Maqbool Baz and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Mr. Atul Verma and Mr. Anil Kumar Awasthi, learned counsel for the appellants, and Mr. Umesh Verma, learned AGA for the State, were heard at length.

Since both these criminal appeals arise out of a common judgment hence the same are being disposed of together.

Under challenge in the aforesaid appeals is the judgment and order dated 30.10.2013 passed by Additional District and Sessions Judge, Court No. 8, Lucknow, in Sessions Trial No. 367 of 2012 arising out of Case Crime No. 498 of 2011, which was tried along with Sessions Trial No. 368 of 2012 arising out of case Crime No. 697 of 2011 and Sessions Trial No. 369 of 2012 arising out of case Crime No. 641 of 2011, Police Station GRP Charbagh, Lucknow, whereby the present appellants and one Happu @ Appu Banjara were convicted and sentenced as under:--

"(a) Under Section 394/34 IPC - Imprisonment for life and fine of Rs. 25,000/- each with default stipulation of one year''s additional simple imprisonment.

(b) Under Section 411 IPC - Two years'' rigorous imprisonment.

(c) The other accused Happu @ Appu Banjara was also convicted under Section 3/25 of the Arms Act and was sentenced with three years'' rigorous imprisonment and also with fine of Rs. 5,000/- with default stipulation of three months'' additional simple imprisonment.

(d) Appellant Kallu Banjara was convicted for the offence under Section 403 IPC and was sentenced with one year''s rigorous imprisonment and for the offence under Section 411 IPC, he was further sentenced with two years'' rigorous imprisonment.

All the sentences were directed to run concurrently."

Vide order dated 14.03.2016, we had called for a report whether co-accused Happu @ Appu Banjara has preferred any appeal or not. In compliance of our order, the office has reported that no criminal appeal has been preferred by co-accused Happu @ Appu Banjara. Hence, we proceeded with the instant appeals. These appeals were listed for hearing on bail applications but with the consent of learned counsel for the parties, we proceeded to hear the appeals on merits.

In brief, the case of the prosecution was that the complainant Mathura Prasad lodged a first information report at police station GRP Charbagh on 13.07.2011 at 08.30 AM alleging therein that his son Krishna Kumar Gautam was working in Northern Railway on the post of Head TTE. On 12.07.2011 in the night, he boarded Farrukhabad-Lucknow passenger at "Kanpur Pul Baya Kinara" station. When this train reached Harauni Station then three miscreants aged about 50 years, 35 years and 25 years boarded the train and demanded the mobile of his son which he was holding in his hand. When he denied to give the same then he was threatened that he shall be shot. So his son asked them that he will handover the mobile after removing the SIM. In the meantime, one of the miscreants fired with his country made pistol on his son and after snatching his mobile Nokia model 5233 and Mobile SIM No. 9936238711, they alighted at next railway station Piparsand. The son of the complainant gave information of this incident with some other mobile to his other colleagues in the Northern Railway who took him to Railway Hospital wherefrom he was referred to Trauma Centre. When the complainant got the information of this incident then he came to Trauma Centre and the incident was narrated to him by his son. Accordingly he lodged the first information report.

On the basis of this information, the case was registered and the investigation proceeded. Injured Krishna Kumar Gautam was medically examined in casualty department of Northern Railway Divisional Hospital, Lucknow, and as per medical examination report, following injuries were found on his person:--

"(a) Lacerated wound on right shoulder about 2 cm x 1 cm with tenderness and swelling over right humerus with painful movements.

(b) Lacerated wound on chin about 5 cm x 0.5 cm.

(c) Lacerated wound about 1 cm x 1 cm on lateral aspect of right arm about 7 cm distal to acronion process."

Patient was referred to Trauma Centre CSSMU, Lucknow, after primary management for further treatment.

During course of investigation on 01.09.2011 the police arrested appellants Maqbool Baz and Kallu Banjara. From the possession of appellants, some narcotic drug and mobiles were also recovered. At the time of recovery the injured also reached there and he identified the recovered mobile as his mobile. On 23.11.2011 accused Happu @ Appu Banjara was arrested and from his possession a country made pistol, which was the weapon of offence, was recovered. A separate case under Section 3/25/27 of the Arms Act was registered against accused Happu @ Appu Banjara which was also tried along with the main offence.

After completing the investigation, charge sheet was filed.

The defence of the appellants was of total denial and their false implication at the hands of the police simply to show good work.

In order to prove its case, the prosecution has examined PW-1 SI Ramendra Kumar Singh - a witness of arrest and recovery of mobile from the possession of appellants, PW-2 Mathura Prasad - the complainant of this case who has proved the first information report. PW-3 is Krishna Kumar Gautam - an injured witness of this case who has supported the incident but has not named any person. He has also stated about recovery dated 01.09.2011. PW-4 is Dr. Urmi Sarkar, who has medically examined injured Krishna Kumar Gautam. PW-5 is Inspector Kshitiz Tripathi, who has arrested accused Happu @ Appu Banjara and recovered country made pistol from his possession. He is also a witness of recovery dated 01.09.2011. PW-6 is Head Constable Bhual Yadav, who has proved the chik report and GD of this case. PW-7 SI Pramod Kumar Singh is Investigating Officer of this case. PW-8 SI Narendra Sahi is the initial Investigating Officer of this case. PW-9 SI Vijay Sen Singh is the Investigating Officer of the case under Section 25 of the Arms Act and PW-10 is Constable Shiv Singh, who has proved the chik report and GD of the case under Section 394 IPC.

In defence, D.W. -1 Rajesh Patel was examined who has stated that the police had arrested appellant Maqbool Baz from the shop of motorcycle at about 09-10 AM. At that time he was present on the shop of motorcycle. He was getting his motorcycle repaired. By that time, the police had come on a private four wheeler vehicle. D.W. -2 Harish Chandra has also given similar statement.

After appreciating the evidence on record, learned trial court has convicted the appellants, as above, hence, the instant criminal appeal.

Submission of learned counsel for the appellants was that in the instant case virtually there was no evidence regarding the offence under Section 394 IPC. So far as the recovery dated 01.09.2011 is concerned, that is after delay of fifty days and the presence of injured Krishna Kumar Gautam at that point of time was so much unnatural that the same cannot be believed. But the learned trial court has not considered this aspect in correct perspective which has rendered its judgment unsustainable under law.

Learned AGA has argued that learned trial court, by a well reasoned judgment, has rightly convicted the appellants. The judgment of the learned trial court needs no interference by this Court.

In the instant case, we have perused the evidence on record. The only evidence regarding the incident which had taken place in the train was of PW-3 Krishna Kumar Gautam. Admittedly the miscreants were unknown to him. Their identity was not disclosed. They were not put to any test identification parade. He has stated that the persons who were arrested by the police were the same who had committed this offence. There is no other evidence to connect the appellants with the offence of loot except the said recovery. PW-3 has stated that the name of third accused Happu @ Appu Banjara was disclosed by two accused persons. It is really strange to note that the prosecution has made no efforts to get the identity of the appellants verified by this witness in court during trial that these are the persons who have committed this offence and fired at him. Therefore the only evidence to connect the appellants with this offence is the evidence of recovery. On the point of recovery submission of learned counsel for the appellants was that the presence of PW-3 Krishna Kumar Gautam was full of coincidences and the same does not inspire confidence. He has stated that at the time of recovery, he was going on bus. He boarded the bus from Alambagh bus stand at about 10.30 AM and bus started at about 10.45 AM. He asked the driver to stop the bus to drink water. When the bus stopped then in between 11.30 and 11.45 AM, he alighted from the bus and heard about the arrest of the accused persons. Thereafter he immediately went towards station which was at a distance of 1 1/2 kilometers. On the station 4-5 police personnel were present who were in dress. By the time he reached there, the police had arrested the appellants. The search of the appellants was not taken in his presence. He stopped there for 5-7 minutes and recognized the appellants there. Thereafter he came. So the recovery which is alleged to have been made on 01.09.2011 was made at the railway station Harauni where the police party got the information from a secret informer that the accused persons are sitting on the eastern corner near the board of station. Admittedly the arrest of the appellants and the recovery from their possession was not made in the presence of PW-3. We find substance in the submission of learned counsel for the appellants that the presence of PW-3 at the place of recovery was full of coincidences. The recovery is alleged to have been made on the railway station. His submission is that there was no train at the time of alleged recovery so PW-3 has come with an explanation that he was coming from bus and he got the bus stopped to drink water and left the bus at that place because he got the information that some miscreants have been arrested by the police. Thereafter he went to the railway station after covering a distance of 1 1/2 kilometers where he recognized the appellants. Thus, we find that the presence of PW-3 at that time was highly improbable. All these facts create serious doubt regarding the recovery from the possession of the appellants. It was highly unnatural that the appellant would have left the bus only on getting the information that some persons have been arrested because he has not stated that he got the information about arrest of the accused persons of this incident.

In view of discussions made above, we are of the considered view that these appeals deserve to be allowed and are hereby allowed. Appellants are acquitted of all the charges levelled against them. They are in custody. They shall be released forthwith if not wanted in any other case.

Though accused Happu @ Appu Banjara has not preferred any appeal against his conviction but we found the case under Section 394/34 and 411 IPC to be doubtful therefore the benefit of this judgment shall also be extended to appellant Happu @ Appu Banjara who shall be acquitted for the offence under Section 394/34 and 411 IPC.

Office is directed to communicate this order forthwith to the court concerned and also to send back the lower court record to ensure compliance.