Shyamlal and Others vs State of M.P.

R.L. Jhanwar, J.—This criminal appeal is directed against the judgment of conviction and order of sentence dated 25.2.1992 passed by the learned Additional Sessions Judge, Bastar (Kanker) in S.T. No. 196/1989, whereby the learned Additional Sessions Judge has convicted the Appellants for commission of offence punishable u/s 323 of the IPC and sentenced each of them to pay a fine of Rs. 1000/-, in default of payment of fine to undergo S.I. for 50 days each.

The prosecution story, in brief, is that Kumar (P.W. 1) Goverdhan (P.W. 5), Poyami Hadma (P.W. 8), Lakhma, Pyarelal and Somnath (P.W. 6), who were under trial prisoners in Kanker Jail were sent on 20.6.1988 to Narayanpur for attending Court hearing. On 21.6.1988, all above prisoners were brought back under custody to Kanker Jail from Narayanpur at about 6:30 pm. Before their entrance to the jail, as per rules, they were searched. On search one mirror and handkerchief was recovered from the custody of under trial Kumar, Due to that recovery, a quarrel took place. Appellants along with Shyamlal and Sharad Kumar assaulted all the under trials who were brought back from Narayanpur Court with fists and foot. After some time Chiteshwar Giri came and assaulted Pyarelal on his head with lathi. Pyarelal fell down. Jail Superintendent Dr. J.P. Khare (P.W. 7) was informed, who came and saw Pyarelal. His condition was serious therefore he was sent to Govt. hospital. Dr. Pradeep Cladious (P.W. 12) medically examined Pyarelal. He was admitted in the hospital on 21.6.1988, where he died. From hospital, an intimation was sent to police, merg was registered and inquest was conducted. After postmortem, FIR u/s 302 of the IPC has been registered by Police Station-Kanker. Investigation took place. After due investigation charge sheet under Sections 302, 323, 147, 148 and 149 against the Appellants and Chiteshwar Giri, Shymalal and Sharadkumar was filed in the Court of A.C. J.M. Kanker, who, in due course, committed the case to Court of Sessions Jagdalpur. Learned Sessions Judge made over the case to the learned Additional Sessions Judge, Kanker (Bastar).

The learned Additional Sessions Judge, Kanker framed charge against accused Chiteshwar Giri (since dead) u/s 302 of the IPC in the alternative 302 read with Section 149 of the IPC and against Appellants and others charge u/s 302 read with Section 149 of the IPC have been framed and read over and explained to the Appellants and others, who abjured the guilt and pleaded that they have been falsely implicated in the case.

The learned trial Court although acquitted all of them u/s 302 and in the alternative Section 302/149 of the IPC but held Chiteshwar Giri guilty u/s 325 of the IPC and Appellants u/s 323 of the IPC and accordingly convicted and sentenced them. Chiteshwar Giri was sentenced to undergo R.I. for 3 years and fine of Rs. 500/-, in default of payment of fine to undergo S.I. for 25 days, Rest of the convict has been sentenced with fine of Rs. 1000/- each, in default of payment of fine to undergo S.I. for 50 days each.

Against his conviction u/s 325 of the IPC in which he was sentenced R.I. for 3 years and fine of Rs. 500/-, in default of payment of fine to undergo S.I. for 25 days Chiteshwar Giri filed a Criminal Appeal No. 358/92 against the State of M.P., but due to his death, that appeal has been abated.

I have heard learned Counsel for both the parties at length and perused the record of the trial Court.

The learned trial Court, relying on the testimony of Somnath (P. W.6) doctor''s report, FIR and seizure of Ex. P-5 convicted and sentenced the Appellants.

After perusal of record and evidence adduced by the prosecution it is clear that Kumar (P.W. I), Sonmath (P.W. 6), Poyami Hadma (P.W. 8) with Goerdhan and Pyarelal were taken to Narayanpur Court on 20.6.1988 and were brought back to Kanker jail at about 6:30 pm. on 21.6.1988. On the gate of jail they were searched by the jail authority and a mirror and handkerchief was recovered from Pyarelal and Kumar and thereafter quarrel took place, in which according to prosecution, 6-7 persons were there who assaulted Kumar and Pyarelal. After 5 to 10 minutes accused Chiteshwar Giri came and assaulted Pyarelal with lathi on his head. On the next day Pyarelal died. According to Somnath (P.W. 6) he did not identify the Appellants by their name. But he identified all of them as persons who had assaulted Kumar and Pyarelal in Court.

In cross-examination, he stated that in police statement he has disclosed the name of Patnaik, Chiteshwar and Ramdayal. He did not disclose the name of other assailant because he was not knowing their names. Ex.D-1 is his police statement in which the names of assailant stated by him does not find place. He also stated in police statement that blood stains were on the wall but no such statement finds place in Ex. D-1. Kumar (P.W. I) and Poyami Hadma (P.W. 8) did not support the prosecution story, although they were injured and they were on the spot also.

Dr. Pradeep Cladious (P.W 12) admitted Pyarelal in the hospital. He also prepared the admission ticket, Ex. P-16, and proved it. From Ex. P-16 it is clear that when Pyarelal was admitted in hospital, only one injury was found on his head. His medical examination report is Ex. P-17. Ex. P-17 also discloses only one injury over frontal area of head just above the right eye. From the judgment of trial Court and evidence it appear that the above injury has been caused by Chiteshwar Giri. Therefore, it is evident that when Pyarelal was examined by the medical officer Dr. Pradeep Cladious (P.W. 12) and when he was alive and was in hospital, no other injury was found to support the statement of Somnath (P.W. 6) who deposed that Appellants also assaulted Pyarelal. Although in Postmortem report, Ex. P-15. proved by Dr. Vijay Shukla (P.W. 11) who found various injuries on the body of Pyarelal and according to him those injuries have been caused by lathi or iron heal of shoe but Sonmath did not state that Appellants assaulted Pyarelal with lahti or shoe. Sonmath was inside the jail for about 10 days earlier to the incident. He does not say that only these officials were there when incident took place. Therefore, it was necessary for prosecution to conduct identification parade before dock identification, but prosecution failed to do so.

Hon''ble the Apex Court while rendering the judgment in the matter of Mahabir Vs. The State of Delhi, has held that--

It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant u/s 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration.

From the above discussion it is clear that in this particular case not only Appellants but other persons and officers were also present on the spot. The witness Somnath (P.W. 6) neither identified the Appellants by name nor disclosed anything adverse against the Appellants in his police statement, therefore, it was necessary for prosecution to have collected evidence of test identification. In these circumstances in the absence of corroboration by test identification, dock identification by witness Somnath. (P.W. 6) cannot be accepted to implicate Appellants in the case beyond doubt.

Statement of Somnath (P.W. 6) is contradictory to his police statement. He has exaggerated the statement and also his statement does not find support from earlier medical examination of Pyarelal. Other injured witnesses present at the time of incident Kumar (P.W. 1) and Poyami Hadma (P.W. 8) also did not support him, No test identification parade has been conducted in this case, his statement is also not corroborated with test identification parade, and therefore statement of Somanth (P. W.6) without any corroboration could not be relied upon for holding Appellants guilty for committing the offence of voluntarily causing hurt to Pyarelal. Therefore, the learned trial Court grossly erred in holding the Appellants guilty for the offence punishable u/s 323 of the IPC.

In the result, the appeal is allowed. Conviction awarded and sentence imposed upon the Appellants by the trial Court is set aside.