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2014 DIGILAW 1125 (ALL)

Virendra Singh v. State of U. P.

2014-04-07

VINOD PRASAD

body2014
JUDGMENT Vinod Prasad J.: - Appellant's herein, namely, Virendra Singh, Vedram and Rameshwar were tried by IVth Additional Sessions Judge, Mainpuri in S.T. No.352 of 1979 for offence under sections 395 and 412 IPC, P.S. Kuraoli, District Mainpuri and vide impugned judgment of conviction and order of sentence dated 7.4.82, they were convicted of the offence under Section 395 IPC and were sentenced to undergo four years R.I. Hence this appeal. 2. Perusal of the order sheet of the appeal indicates that accused were served with notices and in pursuance of the order dated 25.4.2007, they had engaged Mahendra Nath Pandey, as their counsel in this appeal. Sri Pandey, learned counsel is not present even in the revised call to argue the appeal. Order sheet further indicates that one or other appellant kept on absconding and NBW against them has been issued and subsequently recalled. Appellant no.2 meanwhile had engaged another counsel Sri Rajesh Kumar Yadav and, therefore, appellant nos.1 and 3 are represented by Sri M.N. Pandey and appellant no.2 is represented by Sri Rajesh Kumar Yadav advocate. On 12.9.2012, when the appeal was called out for final hearing, none of the aforesaid two counsel appeared to argue the appeal and, therefore, the Court was constrained to issue NBW against the appellants through C.J.M., Mainpuri. Subsequently, it seems that the appellants appeared before this Court, as their thumb impressions etc. is on the order sheet dated 13.10.2012 and 15.10.2012. On 3.1.2013, hearing of the appeal was got deferred at the request of counsel for the appellants. On 31.3.2014 again Sri M.N. Pandey, learned counsel did not appear to argue the appeal. 3. In the above background as stated above, because of the non cooperative attitude of the counsel for the appellants, hearing of the appeal cannot be deferred. Appeal, therefore is taken up in the revised list for final hearing and Miss Ibha Sinha, learned counsel was appointed as amicus curiae to argue the appeal. With her and the help of Sri Sangam Lal Kesherwani, learned AGA, I have gone through the records and finally heard the appeal. After so much order as above was dictated in open court that Sri Mahndra Nath Pandey, learned counsel representing the accused appeared. He therefore has also been heard in support of the appeal. 4. With her and the help of Sri Sangam Lal Kesherwani, learned AGA, I have gone through the records and finally heard the appeal. After so much order as above was dictated in open court that Sri Mahndra Nath Pandey, learned counsel representing the accused appeared. He therefore has also been heard in support of the appeal. 4. In nutshell, prosecution case as has been disclosed in the written F.I.R. Exhibit Ka-1 and divulged during the trial by the informant Arjun Singh/P.W.1 is that when informant was going along with his wife Smt. Neksi on a bicycle on 21.4.1979 at 4p.m.and arrived at the bank of a river in village Bhagwantpur under police station Sakit, District Etah then the appellants along with other three associates Rajjan, Dalvir and Shyam Lal surrounded the couple and looted the wife of her silver ornaments. Informant raised alarm which attracted Jawahar Singh, Sunhari Lal, Abhilakh Singh and many others, who were present in the vicinity doing farming or threshing the floors. The dacoits thereafter decamped with the looted bounty and sprinted towards the village. They were chased towards village Baxipur through village Pipal Kheria, which had a police outpost. Three police constables constable no.315 Ramji Lal, constable no.419 Chhetrapal Singh and constable no.271 Sri Shiv of the said police outpost also joined the chase and the dacoits ultimately were apprehended, who later on disclosed their names as Virendra Singh, Rameshwar, Dalvir, Rajjan, Vedram and Shyam Lal. Looted silver ornaments of Smt. Neksi were recovered from the possession of accused Rajjan, Shyam Lal and Vedram and recovery memo thereto was prepared, which is Exhibits Ka-3 and Ka-4 respectively. Apprehended accused along with recovery memos were brought to the police station Sakit, where written F.I.R. was lodged the same day at 9.15 p.m. Chik F.I.R.Exhibit Ka-5 and G.D. Entry Exhibit Ka-6 were prepared. Since the dacoity incident had occurred within the jurisdiction of police station Jasrana, District Mainpuri, therefore in due course investigation of the crime was transferred to Jasrana police station. 5. S.I. Ram Charan Singh of P.S. Jasrana investigated the crime, recorded the statements of the witnesses, prepared site plan Exhibit Ka-7 of the place of the incident and Exhibit Ka-8 of the place of the arrest of the accused persons and ultimately, concluded the investigation and charge sheeted all the six accused vide Exhibit Ka-9. 6. 5. S.I. Ram Charan Singh of P.S. Jasrana investigated the crime, recorded the statements of the witnesses, prepared site plan Exhibit Ka-7 of the place of the incident and Exhibit Ka-8 of the place of the arrest of the accused persons and ultimately, concluded the investigation and charge sheeted all the six accused vide Exhibit Ka-9. 6. It is pointed out at this stage that although all the six accused were charge sheeted but, pendente lite their trials, three of the apprehended accused Rajjan, Dalvir and Shyam Lal expired and, therefore, their trials abated and it proceeded only against the surviving three accused appellants Virendra Singh,Vedram and Rameshwar. 7. To establish the charge of dacoity and loot prosecution in the respective Sessions Trial No.352 of 1971, State Vs. Virendra Singh and others, examined in all five witnesses out of whom Arjun Singh informant/PW1, Abhilakh Singh/P.W.2, Jagvir/P.W.3 were fact witnesses. Constables 315 Ramji Lal/PW4 and Investigating Officer S.I. Ram Charan Singh/P.W.5 were the formal witnesses. 8. Learned trial Judge after vetting through the oral and documentary evidences opined vide impugned judgment and order dated 7th April, 1982 that the prosecution has successfully established the charge against the accused persons for offence under Section 395 IPC and therefore convicted the accused of that crime and sentenced them to four years R.I., which judgment of conviction and sentence is now under challenge in the instant appeal by the convicted accused. 9. As has already been recorded herein above, Miss Ibha Sinha was appointed as amicus curiae and she was heard along with Sri Mahendra Nath Pandey, learned counsel for the appellants as well as Sri Sangam Lal Kesharwani, learned AGA for the respondent State. 10. Appellants counsel incisively urged that the fact witnesses are not reliable. There are inconsistencies, exaggerations and embellishments in their testimonies which creates doubt in the authenticity of the prosecution case and, therefore, the impugned judgment of conviction and sentence cannot be sustained. It is further submitted that some of the allegations leveled in the FIR regarding search of the police constables and police personnel inter se before taking search of the accused person has been denied by the informant while he was in the witness box during Sessions trial. It is further submitted that some of the allegations leveled in the FIR regarding search of the police constables and police personnel inter se before taking search of the accused person has been denied by the informant while he was in the witness box during Sessions trial. It was next urged that conduct of the accused to run for six kilometers carrying bounty in their hands as well as the clubs with which they are alleged to have been armed with during the course of the incident is an unnatural and weird conduct and on such a story no reliance can be placed. It was further submitted that P.W. 2 had made certain statements denting the prosecution case, therefore, in any view of the matter, conviction of the appellants are unsustainable and they deserves to be acquitted as prosecution has failed to establish the charge beyond all reasonable doubt. Another limb of argument raised by Sri Pandey, learned counsel and learned amicus curiae is that the incident occurred in 1979 and at that time, appellants were in their youth. They had no criminal proclivity or criminal history at their credit. This was their first crime and thirty two years have gone by and now the appellants are in their fifties and sixties and, therefore, in the event they are not found to be entitled to acquittal of the charge, their sentences be mollified to a reasonable limit as even after their conviction, appellants have not joined themselves with any criminality activity. 11. Learned AGA arguing to the contrary submitted that in a day light incident, appellants had committed dacoity and had looted the silver ornaments of the informant's wife and were apprehended at the spot. No reason for their false implication exist on the record nor the informant had any reason to nail them in an incident in which his wife was looted and to fabricate a feigned story against them. Informant had no grudge or score to spell out false evidence. It was, therefore, urged with vehemence that there is no reason to disbelieve the testimonies of the informant and his solitary evidence is sufficient to uphold the conviction and sentence the appellants. Coming to the sentence part, learned AGA contended that sentence is not incommensurate with the guilt of the accused nor is too excessive and, therefore, there is no justification to mollify it any further. 12. Coming to the sentence part, learned AGA contended that sentence is not incommensurate with the guilt of the accused nor is too excessive and, therefore, there is no justification to mollify it any further. 12. Pondering over rival contentions and critically vetting through oral and documentary evidences existing on record makes it evident that the incident occurred in day light in which all the six dacoits armed with blunt objects(clubs) looted the informant and his wife Neksi of her silver ornaments on 21.4.79 at 4 p.m. and while committing dacoity they were chased by the persons present in the vicinity and in the continuity of the incident appellants were apprehend. Description of the incident and oral evidences respecting the incident are neither shaky nor seems to be feigned and it inspires confidence. Incident such as the present is not unnatural. All the fact witnesses were tested searchingly over the manner of the incident but the defence has failed to dislodge their testimonies. Evidence of P.W. 1 reveals that the defence could not even suggest him that he was a liar or an untruthful and uncredited witness. No suggestion has been given to the informant suggesting him that he has falsely implicated the appellants, so much so that even the depositions of the informant regarding loot, chase and apprehension has not been specifically challenged in the cross examination by the defence. The defence plea by one of the appellants Virendra Singh that he was arrested from the house of his relatives is not born out from the record as that plea totally remains in the realm of total uncertainty. No relatives of the said appellant ventured to enter into the witness box and foster and support appellants such a claim. A single line suggestion or defence plea without any attending circumstance and mere ipse dixit of one line do not dent the otherwise credible evidences of the prosecution witnesses. Informant had no reason to falsely implicate the appellants in a case of dacoity and spot arrest. His testimony is reliable and confidence inspiring and, therefore, there does not seems any reason to throw overboard his testimony. He, therefore, is taken to be a truthful witness and his narration about the incident to be genuine and confidence inspiring. Other fact witnesses have supported the informant in all material aspects of the matter without creating any dent in the prosecution story. He, therefore, is taken to be a truthful witness and his narration about the incident to be genuine and confidence inspiring. Other fact witnesses have supported the informant in all material aspects of the matter without creating any dent in the prosecution story. It is further discernible from the evidences that the appellants were arrested at the spot and they have failed to extricate themselves out of this difficult situation and offer any explanation regarding their presence at the incident spot. They are not the residents of the vicinity and have miserably failed to cull out any case regarding their presence at the spot, which was the bank of the river. Prosecution case is very clear that when the dacoits were chased they decamped with bounty on the other side of the river but they were chased and apprehended. 13. On an over all analysis there does not seems to be any illegality or irregularity in the impugned judgment and lower court/ trial court has not committed any error in convicting the appellants for the charge under section 395 I.P.C. and the impugned judgment is quite reasonable and, consequently is approved and is hereby upheld. 14. Turning to the sentence, there seems to be some force in the submissions of learned counsel for the appellants regarding mollifying the sentence. Appellants were in their prime youth at that time when they had committed dacoity. They have not indulged in any criminal activity thereafter. Prosecution has not been able to fathom out any criminal background of the appellants prior to the present crime, which seems to be their maiden offence. Thirty two years have gone by. Appellants cannot not be held responsible for the delay in disposal of their appeals as this Court was not in a position to hear their appeals at any earlier stage. The appellants now are in their fifties and sixties. To send them behind the bars in penitentiary for a period of four years after such an enormous passage of decades will not be in the interest of justice and, therefore, taking a lenient view, their sentences requires mollification. Appellants must have settled down in their lives and they must be having a family. To send them behind the bars in penitentiary for a period of four years after such an enormous passage of decades will not be in the interest of justice and, therefore, taking a lenient view, their sentences requires mollification. Appellants must have settled down in their lives and they must be having a family. No doubt they had committed offence but that should not be the ground to send them behind the bars for the total period of imprisonment of sentence imposed by the learned trial Judge and, therefore, I am of the opinion that the sentence of the appellants requires some sympathetic considerations. 15. From the record, it seems that the appellants have undergone near about seven months of imprisonment and, therefore, two years further imprisonment with fine of Rs. 20,000/- to each of the appellants with Rs. 30,000/- as compensation to the informant, in my humble opinion, shall meet the ends of justice. 16. In the net result, the appeal is allowed in part. While impugned judgment of conviction of the appellants u/s 395 I.P.C. are hereby maintained, but their sentence is mollified to two (2) years RI with fine of Rs. 20,000/- to each one of the appellants. In default of payment of fine each one of the appellant shall serve additional six months RI. Out of the fine imposed herein above, Rs. 30,000/- is awarded as compensation to the victim or their heirs. Appellants are allowed one month time to deposit fine as awarded herein above. 17. Appellants are on bail, their personal and surety bonds are discharged and they are directed to be taken into custody forthwith to serve out their remaining part of sentence. 18. With the aforesaid modification in sentence, the appeal is allowed in part as above. 19. Let a copy of this judgment be certified to the trial court for it's intimation and necessary action at it's end.