2013 Supreme(Raj) 1693
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Mohammad Rafiq, Nisha Gupta, JJ.
Ramu - Appellant
Versus
State of Rajasthan - Respondent
D.B. Cr. Appeal No. 897 of 2005.
Decided On : 2-09-2013
Advocates:
For the Accused Appellant:Biri Singh, Senior Advocate with Rajesh Choudhary, Advocate.
For the Party: Javed Choudhary, Public Prosecutor.
The identification of an accused by eye-witnesses in court is sufficient to convict him, even though there was no test identification parade.
Headnote:
IDENTIFICATION OF ACCUSED - TEST IDENTIFICATION PARADE - NOT MANDATORY - EVIDENCE OF EYE-WITNESSES - SUFFICIENT FOR CONVICTION - SECTION 302 IPC - MURDER - CONVICTION UPHELD.
Fact of the Case:
The appellant was convicted of murder under Section 302 IPC. The prosecution's case was that the appellant, along with others, had assaulted the deceased and caused his death. The appellant denied the charges and claimed that he was falsely implicated.
Finding of the Court:
The court found that the appellant was identified by three eye-witnesses in court. The court also found that the appellant's description in the arrest memo was different from the description given by the witnesses in their statements under Section 161 Cr.P.C. However, the court held that this discrepancy was not fatal to the prosecution's case, as the witnesses had identified the appellant in court without hesitation.
Issues: 1. Whether the identification of the appellant by the eye-witnesses in court was sufficient to convict him, even though there was no test identification parade? 2. Whether the discrepancy between the appellant's description in the arrest memo and the description given by the witnesses in their statements under Section 161 Cr.P.C. was fatal to the prosecution's case?
Ratio Decidendi: 1. The court held that the identification of the appellant by the eye-witnesses in court was sufficient to convict him, even though there was no test identification parade. The court relied on the Supreme Court decision in Dana Yadav @ Dahu & ors. v. State of Bihar, (2002) 7 SCC 295, which held that an identification parade is a tool of investigation and is not a condition precedent to relying on the evidence of a witness in regard to the identification of the accused in court. 2. The court also held that the discrepancy between the appellant's description in the arrest memo and the description given by the witnesses in their statements under Section 161 Cr.P.C. was not fatal to the prosecution's case. The court held that the description of the appellant was immaterial, as the witnesses had identified him in court without hesitation.
Final Decision: The court dismissed the appeal and upheld the appellant's conviction.
JUDGMENT
1. - This DB Cr. Appeal under Section 374 sub-clause (2) Cr.P.C., has been filed against the judgment and order dated 29.6.2005 passed by Additional Sessions Judge (Fast Track), Sawai Madhopur in Sessions Case No. 6/2004 whereby the present appellant has been convicted and sentenced as under:-
For offence under Section 302/34 IPC to L.I. with fine of Rs. 500/- and in default of payment of fine three months additional S.I.
Under Section 325/34 IPC to 3 years S.I. with fine of Rs. 500/- and in default of payment of fine 15 days additional S.I.
For offence under Section 323 IPC to 6 months S.I.
All the sentences were ordered to run concurrently.
2. The brief facts giving rise to this appeal are that on the basis of Parchabayan (Ex. P/35) of Munshiram S/o Bherulal recorded at Government Hospital, Indragarh, a First Information Report No. 106/2001 was registered for offences under Section 302 and 307 IPC. It was alleged in the Parchabayan that at about 8.00 AM, 6-7 persons including Munshiram and others were grazing their camels in the forest of Papda and also preparing food, at that time three persons came there, out of whom one person was in Khaki cloths, second was wearing Khaki shirt and dhoti and third was in white cloths. All the three persons have told them to go with them otherwise they would be killed. One person was armed with a gun. On their threatening, Badri Rebari, Sohan Rebari, Mohan Rebari, Buddha Rebari and Shyoji Rebari all went with them. At some distant place 5-6 persons were also sitting. They started beating them and as a result sustained injuries. Buddha Rebari and Shyoji Rebari succumbed to the injuries on the spot and others were shifted to the Indragarh hospital.
3. After investigation charge sheet was filed against co-accused persons. The present appellant was shown to be a absconder and investigation was kept pending against the present appellant under Section 173(8) Cr.P.C. After the arrest of the present appellant, a supplementary charge-sheet came to be filed against appellant along with other co-accused Mohan, Ram Prasad and Ramesh. The present appellant has been charged for the offence under Section 148, 302, 302/149, 307 and 307/149 whereas the co-accused Ramesh, Mohanlal and Ramprasad were discharged by the competent court. Against other accused persons, Ramdhan etc., the trial was going on and on 26.4.2005, the sessions trial against the present appellant and Ramdhan etc. has been consolidated. To prove the case against the present appellant, Hemant Gautam (PW-1), Munshi (PW-2), Sumer Singh (PW-3), Mohanlal (PW-4), Hemraj (PW-5), Dulharam (PW-6), Sohanlal (PW-7), Badri (PW-8), Badrilal (PW-9), Daulatram (PW-10), Moti (PW-11), Moti S/o Harji (PW-12), Shanker (PW-13), Abdul Jangid (PW-14), Chhotu (PW-15), Chotulal (PW-16), Satyanarain (PW-17), Ghanshyam (PW-18), Bhanwarsingh (PW-19), Omprakash (PW-20), Hanuman (PW-21), Prakashchand (PW-22), Santsingh (PW-23), Sitaram (PW-24), Dr. Virendra Saxena (PW-25) and Babulal (PW-26) have been examined. The present appellant has been examined under Section 313 and in defence, DW/1 Dhanji has been produced. After conclusion of trial, the present appellant is convicted and sentenced as above whereas other co-accused Ramdhan, Ramswaroop, Ganesh, Latoor, Kailash and and Babulal have been acquitted. Hence this appeal.
4. The contention of the present appellant is that he has been implicated falsely. The present appellant has been identified in the court for the first time which is not a sufficient evidence to record the conviction. No identification parade has been conducted qua the present appellant. Statement of the witnesses have been recorded with delay under Section 161 Cr.P.C. The physical appearance of the present appellant is totally different which has been narrated in the statements under Section 161 Cr.P.C. PW-2 Munshi and PW-8 Badri have not identified the present appellant in the Court and his other forceful argument is that on the same set of evide
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