Tags Conviction

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 2478 of 2014, Judgment Date: Nov 25, 2014

                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDICTION


                     CRIMINAL APPEAL NO.    2478 OF 2014

               (Arising out of S.L.P. (Crl.) No. 2480 of 2014)



Motilal Yadav                                                  ... Appellant


                                   Versus


State of Bihar                                                  ...Respondent



                               J U D G M E N T



Prafulla C. Pant, J.


      Leave granted.


This appeal, by special leave, is directed against judgment and order  dated

5.11.2012, passed by the High Court of  Judicature  at  Patna,  whereby  the

conviction of the accused-appellant Motilal  Yadav  recorded  under  Section

364A read with Section 34 and Section 120B read with  Section  364A  IPC  by

learned Additional Sessions Judge, ETC III, Bhagalpur, in Sessions Case  No.

1053 of 2003/Trial No. 12 of  2004,  is  affirmed.   The  accused-appellant,

along  with  other  co-accused,  has  been  convicted   and   sentenced   to

imprisonment for life and directed to pay fine of Rs.5,000/-  under  Section

364A read with Section 34 IPC, and further sentenced to imprisonment  for  a

period of two years under Section 120B read with Section 364A IPC.






Heard learned amicus curiae for the appellant and learned  counsel  for  the

respondent.





Prosecution story in brief is that  PW-6,  Subhash  Chandra  Singh,  gave  a

written information at Police Station, Kahalgaon, on 23.4.2002 at 8.05  a.m.

that his grandson Sagar Kumar (PW-5)  has  been  kidnapped.   The  informant

narrated in the written report that  the  victim  (Sagar  Kumar),  aged  six

years, along with his sister PW-4 Riya Kumari, aged four  years,  was  going

to St. Joseph NTPC School, Kahalgaon in a rickshaw pulled by PW-1 Anil  Ram.

 The informant further told that the  rickshaw  puller  told  him  that  one

person came to the rickshaw and took the victim after telling him  that  his

father was calling him at the railway station.   On  receiving  information,

the informant immediately rushed to the location where the  rickshaw  puller

Anil Ram (PW-1) was waiting for the victim's return.  An  FIR  No.  117/2002

was recorded at the police station and the investigations were taken  up  by

the Investigating Officer.




Investigation revealed that after one day of  kidnapping  of  the  child,  a

demand of Rs.10.00 lakhs was made by someone on phone  disclosing  his  name

as Prem Prakash Yadav (co-accused) for release of  the  boy.   When  several

calls were made, on 17.5.2002 the victim's parents  agreed  to  pay  Rs.6.00

lakhs according to their economic condition.  PW-3, Sourav Kumar (father  of

the victim) passed on the phone number of the caller  to  the  police.   The

kidnappers called father of the victim to Haldwani (Uttarakhand),  on  which

the witness (PW-3) desired to know as  to  by  what  route  he  could  reach

there.  The caller informed the father of the  victim  to  come  by  Farakka

Express to Lucknow, and from there by a meter gauge train to Lal  Kuan  from

where he  would  be  getting  tempo  (three  wheeler)  to  reach   Haldwani.

Accordingly PW-3 Sourav Kumar reached Haldwani on 21.5.2002 with money,  and

stayed at Kamta Hotel and waited for the caller's messenger  from  where  he

was taken by the present appellant (Motilal Yadav) to the  side  of  rivulet

near Krishi Utpadan Bazar Samiti (Haldwani).  Two persons (co-accused)  were

already waiting there.  After making enquiry as to  the  amount  brought  by

the witness (PW-3), two of the accused persons took the bag.  Thereafter PW-

3 Sourav Kumar was taken to Haldwani Bareilly  Road  where  the  victim  was

handed over to his father.  Victim's father, along with his  recovered  son,

reached back Kahalgaon on 25.5.2002, and narrated the entire  story  to  the

police.   After  collecting  evidence  and  interrogating   the   witnesses,

prosecution filed charge-sheet  against  seven  accused,  namely,  Raghunath

Yadav, Prem Kumar Yadav @ Tuntun Yadav, Motilal Yadav  (present  appellant),

Bina Devi, Bijay Yadav, Prem Prakash Yadav and Mamta Devi.




It appears that the trial court, after  framing  the  charge  and  recording

evidence, on conclusion of trial, found all the above seven  accused  guilty

of charge of offences punishable under Section 364A  read  with  Section  34

IPC and under Section 120B read with Section 364A IPC, and after hearing  of

the matter on sentence, each one of them was sentenced to  imprisonment  for

life and directed to pay fine of Rs.5,000/- under  Section  364A  read  with

Section 34 IPC, and further imprisonment for a period  of  two  years  under

Section 120B read with Section 364A IPC.





The convicts challenged the order of the trial court before the High  Court.

 Criminal Appeal (DB) No. 208 of 2006 was filed by accused Raghunath  Yadav,

Prem Kumar Yadav @ Tuntun Yadav and Motilal Yadav, Criminal Appeal (DB)  No.

232 of 2006 was filed by Bina Devi, Bijay Yadav and Prem Prakash Yadav,  and

Criminal Appeal (DB) No. 246 of 2006 was filed by the  accused  Mamta  Devi.

All the three appeals were disposed of by  the  High  Court  by  its  common

order dated 5.11.2012 which has been challenged before  us  in  the  present

appeal by accused/convict Motilal Yadav.




Mr. D.N. Goburdhan, learned Amicus  Curiae,  on  behalf  of  the  appellant,

argued before us that the  High  Court  has  decided  the  criminal  appeals

without scrutinizing the  entire  evidence  on  record,  and  as  such,  the

impugned order is liable to be set aside.  He referred to the cases of  Rama

and others v. State of  Rajasthan[1],  Badam  Singh  v.  State  of  M.P.[2],

Prasad alias Hari Prasad Acharya v. State of Karnataka[3] and Ram  Ratan  v.

State of Rajasthan[4].  We have gone through the cases relied on  behalf  of

the appellant, but we are of the view that the above mentioned cases are  of

little help in the present case, for the reason that  neither  the  impugned

order is cryptic nor without discussion of evidence  on  record.   Statement

of each of the witnesses, namely, PW-1  Anil  Ram  (Rickshaw  Puller),  PW-2

Neetu Singh (mother of  the  victim),  PW-3  Sourav  Kumar  (father  of  the

victim), PW-4 Riya Kumari (sister of the victim), PW-5 Sagar Kumar  (victim)

and PW-6 Subhash Chandra Singh (informant and grandfather  of  the  victim),

has been discussed at length by the High Court, apart  from  discussing  the

evidence of formal witnesses, namely, PW-7  Ramji  Singh  (constable),  PW-9

Gouri Mohan Mitra and the Investigating Officer PW-8 Shivjee Singh  and  PW-

10 Anand Prakash  Singh.   The  High  Court  has  also  taken  note  of  the

statement of DW-1  Jawahar  Jha.   The  High  Court,  after  discussing  the

evidence of each of the above mentioned  witnesses,  has  further  discussed

the evidence on record as to how from the corroboration  of  the  statements

of the witnesses, the entire prosecution story and the charge stood  proved.




PW-1 Anil Ram has corroborated the fact that  he  was  taking  the  children

Sagar Kumar and Riya Kumari to the school when  the  accused  (Prem  Yadav),

identified by him before the trial court, took  the  child  by  telling  him

that his father was calling him at the Railway Station.   PW-2  Neetu  Singh

has corroborated that rickshaw puller Anil Ram (PW-1) informed on  phone  at

7.15 a.m. about  the  incident.   She  has  further  corroborated  the  fact

regarding demand of ransom made by the kidnappers for release of the  victim

(Sagar Kumar).   PW-3 Sourav Kumar is the  most  important  witness  of  the

case who had opportunity to see most of the accused  including  the  present

appellant  (Motilal Yadav) as he went to Haldwani for release of  his  minor

son from their custody.  He (PW 3) has narrated that  after  the  demand  of

ransom was made, he agreed to pay Rs.6.00 lakhs and sought time to make  the

arrangement of money.  He further told that on receiving call on  20.5.2002,

he asked the caller as to how he could reach Haldwani on  which  the  caller

told about the trains available for  Lucknow  and  Lal  Kuan.   PW-3  Sourav

Kumar, has stated in his evidence that when he reached Haldwani,  he  stayed

in Kamta Hotel.  As to the role of the present appellant, the  witness  (PW-

3) has told that the present appellant is the person who enquired  from  him

if he is father of Sagar Kumar, and then took him in a rickshaw by the  side

of rivulet near Krishi Utpadan Bazar Samiti  (Haldwani).   The  witness  has

further narrated about the role of the other accused in his statement  which

we do not think it necessary to discuss  here  as  other  convicts  are  not

appellants before us.  The witness has given  all  the  details  as  to  how

money was taken  to the place where his son was released and handed over  to

him from Haldwani-Bareilly Road. Having gone  through  the  record  and  the

impugned order, we are of the view that the  High  Court,  in  the  impugned

order, has discussed at length the prosecution evidence which  was  believed

by it.  We find no force in the argument that  the  High  Court's  order  is

cryptic or brief.


Another argument advanced before us is that no  test  identification  parade

in the present  case  was  held,  as  such,  the  conviction  and  sentence,

recorded by the trial court, has been wrongly upheld by the High Court.   In

this connection, our attention is drawn to the case of Kanan and  others  v.

State of Kerala[5].  In said case, this Court has  opined  that  failure  to

conduct test identification parade raises serious doubt about the  testimony

of the witnesses.  On going through said  case,  we  find  that  this  Court

doubted evidence of a particular witness (PW-25 of said case) who  told  the

Court that he could identify the accused persons  (not  known  to  him)  who

were running away from the scene of occurrence.  Contrary to  that,  in  the

present case the testimony of PW-3 Sourav Kumar is natural as  he  explained

in what manner he reached Haldwani, and he had enough time to  identify  the

accused who  accompanied  him  to  the  persons  who  took  money  from  him

whereafter the victim was released.




The evidence as to the identity of a person is admissible  under  Section  9

of the Indian Evidence Act, 1872.  In the case of Ravi  Kumar  v.  State  of

Rajasthan[6], this Court has opined in paragraph 35 as follows: -


".... The court identification itself is a good identification  in  the  eye

of the law.  It is not always necessary that it  must  be  preceded  by  the

test identification parade.  It  will  always  depend  upon  the  facts  and

circumstances of a given case.  In one case, it may not  even  be  necessary

to hold the test identification  parade  while  in  the  other,  it  may  be

essential to do so.  Thus, no straitjacket formula can  be  stated  in  this

regard."






In the case of R. Shaji v. State  of  Kerala[7],  regarding  the  evidential

value of the test identification parade, this Court has stated in  paragraph

58 as under: -


".... The identification parade is conducted  by  the  police.   The  actual

evidence regarding identification is that which is given by the  witness  in

court.  A test identification parade cannot be claimed by an  accused  as  a

matter  of  right.   Mere  identification  of   an   accused   in   a   test

identification  parade  is  only  a  circumstance   corroborative   of   the

identification of the accused in court. ...."






In Ashok Debbarma alias Achak Debbarma v. State of  Tripura[8],  this  Court

has made following observations in para 20 which are reproduced below: -




"..... The primary object of the test identification  parade  is  to  enable

the witnesses  to  identify  the  persons  involved  in  the  commission  of

offence(s) if the offenders are not personally known to the witnesses.   The

whole object behind  the  test  identification  parade  is  really  to  find

whether or not the suspect is the real offender.  In Kanta Prasad  v.  Delhi

Admn.[9],  this  Court  stated  that  the   failure   to   hold   the   test

identification parade does not make the evidence of  identification  at  the

trial inadmissible. ...."






In view of the above principle of law  laid  down  by  this  Court,  we  are

unable to accept the submission of learned amicus curiae  that  not  holding

of test  identification  parade  in  the  present  case  is  fatal  for  the

prosecution.





For the reasons, as discussed above, we  do  not  find  any  force  in  this

appeal  which  is  liable  to  be  dismissed.  Accordingly  the  appeal   is

dismissed.


                                      ....................................J.

                                                       [Vikramajit Sen]



                                      ....................................J.

                                                    [Prafulla C. Pant]


New Delhi;

November 25, 2014.



























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[1]    (2002) 4 SCC 571

[2]    (2003) 12 SCC 792

[3]    (2009) 3 SCC 174

[4]    (2010) 13 SCC 509

[5]    (1979) 3 SCC 319


[6]    (2012) 9 SCC 284

[7]    (2013) 14 SCC 266

[8]    (2014) 4 SCC 747

[9]    AIR 1958 SC 350