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2024 DIGILAW 2133 (ALL)

Kalloo v. State of U. P.

2024-09-25

RAM MANOHAR NARAYAN MISHRA, SIDDHARTHA VARMA

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JUDGMENT : (Delivered by Hon’ble Siddhartha Varma,J.) 1. Heard Sri Sandeep Dubey, learned Amicus Curiae for the appellant, Sri Amit Sinha, learned A.G.A. for the State-respondent and perused the material available on record. 2. Instant Criminal Appeal has been preferred against the judgment and order dated 31.3.1983, passed by IIIrd Additional Sessions Judge, Fatehpur in S.T. No. 624 of 1981, convicting and sentencing the appellant for charge under Section 396 IPC and sentencing him to undergo imprisonment for life. 3. The factual matrix of the case pertaining to present Criminal Appeal in brief is that upon an incident having occurred in the mid night of 4/5.2.1981, a first information report was lodged on 5.2.1981 at 9:10 AM by the son of the deceased. Deceased was one Smt. Phoolmati and the first informant was her son Binda Prasad Mishra. Upon the first information report having been lodged, the police got into action. The Panchayatnama was prepared on 5.2.1981 itself and was exhibited as Ext.Ka-5 and thereafter, the dead body was sent for postmortem and the postmortem report was exhibited as Ext.Ka-1. There were certain recoveries. The recovery of the ash which was there as a result of the pual which was burnt on the date of incident was exhibited as Ext.Ka-9. Similarly, the recovery memo of the torches, which were allegedly in the hands of the eye-witnesses, was prepared and exhibited as Ext.Ka-10. A recovery memo was also prepared with regard to the empty cartridges which were found on the place of the incident and the memo was exhibited as Ext.Ka-11. After the investigation had commenced on the mentioning of the names of Narad and Beni by PW-3 and PW-4 i.e. Bhola and Nanku, the accused Narad and Beni were arrested. The accused Kallu was, however, arrested on 13.8.1981. The police, upon completion of investigation had submitted its report vis-a-vis Narad and Beni on 28.6.1981 and vis-a-vis Kallu on 5.10.1981. The court, thereafter, had framed charges under Section 396 IPC against the three accused persons on 17.6.1982. The trial, thereafter, commenced when the accused persons denied the charges and desired a trial. From the side of prosecution as many as ten witnesses were produced and examined. 4. PW-1 Dr. S.K. Singh is the Doctor, who had proved the postmortem and had given the details of the injuries which were found on the dead body of Smt. Phoolmati, the deceased. 5. From the side of prosecution as many as ten witnesses were produced and examined. 4. PW-1 Dr. S.K. Singh is the Doctor, who had proved the postmortem and had given the details of the injuries which were found on the dead body of Smt. Phoolmati, the deceased. 5. PW-2 Binda Prasad Mishra is the first informant and he has in detail described the incident which had occurred on the night of 4/5.2.1981. He has given the reason as to why he had not mentioned in the first information report the names of Narad and Beni. He has also mentioned the fact that Bhola, Nanku, Murad and Ram Bharose were present on the spot. This fact he had also mentioned in the first information report. With regard to the fact that why he had not mentioned the names of Narad and Beni despite the fact that the PW-3 and PW-4 had seen them on the spot, he states that he was never told by PW-3 and PW-4 that Beni and Narad were also there in the incident. He, however, has mentioned that after his house, there was a house of his uncle, which was bought by the accused Beni and Narad and also his father. He has also stated that father of Beni and Narad had 12 to 13 bighas of agricultural land in the village. Upon a question being asked as to whether the PW-3 Bhola was falsely trying to implicate Narad and Beni because he wanted to occupy their houses, the PW-2 denied this fact. In the cross-examination, he has accepted that his sasural (in-laws’ place) was in the village Bahrauli in the house of one Laxmi Narayan and upon a question being asked that when Kallu also belonged to Bahrauli did he know him from before, he had answered in the negative. He has stated that when he had gone for test identification parade, he had recognized only Kallu over there. The other persons allegedly involved in the incident were not recognized by him. He has stated that only three dacoits had entered his room and at that point of time, he had recognize them. The other dacoits who had accompanied these three persons were not seen by him and, therefore, he could not recognized them. The other persons allegedly involved in the incident were not recognized by him. He has stated that only three dacoits had entered his room and at that point of time, he had recognize them. The other dacoits who had accompanied these three persons were not seen by him and, therefore, he could not recognized them. He has further stated categorically that he had not mentioned about the height or weight of the persons whom he had seen in his room when the incident had occurred. Then he states that he actually did not remember that he had to give the description of the dacoits in the first information report when he was not giving the names of the dacoits who had entered his house. However, he states that he had given the description of the dacoits to the police who were present on the spot. He has denied the fact that before the test identification parade had taken place, the police had made him recognize the accused Kallu. PW-2 had stated that there was sufficient source of light inasmuch as there was a lantern available in the room where the incident had occurred. 6. PW-3 Bhola has given his testimony before the court and in his examination-in-chief, he has stated virtually what was stated by the PW-2. He has also stated that while the mother of PW-2 was being shot at, certain pellets had also hit the sister of the first informant namely, Bhuri. He has also stated about the fact that he had, in the test identification parade, identified Kallu. He had also stated that he had known Narad and Beni, the other two accused from before. He has also tried to explain as to why the names of Narad and Beni were not mentioned in the first information report. In that context, he had stated that even though he had seen Narad and Beni, he had not mentioned about their presence to the first informant Binda Prasad Mishra as he had somehow not been able to meet Binda Prasad Mishra before the first information report was lodged. He has with regard to the source of light mentioned that there was only one small lamp (dhibri) kept on todi (platform), which was there in the courtyard and that there was no other source of light available at the place of incident. He has with regard to the source of light mentioned that there was only one small lamp (dhibri) kept on todi (platform), which was there in the courtyard and that there was no other source of light available at the place of incident. He has stated that after the incident wherein the mother of Binda Prasad Mishra had died, the father of PW-3 was also murdered. He has stated that it was wrong to say that Kallu was also implicated in the murder of his father. Upon a question being asked as to whether he had recognized Kallu when the test identification parade was being done in the context of the murder of his father, he had replied that the police had told him that he had to recognize Kallu in the identification parade. He also states that he was not aware whether Kallu was involved in the murder of his father. 7. PW-4 Nanku is another eye-witness as per the prosecution and has also virtually stated the same story as was narrated by PW-2 and PW-3. He has stated that he had seen the incident with the help of torch lights. He, however, had not mentioned anything with regard to the light in the house where the incident had occurred. He, however, mentioned that the pual was put to fire to frighten away the dacoits and he also has tried to bring home the point that when there was no light, the light which came out because of the burning of the pual helped him in seeing the accused persons. He also mentioned that he recognized two of the accused persons because they had their Nanihal in the village and they used to visit the village off and on. However, he has stated that he could not recognize the other accused persons. He specifically states that the persons whom he had recognized were Beni and Narad. 8. PW-5 Paras Ram is the chik writer and he has proved the same. PW-6 M.P. Singh is the Investigating Officer and has given in the statement in-chief and also has stated in the cross-examination the manner in which Kallu was arrested from Jahanabad on 14.8.1981 when he had received some information about his presence there. He has also proved the site plan. PW-7 Ram Prasad Mishra and PW-8 Bahadur Singh are the Police Officers who had arrested Beni and Narad. He has also proved the site plan. PW-7 Ram Prasad Mishra and PW-8 Bahadur Singh are the Police Officers who had arrested Beni and Narad. PW-9 Amar Nath Pandey is the Police Officer who had brought the accused Kallu for the test identification parade in a ‘parda’. PW-10 is the Tehsildar who was present at the time of test identification parade. 9. After the prosecution evidence was over, the evidence of the accused persons were recorded under Section 313 Cr.P.C.. They denied having committed the crime. 10. When the judgment in the case was pronounced by the IIIrd Additional Sessions Judge, Fatehpur on 31.3.1983, wherein he had acquitted Narad and Beni and had convicted the appellant Kallu under Section 396 IPC, the instant criminal appeal was filed. 11. Sri Sandeep Kumar Dubey, learned Amicus Curiae appearing for the appellant argued that the appellant Kallu was innocent. He made the following submissions:- (I). He submits that if the statement of PW-2, 3 and 4 are minutely perused, it becomes certain that they had tried to falsely implicate Narad and Beni on account of the fact that Narad and Beni were known to them and that also there was some enmity between the families of PW-2, 3 and 4 and Narad and Beni. He, therefore, submits that the testimony of the eye-witnesses PW-2, 3 and 4 were not trustworthy and, therefore, could not be believed and, therefore, could not also be used for the purpose of the conviction of the accused person. He, in fact, submits that because of the false testimony and because of the fact that no test identification parade had taken place vis-a-vis Narad and Beni, they were acquitted by the Sessions Court. (II) Learned counsel for the appellant further states that there was in the first information report no mention of Beni and Narad. He submits that even if Binda Prasad Mishra had somehow missed out the fact that Beni and Narad were there, then definitely, he would have been informed about the fact that Beni and Narad were present by the PW-3 and 4. The very fact that PW-3 and 4 did not mention about the presence of Narad and Beni at the place of incident definitely goes to show that Beni and Narad were falsely being implicated by the witnesses. The very fact that PW-3 and 4 did not mention about the presence of Narad and Beni at the place of incident definitely goes to show that Beni and Narad were falsely being implicated by the witnesses. (III) Learned counsel for the appellant further states that there was contradiction in the statements of PW-2, 3 and 4 with regard to the source of light. PW-2 had very categorically stated that there was a lantern hanging in the room in question whereas PW-3 has stated that the only source of light was a small lamp kept in the courtyard and he had categorically stated that there was no other source of light. PW-4 has quite against what the PW-2 and 3 had stated, states that because of the light which was there because of the burning of the pual, he could see the incident and also the accused persons. (IV) Learned counsel for the appellant still further submits that test identification parade, which was done of Kallu on 28.9.1981 was so done after a period of 7 months and 24 days had elapsed after the incident and therefore was of no value. He, relying upon a judgment of the Supreme Court reported in AIR 1988 SC 345 , Hari Nath and Another vs. State of U.P., submits that the evidence of identification by a witnesses is not a substantive piece of evidence. It only corroborates the various oral testimonies which are given in the trial court and when the test identification parade itself was done after a period of 7 months and 24 days, it definitely could not have been relied upon as he submits that there is every tendency of the eye-witnesses to have forgotten the various peculiarities of the person who was required to be identified. Relying upon the judgment of the Supreme Court reported in AIR 1988 SC 345 , learned counsel for the appellant states that in that case there was a delay of only 42 days and the Supreme Court had allowed the appeal saying that a delay in holding the test identification parade, throws a doubt on the genuineness of the prosecution case, apart from the fact that it becomes difficult after lapse of such a long time for the witnesses to remember the facial expression and appearance of the accused. (V) Learned counsel for the appellant still further relied upon a judgment of our High Court reported in 2019 AIR (ALD) 1796, Lokai Chamar vs. Sate of U.P. and relying upon paragraph Nos.20, 25, 34 and 35 has submitted that a conviction under Section 396 IPC could be done only if there was (i) ‘murder’ within the meaning of Section 300 IPC (ii) there were five persons atleast who had joined together to commit dacoity, and (iii) the murder must have been committed in the course of commission of such dacoity. Learned counsel for the appellant states that in the instant case, in fact, there was involvement though alleged of five individuals but only three accused persons were put to trial and, therefore, it could be simply said that the trial court erred in convicting the appellant under Section 396 IPC. Since learned counsel for the appellant relied upon paragraph Nos.20, 24, 34 and 35 of the above judgment, they are being reproduced as under:- “20. The three essential ingredients for invoking Section 396 of I.P.C. are that (i) one of the persons must commit murder, i.e., his act must amount to "murder" within the meaning of Section 300 of I.P.C., (ii) the said person must be one of the five or more persons who have joined together to commit dacoity, and (iii) the murder must be committed in the course of commission of such dacoity. 25. In the case of 'Ram Lakhan vs. State of U.P', (1983) 2 SCC 65 , the appellant was convicted for an offence punishable under Section 395 of the I.P.C. and sentenced to rigorous imprisonment for seven years. The F.I.R. was registered against nine persons. The trial court, however, acquitted five persons and convicted four accused persons. On appeal, the High Court acquitted three persons out of said four persons and convicted one of the accused, who filed an appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court held that conviction for an offence of dacoity of less than five persons is not sustainable. It was also held that before an offence under Section 395 of the I.P.C. can be made out there must be an assembly of five or more persons. The Hon'ble Supreme Court held that conviction for an offence of dacoity of less than five persons is not sustainable. It was also held that before an offence under Section 395 of the I.P.C. can be made out there must be an assembly of five or more persons. On the findings of trial court and the High Court, it was manifest that only person was left, who could not be convicted for an offence under Section 395 of the I.P.C. 34. It is settled rule of law that the T.I.P. is not a substantive evidence. The substantive evidence is the evidence of identification in Court. The same is clear from the provisions of Section 9 of the Indian Evidence Act, 1872 as well as catena of decisions. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. Generally, the substantive evidence of a witness is the statement made in the Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of T.I.P. is to test and strengthen the trustworthiness of the said evidence. The T.I.P. belongs to the stage of investigation and there is no provision in the Cr.P.C. which obliges the investigating agency to hold, or confers a right upon the accused to claim a T.I.P. They do not constitute evidence and these parades are governed by Section 162 of the Cr.P.C. Failure to hold a T.I.P. would not make in admissible the evidence of identification in Court. However, the weight to be attached to such identification should be a matter of for the Courts depending upon the facts, in appropriate cases it may accept the evidence of identification even without insisting on corroboration. Thus, it is considered a safe rule of prudence to generally look for corroboration of the testimony of witnesses in Court as to the identity of the accused who are not known to them, in the form of earlier test identification proceeding. The said rule, however, is subject to the exceptions, when the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. 35. The said rule, however, is subject to the exceptions, when the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. 35. The purpose of T.I.P. is to have corroboration of evidence of the witnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the Court. If that evidence is found to be reliable then absence of corroboration by T.I.P. would not be in any way material. The purpose of T.I.P. is succinctly stated by the Hon'ble Supreme Court in the case of 'State of Maharashtra vs. Suresh', (2000) 1 SCC 471 as follows: "22.......................We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence............" (VI) Even though there was mention of the presence of Murad, Ram Bharose and other persons at the spot but they were not produced in the witness box. Learned counsel for the appellant further states that even the injured sister of the first informant was not produced. (VII) The test identification parade took place on 28.9.1981 and six persons were required to identify the appellant Kallu. Bhuri the sister of the informant did not appear at all and the other witnesses namely, Nanku, Murad and Ram Bharose did not recognize the accused persons at all in the test identification parade. (VIII) Learned counsel for the appellant, therefore, states that this test identification parade was a faulty test identification parade as less than 50 per cent of the persons who were required to identify the accused had not been able to recognize the accused. Identification by such a small number would not be considered a very reliable identification. 12. Learned counsel placed reliance on a vintage judgement of this Court, which is still held in esteem, which is cited as Asharfi And Another vs. The State, AIR 1961 ALL 153 . Identification by such a small number would not be considered a very reliable identification. 12. Learned counsel placed reliance on a vintage judgement of this Court, which is still held in esteem, which is cited as Asharfi And Another vs. The State, AIR 1961 ALL 153 . In that case two persons were convicted and sentenced after trial for charge under Section 396 IPC. According to the eye-witness account, that night at about 11-30 p.m. a gang of about fourteen bandits, armed with pistols, daggers and other weapons committed robbery in the house and committed murder of one inmate of the house to facilitate the dacoity. A Test Identification Parage was organized in the District Jail Fatehpur, wherein appellant Asharfi and Ram Dhani were subjected to identification by nine witnesses out of whom, six had identified Asharfi. As a result of test identification parade, Asharfi and Ram Dhani were prosecuted. A Division Bench of this Court in Paragraph No.33 of the judgement laid down the conditions necessary for acceptable identification evidence:- 33. CONDITIONS NECESSARY FOR ACCEPTABLE IDENTIFICATION EVIDENCE: The Court is bound to follow the rule that evidence as to the identification of an accused person must be such as to exclude with reasonable certainty the possibility of an innocent person being identified. In the very recent case of State of Madhya Pradesh v. Manka, 1980 MFC 216, a Division Bench of the Madhya Pradesh High Court, after examining some Indian English and American rulings, held: "The evidence of identity must be thoroughly scrutinised, giving benefit of all doubt to the accused; but if after a thorough scrutiny there appears to be nothing on the record to suspect the testimony of the identification witnesses, the Court ought not to fight shy of basing a conviction on such evidence alone, because of the bare possibility that there could be honest though mistaken identification." With great respect we agree with their Lordships. The following twelve questions are apt to arise and must be answered by the Court to its satisfaction before it can accept the evidence:-- (1) Did the identifier know the accused from before? (2) Did he see him between the crime and the test identification? (3) Was there unnecessary delay in the holding of the test? (4) Did the Magistrate take sufficient precautions to ensure that the test was a fair one? (2) Did he see him between the crime and the test identification? (3) Was there unnecessary delay in the holding of the test? (4) Did the Magistrate take sufficient precautions to ensure that the test was a fair one? (5) What was the state of the prevailing light? (6) What was the condition of the eye-sight of the identifier? (7) What was the state of his mind? (8) What opportunity did he have of seeing; the offenders? (9) What were the errors committed by him? (10) Was there anything outstanding in the, features or conduct of the accused which impressed him? (11) How did the identifier fare at other test identifications held in respect of the same offence? (12) Was the quantum of identification evidence sufficient? 13. The Division Bench observed with regard to point Nos.11 and 12 as under:- 45.(11) HOW DID THE IDENTIFIER FARE AT OTHER TEST IDENTIFICATIONS HELD IN RESPECT OF THE SAME OFFENCE? It used to be thought that in appraising the evidence of witnesses who identified a particular accused the Court should take into account the result of their identification in all other parades held in connection with the same offence. The error of this view has been exposed by Division Benches of this Court in State v. Wahid Bux, AIR 1953 All 314 and Ram Autar v. State, 1958 All LJ 431. The correct law is that normally the result of identification proceedings in which a particular accused is put up must alone be taken into consideration in deciding the value of identification of a particular witness with respect to that accused; other test identifications, provided they were held within a short period of the test under consideration, can be taken into account solely for judging the memory and power of observation of the witness concerned. 46. (12) WAS THE QUANTUM OF IDENTIFICATION EVIDENCE SUFFICIENT? Before the Court holds an accused guilty it must make certain that chance has not been responsible for his identification. If a suspect is mixed with nine innocent persons and is identified by a witness, the mathematical probability of the witness picking him out by chance is one in ten. Hence only one identification cannot eliminate the possibility of the pointing out being purely through chance, and for this reason is insufficient to establish the charge. If a suspect is mixed with nine innocent persons and is identified by a witness, the mathematical probability of the witness picking him out by chance is one in ten. Hence only one identification cannot eliminate the possibility of the pointing out being purely through chance, and for this reason is insufficient to establish the charge. If the same suspect is identified by two witnesses, the probability of his being pointed out by chance is one in a hundred. 14. Learned A.G.A. supported the judgment and submitted that when there were three eye-witnesses who had given their account, which was very much similar, then there was no other option with the trial court but to convict the appellant Kallu. Still further, he submitted that the test identification parade which was conducted in the presence of a respectable Magistrate could not be brushed aside easily. He also submitted that the two eye-witnesses namely, PW-2 and PW-3 had also recognized and identified the appellant Kallu in the Court and, therefore, there was sufficient identification inasmuch as a dock identification was an identification which could always be relied upon by the court. 15. Having heard Sri Sandeep Kumar Dubey, learned Amicus Curiae for the appellant and Sri Amit Sinha, learned AGA for the State, we find that the prosecution witnesses i.e. PW-2, 3 and 4 when had not mentioned the names of the Narad and Beni and were implicating these two persons then the prosecution witnesses were not reliable. There was sufficient time and opportunity available to PW-3 and PW-4 to have mentioned the names of Narad and Beni to PW-2, so that he would have mentioned the names in the first information report. The very fact that they had missed out to mention the names of Narad and Beni to the first informant and consequently PW-2 had also, therefore, not mentioned their names in the first information report shows that PW-3 and PW-4 were definitely falsely implicating Narad and Beni and thereafter when the PW-2 also relies upon the statements of PW-3 and PW-4 and, therefore, implicates Narad and Beni, it goes to show that PW-2, 3 and 4, who claim themselves to be eye-witnesses were not eye-witnesses at all. Still further, the Court finds that there were contradictions in the statements of the prosecution witnesses so far as the presence of light was concerned. Still further, the Court finds that there were contradictions in the statements of the prosecution witnesses so far as the presence of light was concerned. Even though there was torch light there, the witnesses who had come with the torches had reached the spot after the incident had occurred. So far as the actual source of light is concerned, PW-2 mentions that there was a lantern in the room when the incident had occurred. PW-3 states that there was a small lamp in the courtyard and there was no other light and PW-4 Nanku states that there was light only on account of the fact that the pual had been burnt. All these go to show that there was no definite source of light and only to create a source of light, the witnesses were mentioning various sources of light, which makes their testimonies unbelievable. Further, the Court is of the view that the test identification parade, though, could have been done of accused persons, the reliability of it becomes very doubtful, as has been stated in the judgment of Supreme Court in Hari Nath and Another vs. State of U.P. (supra) that a delayed test identification parade makes it difficult for the person identifying an accused person. He tends to forget about the peculiarities of that person. In this case when we find that the test identification parade was done after 7 months and 24 days of the incident, specifically when the persons who were identifying the accused had stated that they had never known or seen the accused, then it definitely becomes very doubtful that they would have recognized the accused Kallu and the question of false implication, therefore, cannot be ruled out. 16. Also we are of the view that when a court is to convict a person for an offence under Section 396 IPC, then just a single person cannot be convicted for that offence. There is no specific finding in the impugned judgment that five persons actually participated in the offence. The basic ingredients which make out an offence under Section 396 IPC had to be there. In the instant case, there was a murder as is conceived under Section 300 IPC. There was, however, lack of presence of four other individuals to constitute an offence under Section 396 IPC. 17. The basic ingredients which make out an offence under Section 396 IPC had to be there. In the instant case, there was a murder as is conceived under Section 300 IPC. There was, however, lack of presence of four other individuals to constitute an offence under Section 396 IPC. 17. For all the reasons as stated above, we definitely find that the charges as were framed against the appellant were not proved at all and, therefore, we are of the view that the appeal deserves to be allowed and the appellant is to be acquitted. 18. Accordingly, present appeal stands allowed and the appellant is acquitted of charge under Section 396 IPC and his conviction and sentence recorded by the learned IIIrd Additional Sessions Judge, Fatehpur in impugned judgement dated 31.3.1983, in S.T. No. 624 of 1981, is hereby set aside. 19. Appellant has already been enlarged on bail in present appeal. His sureties are discharged and his personal and surety bonds are cancelled. He need not surrender. 20. In the end, we do appreciate the hard work which had been put by Sri Sandeep Kumar Dubey, learned Amicus Curiae and for this, we provide that the High Court Legal Services Authority shall pay him a sum of Rs.25,000/-. The Registrar General to oversee the payment. 21. Let a copy of this judgement be transmitted back to the court below alongwith lower court record at the earliest for necessary compliance and further action.