If appellants look in hindsight then the distance covered
by them between this period is been full of painful memories,
remorse and agony. At this juncture, this Court feels that
valuable period of 12 years of appellants have been consumed
at the altar of false implication due to defective investigation
and casually conducted trial with poor appreciation of evidence
by the trial Court.
23. The Right to Life is a Fundamental Right enshrined
under the Fundamental Rights of the Constitution, in the most
coveted chapter (Chapter III of Fundamental Rights) of the
Constitution coupled with the enlightenment displayed by the
Preamble of our Constitution wherein Securing Justice to
Citizens has been placed at the top of all virtues and being a
democratic and welfare State, it is incumbent upon the State to
take care of its citizens with motherly tenderness specially,
when a citizen is severely bruised by the organs of the State.
Therefore, this Court finds the instant case, a fit case for grant
of compensation of Rs.1,00,000/- (one lac only) each, to both
the appellants to be granted as compensation for the injustice
inflicted over them by way of false implication. Our criminal
Juris prudence gives more stress over avoiding of false
implication of an innocent to the extent where hundred guilty
may go scot- free. The spirit behind the same is very pious.
Even otherwise, by one case of false implication of an
innocent, rule of law loses one exponent (supporter) and a
rebel with defiance towards rule of law is ready. Poor
investigation with tainted prosecution is perfect recipe for such
eventuality.
24. Although, no such provision exists in the Cr.P.C. for
compensating the accused but certainly State cannot wriggle
out from its constitutional and tortious liability, in the present
set of facts. Fundamental right of a person cannot be
sacrificed at the altar of mis-governance or at the whims or
because of poor investigation. State Government would be at
liberty to recover the said amount from the erring officers/
investigation officers, if appropriate authority decides so, after
giving opportunity of hearing to them and if their casualness
and negligence are proved in an enquiry.
Law laid down:
(I) If because of poor investigation and tainted
prosecution, the accused suffers and it is apparent that he is
innocent then he deserves compensation from the State under
Right to Life.
(II) Right to Life is a Fundamental Right enshrined
under Chapter III of the Constitution of India and Preamble of
our Constitution gives priority to secure Justice to citizen at the
top of all virtues, therefore, it is incumbent upon the State to
take care of its citizens, when a citizen is severely bruised by
the organs of the State therefore, appellants deserve
compensation because of poor investigation and tainted
prosecution.
HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR
DIVISION BENCH
(S.A. Dharmadhikari & Anand Pathak, J.J.)
Criminal Appeal No.812/2008
Durga @ Raja Vs State of Madhya Pradesh
(Pronounced on 06th day of July, 2018)
The instant criminal appeal is being preferred under
Section 374 of Cr.P.C. against the judgment of conviction
and order of sentence dated 17/10/2008 passed in S.T.
No.04/2007 by the Special Judge, Datia whereby appellantDurga
(appellant of Cr.A. No.812/2008) and appellant-Nandu
(appellant of Cr.A. No.866/2008) have been convicted under
Section 364-A of IPC r/w Section 11/13 of Madhya Pradesh
Dacoity Vipran Prabhabit Khestra Act and awarded sentence
for Life Imprisonment with fine of Rs.25,000/- each with default
stipulation.
2. Since both the appellants/ accused (Durga @ Raja and
Nandu @ Nandkishore) have been convicted by the common
order dated 17/10/2008 but appeals have been separately
preferred by them, therefore, both the appeals are heard
analogously and decided by this common order.
3. As per the case of the prosecution, FIR was registered
on dated 24/08/2006 vide Crime No.90/2006 at Police Station
Badoni, District- Datia by the complainant Munna Kushwaha
(PW-2) in respect of an incident dated 04/07/2006 when around
11 pm in the night, Laxman alias Jhagga s/o Ramcharan
Kushwaha while lying over in his agriculture field, caught hold
of by some miscreants wielding fire arms and was taken by
them as hostage to the forest. Midway, while reaching to the
well of one Ramkishan Kushwaha took him also after putting
a blind fold over his eyes and taken to some distant place
where Ramkishan Kushwaha was released but abducted
Laxman was taken to the forest and beaten up. Next day
morning on 05/07/2006, brother(Munna) of abducted
Laxman came to the field, but could not find his brother
therefore, missing persons report was lodged and case was
taken into investigation.
4. After one month, on 04/08/2006, abducted Laxman got
scot free from the clutches of abductors on which Dastyabi
Panchnama at Police Station Badoni (recovery memo, Ex.P-3)
was prepared. Thereafter statements of Laxman and other
witnesses were taken. Since the present appellants-accused
Durga and Nandu were already under arrest in some other
case, therefore, they were formally arrested by the police.
Thereafter, Test Identification Parade (TIP) was conducted for
identification of accused Durga and Panchnama vide Ex.P-1
was prepared. Statements of other witnesses were taken by
the police and charge-sheet was filed.
5. Appellants- accused abjured their guilt and trial was
conducted. Trial Court after considering the evidence led by
the prosecution found the appellants guilty of offence as
referred above and awarded sentence for Life Imprisonment
(L.I.) and fine of Rs.25,000/- was imposed. Therefore,
appellants are before this Court. On behalf of both the
appellants, Shri Anil Kumar Shrivastava, learned counsel
advanced arguments in detail and Shri Dharmendra
Rishishwar adopted the arguments advanced by him for
appellant-Nandu also.
6. According to counsel for the appellants, the case mainly
hinges upon the test identification of Durga by alleged
abductee-Laxman. Although Laxman has identified Durga in
the test identification parade but that was not the identification
as required by law. From the deposition of Laxman, it appears
that abductee-Laxman has already seen the accused Durga
alias Raja at Police Station therefore, when TIP was conducted
infront of competent authority at jail then it had no meaning
because accused-Durga was already known to the victim
Laxman and the purpose of TIP was diluted. It is further
submitted that TIP of appellant-accused Nandu was never
been held at the instance of police during investigation.
Appellant-Nandu is the case of Dock Identification wherein
Laxman identified Nandu while standing in the Dock therefore,
the investigation reveals the casualness in implication of the
appellants that too on false pretext. He relied upon the
judgment of the Hon'ble Apex Court in the case of Daya Singh
Vs. State of Haryana, AIR 2001 SC 1188.
7. Another point advanced by counsel for the appellants,
was the delay caused in conducting TIP because the date of
incident was 04/07/2006 whereas TIP was held on 04/12/2006
therefore, delay of 5 months is sufficient to allow witness to
forget about the face of a person whom the victim has seen in
night without explanation of availability of light in the
prosecution story. It is further submitted that some
inconsistencies and contradictions are crept in the statements
made by the witnesses under Section 161 of Cr.P.C and
thereafter made as Court statement because Laxman himself
showed contradictory and inconsistent statement in police
statement and Court statement. Statement under Section 161
of Cr.P.C. was recorded by the police in respect of
Ramkishore Kushwaha also but he did not make court
statement on oath. Total 18 witnesses were referred in the
charge-sheet but only six witnesses were deposed. Similarly,
witness of arrest memo (Ex.P-4) and witness of seizure memo
under Section 27 of the Indian Evidence Act were never
examined. The case appears to be of circumstantial evidence
wherein TIP was only important piece of evidence but doubtful
nature of evidence tried to be created by the prosecution,
renders the TIP tainted.
8. Learned counsel for the appellants raised the point that
Mukunda and Bihari who were allegedly the middle man
between the police and the victim, were not examined and
therefore, theory propounded by Mukunda and Bihari that they
went to get the victim released while paying Rs.5,00,000/- (Rs.
Five Lacs) was not established by the trial Court, nor money
allegedly paid to abductors was seized from accused persons.
9. On the other hand, learned counsel for the respondent-
State opposed the prayer made by the appellants and on the
basis of evidence and record submitted in respect of culpability
of the appellants and prayed for dismissal of the appeal.
10. Heard the learned counsel for the parties at length and
perused the record.
11. Here in the present case, no eye witness is available to
witness the incident since inception other than the victim
Laxman himself. Victim was allegedly taken by the appellants
Durga and Nandu alongwith other abductee Ramkishore
Kushwaha on 04/07/2006 around 11 pm. When the victim was
abducted, he did not know the appellants. Abductors took
Ramkishan also alongwith them to cover some distance but
later on released him on same day but Laxman was kept
allegedly by the abductors till 04/08/2006. Therefore, best
witness to identify and recognize the abuductors was
Ramkishore, beside abductee Laxman, but here prosecution
did not produce Ramikishore in the Court to make statement.
This is material omission. Laxman slipped out from clutches of
abductors and returned back to his village. Dastyabi
Panchnama (Ex.P-3) indicates the date of return as
04/08/2006. Appellants were already in jail in some other case
therefore, they were formally arrested on 29/09/2006.
12. Victim Laxman after coming back from abduction on
04/08/2006, filed a complaint for the first time on 24/08/2006 in
which name of two unknown miscreants were referred
therefore, TIP was conducted. The case is of circumstantial
evidence and only on the basis of TIP, appellants have been
convicted. In respect of appellant-Durga, TIP was conducted
on 04/12/2006 after delay of 5 months whereas victim Laxman
already reached home on 04/08/2006, whereas FIR was
registered on 24/08/2006 and appellants-Durga and Nandu
both were formally arrested on 09/09/2006, for this case (as
they were already behind the bar) therefore, police had
sufficient time in between for conduction of TIP but the same
was not done. Besides that TIP was vitiated if the evidence of
Laxman is seen alongwith evidence of Naib Tahsildar, DatiaP.P.
Parasar (PW-3).
13. Laxman @ Jhagga (PW-1) in his cross-examination in
para 11 admitted the fact that he did not know the accusedappellants
from the beginning but he referred the name of
Durga and his accomplice while giving police statement. In
para-14, he admits the fact that after his release, police caught
Durga and taken him to the Police Station where he informed
the police that the person who is caught hold by the police is
Durga @ Raja and after one month, eye witness went to jail for
identification and identified Durga @ Raja. He also admitted
the fact that police has taken signature over certain
documents. Witness is not sure about about his signature
whether marked at police station or at somewhere else.
Deposition of Laxman (PW-1) in respect of test identification
reveals that victim-Laxman (PW-1) had already seen Durga at
Police Station and therefore, the purpose of test identification
at later stage in jail had no meaning and the same is vitiated by
the mischief of the police authorities. The purpose of test
identification is not to identify the already identified person.
Here police has shown the accused Durga to victim-Laxman,
therefore, said test identification cannot be relied upon. The
factum of test identification parade does not figure in the
testimony of inquiry officer- Yogendra Singh Jadon (PW-6)
therefore, the story of test identification is not at all established
by the prosecution beyond reasonable doubt rather it creates
doubt about the motive of police authority and the plea of false
implication intensifies.
14. TIP of Nandu was never held. Only Dock identification
was made. The reason for not conducting TIP of Nandu was
not explained by the prosecution. Victim Laxman in his court
statement referred the name of two Nandu (s), one is; Nandu
Kadera and another is Nandu Dheemar. Whether abductee
knew these abductors previously or whether the accused
Nandu was the same Nandu as referred by the victim, could
only be discerned through TIP but in respect of accused
Nandu, no TIP was conducted. It is possible that both these
accused were already in custody and to get wriggle out of the
pressure of incident and abduction, both these arrested
persons have been framed for the charge of abduction of
Laxman. From the submissions of counsel for the appellants,
it appears that appellants never sought their custody. If police
did not want to interrogate the appellants for recovery of arms,
recovery of money and for arrest of other alleged co-accused
then it raises doubt over the motive of the police to reach to
the truth and exact incident. This renders the investigation
doubtful.
15. Another circumstance which renders the case doubtful is
the fact that Ramkishan Kushwaha who was initially abducted
by the appellants, for the time being, but he did not depose on
oath whereas he was the best witness not only to substantiate
the story of abduction but for identification of the accused
persons. Ramkishan neither identified the accused by way
of TIP nor he deposed on oath before the trial Court. Why the
Star witness was kept behind the curtains by the prosecution is
the question which was not explained by the prosecution for
proving its case beyond reasonable doubt. This aspect is
further accentuated by the fact that out of total 18 witnesses
referred in the charge-sheet, only 6 witnesses were examined.
Interestingly, name of Ramkishan Kushwaha does not figure in
the list of witnesses at all. Therefore, it appears that story of
Ramkishan was created by the Police and prosecution to
implicate the appellants on false pretext. This further creates
doubt about the motive of police regarding false implication.
16. One more circumstance goes against the case of
prosecution is that as per the story of the prosecution,
Mukunda and Bihari tried to mediate allegedly between the
abductors and family of abductee by which Munnalal
Kushwaha (PW-2) who was brother of abductee gave Rs. 5
lacs to Bihari and Mukunda for release of his brother which
according to abductee-Laxman was given by them to Nandu
Kadera and Nandu Dheemar but they sought Rs.40,00,000/-
as ransom amount. This fact came in his examination-in-chief.
In cross-examination, he admitted the fact about the said
attempt made by the family. Victim-Laxman in para-8 of the
cross-examination also admitted the fact that this fact has not
been disclosed by him while giving statement under Section
161 of Cr.P.C. to the police and discloses this fact for the first
time in his court statement. The said improvement is a
material improvement in the fact situation of the case.
Prosecution could not establish the fact about the fate of said 5
lac rupees; whether the 5 lacs as allegedly given by the family
of the victim to the abductors for release of the victim, were
recovered from the accused persons or not. This fact could
have been explained and substantiated, if Mukunda and Bihari
would have deposed before the Court to lead evidence on
behalf of prosecution. Although Investigating Officer in his
court statement referred the fact that Mukunda was one of the
accused in the instant case and died in an encounter but when
Mukunda was one of the accused in the instant case then how
he could have been a middle man and why the police authority
has not referred him alongwith Bihari as accused persons in
the charge-sheet or prior to it, why their names were not taken
by the police for consideration for investigation purpose.
These all facts create strong suspicion against the motive of
the police authorities wherein they wanted to frame the present
appellants for the offence referred above. The omission of
story of 5 lacs in the statement of Laxman under Section 161
of Cr.P.C. vis a vis court statement and the fact of no recovery
of amount from the accused, stares at the prosecution and
renders the story of prosecution severely doubtful.
17. Witness of arrest memo (Ex.P-4) and witness of seizure
memo (Ex.P-9) under Section 27 of the Indian Evidence Act
were never examined before the trial Court. Therefore, seizure
of weapons was not proved beyond reasonable doubt.
18. Another loop in the story is reference of several
miscreants while conducting abduction by the victim-Laxman,
but police never cared for reaching to them or to nab them to
bring them to books, when the statements of witnesses reveal
presence of several persons while performing abduction then
why the prompt action of the police confined only to the extent
of present appellants and no explanation was offered about
other alleged accomplice like Mukunda, Bihari and other
Nandu (s) as referred in the complaint and statements. Why
they were not arrested or made accused in charge-sheet the
question which haunts the police and prosecution. This aspect
further creates doubt about the motive of prosecution to falsely
implicate the appellants because either the complaint filed by
the complainant and the victim was bereft of truth or
prosecution could not able to discharge its functions properly
and just to cover up their fallacy, falsely implicated the present
appellants, who were already in the jail in some other case and
that is the travesty of justice.
19. (The Hon'ble Apex Court in the case of Sheo Shankar
Singh Vs. State of Jharkhand, (2011) 3 SCC 654 has held as
under:-
“46. It is fairly well settled that identification of
the accused in the court by the witness
constitutes the substantive evidence in a case
although any such identification for the first
time at the trial may more often than not appear
to be evidence of a weak character. That being
so a test identification parade is conducted with
a view to strengthening the trustworthiness of
the evidence. Such a TIP then provides
corroboration to the witness in the court who
claims to identify the accused persons
otherwise unknown to him. Test identification
parades, therefore, remain in the realm of
investigation.
47. The Code of Criminal Procedure does
not oblige the investigating agency to
necesssarly hold a test identification parade
nor is there any provision under which the
accused may claim a right to the holding of a
test identification parade. The failure of the
investigating agency to hold a test
indentification parade does not, in that view,
have the effect of weakning the evidence of
identification in the court. As to what should be
the weight attached to such an identification is
a matter which the courts will determine in the
peculiar facts and circumstances of each case.
In appropriate cases the court may accept the
evidence of identification in the court even
without insisting on corroboration.
48. The decisions of this Court on the subject
are legion. It is, therefore, unnecessary to
refer to all such decisions. We remain content
with a reference to the following observations
made by this Court in [(2003) 5 SCC 746]:
(SCC pp. 751-52, para 7)
“7. 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
under Section 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 a 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. The identification
parades belong to the stage of investigation,
and
there is no provision in the Code of Criminal
Procedure which obliges the investigating
agency to hold, or confers a right upon the
accused to claim a test identification parade.
They do not constitute substantive evidence
and these parades are essentially governed by
Section 162 of the Code of Criminal Procedure.
Failure to hold a test identification parade
would not make inadmissible the evidence of
identification in court. The weight to be
attached to such identification should be a
matter for the courts of fact. In appropriate
cases it may accept the evidence of
identification even without insisting on
corroboration. (See Kanta Prashad v. Delhi
Admn. [AIR 1958 SC 350], Vaikuntam
Chandrappa v. State of A.P. [AIR 1960 SC
1340], Budhsen v. State of U.P. [(1970) 2 SCC
128 ] and Rameshwar Singh v. State of J&K
[(1971) 2 SCC 715].)”
49. We may also refer to the decision of this
Court in Pramod Mandal v. State of Bihar
[(2004) 13 SCC 150 ] where this Court
observed: (SCC p. 158, para 20) “20. It is
neither possible nor prudent to lay down any
invariable rule as to the period within which a
test identification parade must be held, or the
number of witnesses who must correctly
identify the accused, to sustain his conviction.
These matters must be left to the courts of fact
to decide in the facts and circumstances of
each case. If a rule is laid down prescribing a
period within which the test identification
parade must be held, it would only benefit the
professional criminals in whose cases the
arrests are delayed as the police have no clear
clue about their identity, they being persons
unknown to the victims. They, therefore, have
only to avoid their arrest for the prescribed
period to avoid conviction. Similarly, there may
be offences which by their very nature may be
witnessed by a single witness, such as rape.
The offender may be unknown to the victim and
the case depends solely on the identification by
the victim, who is otherwise found to be truthful
and reliable. What justification can be pleaded
to contend that such cases must necessarily
result in acquittal because of there being only
one identifying witness? Prudence therefore
demands that these matters must be left to the
wisdom of the courts of fact which must
consider all aspects of the matter in the light of
the evidence on record before pronouncing
upon the acceptability or rejection of such
identification.”
20. In the present set of facts, TIP was vitiated by its inherent
procedural impropriety and except that, no reliable evidence is
available to implicate appellants beyond reasonable doubt.
21. Resultantly, appeals preferred by the appellants-Durga
and Nandu deserves credence and acceptance and
resultantly, Cr.A. No.812/2008 and Cr.A. No.866/2008 are
hereby allowed. Judgment of conviction and order of
sentence dated 17/10/2008 passed in S.T. No.04/2007 by the
Special Judge, Datia passed against the appellants is hereby
set aside. Since the prosecution has not proved its case
beyond reasonable doubt and trial Court erred in relying upon
the very weak evidence led by the prosecution and erred in
convicting the appellants, therefore, appellants- Durga @ Raja
and Nandu @ Nandkishore are directed to set free
immediately if they are in confinement.
22. If appellants look in hindsight then the distance covered
by them between this period is been full of painful memories,
remorse and agony. At this juncture, this Court feels that
valuable period of 12 years of appellants have been consumed
at the altar of false implication due to defective investigation
and casually conducted trial with poor appreciation of evidence
by the trial Court.
23. The Right to Life is a Fundamental Right enshrined
under the Fundamental Rights of the Constitution, in the most
coveted chapter (Chapter III of Fundamental Rights) of the
Constitution coupled with the enlightenment displayed by the
Preamble of our Constitution wherein Securing Justice to
Citizens has been placed at the top of all virtues and being a
democratic and welfare State, it is incumbent upon the State to
take care of its citizens with motherly tenderness specially,
when a citizen is severely bruised by the organs of the State.
Therefore, this Court finds the instant case, a fit case for grant
of compensation of Rs.1,00,000/- (one lac only) each, to both
the appellants to be granted as compensation for the injustice
inflicted over them by way of false implication. Our criminal
Juris prudence gives more stress over avoiding of false
implication of an innocent to the extent where hundred guilty
may go scot- free. The spirit behind the same is very pious.
Even otherwise, by one case of false implication of an
innocent, rule of law loses one exponent (supporter) and a
rebel with defiance towards rule of law is ready. Poor
investigation with tainted prosecution is perfect recipe for such
eventuality.
24. Although, no such provision exists in the Cr.P.C. for
compensating the accused but certainly State cannot wriggle
out from its constitutional and tortious liability, in the present
set of facts. Fundamental right of a person cannot be
sacrificed at the altar of mis-governance or at the whims or
because of poor investigation. State Government would be at
liberty to recover the said amount from the erring officers/
investigation officers, if appropriate authority decides so, after
giving opportunity of hearing to them and if their casualness
and negligence are proved in an enquiry.
25. Time has come when the Rule of Law is to be included
as one of the essential components of infrastructure like road,
water, electricity etc., otherwise these component of
infrastructure and development would be sacrificed at the altar
of mis-governance and lawlessness. Bridging of schism
between rule of law and lawlessness is the need of the hours.
It is expected from the Law Department, Home Department
and Prosecution Department of the State Government that
they will create a mechanism for scientific and methodical
police investigation and scientific and methodical prosecution
of the accused so that citizen may get justice and spirit of
Right to Access Justice is fulfilled. A constant training
programme or continuous education with latest technology be
employed by the said authorities so that investigation and
prosecution agency may march with the time and people at
large be assured of their empowerment by way of Right to
Access Justice. Therefore, before parting, this Court finds
appropriate to direct the State of M.P. through Principal
Secretary, Law and Legislative Affairs to coordinate and make
arrangements with the appropriate department of State
Government to grant compensation to the appellants-Durga @
Raja s/o Amarju Kori and Nandu @ Nandkishore s/o Shankari
Rs.1,00,000/- each for the reasons stated above. Needful be
done within two months from today.
26. Office is directed to send the copy of this order to the
Principal Secretary Law and Legislative Affairs as well as
Principal Secretary, Home Department for appropriate action,
coordination and compliance, as referred in preceding
paragraphs.
27. Appeal stands allowed in above terms. Release
warrants of appellants be issued forthwith.
28. Copy of the the judgment be sent to the concerned trial
Court for information and necessary compliance.
(S.A. Dharmadhikari) (Anand Pathak)
Print Page
by them between this period is been full of painful memories,
remorse and agony. At this juncture, this Court feels that
valuable period of 12 years of appellants have been consumed
at the altar of false implication due to defective investigation
and casually conducted trial with poor appreciation of evidence
by the trial Court.
23. The Right to Life is a Fundamental Right enshrined
under the Fundamental Rights of the Constitution, in the most
coveted chapter (Chapter III of Fundamental Rights) of the
Constitution coupled with the enlightenment displayed by the
Preamble of our Constitution wherein Securing Justice to
Citizens has been placed at the top of all virtues and being a
democratic and welfare State, it is incumbent upon the State to
take care of its citizens with motherly tenderness specially,
when a citizen is severely bruised by the organs of the State.
Therefore, this Court finds the instant case, a fit case for grant
of compensation of Rs.1,00,000/- (one lac only) each, to both
the appellants to be granted as compensation for the injustice
inflicted over them by way of false implication. Our criminal
Juris prudence gives more stress over avoiding of false
implication of an innocent to the extent where hundred guilty
may go scot- free. The spirit behind the same is very pious.
Even otherwise, by one case of false implication of an
innocent, rule of law loses one exponent (supporter) and a
rebel with defiance towards rule of law is ready. Poor
investigation with tainted prosecution is perfect recipe for such
eventuality.
24. Although, no such provision exists in the Cr.P.C. for
compensating the accused but certainly State cannot wriggle
out from its constitutional and tortious liability, in the present
set of facts. Fundamental right of a person cannot be
sacrificed at the altar of mis-governance or at the whims or
because of poor investigation. State Government would be at
liberty to recover the said amount from the erring officers/
investigation officers, if appropriate authority decides so, after
giving opportunity of hearing to them and if their casualness
and negligence are proved in an enquiry.
Law laid down:
(I) If because of poor investigation and tainted
prosecution, the accused suffers and it is apparent that he is
innocent then he deserves compensation from the State under
Right to Life.
(II) Right to Life is a Fundamental Right enshrined
under Chapter III of the Constitution of India and Preamble of
our Constitution gives priority to secure Justice to citizen at the
top of all virtues, therefore, it is incumbent upon the State to
take care of its citizens, when a citizen is severely bruised by
the organs of the State therefore, appellants deserve
compensation because of poor investigation and tainted
prosecution.
HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR
DIVISION BENCH
(S.A. Dharmadhikari & Anand Pathak, J.J.)
Criminal Appeal No.812/2008
Durga @ Raja Vs State of Madhya Pradesh
(Pronounced on 06th day of July, 2018)
The instant criminal appeal is being preferred under
Section 374 of Cr.P.C. against the judgment of conviction
and order of sentence dated 17/10/2008 passed in S.T.
No.04/2007 by the Special Judge, Datia whereby appellantDurga
(appellant of Cr.A. No.812/2008) and appellant-Nandu
(appellant of Cr.A. No.866/2008) have been convicted under
Section 364-A of IPC r/w Section 11/13 of Madhya Pradesh
Dacoity Vipran Prabhabit Khestra Act and awarded sentence
for Life Imprisonment with fine of Rs.25,000/- each with default
stipulation.
2. Since both the appellants/ accused (Durga @ Raja and
Nandu @ Nandkishore) have been convicted by the common
order dated 17/10/2008 but appeals have been separately
preferred by them, therefore, both the appeals are heard
analogously and decided by this common order.
3. As per the case of the prosecution, FIR was registered
on dated 24/08/2006 vide Crime No.90/2006 at Police Station
Badoni, District- Datia by the complainant Munna Kushwaha
(PW-2) in respect of an incident dated 04/07/2006 when around
11 pm in the night, Laxman alias Jhagga s/o Ramcharan
Kushwaha while lying over in his agriculture field, caught hold
of by some miscreants wielding fire arms and was taken by
them as hostage to the forest. Midway, while reaching to the
well of one Ramkishan Kushwaha took him also after putting
a blind fold over his eyes and taken to some distant place
where Ramkishan Kushwaha was released but abducted
Laxman was taken to the forest and beaten up. Next day
morning on 05/07/2006, brother(Munna) of abducted
Laxman came to the field, but could not find his brother
therefore, missing persons report was lodged and case was
taken into investigation.
4. After one month, on 04/08/2006, abducted Laxman got
scot free from the clutches of abductors on which Dastyabi
Panchnama at Police Station Badoni (recovery memo, Ex.P-3)
was prepared. Thereafter statements of Laxman and other
witnesses were taken. Since the present appellants-accused
Durga and Nandu were already under arrest in some other
case, therefore, they were formally arrested by the police.
Thereafter, Test Identification Parade (TIP) was conducted for
identification of accused Durga and Panchnama vide Ex.P-1
was prepared. Statements of other witnesses were taken by
the police and charge-sheet was filed.
5. Appellants- accused abjured their guilt and trial was
conducted. Trial Court after considering the evidence led by
the prosecution found the appellants guilty of offence as
referred above and awarded sentence for Life Imprisonment
(L.I.) and fine of Rs.25,000/- was imposed. Therefore,
appellants are before this Court. On behalf of both the
appellants, Shri Anil Kumar Shrivastava, learned counsel
advanced arguments in detail and Shri Dharmendra
Rishishwar adopted the arguments advanced by him for
appellant-Nandu also.
6. According to counsel for the appellants, the case mainly
hinges upon the test identification of Durga by alleged
abductee-Laxman. Although Laxman has identified Durga in
the test identification parade but that was not the identification
as required by law. From the deposition of Laxman, it appears
that abductee-Laxman has already seen the accused Durga
alias Raja at Police Station therefore, when TIP was conducted
infront of competent authority at jail then it had no meaning
because accused-Durga was already known to the victim
Laxman and the purpose of TIP was diluted. It is further
submitted that TIP of appellant-accused Nandu was never
been held at the instance of police during investigation.
Appellant-Nandu is the case of Dock Identification wherein
Laxman identified Nandu while standing in the Dock therefore,
the investigation reveals the casualness in implication of the
appellants that too on false pretext. He relied upon the
judgment of the Hon'ble Apex Court in the case of Daya Singh
Vs. State of Haryana, AIR 2001 SC 1188.
7. Another point advanced by counsel for the appellants,
was the delay caused in conducting TIP because the date of
incident was 04/07/2006 whereas TIP was held on 04/12/2006
therefore, delay of 5 months is sufficient to allow witness to
forget about the face of a person whom the victim has seen in
night without explanation of availability of light in the
prosecution story. It is further submitted that some
inconsistencies and contradictions are crept in the statements
made by the witnesses under Section 161 of Cr.P.C and
thereafter made as Court statement because Laxman himself
showed contradictory and inconsistent statement in police
statement and Court statement. Statement under Section 161
of Cr.P.C. was recorded by the police in respect of
Ramkishore Kushwaha also but he did not make court
statement on oath. Total 18 witnesses were referred in the
charge-sheet but only six witnesses were deposed. Similarly,
witness of arrest memo (Ex.P-4) and witness of seizure memo
under Section 27 of the Indian Evidence Act were never
examined. The case appears to be of circumstantial evidence
wherein TIP was only important piece of evidence but doubtful
nature of evidence tried to be created by the prosecution,
renders the TIP tainted.
8. Learned counsel for the appellants raised the point that
Mukunda and Bihari who were allegedly the middle man
between the police and the victim, were not examined and
therefore, theory propounded by Mukunda and Bihari that they
went to get the victim released while paying Rs.5,00,000/- (Rs.
Five Lacs) was not established by the trial Court, nor money
allegedly paid to abductors was seized from accused persons.
9. On the other hand, learned counsel for the respondent-
State opposed the prayer made by the appellants and on the
basis of evidence and record submitted in respect of culpability
of the appellants and prayed for dismissal of the appeal.
10. Heard the learned counsel for the parties at length and
perused the record.
11. Here in the present case, no eye witness is available to
witness the incident since inception other than the victim
Laxman himself. Victim was allegedly taken by the appellants
Durga and Nandu alongwith other abductee Ramkishore
Kushwaha on 04/07/2006 around 11 pm. When the victim was
abducted, he did not know the appellants. Abductors took
Ramkishan also alongwith them to cover some distance but
later on released him on same day but Laxman was kept
allegedly by the abductors till 04/08/2006. Therefore, best
witness to identify and recognize the abuductors was
Ramkishore, beside abductee Laxman, but here prosecution
did not produce Ramikishore in the Court to make statement.
This is material omission. Laxman slipped out from clutches of
abductors and returned back to his village. Dastyabi
Panchnama (Ex.P-3) indicates the date of return as
04/08/2006. Appellants were already in jail in some other case
therefore, they were formally arrested on 29/09/2006.
12. Victim Laxman after coming back from abduction on
04/08/2006, filed a complaint for the first time on 24/08/2006 in
which name of two unknown miscreants were referred
therefore, TIP was conducted. The case is of circumstantial
evidence and only on the basis of TIP, appellants have been
convicted. In respect of appellant-Durga, TIP was conducted
on 04/12/2006 after delay of 5 months whereas victim Laxman
already reached home on 04/08/2006, whereas FIR was
registered on 24/08/2006 and appellants-Durga and Nandu
both were formally arrested on 09/09/2006, for this case (as
they were already behind the bar) therefore, police had
sufficient time in between for conduction of TIP but the same
was not done. Besides that TIP was vitiated if the evidence of
Laxman is seen alongwith evidence of Naib Tahsildar, DatiaP.P.
Parasar (PW-3).
13. Laxman @ Jhagga (PW-1) in his cross-examination in
para 11 admitted the fact that he did not know the accusedappellants
from the beginning but he referred the name of
Durga and his accomplice while giving police statement. In
para-14, he admits the fact that after his release, police caught
Durga and taken him to the Police Station where he informed
the police that the person who is caught hold by the police is
Durga @ Raja and after one month, eye witness went to jail for
identification and identified Durga @ Raja. He also admitted
the fact that police has taken signature over certain
documents. Witness is not sure about about his signature
whether marked at police station or at somewhere else.
Deposition of Laxman (PW-1) in respect of test identification
reveals that victim-Laxman (PW-1) had already seen Durga at
Police Station and therefore, the purpose of test identification
at later stage in jail had no meaning and the same is vitiated by
the mischief of the police authorities. The purpose of test
identification is not to identify the already identified person.
Here police has shown the accused Durga to victim-Laxman,
therefore, said test identification cannot be relied upon. The
factum of test identification parade does not figure in the
testimony of inquiry officer- Yogendra Singh Jadon (PW-6)
therefore, the story of test identification is not at all established
by the prosecution beyond reasonable doubt rather it creates
doubt about the motive of police authority and the plea of false
implication intensifies.
14. TIP of Nandu was never held. Only Dock identification
was made. The reason for not conducting TIP of Nandu was
not explained by the prosecution. Victim Laxman in his court
statement referred the name of two Nandu (s), one is; Nandu
Kadera and another is Nandu Dheemar. Whether abductee
knew these abductors previously or whether the accused
Nandu was the same Nandu as referred by the victim, could
only be discerned through TIP but in respect of accused
Nandu, no TIP was conducted. It is possible that both these
accused were already in custody and to get wriggle out of the
pressure of incident and abduction, both these arrested
persons have been framed for the charge of abduction of
Laxman. From the submissions of counsel for the appellants,
it appears that appellants never sought their custody. If police
did not want to interrogate the appellants for recovery of arms,
recovery of money and for arrest of other alleged co-accused
then it raises doubt over the motive of the police to reach to
the truth and exact incident. This renders the investigation
doubtful.
15. Another circumstance which renders the case doubtful is
the fact that Ramkishan Kushwaha who was initially abducted
by the appellants, for the time being, but he did not depose on
oath whereas he was the best witness not only to substantiate
the story of abduction but for identification of the accused
persons. Ramkishan neither identified the accused by way
of TIP nor he deposed on oath before the trial Court. Why the
Star witness was kept behind the curtains by the prosecution is
the question which was not explained by the prosecution for
proving its case beyond reasonable doubt. This aspect is
further accentuated by the fact that out of total 18 witnesses
referred in the charge-sheet, only 6 witnesses were examined.
Interestingly, name of Ramkishan Kushwaha does not figure in
the list of witnesses at all. Therefore, it appears that story of
Ramkishan was created by the Police and prosecution to
implicate the appellants on false pretext. This further creates
doubt about the motive of police regarding false implication.
16. One more circumstance goes against the case of
prosecution is that as per the story of the prosecution,
Mukunda and Bihari tried to mediate allegedly between the
abductors and family of abductee by which Munnalal
Kushwaha (PW-2) who was brother of abductee gave Rs. 5
lacs to Bihari and Mukunda for release of his brother which
according to abductee-Laxman was given by them to Nandu
Kadera and Nandu Dheemar but they sought Rs.40,00,000/-
as ransom amount. This fact came in his examination-in-chief.
In cross-examination, he admitted the fact about the said
attempt made by the family. Victim-Laxman in para-8 of the
cross-examination also admitted the fact that this fact has not
been disclosed by him while giving statement under Section
161 of Cr.P.C. to the police and discloses this fact for the first
time in his court statement. The said improvement is a
material improvement in the fact situation of the case.
Prosecution could not establish the fact about the fate of said 5
lac rupees; whether the 5 lacs as allegedly given by the family
of the victim to the abductors for release of the victim, were
recovered from the accused persons or not. This fact could
have been explained and substantiated, if Mukunda and Bihari
would have deposed before the Court to lead evidence on
behalf of prosecution. Although Investigating Officer in his
court statement referred the fact that Mukunda was one of the
accused in the instant case and died in an encounter but when
Mukunda was one of the accused in the instant case then how
he could have been a middle man and why the police authority
has not referred him alongwith Bihari as accused persons in
the charge-sheet or prior to it, why their names were not taken
by the police for consideration for investigation purpose.
These all facts create strong suspicion against the motive of
the police authorities wherein they wanted to frame the present
appellants for the offence referred above. The omission of
story of 5 lacs in the statement of Laxman under Section 161
of Cr.P.C. vis a vis court statement and the fact of no recovery
of amount from the accused, stares at the prosecution and
renders the story of prosecution severely doubtful.
17. Witness of arrest memo (Ex.P-4) and witness of seizure
memo (Ex.P-9) under Section 27 of the Indian Evidence Act
were never examined before the trial Court. Therefore, seizure
of weapons was not proved beyond reasonable doubt.
18. Another loop in the story is reference of several
miscreants while conducting abduction by the victim-Laxman,
but police never cared for reaching to them or to nab them to
bring them to books, when the statements of witnesses reveal
presence of several persons while performing abduction then
why the prompt action of the police confined only to the extent
of present appellants and no explanation was offered about
other alleged accomplice like Mukunda, Bihari and other
Nandu (s) as referred in the complaint and statements. Why
they were not arrested or made accused in charge-sheet the
question which haunts the police and prosecution. This aspect
further creates doubt about the motive of prosecution to falsely
implicate the appellants because either the complaint filed by
the complainant and the victim was bereft of truth or
prosecution could not able to discharge its functions properly
and just to cover up their fallacy, falsely implicated the present
appellants, who were already in the jail in some other case and
that is the travesty of justice.
19. (The Hon'ble Apex Court in the case of Sheo Shankar
Singh Vs. State of Jharkhand, (2011) 3 SCC 654 has held as
under:-
“46. It is fairly well settled that identification of
the accused in the court by the witness
constitutes the substantive evidence in a case
although any such identification for the first
time at the trial may more often than not appear
to be evidence of a weak character. That being
so a test identification parade is conducted with
a view to strengthening the trustworthiness of
the evidence. Such a TIP then provides
corroboration to the witness in the court who
claims to identify the accused persons
otherwise unknown to him. Test identification
parades, therefore, remain in the realm of
investigation.
47. The Code of Criminal Procedure does
not oblige the investigating agency to
necesssarly hold a test identification parade
nor is there any provision under which the
accused may claim a right to the holding of a
test identification parade. The failure of the
investigating agency to hold a test
indentification parade does not, in that view,
have the effect of weakning the evidence of
identification in the court. As to what should be
the weight attached to such an identification is
a matter which the courts will determine in the
peculiar facts and circumstances of each case.
In appropriate cases the court may accept the
evidence of identification in the court even
without insisting on corroboration.
48. The decisions of this Court on the subject
are legion. It is, therefore, unnecessary to
refer to all such decisions. We remain content
with a reference to the following observations
made by this Court in [(2003) 5 SCC 746]:
(SCC pp. 751-52, para 7)
“7. 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
under Section 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 a 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. The identification
parades belong to the stage of investigation,
and
there is no provision in the Code of Criminal
Procedure which obliges the investigating
agency to hold, or confers a right upon the
accused to claim a test identification parade.
They do not constitute substantive evidence
and these parades are essentially governed by
Section 162 of the Code of Criminal Procedure.
Failure to hold a test identification parade
would not make inadmissible the evidence of
identification in court. The weight to be
attached to such identification should be a
matter for the courts of fact. In appropriate
cases it may accept the evidence of
identification even without insisting on
corroboration. (See Kanta Prashad v. Delhi
Admn. [AIR 1958 SC 350], Vaikuntam
Chandrappa v. State of A.P. [AIR 1960 SC
1340], Budhsen v. State of U.P. [(1970) 2 SCC
128 ] and Rameshwar Singh v. State of J&K
[(1971) 2 SCC 715].)”
49. We may also refer to the decision of this
Court in Pramod Mandal v. State of Bihar
[(2004) 13 SCC 150 ] where this Court
observed: (SCC p. 158, para 20) “20. It is
neither possible nor prudent to lay down any
invariable rule as to the period within which a
test identification parade must be held, or the
number of witnesses who must correctly
identify the accused, to sustain his conviction.
These matters must be left to the courts of fact
to decide in the facts and circumstances of
each case. If a rule is laid down prescribing a
period within which the test identification
parade must be held, it would only benefit the
professional criminals in whose cases the
arrests are delayed as the police have no clear
clue about their identity, they being persons
unknown to the victims. They, therefore, have
only to avoid their arrest for the prescribed
period to avoid conviction. Similarly, there may
be offences which by their very nature may be
witnessed by a single witness, such as rape.
The offender may be unknown to the victim and
the case depends solely on the identification by
the victim, who is otherwise found to be truthful
and reliable. What justification can be pleaded
to contend that such cases must necessarily
result in acquittal because of there being only
one identifying witness? Prudence therefore
demands that these matters must be left to the
wisdom of the courts of fact which must
consider all aspects of the matter in the light of
the evidence on record before pronouncing
upon the acceptability or rejection of such
identification.”
20. In the present set of facts, TIP was vitiated by its inherent
procedural impropriety and except that, no reliable evidence is
available to implicate appellants beyond reasonable doubt.
21. Resultantly, appeals preferred by the appellants-Durga
and Nandu deserves credence and acceptance and
resultantly, Cr.A. No.812/2008 and Cr.A. No.866/2008 are
hereby allowed. Judgment of conviction and order of
sentence dated 17/10/2008 passed in S.T. No.04/2007 by the
Special Judge, Datia passed against the appellants is hereby
set aside. Since the prosecution has not proved its case
beyond reasonable doubt and trial Court erred in relying upon
the very weak evidence led by the prosecution and erred in
convicting the appellants, therefore, appellants- Durga @ Raja
and Nandu @ Nandkishore are directed to set free
immediately if they are in confinement.
22. If appellants look in hindsight then the distance covered
by them between this period is been full of painful memories,
remorse and agony. At this juncture, this Court feels that
valuable period of 12 years of appellants have been consumed
at the altar of false implication due to defective investigation
and casually conducted trial with poor appreciation of evidence
by the trial Court.
23. The Right to Life is a Fundamental Right enshrined
under the Fundamental Rights of the Constitution, in the most
coveted chapter (Chapter III of Fundamental Rights) of the
Constitution coupled with the enlightenment displayed by the
Preamble of our Constitution wherein Securing Justice to
Citizens has been placed at the top of all virtues and being a
democratic and welfare State, it is incumbent upon the State to
take care of its citizens with motherly tenderness specially,
when a citizen is severely bruised by the organs of the State.
Therefore, this Court finds the instant case, a fit case for grant
of compensation of Rs.1,00,000/- (one lac only) each, to both
the appellants to be granted as compensation for the injustice
inflicted over them by way of false implication. Our criminal
Juris prudence gives more stress over avoiding of false
implication of an innocent to the extent where hundred guilty
may go scot- free. The spirit behind the same is very pious.
Even otherwise, by one case of false implication of an
innocent, rule of law loses one exponent (supporter) and a
rebel with defiance towards rule of law is ready. Poor
investigation with tainted prosecution is perfect recipe for such
eventuality.
24. Although, no such provision exists in the Cr.P.C. for
compensating the accused but certainly State cannot wriggle
out from its constitutional and tortious liability, in the present
set of facts. Fundamental right of a person cannot be
sacrificed at the altar of mis-governance or at the whims or
because of poor investigation. State Government would be at
liberty to recover the said amount from the erring officers/
investigation officers, if appropriate authority decides so, after
giving opportunity of hearing to them and if their casualness
and negligence are proved in an enquiry.
25. Time has come when the Rule of Law is to be included
as one of the essential components of infrastructure like road,
water, electricity etc., otherwise these component of
infrastructure and development would be sacrificed at the altar
of mis-governance and lawlessness. Bridging of schism
between rule of law and lawlessness is the need of the hours.
It is expected from the Law Department, Home Department
and Prosecution Department of the State Government that
they will create a mechanism for scientific and methodical
police investigation and scientific and methodical prosecution
of the accused so that citizen may get justice and spirit of
Right to Access Justice is fulfilled. A constant training
programme or continuous education with latest technology be
employed by the said authorities so that investigation and
prosecution agency may march with the time and people at
large be assured of their empowerment by way of Right to
Access Justice. Therefore, before parting, this Court finds
appropriate to direct the State of M.P. through Principal
Secretary, Law and Legislative Affairs to coordinate and make
arrangements with the appropriate department of State
Government to grant compensation to the appellants-Durga @
Raja s/o Amarju Kori and Nandu @ Nandkishore s/o Shankari
Rs.1,00,000/- each for the reasons stated above. Needful be
done within two months from today.
26. Office is directed to send the copy of this order to the
Principal Secretary Law and Legislative Affairs as well as
Principal Secretary, Home Department for appropriate action,
coordination and compliance, as referred in preceding
paragraphs.
27. Appeal stands allowed in above terms. Release
warrants of appellants be issued forthwith.
28. Copy of the the judgment be sent to the concerned trial
Court for information and necessary compliance.
(S.A. Dharmadhikari) (Anand Pathak)
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