IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH AT JAIPUR JUDGMENT Sharif Khan @ Kala Khan Vs. State of Rajasthan (S.B. Criminal Appeal No.1587/2007) Sakir Khan & Anr. Vs. State of Rajasthan (S.B. Criminal Appeal No.1891/2007) S.B. Criminal Appeals Under Section 374(2) Cr.P.C. Date of Order :- February 18th , 2011 PRESENT HON'BLE MR. JUSTICE R.S. CHAUHAN Mr.Ravi Yadav, for the appellants. Mr.Javed Chaudhary, Public Prosecutor. REPORTABLE BY THE COURT:
Since both these appeals arise out of the same impugned judgment, they are being decided together by this common judgment.
The appellants have challenged the judgment dated 3.8.2007, passed by the Additional District and Sessions Judge, Rajgarh, District Alwar, whereby the learned Judge has convicted the appellants for offence under Section 395 IPC and has sentenced them to three years of rigorous imprisonment and has imposed a fine of Rs.5,000/- each, and to further undergo three months of rigorous imprisonment in default thereof.
Briefly, the facts of the case are that on 26.11.2006, Harchand Yadav, SHO, Police Station Tehla recorded a Parcha Bayan (Ex-P/1) of one Kaluram (PW-1). In the Parcha Bayan, Kaluram narrated that he is resident of Achalpuri. According to him, he is the driver on Tata 407, bearing registration No.RJ-02/G-9101, which belongs to Jaikishan Gupta. Since he does not have a cleaner for the said vehicle, he takes a labourer (Palledar) from his employer. He further alleged that on 25.11.2006, he took the truck from Khedli Pichnot to Jaipur. He was accompanied by one Prem Chand (PW-2), who was the Khalasi on the truck. Around 8 O’clock at night, they stopped near Rajgarh Phatak and took dinner. When they left, two persons boarded the truck. However, they got down near Rajgarh Power House. As the truck went along, near Badla village, a red colour dumper came. The dumper stopped and three to four persons got down from it and surrounded the truck. The miscreants assaulted both Kaluram and Prem Chand with fists and kicks and threw them in the back of the truck. Near Veerpur, Kaluram’s and Prem Chand’s hands were tied, and the truck was taken towards Rajgarh. Further, Kaluram claimed that the miscreants not only took away Rs.750/- from him, but also took a red colour hanky, a red colour Jersey and a blanket which belonged to Prem Chand. Lastly, he claimed that because of the assailants, he had suffered certain internal injuries on his chest as well as on his right foot. According to Kaluram, the said incident had occurred around 9:30 PM. On the basis of said Parcha Bayan, a FIR, FIR No.155/06 was chalked out for offence under Section 382 IPC. During the course of investigation, the appellants were arrested. Subsequently, a charge-sheet was filed against the appellants for offence under Section 395 IPC. In order to buttress its case, the prosecution examined eighteen witnesses and submitted thirty-eight documents. In order to defend themselves, the appellants examined Sharif and produced a single document. After going through the oral and documentary evidence, the learned trial court convicted and sentenced the appellants as aforementioned. Hence, these appeals before this Court.
Mr. Ravi Yadav, the learned counsel for the appellants, has raised the following contentions before this Court : firstly, initially, the Police had registered the case for offence under Section 382 IPC. Subsequently, in order to make the case more aggravated one, it had filed the charge-sheet for offence under Section 395 IPC.
Secondly, no offence under Section 395 IPC is made out. According to the learned counsel, the essential ingredient of offence under Section 395 IPC is that robbery or extortion has to be committed by five or more persons. However, according to Kaluram’s statement recorded under Section 161 Cr.P.C., only three to four persons were involved in the alleged offence. In his testimony, Kaluram is silent about the number of persons involved. However, he does state and does prove the contents of Parcha Bayan. But he does not deviate from his statement recorded under Section 161 Cr.P.C. Thus, according to Kaluram, only three to four persons were involved. Hence, looking at his testimony, offence under Section 395 IPC is not made out.
Thirdly, while dealing with the involvement of five or more persons, the learned trial court has totally ignored Kaluram’s testimony. It has, in fact, relied upon the testimony of Prem Chand (PW-2). For, it is Prem Chand, who claims, in his testimony, that initially three to four persons had come to assault him and Kaluram, but subsequently, six to seven persons alighted from the dumper. While relying on the testimony of Prem Chand, the learned trial court has not given any cogent reason for disbelieving the testimony of Kaluram. Since Kaluram happens to be the author of the FIR, his testimony should have been relied upon. Therefore, the prosecution has not been able to prove that five or more persons were involved in the commission of the crime for offence under Section 395 IPC. Thus, the prosecution has failed to discharge its duty to prove the commission of the offence beyond a reasonable doubt.
According to the learned counsel, in a case for offence under Section 395 IPC, two most important elements are that the identification of the accused-person and the recovery of any of the articles for which decoity was committed. According to the learned counsel, the prosecution failed on both the accounts.
Although the prosecution claims that the appellants were identified in the test identification parade, but the fact remains that in his cross-examination, Kaluram has frankly admitted that the appellants were shown to him in the Police Station. According to him, at the relevant time both, he and Prem Chand, were in the Police Station. Hence, the subsequent identification of the appellants by Kaluram and Prem Chand, in the test identification parade, looses its significance. Moreover, even at the time of holding of the test identification parade, the appellants had informed the Magistrate that they were shown by the Police to the identifying witnesses namely Kaluram and Prem Chand. This statement of the appellants is further corroborated by the testimony of Salim Badar (PW-13). Furthermore, while discussing the test identification parade, the learned Judge has overlooked Kaluram’s cross-examination, which had knocked the bottom out of the prosecution story.
As far as the recovery of the articles, which were taken away by the appellants, is concerned, the said recoveries are equally suspected : firstly, no independent witness has been associated with the recovery of the blanket which belonged to Prem Chand, letter pad, and the papers of the truck. In all the recoveries only the police personnel have been associated with. Moreover, as far as the recovery of the letter pad is concerned, there is no mention about the fact that the letter pad was taken away by the appellants in Kaluram’s Parcha Bayan. Moreover, the recovery of the letter pad was not made before two independent witness, but before the police personnel. Therefore, the recovery itself is suspected. Furthermore, the proceedings of the test identification of the letter pad is not satisfactorily done. For, the test identification memo (Ex-P/19) does not reveal the type of letter pads which were mixed with the letter pad which was recovered from the appellant, Sharif. In fact, it is nowhere mentioned in the memo that letter pads mixed with the recovered letter pad were similar in shape, size or colour. According to the learned counsel, the letter pads of similar shape, size or colour should have been mixed in order to test the reliability of the identifying witness in identifying the correct letter pad. However, as the same was not done, the test identification parade with regard to the letter pad looses its significance. Hence, the identification of the letter pad does not connect the appellant Sharif to the alleged crime.
As far as the recovery of the papers of the truck is concerned, the learned counsel has contended that surprisingly, the said papers were recovered upon a joint statements given by all the three accused-persons under Section 27 of the Evidence Act. However, in the case of Mohd. Abdul Hafeez Vs. State of Andhra Pradesh [(1983) 1 SCC 143], the Apex Court had held that joint statements under Section 27 of the Evidence Act are not permissible. Moreover, even the recovery of these papers were not witnessed by independent witnesses, but only by Police personnels. Furthermore, the said papers were recovered from open space. Therefore, the recovery of the said papers does not connect the appellants to the alleged offence.
Lastly, the prosecution has not been able to prove its case beyond a reasonable doubt. According to the learned counsel, a conviction cannot be based on suspicion, no matter how strong the suspicion may be.
On the other hand, Mr. Javed Chaudhary, the learned Public Prosecutor, has contended that according to Prem Chand (PW-2), initially three to four persons had surrounded the truck, but subsequently, six to seven other persons had gotten down from the dumper. Moreover, according to the Investigating Agency, they had left the investigation open against nine other persons. Thus, the prosecution had come with a case that five or more than five persons were involved in the said incident. Hence, the offence under Section 395 IPC was clearly made out.
Secondly, as far as the identification of the miscreants are concerned, although it is true that Kaluram, in his testimony, had admitted that the appellants were shown to them in the Police Station, but Prem Chand does not corroborated this statement in his testimony. Prem Chand has identified both accused persons, Sharif and Sakir. Therefore, identify of two of the appellants is well established.
Thirdly, it was not necessary for Kaluram to mention in his Parcha Bayan that the letter pad had also been stolen by the appellants. It is sufficient that he had mentioned this fact in his testimony before the court. Moreover, the said letter pad was correctly identified by Kaluram in the test identification parade. Therefore, the articles, which were stolen, were correctly identified. Hence, sufficient evidence does exist to connect the appellants to the alleged crime.
Heard the learned counsel for the parties and perused the impugned judgment and examined the record of the case.
The burden of proving a case beyond a reasonable doubt lies on the prosecution. It is, indeed, trite to state that the distance between may be true and must be true is a long distance which the prosecution has to cover by itself. Each facet of the case has to be established by cogent and convincing evidence. Suspicion, no matter how strong, cannot form the basis of a conviction. For, to convict a person merely on the basis of grave suspicion tantamounts to a moral conviction and not to a legal one. Therefore, while analysing the evidence produced by the prosecution, the court has to be careful in examining the quality of the evidence produced by the prosecution. The prosecution cannot be given the luxury of leaving different strands of the case untied. It is the duty of the prosecution to tie all the strands together and to establish its case beyond a reasonable doubt.
As far as the number of miscreants, who were allegedly involved in the commission of crime, are concerned, there are two sets of evidence before the court. On the one hand, Kaluram (PW-1), in his Parcha Bayan, has claimed that there are only three to four persons involved in the incident. In his testimony before the court, he was absolutely silent on this point. However, in his examination-in-chief, he does state that Parcha Bayan as recorded by the Police was given by him. Thus, he not only proves the Parcha Bayan, but also verifies the contents of the Parcha Bayan as being true. Hence, according to him, there were only three to four persons who were involved. On the other hand, according to Prem Chand (PW-2), there were as many as eleven persons who were involved, three to four who had come to assail, and six to seven, who had merely gotten down from the dumper. Interestingly, while Kaluram describes assailants in his Parcha Bayan, Prem Chand, both in his statement under Section 161 as well as in his testimony, does not describe the culprits. Curiously, although Kaluram has verified the contents of Parcha Bayan whereby the number of assailants is given as merely three to four, he has not been declared as hostile by the prosecution. Thus, the trial court was duty bound to accept the evidence of a witness who by his testimony knocked the bottom out of the case of the prosecution. Instead, the learned trial court has erred in accepting the testimony of Prem Chand (PW-2) in order to conclude that more than five persons were involved. Since only three to four persons were involved at best, the ingredient of Section 395 IPC requiring the presence of five or more persons is not made out in the present case. It is equally pertinent to note that initially the FIR was registered under Section 382 IPC and not under Section 395 IPC. Hence, the learned Judge has committed an illegality in convicting the appellants for offence under Section 395 IPC.
As far as the identification of the appellants is concerned, again two sets of evidence exist. In his cross-examination, Kaluram (PW-1) clearly admits that when the appellants had left him and Prem Chand, they did not know the names of the appellants. When the Police arrested the appellants, the Police told the names of the appellants to Kaluram. He further claims that he did not reveal the names of the appellants to the Police as he did not know their names. He again reiterated in his cross-examination that when the Police arrested the appellants, then the Police told him about their names. He further claims that these names were revealed to him in the Police Station. He emphatically states that when the Police arrested the appellants and brought them to the Police Station, Kaluram and Prem Chand were shown the appellants at the Police Station. These frank admissions clearly reveal that the appellants were shown to Kaluram and Prem Chand at the Police Station itself.
The fact that the appellants were shown to Prem Chand at the Police Station is denied by Prem Chand in his cross-examination. However, his denial is contrary to the emphatic and positive statement made by Kaluram. Interestingly, even when the appellants were shown to Prem Chand and Kaluram in the test identification parade, they also told the Magistrate that they were shown to the identifying witnesses at the Police Station. The appellants’ statement is clearly recorded in the test identification memo. Moreover, Salim Badar (PW-13), the Magistrate who conducted the test identification parade, also states in his testimony that the appellants had informed him that they were shown to Kaluram and Prem Chand at the Police Station. Considering the admission made by Kaluram an admission which is fatal to the prosecution case, considering the statement of the appellants recorded in the test identification memo, considering the testimony of Salim Badar (PW-13), this court has no hesitation in concluding that in fact, the appellants were shown to the identifying witnesses at the Police Station itself. Therefore, their subsequent identification by Kaluram and Prem Chand looses all its significance.
As far as the recovery of letter pad is concerned, it is not necessary that all the articles were stolen from Kaluram should have been narrated by him in the Parcha Bayan. The fact that he did not narrate about the letter pad being stolen looses its significance as the said letter pad was recovered from Sharif Khan at the moment of his arrest. However, while sending the said letter pad to the identification parade certain procedure has to be observed. The said letter pad had to be mixed with other letter pads of similar shape, size and colour. But there is no evidence on record to show that the said procedure was followed during the test identification parade of the letter pad. Hence, the identification of the letter pad by the identifying witnesses becomes doubtful. Therefore, the said identification does not connect the appellants to the alleged crime. As far as the recovery of the papers of the truck is concerned, surprisingly no independent witnesses were associated with the said recovery. Such non-association of independent witnesses casts doubt about the authenticity of the said recovery. Moreover, the papers were recovered from an open space. Therefore, the recovery looses its significance or its importance. Hence, even this recovery is unable to connect the appellants to the alleged offence.
In this view of the matter, the appeals succeed. The judgment dated 3.8.2007 is, hereby, quashed and set aside. The appellants, who are behind the bars, shall be set at liberty forthwith, if not wanted in any other criminal case.
(R.S. CHAUHAN) J.
Manoj solank