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1994 DIGILAW 964 (ALL)

Sharda Bux Singh v. State Of U. P.

1994-12-20

C.A.RAHIM

body1994
JUDGMENT : - C.A.Rahim 1. THIS is an application under Section 482. Cr. P.C. for quashing the proceedings against the applicant in case No. 1890 of 1991 pending before the A.C.J.M., Jaunpur. 2. IN brief, the fact of the case is that one first information report was lodged at police-station Singramau, district Jaunpur alleging that some miscreants committed the dacoity in respect of two tractors. IN connection with that case applicant surrendered before the court on 19.4.1991, test identification parade was held on 27.6.1991 in respect of accused Sanju Singh but none could identify him. The applicant was on parole for his sister's marriage and was not present on that date. On 29.7.1991 a prayer was made by the Investigating Officer that test identification parade would not be necessary as some of the witnesses named him in their statements under Section 161, Cr. P.C. Charge-sheet was submitted against this accused along with others under Section 395/397,I.P.C. A prayer for bail was made but it was rejected on 6.9.1991 by the A.C.J.M., Jaunpur. The case was therefore committed to the court of Sessions. 3. LEARNED counsel has submitted that purported statement of the accused persons was taken on 19.4.1991 but after that, i.e. 30.5.1991 a prayer was made by the Investigating Officer for fixing a date for test identification parade but nothing has been stated about the statement of the said witnesses naming the accused persons and others as miscreants of the alleged incident. LEARNED A.G.A. has submitted that three witnesses who have named the applicant were not the witnesses of the occurrence. So there was no question of withdrawing the prayer for test identification parade on 30.5.1991 as the complainant did not identify. He has also submitted that on 27.6.1991 when the test identification parade was held in respect of other accused the applicant was not present and it was deferred. The prayer of the Investigating Officer on 29.7.1991 was made on the basis of the statement of the three witnesses who named the applicant as one of the miscreants. So the Investigating Officer did not think it necessary to place him once again in test identification parade for identification by the complainant, which was the cause for the delay. 4. The prayer of the Investigating Officer on 29.7.1991 was made on the basis of the statement of the three witnesses who named the applicant as one of the miscreants. So the Investigating Officer did not think it necessary to place him once again in test identification parade for identification by the complainant, which was the cause for the delay. 4. FROM annexures and from counter affidavit it appears that on 19.4.1991 three witnesses, namely, Achhe Lal Sarpanch, Onkar Nath Misra and Ram Ajor Misra all residents of the same police-station and of the same district Jaunpur have stated to the Investigating Officer that one Ved Prakash Tripathi, Naresh Tiwari and Rajput Singh of Fatehpur district came to Achhe Lal Sarpanch and confessed their guilt and disclosed the name of the applicant and others as associates in committing the dacoity in respect of the two tractors of the complainant. It is on the basis of this statement that the Investigating Officer submitted the charge sheet and did not like to place the applicant in test identification parade. Case diary was not produced (though ordered on 13.1.1993 and 4.2.1993. It was not stated in the statement of the witnesses recorded under Section 161, Cr. P.C. or in the counter affidavit why Ved Prakash Tripathi and two others of Fatehpur district choose the sarpanch Achhe Lal Misra of Police station Singramau (district Jaunpur) out of all and went there and made confession. In the counter affidavit it has not been stated whether the three persons who made the confession were arrested in connection with this case or the witnesses produced them to the police station on that date and figured them as accused in this case and whether there was any prayer of the Investigating Officer to record the confession of these three persons judicially. The case diary would have thrown some light on this point. There is no observation on this point in the order-sheet of the learned AC.J.M. dated 6.9.1991. 5. EVEN if it is taken that the said three persons were arrested in connection with this case and produced them in the court and that they have made extra judicial confession to the Sarpanch and two others and such extra judicial confession if proved can be used against co-accused if there is fullest corroboration in material particulars. 5. EVEN if it is taken that the said three persons were arrested in connection with this case and produced them in the court and that they have made extra judicial confession to the Sarpanch and two others and such extra judicial confession if proved can be used against co-accused if there is fullest corroboration in material particulars. In the case of Ram Prakash v. State of Punjab, reported in AIR 1959 SC page 1, ii was held that in such cases fullest corroboration in material particulars are necessary. 6. THERE is another circumstance which needs discussion. On 30.5.1991, i.e. after recording of the statement of the three witnesses under Section 161, Cr. P.C. the Investigating officer filed an application praying for holding test Identification parade on 10.6.1991. In that supplication it was not stated that the three witnesses had named the accused or that co-accused persons had confessed before them. Argument has been advanced that test identification was to be held for the identification by the witnesses who saw the occurrence, i.e. by Baljendra Singh the complainant and not by the witnesses to whom confession was made. Till 29.7.1991 there was no mention before the court that the name of the applicant and others appeared in the statement of the witnesses. Moreover, one Sarju Singh named by these witnesses was not Identified by the complainant in test identification parade. 7. INVESTIGATION does not mean to prosecute the accused persons by any means. It is for the determination of truth. So it is the duty of the Investigating Officer to verify the statement or disclosure of any relevant materials to arrive at a conclusion that the witnesses are telling nothing but truth. In the instant case the veracity of the witnesses was not tested. The present applicant should have been put in the test identification parade when he was found absent on 27.6.1991 to show whether the complainant: Baljendra Singh could identify him. This is not being done. The Investigating Officer failed not to testify the statement of the three witnesses but also the guilt of evidence. 8. The present applicant should have been put in the test identification parade when he was found absent on 27.6.1991 to show whether the complainant: Baljendra Singh could identify him. This is not being done. The Investigating Officer failed not to testify the statement of the three witnesses but also the guilt of evidence. 8. FROM the circumstances) it appears that seeing the result of the test identification parade of accused Sarju Singh on 27.6.1991 the Investigating Officer did not dare to place the applicant in test identification parade instead the I.O. depended upon the so called confession to his yes-men and it must have been recorded in between 27.6.1991 to 29.7.1991 otherwise this fact should have come out in his report on 30.5.1991. These circumstances, therefore, show that such confession is doubtful. Even if I concede that too I find that there is not an iota of circumstance or evidence direct or indirect to show that the alleged confession was corroborated in material particulars not to speak of fullest corroboration as decided by Hon'ble Supreme Court. Hence I find that there is sufficient material to interfere under Section 482, Cr. P.C. as there has been an abuse of power in filing the charge-sheet against the applicant. Relying solely on extra judicial confession of co-accused persons, which is nothing but doubtful, it should have occurred in the mind of the Investigating Officer that why some persons of different district will go to sarpanch within the jurisdiction of his Police Station and made such confession after three months of the occurrence. In the result, the application is allowed. Proceeding in respect of Sharda Bux Singh, applicant, in case No. 1890 of 1991 is hereby quashed. The applicant be set at liberty at once.