Chattisgarh High Court
Jwala Prasad vs State Of Chhattisgarh on 30 January, 2023
1
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Judgment reserved on 06/12/2022
Judgment delivered on 30/01/2023
Criminal Appeal No. 1324 of 2016
Shyam Kumar S/o Krit Kumar Barman, Aged about 32
years, R/o Village Chakapendra, Police Station Nandghat,
District Bemetara, Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh through Station House Officer, Police
Station Bilaigarh, Out post (Chowki) : Bhatgaon, Distt.
Baloda Bazar, Bhatapara, Chhattisgarh.
---Respondent
For Appellant :- Mr. C.R. Sahu, Advocate
For State :- Mr. Ashish Tiwari, G.A.
Criminal Appeal No. 460 of 2015
Virendra S/o Shankarlal Joshi, Aged about 32 years, R/o
Chakapendra, Police Station Nandghat, Distt. Bemetara,
Chhattisgarh.
---Appellant
Versus
2
State of Chhattisgarh through Station House Officer, Police
Station Bilaigarh, Out post (Chowki) : Bhatgaon, Distt.
Baloda Bazar, Bhatapara, Chhattisgarh.
---Respondent
For Appellant :- Mr. Sakib Ahmad, Advocate
For State :- Mr. Ashish Tiwari, G.A.
Criminal Appeal No. 1008 of 2013
Jwala Prasad S/o Khorbahra Baghel, Aged about 43 years,
R/o Village Belsari, Post Office Belsari (Dak) Police station
Takhatpur, Civil and Revenue District Bilaspur,
Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh through Station House Officer, Police
Station Bilaigarh, Out post (Chowki) : Bhatgaon, Distt.
Baloda Bazar, Bhatapara, Chhattisgarh.
---Respondent
For Appellant :- Mr. Satya Prakash Verma, Advocate
For State :- Mr. Ashish Tiwari, G.A.
Criminal Appeal No. 86 of 2014
Devendra @ Pandu S/o Kumar Pradhan, Aged about 19
years, R/o Village Belsari, Police Station Takhatpur, Civil
3
and Revenue District Bilaspur, Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh through Station House Officer, Police
Station Bilaigarh, Out post (Chowki) : Bhatgaon, Distt.
Baloda Bazar, Bhatapara, Chhattisgarh.
---Respondent
For Appellant :- Mr. Mahesh Mishra, Advocate
For State :- Mr. Ashish Tiwari, G.A.
Criminal Appeal No. 1047 of 2013
Hemlal S/o Ramdayal Jaiswal, Aged about 42 years, R/o
Village Purgaon, Police Station Bilaigarh, District Baloda
Bazar, Chhattisgarh, Revenue District Balodabazar, civil
District Baloda bazar, Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh through Station House Officer, Police
Station Bilaigarh, Out post (Chowki) : Bhatgaon, Distt.
Baloda Bazar, Bhatapara, Chhattisgarh.
---Respondent
For Appellant :- Dr. N.K. Shukla, Senior Advocate
with Mr. Himank Saluja, Advocate
For State :- Mr. Ashish Tiwari, G.A.
4
Criminal Appeal No. 1149 of 2013
Suraj Kumar S/o Santosh Kumar Mochi, Aged about 27
years, R/o Village Talapara, Police Station Civil Line, Civil
and Revenue District Bilaspur, Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh through Station House Officer, Police
Station Bilaigarh, Out post (Chowki) : Bhatgaon, Distt.
Baloda Bazar, Bhatapara, Chhattisgarh.
---Respondent
For Appellant :- Mr. Ashutosh Trivedi, Advocate
For State :- Mr. Ashish Tiwari, G.A.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
CAV Judgment
Sanjay K. Agrawal, J.
1. This batch of six criminal appeals under Section 374(2) of
CrPC have been preferred by the six appellants namely
Shyam Kumar (A-1), Virendra (A-2), Jwala Prasad (A-3),
Devendra (A-4), Hemlal (A-5) and Suraj Kumar (A-6) against
impugned judgment dated 25/09/2013 passed by learned
2nd Additional Session Judge, Balodabazar in Sessions Trial
No. 02/13 and since common question of law and fact are
involved in all these appeals, therefore, they have been
clubbed together, heard together and are being decided by
this common judgment.
2. By impugned judgment dated 25/09/2013, the appellants/
accused persons have been convicted and sentenced as
under :-
Appellant/Accused Conviction Sentence
U/s 395 of IPC R.I. for life with fine of
Rs. 1000/- each in
default of payment of
fine, additional R.I. for 6
Shyam Kumar (A-1) months.
U/s 397 of IPC R.I. for 10 years
Virendra (A-2)
U/s 120(B) of IPC R.I. for life with fine of
Jwala Prasad (A-3) Rs. 1000/- each in
default of payment of
Devendra (A-4) fine, additional R.I. for 6
months.
Hemlal (A-5) U/s 457 of IPC R.I. for 3 years with fine
of Rs. 1000/- each in
default of payment of
fine, additional R.I. for 6
months.
Suraj Kumar U/s 412 of IPC R.I. for 10 years with
(A-6) fine of Rs. 1000/- in
default of payment of
fine, additional S.I. for 6
months.
Shyam Kumar (A-1) U/s 25 of Arms R.I. for 2 years with fine
and Act of Rs. 200/- each in
Devendra (A-4) default of payment of
fine, additional R.I. for 2
months.
3. Case of the prosecution, in short, is that on the intervening
night of 24-25/09/2012 at about 01:30 AM, the appellants
herein, with common object and conspiracy of committing
dacoity, trespassed into the house of Rajeev Dadsena (P.W.-
1) armed with lethal weapons and in furtherance of their
common intention, they committed dacoity and thereby,
committed the aforesaid offences.
4. Further case of the prosecution is that complainant Rajeev
Dadsena (P.W.-1), who was working as a Clerk in District
Cooperative Bank, Bhatgaon, had constructed his house at
Sindhichua Road, Bhatgaon within the ambit of Police
Station Bilaigarh three years prior to the date of the incident
and was residing in the said house along with his wife
Nirupama Dadsena (P.W.-4), his mother Laxmi Devi (P.W.-3)
and niece Poonam (P.W.-18). On 25/09/2012, the
complainant had gone to his office and came back to his
house around 6-6:30 PM and thereafter, at around 10:30
PM, he along with his wife (P.W.-4) and their kids was
sleeping in one room and his mother (P.W.-3) along with the
kids of his elder brother were sleeping in another room near
the kitchen and the main door of the house was locked from
inside and the door of the house was latched from inside. At
around 01:30 AM, complainant's wife Nirupama Dadsena
(P.W.-4) saw torch light and noticed that the curtains of the
door were opened upon which she informed the
complainant Rajeev Dadsena (P.W.-1), who went out of the
room and saw that kitchen door was opened. When he tried
to shut the door of the kitchen, suddenly three persons
entered his bedroom and caught hold of his wife (P.W.-4)
and pressed her mouth. The complainant (P.W.-1) pushed
one person aside, but he hit the complainant near his right
ear with a sharp object. Thereafter, two persons caught hold
of the complainant- Rajeev Dadsena (PW-01) and three
persons caught hold of his wife- Nirupama Dadsena (PW-04)
and took both of them to their mother's bedroom and tied
them with blouse, banyan, bedsheet, etc. Thereafter, the
appellants/accused persons threatened them with life of
their child and asked for the key of almirah to take
jewellery and cash. Complainant's mother Laxmi Devi (P.W.-
3) told them to take whatever they wanted but to leave their
child. Thereafter, one accused person took the key from
Nirupama (P.W.-4) and opened the almirah and after
searching and stealing cash as well as gold ornaments, the
appellants/accused persons left the house at around 3 AM.
Thereafter, the complainant (P.W.-1) untied himself and
other family members and informed about the incident to
his neighbour Santosh Patal (P.W.-2) that one gold
necklace, a pair of gold ear tops, earrings, three gold
bangles, 4 gold chains, one pair of gold rings, 6 pair of silver
anklets, Mangalsutra, 6 lockets, 2 pearls and Rs. 30000/-
cash and one nokia mobile phone was missing. The
jewellery amounted to Rs. 2,17,000/- which was purchased
from Laxmi Jewellers, Bhatgoan.
5. Complainant- Rajeev Dadsena (PW-01) reported the matter
at Police Station Bilaigarh and lodged first information
report (Ex. P/1) on 26/09/2012 upon which spot inspection
was done vide Ex. P/2 and inspection panchnama was
prepared vide Ex. P/3. Nazri naksha was prepared vide Ex.
P/4. Jewellery receipts and other documents were seized
vide Ex. P/5. MLC of injured Rajiv Dadsena was conducted
on 29/09/2012 by Dr. Narayan Singh (P.W.-17) and the
report was prepared vide Ex. P/35 according to which,
injuries were found to be simple in nature which were
caused by some sharp edged weapon. The
appellants/accused persons were suspected to be the
authors of the crime in question and after taking them into
custody on 04/10/2012, their memorandum statements
were recorded vide Ex. P/23 to 27 and following articles
were seized from them :-
Appellant/ Memoran Seizure
Accused dum
Shyam Kumar Ex. P/23 Ex. P/30 a. 2 pieces of gold made
Barman bangle with cut in the mid
(A-1) weighing 12 gm of value
Rs.40,000/-
b. One set of thick silver
anklet with bells weighing 35
tola (355gm) of value of
Rs.20,000
c. Rs. 3,000 cash with 30
notes of Rs.100
d. One Country made iron
pistol
e. Two bullets
f. One screwdriver
Virendra Ex. P/24 Ex. P/31 a. 2 gold made bangles with
Kumar Joshi cut in the mid weighing 40
(A-2) gm of value Rs.40,000.
b. 1 set of Gold made tops
weighing 3gm of value
Rs.9000
c. 1 set of gold made beads
grain weighing 0.40 gm of
value Rs.1400
d. 2 set of gold made beads
grain weighing 0.10 gm of
value Rs.500
e. Rs. 4,000 cash with 40
notes of Rs.100
denomination
f. One screwdriver
g. One mobile phone of Nokia
company
h. 5 key bundle with 29 keys
i. One motorcycle splendor
plus CG 10 EE 5681
Jwala Prasad Ex. P/25 Ex. P/32 a. 1 gold made bangle with
Baghel cut in the mind weighing 8
(A-3) gm of value Rs.25,000
b. 1 gold made locket
weighing 3.5 gm of value
Rs.10,000
c. 3set of gold made bead
weighing 1.5 gm of value
Rs.4500
d. 1 set of gold made locket
grain weighing 1 gm of value
Rs.2300
e. 4 set of silver bangle
weighing 15 gm of value
Rs.1500
f. Rs.5000 cash with 50
notes of Rs.100
denomination
g. One polythene with clothes
and one bamboo stick.
Pandu @ Ex. P/26 Ex. P/33 a. 1 gold made chain
Devendra weighing 7gm of value
Pradhan Rs.20,000
(A-4) b. 1 gold made locket
weighing 1 gm of value
Rs.3,000
c. 2 set of gold made bead
weighing 0.20 gm of value
Rs.600
d. One Iron knife with steel
and wooden handle
e. Rs.2000 cash with 20
notes of Rs.100
Hemlal - Ex. P/29 One nokia company mobile
(A-5) phone
Suraj Kumar Ex. P/27 Ex. P/34 a. One gold made molted coin
(A-6) like object weighing 35 gm of
value Rs.1,00,000
b. One motorcycle
HeroHonda CD delux CG 09
H 0558
6. Immediately thereafter, test identification parade of the
appellants/accused persons as well as the articles seized
from their possession was conducted vide Ex. P/6 to P/10
wherein Rajeev Dadsena (P.W.-1) identified 4 accused
persons except Hemlal (A-5), who was already known to
him. The articles seized from appellants were identified by
Nirupama Dadsena (P.W.-4) as well as Laxmi Devi (P.W.-3).
The statements of prosecution witnesses were recorded
under Section 161 of CrPC and after due investigation, the
six appellants/accused persons were charge-sheeted for
offences punishable under Sections 395, 397, 120B, 457 of
IPC and Section 25,27 of the Arms Act. The
appellants/accused persons abjured their guilt and entered
into defence.
7. In order to bring home the offence, prosecution examined as
many as 22 witnesses and exhibited 52 documents on
record. The statements of the appellants/accused persons
were taken under Section 313 of CrPC, wherein they denied
guilt, however, they examined none in their defence.
8. Learned trial Court, upon appreciation of oral and
documentary evidence no record, proceed to convict the
appellants/accused persons for the aforesaid offences and
sentenced them as aforesaid against which this batch of six
criminal appeals have been preferred by them.
9. Mr. Satya Prakash Verma, learned counsel for the
appellants/accused persons namely Shyam Kumar (A-1)
and Jwala Prasad (A-3), would submit that the test
identification parade has not been conducted in accordance
with law as Police had already shown the accused persons
to Rajeev Dadsena (P.W.-1) and therefore, the test
identification parade was only a farce and it is liable to be
rejected. They would rely upon the decisions rendered by
the Supreme Court in the matters of Bharat v. State of
M.P.1 and A. Shankar v. State of Karnataka 2 to buttress
this submission. They would further submit that
memorandum and seizure has been carried on by the
prosecution in the presence of two witnesses namely
Rajkumar (P.W.-16) and Lokesh Kumar Sahu, who has not
been examined before the Court for the reasons best known
to the prosecution and moreover, Rajkumar (P.W.-16) is an
interested witness as he is not the resident of the village
where recovery has been made. Prosecution could have
gone for a local resident to be made as panch witness and
in that view of the matter, memorandum and seizure has
also not been proved in accordance with law, therefore,
conviction of the appellants/accused persons namely
Shyam Kumar (A-1) and Jwala Prasad (A-3) is liable to be
set aside. Even otherwise, prosecution has miserably failed
to establish the charge under Section 120B of IPC, as such,
they are liable to be acquitted of the charges levelled against
them.
10. Mr. Sakib Ahmad, learned counsel for appellant/accused
namely Virendra (A-2), would submit that seizure of gold
ornaments made from Virendra (A-2) pursuant to his
memorandum statement (Ex. P/22) has not been duly
proved by the prosecution and so far as the test
1 (2003) 3 SCC 106
2 (2011) 6 SCC 279
identification parade is concerned, the accused persons had
already been shown to the complainant Rajeev Dadsena
(P.W.-1), as such, it was conducted in mere formality and is
liable to be rejected and therefore, the conviction of
appellant/accused Virendra (A-2) is liable to be set aside.
He would rely upon the decision rendered by the Supreme
Court in the matter of Rajamoori Ram Reddy and others
v. State of Andhra Pradesh3 to buttress his submission.
11. Mr. Mahesh Mishra, learned counsel for appellant/accused
namely Devendra alias Pandu (A-4), would submit that
memorandum (Ex. P/24) and seizure (Ex. P/33) has been
proved by a sole witness namely Rajkumar (P.W.-16),
however, he is an interested witness which appears from
the statements of Santosh Patel (P.W.-2) and Investigating
Officer Kishore Chandrakar (P.W.-20), therefore, his
testimony could not have been relied upon by the trial
Court. Even otherwise, if the testimony of Rajkumar (P.W.-
16) is excluded, the prosecution case would fail. He would
further submit that test identification parade so conducted
is not in accordance with law and as such, the conviction of
appellant/accused Devendra alias Pandu (A-4) is liable to
be set aside.
3 2015 SCC Online Hyd 500
12. Dr. N.K. Shukla, learned senior counsel appearing for
appellant/accused Hemlal (A-5), would submit that the trial
Court has not recorded an express finding of guilt against
Hemlal (A-5) and furthermore, without even recording his
memorandum statement, only seizure of nokia mobile
phone has been made from him vide Ex. P/29 for which
production of mandatory certificate under Section 65-B of
Indian Evidence Act,1872 would be required to prove the
call details in light of the decision rendered by the Supreme
Court in the matter of Arjun Panditrao Khotkar v. Kailash
Kushanrao Gorantyal4. He would further submit that plea
of alibi is fully established in favour of appellant/accused
Hemlal (A-5) pursuant to the statement of Rajeev Dadsena
(P.W.-1), who has clearly admitted in paragraph 15 that
Hemlal (A-5) was at his brother's house in Sukma, Bastar
from 23/09/2012 to 28/09/2012, as such, the trial Court
is absolutely unjustified in convicting him for the aforesaid
offences. Furthermore, other incriminating circumstances
which have been relied upon by the prosecution have not
been put to Hemlal (A-5) in the statement recorded under
Section 313 of CrPC. He would also rely upon the decision
rendered by the Supreme Court in the matter of Harpal
Singh alias Chhota v. State of Punjab5.
4 2020 (7) SCC 1
5 AIR 2016 SC 5389
13. Mr. Ashutosh Trivedi, learned counsel for the
appellant/accused Suraj Kumar (A-6), who has allegedly
purchased the property of said dacoity, would submit that it
has not been proved by the prosecution beyond reasonable
doubt that the gold coin so seized from Suraj Kumar (A-6)
vide Ex. P/34 pursuant to his memorandum statement (Ex.
P/27), was made after melting the gold ornaments stolen by
the other appellants/accused persons, as alleged by the
prosecution and therefore, the ingredients of Section 412 of
IPC is absolutely missing. Moreover, the sole seizure witness
namely Rajkumar (P.W.-16) has clearly stated that seized
articles were brought out by Investigating Officer Kishore
Chandrakar (P.W.-20) from the house of Suraj Kumar (A-6),
as such, recovery has not been proved in accordance with
law and therefore, he is liable to be acquitted of the charges
levelled against him.
14. Vehemently opposing the submissions made by learned
counsels for the appellants/accused persons, Mr. Ashish
Tiwari, learned Government Advocate, would submit as
follows :-
i) that, test identification parade has been conducted strictly
in accordance with law by official witnesses namely Sitaram
Hardale (P.W.-7), who at the relevant point of time, was an
Executive Magistrate and he has clearly proved the test
identification parade (Ex. P/6 to P/9) by which
appellants/accused persons (A-1 to A-4) were identified by
complainant Rajeev Dadsena (P.W.-1). Moreover, the
incident took place on 25/09/2012 and immediately
thereafter, test identification parade was conducted on
04/10/2012. He would further submit that seized articles
were also identified by complainant's wife Nirupama
Dadsena (P.W.-4) in test identification parade conducted by
M.R. Dhurve (P.W.-8), Tahsildar Bilaigarh on 20/12/2012
vide Ex. P/10. Therefore, merely on the basis of some minor
discrepancies, the test identification parade cannot be
rejected as unsustainable and bad in law in view of the
decision rendered by the Supreme Court in the matter of
Iqbal v. State of U.P.6.
ii) that, the conspiracy hatched by appellants/accused
persons (A-1 to A-5) is duly established as per
memorandum statements of A-1 to A-4 and A-6 recorded
vide Ex. P/23 to P/27 by virtue of Section 27 read with
Section 30 of the Evidence Act.
iii) that, pursuant to the memorandum statements of the
appellants/accused persons, recovery of stolen articles have
been made within 10 days from the date of the incident and
moreover, seizure of stolen articles from the possession of
6 (2015) 6 SCC 623
appellants/accused persons (A-1 to A-4 and A-6) has also
not been explained by them in their statements under
Section 313 of CrPC, therefore, conviction recorded and
sentence awarded to the appellants/accused persons for the
aforesaid offences is unexceptionable and all these six
criminal appeals deserve to be dismissed.
15. We have heard learned counsel for the parties, considered
their rival submissions made herein-above and went
through the records with utmost circumspection.
16. The question would be whether the learned trial Court is
justified in convicting the appellants herein for offences
under Sections 395 & 397 of IPC ?
17. On the date of incident i.e. on 25.09.2012 the appellants
were suspected to be authors of crime in question and,
therefore, they were taken into custody on 04.10.2012 and
their memorandum statements were recorded vide Ex.P/23
to 27, pursuant to which, stolen articles i.e. gold bangles,
silver anklets, gold tops, gold locket and cash etc. were
seized on 04.10.2012 vide seizure memos (Ex.P/30, P/31,
P/32, P/33 and P/34) respectively except from appellant-
Hemlal (A-5), as from his possession only one Nokia Mobile
Phone is seized vide Ex.P/29.
18. It is well settled law that under Section 27 of Evidence Act
only so much of the information as distinctly relates to the
facts really thereby discovered is admissible. The word 'fact'
means some concrete or material fact to which the
information directly relates. As held by Sir John Beaumont
in the matter of Pulukuri Kotayya v. King-Emperor7,
"... it is fallacious to treat the "fact discovered"
within the section as equivalent to the object
produced ; the fact discovered embraces the place
from which the object is produced and the
knowledge of the accused as to this, and the
information given must relate distinctly to this
fact."
19. Following the principle of law laid down in Pulukuri
Kotayya (supra), their Lordships of the Supreme Court in
the matter of Asar Mohammad and others v. State of
U.P.8, with reference to the word "fact" employed in Section
27 of the Evidence Act, have held that the facts need not be
self-probatory and the word "fact" as contemplated in
Section 27 of the Evidence Act is not limited to "actual
physical material object". It has been further held that the
discovery of fact arises by reason of the fact that the
information given by the accused exhibited the knowledge
or the mental awareness of the informant as to its existence
at a particular place and it includes a discovery of an object,
7AIR 1947 PC 67
8AIR 2018 SC 5264
the place from which it is produced and the knowledge of
the accused as to its existence.
20. In order to make Section 27 of the Evidence Act applicable,
two conditions are prerequisite, namely (1) the information
must be such as has caused discovery of the fact; and (2)
the information must 'relate distinctly' to the fact
discovered. In the present case, the incident occurred in
the intervening night of 24th & 25th September, 2012 and on
04.10.2012, as pointed out by the appellants, pursuant to
their memorandum statements, the stolen articles i.e. gold
bangles, silver anklets, gold tops, gold locket and cash etc.
were seized vide seizure memos (Ex.P/30, P/31, P/32, P/33
and P/34). As such, recovery made from the appellants
pursuant to the disclosure statements satisfies the
requirement of Section 27 of the Evidence Act and that
being so, the statements made by the appellants under
Section 27 vide Ex.P/23 to 27, are clearly admissible in
evidence.
21. Further, test identification parade was conducted by
Sitaram Hardale (PW-07), who was at the relevant point of
time was working as Executive Magistrate and has clearly
proved the test identification parade conducted vide
Ex.P/06, by which complainant- Rajeev Dadsena (PW-01)
identified four accused persons i.e. appellants A-1 to A-4
herein. The aforesaid identification has been called in
question on behalf of the appellants mainly on the ground
that police had already shown the accused persons to
Rajeev Dadsena (PW-01) and thereafter test identification
was conducted, which was farce and liable to be rejected. In
this regard, in a recent pronouncement reported in the
matter of Rajesh vs. State of Haryana9 the law regarding
test identification parade has been summarized by their
Lordships of Supreme Court and the manner in which it
has to be conducted and weight to be ascribed to
identification in the course of a test identification parade
and the circumstances in which adverse inference has to be
drawn against the accused who refuses to undergo the
process and laid down the principles in Para-43.1 to 43.12
as under:
"43.1. The purpose of conducting a TIP is that
persons who claim to have seen the offender at
the time of the occurrence identify them from
amongst the other individuals without tutoring
or aid from any source. An identification parade,
in other words, tests the memory of the
witnesses, in order from the prosecution to
determine whether any or all of them can be
cited as eyewitness to the crime.
43.2. There is no specific provision either in
CrPC or the Evidence Act, 1872 ("the Evidence
Act") which leads statutory authority to an
identification parade. Identification parades
belong to the stage of the investigation of crime
9 (2021) 1 SCC 118
and there is no provision which compels the
investigating agency to hold or confers a right on
the accused to claim a TIP.
43.3. Identification parades are governed in that
context by the provision of Section 162 CrPC.
43.4. A TIP should ordinarily be conducted soon
after the arrest of the accused, so as to preclude
a possibility of the accused being shown to the
witnesses before it is held.
43.5. The identification of the accused in court
constitutes substantive evidence.
43.6. Facts which establish the identity of the
accused person are treated to be relevant under
Section 9 of the Evidence Act.
43.7. A TIP may lend corroboration to the
identification of the witness in court, if so
required.
43.8. As a rule of prudence, the court would,
generally speaking, look for corroboration of the
witness' identification of the accused in court, in
the form of earlier identification proceedings. The
rule of prudence is subject to the exception when
the court considers it safe to rely upon the
evidence of a particular witness without such, or
other corroboration.
43.9. Since a TIP does not constitute substantive
evidence, the failure to hold it does not ipso facto
make the evidence of identification inadmissible.
43.10. The weight that is attached to such
identification is a matter to be determined by the
court in the circumstances of that particular
case.
43.11. Identification of the accused in a TIP or in
court is not essential in every case where guilt is
established on the basis of circumstances which
lend assurance to the nature and the quality of
the evidence.
43.12. The court of fact may, in the context and
circumstances of each case, determine whether
an adverse inference should be drawn against
the accused for refusing to participate in a TIP.
However, the court would look for corroborating
material of a substantial nature before it enters a
finding in regard to the guilt of the accused."
22. Reverting to the facts of the present case in light of principle
of law laid down by their Lordships of Supreme Court
relating to the manner in which test identification parade
has to be conducted and weight to be ascribed to
identification in the course of a test identification parade, it
is quite vivid that in the instant case the main allegation is
that the police had show the accused persons already in
advance to the identifier [i.e. complainant- Rajeev Dadsena
(PW-01)] and, therefore, test identification parade is farce
and inadmissible in law. In this regard, it is profitable to
notice here the statement of the investigating officer i.e.
Kishore Chandrakar (PW-20), who in Para-38 of his
statement has clearly refuted the suggestion that accused
persons were shown to the complainant (PW-01). Further,
Rajeev Dadsena (PW-01) has also refuted the suggestion on
behalf of the defence that prior to test identification parade,
the accused persons were shown to him and in Para-25 &
33 of his statement he has clearly stated that the accused
persons were brought to the place of identification with
their covered faces. As such, the argument raised on behalf
of the appellants that the accused persons were shown to
the complainant (PW-01) before conducting the test
identification parade vis-a-vis test identification parade is
farce and inadmissible in law is not established. Moreover,
though faintly it has been argued that there is delay in
conducting the test identification parade, but no foundation
has been laid in this regard by the defence, however, it is
quite apparent from the record that incident took place on
25.09.2012 and the accused-appellants were apprehended
on 04.10.2012 and, immediately on the same day, test
identification parade was conducted and, as such, the
argument that there is delay in conducting the test
identification parade is also not established. Indeed, the
Executive Magistrate, namely, Sitaram Hardale (PW-07) has
also clearly supported the test identification parade
conducted vide Ex.P/06 and, though he was subjected to
some extent of cross-examination, but nothing could be
extracted to hold that test identification parade was not
conducted in accordance with law. Accordingly, we hold
that test identification conducted by Sitaram Hardale (PW-
07) vide Ex.P/06 was strictly in accordance with law and
the judgments relied upon in the matters of Bharat (supra),
Rajamoori Ram Reddy (supra) and A. Shankar (supra) are
clearly distinguishable to the facts of the present case.
23. Now the seized articles i.e. gold bangles, silver anklets, gold
tops, gold locket etc. seized from the accused-appellants
(i.e. A-1, A-2, A-3, A-4 & A-6) were subjected to
identification vide Ex.P/7 to P/10 and same were identified
by the complainant- Rajeev Dandsena (PW-01), Laxmi Devi
(PW-03) and Nirupama Dadsena (PW-04), who have
identified the articles belonging to the complainant and his
family. This test identification parade was conducted by
M.R. Dhruve (PW-08), another official witness. Further,
Rajeev Dandsena (PW-01), Laxmi Devi (PW-03) and
Nirupama Dadsena (PW-04) were subjected to cross-
examination, but nothing could be elicited to hold that the
said test identification parade of the seized articles were not
conducted in accordance with law.
24. In our considered opinion, though the seized articles i.e.
ornaments can be said to be ornaments in common use, but
witnesses particularly Laxmi Devi (PW-03) and Nirupama
Dadsena (PW-04), who are mother and wife of the
complainant- Rajeev Dadsena have not committed any
mistake in identifying the aforesaid ornaments i.e. seized
articles. The Supreme Court in the matter of
Earabhadrappa alias Krishnappa v. State of Karnataka 10
has held that it is a matter of common knowledge that
10 (1983) 2 SCC 330
ladies have an uncanny sense of identifying their own
belongings particularly articles of personal use in the
family. As such, the submission on behalf of the appellants
that memorandum and pursuant seizure have not been
proved in accordance with law and further, the ornaments
have not been identified in a duly constituted test
identification proceeding, has no merit and deserves to be
and is accordingly rejected. Further, the prosecution has
also examined Kishore Sharma (PW-10), who is owner of
Laxmi Jewellers and has identified the receipts seized from
the possession of the complainant (PW-01) vide Ex.P/13 to
P/18. As such, the ownership of the stolen articles have
been duly proved by the prosecution.
25. Now the next submission made on behalf of the appellants
is that even if the seized articles were owned by the
complainant (PW-01) and are found in possession of the
appellants, they cannot be convicted for offences under
Section 395 and 397 of IPC, whereas it is the case of the
respondent-State that since accused-appellants A-1, A-2, A-
3, A-4 & A-6 were found in possession of the stolen articles,
the presumption under illustration (a) to Section 114 of the
Evidence Act would be drawn, as the prosecution has led
sufficient evidence to connect the appellants with the
commission of the offences in question.
26. In order to consider the submission, it would be appropriate
to notice Illustration (a) to Section 114 of the Indian
Evidence Act, 1872, which states as under: -
"114. Court may presume existence of certain facts.
--The Court may presume the existence of any fact
which it thinks likely to have happened, regard being
had to the common course of natural events, human
conduct and public and private business, in their
relation to the facts of the particular case.
Illustrations
The Court may presume--
(a) That a man who is in possession of stolen goods soon
after the theft is either the thief or has received the goods
knowing them to be stolen, unless he can account for his
possession;"
27. In order to draw an inference that fact in dispute has been
established, there must exist, on record, some direct
material facts or circumstances from which such inference
could be drawn. Inference of proof of that fact could be
drawn from given objective facts, direct or circumstantial
(see R. Puthunainar Alhithan, etc. v. P.H. Pandian and
others11).
28. Furthermore, the illustrations appended to the aforesaid
section are not exhaustive but merely illustrate the principle
underlying the main provision. The presumption to be
drawn under that provision is one of fact and whether it
should be drawn or not in a particular case must depend
upon the facts of that case.
11 AIR 1996 SC 1599
29. In the matter of Tulsiram Kanu v. The State12, while
considering Illustration (a) appended to Section 114 of the
Evidence Act, their Lordships of the Supreme Court have
held that the presumption permitted to be drawn under
Section 114, illustration (a), Evidence Act, has to be read
along with the important time-factor. If ornaments or
things of the deceased are found in possession of a person
soon after the murder, a presumption of guilt may be
permitted. But if several months expire in the interval, the
presumption may not be permitted to be drawn having
regard to the circumstances of the case. Their Lordships
observed in paragraph 7 as under: -
"7. Apart from this confession, the judgment of
the High Court is based on the identification of the
gold ornaments. The Sessions Judge recognised
that if the ornaments had been proved to have
been the property of the deceased it would have
been possible to infer that the accused was the
person who committed the murder and robbed the
murdered man. In our opinion, this reasoning,
under the circumstances of the case, is unsound.
The alleged murder took place on 28-5-1949 and
assuming that the ornaments were traced to the
accused at the end of October 1949, no legitimate
inference could be drawn about the appellant
being the murderer of the deceased. The
important factor which appear to have been
overlooked is that five months had elapsed
between the date of the alleged murder and the
tracing of the ornaments. The presumption
permitted to be drawn under S. 114, illu. (a),
12 AIR 1954 SC 1
Evidence Act, has to be read along with the
important time factor. If ornaments or things of
the deceased are found in the possession of a
person soon after the murder, a presumption of
guilt may be permitted. But if several months
expire in the interval, the presumption may not be
permitted to be drawn having regard to the
circumstances of the case. The criticism applied
equally to the reasoning of the High Court for its
conclusion.
30. Thereafter, in the matter of Wasim Khan v. The State of
Uttar Pradesh13, the Supreme Court posed a question for
consideration, whether the evidence in the case establishes
that the appellant murdered and robbed Ram Dularey and
their Lordships answered the question that recent and
unexplained possession of stolen articles can well be taken
to be presumptive evidence of the charge of murder as well
as robbery.
31. Thereafter, in the matter of Alisher v. State of Uttar
Pradesh14, it has been held by their Lordships of the
Supreme Court that illustration (a) to Section 114 of the
Evidence Act makes it plain that the time factor has a
material bearing and the Court must keep it in view before
it can draw the presumption in accordance with the
illustration. It was further held that the presumption can
be raised if a person is found to be in possession of stolen
goods soon after the theft. If, however, a long period elapses
13AIR 1956 SC 400
14(1974) 4 SCC 254
between the date of the theft and the date on which a
person is found to be in possession of the stolen articles,
the Court would not be justified in drawing the presumption
in accordance with illustration (a) to Section 114. It was
also held that the question as to how much period should
elapse after the theft in order to rule out the presumption
under illustration (a) would depend on the nature of the
stolen article and the facts of each case.
32. In the matter of Baiju alias Bharosa v. State of Madhya
Pradesh15, the Supreme Court following the decisions in
Wasim Khan (supra) and Alisher (supra) and while dealing
with the presumption to be drawn under illustration (a) to
Section 114 of the Evidence Act has held that it is a matter
which depends on the evidence and circumstances of each
case. Further, their Lordships pointed out the following
factors in order to attract illustration (a) to Section 114 of
the Evidence Act: -
1. The nature of the stolen article,
2. the manner of its acquisition by the accused,
3. the nature of the evidence about its identification,
4. the manner in which it was dealt with by the
accused,
5. the place and circumstances of its recovery,
6. the length of the intervening period, and
15(1978) 1 SCC 588
7. the ability or otherwise of the accused to explain his
possession,
are factors which have to be taken into
consideration in arriving at a decision.
33. Thereafter, in the matter of Gulab Chand v. State of M.P.16,
following the decision of the Supreme Court in Tulsiram
Kanu (supra), their Lordships have held that the
presumption permitted to be drawn under Section 114,
Illustration (a) of the Evidence Act has to be read along with
the "important time factor" and if the ornaments in
possession of the deceased are found in possession of a
person soon after the murder, a presumption of guilt may
be permitted, but if several months had expired in the
interval, the presumption cannot be permitted to be drawn
having regard to the circumstances of the case.
34. Similarly, in the matter of George v. State of Kerala17,
relying upon the earlier decision in Baiju (supra), the
Supreme Court while dealing with the phrase "soon after"
employed in illustration (a) to Section 114 of the Evidence
Act held as under: -
"7. ... The possession of the articles which
had been duly identified by the witnesses as
belonging to the deceased were found in his
possession within less than 24 hours of the
incident. It would lead to inference under
16(1995) 3 SCC 574
17(2002) 4 SCC 475
Section 114(a) of the Evidence Act that the
appellant has himself committed the robbery,
an offence punishable under Section 392 IPC.
According to the statement of PWs 10, 12 and
13 the deceased had been saying "take
whatever you want, leave me alone", which
shows that he must have been under some
apprehension or threat thereof."
35. Reverting to the facts of the present case in light of aforesaid
principle of law laid down by their Lordships of Supreme
Court to invoke illustration (a) to Section 114 of the
Evidence Act, it is quite vivid that incident is of 25.09.2012
at about 01:30 AM and immediately thereafter accused-
appellants were suspected and taken into custody on
04.10.2012 and pursuant to memorandum statements of
appellants (A-1 to A-4 & A-6), gold bangles, silver anklets,
gold tops, gold locket belonging to the complainant and his
family were seized on 04.10.2012 at about 12:30 AM i..e
within 11 hours from the incident. Thus, the ornaments
belonging to the complainant and his family members were
found in possession to the appellants (A-1 to A-4 & A-6)
soon after the incident and, therefore, it satisfies the
requirement of important time factor envisaged by the
Supreme Court in Tulsiram Kanu (supra) to invoke
illustration (a) to Section 114 of the Evidence Act, as the
ornaments were duly identified by Rajeev Dandsena (PW-
01), Laxmi Devi (PW-03) and Nirupama Dadsena (PW-04) as
belonging to them.
36. The Supreme Court in Earabhadrappa alias Krishnappa
(supra) in the like case it has been held that denial by the
accused where the accused has no satisfactory explanation
to offer for his possession of stolen articles, as in this case
no satisfactory explanation has been offered, rather it has
been denied, their Lordships held that false denial by itself
is an incriminating circumstance (see para 13). But, no
satisfactory explanation has been offered on behalf of the
appellants with regard to the possession of the stolen
articles, rather it has been denied. As such, the appellants
have failed to give explanation about the ornaments/stolen
articles which were recovered pursuant to their
memorandum statements, on 04.10.2012 at about 12:30
AM i.e. within 11 hours from the incident and has given
false explanation, which itself is an incriminating
circumstance.
37. The molted gold was found in the possession of accused-
Suraj (A-6) as per his seizure, which is supported by
Rajkumar (PW-16), who was an important seizure witness
in this case and no document has been brought on record
by the accused- Suraj regarding ownership of the molted
gold or to demonstrate that he has purchased the same
from someone else under disbelieve or mistake. No such
plea has been taken by accused- Suraj and no such
explanation has been offered by accused- Suraj in his
statement under Section 313 of CrPC.
38. The appellants have also been convicted under Section 397
of IPC. The Supreme Court in the matter of Shri Phool
Kumar vs. Delhi Administration18 has observed as under:
"5. Section 392 of the Penal Code provides:
Whoever commits robbery shall be punished with
rigorous imprisonment for a term which may
extend to ten years, and shall also be liable to
fine; and, if the robbery be committed on the
highway between sunset and sunrise, the
imprisonment may be extended to fourteen years.
The sentence of imprisonment to be awarded
under Section 392 cannot be less than seven
years if at the time of committing robbery the
offender uses any deadly weapon or causes
grievous hurt to any person or attempts to cause
death or grievous hurt to any person: vide Section
397. A difficulty arose in several High Courts
as to the meaning of the word "uses" in
Section 397. The term 'offender' in that
section, as rightly held by several High Courts,
is confined to the offender who uses any
deadly weapon. The use of a deadly weapon by
one offender at the time of committing
robbery cannot attract Section 397 for the
imposition of the minimum punishment on
another offender who had not used any deadly
weapon. In that view of the matter use of the gun
by one of the culprits whether he was accused
Ram Kumar or somebody else, (surely one was
there who had fired three shots) could not be and
18 (1975) 1 SCC 797
has not been the basis of sentencing the
appellant with the aid of Section 397. So far as he
is concerned, he is said to be armed with a knife
which is also a deadly weapon. To be more
precise from the evidence of PW 16 "Phool Kumar
had a knife in his hand". He was therefore
carrying a deadly weapon open to the view of the
victims sufficient to frighten or terrorize them.
Any other overt act, such as, brandishing of the
knife or causing of grievous hurt with it was not
necessary to bring the offender within the ambit
of Section 397 of the Penal Code."
(Emphasis supplied)"
39. Similarly, in the matter of Dilawar Singh vs. State of
Delhi19 the Supreme Court laid down the essential
ingredients of Section 397 of IPC as under:
"19. The essential ingredients of Section 397 IPC
are as follows:
1. the accused committed robbery.
2. while committing robbery or dacoity (i) the
accused used deadly weapon (ii) to cause
grievous hurt to any person (iii) attempted to
cause death or grievous hurt to any person.
3. "Offender" refers to only culprit who
actually used deadly weapon. When only one
has used the deadly weapon, others cannot be
awarded the minimum punishment. It only
envisages the individual liability and not any
constructive liability. Section 397 IPC is
attracted only against the particular accused
who uses the deadly weapon or does any of
the acts mentioned in the provision. But the
other accused are not vicariously liable under
that section for acts of the coaccused.
21. In the instant case admittedly no injury has
been inflicted. The use of weapon by offender for
19 (2007) 12 SCC 641
creating terror in mind of victim is sufficient. It
need not be further shown to have been actually
used for cutting, stabbing or shooting, as the case
may be."
(Emphasis supplied)"
40. Furthermore, in the matter of Ram Ratan vs. State of
M.P.20 the Supreme Court relied upon its earlier decisions
rendered in the matters of Shri Phool Kumar (supra) and
Dilawar Singh (supra) and held that use of weapon to
constitute offence under Section 397 of IPC does not require
that 'offender' should actually fire from firearm or actually
stab if it is a knife or a dagger, but mere exhibition of same,
brandishing or holding it openly to threaten and create fear
or apprehension in mind of victim is sufficient. It has been
further held that if the charge of committing offence is
alleged against all accused and only one among 'offenders'
had used firearm or deadly weapon, only such 'offender'
who has used firearm or deadly weapon alone would be
liable to be charged under Section 397 of IPC and held in
Para-17 & 18 as under:
"17. From the position of law as enunciated by
this Court and noted above, firstly, it is clear that
the use of the weapon to constitute the offence
under Section 397 IPC does not require that the
'offender' should actually fire from the firearm or
actually stab if it is a knife or a dagger but the mere
exhibition of the same, brandishing or holding it
20 2021 SCConline (SC) 1279
openly to threaten and create fear or apprehension
in the mind of the victim is sufficient. The other
aspect is that if the charge of committing the
offence is alleged against all the accused and only
one among the 'offenders' had used the firearm or
deadly weapon, only such of the 'offender' who has
used the firearm or deadly weapon alone would be
liable to be charged under Section 397 IPC.
18. Though the above would be the effect and
scope of Section 397 IPC as a standalone provision,
the application of the same will arise in the totality
of the allegation and the consequent charge that
will be framed and the accused would be tried for
such charge. In such circumstance, in the teeth of
the offence under Section 397 IPC being applicable
to the offender alone, the vicariability of the same
will also have to be noted if the charge against the
accused under Sections 34, 149 IPC and such other
provisions of law, which may become relevant, is
also invoked along with Section 397 IPC. In such
event, it will have to be looked at differently in the
totality of the facts, evidence and circumstances
involved in that case and the provisions invoked in
that particular case to frame a charge against the
accused. In the instant case, the charge under
Section 34 IPC was not framed against the
appellant nor was such an allegation raised and
proved against the appellant. Hence, benefit of the
interpretation raised on the scope of Section 397
IPC to hold the aggressor alone as being guilty, will
be available to the appellant if there is no specific
allegation against him."
41. Rajeev Dandsena (PW-01), Laxmi Devi (PW-03) and
Nirupama Dadsena (PW-04) have categorically stated about
the use of country made pistol and knife by the appellants
during dacoity. Knife has been seized from appellant-
Shyam Kumar (A-1) and Devendra (A-4) and further
complainant- Rajeev Dandsena (PW-01) received injury on
the upper part of his neck, for which MLC (Ex.P/35) was
conducted by Dr. Narayan Singh (PW-17), thus, the
appellants have been convicted for offence under Section
397 of IPC i.e. for using deadly weapon and causing
grievous hurt at the time of committing robbery or dacoity,
which is strictly in accordance with law.
42. Further, it has been contended on behalf of the appellant-
Hemlal (A-5) that plea of alibi is fully established in his
favour, as complainant- Rajeev Dadsena (PW-01) in Para-15
of his cross-examination has stated that appellant- Hemlal
(A-5) has visited Sukma, Bastar to his elder brother's house
from 23.09.2012 to 29.09.2012, which the learned trial
Court has not found favour with. A bare perusal of Para-15
of the statement of Rajeev Dadsena (PW-01) would show
that he has admitted before the Court that he has only
knowledge that appellant- Hemlal (A-5) has gone to Sukma,
Bastar on 23.09.2012 and, he has further knowledge that
on 29.09.2012, Hemlal (A-5) has gone from Sukma, Bastar
to Purgaon and except this there is no other corroborating
evidence available on record to show that appellant- Hemlal
(A-5) was really in Sukma, Bastar from 23.09.2012 to
29.09.2012.
43. Plea of alibi has been considered by the Supreme Court in
the matter of Darshan Singh v. State of Punjab21 and it
has been held as under: -
"The word alibi means "elsewhere". The plea of
alibi is not one of the General Exceptions
contained in Chapter IV of IPC. It is a rule of
evidence recognized under Section 11 of the
Evidence Act. However, plea of alibi taken by the
defence is required to be proved only after
prosecution has proved its case against the
accused. In the present case said condition is
fulfilled."
44. It is well settled that strict proof is required for establishing
plea of alibi and finding of fact disbelieving the plea of alibi
based on weight and sturdy reasons should not be
interfered with. (See Binay Kumar Singh v. State of
Bihar22.)
45. It is well settled that a plea of alibi must be proved with
absolute certainty so as to completely exclude the
possibility of the presence of the person concerned at the
place of occurrence. (See State of Maharashtra v.
Narsingrao Gangaram Pimple23.)
46. In the matter of Sahabuddin and another v. State of
Assam24, Their Lordships of the Supreme Court have held
21(2016) 3 SCC 37
22AIR 1997 SC 322
23AIR 1984 SC 63
24(2012) 13 SCC 213
that once the Court disbelieves the plea of alibi and the
accused does not give any explanation in his statement
under Section 313 of the CrPC, the Court is entitled to draw
adverse inference against the accused taking the plea of
alibi.
47. Reverting to the facts of the case in light of principles of law
laid down by their Lordships of Supreme Court in above
mentioned matters with regard to plea of alibi, it is quite
vivid that the plea of alibi so taken by appellant- Hemlal (A-
5) is that he was at Sukma at the time of offence is solely
based on a baled statement of complainant- Rajeev
Dandsena (PW-01) that he had knowledge that appellant-
Hemlal (A-05) had gone to Sukma, Bastar to his elder
brother's house and except this there is no other
corroborating, legally admissible evidence available on
record to substantiate the fact that appellant- Hemlal (A-5)
was really in Sukma, Bastar at the time of commission of
offence in question and, that being the reason, the learned
trial Court in its judgment has not found the plea of alibi to
be proved. Therefore, the plea of alibi raised on behalf of
appellant- Hemlal (A-5) is vacillating and it has rightly been
rejected by learned trial Court. We hereby affirm the said
finding.
48. It has also been submitted on behalf of the appellant-
Hemlal (A-5) that recovery of Nokia Mobile Phone from his
possession vide Ex.P/29 is not established beyond
reasonable doubt, as the same was seized without recording
his memorandum statement and further it lacks from
production of mandatory certificate under Section 65-B of
the Indian Evidence Act, 1872, as call details are required
to be proved in light of decision rendered in Arjun
Panditrao Khotkar (supra). The aforesaid submission is
well founded, but in light of the fact that appellant-
Hemlal's (A-05) involvement in the instant crime has been
duly proved/established on the basis of other evidence
available on record, therefore, the appeal of appellant-
Hemlal (A-5) deserves to be dismissed.
49. Furthermore, the charge of conspiracy has also been found
proved against the accused persons by the learned trial
Court. We have gone through the evidence relating to the
conspiracy and we find that the trial Court is absolutely
justified in holding that the charge of conspiracy is
established. In that view of the matter, we do not find any
infirmity in holding that the charge of conspiracy under
Section 120 of IPC is duly established.
50. Resultantly, all the appeals preferred by six appellants
herein deserves to be and accordingly dismissed having no
merit. Since the appellants are on bail, their bail bonds
shall stand forfeited. They are directed to surrender
forthwith to serve out remaining sentence, failing which
they shall be apprehended in accordance with law.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Harneet/[email protected]
