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Allahabad High Court · body

2010 DIGILAW 990 (ALL)

Kedari v. State of U. P.

2010-03-25

B.N.SHUKLA, YATINDRA SINGH

body2010
1. The only question involved in this appeal relates to identification of the appellants. THE FACTS 2. An attempt to commit dacoity was made in the night intervening 2/3rd December, 1981 at 1:30am at the residence of Ramji Lal (the Informant). In this incident one Phool Singh (the Deceased) was killed. The Informant lodged the FIR (Case Crime No. 224 of 1981, PS-Chatari, district Bulandshar) at 6:30am on 3.12.1981. 3. The allegations in the FIR are as follows: The Informant and his brother were sleeping inside the house. At about 1.30 am in the night, the dacoits started pushing the door of house and hit it with an axe. They were armed with guns, fire arms, lathi, Ballam and Axe; There was noise and they got up. The Informant and his brother raised voice due to which, the Deceased, Sri Ram, Makkhan Singh, Rajpal Singh, Ramesh Chandra also came shouting from southern side of the village; There were exchanges of fire shots from both the sides. The fire shot of the dacoits hit the Deceased and he was injured; The Deceased was being taken to the police station on a cot, but he died infront of the temple and is lying there; There were about 10-12 dacoits, who were recognised in the torch light. 4. The police investigated the case and arrested Kedari (Appellant-1), Bhura alias Asharfi (Appellant-2) on 23.12.1981. 5. The identification was done on 29.12.1981. Five eyewitnesses namely Ramji Lal (PW-1), Sri Ram (PW-2), Makhhan (PW-3), Ram Lal, and Ramesh had gone for the identification. It was done under the supervision of Shyam Lal Sharma, the Magistrate, (PW-4). PW-1 to PW-3 recognised the dacoits. However, Rampal and Ramesh could not identify the dacoits. They were not examined in the trial. 6. The police submitted a charge sheet and the case was committed to the Sessions Court and was numbered as ST NO. 66 of 1982. 7. The IInd Addl. Sessions Judge, Bulandshahr (ASJ) framed charge on 15.7.1982. The appellants were charged under section 302 read with section 149 and 148 IPC. 8. They were not examined in the trial. 6. The police submitted a charge sheet and the case was committed to the Sessions Court and was numbered as ST NO. 66 of 1982. 7. The IInd Addl. Sessions Judge, Bulandshahr (ASJ) framed charge on 15.7.1982. The appellants were charged under section 302 read with section 149 and 148 IPC. 8. Among others, the prosecution filed the following documents: (i).Copy of the FIR dated 3.12.1981 (Ex Ka-18); (ii).Recovery memo of blood stained and plain earth dated 3.12.1981 (Ex Ka- 10); (iii).Recovery memo of Batteris (torch) dated 3.12.1981 (Ex Ka-11); (iv).Recovery memo of Batteris (torch) dated 3.12.1981 (Ex Ka-12); (v).Recovery memo of Batteris (torch) dated 3.12.1981 (Ex Ka-13); (vi).Post mortem report (Ex Ka-3). 9. The prosecution examined the following witnesses: Ramji Lal (PW-1): Informant, an eye witnesses, in whose house the attempt of dacoity was made; Sri Ram (PW-2): Eyewitness, brother of the Deceased; Makhhan (P0W-3): Eyewitness; Shyam Lal Sharm0000a (PW-4): Magistrate under whose supervision, the proceeding was conducted; Dr. RK Lal (PW-5): Doc10tor, conducted the post mortem; Affidavit of Virendra Singh (PW-6): Constable, before whom arrest was made; SB Pundir (PW-7): Ist Investigation Officer; Baran Singh (PW-8): IInd Investigation Officer; Ram Swaroop Sharma (PW-8): Circle Officer, accompanied at the time of arrest. Hari Prakash (PW-10): Constable, carried the dead body for postmortem. 10. The statements of the accused under section 313 CrPC were recorded on 31.8.1982. They denied the incident and also stated that there were shown to the eyewitnesses. 11. The ASJ by his judgment dated 7.7.1982 convicted the accused and sentenced them as follows: One year rigorous imprisonment under section 147 IPC; Imprisonment for life under section 302 read with section 149 IPC. POINTS FOR DETERMINATION 12. Both the accused filed the present appeal. During pendency of the appeal Kedari (Appellant-1) died. His appeal was abated on 4.11.2009. Now only Bhura alias Asharfi (the Appellant) is before this court. We have heard Sri Gaurav Kakkad and Sri Raghvendra Prakash, counsel for the appellants and Sri AK Dwivedi, AGA for the State. The following points arise for determination in this case: (i) Whether the eyewitnesses could recognise the dacoits at the time of the incident; (ii) Whether identification was valid; (iii) Whether the Appellant is guilty. 1st POINT: RECOGNITION IS DOUBTFUL 13. There is no dispute that the incident took place in the night intervening 2/3rd December, 1981. The following points arise for determination in this case: (i) Whether the eyewitnesses could recognise the dacoits at the time of the incident; (ii) Whether identification was valid; (iii) Whether the Appellant is guilty. 1st POINT: RECOGNITION IS DOUBTFUL 13. There is no dispute that the incident took place in the night intervening 2/3rd December, 1981. There is also no dispute that the Deceased was shot dead in the same. The only question is whether the Appellant was one of the dacoits or not. 14. There are three eyewitnesses: Informant (PW-1), Sri Ram (PW-2) (brother of the Deceased), and Makkhan (PW-3). The Informant (PW-1) deposed in the cross examination that at the time of the incident, moon was hidden. It shows that there was no moonlight. The eyewitnesses have deposed that they saw the incident in the torch light. The question is, whether it was sufficient; was it possible to recognise the dacoits. 15. The Informant (PW-1) deposed that: When the dacoit started pushing and hitting the door with the axe, he and his brother got up; They climbed the roof top; He could not see the dacoits, who were breaking the door; He neither saw the Deceased at the time of the shooting nor any villagers but only heard the noise. From deposition of PW-1, it is clear that he could neither see the dacoits when they were near the house nor when there was shooting. 16. The site plan (Ex.9) is also on the record. The place from where the dacoits supposed to have fired the shots was towards south of the Informant's house. The Deceased was standing further south. That is to say at the time of shooting back of the dacoits were towards the Informant. Their back would be there when they were running away. 17. The dacoits never entered inside the house. This is clear from the FIR as well as deposition of the Informant. However, it is not clear from the deposition of the Informant as to what was the distance between him and the dacoits when he saw them. 18. Sri Ram (PW-2) is the brother of the Deceased. He deposed that he could not see the face of the dacoits at the time of the incident. 19. Makkhan (PW-3) is the third eyewitness. 18. Sri Ram (PW-2) is the brother of the Deceased. He deposed that he could not see the face of the dacoits at the time of the incident. 19. Makkhan (PW-3) is the third eyewitness. He deposed that: The distance of the door of the Informent and the place where he was standing was 100 yards; He was looking from where he was standing; He saw the dacoits in the torch light. 20. The incident happened in the month of December and the time was 1:30am in the night. A hundred yards is, 300 feet. It is very difficult to recognise any person from such a distance in the night in Decmeber in only torch light. 21. The deposition of eyewitness should also be seen in the following light: The dacoits were unknown persons; The eyewitnesses did not know them before hand; There is neither any description of the dacoits in the FIR nor in the deposition of any eyewitnesses. 22. Considering the circumstances and the ocular testimoney, we have our doubts whether the eyewitnesses could have recognised the dacoits. 2nd and 3rd POINT: IDENTIFICATION--INVALID 23. The AGA submitted that: In the identification, three out of five eye witnesses recognised the dacouts; This is more than fifty percent; There is no enmity; and This is sufficient to convict the Appellant. 24. Sri Ram (PW-2) is brother of the Deceased. He deposed that: The Investigation Officer (Darogaji) had shown the dacoits before and had asked whether they were the dacoits; The identification was done five or six days thereafter; At the time, when the IO had shown the dacoits, the Informant (PW-1) and Makkhan (PW-3) (the other two eye witnesses) were also present; 25. This shows that: The dacoits were already shown to the eyewitnesses by the IO; and There was suggestion from the side of the IO that they were the dacoits. If this was done then the eyewitnesses would recognise the dacoits. This is no identification: it is farce. This also explains as to why two others eyewitnesses (namely Ram Lal and Ramesh) could not recognise them. They were not shown. This identification can not be relied. 26. Baran Singh (PW-8) is the second IO. He deposed that the appellants have been convicted for 10 years in connection with another dacoity. It appears that were involved in this case because of that case. 27. They were not shown. This identification can not be relied. 26. Baran Singh (PW-8) is the second IO. He deposed that the appellants have been convicted for 10 years in connection with another dacoity. It appears that were involved in this case because of that case. 27. The eyewitnesses could not have recognised the dacoits at the time of the incident. The identification was invalid. In our opinion, the prosecution has not been able to prove its case beyond reasonable doubt. The Appellant is entitled to benefit of doubt. CONCLUSIONS 28. In view of our conclusions, Bhura alias Asharfi (the Appellant) is entitled to benefit of doubt. He is acquitted. The conviction and sentence dated 7.7.1982 in ST No. 66 of 1982, district Bulandshahr is set aside. The appellant is on bail. He need no surrender. His bail bonds are cancelled and sureties are discharged.