Ramjan vs State of Haryana

S.D. Bajaj, J.

Four accused named Lakhmi, Harji, Ramjan and Karam Chand were tried by the learned Additional Sessions Judge (II), Faridabad, for the commission of offences under Sections 395397 of the Indian Penal Code for having committed dacoity with attempt to cause death or grievous hurt about 11.00 p.m. on the night intervening 7th/8th December, 1983, in the house of Nand Kishore of village Malerna in Police Station, Ballabgarh, District Faridabad of Haryana State. Vide the assailed judgment dated 20.9.1985, learned Additional Sessions Judge acquitted Karam Chand and Harji, accused. Accused Lakhmi was ordered to be tried separately as and when available because in case FIR No. 211 of 1984 he had been awarded death sentence by learned Additional Sessions Judge, Sonepat, and could not, therefore, be produced by the Faridabad police before the learned trial Court. Accused appellant Ramjan was alone convicted for the commission of offences under Sections 395/397 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of seven years and to pay Rs. 200/ as fine. In default of payment of fine, the accused was ordered to undergo rigorous imprisonment for a further period of three months. Feeling aggrieved from the decision of the learned trial Court, accused Ramjan has filed Criminal Appeal No. 459SB of 1985 in this Court. Hence the appeal.

As would appear from a reading of paragraphs 3, 6, 7 and 14 of the impugned judgment, prosecution case against accusedappellant Ramjan is based on his identification, in the identification parade held by Naib Tehsildar Mahabir Parshad in Sub Jail, Bhallabgarh, on 10.9.1984 vide report Exhibit P10 and disclosure statement Exhibit PL leading to discovery of gold ring Exhibit P3, kundals Exhibit P4/1 and P4/2 and the transistor Exhibit P5, vide recovery memo Exhibit PM, from inside the chhappar forming part of the residential house of the accused, on his pointing out the place of their concealment.

In FIR Exhibit PQ, embodying first version of the occurrence, four persons are mentioned as accused; two out of them allegedly entered the bedroom of Nand Kishore and another two were allegedly standing at the door. Out of the two persons, who entered the bed room, one is stated to be black complexioned, middle structure, strong body built, wearing blue and red lining jersey and pajama and carrying a gun. The other one is stated to be smart, tall, thin and wearing a kurta and underwear and having a dhoti on his beard. Out of the two person standing at the entrance door of the bedroom of Nand Kishore, one is stated to be middle structure, tall, wearing a blue jersey and armed with a gun and the other one is stated to be middle structure, active and young. None from amongst these four persons fits in with the description of Ramjan accused given out by Savitri PW 17, who states that Ramjan was tall structure, strong built, wheat complexioned, armed with a pistol and was wearing a red colour sweater. In crossexamination, the witness stated that she could not say whether the identification of only two person was told by her to the police or of some more persons. No person from amongst the accused is given out in the FIR Exhibit PQ to be carrying a pistol/revolver nor is it stated therein that any from amongst them was wearing a red colour sweater. Identification of Ramjan could not therefore be made from the descriptions set out in the FIR. His identification was set out in the statement of Savitri, Exhibit D2, recorded by the police on 8.12.1983. It is, however, an irony of fate that, while holding the identification parade on 10.9.1984, Savitri was not called to identify Ramjan. identification of accused Ramjan by Nand Kishore, Javitri, Sukhbiro and Lal Singh is simply meaningless nor does his identification by witnesses in Court is of any help to the prosecution because he had admittedly appeared in Court earlier without muffled face before the date on which he was identified by the witness. The edifice built by the prosecution against accused Ramjan on the basis of identification in identification parade held in Sub Jail, Ballabgarh, vide memo Exhibit PL on 10.9.1984, thus stumbles down.

Furthermore, the occurrence is of 7th/8th December, 1983, while the identification parade was held on 10.9.1984, nearly 10 months after the occurrence. It was held by Supreme Court in Muthuswamy v. State of Madras AIR 1954 SC 41 : "The appellant was identified by witnesses 21/2 months after the event. It is unsafe to accept this identification. It seems evident that suspect must have been pointed out to the witnesses before and that destroys the value of investigation and identification." It was thus unsafe on the part of the learned trial Court to have relied upon the evidence of identification in a parade held ten months after the occurrence for basing the conviction of accused Ramjan thereon. Again, identification parade does not constitute substantive evidence. It can only be used as corroborative of the statement of witnesses in Court. In the present case, Lal Singh PW 13, Nand Kishore PW 14 and Savitri PW 15 did not advert to the factum of identification in the course of their statements in Court. Sukhbiro was not even produced in the witness box. Learned trial Court thus erred in treating Exhibit P10, memo of identification parade, as substantive evidence against the accused; more so when three out of the four witnesses identifying accused Ramjan had not adverted to it in the course of their statements in Court and the fourth lady witness Sukhbiro identifying accused Ramjan was not even produced in Court.

Turning now to the disclosure Exhibit PL and the discovery vide memo Exhibit PM, in pursuance of it, out of the two attesting witnesses Dharma and Jai Pal, only Dharma was produced by the prosecution in Court. The witness made bold to assert that both he and Jai Pal were called to the CIA Staff Headquarters at Faridabad through a police constable who brought them from their respective houses. Attesting witnesses of the disclosure and discovery were thus produced and not natural chance witnesses or from the locality. They served at the command of the police and could obviously be confined in by it Dharma PW20 also admitted that the police party as also the witnesses attesting the recovery, stayed outside the house. Further, according to the witness, the articles in the disclosure statement Exhibit PL were pazeb, ring and a pair of kundals, which were stated by accused Ramjan to have been concealed by him inside his house, while in the discovery memo Exhibit PM, the articles mentioned include a transistor and omit pazeb. In both Exhibit PL & PM, the place of concealment of the articles is stated to be a chhappar while, according to the witness, accused brought these articles out from inside his house; which consisted of two pucca built rooms besides the Chhappar aforesaid. It thus appears that nothing happened in the presence of the witness and he only obliged the police by attesting Exhibit Pl and Exhibit PM and making a statement in Court at their command without having heard or seen anything; otherwise the articles alleged to have been kept concealed or discovered, as given out by the witness, would have tallied with each other or at least the witness would have correctly described the place of concealment and discovery as chhappar instead of house as recorded in Exhibit PL and Exhibit PM. Both disclosure and discovery are also thus razed to the ground and inculpation of the accused based thereon wholly collapses.

A reference to the application Exhibit PR dated 7.9.1984 reveals that on this date (six days before disclosure Exhibit PL came to be recorded on 13.9.1984) the police knew that accused Ramjan was in possession of stolen property, which was subjectmatter of dacoity, and therefore, mentioned therein, "Identification parade of accused Ramjan has to be conducted........After identification parade, recovery of stolen property shall be effected." In this view of the matter, the facts mentioned by police in Exhibit PL had already been discovered by it from other sources and there could not be a fresh discovery of the same facts from the accused as recorded in disclosure statement Exhibit PL. Discovery has to be of some fact which the police had not previously learned from other sources. Learned trial Court had to be watchful against the ingenuity of the Investigating Officer in this behalf so that protection afforded by the wholesome provisions of Sections 25 and 26 of the Indian Evidence Act is not whittled down by a mere manipulation of the record of case diary. It was thus unsafe to rely on Exhibit PL for providing the guilt of the accused. Learned trial Court thus erred in basing the conviction of the accused on Exhibit PL and Exhibit PM as well.

In result, the appeal filed by Ramjan accused is accepted and his conviction and sentence, recorded by the learned trial Court in its assailed judgment of 20.9.1985, are both set aside. Accused Ramjan is ordered to be set at liberty forthwith. Fine (if realized) shall also be refunded to him.