Karam Chand Soren @ Hukey vs Dashrath Murmu And Ors

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-1, Bokaro at Tenughat in

Cr. Appeal Nos. 137 of 2013 and139 of 2013, whereby the appeals preferred by the notitioner bo boondomised and the demont of monotion (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 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 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

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

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;

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 Chandrappal, 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 conuiation in the case of Budhen it

was hoored.

(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 narade or any other evidence

the previous 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.

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 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 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).