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.

1

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

3

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

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.

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.

16

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.