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2012 DIGILAW 417 (ALL)

BUDHA RAM v. STATE OF U. P.

2012-02-14

VINOD PRASAD

body2012
Vinod Prasad, J,;- Challenge in this appeal by the three appellants Budha Ram ( A1), Pheran Singh ( A2) and Jagat Singh ( A3) are to their conviction u/s 394/397 IPC and implanted sentence seven years R.I. Appellant Jagat Singh ( A-3) has further challenged his conviction u/s 411 IPC and imposed sentence two years R.I. therefore. All these conviction and sentences have been recorded by Additional Session's Judge, Lalitpur, in S.T. No. 12 of 1979, State Vs. Kashi Ram and four others, relating to P.S. Narahat, district Lalitpur, vide impugned judgement and order dated 21.8.1981. 2. Stated laconically, allegations against the appellants were that on 18.11.78, informant Musharraf Khan ( P.W.1) and HarishChandra ( P.W.2), both resident of village Narahat were drappers, and they had gone to Dongara Bazar on their cycles, to sell their ready-made cloths, towels etc. Tulsi ( P.W.3),another co-villager, had also gone there, same day, to sell his plastic shoes. Together they all started their return journey to their houses at 6.45.p.m.( PW1) was moving ahead of rest of the two and was followed by ( PW2) and then ( PW3). Till 7.30 p.m. they covered a distance of two KMs from Dongara and reached on the link road between Dongara and Bagaria, where, they were rounded up by four miscreants, who assaulted ( PW1) & ( PW 2) and decamped with their bundles of ready-made clothes and towels etc. worth Rs. 1400/= or 1500/= and Rs.800/= respectively, which were tied on their cycle careers. They were also robbed of their cash money of Rs. 200/ & Rs. 107/= respectively. Two of the robbers one each was armed with country made pistols and a lathi and rest of the two were armed with spears. The robbers were identified in the flashed torch light by ( PW3). After committing robbery, miscreants escaped towards agricultural fields and eloped. Regarding their identities they were of young age with bulky body and one of them was short structured and they were conversing in local dialect. Carrying their cycles in hand ( PW1) and ( PW2) came to Bagaria road and, from there, they boarded a bus and came to police station Narahat, where informant( P.W.1) dictated oral FIR, Ex.Ka-1, which was registered at 9.15 P.M. as Crime No. 67 of 78, u/s 394/397 IPC. 3. Carrying their cycles in hand ( PW1) and ( PW2) came to Bagaria road and, from there, they boarded a bus and came to police station Narahat, where informant( P.W.1) dictated oral FIR, Ex.Ka-1, which was registered at 9.15 P.M. as Crime No. 67 of 78, u/s 394/397 IPC. 3. Head Moharrir, Shiv Baran Singh, vide G D No. 23, had registered the crime by preparing chick FIR, Ex.Ka1, which was proved during trial by first Investigating Officer, S.O. Kamta Prasad, P.W. 19. 4. Investigation into the crime was commenced by S.O. Kamta Prasad ( PW19), who, on 19.11.1978, had recorded investigatory statements of three victims, conducted spot inspection and prepared site plan Ex. Ka 12. Investigating Officer thereafter checked the torch of( P.W.3) and prepared it's recovery memo, Ex. Ka 2. On 30.11.1978, at 12.30 a. m., in village Daulatpur, appellant( A1) was apprehended, while making preparation to commit dacoity, u/s 399/402 IPC, and was put under veil. From his possession Rs. 3000/- cash was recovered.( A1) confessed his involvement in the present crime and therefore, he was lodged in police lock-up and GD entry in that respect, Ex. Ka 13, was penned down at 4.15 a. m. by the I.O. P.W. 19. Recovered cash money was in denominations of rupees 100/50/20/10, which, during trial were exhibited as material Exts. 14/1 to 14/32. Investigating Officer thereafter received information regarding recovery made from one accused Kashi Ram. He, therefore, recorded statement of S.I. Sukh Deo Pandey and witnesses Param and Bhantey and after conducting spot inspection of the place of that recovery, sketched it's site plan Ex. Ka 14. Recovery from appellant Jagat Singh( A3) was also intimated to the I.O. and therefore, P.W. 19, recorded investigatory statements of Umesh Chandra Mishra, Desh Ram Singh, Prahlad Singh, Sarju Prasad and Jugla and conducted spot inspection of that recovery place and prepared it's site plan Ex. Ka 15. Thereafter I.O. gave a report for conducting test identification parades of the apprehended accused and those of recovered articles. Concluding investigation, he had laid two charge sheets, Ex. Ka 16 and Ka 17, against the accused appellants. 5. Identification of the accused was conducted by SDM Santosh Kumar, in district Jail Jhansi on 29.12.1978 ( identification of accused Pheran and Budha Ram) and on 27.1.1979 ( identification of accused Asha Ram and Jagat Singh). Concluding investigation, he had laid two charge sheets, Ex. Ka 16 and Ka 17, against the accused appellants. 5. Identification of the accused was conducted by SDM Santosh Kumar, in district Jail Jhansi on 29.12.1978 ( identification of accused Pheran and Budha Ram) and on 27.1.1979 ( identification of accused Asha Ram and Jagat Singh). Three arrested accused Pheran Singh, Budha Ram and Jagat Singh were correctly identified by all the three victims( P.W.1) to( P.W.3). Fourth accused Asha Ram however, was identified only by ( P.W.1) and ( PW3). ( P.W.2), Harish Chandra could not identify him. These identification memos have been proved by the said SDM ( P.W.5) as Exts. Ka 3 and Ka 4. Articles recovered from the possession, and at the pointing out of these accused, were also identified vide Exts. Ka 5 and Ka 6 and those test identification proceedings were conducted on 5.1.1979 and 3.3.1979. 6. Submission of charge sheet against the appellants resulted in their summoning and Session's Judge, Lalitpur, on 8.11.1979, in concerned Session's Trial No. 12 of 1979, State Vs. Kashi Ram and others, charged all the appellants u/s 394/397 IPC. Accused Kashi Ram and Jagat Singh were additionally charged u/s 411 IPC. All these charges were denied by accused persons, who claimed to be tried and therefore, their trial commenced to establish their guilt. 7. In the trial, prosecution examined all the three victims Musharraf Khan ( P.W.1), Harish Chandra ( P.W.2) and Tulshi Ram ( P.W.3) as fact witnesses. Formal witnesses included SDM Santosh Kumar ( P.W.5), S.S.I. U.C. Mishra ( P.W.12), Bhantey ( P.W.13), Param ( P.W.14) and Jugla ( P.W.15). Besides oral testimonies of these witnesses, prosecution tendered affidavits of Constable Chandra Bhan Pathak ( P.W.4), Head Constable Radhey Shyam ( P.W. 6), Head Constable Rajendra Singh ( P.W. 7), Constable Babu Ram ( P.W.8), Constable Subrati Khan ( P.W.9), Constable Ram Narayan Verma ( P.W.10), Constable C.P. Anand Prasad, ( P.W.11), Constable Ram Narayan( P.W.16), Head Constable Krishna Kumar( P.W.17) and Constable Om Prakash ( P.W.18). Investigating Officer S.O. Kamta Singh was examined as ( P.W.19). Prosecution also relied upon documentary evidences of test identification memos, besides other exhibits. 8. Under section 313 Cr. P.C., all the accused denied incriminating circumstances put to them, occurring in prosecution evidences against them and pleaded their false implication because of enmity with the police. Investigating Officer S.O. Kamta Singh was examined as ( P.W.19). Prosecution also relied upon documentary evidences of test identification memos, besides other exhibits. 8. Under section 313 Cr. P.C., all the accused denied incriminating circumstances put to them, occurring in prosecution evidences against them and pleaded their false implication because of enmity with the police. Besides aforesaid common defence, appellant( A1) stated that he was arrested from a field, where he was grazing his cattle and was falsely implicated in the case and he was shown to the witnesses at the Police Station for two days, when he was detained in police lock-up. ( A2) pleaded that he was arrested from his house and was brought to the Police Station Narahat and was detained there for two days. He further stated that he had relations in village Narahat and people knew him very well.( A3) also pleaded that he was arrested from his house and was shown to the witnesses and thereafter was lodged in police lock-up. He denied the recovery made from his possession. 9. Additional Session's Judge, Lalitpur, vide impugned judgement and order, concluded that the charges against the appellants for crimes u/s 399/397 IPC was established beyond all doubts, and therefore, convicted the appellants for those offences. It also concluded that offence u/s 411 IPC was also successfully anointed against appellant Jagat Singh, and therefore, convicted him for that offence. It however, acquitted accused Asha Ram, as, in his conclusions, there was only one identification against him, that was of ( P.W.1). ( P.W.3) had clearly deposed that said accused Asha Ram was shown to him at the Police Station and hence trial court, in his respect, did not believe prosecution version. 10. Challenge in this appeal by the three convicted accused is to their aforesaid conviction and sentence. 11. On the above background facts, I have heard Sri R.D. Dahaulia, learned counsel for the appellants and Sri Patanjali Mishra, learned AGA for the respondent State. 12. Sniping impugned judgment, learned counsel harangued that the same is indefensible and cannot be affirmed as the appellants were falsely implicated and their identification does not inspire any confidence and they were shown to the witnesses at the police station, where they were detained for two days. 12. Sniping impugned judgment, learned counsel harangued that the same is indefensible and cannot be affirmed as the appellants were falsely implicated and their identification does not inspire any confidence and they were shown to the witnesses at the police station, where they were detained for two days. It is also submitted that no recovery was made from the possession of ( A1) & ( A2) and hence their participation in the crime is not established. There was no source of light available and flashing of torch by ( PW3) is a fabricated version. None of the appellants were previously known to the witnesses, therefore, in short time, in darkness, their identification by the witnesses was impossible. It was therefore argued that the appellants be acquitted of the charges leveled against them and be set at liberty. 13. Learned AGA submitted other wise and contended that there was no reason for the police to frame-in the appellants and they were identified by independent witnesses and therefore their complicity in the crime is established beyond any shadow of doubt and the appeal lacks merit and be dismissed. 14. I have considered rival submissions and have pondered over evidences, both oral and documentary, available on the record of the trial court. 15. From the prosecution evidences what has been established, without any ambiguity, is that ( P.W.1) to( P.W.3) were robbed off, of their cloth bindles and cash money on the date and time as alleged by the prosecution. Factum of happening of the incident has not been challenged by the appellants and therefore the core question, which remains to be adjudicated is, whether appellants were amongst the robbers or not, and whether fact witnesses had sufficient opportunity to identify them and whether there was sufficient source of light available during the incident or not?. 16. Appreciating prosecution evidences from above angle, it is revealed that according to ( P.W.1), incident night was a dark night and incident occurred in a lonely place, when all the three fact witnesses were returning to their houses after selling their clothes and shoes. Robbers had sprang up suddenly from road side ditch and had started assaulting informant ( P.W.1) and ( PW2). Robbers had sprang up suddenly from road side ditch and had started assaulting informant ( P.W.1) and ( PW2). It was the month of November and time was quarter to 7 P.M. and hence, from heuristic experience, it can be noted that, at the time of the incident, there must have been darkness. Informant ( P.W. 1) has also accepted this fact in paragraph 3 of his deposition where he has categorically stated that the incident night was a dark night.( PW2) had also stated in para 8 of his testimony that because of darkness he could not spot the clothes and later on in para 11 also he had deposed that due to darkness he could not spot another spear. Thus it is established that at the time of the loot there was no source of natural light. 17. Another fact which stands proved is that place of the incident is lonely place with agricultural fields on both the sides. Both ( PW1) & ( PW2) have corroborated each other on this aspect vide para 5 and 8 of their depositions. In such a view, what is to be decided is as to whether there was sufficient source of light and witnesses had enough opportunity to identify the robbers or not? 18. Vetting prosecution evidences it is categorical prosecution version that the only source of light during incident was that of torch flashed by Tulsi Ram ( PW3) and but for it there was no other source. It is also evident that ( PW3) had accompanied, both ( PW1) and ( PW2) to the police station to register the FIR. However at that time neither torch of ( PW3) was seen nor it was seized. This was a serious lapse on the part of the Head constable who had registered the FIR. Further on flashing of it ( PW3) had contradicted other two previous witnesses as he had deposed that he tried to flash his torch, but it went off because of terror and he could not identify any of the robbers, albeit he had stated that four miscreants had looted ( PW1) and ( PW2). Further on flashing of it ( PW3) had contradicted other two previous witnesses as he had deposed that he tried to flash his torch, but it went off because of terror and he could not identify any of the robbers, albeit he had stated that four miscreants had looted ( PW1) and ( PW2). From joint reading of para 2,4&6 of his testimonies, it becomes evident that this witness had not seen any of the robbers, nor their weapons nor he could disclose direction in which they had escaped and, over and above, no torch was flashed by him during the incident. ( PW3) was declared hostile by the prosecutor, who had even cross examined him but he reaffirmed his stand, vide para 6, that he endeavoured to flash his torch , but it went off, because of terror. Thus claim of ( PW1) and ( PW2) that they had witnessed robbers in flashing of torch by ( PW3) lies in a realm of uncertainty. Deposition by ( P.W.3), to a courts query that the appellants were shown to him at the police station and, because of that he had identified them during identification proceeding, although he had not identified them during the incident, further diminishes veracity of prosecution allegations. Narration by ( PW3) seems to be actual happening because, both ( PW1) and ( PW2) had also stated that after flashing of torch for two minutes or so, ( PW3) had escaped from the spot leaving behind his cycle and shoes. These statements shows the urgency and alacrity with which ( PW3) had acted in leaving incident scene and hence, what seems to be natural happening, is that when robbers surrounded both, ( PW1) and ( PW2) and started belabouring them, then ( PW3) endeavoured to put on his torch but he failed because he ran away from the spot leaving behind his cycle and shoes. 19. Depositions by ( PW1) &( PW2) that torch was flashed for sufficient time, which facilitated robbers identification, appears to be a fib, also because of the reason that had it been so, miscreants would have definitely assaulted ( PW3) with fire arm or blunt objects, which they were wielding, during the incident. 19. Depositions by ( PW1) &( PW2) that torch was flashed for sufficient time, which facilitated robbers identification, appears to be a fib, also because of the reason that had it been so, miscreants would have definitely assaulted ( PW3) with fire arm or blunt objects, which they were wielding, during the incident. The very fact that no attempt was made on ( PW3) nor he was robbed of his articles, indicate that he did not remain at the incident place at all and no sooner robbery started, throwing his cycle and shoes at the spot, he escaped to save his life. In this sequence of events it is very difficult to perceive that both( PW1) and( PW2) had any source of light available to them to identify the culprits and also they had sufficient opportunity for it. Moreover it was because of this reason that the trial Judge also disbelieved prosecution version in respect of another accused Asha Ram, who was acquitted by him. In such a view, once the witness carrying the torch was unable to identify the dacoits, it could not be presumed, with any amount of certainty, that the other two people, who were not having any source of light with them, will be able to identify the robbers. This view is strengthened also because of the statement by ( PW1) that he has not been able to notice any special features of ( A1). Such evidences compels me to lean in favour of defence argument that the incident happened in darkness without any source of light. 20. Turning towards identification of the appellants, it seems that because the appellants were shown to the witnesses at the police station, that their identification was facilitated which is hundred percent, which is too good to be believed. Without any hesitation ( PW3) had replied to the court, on it's query, that accused were shown to him at the police station and, that is why, he had identified them during identification proceedings. ( A1) had also informed the Magistrate ( PW5),prior to identification proceedings, that he was shown to the witnesses. Since witness could not identify the accused from their faces , that is why they had not mentioned their features during the investigation and during identification proceedings. ( A1) had also informed the Magistrate ( PW5),prior to identification proceedings, that he was shown to the witnesses. Since witness could not identify the accused from their faces , that is why they had not mentioned their features during the investigation and during identification proceedings. Thus, on all over all consideration of entire facts and circumstances of the case, it seems quite possible that appellants were shown to the witnesses while they were detained in police lock up and that is how they had identified them in TI parades and hence no credence can be attached to appellants identification proceedings. 21. Another damaging feature of prosecution story is that neither ( A1) nor ( A2) were charged u/s 411 Cr.P.C., which means that no looted article was recovered from them. This is an important circumstance negating their participation in the crime and, therefore, prosecution story in their respect is incredible, as besides bald ipse dixit, of ( PW1) & ( PW2), there is no other convincing surrounding circumstances, which may lead to indicate that the appellants were involved in the incident. 22. Another unsatisfactory feature of the incident is that albeit, both the victims stated that they were beaten by blunt objects but there is no medical examination report existing on record to support their such a claim. GD entry also does not authenticate such a story and hence there is deficit of confidence inspiring evidences on that score and therefore, I am of the view that it will be very hazardous to rely on the testimonies of ( P.W.1) and ( P.W.2). 23. Turning towards identification of the articles, the same is also shrouded in mystery. Without describing their identification marks during investigation, their identification is of no value as the looted articles were available in the market easily and were common apparels. 24. Another disquieting feature of the trial is the questioning of accused u/s 313 Cr.P.C., wherein no specific question was put to them regarding incriminating circumstance stated by each and every fact witness. In question no. 6, testimony of all the prosecution witnesses was put cumulatively. This certainly had caused prejudice to the case of the accused, as they were unable to dislodge the prosecution version through their statements. Question no. 6 is utterly confusing and does not mention any incriminating circumstance appearing in evidences against the accused persons. In question no. 6, testimony of all the prosecution witnesses was put cumulatively. This certainly had caused prejudice to the case of the accused, as they were unable to dislodge the prosecution version through their statements. Question no. 6 is utterly confusing and does not mention any incriminating circumstance appearing in evidences against the accused persons. The manner in which accused persons had been questioned by the Court is no examination of accused at all. Legislature has desired that each and every incriminating circumstance must be put to the accused separately and clearly, so as to facilitate him to give an answer to it. That having not been done, I am not satisfied that requirements of section 313 Cr.P.C. had been complied with, in letter and spirit, in accordance with law and legislative intent. 25. Without going into further details, I am of the view that the prosecution has not been able to substantiate it's charges against the appellants, who all deserve an acquittal. 26. This appeal is allowed. Conviction of all the appellants through the impugned judgment and order is hereby set aside. Appellants are acquitted of all the charges framed against them and they are set at liberty. They are on bail, they need not surrender, their bail bonds and surety bonds are hereby discharged. 27. Let a copy of this judgement be certified to the trial court for it's intimation.