RIZWAN SON OF SHRI BABUDEEN, BY CASTE MUSALMAN, RESIDENT OF NEAR MASJID, GOVIND NAGAR, UDYOGNAGAR, KOTA (RAJASTHAN) Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The accused-appellant has preferred this Criminal Appeal under Sec. 374 Crimial P.C. against the judgment of conviction and order of sentence dated 28.4.2015 passed by the Additional Sessions Judge No.5, Kota in Sessions Case No.80/2012 whereby the learned trial Court after holding the appellant guilty for offence under Sec. 324 read with Sec. 34 Penal Code sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.2,000.00 and in default thereof to further undergo simple imprisonment for seven days, for offence under Sec. 326 read with Sec. 34 Penal Code sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.3,000.00 and in default thereof to further suffer simple imprisonment for fifteen days, for offence under Sec. 307 read with Sec. 34 Penal Code he was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000.00 and in default thereof to further undergo simple imprisonment for one month and also holding him guilty for offence under Sec. 394 Penal Code sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000.00 and in default thereof to further suffer simple imprisonment for one month. It was further directed that all the substantive sentences would run concurrently. It is to be noted that along with appellant, co-accused-Shri Shankarlal was also tried and was similarly convicted and sentenced and the appeal filed by co-accused-Shri Shankarlal was dismissed as not pressed by the High Court vide order dated 16.5.2016 by the reason that he has already served the sentence imposed by the trial Court.

(2.) Brief relevant facts for the disposal of this appeal are that "Parcha-Bayan" of one-Shri Deepak Meena was recorded on 6.11.2008 by Shri Digvijay Singh S.I. Police Station Kunhari, Kota when the he was undergoing treatment at MBS Hospital, Kota in which it was alleged by the complainant that on 11.2008 in the night at about 10 p.m. he was going by motorcycle and when he reached in front of Saint John School, four persons came on a motorcycle and intercepted him as a result thereof he fell down and one of them fired at him in order to cause his death and the fire shot by that person after tearing through his hand hit and inflicted injury on the left side of his chest. It was further alleged that the person who fired at him was of the age of about 20-25 years whom he can identify if he comes before him. In the "Parcha-Bayan" it was further stated by him that the persons involved in the incident took his motorcycle along with them. On the basis of Parcha-Bayan, FIR No.325/2008 for offences under Sections 394, 307 read with Sec. 34 Penal Code came to be registered at Police Station Kunhari, Kota and during the course of investigation appellant was arrested in this case from Central Jail, Kota on 5.8.2009 when he was in judicial custody in some other criminal case. Identification parade of appellant was conducted on 11.8.2009. It is to be noted that, apart from appellant, co-accused-Shri Shankarlal, juvenile-Shri Chetan Meena and one Shri Jahid were also found involved in the incident. After investigation charge-sheet for offences under Sections 307, 394, 324, 326 read with Sec. 34 Penal Code and for offence under Sec. 5/27 of the Arms Act was filed against Shri Shankarlal and for offences under Sections 307, 394, 324, 326 read with Sec. 34 Penal Code was filed against the appellant whereas charge-sheet was filed against juvenile-Shri Chetan Meena before the Juvenile Justice Board. Investigation was kept pending under Sec. 173 (8) Crimial P.C. against Shri Jahid. Learned trial Court framed charge for offences under Sections 324/34, 326/34, 307/34, 394 Penal Code and for offence under Sec. 5/27 of the Arms Act against co-accused-Shri Shankarlal whereas charge was framed against the appellant for offences under Sections 324/34, 326/34, 307/34 and for offence under Sec. 394 IPC. In order to prove the charges prosecution produced oral as well as documentary evidence whereas appellant in his statement under Sec. 313 Crimial P.C. denied the evidence produced on behalf of the prosecution and specifically stated that he has falsely been implicated but in defence no evidence was produced. Learned trial Court after considering the submissions made on behalf of the respective parties and appreciating and evaluating the evidence made available on record convicted and sentenced the appellant and co-accused-Shri Shankarlal as already stated.

(3.) Assailing the findings of the learned trial Court, counsel for the appellant submitted that it is an admitted fact that appellant was not known to the complainant-Shri Deepak Meena since before the alleged incident and the only evidence upon which the appellant has been found to be involved in the incident is his identification by complainant during the course of identification parade held on 11.8.2009 as well as during trial when he was examined as witness before the trial Court but it was not safe to convict the appellant only on the basis of his identification because during investigation at any point of time including in his "Parcha-Bayan" and statement recorded under Sec. 161 Crimial P.C. the complainant did not disclose the physionomy and special features of the appellant facilitating his identification on 11.8.2009 during identification parade more particularly in view of the fact that it was almost impossible for the complainant to correctly identify the appellant, a stranger for him, after nine months from the incident. It was further submitted that no evidence is available on record to show that sufficient light was available at the place of incident in which it was possible for the complainant to have impressions and features of the persons involved in the incident in his mind more particularly in view of the fact that the incident occurred suddenly and lasted only for few minutes and no specific role was not attributed to the appellant in the incident. It was also submitted that no evidence has been produced by prosecution to satisfy the Court that sufficient precautions were taken by the investigating officer to rule out the possibility of complainant to see the appellant when he was in police custody during the course of investigation and in absence thereof it can be inteferred that appellant was shown to the complainant before identification parade was conducted on 11.8.2009 which facilitated the complainant to correctly identify appellant as one of the person involved in the incident. It was submitted that it is well settled legal position that if the accused is shown to a witness before actual identification parade is conducted, identification of accused by such witness during identification parade and trial carries no evidentiary value. It was also submitted that admittedly no recovery of any kind was made from the appellant which fact further fortifies the claim of appellant that he has falsely been implicated in the present case only by the reason that he was involved in some other crime and was in judicial custody in Central Jail, Kota from where he was arrested in this case also. Lastly, it was submitted that magistrate conducting the identification parade did not appear as witness during trial and in absence thereof whole exercise of identification parade stood futile and inadmissible in evidence.