Mool Chandra and Others vs State of U.P.

Shiv Shanker, J.—This criminal appeal has been preferred against the impugned judgment and order dated 4.8.1981 passed in Sessions Trial No. 545 of 1977 by Sri Sanwal Singh, the then I Vth Additional Sessions Judge, Etah convicting and sentencing Appellants Mool Chandra, Satish Chandra, Mukesh and Ram Khilari for six years'' rigorous imprisonment each.

The prosecution case, in brief, as per the first information report, was that on 24.8.1976 at 7.00 a.m., Kali Charan complainant, lodged the written first information report alleging that his house Govind Bhawan was situated near Varshney School, wherein he was living with his family. In the relevant night, after the rain fall, at about 2.00 a.m., seven miscreants infiltrated by scaling the eastern wall and coming in through the stair-case. The panels of the door of the stair-case could not be closed due to moisture and rains. The miscreants entered the house and opened the eastern door. Some of the miscreants had wrapped dhatas on their faces. The miscreants abused the inmates of the house and said that you were harbouring the criminals on their demand when they threatened to murder the wife and the son of the complainant, the keys were made over to them. Thereafter they looted and committed dacoity for half an hours in the light of the torches flashed by them and took charge of the utensils and clothes kept in the boxes and after bundling them up took them away. Shashi Kant son of complainant, was ill and, therefore, a lantern was kept burning and the dacoits were also flashing torches while taking search of the house. They heaped the looted articles in the verandah. During all these activities, the dhatas of those dacoits, who had taken the said precaution, were unfurled and, as such, in the light of the lantern and torches, the complainant and Ors. fully saw the faces and collected the feature of the dacoits. The complainant, Smt. Kiran Devi, wife of the complainant and Sharad Kumari, his daughter, were nominated in the first information report as witnesses and the long lists of articles were given which have been looted away. The case was registered at the concerned police station. It is also alleged that before the investigation started, a supplementary list (Ext. Ka-2) of the looted articles was given. The investigation was conducted and the Investigating Officer prepared the site plan of the spot.

On 24.8.1976, at about 10.30. p.m., the Investigating Officer arrested accused Mool Chandra and Satish Chandra and one Suresh near the bus station at Etah. It was claimed that from a jhola, possessed by Mool Chandra, a sari was recovered, which was stolen property of the alleged incident and Anr. sari was recovered from the possession of Suresh, which were kept under sealed cover and the said accused were brought to the police station with due precautions and ultimately were sent to jail. Other accused were sent to jail subsequently baparda and it is said that they were subjected to test identification proceedings by the witnesses on 22.2.1997 wherein they were correctly identified by comfortable number of witnesses. It was also said that the saris, recovered from accused Mool Chandra and Suresh, were during the test identification proceedings, correctly identified by the witnesses. Suresh was said to have died. In the usual course, the accused were charge-sheeted on the basis of the said identification evidence before the learned Magistrate.

After commitment of the case by the learned Magistrate to the Court of Sessions, all the accused-Appellants were charged u/s 395, I.P.C. Accused-Appellant Mool Chandra was also charged u/s 412, I.P.C. The accused pleaded not guilty to the charge and claimed to be tried.

The accused persons in their statements recorded u/s 313, Cr. P.C., reiterated their innocence and submitted that they did not commit the dacoity. It was also stated by them that they were the victims of police atrocities and enmity. Accused Mukesh had stated that he had a case against the Investigating Officer Kalbey Ali u/s 332, I.P.C. and, as such, he was fictitiously sent up. It was also said by him that the witnesses knew him from before and he used to come with Shashi Kant and was known to all the witnesses. He also added that the hotel of his uncle was there near the residence of the complainant and field was also situated nearby. The defence of accused Satish Chandra was that he had studied in Gandhi Smark School and was having tuition from complainant Master Kali Charan whom he could not pay the tuition fee for the last month and, as such, the complainant falsely roped him in this case. Accused Ram Khilari stated that the complainant had a she-buffalo and he had his field nearby. She-buffalo of the complainant damaged his crop due to which some altercation had ensured between the parties and ultimately he was falsely implicated. It was also stated by him that the witnesses from before knew him.

The prosecution in all examined twelve witnesses and has produced and proved Exts. Ka-1 to Ka-11 and material Exts. 1 to 4. On behalf of defence, four witnesses have been examined. In addition, Exts. Kha-1 to Kha-7 has been produced.

P.W. 1 Kali Charan Upadhyay is complainant of the case. He narrated the factum of dacoity. He is also a witness of fact and of identification. P.W. 2 Smt. Kiran Devi and P.W. 3 Sharad Kumari are the witnesses of fact and of identification. P.W. 4 Virendra Singh Sengar, Sub-Inspector conducted the part of the investigation. P.W. 5 Radha Krishna Sharma is the clerk constable. P.W. 6 Roshan Lal was on duty at the police station on 25.8.1976 in the night from 3.00 to 6.00 a.m. and the accused were in the lock-up with precaution and nobody was permitted to see them. P.W. 7 Hira Lal also proved that in the night on 24.8.1976 from 1.00 a.m to 3.00 a.m. he was on pahra duty and the accused were not permitted to be seen by any person and were in the lock up baparda. Similar is the case of Hardeo Singh P.W. 8. P.W. 9 Sonpal is the witness of arrest and recovery. P.W. 10 S.I. Kalbey Ali was the next Investigating Officer. P.W. 11 was Sri R. P. Tyagi, the then learned Magistrate conducted the test identification of the articles. P.W. 12 Sri B. M. Singh was the Magistrate who conducted the test identification proceedings of the accused.

The defence witnesses are D.W. 1 Suresh Chandra Jain, D.W. 2 Suresh Babu Saxena, D.W. 3 Laxmi Narain and D.W. 4 Brijendra Singh Chandwariya.

The learned trial court, after considering the evidence on record, hold that the charge framed against the accused persons are proved by disbelieving the defence evidence and as such convicted and sentenced the accused-Appellants u/s 395, I.P.C., as mentioned above. The court below has further opined that since Mool Chandra having been convicted u/s 395, I.P.C., despite of recovery of stolen property, he is not convicted on the alternative charge u/s 412, I.P.C.

Feeling aggrieved by the aforesaid judgment and order, this appeal has been preferred in this Court.

During the pendency of this appeal, accused-Appellant No. 1 Mool Chandra and accused-Appellant No. 3 Mukesh had died. Therefore, the appeal stands abated against the above two Appellants. Now, there are only two Appellants Satish Chandra and Ram Khilari.

Heard learned Counsel for the Appellants and learned A.G.A. and perused the whole records.

Learned Counsel appearing on behalf of the Appellants has vehemently urged that the Appellants were not named in the first information report lodged by the complainant Kali Charan Upadhyaya and, as such, their case depends upon the test identification which was held after six months ; that though the accused were not made baparda after their arrest and were put up in the lock up of the concerned police station in the same condition, they were also not sent to jail in baparda conditions as mentioned in the last parcha of the case diary. Therefore, the evidence of identification is not reliable and the accused-Appellants are liable to be acquitted of the charges. The learned trial court has committed error in convicting and sentencing the Appellants.

On the other hand, learned A.G.A. has submitted that the accused-Appellants have rightly been convicted and sentenced by the learned trial court and there is no error in the impugned judgment and order and thus the same is liable to be maintained.

It is not disputed that a dacoity was committed in the house of complainant Kali Charan Upadhyaya (P.W. 1) on the night in question. The question which was cropped out for consideration whether the present accused-Appellant have been participated in the commission of dacoity or not. None of the accused-Appellants was arrested on the spot. Even they were not named in the first information report lodged by the complainant. Therefore, their case rests upon the identification parade.

The identification parade for Appellants Ram Khilari and Satish was held on 22.2.1977, wherein three witnesses, namely, P.W. 1 Kali Charan, P.W. 2 Smt. Kiran Devi wife of Kali Charan and P.W. 3 Sharad Kumari, daughter of Kali Charan, were produced to identify them. Appellant Ram Khilari was identified by two above witnesses amongst the three witnesses while Appellant Satish Chandra was identified by all the above three witnesses.

This alleged incident had taken place in the mid-night of 23/24.8.1976 while the identification parade was held on 22.2.1977. Therefore, both the Appellants were identified in the test identification parade after about six months of the alleged incident. The features of the miscreants, whether they are young or old or tall and small, had not been mentioned in the first information report. None of the witnesses have also stated about the features of the miscreants. The miscreants were seen at the time of the alleged incident in the light of lantern but the said lentern was not produced in evidence by the prosecution. According to the statements of P. Ws. 1 to 3, i.e., Kali Charan, Smt. Kiran Devi and Sharad Kumari respectively, the hanging of the lantern at the time of incident is also suspicious as no mark of burning was found in the wall to which it was hanging. When the hanging of the lantern at the time of incident is suspicious, in such circumstances, the miscreants could not be seen at the place of incident and the miscreants could not also be identified after six months of the incident in the test identification parade.

It is worthwhile to mention here that accused-Appellant Satish was arrested by the police after the alleged incident. However, nothing was recovered from his possession at the time of his arrest, according to the prosecution version. The fard baramdagi was prepared at the time of his arrest but the fard baramdagi (Ext. Ka-6) does not reveal that Appellant Satish Chandra was also kept baparda from the place of his arrest to the concerned police station where he was kept in the lock up. No sufficient explanation has been given on behalf of the prosecution in the statement of any of the prosecution witnesses why he was not kept baparda during that time. It is important to note here that Appellant Satish Chandra was sent to jail from the concerned police station next day of his arrest. No evidence has been adduced on behalf of the prosecution that he was kept baparda from the concerned police station to concerned court and from concerned court to concerned jail where he was confined. In this regard, such constables, who had taken Satish Chandra Appellant to jail, after proceeding before the concerned court, should have been examined who could prove this fact that Appellant Satish Chandra was kept baparda from the concerned police station to concerned court and from there to concerned district jail. Therefore, this possibility cannot be ruled out that during that period when the Appellant Satish Chandra was not kept baparda from the place of his arrest to the concerned police station and from concerned police station to concerned court and from there to concerned jail was seen by the witnesses and on that basis he was identified in the test identification by the prosecution witnesses.

Similarly, accused-Appellant Ram Khilari was sent to jail in the case after his surrender. There is no evidence on record that he was also sent to jail after his surrender baparda. Similarly, this possibility cannot be also ruled out that he was seen by the witnesses in between the way from the concerned court to concerned district jail.

In view of the above discussion, the identification by P.W. 1 Kali Charan, P.W. 2 Smt. Kiran Devi and P.W. 3 Sharad Kumari of both the Appellants had become suspicious and even then, both the Appellants have been convicted by the trial court on the basis of the testimonies of the prosecution witnesses while they were not named in the first information report and no looted property was recovered from their possession and the identity of both the Appellants is also suspicious at the time of alleged incident. Therefore, the court below has committed error and illegality in convicting the Appellants for the charges levelled against each of them. Thus, the impugned judgment and order of convicting and sentencing the Appellants does not sustain in the eye of law and as such, the same is liable to be set aside.

In the result, the appeal as against Appellants Satish Chandra and Ram Khilari succeeds and is allowed. The impugned judgment and order passed by the trial court is set aside in so far as it relates to Appellants Satish Chandra and Ram Khilari. They are acquitted of the charges levelled against them. They are on bail. They need no surrender. Their bail bond are cancelled and the sureties are discharged.

The appeal against Appellants Mool Chandra and Mukesh is stand dismissed as abated due to their deaths during the pendency of the appeal in this Court, as mentioned above.