Kedar Yadav @ Pappo Yadav v. State of Chhattisgarh

Prahlad Yadav, S/o Kishun Yadav, aged 30 years Shankar Thakur, aged 25 years Thakur, S/o Santosh Thakur, aged 26 years Thakur, S/o Surajdeo Surajdeo Alt byoccupation Agricultural, No.l R/o Village Navapara/ P.S. Ramanujganj, Distt. Sarguja (C.G.) R/o No.2 Ramanujganj, Distt. Sarguja (C.G.) Deviganj, Vill. P.S. R/o No.3 Ramanujganj, Distt. Sarguja (C.G.) Tetardih, P.S. Vill. RESPONDENT: Versus The State of Chhattjsgarh, Through P.S. Ramanujganj, Distt. Sarguja •CCriminal appeals under Section 374 (2)of the Code of Crjminal Procedure, 1973} Present:

Mr. P.P. Sahu/counselforthe appellant in Cr.A.No. 183/2005. Mr. D.N. Prajapati, counsel for the appellants inCr.A.No.304/2005. Mr. Sushil Dubey, Govt. Advocate for the State/respondent. Sinale Bench: Hon'ble Mr. T.P. Sharma. J JUDGMENT (Delivered on 10th August, 2009) i. Since the aforesaid two criminal appeals are arising out of common judgment of conviction & order of sentence dated 29-1- )05 passed by the Addjtional Sessions Judge (F.T.C.), Ramanujganj in Sessions Trial No.348/2001,they are being disposed of by this common judgment.

By these two appeals the appellants have challenged legality & propriety of the judgment of convictionand order of sentence dated 29-1-2005 passed by the Additional Sessions Judge (F.T.C.), Ramanujganj in Sessions Trial No.348/2001, whereby & whereunder learned Additional Sessions Judge after holding the accused/ appellants guilty for commission of the offence of dacoity & other offences, convicted & sentenced themas under: - Name of the accused KedarYadav, ShankarThakur & Santosh Thakur Conviction Sec. 395 I.P.C. Sec. 398 I.P.C. Sec. 25 Arms Act (1) 27 Sec. Arms Act (1) Prahlad Yadav Sec. 395 I.P.C. Sec.398 I.P.C. Sentence R.I. for ten years & fine of in default Rs.5,000/- each, R.I. additional years. R.I. for seven years. R.I. for three years & fineof Rs.2,000/- each, in default R.I. additional years. R.I. for three years & fine of Rs.3,000/- each, in default R.I. additional years. R.I. Rs.5,000/-, additional R.I. for oneyear. R.I. for seven years. for ten years & fine of default hNIN(t ~^ <$;

3. Conviction & sentences are challenged on the ground that withoufr any iota of evldence especially the evidence of identification/ the Court below has convicted and sentenced the appellants only on the basis of conjectures & surmises and thereby committed illegality.

I have heard learned counsel the parties and perused the impugned judgment as also the record ofthe trial Court.

Case ofthe prosecution, in brief, is that on 27-10-2002 at about

10.30 a.m. Vinod Prasad Gupta (PW-1), driver of Om Prakash Bus Service, was driving the public transport bus bearing No.CG-15/ZA- 0103 carrying passengers, while he was crossing near Village Kanakpur, the accused persons intercepted the bus on the point of country made pistol and brought down the driver from the bus and assaulted him with club, they snatched Rs.1,000/- from his pocket& they also snatched the money collected by watch from his hand, conductor Sunii Jayaswal (PW-3) andsnatched money & other ^ articies from passengers of offence, Vinod Prasad Gupta (PW-1) Station Ramanujganj andlodged the F.I.R. vide Ex.P-1. the bus. immediately rushed to Police After the commission of Injured Vinod Prasad, Nishar, Amerika, Gafur, Ibrahim & Abdul Gafur were examined by the doctor and injuries were found on their bodies vide Exs.P-19 to P-24. The accused persons were arrested vide Ex.P-26. The accused persons Spot map was prepared vide Ex.P-2. absconded from the spot after commission of offence, but lastly they were arrested and taken into custody.

Accused Shankar Thakur made discloser statement vide Ex.P-4 relating to Rs.8,500/- & country made pistol along with cartridge. Rs.8,500/- & country made pistol along with one cartridge were recovered at the instance of accused Shankar Thakur vide Ex.P-5. Accused Santosh Thakur made discloser statement of country made pistol along with cartridges & currency notes of Rs.4/000/- vide Ex.P-6 and the same were recovered at his instance vide Ex.P-7. Accused Sudeshwar also made discloser statement of Rs.15,500/-, one Bharmar (fire arm) & substance for preparing cartridge vide Ex.P-8 and the same were recoveredat his instance vide Ex.P-9. Accused Kedar Yadav also madediscloser statement ofRs. 11/245/-, ear tops, one pair of Payal &country made pistol vide Ex.P-10 and the same were recovered at Accused Prahlad made disclpser instance vide Ex.P-11. statement of Rs.6,240/-, one tocket, country made pistol & one cartridge vide Ex.P-12 and the same were recovered at his instance •^ y vide Ex.P-13.

Fire arms weresent forexamination to the armourer and they were found jn service condition and the cartridges were found alive vide Exs.P-lSA to P-18A. Sanction for prosecution under Section 39 of the Arms Act was accorded by the District Magistrate, Sarguja vide Ex.P-25. Identification parade wasconducted by the Executive Magistrate and accused Prahlad was identified by witness Vinod.

According to the case of the prosecution, after commission of the the accused persons also committed different offences of dacoity and common discloser statements were recorded instant offence, after their detention. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Ramanujganj who in turn committed the case the Court of Sessions, Annbikapur, from where learned Additional Sessions Jydge (F.T.C.), Ramanujganj received the case on transfer fortrial.

In order to prove the guilt of the appellants, the prosecution has examined as many as 16 witnesses. Statements of the accused were recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against them and pleadedinnocence & false implication.

After affording opportunity of hearing to the parties, learned Addjtjonal Sessions Judge convicted &sentenced the appellants in the aforesaid manner.

Learned counsel for the appellants vehemently argued that this is a caseof aileged bus dacoity and the accused persons were not known to bus driver, conductor & passengers. No specific features have been recorded in the F.I.R. and the alleged identification parade was conducted on 13-3-2003 after lapse of more than four months, therefore, reliance upon the alleged identificatjon is not safe. The witnesses have deposed in their evidence that they have not jdentified and they do not know the appellants, only Kanhai Ram (PW-2) has deposed that he knows the appellants because they are residents of his village namely, Aaragahi, heis interested witness and his evidence is not reliable. The property hasalso not been identified by the persons from whom it was robbed. Learned counsel further submjts that definitely the pffence isserious, but prosecution was required to prove the cQmmission of offence against the present appellants andin absence of such proof, convictjon & sentences imposed upon the appellants are notsustainable under the law.

15.J.P.N. Singh (PW-13) who has conducted substantial part of investigation has deposed in his evidence that on 27-10-2002 Vjnod Prasad Gupta has lodged a report in Crime No. 126/2002 vide Ex.P-1. He has prepared the spot map on the spot vide Ex.P-2. He has recorded the memorandumstatement of Shankar Thakur vide Ex.P-4 on the basis of which he has recovered Rs.8,500/- & country made pistol along with cartridge from the accused vide Ex.P-5; memorandum statement of Santosh Thakur vide Ex.P-6 on the basis ofwhich he has recovered country made pistol along with cartndges & currency notesof Rs.4,000/- from the accused vide Ex.P-7; t^ memorandum statement of Sudeshwar vide Ex.P-Son the basis of which he has recovered Rs.15,500/-, one Bharmar (fire arm) & substance for preparing cartridge from the accused vide Ex.P-9; the memorandum statement of Kedar Yadav vide Ex.P-10 on the basis of which he has recovered Rs.24,550/-, ear tops, one pair of Payal ^. country made pistol from the accused vide Ex.P-11; and the memorandumstatement of Prahlad Yadav vide Ex.P-12 on the basis of which he has recoveredRs. 6/240/-, one locket, country made pistot & one cartridge from the accused vide Ex.P-13. 3.P.N. Singh (PW-13) has also stated that he has arrested the accused persons vide Exs.P-14, P-26 & P-27. He has also stated that the original memorandum &seizure have been kept in Crime No. 19/2003. i6.Kanhai Ram (PW-2) &Bajranglal Agrawal (PW-4), the wjtnessesof memorandum & recovery, have corroborated the evidence of J.P.N. Singh (PW-13). Dr. B.R. Ratre (PW-10) has deposed in his evjdence thaton 27-10-2002 he has examined Vinod Prasad, Nishad, Amerika, Gafur, Ibrahim & Abdul Gafur S/o Jeetan Miya, and found jnjuries asstated jn Exs.P-19 to P-24. Nothing has been cross- examined to this witness by the defence.

17.H.N. Nag (PW-14) has deposed in his evidence that on 13-3-2003 he conducted identification parade vide Ex.P-3 and wJtnessVinod Prasad Gupta has identified accused Prahlad. In his detailed cross- examination he has deposed about the manner in which he has arranged the identification parade and that guards were not present atthe place of identification. He has conducted identification parade inside the high school. is. Vinod Prasad (PW-1) has deposed in para 3 of his evidence that he In his cross- has correctly identjfied the accused persons. examination para 6 he has deposed that on what basis he has jdentified the accused persons. in test identification parade he hasidentified one person, but in para 15 of his cross-examjnation has admitted that the Police were present during identjfication. He has denied the suggestion that he has not He has also stated that jdentified any person but at the instance of Police heis implicating the accused persons falsely. However/in para 18 he has specifically admitted thathe has identified only one person. 8 ^ ^ t9.Ihjured persons Sunil Jayaswal (PW-3) - conductor, Kalamuddin (PW-5), Abdul Gafur (PW-8), Amerika (PW-11) & Ibrahim (PW-16) have not deposed that they have identified the accused persons. But Imamuddin (PW-6) has deposed that he has seen two persons who are committjng the dacoity and he may identify them. He has jdentjfiedaccused Santosh & Prahlad in dock identification. In para 8 of his cross-examination he has deposed that after the incident, first time he has seen the accused perspns in the Court. Nisar (PW-7) Sudeshwar & Banshidhar identified accused identification. He has also admitted in para 6 of his cross- examjnation that after the incident he has seen the two accused persbns first time in the Court.

20.1dentification in Court i.e. dock jdentification is a substantjve piece of identification attaches evidence and admissible in evidence. Test only corroborative value, it is not sine qua non in every case. Test jdentification is a rule of prudence and caution for accusation. If dock identification is otherwise reliable, then reliance can be placed In the matterof SurajPal and others v. Stateof upon the same. Haryana5while dealing with the same question it has been held by the Apex Court that the dock identification is accepted if otherwise found to be reliable. Relevant portion reads thus: dealing with various "Before contentions advanced by the learned counsel for the appellants as referred to above, we shall first state the object, identification purpose and importance of the test parade. It may be pointed out that the holding of identification parade has been in vogue since long in the past with a view to determine whether an unknown person accused of an offence is really the culprit or not, to be identified as such by those who claimed to beeyewitnesses ofthe occurrence so that they would be able to identify the culprit if produced before them by recalling the impressions of his features left on their mind.

That being so, in the very the identification parade in such nature of things, a dual purpose. investigating agency to ascertain to correctness or those witnesses who otherwise of claimed to have seen the offender of the crime as well as their capacity to identify him and on the other hand it saves the suspect from the sudden risk of being identified in the dock by such witnesses during the courseof the trial. Th'is practice of test identification as a mode of identifying an unknown person charged of an offence is an age-old method the claim of It enables serves ..^ ^B(. h^ x (1995)2 SCC 64 1 rA^ l^ ^ and it has worked well for the past several decades as a satisfactory mode and a well-founded method of criminal jurisprudence. It may also be noted that a the substantive evidence of identifying witness is his evidence made in the court but in cases where the accused person is not known to the witnesses from before who claimed to have seen the incident, in that the earliest possible opportunity after the occurrence by such witnesses is of vital importance with a view to avoid the chance of his memory fading away by the time he is examined in the court after some lapse of time.

" identification of the accused at 2i.In thematter of DayaSingh v. State of Haryana6 it hasbeen held by the Apex Court that delayin trialand identification of accused in Courtafter seven or eight years would not affect evidence pf said witnesses and conviction of accused on the basis of their testimony even in the absence of test identification their statement relating to dock identification can be relied upon. Relevant portion js reproduced as under: "It is to be borne in mind that purpose of identification is to have corroboration to the evidence of the eyewitness in the form of earlier identification and that substantive evidenceof a witness is the evidence in the Court. If that evidence is found to be reliable then absence of corroboration by identification would not be in any way material. Further, where reasons for gaining an enduring impress of the identify on the mind and memory of the witnesses are brought on record, it is no use to magnify the theoretical possibilities and arrive at conclusion - what in present day social environment infested by terrorism is really unimportant. In such cases, not holding of identification parade is not fatal • to the prosecution. "

In thecase of Ramanbhai Naranbhai Pateland others v. State of Gujarat it has been held been held by the Apex Court that identificatjon of accused for the first time in court by eyewitnesses when they did not know him earlier and when no test identification parade was held, such identification is not irrelevant or inadmissible.

In the matter of Sampaf Tatyada Shinde v. State of Maharashtra8 it has been held by the ApexCourt that the evidence of test identification is admissible under section 9 of the Evidence Act. It can be used only to corroborate the substantive evidence 6AIR2001 SC 1188 7 (2000) 1 SCC 358 8AIR1974SC791 Y OM4 essqi 'pjqD ui popJ039JS^U9Lua^e^s Jisq^ psuujyje A||e^ue4sqns 9Aeq A944 4nq 'lie^P uj aie'a ieque>f paujLuexs-ssojD seq aDuapa o^ (£T-Md) 46uis 'N'dT (i7-Md) ieM9j6v |e|6uej[eg ^ (z-Md) 'Auouuj^ss^ sjq iipajDsip jo uo^euiuuexa-ssojo 941 uj eui^Aug 4pi|9 o^ 9|qe U99q ^ou se^ aouajsa |BMej6v |e|6uejl'eg ^ (Z-Md) ujey ieL|ue>| Aq ps^ejoqojjOD uaaq 9AeL| SIUSLUS^S '(t7-Md) j9so|3S!p ^o '(£T-Md) siseq 944 uo AJSAODSJ pug s^usuja^e^s JssopsiQ 'N'dT Aq p9pj039J ussq 8Agq s^usuja^e^sjssopsip M&UJS jo siseq sqz uo AJSAOOSJ 13 s^usLus^s—iasopsip'sseosiq^urgz •AL|4-ioMisn44un 9:)U9p!A9 jiaL|4 jspuaj 4ou saop uope3ypuap!

As regards the qyestjon of commission of offence under Sections 25 (1) & 27 (1) of the ArmsAct/fire arms have been recovered from the appellants on the basis of their discloser statements and on their examinatjons the fire arms were found in workable condition. Sanction for prosecution of the appellants has been accorded by the DJstrict Magistrate vide Ex.P-25 which has been duly proved.

After appreciating the evidence available on record, learned AdditiQnal Sessions Judge has convicted & sentenced the appellants in the manner mentioned above. Conviction & sentences of appellants Kedar Yadav, ShankarThakur & Santosh Thakur under Sections 25 (1) & 27 (1) of the Arms Act are based on legal and clinching evidence sustainable under the law.

As regards the questjon of conviction 8isentences of the appellants under Sections 395 &398 oftheI.P.C., offence under Section398 of the I.P.C. is not substantive offence and it is an exaggerated form of dacoity or robbery, therefore, independent conviction & sentences of the appellants under Sections 395 & 398 of the I.P.C. are not sustainable underthe law.