w w w . L a w y e r S e r v i c e s . i n



Praveen Singh @ Bhaya Singh v/s State


Company & Directors' Information:- PRAVEEN INDIA LTD . [Active] CIN = L21029WB1983PLC036326

Company & Directors' Information:- PRAVEEN & COMPANY PRIVATE LIMITED [Strike Off] CIN = U99999DL1999PTC098397

    D.B. Criminal Appeal No. 610 of 2016

    Decided On, 07 August 2018

    At, High Court of Rajasthan Jodhpur Bench

    By, THE HONOURABLE MR. JUSTICE SANGEET LODHA & THE HONOURABLE MR. JUSTICE VIRENDRA KUMAR MATHUR

    For the Appellant: B.S. Rathore, T.S. Rathore, Dr. Yuvraj Singh, Advocates. For the Respondent: Vishnu Kachhawaha, P.P.



Judgment Text

Sangeet Lodha, J.

1. This appeal is directed against judgment dated 17.6.16 of the Special Judge, Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act Cases, Sirohi, whereby the appellant Praveen Singh @ Bhaya Singh S/o Arjunsingh, has been convicted for offence under Section 302 IPC and sentenced to suffer life imprisonment and fine Rs. 25,000/-; in default, to further undergo six months' rigorous imprisonment.

2. The prosecution story in nutshell as set out in the written report (Ex.P/7) submitted by complainant PW-3 Chunnilal before the SHO, Police Station, Pindwada is that on 21.10.13, at around 4.00 PM, his elder brother Shankarlal s/o Nenaram came home on motorcycle from Gadiya. After some time, Bhanusingh s/o Arjun Singh r/o Naya Sanwada with one another person came to Shankar's house on motorcycle and took Shankar along with them. The son of the Complainant's uncle Chhagan while returning home after grazing goats, at the rapat situated near Veerbavsi, he saw dead body of Shankar and also Bhanusingh and the person accompanying going from rapat towards Kantal. After coming home, Chhagan informed about the incident to complainant's brother Jesaram's wife Meera and Pinta s/o Shankar, thereupon, Jesaram and Jabarsingh Tempowala went to the spot and saw the dead body of Shankar. The complainant came to know about the incident at 6.00 PM when he returned home. He reported that his brother has been killed by Bhanusingh and the person accompanying him. It was stated that Chhagan know the person accompanied by face. As per the complainant, the accused persons have entered into altercation with the deceased Shankarlal earlier also.

3. On the basis of the written report (Ex.P/7) submitted by the complainant P.W.3-Chunnilal, the police registered FIR bearing No.362/13 (Ex.P/40) and investigation commenced.

4. During the investigation, after inquest proceedings, the dead body of Shankarlal was subjected to autopsy, necessary memos were drawn and the statements of witnesses were recorded under Section 161 Cr.P.C. The accused persons were arrested. At the instance of the accused Praveen, weapon of offence Dhupia, his clothes and motorcycle were recovered. At the instance of accused Gemaram, his blood stained shirt was recovered. The places of occurrence and the recovery were verified at the instance of the accused persons. The FSL report was obtained. After completion of the investigation, the police filed the charge-sheet against the accused Praveen Kumar @ Bhaya Singh and Gemaram for offences under Section 302/34 IPC and Section 3 (2) (v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (for short "SC/ST Act") before the Judicial Magistrate, Pindwada. The matter was committed to the Court of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act Cases, Sirohi.

5. The learned trial Judge framed the charges against the accused appellant and accused Gemaram for offences under Section 302/34 IPC and 3 (2) (v) of the SC/ST Act. The accused persons denied the charges and claimed trial.

6. During the trial, the prosecution in support of the case examined as many as 16 witnesses (PW 1 to PW 16) and produced the documentary evidence Ex.P/1 to Ex. P/41. The appellant and the co-accused in their defence did not produce any witness, however, on their behalf the documentary evidence was exhibited as Ex.D/1 to Ex.D/4. The statements of the appellant Praveen Kumar and co-accused Gemaram were recorded under Section 313 Cr.P.C. wherein they denied their involvement in the commission of the offences and stated that they have been falsely implicated in the case. They stated that the recoveries alleged to have been effected at their instance are fake.

7. After due consideration of the rival submission and the evidence on record, the learned trial Judge while acquitting the appellant for offence under Section 3 (2) (v) of the SC/ST Act, convicted him for offence under Section 302 IPC and sentenced to suffer imprisonment as indicated above. The co-accused Gemaram was acquitted of the charges.

8. We have heard the learned counsel for the appellant and learned Public Prosecutor and carefully scanned the evidence adduced at the trial.

9. Learned counsel appearing for the appellant Mr. B.S.Rathore, contended that in the written report (Ex.P/7), the appellant was not named as an accused inasmuch as the person named i.e. Bhaya Singh is the name of the brother of the appellant. Learned counsel submitted that as a matter of fact, after lodging the written report, for three days, the appellant was not in picture and his name was first time disclosed by PW-2 Chhaganlal, PW-4 Nenaram, P.W.7-Jaisaram and P.W.8-Pintu in their statements recorded by the police under Section 161 Cr.P.C. as Praveen Singh @ Bhanusingh. Learned counsel submitted that the police did not record the statements of the witnesses including the witness P.W.2-Chhaganlal who alleged to have seen the appellant on the fateful day going from rapat towards Kantal accompanied by one more person, immediately and the statements were recorded after two days on 23.10.13. Drawing the attention of this Court to the application (Ex.P/8) alleged to have been submitted by P.W.4- Nenaram, the father of the deceased, for correction in the FIR inter-alia disclosing the name of the accused accompanying appellant as Gemaram, however, even in the said application, the name of the appellant was not disclosed. Learned counsel submitted that strangely enough, the application (Ex.P/8) submitted by P.W.4-Nenaram does not bear the date of presentation. Learned counsel submitted that as per written report (Ex.P/7), P.W.2-Chhaganlal, while returning after grazing the goats, saw the dead body of Shankarlal at Veerbavsi near the rapat as also Bhanusingh and a person accompanying him going from rapat towards Kantal, however, improving the version as disclosed in the FIR, P.W.2-Chhaganlal, in his statement recorded under Section 161 Cr.P.C. stated that on fateful day, near Veerbavsi temple, he was grazing the goats, Shankarlal the son of his uncle, Praveen Singh @ Bhaya Singh and one more person looking like belonging to Garasiya community came there, all the three persons while parking the motorcycle near the Nala, went to the temple and after quite some time, Praveen Singh @ Bhaya Singh and the person accompanying him came running and while starting motorcycle proceeded towards Kantal, then Shankar was not accompanying them. Thereupon, he went to the temple and saw Shankar lying injured there. There were injuries on his face, the blood was found spread there. P.W.2-Chhaganlal, on his examination before the Court, in the examination-in-chief, reiterated the story as disclosed in the statement recorded under Section 161 Cr.P.C., but in cross-examination, he categorically admitted that none of the two persons indulged in the commission of crime were known to him and he was not in a position to recognize them. He categorically deposed that if the persons were known to him, then how on the basis of the information given by P.W.2-Chhaganlal, the name of the accused in the written report (Ex.P/7) was disclosed as Bhaya Singh and later the appellant was implicated disclosing his name as Praveen Singh @ Bhaya Singh. Learned counsel urged that if the accused persons were not known to P.W.2-Chhaganlal, then it was obligation of the Investigating Officer to have conducted identification parade and thus, the identification of the appellant and the co-accused by the said witness for first time in the Court has no evidentiary value.

Drawing the attention of the Court to the deposition of P.W.3- Chunnilal who deposed that his brother deceased Shankarlal had returned home from village Gadiya on motorcycle around 4.00 PM, then the accused persons Gemaram and Praveen Singh came to their house and took away Shankarlal on the motorcycle to Veerbavsi temple, where his cousin Chhagan grazing the goats had seen them and thereafter his cousin Chhagan saw the dead body of Shankarlal at Veerbavsi temple and the accused persons going on motorcycle towards Kantal. The incident was narrated by Chhagan to wife of Shankarlal Smt. Meera and his father P.W.4- Nenaram. Admittedly, the said witness had gone out for the work and came home only after hearing about murder of his brother and thus, whatever stated by him regarding the accused persons coming to their home was also hearsay. He categorically deposed that at the time of the lodging of the report, P.W.2-Chhagan, P.W.4-Nenaram and P.W.7-Jaisaram, were present there and thus, apparently the improvement made was afterthought. Regarding the name of Praveen Singh being disclosed in the written report (Ex.P/7) he deposed that earlier they were not knowing the name of Praveen Singh and only Bhanusingh was known to them, they came to know about the name of Praveen Singh later on.

Learned counsel submitted that P.W.4-Nenaram, in his examination-in-chief deposed that on the fateful day, he, his daughter-in-law Meera and Pintaram s/o deceased Shankarlal, were at home. Around 4.00 PM, his son Shankarlal came from Gadiya on motorcycle, thereafter, the accused persons came to their home and said the deceased Shankarlal to accompany them to Pindwada, then all the three went on the motorcycle which was being driven by Praveen Singh, however, in cross-examination, he categorically admitted that the names of the accused persons were not mentioned in the report (Ex.P/8), inasmuch as, Gemaram and Praveen Singh were not known to him. He accepted the suggestion of the defense that he did not disclosed the features of the persons who had taken away deceased Shankarlal on motorcycle because he did not remember their features. He categorically admitted that it is not known to him as to how many children Arjunsinghji have, and he is not in a position to recognize their features either. Learned counsel submitted that in view of the categorical admission of the said witness as aforesaid, his deposition is also of not any evidentiary value. Learned counsel submitted that the wife of the deceased, Meera, alleged to be present at home, has not been examined as witness and P.W.8- Pintu has deposed that he had apprised P.W.3-Chunnilal about the persons with whom his father had gone and on that basis only the report was lodged at the police station, but at the same time, he categorically admitted that on 23.10.13 for the first time he disclosed the names of Praveen Singh and Gemaram as the persons indulged in murdering his father and before this, he was not knowing who had murdered his father and thus, the testimony of the said witness is also not reliable.

Drawing the attention of the Court to Site Plan (Ex.P/5), learned counsel submitted that the Site Plan was prepared on 22.10.13, inter-alia in presence of P.W.3-Chunnilal and therein it is specifically mentioned that on the basis of the statements of witnesses and PMR (post mortem report), the factum of accused persons murdering Shankarlal is proved and thus, obviously, though the statements of the witnesses were recorded on 22.10.13 so as to implicate the appellant herein as the accused in the matter, the statements of P.W.2-Chhaganlal and P.W.8-Pintu were shown to be recorded on 23.10.13 which is apparent from bare perusal of Ex.D/1 and Ex.D/4 respectively wherein there exists correction in the date. Learned counsel submitted that the recovery of pieces of Dhupia, alleged to have been made at the instance of the appellant from an open place alleged to be concealed under thorn fencing near Babool tree, in no manner connect the appellant with the commission of crime. Learned counsel submitted that there is nothing on record suggesting that the appellant caused injuries to the deceased by Dhupia and further that injuries found on the person of the deceased as disclosed in the post mortem report (Ex.P/23) could have been caused by Dhupia.

Drawing the attention of the Court to Ex.P/34, learned counsel submitted that the information regarding the blood stained shirt is alleged to have been furnished by the appellant on 23.10.13 at 11.45 AM, however, the recovery was deferred till 25.10.13 and the time of the recovery is not mentioned in the memo of recovery (Ex.P/19). Learned counsel submitted that as per P.W.11-Bhoparam, the recovery was not made by the police in his presence, rather the police had apprised him that they have brought the shirt from Jhumpa situated near the Well and thus, such recovery cannot be relied upon.

Lastly, learned counsel submitted that the appellant and the co-accused Gemaram both were charged for offence under Section 302/34 IPC, however, co-accused Gemaram has been acquitted but on the basis of the selfsame evidence, the appellant has been convicted. Neither it was the prosecution case nor it is proved that the appellant alone assaulted and caused death of Shankarlal and thus, the appellant could not have been convicted for offence under Section 302 IPC simpliciter. In support of the contention, learned counsel relied upon a decisions of the Hon'ble Supreme Court in the matters of 'Krishna Govind Patil vs. State of Maharashtra', 1963(2) Criminal Law Journal, 351, 'Subran alia Subramanian & Ors. vs. State of Kerala', 1993 scc (Cri.) 583 and 'Sangam Lal vs. State of U.P.', 2006(1) Crimes 67(SC).

10. On the other hand, learned Public Prosecutor submitted that it is true that in the first instance when the written report (Ex.P/7) was submitted the name of the appellant was wrongly mentioned as 'Bhanu Singh' but as soon as the accused involved in commission of the crime was identified as 'Praveen Singh', the error was corrected and even in the statement recorded under Section 161 Cr.P.C. of P.W.2-Chhaganlal, the name of the accused involved in the commission of the crime, the appellant herein, is mentioned as 'Praveen Singh @ Bhanu Singh'. Learned Public Prosecutor submitted that on the basis of the deposition of P.W.4- Nenaram and P.W.8-Pintu, it stands established beyond reasonable doubt that on fateful day around 4 P.M., both the accused persons came to deceased Shankarlal's house and all the three went to Pindwara. Learned Public Prosecutor submitted that the factum of all the three persons going to Veerbavsi Temple and after quite some time only the appellant and co-accused returning back, stands proved by deposition of P.W.2-Chhaganlal. It is submitted that on the basis of acquittal of the co-accused Gemaram, the appellant cannot claim acquittal inasmuch as, the evidence against both the co-accused was not entirely the same inasmuch as, at the instance of the appellant, blood stained Dhupia and clothes, which he was wearing at the time of occurrence, were recovered and as per the FSL report, the same were found to be stained with 'AB' blood group i.e. the blood group of the deceased. Learned Public Prosecutor further submitted that even if the co-accused is acquitted, the appellant can be convicted for offence under Section 302 IPC simpliciter and thus, on charge being proved, the learned trial court has committed no error in convicting the appellant for offence under Section 302 IPC.

11. We have considered the rival submissions and scanned the evidence on record carefully.

12. The autopsy of dead body of deceased Shankarlal was conducted by Medical Board consisting of Dr.Vijendra Choudhary, Medical Officer, Public Health Centre, Veerwada, Dr.M.S.Bhati, Medical Officer, Community Health Centre, Saroopganj and Dr.K.S.Gill, Medical Officer, Community Health Centre, Pindwara. As per post mortem report (Ex.P/23), following ante mortem injuries were found on the person of the deceased:

1. Lacerated wound 2 x 1x 1 (cm) on right side of upper lip.

2. Lacerated wound 2 x 2 x 6 (cm) on right temporal just above right ear.

3. Lacerated wound with Tear of right ear size 2 x x (cm).

4. Incised wound 2 x x 1 (cm) on right Tempo- Mandibular joint.

5. Incised wound 2 x x 1 (cm) just above injury No.2.

6. Incised wound 2 x 1 x 1 (cm) post to right ear.

7. Lacerated wound 2 x 2 x 1 (cm) right occipital temporal joint region."

The cause of death was opined to be shock due to head injury. The nature of the injuries found on the person of the deceased and the cause of death further stands confirmed by deposition of P.W.14-Dr. K.S.Gill.

In this view of the matter, the death of Shankarlal was concededly homicidal in nature.

13. Precisely, the prosecution story unfolded during the trial is that on fateful day around 4-4.30 P.M., the appellant and co- accused Gemaram came to deceased Shankarlal's house and from there, all three proceeded to Veerbavsi Temple on Motorcycle driven by the appellant Praveen Singh. All the three were seen going to Veerbavsi temple by P.W.2-Chhaganlal, who was grazing goats nearby the temple, however, after long time only the appellant and co-accused Gemaram came out of the temple and proceeded towards village Kantal on Motorcycle. When Shankarlal did not come out of the temple, P.W.2-Chhaganlal went to the temple and saw Shankarlal lying there in pool of blood. He informed about the incident occurred to P.W.4-Nenaram, the father of the deceased Shankarlal, his daughter-in-law Meera. P.W.3- Chunnilal submitted the written report (Ex.P/7) alleging that the death of Shankarlal has been caused by Bhanu Singh and one another. Later, the accused persons involved in the commission of crime were identified as the appellant Praveen Singh and Gemaram. At the instance of the appellant Praveen Singh, the weapon of offence blood stained Dhupia and shirt which he was wearing at the time of occurrence were recovered vide Ex.P/11 and Ex.P/19.

14. The prosecution case is based on testimony of P.W.2- Chhaganlal, P.W.3-Chunnilal, P.W.4-Nenaram, P.W.7-Jaisaram, P.W.8-Pintu and other corroborative evidence.

15. P.W.2-Chhaganlal deposed that on the fateful day he had gone to the place near Veerbavsi temple in village Kantal for grazing goats. At that time, accused Praveen Singh and Gamaram accompanied by his brother (cousin) Shankarlal came on Motorcycle and while parking the Motorcycle at Nala, all the three went inside the temple. After a long time, the accused persons came out of the temple but Shankarlal was not accompanying them. Thereupon, he went inside the temple and saw his brother Shankarlal lying in pool of blood in front of Veerbavsi. On his calling his brother, he did not stand up. Thereafter, he went to home and informed about the incident to Shankarlal's father Nenaram and his sister-in-law Meera. P.W.7-Jaisaram, Jabar Singh and P.W.3-Chunnilal went to Veerbavsi temple, Chunnilal informed the police.

In cross examination, he deposed that he had seen the persons causing death of Shankarlal from a distance of 1-1 agriculture field and further that he did not pay attention as to what clothes accused persons were wearing. He deposed that he had no acquaintance with the accused persons and they were not known to him. He categorically admitted that on the day of incident he did not recognize both the persons. He further deposed that he came to know after 3 days that these persons (the appellant herein and Gemaram) have killed his brother Shankarlal. As per his deposition, he came to know about the appellant herein and Gemaram causing death of Shankarlal on the basis of the inquiry made by Nanda Dagla, a leader of Bheel Samaj.

16. P.W.3-Chunnilal, the younger brother of deceased Shankarlal was not at home on the fateful day at the time when Gamaram and Praveen Singh reached their home and Shankarlal accompanied them to Veerbavsi's place on Motorcycle inasmuch as, he has categorically deposed that he had gone for work where he heard about murder of his brother. He while narrating the story as heard by him, deposed regarding the dead body of the deceased being taken to the hospital and various memos drawn by the police in his presence. He deposed that he had gone to the place of occurrence around 5 P.M. The dead body of his brother from the place of occurrence was taken to the hospital by the police in a jeep. As per his deposition when he submitted the written report (Ex.P/7), P.W.2-Chhagan,P.W.4-Nenaram and P.W.7- Jaisaram were present. P.W.2-Chhagan had disclosed the features of the Garasia (Gemaram) to the police. He deposed that Praveen Singh has four brothers and his two brothers Govind Singh and Bhanu Singh are known to him. He stated that name of Gamaram was not mentioned in report Ex.P/7 as they were not known to him. He deposed that earlier they were not knowing Praveen Singh, only Bhanu Singh was known to them and later they came to know about Praveen Singh. He deposed that on the day next to the date of occurrence, Nanda Dangla had come to the village and 500 persons of their community had assembled there. He further deposed that on the next day when the police reached the place of occurrence, P.W.2-Chhagan was present on the spot, who was interrogated by the police, however, he had not disclosed the names of the persons. According to him, the accused persons were known to him by face and not by names.

17. P.W.4-Nenaram, the father of the deceased Shankarlal, deposed that on the fateful day, he was at home and besides him, his daughter-in-law Meera and Pintaram, the son of the deceased Shankarlal were also present. Around 4 P.M., his son Shankarlal came home on Motorcycle from Gadia. Then, the accused persons came to his house on Motorcycle, called Shankarlal and all the three went to Pindwara on Motorcycle driven by Praveen Singh. He deposed that the accused persons had taken Shankarlal to Veerbavsi temple and their they murdered him. He deposed that he was apprised about the incident by P.W.2-Chhagan, who had seen Shankarlal lying in Veerbavsi temple. He deposed that he is acquainted with accused Praveen inasmuch as, he is having land in village Kantal and used to come there.

In cross examination, he categorically deposed that at the time when the police reached the place of occurrence it was not known to them as to how the incident had occurred. He deposed that the report Ex.P/8 disclosing the name of Garasia (Gemaram) was submitted by him to the police on the next day. The name of Garasia was disclosed to him by P.W.3-Chunnilal. He further deposed that the report Ex.P/8 was submitted by him inasmuch as, in earlier report submitted name of accused Gamaram was not mentioned and the name of Praveen Singh was not mentioned in Ex.P/8 as he was not known to him earlier.

18. P.W.7-Jaisaram has narrated the incident occurred as heard by him from his wife. He deposed that accused Praveen Singh @ Bhaya Singh had belaboured his brother Shankarlal earlier also, however, the matter was compromised between them and no report was lodged with the police. As per his deposition, when the police reached on the spot, P.W.3-Chunnilal and P.W.2-Chhagan were present there and the police had interrogated Chhagan. As per his deposition, his statement as also the statement of P.W.2- Chhagan were recorded by the police on 21.10.13 and thereafter, again on 22.10.13 and for the third time on 23.10.13. As stated by him, the names of the accused were disclosed to him and his wife by Chhagan on the date of occurrence itself.

19. P.W.8-Pintu deposed that on the fateful day his father deceased Shankarlal came home on Motorcycle from Gadia at around 4 P.M. At the time his father reached home, his grand father Nenaram and aunt Meera were also available at home. In a short while after his father reached home, accused Praveen Singh @ Bhaya Singh and Gamaram came to their home on Motorcycle, called his father, they had conversation and his father told that he is going to Pindwara for some work. Then his grand father said that being tired, he should not go. However, his father accompanied to Praveen Singh and Gamaram on Motorcycle which was driven by Praveen Singh. After an hour, P.W.2-Chhaganlal who was grazing goats reported that his father is lying in Veerbavsi temple situated near the Rapat, blood is oozing out of his body and he is not responding. Then he and his uncle P.W.7-Jaisaram went to the spot in Jabbar Singh's auto rickshaw. He deposed that Praveen Singh had quarreled with his father earlier, which was later mutually settled. According to him, his father was killed by the accused persons on account of the enmity.

In cross examination, he deposed that P.W.2-Chhaganlal had not come to the place of occurrence on the day of the incident. As per his deposition, he had disclosed the factum of accused persons taking away his father from his residence. He deposed that he had disclosed to P.W.3-Chunnilal as to who had taken away his father and only on that basis Chunnilal had lodged the report at the police station. He further deposed that Praveen Singh has four brothers and all of them are known to him by name, eldest is Govind Singh and three other brothers are Bhanu Singh, Praveen Singh and Jitu Singh. He accepted the suggestion of the defence that the names of Praveen Singh and Gamaram as the persons responsible for murder of his father were disclosed by him for the first time on 23.10.13 and before that he had no knowledge as to who has killed his father.

20. Indubitably, written report (Ex.P/7) disclosing the name of Bhanu Singh as one of the accused involved in commission of the offence, was submitted by P.W.3-Chunnilal on the basis of the revelation made by P.W.2-Chhaganlal, who alleged to have seen the accused persons accompanied by deceased Shankarlal going to the temple Veerbavsi as also the accused persons returning from the temple without deceased Shankarlal. In the written report, it was specifically mentioned that the death of Shankarlal is caused by Bhanu Singh and the person accompanying him.

21. It is noticed that even in report (Ex.P/8) alleged to have been submitted to the Superintendent of Police, Sirohi by P.W.4- Nenaram, the father of the deceased, the appellant Praveen Singh is named as the accused rather, the name of other person, who was accompanying Bhanusingh, as per written report (Ex.P/7) was disclosed as Gemaram s/o Kalu Ram Garasia.

22. It is not in dispute that the name of the appellant as the accused involved in commission of crime was disclosed for the first time by P.W.2-Chhaganlal, P.W.3-Chunnilal, P.W.7-Jaisaram and P.W.8-Pintu in their statements under Section 161 Cr.P.C. Ex.D/1 to D/4 respectively, recorded by the police on 23.10.13.

23. P.W.2-Chhaganlal has categorically deposed that he had seen the accused persons from a distance of 1-1 agriculture field and further that on the day of incident, he did not recognize both the persons. He further deposed that he came to know after 3 days that the appellant herein and Gemaram have killed his brother Shankarlal. The matter does not end at this. He further deposed that he came to know about the appellant herein and Gemaram causing the death of Shankarlal on the basis of the inquiry made by Nanda Dagla, a leader of Bheel Samaj. Thus, as per the deposition of the said witness, the accused persons were not known to him and he had named them only on the basis of the names revealed by a stranger who indulged in making inquiry on his own not connected in any manner with the investigation made by the Investigating Officer and who was not produced as witness for examination before the court.

24. As noticed hereinabove, P.W.3-Chunnilal, the younger brother of deceased Shankarlal, has deposed that on the fateful day, he was not at home and had gone out for work and returned home only when he heard about murder of his brother. Obviously, his deposition giving account of the incident is hearsay. Indisputably, he had named the accused on the basis of the information received from P.W.2-Chhaganlal, P.W.4-Nenaram and P.W.8-Pintu. He has categorically deposed that they were not knowing name of Praveen Singh and only Bhanu Singh was known to them. He has further deposed that when Nanda Dagla came, 500 persons of the community were assembled and Nanda Dagla said that the accused persons have killed his brother and therefore, they should kill the accused persons to which they responded that they do not intend to do so, they have small children. A bare perusal of the statement of P.W.3-Chunnilal also reveals that the accused persons Praveen Singh and Gemaram were not known to the complainant party.

25. P.W.4-Nenaram though in examination-in-chief deposed that on the fateful day, when he himself, his daughter-in-law Meera and Pintaram, son of the deceased Shankarlal, were at home, the appellant Praveen Singh and co-accused Gemaram came to their home and from there, they accompanied by deceased Shankarlal had gone to Pindwara. He deposed that Praveen Singh is known to him inasmuch as, he is holding land in village Kantal and used to come there. But in cross examination, when being confronted with the report (Ex.P/8) alleged to have been submitted by him on the day next to the date of occurrence, as to why the name of Praveen Singh was not mentioned therein, he categorically deposed that his name was not mentioned inasmuch as, he was previously not known to him. He categorically admitted that the features of the two persons who had taken away Shankarlal on the Motorcycle were not disclosed by him to the police inasmuch as, he could not recollect the same. It is not out of the place to mention here that report (Ex.P/8) was submitted by P.W.4-Nenaram to the Superintendent of Police disclosing the name of Gemaram as the person involved in the commission of the crime but, there was no disclosure made regarding the factum of the appellant and the co-accused Gemaram taking away deceased Shankarlal on Motorcycle, on the fateful day to Pindwara. Thus, it appears that the story of the appellant and Gemaram taking away deceased Shankarlal on Motorcycle to Pindwara was afterthought.

26. Coming to the deposition of P.W.8-Pintu, it is noticed that while giving the statement in the line of the statement of P.W.4- Nenaram regarding the appellant and Gemaram taking away deceased Shankarlal on Motorcycle to Pindwara, the said witness has categorically admitted that the names of Praveen Singh and Gemaram as the persons responsible for causing death of his father was disclosed by him in the first instance on 23.10.13 inasmuch as, prior to it, he was not knowing as to who had killed his father. Strangely enough, he deposed that he had disclosed to P.W.3-Chunnilal as to who had taken away his father and only on that basis, the report was submitted by him at the police station. Suffice it to say that the statement of the said witness suffers from self contradictions and apparently, he has indulged in falsehood.

27. In view of the discussion above, it is apparent that the accused persons were not known to any of the witnesses examined by the prosecution and they had named them on the basis of the revelation by a stranger to the police investigation.

28. It is true that identification of the accused by the witnesses in the court is substantive evidence and the question whether the witness has or has not identified the accused during the investigation by itself is not relevant at the trial and failure to hold identification parade would not make the evidence of identification in the court inadmissible. But the fact remains that in the instance case, the accused persons were not known to the aforesaid witnesses including P.W.2-Chhaganlal from before and as a matter of fact, they were named as accused on the basis of information gathered subsequently from the undisclosed source which was later revealed during the trial by the witnesses in their deposition.

29. In Suresh Chandra Bahri vs. State of Bihar, 1994 Cr.L.J.13271, the Hon'ble Supreme Court while emphasizing the necessity of test identification parade where the accused persons are not previously known to the witnesses, observed:

"It is well settled that substantive evidence of the witness is his evidence in the court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of great importance because it furnishes an assurance that the investigation is proceeding on right lines in additional to furnishing corroboration of the evidence to be given by the witness later in the court at the trial. From this point of view it is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused. It is an adopting this course alone that justice and fair play can be assured both to the accused as well as to the prosecution."

30. In Mahabir vs. The State of Delhi, 2008 Cri.L.J.3036, the Hon'ble Supreme Court observed that the necessity for holding an identification parade can only arise when the accused are not previously known to the witnesses. The whole idea of the test identification parade is that the witnesses who claimed to have seen the culprits at the time of occurrence are to identify them from midst of other persons without any aid or any other source. The court observed that this becomes necessary to eliminate possibility of the accused being shown to the witnesses prior to the test identification parade.

31. In 'Mulla vs. State of Uttar Pradesh', AIR 2010 SC 942, the Hon'ble Supreme Court while emphasizing the necessity of test identification parade where the accused persons are not previously known to the witnesses, observed:

"22. The necessity for holding an identification parade can arise only when the accused persons are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime.

The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Indian Evidence Act, 1872. It is desirable that a test identification parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautions to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution."

32. In the backdrop of settled position of law noticed above, adverting to the evidence in the instance case, not only that the accused persons were not previously known to the witnesses, as per the star witness of the prosecution P.W.2-Chhaganlal, he had named them only on the basis of the revelation made by a stranger not connected with the investigation made by the Investigating Officer, who indulged in making inquiry on his own. In this view of the matter, on the facts and in the circumstances of the case, in absence of the test identification parade, the testimony of the witnesses P.W.2-Chhaganlal, P.W.4-Nenaram and P.W.8-Pintu, which as discussed hereainabove not otherwise found trustworthy, cannot be relied upon.

33. It is pertinent to note that the evidence regarding the accused persons going to Veerbavsi temple accompanied by deceased Shankarlal and returning without him, was common and relying on the said evidence, the learned trial Judge arrived at the finding that the incriminating circumstances regarding Praveen Singh @ Bhaya Singh and Gemaram having been seen with the deceased Shankarlal near Veerbavsi temple stands proved beyond reasonable doubt but acquitted Gemaram of the charges solely on the ground that the shirt recovered at his instance was not found stained with blood of 'AB' group, however, convicted the appellant inasmuch as, Dhupia and blood stained shirt recovered at his instance was proved and the recovered articles were found stained with 'AB' blood group. It was not even the case of the prosecution that the appellant alone assaulted deceased and caused his death and thus, the deci

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sion of the learned trial Judge in acquitting the co-accused and convicting the appellant alone, on account of incriminating circumstance of recovery effected as aforesaid being found proved, does not appear to be justified. 34. As per the prosecution blood stained Dhupia in three pieces was recovered vide Ex.P/11, pursuant to the information supplied by the appellant Praveen Singh under Section 27 of Evidence Act (Ex.P/33) from thorn fencing existing around his agriculture field. It is not in dispute that the alleged recovery was made from open space. In this regard, P.W.5-Ramaram has categorically deposed that the place of recovery was open place where anybody can come and go. Yet another witness of recovery P.W.10-Rajuram has turned hostile, who contrary to the evidence on record showing that recovery of Dhupia and shirt were effected at the instance of appellant on 24.10.13 and 25.10.13 respectively, deposed that the recovery of Dhupia was made by the police on the date of occurrence itself. 35. There is yet another aspect of the matter. It is not the case of the prosecution that while returning from the temple, the accused persons were carrying pieces of blood stained Dhupia with them. It is not proved on the basis of any cogent evidence on record that the injuries on the person of the deceased were caused by Dhupia. As per the post mortem report (Ex.P/23), the deceased had suffered lacerated wound as also the incised wound but nothing is brought on record to establish that the injuries of the nature found on the person of the deceased could have been caused by the alleged weapon recovered. 36. Likewise the recovery of the blood stained shirt vide Ex.P/19 at the instance of the appellant was also made from his house situated at Juna Sanwada. As per the prosecution, the information was furnished by the appellant under Section 27 of the Evidence Act vide Ex.P/34 to the effect that the clothes which he was wearing at the time of occurrence are lying in his house at Juna Sanwada. It is pertinent to note that pursuant to the information alleged to have been supplied as aforesaid by the appellant on 23.10.13, the recovery of the shirt and no other clothes was made on 25.10.13 vide Ex.P/19 wherein the time of recovery is not mentioned. The witness of recovery P.W.11-Bhoparam, who is real brother of deceased Shankarlal, has deposed that the recovery was effected from a Jhumpa (Hut) near the well. He further deposed that where he and other witness P.W.12-Prakash were standing, the inner portion of the house was not visible. He categorically deposed that the police official apprised him and P.W.12-Prakash that they have brought the shirt from inside the Jhumpa. Even as per deposition of P.W.12-Prakash, who is cousin of the deceased Shankarlal, has deposed that the police official had gone inside the Jhumpa and came out with the shirt. There is no explanation as to why the close family members of the deceased were chosen as the witnesses of recovery instead of independent witnesses of the locality. 37. Thus, on the facts and in the circumstances of the case, we are of the considered opinion that in absence of any other cogent evidence on record establishing the guilt of the accused merely on the basis of alleged recovery, the conviction of the appellant by the learned trial Judge is not sustainable and deserves to be set aside. 38. In the result, the appeal succeeds, it is hereby allowed. The impugned judgment and order dated 17.6.16 passed by the Special Judge, Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act Cases, Sirohi in Sessions Case No.48/13, convicting and sentencing the appellant for offence under Section 302 IPC is set aside. The appellant is acquitted of the charges giving benefit of doubt. The appellant Praveen Singh shall be released from jail forthwith, if not required in any other case. However, the appellant shall furnish a personal bond in sum of Rs.50,000/- and a surety of like amount to the satisfaction of the learned trial Judge in conformity with the provisions of Section 437A Cr.P.C.
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