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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 in­

charge 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), daughter­in­

law 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 non­

identification 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.