MOTILAL YADAV Vs. STATE OF BIHAR
Section 34 - Acts done by several persons in futherance of common intention
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