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2016 DIGILAW 4091 (ALL)

MEWA LAL v. STATE OF U. P.

2016-12-19

MAHENDRA DAYAL, PRASHANT KUMAR

body2016
JUDGMENT Hon’ble Prashant Kumar, J.—Initially, this appeal filed by the four appellants namely Mewalal, Zamidar, Khushhal and Asha Ram against the judgment of conviction and order of sentence dated 30.11.1981 passed by learned II Additional Sessions Judge, Bahraich, in Sessions Trial No. 259 of 1979, arising out of Case Crime No. 321 of 1978, Police Station Motipur, District Bahraich under Sections 396/412 of the Indian Penal Code, whereby all the appellants were convicted for the offence under Section 396 IPC and sentenced to undergo imprisonment for life. 2. It appears from the record that during the pendency of present appeal, appellant Nos. 1 and 2 Mewalal and Zamidar respectively died. Thus the appeal filed by the aforesaid two appellants have been ordered to be abated vide orders dated 6.11.2015 and 29.2.2016 respectively. Thus, now we are concerned with the appeals filed by appellant Nos. 3 and 4 namely Khushhal and Asha Ram respectively. 3. The prosecution case in brief is that in the night of 28.12.1978 at about 9.00 p.m. while the informant (PW-1), his father and uncle after taking their meals were sitting around the bonfire, they heard Hulla (noise) coming from the side of Lalla’s house. It is stated that after hearing the Hulla, informant, his father and uncle went inside the Aangan (Courtyard). At that time itself 13 to 14 dacoits entered in the Aangan and started beating informant’s father Ram Lal and uncle Duji. During that period itself, the informant ran away from there and came outside the house. It is stated that the informant set fire on the hip of ‘paira’ (straw), kept towards the north of his house. It is stated that due to the burning of ‘paira’ there was sufficient light. It is also stated that PW-1 (Kalloo) was flashing a torch at the time of occurrence. It is then stated that PW-1 also raised Hulla, whereupon witnesses namely Ram Asrey, Lalla, Nathai, Swami Dayal, Maiku Lal, Ratan, Siaram, Shankar, Bechan and others reached in front of the house of informant. The informant had claimed that he identified the dacoits in the light of torch and burning of ‘paira’. It is stated that after committing dacoity in the house of informant, dacoits looted property of the house of Nathai, Shatruhan, Shankar, Maiku Lal, Swami Dayal, Bhagauti, Bharosey, Brij Lal and at the Resham Kendra and then they fled away. The informant had claimed that he identified the dacoits in the light of torch and burning of ‘paira’. It is stated that after committing dacoity in the house of informant, dacoits looted property of the house of Nathai, Shatruhan, Shankar, Maiku Lal, Swami Dayal, Bhagauti, Bharosey, Brij Lal and at the Resham Kendra and then they fled away. It is stated that when all dacoits fled away, the informant went inside the house and found that his father was lying dead whereas his uncle received grievous injuries. He further came to know that the dacoits took away ornaments of his mother and sister. 4. On the basis of the aforesaid information police instituted a case vide Case Crime No. 321 of 1978, under Sections 396, 412 of the Indian Penal Code, Police Station Motipur, District Bahraich and took up investigation. 5. It appears that during the investigation the appellants were arrested and it is alleged that from their possession some stolen articles recovered. It then appears that test identification parade held in the premises of District Jail, Bahraich, where appellants were identified by the witnesses including PW-1, 2, 3 and 4. It further appears that stolen articles, recovered from the possession of appellants, were also put on test identification parade and the same were identified by the witnesses. The police, after completing the investigation, submitted charge-sheet against all the appellants under Sections 396 and 412 of the Indian Penal Code. 6. On the basis of aforesaid charge-sheet learned Magistrate took cognizance of the offence and later on committed the case to the Court of sessions as the offence under Section 396 and 412 of the IPC are exclusively triable by the Court of Sessions. Thereafter, the charges framed against the appellants under Sections 396 and 412 of the IPC and the same were explained to them to which they pleaded not guilty and claimed to be tried. Thereafter, the prosecution examined altogether seven witnesses, out of whom PW-1 Kalloo (informant), PW-2 Ram Asrey, PW-3 Nathai and PW-4 Maiku Lal are witnesses of fact and they claimed that they identified the appellants during the test identification parade held in jail premises as they were the persons concerned who committed dacoity. PW-5 is the Executive Magistrate in whose supervision test identification parade held in the District jail, Bahraich. PW-5 is the Executive Magistrate in whose supervision test identification parade held in the District jail, Bahraich. PW-6 is the Investigating Officer, whereas PW-7 is the police constable who took the appellants to the Bahraich jail after their remand. The prosecution also brought on the record various documentary evidence. 7. It appears that after considering the arguments and evidences on the record the learned Court concluded that the appellants had committed dacoity in the house of informant and other villagers in which one person has died, therefore, appellants committed the offence under Section 396 of the IPC, thus convicted the appellants for the said offence. However, since the appellants have been convicted under Section 396 of the IPC, therefore, learned Court below not convicted them under Section 412 of the IPC. The learned trial Court sentenced all the appellants to undergo imprisonment for life. Against the aforesaid judgment of conviction and order of sentence, present appeal filed. 8. While assailing the impugned judgment learned counsels appearing for the appellants had submitted that admittedly the appellants were arrested on 4.1.1979 and they have been put on test identification parade on 20.3.1979 i.e. after more than two and half months. The prosecution had not given any explanation regarding the said delay. Thus the delay in holding the test identification parade cast a serious doubt on the claim of the witnesses that after lapse of so many days they were remembering the facial expression of the appellants. 9. It is submitted that from perusal of evidence of PW-1 to PW-4, it appears that at the time of occurrence they were standing outside the house of PW-1, whereas the occurrence took place inside the house. Under the said circumstances, there is no occasion for the witnesses to identify the appellants. It is further submitted that one of the witness namely PW-3 categorically stated that due to the night all the dacoits were looking alike. Under the said circumstance, it is very difficult for the witnesses to identify the appellants after the lapse of about two and half months. It is submitted that one of the witness namely PW-4 had stated that all the witnesses identified the dacoits while they were coming out from the house of Kalloo (PW-1) and fleeing away from there. Under the said circumstance, it is very difficult for the witnesses to identify the appellants after the lapse of about two and half months. It is submitted that one of the witness namely PW-4 had stated that all the witnesses identified the dacoits while they were coming out from the house of Kalloo (PW-1) and fleeing away from there. Accordingly, it is submitted that the witnesses have not much time to recognize the dacoits, who were 13 to 14 in numbers. It is further submitted that from perusal of the test identification chart, it appears that on the face of all the participants of test identification parade paper pieces pasted with a view to cover the moles and other marks found on the face of appellants. It is submitted that in such condition the identification of real culprits is not possible. Accordingly, it is submitted that on the basis of the result of test identification parade conviction of the appellants not warranted. 10. It is further submitted that the learned trial Court while convicting the appellants had relied upon the alleged recovery of stolen articles from the possession of the appellants. PW-1 to PW-4 had nowhere stated in their deposition that any stolen articles recovered from the possession of these appellants nor the person who identified those articles have been examined by the prosecution. It is further submitted that even the Officer who conducted test identification parade of stolen articles, had not been examined. Thus, the finding of the learned trial Court regarding the recovery of stolen articles from the possession of the appellants is without any evidence. 11. In view of the aforesaid submissions, learned counsels appearing for the appellants has submitted that the impugned judgment and order of sentence cannot be sustained. 12. On the other hand, Ms. Nand Prabha Shukla, learned Additional Government Advocate appearing for the State submitted that in the instant case the appellants were identified by four witnesses, therefore, they have been rightly convicted by the learned trial Court. It is submitted that though the appellants were arrested on 4.1.1979, but some culprits arrested on 14.2.1979, thus, there was no delay in holding Test Identification Parade. Moreover, the said delay had been explained. Therefore, the delay in holding the test identification parade of the appellants is not fatal for the case of the prosecution. It is submitted that though the appellants were arrested on 4.1.1979, but some culprits arrested on 14.2.1979, thus, there was no delay in holding Test Identification Parade. Moreover, the said delay had been explained. Therefore, the delay in holding the test identification parade of the appellants is not fatal for the case of the prosecution. It is further submitted that there is sufficient light at the time of occurrence, therefore, the identification by the witnesses cannot be disbelieved. Accordingly, it is submitted that the impugned judgment of conviction and order of sentence passed by the learned Court below require no interference in this appeal. 13. Having heard the submissions, we have gone through the record of the case. In the instant case the factum of dacoity has not been denied. However, the appellants stated that they have not committed the present crime rather they have been falsely implicated in this case at the instance of police. Thus, the only question arose for determination in this case is, whether the appellants have any hand in the commission of present crime? 14. In the instant case, the prosecution had tried to prove the charges framed against the appellants on the basis of evidence of PW-1 to PW-4. Prosecution also relied upon the statement of PW-6 that from the possession of the appellants some stolen articles recovered. 15. We have considered the prosecution evidence and find that the prosecution tried to prove the recovery of stolen articles only on the basis of deposition of PW-6, the Investigating Officer. This witness stated that three dacoits namely Mewa Lal, Zamidar and Khushhal arrested simultaneously from one place and from the possession of Mewa Lal one cotton bed sheet recovered, whereas from the possession of Zamidar an aluminum container recovered, which contains half kilogram Deshi Ghee, and from the body of Khushhal one check kurti recovered. He further deposed that all these articles seized because they resembled with the stolen property. From perusal of the entire evidence of the prosecution, we find that none of the inmates of the family in whose house dacoity took place, had comeforward and stated that the above articles stolen from their house nor they identified those articles in Court. It further appears that the said articles were not produced in Court. From perusal of the entire evidence of the prosecution, we find that none of the inmates of the family in whose house dacoity took place, had comeforward and stated that the above articles stolen from their house nor they identified those articles in Court. It further appears that the said articles were not produced in Court. However, the learned trial Court had given a finding that the articles recovered from the possession of appellants were put on test identification parade and the witnesses identified the same as their stolen property. But surprisingly the test identification chart of stolen articles not proved by any witness, including the Officer who conducted the test identification parade. Under the said circumstance, the aforesaid finding of the learned trial Court is absolutely without any evidence. Thus, we find that the part of the judgment of the Court below is based on conjuncture and surmises. 16. Now coming to the identification of these appellants by PW-1 to PW-4, it is worth mentioning that all the witnesses claimed before PW-5 that they identified the dacoits, while they were committing dacoity. It is an admitted position that the dacoity was committed inside the house of PW-1 and other persons of the village. It is also admitted by PW-1 to PW-4 that at the time of dacoity they were standing outside the house of PW-1 and from there itself they identified the dacoits in the light of the torch and burning ‘paira’. From perusal of the site map prepared by the Investigating Officer, we find that there is a door in the northern side of the house of PW-1, which open in the Aangan. We further found that the north to the said door there was a Ghari (hut) and north to that place bundle of paira was kept. The witnesses stated that they were standing at about 4 to 6 meters away from the ‘paira’ in the eastern side. 17. Under the said circumstance, it is not possible for the witnesses to see the dacoits, while they were committing dacoity inside the Aangan. 18. One of the witness namely PW-3 had stated that due to night the face of all the dacoits looks alike. Whereas PW-4 has stated that all the witnesses had identified the dacoits while they were coming out of the Aangan of PW-1 and fleeing away. 18. One of the witness namely PW-3 had stated that due to night the face of all the dacoits looks alike. Whereas PW-4 has stated that all the witnesses had identified the dacoits while they were coming out of the Aangan of PW-1 and fleeing away. Thus as per the PW-4 there is very little time for them to see the dacoits who are 13 to 14 in numbers. It is an admitted position that the appellants were arrested on 4.1.1979 and the test identification parade held on 20.3.1979 i.e. after more than two and half months. Absolutely no explanation given by the prosecution for such delay. Hon’ble the Supreme Court in the case of Soni v. State of Uttar Pradesh, (1982) 3 SCC 368 (I), has held that if the test identification parade held after a lapse of 42 days from the date of arrest of the appellants, then the delay in holding the test identification parade throw a doubt on the genuineness thereof, apart from the fact that it is difficult that after a lapse of such a long time the witnesses were remembering the facial expression of the appellants. 19. In another case Hon’ble the Supreme Court in the case of State of Maharashtra v. Syed Umar Syed Abbas and others, (2016) (1) JIC (SC), has observed in paragraph No. 17 which reads as under : “It is very clear that in the present case the incident of firing occurred in the circumstances wherein much time was not available for the eye-witnesses to clearly see the accused. In such a situation, it was of much more importance that the Test Identification Parades were to be conducted without any delay. The first Test Identification Parade was held by PW21 after about 1½ months of the incident. The second Test Identification Parade was conducted by PW18 after more than a year of the incident. Even if it is taken into account that A12 was arrested after a year and within one month thereafter the test Identification Parade was conducted, still it is highly doubtful whether the eye-witnesses could have remembered the faces of the accused after such a long period. Even if it is taken into account that A12 was arrested after a year and within one month thereafter the test Identification Parade was conducted, still it is highly doubtful whether the eye-witnesses could have remembered the faces of the accused after such a long period. Though the incident took place in broad daylight, the time for which the eye-witnesses could see the accused was not sufficient for them to observe the distinguishing features of the accused, especially because there was a commotion created after the firing and everyone was running to shelter themselves from the firing.” 20. In the instant case, the witnesses admitted that at the time of dacoity, the dacoits were firing on regular interval with a view to scare the villager. The witnesses further state that they saw the dacoits while they were coming out of the house of PW-1 and fleeing away. Thus the witnesses had very little time to saw the dacoits. One of the witness namely PW-3 stated that due to night all the dacoits are looking alike. In such circumstances, the holding of Test Identification Parade after lapse of 76 days cast a serious doubt on the claim of the witnesses that they remember the faces of dacoits. 21. In the instant case, the manner, in which Test Identification Parade conducted, is also not inspiring confidence. PW-4 stated that during the Test Identification Parade the persons different physique were mixed up with the appellants. According to him, some are taller, some are small, some are fair and some are black. It is well-settled that while holding the Test Identification Parade, the Officer must take care to mix persons same physique. Thus we find that was not held as per the Test Identification Parade rules. From perusal of Test Identification Parade chart we find that ten under trial prisoners were mixed with the appellants for the purpose of identification. In the faces of all the mixed under trial prisoners as well as the appellants paper pieces pasted for covering the moles and other marks. In our view covering of faces of all the persons with paper pieces would make it difficult to identify the real culprit. In the faces of all the mixed under trial prisoners as well as the appellants paper pieces pasted for covering the moles and other marks. In our view covering of faces of all the persons with paper pieces would make it difficult to identify the real culprit. In similar circumstances, Hon’ble the Supreme Court disbelieved the result of such Test Identification Parade in the case of Chaman v. State of Uttar Pradesh, 1992 CRI LJ 524 and observed as under : “We are not satisfied with the manner in which the identification parade was conducted. We are of the view that paper make up on the faces of the participants, to such an extent, has rendered the identification parade wholly unreliable. It was more of a drama than an identification parade. In our opinion it would not be safe to convict the appellant on the basis of the identification evidence.” 22. In view of the aforesaid discrepancy in holding the Test Identification Parade, we find that on the basis of result of Test Identification Parade, the conviction of the appellants not warranted. 23. In view of the discussion made above, we find material irregularities and illegality in the impugned judgment dated 30.11.1981 passed by learned II Additional Sessions Judge, Bahraich, thus the same cannot be sustained. 24. Accordingly, this appeal succeeds and is hereby allowed. The impugned judgment of conviction and order of sentence set aside. The appellants acquitted from the charges framed against them. 25. From perusal of the record, it appears that the appellant No. 4 Asha Ram is in jail custody. Thus he is directed to be released forthwith, if not, wanted in any other case. It further appears that appellant No. 3 Khushhal is on bail. Thus he is discharged from the liability of bail bonds furnished by him. 26. Office is directed to communicate this order forthwith to the Court concerned and send back the lower Court record to ensure compliance.