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2013 DIGILAW 370 (UTT)

RAM KUMAR @ BOBY v. STATE OF UTTARAKHAND

2013-06-24

Alok Singh

body2013
JUDGMENT Hon’ble Alok Singh, J. (Oral) Present appeal is directed against the judgment and order dated 31.07.2010, passed by Additional Sessions Judge/Ist FTC, Haridwar, whereby appellants were held guilty for the offence punishable under Section 395 and 412 IPC and were sentenced to undergo rigorous imprisonment for a period of 05 years and to pay fine of Rs. 10,000/- each and in default, in making payment of fine, to undergo additional imprisonment of 06 months, for the offence punishable under Section 395 IPC; sentenced to undergo rigorous imprisonment for a period of 05 years and to pay fine of Rs.10,000/- each and in default, in making payment of fine, to undergo additional imprisonment of 06 months, for the offence punishable under Section 412 IPC; with the stipulation that both the sentences shall run concurrently. 2. Brief facts of the present case, inter alia, are that PW2 lodged an FIR with Police Station Bahadarabad on 30.09.2008 stating therein that in the intervening night of 29th/30th September, 2008, 8-9 criminals came at his petrol pump at about 03:00 a.m. and after bolting chawkidar Latif S/o Ibrahim (PW3), salesman Satendra Kumar (PW1), salesman Deepak Kumar (PW4) in the toilet of petrol pump, they committed loot of Rs.12,000/-, mobile oil costing about Rs. 3,000/- and copper coil of generator; having received the information, PW2 came to lodge the FIR. Investigation was handed over to Ganesh Prashad Bauthiyal (PW9). On 24.10.2008 S.O. Bahadarabad, Surya Bhushan Negi (PW7), S.I. Ajay Kumar (PW6), S.I. Raj Kumar, Constable Ashwani Yadav, Constable Kapil Yadav in a jeep being driven by Constable/Driver Vinod Kumar, left the thana vide report no. Investigation was handed over to Ganesh Prashad Bauthiyal (PW9). On 24.10.2008 S.O. Bahadarabad, Surya Bhushan Negi (PW7), S.I. Ajay Kumar (PW6), S.I. Raj Kumar, Constable Ashwani Yadav, Constable Kapil Yadav in a jeep being driven by Constable/Driver Vinod Kumar, left the thana vide report no. 37 at about 09:15 p.m. for patroling and maintaining law and order duty; when police party reached village Sohalpur, police informer passed on secret information that gang of Ram Kumar @ Boby, who was involved in loots at petrol pump of Bhagwanpur and Bahadarabad, was present in the Grove Garden of Naresh and members of the gang were planning to commit dacoity at petrol pump of Imlikhera road; having believed the informer, S.O. Bahadarabad was requested on phone to reach at Gatepur Tiraha; S.O. Bahadarabad reached at Gatepur Tiraha; thereafter all of them proceeded towards the Grove Garden of Naresh; police personnel could hear that members of the gang were discussing that they could not commit dacoity since long, therefore, they would commit dacoity at petrol pump, Imlikhera road; police party gave lalkara; three criminals succeeded in running from the spot while two miscreants were apprehended by the police party; on being asked one of them disclosed his identity as appellant no.1 while another disclosed his identity as Sahzad, who was acquitted by the learned trial court. From the possession of the appellant no.1, one country made pistol of 315 bore along with two live cartridges and Rs. 20,500/- were recovered while from the possession of the another accused Sahzad, one country made pistol of 12 bore and two live cartridges of 12 bore and Rs. 18,000/- were recovered; appellant no.1 confessed before the police party that Rs. 18,000/- were looted from Bhagwanpur petrol pump while Rs. 2,500/- were received by him as his share from the looted amount of Bahadarabad petrol pump; in the same way, another accused Sahzad confessed that Rs.16,500/- were looted from the Bhagwanpur petrol pump and Rs.1,500/- were received by him as his share from the looted money of Bahadarabad petrol pump. Boththe miscreants i.e. appellant no.1 and co-accused Sahzad also told the police party that other miscreants, were Afzal and two friends of Afzal; thereafter Afzal was also arrested on 31.03.2009; from his possession, ‘150/- and one sealed cane of HP Cruise Motor Oil, two cane of HP Milcy 40 and copper coil were recovered. Boththe miscreants i.e. appellant no.1 and co-accused Sahzad also told the police party that other miscreants, were Afzal and two friends of Afzal; thereafter Afzal was also arrested on 31.03.2009; from his possession, ‘150/- and one sealed cane of HP Cruise Motor Oil, two cane of HP Milcy 40 and copper coil were recovered. Afzal (appellant no.2) confessed before the police that he committed loot/dacoity at Bahadarabad petrol pump along with Ram Kumar @ Body, Sahzad R/o Baredi Rajputan, Chaman @ Faiyaz R/o Bhauri Daira and Safakat R/o Mustafabad and two persons brought by Chaman and Safakat. 3. Having investigated the matter, police filed the charge-sheet against the appellants as well as against co-accused Sahzad. Charges were framed for the offence punishable under Sections 395, 412 IPC. Accused denied the charges and claimed trial. 4. To prove the prosecution story, salesman Satendra Kumar (PW1), informer Hari Om (PW2), Chawkidar of petrol pump Latif (PW3) another salesman of the petrol pump Deepak Kumar (PW4), Sahbuddin (PW5), SI Ajay Kumar (PW6), S.I. Surya Bhushan Negi (PW7), Vinod Singh Gosain (PW8), S.O. Bahadarabad Ganesh Prasad Bothiyal (PW9), Mahendra Singh (PW10), Harish Chand Kandpal (PW11), Ashish Joshi (PW12) were examined. Thereafter statements of the accused were also recorded under Section 313 of the Code of Criminal Procedure. 5. Learned trial court, having perused entire material made available on record, was pleased to convict and sentence the appellants and was further pleased to acquit the co-accused Sahzad. Feeling aggrieved, appellants have preferred present appeal. 6. I have heard Mr. Vivek Shukla, learned counsel for the appellants and Mr. Prabhakar Joshi, learned Brief Holder for the State and have carefully perused the record. 7. Undisputedly, accused Sahzad could not be identified either by PW1, PW3 or PW4 i.e. Chawkidar and salesmen, during the test identification parade. Learned trial court was pleased to acquit Sahzad. 8. Test Identification Parade was held for appellant no.1 appellant no.1 could be identified by PW3 Latif only. PW1 Satendra and PW4 Deepak could not identify him. 9. Identification parade of Afzal was also held on 23.04.2009 in District Jail, Haridwar wherein appellant no.2 Afzal could be identified by PW3 Latif only, however, could not be identified by both the salesmen i.e. Satendra (PW1) and Deepak (PW4). 10. PW3, during his examination-in-chief, stated that he had identified both the appellants during the test identification parade. 9. Identification parade of Afzal was also held on 23.04.2009 in District Jail, Haridwar wherein appellant no.2 Afzal could be identified by PW3 Latif only, however, could not be identified by both the salesmen i.e. Satendra (PW1) and Deepak (PW4). 10. PW3, during his examination-in-chief, stated that he had identified both the appellants during the test identification parade. However, during the cross-examination, he stated that, that was the dark night, faces of the accused were covered with the clothes; he was bolted inside the toilet, therefore, nothing was looted before him. Thereafter, he was declared hostile. 11. PW1 salesman Satendra and PW4 salesman Deepak also stated that they could not see faces of the dacoits and they were bolted along with PW3 in the toilet. PW1 and PW4 also failed to identify both the appellants during the Test Identification Parade. 12. Learned trial court, observed that since, PW3 in his examination-in-chief stated that he was able to identify both the appellants during the identification parade, therefore, that part of his statement could be relied upon despite the fact that later on he was declared hostile. 13. This is settled principle of law that such part of the statement of the witness, who has been declared hostile, could be relied upon by the court, which is found to be trustworthy. 14. Let me now examined can any part of the statement of PW3 be relied upon. PW3 Latif stated that criminals came at the petrol pump at about 03:00 a.m. and soon thereafter over powered him and bolted him into the toilet and thereafter went in the room wherein two other salesmen were sleeping. During the cross-examination, PW3 stated that he could not see faces of the dacoits since their faces were covered with the clothes and night was dark. PW1 and PW4 also stated in the same line that they could not see their faces, therefore, statement of PW3 that he could not see the faces of the dacoits stood corroborated with the statements of PW1 and PW4. So far as the statement of PW3 about identification of both the appellants, during the test identification parade is concerned, in the later part of cross-examination, he stated that S.O. has shown the photographs of the appellants, therefore, he could identify both the appellants during the identification parade cannot be brush aside. So far as the statement of PW3 about identification of both the appellants, during the test identification parade is concerned, in the later part of cross-examination, he stated that S.O. has shown the photographs of the appellants, therefore, he could identify both the appellants during the identification parade cannot be brush aside. In my considered opinion, identification of the appellants by PW3 is highly doubtful. As such it would not be safe to place reliance on the statement of PW3 to hold that both the appellants were identified by PW3 during the test identification parade. 15. Prosecution story that appellants have confessed their guilt before the police is of no help to the prosecution. Prosecution could not prove that mobile oil and copper wire allegedly recovered from appellant no.2 were in fact looted items from the petrol pump. 16. Prosecution has failed to explain who were the other members of the gang/associates of the appellants who were involved in the incident. Therefore, filing of charge-sheet and framing of charge under Section 395 IPC against three accused cannot be held to be legal. 17. In my considered opinion, prosecution is not able to prove prosecution story beyond reasonable doubt. Consequently, appeal succeeds and is allowed. Impugned judgment and order is hereby set aside. Both the appellants are hereby acquitted against the charges levelled against them. Appellants are in jail, they shall be released forthwith, if not wanted in any other case. 18. Let copy of this judgment be forwarded to the lower court along with lower court record for information and compliance.