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2002 DIGILAW 262 (ALL)

JALIL v. STATE OF U. P.

2002-02-11

U.S.TRIPATHI

body2002
U. S. TRIPATHI, J. ( 1 ) THIS appeal has been directed against the judgment and order dated 4-10-1980 passed by Turd Additional Sessions Judge, Pilibhit in Sessions Trial No. 74 of 1980 convicting the appellant under Section 395 read with Section 397, T. P. C. and sentencing him to undergo R. T. for a period of 7 years. ( 2 ) THE prosecution story, briefly stated was that on the night of 20/214-1979 at about 11 P. M. dacoits raided the house of Roop Lal situate at village Managatpur hamlet of village Jaarkalia and started committing dacoity, Mansa Ram (P. W. 1) heard the cries and rushed to the house of Roop Lal. He observed that dacoits were committing dacoity inside the house of Roop Lal. A lighted lantern was emitting light in the house of Roop Lal. Prem Raj set fire in the heap of sugarcane leaves towards worth of house of Roop Lal. which emitted sufficient light. He recognised the faces of dacoits in the said light. Besides committing dacoity in the house of Roop Lal the dacoits also committed dacoity in the houses of Ram Prasad and Devi Ram (P. W. 3) at village Bhura. Dacoits caught hold Devi Ram (P. W. 3) caused injuries to him and looted his household properties. The faces of dacoits were recognised in the flame of burning sugar cane leaves. Tota Ram (P. W. 2) and Pothi Ram (P. W. 4) also rushed to the spot observed the occurrence and recognized faces of dacoits. ( 3 ) MANSA Ram (P. W. 1) came to the police station Barkhera at 6. 20 AM. in the morning and lodged an oral report. The chik F. I. R. (Ext. Ka-1) was prepared by head Constable Mewa Ram, who made an endorsement of the same at G. D. report (Ext. Ka-2) and registered a case under, Section 395/397, I. P. C. against unknown persons. ( 4 ) THE investigation of the case was taken up by Sri Randhir Singh, 1. 0. (P. W. 6 ). On the night of 20/21-4-1979 the 1. 0. got information that gang of dacoits got down at Pauta Railway Station and was seen proceeding towards villages Munda and Vikaranpur. The 1. 0. collected police force and proceeded towards village Munda and Vikaranpur. On reaching there he came to know that dacoits had committed dacoity and went towards village Sukatia. On the night of 20/21-4-1979 the 1. 0. got information that gang of dacoits got down at Pauta Railway Station and was seen proceeding towards villages Munda and Vikaranpur. The 1. 0. collected police force and proceeded towards village Munda and Vikaranpur. On reaching there he came to know that dacoits had committed dacoity and went towards village Sukatia. However, he could not trace out the above gang. ( 5 ) ON 23-4-1979 the 1. 0. apprehended appellant jalil near river Amen at about 4. 30 P. M. He was suspected accused of the dacoity in question and therefore was made Baparda on the spot was brought to police station in Baparda condition and was kept in the lock up at 7. 50 P. M. vide G. D. report (Ext. Ka-3 ). The appellant was sent to jail Baparda. His identification parade was conducted on 5-5-1979 in the District Jail. Pilibhit by Sri Raja Ram. Executive Magistrate (P. W. 5 ). The appellant Jalil was correctly identified by Devi Ram (P. W. 3 ). Pothi Ram (P. W. 4 ). Prem Raj, Khusali, Mohan Lal, Makhan Lal, Smt. Premwati and Pyare Lal. The Magistrate prepared identification memo (Ext. Ka-2 ). ( 6 ) THE 1. 0. on receipt of identification memo and on completion of investigation submitted charge-sheet (Ext. Ka-4) against the appellant. ( 7 ) THE cognizance of the case was taken up by lind Additional Munsif Magistrate, who committed the case to the Court of Sessions. The appellant was tried for the offence punishable under Section 395 read with Section 397, I. P. C. He pleaded not guilty and contended that his photograph was taken at the police station, he was also shown to the witnesses and he had small pox marks on his face since his birth. ( 8 ) THE prosecution in support of its case examined Mansa Ram (P. W. 1), Tota Ram (P. W. 2), Devi Ram (P. W. 3) and Pathi Ram (P. W. 4) as witnesses of fact, besides Sri Raja Ram, Executive Magistrate (P. W. 5) and Randhir Singh, 1. 0. (P. W. 6 ). The appellant examined Raghuvir Singh. Hawaldar District Jail (D. W. 1) in his defence. 0. (P. W. 6 ). The appellant examined Raghuvir Singh. Hawaldar District Jail (D. W. 1) in his defence. ( 9 ) ON considering the evidence of the prosecution, the learned Sessions Judge held that dacoity did take place in the night of 20/2 1-4-1979 in the houses of Roop Lal, Ram Prasad and Devi Ram at about 11 P. M. in village Mangatpur hamlet of Jaarkalia and village Bhura Vikaranpur, P. S. Barkhera, district Pilibhit. That there was sufficient light on the spot and the witnesses had full opportunity to recognise the faces of dacoits. Devi Ram (P. W. 3) and Pathi Ram (P. W. 4) had correctly identified the appellant. They committed no mistake and their evidence was worth reliable. Therefore, the prosecution successfully proved the guilt of the appellant for the offence punishable under Section 395 read with Section 397, I. P. C. Accordingly, he convicted the appellant under said section and sentenced him to undergo R. I. for a period of 7 years. ( 10 ) AGGRIEVED with the above conviction and sentence, the appellant preferred this appeal. ( 11 ) HEARD Sri Jitendra Pal Singh, learned counsel for the appellant and the learned AG. A and perused the record. ( 12 ) ACCORDING to the prosecution, a dacoity took-place in the night of 20/ 21-4-1979 in the houses of Roop Lal, Ram Prasad, Devi Ram and others in villages Managatpur hamlet of village Jaarkalia and village Bhura Vikaranpur. The appellant has not disputed factum of dacoity on the said date, time and places. Mansa Ram (P. W. 1), Tota Ram (P. W. 2), Devi Ram (P. W. 3) and Pothi Ram (P. W. 4) have stated about the commission of dacoity in the said houses. Mansa Ram (P. W. 1) stated that on the night of occurrence at about 11 AM. , he heard shrieks and rushed to the house of Roop Lal where dacoits were committing dacoity. He also lodged report of the occurrence. Tota Ram (P. W. 2) stated that on the night of occurrence hearing shrieks he went to the house of Ram Prasad and Devi Ram and observed that dacoits were committing dacoities. Devi Ram (P. W. 3) stated that he was sleeping at his house and awoke on hearing alarm and observed that 12-14 dacoits have entered into his house. Tota Ram (P. W. 2) stated that on the night of occurrence hearing shrieks he went to the house of Ram Prasad and Devi Ram and observed that dacoits were committing dacoities. Devi Ram (P. W. 3) stated that he was sleeping at his house and awoke on hearing alarm and observed that 12-14 dacoits have entered into his house. Dacoits also caught him hold caused injuries on him and looted his household properties. Pothi Ram (P. W. 4) stated that hearing shrieks, he rushed to the house of Roop Lal and observed that dacoits were committing dacoits in his house. No cross examination was made from the above witnesses on the factum of dacoity. The report of the occurrence was also lodged on the next morning at 6. 20 A. M. by Mansa Ram (P. W. 1 ). As such the factum of dacoity in the above houses has fully been established. ( 13 ) THE evidence against the appellant is that of identification only and therefore, it is to be considered whether there was sufficient light on the spot and the witnesses had opportunity to recognise the face of appellant and that they correctly identified him in the identification parade. ( 14 ) MANSA Ram (P. W. 1), Tota Ram (P. W. 2), Devi Ram (P. W. 3) and Pothi Ram (P. W. 4) have categorically stated that a lighted lantern was emitting light inside the house of Roop Lal. That during course of dacoity. Prem Raj set fire in the heap pf sugarcane leaves placed in between houses of Prem Raj and Bhagirath, which emitted sufficient light and the faces of dacoits were recognised in the said light. The appellant has also not disputed above source of light on the spot. Therefore, it cannot be safely held that there was sufficient light on the spot. ( 15 ) THE prosecution has examined Tota Ram (P. W. 2), Devi Ram (P. W. 3) and Pothi Ram (P. W. 4), who have identified the appellant in the identification parade. Tota Ram (P. W. 2) did not identify the appellant in the Court and therefore his evidence is to be ignored. Devi Ram (P. W. 3) and Pothi Ram (P. W. 4) have stated that they identified the appellant at the time of commission of dacoity anti thereafter, in the identification parade. Tota Ram (P. W. 2) did not identify the appellant in the Court and therefore his evidence is to be ignored. Devi Ram (P. W. 3) and Pothi Ram (P. W. 4) have stated that they identified the appellant at the time of commission of dacoity anti thereafter, in the identification parade. They also identified the appellant in the Court at the time of their evidence. ( 16 ) DEVI Ram (P. W. 3) stated that at the time of dacoity he was sleeping inside of his house. He awaked hearing alarm and observed that 12-14 dacoits, who herd entered inside into his house caught him hold and caused injuries. They also looted properties of his house. He recognised the faces of dacoits in the light of lighted lantern as well as burning heap of sugarcane leaves. That the dacoity was committed in the house of witness. The dacoits had also caught him hold and caused injuries and therefore witness had come in close contact with the dacoits including the appellant and had full opportunity to recognise the face of appellant. ( 17 ) POTHI Ram (P. W. 4) stated that hearing alarm he rushed to the house of Roop Lal and stood beside Gonda of Lal Man. Other persons of village were also standing there. Dacoity was being committed in the house of Roop Lal. During course of dacoity fire was set in the neap of sugarcane leaves. He recognised the faces of appellant and other dacoits in the above light of burning heap of sugarcane leaves. In his cross examination, he clarified that heap of sugarcane was set at a distance of 14-15 paces from the Gonda of Lal Man. The house of Roop Lal was visible from the place where the witness was standing, it has also come in his evidence that during course of dacoity, the dacoits were entering into and coming out of the house. As such the witness was in a position to recognise the face of appellant. ( 18 ) PERUSAL of identification memo shows that Tota Ram (P. W. 3) had correctly identified six dacoits and had committed one mistake. Therefore, performance of the witness was about 8o%. Devi Ram (P. W. 2) had correctly identified four dacoits without committing any mistake, therefore, his performance was 100%. ( 18 ) PERUSAL of identification memo shows that Tota Ram (P. W. 3) had correctly identified six dacoits and had committed one mistake. Therefore, performance of the witness was about 8o%. Devi Ram (P. W. 2) had correctly identified four dacoits without committing any mistake, therefore, his performance was 100%. ( 19 ) RANDHIR Singh (P. W. 6) stated that he apprehended the appellant on 23-4-1979 at about 4. 30 P. M. and made him Baparda on the spot. That he escorted him to the police station in Baprada condition. ( 20 ) THE identification of the appellant was conducted on 5-5-1979 i. e. after 12 days of the arrest of appellant and after 14 days of the occurrence. Normally, the accused was required to be produced before the Court after 14 days of the first remand. In the instant case no occasion arose for producing the appellant before his identification parade was conducted. The identification was conducted within 12 days of his arrest. Thus, the identification parade was conducted promptly and by that time the features of the appellant, which were in the memory of witness would have not faded. ( 21 ) THE learned counsel for the appellant contended that photograph of the appellant was taken at the police station and he was also shown to the witnesses. Thus, the witnesses recognised him in the identification parade by some extraneous aid. But there is no evidence on record to support the contention. No such suggestion was given to Devi Ram (P. W. 3) and Tota Ram (P. W. 4) that the appellant was shown to them after his arrest or his photograph was shown to them. Therefore, there is no force in the above contention. ( 22 ) THE learned counsel for the appellant further contended that witnesses had not stated about special identifying feature of the appellant and therefore It is unsafe to place implicit reliance on the evidence regarding identification. It is true that Devi Ram (P. W. 3) and Pothi Ram (P. W. 4) have admitted that they did not disclose any special features of the appellant before the 1. 0. but they had recognised the face of the appellant at the time of dacoity and therefore recognised him in the identification parade. It is true that Devi Ram (P. W. 3) and Pothi Ram (P. W. 4) have admitted that they did not disclose any special features of the appellant before the 1. 0. but they had recognised the face of the appellant at the time of dacoity and therefore recognised him in the identification parade. As mentioned above, the identification was conducted promptly and by that time the feature of the appellant was fresh in the memory of witness and the witnesses were able to identify the appellant. ( 23 ) LASTLY it was contended that the appellant had pox marks on his face since his birth and the witnesses identified him on account of it. The appellant also examined Raghubir Singh, Hawaldar of District Jail, Pilibhit (D. W. 1), who stated that he had seen the appellant at the time of his admission in the jail and there were pox marks on his face. It is also mentioned in the identification memo that there were pox marks on the face of the appellant. Sri Raja Ram (P. W. 5), who conducted identification has specially mentioned in the column No. 5 of the identification memo that 10 others under trial having pox marks, on their face and similar in height and feature were mixed with the appellant in the parade. Therefore, precaution was taken by the Magistrate. so that the appellant could not be picked up by the witnesses simply because he was having pox marks on his face. Sri Raja Ram (P. W. 5) also stated in his cross examination that on the date of his evidence i. e. 16-9-1980 there were slight pox marks on the face of appellant. He also stated that the pox marks on the face of appellant were not such that it were conspicuous. He denied the suggestion of the appellant that deep pox marks were on the face of appellant at the time of identification. The appellant could not rebut the evidence of identifying Magistrate that pox marks on the face of the appellant were not conspicuous at the time of his evidence and it is difficult to believe that a year before those pox marks were so deep to make it conspicuous. The appellant could not rebut the evidence of identifying Magistrate that pox marks on the face of the appellant were not conspicuous at the time of his evidence and it is difficult to believe that a year before those pox marks were so deep to make it conspicuous. Therefore, there is no force in the contention of the learned counsel for the appellant that the appellant was identified in the identification parade simply because he was having pox marks on his face ( 24 ) IN view of above discussions and observations. I find that the prosecution has successfully proved the participation of the appellant in the dacoity. ( 25 ) THE learned Sessions Judge has convicted the appellant under Section 395 read with Section 397, I. P. C. Offence punishable under Section 397, I. P. C. is made out against the offender if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall not be less than seven years. It means that the offence punishable under Section 397 is made out against the offender, who causes grievous hurt or attempts to cause death etc. Meaning thereby there should be specific evidence that the accused charged with the offence punishable under Section 397. I. P. C. had used deadly weapon caused grievous hurt or attempted to cause death or grievous hurt to any person. ( 26 ) IN the instant case; there is no evidence that the appellant himself was having any deadly weapon or he caused grievous hurt or attempted to cause death or grievous hurt to any person. ( 27 ) DEVI Ram (P. W. 3) have simply stated that 12-14 dacoits entered into the house, who caught him hold and caused injuries. He has not stated that the appellant caused injuries on him. He has not even mentioned the weapon possessed by the appellant. The other witnesses had not stated about the factum of causing injuries on inmates of the house in which dacoity were committed. Therefore, the appellant was wrongly convicted with the aid of Section 397, I. P. C. and he ought to have been convicted only under Section 395. He has not even mentioned the weapon possessed by the appellant. The other witnesses had not stated about the factum of causing injuries on inmates of the house in which dacoity were committed. Therefore, the appellant was wrongly convicted with the aid of Section 397, I. P. C. and he ought to have been convicted only under Section 395. I. P. C. , ( 28 ) SO far the quantum of sentence is concerned, the learned Sessions Judge has convicted the appellant to undergo RI. for a period of 7 years probably under the assumption that an offence punishable under Section 397, I. P. C. was made out against him. But as mentioned above, there is no such evidence and the appellant ought to have been convicted only under Section 395, I. P. C. Considering the fads and circumstances of the case I am of the view that a sentence of 5 years RI. under Section 395. I. P. C. would be appropriate sentence in this case. ( 29 ) THE appeal is, accordingly partly allowed and partly dismissed. Conviction of appellant with the aid of Section 397, I. P. C. is set aside and his conviction under Section 395. I. P. C. simplicitor is confirmed and the sentence of 7 years RI. is reduced to sentence of 5 years RI. The appellant is in jail as per report of C. J. M. , Pilibhit dated 5-8-2000. He shall serve the remaining sentence. Let a copy of this order be sent to C. J. M. Pilibhit for information and necessary action. Appeal allowed partly. .