✦ High Court of India

Orasapara, P.S. Bangapal, District Bijapur (C.G.) v. State of Chhattisgarh, through

Case Details

1/24 (Cr.A. Nos. 726 & 873 of 2019) 2025:CGHC:2686-DB NAFR     HIGH COURT OF CHHATTISGARH, BILASPUR CRIMINAL APPEAL NO. 726 OF 2019 Lachchhu, S/o Lakku Bedta, aged about 55 years, R/o Orasapara, P.S. Bangapal, District Bijapur (C.G.) ... Appellant(s) Versus State of Chhattisgarh, through: Police Station Geedam, District South Bastar Dantewada (C.G.) ... Respondent(s) With CRIMINAL APPEAL NO. 873 OF 2019 Taati Dunar, S/o Hando, aged about 27 years, R/o Karkawada, Shringer Para, P.S. Bangapaal, District Bijapur, presently residing at Metapaal Patelpara, P.S. Katekalyan, District Dantewada (C.G.) ... Appellant(s) Versus State of Chhattisgarh, through: Station House Officer, Geedam, District Dantewada (C.G.) ... Respondent(s) ------------------------------------------------------------------------------ For Appellant [In Cr.A. No.726/2019] For Appellant [In Cr.A. No.873/2019] :- Mr. Pravin Tulsyan, Advocate. :- Mr. Sandeep Yadav, Advocate. For Respondent/State :- Mr. Ashish Shukla, Addl. Advocate General. along with Mr. Sharad Mishra, Panel Lawyer. ----------------------------------------------------------------------------- 2/24 (Cr.A. Nos. 726 & 873 of 2019) Division Bench Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (16.01.2025) Sanjay K. Agrawal, J. 1. Since both these Criminal Appeals, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short ‘CrPC’), have arisen out of the same incident and the question of law and facts also being similar in these two appeals, they have been clubbed together, heard together and are being disposed of by this common judgment. 2. Criminal Appeal No.726/2019 has been filed by the accused/appellant namely Lachchhu (A-1) and Criminal Appeal No.873/2019 has been preferred by the accused/appellant namely Taati Dunar (A-2). 3. Challenge in the present appeals is to the legality, validity and correctness of the judgment and order dated 9.4.2019 passed by learned Additional Sessions Judge (Fast Track Court), Dantewada, District South Bastar Dantewada in Sessions Case No.72/2006, by which each of the two appellants herein i.e., A-1 Lachchhu and A-2 Taati Dunar, have been convicted for offences punishable under 3/24 (Cr.A. Nos. 726 & 873 of 2019) Sections 302/149 and 147 of the Indian Penal Code, 1860 (for short ‘IPC’) and also for the offence punishable under Section 25 of the Arms Act, 1959 (for short, ‘Arms Act’) and sentenced thereunder in the manner as mentioned in the chart given below:- Conviction Sentence 1. Under Section 302/149 of IPC 1. Rigorous Imprisonment for Life. 2. Fine of Rs.100/-. 3. Rigorous Imprisonment for 01 month, in default of payment of fine. 2. Under Section 147 IPC 1. Rigorous Imprisonment 3. Under Section 25 of Arms Act. for 02 years. 2. Fine of Rs.100/-. 3. Rigorous Imprisonment for 01 month, in default of payment of fine. 1. Rigorous Imprisonment for 05 years. 2. Fine of Rs.100/-. 3. Rigorous Imprisonment for 01 month, in default of payment of fine. All the above three sentences have been directed to run concurrently. 4. Facts of the case, in brief, are that in the intervening night of 6th & 7th of November, 2005 at Village Gumalnar, more or less 33 co-accused persons including the present two appellants are said to have cordoned off the house of PW-1 Budhram and some of them entered into his house 4/24 (Cr.A. Nos. 726 & 873 of 2019) and enquired about his son Munnaram who was the Sarpanch of Village Gumalnar. PW-1 Budhram doubting them to be naxalites did not disclose the whereabouts of his son who was sleeping in the bedroom of the house. However, the accused persons kicked open the door, entered into the bedroom of his son and took him forcibly to the courtyard of the house and where they committed his murder. The said incident was witnessed by PW-1 Budhram, PW-2 Santo Bai, PW-3 Basanti Bai and PW-4 Laxmi Bai, who are father, wife, sister and mother of deceased Munnaram respectively. 5. Matter was reported to the police on telephone and in the next morning after arrival of the police, Dehati Nalishi (Ex. P-1) was recorded at the instance of PW-1 Budhram followed by recording of

Facts

Merg Intimation (Ex. P-2) and FIR (Ex. P-22) against one naxalite Rajman, his wife Phoolmati and 30 other naxalites who had come to the house of the deceased Munnaram, for offences under Sections 147, 148, 149, 302 of IPC and also under Sections 25 & 27 of the Arms Act, 1959. Crime Details Form was prepared vide Ex. P-3. After preparing inquest 5/24 (Cr.A. Nos. 726 & 873 of 2019) panchnama (Ex. P-20), post-mortem of deceased Munnaram was conducted by PW-13 Dr. H.L. Dhruv who gave his report (Ex. P-26) opining the cause of death of deceased Munnaram due to excessive external and internal bleeding and shock and the nature of his death to be homicidal. Memorandum statement of A-1 Lachchu was recorded vide Ex. P- 13 pursuant to which a Gupti was recovered from the porch of his house vide seizure memo (Ex. P-14). Similarly, pursuant to the memorandum statement (Ex. P-19) of A-2 Taati Dunar, a Gupti was also recovered at his instance from the backside of the house of A-1 Lachchhu. Statements of the witnesses were recorded under Section 161 of CrPC. Nazri Naksha was prepared by Patwari vide Ex. P-24. 6. After completion of the investigation, total 33 accused persons were charge-sheeted showing 19 of them to be absconding and after committal of the matter from the Magistrate’s Court they tried in Sessions Case No.76/2006 by learned Trial Court. On 3.8.2006, charges were framed by the learned Trial Court against the remaining 14 accused persons. Thereafter, on 27.2.2007, 8.8.2007 and 6/24 (Cr.A. Nos. 726 & 873 of 2019) 23.7.2007, out of total 14 prosecution witnesses, 9 of them i.e. PW-1 Budhram, PW-2 Santo Bai, PW-3 Basanti Bai, PW-4 Laxmi Bai, PW-5 Vijay Kumar, PW-6 Maniram, PW-7 Sudru, PW-8 Bugur Singh Atami and PW-9 Sonaru Karma were examined before the said accused persons including the present appellants. However, on 16.12.2007, in a jail break incident, 11 out of the said 14 accused persons including the present appellants i.e., A-1 Lachchhu and A-2 Taati Dunar, absconded from the jail, except Pilaram Dengal, Baldeo Singh Samrath and Madvi Budhram against which the trial continued. 7. It is apposite to mention here that in respect of the aforesaid three accused persons, Pilaram Dengal, Baldeo Singh Samrath and Madvi Budhram, a full- fledged trial was conducted in the same Sessions Trial No.72/2006 and after appreciation of the oral and documentary evidence available on record including the evidence led by all the 14 prosecution witnesses, they were ultimately convicted by the learned Trial Court vide its judgment and order dated 30.7.2011. However, in Criminal Appeal 7/24 (Cr.A. Nos. 726 & 873 of 2019) No.690/2011 preferred by the said three accused persons, this Court vide its judgment dated 25.9.2014 acquitted two accused persons i.e. Baldeo Singh Samrath and Madvi Budhram of the offences under Sections 302/149 and 147 of IPC whereas convicted only Pilaram Dengal for the said offences. Against his conviction, Pilaram Dengal preferred an SLP (Crl.) No.1553/2015 before the Supreme Court which was dismissed on 18.9.2015. 8. Subsequently, after the arrest of A-1 Lachchu on 18.1.2018 and also the arrest of A-2 Taati Dunar on 29.3.2019, since the aforesaid prosecution witnesses i.e. PW-1 to PW-9 were already examined, a trial program was prepared by the learned Trial Court and summons were issued in respect of the examination of the remaining five prosecution witnesses i.e. PW-10 Manguram - villager, PW-11 Shiv Kumar Dhruv - Head Constable, PW-12 J.C. Bharti - Patwari, PW-13 Dr. H.L. Dhruv - Medical Officer and PW-14 Rakesh Kumar Bhoi - Investigating Officer. However, since the defence counsel was not willing to cross-examine the aforesaid witnesses, learned Trial Court proceeded 8/24 (Cr.A. Nos. 726 & 873 of 2019) with the trial on the basis of the statements of PW- 10 Manguram earlier recorded on 27.2.2007, 28.4.2016 and 6.9.2017 and also the statements of PW-12 J.C. Bharti earlier recorded on 21.7.2008, 24.3.2017 and 6.9.2017 respectively. 9. Finally, vide impugned judgment and order dated 9.4.2019, the learned Trial Court found A-1 Lachchhu and A-2 Taati Dunar guilty of the offences under Sections 302/149 and 147 of IPC and also for offence under Section 25 of the Arms Act and accordingly convicted and sentenced each of them in the manner as mentioned in the chart shown above, assailing which the present appeals have been filed.

Legal Reasoning

13. After considering the peculiar facts of the present case, we are of the opinion that not conducting a TIP in this case was a fa- tal flaw in the police investigation and in the absence of TIP in the present case the dock identification of the present appellant will always remain doubtful. Doubt always 19/24 (Cr.A. Nos. 726 & 873 of 2019) belongs to the accused. The prosecution has not been able to prove the identity of the present appellant i.e. A-2 beyond a rea- sonable doubt. The relevance of a TIP, is well-settled. It de- pends on the fact of a case. In a given case, TIP may not be necessary. The non conduct of a TIP may not prejudice the case of the prosecution or affect the identification of the accused. It would all depend upon the facts of the case. It is possible that the evi- dence of prosecution witness who has iden- tified the accused in a court is of a sterling nature, as held by this Court in the case of Rajesh v. State of Haryana (2021) 1 SCC 118 and therefore TIP may not be neces- sary. It is the task of the investigation team to see the relevance of a TIP in a given case. Not conducting TIP in a given case may prove fatal for the prosecution as we are afraid it will be in the present case.

Arguments

10. Mr. P.K. Tulsyan, learned counsel appearing for A-1 Lachchhu in Criminal Appeal No.726/2019 and Mr. Sandeep Yadav, learned counsel appearing for A-2 Taati Dunar, jointly submit that PW-1 Budhram, PW-2 Santo Bai, PW-3 Basanti Bai and PW-4 Laxmi Bai, who are father, wife, sister and mother of deceased Munnaram, did not know the appellants prior to the incident and no Test Identification Parade (TIP) has been conducted in accordance with 9/24 (Cr.A. Nos. 726 & 873 of 2019) law and therefore their dock identification cannot be an admissible piece of evidence in light of the decision of the Supreme Court rendered in the matter of P. Sasikumar v. The State represented by by Inspector of Police1. They further submit that PW-1 Budhram, father of the deceased, who had lodged Dehati Nalishi (Ex. P-1) and FIR (Ex. P-22) had only named therein the name of one Rajman and his wife Phoolmati Bai and the present appellants had not been named by him or by the other prosecution witnesses and that as per his own version when the appellants had covered their face with scarf, there is no question of their identification. No TIP has been conducted in the instant case and for the first time in a village panchayat meeting the appellants were named by the villagers and as such in absence of TIP and only on the basis of dock identification and the recovery of Gupti from their possession until it is proved that the said weapon was allegedly used by the appellants in the offence in question, conviction of the appellants cannot be maintained for offences under Sections 302/149 and 147 of IPC and Section 1 2024 INSC 474 : [2024] 7 SCR 87 10/24 (Cr.A. Nos. 726 & 873 of 2019) 25 of the Arms Act and therefore they are entitled to be acquitted of the said offences. 11. Mr. Ashish Shukla, learned Additional Advocate General, however submits that on the date of incident the present appellants along with other accused persons had entered into the house of PW-1 Budhram and took away his son (deceased Munnaram), who was Sarpanch of the Village Gumalnar, for the purpose of a meeting of Salwa Judum and committed his murder and from the possession of both the appellants, Gupti has also been seized. As such, the prosecution has been able to prove its case against the appellants and their conviction and sentence for offences under Sections 302/149 and 147 of IPC and Section 25 of Arms Act are well merited and deserve to be affirmed dismissing their appeals. 12. We have heard learned counsel for parties, considered their rival submissions made herein- above and also perused the records with utmost care and circumspection. 13. As regards the primary question as to whether the death of deceased Munnaram was homicidal, 11/24 (Cr.A. Nos. 726 & 873 of 2019) learned Trial Court has answered the said question in affirmative relying upon the statement of PW-13 Dr. H.L. Dhruv who has conducted the post-mortem examination of deceased Munnaram and also proved the post-mortem report (Ex. P-26) in which he has opined the cause of death of deceased Munnaram to be due to excessive external and internal bleeding and shock and the nature of his death to be homicidal. The said finding of learned Trial Court is correct finding of fact based on medical evidence available on record and which is neither perverse nor contrary to record and as such we hereby affirm the said finding of the death of deceased Munnaram to be homicidal in nature. 14. The case is based on direct evidence of PW-1 Budhram, PW-2 Santo Bai, PW-3 Basanti Bai and PW-4 Laxmi Bai, who are father, wife, sister and mother of deceased Munnaram respectively. In order to consider the plea raised at the bar, it would be appropriate to notice herein the statement of the said witnesses in brief. 15. PW-1 Budhram is the father of deceased Munnaram. The incident had occurred in the 12/24 (Cr.A. Nos. 726 & 873 of 2019) intervening night of 6th & 7th of November, 2005 whereas his statement was recorded on 27.2.2007 after 14 months of the incident. He had reported the matter to the police vide Dehati Nalishi (Ex. P-1) in which he has named only Rajman and his wife Phoolmati (not before us). Admittedly, after the incident dock identification was conducted to identify the assailants of deceased Munnaram. In his statement recorded under Section 161 of CrPC also he has named only Rajman and Phoolmati and has not named the other three accused persons who are before us in the present appeals. In this context, it would be appropriate to notice his statement as PW-1. He has stated in his statement that in the intervening of 6th & 7th of November, 2005 the accused persons had come to his house armed with gun and taken his son (deceased Munnaram) for a meeting of Salwa Judum and at that time PW-2 Santo Bai, PW-3 Basanti Bai and PW-4 Laxmi Bai were also present in the house. However, in his cross-examination, he has clearly admitted that the accused persons were old acquaintance of him and one of the accused namely Baldeo is his co-villager 13/24 (Cr.A. Nos. 726 & 873 of 2019) and the other accused persons are the residents of the nearby villages. He has admitted that in Dehati Nalishi (Ex. P-1) and police statement (Ex. P-5) he has only named of one Rajman naxalite and his wife Phoolmati and did not name any other accused persons. He has further stated that while reporting (Ex. P-1) and recording his police statement (Ex. P- 5) he had informed that all the accused persons had put their guns on him, but he cannot tell the reason if the said statement has not been recorded in Dehati Nalishi (Ex. P-1) and police report (Ex. P-5). However, in paragraph 12 of his statement, he has also admitted that at the time of incident he could only identify Phoolmati and Rajman and could not identify the other accused persons as they were in police uniform and had covered their face with scarf and that he could only remember the name of the other accused persons after three days of the incident and therefore he could not tell the name of the other accused persons in Dehati Nalishi (Ex. P-1) and police statement (Ex. P-5). He has further stated in paragraph 13 of his statement that after his lodging the report there was a meeting took 14/24 (Cr.A. Nos. 726 & 873 of 2019) place in the village and in the said meeting itself he got the information of the incident caused by the other accused persons also and has also admitted that after the appellants having been caught by the police, no identification proceeding was conducted before him. Further, in paragraph 14, he has admitted that if the panchayat people would not have told him the name of the appellants, he could not have got the name of the appellants. As such, from the statement of PW-1 Budhram it is vividly clear that he could only identify Rajman and his wife Phoolmati at the time of incident and could not identify the other accused persons as they had covered their face with scarf and were in police uniform. Except some acquaintance with the accused persons, he did not name the other accused persons and for the first time in his statement made before the Court on 27.2.2007 he has stated to have identified the accused persons in the dock identification. The evidentiary value of dock identification will be dealt with after considering the statement of PW-2, PW-3 and PW-4. 15/24 (Cr.A. Nos. 726 & 873 of 2019) 16. PW-2 Santo Bai, wife of deceased Munnaram, has made similar statement identifying the appellants in the court that her husband was taken by the assailants/appellants. In paragraph-7 of her statement, she has stated that she did not tell the name of all the accused persons in her police statement (Ex. P-6) as she did not know all the accused persons by their name. She has further stated that no TIP was conducted. She has also admitted that she did not know the name of any other accused persons, except the name of Pilaram (who has been convicted by the Trial Court and his conviction has been affirmed by this Court and confirmed by the Supreme Court). Even she did not tell the name of Rajman and Phoolmati Bai in her police statement (Ex. P-6). As such, her statement somewhat is in the line of the statement made by PW-1 Budhram. 17. PW-3 Basanti Bai is the sister of deceased Munnaram. She has stated in her statement that while recording her police statement (Ex. D-1) she had already stated that Pilaram (convicted) had assaulted her brother Munnaram with Gupti near 16/24 (Cr.A. Nos. 726 & 873 of 2019) his neck and eyes and that she does not know the reason as to why this statement has not been mentioned in her police statement (Ex. D-1). Her statement also seems to be in line of the statement of PW-1 Budhram and PW-2 Santo Bai. 18. Similar is the statement of PW-4 Laxmi Bai, mother of deceased Munnaram, who has stated in her statement that all the accused persons had come to her house armed with gun and gupti and assassinated her son Munnaram with gupti and fled away. However, in her cross-examination, she has admitted that she did not tell the police about the accused persons while recording her statement. 19. The question for consideration is that all the aforesaid four witness i.e. PW-1 Budhram, PW-2 Santo Bai, PW-3 Basanti and PW-4 Laxmi Bai did not know the accused persons and, except Rajman, Phoolmati and Pilaram, they did not see the other accused persons as they had covered their face with scarf and were in police uniform and no TIP has been conducted by the prosecution for the good reasons known to the prosecution and they have for 17/24 (Cr.A. Nos. 726 & 873 of 2019) the first time identified the accused persons in the court proceeding. 20. In this regard, the decision of the Supreme Court rendered in the matter of P. Sasikumar (supra) may be noticed herein profitably wherein also the prosecution witnesses who identified the accused persons in the court were not known to the appellant therein and they had not seen the appellant prior to the incident and their Lordships held that since the identity of the appellant is in doubt, he cannot be convicted on the basis of doubtful evidence as to his identity. It has been observed by their Lordships in paragraphs 10, 12, 13, 14 & 15 as under:- “10. The admitted position in this case is that the test identification parade (here- inafter referred to as ‘TIP’) was not con- ducted. All the prosecution witnesses who identified the accused in the Court such as PW-1 and PW-5 were not known to the present appellant i.e., accused no.2. They had not seen the present appellant prior to the said incident. He was a stranger to both of them. More importantly, both of them have seen the appellant/accused No. 2 on the date of the crime while he was wearing a “green colour monkey cap”! 11. * * * 18/24 (Cr.A. Nos. 726 & 873 of 2019) 12. It is well settled that TIP is only a part of Police investigation. The identification in TIP of an accused is not a substantive piece of evidence. The substantive piece of evi- dence, or what can be called evidence is only dock identification that is identification made by witness in Court during trial. This identification has been made in Court by PW-1 and PW-5. The High Court rightly dis- misses the identification made by PW-1 for the reason that the appellant i.e., accused no.2 was a stranger to PW-1 and PW-1 had seen the appellant for the first time when he was wearing a monkey cap, and in the absence of TIP to admit the identification by PW-1 made for the first time in the Court was not proper. However, the High Court has believed the testimony of PW-5 who has identified accused no.2 under similar cir- cumstances! The appellant was also stranger to PW-5 and PW-5 had also seen the accused i.e., the present appellant for the first time on that fateful day i.e. on 13.11.2014 while he was wearing a green colour monkey cap. The only reason as- signed for believing the testimony of PW-5 is that he is after all an independent wit- ness and has no grudge to falsely implicate the appellant. This is the entire reasoning. We are afraid the High Court has gone com- pletely wrong in believing the testimony of PW-5 as to the identification of the appel- lant. In cases where accused is a stranger to a witness and there has been no TIP, the trial court should be very cautious while ac- cepting the dock identification by such a witness (See: Kunjumon v. State of Kerala (2012) 13 SCC 750).

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