand Soren @ Hukey shall be discharged from the liability of his bail
bonds.
So far as petitioners of Cr. Revision No. 830 of 2014 is concerned it is crystal clear that they have been identified in T.I.Parade and looking to the
limited submission of the learned counsel for the petitioners, I am not inclined to interfere with the judgment of conviction ordered against Dashrath
Murmu, Mosho Baskey @ Charka and Hiralal Manjhi @ Lala Manjhi, and the same is, hereby, confirmed.
However, so far as sentence is concerned, it is apparent from record that the incident is of the year, 2010 and almost 10 years have elapsed and it
appears from record that the petitioner no.1-Dashrath Murmu has remained in custody for 1007 days, petitioner no.2-Mosho Baskey @ Charka has
remained in custody for 1026 days and petitioner no.3 Hiralal Manjhi @ Lala Manjhi has also remained in custody for 1347 days. Further, the record
transpires that they have never misused the privilege of bail. In this view of the matter, I am of the considered opinion that sending the petitioners back
to prison will not serve any fruitful purpose, rather the sentence should be modified in lieu of fine.
As such, the sentence passed by the learned trial court and upheld by the learned appellate court is, hereby, modified to the extent that the petitioners
are sentenced to undergo for the period already undergone subject to the payment of fine of Rs. 10,000/-each.
It is made clear that the petitioners are directed to pay the aforesaid fine of Rs. 10,000/-each within a period of three months from today before the
learned District Legal Services Authority, Bermo at Tenughat, failing which they shall serve rest of the sentence as directed by the learned trial court.
With the aforesaid observations, directions and modification in sentence only, this revision application being Cr. Revision No. 830 of 2014, is disposed
of.
The petitioners-Dashrath Murmu, Mosho Baskey @ Charka and Hiralal Manjhi @ Lala Manjhi shall be discharged from the liability of their bail bonds
subject to fulfillment of aforesaid condition.
Let the lower court record be sent to the court concerned forthwith.
Let this order be sent to the learned trial court and the District Legal Services Authority, Bermo at Tenughat through FAX and also to the petitioners
namely, Karam Chand Soren @ Hukey (in Cr.Rev. 974 of 2014) and Dashrath Murmu, Mosho Baskey @ Charka and Hiralal Manjhi @ Lala Manjhi
(in Cr.Rev. 830 of 2014).