Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 200 (ALL)

SURESH v. STATE OF U. P.

2018-01-24

ARVIND KUMAR MISHRA I

body2018
JUDGMENT : Hon'ble Arvind Kumar Mishra-I,J. By way of instant appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 23.03.1988 passed by Special Judge (DAA Act), Hamirpur, in Session Trial No.120 of 1982 State Vs. Jhabaroo and others, arising out of Case Crime No.95 of 1982 under Sections 392 IPC, Police Station- Maudaha, District-Hamirpur, whereby the appellants have been sentenced to undergo six years rigorous imprisonment. 2. Relevant to mention that appellant no.4 Pooran @ Punna has died during pendency of this appeal. Therefore, the appeal qua appellant no.4 Pooran @ Punna stood abated vide order dated 27.02.2017. 3. Heard Sri Durga Prasad, learned counsel for the appellant no.1 Suresh, Sri K.N. Singh, learned counsel for the appellant nos. 2 and 3 Mishri Lal and Jhabroo, learned AGA for the State and perused the record. 4. The facts leading up to this appeal appear to be, as discernible, from the record and particularly the first information report that the victim C.K. Gupta, informant lodged the written report at Police Station Maudaha, District Hamirpur on 18.05.1982 at 6:30 p.m. regarding some incident of loot committed at 5:30 p.m. near culvert of the house of Dr. A.K. Saxena, the distance was one kilometer from the police station wherein the allegations inter-alia were made to the extent that while he was going on rickshaw from market to bus stand Maudaha for boarding bus, in the meanwhile when he reached the place of the occurrence it was around 5:30 p.m. three miscreants appeared on the spot and snatched his brief case/Ataichi and made their escape good towards northern side. The informant chased them up to a short distance but they disappeared. The first information report contains list of the particulars of the booty. Request was made for lodging the report and taking appropriate action. The written report Ext. Ka-1. 5. Relevant entries were made in the concerned Check FIR of date 18.05.1982 at Case Crime No.95 of 1982 under Section 392 IPC, Police Station Maudaha, District Hamirpur. Check FIR is Ext. Ka-3. Relevant entries were also made in the concerned general diary Ext. Ka-4. 6. Thereafter, the investigation ensued and the same was taken over by Jagat Narain Singh PW-7. He recorded statement of various prosecution witnesses including the informant and took note of the concerned check FIR and relevant entry made in general diary. Check FIR is Ext. Ka-3. Relevant entries were also made in the concerned general diary Ext. Ka-4. 6. Thereafter, the investigation ensued and the same was taken over by Jagat Narain Singh PW-7. He recorded statement of various prosecution witnesses including the informant and took note of the concerned check FIR and relevant entry made in general diary. He proceeded towards the place of occurrence and prepared site plan Ext. Ka-5. On 26.05.1982, on the tip off information, the Investigating Officer arrested the appellant no.3 Jhabaroo around 4:00 p.m., whose statement was recorded wherein he also named certain other persons involved in the incident of loot which took place on 18.05.1982. He also got recovered a part of the booty cash Rs.6100/- and a brief case as well as certain receipts. Arrest and seizure memo Ext. Ka-2 was prepared by the Investigating Officer. Later on, some looted money was also recovered from house of the brother of appellant no.2 Mishri Lal worth Rs.6640/- description whereof is available in the recovery memo Ext. Ka-3 prepared by the Investigating Officer. The Investigating Officer also prepared site plan of the place of recovery. After completing the entire investigation, charge sheet was filed by the Investigating Officer which is Ext. Ka-12. 7. Consequently, proceedings were committed to the court of Sessions from where it was transferred for conduction and disposal of the case to the aforesaid trial court of Special Judge (DAA Act), Hamirpur who in turn heard both the sides on point of charge and was prima-facie satisfied with the case against the appellants, accordingly, framed charges under Section 392, 412 IPC. Charges were read over and explained to the appellants who abjured charges and opted for trial. 8. The prosecution, in order to prove guilt of the accused examined as many as eleven witnesses namely Chandra Kishor Gupta, PW-1 is the victim and informant of this case. Dharmatma Prasad PW-2 and Tulsi Ram PW-3, both are stated to be witnesses of the occurrence. Shri Krishna PW-4 and Abdul Hamid PW-5 are witnesses of recovery. Head Constable Deshraj Singh PW-6 has kept the recovered articles in the police lock up. Jagat Narayan Singh PW-7 is the Investigating Officer, he has filed charge sheet against the appellants. Head Constable Budul Singh PW-8 has entered relevant contents in the concerned Check FIR and the general diary of date 18.05.1982. Head Constable Deshraj Singh PW-6 has kept the recovered articles in the police lock up. Jagat Narayan Singh PW-7 is the Investigating Officer, he has filed charge sheet against the appellants. Head Constable Budul Singh PW-8 has entered relevant contents in the concerned Check FIR and the general diary of date 18.05.1982. Sri M.P. Awasthi PW-9 has conducted identification parade of the accused in his supervision on 29.07.1982. Constable Siyaram Shukla PW-10 and Constable Ambrish Singh PW-11 are formal witnesses. Except as above, no other testimony was adduced by the prosecution. 9. Thereafter, evidence for the prosecution was closed and statement of the accused was recorded u/s 313 Cr.P.C., wherein, they denied their involvement in the incident and stated that recovery is false and money belongs to them. The defence led in all testimony of five persons namely Ganesh Prasad @ Chhiddu DW-1, Gaya Prasad DW-2, Maiku Lal DW-3, Kedar DW-4 and Swamideen DW-5. These witnesses have been produced in order to prove worth of money which was recovered at the pointing out of the appellants from their respective houses. Thereafter, evidence for the defence was closed. 10. The case was heard on merit by the learned trial Judge who after appraisal of facts and evaluation of the evidence and circumstances of the case, returned finding of conviction against appellants and sentenced them as aforesaid vide impugned judgment and order dated 23.03.1988. 11. Feeling aggrieved by the aforesaid judgment and order of conviction, the present appellants have moved in appeal before this Court. 12. The crux contention raised on behalf of the appellants before this Court relates to the fact that in this case, no offence was committed, whatsoever. The appellants have no criminal history. The police in order to easily work out the case roped in, the appellants and planted false recovery and arrested appellant no.2 which recovery in the absence of any independent witness of the locality concerned loses significance. The witnesses of recovery were procured and they are pocket witness of the police. 13. It has been contended that insofar as identification of the appellant nos. 2 and 3 is concerned, it is a fact established that appellant no.3 was arrested by the police and he was kept in the lock up and he was shown to the informant. The witnesses of recovery were procured and they are pocket witness of the police. 13. It has been contended that insofar as identification of the appellant nos. 2 and 3 is concerned, it is a fact established that appellant no.3 was arrested by the police and he was kept in the lock up and he was shown to the informant. Insofar as appellant no.2 is concerned, he too was taken on remand after he surrendered before the court concerned and the Investigating Officer got him identified. However, it is worth consideration that appellant no.1 Suresh was not taken on remand as the remand was refused by the Magistrate concerned, therefore, his identification ended in failure as the informant could not identify him. 14. It has been added next that the entirety of the evidence when taken on the whole does not inspire confidence and finding of conviction is erroneous and perverse against the evidence on record. There is no evidence that in fact the appellants have committed the crime and the money which was stated to have been recovered at the pointing out of the appellants, in fact, belonged to them. There is no proof that these currencies which were, in fact, kept by the informant, were looted by the appellants on 18.05.1982. 15. Per contra, the learned AGA retorted to aforesaid arguments by submitting that there is no material contradiction in the testimony of the prosecution witnesses. The trial court has judiciously recorded conviction and has awarded appropriate sentence. 16. I have also considered the rival submissions and taken into consideration rival claims. In view of above, the point for determination of this appeal relates to fact as to whether the offence under Section 392 IPC was committed by the appellants and the prosecution has proved charge under Section 392 IPC beyond reasonable doubt? 17. In this case, bare perusal of the first information report is indicative of fact that some incident of loot occurred on 18.05.1982 at the place near culvert of the house of Dr. A.K. Saxena and the place of occurrence was located at one kilometer distance from the police station. The report was written by the informant and was lodged at the police station at 6:30 p.m. the very same day wherein list of the looted articles was also detailed at the bottom of the information. 18. A.K. Saxena and the place of occurrence was located at one kilometer distance from the police station. The report was written by the informant and was lodged at the police station at 6:30 p.m. the very same day wherein list of the looted articles was also detailed at the bottom of the information. 18. The investigation ensued and during course of the investigation as per testimony of PW-7 Jagat Narayan Singh on 26.05.1982 around 4:00 p.m., arrested appellant Jhabroo on the tip off information, he confessed to have looted the booty on 18.05.1982 and spelt name of certain other co-accused. Thereafter, on the pointing out of the appellant Jhabrooo, the Investigating Officer recovered Rs.6100/- cash which were stated to be a part of money looted from the victim/informant PW-1. The police also recovered certain articles say briefcase and receipts etc and prepared memo (Ext. Ka-2) of the same which has been duly verified by the witnesses and the testimony of the Investigating Officer before the court concerned. 19. Now it is relevant to take note of the fact that Chandra Kishor Gupta, informant PW-1 has specifically stated in his testimony about the incident of loot and he has not named anyone in the incident of loot, however, he has identified the appellant nos.2 and 3 during identification parade in jail and also at the time of recording of his testimony before the trial court. That way also, the appellants Mishri Lal and Jhabroo were specifically identified by the informant in the trial court and they have been stated to have been involved in committing the offence of loot as such the case against them appears to be clinching and consistent and it cannot be said that evidence against them is lacking or misconstrued by the trial court, therefore, their involvement in the incident is confirmed and finding regarding to that effect is hereby affirmed. 20. But insofar appellant no.1 Suresh is concerned, no recovery, whatsoever, has been made against him nor was he ever identified by Chandra Kishor Gupta, informant in the identification parade though identified before the trial court at the time of his examination. 21. It is worth consideration that on 29.07.1982, under supervision of the Special Magistrate, Sri M.P. Awasthi, identification parade was held in district jail wherein the informant did not identify the appellant no.1 Suresh. 21. It is worth consideration that on 29.07.1982, under supervision of the Special Magistrate, Sri M.P. Awasthi, identification parade was held in district jail wherein the informant did not identify the appellant no.1 Suresh. However, before the trial court, appellant no.1 Suresh was identified by the informant to have been involved in the alleged incident but this examination in the trial court took place much later after 29.07.1982 on 09.05.1985, then the point under consideration is based on analogy of fact that a person who after the incident took place (on 18.05.1982) at a gap of two months (on 29.07.1982) is unable to identify the appellant no.1 Suresh in identification parade, identifies the same person after a gap of almost three years in the course of recording of his statement before the trial court appears to be fair one and such identification is outcome of tutoring of some other person because a man of ordinary prudence would hardly identify the same person as the person involved in the commission of the offence on 29.07.1982 after a gap of approximately 3 years. This identification raises reasonable doubts because of a gap of almost three years between the occurrence and his identification (in Court). This particular aspect of the case shows involvement and active involvement of the police at whose instance, this identification in the district jail took place and the same failed which renders involvement of the appellant no.1 Suresh in the commission of the crime dubious. It is one of the admitted circumstances that nothing has been recovered at the pointing out of the appellant no.1 Suresh. Consequently, involvement of the appellant no.1 Suresh in the commission of the crime becomes dubious and his involvement in the alleged incident is ruled out, accordingly. 22. The learned trial Judge while marshaling facts of the case and appreciating circumstances of the case failed to scrutinize the aforesaid particular aspect of the case and it misinterpreted and misread the evidence on this particular aspect of non-identification of the appellant no.1 Suresh at the time of identification parade on 29.07.1982 and the finding qua identification of the appellant no.1 Suresh recorded in the trial court is erroneous which cannot be said to be based on actual facts of this case. The finding in the absence of proper corroborative evidence as to how he identified appellant no.1 after elapse of almost three years of the incident, becomes perverse. Consequently, the case of the appellant no.1 Suresh is not proved beyond reasonable doubt. He deserves acquittal. Accordingly, he is acquitted of charge under Section 392 IPC. 23. As discussed above, insofar as appellant nos. 2 and 3 Mishra Lal and Jhabroo are concerned, they have been identified both in the test identification parade and in the proceeding of the trial court. Therefore, the version of PW-1 regarding their involvement in the incident becomes clinching and graver carries weightage and his testimony on account of aforesaid particular aspect is worth believing and PW-1 is creditworthy insofar as he states that appellant no.2 Mishri Lal and appellant no.3 Jhabroo were involved in the commission of the offence. Therefore, conviction recorded against them is based on material on record and the same requires no interference by this Court. 24. On the sentencing part of the impugned judgment, argument has been advanced to the ambit that in this case, the appellants Mishri Lal and Jhabroo were young men at the time of commission of the offence and they were aged about 20 and 22 years, respectively. Now they have grown up and marriage of their sons and daughters has also been solemnized and they are leading respectful life in society and they have no criminal history or history of previous convicts and they should be given at least one chance and particularly in view of fact that for a period of last 35 years, they have not been involved in any criminal activity/case. Therefore, that aspect of fair conduct may be considered leniently while awarding sentence against them which particular aspect has escaped attention of the trial Judge and he had no occasion to ever ponder over the same. 25. Considering the entirety of the case and also present family atmosphere of the appellant nos.2 and 3, it would be in the fitness of things and in the interest of justice that sentence awarded against the appellant nos.2 and 3 to the extent of 6 years rigorous imprisonment be modified and reduced to two years rigorous imprisonment coupled with fine Rs.5000/-, with one month imprisonment in case of default. Accordingly, the sentence awarded to the appellant nos.2 and 3 Mishri Lal and Jhabroo is reduced and modified to two years rigorous imprisonment coupled with fine Rs.5000/- each instead of 6 years rigorous imprisonment awarded by the trial court. In case the amount of fine is not deposited, the concerned appellant shall have to suffer additional one month imprisonment. 26. Accordingly, sentencing part of the impugned judgment and order of conviction dated 23.03.1988 passed by Special Judge (DAA Act), Hamirpur, in Session Trial No.120 of 1982 State Vs. Jhabaroo and others, arising out of Case Crime No.95 of 1982 under Sections 392 IPC, Police Station- Maudaha, District- Hamirpur, is hereby modified to the aforesaid extent while conviction is maintained in respect of appellant no.2 Mishri Lal and appellant no.3 Jhabroo. 27. In this case, the appellant no.1 Suresh is in jail. He shall be released forthwith unless and until he is wanted in connection with any other case. However, he shall ensure compliance of Section 437A Cr.P.C. 28. In this case, the appellants Mishri Lal and Jhabroo are in jail. They shall serve out the remaining part of their respective sentences. 29. The instant appeal is allowed, partly in terms aforesaid. 30. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.