Lekhraj vs State of U.P.

Hon''ble Vinod Prasad, J.—The sole appellant Lekhraj s/o Pan Singh, r/o village Naugavan, P.S. Kasganj, district Etah has knocked the door of this Court u/s 374(2) Cr.P.C., by preferring instant appeal, being aggrieved by his conviction u/s 396 I.P.C. and impose sentence of seven years R.I. for that charge recorded by V Additional Session''s Judge, Aligarh vide impugned judgement and order dated 3.2.1982, passed in S.T.No. 88 of 1980, State versus Lekhraj and another, PS Gangiri, District Aligarh. By the impugned judgement trial Judge has acquitted another co accused Chandra Pal.

Stated briefly, prosecution allegations were that in the intervening night between 31st May 1979 and 1st June 1979, at about 12.30 a.m., in village Nagla Khaggu,10 or 11 dacoits committed dacoity in the house of informant P.W.2 Tota Ram armed with firearm, knife and blunt objects, when informant P.W.2 Tota Ram, his brother Munshi Lal, were sleeping outside their house and their sons Hari Singh P.W.3, Om Prakash P.W.5 and Soran P.W.4 were sleeping on the roof and Ashrafi, wife of informant, Veera Devi wife of Munshi Lal, both daughter-in-laws, wives of Om Prakash and Hari Singh were sleeping inside the house. During course of dacoity, women folk of the house were belaboured, who had shrieked on which house inmates and other villagers were awakened. Dacoits were in the attires of pant, shirts, trousers and dhoti. They had entered into the house from backyard staircase. A lantern was hanging in the covered courtyard (Agan), which facilitated identification of the dacoits. Terror striken Sri Devi, informant''s daughter, had opened the front door. Brother of informant, Munshi Lal, picking up a club, endeavour to enter into the house, on which he was shot at by the dacoits from inside the house causing him fatal injury on front of his chest resulting in his instantaneous death. Informant meanwhile, had put the heap of straw stacked in Tilak Singh''s precinct to fire, because of which flames sufficient for identification of dacoits illuminated the scene of the incident. Witnesses had identified the dacoits in the light of flames and torch, which was carried by Hari Singh,s/o informant. After committing dacoity, dacoits escaped from the spot. Amongst the dacoits informant and other inmates had identified three of them namely, Naubat, Kanchan Singh, Ramveer @ Deena. Rest of the dacoits could be identified, if produced before the witnesses. Informant Tota Ram P.W.2, got FIR Ext. Ka-2, scribed from Foran Singh and after covering a distance of four miles south, went to the police station Gangiri and lodged his FIR the same morning on 1.6.79 at 7.00 a.m. against those three named and rest unnamed dacoits.

Constable Clerk Om Prakash on the basis of Ext. Ka-2 prepared Chik FIR Ext.13 and GD entry Ext Ka-12. Investigation into the crime was commenced by Banwari Lal Gautam S.O. P.S. Gangiri P.W.7, who conducted spot inspection prepared site plan Ext.Ka-5.I.O. also conducted inquest on the cadaver of the deceased by preparing inquest report Ext. Ka-6. Burn ashes were collected by the I.O. vide Ext. Ka-7. In respect of lantern and torch, Ext. Ka-8 was prepared. On 1.6.79 acquitted accused Chandra Pal was arrested at 6.30 p.m. from the forest of village Chitarsi and from him, some looted articles were recovered regarding which a recovery memo was prepared but the same does not find place on the record of the trial court. Site plan regarding the arrest of said accused Chandra Pal is Ext. ka-9. On 26.6.79, appellant Lekhraj was arrested from Neem River Bridge at 3 p.m. and was put under veil. GD entry regarding arrest of these accused persons was exhibited as Ext. Ka-10 and Ka-12. These accused persons were dispatched to District Jail, Aligarh vide GD entry Ext. Ka-14 and Ka-15 dated4.6.79 at 8.30 a.m. and 27.6.79 at 7.30 a.m.respectively. Further investigation into the crime was conducted by S.O. Sher Singh P.W.6, who concluding the investigation had submitted two charge-sheets against both the accused Lekhraj and Chandra Pal, which were Ext. Ka-3 and Ka-4.

Postmortem on the corpse of the deceased was conducted by Dr. L.K. Shukla P.W. 1 on 2.6.1979 at 3 p.m. Autopsy report has been proved by P.W. 1,as Ext. Ka-1.Doctor had found postmortem staining present, mouth and eyes closed and rigor mortis passed off from the body. On the internal examination, doctor had noted that valves and peritoneum were lacerated and cavity contained blood, stomach and small intestines were empty and lacerated, gases and feacal matter were present in the large intestine. In the estimation of the doctor, cause of death was shock and haemorrhage. On external examination, doctor has noted following injury on the cadaver of the deceased:

Lacerated wound of gun shot on the left side abdomen. 4-1/2 below left nipple at 6 O'' clock position. Margin Black, Omentum coming out. Size 1"x1" cavity deep

Accused persons were summoned on the basis of aforementioned charge-sheets and finding their case triable by Session''s Court, it was committed and was registered as S.T. No.88/1980, State vs. Lekhrja and anther. Vth Additional Session''s Judge, Aligarh charged both the appellants u/s 396 IPC on 3.6.1980. Chandra Pal was separately charged on the same day for offence u/s 412 IPC.

Both the accused persons denied the charges, therefore, in an attempt to establish their guilt, their prosecution commenced during course of which, prosecution examine eight witnesses out of whom informant P.W.2 Tota Ram, P.W.3 Hari Singh, P.W.4 Soran, P.W.5 Om Prakash were the fact witnesses. Formal witnesses included P.W.1 Dr. L.K. Shukla, P.W.6 second I.O. S.I. Sher Singh, P.W.7 first I.O. Banwari Lal Gautam and P.W.8 Roop Singh.

Accused in their statements u/s 313 Cr.P.C. denied incriminating circumstances put to them and pleaded their false implication. In their defence they examined Lakhan as D.W.1.

Trial Judge, vide impugned judgement and order, acquitted accused Chandra Pal but convicted appellant for the charge u/s 396 IPC and sentenced him to seven years R.I., which conviction and sentence is under challenged in the instant appeal.

Smt. Sandhya Agarwal was appointed as Amicus Curiae to argue the appeal as nobody had appeared to argue appellant''s appeal.

I have heard Mrs. Sandhya Agarwal, learned Amicus Curiae for the appellant Lekhraj and Sri Patanjali Mishra as well as Sri Sangam Lal Kesharwani, learned AGAs for the State.

Castigating the impugned judgment of conviction and sentence, it is submitted that appellant was not named in the FIR, he was put up for identification but his identification memo was not got proved, no recovery was made from his possession and it is not known as to how and in what manner, complicity of the appellant was brought into the crime and, therefore, the impugned judgment of conviction is assailable and deserves to be set aside.

Learned AGAs for the State, however argued to the contrary and endeavoured to support the judgment.

I have considered the arguments raised by both the sides and have perused the evidences on record along with other material, which revealed that the prosecution witnesses during trial made a complete summersault. In the FIR Ext. Ka-2, three accused Naubat, Kanchan and Ramveer @ Deena were named as the dacoits with unknown persons. None of the three persons were named during trial by any of the fact witnesses. During investigation, complicity of these three persons were found to be false. In such a view, testimonies of all the fact witnesses erode in credibility and cannot be taken to be confidence inspiring and authentic statements. No reliance can be placed on such witnesses, who had endeavoured to implicate three persons by naming them in their FIR. Another reason, which is supplementary to the aforesaid view is that if three persons were nominated wrongly, whether there was sufficient light at the spot to identify rest of the accused persons or not and as to whether witnesses had sufficient opportunity to identify them? If the witnesses can wrongly identify three known persons, it is not convincing that they will be able to identify unknown persons. No specific weapon nor any role was assigned to the appellant. The dacoits were inside the house when they shot at the deceased who was standing outside.

It is further revealed from the perusal of the record that present appellant Lekhraj was identified by three witnesses PW 4, 5 & 6, who all were at the roof where there was no light. To facilitate identification it was developed by the prosecution that they were brought on the ground floor. But these witnesses failed to assign any overt act or weapon to the appellant. Informant could not identify the appellant nor the two ladies of the house namely Smt. Chanda and Smt. Asharfi. Out of four accused put up for identification PWs4,5& 6 could identify only two-appellant and Om Prakash and out of the two one has been acquitted, which has attained finalities and they failed to identify rest of the two. Prosecution story that unknown dacoits were not covering their faces to conceal their identities does not inspire any confidence. Further I am of the view that none of the prosecution witness had any opportunity to identify properly dacoits who were ten or more in number nor there was sufficient light for such an identification. It was because of this reason that three wrong persons were nominated in the FIR whose complicity were found to be false during investigation. Lantern was burning inside the house. P.W. 1 admittedly was outside the house whereas rest of the witnesses were on the roof. There would not have been sufficient light emanating from such a lantern to facilitate identification, when persons on the roof were also belabored and firing were also resorted to. Further, both the Investigating Officers were completely silent on the issued as to how and in what manner they came to know that Lekhraj was one of the dacoits. They have not uttered even one word on the said aspect of the matter. Once the prosecution had suppressed that evidence from the record, mere ipse dixit of the Investigating Officers regarding involvement of the appellant into the dacoity cannot be taken to be a gospel truth. It is neither reliable nor confidence inspiring. No implicit reliance, therefore, can be placed either on the fact witnesses or on the two Investigating Officers. Prosecution has left much to be desired in the present incident. It had suppressed many important facts from being brought on the record for analysis by the Court. It is also very bizarre and noted with concern, that trial Judge did not consider and took note of the fact that the prosecution case as was spelt out before it was never brought before the I.O. FIR was completely said to be good bye and in such a view, once the earliest version given by the prosecution was unconvincing and eschewed, subsequent depositions could not have been relied upon. Trial Judge acquitted another accused which has further diminished value of testimonies of prosecution witnesses.

Without further entering into other criticism, in my view, the aforesaid opinion is sufficient to set aside appellant''s conviction.

Appeal is allowed. Conviction of the appellant Lekhraj is hereby set aside. He is acquitted of the charge u/s 396 I.P.C. Appellant is on bail. He need not surrender. His bail and surety bonds are discharged.

A copy of this judgment be certified to the trial Judge for its intimation.