Criminal Appeal (S.J) No.1275 of 2006
With
Criminal Appeal (S.J) No.1374 of 2006
---
Against the judgment of conviction and order of sentence dated
30.8..2006 and 31.8.2006 passed by Additional Sessions Judge,
FTC-II, Seraikella in S. T. No.75 of 2004.
—-
1. Laltu Sardar
2. Gandhi Modi
3. Mano Sardar ……….. Appellants ( in Cr.App No.1275 of 2006)
1.Sushen Kaibarta
2.Sumanto Tanti ………..Appellants ( in Cr.App.No.1374 of 2006)
VERSUS
State of Jharkhand ………………………………………….. Respondent
For the Appellants: Mr. Ananda Sen
For the State : M/s.Jagarnath Mahato and Tapas Roy
P R E S E N T
THE HON’BLE MR. JUSTICE R. R. PRASAD
C.A.V on 12.10.2009 Pronounced on 5 .11.2009
R.R.Prasad, J. Both these appeals arising out of the same impugned
judgment were heard together and are being disposed of by this
common judgment.
These appeals are directed against the judgment of conviction
and order of sentence passed by Additional Sessions Judge-cum-
FTC, Seraikella in Sessions Trial No.75 of 2004 whereby and
whereunder the appellants Sushen Kaibarta and Sumanto Tanti on
being found guilty for an offence under sections 395 and 397 of the
Indian Penal Code and also under section 27 of the Arms Act were
sentenced to undergo rigorous imprisonment for ten years and
seven years respectively for the offence under sections 395 and
397 of the Indian Penal Code. They were also sentenced to pay
fine of Rs.1000/-. Further they were sentenced to undergo rigorous
imprisonment for three years and to pay a fine of Rs.1000/- for an
offence under section 27 of the Arms Act and in default to undergo
simple imprisonment for five months. Both the sentences were
2
ordered to run concurrently whereas other appellants, namely,
Laltu Sardar, Gandhi Modi and Mano Sardar on being found guilty
for an offence under section 395 of the Indian Penal Code were
sentenced to undergo rigorous imprisonment for ten years and to
pay fine of Rs.1000/-.
The case of the prosecution is that on 27.2.2004 while the
informant Jhari Lal Soni (P.W.2) was returning his house from Sini
Market along with his brother Ravindra Nath Soni (P.W.3) on a
Motor Cycle driven by his brother and reached at about 9.15 p.m.
near Krishnapur Nala, they were accosted by five persons in the
way. Of them, two were holding firearms, who asked them to stop
but Ravindra Nath Soni (P.W.3) instead of stopping accelerated the
speed of the Motor Cycle but in the meantime, one of them fired
shot which hit on the wrist of the left hand of Ravindra Nath Soni
(P.W.3), as a result of which they fell down from the Motor Cycle
and then again tried to flee from there but at the same time
another miscreant fired shot which hit on the left hand of Ravindra
Nath Soni (P.W.3). In spite of that, they fled towards village by
raising alarm. On hearing alarm, villagers by the time came over
there the miscreants fled away by taking the Motor Cycle. When
the villagers assembled, they rushed in the same direction in which
accused persons had fled and after going to some distance, they
found the Motor Cycle lying behind the bush which was recovered.
Thereafter the injured Ravindra Nath Soni (P.W.3) was taken to
Seraikella Sub-Divisional Hospital where Officer-in-Charge of
Seraikella Police Station came at about 1 a.m. in the night and
recorded Fardbeyan (Ext.1) of Jhari Lal Soni (P.W.2) wherein he
stated that he could identify two miscreants, namely, Sumanto
Tanti and Mano Sardar. Upon which a case was registered and the
investigation was taken by Narayan Das (P.W.8), who received
3
information at about 2.45 a.m. while coming to the place of
occurrence that miscreants have assembled in the house of Mano
Sardar. Accordingly, he along with other police officials raided the
house of Mano Sardar where they found four persons to whom the
informant Jhari Lal Soni (P.W.2) who had also accompanied them
identified them as the culprits, who had committed offence and the
miscreants disclosed their name as Mano Sardar, Sushen Kaiberta,
Laltu Sardar and Gandhi Modi. On personal search being made,
Sushen Kaiberta was found in possession of a loaded pistol which
was seized under seizure list. Thereafter all the apprehended
persons confessed their guilt which were reduced in writing.
In course of investigation, the injured Ravindra Nath Soni
(P.W.3) on being admitted to Seraikella Sub-Divisional Hospital
was examined by Dr.Viva Soren (P.W.7), who found gunshot
injuries over the left forearm and palm. The said injury report has
been proved as Ext.4.
It appears that the injured on being referred to TMH for
further treatment was examined by Dr.Nitya Nand Jha (P.W.6),
who also found the gunshot injuries on the left forearm and left
upper arm and accordingly, issued injury report (Ext.3).
After completion of investigation, the police submitted
charge sheet against the appellants, upon which cognizance of the
offences was taken and in due course, when the case was
committed to the court of sessions, charges were framed to which
the appellants pleaded not guilty and claimed to be tried.
The prosecution in order to prove the case examined as
many as eight witnesses. Of them, P.W.2, Jhari Lal Soni is the
informant and P.W.3, Ravindra Nath Soni is the injured, who
supported their case that all the five miscreants accosted them in
the way when they were returning home from Sini Market. Two of
4
them caused injury to Ravindra Nath Soni (P.W.3) and then took
away the Motor Cycle. Both the witnesses identified all the five
accused persons as the miscreants, who had participated in the
occurrence. P.W.1, Harilal Soni is the brother of the informant Jhari
Lal Soni (P.W.2), who when was informed by the informant came
to the place of occurrence and took the injured along with others to
Hospital. He was told by his brother that he had identified two of
them, namely, Sumanta Tanti and Mano Sardar. Other witnesses
P.W.4 Ramesh Mahato and P.W.5 Lalka Mahato have been declared
hostile.
The trial court having found the testimonies of the
witnesses trustworthy did find all the appellants guilty and
accordingly, recorded the judgment of conviction and order of
sentence as aforesaid.
Learned counsel appearing for the appellants submits that as
per the fardbeyan of the informant, he could identify only Sumanta
Tanti and Mano Sardar and, therefore, the case was registered
against them and other unknown persons but the trial court, apart
from them, convicted other three appellants, who had never been
put on test identification parade, though in course of evidence, the
witnesses P.Ws. 2 and 3 had identified in the court but such
identification will have little value in absence of any test
identification parade being conducted by the Investigating Officer,
though it is said that when Investigating Officer apprehended four
persons, the informant (P.W.2) who allegedly was along with
raiding party, identified them but that identification will have no
value as accused persons, who were suspected to have committed
offence should have put on test identification parade which is being
conducted after observing certain paraphernalias but the
Investigating Officer never put them on test identification parade
5
presumably for the reason that the informant had identified the
accused persons at the time of their arrest and in that view of the
matter, the trial court should not have convicted those persons,
who were never named in the first information report nor were put
on test identification parade.
Learned counsel further submits that there has been no
definite evidence as to who caused firearm injuries to the injured
(P.W.3) in course of commission of alleged dacoity and in spite of
that, the appellants Sumanta Tanti and Sushen Kaiberta have been
convicted under section 397 of the Indian Penal Code and section
27 of the Arms Act apart from section 395 of the Indian Penal Code
which was quite illegal as had there been any evidence against
those two appellants for causing injury in course of commission of
dacoity, then they could have been convicted under section 397 but
not for both the offences, i.e, under sections 397 and 395 of the
Indian Penal Code and in that view of the matter, the impugned
judgment suffers from illegality and is fit to be quashed.
Having heard learned counsel appearing for the parties and
on perusal of the record, I do find that while the informant Jhari lal
Soni (P.W.2) was returning home from Sini Market along with his
brother Ravindra Nath Soni (P.W.3) on a Motor Cycle, they were
accosted in the way by five miscreants, of them two namely,
Sumanta Tanti and Mano Sardar were identified by the informant
Jhari Lal Soni (P.W.2) as well as by Ravindra Nath Soni (P.W.3)
When they were asked to stop, they tried to flee from there by
accelerating the speed of the Motor Cycle and then as per the
fardbeyan, some of the miscreants fired shot which hit Ravindra
Nath Soni (P.W.3), as a result of which, they fell down and then
they again tried to flee from there and again someone
6
fired shot causing another injury and then they took away the
Motor Cycle.
It would be significant to note that neither Jhari Lal Soni
(P.W.2) in his fardbeyan nor Ravindra Nath Soni (P.W.3) in his
statement made under section 161 of the Code of Criminal
Procedure had stated that those two persons had fired shots.
Further I do find that apart from Sumanta Tanti and Mano
Sardar, none of the three appellants had been named in the
fardbeyan. However, they have been identified in the court, though
they had never been put on test identification parade but as per
the case of the prosecution, they had been identified by the
informant while they were arrested from the house of Mano Sardar.
Therefore, the question for consideration would be as to whether in
such situation, the trial court is justified in holding the appellants
particularly those persons who were not named in the first
information report guilty.
There has been no denying of the well settled principle that
identification made by the witnesses during trial is primary and
substantive evidence in the case. An identification parade belongs
to the stage of investigation by the police. Like any other evidence
procured during investigation, a test identification parade and
result thereof can be utilized either for corroboration or for
contradiction. Being some evidence procured during investigation,
certainly it will not be a primary or substantive evidence during
trial. There may be cases where identification of the assailants is
more probable either because the occurrence takes place during
day time or because there is otherwise sufficient light to detect the
assailants or due to proximity of the victims with the assailants or
due to prolongation of the entire occurrence. That apart,
circumstances may be made out whereby it could be held that the
7
assailants were easily identifiable. In those cases perhaps a test
identification parade may not be necessary. However, there may be
a case where circumstances are made out so that it may be
impossible to hold that the features of the assailants could be
noted by the witnesses and in such a case not only the
identification made during trial will be disbelieved but even the
supporting identification parade will also be disbelieved. In
between there are numerous cases where circumstances exist so
that it cannot be held with any amount of certainty as to whether
the witness could or could not see the assailants. These
circumstances may be due to paucity of light or time to identify a
person. In such a case where nothing definite can be inferred, the
mere identification by the witnesses made during trial may not be
considered sufficient. The Court will require corroboration of that
identification from a previously held test identification parade.
At this stage, I may refer to a decision rendered in a case of
Baikunth vs.State of Andhra Pradesh (AIR 1960 SC 1340)
where it has been held hereunder:
” It is also true that the substantive evidence is the
statement in court, but the purpose of test
identification is to test that evidence and the safe
rule is that the sworn testimony of witnesses in Court
as to the identify of the accused who are strangers
to the witnesses, generally speaking, requires
corroboration which should be in the form of an
earlier identification proceeding. There may be
exception of this rule where the Court is satisfied that
the evidence of a particular witness is such that it can
safely rely on it, without the precaution of an earlier
identification proceeding.”
In the background of the said principle if the present case is
considered, I do find that only two persons, namely, Sumanta Tanti
and Mano Sardar were named in the first information report and
their names were also disclosed by Jhari Lal Soni (P.W.2)
immediately after the occurrence to P.W.1, when P.W.2 informed
8
P.W.1 about the incident and according to P.Ws. 2 and 3, those
two persons were known from before to whom they identified in
the headlight of the Motor Cycle whereas other three appellants,
namely, Sushen Kaiberta, Gandhi Modi and Laltu Sardar, according
to evidences of both the witnesses, were never known and still
both the witnesses claimed in course of evidence to have identified
them, though occurrence took place in the night and according to
the case of the prosecution itself, none of the witnesses had
sufficient time to note the physical features of the other accused
persons. In that view of the matter, it was quite obligatory on the
part of the Investigating Officer to put those persons on test
identification parade, but they were never put on test identification
parade presumably for the reason that the informant did identify
them while the police in course of raid had apprehended them but
that procedure according to the aforesaid principle laid down by the
Hon’ble Supreme Court appears to be quite foreign to the scheme
of the Code of Criminal Procedure and under that situation, any
claim that those three persons had participated in the alleged
occurrence would hardly be believed. Thus, those three persons,
namely, Sushen Kaiberta, Gandhi Modi and Laltu Sardar can
certainly be said to have wrongly been convicted by the trial court.
However, taking into account the entire facts and
circumstances as discussed above, there appears to be no reason
for disbelieving the evidence of P.Ws. 1 and 2 so far it relates to
the culpability of the appellants, Sumanto Tanti and Mano Sardar
and hence, they have rightly been found to be guilty.
But the question would be as to whether the trial court was
justified in convicting the appellant Sumanto Tanti under section
397 of the Indian Penal Code and under section 27 of the Arms
Act? I have already noted that the informant in his fardbeyan has
9
never said that Sumanto Tanti was having firearm with him nor he
has been alleged to have fired shot. However, P.W.3 Rabindra Nath
Soni has testified that first shot was fired by Sushen Kaiberta and
the second shot was fired by Sumanto Tanti but this piece of
evidence does not find corroboration from the evidence of P.W.2 as
he has said that out of two, namely Sumanto Tanti and Sushen
Kaiberta, one of them fired shot. He has never disclosed as to who
fired shot. Under this situation, it would not be safe to hold that
Sumanto Tanti or Sushen Kaiberta had fired shot, as a result of
which P.W.3 sustained injuries.
Under the circumstances, the trial court does not appear to
be justified in holding Sumanto Tanti and Sushen Kaiberta guilty for
an offence under section 397 of the Indian Penal Code and section
27 of the Arms Act and, hence, that part of the judgment of
conviction and order of sentence is set aside.
In the result, the appellants, namely, Sushen Kaiberta,
Ganbdhi Modi and Laltu Sardar are acquitted of all the charges
levelled against them and are directed to be released forthwith, if
not wanted in any other case whereas Sumanto Tanti and Mano
Sardar have rightly been convicted for an offence under section
395 of the Indian Penal Code which is hereby affirmed.
Coming to the point of sentence it appears from the
judgment that both who are quite young do not have criminal
antecedent and that they as has been found earlier did not cause
injury to P.W.3 and that they faced rigor of trial since the year
2004 and thereby must have suffered mental agony and pain and
hence sentence imposed against them is reduced to rigorous
imprisonment for seven years which in the circumstances of the
case would amply meet the ends of justice. So far sentence of fine
is concerned that would remain intact.
10
In the result, both the appeals are allowed in part.
( R. R. Prasad, J.)
Jharkhand High Court, Ranchi,
The 5th November, 2009,
NAFT/N. Dev