This article is written by APURVA, a student of Fairfield Institute of Management and Technology, GGSIPU.
Criminal Appeal No.
919 of 1999
16 November 2004
ARIJIT PASAYAT, AND C.K. THAKKER
FACTS IN A NUTSHELL
- The Complainant, Chandrakalabai, the widow of Bharat Kharat was a resident of Village Dharkanha.
- At the time of the incident, she was residing with her husband Bharat Mukinda Kharat (hereinafter referred to as the `deceased’) and two sons in the house situated in the village Dharkanha.
- It is the case of the prosecution that Shivcharan (PW6), son of the Complainant Chandrakala (PW2) as well as Taqnaji, son of Shakuntaiabai, the keep of deceased Bharat and Shakuntalabai were residing in the said house. On the day of the incident, Shakuntalabai was not present as she had gone to Pusad.
- At that time, work of uprooting the groundnut crop was in progress in the field of deceased Bharat and several persons from village Londhari were working in his field.
- There was a pit dug in front of the house of Bharat for the construction of one room.
- On 7th June 1998, at about 1.00 p.m., deceased Bharat and one Tulshiram Vadar had gone to Pusad and returned home at about 7.00 p.m. After that, deceased Bharat was taking a meal in his house and Tulshiram went to sleep in front of the house.
- After some time, at about 8.00 p.m. accused Namdev Tarpe came to the house of the complainant and told Bharat that persons from village Yehala were coming to beat him and he should run away from the spot, or release the dogs.
- When Bharat came out of the house, five to six persons encircled Bharat in the courtyard of his house and started beating him. They were armed with axes, sticks, crowbars and beat Bharat with the said weapons.
- When Bharat was being assaulted, he shouted for help loudly saying “Chandrakala, I am dying”. The complainant, Chandrakala went to Tulshiram and awakened him.
- Tulshiram tried to rescue Bharat from the clutches of the accused, but the accused did not allow him to help the deceased.
- The complainant thereafter went towards the persons of village Londhari and stayed there along with her sons. The assailants also came there and threatened them not to disclose the incident and asked them to leave.
- The persons from village Londhari thereafter left the place.
- The accused persons also left the place. The complainant along with her sons went near her husband deceased Bharat and noticed injuries on his person, who had already succumbed to those injuries on the spot.
- The complainant asked her son Shivcharan (PW-6) the names of the assailants. Shivcharan told her that the assailants were from village Yehala and gave their names as “Namdeo Tarpe, Shamrao Behade, Subhash Behade, Santosh Behade, Saheb Rao and one unknown person to whom he knew by face.
- The complainant along with her sons thereafter went to the house of Police Patil of village Dharkanha and narrated the incident.
- The complainant stayed there for the night and on the next day, she went to Police Station, Pusad (Rural), and lodged a report.
- In the report, she mentioned the names of five accused persons and one unknown person. She also stated in the report that accused persons assaulted her husband because one year before the incident, there were murders of one Atmaram and Laxman of village Yehala and in the said crime, her husband deceased Bharat was arrested and, therefore, the assailants for taking revenge of the said murders, and had assaulted Bharat in the incident in question.
- Based on the report lodged by the complainant investigation was undertaken. After completion of the investigation charge sheet was filed and as the accused persons i.e., seven in number in two Criminal Appeals before High Court pleaded innocence, the trial was held.
- It is to be noted that A-1 was absconding and therefore separate charge sheet was filed against him.
- The trial Court placed reliance on the evidence of Chandrakala (PW-2) and Shivcharan (PW-6) and found the accused persons guilty.
- In appeal, the primary stand of the accused persons was that PWs 2and 6 being related to the deceased their evidence should not be acted upon particularly when Tulshiram and the younger son of the deceased were not examined.
- Additionally, it was submitted that in the Test Identification Parade (in short the `TI Parade’) held on 3.8.1998 only two accused persons Sudam and Mangal were identified.
- Further, the evidence of Shivcharan (PW-6) only relates to accused Sham Rao and, therefore, Section 149 has no application. It was also submitted that PW-2 cannot be believed as she did not know the names of the accused persons and the names were told to her by PW-6. The trial court did not analyze their evidence and held that merely because 2 and 6 were the wife and son of the deceased that did not render their evidence suspect.
- Additionally, the TI parade was held only in respect of two accused-appellants Sudam and Mangal, and not in respect of other accused persons as they were allegedly known to the prosecution witnesses. Stand of State was that as others were known, there was no need for TI Parade.
- The fact situation clearly shows that Section 149 IPC has application.
- If you once forfeit the confidence of our fellow citizens, you can never regain their respect and esteem. It is true that you can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time, said Abraham Lincoln. This Court in Raghubir Singh vs. State of Haryana (AIR 1980 SC 1087) and Shakila Abdul Gafar Khan (Smt.) vs. Vasant Raghunath Dhoble and another (2003) 7 SCC 749, took note of these immortal observations while deprecating custodial torture by the police.
- Custodial violence, torture, and abuse of police power are not peculiar to this country, but it is widespread. It has been the concern of the international community because the problem is universal, and the challenge is almost global. The Universal Declaration of Human Rights in 1948 which marked the emergence of a worldwide trend of protection and guarantee of certain basic human rights stipulates in Article 5 that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. Despite this pious declaration, the crime continues unabated, though every civilized nation shows its concern and makes efforts for its eradication.
- If it is assuming alarming proportions, nowadays, all around it is merely on account of the devilish devices adopted by those at the helm of affairs who proclaim from rooftops to be the defenders of democracy and protectors of people’s rights and yet do not hesitate to condescend behind the screen to let loose their men in uniform to settle personal scores, feigning ignorance of what happens and pretending to be peace-loving puritans and saviours of citizens’ rights
THE COURT CONCLUDED
It has been laid down by the Court, in Parkash Chand Sogani v. The State of Rajasthan (supra) (AIR Cri LJ), that the absence of test identification in all cases is not fatal and if the accused person is well-known by sight, it would be waste of time to put him up for identification. Of course, if the prosecution fails to hold an identification on the plea that the witnesses already knew the accused well and it transpires in the course of the trial that the witnesses did not know the accused previously, the prosecution will run the risk of losing its case.
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