Research › Search › Judgment

Allahabad High Court · body

2003 DIGILAW 1884 (ALL)

Gainda Alias Govardhan v. State

2003-08-23

M.C.JAIN, M.CHOUDHARY

body2003
M. CHAUDHARY, J. ( 1 ) THIS is an appeal from the judgment and order dated 30th of October 1980 passed by II Additional sessions judge, Aligarh in Sessions Trail No. 412 of 1977 State Vs. Genda alias Goverdhan and others convicting the accused appellants under Section 396 Indian Penal code and sentencing each of them to undergo imprisonment for life there under and accused Sheorab Singh and Fateh singh under Section 25 of the Arms Act also and sentencing each of them to undergo one years rigorous imprisonment there under making both the sentences to run concurrently. ( 2 ) CO-ACCUSED Prahlad was not tried along with Co-accused above named as he was reported having died. Other co-accused who were tried along with the accused above named were acquitted. ( 3 ) RELEVANT facts of the case giving rise to this appeal necessary for disposal of the appeal are being recapitulated as follows: During the night between 13th and 14th of September, 1976 Pyarey Lal was sleeping in the baithak of his house at village Sokhna and his sons Virendra kumar and Suresh at the chabutra in frond of his house and his sons Virendra kumar and Suresh at the chabutra in front of his house and other family members in separate apartments inside the house. At about 11:00 p. m. some dacoits entered the house and started plundering the goods. At that time two lanterns were lighted one in the chappar of Pyarey Lal and the other in the Verandah of the house of Keshav adjoining thereto. As the bandits started ransacking the house Smt. Reoti Devi aunt of Virendra Kumar came out of the house and informed Virendra Kumar that there were bandits inside the house. In the meanwhile one of the bandits fired with gun hitting Reoti Devi and sustaining the gunshot injuries she fell down. Immediately Virendra Kumar and his brother Suresh ran towards abadi in the village. On hearing the hue and cry many of the co-villagers namely Shyam Lal, suraj Singh, Lachchman Prasad, Chattar singh, Mahavir Prasad and Jwala Prasad rushed to the scene of occurrence. Sujan singh set fire to the heap of karab lying on the chabutra of Gram Panchayat which emanated sufficient light. Gopal and jwala Prasad holding licensed firearms fired shots and the bandits also fired. Sujan singh set fire to the heap of karab lying on the chabutra of Gram Panchayat which emanated sufficient light. Gopal and jwala Prasad holding licensed firearms fired shots and the bandits also fired. In the meanwhile some police personnel who were on patrol duty also reached there and fired shots. After the rapine the bandits ran away with the looted property. Somehow the co-villagers and the police personnel caught hold of four of the bandits in the millet filed of Pyarey Lal situate nearby and the remaining 5-6 succeeded in making their escape good. On being enquired four persons apprehended told their names as Sheroab singh, Fateh Singh, Prahlad and Suraj pal. Sheorab Singh was found in possession of a single barrel gun no. HIM 05373 and five live cartridges, and prahlad and Fateh Singh each in possession of a countrymade pistol and four live cartridges Suraj Pal was possessed of a lathi. Virendra Kumar alongwith some of the co-villagers and the police personnel taking the four bandits apprehended and the arms and ammunition recovered from them went to the Police Station Hathras Kotwali situate at a distance of some four miles there from and lodged and FIR of the said dacoity with the police (Ext ka 1) and also handed over the four bandits apprehended and the arms and ammunition recovered from their possession to the police there. ( 4 ) THE police registered a crime against the four bandits apprehended and seven unknown under Section 395 read with Section 397 IPC and against Sheorab singh and Fateh Singh under Section 25 of the Arms Act also (Ext Ka 3) HM jayanti Prasad made entry in the general diary regarding registration of the crime (Ext ka 4 ). He also prepared memo of the arms and ammunition allegedly recovered from the four bandits apprehended on the spot and handed over to him by virendra kumar at the police station (Ext Ka 2 ). ( 5 ) IT appears that injured Reoti Devi was rushed to Bagla Civil Hospital, hathras soon after the incident and she died in the Hospital the same night at about 3:40 a. m. ON receiving information at the police station regarding the death of reoti Devi in the Hospital the police altered the crime under Section 396 IPC (Extka 5 ). ( 6 ) SUB-INSPECTOR K. S. Dubey to whom investigation of the crime was entrusted went to Bagla Civil Hospital and drew inquest proceedings on the dead body of Reoti Devi and prepared the inquest report (Ext ka 14) and other necessary papers (Exts ka 15 and ka 16)and handed over the dead body in a sealed cover along with necessary papers to CP ram Sewak and another for being taken for its postmortem. ( 7 ) THEN the Investigating Officer visited the place of occurrence, inspected the site and prepared its site plan map (Ext ka 27 ). He also collected ashes of "karab" burnt from the chabutra, inspected the lanterns lighted at the time of dacoity inside the house and prepared their memos (Exts ka 8 and ka 11 ). He also recorded statements of the witnesses and did other necessary things. ( 8 ) AUTOPSY conducted on the dead body of Reoti Devi by Dr. S. K. Saxena, medical Officer M. S. Hospital Aligarh on 14th of September 1976 at about 4:00 p. m. revealed multiple ante mortem gunshot wounds. The doctor opined that the death was caused due to shock and hemorrhage as a result of ante mortem gunshot injuries sustained by her. (Ext Ka 21 ). ( 9 ) IT appears that accused Genda @ goverdhan was arrested by the police stations Hathras Kotwali and Sansni on 26th November 1976 and challaned under section 399, 402 and 307 IPC and under section 25 of the Arms Act (registered as crime No. 00 of 1976) at Police Station sasni. One being inquired by the police genda @ Goverdhan confessed that he participated in the said dacoity. Since the involvement of accused Genda @ goverdhan came to light he was made baparda soon after the arrest and taken to police station Sasni where he was kept in the lockup. Accused Genda @ goverdhan was lodged in District Jail, aligarh in connection with the said dacoity on 27th of December 1976. He was subjected to test identification proceedings in connection with the said dacoity with murder on 10th January 1976. IN all six witnesses were produced to identify him as a participant in the said dacoity and he was identified as such by four of them namely Virendra Kumar, hari Singh, Pyarey Lal and Jwala Prasad. He was subjected to test identification proceedings in connection with the said dacoity with murder on 10th January 1976. IN all six witnesses were produced to identify him as a participant in the said dacoity and he was identified as such by four of them namely Virendra Kumar, hari Singh, Pyarey Lal and Jwala Prasad. ( 10 ) AFTER completing the investigation and obtaining necessary sanction of the District Magistrate, aligarh to prosecute accused Sheorab singh, Fateh Singh and Prahlad under section 25 of the Arms Act the police submitted charge sheets against the accused accordingly. ( 11 ) THE accused pleaded not guilty denying the alleged occurrence altogether and stating that they had been got implicated in the case falsely on account of enmity and village party factions. Accused Genda @ Goverdhan denied his arrest as alleged by the prosecution stating that the police caught him from his house and took him to the police station and a false case was foisted against him He also stated that the police took his photographs and the police station and he was also shown to the witnesses there. Accused sheroab Singh stated that accused Fateh singh happens to be his saru, that Fateh singh along with his brother Mathura prasad and Suraj Pal had come to his house to attend the function of betrothal ceremony of his son, that the police went to his house and nabbed them from there and took them to the police station. Accused Suraj Pal and Fateh Singh also stated likewise. Accused Suraj Pal also stated that he was possessed of his licensed gun and the police also took his gun. ( 12 ) IN order to bring the charge home to the accused the prosecution examined Virendra Kumar (PW1), Pyarey lal (PW3), Sujan Singh (PW5) and lachhman Prasad (PW6) as eye witnesses of the concurrence. Testimony of the remaining witnesses excepting SI Om prakash, the arresting office (PW11) and pw 18 SI Ram Saran who accompanied him in the police force is more or less of formal nature. PW2 SI Jayanti Prasad, the then HM proved the check report and GD entry regarding registration of the crime made by him. He also proved memo of the arms and ammunition allegedly recovered from the four bandits apprehended on the spot and handed over to him by Virendra Kumar, the first informant. PW2 SI Jayanti Prasad, the then HM proved the check report and GD entry regarding registration of the crime made by him. He also proved memo of the arms and ammunition allegedly recovered from the four bandits apprehended on the spot and handed over to him by Virendra Kumar, the first informant. Pw4 constable Ram Sewak is one of the two police officials to whom dead body of Reoti Devi in a sealed cover along with necessary papers was handed over to be taken for its post mortem. PW7 si Harish Chand who drew inquest proceedings on the dead body of Smt. Reoti has proved the inquest papers. PW10 Dr. S. K. Saxen who conducted autopsy on the dead body of Reoti Devi has proved the post mortem report. PW11 si Om Prakash who alongwith the police force arrested co-accused Netrapal on 02. 11. 76 and accused Genda @ goverdhan alongwith others on 26. 11. 76 has deposed thereabout. PW12 Radha mohan, PW13 CP Khen Chand and pw16 SI Ashfaq Ahmad are witnesses relating to idenfitication of looted articles allegedly recovered from co-accused netrapal. PW14 SI Kripa Shanker is the investigating officer who investigated the crime in main. PW15 Executive magistrate C D Bhargava conducted identification parade of co-accused Nathu ram and Devendra. PW17 Rishikesh sharma, Reader of the court of Executive magistrate proved identification memo of the idenfitication parade held of accused appellant Genda @ Goverdhan PW 18 SI ram Saran had accompanied SI Om prakash (PW11) in the police force arresting co-accused Netrapal. PW8 SI prem Pal. PW9 SI Bengali Babu, PW19 hc Amar Pal Singh and PW20 constable biharilal are the witnesses of link evidence. ( 13 ) THE Accused examined Babu lal (DW1), Jitendra Singh (DW2) and dharmendra Swaroop (DW3) in their defence. DW1 Babu Lal, the village pradhan stated that on hearing the due and cry he also reached the scene of occurrence but by that time the bandits had fled away after ransacking the house, that he did not see any of the bandits there and that he saw Reoti lying injured and keshav also having received injuries. DW1 Babu Lal, the village pradhan stated that on hearing the due and cry he also reached the scene of occurrence but by that time the bandits had fled away after ransacking the house, that he did not see any of the bandits there and that he saw Reoti lying injured and keshav also having received injuries. DW2 Jitendra Singh, Pradhan of village parsara stated that at about 3-4 a. m. the alleged night the police came to his village and nabbed Sheorab Singh, mathura Prasad, Fateh Singh and Suraj pal from the house of Sheorab Singh and took them alongwith the licensed gun of suraj Pal to the police station. DW3 dharmendra Swarup, the then Arms cleark district Etah state that Suraj Pal was license holder of gun no. 05373 since the year 1964 till the time of the alleged occurrence. ( 14 ) ON an appraisal of the parties evidence and after hearing the parties counsel learned Additional Session Judge held accused Genda @ Goverdhan, sheorab Singh, Fateh Singh and Suraj Pal guilty of the charge leveled against them and convicted them accordingly and sentenced thereunder. Feeling aggrieved by the impugned judgment and order the accused appellants preferred this appeal for redress. ( 15 ) NONE appeared for the appellants though represented on record by Shri G. S. Chaturvedi, Sri R. S. Yadav and Sri P. C. Tewari Advocates. We heard the learned aga. The appeal is being decided on merits. ( 16 ) FACTUM of the dacoity at the time and place as alleged by the prosecution is not disputed. It is also not disputed that smt. Reoti Devi sustained grievous injuries at the hands of the bandits in the said dacoity and succumbed to the injuries sustained the same night. The only question for consideration is if the accused appellants participated in the said dacoity and accused appellant Sheorab singh and Fateh Singh were apprehended on the spot and arms and ammunition were recovered from their possession as alleged by the prosecution. ( 17 ) NOW taking up the case of accused Genda @ Goverdhan, his case rests on the evidence of two identifying witnesses namely Virendra Kumar (PW1)and Pyarey Lal (PW3 ). ( 17 ) NOW taking up the case of accused Genda @ Goverdhan, his case rests on the evidence of two identifying witnesses namely Virendra Kumar (PW1)and Pyarey Lal (PW3 ). PW1 Virendra kumar stated in his examination-in-chief that while he was standing along the banquette of dodah standing around his field he saw the bandits running away after ransacking the house in the moon light and in the light of the fire ablaze. At the time his statement was being recorded he also laid hand on accused Gendra standing in the dock stating that he had identified him as such in the identification parade held in the District Jail. But he could not withstand his cross-examination as he stated in his cross-examination that the banquette of dodah where he took shelter was at a distance of about 50-60 paces from the house of Sujan Singh. As stated by PW1 Virendra Kumar house of his uncle Sujan Singh is situate adjacently to his house. He also stated that the police personnel were standing at a distance of some 60-70 paces from his house and at a distance of about 10-15 paces from the place where he alongwith some of the Co-villagers was standing. Hans Gross in his book criminal Investigation edited by n. C. Adam, 5th Edition published in the year 1962 at pages 159-160 observed that if the eyesight is normal and the light is good, one is able in broad daylight to recognize a person he has seen only once from a distance of 16 yards. In the instant case the witness had seen the dacoits running away from a distance of 50-60 paces (equal to 125 feet as one pace is taken to be equal to two and a half feet)and hence could not be in a position to mark the features of the dacoits so as to identify them at the identification parade held more than four months after the occurrence. Regarding testimony of PW 3 pyarey Lal admittedly he remained confined in his baithak through out the time his house was ran sacked he also admitted that his baithak in which he was confined was bolted from outside by the bandits and that it was opened after departure of the bandits from the scene and it was thereafter that he went out of his house. He had no opportunity to see any of the bandits while they were ransacking the house. He himself got frightened as the shots were being fired by the bandits and hence he could not have seen the bandits and mark their features from the window in the baithak while they were running away so as to identify them in the identification proceedings held after four months of the dacoity. He further stated in his deposition that he was about 64 years old and short sighted. In view of above state of evidence the Court finds that the learned Additional Sessions Judge failed to appreciate the evidence of the two identifying witnesses in its true perspective and there is no justification to uphold the conviction of accused Genda @ Goverdhan. ( 18 ) TAKING the case of accused appellants Fateh Singh, Sheorab Singh and Suraj Pal there is evidence of virendra Kumar (PW1), Pyarey Lal (PW3) Sujan Singh (PW5) and Lachhman prasad (PW6 ). Out of these four witnesses pw6 Lachhman Prasad has not supported the prosecution case against any of the accused appellants as he stated in his examination-in-chief that the alleged night when the bandits were running away four of them were apprehended by some of the co-villagers and the police personnel and the bandits apprehended told their names as Sheorab Singh, Fateh singh, Prahlad and Suraj Pal; but he could not identify and of them standing in the dock. He stated that the four bandits apprehended and the arms and ammunition recovered from them were handed over the police at the police station; but the prosecution did not care to get his signatures proved on the memo of arms and ammunition allegedly recovered from the four persons apprehended on the spot prepared by the police at the police station. However this witness Lachhman prasad stated in his cross-examination that he did not remember if the sub-inspector obtained his signatures on any paper as witness. ( 19 ) NOW remains the testimony of pw1 Virendra Kumar, PW3 Pyarey Lal and PW 5 Sujan Singh. However this witness Lachhman prasad stated in his cross-examination that he did not remember if the sub-inspector obtained his signatures on any paper as witness. ( 19 ) NOW remains the testimony of pw1 Virendra Kumar, PW3 Pyarey Lal and PW 5 Sujan Singh. PW1 Virendra kumar stated in his examination-in-chief that four persons namely Sheorab Singh, fateh Singh, Prahlad and Suraj Pal were apprehended while fleeing away after ransacking the house and a single barrel gun and five live cartridges were recovered from the possession of Sheorab singh and one country made pistol and four live cartridges from the possession of each of accused Fateh Singh and Prahlad and a lathi from the possession of Suraj pal. However he identified Suraj Pal and sheorab Singh while standing in the dock correctly, but laid his hand on Mathura prasad takeing him to be Fateh Singh arrested on the spot. It appears that arms and ammunition allegedly recovered from the four persons apprehended were not got proved by this witness Virendra kumar (PW1 ). PW3 Pyarey Lal stated that he was confined in his baithak through out the time his house was ransacked as it was bolted from outside by the bandits and it was after departure of the bandits that the door was opened and it was thereafter that he went out of his house and that he saw the bandits apprehended near the field and by that time the police personnel present there had taken the arms and ammunition allegedly recovered from their possession in their custody. He identified accused suraj Pal and Sheorab Singh correctly but laid his hand on Mathura Prasad taking him to be Fateh Singh. PW5 Sujan Singh identified accused Sheorab Singh, Fateh singh and Suraj Pal in the dock but he stated in his cross-examination that he was short sighted and could recognize a well known person in broad daylight from a distance of 3-4 feet only. Hence it is difficult to believe that he would have recognized the bandits allegedly apprehended by the co-villagers on the spot in the night hour and seen by him for the first time so as to identify them more than three and a half years after the dacoity as statement of this witness Sujan singh (PW5) was recorded on 27. 3. 80. 3. 80. He also stated that when the bandits were apprehended by the police personnel he reached at that place subsequently and by that time the police personnel had taken possession of arms and ammunition allegedly recovered from the bandits apprehended. ( 20 ) BESIDES it there were some 9-10 bandits in all as PW1 Virendra Kumar stated that while dacoits were fleeing away after ransacking the house four were apprehended on the spot and 5-6 succeeded in making their escape good; but strangely enough no stolen article was recovered from the possession of any of the four bandits allegedly apprehended on the spot. Forthermore, FIR of the dacoity lodged at the police station appears to be ante timed. Because PW3 Pyarey Lal at whose house the dacoity was committed stated that soon after the dacoity he went to the police station to inform the police thereabout and he also told the Inspector at the police station that Smt. Reoti Devi had died in the Hospital, that thereafter he alongwith the inspector went to the village, that when they were going to the village Virendra Kumar met them on the way and that after seeing the dead body of reoti Devi Virendra Kumar went to the police station. A perusal of the post mortem report goes to show that Smt. Reoti Devi died in the Hospital at about 3:40 a. m. It is true that the fact the Reoti devi died in the Hospital does not find mention in the FIR; but the fact remains that according PW1 Virendra Kumar he had scribed the report after the dacoity in the village itself. If Virendra Kumar went to the police station to hand over the written report of the dacoity after seeing the dead body of his aunt Reoti Devi in the Hospital apparently the FIR of the occurrence having been lodged at the police station at about 1:30 a. m. becomes ante timed. And if the FIR is shaken then the very basis of the prosecution case stands knocked out. On this score also authenticity of the prosecution case falls to the ground. Thus findings of the trail court bases on incorrect reading of evidence and ground which are not tenable cannot be upheld. And if the FIR is shaken then the very basis of the prosecution case stands knocked out. On this score also authenticity of the prosecution case falls to the ground. Thus findings of the trail court bases on incorrect reading of evidence and ground which are not tenable cannot be upheld. ( 21 ) IN view of above infirmities and incongruities in the prosecution case and evidence, it would not be safe to hold any of the accused appellants guilty of the charge leveled against them, and they are entitled to benefit of doubt. ( 22 ) THE appeal is allowed and the findings of conviction and sentence recorded against the accused appellants are hereby set aside. The accused are hereby acquitted of the charge leveled against them. They are on bail. Their bail bonds are hereby discharged. ( 23 ) LET a copy of this judgment alongwith record be sent to the lower court incorporating necessary entry in the relevant register and reporting compliance within two months. . .