Rajasthan High Court - Jodhpur

State vs Butaram And Anr (2025:Rj-Jd:9181-Db) on 14 February, 2025

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      .HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                  D.B. Criminal Appeal No. 502/1999

State of Rajasthan
                                                                      ----Appellant
                                      Versus
1.     Butaram son of Shyamiram
2.     Ranguram son of Laluram
       Both resident of Chak Sherewala, District Faridkot (Punjab)
                                                                   ----Respondents


For Appellant(s)            :     Mr. N.K. Gurjar, Additional Advocate
                                  General assisted by Mr. Ashutosh
                                  Sharma, Advocate
For Respondent(s)           :



           HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

HON'BLE MR. JUSTICE CHANDRA SHEKHAR SHARMA

Order

14/02/2025

This State appeal has been filed to challenge the judgment

dated 30th April 1999 passed in Sessions Case No.8 of 1995, 43 of

1996 (new 16 of 1997) titled State of Rajasthan v. Butaram and

Ranguram.

2. By the aforesaid judgment, Butaram and Ranguram were

acquitted of the charges framed against them under Sections 302,

307, 380, 396, 397, 460, 324, 325, 326, 323 and 148 read with

Section 149 of the Indian Penal Code.

3. This is the case of the prosecution that in the night of 13 th

September 1993 unknown persons barged into the house of

Ishwar Ram Soni in the village Lunkaransar and committed

robbery and murder of Babu Lal. At that time, Babu Lal and

Rajendra were sleeping over the top floor of the house of Ishwar

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Ram Soni and Guddi, Laxmi, Bali and Shanti were sleeping on the

varanda. This is also stated by the informant that Kisturi and her

son Santosh along with two minor child were sleeping in one room

of the house. This is the further case of the prosecution that

Ishwar Ram Soni had gone to Ajmer and Madan Lal was also not

present in the house on the day of occurrence. According to the

prosecution, around 3:45 AM in the night of 13 th September 1993

unknown accused persons committed marpeet with Babu Lal and

Rajendra and they also assaulted Bali, Guddi, Laxmi, Shanti and

Kisturi and broke open the box in the house and took away

valuable articles. In the occurrence, Babu Lal succumbed to the

injuries on the spot and Guddi also died later on. On telephonic

information given by Jagdish Prasad Pandey, the police from

Lunkaransar Police Station came to the place of occurrence and

Parcha Bayan of Ganpat Ram, who is the brother of Ishwar Ram

Soni was recorded.

4. In the trial, the prosecution examined thirty three witnesses

but Bali, Guddi, Laxmi Devi and Raju were not produced in the

Court as witness. It further appears that before the trial

commenced few accused persons fled away from the custody of

police and only Butaram and Ranguram were put on trial.

According to the prosecution, P.W.8 Kisturi and P.W.13 Shanti are

the injured eye-witnesses who declined to identify Butaram and

Ranguram in the Court stating that it was a dark night. The

prosecution then turned to P.W.4 Kashiram, P.W.7 Santosh and

P.W.9 Rajendra who were the witnesses in test identification

parade.

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5. At the outset, we may observe that the case of the

prosecution has been substantially eroded on account of inability

of P.W.8 and P.W.13 to identify the accused persons in the dock.

These witnesses were however not declared hostile and cross-

examined by the prosecution and, therefore, the statement given

by them in the Court that it was a dark night shall bind the

prosecution. In case of "Javed Masood & Anr. v. State of

Rajasthan" (2010) 3 SCC 538, the Hon'ble Supreme Court has

observed as under :

"20. In the present case the prosecution never declared PWs 6, 18, 29 and 30 "hostile". Their evidence did not support the prosecution. Instead, it supported the defence. There is nothing in law that precludes the defence to rely on their evidence."

6. As we gathered from the materials on record, there seems to

be serious infirmity in conducting of the test identification parade

which was conducted more than one year after the occurrence.

The learned trial Judge has referred to such infirmities in the test

identification parade in paragraph nos.27 and 28 of the judgment

under challenge. For better appreciation of the matter under

consideration, we would reproduce the same which reads as

under :-

"27. There is a contradiction in the statements on oath of prosecution witness number 4 Kashiram and the police statement Exhibit D1 that when he saw the accused running in the light of the jeep, they were looking back. Two of them were bearded and on this basis he identified them. According to this witness, there was only one bearded person in the identification parade. In such a situation, if he identifies the bearded accused Buta Ram, then such identification proceedings cannot be judicially clean because it was easy and simple to identify only one bearded person while he had seen two bearded men running away. This witness did not identify the accused in the court, hence the important contradictory evidence of this

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witness is not reasonable and reliable for identification of the accused. Prosecution witness number 8 Kisturi has stated that after she woke up, her son Santosh woke up and after that he went under the cot. In such a situation, when the criminals/accused were asking for the keys from Kisturi and he is unable to identify their faces, it is impossible for prosecution witness number 7 Santosh Kumar, who was lying under the cot, to identify any person. His statement that he woke up before his mother prosecution witness number 9 Kisturi and that he stood near the door and saw the accused brawling in the veranda is also not credible.

This witness did not identify the accused on the basis of speaking Punjabi language in the Central Jail Bikaner, rather he recognized accused Buta Ram on the basis of his beard and more on the basis of the burn marks on his hand. This witness did not tell the police or any member of his family that he had seen the burn marks on the hand of accused Buta Ram at the time of the incident. In such a situation, if he identifies accused Buta Ram on the basis of the burn marks, then there remains no doubt in the fact that this witness and other witnesses had seen the accused at any time before the identification proceedings and thereafter identified them on that basis at the time of identification proceedings. Not only this, the accused were not even wearing underwear and vest at the time of identification proceedings, nor has this witness declared that he identified any accused at the time of identification on the basis of curly hairs or wheatish complexion or medium height. Not only this, if prosecution witness number 7 Santosh Kumar had seen his mother being beaten up, had seen the accused turning the handle of the safe, then he could have also told that which person had beaten his mother and who had tried to break the safe. According to this witness and prosecution witness number 8 Kisturi, the accused did not steal any item from the room. Prosecution witness number 9 Rajendra Kumar had come to know that Babulal who was sleeping next to him was strangled with a crowbar (sabbal), after that he himself was injured by hitting his head with a knife and due to those injuries he became unconscious, then his such evidence that he came down the stairs and he recognized the appearance of the accused is not reliable. This witness also did not tell during the identification proceedings on what basis and reason he recognized the accused.

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28- According to the testimony of the witness, one of the accused is bearded, one has curly hair, the accused were dark in complexion and of medium height. But to prevent such clear identification of them, prosecution witness no. 18 Shri Hemant Kumar did not make any effort and he did not take any measures regarding the marks affecting the identification in the identification proceedings Exhibit P-10 and Exhibit P-12. There is also no corroboration in Exhibit P-10 and Exhibit P-12 of prosecution witness No.18 Shri Hemant Jain as to how the witness identified the accused.

The prosecution has also failed to prove the fact that the accused remained in veil from the time of arrest of the accused on 06-09-94 till the time they were lodged in the Central Jail, Bikaner on 08-09-94. Although it is printed in the arrest memo Exhibit P-70 and Exhibit P-73 that the accused were ordered to remain veiled. On 07-09-94 the accused were produced in veil before the Judicial Magistrate, Lunkaransar and on 07-09-94 itself the Judicial Magistrate, Lunkaransar ordered to lodge the accused in veil in central jail, Bikaner, but the prosecution was not able to prove that from 07-09-94 to 08-09-94 the accused were lodged in the jail, where were the accused, in whose custody and in what circumstances, whether they were kept in veil during this period or not, On whose orders were the accused lodged into the jail?

Cr.L.R.(SC)1993 page 775 in the decision in Brij Mohan and others v. State of Rajasthan it has been held that the accused were arrested three months after the dacoity, if the proceedings for their identification were conducted within 24 hours, then such proceedings for identification are reliable as it was conducted speedily.

Cr.L.R. (SC) 1990 page 225 In the judgment Ramdev Rai Yadav v. State of Bihar, the Hon'ble Supreme Court held that the entire case of dacoity depended on the time of the identification parade and the identification done in court. Since the identity proceedings were relied upon by the subordinate court, there was no need for reconsideration of such proceedings.

The witness had identified the accused at the scene of crime at night in the light of the battery. In the judgment of U.P. State vs. Bhura and others in C.C.R. 1997 (5) page 90, the Hon'ble Supreme Court has held that the identification of the accused was proved beyond doubt as the fact of identifying the

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dacoits in the light of the electric bulb was indisputable. Apart from this, in the decision of State vs. Ajay Kumar Singh and others in C.C.R. 1997 (4) page 449, the Hon'ble Rajasthan High Court has held that even the most reliable witnesses leads to contradictory statements due to extreme gaps, but considering their presence at the crime scene, their evidence should not be considered unreliable. On the basis of these very decisions, the competent counsel for the prosecution has argued that the fact that the electric bulb was burning in the verandah at the time of the incident has been irrefutable, therefore, the evidence regarding identification of prosecution witness no. 7 Santosh Kumar, prosecution witness no. 9 Rajendra Kumar cannot be considered unreliable."

7. Mr. N.K. Gurjar, Additional Advocate General, assisted by

Mr. Ashutosh Sharma would urge that the evidentiary value of

dock identification by P.W.7 and P.W.9 is bolstered by test

identification parade evidence. However, we are not inclined to

accept this submission for the reason that there is no

requirement in law to conduct a test identification parade which is

conducted under Section 9 of the Evidence Act and test

identification parade is held only for the purpose of lending

assurance to the Investigating Officer that he was proceeding on

the right path. The value of test identification parade is only of

corroboration and the dock identification by the witness is

strengthened on account of the fact that the same witness had