Rajvir Singh and Another vs State of M.P.

S.K. Chuwla, J.—The two Appellants challenge their convictions u/s 393 read with Section 398 I.P.C. for attempting to commit robbery when armed with deadly weapons, u/s 307 I.P.C. for attempting to commit murder and u/s 324 I.P.C. for voluntarily causing hurt by dangerous weapons and sentences of R.I. for 7 years, R.I. for 5 years and a fine of Rs. 700/-, in default to further R.I. for 6 months and R.I. for 2 years and fine of Rs. 350/-, in delault to hinder R.I. for 3 months, indicted for the said offences respectively by judgment dated 25.8.1986 in S.T. No. 79/85 by Sessions Judge Hoshangabad.

The prosecution story briefly stated was that two miscreants entered into the hut of the Imratlal (PW-1), situated in village Raipur Nagda, Police Station Hoshaugabad on the night intervening 5th and 6th March 1985. Imratlal was aroused in those miscreants who were respectively armed with a sword and knife. They demanded Imratlal to produce box of valuables. Imratlal''s daughter Sulochanabai was aroused on hearing the noise of the incident and she tried to raise outcries. One of the miscreants silenced her by placing knife against her body. Imratlal was allowed to go out of his house by the miscreants because he made a pretext to them that he would bring the box from outside. As soon as Imratlal got out of his house, he raised outcries attracting to the scene a number of persons, including Bishram(PW 3) and Likhiram(PW4), his neighbours and Ram Mohan (PW 9), his son, who was sleeping in the very house of the incident. The miscreants then inflicted injuries on Bishram and Likhiram. Imratlal was also injured when he had earlier tried to catch the sword of a miscreant. The miscreants were forced to run away and could not loot any property. The accused/Appellants were apprehended by the police and were put up for identification in a test parade held on 7.3.1985 when they were identified as the miscreants who had committed the incident.

The learned Sessions Judge after trial held the prosecution story to be established and held the accused/Appellants guilty of the offences of attempting to commit robbery while armed with deadly weapons at the house of Imratlal (PW-1), attempting to commit murder of Bishram (PW-3) and causing hurt by dangerous weapons to Likhiram (PW-4) and Imratlal (PW-1). On the basis of these offences the accused/Appellants were convicted and sentenced by the Sessions Judge as already set out in detail in the opening paragraph of this judgment.

It appears that the finding about the guilty of the accused/Appellants solely rested on the evidence of personal identification. No doubt, the test parade in which the Appellants were put up for identification, was held very promptly after the incident. It was thus held on 7.3.1985 at 11.00 a.m., i.e. just 2 days after the incident. The test parade was conducted by Naib Tahsildar Shri K.N. Pare (PW-2) in Tahsil Office building Hoshangabad. Thalday was holiday on account of Holi. Shri Pare (PW-2) deposed that even then some persons had come to attend the tahsil office. He had mixed four of those persons with the two accused. One of the two accused was, at the material lime, an R.P.F. Constable at Hoshangabad R.P.F. Chouki. Out of four other persons mixed, one of them was also a constable. The identifying witnesses were sitting outside in the varandah of the building while the police brought the two accused inside the building in Buparda, a fact which was, however, not mentioned in the identification memo No. Ex. P-2. Shri Pare deposed that the identifying witnesses Imratlal. Bishram, Likhiram, Ram Mohan and Sulochanabai came inside and idcntihed the two accused persons in the parade, which was held but once. As against this, Bishram (PW-3) and Likhiram (PW-4) made a categorical statement that parade was held twice in which one accused was mixed with 3 others on the first occasion while the second accused was mixed with 3 other different persons on the second occasion. All this creates a doubt about the number and manner in which other persons were mixed and whether the accused persons were put up for identification just once or separately on two occasions. The proportion of other persons mixed was in any case too small to properly exclude the possibility of identification of accused persons just by chance or accident.

It docs not also appear from the evidence of Shri Pare (PW-2) that he took even the ordinary precaution of allowing the accused persons to change their places in the queue each time an identifying witness was called inside for identification. It is also not known why a police constable was mixed besides three other ordinary persons. It is true that one of the accused persons named Rajvirsingh (Appellant No. 1 herein) was at the material lime an R.P.F. Constable in R.P.F. Chouki Hoshangabad. If another police constable was mixed up for that reason it is not clear if the accused constable and the constable mixed were putting on their Khaki dresses or were made to wear ordinary clothes. In short, it appears that identification parade was held without any proper safeguards or precautions against collusion, inadvertant mistake and intentional or accidental prompting.

The most damaging admission was made by two of the identifying witnesses; namely, Imratlal (PW-1) and Ram Mohan (PW-9) who were victim and victim''s son respectively. They admitted in their cross-examination that both accused persons were brought to their village by the police and shown to them before they were put up in the lest parade. This had the effect of rendering the proceedings of test-parade a sheer farce. Reference may here be made to the case of Yashwant v. State of Maharashtra AIR 1473 S.C. 337, in which there was evidence to show that the accused was seen by identifying witnesses before the test- parade. It was held that identification parade was a mere farce.

The incident alleged in the prosecution story had taken place at the dead hour of the night. The evidence of prosecution witnesses Imratlal (PW-1), Bishram (PW-3) Likhiram (PW-4) and Ram Mohan (PW-9) given in Court that the two accused persons arraigned in the present case were the miscreants who had committed the incident, was very unsafe to be relied upon as the said evidence was based on impressions, these witnesses had got of absolute strangers seen by them in the tense moments of crime when the time was night and it is also doubilul if there was sufficient artificial light to properly see their faces. It may be mentioned that although Imratlal (PW-1) deposed that an electric light was on in his hut when the incident took place, that fact was conspicuously not mentioned in the report. Ex. P 1, lodged by Imratlal. The evidence of identification in Court loses much of its probative force also because the test parade was not held with proper safeguards and precautions and was, as already staled, more or less a farce.

One more piece of evidence was sought to be adduced against Appellant No. 1 Rajvirsingh. His colleague Constable Dhanaram (PW-7) gave evidence to show that on 5.3.1985 he and Appellant Rajvirsingh had left on train-checking duly from Hoshangabad at 7.30. p.m. for Pawarkheda Railway Station and that at about 11.30 p.m. that night Appellant Rajvirsingh had left his company at Pawarkheda saying that he wanted to get his friend seated in a train. It was further the evidence of Dhanaram that Appellant Rajvirsingh then joined him back only on the following morning at 6.45 a.m. at Hoshangabad Railway Station. In other words, the evidence is that Appellant was away from 11.30 p.m. on the fateful night, when he left his companion Dhanaram at Pawarkheda Railway Station and that he joined back Dhanaram at Hoshangabd Railway Station on the following morning at A.45 a.m. The village of the incident is said to be near Pawarkheda making it likely that the Appellant had participated in the crime. In this connection three Rojnamcha entries, Ex. P-l 0, P-11 & P-l 2, were exhibited. The Rqjnamcha entry, Ex. P-10, would show that Appellant Rajveersingh and Constable Dhanaram had both reported back at Hoshangabad Railway Station in R.P.F. Chouki at 6.45 p.m. on 6.3.1985. It is significantly not mentioned in that entry that Appellant Rajveersingh had at any lime disappeared from his duty at Pawarkhcda Railway Station during the previous night. This is, however, mentioned in another Rojnamcha entry, Ex. P-12. But there is something very fishy about the Rojnamcha entry, Ex. P-12. It mentions the time of its recording as 6.35 a.m., i.e. 10 minutes earlier than of Rojnamcha entry, Ex. P-10, which was recorded at 6.45 a.m. But strangely enough, R.P.F. Inspector Vishwakarma (PW-11) who was incharg of the Police Chouki admitted in explicit terms that Rojnamcha entry, Ex. P-12, was recorded subsequently to the Rojnamcha entry, Ex. P-10. This also appears from the circumstances that while Rojnamcha entry, Ex. P. 10, bears Rojnamcha No. 3, Rojnamcha entry, Ex. P-12, bears Rojnamcha No. 5. Yet, the time of Ex. P-12 is recorded as 6.35 a.m., i.e. earlier to the time of Rojnamcha entry, Ex. P-10, which bears the lime 6.45 a.m. This makes it highly likely that Rojnamcha entry, Ex. P-12, was ante-timed making it a very suspicious document. It is not unlikely that Rojnamcha entry, Ex. P-12, was subsequently tailored into existence to suit the prosecuted story. In the circumstances, it is not possible to pin much faith on the evidence of Constable Dhanaram that Appellant Rajvecr Singh was away from his duty for any interval of time on the fateful night.

It will not be out of place to mention here that it is very distressing to find the kind of marshal ling of evidence done by the learned Sessions Judge Shri V.D. Bajpai, since retired. The evidence of each prosecution witness is described by him in large number of paragraphs, most of them consisting of single lines. There is then parrot like repetition of the name of the same witness in each single-line paragraph until that evidence lasts. That makes the judgment not only unintelligible but also difficult to wade through. Such treatment of the evidence, which could hardly be called marshalling, is worse than useless.

Coming back to the evidence of the present case, the evidence of prosecution witnesses identifying the Appellants in Court was from its very nature a weak evidence. In order that it might carry conviction it was necessary that it should have received corroboration by evidence of test identification proceeding so held as to safeguard against collusion, inadvertent mistakes, and intentional or accidental prompting. The test proceedings in the present case were held without any kind of safeguards. Moreover, they were rendered a farce by previously showing the Appellants to the identifying witnesses. It was unsafe to hold on such evidence that identity of the Appellants as the miscreants who had committed crime in the present case, was established.

For the foregoing reasons, this appeal deserves to be allowed. The convictions and sentences of the Appellants are set- aside. They arc acquitted of the offences under Sections 393/398, 307 & 324 of the Indian Penal Code. The Appellants are on bail. They need not surrender to their bail. Their bail bonds shall stand discharged. Fines, if any, paid by them shall be refunded to them.