Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 2619 (ALL)

Molhay & Anr. v. State of U. P.

2010-08-27

ABDUL MATEEN, YOGENDRA KUMAR SANGAL

body2010
Yogendra Kumar Sangal, J.:- This appeal has been filed by the appellants Molhay and Ram Saran against the judgment and order dated 28.08.1981 passed by IIIrd Additional Sessions Judge, Bahraich convicting both the appellants in Session Trial No. 246 of 1980 and Session Trial No. 321 of 1980 related to Case Crime No. 171 of 1979 under Section 396 IPC, P.S. Fakharpur, District Bahraich. By the impugned judgment and order, learned Session Judge held guilty to both the accused-appellants for the offence under Section 396 IPC and sentenced them for rigorous imprisonment for life. 2. As per prosecution case in the night of 18/19.09.1979, 8 to 10 dacoits armed with deadly weapons like Gun, spears, kanta etc., came at the door of the house of the informant Gangaram and started beating Ganga Ram's father Mangrey who was sleeping on the cot and inflicted injuries to him resulting in his death on the spot. Family members awoken. Informant raised alarm, attracted neighbourers and villagers and they reached there having 'lathies', torches in their hand and in the light of torch and Dhebri, they saw the occurrence. One witness Nankau ignited the 'Khari' etc., which was lying their in the shape of heap and in that light also faces of the dacoits were seen but they were unknown persons. Some of dacoits scaled and jumped the wall of the house and open the door and rest dacoits also entered into the house and started looting valuable and they have also beaten the witnesses when they tried to interfere in their loot work. They have also looted the articles from the house of neightbour Tulsi Ram and left the place firing shots creating atmosphere of terror there. 3. Report was lodged at the police station, on the same case was registered. Station Officer started investigation in the matter and he visited the spot. He prepared inquest report, photo lash, challan lash, letter to C.M.O., and sealed the dead body to send it to mortuary for autopsy. Blood-stained and "Sada Mitti" and sample of "Ash" of burnt Khari and discharged cartridge was collected and recovered by him from the spot and separate memo's were prepared. Dhebri and torches of informant and witnesses were also seen. As these were found in working order, after preparing memo's, given in their "Sapurdagi" with direction that they will produce them in the court. Dhebri and torches of informant and witnesses were also seen. As these were found in working order, after preparing memo's, given in their "Sapurdagi" with direction that they will produce them in the court. Site plan of the place of occurrence was also prepared. Statement of witnesses were recorded. As the first investigating officer was transferred other Station Officer appointed Ajlal Husain started the investigation. On the information, he arrested both the appellants along with other accused persons when they were preparing for another dacoity, in an encounter with police on 19.03.1980 for the offence under Section 399/402 IPC and arms also are said to have been recovered from possession of some of them. On interrogation, both the accused-appellants along with others have confessed guilt about their complicity in this case of dacoity also. They were made "Baparda" with further direction to them to keep as such because they shall be put for identification by the witnesses of this case and they were brought at the police station and after obtaining their remand from the Magistrate concerned, were sent to jail. Injuries of the injured witnesses were examined by the doctor and their injury report along with post-mortem report was collected by the investigating officer. 4. Test identification parade for the appellants along with two other accused inside jail was arranged on 23.05.1980. Five witnesses Nankau, Tulsi Ram, Puttilal, Baijnath, Ganga Ram (informant) appeared for identifying the dacoits in the jail. Out of them, four Nankau, Tulsi Ram, Puttilal and Ganga Ram have correctly identified both the accused appellants and they have not committed any mistake. Baijnath also identified the accused Molhay. Witness Tulsi Ram in addition also identified another one accused Sriram. All the witnesses have not committed any mistake in identifying the accused persons. What the witnesses and accused persons have stated before and after the identification parade to the Magistrate, he made a note of the same on the memo prepared by him. He has also given their identifying marks and precaution taken by him to hid them in the parade. 5. Completing the investigation, charge-sheet was submitted in the court of Magistrate against three accused persons i.e. both the appellants and Sriram. Learned Magistrate after taking cognizance in the matter, committed the case to the court of Session as it was exclusively triable by the court of Session. 6. 5. Completing the investigation, charge-sheet was submitted in the court of Magistrate against three accused persons i.e. both the appellants and Sriram. Learned Magistrate after taking cognizance in the matter, committed the case to the court of Session as it was exclusively triable by the court of Session. 6. At the time of framing the charge, hearing the counsels for the accused and State as only one witness has correctly identified to Sri Ram seeing the case of single identification, learned Session Judge had passed the order of discharging him for the charge under Section 396 IPC and charge was framed against both the appellants for the offence under Section 396 IPC but they pleaded not guilty and claimed their trial. 7. Three witnesses of fact PW-1 Ganga Ram (informant); PW-2 Tulsi Ram (another victim of the case); PW-3 Puttilal were examined. They all have tried to support the prosecution case and also stated that they have correctly identified both the accused in jail in identification parade. It was further stated by them that both the accused persons were not known to them from before and they saw them firstly when they were among the dacoits and later on in the identification parade in jail. They have denied the suggestion that they saw the accused-persons at police station or any where else. PW-4 Sri Sarvesh Chandra Misra, S.D.M., conducted the proceedings of identification parade and he proved the identification memo Exhibit-Ka-8 dated 23.05.1980, PW-5 Sri Ajlal Husain the second investigating officer who submitted the charge-sheet in the matter and PW-6 Sri Laiq Ahmed another investigating officer who started the investigation in the matter when the case was registered at police station. PW-7 Ram Baran Singh, constable is the witness of the fact that from police station he produced Molhay and Ram Saran before the remand Magistrate and admitted them in the jail first time and he further stated that till they remained in his custody, he has not permitted any person to see them. 8. In their statement under Section 313 CrPC, both the accused have denied the correctness of the prosecution case and evidence and claimed that they have been falsely implicated in this case due to enmity with the police. It was further stated that witnesses of the case have deposed against them due to pressure of the police. 8. In their statement under Section 313 CrPC, both the accused have denied the correctness of the prosecution case and evidence and claimed that they have been falsely implicated in this case due to enmity with the police. It was further stated that witnesses of the case have deposed against them due to pressure of the police. In his statement Molhay accused-appellant further stated that he used to go in the village where this occurrence has taken place for the purpose of selling "Angocha", so witnesses were knowing him. He further stated that he was kept at police station since 19.03.1980 to 21.03.1980 and shown to the witnesses. He also claimed that he is a "tall" person and in the parade person of his height were not mixed. Other accused Ram Saran stated that he was not made "Baparda" and kept in police station for two or three days and shown to the witnesses. In defence accused Molhay has also filed copy of application sent by Hamid to Inspector General of Police, U.P. with the copies of D.I.G., Faizabad and S.S.P., Bahraich by registered post on 02.03.1979 showing the police excess on Hamid as they were asking his address from him in connection of some other case. No other evidence either oral or documentary was adduced on behalf of the accused. 9. After going through the evidence available on the record, hearing parties counsel as well as perusing the record, learned Session Judge held guilty both the accused-appellants for the offence under Section 396 IPC and sentenced them as above. Aggrieved by this judgment and order, this appeal has been filed. 10. Learned counsel for the appellant No. 2 Ram Saran moved an application taking on record the certified copy of the judgment of acquittal of both the appellants dated 25.03.1983 in Session Trial No. 312/1981 under Section 399/402 IPC delivered by the court of IIIrd Additional Session Judge, Bahraich. The application was allowed and the certified copy of the judgment was taken on record. Learned AGA has not pressed for filing any documents in rebutal. 11. Heard learned Counsel for the appellants Sri A.R. Khan and Sri Akhter Abbas as well as learned Additional Government Advocate Sri O.P. Srivastava and perused the record. 12. The application was allowed and the certified copy of the judgment was taken on record. Learned AGA has not pressed for filing any documents in rebutal. 11. Heard learned Counsel for the appellants Sri A.R. Khan and Sri Akhter Abbas as well as learned Additional Government Advocate Sri O.P. Srivastava and perused the record. 12. During the course of argument in appeal, learned counsel for both the appellants have not disputed the factum of offence of dacoity taken place in the house of PW-1 Ganga Ram and PW-2 Tulsi Ram in the night of 18/19.09.1979. Father of PW-1 Ganga Ram, namely Mangray was murdered by the dacoits by inflicting injuries upon him during the occurrence, it was also not disputed on behalf of the accused-appellants at the time of argument. Inquest report and allied papers photo lash, challan lash, letter to C.M.O. prepared are available on the record and proved by the investigating officer. Copy of the post-mortem report of deceased Mangrey is also available on the record. Genuineness of the same was not disputed on behalf of the accused in the trial court. About the incident of this dacoity, a report was lodged at police station concerned by informant PW-1 Ganga Ram in the next morning i.e. on 19.09.1979 at 8.30 A.M. against unknown miscreants and detail of the articles looted by the dacoits given in it. These facts are also not disputed on behalf of the accused-appellants. 13. It is not a case where the dacoits were identified by name at the time of occurrence by the informant and witnesses. They were unknown persons to the witnesses. Later on nothing is said to have been recovered from the possession of any of the appellant accused out of looted property, which is also clear from the record. 14. It is said on behalf of the prosecution that both the appellants along with other accused persons were apprehended by PW-5 Ajlal Hussain with the aid of other police persons in presence of independent witnesses during the course of investigation of this case, on the information received, in case of police encounter in the night of 18/19.09.1980 and country made pistol and live cartridge were recovered from the possession of appellant Molhay when they were preparing to commit dacoity in another house. It is further said on behalf of the prosecution that on interrogation on spot both the appellants along with other accused have confessed their guilt and their complicity in this dacoity case. They were brought at police station and case was registered against them for the offence under Section 399/402 IPC and under Section 25 of Arms Act against accused Molhay. They were also challaned in the present case of which remand was sought from the court of Magistrate in both the cases. It is said that they were made "Baparda" on the spot and later on, they were also directed to keep them as such as their identification parade by the witnesses of this case shall be arranged. After investigation in case under Section 399/402 IPC charge-sheet was submitted and case was committed to the court of Session. It is very significant to mention here that both the appellants Molhay and Ram Saran along with other accused were acquitted in that case under Section 399/402 IPC and under Section 25 of Arms Act against (Molhay) in S.T. No. 48/1982, 284/1981, 312/1981 and 245/1980 State vs. Molhay etc. by the Court of IIIrd Additional Session Judge, Bahraich vide its judgment and order dated 25.03.1983, certified copy of the same filed as above. Learned AGA at the time of argument has not pressed that any appeal was filed on behalf of the State against this acquittal order of both the appellants in case under Section 399/402 IPC. From the findings given by the learned Session Judge in the above case under Section 399/402 IPC, it is clear that independent witnesses of the fact of the case Nawaz Ahmed Khan, Bhagwati Prasad, Sukhram, Gaya Prasad, Raj Kishore and Ayodhya have not supported the case of the prosecution. One witness Narayan supported the case of the prosecution in part but he has changed the place of occurrence and arrest and recovery of arms from the accused. In the facts and circumstances of that case, learned Session Judge agreed with arguments of counsel for the accused that the story of the prosecution is imaginary and no such occurrence has taken place. PW-5 Ajlal Hussain the investigating officer of the present case was the informant of that case under Section 399/402 IPC. Story made by him about the arrest of both the appellants was disbelieved by the court. PW-5 Ajlal Hussain the investigating officer of the present case was the informant of that case under Section 399/402 IPC. Story made by him about the arrest of both the appellants was disbelieved by the court. Moreover the alleged confessional statement of the accused persons before the police after their arrest in case under Section 399/402 IPC cannot be taken into consideration under the provisions of law for their conviction in the present case. 15. As the story of the prosecution regarding the arrest of the accused -appellants was disbelieved by the competent court and they both were acquitted in case under Section 399/402 IPC. Now other case about their detention by police remains as per defence case that they were apprehended by the police from their houses and kept at police station for two or three days and were shown to the witnesses there. It is correct that no evidence either oral or documentary was adduced by the accused to support their case before the trial court, but when the story of the prosecution has been belied and negatived by the competent court about their arrest then there is no reason to ignore this case of the accused persons in the facts and circumstances of the case. 16. Undisputedly, no one has identified the accused persons on the spot at the commission of dacoity by name. No looted property was recovered from their possession. Their alleged confessional statement before police persons cannot be taken into consideration. Now the only evidence left against the accused appellants on the record is the evidence of identification. It is established law that identification evidence is not substantive evidence. Such test are meant for purpose of helping the investigating officer with an assurance that their progress with investigation in offence is proceeding on right line. It requires corroboration to hold the guilt of the accused persons on its basis. Learned counsel for the appellants argued that identification evidence in the present case was too good to be believed and no conviction order could be passed on the same. Out of five witnesses without committing any mistake, four have correctly identified both the accused and in addition one witness who has also not committed any mistake for identifying Molhay. 17. Learned counsel for the appellants argued that identification evidence in the present case was too good to be believed and no conviction order could be passed on the same. Out of five witnesses without committing any mistake, four have correctly identified both the accused and in addition one witness who has also not committed any mistake for identifying Molhay. 17. In the present case, it is obvious from the prosecution story that the dacoits were having deadly weapons in their hands including firearm and they have also committed murder of father of the informant of the case and four other witnesses namely Tulsi Ram, Nankau, Rameshwar and Ghanshyam received injuries inflicted by the accused persons as they tried to reach near them. This shows that they should have been in terror and frightened and there was an atmosphere of terror on the spot. As regard the light on the spot, three sources are stated on behalf of the prosecution Dhebri, torches and ignition in "Khari" kept nearby the place of occurrence by one witness Nankau. These torches and Dhebri are not produced before the court during the trial. Moreover, it is also not supported from the record because no memo after seeing the torch of Ganga Ram was prepared by the investigating officer. The trial court in its judgment had mentioned that there is contradiction in the evidence of the prosecution witnesses where this "Khari" was placed on the spot and ignited by witness at the time of the occurrence. Sufficient light was there on the spot at the time of occurrence, it cannot be taken established from the evidence on behalf of the prosecution. Such a brilliant identification by witnesses who were bound to be under fear or terror must be called too good to be believed and suspicious. In case of Chunnu vs. State reported in 1954 Crl.J. 1762 similar identification performance in similar state of mind of witnesses was found to be suspicious and was not found fit for being basis of conviction. This view has been accepted as settled view has been followed even in recent rulings which for sake of avoiding voluminous need not be cited. 18. Further in the present case, as per prosecution version occurrence took place in the night of 18/19.09.1979. This view has been accepted as settled view has been followed even in recent rulings which for sake of avoiding voluminous need not be cited. 18. Further in the present case, as per prosecution version occurrence took place in the night of 18/19.09.1979. Arrest of the accused persons has taken place after six months i.e. on 19/20.03.1980 and the identification parade was arranged after more than sixty days of their arrest i.e. on 23.05.1980. From the statement of the investigating officer or any other witness no satisfactory explanation is there on the record about this inordinate delay of more than sixty days in arranging the identification parade. No recollection by witnesses of any special identifying feature or any specific role played by each of the suspects is stated by any of the witness. There is unexplained delay on the part of the prosecution in arranging the test identification parade. In this connection, learned counsel for the appellants has placed reliance on a case report in (1982) 3 SCC 363 Soni vs. State of U.P. In that case the identification parade was held after 42 days of the arrest. It has been observed by the Hon'ble Supreme Court that the delay in holding identification parade throws doubt on the genuineness thereof apart from the fact that it is difficult that after a lapse of such a long time the witnesses would be remembering the facial expression and features of miscreants/appellants. In the present case, the occurrence had taken place in September, 1979 and identification parade was arranged in May, 1980 i.e. after 8 months. It will be more difficult to identify the miscreants among 11 persons who were present in the parade and as per learned Magistrate who conducted the identification parade, he has taken precaution to hid their special features and marks. Although, it is claimed by the accused appellant Molhay that his height is more than the normal height and Ram Saran claimed that he is of short of normal height (which is not denied by the witnesses in their statements) and the persons mixed up with them were not of same height. Any special precaution was taken by the learned Magistrate regarding their height, it is not mentioned in the identification memo. It was held by Hon'ble Apex Court in (2007) 2 SCC 310 : ( AIR 2007 SC 676 ) Amit vs. State. Any special precaution was taken by the learned Magistrate regarding their height, it is not mentioned in the identification memo. It was held by Hon'ble Apex Court in (2007) 2 SCC 310 : ( AIR 2007 SC 676 ) Amit vs. State. The main purpose of holding such test during investigation is to check the memory of witnesses based upon first impression and enable the prosecution to decide whether these witnesses could be cited as eye-witnesses of crime. In other case Musheer Khan alias Badshan Khan vs. State of Madhya Padesh, reported in (2010) 2 SCC (Criminal) 1100 : ( AIR 2010 SC 762 ) the Hon'ble Apex Court held that no reliance ought to have been placed by the Court below or High Court on such delayed test identification parade for which there is no explanation by the prosecution. 19. It was contended by the learned counsel for the accused appellant that there is no evidence on record either oral or documentary or by way of an affidavit on behalf of the prosecution to show that both the accused persons remained through out "Baparda" at police station and even when they were brought for remand purposes from jail to the court and were returned to jail. In case of dacoity where sole evidence against the accused hinges on identification, a burden lies on the prosecution to establish satisfactorily that after the arrest the accused were kept "Baparda" till the time identification parade is arranged. It was specifically stated by both the accused persons in their statement under Section 313 CrPC and also suggested to witnesses in cross-examination that after their detention at police station for two or three days, they were shown to the witnesses. To controvert this case of the accused persons sufficient admissible and believable evidence was not adduced on behalf of the prosecution. Learned counsel for the appellants further argued that under the circumstance, it will not be safe to place credence on the identification evidence specially when there was such a brilliant performance of the witnesses in identification parade where out of five witnesses four have correctly identified both the appellants without any mistake and 5th witness had also identified Molhay in addition without committing any mistake which is too good to be believed. Learned AGA argued that the appellants knew about that evidence from the date when the parade was held and if they wanted to demolish it, it was for them to do so by effective cross-examination from the witnesses and/or by examining his witnesses in rebutal. As the appellants had not succeeded in doing so it was futile to contend that this important piece of evidence should be rejected merely because the prosecution had not led any evidence to prove that the appellants were kept "Baparda". In the present case after 8 months of the occurrence, it is said that witnesses have identified the miscreants in the parade, although they saw them firstly at the time in the occurrence and lastly in the parade in atmosphere of terror in night and where sufficient light to see is not established. There is also a inordinate delay of more than sixty days on behalf of the prosecution without any sufficient cause and without explaining the delay in the matter after their arrest in arranging their parade. It is something unnatural and improbable that after seeing the miscreants 8 months before for a movement in the atmosphere of terror and specially when one person of the family has been murdered by the dacoits and four other received injuries also and they were not permitted to come near them and the evidence of sufficient light on the spot lacking in the prosecution case, they would have correctly identified the miscreants in the parade after such a long gap. Moreover the story of prosecution that both appellants were arrested in case of police encounter and they were made "Baparda" on the spot is negatived by the competent court in their trial for the offence under Section 399/402 IPC and learned Session Judge agreed with the argument of learned counsel for the accused in that case that story is imaginary and cannot be accepted. This all corroborates the case of accused persons that they were shown to witnesses and were not kept "Baparda". 20. This all corroborates the case of accused persons that they were shown to witnesses and were not kept "Baparda". 20. May be that appellants have not produced any evidence in their defence to prove their case to the effect that witnesses had an opportunity to see and recognize them and they were shown to the witnesses at police station after their arrest, but the circumstances which have been indicated in the earlier part of the judgment goes to show that possibility cannot be ruled out that the witnesses may have seen the appellants earlier before the identification parade arranged may be not on spot but at police station as stated by accused in their statement under Section 313 CrPC. In view of the above, we find that it will not be safe to place explicit reliance upon the identification evidence which is the only evidence that remains on record against the appellants. 21. In the result, the appeal succeeds and is allowed. The conviction and sentence passed against the appellants by the learned trial court for the offence under Section 396 IPC in S.T. No. 246/1980 and 321/1981 is hereby set aside and they are acquitted. They are already on bail. They need not surrender. Their bail bonds including personal bonds are cancelled and sureties are discharged. Trial court be informed accordingly. Appeal allowed.