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2004 DIGILAW 226 (ALL)

Baij Nath v. State of Uttar pradesh

2004-02-06

MUKTESHWAR PRASAD

body2004
( 1 ) FOUR accused, namely, baij Nath, Ram Bharose Lal, Kunwar bahadur and Ram Raj, filed this appeal against the judgment and order dated 29-4-1981 passed by Sri N. K. Maheswari, the additional Sessions Judge, Fatehpur whereby he convicted the four accused under Section 412 of the Penal Code and each one of them was sentenced to undergo rigourous imprisonment for a period of seven years. ( 2 ) IN brief, the facts of the prosecution case were as under. ( 3 ) P,w. 1 Quddus Khan, son of Nanhjoo khan, a resident of Saraj Khargu, police station Malwan (Fathehpur) handed over a written report at police station Malwa on 15-9-1977 at 5. 30 a. m. A case was registered at crime No. 148 under Section 396, I. P. C. against Istiaq Ahmad alias Dhappi and three others. The informant alleged that he had two houses, old and new adjacent to each other in the village and in the night intervening 14/15 Sept. 1977 he was sleeping in the Chaupal of the house. The informants brother-in-law Sajid Ali and his wife smt. Munni, who were sleeping in the new house, were raising alarm. On hearing the hue and cry, the informant along with his two brothers reached the roof of the new house and saw 8-9 dacoits, who were armed with guns, Tamanchas and lathies. Some of them had muffled their faces. The informants two brothers Juggan and Badrool hasan had a scuffle with dacoits with the result that the informant and others, saw their faces in the light of torches and identified them as Istiaq Ahmad alias Dhappi, sarwar, Buddhu and Sukhlal. Istiaq Ahmad and Sarwar fired at Juggan and Badrool husan with their firearms and killed them on the spot. The informant and others came down and raised alarm. On hearing the alarm, a number of villagers, including qayyum Husain, Banney, Sher Haneef, hayat Husain and others arrived there. Haseen Ahmed fired shots from his licensed gun. When the dacoits found themselves surrounded with the villagers, who were having guns also they took to their heels with looted articles threatening the villagers. ( 4 ) QUDDUS Khan got a report of dacoity, prepared by co-villager Haseen Ahmad and gave the details of the ornaments also in his report, which were taken away by the dacoits. When the dacoits found themselves surrounded with the villagers, who were having guns also they took to their heels with looted articles threatening the villagers. ( 4 ) QUDDUS Khan got a report of dacoity, prepared by co-villager Haseen Ahmad and gave the details of the ornaments also in his report, which were taken away by the dacoits. ( 5 ) THE case was investigated by P. W. 11 s. I. D. D. Dixit. ( 6 ) P. W. 11 S. I. D. D. Dixit started investigation and interrogated Mussan Khan and haseen Ahmad. He searched the accused named in the F. I. R. S. I. Laxmi Narain arrested Istiaq Ahmad on the same day. He was interrogated. Thereafter, Sajid Ali and his wife Smt. Munni, Hayat and Rajjaq were interrogated. ( 7 ) ON 16-9-1977 P. W. 11 S. I. D. D. Dixit, arrested Ram Bharose Lal, Kunwar bahadur and Balaji Nath. On personal search of Ram Bharose four pieces of golden gulbands an ornament worn around the neck) were recovered from the left pocket of kurta. ( 8 ) ON personal search of Kunwar bahadur, S. I. recovered four silver Lachchas (Imirtidar) and two silver Phools of Choti (Paandar) with red and green Nugs. All these articles were kept in a bag and one piece of silver payal was also recovered. ( 9 ) S. I. further recovered from the possession of accused Baij Nath four Lachchas of silver (Imirtidar), two Phools made of silver (Paandar) having nags red and green colour and three pieces of silver. ( 10 ) ALL these articles recovered from the possession of three accused were sealed on the spot and a Fard recovery was prepared. ( 11 ) ON 15-9-1977, at about 2-45 p. m. P. W. 17 S. I. Jag Mohan Sing arrested accused Ram Raj and on his personal search, three pieces of golden Gulband and a silver ring were recovered. He prepared a Fard on the spot. ( 12 ) THE identification of the accused, who were not named in the report, was held on 8-11-1978 in District Jail, Fatehpur. ( 13 ) ALL the articles which were allegedly recovered from the possession of the four appellants were put up for Identification on 31-7-1978 and P. W. 1 Quddus. Mussan khan, Sajid Ali and Smt. Munni, wife of sajid, identified their articles (ornaments ). ( 13 ) ALL the articles which were allegedly recovered from the possession of the four appellants were put up for Identification on 31-7-1978 and P. W. 1 Quddus. Mussan khan, Sajid Ali and Smt. Munni, wife of sajid, identified their articles (ornaments ). ( 14 ) AFTER completing investigation, the i. 0. submitted charge-sheet against the accused. ( 15 ) RAM Bharose Lal, Kunwar Bahadur and Baij Nath, were charged under Section 412 of the Penal Code on 16-6-1977 in S. T. No. 29/79. Accused Ram Raj was charged under Section 412 I. P. C. on the same day in S. T. No. 76/79. ( 16 ) IN S. T. No. 117/78 Ram Bharose lal, Kunwar Bahadur, Ram Raj, Istiaq ahmad alias Dhappi, Sarwar, Buddhu and sukh Lal were charged under Section 396 of the Penal Code also. All the accused pleaded not guilty and claimed trial. ( 17 ) AT the trial, the prosecution examined as many as twenty witnesses in this case, including formal witnesses. ( 18 ) ACCUSED Kunwar Bahadur and Ram raj pleaded that no ornament was recovered from their possession and they were falsely implicated by the police. Accused Baij nath pleaded that he was arrested by the police from his house and no recovery was made. Accused examined D. W. 1 Abdul wahid Khan, D. W. 2 Samsool Husain and d. W. 3 Rajjaq in their defence and filed some documents also. ( 19 ) AFTER having heard learned counsel for the parties, considering the evidence on record and circumstances of the case also learned Judge acquitted all the accused of the charge framed under Section 396 I. P. C. However four accused named above, were convicted under Section 412 1. P. C, and sentenced as mentioned above. Hence this appeal. ( 20 ) ACCUSED Ram Bharose Lal, son of nand Lal, expired during pendency of the appeal. ( 21 ) 1 have heard learned counsel for the appellants at length, learned A. G. A. and perused the record carefully. ( 22 ) LEARNED counsel for the appellants has assailed the judgment mainly on the grounds that participation of the accused in the dacoity, who were also charged under Section 396 I. P. C. by the Court below was not established and consequently, they were acquitted of the charge. ( 22 ) LEARNED counsel for the appellants has assailed the judgment mainly on the grounds that participation of the accused in the dacoity, who were also charged under Section 396 I. P. C. by the Court below was not established and consequently, they were acquitted of the charge. According to him, learned trial Judge erred in evaluation of the evidence on record led by the prosecution and was not justified in convicting the appellants under Section 412 I. P. C. also. According to him, the dacoity in question took place at about mid night and a written report containing details of the ornaments along with their weight was given to the police at 5-30 p. m. at police station situate at a distance of three miles. This fact in itself goes to show that the F. I. R. was not lodged at the time as alleged by the prosecution. He drew my attention to the fact that two members of the family, namely, juggan Khan and Badrool were killed on the spot in the course of dacoity. It was there-fore not possible for the ladies of the family to furnish details of the ornaments, which were looted by the dacoits. He further contended that Gulband, Payal or any other ornament in intact condition was not recovered from the possession of the any of the appellants and pieces of Gulband were allegedly recovered. Learned counsel for the appellants urged with vehemence that the female members of the family wore and used the ornaments and they were in a position to identify the ornaments. In the instant case, three male members and one female went to identify the articles (ornaments) on 31-8-1978 i. e. after a lapse of ten and half months of the incident of the dacoity. It was, therefore, not possible for the male members of the family to identify the ornaments and the learned trial Judge did not take into consideration these aspects of the case. One silver ring was also recovered from the possession of Ram Raj, but the same was not put up for identification for the reasons best known to the prosecution. ( 23 ) LEARNED A. G. A. has supported the judgment under appeal and urged that the trial Court has committed no error in convicting the appellants. One silver ring was also recovered from the possession of Ram Raj, but the same was not put up for identification for the reasons best known to the prosecution. ( 23 ) LEARNED A. G. A. has supported the judgment under appeal and urged that the trial Court has committed no error in convicting the appellants. ( 24 ) AFTER having given my anxious consideration to the arguments advanced on behalf of the appellants and entire material on record, I am clearly of the opinion that the learned trial Judge was not justified in convicting the appellants under Section 412 i. P. C. and their conviction is liable to be set aside. As mentioned above, the appellants were not found guilty under Section 396 I. P. C. and their complicity in the dacoity was not proved. Now the question is that ornaments which were allegedly recovered from the possession of the accused were looted from the house of the informant. ( 25 ) P. W. 17 S. I. Jag Mohan Singh was not posted at police station Malwan on 15-9-1977. He was posted as S. O. Thariyawa and had gone to the Court of Judicial Magistrate, Fatehpur to give his evidence under section 25 of the Arms Act. Since his evidence was not recorded, he became free and he accompanied by a constable Ramesh babu, were returning. An informer met them at 2-30 p. m. at the crossing of Hasba and on the basis of information, S. I. Singh apprehended accused Ram Raj and recovered three pieces of gulband and one silver ring. The statement of S. I. Jag Mohan Singh and the story set up by him do not inspire confidence. A Sub-Inspector of police who had gone to Sadar for giving his evidence took interest and arrested the accused and made recovery also. The Mukhbir could give this information at police station Malwan also. I am, therefore, not prepared to believe that ram Raj was arrested and recovery was made from his possession in the manner as alleged by the prosecution. ( 26 ) ON 16-9-77, P. W. 11 S. I. D. D. Dixit arrested Ram Bharose Lal, Kunwar Bahadur and Baij Nath and made recovery of ornaments from their possession. I am, therefore, not prepared to believe that ram Raj was arrested and recovery was made from his possession in the manner as alleged by the prosecution. ( 26 ) ON 16-9-77, P. W. 11 S. I. D. D. Dixit arrested Ram Bharose Lal, Kunwar Bahadur and Baij Nath and made recovery of ornaments from their possession. ( 27 ) THE prosecution examined P. W. 1 quddus Khan, P. W. 6 Smt. Munni and p. W. 8 Sajid Ali to prove the recovery of ornaments from the possession of the accused and they claimed to have identified the articles at the identification held by P. W. 12 r. K. Singh, the then A. S. D. M. , Fatehpur. According to the written report lodged by quddus Khan, three golden Gulband, weight six tolas, silver laccha, Half slier in weight, were taken away by the dacoits. In this view of the matter, the nature of the ornaments does not tally with the ornaments. The informant identified ornaments in the Court also but he admitted in his cross-examination that he had not given the description of the ornaments in his report. It is noteworthy that Quddus Khan identified two Phools of Choti, Made of silver having red and green nags therein. In column No. 3 of the memo, the Magistrate has written that he mixed up ten identical silver Phools. He has, however, not mentioned in clear words that silver phools which were mixed up with the ornaments to be identified had also green and red Nags. Quddus Khan admitted that there was no special mark in the golden ornaments and all the family members used to wear the ornaments. It was admitted in cross-examination by Quddus Khan that the ornaments were purchased by his father and not by him. P. W. 6 Smt. Munni, wife of Sajid ali, claimed all ornaments made of silver as well as seven pieces of golden Gulband. It is noteworthy that she had identified all the ornaments at the identification and committed no mistake. She admitted in her cross-examination that no ornament was got prepared or purchased by her or by her husband. She further admitted that Gulband, at the time of dacoity, was intact and was looted in the dacoity. She could not give any specific mark or description of Gulband. She admitted in her cross-examination that no ornament was got prepared or purchased by her or by her husband. She further admitted that Gulband, at the time of dacoity, was intact and was looted in the dacoity. She could not give any specific mark or description of Gulband. She gave death blow to the entire identification proceedings by saying that there were only seven pieces of golden Gulband and no other piece of golden Gulband was mixed up. This statement of the lady leaves no room for doubt that identification of the property was not done properly and the entire identification was a farce. ( 28 ) P. W. 8 Sajid All admitted in his cross-examination that the ornaments worn by his wife could be identified by him. ( 29 ) FROM the above discussion of the evidence on record, it is clear that recovery of the ornaments from the possession of the appellants as well as their identification before the Magistrate as well as in the Court appear to be highly doubtful. As noted above, the recovery of the ornaments from the possession of Ram Raj appears to be highly doubtful in the manner as alleged by the prosecution. It has come up in the evidence of Quddus Khan that he did not purchase any ornament. It is well known that male members of the family make purchases of the valuables, including ornaments. In the instant case, all the ornaments were purchased by the father of the informant. It means, he had no idea about the number of ornaments and their weight which were lying in his house. Further, the ornaments were used by the ladies and not by the male members. Therefore, the female inmates of the house could be in a position to identify the ornaments. However, only one woman was sent to identify. She totally demolished the prosecution case by saying that only seven pieces of golden gulband had been kept at the time of identification. I, therefore, find force in the contention of appellants learned counsel that only pieces of ornaments could not be identified by any witness. The intact gulband could be identified by female members of the family. I further find force in the arguments of the appellants that prosecution witnesses and particularly male witnesses were not using the ornaments and as such their testimony do not help the prosecution. The intact gulband could be identified by female members of the family. I further find force in the arguments of the appellants that prosecution witnesses and particularly male witnesses were not using the ornaments and as such their testimony do not help the prosecution. ( 30 ) IN view of close scrutiny of the evidence on record, I hold that recovery of the ornaments from the possession of the appellants has not been proved by reliable evidence. Similarly, the evidence regarding identification of the ornaments is not trustworthy and convincing. Consequently, I hold 1 that this appeal has to be allowed. ( 31 ) IN the result, the appeal succeeds. The conviction and sentence recorded against the appellants are hereby set aside and they are acquitted of the charge under section 412 I. P. C. also. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. Appeal allowed. . .