Bhare Alam and Others vs State of Uttaranchal

Umesh Chandra Dhyani, J.—Since aforementioned criminal appeals have arisen out of the same incident and common judgment/order passed by the Court below, therefore, they are being decided together for the sake of brevity and convenience. PW 1 Shankar Singhal set the criminal law into motion by writing a criminal complaint (Ext. Ka-1) to S.O., police station, Kalagarh, District Pauri Garhwal on 4.7.2002, enumerating the facts contained therein, that he is a resident of New Colony, Kalagarh. In the intervening night of 3/4.7.2002, at around 1:00 A.M., 6-7 hooligans/miscreants trespassed into his house. They were armed with country made pistols and knives. They were aged 20-30 years. They ransacked the house of the informant (PW 1) and looted silver and gold ornaments, silver tumblers, colour T.V., tape recorder, wrist watches and cash worth Rs. 1,25,000/-. It was also written in the complaint that he alongwith his family members can identify the miscreants. Chik FIR (Ext. Ka-8) was lodged against unknown persons for the offence punishable under section 395 IPC at police station, Kalagarh, Kotdwar, District Pauri Garhwal on 4.7.2002, at 2:30 A.M. The distance between the place of incident and the police station concerned is 2 Km. and hence there appears to be no delay in lodging the FIR.

On 28.7.2002, some of the gold, silver ornaments, as also the incriminating articles were recovered from the possession of Kasim and Rihana Parveen both R/o. Rasoolpur, Afzalgarh, Bijnor, who disclosed that these articles were given to them by Nasir @ Sanjay Dutt, who committed dacoity in the house of a businessman. They also confessed to the police that they were going to Kotdwar to sell off these valuables. Kasim and Rihana Parveen were arrested and a criminal case under sections 395 and 411 IPC was registered against them.

On 6.7.2002, police arrested Nasir @ Sanjay Dutt R/o. Rasoolpur, Afzalgarh, Bijnor with a country made pistol and two live cartridges. Two gold bangles and three gold rings, golden tops, gold chain alongwith cash worth Rs. 10,000/- was recovered from the possession of accused Nasir @ Sanjay Dutt. A country made pistol, two live cartridges, one mangalsutra and some gold ornaments alongwith cash worth Rs. 10,000/- were recovered from accused Usman r/o. Rasoolpur, Afzalgarh, Bijnor on the selfsame day. Further, a prohibitory knife, a silver ornament and cash worth Rs. 6,100/- were recovered from the possession of accused Mazhar Ali R/o. Rasoolpur, Afzalgarh, Bijnor. Silver ornaments alongwith cash worth Rs. 4,750/- were recovered from the possession of Afsar R/o. Rasoolpur, Afzalgarh, Bijnor. All the above accused persons were sitting in a car and the car was being driven by accused Sumit Kumar R/o. Afzalgarh, Bijnor. Cash worth Rs. 6,800/- was recovered from the possession of accused Sumit Kumar.

It is also written in the recovery memo dated 6.7.2002 that the informant/complainant identified all the accused, but for accused Sumit Kumar. Informant stated that they were the same persons who committed dacoity in his house in the intervening night of 3/4.7.2002. The accused persons confessed that they committed dacoity in the house of the informant in the intervening night of 3/4.7.2002. Thumb impressions of all the accused were obtained on both the recovery memos on the respective dates.

Accused Nasir @ Sanjay Dutt and Nazir @ Billa both S/o. Mohd. Hanif, Kasim S/o. Mohd. Shah and Rihana Parveen W/o. Shakir were put to Test Identification Parade (TIP) on 31.8.2002. Since this Court is primarily concerned with the offence allegedly committed by accused-appellants Bhare Alam and Sumit Kumar, therefore, no useful purpose will be served by discussing the evidentiary value of the TIP conducted in respect of other accused persons.

After investigation of the case, chargesheet (Ext. Ka-15) was submitted against accused persons, namely, Nasir @ Sanjay Dutt, Usman, Mazhar Ali, Ashraf @ Afsar @ Langara, Sumit Kumar, Nazir @ Billa, Bahare Alam, Kasim and Smt. Rihana Parveen for the offences punishable under sections 395, 120-B and 412 IPC. Separate chargesheet (Ext. Ka-19) was submitted against accused persons, namely, Nasir @ Sanjay Dutt, Usman, Mazhar Ali, Afsar @ Ashraf @ Langara and Sumit Kumar for the offences punishable under sections 147, 148, 149 and 307/34 IPC. Separate chargesheets (Ext. Ka-20 and Ext. Ka-22) under section 4/25 were submitted against accused Mazhar Ali and Afsar @ Ashraf @ langara. Separate charge-sheets (Ext. Ka-24 and Ext. Ka-26) were submitted against accused Nasir @ Sanjay Dutt and Usman under section 25 of Arms Act. Separate chargesheet in respect of Motor Vehicles Act was also submitted against accused Sumit Kumar. The case was committed to the Court of Sessions. When the trial began and prosecution opened it''s case, charge for the offences punishable under sections 395, 397 and 120-B IPC was framed against accused Nasir @ Sanjay Dutt, Usman, Mazhar Ali, Afsar @ Ashraf @ Langara, Kasim and Nazir @ Billa. Accused Sumit Kumar, Smt. Rehana, Kasim, Afsar @ Ashraf @ Langara, Mazhar Ali, Usman, Nasir @ Sanjay Dutt and Nazir @ Billa were charged for the offence punishable under section 412 IPC. Accused Sumit Kumar and Bhare Alam were charged for the offence punishable under section 120-B IPC. All the accused persons but for accused Sumit Kumar and Bhare Alam confessed their guilt. Accused persons Bhare Alam and Sumit Kumar pleaded not guilty to the charges framed against them and claimed trial.

PW 1 Shankar Singhal, PW 2 Yogendra Narayan, PW 3 Sanjay Gupta, PW 4 Sanjay Agarwal, PW 5 Constable Ram Avtar Tyagi, PW 6 Punit Nagpal, PW 7 Ajimuddin, PW 8 Shyam Lal and PW 9 S.O. Chandrapal Singh were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons under section 313 of Cr.P.C., in reply to which they said that they were falsely implicated in the case. No evidence was given in defence. After considering the evidence on record, learned Addl. Sessions Judge/F.T.C., Pauri Garhwal, vide judgment and order dated 10.7.2003, convicted accused Nasir @ Sanjay Dutt, Usman, Mazhar Ali, Afsar @ Ashraf @ Langara, Nazir @ Billa under sections 147, 148, 395 and 412 IPC and were sentenced accordingly. Accused Nasir @ Sanjay Dutt and Usman were also convicted under section 25 of Arms Act and sentenced accordingly. Accused Mazhar Ali and Afsar @ Ashraf @ Langara were convicted under section 4/25 of Arms Act and sentenced accordingly. Accused Sumit Kumar was convicted under sections 147, 395 and 412 IPC and under Motor Vehicles Act and sentenced accordingly. Accused Bhare Alam was convicted under section 395 IPC and sentenced accordingly. However, accused Nasir @ Sanjay Dutt, Usman, Mazhar Ali, Afsar @ Ashraf @ Langara were exonerated of the charge of offences punishable under sections 307 and 397 IPC. Accused Kasim and Nazir @ Billa were also exonerated of the charge of offence punishable under section 397 IPC. All the sentences were directed to run concurrently by the Trial Court. Aggrieved against their conviction and sentence, accused-appellants Sumit Kumar and Bhare Alam preferred aforesaid criminal appeals before this Court.

PW 1 is the informant, who, in his examination-in-chief proved the contents of his complainant (Ext. Ka-1), was also a signatory to the recovery memo and he also proved recovery or gold/silver ornaments and other incriminating articles which were marked as material exhibits before the Trial Court. The examination-in-chief of PW 1 is almost verbatim reproduction of the contents of his complaint, as also the contents of recovery memos. It will be a futile exercise to reproduce his examination-in-chief for the sake of brevity. In his examination-in-chief PW 1 admitted that the currency notes were not identifiable. As has been said earlier, this Court is concerned with the role and profile of the accused-appellants Bhare Alam and Sumit Kumar only, inasmuch as the other accused persons are not the appellants before this Court.

PW 2 is the real brother of PW 1, who, in his examination-in-chief also supported the contents of the complaint filed by PW 1. In other words, in his examination-in-chief, he supported the prosecution story. PW 2 also described as to how the accused persons were arrested and how the looted valuables and prohibited arms were recovered from their possession. When PW 2 was cross-examined on behalf of accused Bhare Alam, he admitted that Bhare Alam was neither put to TIP nor had he been identified by any of the witnesses. PW 2 also admitted that Bhare Alam did not plan to commit dacoity in his presence. He was cross-examined on behalf of other accused persons, a reference of which is not required at this stage. When PW 2 was cross-examined on behalf of accused Sumit Kumar, he stated that he did not know the name of Sumit Kumar prior to this incident.

PW 3, in his examination-in-chief, also supported the prosecution story. When PW 3 was cross-examined on behalf of accused Bhare Alam, he stated that he overheard Bhare Alam whispering from a distance of 3-4 meters and discussing the plan to commit dacoity with his associates. PW 3 did not say anything about the involvement of accused Sumit Kumar in the commission of crime.

PW 4 was the witness before whom accused Bhare Alam and others confessed their guilt. It has been indicated in paragraph No. 18 of the impugned judgment that Bhare Alam was not identified by PW 4. PW 4 has not said anything about the involvement of co-appellant Sumit Kumar in the commission of crime.

PW 5 is a police constable, who was a signatory to the recovery memo of recovery of incriminating articles from accused Rihana Parveen, Nasir @ Sanjay Dutt and Kasim.

PW 6 stated that he deals in sale and purchase of old vehicles. On 7.10.2001, he sold vehicle No. DL 1CC/4673 to one Sumit Shukla for Rs. 1,10,000/-. In the cross-examination, PW 6 admitted that he was not the registered owner of the said vehicle. Sunny Bajaj was the owner of the said vehicle which vehicle was sold to Sumit Shukla.

PW 7 stated that in the intervening night when the incident took place, he saw a white car standing at some distance from his house. The same car was recovered by the police on 6.7.2000.

PW 8 stated that on 3.7.2002, Afsar, Sumit and some other persons came to his hotel, dined together and went away.

PW 9 was posted at police station, Kalagarh on 4.7.2002 and proved chik FIR (Ext. Ka-8). PW 9 was the Investigating Officer of the case, who inspected the scene of crime, prepared site plan (Ext. Ka-10) and recorded the statements of the witnesses.

Subsequent investigation was transferred to Inspector Munawwar Hussain (not examined). In this way, the earlier part of investigating was conducted by PW 9 and thereafter by Inspector Munawwar Hussain.

The evidence on record reveals that neither Bhare Alam nor Sumit Kumar was put to TIP by the Investigating Officer. Recovery memo dated 6.7.2002 also reveals that PW 1 did not say anything about the involvement of Sumit Kumar. PW 2, in his cross-examination, has admitted, in unequivocal terms, that he did not identify Bhare Alam (Bhare Alam was since not put to TIP). PW 2 also admitted that Bhare Alam did not make any plan of dacoity in his presence. PW 3 stated that he overheard Bhare Alam making a plan to commit dacoity from a distance of 3-4 meters, which evidence can hardly be said to be a clinching evidence about the involvement of Bhare Alam. So far as the evidence of PW 4 is concerned, it is in the form of extra judicial confession, which is a very weak type of evidence. The conviction cannot sustain on the basis of extra judicial confession alone. No plausible reason was given by the prosecution as to why Bhare Alam and Sumit Kumar were not put to TIP. In the recovery memo dated 6.7.2002, it was specifically mentioned that PW 1 and PW 2, who came on the spot, stated that all the four accused persons but for Sumit Kumar were involved in the commission of dacoity. Only a sum of Rs. 680/- was allegedly recovered from the possession of Sumit Kumar which can hardly be an evidence of commission of dacoity against him, inasmuch as such currency notes were not identifiable and this is not such a huge amount that one can draw an inference that such money was obtained out of the proceeds of dacoity. It has already been indicated above that the other co-accused persons confessed their guilt and were accordingly convicted and sentenced by the Trial Court. PW 1 and PW 2, although supported the prosecution story, but it cannot be inferred on the basis of testimonies of these two witnesses that either Sumit Kumar or Bhare Alam conspired to commit dacoity or committed dacoity. PW 3 named Bhare Alam only on the basis of alleged whispering which he overheard from a distance of 3-4 meters. Further, PW 3 categorically stated in his examination-in-chief that neither the dacoity was committed in his presence nor the recovered articles were seen by him at police station Kalagarh. Extra judicial confession made to PW 4 does not lend assurance to the prosecution story. Even if it be conceded for the sake of arguments that somebody sold the car, which was used in the commission of crime to Sumit Kumar, the same does not prove, beyond a shadow of reasonable doubt, that Sumit Kumar was also involved in the dacoity. Moreover, the evidence of those witnesses, who stated that they saw the car owned by Sumit Kumar in their vicinity suffers from many a lacunae and, therefore, no reliance can be placed on the evidence of those witnesses (either of transferring the car to Sumit Kumar or having seen the car owned by him in the vicinity of the place of incident).

The Trial Court has, therefore, erred in holding accused-appellant Bhare Alam and Sumit Kumar guilty of the charges framed against them. Since the prosecution has not been able to prove the case against the accused-appellants Bhare Alam and Sumit Kumar beyond a shadow of reasonable doubt, therefore, interference is required in the impugned judgment and order.

All the criminal appeals are, therefore, allowed. The conviction and sentence awarded to the appellants Bhare Alam and Sumit Kumar by the Court below is hereby set aside. They are acquitted of the charges levelled against them by giving them benefit of doubt. Appellants are on bail. Their bail bonds are cancelled and sureties stand discharged. They need not surrender. Let a copy of this judgment alongwith the Lower Court records be sent to the Court below for compliance.