Chattisgarh High Court
Deepak Dhruv vs State Of Chhattisgarh on 24 June, 2024
Author: Rajani Dubey
Bench: Rajani Dubey
Page 1 of 9
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 983 of 2020
1. Deepak Dhruv S/o Rajendra Dhruv, Aged About 20 Years R/o Village
Ufra, Police Chouki Kandrka, Thana Berla, District Bemetara
Chhattisgarh.
2. Milan Yadav @ Gajni S/o Ballu Yadav, Aged About 26 Years R/o Village
Ufra, Police Chouki Kandrka, Thana Berla, District Bemetara
Chhattisgarh. ---- Appellants
Versus
State of Chhattisgarh through the Station House Officer, Police Chouki
Kandrka, Police Station Berla, District Bemetara Chhattisgarh. ----
Respondent
CRA No. 111 of 2021
Tukaram Nishad S/o Purushottam Nishad Aged About 27 Years R/o
Village Ufra Police Chowki Kandarka, Police Station Berla, District
Bemetara, Chhattisgarh, District : Bemetara, Chhattisgarh --- Appellant
Versus
State of Chhattisgarh through Incharge Outpost Kandarka, Police Station
Berla, District Bemetara, Chhattisgarh. --- Respondent
Mr. Manish Thakur, counsel for appellant Milan Yadav in Cr.A. No. 983 of 2020.
Mr. Rajkumar Pali, counsel for appellant Deepak Dhruv in Cr.A.No. 983 of 2020.
Mrs. Anubhuti Marhas, counsel for the appellant Tukaram through Legal Aid in
Cr.A.No.111 of 2021.
Mr. Ajay Kumrani, Panel Lawyer, for the State in both the appeals.
Hon'ble Shri Justice Goutam Bhaduri
Hon'ble Smt. Justice Rajani Dubey
Judgment on Board
(24th June, 2024)
Per Goutam Bhaduri, J.
1) These appeals are against the judgment of conviction and order of
sentence dated 28.11.2020 passed by the Learned Additional Sessions
Judge, Bemetara, District Bemetara in Sessions Trial No. 26/2019
whereby the the appellants have been convicted for the offences
punishable under sections 395, 341 & 406 Part II of IPC and sentenced
as per the table given below :
Conviction Sentence
u/s 395 of IPC Rigorous imprisonment for 10 years and fine of
Rs.500/-, in default of payment of fine, further RI for 3
months
u/s 341 IPC Simple Imprisonment for one month and fine of
Rs.500/-, in default of payment of fine, to further
undergo RI for three months.
u/s 506 Part II IPC Rigorous imprisonment for one year and fine of
Rs.500/-, in default of payment of fine, further RI for
three months
2) The prosecution case, in brief, is that on on 13.3.2019, Surendra Singh
filed a complaint Ex.P-1 that in the evening of 12.03.2019 while he was
returning alone to his village Nevanara on motorcycle from village
Godgiri, then on the way at about 8.00 to 8.15 p.m., between village
Khamtarai and village Hasda five unknown persons who came on two
motor cycles intercepted the complainant's motorcycle, assaulted him
and while threatening to kill him, looted a cash of Rs.35,000/ as also
one mobile phone, Aadhar Card and PAN Card and thereafter, the
accused fled away. On such information, a case was registered u/s 394
IPC against unknown persons. Subsequently, FIR (Ex.P-25) came to be
registered under sections 394, 34 of IPC, pursuant to which, the
investigation has commenced. During investigation, Durgesh Yadav
who subsequently died during trial, Milan Yadav and Tukaram Nishad
were apprehended and their memorandums were prepared vide Ex.P-8,
P-9, P-10 & P-18 on the basis of which, incriminating articles i.e.,
Aadhar Card, Motorcycle, Cash etc., were recovered from the accused.
One of the accused Sheish Narayan being minor was tried before the
Juvenile Court. The accused were identified by the complainant as
P.W.1 in Test Identification Parade (TIP) which was carried out by the
Naib Tahsildar P.W.6. After completion of entire investigation, charge
sheet was filed. During trial, the accused abjured their guilt and claimed
to be tried.
3) Shri Manish Thakur Advocate with Mr. R.K. Pali and Mrs. Anubhuti
Marhas, learned appearing for the respective appellants would submit
that the identification in this case is defective and the people in fact have
not identified the accused. They would further submit that the witnesses
of seizure have not supported the case of prosecution and there has
been gross delay in conducting Test Identification Parade (TIP) which is
also fatal to the prosecution case, therefore, the benefit should have
been given to the appellant. Instead, the learned trial Court merely on
the basis of TIP which too is contradictory, convicted and sentenced the
accused, therefore, the accused are entitled for acquittal.
4) Per contra, learned State Counsel would submit that reading the
statements of P.W.1 who is a complainant along with person Naib
Tahsildar (P.W.6) who conducted the TIP and the version of P.W.11
Abhishek Singh would show that accused were identified before the
Court as also in the TIP. He would further submit that the cash was
recovered from one of the accused and no plausible explanation has
been given by the accused and further the Aadhar Card was recovered
from Tukaram apart from cash looted, how the Aadhar Card of the
complainant came into their possession has not been properly
explained. When such factor has been supported by the TIP, then the
entire case was proved beyond reasonable doubt. Consequently, the
conviction which is well merited do not call for any interference.
5) We have heard learned counsel for the parties and have also perused
the evidence. According to the prosecution case, the complainant
(P.W.1) on the date of incident was coming back to his village from
another village on his motorcycle with cash of Rs.35,000 and on the
way, he was intercepted by the present appellants and the amount of
Cash, Aadhar card, Mobile etc., were looted. It was immediately
reported to the Sarpanch. The report is filed as Ex.P-1. Though in the
examination in chief, the report was supported but in cross examination,
he states that he had no knowledge that by whom the report (Ex.P-1)
was prepared and he had only signed it. Subsequently, the fact remains
that according to him, he is the person who was subjected to loot which
was committed by the appellants.
6) The TIP was conducted. The appellants were apprehended. Deepak
Dhruv was arrested on 14.03.2019 vide Ex.P-26. Durgesh Yadav (since
deceased) was arrested on 15.03.2019. Likewise, Milan Yadav was
arrested on 15.03.2019 and Tukaram Nishad was arrested on
04.05.2019. The incident was of 12.03.2019 and immediately, the report
was made and after a considerable time, the TIP was carried out on
08.6.2019 by Ex.P-7. The record would show that after the arrest, the
remand was taken for more than 8-9 times for accused Deepak and for
accused Milan about 9 - 10 dates appear and for Tuka Ram, 7 to 8
times remand was taken by the prosecution and eventually on
08.06.2019 the TIP was carried out. A perusal of TIP shows that one of
the accused Deepak Dhruv was not identified as per Ex.P-7 whereas
Milan and Tukaram were identified. The statement of P.W.11 Abhishek
Singh who is from jail would show that the persons who were to be
identified were made to stand on the spot in advance where the TIP was
to be carried out and in cross examination, he further eliminates the
identification of accused Milan Yadav and Deepak Dhruv. Statement of
P.W.6 Porus Bental Naib Tahsildar would show that P.W.1 Surendra
Singh identified 3 accused Milan Yadav, Durgesh and Tukaram. He has
eliminated Deepak Dhruv like Ex.P-7 as it recorded. His statement
would show that Surendra Singh was already present in Sub-Jail
Bemetara before he arrived and he says that he cannot say whether the
accused was shown to the complainant. His statement read with
statement of P.W.11 Abhishek Singh makes doubtful when it is stated
that the accused were made to stand on a place where the TIP is to be
carried out.
7) The identification was carried out after a considerable time and the
prosecution is unable to explain what is the reason for such delay. The
necessity for holding an identification parade can arise only when the
accused are not previously known to the witnesses. Therefore,
necessary precaution should have been taken to prevent the witnesses
from seeing accused but the statement of P.W.11 destroys such
principle. Even the delayed TIP which was carried out after the incident
of 12.03.2019 and subsequent arrest of two of the accused at the same
time and arrest of another accused in the month of May do not clearly
explain that why the prosecution waited for so long. The record would
show that the accused were taken for remand many a time and there
may be possibility that at the time of such remand when the accused
were produced before the Magistrate, they could have been seen by
witnesses.
8) The Supreme Court in Mahabir Versus State of Delhi AIR 2008 SC
2343 held that Test Identification Parades do not constitute substantive
evidence and the identification can only be used as corroborative of
statement in Court. They are primarily meant for the purpose of helping
the investigating agency with an assurance that their progress with the
investigating into the offence is proceeding on the right lines. The Court
has further held that necessity for conducting parade can arise only
when the accused persons are not previously known to witnesses. The
main object of holding of identification parade during investigation stage
is to test the memory of witnesses based upon first impression and also
to enable prosecution to decide whether all or any of them could be cited
as eye-witnesses of crime. Regarding delay in conducting the TIP, the
Court further held that the TIP should be conducted as soon as possible
after arrest of accused and it becomes necessary to eliminate possibility
of accused being shown to witnesses prior to parade. Para 11 is
relevant and quoted below :
"11. As was observed by this Court in Matru
Versus State of U.P (1971) 2 SCC 75,
identification tests do not constitute substantive
evidence. They are primarily meant for the
purpose of helping the investigating agency with
an assurance that their progress with the
investigating into the offence is proceeding on
the right lines. The identification can only be
used as corroborative of the statement in Court.
(See SantokhSingh v. Izhar Hussain (1973) 2
SCC 406. The necessity for holding an
identification parade can arise only when the
accused are not previously known to the
witnesses. The whole idea of a test identification
parade is that witnesses whom claim to have
seen the culprits at the time of occurrence are to
identify them from the midst of other persons
without any aid or any other source. The test is
done to check upon their veracity. In other
words, the main object of holding an
identification parade, during the investigation
stage, is to test the memory of the witnesses
based upon first impression and also to enable
the prosecution to decide whether all or any of
them could be cited as eyewitnesses of the
crime. The identification proceedings are in the
nature of tests and significantly, therefore, there
is no provision for it in the Code and the Indian
Evidence Act, 1872 (in short the "Evidence Act").
It is desirable that a test identification parade
should be conducted as soon as possible after
the arrest of the accused. This becomes
necessary to eliminate the possibility of accused
being shown to the witnesses prior to the test
identification parade. This is a very common
plea of the accused and, therefore, the
prosecution has to be cautious to ensure that
there is no scope for making such allegation. If,
however, circumstances are beyond control and
there is some delay, it cannot be said to be fatal
to the prosecution."
9) The Supreme Court further held in Gireesan Nair Versus State of
Kerala (2023) 1 SCC 180 that undue delay in conducting a TIP has a
serious bearing on the credibility of the identification process. Though
there is no fixed timeline within which the TIP must be concluded and
the consequence of the delay would depend upon the facts and
circumstances of the case, it is imperative to hold the TIP at the earliest.
10) In Suresh Chandra Bahri v. State of Bihar 1995 Supp (1) SCC 80, it
was held that : (SCC p.126, Para 78) :
"78... It is a matter of great importance both
for the investigating agency and for the accused
and a fortiori for the proper administration of
justice that such identification is held without
avoidable and unreasonable delay after the
arrest of the accused and that all the necessary
precautions and safeguards were effectively
taken so that the investigation proceeds on
correct lines for punishing the real culprit. ... It is
in adopting this course alone that justice and fair
play can be assured both to the accused as well
as to the prosecution. But the position may be
different when the accused or a culprit who
stands trial had been seen not once but for quite
a number of times at different point of time and
places which fact may do away with the
necessity of a TI parade."
11) Applying the above test laid down by the Supreme Court to the facts and
evidence of the present case, when the TIP was delayed for such a
considerable time as has been done in the instant case, then in such a
case it raises doubt. It is obvious that the accused were arrested in the
monthe of March & May and TIP was conducted in the month of June.
There were several chances that the accused could have been identified
while they were being frequently brought on remand. Therefore, the
reliance placed by the learned Sessions Judges exclusively on the TIP
cannot inspire confidence.
12) Now coming back to the seizure from Deepak Dhruv Ex.P-11, on the
basis of memorandum Ex.P-8, motorcycle and cash was seized. The
motorcycle belonged to the accused himself and seizure of cash of
Rs.25000 cannot be identified, as the witnesses such seizure viz P.W.2
and P.W.4 have completely turned hostile and even in their cross
examination, nothing comes to fore so as to accept the existence of and
execution of recovery and the memorandum. Likewise, from accused
Milan Yadav cash of Rs.4000/- was recovered by Ex.P-13 and likewise
from Tukaram (P.W.17) cash of Rs.3000/- and Aadhar Card alleged to
be that of complainant were recovered. But the witnesses to such
recovery i.e., P.W.7 and P.W.9 have completely turned hostile and they
have not supported the case of prosecution. Therefore, the
memorandums and seizure have also become doubtful. When the
identification itself became doubtful and there was a sole witness who
has suffered the incident, his statement cannot be relied upon. The rest
of the evidence becomes week. Consequently, we are of the view that
the conviction made by the learned Sessions Court cannot be sustained.
Accordingly, we set aside the conviction of judgment and order of
sentence passed by the learned Additional Sessions Judge. the same is
set aside. The appellants are acquitted of the charges.
13) In the result, both the appeals filed by appellants Deepak Dhruv and
Milan Yadav @ Gajni as also appellant Tukaram Nishad are allowed. It
is stated that appellant Deepak Dhruv has been granted bail vide order
dated 21.06.2021. That being the position, the other appellants Milan
Yadav and Tukaram Nishad shall be released from jail forthwith in case
they are not required in any other offence.
Sd/- Sd/-
(Goutam Bhaduri) (Rajani Dubey)
Judge Judge
Rao
CRA No. 983 of 2020 and CRA No.111 of 2021
Head-notes
1. The undue delay in conducting the Test Identification Parade has a
serious bearing on credibility of identification process.
f'kuk[r ijh{k.k dk;Zokgh djk;s tkus esa vuqfpr foyEc ls f'kuk[r dk;Zokgh dh fo'oluh;rk
ij xEHkhj izHkko iM+rk gSA
2. The necessity for holding an identification parade can arise only
when the accused are not previously known to the witnesses.
f'kuk[r dk;Zokgh djk;s tkus dh vko';drk dsoy rHkh gksxh tc xokg yksx vfHk;qDr dks
igys ls ugha tkurs gksA
