Sec. 380 of ipc
Dineshwar Singh Kaushik
(Querist) 11 August 2011
This query is : Resolved
Dear Experts,
Is there any citation of Supreme Court that sec 380 of IPC is not applicable in case where informant and accused are living in a common house.
Advocate Rajkumarlaxman
(Expert) 11 August 2011
DORAISWAMY RAJU & ARIJIT PASAYAT
ARIJIT PASAYAT,J.
A Division Bench of the Patna High Court found the appellants guilty of offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC'). In addition, appellants Lakhan Singh, Janardan Singh, Ram Janam Singh, Dani Singh, Raghu Singh, Ram Charitar Singh and Chandar Singh were found guilty of offence punishable under Section 201 IPC and sentenced each to undergo five rigorous imprisonment with a fine of Rs.3,000/- with default stipulation. It directed that the fine on realisation was to be paid to the informant by way of compensation. Appellant Lakhan Singh was additionally convicted for offence punishable under Section 436 IPC to undergo life imprisonment.
The present appeals have been filed by 21 persons.
Twenty seven persons were named in the FIR and charge sheet was filed initially against 24 persons. In terms of Section 319 of the Code of Criminal Procedure, 1973 (in short the 'Code'), three more persons were added. Twenty seven persons were convicted by the trial Court and all of them filed appeals before the High Court. It has to be noted, as stated by learned counsel for the appellants, that one of them Lakhan Singh has served out the sentence, and two others namely Balinder Singh and Gaya Singh were absconding. Three of the accused persons died during pendency of the appeal before the High Court.
Prosecution version which led to the trial in a nutshell is as follows:
On 6.7.1983, informant Ramu Yadav (PW-11), after easing was returning to his house at about 8 a.m. and his uncle Kishun Yadav (hereinafter described as 'deceased D-1') at that time was also returning to his house from the northern direction and he was ten yards ahead of the informant. When the informant and the deceased Kishun reached a lane near the house of Sadhu Kahar, the informant saw a number of persons variously armed with Saif, Garasa, Bhala, guns etc.
coming out from the Dalan of Bhuneshwar Singh who all challenged deceased Kishun and attacked him. Appellant Lakhan Singh, who was carrying a bag, took out a bomb from his bag and hurled it on deceased Kishun, who after receiving injury, managed to enter the house of his cousin Phekju Yadav (PW-6). Following him, all the appellants alongwith Biro Singh, Pragash Singh and Ram Singh (all the three since dead) along with 15 to 20 others, variously armed entered the house of Pheku Yadav. The informant also, following the appellants and their companions, entered the house of his uncle Pheku Yadav (PW-6). In the meantime, Gopi Yadav, father of informant (hereinafter referred to as 'deceased D-2') also reached there and, thereafter both deceased, Gopi and Kishun climbed on the Matkmotha (box room) in order to save their lives. Appellants Lakhan Singh, Ram Charitar Singh, Ram Janam Singh, Chhotan Singh, Raghu Singh, Balindra Singh, Manoj Singh, Bhola Singh, Baban Singh, Nandu Singh, Yado Singh and ten to fifteen unknown persons also, along with weapons, climbed from outside to the roof of house and other appellants remained in the courtyard and verandah of the house. The appellants, who had climbed went to Matkotha, started assaulting both the deceased with guns, Bhala, Saif etc. The appellants, who had gone on the roof of the house, uprooted the tiles and bamboo sticks of Matkotha and appellant Lakhan Singh, after sprinkling kerosene oil on the roof, set fire and, thereafter the appellants, who had climbed on Matkotha, dragged deceased Kishun and Gopi to the verandah where they, after piercing Garasa, Bhala, Saif, killed them. Thereafter, appellant Raghu Singh, Janardhan Singh, Ram Charitar Singh, Ram Janam Singh, Dani Singh, Chander Singh, Lakhan Singh along with co-accused Biro Singh carried the dead bodies on a cot towards eastern side of village and other appellants, after scrapping the blood which had fallen on the ground with straw, put it in a nearby well and they also washed the blood drops from the walls of the house by water and mud and, thereafter, they also went following the dead bodies.
After some time, the informant saw smoke and flames of fire rising from the side of eastern boundary of his village where the appellants had burnt the dead bodies. They remained at the place of burning for about two hours, and thereafter they again came back to the houses of informant (PW-11) and Pheku Yadav (PW-6) and took away rice, wheat, gram, clothes, ornaments, pots etc. The occurrence was witnessed by female members of the family of informant including his mother, aunt, sister, wife of brother of Pheku Yadav (PW-6) and number of other villagers. Old enmity, giving rise to number of cases between the prosecution party and appellants, was stated to be the motive of the occurrence. The fardbayan of informant was recorded on the day of occurrence at 8.30 p.m. by Sub Inspectort Uzair Alam (PW-13). The informant, in his fardbayan stated that because appellants did not allow him to leave the house, he could not go to the Police Station earlier. On the basis of fardbayan of informant, a case under Sections 147, 148, 149, 302, 201, 436, 380, Indian Penal Code, Section 27 of Arms Act, 1959 (in short 'Arms Act') and Sections 3, 4, 5 of Explosives Substances Act, 1908 (in short 'Explosives Act') against all the twenty four appellants alongwith Biro @ Birendra Singh, Pragash Singh and Ram Singh and fifteen to twenty unknown was registered and police, after investigation, submitted charge sheet against the appellants and Biro @ Birendra, Pragash Singh and Ram Singh. Charges under Sections 302/149, 201 and 380, Indian Penal Code were framed against the appellants and Biro @ Birendra, Pragash Singh and Ram Singh and after trial, the appellants were found guilty and were convicted and sentenced, as indicated above. Biro @ Birendra, Pragash Singh and Ram Singh were also convicted and sentenced to undergo rigorous imprisonment for life under Section 302 read with Section 34, Indian Penal Code. Biro Singh @ Birendra was further convicted and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.3000/-. All the aforesaid three persons died during the pendency of the appeal before the High Court. The accused persons pleaded that on the date of occurrence appellants Nawal Singh and Indu Singh were not present in the village. Prior to the alleged occurrence two persons namely Saudhi Singh and Arjun were murdered and after their murder, both the deceased had left their village with the family members and were living somewhere else.
Therefore, they were not living in the village where they claimed to have been murdered. The accused persons have been implicated on the account of previous enmity. Four witnesses were examined to further this version. In order to prove its accusations, prosecution examined 15 witnesses out of whom Ramu Yadav (PW-11) is the informant and deceased Kishun Yadav and Gopi Yadav (hereinafter referred to as D-1 and D- 2) were his uncle and father respectively. It was claimed that apart from PW-11, Kishun Rajwar (PW-1), Lalo Mahto (PW- 2), China Devi (PW-3) and Kamli Devi (PW-10) were eyewitnesses. During investigation, blood stained soil, burnt tiles and remnants of exploded bombs were seized from a lane near to the house of Shiv Nandan Kumar and a house of Pheku Mahto (PW-6). Police also recovered straws from the well of PW-6 and seized burnt wood, tender bamboo and pieces of woods and bones from the place known as Hadsai pyne, and scattered grains from the house of Pheku Mahto (PW-6). The trial Court found the evidence of the witnesses to be credible and cogent. It noticed that though China Devi (PW- 3) and Kamli Devi (PW-10) were related to the deceased, Kishun Rajwar (PW-1) and Lalo Mahto (PW-2) were independent witnesses who were in no way related to the deceased persons. They had proved their presence. Placing reliance on their evidence the accused persons as noted above were found guilty.
In appeal, the conclusions of the trial Court were affirmed. It is to be noted that though a plea of alibi was raised by two of the accused persons, the evidence tendered to prove the alibi was discarded finding it to be unreliable and irrelevant.
Learned counsel for the appellants submitted that the evidence on record does not justify any conviction. The prosecution version was full of contradictions and exaggerations. Though PWs 1 and 2 were held to be not related to the deceased persons, the accepted position was that they were friendly with the deceased and other eye- witnesses. The genesis of the dispute has been suppressed as the first information report regarding the occurrence given by Rajendra Mahto (PW-25), as admitted by the Investigating Officer has not been taken note of. The same has been suppressed and an anti dated manipulated FIR has been brought on record. It has not been explained as to why both the deceased would run to the house of PW-6. If the prosecution version is accepted that a bomb was thrown on deceased Kishun, and he ran towards to his house, there is no reason indicated as to why the deceased Gopi would also run to the house of PW-6. It is strange that the eyewitnesses also went to the house of PW-6. Twenty seven accused persons were stated to be separately armed in a mob out of 40-50. It is a very exaggerated scenario presented by the prosecution that the accused persons killed the deceased after dragging them out from a place where they were hiding, several persons carried them on a cot and burnt the bodies and wiped off the blood with hay and threw them to the well of PW-6. When the accusation of looting, punishable under Section 380 IPC has not been established, the exaggeration is clearly patent. Actual killing has not been attributed to anybody in particular. There was considerable delay in lodging the FIR. When the accused persons have stated to have declared that no other person would be touched, there was no reason for the apprehension as stated by the eye- witnesses for lodging information late. A totally improbable case has been foisted. Some of the witnesses have said about explosion of three or four bombs; but others have said about only one and latter is the prosecution version. The story of common intention or common object as introduced by the prosecution has not been established. Nothing has been shown as to how and when the alleged unlawful assembly was formed.
Actual participation has not been attributed. The so-called eye-witnesses have not identified all accused persons, and each has only identified some. The plea of PW-1 that he followed the accused persons when they were carrying the dead bodies does not inspire confidence. No explanation has been offered as to why the witnesses did not go to the police station though the burning of the bodies allegedly took more than one hour. It has come on evidence that a live bomb was found in the house of PW-6. There is no evidence as to who put it there. The evidence of PW-6 and PW-11 do not reconcile with each other. There was no call or exhortation, which is associated with a case of unlawful assembly or common intention or common object. Some of the eyewitnesses said that they came out on hearing the explosion. If that be so, the accused persons who did not do any particular overt act may have also come out on hearing the explosion. It is the prosecution version that the police came on hearing a rumor about some incident. It has not been established as to what was the source and why the police came.
In response, learned counsel for the State submitted that it is not a case where there was any animosity, individual in character. On the contrary the evidence clearly established and proved, as noticed by the Courts below, in a faction ridden village the assaults were on account of faction fighting. The so-called information given by Rajendra Mahto has been discarded by the trial Court.
Even approach to this Court did not bring any relief to the appellants who during trial had tried to press into service such a plea. If he was such a material witness, no reason has been indicated by the appellants as to why he could not be examined as a defence witness. The evidence of IO clearly says that no such person was there. PW-11's evidence is clear and cogent that he was behind the deceased Kishun and when on account of the bomb explosion, the deceased Kishun ran out of anxiety, the other deceased followed him. The IO has found the remnants of explosion. There is no inconsistency in the evidence. The houses of the deceased persons were in close vicinity. Deceased Gopi's house was at a distance of 7/8 yards from the place where the first bomb exploded. It is a natural human conduct that somebody would go out after hearing the sound of explosion. In this case the deceased Gopi was behind him and others PWs came late.
There was nothing unusual and unnatural in going to PW-6's house. All the witnesses have identified and stated about the presence of the accused persons in PW-6's house. It is immaterial whether one witness identifies all, or some of them identify some of the accused persons. The evidence is consistent so far as the identification of the accused persons, and the weapons carried by them are concerned.
There was positive enmity of the accused persons with the deceased persons. It is the prosecution version that 11 persons climbed to drag out the deceased persons from the place where they were hiding. There has been even no suggestion given that others who did not scale the roof either stopped them from doing it or withdrew. That may have to some extent for argument sake substantiated the plea of appellants that some of them were by-standers. It is on evidence that while some of them scaled the roof, others were waiting on the verandah. The IO had recovered blood stained hay from the well. Eight of the accused persons carried the dead bodies of deceased on a cot for the purpose of burning. There is nothing on record to throw doubt about the objective findings recorded by the IO. It is established that the accused persons who were cleaning the bloodstains also joined the group who had carried the dead bodies for the purpose of burning. The evidence is clear in respect of the three places of occurrence i.e. (i) the place where the bomb was thrown on deceased Kishun, (ii) the house of PW-6 and (iii) the place of burning. It is relevant to note that the place where the dead bodies were burnt was not a normal burial place. The IO had found that a pit was dug and smell of kerosene oil was there. It is a case where PWs were threatened by the accused persons, if they tried to rescue the deceased persons. The evidence of PW-6 that when he requested the accused persons not to assault the deceased, he was told that he should not interfere otherwise he would also be killed. The evidence clearly shows that the targets were the deceased persons. Evidence of PW-10 shows that when she tried to save the accused persons, the accused persons specifically told her that the deceased were the target and others should not interfere. The police station was 32 K.M.
away. If the defence version is that the deceased and the eyewitnesses were ill-disposed towards them, there is no reason to falsely implicate so many persons. The village being a faction ridden one, there is no scope for any independent witnesses coming forward.
It is to be noted that definite roles have been attributed to the accused persons. Eleven of them have scaled the roof and dragged out the deceased. Eight of them carried the dead bodies for the purpose of burning. So far as cleaning the blood and throwing dead bodies to the well etc. is concerned the accusations are general in nature.
Though the evidence of PWs 1 and 2 were attacked on the ground that it was partisan, we find nothing has been brought on record to cast any doubt on the veracity of their statement. Merely because the witnesses are related or friendly with the deceased, that will not be a ground to discard their evidence. The only thing the Court is required to do is to carefully scrutinise the evidence and find out if there is scope for taking a view about false implication.
Further since there are some exaggerations or minor discrepancies, that would not be sufficient to cast doubt on the evidence.
In the instant case, the eyewitnesses have categorically stated in detail the manner of assault and the roles played by the accused persons. It is also a common evidence that the targets were the deceased persons. When large number of persons armed with weapons do a series of acts by throwing bombs, dragging out the victims, indiscriminatingly assaulting them, burning the dead bodies, it is but normal and natural that fear psychosis would develop. This is what precisely has happened, if the version of the eyewitnesses is accepted. PWs 6 and 10 apart from other eyewitnesses have categorically stated that when they tried to come to the rescue of the deceased, they were threatened and asked not to interfere lest they would be killed.
Sections 34 and 149 IPC deal with common intention and common object respectively.
The emphasis in Section 149 IPC is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all.
In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly.
'Common object' is different from a 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset.
The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instanti.
Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member.
Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word 'knew' used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of 'might have been known'.
Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within first offences committed in prosecution of the common object, but would be generally, if not always, with the second, namely, offences which the parties knew to be likely committed in the prosecution of the common object. (See Chikkarange Gowda and others v. State of Mysore (AIR 1956 SC 731.) The other plea that definite roles have not been ascribed to the accused and, therefore, Section 149 is not applicable, is untenable. A 4-Judge Bench of this Court in Masalti and Ors. v. State of U.P. (AIR 1965 SC 202) observed as follows:
"Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted.
This criticism again is not well founded.
Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In the present case, for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons.
In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult task;
but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not." To similar effect is the observation in Lalji v. State of U.P. (1989 (1) SCC 437). It was observed that:
"Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case." In State of U.P. v. Dan Singh and Ors. (1997 (3) SCC 747) it was observed that it is not necessary for the prosecution to prove which of the members of the unlawful assembly did which or what act. Reference was made to Lalji's case (supra) where it was observed that "while overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149".
The legality of conviction by applying Section 34 IPC in the absence of such charge was examined in several cases.
In Willie (William) Slaney v. State of Madhya Pradesh (AIR 1956 SC 116) it was held as follows:
"Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and the charge is a rolled up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable.
In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant".
The above position was re-iterated in Dhanna etc. vs.
State of Madhya Pradesh (AIR 1996 SC 2478).
The Section really means that if two or more persons intentionally do a common thing jointly, it is just the same as if each of them had done it individually. It is a well recognized canon of criminal jurisprudence that the Courts cannot distinguish between co-conspirators, nor can they inquire, even if it were possible as to the part taken by each in the crime. Where parties go with a common purpose to execute a common object each and every person becomes responsible for the act of each and every other in execution and furtherance of their common purpose; as the purpose is common, so must be the responsibility. All are guilty of the principal offence, not of abetment only. In combination of this kind a mortal stroke, though given by one of the party, is deemed in the eye of law to have been given by every individual present and abetting. But a party not cognizant of the intention of his companion to commit murder is not liable, though he has joined his companion to do an unlawful act. Leading feature of this Section is the element of participation in action. The essence of liability under this Section is the existence of a common intention animating the offenders and the participation in a criminal act in furtherance of the common intention. The essence is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result (See Ramaswami Ayyanagar and Ors. v. State of Tamil Nadu (AIR 1976 SC 2027). The participation need not in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence may be necessary, but such is not the case in respect of other offences when the offence consists of diverse acts which may be done at different times and places. The physical presence at the scene of offence of the offender sought to be rendered liable under this Section is not one of the conditions of its applicability in every case. Before a man can be held liable for acts done by another, under the provisions of this Section, it must be established that (i) there was common intention in the sense of a pre-arranged plan between the two, and (ii) the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this Section cannot apply.
'Common intention' implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Under this Section a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of offence showing a pre-arranged plan and prior concert. (See Krishna Govind Patil v. State of Maharashtra (AIR 1963 SC 1413). In Amrit Singh and Ors. v. State of Punjab (1972 Crl.L.J. 465 SC) it has been held that common intention pre-supposes prior concert. Care must be taken not to confuse same or similar intention with common intention; the partition which divides their bonds is often very thin, nevertheless the distinction is real and substantial, and if overlooked will result in miscarriage of justice. To constitute common intention, it is necessary that intention of each one of them be known to the rest of them and shared by them.
Undoubtedly, it is a difficult thing to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. But however difficult may be the task, the prosecution must lead evidence of facts, circumstances and conduct of the accused from which their common intention can be safely gathered. In Magsogdan and Ors. v. State of U.P.
(AIR 1988 SC 126) it was observed that prosecution must lead evidence from which the common intention of the accused can be safely gathered. In most cases it has to be inferred from the act, conduct or other relevant circumstances of the case in hand. The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit offence for which they can be convicted. The facts and circumstances of cases vary and each case has to be decided keeping in view of the facts involved. Whether an act is in furtherance of the common intention is an incident of fact and not of law. In Bhaba Nanda Barma and Ors. v. The State of Assam (AIR 1977 SC 2252) it was observed that prosecution must prove facts to justify an inference that all participants of the acts had shared a common intention to commit the criminal act which was finally committed by one or more of the participants. Mere presence of a person at the time of commission of an offence by his confederates is not, in itself sufficient to bring his case within the purview of Section 34, unless community of designs is proved against him (See Malkhan and Anr. v. State of Uttar Pradesh (AIR 1975 SC 12). In the Oxford English Dictionary, the word "furtherance" is defined as 'action of helping forward'.
Adopting this definition, Russel says that "it indicates some kind of aid or assistance producing an effect in future" and adds that any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken, for the purpose of effecting that felony. (Russel on Crime 12th Edn. Vol.I pp.487 and 488).
In Shankarlal Kacharabhai and Ors. v. The State of Gujarat (AIR 1965 SC 1260) this Court has interpreted the word "furtherance" as 'advancement or promotion'.
The plea that some of the accused persons did not commit any overt act would really of no consequence. They were not mere sightseers as claimed. There is nothing to show that they had dissuaded the persons from committing the criminal act or withdrew at any point of time during the course of the incident constituting by itself or as a step in furtherance of the ultimate offence. There is nothing unusual in deceased Gopi running after the deceased Kishun and other eyewitnesses. In order to ascertain as to what was the cause of the explosion and to run after the deceased seeing him towards house of PW-6. The eyewitnesses have identified the accused persons and have stated about their presence inside the house of PW-6. There is no discrepancy so far as the identification is concerned and about the weapons carried by the identified accused persons. It has also come in evidence that the targeted victims were the deceased persons with whom the animosity is admitted. The objective findings recorded by the IO on spot verification also are in line with the evidence of eyewitnesses.
So far as the absence of any independent witness is concerned, the evidence of PW-6 is very relevant. He has stated that the accused persons were surrounding the village after the incident. In the village Malti there are 100 houses out of which 5 to 6 houses are of Yadavs, 15 to 16 are of Bhumihars and people of other castes are also there.
Before the present occurrence, Arjun and Saudhi who were Bhumihars by caste were killed. Yadavs of the village were accused of the murder and the deceased Kishun and Gopi were the main accused. Accused Lakhan is the brother of deceased Saudi Singh and Nandu Singh is the son of Arjun Singh. It has to be noted further that though the eyewitnesses were examined at length in the cross-examination nothing material to belie their credibility or discard their evidence was brought out.
Looked at from any angle, the impugned judgment suffers from no infirmity to call for any interference. The appeals are dismissed.
Advocate Rajkumarlaxman
(Expert) 11 August 2011
DANI SINGH & ORS V. STATE OF BIHAR [2004] RD-SC 160 (12 March 2004)
Advocate Rajkumarlaxman
(Expert) 11 August 2011
SOHANIYA & ORS v STATE - CRLA Case No. 651 of 2005 [2007] RD-RJ 3068 (31 May 2007)
Advocate Rajkumarlaxman
(Expert) 11 August 2011
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
JUDGMENT
State of Rajasthan Vs. Sohaniya
(1) D.B.CRIMINAL MURDER REFERENCE NO.01/2005
Sohaniya & Ors. Vs. State of Rajasthan
(2) D.B.CRIMINAL APPEAL NO.651/2005
Against the judgment dated 30.7.2005 passed by the Special Judge, NDPS Act Cases, Pratapgarh, in Special Sessions Case No.50/2001.
Date of Judgment: May 31,2007
PRESENT
HON'BLE MR. JUSTICE SATYA PRAKASH PATHAK
HON'BLE MR. JUSTICE DEO NARAYAN THANVI
Mr. C.S.Joshi )
Mr. Sandeep Mehta )
Mr. Amitabh Acharya ) for the appellants.
Mr. V.R.Mehta ) Public Prosecutor.
BY THE COURT : (PER HON'BLE MR. THANVI, J.) 1. This Murder Reference for confirmation of death sentence awarded to accused Sohaniya for having committed the offence under Section 396 IPC has been submitted by the learned
Special Judge, N.D.P.S. Cases, Pratapgarh in Special Sessions
Case No.50/2001 - State Vs. Sohaniya & Others. Accused
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Sohaniya and six other accused appellants have also filed
D.B.Criminal Appeal No.651/2005, against their conviction & sentences for the various offences as under: 1. U/SEC. 120B IPC Sentenced to 5 Years' R.I. & to pay a fine of Rs.1000/- & in default, to further undergo one year's S.I. 2. U/SEC. 148 IPC Sentenced to 3 years' R.I. & to pay a fine of Rs.1000/- & in default, to further undergo one year's S.I. 3. U/SEC. 395 IPC OR Sentenced to imprisonment for life
IN ALTERNATIVE SEC. & to pay a fine of Rs.5000/- & in 395/149 IPC default, to further undergo one year's S.I. 4. U/SEC. 396 IPC (1) Accused Sohaniya:
Sentenced to death and to pay a fine of Rs.1000/-;
(2) Accused Nahar Singh,
Ratadiya @ Radhey Shyam,
Sunder, Fateh Lal @ Fatta Lal,
Kusaliya & Lal Chand:
Sentenced to imprisonment for life & to pay a fine of Rs.5000/- & in default, to further undergo one year's S.I. 5. U/SEC. 397 or Sentenced to 7 years' R.I. & to pay 397/149 IPC a fine of Rs.1500/- & in default, to further undergo six months' S.I.
-3- 6. U/SEC. 458 or Sentenced to 10 years' R.I. & to pay 458/149 IPC a fine of Rs.2000/- & in default, to further undergo one year's S.I. 7. U/SEC. 459 or Sentenced to imprisonment for life & to pay a fine of Rs.5000/- & in 459/149 IPC default, to further undergo one year's S.I. 8. U/SEC. 460 or Sentenced to imprisonment for life 460/149 IPC & to pay a fine of Rs.5000/- & in default, to further undergo one year's S.I. 9. U/SEC. 380 or Sentenced to 7 years' R.I. & to pay 380/149 IPC a fine of Rs.500/- & in default, to further undergo six months' S.I. 10. U/SEC. 323 OR Sentenced to one year's R.I. & to 323/149 IPC pay a fine of Rs.200/- & in default, to further undergo one month's S.I. 11. U/SEC. 324 OR Sentenced to 3 years' R.I. & to pay 324/149 IPC a fine of Rs.500/- & in default, to further undergo six months' S.I. 12. U/SEC. 325 OR Sentenced to 5 years' R.I. & to pay 325/149 IPC a fine of Rs.1000/- & in default, to further undergo one year's S.I. 13. U/SEC. 326 OR Sentenced to 10 years' R.I. & to pay 326/149 IPC a fine of Rs.2000/- & in default, to further undergo one years' S.I. 14. U/SEC. 302 OR Sentenced to imprisonment for life 302/149 IPC & to pay a fine of Rs.5000/- & in default, to further undergo one year's S.I.
-4- 15. U/SEC. 8 READ Sentenced to 10 years' R.I. & to pay
WITH SECTION 18 OF a fine of Rs.1,00,000/- & in default,
N.D.P.S. ACT to further undergo one year's S.I. 2. Since both the Murder Reference and the Criminal Appeal arise out of the same judgment of the learned Special Judge, therefore, they are being disposed-of by this common judgment. 3. The brief facts are that on the night of 19.3.2001, Amar
Singh, S.H.O., Pratapgarh, (PW 58) received a telephonic message about firing at Village Dhanesree, Police Station
Pratapgarh District Chittorgarh and on reaching the spot, obtained a written report at 4.00 A.M. on 20.3.2001 from one
Suresh Chandra S/o Chain Ram Bhambi that in the preceding night at 10.30 PM when he was sleeping in his house alongwith his family members, he heard the noise in the adjoining house of his uncle Nanu Ram and saw from the roof that four notorious persons having axes in their hands, were breaking the door of his uncle's house. Two persons having rifles in their hands, were standing outside the house of his uncle and were continuously firing. His father and elder brother Shantilal also came on the roof of the house. Some of the notorious persons were firing in the village and were exhorting to plunder the property and to kill, on cry. When he started shouting from the roof of his house,
-5- 5-6 assailants came on the roof from the front and rear side of his house. Upon this, he and his brother ran away but the assailants caught hold of his father and inflicted lathi and axe blows. On return, he found his father unconscious and noticed an injury on his head. His wife, sister-in-law Sangeeta and mother
Parvati told that the assailants had taken opium, gold and silver ornaments alongwith Cash by threatening them. Upon enquiry, it was also revealed that the assailants had entered into the house of Nirbhay Ram and took away the opium and gold and silver ornaments from his house. By this act of the assailants, Nirbhay
Ram, Mangilal, Chain Ram, Shiv Ram, Jagdish, Mahesh and
Prakash received more injuries and were sent to Pratapgarh
Hospital, where Nirbhay Ram died. He also received firearm injury on the right side of his back. Assailants, between the age group of 20-30 years speaking in strict language, were 15-20 in number having rifles, lathis, swords etc. with them and were wearing pants, bushirts, `dhoti' and `kameej'. The empty cartridges were lying outside his & his uncle's house. 4. On the basis of this report, which was sent at the police station, Pratapgarh with constable, a regular F.I.R. (Ex.P.47) was registered and investigation was commenced. During the course of investigation, site map was prepared and injured were medically examined. Injured Nirbhay Ram died in the hospital at
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Pratapgarh itself and two more injured viz; Chain Ram and
Prakash were sent for treatment at Udaipur Hospital, where they also died. Empty cartridges were seized from the spot alongwith one Shawl. The footprints were also lifted and moulds were got prepared. While the investigation was in progress, a secret information was received regarding whereabouts of assailants, who were said to be "Kanjar" by caste of village Tokda in district
Jhalawar and accordingly the investigating team headed by
G.L.Meena, Addl.S.P. Reached there and arrested accused
Sohaniya, Nahar Singh, Ratadiya, Sunder, Fatehlal, Kushaliya and Lal Chand on 1.5.2001 from the bushes of Kshipra river at village Tokda, where they were sitting with weapons. While the accused were under arrest, they furnished information on the same day regarding weapons they used during the commission of crime at village Dhanesree and in pursuance to the information, recoveries were effected from the huts of accused appellants at Village Tokda of district Jhalawar. These seven accused appellants were also put to identification parade before the learned A.C.J.M., Pratapgarh on 4.5.2001 before ten witnesses viz; Dinesh (PW 12), Suresh (PW 13), Mahesh (PW 16), Shantilal (PW 18), Chandmal (PW 20), Sav Ram (PW 3),
Hiralal (PW 4), Devilal (PW 27), Nanu Ram (PW 29) and
Bhagwati Lal (PW 26). Similarly, while they were under arrest, they also furnished information on 8.5.2001 and in pursuance to
-7- these informations, the recovery of opium and ornaments were also made from their Village Tokda on 9.5.2001. Thereafter, all the seven accused appellants also furnished further informations and in pursuance to it, investigating Officer Kalyan Singh (PW 55) proceeded to identify the spot and consequently the spot was identified on 12.5.2001 and site inspection memos Ex.P.102 and Ex.P.103 were prepared. These accused also furnished information about the spot, where they kept tractor trolley on 14.5.2001, in which they reached at the place of crime and used motor cycles. During investigation, accused Balwant Singh and
Phunda Singh were also arrested, who were the owner of the tractor trolley in which the accused persons reached at the spot.
Likewise, accused Laxman was also arrested. Motor cycle was also recovered which was used during the commission of crime.
During investigation, it was also revealed that accused Sohaniya,
Lal Chand and Phunda Singh came to village Dhanesree 2-3 days prior to the incident and crime was committed by the gang of these seven accused-appellants alongwith accused Balwant
Singh, Phunda Singh, Laxman, Goliya, Gajrala, Sajaniya, Mithu,
Ramprasad, Ramsingh, Lachhiya, Bhuriya, Kela, Jharmariya,
Raja Babu, Gumaniya, Jaswantiya and Elam Singh. The recovered articles and footprints moulds were sent for chemical examination.
-8- 5. After usual investigation, all the seven accused appellants alongwith Balwant Singh were chargesheeted for the offence u/ss.395, 396, 397, 458, 459, 460, 380, 326 and 120B IPC and
Section 8/18-29 of the N.D.P.S.Act, 1985, hereinafter referred-to at "the Act of 1985" and against rest of the accused, challan was filed under Section 299 CrPC. After hearing the arguments on charges, accused Sohaniya, Nahar Singh, Ratadiya, Sunder, Lal
Chand, Fatehlal, Kushaliya and Balwant singh were charged under sections 120B, 148, 395 or in alternate 395/149, 396, 397 or in alternate 397/149, 458 or 458 read with 149, 459 or 459/149, 460 or 460/149, 380 or 380/149, 323, 324, 325, 326 read with 149, 302 or 302/149 IPC and 8/18 of the Act of 1985 and accused Balwant singh under Section 8/29 also of the Act of 1985. On arrest of accused Phunda Singh on 18.12.2001, supplementary chargesheet was filed on 18.12.2001 and like
Balwant Singh, he was also charged for the above offences of the I.P.C. and the Act of 1985. Likewise, on arrest of accused
Laxman, Lachhiya alias Laxmi Narain and Elam Singh, supplementary chargesheet was filed on 1.8.2002 and they were chargesheeted under the above offences of the I.P.C. and
Section 8/18 of the Act of 1985. Accordingly the charges were explained to the above twelve accused, to which they pleaded not guilty. The prosecution examined 58 witnesses viz;
Kanhaiyalal (PW 1), Ramprasad (PW 2), Sav Ram (PW 3), Hiralal
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(PW 4), Smt.Madhu (PW 5), Amar Singh (PW 6), Raghu Singh
(PW 7), Kamal Singh (PW 8), Shantilal (PW 9), Khemraj (PW 10), Mangilal (PW 11), Dinesh (PW 12), Suresh (PW 13), Tara
Chand (PW 14), Amrit Ram (PW 15), Mahesh (PW 16), Munnalal
(PW 17), Shantilal (PW 18), Khemraj s/o Hari Ram (PW 19),
Chand Mal (PW 20), Nand Ram (PW 21), Ram Chandra (PW 22),
Smt.Nirmala (PW 23), Smt.Saddam Bai (PW 24), Smt.Parvati
(PW 25), Bhagwati Lal (PW 26), Devilal (PW 27), Hiralal (PW 28),
Nanu Ram (PW 29), Mangilal (PW 30), Jagdish (PW 31), Shantilal
(PW 32), Basantilal (PW 33), Hiralal (PW 34), Narendra Kumar
(PW 35), Daulat Singh (PW 36), Ajay Kumar Sharma (PW 37),
Jagdish (PW 38), Harak Chandra (PW 39), Shambhu Singh (PW 40), Dr.Vimal Chandra Gandhi (PW 41), Samrath Lal (PW 42),
Smt.Ganga Bai (PW 43), Lal singh (PW 44), Bhanwar Singh (PW 45), Bharat Singh (PW 46), Devilal (PW 47), Vimal Kumar (PW 48), Rishabh Kumar (PW 49), Smt.Sangeeta (PW 50), Smt.Munni
Bai alias Dev Bai (PW 51), Shankerlal (PW 52), Jamna Lal (PW 53), Sohanlal (PW 54), Kalyan Singh (PW 55), Dr.Rahul Jain (PW 56), Govardhanlal (PW 57) and Amar Singh (PW 58). The statements of accused were recorded under Section 313 CrPC.
They produced Badri Singh (DW 1) and Jhujhar Singh (DW 2) in their defence. 6. After hearing arguments, learned trial Judge convicted and
-10- sentenced all the seven accused appellants in the manner as aforesaid but acquitted accused Balwant Singh and Laxmi Narain alias Lachhiya of all the charges framed against them but convicted accused Phunda singh and Laxman under Section 411
IPC and sentenced to punishment, which they have already undergone. For rest of the charged offences, they were acquitted. During trial, accused Elam Singh was declared absconded vide ordersheet of the trial court dt.28.4.04. 7. We have heard learned counsel for the appellant and the learned Public Prosecutor at length and carefully scrutinized the oral and documentary evidence on record. 8. While assailing the judgment of the learned trial Court on the conviction of accused appellants, Mr.Joshi, learned counsel, has mainly stressed to falsify the recoveries made by the police and the manner in which test identification parade was conducted by the learned magistrate of the seven accused appellants. According to him, there was no light on the night of 19.3.2001 and the accused were belonging to different district, which is far away from the place of occurrence and there was no special mark of identification on the body of accused and ornaments. The identification parade has been conducted about one and half months after the date of incident and the accused
-11- were shown to the witnesses prior to the incident as is evident from the testimony of S.H.O. Amar Singh (PW 58) himself.
According to him, the recoveries of weapons of offence, ornaments and opium are also most suspicious, accused were already having arms with them when they were arrested and the recoveries made from the huts of the accused by digging soil but there was no mark of soil etc. on the recovered articles.
According to him, the incident is of March, 2001 and the recoveries have been made in the month of May, 2001 and, as such, these recoveries were not soon after the incident. He has further stressed that the opium which is said to have been recovered from the possession of the accused was not the same, because the requisite morphine was not found in the samples and there was non-compliance of the mandatory provisions of
Sections 42, 50, 55 & 57 of the Act of 1985. He has also argued that there was news in the local Newspaper of Mansaur District that certain plunderers took opium from the village Dhanesree and when this opium was not recovered, the police to save its own skin, implicated the accused appellants falsely. While drawing attention of the court on the evidence of eye witnesses, learned counsel argued that many of the witnesses have turned hostile and some of them have wrongly identified the accused persons, while some witnesses, who have identified the accused at the test identification parade or in the court dock, have given
-12- contradictory and un-corroborative versions. The footprints of the accused taken on the spot were not obtained with the orders of the magistrate and the witnesses of the locality were not associated-with at the time of recovery. The theory of prosecution that the accused came to village Dhanesree two to three days prior to the incident on tractor and motorcycle, has been disbelieved by the trial court. While drawing attention of the court on oral and documentary evidence led by the prosecution, learned counsel has strongly submitted that the entire investigation is fabricated and does not inspire confidence, which reveals that the investigating agency has not collected the evidence but created it to falsely implicate the accused appellants. He has further argued that the case of the accused appellant Sohaniya is not distinct from the other six accused, who have been sentenced to life imprisonment but even then the trial Court has awarded the death sentence to the accused appellant Sohaniya merely on the ground that he has already been previously convicted in the murder case, the appeal against which is pending in this court at Jaipur bench. 9. In support of his contentions, learned counsel for the accused appellants has placed reliance on the cases viz; (i)
Dhonkal singh v. The State reported in 1954 R.L.W. p.154; (ii)
Gul Singh v. State of M.P. reported in 1974 Mh.L.J. p.16; (iii)
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Moti v. State of U.P. reported in 2003 SCC (Cri) 1821; (iv)
Gabsingh v. State of M.P. reported in 2004 (2) EFR 514; (v)
Nachhettar Singh v. State of Punjab reported in AIR 1976 SC 951; (vi) Bharat v. State of M.P. reported in AIR 2003 SC 1433;
(vii) Harjit Singh v. State of Punjab reported in 2002 SCC (Cri) 1518; (viii) Salim Akhtar alias Mota v. State of Uttar Pradesh reported in AIR 2003 SC 4076; (ix) Prem Prakash Mundra v.
State of Rajasthan reported in 1998 CrLR (SC) 135; and (x)
Bhugdomal v. State of Gujarat reported in AIR 1983 SC 906. 10. On the other hand, learned Public Prosecutor while supporting the conviction of the accused appellants, has argued that the present case of dacoity and murder, wherein three persons were killed and many received injuries, who were the opium cultivators and the accused persons with an intention to commit dacoity of opium and ornaments, made a pre plan to search their houses at Dhanesree and reached there with a gang of 20-25 persons from village Tokda, which is about 100 kms. from the place of occurrence and fled from the spot after committing the crime. After extensive search, the police arrested them from their own village Tokda, District Jhalawar and in pursuance to their information during custody, the recoveries of weapons used in the commission of crime, were made and they were soon put for identification parade before the learned
-14- magistrate. While in custody, the accused persons also furnished information to the investigating officer regarding opium and ornaments and the same were recovered at their instance, which have been identified by the prosecution witnesses before the magistrate, who conducted the test identification parade and in the court as well. According to the learned Public Prosecutor, in the present case, there are 25 eye witnesses, who were examined by the trial court and if some of them have not supported the prosecution case and there appears to be any infirmity in their statements, it cannot be said to be a ground for rejecting the entire evidence of the prosecution, because such infirmities are bound to occur when the witnesses are uneducated villagers. He has further argued that the accused
Sohaniya was the leader of gang against whom many criminal cases are pending in various courts and has also previously been convicted in a murder case, therefore, the trial court has rightly awarded him the death sentence. 11. Out of 58 witnesses examined during the trial, there are 25 eye witnesses, who have seen the commission of crime by the accused appellants. Out of these 25 witnesses, six witnesses viz;
Madhu (PW 5), Munnalal (PW 17), Khemraj (PW 19), Nand Ram
(PW 21), Ram Chandra (PW 22) and Sangeeta (PW 50) have supported the story of the prosecution regarding commission of
-15- crime of dacoity but they have not identified the accused persons, because soon after the incident, Munnalal (PW 17) and
Khemraj (PW 19) left the place and went to Village Selarpura and Nand Ram (PW 21) and Ram Chandra (PW 22), who received injuries, have not been medically examined. Therefore, the evidence of these six eye witnesses does not connect the accused with the commission of crime. It is an admitted fact that deceased Nirbhay Ram died on the spot and his post mortem report Ex.P.124 has been proved by Dr.Vimal Chandra Gandhi
(PW 41). Likewise, the post mortem report (Ex.P.237) of deceased Chain Ram and the post mortem report (Ex.P.238) of deceased Prakash have been proved by Dr.Rahul Jain (PW 56).
Rest of the six injured eye witnesses were examined by
Dr.Gandhi. They are namely Amrit Ram (PW 15) who was examined vide Ex.P.126 received one firearm injury; Nanu Ram
(PW 29) who was examined vide Ex.P.127 received six firearm injuries and one incised wound of simple nature with sharp edged weapon; Suresh (PW 13) who was examined vide
Ex.P.128 received one firearm injury; Jagdish (PW 31), who was examined vide Ex.P.129 received three firearm injuries; Mangilal
(PW 30) who was examined vide Ex.P.130 received two injuries with blunt weapon and one firearm injury; and Sav Ram (PW 3) who was examined vide Ex.P.133 received four injuries, out of which three were simple in nature and as to fourth injury,
-16- opinion was reserved because of the x-ray report & plates, which is not on the file. According to doctor, while examining injury, he kept the opinion reserved with regard to injury being simple or grievous in nature but there is no record in the file relating to x- ray report and plates or the evidence of the doctor, who conducted the x-ray, that the said injuries were of grievous nature. In the absence of evidence regarding injuries being of grievous nature, the conviction under Sections 325 and 326 IPC cannot be recorded. We are unable to understand as to how the learned trial Judge has come to the conclusion about the guilt of the accused for inflicting grievous injuries on the person of above injured, when there is no evidence to this effect. Of-course, the injured have stated in their statements that they received injuries with axe, firearms and lathis and have also identified the accused. Amongst these injured, Sav Ram (PW 3) has identified all the accused in the court and Suresh (PW 13) is the witness of giving First information report Ex.P.47 to the police on the spot, who has also identified the accused in the court. Likewise, Amrit
Ram (PW 15) has identified the accused in the court. Injured
Nanu Ram (PW 29), who was put for identification parade, has identified only accused Sohaniya in the court, who fired upon him. Injured Mangilal (PW 30) has specifically identified all accused appellants by specifying accused Sohaniya and Lal
Chand, who were present in the court dock, whereas injured
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Jagdish (PW 31) identified only accused Nahar Singh. In this way, these six injured witnesses have also identified accused in the Court. Amongst them, Sav Ram (PW 3) and Suresh (PW 13) have also identified the accused during test identification and in the Court. 12. Apart from these six injured eye witnesses, other witness who had seen the occurrence is Hiralal (PW 4), who has identified all the seven accused appellants during the test identification parade as well as in the court. Madhu (PW 5), who has identified stolen chain in the court, has stated that she can identify the accused on seeing but no question was put to him whether the accused present in the court were the same or not.
Dinesh (PW 12), Mahesh (PW 16), Shantilal (PW 18) and Chand
Mal (PW 20) have also identified the accused appellants in the court as well as during the test identification parade. Tara Chand
(PW 14), Smt.Nirmala (PW 23) and Smt.Saddam Bai (PW 24) have also identified the accused in the Court. Smt.Parwati (PW 25) has only identified accused sunder, who snatched "Mangal
Sutra" and a watch from her. She did not identify rest of the accused persons. Bhagwati Lal (PW 26) who was put for identification parade, has only identified accused Sohaniya in the
Court. Devilal (PW 27) was put for identification parade and has identified four accused in the court viz; Nahar Singh who fired at
-18- his father, Sunder who inflicted lathi blow on him, Laxmi Narain who broke open the door of the house and accused Sohaniya who fired on the spot. Smt.Ganga Bai (PW 43) has identified accused Laxman who fired at Nirbhay Ram and Laxmi Narain, who took off her ornaments from her neck and ears but they have been acquitted. However, she has identified five accused appellants viz; Radhey Shyam alias Ratadiya, Lal chand,
Laxman, Fatehlal and Sunder in the court. Sangeeta (PW 50) has not identified any accused, whereas Munni Bai (PW 51) has identified all the accused. Likewise as stated above, Munnalal
(PW 17), Khemraj (PW 19), Nand Ram (PW 21) & Ram Chandra
(PW 22) have not identified the accused in the Court. 13. In this way, out of 25 eye witnesses including the injured, six witnesses have not identified all or some of the accused appellants and from remaining 19 eye witnesses, 10 were put for test identification and also identified in court including four injured viz; Sav Ram (PW 3), Suresh (PW 13), Nanu Ram (PW 29) and Jagdish (PW 31). Injured Amrit Ram (PW 15) and
Mangilal (PW 30) were not put for test identification. Thus, it is evident from the evidence of these witnesses that a gang of 20- 25 persons in number came to village Dhanesree, Police Station
Pratapgarh, District Chittorgarh, on the night of 19.3.2001 for committing dacoity and they fired at the villagers, wherein many
-19- persons sustained injuries and three were died. These accused also plundered ornaments and opium from the houses of Nirbhay
Ram and Chain Ram and created an atmosphere of terror in the village and ran away after committing crime. Now, the question for consideration is whether the conviction of these seven accused appellants recorded by the trial Court is in conformity with the evidence on record or not. 14. To judge the credibility of an eye witness with regard to identification of the accused, ornaments, opium and other stolen properties, the Courts take into account the sound principles of the Criminal Jurisprudence, which are based on the test identification, recoveries, footprint marks etc., to substantiate the direct evidence. These are defined as of the relevancy of facts under Chapter II and existence of certain facts by way of presumption under Chapter VII of the Indian Evidence Act.
Section 9 of the Evidence Act which defines facts necessary to explain or introduce relevant facts, says that if any fact which establishes the identity of any person or thing, whose identity is relevant, is admissible. This is commonly known as test identification proceedings, which is conducted mainly for two reasons; firstly for the satisfaction of the investigating officer regarding the bonafides of an eye witnesses and secondly reliability of the witness is confirmed by the court when they are
-20- put through the process of test identification proceedings before a magistrate or other independent persons. The procedure of test identification is that it should be conducted as far as possible immediately after the arrest of the accused so that the memory of an identifier remains fresh and there should be no special mark on the face or body of the accused persons and identifier may not have any opportunity to see the things or persons to be identified before it is held. This evidence of test identification is supporting to the substantive one.
TEST IDENTIFICATION OF ACCUSED: 15. If, in the above light, the evidence of the present case is scrutinized, 10 out of 25 eye witnesses were put for identification parade before the magistrate on 4.5.2001 at District Jail,
Pratapgarh before seven accused appellants, who were arrested at Village Tokda, District Jhalawar on 1.5.2001 vide Ex.P.154 to 160 and were in `Baparda'. They were Sav Ram (PW 3) vide
Ex.P.4 to Ex.P.10 in which he has identified all the seven accused appellants except accused Ratadiya in Ex.P.9; Hiralal
(PW 4) vide Ex.P.18 to 24 in which he has identified all the accused; Dinesh (PW 12) vide Ex.P.40 to 46 in which he has identified four accused except Sunder in Ex.P.41, Fateh Lal in
Ex.P.42 and Ratadiya in Ex.P.46; Suresh (PW 30) vide Ex.P.50 to
-21- 56 in which he has identified five accused except Sunder in
Ex.P.51 and Nahar Singh (Ex.P.53); Mahesh (PW 16) vide
Ex.P.57 to 63 in which he has identified all the accused except
Nahar singh in Ex.P.60; Shantilal (PW 18) vide Ex.P.69 in which he has identified all the accused except Nahar Singh in Ex.P.68 and Lal Chand in Ex.P.70; Chandmal (PW 20) vide Ex.P.72 to 78 in which he has identified six accused except Ratadia vide
Ex.P.78. Bhagwatilal (PW 26) vide Ex.P.81 to 87 in which he has identified all the accused; Devilal (PW 27) vide Ex.P.88 to 94 in which he has identified four accused except Sunder (Ex.P.89),
Nahar Singh (Ex.P.91) and Sohaniya (Ex.P.92); and Nanu Ram
(PW 29) vide Ex.P.95 to 101 in which he has identified six accused except Nahar Singh (Ex.P.98). By and large, all the seven accused appellants have been identified by the ten witnesses except wrong identity of one to three accused had been given by the individual witness. 16. Upon perusal of the identification memos, it appears that when accused Sohaniya was put for identification parade before
Hiralal (PW 4) vide Ex.P.20, accused Sohaniya stated before the magistrate that he took tea before this witness in the presence of police. Likewise, accused Sohaniya, who was put for identification parade before Suresh PW 13 vide Ex.P.54, told to the magistrate that the police took him to the village and he was
-22- shown there after shaving, where all villagers saw him. Likewise accused Kushaliya and Sunder, who were put for identification parade before Mahesh (PW 16) vide Ex.P.57 and 58 respectively, stated before the magistrate that the police took them to the village, where all villagers saw them. Accused Sohaniya, who was put for identification parade vide Ex.P.61 before witness
Mahesh (PW 16), also stated that the police took him to the village, and he was shown there after shaving, where all the villagers saw him. Accused Sohaniya also stated before the magistrate during identification parade vide Ex.P.69 that when the police took him to the village, he was beaten by the witness
Shantilal (PW 18). Likewise, accused Sohaniya has also stated that vide Ex.P.76, when he was put before witness Chand Mal
(PW 20) for identification parade, he was already shown to the witness by the police in the court and also in the hospital.
Accused Sohaniya has also stated in the memo Ex.P.85, when put before eye witness Bhagwatilal (PW 26), that this witness provided water to him in the village. He also stated that vide
Ex.P.99, when he was put before witness Nanu Ram (PW 29), he was got down from the jeep by this witness when the police brought to him in the village. In this way, except few discrepancies and version of the co-accused, ten eye witnesses have identified the accused. If among such large number of accused, some of them have not been identified in the court or
-23- during the identification parade by the witnesses, the entire identification parade cannot be disbelieved. 17. The version of three accused viz; Sohaniya, Kushaliya and
Sunder that they were shown to the witnesses prior to the identification parade, cannot be accepted as true because firstly this is the version of the accused himself in his defence and secondly, no specific question that they were shown to the witnesses prior to the identification parade at a particular place, date and time, has been put in the cross examination. If the version of the accused is looked-into in the light of the cross examination, Hiralal (PW 4) has stated that the accused
Sohaniya of course told to the magistrate that he offered tea to him but it is a wrong version of the accused before the magistrte. No question regarding the identification has been put to witness Suresh (PW 13). Mahesh (PW 16) has denied that the police identified the accused prior to identification parade by bringing them to the village. No question has been put to witness
Shantilal (PW 18) and Chand Mal (PW 20) regarding bringing the accused Sohaniya at the village prior to the identification parade.
Bhagwatilal (PW 26) and Nanu Ram (PW 29) have denied that the police brought to accused Sohaniya in the village before the identification parade, whereas Nanu Ram (PW 29) has specifically stated in examination-in-chief that the accused
-24-
Sohaniya fired upon him. A general statement has been given by some of the witnesses that accused were brought to the village
Dhanesree after the incident but these accused were brought at the place of occurrence at Village Dhanesree on 12.5.2001 in pursuance to the information furnished by them vide Ex.P.221 to 227 on 11.5.2001 under Sec.27 of the Evidence Act and the site of occurrence was got verified on 12.5.2001 vide Ex.P.102 in the presence of motbirs Shantilal and Dadam Chand, which has been proved by Shantilal (PW 32). Likewise, these accused also pointed out the place vide Ex.P.103, where they kept the tractor and after committing dacoity, went in the tractor in pursuance to the information furnished by them vide Ex.P.228 to 234, which has been proved by Basantilal (PW 33) alongwith the investigating officer. No specific question by pointing out the accused, has been asked in the cross examination from witness
Tara Chand (PW 14), Nirmala (PW 23), Saddam Bai (PW 24) and
Munni Bai (PW 51), who identified the accused in the dock. 18. One of the reasons for disbelieving the test identification parade, which has been argued by the learned counsel, is that the only time 9.00 A.M. has been written in all the memos.
Mentioning of the same time is not fatal because when the application for identification parade was moved to the magistrate viz; Shri Ajay Kumar Sharma (PW 37), he conducted the
-25- identification parade on 4.5.2001 and mentioned the time "9
A.M." when it was conducted in the District Jail, Pratapgarh. He also mixed eight similar persons of the same identity. The list of the persons who were mixed with the accused, had been shown in Ex.P.114 to 120. It is not obligatory on the part of the magistrate to mention specific time of conducting the identification parade of each accused, when more accused are put for identification parade in the jail. Normally putting the time of initial conduct of parade, cannot be termed as fatal to the prosecution in conducting test identification parade. Likewise, it is not always necessary to call the independent witnesses during identification parade, which is conducted under Rule 70 of the
General rules (Criminal) read with Section 164 CrPC, wherein statement is recorded by keeping necessary precautions by the magistrate, which he (Ajay Kumar Sharma, PW 37) has taken.
Therefore, the contention of the learned counsel that accused were not `Baparda' is also not fatal in the light of statement of
Amar Singh (PW 58), the investigating officer, who moved the application Ex.P.266 before the magistrate in which reference has been given of keeping accused in `Baparda' as also in arrest memos Ex.P.154 to 160. In this way, the identity of the accused appellants by the witnesses has been established by the prosecution through test identification parade as well as in dock identification.
-26-
TEST IDENTIFICATION OF ORNAMENTS: 19. The test identification regarding the ornaments which were said to have been stolen from the scene of crime, was conducted by the magistrate Shri Ajay Kumar Sharma (PW 37) on the application of the S.H.O. (Ex.P.272 dated 6.7.01 and the test identification parade of ornaments was conducted on 12.7.01 vide Ex.P.11 to 16 from the witnesses viz; Suresh Chandra,
Ganga Bai, Shiv Ram, Nanu Ram, Deu bai and Sangeeta in which they identified the articles. Three similar articles were mixed by the magistrate during the test identification. One of the witnesses of identification who has been cross examined is Sav
Ram (PW 3). The general questions have been put to him that such types of ornaments are available in the market. He has not denied the contents of the identification parade in the cross examination. Another witness of identification is Suresh (PW 13).
No question has been put to him in the cross examination with regard to test identification of ornaments. Nanu Ram (PW 29), who has identified the ornaments, has been asked only one question in the cross examination that whether he has pointed out the details of ornaments to the police or not, to which he replied that he did not know. Smt.Ganga Bai (PW 43) has also supported the identification parade conducted in the jail but only question put to her in the cross examination is that whether she
-27- knew the weight of the ornaments or not , to which she said that she cannot say anything about the weight. Sangeeta (PW 50) has identified her ornaments in the court and in the cross examination, the only question put to her was about the weight and design. Smt.Munni Bai alias Dev Bai (PW 51) ofcourse has not identified the ornaments in the court. In this way, the test identification parade of the ornaments conducted by the magistrate before the witnesses, whose ornaments were stolen, has been established. 20. Learned counsel has relied upon certain citations on the evidentiary value of test identification, referred below, which are distinguishable from the facts of the present case:
In Dhonkal Singh's case [supra (i)] relied upon by the learned counsel for the appellants, the test identification parade was disbelieved because the accused who were in the lock up, were not kept "baparda" and they were going out from the lock up for ease etc., whereas in the present case, as discussed above, it is clear from the evidence of Amar Singh (PW 58) recorded on 31.7.2004 that right from the date of arrest till the identification parade was conducted, the accused were kept `baparda' and instructions were given to the jail authorities to keep them in `baparda';
-28-
The second case of test identification parade is Gul Singh's case [supra (ii)] in which it was held that number of articles mixed, should not be small like two to three. In our view, this differs from case to case because normally, it is very difficult to get the small articles which are worn by the villagers from the vicinity or the market. In every article, the wearer keeps his or her own desired design and if three articles of the similar nature are mixed, it does not destroy the evidentiary value of the test identification parade of ornaments;
In Moti's case [supra (iii)], it was held that if the incident occurred at a place, where there was no proper light to identify the accused, this fact contributed to the doubt in the prosecution case. In the referred case, the murder was said to have been committed at 9.30 P.M. when the deceased and his father in law were sitting outside the house and the ladies were cooking food.
Stomach was empty and necessary impression which can be drawn, was that incident took place prior to dinner, when the appellants came with lathis and spear and inflicted blows, where motive was absent, whereas the present case is based on strong motive of dacoity. So far as the light is concerned in the referred case, there was no proper light to identify the accused and it was difficult to ascertain the time of occurrence but in the present
-29- case, the incident took place on 19.3.2001 i.e. "Chaitra Krishna
Paksh 10. Of course, this was a dark night and moon was visible as per the "Panchang" around 12.00 in the mid night but the evidence of the case shows that there was light in the village on that day. In this regard, if we turn to the evidence of Sav Ram
(PW 3), eye witness, he has stated that there was light in the village and there is no cross examination on this point from him.
Hiralal (PW 4) has also stated that there was light but no question has been put to him in the cross examination that he was stating wrong in this regard except his statement Ex.D.1 in which he has said nothing about the light. Smt.Madhu (PW 5) also stated that there was light in the house. Nand Ram (PW 21) has stated that he switched off the light and there is no cross examination with him on this point. Devilal (PW 27) has stated that on the date of incident, he was watching T.V. and there is no contradiction on this point with him. Nanu Ram (PW 29) has stated that he used torch and the assailants also used the same but merely by showing torch, it cannot be said that there was no light in the Village because use of the torch by this witness is at the time when then accused was trying to break open the door of the house and it is not necessary that on the door, there should be a proper light. In this way, the eye witnesses have said that there was a light in the village at the time of incident.
-30-
RECOVERIES: 21. When the identity of the accused and ornaments have been established, now it is to be seen how the prosecution has been able to connect the accused with stealing these ornaments by committing dacoity and murders. On this vital issue, the most important evidence is that of recovery, which is said to have been made after arrest of accused appellant on 1.5.01 vide
Ex.P.154 to 160.
RECOVERY OF WEAPONS: 22. Amar Singh (PW 58), the then S.H.O., Pratapgarh, stated that during the course of investigation, he came to know that on the night of 19.3.2001, the dacoity and murder were committed by "Kanjars" of village Tokda falling under the jurisdiction of
Police Station, Gangdhar of District Jhalawar. Upon this, he alongwith Additional Superintendent of Police and police force, went to search the accused and on 1.5.2001, they arrested the accused appellants vide Ex.P.154 to 160. The accused were sitting in the pits surrounded by bushes on the bank of Kshipra
-31- river. The recovery of weapons was made in pursuance to the information furnished by the accused-appellants on the spot in the presence of witnesses Bharat Singh (PW 46) and Lal Singh
(PW 44), who have in their statements proved the arrest memos and recovery memos of weapons but they have not identified the accused persons. They have stated that these recoveries were made on the bank of Kshipra river, where the accused were sitting in a pit. Though Bharat Singh (PW 46) has not identified the weapons but Lal Singh (PW 44) has identified `kulhari' and `dharia' and there is no cross examination on this point to rebut their testimony with regard to recovery of weapons. As per the recovery memo, these recoveries were made in pursuance to the information furnished by the accused. As per the information of accused Sohaniya Ex.P.242 recovery of 12 bore rifle and 11 cartridges was effected vide Ex.P.162; accused Fatehlal furnished information Ex.P.243 and in pursuance thereof, one axe was got recovered from him vide Ex.P.164; accused
Khshaliya furnished information Ex.P.244 and in pursuance thereof, one `dharia' was recovered vide Ex.P.163; accused
Ratadia furnished information Ex.P.245 and in pursuance thereof, one 12 bore rifle and 8 cartridges were recovered vide
Ex.P.165; accused Sunder gave information vide Ex.P.246 and in pursuance to this, one gun was recovered from him vide
Ex.P.166; accused Nahar singh furnished information Ex.P.247
-32- and in pursuance thereof, one 12 bore rifle and 9 cartridges were recovered vide Ex.P.167; and accused Lal chand furnished information Ex.P.250 and in pursuance thereof, one 12 bore rifle and 10 cartridges were recovered from him vide Ex.P.161. 23. It has been contended by the learned counsel for the appellants that Amar Singh, S.H.O., had stated in his statement that the accused were arrested alongwith weapons from a pit surrounded by bushes on the bank of Kshipra river, therefore, it cannot be believed that the recovery was made in pursuance to the information furnished by them under Section 27 of the
Evidence Act and there is no signature of any witness on the information furnished by the accused. It is true that the information furnished by the accused regarding possession of weapons, has not been recorded in the presence of witnesses but the time of arrest, information and recovery are almost coincidental with the operation of arrest. The arrest memos
Ex.P.154 to 160 reveal that arrests were made between 8.45 AM to 9.15 AM and informations were furnished between 9.45 AM and 10.05 AM and the recoveries were made between 10.25 AM to 11.00 AM, therefore, in this operation of two hours, when the arrest, information and recoveries have been made, then the statement of the investigating officer that the accused were hidden in a pit surrounded by bushes on the bank of Kshipra
-33- river is a natural statement, corroborated by the witnesses of recovery and the version of the investigating officer has been supported by a superior officer viz; Govardhan Lal Meena,
Addl.S.P. (PW 57) who has stated that the accused were named before arrest and on making extensive enquiry, accused told them that they are having weapons in their possession, which were recovered in pursuance to the information furnished by them. The contention of the learned counsel for the appellants is that the weapons were hidden in the pits and there were no dust spots on it, therefore, the recovery is fake and cannot be accepted because after lapse of time and even at the time of recovery of articles, still it is quite natural that the soil is cleaned. In this way, the finding of the learned trial court regarding recovery of weapons of offence in pursuance to their information & from the possession of the accused, does not call for any interference.
RECOVERY OF OPIUM AND ORNAMENTS: 24. It has been stated by Amar Singh (PW 58), the investigating Officer that while accused were under arrest, they furnished information on 8.5.2001 to him regarding the recovery of opium and ornaments, which were plundered from the scene of the occurrence by them. Since the information was furnished
-34- regarding the recovery of opium, therefore, notices were issued to all the seven accused appellants on 9.5.2001 required under
Section 50 of the Act of 1985 and by calling motbirs Samrathlal and Devilal, recoveries were made. Though Devilal son of
Onkarlal has not been produced and Samrathlal, motbir (PW 42) has turned hostile but these recoveries of opium and ornaments have been proved by Amar Singh (PW 58), the investigating officer and his superior officer Govardhan Lal Meena, Addl.S.P.
(PW 57). According to the investigating officer, accused Sohaniya furnished information Ex.P.248 and notice was given to him vide
Ex.P.153 and recovery of 6 kgs. of opium and 8 items of ornaments including one watch, was made from him vide
Ex.P.138. Accused Ratadia furnished information Ex.P.248A and notice was given to him vide Ex.P.141 and recovery of 5kg.
Opium and 8 ornaments including one watch, was made from him vide Ex.P.142. Accused Sunder furnished information vide
Ex.P.251 and notice was given to him vide Ex.P.144 & recovery was made vide Ex.P.145 of 3.500 kg. opium and 8 items of ornaments including one lady watch. Accused Kushaliya furnished information Ex.P.252 and in pursuance thereof, notice was issued to him vide Ex.P.146 and recovery of 3 kg. opium and 4 items of ornaments, was made vide Ex.P.147. Accused
Fatehlal furnished information vide Ex.P.253 and in pursuance to this, notice was issued to him vide Ex.P.148 and recovery of 3
-35- kg. opium and 4 items of silver ornaments was made vide
Ex.P.149. Accused Nahar Singh furnished information Ex.P.254 and in pursuance to this, notice was issued to him vide Ex.P.239 and recovery of 2kg. opium and 4 items of ornaments were recovered from him vide Ex.P.143. Likewise, accused Lal Chand furnished information vide Ex.P.255 and in pursuance to this, notice was given to him vide Ex.P.139 and recovery of 4.500gms opium and 7 items of ornaments including one watch, was made from him vide Ex.P.140. 25. The sealed packets of opium samples were sent for chemical examination to the F.S.L.,Jaipur vide letter of the
Superintendent of Police Ex.P.257 alongwith the sample of seal impression vide Ex.P.260, which were deposited in the Malkhana vide Ex.P.120 in pursuance to Section 55 of the Act of 1985 alongwith the letter Ex.P.240 sent to the superior officer in compliance of Section 42 of the act and after recovery, the information was given to the Superintendent of Police on 10.5.2001 in compliance of Section 57 of the Act of 1985 vide
Ex.P.264. As per the report of the F.S.L. Ex.P.262, the samples of seized opium marked A-1 to G-1 contained dark brown coloured solid substance and gave positive test for the presence of chief constituents of coagulated juice of opium poppy having 4.18%, 8.17%, 8.74%, 6.46%, 4.75%, 9.60% and 7.03%
-36- morphine respectively. Learned counsel for the accused appellants has submitted that these samples were not taken as per standing order No.1/89 dated 13th June, 1989 issued by the
Government of India, Ministry of Finance, Department of
Revenue. In this notification, it has been stated that the quantity to be drawn for the purpose of sampling of opium, must not be less than 24 gms. Here, in the present case, the quantity of sample has been taken 50 gms for keeping two sealed packets.
As per the report of the F.S.L. Ex.P.262, the samples were properly sealed and impressions on it, were tallied with the specimen seal impression forwarded, which were intact.
Ofcourse, there was some variation in the weight of the opium because of loss of moisture contents. Learned counsel submitted that morphine should not be more than 0.2% but in the present case, it was more than so, as is evident from the report
Ex.P.262. In this regard, the learned trial court has rightly discussed at page 73 of the judgment about the contents of percentage of morphine required under Section 2(15) of the Act of 1985 that the contents of morphine varies in different parts of cultivation of opium. It has rightly held that the defence has not been able to contradict the version of the prosecution with regard to mixture of any other substance in the buckets in which opium was found and recovered because further this opium was recovered from the cultivators of the opium.
-37- 26. The pronouncement cited by the learned counsel in Gab
Singh's case [supra (iv)] is not applicable to the facts of the present case. In that case, the poppy husk was recovered on the information of the mukhbir (informant) and accused voluntarily surrendered and the report of the `mukhbir' was not held to be admissible in the evidence and, consequently, the accused was released on bail. In this way, the finding of the learned trial court with regard to presence of chief constituent of coagulated juice of opium is based on the F.S.L.Report Ex.P.262 and the compliance of provisions of Sections 42, 50, 55 and 57 of the Act of 1985 has been substantially made, specially when while investigating the case of dacoity and murder, the then S.H.O.,
Pratapgarh, Amar Singh (PW 58) arrested the accused appellants in a different district and recovered the weapons of offence, stolen ornaments and opium upon the information of the accused furnished u/s.27 of the Evidence Act; 27. According to the investigating officer, he also took footprints of all the seven accused appellants vide Ex.P.106 to 112 and also obtained piece of `shawl' from the spot produced by Dinesh vide Ex.P.32. Another piece of which was recovered from accused Ratadiya vide Ex.P.142. They were sent for chemical examination vide Ex.P.213, result of which was
-38- received from the State F.S.L. vide Ex.P.256 in which it was stated that the torn ends of both the `shawl' pieces matched physically. The blood stained clothes, soil and controlled soil
(Ex.P.30 & 31) alongwith empty cartridges (Ex.P.33) and the foot impression moulds (Ex.P.34 to 37), which were taken from the spot, were also sent by the Superintendent of Police vide
Ex.P.257 to the F.S.L., Jaipur from where the report came vide
Ex.P.258. As per the report of the Finger Print Bureau, the chance foot impression of mould marked D1 was similar to the specimen right foot impression marked-C of Sunder; the chance foot impression of mould marked D2 was similar to specimen left foot impression mould marked-B of accused Fatehlal; the chance foot impression of mould marked D3 was similar to the specimen right foot impression of mould marked-G of Sohaniya; and the chance foot impression mould marked D4 was similar to the specimen left foot impression mould marked-F of Kushaliya. 28. Any recovery which has been made in pursuance to the information furnished by the accused under Section 27 of the
Evidence Act, is admissible in evidence and is a sufficient proof of the guilt of the accused by virtue of Section 114 of the Indian
Evidence Act and its illustration (a). Section 114 deals with presumption with regard to existence of certain facts, which have happened, regard being had to the common course of
-39- natural events, human conduct etc. Illustration (a) of this
Section provides as under:
"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." 29. The words "soon after" occurring in this illustration has a wide connotation. It depends upon the evidence, direct or circumstantial of each case. This presumption can be drawn only when there is a prima facie proof of its stealing. Though there are various pronouncements of the Hon'ble Apex Court that such recovery should be made without any span of delay but when the accused are absconding and recoveries have been made one after the other, when the accused had been arrested, it was not held to be fatal. When the accused is charged with the dacoity and murder, which is of a triple nature as in the present case and he is arrested after a lapse of 40 days after extensive search and recoveries are made in pursuance to the information furnished by him under Section 27 of the Act and it is proved that the recoveries were of the stolen property and of the weapons which were used in the commission of crime, the Court will certainly presume the existence of fact of dacoity and
-40- murder by virtue of Section 114 illustration (a) of the Act and such recoveries are held to be proved against the accused even if they are given to the police officer in pursuance to an information furnished by the accused while he was in custody of the police. Section 27 is an exception to Section 26 of the Act which prohibits confession to the police officer. 30. The words "distinctly relates to the fact thereby discovered" appearing in Section 27 of the Act, denote that the information must be sensible or comprehensible and the recovery of articles has to be proved to the extent the words used by the accused in his information to the police while he was in custody. The basic idea enshrined in Section 27 of the act is the doctrine of confirmation by subsequent events. This doctrine is founded on the principle that the discovery is a guarantee of truth on the basis of the information furnished by the accused.
The recovery of weapons used in the commission of crime, ornaments and opium plundered from the houses of deceased during investigation on the basis of a voluntary statement of the accused has a strong evidentiary value in the criminal trial. The facts which have emerged from the present case, it is clear that there was no previous enmity of the deceased and the accused who were of the distinct districts; the motive of the accused appellants was of committing dacoity and after extensive search,
-41- the police arrested them. It can safely be said that the recovery was voluntary and genuine and the contention of the learned counsel that motbirs of recovery were not taken from the vicinity, is devoid of force in the circumstances of the present case because the witnesses of recovery of weapons on 1.5.2001 are of village Salarpura and they went with the police of
Pratapgarh and in their presence, the accused were arrested and recovery was made of weapons by them in the commission of crime. The non-examination of Ballistic Expert is also not fatal to the prosecution case because these weapons were examined the
State F.S.L., which is admissible under Section 293 CrPC and this report says that 12 bore rifle and cartridges are serviceable firearms. Mere non-examination of the expert, whose evidence is of corroborative nature, is not fatal to the prosecution unless truthfulness of the report has been questioned by the defence, which has not been questioned in the present case. 31. Likewise, the recoveries of opium and ornaments have been made in the presence of witnesses Samrathlal and Devilal, who are residents of village Manpura, Police Station Pratapgarh.
Samrathlal (PW 42) is a hostile witness but Devilal (PW 47) has supported the recovery memos Ex.P.138 to 150, in which he has clearly stated that the accused were with the police at the time of recovery and nothing has come out from the cross
-42- examination of this witness that the recovery is false. The authorities cited by the learned counsel for the appellants in this regard are distinguishable from the facts of the present case.
In Nachhettar Singh's case [supra (v)], the guilt of the accused was not held to be proved because of shaky and doubtful evidence and the witnesses of recovery were not examined. There was delay in despatching firearms to the
Ballistic Expert, who said in his report that the empty cartridges were not fired from the gun recovered and there was no injury on the body of the deceased of firearm. The investigating officer was unable to explain to the court regarding arrest of the accused, who were residents of nearby to the place of occurrence. In the present case, the accused are of different districts and as per the version of Dr.Vimal Chandra Gandhi, who conducted the post mortem of deceased Nirbhay Ram and
Dr.Rahul Jain (PW 56) who conducted the post mortem of deceased Chain Ram and Prakash have clearly stated in their examinations that the injuries on the bodies of deceased were caused by firearms;
In Bharat's case [supra (vi)] , the recovery of ornaments was not held to be reliable because the ornaments were not properly identified by the witnesses, whereas as discussed
-43- above, that is not in the present case and witnesses have rather identified their ornaments in the court;
In Harjit Singh's case [supra (vii)], the recovery of crime weapons concealed in an open field in a gunny bag under a heap of straw on the basis of disclosure statement of accused, was not held to be reliable and because of not procuring attendance and signature of the independent witnesses on the disclosure statement, the memorandum was signed only by the police officers but in that case, the alleged place of concealment was accessible to the public, whereas in the present case, the dacoity has been committed by breaking houses;
The same principle was laid down by the Hon'ble Apex
Court in Salim Akhtar alias Mota's case [supra (viii)] but in that case also, the recovery was made from the open place, which was accessible to all and everyone and recovered pistol was not sealed on the spot and there was no mention of its number or make in the recovery memo, whereas the recoveries in the present case have been made in the presence of independent witnesses, those articles were sealed on spot and the place was also not open;
In Prem Prakash Mundra's case [supra (ix)], the dead body
-44- was recovered on the information of the accused. That was a case of circumstantial evidence and it was held that the statement of the investigating officer is not reliable. In that case, the accused was not held guilty because the only conclusion that could be drawn from the statement of the accused was that he knew the place where the dead body was buried and he did not state that he had buried it, therefore, he should not be connected with the offence on the basis of this circumstance;
In Bhugdomal Gangaram's case [supra (x)], the police officer acted on the information that certain accused would be following in taxi, a truck carrying prohibited liquor. In that case, the informant was not examined. But the present case is not based on the information of other persons except the accused and the recovery is effected in pursuance to the information furnished by the accused, admissible under Section 27 of the
Act, which is not fatal to the prosecution case, as it raises strong presumption of fact leading to discovery which is admissible under Section 114 of the Act. 32. Thus, after scrutinizing the evidence in the above light, we confirm the finding of the learned trial Court that the accused appellants named above, in order to commit dacoity, went to the
Village Dhanesree, Police Station Pratapgarh, District Chittorgarh
-45- on the night of 19.3.2001 armed with firearms, axe, dharia etc. and plundered ornaments and opium by breaking open the houses of Chain Ram, Nirbhay Ram and Nanu Ram and killed
Nirbhay Ram, Chain Ram and Prakash. Their acts are established from their criminal intention supported by the testimony of eye witnesses, test identification, recoveries i.e. opium, ornaments, firearms, cartridges and piece of "Shawl" and moulds of footprints taken by the police. 33. Now, what is to be seen is that whether the conviction and sentences awarded by the learned trial Judge for the acts committed by the accused appellants, are in conformity with the law or not. As discussed above, in the absence of evidence of x- ray plates and also grievous injuries, the offences u/ss.325 and 326 PC are not made out. For rest of the offences, if we turn to the evidence on record with regard to criminal conspiracy punishable under Section 120B IPC and common object punishable under Section 149 IPC, learned trial court has held that it is not proved from the evidence that the accused came in a tractor trolley of accused Balwant Singh and consequently, accused Balwant singh was acquitted by the trial Court. There is also the evidence that accused Sohaniya and Lal Chand came in the village two days before the incident on motor cycle but this evidence has not been corroborated by any of the eye witnesses.
-46-
In the absence of this evidence, we are unable to arrive at a conclusion as to how the accused appellants are guilty of the offence under Section 120B IPC, which deals with the criminal conspiracy. 34. In order to prove the element of criminal conspiracy as defined under Section 120A IPC, the illegal act is committed by two or more persons under the agreement and some act is done by one or more of them in pursuance to such agreement. This definition denotes that there must be a pre-plan in accomplishment of the object. There must be an element of unlawful combination by some overt act or an act to accomplish it. A meeting of mind of the partners of an illegal act must be established. In the present case, there is no direct or circumstantial evidence that there was a pre-meeting of the mind for committing an illegal act. Of-course, the informations furnished by the accused appellants vide Ex.P.224 to 236 regarding the place of dacoity and weapons used in the commission of crime and opium and ornaments vide Ex.P.242 to 248A and Ex.P.250 to 255 reveal that they are regarding recovery of the articles. There is no link evidence of using tractor trolley or motor cycle prior to two-three days of incident, to establish the charge of criminal conspiracy. In the absence of it, the charge under Section 120B IPC cannot be sustained.
-47- 35. So far as the charge of common object punishable under
Section 149 IPC, undoubtedly, the accused appellants were more than five in number and were armed with deadly weapons. This is the law on vicarious liability for the unlawful acts committed in pursuance to the common object by any other member of the assembly. The basis of this constructive liability is the requisite common object acknowledged. "Conspiracy" is distinguished from "common object" of composition of assembly. The common object can be collected from the nature of the assembly, its behaviour and at or before or after the scene of the incident and the nature of the arms used, therefore, here, in the present case as is evident from the record, the object was to commit dacoity and murder by a gang. The common object does not require a prior concert or a common meeting of mind as is required for a common intention punishable under Sec.34 IPC. To constitute the offence punishable under Sec.149 IPC, it is sufficient that the object of each of the member of assembly was same and the number is five or more and they act to achieve that object. In the present case, there was an element of common object of unlawful assembly of accused appellants, which has rightly been discussed by the learned trial Judge with the help of law laid down by the various judgments of the High court and Hon'ble the Supreme Court and we uphold it.
-48- 36. Since the accused have been held guilty under Section 396
IPC, which punishes dacoity with murder, there is no need to convict and sentence them under Section 395 IPC, which provides punishment for dacoity alone. So far as Section 397 IPC is concerned, as has been discussed above, no charge under
Sections 325 and 326 IPC relating to grievous hurt, has been proved, therefore, the guilt under Section 397 IPC cannot be sustained, as it deals with the robbery or dacoity with attempt to cause death or grievous hurt for which there is no separate evidence except committing murder for the purpose of dacoity for which appellants have been found guilty under Section 396
IPC. Likewise the charge of Section 458 IPC dealing with lurking house-trespass or house-breaking by night after preparation for hurt, assault, or wrongful restraint, has been established. Since the accused were jointly concerned with the lurking house- trespass or house-breaking by night, whereby death was caused, the act is punishable under Section 460 IPC but it is not so punishable in the absence of proof of grievous hurt punishable under Section 459 IPC. Since the property has been plundered and recovery has been made, therefore, the punishment under
Sections 148 and 380 IPC is also sustainable alongwith the offences of causing simple injury by blunt & sharp weapons punishable u/ss.323 & 324 IPC and of murder punishable under
-49-
Section 302 IPC and keeping contraband opium punishable under Section 8 read with Sec.18 of the Act. 37. In view of the above, while the conviction of accused appellants for the offences u/ss.148, 396, 458 or 458/149, 460 or 460/149, 380 or 380/149, 323 or 323/149, 324 or 324/149, 302 or 302/149 and Section 8/18 of the Act is maintained but their conviction recorded under Secs.120B, 395 or 395/149, 397 or 397/149, 459 or 459/149, 325 or 325/149 and 326 or 326/149 IPC can not be maintained.
DEATH PENALTY: 38. Coming to the part of sentence awarded to accused appellant Sohaniya, who has been sentenced to death and to pay a fine of Rs.1000/- and about rest of the accused, who have been sentenced to imprisonment for life and to pay a fine of
Rs.5000/- and in default, to further undergo one year's S.I., the reasons assigned for sentencing the accused Sohaniya under
Section 396 IPC are; firstly that he has been previously convicted in a murder case of Jhalawar on 10.2.2003 to which the learned counsel for the accused appellant Sohaniya has submitted that the appeal is pending before the Division Bench of this Court at Jaipur Bench. There is no contrary argument
-50- advanced by the learned Public Prosecutor in this regard. The second reason assigned by the learned trial Judge is that accused Sohaniya was the leader of the gang and he played the prime role in committing the dacoity, by relying upon the case of
Nirmal Singh vs. State reported in 1999(1) CrLR (SC) 360 in which it was held that the personal role played by the accused should be considered while awarding the death sentence.
Thirdly, some more cases of dacoity and attempt to murder are pending against the accused and he is a leader of dacoits from whom opium in more quantity was recovered. We are unable to subscribe-to the view of the learned trial Judge, because the acts of the accused Sohaniya and six other accused appellants are of the similar nature and no evidence has come on record that he planned dacoity. To bring it a case under the caption "rarest of rare", mere previous conviction is not enough to hold the accused guilty. Even when offence in the present case was committed, the accused was not a life convict. The constitutionality of imposing death sentence on a life convict under Section 303 IPC was struck down by the Hon'ble Supreme
Court in Mithu Singh v. State of Punjab reported in AIR 1983 SC 473 and thereafter in other cases. In our view, merely because one kilogram more opium was recovered from the possession of accused Sohaniya and is a gang leader against whom many cases are pending, cannot be a cognate reason for the extreme
-51- penalty. Further, Section 396 IPC is punishable with death or imprisonment for life or rigorous imprisonment for a term, which may extend to ten years, whereas Section 302 IPC is punishable with death or imprisonment for life, a more serious offence than one under Section 396 IPC. When under Section 302 IPC, the learned trial Judge has awarded the imprisonment for life, then there is no reason as to why the accused Sohaniya has been sentenced to death under Section 396 IPC, which is also punishable with rigorous imprisonment with a term, which may extend to ten years. 39. There is a much debate on the question of imposition of death penalty, which is codified under the Indian Law in contrast to the European Countries. Without going into this debate, death penalty is imposed only when the criminal act of the accused is so extreme, which shakes the conscience of the Society and is so brutal that it threatens the life and liberty of free citizens of a
Republican State. In a large democracy, where majority are poor and have no means of livelihood and there is no guarantee of employment, the nature & conduct of human beings is that they indulge in unfair means for bread and the surrounding Society of life and nature takes them to extreme act of brutality like animals. Looking to the totality of the evidence collected in this case, it is a case of similar nature, where the gang of small or bit
-52- number living on the banks of rivers of Chambal, Kshipra etc., which are popularly known areas of dacoits, has committed this crime. Many of big dacoits of these areas have surrendered and the State has granted them clemency in the past on their surrender with the armed weapons. Some of them have turned their life to serve the Society and were later-on elected in the legislative bodies. Thus, the case of the present accused appellant cannot be termed as more heinous than that of those popular dacoits and their gang leaders. 40. In view of the aforesaid, we are unable to confirm the death sentence awarded to accused appellant Sohaniya upon re- appraisal of the entire facts and law. 41. Consequently, we answer the Murder Reference submitted under Section 366 CrPC by the learned Special Judge, NDPS Act
Cases, Pratapgarh awarding death sentence to accused appellant
Sohaniya in negative and while setting aside the death sentence for the offence under Section 396 IPC, we sentence him to imprisonment for life and to pay a fine of Rs.5000/- and in default, to undergo one year's simple imprisonment, as has been done in the case of other six accused appellants. We, however, allow the appeal being 9D.B.Criminal Appeal No.651/2005 filed by accused appellants Sohaniya and six others, in part; set aside
-53- the conviction & sentences of all the seven accused-appellants recorded u/ss.120B, 395 or 395/149, 397 or 397/149, 459 or 459/149, 325 or 325/149 and 326 or 326/149 IPC; but maintain their conviction & sentences for the offences u/ss.396
(by converting death penalty of accused Sohaniya to life imprisonment and to pay a fine of Rs.5000/- & in default, to undergo one year's S.I.), 148, 458 or 458/149, 460 or 460/149, 380 or 380/149, 323 or 323/149, 324 or 324/149, 302 or 302/149 and Section 8/18 of the Act of 1985. Since, all the accused appellants are in jail, they will serve-out remaining part of their sentences.
(DEO NARAYAN THANVI), J. (SATYA PRAKASH PATHAK), J.
RANKAWAT JK, PS
