Kamlish vs State
2017 Latest Caselaw 6232 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 40								       Reserved
 

 
Case :- CRIMINAL APPEAL No. - 993 of 1994
 

 
Appellant :- Kamlesh
 
Respondent :- State
 
Counsel for Appellant :- P.P. Srivastava, Apul Mishra, L.K. Pandey, S.U. Khan
 
Counsel for Respondent :- AGA
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Shailendra Kumar Agrawal,J.

(Delivered by Hon'ble Shailendra Kumar Agrawal, J.)

1. This Criminal Appeal has been filed by the accused/ appellant Kamlesh challenging the impugned judgment and order dated 05.07.1994 passed by Special Judge (D.A.A.), District- Jhansi in Sessions Trial No.23 of 1993 (State of U.P. Vs. Brindavan and others); Crime No.22 of 1993, Police Station Moth, District Jhansi, whereby accused/ appellant was convicted and sentenced under Section 394 read with Section 397 IPC with seven years' rigorous imprisonment and under Section 302 read with Section 34 IPC with life imprisonment and both the sentences were ordered to run concurrently.

2. The brief facts of the case are that a written report Ex. Ka-1 scribed by complainant Vinod Kumar (PW-1) himself was lodged at Police Station Moth on 31.03.1993 at 5.45 a.m. against unknown persons alleging therein that on 31.01.1993 he along with his father Sonelal (driver) was carrying the goods in truck no. UMO 9780 from Madras to Oraiya and when they reached near village Amara at Jhansi - Kanpur Road at about 5.00 a.m., the wheel of his truck got punctured. The moment when the wheel was being changed, four miscreants reached there, out of them two were armed with Tamancha, one was armed with spade (Gainti) and the last one was armed with iron rod, and started beating them and one miscreant fired on Sonelal, due to which he got injured. Rs.30,000/- and two wrist watches (Make Alvin and Jyco) which were kept in black sweater, were also snatched. Another truck bearing registration no. UP-78B-1796 of the same company accompanying with him was also parked there, in which also loot was committed and its occupants beaten up. The injured Sone Lal was brought to Medical Hospital, Moth, where he died. He also alleged that he and his companions of another truck can recognize the looted articles as well as the miscreants if they were produced before them.

3. On the basis of this written report Ex. Ka-1, formal chik report Ex. Ka-19 and G.D. Ex. Ka-29 were prepared on 31.01.1993 at 5.45 a.m. and the case under Sections 394/302 IPC was registered against unknown persons.

4. Thereafter, the Investigating Officer recorded the statements of the witnesses and inspected the place of occurrence and prepared site plan Ex. Ka-14. He also prepared Panchayatnama of the dead body of Sonelal, the letters to C.M.O. and R.I., also prepared challan lash, photo lash and sample of seal, which are Ex. Ka-7 to Ka-13 respectively. Empty cartridge, blood stained and simple earth were also taken into possession and the memos were prepared as Ex. Ka-15 and Ka-16 respectively.

5. During investigation, complicity of accused persons was found and on the information of informer, accused Brindavan and Kamlesh sons of Guman were arrested in the night of 31.01.1993/01.02.1993 brought to the Police Station and they were confined in lock up. Entry in this regard was made in G.D. Ex. Ka-17. Nothing was recovered from possession of these accused. Involvement of two co-accused namely Kamlesh son of Kishori (appellant) and Balram was also found and they surrendered in the court on 15.02.1993 and 18.02.1993 respectively.

6. The autopsy was conducted on the corpse of Sone Lal by Dr. A.K. Saxena, Medical Officer on 01.02.1993 at 3.30 p.m. and the following ante-mortem injuries were found:-

1. Incised wound 3cm x 1cm bone deep over left side face, 6 cm infront of fragus of left ear.

2. Incised wound 2cm x 0.5cm x muscle deep over left side neck, 7 cm from injury no.1.

3. Incised wound 2cm x 0.5cm x bone deep over outer 1/3 of left eye brow.

4. Incised wound 7cm x 1.5cm x bone deep, vertically over left side scalp 9 cm above medial end, left eye brow, under observation, there was fracture of left parietal bone.

5. Incised wound 5cm x 1cm x 13cm deep, vertically over left side scalp, 7cm from top of the ear.

6. Incised wound 6cm x 1cm x bone deep, horizontally over scalp, occipital region, 7cm from top of ear.

7. Gun shot wound of entry 6cm x 3cm x muscle deep over outer side of right upper arm, middle part. Blackening was present all over the wound. Margins were inverted from C65 pellets, two Tikuli and a plastic khokha were recovered.

8. Gun shot wound of entry 2cm x 2cm x cavity deep over right side of abdomen. Blackening was also present all around.

The doctor has opined that the cause of death was due to shock and haemorrhage on account of ante-mortem injuries. The postmortem report Ex. Ka-2 was prepared.

7. Test identification of all the four accused was held in District Jail, Jhansi on 22.03.1993, which is as under:

(a) accused Kamlesh son of Kishori was identified by PW-1/ complainant Vinod Kumar, PW-2 Dhaniram, PW-3 Radhey Shyam and PW-4 Hari Prakash;

(b) accused Balram son of Jaggo was identified by PW-3 Radhey Shyam and PW-4 Hari Prakash;

(c) accused Brindavan was identified by PW-1 Vinod Kumar, PW-3 Radhey Shyam and PW-4 Hari Prakash; and

(d) accused Kamlesh son of Guman was identified by PW-1 Vinod Kumar only.

The memo of test identification, Ex. Ka-3 was prepared by PW-6 Sri K.N. Srivastava, Executive Magistrate, conducting the identification parade.

8. Other injured Ram Singh, Radhey Shyam and complainant Vinod Kumar were also examined by PW-7 Dr. Ajay Kumar Vaidh at District Hospital, Jhansi and their medical examination reports Ex. Ka-4 to Ka-6 respectively were prepared, according to which the injuries sustained by aforesaid injured were simple in nature.

9. After completion of investigation, charge sheet Ex. Ka-18 was submitted by the Investigating Officer against all the four accused persons namely Kamlesh son of Kishori (appellant), Kamlesh son of Guman, Vrindavan son of Shobha Ram and Balram son of Jaggu Ahirvar for the offences under Sections 394 & 302 IPC.

10. Learned Special Judge (D.A.A.), Jhansi framed charges against all the four accused including the appellant on 28.05.1993 for the offences under Section 394 r/w Section 397 IPC and Section 302 r/w Section 34 IPC. All the four accused including the appellant pleaded not guilty and claimed to be tried.

11. To substantiate the charge, the prosecution has examined following witnesses:-

i. Vinod Kumar, complainant of the case and main eye witness of the occurrence as PW-1;

ii. Dhaniram, one of the eye witnesses as PW-2;

iii. Radhey Shyam, injured eye witness as PW-3;

iv. Hari Prakash, injured eye witness as PW-4;

v. Dr. A.K. Saxena, conducted autopsy on the corpse of Sone Lal and prepared postmortem report Ex. Ka-3 as PW-4;

vi. Sri K.N. Srivastava, Special Executive Magistrate, held the identification parade on 22.03.1993 as PW-6;

vii. Dr. Ajay Kumar Vaidh, medically examined injured Ram Singh, Vinod Kumar and Radhey Shyam as PW-7; and

viii. S.I. Chinta Mani Singh, Investigating Officer of the case as PW-8.

12. Accused-appellant in his statement u/s 313 Cr.P.C. has denied all material facts of the prosecution. He has stated that his photograph was taken from his house and shown to the witnesses before identification. He has further stated that he has been falsely implicated in this case due to enmity and party-bandi in village. No defence evidence was produced by the accused-appellant.

13. After scrutinizing and appreciating the evidence, available on record, the learned trial court acquitted all the accused except accused-appellant Kamlesh son of Kishori, who has been convicted for the offences under Sections 394 r/w Section 397 IPC and 302 r/w Section 34 of I.P.C. more or less on the same set of facts.

14. Heard Sri Apul Mishra, learned counsel for the appellant and Sri Saghir Ahmad, learned A.G.A. for the State and perused the record.

15. Learned counsel for the appellant has argued that the accused-appellant Kamlesh is not named in the FIR. Now the question arises how the name of accused-appellant Kamlesh and other co-accused came into light as the convicted or acquitted accused were not known to the witnesses before the occurrence; no recovery of any robbed article has been effectuated from any of the accused; there was no source of light on the spot, then how the accused-appellant was identified by the witnesses. His case is not different in any way with other co-accused.

16. Per contra learned A.G.A. has submitted that this accused along with other co-accused were identified in the test identification parade in jail conducted by the Special Magistrate, PW-6, Sri K.N. Srivastava and after that during proceedings of trial this accused-appellant was identified by all the witnesses in the trial court. There was sufficient source of light on the spot to identify the appellant. This was sufficient evidence against the accused.

17. In this case the main question, which is to be seen is that whether there was any occasion or source of light to the witnesses to identify any of the accused on the spot. No accused is named in the FIR, any of the witness has not disclosed the name of any of the accused in their statements recorded under Section 161 Cr.P.C. This incident took place on 31.01.1993 at 5.00 a.m. when the complainant/ PW-1 Vinod Kumar and his other companions were returning from Madras and when they reached to Jhansi Kanpur Road, one of the wheels of his truck got punctured and when he was in the process of changing the wheel of his truck, four miscreants came, out of whom two were having Tamancha, one was having spade (Gainti) and the last one was having iron rod. The moment they reached there, they started beating the witnesses/ victims. All the witnesses namely PW-1 Vinod Kumar, PW-2 Dhani Ram, PW-3 Radhey Shyam and PW-4 Hari Prakash, the witnesses of fact, present on the spot, have corroborated this fact in their examination-in-chief, that the moment when the miscreants reached on the spot, they started beating them and after tying them threw in the nearby fields. It also transpires from the evidence of the witnesses that there were two trucks. PW-1 was sitting in the truck bearing registration no. UMO-9780, of which a wheel was got punctured and another truck was behind this truck. However, there is major contradiction in the statement of witnesses as to which truck was standing in rear side.

18. As per evidence of all the witnesses when they were in the process of changing the punctured wheel, the miscreants reached there and immediately they started beating the witnesses/ victims and also Ram Singh, the driver of the other vehicle and the same moment they were taken to nearby field and were also beaten there and after that Sone Lal, father of PW-1, who was sleeping in truck no. UMO-9780 was brought there and some scuffle took place between Sone Lal and accused and he was shot dead on the spot. Naturally the question arises how the witnesses identified the accused as the incident had taken place at 5.00 a.m. in January, 1993 and at that time there was darkness. The first question which arises is that what was the source of light on the spot. The witnesses of fact have not stated anything regarding the source of light in their examination-in-chief. PW-1 has stated in his cross-examination that lights of indicator and headlight of his truck were on and the miscreants were also flashing torch and in that light he saw the miscreants and identified them. The indicators were blinking, but he has also admitted in his cross-examination that he did not state anything about the torch to the Investigating Officer. He has also admitted that the headlight of the truck which was standing behind his truck, was not on while the parking light was on. He has also admitted that there was darkness, but the miscreants were illuminating the crime scene by flashing the torches and they were also flashing the torch light on their eyes, faces and other parts of the body. PW-1 has also stated that he and others were keeping themselves warm by burning the woods on the spot. The woods were burning lightly emitting mild heat. Question arises how anyone can see other, if the torch is being flashed on face.

19. PW-2 Dhani Ram has not stated anything regarding source of light in examination-in-chief or in his cross-examination. He has only stated that the moment miscreants reached on the spot, they stood up and the miscreants started flashing their torches on each other. This statement of PW-2 cannot be believed as there was no reason for the miscreants to flash torch on each other, rather if the miscreants would have used the torch, they would have flashed the torch on victims. So evidence of PW-2 is of no value in this regard.

20. As far as statement of PW-3 is concerned, he has stated that he had seen and recognized three miscreants in the board's light and inside light of the vehicle as well as in the light of fire. But in his cross-examination he has stated that it was a dark night and he could not recognize the miscreants in proper manner. He had seen the miscreants inchmeal in the light. Regarding this appellant Kamlesh, he has stated that he did not see his hairs and moustache on the spot and he also did not state to the Investigating Officer that this appellant was of wheatish colour and his cheek bone was raised and he could not recognize this accused very well and the Investigating Officer has also admitted that PW-3 did not tell him that they had any torch or flashed over miscreants. PW-3 has stated that their two torches were snatched by the miscreants. PW-3 has also stated that from the burning woods, heat was there but flame was not emerging, rather smoke was emerging. He has also stated that the Investigating Officer did not collect the ashes and half burnt woods. Investigating Officer also accepted that he did not take any sample of ashes and half burnt wood from the spot though those were present there. However, the Investigating Officer has stated that this witness did not tell him anything regarding getting heat from fire. The Investigating Officer has also admitted that PW-3 did not tell above facts regarding the appellant. Question arises that in absence of these facts how the Investigating Officer reached to conclusion regarding only role of the appellant.

21. As regards evidence of PW-4 Hari Prakash is concerned, he has also stated that this incident occurred at 5.00 a.m. There was some darkness, but light of his truck was on and some fire was burning behind the truck. The light of upper portion of window of truck was also on. This witness has clearly stated that headlight of the other truck was not on. Dim light of cabin side of the truck was on, which was nine feet above from the ground and covered with glass. It was fitted on the above portion of the window at the level of roof of cabin of truck. If it be treated as correct, how that light would be useful to identify anyone and keep that in memory. Contrary to the evidence of other witnesses he has stated that there was flame in the fire of wood. This witness contrary to the other witnesses has also stated that they had only torch which was kept in the truck and the miscreants did not snatch any torch from their hands.

22. Now if we analyze the evidence of these witnesses regarding source of light, we find that it was the month of January and time was 5.00 a.m. and in that part of the year the sun rises at 7.00 a.m. All the witnesses have stated that there was total darkness in the field, hence there was no occasion for any witness to recognize and identify any of the miscreants because there was no source of light. There are material contradictions in the statements of the witnesses. Someone is stating that flame was emerging from the fire of wood while other is denying it. One is stating that no flame was emerging, rather there was smoke. It is proved on the spot that no headlight of any truck was on, only dim light was on. There is major contradictions in the depositions of witnesses whether they were having any torch or not and whether it was used or not. Whether it was possible for anyone to recognize or identify any person in that season of winter of January at 5.00 a.m. It is also important to note that as per evidence of all the witnesses the moment miscreants came there, they started beating the persons present there and took them immediately to the field, which was 50 - 60 steps away from the trucks and when miscreants went after looting them, they freed each other by opening the ties. So there was no occasion for the witnesses to identify any of the accused.

23. PW-4 has specifically stated that he saw only face of the appellant alone from front side, but he did not remember whether this miscreants was of light black colour or having moustache or not. He has clearly stated that he did not tell anything about the physical appearance of the appellant to the Investigating Officer and he did not remember whether he told to the Investigating Officer about the height of the appellant or not. The Investigating Officer has also admitted that PW-4 did not tell him anything regarding body built of any of the accused. Now question arises how the Investigating Officer reached to the conclusion that the appellant was one of the accused who had committed robbery and murder.

24. It is also important to note that this appellant surrendered on 15.02.1993 before the trial court. Question arises that what was the evidence upto that stage against the appellant. PW-1 has admitted that when he reached the Police Station for lodging the FIR, he stayed there only for about 5 - 10 minutes. The Investigating Officer has stated that he recorded the statement of the complainant in the Police Station. How it was possible for Investigating Officer to record the statement within such a short span. PW-1, complainant has admitted that he did not tell the Investigating Officer that one of the miscreants was of light black colour. Then question arises what was the evidence against this appellant and on what evidence the Investigating Officer reached to the conclusion that this was the person who committed this offence. PW-3 and PW-4 themselves have stated that they did not tell anything regarding physical appearance of this appellant. The evidence disclosed above also shows that there was not sufficient light on the spot and it was not possible for the witnesses to identify any of the miscreants. This incident is of dated 31.01.1993 while the test identification parade took place on 22.03.1993. Whether it was possible for any of the witnesses to have features of the accused in their mind till that period and after that the statements of the witnesses were recorded in the court on 11.10.1993 to 27.01.1994. When they did not tell any special feature to the Investigating Officer how they could remember regarding special identity of the miscreants in their mind. All this shows that test identification parade was not conducted in proper manner. Three accused have been acquitted by the learned trial court while evidence regarding all the four accused is same, then how it can be believed that the witnesses are trustworthy only regarding this appellant.

25. The learned trial court has observed in his judgment that there was sufficient headlight of the truck on the spot, then why any witness did not disclose about the said headlight of the truck. This observation is against the evidence on record.

26. We do not agree with observation of the learned trial court that there was sufficient light on the spot to identify the faces of the miscreants because there was no occasion for the witnesses to identify the faces of the miscreants as the moment the miscreants reached on the spot, they tied all the persons present on the spot and took them to the field, where they were beaten and one person was shot dead and all the witnesses have admitted that there wasn't any source of light in field. So the question of identification has gone. In that circumstance how those witnesses could recognize or identify any of the miscreants in test identification parade and then how it would be material that they identified the appellant in the court. The trial court itself has reached to the conclusion that except the appellant, rest of the miscreants were shown to the witnesses in the Police Station. In this circumstance the sanctity of test identification parade is of no value and has lost its significance.

27. The evidence of identification is no exception to the definition of the word 'proof' in section 3 of the Evidence Act. The court should approach the evidence of identification with the reasonable doubts of an intelligent person and accept it only if those doubts were removed. In order to remove these doubts, the touchstone to be adopted could be (i) fair, if not good, opportunity of the witness for observation, (ii) reasonable time within which the identification was made, (iii) reliable power of observation of the witness, (iv) his credibility, and (v) the fact whether the witness got any opportunity to identify the accused at the time of incident and also after arrest of the accused. The crucial requirement would be the satisfaction of the court on the acceptability of the identification.

28. The condition precedent for accepting the evidence of identification should be fair and beyond approach to secure that it has to be ensured that prior to the test identification that suspect was not shown to the identity witness and identification was held in manner stipulated by the Criminal Manual. When the learned trial court itself has observed that the miscreants were shown to the witnesses because all the three miscreants and witnesses were present in the police station on that date, then this possibility cannot be ruled out that this appellant was also shown to the witnesses in advance to the test identification parade. The appellant has clearly stated in his statement recorded under Section 313 Cr.P.C. that police men had taken his photograph from his mother, which was shown to the witnesses and on that basis he was identified by the witnesses.

29. When a witness identifies an accused in court, court has to appreciate the evidence in the light of its intrinsic worth, other evidence, circumstances probabilities.

30. If the witness knew any miscreant, obviously it is a matter of recognition, if not, it is a matter of identification. Recognition of a familiar person is certainly more reliable than identification of stranger. When a stranger witness identifies an accused in court, the court, by way of caution or prudence may seek same assurance before accepting the identification as correct. This assurance may be available from other sources and circumstances.

31. When the persons are known, identification is possible from the physique, gesture of movement, manner of walking etc. and gesticulating and special features of a person like the physical attributes; in such cases even where a light is dim, known persons can be successfully identified as was held in State of U.P. Vs. Babu, AIR 2003 SC 3408. But here this is not a case because no miscreant is known to any of the witnesses, no source of light has been proved, then no question arises to identify any of the miscreant on the spot by any of the witness. It is also proved that occurrence had taken place during early hours of the day, but there was darkness and only dim light of the trucks were present. In our opinion this was not sufficient for any person to identify and recognize any person and have their phiz in their memory for such a long time. It is also very important to note here that when miscreants came on the spot, they immediately started beating the persons present there. In that circumstance all these witnesses must have been in a state of daze as they were themselves one of the victims and father of one of the victim was shot dead on the spot. In such circumstances it was not possible for any of the witness to identify any miscreant and to remember phiz for such a long period. In these circumstances, in our opinion it would not be reasonable and proper to accept the evidence of identification that recorded the conviction on that basis.

32. After careful churning of the evidence of the witnesses, we are reaching to the conclusion that the witnesses had no fair opportunity to see the accused or note their special features and circumstances of the meeting with the miscreants on the spot because there was no occasion for the witnesses to fix themselves in the memory as when they were taken to the field, it was a total dark place. From the evidence of the witnesses, contents of the FIR, statements given to the Investigating Officer, it has been proved that special features of the miscreants such as their phiz, complexion and characteristics marks were not given, then on what evidence process of Section 82/83 Cr.P.C. was issued against the appellant on the request of Investigating Officer. In such circumstances, the purpose of test identification parade and the identification of the appellant in court has failed. It is true that the purpose of test identification is to test the witness made in the court to constitute substantive evidence, it being the sovereign rule that the sworn testimony of the witness in the court as to the identity of the accused requires corroborations in the form of an earlier identification proceedings and in absence of such test identification parade if the accused was not known to the witness before the incident and was identified for the first time in the court, in absence of TIP, the evidence of such witnesses is valueless and could not be relied upon, but in this case identification made by the witnesses in the court cannot be found free from doubt.

33. It has not been proved by any of the witness that this appellant had any special and outstanding feature which enabled the witnesses to carefully mark the visages of the appellant so that witnesses could identify him even after a long gap. Only by identifying the appellant in TIP and in court would not be sufficient to convict the appellant as the value to be attached to identification, evidence would depend on the facts of each case.

34. The evidence of identification in order to carry conviction should ordinarily clarify as to how and under what circumstances the identifying witnesses came to pick out the particular accused person, details of the part which the accused played in the crime in question with reasonable particularity. This appellant has been shown to have iron rod at that time. The injured Ram Singh and Vinod Kumar got one contusion each and Radhey Shyam got no injury only complaining pain. Though the witnesses have stated that they were beaten by iron rod, but that could not be proved by medical report.

35. Admittedly at the time of the incident it was a dark night and the father of the PW-1, informant was shot dead from a close range. In that circumstance whether it was possible for PW-1, Vinod to have correctly identified the assailants. Naturally all the victims would shout in agony and then they could not have correctly identified the assailants, so it could be a case of mistaken identity. In this case identifying witnesses are totally strangers who had just a fleeting glimpse of persons identified or who had no particular reason to remember the person concerned. In such circumstances the evidentiary value can hardly be attached to such identification in court.

36. In this case it has been proved that the incident took place suddenly, in a surprising way and the victims were frightened, it is difficult for them to maintain balance and to become alert to grasp the features of culprits specially in the circumstance when the culprits are strangers to the victims. Effect of suppressed things in which the victims have been caught, coupled with frightness or the factors which go against capacity of such witnesses identifying such persons after gap of even couple of days in TIP or a gap of couple of months in court.

37. Even if the evidence of witnesses is accepted that the faces of some of the miscreants were seen by them on the occasional flashes of torches, it would be difficult for us to accept the position that the impression of the miscreants by these witnesses would remain intact in their memory after lapse of such a long time specially when they were beaten and father of one of the victims shot dead. It is also noteworthy that no corroborative evidence has been filed by the prosecution as no torch used on the spot has been recovered either from the witnesses or from the accused. No recovery of any looted article from any of the accused has been made. So only the evidence of TIP and identification of court is on the record. Learned counsel for the appellant has vehemently argued that the accused persons were shown to the identifying witnesses before TIP was held. It is, of course, true that the prosecution witnesses have stoutly denied this fact. Nevertheless the fact remains that in the circumstances as disclosed during evidence it was rather impossible for the complainant and the witnesses to identify the miscreants because they were not known to them. Therefore, identification of the accused either in jail or in the dock becomes very much suspect.

38. We have carefully perused all the material on record. We are not satisfied with the quality of evidence adduced by the prosecution. We have lingering doubts about the genesis of case and prosecution evidence produced in support of allegations. We believe that appellant is also entitled for benefit of doubt.

39. In the result, the appeal is allowed. The judgment and order dated 05.07.1994 passed by the Special Judge (D.A.A.), Jhansi in Sessions Trial No.23 of 1993 (State versus Brindavan and others) arising out of Case crime no.22 of 1993, whereby he was convicted under Section 394 read with Section 397 and 302 read with Section 34 I.P.C. is set aside. Appellant Kamlesh is acquitted of charges under Section 394 read with Section 397 and 302 read with Section 34 I.P.C. Appellant, if in jail be set at liberty forthwith unless his detention is required in connection with any other case provided that he furnishes bail bonds and sureties complying Section 437-A Cr.P.C. within a period of one month from the date of this judgment in the court of C.J.M., Jhansi.

40. Let a copy of this order be certified to concerned court through Sessions Judge, Jhansi within a fortnight for compliance. The court concerned shall report the compliance within a month thereafter.

Order Date :- 3.11.2017

Anoop