Full Judgment Text
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NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1333 of 2009
RAJU MANJHI APPELLANT
VERSUS
STATE OF BIHAR RESPONDENT
JUDGMENT
N.V. RAMANA, J.
rd
1. This appeal is directed against the judgment dated 3 August,
2005 passed by the High Court of Judicature at Patna in
Criminal Appeal (D.B.) No. 447 of 2001, whereby the High
Court dismissed the appeal filed by the accused—appellant
herein and upheld the order of conviction and sentence passed
by the learned Additional District & Sessions Judge, Gaya.
Signature Not Verified
Briefly stated, the facts of the case as culled out from the case
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Digitally signed by
VISHAL ANAND
Date: 2019.02.14
12:37:41 IST
Reason:
th th
of prosecution are that in the intervening night of 11 and 12
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January, 1999 a group of assailants consisting 10 to 12
persons including the appellant herein, all aged between 20 to
25 years, barged into the house of one Kamdeo Singh of the
village Banbareya, P.S. Moffasil, District Gaya and decamped
with golden ornaments, pants and cash. In the protest by the
inmates of the house, the assailants caused injuries to
Kamdeo Singh, his fatherinlaw Kameshwar Singh, son Niraj
Kumar (PW2), wife Sita Devi and daughterinlaw Reena Devi.
The stolen items include golden bangle, golden rings, cash of
Rs.5,000/ and altogether the worth of stolen property would
be Rs.25,000/. At about 2 am in the night, Kamdeo Singh
lodged a complaint with the Moffasil police, on the basis of
which a case under Section 395/412, IPC was registered
against unknown persons. Zamil Ashgar (PW10)—Officer in
charge of the Muffasil P.S. took up the investigation and
rushed to the place of occurrence. He recorded statement (Ext.
4) of Kamdeo Singh (PW3), prepared injury reports in respect
of the inmates of the house and sent them to hospital for
treatment. As the injured Kameshwar Singh had succumbed
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to the injuries, charged under Section 396, IPC was replaced
for the offence under Section 395, IPC against the accused. In
the course of further investigation, police arrested some of the
accused, recorded their statements, recovered some money
from them. Out of the six accused persons charged with the
offence, one Rameshwari Manjhi @ Umeshwari Manjhi has
been declared as absconder. The accused pleaded not guilty
and claimed to have been implicated falsely, therefore, wanted
to be tried.
3. At the trial, the prosecution in support of its case examined as
many as eleven witnesses. Relying upon the incriminating
material as well as depositions and confessional statements of
the accused, the trial Court came to the conclusion that the
prosecution could prove the guilt of the accused beyond
reasonable doubt. Accordingly, the trial Court convicted the
accused for the offence punishable under Section 396, IPC
and sentenced them to suffer rigorous imprisonment for life
and also to pay a fine of Rs.1,000/ each, failing which to
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further suffer rigorous imprisonment for a period of six
months.
4. All the aggrieved accused persons, including the appellant
herein, carried the matter by way of separate appeals before
the High Court. By an elaborate judgment which is impugned
herein, the High Court dismissed the appeal affirming the
conviction and sentence awarded by the trial Court. That is
how the accused Raju Manjhi is in appeal before us.
5. At the outset, we would like to record that whenever this
appeal came up for hearing before us, learned counsel for the
appellant remained absent. Therefore, in the interest of
justice, we directed the Supreme Court Legal Services
Committee to appoint an advocate to defend the case of
appellant. In accordance therewith, Ms. Nidhi, learned counsel
appeared and argued on behalf of the appellant.
We have heard learned counsel appearing for the parties on
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either side and carefully perused the material available on
record.
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7. A specific argument has been put forward on behalf of the
appellant that though there was no concrete proof to establish
the participation of the appellant in the alleged crime, the trial
Court as well as the High Court believed the prosecution story
on flimsy grounds and convicted him. Merely on the basis of
prosecution story that when the police raided the house of
appellant, he was available in the house and an amount of
Rs.400/ has been recovered from his possession, the
appellant cannot be stamped as an accused and being
involved in the crime. As a matter of fact, there was no act of
dacoity or burglary took place on the alleged place of
occurrence in which the accused—appellant was a participant.
Moreover, the appellant was not identified by any witness in
the test identification parade and also in the Court. This
circumstance itself points at the innocence of the appellant.
The case was fastened against the accused out of enmity and
it is with the connivance of the informant and I.O. who
dragged the accused into the alleged crime. The recovery made
by the police, of a petty amount of Rs.400/ from the house of
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the appellant could not be an incriminating factor. One cannot
claim it to be the looted money connecting him to the crime,
more so when there was no claim for such money by the
informant or any other prosecution witness. Even the alleged
confessional statement of the appellant, cannot be given legal
validity as it was not made before a Magistrate. Particularly
when the trial Court itself expressed doubt on the genuineness
of the confessional statement as the alleged confessional
statements of other accused were also under the same
handwriting and drawn by the police, they cannot be taken
into account.
It is further case of the appellant that the prosecution could
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not prove the motive of the appellant in committing the crime.
There was no injury report brought on record in respect of
PWs 1, 2 and 3 who were stated to have sustained injuries in
the occurrence when the I.O. said to have drawn their injury
reports. There were so many latches on the part of prosecution
and the appellant herein had no criminal antecedents, yet the
Courts below without taking into account the importance of all
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these circumstances simply believed the prosecution story and
held the appellant guilty of the offence. Therefore, the
impugned judgment calls for the interference of this Court and
deserves to be set aside.
On the other hand, learned counsel appearing for the State of
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Bihar supported the view taken by the Courts below. He
submitted that there was enough material on record which
clearly establishes the guilt of the accused beyond reasonable
doubt. There was credible evidence available on record to
believe that the appellant was a party to the accused group
and was guarding at the entrance of the victim’s house when
the other participants were on the spree of ransacking the
households of the victim. The statement of confession recorded
at the instance of the accused—appellant not only proves his
guilt but also led to the discovery of new facts in the case. It
helped the I.O. for the recovery of incriminating material and
looted cash from his house. The accused—appellant had by
participating in the crime, shared the looted articles and there
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is no bar to validate his confessional statement under the
provisions of Indian Evidence Act.
10. Having heard learned counsel on either side we have given our
intense consideration to the facts and circumstances of the
case and taken note of the analysis adopted by the Courts
below in reaching to the conclusion. First and foremost,
considering the primary contention advanced on behalf of the
appellant that there was no instance of alleged dacoity on the
time and place of occurrence wherein the accused was a party,
we find from the deposition of Reena Devi (PW1), daughterin
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law of the informant that on the intervening night of 11 and
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12 January, 1999 on hearing some disturbance, she woke up
and found the assailants armed with sticks, looting articles in
the house. When she tried to resist, they assaulted her and
took away her ornaments including golden bangle and a chain
and also tried to snatch her child. A brief case of her husband
Neeraj Kumar (PW2) containing clothes and cash of Rs.5,200/
has also been stolen. Altogether the worth of stolen property
would be Rs.25,000/. In that commotion, hearing her hue
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and cry her fatherinlaw—PW3 (informant) and motherinlaw
came there who objected the assailants and they too were
assaulted by the accused.
11. Corroborating the statement of PW1, PW2—Neeraj Kumar,
stated that the accused caused injuries to Kameshwar Singh
due to which he fell down on the ground and later on
succumbed to the injuries in the hospital. The evidence of
PW3—informant also on the same lines as that of PWs 1 and
2. According to Zamil Asghar—the Investigating Officer
(PW10), on receiving information about the occurrence of
dacoity, the FIR (Ext.5) was registered and thereafter he visited
the place of occurrence and recorded the statement of the
informant and other inmates of the house and sent the injured
to Piligrim Hospital, Gaya for their treatment. Upon knowing
that the alleged assailants were at Mohalla Balapar where they
were consuming wine, he proceeded to that place and then
rushed to the house of main accused Munna Manjhi and
apprehended him at Samitee Bhawan. On his confession
about the commission of the offence and disclosure of the
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names of other assailants, the I.O. raided the houses of other
accused and apprehended them. He categorically stated that
the appellant herein has made confessional statement which
was prepared by him (Ext. 7/1). He has also visited one
orchard belonging to Kamal Jain situated near Jag Jiwan
College and from there he recovered two bloodstained wooden
pieces (sticks) under Exts. III and III/1 allegedly used in the
crime and also seized polythene wine bags under Exts. I to
I/V, besides recovering money from the possession of accused
in the denomination of Rs.100 x 3 and Rs. 50 x 4. The
evidence of other prosecution witnesses and also the
confessionals statements of accused assailants and the
recoveries made by the police substantiate the act of dacoity
took place at the house of the informant and the injuries
sustained by the inmates.
12. The other ground urged on behalf of the appellant is that the
so called confessional statement of the appellant has no
evidentiary value under law for the reason that it was
extracted from the accused under duress by the police. It is
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true, no confession made by any person while he was in the
custody of police shall be proved against him. But, the
Evidence Act provides that even when an accused being in the
custody of police makes a statement that reveals some
information leading to the recovery of incriminating material or
discovery of any fact concerning to the alleged offence, such
statement can be proved against him. It is worthwhile at this
stage to have a look at Section 27 of the Evidence Act.
27. How much of information received from
accused may be proved.— Provided that, when any
fact is deposed to as discovered in consequence of
information received from a person accused of any
offence, in the custody of a police officer, so much of
such information, whether it amounts to a
confession or not, as relates distinctly to the fact
thereby discovered may be proved.
13. In the case on hand, before looking at the confessional
statement made by the accused—appellant in the light of
Section 27 of the Evidence Act, may be taken into fold for
limited purposes. From the aforesaid statement of the
appellant, it is clear that he had explained the way in which
the accused committed the crime and shared the spoils. He
disclosed the fact that Munna Manjhi was the Chief/Head of
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the team of assailants and the crime was executed as per the
plan made by him. It is also came into light by his confession
that the accused broke the doors of the house of informant
with the aid of heavy stones and assaulted the inmates with
pieces of wood (sticks). He categorically stated that he and
Rampati Manjhi were guarding at the outside while other
accused were committing the theft. The recoveries of used
polythene pouches of wine, money, clothes, chains and bangle
were all made at the disclosure by the accused which
corroborates his confessional statement and proves his guilt.
Therefore, the confessional statement of the appellant stands
and satisfies the test of Section 27 of the Evidence Act.
As regards the claim of appellant that nonidentification of the
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accused by the witness would not substantiate the
prosecution case, admittedly no prosecution witness has
identified the accused—appellant which does not mean that
the prosecution case against the accused is on false footing.
As a general rule, identification tests do not constitute
substantive evidence. The purpose of identification test is only
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to help the investigating agency as to whether the investigation
into the offence is proceeding in a right direction or not. In our
view, nonidentification of the appellant by any prosecution
witness would not vitiate the prosecution case. It is evident
from the confessional statement of the accused that at the
time of occurrence he and another accused Rampati Manjhi
were guarding outside the informant’s house while other
accused were committing dacoity inside. We do not think that
there is any justification to the argument that as none of the
prosecution witnesses could be able to identify the appellant,
he cannot be termed as accused. In our view, such non
identification would not be fatal to the prosecution case in the
given facts and circumstances.
The identification parade belongs to the stage of investigation,
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and there is no provision in the Code 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. Failure to
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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 :
v. 1958 CriLJ 698
Kanta Prashad Delhi Administration,
and Vaikuntam Chandrappa and Ors. v. State of Andhra
AIR 1960 SC 1340].
Pradesh,
16. Moving on to the other limb of argument advanced on behalf of
the appellant that the accused—appellant had no motive and
the Courts below have failed to consider the fact that the
evidence on record is not sufficient to establish motive of the
accused. Undoubtedly, ‘motive’ plays significant role in a case
based on circumstantial evidence where the purpose would be
to establish this important link in the chain of circumstances
in order to connect the accused with the crime. But, for the
case on hand, proving motive is not an important factor when
abundant direct evidence is available on record. The
confessional statement of the appellant itself depicts the
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motive of the team of accused in pursuit of which they
committed the robbery at the house of informant and the
appellant being part of it.
17. It is also clear from the statement of the accused—appellant
that the inmates of the house suffered injuries at the hands of
the accused party as they had beaten them with the pieces of
wood (sticks) and created terror among them. The recovery of
bloodstained sticks from the orchard of Kamal Jain and the
FSL report (Ext.X) proves the circumstance with no manner of
doubt. Another facet of the case as portrayed by the appellant
in his defense is that the informant implicated the appellant in
the crime with the connivance of I.O. due to old enmity.
However, we do not find any evidence or material on record in
support of such claim made by the appellant. On the other
hand, not only by the recovery of Rs.400/ from the house of
appellant his participation stands proved, with the other
incriminating evidence available on record.
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18. In view of the foregoing discussion and having regard to the
facts and circumstances of the case we have no hesitation to
conclude that the prosecution has proved the case against the
accused—appellant beyond all reasonable doubts. We,
therefore, find no infirmity or illegality in the impugned
judgment passed by the High Court. Consequently, the appeal
preferred by the accused being bereft of any substance, the
same stands dismissed.
…………......................J.
(N.V. RAMANA)
..................................J.
(S. ABDUL NAZEER)
NEW DELHI,
August 02, 2018.