Kandhai Lal and Others vs State of U.P.

This is an appeal filed against the judgment and order dated 15.9.1981 passed by the Additional District & Sessions Judge, Bareilly in Sessions Trial No. 16 of 1981 convicting all the five Appellants u/s 302 read with Section 149 IPC and sentencing them to undergo R.I. for life; as well as u/s 307 read with Section 149 IPC and sentencing them to undergo R.I. for seven (7) years. The Appellants Kandhai Lal, Nanhey Lal, Kallu and Pooran have been further convicted u/s 147 IPC and sentenced to one (1) year R.I. whereas the Appellant Munna has been convicted u/s 148 I.P.C. and sentenced to one (1) year R.I. All the Appellants have been found not guilty u/s 379 IPC and thus acquitted of the said charge.

During the pendency of this appeal, the Appellant No. 4 Kallu son of Hori had expired, which fact was confirmed vide report dated 5.11.2009 submitted by the Chief Judicial Magistrate, Bareilly. As such, by order dated 30.11.2009 it was directed that the appeal on behalf of the Appellant No. 4 Kallu stands abated. Thus this appeal survives only on behalf of Appellant Nos. 1, 2, 3 and 5, namely, Kandhai Lal, Nanhey Lal, Munna and Pooran.

The brief facts as per the prosecution story are that prior to the date of occurrence, the water pump which was bored in front of the Baithaka of the complainant (Sri Ram) was stolen. The next day Mansha Ram (uncle of the complainant), who was searching for the water pump, came to know that the same was being bored in the house of Pyare Lal, who is the father-in-law of Kandhai Lal (Appellant No. 1). On receiving such information Mansha Ram, uncle of the complainant, went to the house of Pyare lal and saw the stolen water pump which was being bored and on being asked, Pyare Lal told Mansha Ram that he would return the said water pump, on which assurance Mansha Ram came back to his house and told all details of the incident to the complainant Sri Ram and his father Ram Swaroop (deceased). Ram Swaroop thereafter called Nanhey Lal and Kandhai Lal as well as their father Narain Lal, who went to the house of Ram Swaroop, who scolded and abused the three persons because of which they were annoyed and threatened Ram Swaroop of dire consequences. On the date of the occurrence i.e. in the night of 18/19.2.1979 the complainant Sri Ram is said to be sleeping in his "Gonrra" along with his father Ram Swaroop and uncle Mansha Ram where a lantern was burning. It is alleged that the accused Kandhai Lal, Naney Lal and Munna came into the room of that "Gonrra" along with two more persons who were not known to the complainant but the complainant had seen them in the light of the lantern. It is alleged that accused Kandhai Lal and Naney Lal had lathis in their hands and accused Munna had a "Bhala" (spear) in his hand. The two others had "Tamancha" (country made pistol) with them. It is also alleged that as soon as accused Nanhey Lal, Kandhai Lal and Munna entered into the "Gonrra", they said to Ram Swaroop that he should get up as they had come to kill him and immediately started beating Ram Swaroop. Mansha Ram ran away from the house immediately and started making hue and cry outside the house. The complainant Sri Ram and his father Ram Swaroop were shouting from inside the house as they were being beaten with lathi and Ram Swaroop was also beaten with "Bhala". Hearing the shouts of the complainant and his father Ram Swaroop and uncle Mansha Ram, the witnesses Jamuna Prasad, Gaidan, Kishan Sahai reached the spot who had lathis and torches in their hands. They challenged the accused who, in turn, ran away from the place of occurrence. The complainant Sri Ram, along with his uncle Mansha Ram as well as Jhabbu Chaukidar and Jamuna Prasad took Ram Swaroop in a bullock cart to the police station but on way Ram Swaroop succumbed to his injuries. Thereafter they reached the police station with the dead body of Ram Swaroop and lodged the F.I.R.s at 4.05 p.m. on 19.2.1979. It is stated in the F.I.R. that since it was raining and the road was not good, there was delay in lodging the F.I.R. It was also stated that all the accused persons (Appellants) had been identified in the light of the lantern. The complainant Sri Ram was medically examined at the District Hospital, Bareilly and the post mortem of the deceased Ram Swaroop was conducted on 20.2.1979 at 3.00 p.m.

The accused persons were charged by the trial Judge under Sections 302/149 and 379 IPC. The accused Kandhai Lal, Nanhey Lal, Kallu and Pooran were charged u/s 147 IPC whereas accused Munna was charged u/s 148 IPC. They abjured the charges and claimed trial.

The prosecution produced two eye-witnesses, namely Sri Ram (P.W.1) and Mansha Ram (P.W.2). The other formal witnesses who had been examined by the prosecution were Sri Braj Mohan Lal Saxena, Special Executive Magistrate, Bareilly (P.W.3), S.I. Sri Munishwar Singh (P.W.4), Constable Ram Prakash (P.W.5), Head Moharrir Sri Kishan Sharma (P.W.6) and Sri Narendra Singh Divatiya, R.F.C., Agra.

We have heard Sri P.N. Misra, learned Counsel for the Appellants as well as Sri R.K. Singh, learned A.G.A. appearing on behalf of the State and have perused the record.

The fact of such an incident having taken place, as well as medical report and the post mortem report have not been challenged by the defence.

It is contended on behalf of the Appellants that although there are allegations of theft of woolen coat, wrist-watch and some cash but no recovery had been made from the Appellants and they have been acquitted of the charge u/s 379 IPC and that the F.I.R. which has been lodged is a typical stereo typed report of a dacoity case where the Appellants have been involved because of enmity and that there was no proper identification and the Appellants have been convicted merely on the basis of presumption. It is contended that the Appellants Kandhai Lal, Nanhey Lal and Munna, who were named in the F.I.R., are said to have covered their faces with veils and as such there was no question of the witnesses identifying them in the light of the lantern. It has also been submitted that the other two Appellants, namely Kallu and Pooran, who were not named in the F.I.R., were produced for test identification parade after a long delay and as such in view of the decision of the Apex Court in cases of Subash and Shiv Shanker v. State of U.P. (XXIV) 1987 ACC 507 and (1995) Supp. (4) SCC 448 (Shatrughana and Ors. v. State of Orissa) the identification could not have been relied upon. It has thus been urged that the Appellants have been wrongly roped in this case because of enmity and though the incident may have taken place but the Appellants have no role in the same. It has also been urged that there was delay in lodging the F.I.R. and the complainant had sufficient time to build up a story implicating the Appellants.

On the other hand, learned A.G.A. has submitted that it was because of enmity that the Appellants had killed Ram Swaroop as well as injured the complainant Sri Ram and that the Appellants were duly identified and has thus urged that the appeal deserves to be dismissed.

From the evidence of Sri Ram (P.W.1) and Mansha Ram (P.W.2) what can be inferred is that there is contradiction with regard to the placement of the lantern which is quite material and the learned Sessions Judge appears to have wrongly ignored the same treating it as a minor contradiction. The said witnesses could not even give the correct colour of the lantern besides there being contradiction as to where the said lantern was placed. Even otherwise the said witnesses do not deny that the three accused named in the F.I.R. had their faces covered. P.W. 1 Sri Ram has categorically stated that only the eyes of the three accused named in the F.I.R. could be seen. The other eye witness Mansha Ram P.W.2 has stated that their faces could also be seen. Thus, there is contradiction in such statements of the two eye witnesses. The said witnesses, however, stated that they had identified the voices of the three accused and hence they were named in the F.I.R. The F.I.R. itself speaks of enmity between the complainant and the accused. It is admitted that some untoward incident between the parties had taken place a few days prior to the incident. The F.I.R. was lodged in the evening at about 4.05 p.m. whereas the incident had taken place at around mid night. Though an explanation has been given in the F.I.R. itself that the delay was because of rains but it is improbable that two injured persons, one of them being so badly injured that on way to the police station he succumbed to the injuries, would be kept at home without any medical aid for such long hours. Even if it was raining, then too after the sun rise the complainant or any other witness, as has been mentioned in the F.I.R., could have lodged the F.I.R. at the earliest instead of waiting for the rain to stop and take Ram Swaroop (the deceased who was badly injured) to the police station in the later afternoon. The submission of the learned Counsel for the Appellants thus has force that the complainant had sufficient time to build up a case and come out with a story involving the accused-Appellants in the case, with whom admittedly there was enmity, as has been mentioned in the F.I.R. itself.

As regards the Appellant Nos. 4 and 5, namely, Kallu (who died during the pendency of this appeal) and Pooram, who were not named in the F.I.R., their test identification parade was admittedly held on 20.3.1979 and 21.6.1979 which was after an unreasonably long delay. The Apex Court in the case of Subhas and Shiv Shanker (supra) has held that where the identification parade was held three weeks after the arrest and no explanation had been offered for the delay in holding the test identification parade, there would be room for doubt as to whether the delay in holding the identification parade would be in order to enable the identifying witnesses to see him at the police lockup or in the jail premises and make a note of his features. It has also been held that over and above all these things there remains the fact that where a sufficiently long interval of time had elapsed between the date of occurrence when the witnesses had seen the accused for a few minutes and the date of the test identification parade, it would be difficult to accept that inspite of such long interval of time the witnesses were able to have a clear image of the accused in their minds and identify them correctly at the identification parade. In the case of Satrughana (supra) the Apex Court held that where the identification parade was held one and half long months after the occurrence in question and after the expiry of the maximum permissible period (15 days) for producing the arrested accused before the Court and there was no explanation for the delay, exclusive reliance could not be placed on such identification.

In the present case, admittedly there is unreasonable delay in holding the test identification parade without there being any explanation for the same. Though Constable Ram Prakash P.W.5 has stated that accused were kept in "Baparda" state throughout when they were sent to the Court or to the District Jail but the same would not be sufficient, as a doubt would always be created that either the accused persons had been shown to the witnesses while in transit or in lock-up where they were kept, or else how the witnesses were able to correctly identify the accused after such a long delay. Further, a case of theft had also been registered but no recovery was made and the charges of theft of woolen coat, wrist watch or money could not be proved against the Appellants, meaning thereby that to some extent some false charges had been framed and such story concocted, which also would create a doubt with regard to the correctness of the prosecution case.

In view of the aforesaid, we are of the firm opinion that the prosecution could not establish the case beyond all doubts against the Appellants and the trial court has wrongly convicted the Appellants for the charges framed against them.

Accordingly, this appeal stands allowed. The judgment and order dated 15.9.1981 is set aside. The accused-Appellant Nos. 1, 2, 3 and 5, namely, Kandhai Lal, Naney Lal, Muuna and Pooran are acquitted of the charges framed against them. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged.

As already stated above, vide order dated 30.11.2009 of this Court this appeal stood abated against accused-Appellant No. 4 Kallu on account of his death during the pendency of the appeal.