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Thursday, August 2, 2018

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 15 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. 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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REPORTABLE
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.
1. This appeal is directed against the judgment dated 3rd 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.
2. Briefly stated, the facts of the case as culled out from the case
of prosecution are that in the intervening night of 11th and 12th
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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 incharge
  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.
6. We have heard learned counsel appearing for the parties on
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.
8. It is further case of the appellant that the prosecution could
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.
9. On the other hand, learned counsel appearing for the State of
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), daughter­inlaw
of the informant that on the intervening night of 11th and
12th 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.
14. As regards the claim of appellant that non­identification of the
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   nonidentification
would not be fatal to the prosecution case in the
given facts and circumstances.
15. The identification parade belongs to the stage of investigation,
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 :
Kanta   Prashad  v.  Delhi   Administration,  1958 CriLJ 698
and Vaikuntam Chandrappa and Ors. v. State of Andhra
Pradesh, AIR 1960 SC 1340].
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.

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