Jagdishchandra and Another vs State of M.P.

R.D. Shukla, J.—Appeal is directed against the judgment and order dated 21.3.91 of the 1st Addl. Sessions Judge, Shajapur passed in S.T. No. 145/80 whereby accused-Appellants have been convicted u/s 302/34 on two counts for having committed murder of Siddhanathpuri and Shankar Bharti and for offence punishable u/s 307/34 IPC for having committed attempt to murder of Dhulji on the intervening night of 30.4.90 & 1.5.90 in village Jhandekheda; and sentenced to imprisonment for life on two counts (for murder of Siddha Nath Puri and Shankar Bharti) and imprisonment for seven years u/s 307/34 IPC.

Prosecution story in brief is that PW 1 Dhulji R/o Khedawad had gone to reside with his uncle Shankar Bharti and has taken his cattle (buffaloes and cows) to that village. They were residing near a well. On the fateful night Dhulji, Shankar and Siddhanath were sleeping near the well of Siddhanath. Dhulji had awaken by hearing the sound of gun-shot and he saw two persons with underwear and Baniyan and pant and shirt causing injuries to Shankar Bharti and Siddhanath Puri. Dhulji tried to run away. He was also given one Farshi blow. It is alleged that Dhulji saw both assailants in the electric-light.

Dhulji raised alarm and ran towards the village. Chowkidar Shavsingh, Makhansingh and Anandpuri came from village. Accused persons left the place of incident.

All the persons who have assembled there, took Siddhanathpuri, Shankar Bharti and Dhulji to village Makhawada for taking them to Shajapur in a bullock-cart. Siddhanath Puri, Shankar Bharti died on way. Dhulji was taken to Civil Hospital Shajapur where he was admitted.

Meanwhile Deepsingh Yadava-ex-M.L.A. gave a telephonic message to Police Station Shajapur. The same was recorded in Rojnamcha Sanha No. 2185. T.I. Shri R.C. Arya visited the hospital. Since Siddhanath and Shankar died, as such Marg No. 12/90 was registered. Shri Arya (PW 6) recorded the statement of Dhulji and registered offence vide Ex. P/12. As the incident has happened within the jurisdiction of Police Station Sundarsi, hence the report was sent to that Police Station where offence u/s 302/34, 307 of IPC was registered vide Crime No. 27/90.

Inquest reports of the body of Siddhanath Puri and Shankar Bharti were prepared and, thereafter request for post-mortem examinations was made. Police Officer seized stained and controlled earth from the spot on 1.5.90. One cot was also seized from the spot.

Accused Jagdish Puri was arrested on 6.5.90. He gave information about empty cartridges. The same was seized from the forest near river Kalisindh on 8.5.90. Accused Durgapuri was arrested on 10.5.90. He gave information about Farshi. The same was seized. Jagdish Puri also gave information about 12 Bore pistol. As such pistol with two cartridges were also seized. Jagdish Puri was put up for identification. Dhulji (PW 1) identified them. Identification memo was prepared. Similarly, Durga Puri was also put up for identification. He was also identified by Dhulji.

Dr. S.C. Sisodia (PW 7) examined Dhulji in the night of 30.4.90 and found following injuries:

Swelling on back-side of Rt. hand size 3" x 3". Advised for x-ray.

Lacerated wound on little finger of Lft hand size : 1/2" x 1/2".

Swelling on left hand (back side) 3" x 2" Advised for x-ray.

swelling over left side of lower 1/3rd forearm size 3" x 2".

Lacerated wound on occipital region 3" x 2" x 1/4".

Lacerated wound on occipital region 1'''' below injury No. 5 of the size 2"x 1/2" x 1/4".

Lacerated wound on the Rt. side of skull size 3" x 1/2" x 1/4". Injuries were caused by hard and blunt weapon. He was admitted in hospital. Doctor prepared Report Ex. P/8.

Dr. S.K. Nigam (PW 3) conducted autopsy on the body of Shankar Bharti and on the body of Siddhanath Puri. He found following injuries : Shankar Bharti.

Incised wound on the frontal region on scalp size 4 cm x 1.5 cm bone deep; placed at the mid line.

Incised wound on the right side of injury No. 1 of the size 3 cm x 1.5 cm bone-deep.

Lacerated wound on the left side of occipital region size 5 x 3 cm bone deep.

Incised wound medial to injury No. 3 size : 4 cm x 1 cm Bone deep.

On internal examination the brain was found congested. In the occipital and parietal area there were clotting of blood in the membrane. There was rupture of brain and the fracture of right and frontal bone in the area of 5 cm. There was fracture of left parietal of the size 3". Doctor prepared report Ex. P/5. In the opinion of doctor Shankar Bharti died of the injuries found on the head as above.

Siddhanath Puri

Lacerated wound on Rt. fronto Parietal Area size 9 x 2 cm. Brain matter was coming out.

Incised wound 3 cm x 1 cm just posterior to injury No. 1.

Incised wound 8.5 x .24 cm parellel and posterior to injury No. 1 skin deep.

Incised wound lateral to Rt. eye 1 x 1/2 cm. Skin deep.

Incised wound just below injury No. 4 x size 1 1/2 x 1/2 cm skin deep vertically placed.

Lacerated wound on Rt. ear pinna upper and size 1.5 x 0.5 cm.

Lacerated wound Rt. ear Pinna margins irregular size 2 cm x .5 cm.

Impact abrasion 3 cm x .5 cm on Rt. side of fore head.

Numerous gun shot injuries (pellets) in an area of 12" x 8". about 75 in number extended from neck to chest.

Injuries No. 1, 6, 7 were caused by hard and blunt weapon injuries No. 2, 3,4, 5 were caused by sharp cutting weapon injury No. 9 was caused by gun-shot. Injury No. 8 was caused by impact of some hard object.

On internal examination there was congestion in the brain and haemotoma. Haemotoma was extended to right occipital region. There was fracture of right fronto parietal region. Injuries were ante mortem. Injured died of injuries, fracture of skull bone. Doctor prepared report Ex. P/6.

Clothes of deceased Siddhanathpuri and Shankar Bharti, stained and controlled earth alongwith one wooden plank seized from the spot, were sent for chemical examination. Report of the Chemical Examiner (Ex.P/28) discloses presence of blood on all articles excepting controlled earth.

Two empty cartridges, pellets of 12 Bore pistol, one other empty cartridge, clothes of deceased, misfired cartridges and other pellets were sent to Forensic Expert who confirmed that the pistol seized was in working order. However, when it was last fired it could not be ascertained that the percussion marks were similar but it could not be ascertained as to whether the empty cartridges were fired by the same pistol.

The photographs of percussion cap (Ex. P/13) were also collected during investigation.

After due investigation, two accused Appellants were prosecuted. Both of them denied the guilt and pleaded false implication.

Learned trial Judge has convicted and sentenced them as above. Hence this appeal.

Contention of learned Counsel for Appellants is that the evidence of eye-witnesses is not reliable and that the other corroborative evidence is not sufficient to connect the accused with the crime.

It has further been submitted that the eye-witness Dhulji knew the accused persons from before and, therefore, the identification was a farce.

It has also been submitted that even otherwise the identification is neither reliable nor in the absence of specific evidence as to overt act can be accepted.

As against it learned Counsel for the State has supported the case of prosecution and submitted that the conviction and sentence imposed on the Appellants is well merited.

We were taken to the evidence on record. There is no challenge to the homicidal death of two persons i.e. Siddhanathpuri and Shankar Bharti. Even otherwise that stands proved not only from the evidence of witnesses of Panchanamas and alleged eye-witnesses but from the evidence of Dr. S.K. Nigam (PW 3) who has conducted autopsy on the body of Shankar Bharti and Siddhanathpuri and has found injuries as above.

Presence of injuries on the body of Dhulji has also not been disputed. Even otherwise that stand proved from the evidence of Dr. S.C. Sisodiya (PW 7) who has examined Dhulji and found the injuries as above.

Nature of injuries found on the body of Dhulji (PW 1) and on the body of two deceased persons i.e. Siddhanathpuri and Shankar Bharti goes to show that three types of weapons were used (i) Fire-arm, (ii) Sharp-edged weapon and (iii) stick (hard and blunt weapon like lathi) and, therefore, it can be assumed that at least three persons had caused different injuries to deceased persons and Dhoolji(PW 1).

Learned trial Judge has relied on the evidence of eye-witnesses and the same has been vehemently assailed and, therefore, it would be proper to scrutinise the evidence of eye-witnesses.

PW 1 Dhulji who has sustained injuries has stated that there was dearth of water and grazing grass and, therefore Shankar Bharti has taken cattle to village Jhandakhera from village Kherawad. This witness has accompanied him. He remained with him for about a day and came back after expiry of 23-24 days. He again went to village Jhandakhera and lived alongwith Shankar Bharti during night. On the next night, he alongwith Bharti and Siddhanathpuri were sleeping near a well after taking meals. This witness awoke after hearing the sound of gun-fire and saw a person with underwear and Baniyan and other person with pant and bushshirt. One was keeping a Farshi (sharp cutting weapon) and other was keeping a country-made pistol. They were causing injuries to Shankar Bharti by Farshi. He, therefore, raised alarm. As such he was also assaulted and sustained injuries on the head and both hands. He has further stated that the person who was keeping pistol fired at Siddhanathpuri. He (this witness), therefore ran towards the village. He met Makhan Puri, Anandpuri and Chowkidar, who were coming from the side of village. However, he went ahead towards the village and met some villagers. He came alongwith them near the place of incident and found Shankar Bharti and Siddhanathpuri with injuries and in pool of blood.

Both of them and he himself were taken in a bullock cart. He became unconscious after reaching village Makhawad, he regained consciousness in the hospital. He was examined in the hospital. He has further stated about the identification conducted by Tahsildar where he identified accused Durgapuri (Ex. P/l) and about second identification conducted by Surpanch where he identified Jagdishpuri (Ex. P/2).

In the whole of his examination especially in examination-in-chief, he has nowhere stated as to what accused caused injury to him and to two deceased persons. He has also not stated as to who out of the two accused persons was armed with pistol or Farshi.

During cross-examination he admitted that the initial assault was made on him. He therefore, left the place and did not disclose the fact of assault to Shivji Chowkidar, Makhanpuri and Anandpuri. He has further admitted in para 9 that even after meeting the persons of village he did not state as to who have caused injuries to him and deceased persons. In para 10 he admits that the daugther of Siddhanathpuri was married to Shankar Bharti, nearly 20 years before. He has further admitted that he has been attending the marriage ceremony. In para 11 of his statement he has admitted that he has been visiting the house of Siddhanathpuri and the house of Durgapuri is situated in front of the house of Siddhanathpuri. He has then admitted that he has gone to the house of Siddhanathpuri once or twice. He has further admitted that accused Durgapuri is cousin of Siddhanathpuri. From these admissions it appears as if the witness was knowing these accused persons from before; despite that he did not disclose the names and identity of accused persons in the FIR or in his police statement.

He has nowhere stated about the identity of assailants of Shankar Bharti and Siddhanathpuri. In Para 15 of his statement he has further admitted that ''Kailashpuri and Siddhanathpuri (deceased) were cousins and accused Jagdishpuri is son of Kailashpuri. He has thereafter admitted that he has participated in the marriage of Jagdishpuri though about 10-12 years before. This further goes to show that accused persons were not unknown to him.

PW 2 Anandpuri S/o deceased Siddhanathpuri has stated that while coming from the well (place of incident) he saw two persons at a distance of about 100 yards. He informed this fact to Laxminarain son of Boharilal but they found none. He was resting after taking meals in the house of Ladkunwarbai and heard the sound of gun-fire. He alongwith the Shivsingh went to the place of incident. They heard Dhulji (PW 1) and Bharti (deceased) raising alarm, that they are being assaulted meanwhile persons of village assembled there. They brought Dhulji and Bharti (deceased). Both of them were in a pool of blood and unconscious. Thereafter his father Siddhanathpuri, Shankar Bharti and Dhulji were taken in a bullock cart but his father and Shankar Bharti died on the way.

In para 4 he has further stated that his father i.e. deceased Siddhanathpuri has killed the father of accused Jagdishpuri and, therefore, he alongwith Ors. were suspecting participation of accused Jagdishpuri. He has further admitted that accused Durgapuri has participated in the last rites of his father. He has then admitted that initially Narainpuri and Dilip Puri were arrested but they were let off and Durgapuri was roped in the case. He saw accused Jagdishpuri alongwith Dilip Puri and Narain Puri in the lock-up of Police Station.

This admission goes to show that accused persons were not kept in proper cover and the witnesses had the opportunity of seeing them before the identification. If this suggestion as given to PW 1 Dhulji, is examined in this back-ground, the possibility of Dhulji having seen these accused persons in the lock-up cannot be ruled out.

Even if the evidence of this witness Anandpuri is accepted in toto, that would not be sufficient to connect the accused persons with the crime.

PW 3 Dr. S.K. Nigam has proved the injuries found on the body of Shankar Bharti and Siddhanathpuri as he has conducted the post-mortem examinations.

PW 4 Rajpuri has been examined to prove the motive that after the murder of his father accused Jagdishpuri was declaring for taking revenge. He has admitted during cross-examination that Durgapuri has gone to village Manglya for bringing back the wife of Umraopuri and by that time the last rites of Siddhanath Puri had been performed. This shows that the conduct of Durgapuri after the crime was not abnormal in any way and, therefore, his conduct cannot be taken in aid of the proof of the crime.

PW 5 Ramniwas is a witness of preparation of inquest report. PW 6 R.C. Arya, T.I., has conducted the investigation partially and recorded the FIR (Ex. P/12).

PW 7 Dr. S.C. Sisodiya has proved the fact of presence of injuries on the body of Dhulji. PW 8 Ismail is the Surpanch who conducted the identification of Jagdishpuri. PW 9 D.L. Verma has investigated the offence. He arrested Jagdishpuri and seized one 12-bore pistol and cartridges from Jagdishpuri vide Ex. P/19. He has further seized empty cartridges on production by Jagdishpuri vide Ex. P/21. He has also seized Farshi at the instance of accused Durgapuri vide Ex. P/25. PW 10 hariom, Tahsildar, has proved the fact of identification of Durgapuri in the identification parade conducted by him.

Thus, the whole case depends on the statement of Dhulji. As stated in earlier paragraphs Dhulji has not stated about the overt act of each of the accused persons in the Court. He has no where identified accused persons by describing the different act committed by them.

Learned Trial Judge has believed the fact of identification conducted by Surpanch Ismail and Tahsildar Hariom.

The value of identification depends on two most important facts viz. that the persons who identified an accused have had no opportunity of seeing him after the commission of crime, and secondly, that no mistakes have been made by the witnesses or mistakes made by them are negligible. A test identification when witnesses have already seen an accused person, is worth nothing at all.

In this case the prosecution has not proved any document (copy of Rojnamcha report) to show that the accused persons were kept ''Bapardah'' or that they were instructed for keeping themselves away from the view of witnesses.

PW 2 Anandpuri (son of deceased Siddhanathpuri) has admitted in para 7 that he saw accused Jagdishpuri in the police-station. If this witness could see Jagdishpuri, there is no guarantee that the other witness Dhulji could not have seen him.

The identification parades belong to the investigation stage. They are generally held during the course of investigation with the primary object of enabling the witnesses to identify persons concerned in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in Court. Identification proceedings in their legal effect amount simply to this; that certain persons are brought to jail or some other place and make statements either express or implied that certain individuals whom they point out are persons whom they recognise as having been concerned in the crime. They do not constitute substantive evidence. These parades are essentially governed by Section 162, Code of Criminal Procedure... Budhsen and Another Vs. State of U.P., .

The identification of accused during the identification parade is not a substantive evidence. It is only a corroborative evidence. The substantive evidence would be identification in the Court.

It is note worthy that this witness (Dhulji) has not specifically stated that Jagdishpuri has fired pistol or that Durgapuri or any of them have caused Farshi injury to him or to deceased persons. None of these two accused persons were specifically identified in the Court as to their participation in the crime and therefore, merely because accused persons were identified during the identification parade and the said fact has been proved by prosecution would not be sufficient to connect the (accused persons) with the crime.

In our opinion, therefore, the substantive evidence of identification in the Court is lacking in the case. He has nowhere stated in the Court that the two accused persons or any of them have fired gun-shot or caused injury by sharp edged weapon and, therefore, the identification of accused persons during identification parade, as stated by PW 1 Dhulji, cannot be said to be a substantive piece of evidence with respect to the participation of accused persons in the crime.

It is also note worthy that where a suspect has been seen by identifying witnesses before a test identification parade and no person similar in appearance was included in parade, the identification becomes farce. Yeshwant and Others Vs. The State of Maharashtra, .

In this case also the possibility of Dhulji having seen accused Jagdishpuri like PW 2 Anandpuri can not be ruled out and, therefore, the test identification parade in the case has become meaningless.

The next evidence relied upon by the prosecution is the recovery of pistol and empty cartridges including the seizure of empty cartridges seized from the spot.

We have perused the report of Forensic Science Expert including the evidence of Shri J.P. Niagam (PW 17) who was examined under the orders of this Court but that also does not connect the accused persons with the crime with all certainty. He has stated about the country-made pistol being in working order but could not specify the period when it was fired last. The impression found on the percussion cap of empty cartridges recovered at the instance of Jagdishpuri and seized from the spot has not been established fully. It could not be established with all certainty even from the statement of Shri J.P. Nigam that the empty cartridges found from the spot were fired from the pistol seized at the instance of Jagdishpuri. Mere similarity of marks on the percussion cap and the empty cartridges seized from the spot will not be sufficient to connect the accused persons with the crime as there is no definite opinion that the empty cartridges seized from the spot were fired from pistol seized at the instance of Jagdishpuri. Hence, such evidence cannot be taken to be sufficient for upholding the conviction.

It is also note worthy that the prosecution failed to adduce the evidence to show as to how empty cartridges were kept before being transmitted to the Forensic Science Expert. It is the duty of the prosecution to prove that the cartridges were duly sealed, kept in Malkhana by entering it into Malkhana Register, it is also necessary to show as to when it was taken out from Malkhana and in whose presence. The sealed cover should contain signatures of the witnesses to land assurance that the same cartridges were sent for examination. There is no evidence to show, as observed earlier, about keeping of the empty cartridges and about their transmission to the Forensic Expert. This also creates a doubt as to whether the empty cartridges seized from the spot were really sent for examination.

In our opinion, therefore, the participation of accused-Appellants in the crime could not be established with all certainty. They are entitled to the benefit of doubt which we wish to extend them.

As a result appeal succeeds and is allowed. Accused-Appellants are extended benefit of reasonable doubt and acquitted of the offences charged with.

Accused persons are on bail. Their bail-bonds are discharged.