Madhya Pradesh High Court
Padam Nath vs State Of M.P. on 1 September, 2021
Author: Subodh Abhyankar
:1:
Cr.A.No. 1291-2007
THE HIGH COURT OF MADHYA PRADESH, INDORE BENCH
DIVISION BENCH
Criminal Appeal No. 1291 / 2007
1. Padamnath s/o Dhananath
2. Guddulal s/o Baijnath
3. Bhanwarnath s/o Pannanath
4. Fundanath s/o Amarnath
5. Surajnath s/o Ratanlal
6. Sakunath s/o Heeranath
7. Dharmendra @ Ramesh s/o Heeranath
....... Appellants.
vs.
State of Madhya Pradesh ..... respondent.
---------------------------------------------------------------------------
Coram :
Hon'ble Shri Justice Vivek Rusia
Hon'ble Shri Justice Subodh Abhyankar
------------------------------------------------------------------------------
Ms. Usha Chouhan, learned counsel for the appellants.
Shri Amit Singh Sisodiya, learned Panel Lawyer for
the respondent /State.
-------------------------------------------------------------------------------------------
JUDGMENT
( Delivered on 01/ 09 /2021)
Per: Subodh Abhyankar, J:
The appellants have preferred the present appeal under Section
374 of Cr.P.C., being aggrieved by judgment dated 19/09/2007 passed
by the First Additional Sessions Judge Dewas, District-Dewas (M.P.) in
S.T. No.229/2005, whereby they have been convicted and sentenced
them as under:-
Conviction Sentence
Section Act Imprisonment Fine Imprisonment
in lieu of fine
396 IPC Life 1000/-each 1 year SI
450 IPC 10 Years R.I. 1000/-each 1 year SI
397 IPC 10 Years R.I. 1000/- each 1 year SI
2. In brief, the facts of the prosecution case are that, on 18.5.2004 at
Cr.A.No. 1291-2007
around 2 to 3 o'clock in the night, the present appellants entered into
the house of Kashiram with a view to commit dacoity and in that
process they caused injuries to Kailash, Kishan, Seema, Leelabai,
Pinki, Kashiram, Kalusingh, Jayaram, Mamta and Sajanbai and also
committed murder of Shantabai. Dehati Nalishi (Ex.P/3) to this effect
was lodged at the instance of Pinki (P.W.4) aged around 12 years and
on the basis of which, First Information Report (Ex.P/17) was lodged.
Investigation ensued and the appellants were arrested and put to trial.
The learned Judge of the trial Court, after recording of the evidence,
has convicted and sentence the appellants as aforesaid and being
aggrieved by the same, this appeal has been preferred by the appellants.
3. Counsel for the appellants has submitted that the appellants have
been falsely implicated in the case, in as much as they have been
wrongly identified by the prosecution witnesses despite the fact that
admittedly the incident took place in the wee hours of the morning at
around 2 to 3 o'clock and the manner in which the incident took place it
was not possible for any of the witnesses to identify the accused
persons. Counsel has further submitted only the silver anklet (chandi
ki kadi) has been identified by Pinki (P.W. 4) and Leelabai and no other
material connecting them with the offence has been recovered from the
appellants and the other material seized from them has also not been
identified by the witnesses. Counsel has further submitted that the
appellants have been falsely implicated only on the basis of the memo
prepared under Section 27 of the Evidence Act and thus, the conviction
and the sentence awarded to the appellants are liable to be set aside.
Cr.A.No. 1291-2007
4. Counsel for the respondent/State, on the other hand, has opposed
the appeal and has submitted that no case for interference is called for
as the learned Judge of the trial Court has rightly appreciated the
evidence and has convicted the appellants. Thus, it is submitted that the
appeal be dismissed.
5. Heard the learned counsel for the parties and also perused the
record.
6. From the record, this Court finds that the FIR (Ex.P/17) in the
present case was lodged on 18.05.2004 at around 2:00 to 3:00 AM in
the night by complainant PW-4 Pinky aged around 12 years, wherein
she has stated that around 7-8 persons barged into their house in the
night and badly assaulted just about each and every members of the
family and also caused murder of her aunt Shanti Bai. It was also stated
in the FIR that although she does not know about all the articles stolen
from her house, however, she has affirmed that silver anklet (Kadi) was
removed from the leg of her aunt Shanti bai. It is also found that prior
to the lodging of the FIR, injured persons were taken to the M.Y.
Hospital and the MLC was conducted by PW-12 Dr. Sushil Kumar
Khare, who found various injuries to PW-1 Kailash, PW-2 Kishanlal
whose mendable was fractured, PW-3 Seema, one family member
Leela (not a prosecution witness), PW-4 Pinky, PW-5 Kaluji, PW-6
Kashiram who suffered head injury, , PW-7 Mamta, PW-9 Jairam,
another family member Sunanda (not a prosecution witness), who also
suffered fracture in her mendable and her medical report is Ex.P/15.
Thus, barring two injured witnesses, namely, Leela and Sunanda, all the
Cr.A.No. 1291-2007
other injured witnesses have been examined in the trial Court.
7. So far as the test identification parade (TIP) and dock
identification are concerned, , the Supreme Court, in the case of Dana
Yadav alias Dahu and others vs. State of Bihar reported as
(2002)7SCC 295 has held as under: -
" 6. It is also well settled that failure to hold test identific-
ation parade, which should be held with reasonable dispatch,
does not make the evidence of identification in court inad-
missible, rather the same is very much admissible in law.
Question is, what is its probative value? Ordinarily, identific-
ation of an accused for the first time in court by a witness
should not be relied upon, the same being from its very
nature, inherently of a weak character, unless it is corrobor-
ated by his previous identification in the test identification
parade or any other evidence. The purpose of test identifica-
tion parade is to test the observation, grasp, memory, capacity
to recapitulate what a witness has seen earlier, strength or
trustworthiness of the evidence of identification of an ac-
cused and to ascertain if it can be used as reliable corroborat-
ive evidence of the witness identifying the accused at his trial
in court. If a witness identifies the accused in court for the
first time, the probative value of such uncorroborated evid-
ence becomes minimal so much so that it becomes, as a rule
of prudence and not law, unsafe to rely on such a piece of
evidence. We are fortified in our view by a catena of de-
cisions of this Court in the cases of Kanta Prashad v. Delhi
Admn., Vaikuntam Chandrappa, Budhsen, Kanan v. State of
Kerala, Mohanlal Gangaram Gehani v. State of Maha-
rashtra, Bollavaram Pedda Narsi Reddy, State of Maha-
rashtra v. Sukhdev Singh, Jaspal Singh v. State of Punjab,
Raju v. State of Maharashtra, Ronny, George v. State of Ker-
ala, Rajesh Govind Jagesha, State of H.P. v. Lekh Raj and
Ramanbhai Naranbhai Patel v. State of Gujarat.
7. Apart from the ordinary rule laid down in the afore-
said decisions, certain exceptions to the same have been
carved out where identification of an accused for the first
time in court without there being any corroboration whatso-
ever can form the sole basis for his conviction. In the case of
Budhsen it was observed: (SCC p. 132, para 7)
"There may, however, be exceptions to this general rule, when
for example, the court is impressed by a particular witness, on
whose testimony it can safely rely, without such or other corrob-
oration."
8. In the case of State of Maharashtra v. Sukhdev Singh
it was laid down that if a witness had any particular reason to
remember about the identity of an accused, in that event, the
case can be brought under the exception and upon solitary
evidence of identification of an accused in court for the first
time, conviction can be based. In the case of Ronny it has
been laid down that where the witness had a chance to inter-
act with the accused or that in a case where the witness had
Cr.A.No. 1291-2007
an opportunity to notice the distinctive features of the ac-
cused which lends assurance to his testimony in court, the
evidence of identification in court for the first time by such a
witness cannot be thrown away merely because no test identi-
fication parade was held. In that case, the accused concerned
had a talk with the identifying witnesses for about 7/8
minutes. In these circumstances, the conviction of the ac-
cused, on the basis of sworn testimony of witnesses identify-
ing for the first time in court without the same being corrob-
orated either by previous identification in the test identifica-
tion parade or any other evidence, was upheld by this Court.
In the case of Rajesh Govind Jagesha6 it was laid down that
the absence of test identification parade may not be fatal if
the accused is sufficiently described in the complaint leaving
no doubt in the mind of the court regarding his involvement
or is arrested on the spot immediately after the occurrence
and in either eventuality, the evidence of witnesses identify-
ing the accused for the first time in court can form the basis
for conviction without the same being corroborated by any
other evidence and, accordingly, conviction of the accused
was upheld by this Court. In the case of State of H.P. v. Lekh
Raj it was observed (at SCC p. 253, para 3) that "test identi-
fication is considered a safe rule of prudence to generally
look for corroboration of the sworn testimony of witnesses in
court as to the identity of the accused who are strangers to
them. There may, however, be exceptions to this general rule,
when, for example, the court is impressed by a particular wit-
ness on whose testimony it can safely rely without such or
other corroboration".
In that case, laying down the aforesaid law, acquittal of one
of the accused by the High Court was converted into convic-
tion by this Court on the basis of identification by a witness
for the first time in court without the same being corroborated
by any other evidence. In the case of Ramanbhai Naranbhai
Patel it was observed: (SCC p. 369, para 20)
"It, therefore, cannot be held, as tried to be submitted by learned
counsel for the appellants, that in the absence of a test identific-
ation parade, the evidence of an eyewitness identifying the ac-
cused would become inadmissible or totally useless; whether
the evidence deserves any credence or not would always depend
on the facts and circumstances of each case."
The Court further observed "the fact remains that these eye-
witnesses were seriously injured and they could have easily
seen the faces of the persons assaulting them and their ap-
pearance and identity would well remain imprinted in their
minds especially when they were assaulted in broad day-
light".
In these circumstances, conviction of the accused was upheld
on the basis of solitary evidence of identification by a witness
for the first time in court.
9. In the present case, Appellant 3 Deo Nandan was undis-
putedly not named as one of the accused in the first informa-
tion report, though names of several other accused persons
were enumerated therein. In statement made before the po-
lice, no prosecution witness has named him. He was named
in court by Balroop Prasad (PW 3), Chandrika (PW 4), Bal
Govind (PW 8) and Shambhu Prasad Komal (PW 14) but PW
4 and PW 8 identified another person as this appellant and
thus these two witnesses wrongly identified this appellant. So
Cr.A.No. 1291-2007
far as the other two witnesses, namely, PW 3 and PW 14 are
concerned, though they have identified this appellant in court,
but they did not disclose his name before the police. There
may be a case where an accused is known to a prosecution
witness who did identify him at the time of the occurrence
but for manifold reasons, he could not have divulged his
name to the informant before the first information report was
lodged. One of the reasons may be that such a witness could
not meet the informant before the first information report was
lodged and no sooner, after lodging of the first information
report, without any reasonable delay, when he was examined
by the police, name of the accused was disclosed. The other
reason may be where such a witness received injuries during
the course of the occurrence and became unconscious, as
such he could not get opportunity to disclose name of the ac-
cused to the informant before the lodging of the first informa-
tion report and no sooner he regained consciousness, name of
the accused was disclosed by him in his statement made be-
fore the police. These instances are by way of illustrations
and cannot be exhaustive. In view of these and similar other
circumstances, it can be said that merely because the accused
was not named in the first information report, though he was
known to some of the prosecution witnesses, no adverse in-
ference can be drawn against the prosecution for not naming
such an accused in the first information report. Likewise
there cannot be an inflexible rule that if a witness did not
name an accused before the police, his evidence identifying
the accused for the first time in court cannot be relied upon.
There may be a case where a witness has received injury dur-
ing the course of occurrence, became unconscious and re-
mained as such for a few months while in the meanwhile,
charge-sheet was submitted by the police. In such an eventu-
ality, statement of the witness could not have been recorded
by the police and his identification for the first time in court
may be relied upon. In the present case, there is no evidence
that this appellant was known to PWs 3 and 14 from before.
The occurrence is said to have taken place on 25-4-1983
whereas PW 3 was examined after two years in the year 1985
and PW 14 after more than two-and-a-half years after the oc-
currence i.e. in the month of June 1986. Thus, it would not be
safe to place reliance on the identification of this appellant
for the first time in court by these witnesses after an inordin-
ate delay of more than two years from the date of the incid-
ent, especially when the identification in court is not corrob-
orated either by the previous identification in the test identi-
fication parade or any other evidence. This being the posi-
tion, we are of the view that the High Court was not justified
in upholding conviction of Deo Nandan (Appellant 3).
10. Now, we proceed to consider cases of the other five ap-
pellants, namely, Dana Yadav (Appellant 1), Doman Yadav
(Appellant 2), Rambilas Yadav (Appellant 4), Bindeshwar
Yadav (Appellant 6) and Ramchandra Yadav (Appellant 7).
It has been submitted that the informant and the prosecution
witnesses claimed that they knew these appellants from be-
fore the occurrence which was challenged by them, as such
on prayer being made by the appellants, the learned Magis-
trate directed for holding test identification parade but curi-
ously enough, no test identification parade was held. Shri
Cr.A.No. 1291-2007
Mishra submitted that in case the accused challenges his
identity, it was incumbent upon the prosecution to hold test
identification parade and on its failure to do so, the court was
not justified in convicting him on the basis of his identifica-
tion in court by the witnesses. Thus, question arises, if an ac-
cused denies the fact that he is known to the prosecution wit-
nesses and challenges his identity by them by filing a petition
in court and making a prayer therein for holding test identi-
fication parade, what course a court should adopt? The an-
swer to the question cannot be put in a straitjacket. For ex-
ample, if an accused is a relation of prosecution witnesses
who are residing in the same village, it can be reasonably in-
ferred that they are known to each other. Likewise there may
be a case where an accused is on visiting terms with the pro-
secution witnesses or there are cases between them, and they
used to attend the same in court whereby they had occasion
to see each other. These instances are only by way of illustra-
tion and in these circumstances, if an accused challenges his
identification by prosecution witnesses, the court ordinarily
would not grant the prayer for holding test identification
parade. On the other hand, even if the accused and prosecu-
tion witness are full brothers or close relations, they may not
be knowing each other i.e. where they are residing in differ-
ent countries or distant places and had never occasion to meet
each other after they attained senses. Likewise in case of a re-
lation also, a witness may not know the accused by face as he
had never met him and had known him by name only. In
these eventualities, if an accused challenges the identification
and prayer for holding test identification is made, the same
may be granted."
(emphasis supplied)
8. So far as the case in hand is concerned, this court is required to
sift the evidence taking note of the fact that there are many injured eye
witnesses who had the opportunity to watch the accused persons for a
considerable period of time at the time when the incident took place. it
is found that in the test identification parade memo Ex.P/1, the accused
persons were mixed with other 16 persons. It is also found that PW-4
Pinky, PW-6 Kashiram and Leela Bai (not examined) have identified
the pair of silver anklet out of three pairs of such silver anklets vide
Ex.P/2 and its identification mark has also been mentioned in the
identification memo. It is found that so far as the silver anklet is
concerned, it has been seized from the possession of appellant A1
Cr.A.No. 1291-2007
Padamnath, who, in his memo Ex.P/23 prepared under Section 27 of
the Evidence Act, 1872 has led to the recovery of the article vide
Ex.P/27 wherein amongst 23 ornaments/articles seized from his
possession, which were also obtained by him in other robberies, the
silver anklet of the Shanta Bai (the deceased) has also been seized.
9. PW-1 Kailash has identified the appellant A/2 Guddunath and
A1 Padamnath in the Court who had also caused injury on his head by
a stick. He has stated that he fell unconscious and came into senses
only after five days, whereas his mother had died on the spot and all the
family members suffered injuries. He has stated that he was not called
for the test identification parade, however, he has admitted his
signatures on Ex.P/1 and has stated that he might have signed those
documents at his home. He has also been cross-examined by the
prosecution after declaring him hostile and he has stated that he does
not exactly remember where he had signed the document, as on account
of head injury he is not able to recall the information sought positively.
In his cross-examination by the defence, he has admitted that he has
never been to jail (for the purpose of identification of accused persons).
He is also asked that he did not inform the police that a person was
standing near his legs, who had caused injury with stick on his leg,
whereas the appellant A1 Padamnath caused injury on his head. Thus,
Pw/1 has disproved Ex.P/1(test identification parade) however even if
it is assumed that he did not participate in the TIP, nevertheless, he has
identified A/1 Padamnath and A/2 Guddunath in the court, thus, the
dock identification of A1 and A2 by Pw/1 assumes importance.
Cr.A.No. 1291-2007
10. PW-2 Kishanlal has identified all the accused persons in the
Court and has stated that Shanta Bai had died on the spot, whereas the
other family members were assaulted by the accused persons. His
testimony has remained unshaken and he has also affirmed that he has
recognized the accused persons in Bagli Jail vide Ex.P/1 in which he
has identified A/1, A/3, A/4, and A/6, thus so far as the said appellants
are concerned, Pw/2 has identified them positively.
11. PW-3 Seema aged 12 years has identified the accused persons in
the Court itself but she has not been put to test identification parade and
considering her age and the length of time between the incident dated
18.05.2004 and her examination in court on 10.02.2006, her testimony
lacks credence.
12. PW-4, the complainant Pinky, aged 13 years, has admitted her
signature on Ex.P/1 and P/2 the identification memos, But she has also
admitted that the accused persons were shown to her at Ujjain whereas
the TIP took place at Bagli Jail and that she signed Ex.P/2 at Ujjain
police station. She has also admitted that in the silver anklet of her
grand-mother, there was no identification sign, which could be
recognizable. Thus, her testimony is hardly convincing for the purposes
of identification of the accused persons or the anklet.
13. PW-5 Kaluji aged 70 years has although affirmed the incident,
however, has refused to identify the accused persons on account of his
poor eyesight.
14. PW-6 Kashiram, the husband of the deceased Shantabai, has in
his examination-in-chief stated that the accused persons who had come
Cr.A.No. 1291-2007
near him had covered their faces, and his wife Shanta Bai was
murdered by the accused persons and also took away her silver anklet.
He has also identified A6 Shakunath, A Ganpatnath and A2 Guddunath
(typed as guddulal in appeal memo) in court. Although he has affirmed
that he had signed Ex.P/1 the test identification parade memo but has
also stated in his cross-examination that he has never been to Bagli but
had gone to Hatpiplya where he identified the silver anklet vide Ex.P/2.
In his cross-examination, he has stated that all the accused persons had
not covered their faces only those persons who had come near him had
covered their faces. Thus, his testimony is credible so far as A6
Shakunath, accused Ganpatnath and A2 Guddunath (typed as guddulal
in appeal memo) are concerned as also for the identification of the
Anklet which was of his wife's only.
15. PW-7 Mamta has identified in the Court the accued A6
Sakunath and A3 Bhanwarnath. However, she has identified her
signature on Ex.P/1, but has denied that she has ever been to Bagli Jail.
She has also admitted that the accused persons were shown to her in the
Police Station Ujjain. Thus, her testimony is of no consequence.
16. PW-8 Suganbai who had suffered fracture has stated that she
had gone to see the accused persons in Bagli police station and
nowhere else and also stated that she fell unconscious after being hit by
somebody. Thus, her testimony is also of no use to prosecution.
17. PW-9 Jairam has identified Pappunath(whose original name is
A/5 Surajnath), A7 Dharmendranath, Ganpatnath (since absconding)
and A3 Bhanwarnath in court and has affirmed that he has signed the
Cr.A.No. 1291-2007
test identification parade memo Ex.P/1in Bagli Jail. As per Ex.P/1.
Jairam has identified A4 Fundanath, A3 Bhanvarnath, A2 Guddunath,
A1 Padamnath and A6 Sakunath. Learned judge of the trial court has
observed in para 21 that the TIP took place around one year after the
incident whereas his statement in the court were recorded after around
three years. In such circumstances, in the considered opinion of this
court his identification of the accused person at the time of TIP has to
be given preference and since only A3 Bhanvarnath has been identified
by him in his TIP and in court, his testimony is held good for
identification of A3 Bhanvarnath only.
18. From the deposition of PW-11 Dr. S. S. Malviya, who has
conducted the postmortem of the deceased Shantabai, it is found that
the deceased had suffered three injuries, two external injuries one is on
the temporal region and the other is right parietal region and both the
injuries were grievous in nature. The cause of death is said to be head
injury.
19. As already observed, PW-12 Dr. Sushil Kumar Khare has
treated all the injured persons, who had suffered various injuries. PW-
13 Naib Tehsildar Bondar Kalesh has endorsed the test identification
parade memo and has clearly stated that which of the witnesses identi-
fied which accused persons. PW-16 Devisingh the seizure witness has
not supported the case of the prosecution and although he has admitted
his signatures on Ex.P/19 to P/27, however, he has stated that all these
documents were signed by him at one place only. PW-17 Anil Singh
Chouhan is the Investigating officer and there is no material discrep-
Cr.A.No. 1291-2007
ancy in his deposition. PW-19 Ansar, the seizure witness has also not
supported the case of the prosecution, however, he has affirmed that he
has signed the memos.
20. In view of the aforesaid discussion, the following factual
scenario emerges connecting the following appellants with the offence
on account of their identification by the various witnesses:-
Table of witness and the identification of appellants.
Witnesses Identified Accused
1. PW-1 Kailash A1 Padamnath & A2 Guddunath (typed as
guddulal in appeal memo)
2. PW-2 Kishanlal A1 Padamnath, A3 Bhanvarnath, A4 Fundanath,
and A6 Sakunath
3. PW-6 Kashiram A6 Shakunath, A2 Guddunath and Accused
Ganpatnath (since absconding)
4. PW-9 Jairam A3 Bhanvarnath
21. From the aforesaid appreciation of evidence, this court finds that
so far as the A5 Surajnath and A7 [email protected] Ramesh are
concerned, they have not been identified by any of the witnesses. Thus,
except these two appellants viz. A5 Surajnath and A7 [email protected]
Ramesh, it is found that the learned judge of the trial court has not
committed any error to record a finding of conviction in respect of the
appellants, A1 Padamnath s/o Dhananath, A2 Guddulal s/o Baijnath, A3
Bhanwarnath s/o Pannanath, A4 Fundanath s/o Amarnath and A6
Sakunath s/o Heeranath and as such their conviction is upheld and their
appeal stands dismissed. Whereas, the appeal of the appellants A5
Surajnath and A7 Dharmendra @ Ramesh is hereby allowed and the
impugned judgment and conviction as against them are hereby set
aside. The appellants A5 Surajnath and A7 Dharmendra @ Ramesh, if
Cr.A.No. 1291-2007
not required in any other case, be released forthwith from jail.
Accordingly, the appeal stands partly allowed.
(Vivek Rusia) (Subodh Abhyankar )
JUDGE JUDGE
moni
Digitally signed by RAMESH CHANDRA PITHWE
Date: 2021.09.03 18:06:53 +05'30'
