Jagannath vs State

S.K. Agarwal, J.—The Appellants Ram Singh and Jagannath were convicted u/s 395, Indian Penal Code and were visited with the sentence of R.I. for a term of six years u/s 395, Indian Penal Code

The short resume of the facts of the case are that a dacoity was committed in the house of one Ram Lakhan, resident of village Paigam-barpur, P.S. Gosaiganj, district Lucknow on 18.2.1979 at 7.30 p.m. The dacoits were 7-8 in number and were armed with deadly weapons including fire-arms. An alarm raised by the family members and the victim attracted several villagers to the spot. Those who arrived at the scene of occurrence included Ram Prasad, Moti Lal, Mewa Lal, Tillu and Mulhe. The witnesses were also holding lathis and torches. The inmates were assaulted by dacoits during commission of dacoity. The household articles and jewelleries belonging to the ladies were looted. A double barrel gun bearing No. 3345 was also taken away in the dacoity. Inside the house, a lantern was burning. The inmates identified the miscreants in the light of this lantern. The robbery continued for about half an hour, till the miscreants withdrew from the place of occurrence with the booty. In order to make their escape easy from the spot they had also resorted to firing. It is alleged in the F.I.R. that they were covering their faces with a piece of cloth. The cover of one dacoit had fallen. He was recognised as Siddiqui. The report of the incident was made at the above said police station on the same night at about 11.40 p.m. A case was registered on its basis at the police station. During investigation various formalities including preparation of furd of lantern (Ext. Ka-2) and memo of torches recovered from Mulhe, Ram Prasad and Mewa Lal was made. The arrested accused persons were subjected to test identification in jail. The identification memo is Ext. Ka-4. Appellant Jagannath was identified by Ram Lakhan and Asarfi Lal correctly. Ram Singh was identified by Ram Lakhan, Tillu correctly, Ext. Ka-10 is extract of G.D. No. 17, which shows that the Appellant Ram Singh was kept baparda. A charge-sheet after conclusion of the investigation was submitted u/s 395, Indian Penal Code Initially in the trial along with these Appellants Siddiqui and Munni were also tried. Both of them were acquitted by the trial court finding the statement of witnesses not trustworthy regarding them. These two Appellants denied the prosecution charges about their participation in the incident.

Learned Counsel for the Appellant urged that the conviction of these Appellants could not be sustained because there is no link evidence produced to establish that these Appellants were kept baparda and were not shown. The complicity of these Appellants came to light resulting into their arrest and prosecution. No identification memo has been brought on record. What has been brought on record is the copy of the G.D. entries regarding identification made in the case. Such evidence cannot be accepted as substantive. Accordingly learned Counsel for the Appellants submitted that unless the loss of original identification memo is proved secondary evidence cannot be taken. No such averment having been made by the prosecution witnesses in the case the extract from the case diary cannot be taken as memo of identification and it cannot be read against the Appellants.

Appellant Ram Singh was arrested on 6.8.1979 and Jagannath too arrested on the same day. Appellant Jagannath has come with a plea that he was shown to the witnesses on three occasions at the police station. He has also stated that his face was never kept under any cover while transmitting him from the police station to jail. He has further stated that he had filed a complaint against Sub-Inspector J. N. Tewari who was instrumental in his false implication in this case. Appellant Ram Singh has stated that he was not allowed to protect himself from being identified by the witnesses while taken by the police from the police station. He was put under pressure by the police to give false evidence. On his refusal to oblige them he was falsely involved in the present case. It has already been pointed out earlier that Appellant Jagannath was correctly identified by the witness Ram Lakhan and Asarfi Lal. Appellant Ram Singh was also correctly identified by Ram Lakhan and Tillu without any mistake.

The prosecution in support of its case has examined P.W. 1 Ram Lakhan, P.W. 2 Asarfi Lal, P.W. 3 Ram Prasad and P.W. 4 Tillu as eye-witnesses of identification. P.W. 5 Indraj Singh Chauhan was Station Officer, P.S., Gosaiganj, district Lucknow at the relevant time. He had taken up the investigation of this case from T. R. Singh, S.I. on 20.2.1979 and arrested the Appellants on 6.8.1979 and lodged them in the locker. P.W. 6 Barjor Singh is S.I. and was posted on 3.8.1979 as S.O. Gosaiganj. He has completed investigation and submitted the charge-sheet. Initially two Appellants were arrested by the police of P.S. Chinhat. P.W. 6 had received a message while he was at Lucknow to this effect. On the same day he went there and had recorded their statements while the Appellants were in the lock up of police station Chinhat. They were subjected to identification on 24.9.1979. It is admitted by the prosecution that the original identification memo is not on record. He has also proved the handwriting of Indraj Singh on Ext. 6. He has also proved the charge-sheet submitted by Barjor Singh P.W. 6. P.W. 7 is constable Mangal Singh at the above said police station. He has proved the writing of constable Om Prakash Singh. He has also proved the writing of that person who prepared the copy of the identification memo which has been brought on record as Ext. Ka-7. It is a copy of the entry made in the C.D. by the Investigating Officer. P.W. 8 Ram Dev Verma was posted at the relevant time at the outpost, High Court, Lucknow. This outpost is connected with police station Wazirganj, Lucknow. He has proved the relevant entries with regard to G.D. of police station Chinhat regarding these Appellants. He has proved that Jagannath was brought baparda from Chinhat. He had further stated that Jagannath was taken to the Court by constable Sobh Nath Mishra in baparda condition. From there he was remanded to jail custody and lodged there in the same condition. He has proved the relevant extract of G.D. of 7.8.1979, which is Ext. Ka-10. This is the entire evidence produced against these two Appellants in this case.

Coming to the first argument of the learned Counsel it appears that there is no proper link evidence available on record against these Appellants that they were lodged in jail baparda after being taken out from Chinhat police station. In this connection the evidence available is that Ram Dev Verma P.W. 8 had visited at the relevant time police station, Chinhat as constable clerk. It is strange that the trial court is accepting his evidence with regard to the fact that the Appellants and co-accused Munna were taken out from the lock up of the concerned police station by two constables Sobh Nath Mishra and Hari Narayan in a baparda condition and all along the time they were lodged in jail their faces remained covered. How can he state this fact when he had not accompanied the above said two constables that they were not shown to any body after being taken out from the police lock-up. Therefore, his evidence does not provide us with any substantive evidence with regard to the fact that these accused persons were kept baparda after they were taken out from the police lock up or they were not shown in the transmission process to any person. In the result his evidence is of no use to the prosecution and it cannot be held that these Appellants were kept baparda and not shown to any witnesses since none of the escort constables were examined.

P.W. 7 is the person who has proved the copy of identification memo which was prepared from the entries in the G.D. According to him this copy was prepared by Om Prakash whose hand writing he identified on the basis of his personal knowledge. This identification memo pertains to the Appellants Jagannath and Ram Singh and acquitted co-accused Munna, Sukhdeo and Gurudayal. The identification took place on 19.9.1979 in jail. This memo does not bear the signature of Om Prakash. He was unable to give out the reason why this memo did not contain his signature. The evidence of this witness P.W. 2 on the point of identification is completely of no use and is a waste paper. Loss of the original is not proved at all. No reliance can be placed upon his testimony regarding this memo.

P.W. 6, Barjor Singh, the first Investigating Officer has very clearly admitted that he came to know on telephone that three accused of the present incident are lodged in Chinhat lock-up. They are Jagannath, Ram Sagar and Ram Singh. He had gone to P.S. Chinhat on that very day and recorded their statements at police station Chinhat. He made a report for their identifications. He got conducted their identification on 19.9.1979 in jail. He received a copy of the identification memo on 24.9.1979. Copy of that original memo was brought on record. According to this memo Appellant Jagannath was identified by Ram Lakhan and Asarfi Lal correctly. Appellant Ram Singh was correctly identified by Ram Lakhan and Tillu. This memo was copied by him in the case diary. Copy of the same was brought on record which is Ext. Ka-4. He had admitted that entry in the case diary of this identification memo was not made by him on the basis of the original memo but was made on the basis of a memo sent to him. It was prepared by Court Moharrir. He has further admitted that the copy brought on record with regard to identification memo was not prepared by the Court Moharrir in his presence. There is no certificate of it being a true copy of the original but there is a note on this memo that it is a correct copy of the original. He had admitted that he did not know in what condition the Appellants were sent from the police station Chinhat and lodged in jail.

Now taking up the evidence of Indraj Singh, P.W. 5 on this point I find that he had arrested Appellant Jagannath on 6.8.1979 and interrogated him. Thereafter he had communicated the information to Station Officer, Gosaiganj. The Appellants were kept baparda in police station Chinhat all along. This witness was Station Officer, Chinhat at the time of arrest of this Appellant. He has admitted that before him J. N. Tewari, Sub-Inspector was Station Officer, Gosaiganj. He had stated that J. N. Tiwari never informed him that the Appellant Jagannath has filed any complaint against him in Court. The Appellant was arrested some five months after the incident in question. He was suggested that he had arrested Appellant Jagannath at the instance of J. N. Tiwari, Station Officer, Gosaiganj because he had filed a complaint in Court against him. This witness has not stated a word in his deposition in Court about the statement made by these Appellants. In the absence of such statements, how the complicity in this case was known to the police remained a mystery. Thus, nothing concrete can be had from the testimony of this witness as well. It may have been the evidence of P. Ws. 5, 6, 7 and 8 but in the absence of relevant papers to that effect, their oral evidence does not inspire confidence. This leaves no room for doubt that no proper link evidence has been produced by the prosecution regarding the factum of knowledge of the complicity of these Appellants as well as the fact that they were taken out baparda by two constables who had taken them out of the police lock up, Chinhat. Sobh Nath Mishra who had taken out these Appellants and lodged them in jail was not produced by the prosecution to establish this fact. The prosecution has strangely enough attempted to prove this fact through constable Ram Deo Verma, P.W. 8 who was constable clerk at the relevant time at police station, Chinhat. But his testimony, in my opinion, cannot be relied upon as any proof to this fact. It is a must in a case of dacoity to prove the link evidence to the hilt where identification is the basis of conviction of any accused. His being kept baparda till he is lodged in jail is basic feature in such cases.

This case which is solely based on identification requires proof of factum of knowledge of the complicity, date and time of their arrest, their lodging in the lock up. Most important of them is proof of the fact that they were kept baparda all along. The fact that they were brought after the arrest in a baparda condition and lodged in the lock-up in the same condition is an important aspect, it is to be proved by cogent evidence. The most important ingredient that they were taken out baparda and lodged in jail baparda has also not been proved. Proof of such circumstances cannot be furnished by a constable who had not discharged these obligations. The evidence of the identification cannot be accepted unless this burden was discharged properly by the prosecution. It is shocking that in the present case prosecution has miserably failed to bring evidence to prove these facts on the record. Curiously enough these Appellants were arrested in district Mirzapur by the S.I. police station, Chinhat. Even G.D. of this police station could have been easily proved by Indraj Singh P.W. 5. He could have easily deposed about the statement it is not proved. Secondly it does not bear any signature or any note from any responsible person that the copy filed in this case is the copy of the copy prepared by court moharrir from its original. In the absence of these facts the identification memo itself against these Appellants is inadmissible in evidence as reliable piece of evidence of identification against these Appellants.

These Appellants were correctly identified in Court also by three witnesses i.e., P.W. 1 Ram Lakhan, P.W. 4 Tillu and P.W. 2 Asarfi Lal. Admittedly P.W. 2 had identified Jagannath after several opportunities were provided to him. The words used is kai mauka dene ke bad ek dacoit ko jail me pahchan gaya tha. He had admitted that jail me ek dacoit ko pahchan gaya tha kai mauka dene ke bad gawah abhyukt Jagannath ka hath pakar kar kaha inhi ko jail me pahchan kar kaha 2-3 mahina samapt ho gaya dar lagta hai ki kahin galat na ho jaye jab tak itminan na ho jaye jhuth kaise bolun. He had further stated that he had several injuries and was examined at Gosaiganj. But no injury report of this witness was brought on record. He had gone to identify the Appellants. He had seen the Appellants only while they were running away. Therefore, his evidence is to be ignored. It was just a chance that after several opportunities he can pick him out but with some sense of uncertainty he did it.

So far as P.W. 3 Ram Prasad is concerned he has not identified any dacoit. He has also admitted that it was dark night. While the miscreants were going with the booty they had also opened fire. P.W. 3 had admitted that they had concealed themselves. P.W. 3 has stated that if he would have remained outside in open he may have also sustained injuries. P.W. 4 Tillu had identified Ram Singh. He further stated that he had stood at his house and raised an alarm from there. As long as miscreants had not fled he did not go near the looted house. In the circumstances identification of Appellant Ram Singh is hard to believe. Thus, against these two Appellants we are left with only identification by Ram Lakhan P.W. 1. This witness claims that as soon as his brother was assaulted he ran away from the house to a distance of about a field from that place. No one was there at that field nor he could have opportunity to identify the assailants. A lantern was burning inside the room. He claims that he was inside the room and was cutting fodder when the dacoits surrounded him. He admitted that he had not counted the dacoits. He had seen only five dacoits. He had clearly admitted that he ran along with the villagers who arrived at the scene of occurrence. Dacoits had already taken to their heels by then. According to him when the miscreants started assaulting his brother only then he could understand that they are dacoits. He was not able to locate that how many dacoits were at the scene of occurrence. He had also run away. Till he was there, he was searching for an opportunity to flee from there. He admitted that the cover of Siddiqui had fallen from his face and, therefore, he could identify him. He further admitted that his Sarhu is running a nautanki. He has further admitted that Siddiqui was working in the nautanki of his Sarhu. The rest of the allegation with regard to the false implication of Siddiqui at his Sarhu''s instance were denied by this witness. But from the tenor of his denial, it becomes apparent that he was telling a lie. He has stated that Asarfi Lal was cutting his fodder was not stated by this witness to Investigating Officer. In the circumstances I find it difficult to accept that the identification of these two Appellants by this witness also withstand test of scrutiny.

From the facts and circumstances and irresponsible manner in which the trial was conducted by the prosecution, no inference other than one that the Appellants were falsely involved in this offence on account of enmity with the Appellants is probable. None of these witnesses are reliable although the factum of dacoity may not be challenged. But mere fact that some dacoits ransacked the house of Ram Lakhan will not entitle his evidence to become trustworthy and credible. He admittedly ran away from the spot immediately seeing the assault on his brother. He was unable to tell the time of assault of his brother. In the result his testimony also does not inspire confidence.

In the light of the above discussions these appeals are bound to succeed.

These appeals are accordingly allowed. The conviction of these Appellants u/s 395, Indian Penal Code as recorded by learned IV Addl. Sessions Judge, Lucknow in S.T. No. 452 of 1980 is hereby set aside. The Appellants are acquitted. They are on bail. They need not surrender. Their bail bonds are cancjelled and sureties discharged.