Rajveer,Dammo and Anr. vs State of U.P.

N. S. Gupta, J.—Accusedappellants Rajveer, Dammo and Roop Ram named above were convicted by Sri K.K. Sharma, the then IVth Additional Sessions Judge, Mathura vide his judgment and order dated 5980 under Section 395, I.P.C. and were sentenced to undergo R.I. for a period of five years each. Aggrieved of the said judgment and order they have come up in appeal before this Court.

Since both these appeals arose out of one and the same judgment, they are being disposed of by this judgment as follows.

The prosecution claimed that on the intervening night of 31179/1279, at about 12.30 a.m., an armed dacoity was committed at the house of Om Prakash, P.W. 1 in village Chandpur, police station Nauhil, district Mathura, in which cash clothes, gold and silver ornaments were looted away by the bandits. A lantern was burning inside the house of Om Prakash, P.W. 1 at the time of occurrence. Hearing the noise of commission of dacoity, villagers arrives at the spot who had torches in their hands. The heap of straw was burnt at two places by the villagers which created sufficient light at the spot and which enabled the villagers to see the faces of the bandits. The prosecution further claimed that an encounter between the villagers and dacoits had also taken place while dacoits were running after committing dacoity. In order to threaten the villagers the bandits had thrown away hand grenaded which was exploded and caused a number of injuries to the various villagers. The dacoits made good their escape. The prosecution maintained that one Kanchan son of Revti of village Chandpur was one of the bandits.

The First Information Report about this occurrence was lodged by Sri Om Prakash, P.W. 1 at police station Nauzhil on 1279 at 9.50 a.m.. The police station Nauzhil lay at a distance of about five miles from village Chandpur, the place of occurrence. The accused Kanchan (who has been since acquitted by the trial Judge himself) was named as an accused person in the F.I.R. No description about the facial expression etc. of any other bandits who were 78 more were mentioned in the F.I.R.

Investigation of the case was immediately taken up by S/Sri Nathu Singh Yadav, P.W. 11, who was then working as S.H.O. at police station Nauzhil. He immediately rushed to Nauzhil hospital and recorded statement of Om Prakash, P.W. 1, Virendra, P. W 6and Hukum Chand, P.W. 9 and other injured witnesses of the occurrence. He thereafter rushed to the scene of occurrence viz. village Chandpur at about 1.00 p.m. S.H.O. Sri Nathu Singh Yadav reached on Dharamshala of village Baroth where he saw two persons sitting in the Varandah of Dharamshala. One of whom was accusedappellant Dammo, who was arrested alongwith a ''Potli'' containing some looted clothes. His other associate Sukhi ran away from the spot. Dammo revealed the complicity of accusedappellant Rajveer and Roop Ram in the occurrence of this case. On the basis of the statement of the accusedappellant Dammo, the Investigating Officer, S.H.O. Nathu Singh Yadav arrested the accusedappellant Rajveer and Roop Ram from the Gher of Dharampal. All these three accusedappellants were immediately made Baparda and were sent to j ail.

Identification proceedings in respect of all these accused, appellants were conducted by Sri L.P. Gupta, P.W. 5, Special Executive Magistrate, Mathura on 27279, wherein Om Prakash, P.W. 1, Virendra, P.W. 6, Hukum Chand, P.W. 9 as also Mahendra had correctly identified the accusedappellants. After needful trial into the matter, the learned trial Judge acquitted the main named accused Kanchan. He also disbelieved recovery of looted clothes from the possession of accusedappellant Dammo and acquit to him under Section 412, I.P.C. However, placing reliance upon the identification evidence of the aforesaid witnesses the learned trial Judge convicted and sentenced the accusedappellants as aforesaid. Hence the appeal.

I have heard Sri P.N. Mishra, learned Sei ior Advocate and Sri S.V. Goswami, Advocate for accusedappellant Rajveer and Sri Brijesh Sahai, learned Counsel for accusedappellants Dammo and Roop Ram and Sri Jitendra Singh, learned Addl. Government Advocate for State; considered their contentions and has gone through the facts and circumstances of the case. The factum of dacoity in question was riot disputed before this Court by the learned Counsel for the appellants.

It was Whemently argued by the learned Counsel for the accused appellants that the accusedappellants were in fact not kept Baparda. They were shown by the police to the witnesses. The identification evidence of the three witnesses of fact relied upon by the learned Judge was a got up one and the learned Judge grossly erred in convicting the accusedappellants on the basis of the said evidence.

Sri P.N. Mishra learned Senior Advocate appearing on behalf of the accusedappellant Rajveer relying upon the preposition of law laid down by the Apex Court in Satrughana alias Satrughana Parida and others v. State of Orissa, 1995 Supp. (4) SCC 448, has vehemently argued before him that the identification parade of the accusedappellants was admittedly held after 27 days of the occurrence. It was argued that there was not a (sic) evidence on record to prove that the accusedappellants were brought Baparda after the first remand and were kept Baparda till the date of their identification. The learned appellant Counsel argued that it was for the prosecution to adduce cogent evidence before the trial Judge that right up from the date of arrest till the date of identification proceedings, the accusedappellants were kept Baparda. Since no explanation was forthcoming from the side of prosecution much less the evidence on record that the accused were kept Baparda after the first remand, the contention of the accusedappellants that they were shown by the police to the witnesses prior to the identification parade should be believed.

It is apparent from the record of the case that the witnesses of fact examined before the Court below viz. Om Prakash, P.W. 1, Virendra, P.W. 6 and Hukum Chand, P.W. 9 did not reveal either in their statement before the police or in the F.I.R. any special feature of the accusedappellants. It was, therefore, not possible for these witnesses to have laid hands upon the accusedappellants during the course of identification, but for the fact that they were shown by the police to the witnesses prior to identification. It was rightly argued by Sri P.N. Misra that the accusedappellants must have been produced before the concerned Magistrate after 15 days of their arrest for second remand. Since the prosecution did not adduce any evidence that after first remand the accusedappellants were kept Baparda, the contention of the accusedappellants that they were shown by the police to the witnesses should have been believed by the trial Court and the judgment of the Court below on this score alone is bad in law. Their lordship of the Supreme Court in the aforesaid ruling were pleased to observe that when there was no explanation or evidence on record to show that while taking the accused to and produce them before the Court for the purpose of remand the identity of the accusedappellants was not revealed. The conviction based upon the evidence of the identification evidence could not be sustained. It was a clear case of the accusedappellants before the trial Judge that they were shown by the police to the witnesses before identification. That apart, the accusedappellants had adduced cogent evidence of Shiv Ram, D.W. 1, Aman Chand, D.W. 2 and Tej Pal, D.W. 3 that the accusedappellants were arrested from their houses without making them Baparda.

The circumstances that the learned trial Court himself disbelieved the direct evidence of Om Prakash, P.W. 1, Virendra, P.W. 6 and Hukum Chand, P.W. 9 with regard to the complicity of the named accused Kanchan and acquitted him, I am of the opinion that the learned trial Judge grossly erred in convicting and sentencing the accusedappellants on the basis of the identification evidence of these witnesses for the obvious reason that as compared to the direct evidence, the evidence of identification is a week type of evidence.

In these circumstances, since there is no other corroborative evidence and the conviction of the accusedappellants solely rests on the value of identification evidence, I find it difficult to place implicit reliance upon the evidence of Om Prakash, P.W. 1, Virendra, P.W. 2 and Hukum Chand, P.W. 9 and consider it safe to give benefit of doubt to accusedappellants and to acquit them.

I accordingly hold that the conviction of the accusedappellants was bad in law. The appeals are hereby allowed and the order of conviction and sentence passed by the learned trial Judge against the accusedappellants is hereby set aside. It is directed that the accused appellants if in jail shall be set at liberty forthwith, if on bail their bail bonds shall stand cancelled.