Rajasthan High Court - Jodhpur
State vs Punam Das on 27 May, 2024
Bench: Pushpendra Singh Bhati, Rajendra Prakash Soni
[2024:RJ-JD:21489-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
....
D.B. Criminal Appeal No. 3/1995
State of Rajasthan
----Appellant
Versus
1. Punam Das son of Shri Akha Das, by caste Sad, resident of
Nathuursir, P.S. Nokha, District Bikaner.
2. Chhabila son of Shri Surja Ram, by caste Gold smith
(Sunar), resident of Gangava, P.S. Sadar Hinsar (Haryana).
3. Jogendra Singh alias Master, son of Shri Chet Ram, by
caste Jat, resident of Punjabiyonki Dhani Tapiala, PS Ringas,
District Sikar. (All in Sessions Case No. 75/1990)
----Respondents
AND
1. Birbal Ram son of Shri Barsinga Ram, by caste Vishnoi,
resident of Jaisala, P.S. Bhojasar, Thana Bhojasar, District
Jodhpur (in Sessions Case No. 78/1990)
For Appellant(s) : Mr. B.R. Bishnoi, PP
For Respondent(s) : Mr. Rajiv Bishnoi, Amicus Curiae
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI
Judgment
REPORTABLE
27/05/2024
(Per Hon'ble Mr. R. P. Soni, J.)
1. This appeal is directed against the judgment and order dated
16.05.1994 rendered by the Special Judge, SC/ST (Prevention of
Atrocities) Act, Jodhpur in Sessions Case No. 75/1990 & 78/1990
acquitting the respondents-accused for the offences punishable
under Sections 396, 460, 302 or 302/149 of the Indian Penal
Code. All the accused were charged and tried for allegedly
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committing murder of Igya Ram in the mid-night of 13.09.1984
and 14.09.1984 by shooting him in furtherance of their common
object.
2. The facts necessary to be noticed for disposal of present
appeal against acquittal, briefly stated are that on 14.09.1984 at
about 5:20 in the early morning, complainant Ramvilas (PW-2)
lodged a report (Ex.P-1) at Police Station Osian, District Jodhpur
stating, inter alia, that he along with his brothers resides in
Punasar village and conducts business there. In mid-night of
13.09.1984 and 14.09.1984 at around 10:30 pm, after having
dinner, they slept in the court-yard. Their driver Ranjeet Singh and
one Birma Ram Jat were also sleeping besides them. At around
12:30 in the night, three persons entered into the court-yard
having pistols and guns. They threatened him and demanded to
lead them into the house to reveal the valuables. Subsequently,
they forcibly pushed all the three brothers inside the house, firing
gun shot on the ground and menacingly threatening to shot them
as well. The fourth person stood outside the house with a gun
while one or two persons positioned themselves on the roof firing
continuously. They compelled entire family to gather into the
chowk of the house and instructed them to unlock the room.
3. The FIR further stated that complainant unlock the room
allowing accused to enter. They inquired about the safe (Tijori).
In response, brother of the complainant, Igya Ram stated that
they did not possess a safe; whatever valuables they possess
were in that very room. Meanwhile one of the accused fired a gun-
shot at Igya Ram causing him to collapse on the ground. The trio
proceeded to search for valuables inside the room, while the other
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accused positioned at the terrace continued firing. Half an hour
later, accused returned to the chowk of the house after bundling
the valuables in 2-3 bundles and demanded keys of the shop.
They also looted their shop and while leaving, they shoot at a
vehicle parked near the house puncturing one of its tyres.
4. It is further stated that when the complainant and his family
members raised an alarm, accused threatened to kill them. The
faces of all the accused were covered with cloths. They were
speaking Marwari and Hindi language and are of age between 20
to 30 years. He can recognize the accused in future. Thereafter,
villagers came to the place of occurrence. Igya Ram was shot at
his hip. He was also taken to the Police Station.
5. In pursuance to the said complaint, investigation was set in
motion and the charge-sheet was filed against all the accused-
respondents. After the case was committed to the Court of
Sessions, the charges for the offences punishable under Sections
396, 460, 302 or 302/149 of the Indian Penal Code were framed
against the accused-respondents to which, they did not plead
guilty and claimed trial.
6. To bring home the guilt of the respondents, prosecution
examined as many as 31 witnesses and also got exhibited 33
different documents. Upon being confronted with the allegations
set-out in the evidence of the prosecution witnesses, respondents
denied all the incriminating circumstances put to them and
claimed that they had been falsely implicated and are innocent.
The defence propounded by the respondents in the course of trial
was of total denial. No oral evidence was produced by the
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respondents in their defence but 5 different documents were
exhibited.
7. During the trial, accused Raghuveer Singh was declared
abscond by the trial Court. Hence, this appeal relates to the
accused - Punam Das, Chhabila, Jogendra Singh and Birbal Ram.
8. The trial Court, after consideration of entire evidence on
record, has acquitted all the four respondents holding that
prosecution has not been able to establish the identity of the
accused and the evidence produced by the prosecution was not
sufficient to prove the charges levelled against the respondents
beyond reasonable doubt.
9. Learned Public Prosecutor Mr. B. R. Bishnoi, appearing for the
State has argued that findings arrived at by the learned trial Court
are palpably wrong and against the evidence on record. He has
assailed the impugned judgment of the learned trial Court on the
ground that vide different test identification parade memos
(Ex.P/11, P/12, P/13 and P/19), respondents Chhabila, Birbal Ram
and Jogendra Singh were identified, which has been proved by
Rampal (PW-1) and Ramvilas (PW-2), who were eye-witnesses.
On that basis, the respondents ought to have been convicted.
10. On the other hand, Mr. Rajiv Bishnoi, learned Amicus Curiae,
appearing on behalf of the respondents urged that merely because
of re-appraisal of the evidence, the other view of the matter than
taken by the learned trial Court can be legitimately arrived at,
would not be sufficient ground to interfere with an order of
acquittal, unless this Court reaches the conclusion that the entire
approach of the learned trial Court in appreciating the evidence
was patently illegal, erroneous or unsustainable; and that if, on
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re-appraisal of the evidence, only one view is possible then alone,
this Court will exercise the jurisdiction in appeal and can convict
the acquitted respondents. It is further submitted that on
consideration of the evidence on record, the learned trial Court
has rightly reached to the conclusion that the prosecution has
failed to prove the identity of the accused. The case was not
proved beyond reasonable doubt as to involvement of the
respondents in commission of the alleged crime.
11. Arguments advanced by the learned Public Prosecutor
appearing for the State as well as learned Amicus Curiae were
heard at length and the record of the case was also perused.
12. The most crucial aspect of the case is identification of the
accused-respondents.
13. According to the case of the prosecution, at the time of
incident, deceased Igya Ram, Ramvilas, Mrs. Sohani, Murlidhar,
Rampal, Mrs. Ichuki, Shankerlal and Birma Ram were sleeping at
different places of their house, i.e., outside, inside and on the roof.
All of them woke up when the respondents attacked. The alleged
incident took place before these family members. The trial Court
did not rely on the evidence of all the above witnesses.
14. Mrs. Sohani (PW-5), Mrs. Ichuki (PW-9), Mrs. Shanti (PW-10)
and Birma Ram (PW-24) have made clear in their deposition that
they could not identify any of the respondents at the time of
incident; all the respondents had their faces covered with the
cloths and they could not recognized them even after seeing them
in the Court.
15. Although, Shankerlal (PW-17) has identified one of the
accused Jogendra Singh in the Court but has also deposed that
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the faces of the accused were covered with the cloths. The
evidence of Shankerlal (PW-17) holds no importance, specially
considering that no test identification parade of any accused was
conducted with him during the course of investigation. Same is
the position with Murlidhar (PW-21). Murlidhar has identified the
accused Birbal Ram, Punam Das, Chhabila and Jogendra Singh by
their names in the Court but he has also admitted that he has
seen them in the Court for the first time. Admittedly, no test
identification parade of any accused was conducted with Murlidhar
also during the course of investigation nor these two witnesses
narrated the names of the accused in their statement recorded
under Section 161 of the Cr.P.C. (Ex. D/5).
16. Shankerlal (PW-17) and Murlidhar (PW-21) have identified
some of the accused for the first time in the Court itself. In such a
situation, their identification is of no importance in the eye of law
and there was no basis to rely on the statements of these
witnesses. Hence, their evidence need not detain us.
17. Ramvilas (PW-2) is complainant-cum-eye witness and
brother of the deceased Igya Ram. He claimed in his examination-
in-chief that:-
"faces of all the accused were covered with the
cloths; today, I can recognize accused by their face;
Chhabila, Birbal Ram and Punam Das were
recognized by him in the Court during recording of
his statement. After touching and indicating accused
Birbal Ram, he deposed that he fired a gun-shot.
During the conversation, all the accused were taking
each others names, who were calling each other as
Birbal Ram, Chhabila, Punam Das, Raghuveer and
Jogendra Singh."
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18. Other important witness is Rampal (PW-1), who is also
brother of the deceased Igya Ram. He deposed that:-
"faces of all the accused were covered with the
cloths; only their eyes and hair were visible; I
identified the accused by their eyes and hair.
According to him, all the four accused present in
the Court were the perpetrators of the crime; I had
heard their names from their conversation; it was a
moonlit night and lantern was also burning in the
house."
19. Analysis of above oral evidence reveals that it is admitted
fact that none of the witnesses had seen the accused before the
incident or recognized them. Assuming that eyes and nose could
be seen to some extent despite wearing of the mask, the question
is whether any of the crucial witnesses could have identified the
unknown alleged dacoits.
20. From our perspective, the evidence of Ramvilas and Rampal
is not credible. In the present case, it is not proved whether it was
a moonlit night or there was any light from the lantern. No
lantern is shown in the site-plan. Identifying masked accused,
solely by their eyes and hair in the darkness of mid-night is not
possible, especially if the lighting conditions are extremely poor.
Even with moon light or lantern light, it might not be enough to
discern the facial features. When the accused had covered their
faces with the cloths, it might obscure their hair as well. Eyes and
hair are often not enough to definitely recognize four accused at a
time. Such identification cannot be reliable.
21. The version of Ramvilas (PW-2) is belied by his own
statement in the cross-examination. If Ramvilas had heard the
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accused calling each others by names, then it would definitely
have been mentioned in his statement under Section 161 of the
Cr.P.C (Ex.D/2) and also in the First Information Report (Ex.P/1).
On the contrary, all the three Investigating Officers namely Moti
Singh (PW-18), Avtar Singh (PW-28) and Dheera Ram (PW-30)
have admitted in their cross-examination that names of the
accused were not revealed till the time, the investigation was with
them. As a result, the theory of the prosecution that the witnesses
Ramvilas and Rampal saw and identified the accused at the scene
of occurrence completely fails.
22. The record reveals that the different dates, on which the
respective accused came to be arrested and the date of their test
identification parade are as follows:-
Name of accused Date of Arrest Date of T. I. Parade
Punam Das 06.05.1986 Not conducted
Chhabila 12.07.1987 27.07.1987
Jogendra Singh Memo not exhibited 05.02.1988
Birbal Ram 28.01.1990 05.02.1990
23. The above dates are important because the prosecution was
obliged to hold the test identification parade, in respect of each of
the accused, soon after their arrest. In the first place, the
Investigating Officer has not deposed that he preferred to defer
holding of test identification parade of any arrested accused for
any reason. There is no explanation whatsoever as to what
prevented the Investigating Officer to ensure that test
identification parade is held soon after arrest.
[2024:RJ-JD:21489-DB] (9 of 11) [CRLA-3/1995]
24. As mentioned earlier, the Investigating Officers have not
given any justification as to why the test identification parade was
held after such a long time. All that they have mentioned in the
examination-in-chief is that, "test identification parade of the
arrested accused was conducted." In other words, there is no
legal evidence explaining the circumstances which prevented the
Investigating Officer from holding of test identification parade
soon after the arrest of respective accused. Therefore, there was a
room for doubt as to whether the delay in holding test
identification parade was in order to enable Ramvilas and Rampal
to see the accused in the police station or in the jail premises and
make a note of their features.
25. There remains the fact that a sufficiently long interval of time
had elapsed between the date of the occurrence when the eye-
witnesses have seen the accused for a few minutes and the date
of test identification parade. It is, no doubt, true that both
Ramvilas and Rampal have correctly identified the respondents
Chhabila and Jogendra Singh but it has to be borne in mind that
nearly 3 to 5 years had elapsed from the date of incident by that
time; the incident took place in the darkness of mid-night and
importantly the accused had covered their faces with the cloths.
26. It is also note-worthy to mention that Rampal has confirmed
in his statement that, "he had seen the accused at Osian Police
Station prior to the test identification parade". It is also admitted
by him that his brother Ramvilas also saw all the accused along
with him at Osian Police Station. It is further admitted that the
SHO said to them that he had arrested and brought these
persons.
[2024:RJ-JD:21489-DB] (10 of 11) [CRLA-3/1995]
27. Above position of deposition confirms the fact that the Police
had shown the accused Chhabila, Birbal Ram and Jogendra Singh
to the eye-witnesses Ramvilas and Rampal even prior to holding of
the test identification parade and as such depending upon such
evidence for identification, could be perilous, without other
incriminating evidence against the respondents.
28. Therefore, it would be highly unsafe to place reliance on such
identification of the accused by the eye-witnesses Rampal and
Ramvilas. In our considered view, the test identification parades
as held were vitiated and there was no legal evidence to indicate
the complicity of the respondents in relation to the alleged
offences. As the factum of valid test identification parade has not
been established by the prosecution, therefore, the prosecution
case against the respondents falls to the ground.
29. It is also noticed that the chance prints of the accused were
also taken by the experts from the scene of occurrence but no
result report has been produced in evidence which could link any
of the respondents with the incident or could prove their presence
at the place of occurrence.
30. No jewellery or valuable utensils have been recovered from
any of the respondent. The recovery memo (Ex. P/10) relates to
the co-accused Raghuveer Singh, who is not a party to the present
appeal and trial against him is still unconcluded. In so far as,
recovery of empty shells, gun etc. are concerned, these recoveries
by itself is not sufficient to connect the respondents with the
alleged murder of Igya Ram when the substantive evidence has
not been found reliable and truthful.
[2024:RJ-JD:21489-DB] (11 of 11) [CRLA-3/1995]
31. In view of all, as discussed hereinabove, if the learned trial
Judge did not believe the identification of the respondents, there
appears no error in the approach of the trial Judge. It is
immaterial that the postmortem report of the deceased Igya Ram
has been proved, unless it is proved that Igya Ram was murdered
by the respondents in furtherance of their common object of
unlawful assembly constituted by them.
32. After going through the material available on record, we do
not find any reason to disagree with the view taken by the learned
trial Court. The learned trial Court has rightly found that the
prosecution could not establish that respondents committed the
alleged offences. The order of acquittal has to be maintained.
33. In view of the above discussion, we do not find any
perversity or even improbability in the findings and conclusion of
the learned trial Court, the same appears to be cogent and
reasonable. Therefore, the appeal filed by the State is devoid of
any merit which deserves dismissal.
34. As a result, the instant appeal fails and is hereby dismissed.
The respondents are on bail, their bail bonds are discharged.
35. The appeal dismissed accordingly.
(RAJENDRA PRAKASH SONI),J (DR.PUSHPENDRA SINGH BHATI),J
Mohan/-
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