Ram Bhawan @ Lalloo vs State Of Madhya Pradesh

Appellant has filed this appeal against the judgment dated 27.09.2007 passed in Special case No.03/2007. Appellant was prosecuted for commission

of offence punishable under Section 364-A of IPC, under Sections 25 and 27 of Arms Act and under Sections 11 and 13 of the Madhya Pradesh

Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981 [hereinafter in short ‘the Adhiniyam 1981’]. Trial Court held the appellant guilty for

commission of offence punishable under Section 364-A of IPC and under Section 11 and 13 of the Adhiniyam 1981 and awarded a sentence of Life

with fine of Rs.2,000/-.

Prosecution story, in brief, is that abductee Chandramani Tiwari, was going to Dabhora from his residence. Sharda Prasad Yadav and another

person were with him at one and half Km. west side from Karma Nala, three unknown persons abducted them. Sharda Prasad was freed at 12

O’clock, he was told to come with a ransom money of Rs. 3 Lacs and meal for eight persons. Abductees detained two persons. Subsequently,

Sharad was also freed. Appellant was also the member of Dacoit team. Abductee was kept for near about three days. When the docoits saw the

police and there was a firing by the police, dacoits ran away in the forest. Abductee was recovered by the police. Subsequently, police arrested the

appellant and other accused persons and filed charge-sheet. During trial, appellant abjured the guilt and pleaded innocence. Trial Court held the

appellant guilty for commission of offence and awarded sentence as mentioned above.

Learned counsel for the appellant has submitted that trial Court has committed an error in holding the appellant guilty for commission of offence.

Conviction of the appellant is based solely on dock identification as deposed by (PW-4). Even the aforesaid witness did not mention the name of

present appellant in the police statement recorded under Section 161 of Cr.P.C. It is further submitted that on the same set of evidence, another co-

accused namely; Bokhai @ Dabhora @ Dabhora Kol, has been acquitted by the trial Court vide judgment dated 01.04.2009 passed in Sessions trial

No.07/2005.

Counsel for the State has submitted that there is sufficient evidence against the appellant to convict him for the commission of offence. Abductee

deposed against the appellant he has also mentioned his name. If there is defect in prosecution and TI parade was not conducted, then the appellant

would not get the benefit.

(PW-1) Raghvendra Prasad Tripathi, turned hostile. He is the witness of seizure and memorandum. He denied the fact that any Katta was seized

from the appellant before him. Neither appellant had given any memorandum before him. (PW-2) Nityanand Tiwari deposed that I do not know the

appellant abductee Chandramani is my son. My son and Sharda Prasad were going to Dabhora on bicycle on the way, docoits had abducted them.

Sharda Prasad was left free subsequently, and they had given message to come with a ransom of Rs.3 Lacs near Gurdari Pond, then Chandramani

would be freed or he would be killed him. Sharda Prasad informed me about the said incident. Thereafter, I lodged report at the Police Station which

is Ex.P-3. Police registered the report which is ExP.4. I signed both the documents. Police prepared spot map which is Ex.P-5.

(PW-4) Chandramani Tiwari is abductee. He deposed that before three years from today I was going on foot to Dabhora with Sharda Yadav.

Three miscreants stopped us and they had beaten Ramsumiran. Present appellant Ram Bhawan was there. He had beaten Ramsumiran. Thereafter.,

Ramsumiran was freed. I and Sharda Yadav were abducted. We were taken to forest of Panna. There were three persons. Present appellant was

there. At around 4 O’clock Sharda Yadav was freed. He was directed to come with an amount of Rs.3 Lacs. Miscreants had kept me for three

days in the forest, I was offered meal. They had made a demand of money from me. On third day, villagers encircled the place, there was police firing

hence, miscreants had freed me. My father did not give the ransom. In his cross-examination, he deposed that I know the appellant by face. When the

appellant was abducted me, I did not know his name.

(PW-5) Samhan Singh, prepared the spot map Ex-P-5. He further deposed that I recorded statements of Nityanand Tiwari, Sharda Prasad and

Chandramani Tripathi. (PW-6) Samaylal deposed that I prepared the arrest memo of appellant Ex-P-6. Appellant had given a memorandum and on his

memorandum which is Ex-P-1, a Katta was seized. (PW-7), Beni Prasad Verma, deposed that I recorded the FIR against unknown persons which

was lodged by Nityanand Tiwari. FIR is Ex.P-4.

(PW-3) N.P. Singh Chouhan, deposed that I was posted as Station House Officer (Incharge) at Police Station Dabhora on 13.09.2004. On the

aforesaid date, appellant was arrested and on his memorandum a Katta was seized vide seizure memo Ex.P-1. Both the witnesses signed the same.

There is no evidence except this on record. Trial Court in para 10 of the impugned judgment disbelieved that a Katta was seized from the possession

of appellant because the independent witness of seizure turned hostile and abductee deposed that appellant was armed with a wooden stick. Trial

Court convicted the appellant on the basis of sole evidence of (PW-4) Chandramani and held that (PW-4) in his evidence deposed that appellant was

on the spot. He identified the appellant, however, before incident he did not know about the appellant.

The question is whether the evidence of PW-4 in this regard is just and proper and in accordance with law or not. It is an admitted fact that no

identification parade was conducted by the police. In the FIR (Ex-P-4) it is mentioned that unknown persons had abducted PW- 4. There is a

statement of (PW-4) Chandramani recorded by the Police under Section 161 of Cr.P.C., The aforesaid statement has not been exhibited. In the

aforesaid statement, PW-4, did not mention by name that present appellant had abducted him. He mentioned the fact that three unknown persons

miscreants had abducted him. In the statement before the Court, which was recorded after three years of the incident, (PW-4) mentioned that one of

the miscreant was the appellant and his name is Ram Bhawan. He also deposed that appellant had beaten Ramsumiran.

The apex Court in the case of Kanta Prashad vs. Delhi Administration, reported in AIR 1958 SC 350 has held as under in regard to failure to hold

an identification parade.

“Failure to hold an identification parade does not make inadmissible the evidence of identification in Court. The weight to be attached to such

identification is a matter for the Courts of fact and it is not for the Supreme Court to reassess the evidence unless exceptional grounds are established

necessitating such a course.â€​

The apex Court in the matter of State of Rajasthan vs. Daud Khan reported in (2016) 2 SCC 607 has held as under in regard to dock

identification.

“44. That apart, it was recently held in Ashok Debbarma v. State of Tripura[18] that while the evidence of identification of an accused at a trial is

admissible as a substantive piece of evidence, it would depend on the facts of a given case whether or not such a piece of evidence could be relied

upon as the sole basis for conviction of an accused. It was held that if the witnesses are trustworthy and reliable, the mere fact that no TIP was

conducted would not, by itself, be a reason for discarding the evidence of those witnesses. In arriving at this conclusion, this Court relied upon a series

of decisions.[19] Earlier, a similar view was expressed in Manu Sharma v. State (NCT of Delhi)â€​

Hon’ble Supreme Court in the case of Rabindra Kumar Pal @ Dara Singh Vs. Republic of India reported in (2011) 2 SCC 490 has held as

under:

“41. It is well settled principle that in the absence of any independent corroboration like TIP held by judicial Magistrate, the evidence of eye-

witnesses as to the identification of the appellants/accused for the first time before the trial Court generally cannot be accepted. As explained in Manu

Sharma vs. State (NCT of Delhi) (2010) 6 SCC 1 case, that if the case is supported by other materials, identification of the accused in the dock for

the first time would be permissible subject to confirmation by other corroborative evidence, which are lacking in the case on hand except for A1 and

A3.â€​

The apex Court in the matter of Dana Yadav @ Dahu and others vs. State of Bihar, (2002) 7 SCC 295 has held as under that identification before

court should not normally be relied upon if the name of accused is neither mentioned in FIR or before police. In the aforesaid judgment, Hon’ble

Supreme Court exhaustively considered the case law on this point.

“6. It is also well settled that failure to hold test identification parade, which should be held with reasonable despatch, 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 in 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 catena of decisions of

this Court in the cases of Kanta Prashad v. Delhi Administration, AIR (1958) SC 350, Vaikuntam Chandrappa (supra), Budhsen (supra), Kanan and

Ors. v. State of Kerala, [1979] 3 SCC 319, Mohanlal Gangaram Gehani v. State of Maharashtra, [1982] l SCC 700, Bollavaram Pedda Narsi Reddy

(supra), State of Maharashtra v. Sukhdev Singh and Anr., [1992] 3 SCC 700, Jaspal Singh alias Pali v. State of Punjab, [1997] l SCC 510, Raju alias

Rajendra v. State of Maharashtra, [1998] l SCC 169, Ronny alias Ronald James Alwaris, (supra), George and Ors. v. State of Kerala and Anr.,

[1998] 4 SCC 605, Rajesh Govind Jagesha, (supra), State of H.P. v. Lekh Raj and Anr., [2000] l SCC 247 and Ramanbhai Naranbhai Patel and Ors.

v. State of Gujarat, [2000] l SCC 358.

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

(supra) 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.

Principal of law is that failure to hold test identification parade does not make the evidence of identification in Court inadmissible. However, if the

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. In the present case, witness (PW-4) did not mention the name

of present appellant in his statement recorded by the Police under Section 161 of Cr.P.C. Seizure of Katta has not been proved. (PW-4) abductee

after three years deposed before the Court that appellant was one of the miscreant. Another accused namely; Bokhani @ Dabhora @ Dabhora Kol

was tried in another offence by the trial Court and in that case also the witness named him in his statement before the Court first time, he was

acquitted by the trial Court vide judgment dated 01.04.2009 passed in ST No.07/2005.

In view of the aforesaid evidence and the principle of law down by the Hon’ble apex Court quoted above, in our opinion, it would not be just and

proper to convict the appellant on the basis of sole evidence of (PW4). Before the Court in which PW-4 mentioned the name of present appellant first

time. Consequently, the appeal filed by the appellant is hereby allowed. Judgment and conviction passed by the trial Court is hereby set aside.

Appellant is acquitted from the charge. Appellant is in jail, he be released forthwith, if he is not required in any other case.