Raju and Others vs State of Rajasthan

Nisha Gupta, J.—All these three appeals are related to same incident and arises of a common judgment hence, these appeals are being decided by this common judgment.

These appeals have been filed against the judgment dated 8.12.2009 passed by Special Judge (Dacoity Affected Area) Dholpur in Sessions Case No. 98/2006 whereby the appellants were convicted and sentenced as under:

"Raju @ Kaliya, Gajendra Singh @ Shyam Singh @ Shyam

Under Section 364A IPC R/W 11 R.D.A- to undergo Life imprisonment and penalty of Rs. 10000/- and in default to further undergo one year R.I.

Under Section 395 IPC- to undergo ten years R.I. and penalty of Rs. 5,000/- and in default to further undergo six months S.I. Under Section 148 IPC- to undergo two years R.I. and penalty of Rs. 1000/- and in default to further undergo three months S.I.

Gabda @ Gabad Singh @ Gopal

Under Section 364A IPC R/W 11 R.D.A- to undergo Life imprisonment and penalty of Rs. 10000/- and in default to further undergo one year R.I.

Under Section 395 IPC- to undergo ten years R.I. and penalty of Rs. 5,000/- and in default to further undergo six months S.I. Under Section 148 IPC- to undergo two years R.I. and penalty of Rs. 1000/- and in default to further undergo three months S.I.

Ravindra @ Raju @ Bijali; Naresh @ Shaka @ Lal Baniyan

Under Section 364A IPC R/W 11 R.D.A- to undergo Life imprisonment and penalty of Rs. 10000/- and in default to further undergo one year R.I.

Under Section 395 IPC- to undergo ten years R.I. and penalty of Rs. 5,000/- and in default to further undergo six months S.I. Under Section 148 IPC- to undergo two years R.I. and penalty of Rs. 1000/- and in default to further undergo three months S.I.

(All the sentences were ordered to run concurrently)"

The short facts of the case are that Rajendra Sharma lodged a written report (Ex. P/11) at Police Station Rojakhera Distt. Dholpur with the contention that on 4.6.2006 at about 5.30 P.M. they went to have gravel. Harikant, Shyam, Ramesh, Anil, Rishikesh, Munnalal, Virendra, Satish, Pradeep, Vinod, Satya Prakash, Siyaram and some other persons were also with them. Out of them, the dacoits took Harikant, Shyam, Ramesh, Anil, Rishikesh, Munnalal, Virendra and Satish and left other persons after giving them beating. The dacoits were 14-15 in number and all were having rifles, except two. Vinod and Raju were also there. They also went to have gravel. The dacoits left them and had not beaten them. Raju informed dacoit that he has served food and water to him. Therefore dacoits spared him. Ramakant, Lala and Munna were also with the tractor pliers. On this written report, FIR No. 94/2006 was registered on 5.6.2006. Search was made for the abducted persons finally abducted persons were released by the dacoits on 21.7.2006 and after usual investigation charge-sheet was filed against the appellants and others. The case was committed and tried by Special Judge (Dacoity Affected Area) Dholpur.

The charges were framed against the appellants for the offence under Sections 148, 364-A, 395 IPC and Section 11 of the Rajasthan Dacoits Affected Area Act which were denied by the accused persons and they claimed to be tried. The prosecution examined PW/1 Shyam, PW/2 Anil, PW/3 Harikant, PW/4 Virendra, PW/5 Satish, PW/6 Munnalal, PW/7 Rameshchand, PW/8 Rishikesh, PW/9 Vinod, PW/10 Ramnaresh, PW/11 Barelal, PW/12 Ashok Pachori, PW/13 Vinod S/o. Atarsingh, PW/14 Rajesh Kumar, PW/15 Vikalsingh, PW/16 Lakhansingh, PW/17 Rajkumar, PW/18 Thakurdas, PW/19 Siyaram, PW/20 Ramakant, PW/21 Dharmsingh, PW/22 Omprakash, PW/23 Netrapal Choudhary, PW/24 Ramvakil, PW/25 Vinod Kumar S/o. Matadeen, PW/26 Jaiprakash Singh, PW/27 Gulamnavi and PW/28 Sirmor to support its case. Prosecution has also relied upon documents Ex. P/1 to P/20.

Statements of accused persons were recorded under Section 313 Cr.P.C. Defence witness D.W. /1 Gajendra Singh was examined and documents Ex. D/1 to D/10 were also proved.

After conclusion of trial, the present appellants have been convicted and sentenced, as referred above, hence these appeals.

The contention of the counsel for the appellants is that they have been implicated falsely. The appellants were identified for the first time in the court. No test identification parade was conducted and even photos of the appellants were shown to the witnesses. No charge-sheet was filed against the appellants for the offence under Section 395 IPC. There is no reliable evidence to show that there was any demand for ransom. No ransom was paid to the appellants. Photos of the accused persons were also published in the newspaper. No recoveries have been made from the appellants and only on the oral evidence, the appellants should not be convicted.

Per contra, the contention of the learned Public Prosecutor is that PW/1 to PW/8 who were abducted by the appellants have specifically stated against the appellants. They have been identified before the court which is the substantive piece of evidence. Other witnesses who have been set free by the dacoits, also corroborated the story of the prosecution. There is clear allegation against the appellants that they demanded ransom and it has also been implicitly proved on record that after payment of 16.50 lacs as ransom then only the abducted persons were released, appellants have rightly been convicted and no interference is needed.

Heard the learned counsel for the parties and perused the judgment under appeal as well as paper book and original record of the case.

PW/1 Shyam is the person who was abducted by the appellants but he could make his escape good from the custody of the appellants. He stated that on 4.6.2006 he went on Messi D.I tractor to have gravel from the Chambal river. Harikant (PW/3) and Anil (PW/2) were also with him and when after filling the gravel he reached 1 K.M. Away, one dacoit was standing there having veil on his face and a rifle in his hand, directed him to move with him on gun-point. He moved in the direction shown by the dacoit and onwards more tractors were parked there and 5-6 dacoits were also there armed with weapons. They tied their hands behind the back. They put a sheet there and instructed them to put all their belongings, goods, money etc. In total 18 tractors were there. A mobile from one boy was also taken. Their names and addresses were recorded. Thereafter the dacoits inquired as to who are the tractor owners. Nobody named then they started beating them and they were forced to name the tractor owners, then hands of 5-6 persons were untied and they forced them to leave the place. They took them towards the river Chambal. Only 8 persons were detained who were tractor owners and others were released. The witness further deposed that he was made to carry a 15 liter plastic container and 5 liter container. They were forced to walk in line and after every two persons one dacoit was walking. First they were moved towards East thereafter they were taken towards western side and they entered into the border of Madhya Pradesh. They took them in the dense forest, they used to beat them, in case some noise was caused while carrying luggage or of anything else. Harikant and he was sent to fetch water for the dacoits. Three dacoits also accompanied them. They brought water and gave it to all dacoits. At 3.00 A.M. he was taken to fetch water. Shyam dacoit also went with him to the river. The witness further stated that after filling the container with water he handed over it to Shyam dacoit and thereafter while pretending that he is filling the bottle and he jumped in the Chambal river and swimmed to the other side of Chambal. The dacoit tried to search for him but remained unsuccessful. He reached to a house. He informed all his story to one person. He informed his family members on phone. The family members came there and he was taken to Deholi Police Station. The matter was informed to the police. The witness further identified Gajendra Singh @ Shyam and stated that he was the person who accompanied him to fetch water and he also gave beating to him. The witness also identified the accused Raju @ Kaliya and witness further stated that dacoits were talking to each other by name as Kaliya, Shyam and Madam etc.

PW/2 Anil who was taken by the dacoits on 4.6.2006 deposed before the court below on the same lines as deposed by PW/1 Shyam. He also stated that he is the tractor owner. He, Satish, Munna, Ramesh, Shyam, Harikant and Virendra etc were taken by the dacoits but Shyam could make his escape good when he was taken to fetch water. He further stated that thereafter they were taken to temple of Makhan Das in the dense forest. There they took food. Thereafter they halted at temple at Bhageshwari thereafter they moved towards Gauspur and forest of Kunwari river where they halted for 7 to 8 days then a helicopter came in their search. Police also came there and there was a cross-firing between dacoits and police. One policeman came there to whom he informed that he is an abducted person then police took him to Sariyachola. He further stated that Satish, Munna, Virendra, Rishi, Ramesh and Shyam were also abducted along with him. The witness identified Naresh @ Shaka @ Bania, Raju @ Kaliya and Gajendra @ Shyam before the court below. In cross-examination nothing has been brought on record which can shake his testimony. After framing charges against appellant Gabda the witness was again examined and he reiterated the facts which were stated earlier and also identified him before the court below. The witness further stated that Gabda was the dacoit who abducted them.

PW/3 Harikant is the another abducted person. He stated on the same lines as has been stated by other abducted persons and his contention is that he remained in custody of the dacoits for one month and 22 days. He further stated that they used to demand ransom and they demanded 16.50 lacs for their release. He also identified Raju @ Kaliya, Shyam @ Gajendrasingh and Naresh @ Shaka @ Lal Baniyan before the learned trial court and stated that Shyam @ Gajendrasingh abducted them and they used to call each other by these names. He further testified the fact that Shyam gave beating to him and he also gave slap on his ear. The witness further stated that they used to force us to have money from our families and when money was given to them only then they were released and had money not been given to them, they must have killed him and his companions who were detained. In cross-examination also he stated that earlier ransom was demanded 5 lac per person but thereafter they were released after receiving 16.5 lacs as ransom. He also identified accused Gabda as dacoit.

PW/4 Virendra is another abducted person who was abducted along with PW/1 Shyam, PW/2 Anil and PW/3 Hari Kant. He stated that they were abducted by the appellants and they used to change place of living frequently. They used to move in nights and in the day they took rest. He further stated the fact that Shyam escaped by swimming across the Chambal river on which the accused persons became annoyed and they gave severe beating to them. He further deposed that 5 lac per person was demanded and on 21.7.2006, however subsequently they were released after receipt of 16.5 lac and they were released in the dense forest of Madhya Pradesh. This witness has also identified Kaliyg @ Raju, Shaka @ Naresh and Shyam @ Gajendra Singh. The witness further stated that Shyam also gave beating to him. In-re-examination, he also identified accused persons Gajendra @ Shyam, Naresh @ Shaka, Raju @ Kaliya, Raju @ Bijali, Gabda @ Gabad Singh etc.

PW/5 Satish is another person who was abducted along with other abducted persons. He also identified Naresh @ Shaka, Gajendra Singh @ Shyam and Raju @ Kaliya and further stated that accused persons used to call Gabda as Jija, Naresh as Shaka, Rajendra Singh as Shyam and Raju as Kaliya.

PW/6 Munnalal is another abducted person who also corroborated the facts narrated by other prosecution witnesses and he identified Raju @ Kaliya, Naresh @ Shaka and Gajendra Singh @ Shyam and he further stated that Jagjivan Parihar, Dau Vanchester, Choti Madam and Badi Madam, Babu Chaha, Pandita and Heero all abducted them. He also testified the fact that after receiving 16.50 lacs by Jagjivan, they were released.

PW/7 Rameshchand other abducted person also testified on the same lines and identified Naresh @ Shaka, Shyam @ Gajendra Singh and Kaliya @ Raju as the dacoits and he stated that he saw the accused persons in Rajakhera and also continuously for two months when he remained in their custody.

PW/8 Rishikesh is other person who was abducted by the appellants. He also testified about the incident in the same manner as was stated by the earlier witnesses and also identified Shyam @ Gajendra Singh, Kaliya @ Raju and Naresh @ Shaka and further stated that Shyam inflicted injuries to him and after receipt of Rupees 16.5 lacs they were released. Had the money not paid to them, they must have killed them. Further he stated that two and half lac were given earlier. On 14th a promise was made that rest of the amount would be paid to them on 18th and after having received the total amount, they were released. The witness stated that they suffered injuries. Injuries were shown to police but they had not been medically examined. The witness further stated that money was paid to Jagjivan. Two and half lac was paid on 14th and rest of the amount was given on 18th thereafter they were released by the dacoits.

It may be noted that PW/1 to PW/8 all were abducted by the accused appellants and they stated in one voice about the manner of the incident and they are also consistent on the point that when the persons went to have gravel on their tractors, they were abducted by the accused appellants. They were taken in custody by the accused appellants. They were not allowed to go home and they remained in custody of the appellants for one month and 22 days and on 21.7.2006 they were released after taking money from the family members of the witnesses.

PW/9 Vinod is the person who was detained by the appellants but was released after he disclosed that he is not owner of the tractor but was employed as driver by the tractor owner. He stated that he was released along with other tractor drivers. Accused had forcibly retained their money and their mobiles were also taken by the dacoits. Thereafter 8 persons were detained and all others were released after giving them beating.

PW/10 Ramnaresh was also detained by the dacoits, he stated that after making 8 persons i.e. tractor owners as hostages, he was released. He stated that dacoits were having rifles. They were 12 to 13 in number and he also identified before the Court Raju @ Kaliya, Gajendra @ Shyam and Naresh @ Shaka @ Lal Baniyan. PW/11 Bare Lal stands on the same footing with Ramnaresh (PW/10) and he also identified the three appellants namely Raju @ Kaliya, Gajendra @ Shyam and Naresh @ Shaka.

PW/19 Siya Ram is the person who was detained by the appellants. He stated that 18 to 19 persons were initially detained. Thereafter 8 persons being tractor owners were made hostages and he along with others were released, but he could not identify any of the accused persons. PW/20 Ramakant stated that dacoits took Harikant, Anil, Ramesh, Shyam, Rishi, Virendra, Vinod etc. along with them and others were released. The dacoits were 10-12 in number and they put a sheet on the ground and asked everybody, to place their belongings on the sheet, this witness also corroborated the prosecution story.

PW/16 Lakhan Singh and PW/27 Gulam Nabi being the Investigating Officers proved various facets of the investigation.

All the witnesses who were abducted have specifically and in unequivocal terms stated that appellants were the accused persons who abducted them, demanded ransom and after receiving the same, they were released. The contention of the counsel for the appellants is that no test identification parade was conducted during investigation and even photos of the appellants were shown to the witnesses. It is true that no test identification parade was conducted during investigation but witnesses categorically denied that any photos were shown to them.

PW/14 Rajesh Kumar, PW/5 Satish and PW/7 Ramesh Chand stated that no photograph was shown to them. PW/1 Shyam stated that photographs of some scoundrel persons were shown to them but he could not identify any of them. Same statement was given by PW/2 Anil and PW/3 Harikant. Hence it can safely be concluded that photos of appellants were not shown to the witnesses during the investigation and further when no test identification parade was conducted by the Investigation Officer, there was no occasion to show the photos of the appellants and contention of the counsel for the appellants that photos were shown to the witnesses is of no consequence as no test identification parade was conducted to identify the accused appellants.

The contention of the counsel for the appellants is that when no test identification parade was conducted during investigation, first time identification by the appellants in the court is of no value and cannot connect the appellants with the crime. Reliance can be placed on Dana Yadav @ Dahu and Others Vs. State of Bihar, AIR 2002 SC 3325 : (2002) 7 JT 68 : (2002) 6 SCALE 447 : (2002) 7 SCC 295 : (2002) 2 SCR 363 Supp in which provisions of identification of accused person and test identification parade has been summarized and explained as under:

"(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 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 enure 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 yet not substantive one, and the same can be used only to corroborate identification of 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 despatch for the purpose of enabling the witnesses to identify either the properties which are 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 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."

In the light of the above, in the present case it can be concluded that identification of accused in court by a witness is substantive piece of evidence. The court has held in the case of Dana Yadav (supra) that it is admissible evidence but at the same time a rule of caution has been attached that it should have been corroborated by previous identification in the form of test identification parade or any other evidence.

Here in the present case, evidence of PW/1 to 8 is worth reliance as they are abducted persons who remained in the custody of the appellants for one month and 22 days they were not having any enmity with the appellants prior to the incident. The court cannot be oblivious of the fact that these witnesses were having ample opportunities to identify them as they remained with them for about 47 days, hence they were having full opportunity to see and recognize them and evidence of all these witnesses carries weight and court below has rightly relied upon them.

The evidence of these 8 witnesses who were abducted by the appellants was fortified by the evidence of PW/10 Ram Naresh and PW/11 Bare Lal. They also identified three of the appellants in spite of the fact that they were declared hostile by the prosecution, we have no hesitation in holding that accused appellants have abducted PW/1 to PW/8. PW/1 Shyam could make his escape good by jumping in river Chambal and other persons were released after ransom of Rupees 16.50 lac, was paid.

The further contention of the counsel for the appellants is that no recovery was made from the appellants and there is no evidence to show that any money was given to them. It is true that no recovery was made from the appellants. It may be noted that the magnitude of the offence is such that number of persons were abducted and kept in illegal custody for more than 40 days but Investigating Officers have taken the matter very cursorily and they have not tried to bring on record any connecting evidence. Even the family members of the abducted persons have not been examined but on faulty investigation, the appellant cannot get any benefit and reliance in this connection has been placed upon the judgment of this Court in Shakti Singh and Another Vs. State of Rajasthan, (2006) CriLJ 3017 : (2006) 4 RLW 2664 : (2006) 4 WLC 1 , where this Court has held that deficiency of defective investigation need not necessarily result in acquittal and held in para 38 thereof, as under:--

"38. It is well settled that every defective investigation need not necessarily result in acquittal. The only requirement is of extra caution by the courts, while evaluating the evidence. In a deficiency or irregularity in the investigation, it need not necessarily result in rejection of the case of the prosecution which is otherwise proved. The Court is required to look into the broader possibilities and not to get swayed by the minor contradictions or insignificant discrepancies, which are not of substantial character........."

The court is vigilant and cautious of the fact that PW/1 to PW/8 have no animosity with the appellants. There is no reason for these witnesses to implicate them falsely. Witnesses remained in custody of the appellants for about 47 days, hence their evidence is more than sufficient to record the finding of conviction against the appellants. In the totality of the circumstances, we are of the considered opinion that implicit reliance can be placed on the evidence of PW/1 to PW/8 who corroborate the evidence of each other.

Hence there is no force in the arguments raised by the counsel for the appellants and the present appeals are liable to be dismissed, being devoid of any merit.

Consequently, the appeals are dismissed.