Mrs. Sunita Agarwal, J.
1. Heard Sri Akhilesh Srivastava learned Amicus for appellant nos. 2 and 3 and Ms. Manju Pandey for appellant no. 1 and Sri Roopak Chaubey learned A.G.A. for the State respondents.
Introduction:-
2. The present appeal is directed against the judgment and order dated 9.1.2009 passed by the Additional District & Sessions Judge, Court No. 9, Bulandshahr in Sessions Trial No. 397 of 2006 arising out of Case Crime No. 292 of 2005 under Sections 394, 302, 307, 412 IPC, Police Station Jahangirabad, District Bulandshahr, whereby three appellants namely Lakhan @ Lakhan @ Akash, Rakesh and Satish @ Ajay have been convicted for the offence under Sections 394 and 302 read with Section 34 IPC and sentenced for life imprisonment for the offence under Section 394 IPC along with fine of Rs. 1 Lakh each, under Section 302 read with Section 34 IPC the appellants have been sentenced with life imprisonment and fine of Rs. 1 Lakh each. The appellants have also been convicted for the offence under Section 323 read with Section 34 IPC and sentenced for one year imprisonment with fine of Rs. 1,000/- each. It is provided that in case of default, the fine shall be recovered as arrears of land revenue and no arrangement for additional imprisonment was being made in the case of default. The fine was required to be disbursed to the family of the victims and the victims as well. All the punishments are to run concurrently.
The first information report and the investigation:-
3. The first information report of the incident was lodged by Prem Jeet Singh, examined as PW-3 that on 24.10.2005, he along with his wife Mamta @ Bittan and his uncle Mahipal Singh was coming back from the house of his brother-in-law Kalyan Singh from village Bavanpur to his own village. At about 7:30 PM, at Rjapur Bambe ki Puliya ahead of village Chandauk, four miscreants had intercepted his motor cycle on the strength of hockey, country made pistol, rifle and iron rod. One miscreant had attacked the informant with the rifle butt and another on his head and he became unconscious and fell on the ground. The miscreants had looted Rs. 880/- from the pocket of the informant and Rs. 300/- from the purse of his wife and also the earrings, gold chain, silver ornaments of his wife and ran away towards Sikarpur by looting motorcycle of the informant. On getting consciousness, the informant saw a scooter lying on the spot and two persons in injured state were lying there. It is stated in the written report that the informant had identified the miscreants in the light of the motorcycle and he could identify them. On the written report given by the informant, Check FIR was prepared and the report was registered at 8:15 PM on 24.10.2005 itself. The place of the incident indicated in the Check FIR is the Jungle of village Chandauk, 5 kms. South of the police station.
4. The fact of lodging of the first information report was proved with the statement of PW-11, Check writer who was posted in the police station Jahangirabad on 24.10.2005. He stated that he had prepared the Check report on the written report given by the informant Prem Jeet Singh and the Check report had been proved as Exhibit Ka-‘13’, being in his handwriting and signature. The GD entry at Rapat No. 28, Time 20:15 hours of the FIR made on 24.10.2005 was proved by bringing the original GD in the Court, exhibited as Exhibit Ka-‘14’.
Out of two injured lying on the spot of the incident, one injured Sunil Sharma had been examined as PW-2 whereas another injured Dinesh Sharma had died on 24.10.2005 in the hospital. It is proved by PW-1 that on receipt of information of death of injured Dinesh, G.D. entry at Rapat No. 29, Time 22:30 hours of the offence under Section 302 IPC was made, which was proved as Exhibit Ka-‘15’ by bringing the original GD in the Court.
5. In cross, PW-11 stated that when the informant came to the police station, he was conscious and his wife and one Mohan Lal were accompanying him. The suggestion that the police had brought the informant from the spot and the report was dictated by the police to the informant was denied by PW-11.
6. PW-12 is the first Investigation Officer who deposed that he was posted in the police station Jahangirabad on 24.10.2005 and received investigation of Case Crime No. 292/05 under Section 394 IPC. After recording the statement of the informant in the CD, he inspected the spot of the incident at the pointing out of the informant, the site plan was proved as Exhibit Ka-‘16’, being in his handwriting and signature. The recovery memo of Cartridge Shell of 315 Bore recovered from the spot of the incident had been proved as Exhibit Ka-‘17’, being in the handwriting and signature of PW-13. A sealed bundle was opened in the Court and one Cartridge Shell 315 Bore was taken out from the same, marked as Material Exhibit-‘1’. The recovery memo of blood stained and plain earth recovered from the spot was proved as Exhibit Ka-‘18’. The sample of the same was proved as Material Exhibit-‘3’ and Material Exhibit-‘4’.
It is stated by PW-12, the Investigating Officer that the inquest of deceased Dinesh was conducted in the District Hospital on 25.10.2005 and the same was proved being in his writing and signature as Exhibit Ka-‘19’. The related papers to the inquest were proved as Exhibits Ka-‘20’ to Ka-‘24’. PW-12 deposed that the injury report of injured Sunil Kumar Sharma was entered in the Case Diary on 31.10.2005 and all other papers were also entered therein. The investigation, was, thereafter, transferred under the orders of the Senior Officers.
In cross, PW-12 stated that he had proceeded to the place of the incident at about 8:45 PM along with three police personnel and the informant. It took about two hours in compliance of the proceedings on the spot and, thereafter, he reached at the District Hospital at about 11:00 PM to conduct the inquest. He returned to the police station on the next day, i.e. 25.10.2005 in the evening from the hospital, however, time of arrival at the police station could not be remembered by PW-12. On confrontation, PW-12 categorically stated that the case was registered in his presence and denied the suggestion of conducting the proceeding while sitting at the police station.
7. PW-1 is the witness of inquest. He stated that the inquest of dead body of Dinesh Sharma was prepared at the Mortuary, District Hospital on 25.10.2005 by the police and the witnesses in his presence. The body was sealed and sent for postmortem and the inquest report was prepared on the spot. PW-1 had identified his signatures on the inquest report and stated that it was the same report which was prepared by the Investigating Officer. In cross, the suggestion given to PW-1 that he had signed the inquest report at the police station was refuted by him.
8. Before proceeding further, we may record that a report dated 27.2.2006 was submitted by one Mukesh Kumar, examined as PW-6, about the information of death of Dinesh Chandra Sharma wherein endorsement of Station House Officer could be found.
9. PW-7 is the second Investigating Officer who deposed that the investigation was received by him from PW-12 (Sub-Inspector Satyendra Kumar) on 9.11.2005. PW-7 had also recorded the statement of PW-12 on 10.11.2005 who had prepared the inquest of deceased Dinesh. On 6.1.2006, the statement of son of deceased Dinesh Chandra Sharma was recorded who gave the details of the mobile number and IMEI number of the mobile of the deceased which was looted in the incident.
(i) Arrest and recoveries:-
10. On 10.1.2006, information was received about the arrest of the accused Rakesh and Satish and that accused Satish @ Ajay had confessed the commission of crime in the territorial area of Police Station Jahangirabad. On this information, PW-7 reached at the police station Raghupura, District Gautam Budha Nagar and interrogated Satish @ Ajay and Rakesh. They admitted their guilty and involvement in the incident occurred on 24.10.2005. It is stated by PW-7 that he recorded the statement of accused Rakesh and Satish whose faces were covered. They made the statement that they could recover motorcycle, mobile phone and the looted jewellery, but in the meantime the report of the arrest of accused Lakhan at P.S. Raghupura was received on 14.1.2006 through telephone. PW-7 also recorded the statement of accused Lakhan in P.S. Raghupura who admitted his guilt and stated that he could recover the looted articles. After completion of the necessary formalities to take remand of three accused persons from the Court, while their faces were under veil, on 10.2.2006, recovery of Nokia mobile had been made at the pointing out of accused Rakesh. The recovery memo was prepared on the spot. On the same day, the recovery of one gold chain with locket and one pair of earring was also made at the instance of accused Rakesh. The recovery memo was prepared on the spot. On 10.2.2006 itself, looted motorcycle was recovered from a house at the instance of accused Lakhan @ Akash at about 17:10 hours and the recovery memo was prepared in that regard.
11. Three recovery memos prepared by S.I. A.M. Chaudhary on the dictation of PW-7 had been proved as Exhibits Ka-‘5’, Ka-‘6’ and Ka-‘7’ being under the signature of PW-7. The recovery memos of the place of recovery being in the handwriting and signature of PW-7 were proved as Exhibit Ka-‘8’ and Ka-‘9’. It is deposed by PW-7 that the process of identification parade of three accused persons was conducted on 21.2.2006 at the District Jail Ghaziabad and identification of the looted article was conducted on 22.2.2006, after giving information to three accused persons about the said process on 14.2.2006. On 5.3.2006, the statements of the Magistrates who had conducted the identification process were recorded and after completion of the investigation, on the basis of evidence on record, the charge sheet was submitted against three persons namely Lakhan, Rakesh and Satish, which was proved as Exhibit Ka-‘10’ being in the handwriting and signature of PW-7.
12. In cross, PW-7 stated that he had entered the information with regard to the telephone call received from the Police Station Raghupura in the GD. However, telephone number had not been disclosed in the Case Diary. The suggestion that no information was received about the arrest of three accused persons from Police Station Raghupura and the entire proceedings were conducted on the basis of a newspaper report was categorically denied by PW-7. PW-7 was further confronted about the arrest of the accused persons at Police Station Raghupura and that they were not kept in veil. PW-7 categorically stated that two accused persons namely Rakesh and Satish arrested on 10.1.2006 were in veil in the lockup and they were brought in the Court to seek remand while in veil. He stated that he requested for the remand in veil from the Court and he was personally present in the Court along with the Case Diary at the time of remand. The suggestion that the accused persons were shown to the witnesses prior to their identification when they were brought in the Court was categorically refuted by PW-7. Further suggestion that the accused persons were shown to the witnesses in the police station on 9.2.2006 before identification parade was also refuted by PW-7.
The suggestion that recovery memo was not prepared on the spot was refuted by PW-7 and it was stated that the thumb impression of accused Rakesh was also taken in the recovery though it was mentioned therein that the signature of the accused person was obtained. The site plan of the place of recovery was prepared on 10.2.2006 at the pointing out of the informant and recovery at the instance of accused Rakesh and Satish was made from one house. The recovered articles were not in the Court on the date of deposition of PW-7. The manner in which the recovery was conducted by PW-7 was narrated by him and it was added that the people present at the place of recovery were not ready to sign the same. The site plan of the place of recovery was prepared at the pointing out of the accused persons. The suggestion about the recovery being farce was refuted by PW-7.
13. PW-9 is the witness of recovery of looted articles at the instance of three accused persons. Recovery of mobile at the instance of accused Santosh and jewellery at the instance of accused Rakesh from one room which was said to have been taken on rent by them were proved by him. Both the recoveries were made from one Almirah kept in a room. PW-9 deposed that the recovery memo was scribed by him on the dictation of S.H.O., Chandra Pal Singh (PW-7). No witness of public was ready to give testimony and the recoveries were made during day time between 10- 11 AM. The recovery memos Exhibits Ka-‘5’ and K-‘6’ were shown to this witness and he proved them being in his handwriting. He stated that the signatures of the accused persons were obtained on the spot at the recovery memo. The recovery of motorcycle at the instance of accused Lakhan @ Lakhan was also proved by PW-9 with the statement that the said recovery was made from the house of one Siraj son of Shaki Jaan, resident of Kuleshara, Mulla Colony, Surajpur, District Gautam Budha Nagar at about 17:10 hours.
The recovery memo was scribed by him on the dictation of PW-7 and he had identified his writing on Exhibit Ka-‘7’ when shown to him in the Court and proved that the signatures of other witnesses were also present on the same.
In cross, PW-9 stated that there were 50-20 people in the crowd collected on the spot at the time of recovery but no one came forward to become a witness. PW-9 was further confronted about the identification of the recovered articles and stated that they were not in the Court at the time of his deposition. The suggestion that the recovery was not made in his presence was refuted by PW-9. A Nokia Mobile-1100 was shown to this witness in the Court in his deposition on 30.4.2008 and he had identified it as the same article recovered from the house at the instance of accused Satish on 10.2.2006, which was marked as Material Exhibit-‘4’. He was further confronted about the identification of the mobile and refuted the suggestion that it was not the same article recovered during the investigation. A categorical statement was made by PW-9, in cross, that the informant was not accompanying them at the time of recovery. He also stated that no receipt of purchase of the mobile was given by the family members of the deceased nor any of them had identified the recovered mobile set.
(ii) Supplementary information:-
14. PW-6 is the brother of deceased Dinesh Chandra Sharma. He has proved the report given by him in writing about the death of Dinesh Chandra Sharma and injury caused to Sunil Sharma (PW-2). The contents of the report filed by him in his handwriting and signature has been proved in his examination-in-chief and the report was marked as Exhibit Ka-‘4’. From the endorsement on the report, Exhibit Ka-‘4’ in the original record, it is found that the S.H.O. had forwarded the said report on 4.11.2005 to the Investigating Officer Satyendra Kumar (PW-12).
PW-6 was confronted about the filing of the said report. In cross, he stated that the said report (Exhibit Ka-4) was scribed by him at the police station and the contents thereof were intimated to him by his nephew. He got the information of the incident at about 08:50 hours and reached at the Bulansdhahr Hospital where he found that his brother was dead. He met his nephew at Bulandshahr Hospital. He further stated that he did not remember as to when exactly he gave the said report, i.e. as to how many days prior to 4.11.2005. However, the suggestion that the said report was given by him on 4.11.2005 at the police station and that the report was dictated by the police was refuted by PW-6.
(iii) Identification of the accused:-
15. PW-8 Sarita Singh is the witness of the identification of the accused persons. She stated that she was posted as Additional City Magistrate in the District Ghaziabad on 22.2.2006 and was deputed for identification. The identification parade of accused persons Rakesh, Lakhan & Satish was conducted on 22.2.2006 at the District Jail, Ghaziabad. Three accused persons were intermingled with 10-10 persons and were made to stand in three rows. The marks of identification of the person of accused were concealed and they were identified one by one by the witnesses Prem Jeet Singh and Smt. Mamta. Both the witnesses had identified three accused persons correctly by pointing towards them. On the identification memo, thumb impressions and signatures of accused persons and witnesses were taken. The identification memo was proved by PW-8 being in her handwriting and signature and having been prepared by her at District Jail, Ghaziabad. It is deposed by PW-8 that before asking the witnesses and accused to put their thumb impressions and signatures, contents of the identification memo were read over to them. PW-8 was confronted about the care taken by her to conceal the visible identification marks of the accused person. She had proved that the exercise was duly conducted and other persons in the test identification parade with accused Lakhan were of the same age, built and complexion. The suggestion that the identification parade was not conducted in her presence and it was not conducted in a proper manner was refuted by PW-8.
(iv) Identification of recovered Articles:-
16. PW-10 is another officer who had proved identification of the looted articles. She stated that she was posted as S.D.M. at Bulandshahr on 21.2.2006 and S.I. R. C. Sharma brought a sealed bundle and the witnesses in the Court. The sealed bundle contained two earrings and one gold chain which were mixed with similar jewelleries (five in number) and were got identified from the witnesses Prem Jeet and Mamta, who had correctly identified the articles taken out from the sealed bundle. The identification memo was prepared on the spot and was read over to the witnesses before their signatures and thumb impressions were obtained. The identification memo was proved in the handwriting and signature of PW-10 as Exhibit Ka-‘12’. On confrontation, PW-10 stated that the jewelleries which were mixed with the looted articles were brought by a government contractor and they were similar to looted articles which had no specific marking. The sealed articles were brought by the police. The suggestion that the identification of looted articles was not conducted in a proper manner and the memo was prepared on the asking of the police was refuted by PW-10. She, however, stated that she did not remember whose seal was on the bundle but stated that the bundle of looted article was sealed and the identified articles were similar to other articles.
(v) Postmortem and Injuries:-
17. Amongst the formal witnesses, PW-4 had proved the postmortem report of deceased Dinesh Kumar Sharma. He stated that the dead body was brought in a sealed state by the police personnel. The sample seal was tallied and the dead body was identified by the police personnel who brought it.
From external examination, the estimated age of deceased was 46 years, it was average built body, rigor mortis was present over the entire body. The ante mortem injuries found on the person of the deceased are:-
“1. A gun shot wound of entry 2cm x 1.5cm x cavity deep present over left side of chest, anterior & lateral aspect of left chest, 5cms away from left nipple at 3 O’clock position margins are lacerated & inverted. B/I is not an exploration, and chest wall, 5th rib (left) fractured, left lacerated left diaphragm lacerated, medial lobe of liver lacerated & large intestine, lacerated & posterior wall of abdomen and abdomen aorta also lacerated. A metallic bullet recovered from posterior abdominal wall of right side.”
On internal examination of the wound, the chest membrane was lacerated, fifth rib on the left side was broken. The left lung was lacerated and diaphragm on the left side was fractured. On internal examination, left side of liver, small intestine and large intestine were lacerated. Aorta of abdomen wall were lacerated. One metal bullet was found inside the abdomen. The direction of wound was from front and left to downwards. Heart chamber was empty. The abdominal cavity was filled with blood and 150 m.l. liquid matter was found in the stomach.
All articles recovered during the course of the postmortem were sealed and handed over to the police personnel in sealed state who brought the dead body.
PW-4 stated that the metal bullet which was in two parts kept in a sealed envelop was handed over to the police personnel along with the postmortem report. The cause of the death was shock and hemorrhage. The ante mortem injuries were sufficient to cause death, the estimated time of death was 3/4 days prior to the time of the postmortem. The postmortem report was proved being in handwriting and signature of PW4 as Exhibit Ka-‘2’. He stated in his examination-in-chief that the death could possibly have occurred on 24.10.2005 at about 7:30 PM and injury no. 1 was sufficient to cause death.
In cross, PW-4 was confronted about the time of the injury and the distance from which the deceased was hit by firearm.
18. PW-5 is the witness of injuries of Prem Jeet Singh son of Kunwar Singh, the informant (examined as PW-3). He stated that the injured Prem Jeet Singh (PW-3) was brought to him at the Community Health Center, Jahangirabad, Bulandshahr on 24.10.2005 at about 08:40 PM by police personnel. The injury found on the person of PW-3 were as under:-
“Lacerated wound 4cm x 1 cm muscle deep on the left side face, 2cm below from the left eye. Swelling around whole left side face. Margin irregular. Fresh bleeding present”.
The injured had complaint of ‘Nausea’ at the time of investigation. The injuries were kept under observation and X-ray was advised. The medico legal report of injured Prem Jeet Singh (PW-3) had been proved by PW-9, being in his handwriting and signature as Exhibit Ka-‘3’. It was stated by PW-9 in the examination-in-chief that the injuries could possibly have occurred on 24.10.2005 at about 7:30 PM, by hard blunt object like 'Danda', 'Butt' and 'Sariya'.
In cross, PW-5 stated that the nature of injuries whether they were simple or serious could have been ascertained only on perusal of the X-ray report which was not placed before him. However, the injuries were not fatal and could have occurred from hard blunt object, not by sharp-edged weapon. Injuries were fresh and could have been caused 2-4 hours prior to the investigation.
(vi) Prosecution witnesses of fact:-
19. After going through the testimony of formal witnesses, we are required to consider the deposition of the witnesses of fact, PW-2 and PW-3 who were produced in the witness box as injured witnesses. PW-2 Sunil Sharma deposed that on 24.10.2005, he and his friend Dinesh Sharma went to the Sugar factory near Pahasu in relation to their business by a Scooter while they were coming back from the factory to Sikarpur via road through Chandauk at about 6:05 PM, they bought petrol at Sikarpur. The Scooter was being driven by his companion Dinesh Sharma. When they reached about 1/2 km away from the village Chadauk, three people came out of ambush. The place of the incident was further clarified being ahead of Jakhaita Canal somewhere near the brick-kiln. Three persons had opened fire on his companion Dinesh Sharma and he (PW-2) was given blow of a hard iron object in his head. Both of them fell from the Scooter and, thereafter, PW-2 was beaten by three persons, he got unconscious on account of the injuries sustained in his head. The miscreants looted his wrist watch, purse, hand bag and mobile, money and wrist watch of his companion. The miscreants were between the age of 20-25 years. Six to seven persons standing in the Court were shown to this witness and he had pointed towards three persons to state that they had committed the offence and assaulted him. When three persons identified by PW-2 were enquired in the Court, they had disclosed their names as Satish, Lakhan and Rakesh. It is stated by PW-2 that his companion, Dinesh Sharma had sustained firearm injuries and he sustained serious injuries on his head at the spot of the incident. He (PW2) gained consciousness on 26.10.2005 at Yashoda Hospital, Ghaziabad and then he was told by his family members that the police had taken him to the Government Hospital, Bulandshahr initially, wherefrom he was referred to Yashoda Hospital, Bulandshahr. The injured PW-2 filed the discharge summary of the Yashoda Hospital in the Court wherein the date of discharge was mentioned as 30.10.2005.
20. On confrontation by the defence, PW-2 stated that he had left his house in the morning at about 12:00 noon, met Dinesh Sharma at Jahangirabad, where he went by his motorcycle. From Jahangirabad, they (he and the deceased) left for Pahasu at around 1:00 PM and reached there by 2:30 PM. They stayed in the mill for about 2-1/2 hours, where they met the Senior Sugarcane Manager, Rathi. He further stated that he and the deceased were not partners. They reached Sikarpur at around 6:00 PM and after buying petrol, they left for Jahangirabad straightaway. The incident of assault and loot had occurred at around 6:25 PM. Two miscreants came out from ambush from the left side whereas one from the right side and they came from the side of Puliya. The miscreants first opened fires at the deceased (Dinesh Sharma) which hit him and he fell from the scooter.
PW-2 further stated that when he fell on the ground, his head was not banged at the road and then stated that he could not handle the scooter and fell on the road. By the time, he could see the condition of deceased Dinesh, the miscreants had attacked him by a heavy iron object in his head and he became unconscious. After that he did not know as to what had happened, who took him and deceased Dinesh to the police station and hospital. PW-2 further stated that it was not dark when the incident had occurred and he got consciousness on 26.10.2005. Though the police came to him on 26.10.2005 but the doctor had advised him not to speak. His family members informed him as to how he was brought to the hospital. PW-2 further stated that he sustained injuries on right ear, knees and right hand apart from head. The suggestion that he sustained injuries on head because of the accident wherein scooter got banged with the stone or Puliya and fell down, was refuted by PW2. He also refuted the suggestion that no incident of loot or assault had occurred.
PW-2 further stated that he had reached home from the hospital on 30.10.2005 and then his statement was recorded where he disclosed that three persons had opened fire at deceased Dinesh and assaulted him. PW2 was confronted with his previous statement under Section 161 Cr.P.C. statement and refuted the suggestion that the statement about the firearm injury caused to Dinesh was made by him in the Court for the first time on legal advice.
21. On further confrontation about identification of three accused persons by him in the Court, PW-2 stated that three accused persons came from Ghaziabad Jail when he came to the Court on the previous day and he had also seen the accused persons on that day, but he had not identified the accused persons before the date of his deposition. He further categorically stated that he told the Investigating Officer that miscreants had attacked on his head by a heavy object after coming out of the ambush and he did not know as to what had happened thereafter. The suggestion that he did not identify anyone on the spot nor he had seen the incident was refuted by PW-2.
22. PW-3 is Prem Jeet Singh, the informant, who had proved the written report given by him on 24.10.2005 as Exhibit Ka-1, noted above. The Criminal law was set into motion with the registration of the FIR on the report filed by PW-3, on the date of the incident.
It is stated by PW-3 that the looted articles were recovered by the police and he and his wife went to the Court of Magistrate, Bulandshahr on 21.2.2006 to identify them. The S.D.M., Bulandshahr had mixed the looted articles with other similar articles, he (PW-3) and his wife had identified the looted articles correctly, they had also signed and put their thumb impressions on the recovery memo. The identification memo of the looted articles was shown to this witness and he had identified his signature on the same and thumb impression of his wife. PW-3 further stated that on 22.2.2006 he and his wife went to the District Jail, Bulandshahr for identification of the accused and the identification parade was conducted by putting the accused persons in three rows with 11-11 persons in each row. He (PW-3) had identified three accused Lakhan, Satish and Rakesh correctly. The identification memo of the accused persons was shown to this witness and he had identified his signature and thumb impression of his wife on the same.
23. In examination-in-chief, PW-3 stated that he had seen three accused persons on the spot of the incident on the date of the incident itself and thereafter in jail on the date of identification, and in between the said period, he had never seen the accused persons. PW-3 brought the jewellery which were identified by him and handed over to him under the order of the Court. He proved in the Court that the jewellery brought by him (one earring and one gold chain) were looted by the miscreants and they were identified in the presence of the Magistrate. The looted articles were marked as Material Exhibits '1, 2 and 3'. The motorcycle of PW-3 which was looted by the miscreants was brought by PW-3 on the date of his deposition and on identification, it was marked as Material Exhibit-‘4’.
PW-3 further proved that the accused persons Lakhan, Satish and Rakesh were present in the Court on the date of his deposition.
On confrontation, PW-3 stated that he left his house at about 11:00 AM on 24.10.2005, he went to Gram Bavanpur where he stayed for about 3 hours. The Gram Bavanpur was at a distance of 30-35 kms. from Israuli and he left the house of his brother-in-law at Gram Bavanpur at about 5:00 PM. He reached at Jahangirabad at about 7:00 PM and he did not make any purchases at Jahangirabad. When he reached Doraha (two way) of Chandauk, it was around 7:00 PM. While he was going from Chandauk Doraha to Sikarpur, three miscreants were standing on the road. PW-3 stated that he had seen three miscreants correctly but did not know them prior to the incident. They were standing besides the road in the coverage of bushes, the road was running North-South. They were covering themselves towards the Eastern side of the road and it was such dark that the he had to turn on the light of the motorcycle. The motor cycle was running at the speed of 20 kms. per hours and as soon as he reached near the place where the miscreants were hiding, they suddenly attacked him. In the assault, he sustained injuries in his head and other parts of the body and became unconscious. His wife was not injured. The miscreants had looted personal belongings of him (PW-3) and his wife and looted his motorcycle to run away towards Sikarpur. After 10-20 minutes of the miscreants having left the place of the incident, he (PW-3) gained consciousness and then he saw one scooter and two injured persons lying on the street, at a distance of 2-3 meters towards the West. The incident wherein two persons were lying injured had occurred before assault on him and the said incident did not occur before him. He, thus, could not tell as to when the incident with other two persons occurred.
PW-3 further clarified that he reached at the police station at about 8:15 PM and narrated the entire incident to the police personnel who reached at the spot along with him. His wife and uncle accompanied him to the police station. He further stated that he could not narrate the time when he reached at the place of the incident as he was not fully conscious. Two injured who were present on the spot were unconscious. The police then took all of them to the police station where they reached at about 9:00 PM. PM-3 was admitted in the Government Hospital, Jahangirabad and other two injured were sent to Bulandshahr. He could not narrate as to when he gained consciousness in the hospital at Jahangirabad. However, he stated that on 25.10.2005 at about 9:00 AM, he was fully conscious.
PW-3 stated that he gave report to the police and three accused persons met him on the spot. On further confrontation, PW-3 had narrated another incident of loot of truck and Maruti car committed by the accused persons. He further stated that he also told the police personnel about the incident of loot of truck and Maruti car at the same place where PW-3 was attacked. He then stated that when he reached at the spot along with the police, truck and Maruti car were present on the spot and the drivers were there. The miscreants had run away seeing the police jeep. The police had not chased the miscreants and all of them including the truck and Maruti car and police reached at the police station.
In cross, PW-3 stated that the report of loot of truck and Maruti car was not scribed before him. He was further confronted as to why the said disclosure was not made under Section 161 Cr.P.C. and answered that he could not give the reason for the same. He then stated that about 2 to 2½ months after the incident, he got information that the miscreants were arrested by the police of P.S. Jahangirabad. They were not lodged in the police station Jahangirabad rather were at Gautam Budha Nagar, he did not go along with his wife and uncle to Gautam Budha Nagar. He went in the identification parade of the accused persons held after three months of the incident. On further confrontation, PW-3 stated that he did not mention any specific identification mark of the accused in his report but told the police about the marks of identification of the miscreants which are narrated in his statement. PW-3 further stated that his statement was recorded at the hospital and if the fact of disclosure of identification marks of the accused persons had not been mentioned therein, he could not give any reason. PW-3 further stated that he and his wife went to identify the looted items after about two months of the incident. He was further confronted with the identity of the jewellery, recovered at the instance of the accused persons. The suggestion that no such incident had occurred nor he could identify the accused persons on the spot had been refuted by PW-3. Further suggestion that the police had shown the accused persons to the informant (PW-3) and his wife at the police station Raghupura, District Gautam Budha Nagar prior to the identification parade at police station Jahangirabad was categorically refuted by PW-3. The suggestion that the photographs of accused persons were shown to the witnesses prior to the identification parade was also refuted.
Arguments of the counsels:-
24. Placing the above noted evidence on record, it is vehemently argued by the counsels for the appellants that the identification of the appellants in the Court by PW-2, Sunil Sharma could not have been given credence, inasmuch as, it has come in the evidence of the said witness that the accused persons were present in the Court on the previous day as well when PW-2 went to the Court. PW-2 though has been projected as injured witness but his injury had not been proved. There is nothing on record to establish that PW-2 was admitted in the hospital by the police. No fatal injury had been caused to any of the two witnesses. The discharge summary filed by PW-2 during his deposition in the Court could not have been admitted in evidence.
25. As regards the identification by PW-3, it is argued that PW-3 is not an eye-witness of the incident of murder of Dinesh Sharma and he did not identify PW-2 as an injured witness. The endorsement on the report given by PW-6 (brother of the deceased) is of the Station House Officer which is dated 4.11.2005, whereas the incident had occurred on 24.10.2005. It is, thus, evident that the incident of murder of Dinesh Sharma and the injury caused to PW-2 namely Sunil Sharma, if any, in the same sequence of events, could not be established with the testimony of PW-3. For the defective identification of the accused persons on the part of PW-2 Sunil Sharma for the first time in the Court, the conviction of accused persons for the offence of murder under Section 302 IPC cannot be sustained.
It is further argued that even the identification of the accused by PW-3 was highly delayed. As per own testimony of PW-3, the accused persons were shown to him during the identification parade held after three months of the incident. The inordinate delay in conducting the test identification parade is fatal to the prosecution case.
Reliance is placed on the decisions of the Apex Court in Hindu Singh and other vs. State of Uttar Pradesh (1982) 3 SCC 368 (II) and Md. Sajjad alias Raju alias Salim vs. State of West Bengal (2017) 11 SCC 150 [LQ/SC/2017/40] .
26. It is argued that even otherwise, the identification parade was not held in accordance with law. The accused were not in veil on the date when the Court gave their remand and in all likelihood, they were identified by the witnesses prior to holding of the identification parade. It is further pointed out from the evidence of the Investigating Officer that though the remand of the accused was taken on 2.2.2006 but the identification parade of three accused persons was held on 21.2.2006. This delay on the part of the Investigating Officer in conducting the identification parade established that the identification was a mere formality.
It is further argued that the recovery shown at the instance of accused persons was planted. Apart from the recovery, there is no other evidence to connect the appellants from the crime and their identification being faulty, they are entitled for acquittal.
The contention, thus, is that the prosecution has not been able to establish its case beyond reasonable doubt and the appeal deserves to be allowed.
27. Learned A.G.A., on the other hand, argued that PW-2 being injured witness got proved with the discharge summary brought in the Court and he was not confronted by the defence on the issue of injury. The charge framed with respect to injured PW-2 was under Section 307 IPC which has not been ultimately proved and the accused persons have not been convicted for the offence under Section 307 IPC. The fact that the injuries of PW-2 were not proved by the prosecution by bringing the injury report on record would be immaterial. The recovery of the mobile of the deceased at the instance of the accused persons connect them with the crime of murder of Dinesh Sharma. The recovery of articles looted from the informant (PW-3) and his wife on the spot had been proved by the prosecution. The recovered articles were produced in the Court and were marked as material exhibits. The Magistrates who conducted the identification parade of accused and the recovery articles had proved both the instances. Two incidents occurred in sequence and in one of them, Dinesh Sharma (deceased) had died and his companion got injured. Both the injured were lying on the spot when the informant (PW-3) reached at the police station. The categorical statement of PW-3 that the police took all of them to the hospital where one had died and another injured was admitted for a long time, could not be disputed.
He argued that even the identification of the accused persons by PW-2 in the Court is free from any reasonable doubt. From the statement of PW-2, only this much can be noted that he came to the Court on the previous day and the accused persons were also brought from Ghaziabad Jail and PW-2 had seen the accused persons on the previous day but that fact itself is not sufficient to discard the evidence of PW-2 when he had identified the accused in the Court by pointing out towards them that they had committed the crime. PW-2 got injured in the same incident which is proved from the fact that the police brought him along with the deceased from the spot on the information given by PW-3 and admitted him in the hospital. It was proved by PW-2 in his deposition that he was told by his family members that police took him to the government hospital Bulandshahr and from there he was sent to Yashoda hospital, Bulandshahr. The discharge summary dated 30.10.2005 was brought in the Court by PW-2 and was filed in evidence. The test identification parade was conducted soon after the arrest of the accused persons by PW3 who had proved that the incident of causing injury to Dinesh Sharma and Sunil Sharma was committed at the same spot and he saw them lying on the spot in injured state when he gained consciousness. It is, thus, argued by the learned A.G.A. that the conviction of the accused persons cannot be faulted for any reason.
Analysis:-
28. Having heard learned counsels for the parties and perused the record, we may note that from the manner in which the incident had occurred with the informant (PW-3), it is evident that he had seen the assault on him and had opportunity to identify the assailants. The incident of murder of Dinesh Sharma and injury caused to Sunil Sharma (PW-2) having occurred on the same spot was proved from the statement of PW-3 in the first information report as also from the evidence of the Investigating Officer and that both the incidents had occurred in sequence. The prosecution has relied upon the identification parade and recoveries made at the instance of the accused persons along with the evidence of PW-3 to assert that the appellants herein had committed the crime. We are, therefore, required to consider the circumstance of the identification of accused persons and recovery made at their instance.
29. The conviction of the accused persons has been made under Section 302 read with Section 34 IPC for the murder of Dinesh Sharma and Section 323 read with Section 34 IPC for causing injury to the informant (PW-3). The conviction under Section 394 IPC is on account of commission of robbery by the accused persons and voluntarily causing hurt in committing the robbery.
30. Before appreciating the evidence pertaining to the identification parade and recoveries at the instance of the accused persons, we are required to first record that the information of the incident is a prompt report made by the injured Prem Jeet Singh who had entered in the witness box as PW-3, 45 minutes time taken by him in lodging the report stood explained from the circumstances in which the incident had occurred. It is categorically stated in the written report filed by PW-1 at the police station Jahangirabad that four miscreants had attacked him on his head by hard blunt object and he became unconscious. Cash and jewellery of his wife as also his motorcycle were looted by miscreants. When he gained consciousness, he saw two injured persons and a scooter lying besides them on the spot. It is categorically stated by the informant (PW-3) in the written report that he had seen the miscreants in the light of the motorcycle and could identify them. The place of the incident had been proved with the site plan and no plausible argument could be made with regard to the place of the incident nor the witnesses produced by the prosecution to prove the recovery of one Cartridge Shell 315 bore and blood stained and plain earth from the spot could be confronted on any material circumstance to dispute the place of the incident.
31. The injuries on the persons of informant Prem Jeet Singh were examined on 24.10.2005 at about 8:40 PM at the Community Health Center, Jahangirabad, District Bulandshahr. Dr. PW-5 had appeared in the witness box to prove the injury report which were found to be on the face of the informant.
32. The first Investigating Officer had entered in the witness box to prove the site plan, the recovery of Cartridge Shell and blood stained and plain earth from the spot and proved that he had recorded the statement of the informant soon after the lodging of the report and inspected the spot on the same day, i.e. 24.10.2005 to make recoveries of blood stained earth in the presence of independent witnesses. The inquest of deceased Dinesh Sharma held on 25.10.2005 in the District Hospital was proved by PW-12, the first Investigating Officer. He also proved that the statement of Sunil Kumar Sharma (PW-2) was recorded in the Case Diary on 31.10.2005 and his injury report was entered therein. PW-12 was confronted as to when he had conducted the entire proceedings and in reply he proved that he had left for the spot of the incident at about 8:45 PM soon after the registration of the FIR and returned to the police station on the next day, i.e. 25.10.2005 in the evening. Nothing contrary could be gathered from the statement of the informant about lodging of the first information report, the Check writer who had entered in the witness box as PW-11 and the first Investigating Officer who had conducted investigation on 24.10.2005 and 25.10.2005. It may be noted that PW-12, the first Investigating Officer had not been confronted about the injured persons found on the spot and further that both the incidents of attack and loot on deceased Dinesh Kumar Sharma and Sunil Sharma as also on the informant PW-3 Prem Jeet Singh and his wife had occurred on the same spot in sequence, one after the other.
It is proved by PW-11 that the case was initially lodged under Section 394 IPC and on the information of the death of Dinesh Sharma received from the hospital, GD entry was made to convert the crime for an offence under Section 302 IPC. The GD entries were proved by PW-1 by bringing it in original in the Court which had been marked as Exhibit Ka-‘15’.
33. In the said scenario, the contention of the learned counsel for the appellants that from the evidence of PW-2, Sunil Sharma or that of PW-3 it could not be proved that both the incident had occurred on the same spot in sequence, cannot be sustained. The fact that the injury report of PW-2 Sunil Sharma was not proved by the prosecution is irrelevant, inasmuch as, the appellants have not been convicted for the charge under Section 307 read with Section 34 IPC for the grievous injuries caused to the Sunil Sharma (PW-2).
34. The substantive evidence, in the instant case, to connect the accused persons with the crime is evidence of PW-3 who had identified the accused persons in the identification parade held on 22.2.2006 in the District Jail Ghaziabad. The Magistrate in whose presence the identification parade was conducted had appeared in the witness-box as PW-8 and proved the identification memo as Exhibit Ka-‘11’ and the identification parade being conducted in her presence.
35. The argument of the learned counsels for the appellants, however, is that the identification parade was conducted after about a period of four months and for the delay caused in the identification of the accused persons, in all probability, the correct identification of the miscreants at the instance of PW-3 was not possible. The identification of accused persons at the instance of informant (PW-3) is, therefore, doubtful. The consequent recoveries from the accused persons are, thus, liable to be discarded.
36. To deal with this arguments of the learned counsels for the appellants, we are required to consider the law pertaining to the test identification parade, the procedure prescribed in law and the legal pronouncements pertaining to the matter.
In a recent decision in Rajesh alias Sarkari and another vs. State of Haryana (2021) 1 SCC 118, [LQ/SC/2020/765] the Apex Court has considered a long line of precedents on the purpose of conducting a test identification parade, the source of the authority of the investigator to do so, the manner in which these proceedings should be conducted and the weight to be ascribed to identification in the course of a test identification parade. The principles which have emerged from the precedents of the Apex Court have been summarized therein as under:-
“43.1. The purpose of conducting a TIP is that persons who claim to have seen the offender at the time of the occurrence identify them from amongst the other individuals without tutoring or aid from any source. An identification parade, in other words, tests the memory of the witnesses, in order for the prosecution to determine whether any or all of them can be cited as eye-witness to the crime;
43.2. There is no specific provision either in the Cr.P.C. or the the Evidence Act, 1872 (“the Evidence Act”) which lends statutory authority to an identification parade. Identification parades belong to the stage of the investigation of crime and there is no provision which compels the investigating agency to hold or confers a right on the accused to claim a TIP;
43.3. Identification parades are governed in that context by the provision of Section 162 of the CrPC;
43.4. A TIP should ordinarily be conducted soon after the arrest of the accused, so as to preclude a possibility of the accused being shown to the witnesses before it is held;
43.5. The identification of the accused in court constitutes substantive evidence;
43.6. Facts which establish the identity of the accused person are treated to be relevant under Section 9 of the Evidence Act;
43.7. A TIP may lend corroboration to the identification of the witness in court, if so required;
43.8. As a rule of prudence, the court would, generally speaking, look for corroboration of the witness’ identification of the accused in court, in the form of earlier identification proceedings. The rule of prudence is subject to the exception when the court considers it safe to rely upon the evidence of a particular witness without such, or other corroboration;
43.9. Since a TIP does not constitute substantive evidence, the failure to hold it does not ipso facto make the evidence of identification inadmissible;
43.10. The weight that is attached to such identification is a matter to be determined by the court in the circumstances of that particular case;
43.11. Identification of the accused in a TIP or in court is not essential in every case where guilt is established on the basis of circumstances which lend assurance to the nature and the quality of the evidence; and
43.12. The court of fact may, in the context and circumstances of each case, determine whether an adverse inference should be drawn against the accused for refusing to participate in a TIP. However, the court would look for corroborating material of a substantial nature before it enters a finding in regard to the guilt of the accused.”
37. In Matru alias Girish Chandra vs. the State of Uttar Pradesh 1971 (2) SCC 75, [LQ/SC/1971/167] the Apex Court had noted that the identification tests do not constitute substantive evidence. Such decisions are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on right lines.
38. In Asharfi vs. State AIR 1961 Alld 153, this Court had considered that the evidence of identification of a stranger based on a personal impression, even if the veracity of the witness is above board, should be approached with considerable caution, because a variety of condition must be fulfilled before evidence based on the impression can become worthy of credence. While discussing the general precautions regarding identification proceedings, it was held that the Court is bound to follow the rule that evidence as to the identification of an accused person must be such as to exclude with reasonable certainty the possibility of an innocent person being identified.
39. In Rameshwar Singh vs. State of Jammu and Kashmir 1971 (2) SCC 715, [LQ/SC/1971/460] it was held that:-
“6. Before dealing with the evidence relating to identification of the appellant it may be remembered that the substantive evidence of a witness is his evidence in court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after the former's arrest is of vital importance because it furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. From this point of view it is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused and that all the necessary precautions and safeguards are effectively taken so that the investigation proceeds on correct lines for punishing the real culprit. It would, in addition, be fair to the witness concerned who was a stranger to the accused because in that event the chances of his memory fading are reduced and he is required to identify the alleged culprit at the earliest possible opportunity after the occurrence. It is thus and thus alone that justice and fairplay can be assured both to the accused and to the prosecution. The identification during police investigation, it may be recalled, is not substantive evidence in law and it can only be used for corroborating or contradicting evidence of the witness concerned as given in court. The identification proceedings, therefore, must be so conducted that evidence with regard to them when given at the trial, enables the court safely to form appropriate judicial opinion about its evidentiary value for the purpose of corroborating or contradicting the statement in court of the identifying witness.”
The emphasis has been laid down on the requirement to identify the alleged culprit at the earliest possible opportunity after the occurrence so as to ensure justice and fair play both to the accused and to the prosecution. It was reiterated that the identification proceedings during the police investigation is not substantive evidence in law and it can only be used for corroborating or contradicting evidence of the witness concerned as given in court.
40. In Ram Babu vs. State of Uttar Pradesh (2010) 5 SCC 63, [LQ/SC/2010/410 ;] it was held that as per Section 9 of the Evidence Act, facts which established the identity of an accused are relevant. Identification parade belongs to investigation stage and if adequate precautions are ensured, the evidence with regard to test identification parade may be used by the Court for the purpose of corroboration. The purpose of test identification parade is to test and strengthen trustworthiness of the substantive evidence of a witness in Court. It is for this reason that the test identification parade is held under the supervision of a Magistrate to eliminate any suspicion or unfairness and to reduce the chances of testimonial error as magistrate is expected to take all possible precautions.
41. In R. Shaji vs. State of Kerala (2013) 14 SCC 266, [LQ/SC/2013/140] it was held by the Apex Court in paragraph ‘58’ as under:-
“58. In Vijay vs. State of M.P. , (2010) 8 SCC 191, [LQ/SC/2010/734] this Court, while dealing with the effect of non holding of a test identification parade, placed very heavy reliance upon the judgments of this Court in Santokh Singh v. Izhar Hussain & Anr., AIR 1973 SC 2190 [LQ/SC/1973/162] ; State of Himachal Pradesh v. Lekh Raj & Anr., AIR 1999 SC 3916 [LQ/SC/1999/1077] ; and Malkhan Singh & Ors. v. State of M.P., AIR 2003 SC 2669 [LQ/SC/2003/639] and held that, the evidence from a test identification parade is admissible under Section 9 of the Evidence Act, 1872. The identification parade is conducted by the police. The actual evidence regarding identification, is that which is given by the witnesses in court. A test identification parade cannot be claimed by an accused as a matter of right. Mere identification of an accused in a test identification parade is only a circumstance corroborative of the identification of the accused in court. Further, conducting a test identification parade is meaningless if the witnesses know the accused, or if they have been shown his photographs, or if he has been exposed by the media to the public. Holding a test identification parade may be helpful to the investigation to ascertain whether the investigation is being conducted in a proper manner and with proper direction. (See also: Munna Kumar Upadhyay v. State of A.P., AIR 2012 SC 2470 [LQ/SC/2012/460] ).”
42. Considering the principles of test identification parade evolved over a period of time in legal pronouncements as discussed in the recent judgment in Rajesh alias Sarkari (supra), the identification of the accused in Court constitutes substantive evidence and the test identification parade may lend corroboration to the identification of the witnesses in Court, if so required. As a rule of prudence, the Court would look for corroboration of the witnesses’ identification of the accused in the Court, in the form of earlier identification proceeding. The weight that is attached to such identification is a matter to be determined by the court in the circumstances of that particular case.
43. Keeping in mind the above principles, reverting to the facts of the instant case, we may note that the Investigating Officer PW-7 had proved that two accused persons namely Rakesh and Satish were arrested in another criminal case and were lodged in Thana Raghupura, District Gautam Budha Nagar when he came to know about their arrest through telephonic information on 10.1.2006 given by S.H.O., Raghupura and that they had confessed the crime committed on 24.10.2005. Both the accused persons had also disclosed the name of Lakhan @ Akash, Munna son of Hari Singh being their accomplices. The entry of the interrogation made from them had been made in GD at Rapat No. 28, Time 22:50 hours dated 9.1.2006 at P.S. Raghupura. It was deposed by PW-7 that he recorded statements of accused Rakesh and Satish on the same day when they were in veil. On 13.1.2006, the report was submitted to the concerned court for preparation of warrant. On 14.1.2006, the information of arrest of accused Lakhan at P.S. Raghupura was received through telephone. The report was submitted in the concerned court on 16.1.2006 for preparation of warrant, after recording statement of accused Lakhan in the Case Diary at the Police Station Raghupura. On 17.1.2006, warrant of three accused persons were prepared and filed in the District Jail, Ghaziabad. On 22.1.2006, efforts were made to nab the fourth accused but he could not be arrested. As three accused persons were not produced in the Ghaziabad Court, request was again made and finally the Court had summoned the accused persons on 2.2.2006. On 2.2.2006 on the presence of the accused in the Court, warrant in veil was prepared by the Court and remand was accepted uptill 15.2.2006. On 4.2.2006, the application was given to take the accused in police custody remand which was accepted on 8.2.2006 and the remand in the police custody was accepted for a period of 72 hours till 12.2.2006. The accused persons were then taken on remand on 9.2.2006 and on 10.2.2006 the recovery of Nokia Mobile-1100 with the IMEI was made at the instance of the accused Satish. The recovery of jewellery was made at the instance of accused Rakesh on the said date and both the recoveries were made from a house taken on rent by the accused persons. The recovery of looted motorcycle of the informant (PW-3) was made at the instance of accused Lakhan on 10.2.2006 itself. After giving information to three accused persons about identification proceedings on 14.2.2006, the test identification parade was conducted in the District Jail, Ghaziabad on 21.2.2006 in the presence of the Magistrate and the identification of the looted articles was made on 22.2.2006 in the Court of the Magistrate. After completion of the investigation in the above manner, the charge sheet was submitted against the accused persons.
44. From the evidence of PW-7, it, thus, transpires that as the accused persons were arrested on 10.1.2006 but time was taken in completion of the test identification parade due to legal formalities as accused persons were arrested in another police station in relation to another crime. PW-7 was confronted about the identification of the accused persons by the witnesses prior to the test identification parade and he categorically asserted that the accused persons were given on remand in veil and the suggestion that the witnesses had identified them earlier was refuted. The validity of the test identification parade held on 21.1.2006 had been proved with the deposition of the Magistrate as PW-8 who had conducted the said proceeding. Nothing contrary could be culled out from the deposition of the Magistrate and the procedure for test identification parade as adopted by the investigating agency cannot be said to be faulty.
45. It is further relevant to note that three accused persons were identified in the Court correctly by the injured witness namely Sunil Sharma who had entered in the witness box as PW-2. The identification by this witness was made of three accused persons who were intermingled with 6-7 persons while standing in the Court.
The statement made by PW-2, in cross, that three accused persons came from Ghaziabad Jail on the previous day when he came to the Court, cannot be considered to mean that he had identified the accused persons on that day. A categorical statement has been made by PW-2 while saying so that he had never identified the accused persons prior to his deposition in the Court on the said day.
46. The accused persons were also identified by the informant PW-3 in the Court who had entered in the witness box on 17.1.2007. The identification of the accused persons in the Court by PW-2 is corroborated from their identification by PW-3 in the Court as well as the test identification parade.
In his examination-in-chief, PW-3 had categorically stated that he had never seen the accused persons in between the date of the incident and their identification in the Jail and three accused persons namely Lakhan, Satish and Rakesh who had committed the crime were present in the Court on the date of his deposition. This statement of PW-3 recorded on 17.1.2007 could not be confronted by bringing any contrary fact and circumstance before us to raise any doubt on the test identification parade conducted by the police, in the presence of the Magistrate, which has been proved with the deposition of PW-8, the identification Magistrate. The narration by PW-3 of the circumstances in which he could identify the accused persons at the time of the incident does not give rise to any reasonable apprehension on the veracity of the testimony of this witnesses. PW-3, with whom the incident of loot and assault had occurred and who had lodged the prompt report of the incident had categorically stated that the accused persons were unknown to him and he had seen them clearly in the light of the motorcycle. He had sufficient chance to see and identify the accused considering the manner of assault on him. There is no reason to doubt the testimony of PW-3.
The decisions relied upon by the learned counsel for the appellants to assail the identification of the accused persons in the identification parade, therefore, are of no benefit to them.
47. The circumstance of identification of the accused persons at the instance of two witnesses, one in the Court (by PW-2) and another in the identification parade (by PW-3) is further corroborated from the recoveries made at the instance of the accused persons prior to their identification by PW-3, the informant. The recoveries of looted motorcycle, jewellery and Nokia Mobile phone had been proved by the Investigating Officer and the police witness of recovery who had entered in the witness box as PW-9.
48. All the recoveries were made in the police custody during remand given by the Court concerned. The IMEI number of Nokia Mobile-1100 was tallied with the IMEI number of deceased Dinesh Sharma which was disclosed by his son in his statement recorded in the Case Diary on 6.1.2006, much prior to the arrest of the accused persons and the recovery. The looted motorcycle, which was recovered at the instance of accused Lakhan was related to the crime and was handed over to the informant PW-3 who had brought it in the Court on the date of his deposition on 17.1.2006. During his examination-in-chief, it was also marked as Material Exhibit-‘4’. The defence could not raise any dispute with regard to the identify of the motorcycle marked as Material Exhibit-‘4’ at the instance of PW-3, the informant, to whom it belonged. The looted jewellery was identified by the informant and his wife being belonging to her in the Court of the Magistrate, who had entered in the witness-box as PW-10. The identification memo of identification of looted jewellery was proved by the Magistrate (PW-10) and, as such, the recoveries made by the police on 10.2.2006 of looted articles namely the motorcycle and jewellery belonging to the informant (PW-3) and his wife and the recovered mobile phone of deceased Dinesh Sharma were rightly connected to the crime. With the proof of recovery of looted articles at the instance of accused persons who were identified subsequent to the recoveries, by the informant and his wife in the District Jail, Ghaziabad in the test identification parade, the connection of the accused persons with both the incidents stood proved beyond any reasonable doubt.
49. On appreciation of the evidence on record in totality, we find that the prosecution has established each and every circumstance of the case leading towards the guilt of the accused persons. There is no doubt about their identification and connection with the crime. The prosecution has established its case beyond all reasonable doubt. No interference can, thus, be made in the judgment of conviction. The sentence awarded to the accused persons cannot be said to be disproportionate to the offence for which they have been convicted.
No interference, as such, is required in the judgment of the trial court.
The appeal is dismissed being devoid of merits.
The appellant no. 1 Lakhan @ Lakhan @ Akash and appellant no. 2 Rakesh are in jail. The appellant no. 3 namely Satish @ Ajay has been granted bail vide order dated 20.3.2013. The Court concerned is directed to take the custody of appellant no. 3 and send him to jail for serving out the remaining part of his sentence.
The office is directed to send back the lower court record along with a certified copy of this judgment for information and necessary compliance. His bail bonds are cancelled and sureties are discharged.
Necessary steps shall be taken by the court below to notify this judgment to all concerned.
The compliance report be furnished to this Court through the Registrar General, High Court, Allahabad within one month.
Sri Akhilesh Srivastava learned Amicus for the appellant nos. 2 and 3 has rendered valuable assistance to the Court. The Court quantifies Rs. 15,000/- (Rupees Fifteen Thousand only) to be paid to Sri Akhilesh Srivastava learned Advocate towards fee for the able assistance provided by him in the hearing. The said amount shall be paid to him by the Registry of the Court within the shortest possible time.
