Riyasat Ali @ Babu Khan vs State Of Chhattisgarh

Accused/appellant Lalman

Rajwade & Ramprasad Rajwade","Conviction (U/s) 302 in alternative

302/34 IPC","Sentence Imprisonment for life

with fine of Rs. 1000/- to each of

them plus default stipulations.

,302 / 120-B IPC,"Imprisonment for life with fine of

Rs. 1000/- to each of them plus

default stipulations.

Mangalsai, Komal Prasad @

Charka, Vinod Kumar and Shankar

Panika",302 in alternative 302/34 IPC,"Imprisonment for life with fine of

Rs. 1000/- to each of them plus

default stipulations.

,450 IPC,"RI for 10 years with fine of Rs.

1000/- to each of them plus default

stipulations.

,302 / 120-B IPC,"Imprisonment for life with fine of

Rs. 1000/- to each of them plus

default stipulations.

,323/34 IPC,"RI for 06 months with fine of Rs.

200/- to each of them plus default

stipulations. All sentences made to

run concurrently.

(ii) That accused Lalman was residing near the house of PW-3 and if he was known to her previously, his name should have been mentioned by her in",,

the Dehati merg.,,

(iii) That while deposing in the Court PW-3 has improved a lot and stated even those facts which are not part of the Dehati merg or her case diary,,

statement recorded on 3.4.2008 i.e. the date of incident itself.,,

(iv) That the investigating officer investigated the matter presuming that accused/appellant Lalman and Ram Prasad were known to PW-3 and that is,,

why they were not put to test identification parade whereas in the Dehati merg and her diary statement she has not stated the name of these two,,

accused persons.,,

(v) That Test Identification Parade was conducted on 1.7.2008 i.e. three months after the incident, accused persons were already arrested immeditely",,

after the incident i.e. on 8.4.2008 and therefore the delay in conducting test identification parade creates a serious doubt in the same.,,

(vi) That after recording the memorandum the accused persons were taken to the village area for making recovery of articles and therefore the,,

possibility of their being seen by PW-4 in between could not be ruled out.,,

(vii) That merely on the suspicion of PW-3, the accused persons have been implicated in the present case.",,

(viii) Reliance is placed on the decisions of the Apex court in the matter of Chetram v. State of Uttarakhand reported in (2014) 13 SCC 105, in the",,

matter of Prabhat alias Bhai Narayan Wagh and others v. State of Maharashtra reported in (2013) 10 SCC 391 and in the matter of Satrughana alias,,

Satrughana Parida and others v. State of Orissa reported in 1995 supp (4) SCC 448.,,

State counsel however supports the judgment impugned and submits that the findings recorded by the Court below convicting and sentencing the,,

accused/appellants as described above are based on due appreciation of the evidence on record and there is no infirmity in the same.,,

Heard counsel for the parties and perused the material available on record.,,

Urmila Bai (PW-3) has stated that she knew the accused/appellants and that the deceased was her husband. She has stated that some old land,,

dispute was existing between accused Lalman, his brother Baijnath and her husband, and for that her husband has been killed. According to this",,

witness, on 2.4.2008 at about 10 PM when she was sleeping with her family members, someone flashed torch light in her courtyard and after she",,

went out by lighting the earten lamp, nothing could be seen by her. However, some conversation was heard by this witness in the house of accused",,

Lalman. This witness has further stated that at about 1 AM when some persons entered her house breaking through the wall and flashed the torch,,

light again, she lit the earthen lamp and as soon as her husband woke up, they caught hold of him. She has stated that when her husband tried to",,

wriggle out of their clutches, the accused persons, seven in number, again held him and when she raised an alarm, one of them namely Vinod",,

threatened her also of being killed. This witness has stated that her husband was held by all the accused persons. She has specifically stated that,,

accused Lalman held him by neck, two by legs, two by hands and one inflicted a pointed iron-rod blow on his chest saying that as he (deceased) was",,

grabbing their land, his life would not be spared. Her husband is said to have been held by the accused persons until he died and was left only after he",,

breathed his last. On hearing the cries of this witness, number of villagers had rushed to the spot whom she narrated the entire incident. This witness",,

has further stated that in the light of earthen lamp carried by her and that of the torch carried by the accused persons, she had identified them.",,

Thereafter, her father-in-law, watchman and one of her family members went to the police station, informed about the incident and after the police",,

came to the village, she lodged the report. By putting hand on the head of accused Charka and Vinod she claims to have identified them in the test",,

identification parade conducted in jail. Likewise, she also claims to have identified two other accused persons namely Mangalsai and Shankar in the",,

same manner. As is clear from her cross-examination, there are material contradictions in her statement made in the Court and also in her case diary",,

statement. Most important aspect of the case is that according to this witness accused Lalman and Ram Prasad were already known to her but yet,,

she has not named them either in the promptly lodged Dehati merg or in the diary statement. It is further relevant to note here that in the Dehati merg,,

as also in the diary statement she has admitted that merely on suspicion she had named accused Lalman and Ram Prasad.,,

Raghuvar Prasad (PW-1) and Hullas Kumar (PW-2) have not supported the case of the prosecution and have been declared hostile. Kripal Rajwade,,

(PW-4) is a hearsay witness who was informed about the incident by one Sukhdev Prasad, and that after he went to the spot, body of the deceased",,

was lying there. He is also the witness to seizure of articles made under Ex. P-7 and P-8 which bear his signature. S.K. Singh (PW-5) is the witness,,

who collected plain and blood stained earth from the spot. Amar Sai (PW-6) is said to have been informed by his son (PW-1) about Rangamsai being,,

killed and after he went to his house, dead-body was lying in the veranda. Amar Sai (PW-7) â€" the witness to memorandum, seizure and test",,

identification parade has partially supported the case of the prosecution. Bhaiyalal (PW-8) â€" the father of the deceased has stated that on being,,

informed by two persons namely Kamalbhan and Ramsai about the death of Rangamsai he accompanied them to the spot and found the dead-body,,

lying there. Certain seizure is also stated to be made in the presence of this witness. Amar Das (PW-9) â€" the village Kotwar has stated that some,,

land dispute between accused Lalman and the deceased was going on and that on the date of incident in the night hours, after hearing noise he came",,

out of the house and accompanied Hoshram, Dhansai and Karan to the house of the deceased and found his dead-body lying on the ground with injury",,

on his chest. Dr. S.S. Gupta (PW-14) is the witness who conducted postmortem examination on the body of the deceased and gave his report Ex. P-,,

31 stating that he noticed abrasions on left knee, right knee and stab (penetrating) wound on chest. Cause of death has been opined to be shock due to",,

stoppage of heart action, and the death was homicidal in nature. Kamleshwar Prasad Painkra (PW-15) is the Patwari who prepared spot map Ex. P-",,

Umashankar Tripathi (PW-19) and Linus Kespotta (PW-23) are the police officials who assisted in the investigation. Amit Gupta (PW-20) is the,,

Nayab Tehsildar (PW-20) who conducted test identification parade vide Ex. P-26 has supported the case of the prosecution. He however has,,

admitted the fact that PW-3 could not identify accused Vinod. Falendra Kumar (PW-21) is the witness at whose instance entry was made in the,,

Rojnamcha Ex. P-29-C. Chhatrapal (PW-22) is the witness to seizure and memorandum who has supported the case of the prosecution. Tejnath,,

Singh (PW-24) is the investigting officer who has supported the case of the prosecution. He has further stated that whatever was disclosed by PW-3,,

was recorded by him.,,

We have thoroughly examined the entire material available on record including the evidence of the witnesses. Evidence makes it clear that though,,

accused Lalman and Ram Prasad were known to Urmila Bai (PW-3) yet while lodging the Dehati merg with great promptness she has not disclosed,,

their names in the same. Likewise, in the diary statement also she has not taken the names of these two accused persons. As per the Dehati merg and",,

the diary statement of PW-3 the incident occurred at 1 AM and in the light of earthen lamp and that of torch she saw the faces of accused persons.,,

This version put forth by PW-3 appears to be a falsity for the reason that if she really knew them and saw their faces at the time of occurrence, there",,

was no occasion for her not to disclose their names at both the places. It further assumes importance that as per PW-3, accused Lalman was her",,

neighbour and there was an old land dispute between them but yet she has failed to disclose his name in either of these two papers. Further, from the",,

Dehati merg and the diary statement of PW-3 it is manifest that she had suspicion that on account of old land dispute, accused Lalman killed her",,

husband with the help of other accused persons and for that only, accused Lalman and Ram Prasad were not put to the test identification parade. It is",,

a settled legal position that for the ultimate judicial adjudication the suspicion howsoever strong it is, cannot be allowed to take the place of legal proof",,

â€" {Jaharlal Das v. State of Orissa reported in (1991) 3 SCC 27}. Though the record suggests that the accused/appellants Vinod Kumar, Komal",,

Prasad alias Charka, Mangalsai and Shankar have been identified by PW-3 in the test identification parade conducted by Nayab Tehsildar (PW-",,

20) three months after their arrest yet in the absence of any plausible explanation offered by the prosecution as to how this inordinate delay in doing so,,

has occasioned, test identification parade becomes doubtful. Dealing with a case involving identical issue it has been held by the Apex Court in the",,

matter of Mullah v. State of UP reported in AIR 2010 SC 942 as under:,,

“Therefore, the following principles regarding identification parade emerge: first an identification parade ideally must be conducted as soon as",,

possible to avoid any mistake on the part of witnesses; this condition can be revoked if proper explanation justifying the delay is provided; and, (3) the",,

authorities must make sure that the delay does not result in exposure of the accused which may lead to mistakes on the part of the witnesses."" In the",,

matter of Satrughana alias Satrughana Parida (supra) also it has been held that unexplained delay in holding the test identification parade adversely,,

affects the value of evidence of identification. This is what appears to be the position in the case in hand also because the test identification parade,,

was conducted on 1.7.2008 i.e. three months after the incident though the accused persons were arrested immeditely after the incident i.e. on,,

8.4.2008. The prosecution has not advanced any reason for not holding the same promptly. In other words, the prosecution has not placed on record",,

the reason why it was not possible for it to hold the identification parade with promptitude i.e. soon after arrest. Moreover, the record reveals that",,

after recording the memorandum of accused persons they were taken to village side for effecting seizure and in these circumstances the possibility of,,

PW-3 seeing them in the meanwhile cannot be ruled out.,,

Apart from this, though the prosecution has made certain seizure on the memorandum of the accused persons and FSL report in regard to the",,

articles seized is also positive but in the absence of serological report confirming the fact that the blood so present was human blood and that too of the,,

blood group of the deceased, such seizure has no decisive value in the eye of law to uphold the conviction of the accused/appellants - (Kansa Behera",,

Vs. State of Orissa, AIR 1987 SC 1507. Furthermore, though in the court statement PW-3 has given the description of the accused persons involved",,

in commission of crime in question yet she has not specifically stated as to which of the accused caused fatal injury to the deceased and how the,,

others helped him in doing so. In addition, the court statement of Urmila Bai (PW-3) is not in consonance with the version contained in the Dehati",,

Merg and the case diary statement because everywhere she has stated differently in order to make a futile attempt of establishing the identity of the,,

accused persons, and being so it is utterly difficult to place any reliance on her testimony as regards the involvement of the accused/appellants in the",,

incident.,,

Factual and legal position sketched above does not persuade this Court to approve the erroneous findings recorded by the Court below convicting,,

the accused/appellants under various sections referred to above. Appreciation of evidence while arriving at such ill-founded conclusion has not gone in,,

the right direction and for that the accused/appellants are entitled to receive benefit of doubt and resultant acquittal of the charges levelled against,,

them. Accordingly, the appeal is allowed, judgment impugned is set aside and the accused/appellants are acquitted of the charges levelled against",,

them. Accused/appellants are reported to be in jail and therefore, they be set free forthwith if not required in any other case.",,