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2009 DIGILAW 3544 (ALL)

MAHIMA v. STATE OF U. P.

2009-11-19

POONAM SRIVASTAVA

body2009
JUDGMENT Honble Mrs. Poonam Srivastav, J.—The present appeal was filed by two appellants namely Mahima and Kattar who were convicted under Section 395, I.P.C. and sentenced to five years R.I. vide judgment and order dated 21.1.1981 passed by the Ist Additional District and Session Judge, Jaunpur in Sessions Trial No. 191 of 1977. The appellant Mahima died during pendency of the appeal and by order of this Court dated 25.2.2004, the appeal stands abated so for it relates the appellant Mahima. Bail bond of Kattar has been cancelled and none appeared on his behalf. Compliance report was awaited for considerable length of time but whereabouts was not traceable. Finally Ms. Sandhya Agrawal Advocate was appointed as Amicus Curiae who prepared the appeal and argued today. 2. The occurrence is alleged to have taken place on 5/6.3.1976 at 12.30 mid night. The F.I.R. was lodged on 6.3.1976 at 7.10 A.M. regarding a dacoity committed in the house of Paras Nath Singh. The first informant was also Paras Nath Singh PW-1. The F.I.R. was registered under Sections 395, 397, I.P.C. at Police Station Machhali Shahar, District Jaunpur. Five accused namely Mahima, Ram Nath, Ram Jeet, Kattar and Chhanu were sent up for trial. The present appellant Kattar was not named in the F.I.R. and only evidence against him is of identification. 3. The prosecution case is that in the night between 5/6 March, 1976 Paras Nath Singh and his family members were sleeping inside their house situated in village Khajuri, Police Station Machhlishahar, Jaunpur. In this house Paras Nath Singh and his Pattidars Tej Bahadur and Bansh Raj Singh also live separately. A lantern was burning outside the house and at about mid night 10-12 dacoits came to the house. They got the main door opened. Seven eight dacots went inside the house and started looting the property. Paras Nath Singh and his family members raised alarm. Meanwhile Tej Bahadur Singh who was sleeping out side the house set the Chhappar on fire. The house was situated towards the north eastern corner of the house of Paras Nath Singh. Hearing the alarm, Burhabu alias Indramani, Doodhnath, Sabhapati and several others came on the spot. They attempted to apprehend the dacoits but the dacoits started running away towards north after looting the property of the house. A Jhola containing hand grenade was left out side the house. Hearing the alarm, Burhabu alias Indramani, Doodhnath, Sabhapati and several others came on the spot. They attempted to apprehend the dacoits but the dacoits started running away towards north after looting the property of the house. A Jhola containing hand grenade was left out side the house. The family members of Paras Nath Singh and witness started attacking the dacoits with these hand grenade. Consequently several dacoits received injuries. Three dacoits were however arrested at the spot. The others ran away. The dacoits who ran away, were recognised in the light of lantern and the light of burning Chhappar on the site of incident. Sugriv Singh of village Chahi and Ram Nath accused were recognised in the light of lantern and fire. In interrogation, the arrested dacoits disclosed their names as Mush Lal and Ram Jeet and Kalu alias Sheodhani of Varanasi. The prosecution alleged that Sugriv Singh has a relationship with Shri and Ram Nath accused. Sugriv Singh was seen visiting the house of these peoples. It has been alleged that Ram Nath is the resident of village Sarawa. He has his fields in the village Khajuri. Consequently Ram Nath Singh and his brothers visited the village Khajuri very often. 4. The complainant Paras Nath Singh could not inform the police in the night on account of fear. On the following morning he went to the police station and on the way he came to know that a man was lying dead in a Arhar field of village Uswawan. The witnesses went there and saw the dead body and found that it was the dead body of Sugriv Singh. The arrested dacoits were brought to the police station and handed over to the police. The complainant Paras Nath Singh gave a written report Ex. Ka-1 to the police station Machhalishahar on 6.3.1976 at 7.10 A.M. Loak Nath Yadav Head Moharrir made an entry in the G.D. Copy of which is Ex. Ka-8. 5. The prosecution examined Paras Nath Singh, Sabhapati, Tej Bahadur Singh, Indramani and Doodhnath Singh PW-1 to PW-5 respectively as eye witnesses. Ram Bali Singh was examined as PW-6 and Udai Pratap Singh as PW-7. Head Constable Kedar Nath had filed his affidavit. He was a Head Constable in Police Station Chandwak. Ka-8. 5. The prosecution examined Paras Nath Singh, Sabhapati, Tej Bahadur Singh, Indramani and Doodhnath Singh PW-1 to PW-5 respectively as eye witnesses. Ram Bali Singh was examined as PW-6 and Udai Pratap Singh as PW-7. Head Constable Kedar Nath had filed his affidavit. He was a Head Constable in Police Station Chandwak. He proved that the accused Mahima was brought Baparda by S.O., Udai Pratap Singh on 19.3.1976 and he was sent to district jail Jaunpur through constable Bhunashar and one another on 20.3.1976 and was lodged in the district jail Jaunpur. He also proved the entries in the G.D., copies of which are Ex. Ka-16 and Ka-17. 6. The prosecution has admitted that no recovery whatsoever was made from the appellant Kattar. Three persons namely Paras Nath, Sabhajeet and Indramani are said to have identified the appellant. The appellant was not arrested but he surrendered in the Court on 5.10.1976 and thereafter he was put up for identification on 11.11.1976. Identification memos are Ex. Ka-4, Ka-5 and Ka-6 which was conducted by Sri R.C. Jatav, the then Executive Magistrate. However, the Magistrate has not come forward to prove the identification memos. On perusal of the judgment of the learned Session Judge, it transpires that the Public Prosecutor along with respective counsels for the accused Kattar and Mahima had dispensed with the formal proof of the identification memo prepared by Sri R.C. Jatav. The accused Kattar has stated in his statement under Section 313, Cr.P.C. that he was shown to the witnesses during his identification in the lock up of the Court and at the time of surrender in the Court. Learned Session Judge convicted the accused on the basis of identification of Paras Nath Singh and Indramani witnesses, whose result of identification was 100%. 7. Learned A.G.A. has stated that the identification was conducted within time and since there is two good identifications, coupled with the fact that there was sufficient light to recognise the witnesses, the said evidence is sufficient to uphold the conviction. He has supported the judgment of the learned Session Judge. 8. After hearing the respective counsels at length and going through the record, I am conscious of the fact that only evidence against the appellant Kattar is of identification. He has supported the judgment of the learned Session Judge. 8. After hearing the respective counsels at length and going through the record, I am conscious of the fact that only evidence against the appellant Kattar is of identification. The conviction on the basis of solitary evidence of identification cannot be upheld lightly but it has to be dealt with circumspection, caution and care. It is also true that the identification memo was accepted without there being any formal proof but mere agreement by the two counsels will not suffice and it does not fulfil the requirement of law. In fact identification memo was liable to be proved to substantiate that at the time of identification parade, the accused was mixed with similarly looking ten other persons and specific marks of identification were concealed. Besides, it was incumbent on the Investigating Officer to have led the link evidence that after surrender of the accused and till the time of identification he was kept Baparda. There is no such evidence in the entire record and the learned Session Judge has also failed to consider this aspect while convicting the accused Kattar. No doubt, lantern was burning in respect of which recovery memo was prepared, as well as burning of Chhappar was good enough and sufficient light to enable the witnesses to recognise the accused. But in the instant case, presence of light alone cannot be said to be sufficient for upholding the conviction. Solitary evidence of identification cannot be held to substantiate the prosecution theory without any other evidence. Admittedly, there is no recovery from possession of the appellant. The conviction on the basis of identification which is not proved by the Magistrate or any other competent officer. I am therefore of the view that the prosecution has not been able to establish the evidence of identification beyond doubt and in absence of any recovery whatsoever and also on the face of specific objection of the accused that he was shown in the Court lock up, it is not safe to convict the appellant. 9. In the circumstances, the appeal is allowed. The judgment and order dated 21.1.1981 passed by the Ist Additional District and Session Judge, Jaunpur in Sessions Trial No. 191 of 1977 is set at naught and the appellant is acquitted. The appellant need not surrender. ————