Ram Lakhan and Another vs State of U.P.

R.K. Saksena, J.—These two concerned appeals were heard together and are being disposed of by a common judgment.

A dacoity was committed by 10-11 persons on the night between the 18/19th of March, 1974, at about mid night at the residences of Sabhajeet (PW 1) and his two neighbours, in village Banpurwa (Dewapar) within police circle Marlahun, District Jaunpur. The bandits not only ransacked the house, but they fired shots also during the course of the commission of the crime thereby causing injuries on the body of certain persons including Hari Charan, who succumbed to his injuries and his death was immediate. The miscreants escaped with booty. These facts have been accepted by the trial court and were not assailed before me on behalf of the Appellants.

The crime was registered on the following morning at the said police station and after usual investigation in the course of which the Appellants, viz. Ram Lakhan, Jawahar and Khahlil and three other, namely, Dharam Raj, Chhamanath and Basantoo were arrested, put up for identification and after seeing the result of the test-parade, they were charge sheeted as a consequence whereof they were committed to the court of session, where they were tried for committing the offence punishable u/s 396 of the Indian Penal Code.

The Appellants and the co-accused denied the accusations attributing their implication in the case due to enmity with police.

The trial ended in the conviction of the Appellants with a sentence of rigorous imprisonment for a period of 10 years and each was further required to pay fine of Rs. 5000/-, per judgment and order dated the 20th of June, 1979, passed by Sri A.B. Srivastava, the, then, 1st Additional Sessions Judge, Jaunpur in Sessions Trial No. 231 of 1974. The other three accused were-, however, acquitted by the court primarily on the ground that there was single identification evidence against them, on which convictions could not be safely based These appeals have been filed by the above named Appellants against their conviction.

The first contention of the learned Counsel for the Appellants is that there has been considerable delay in holding test parade and, therefore, identification evidence be discarded. Reliance is placed on a decision of the Hon''ble Supreme Court in the case of Hindu Singh v. State of Uttar Pradesh, (1982) 3 SCC 368 . In that case the identification parade was held after a lapse of 42 days from the date of the arrest of the Appellant. Their Lordship observed:

This delay in holding the identification parade throws a doubt on the genuineness thereof part from the tact that it is difficult that after lapse of such a long time the witnesses would be remembering the facial expressions of the Appellant.

As there was only identification evidence in that case, their Lordships found the accused-Appellant of the case not guilty and acquitted them on the charge. In the instant case the prosecution lies only an evidence of identification. These Appellants were arrested on the 22nd of March, 1974 and the test parade was held on the 18th of May, 1974, i.e. after 56 days from their arrest. It is difficult to accept the claim of the identifying witnesses, Sabhajeet (PW 1), Paras Nath (PW 2) and Satai Ram (PW 3) that they had made a mental note of the features of the culprits, which was retained by them in their minds for such a long period The performance at the test parade was undoubtedly the result of some external aid.

In this connection these facts also deserve a mention. It is in the evidence of Sabhajeet (PW 1) whose house was ransacked on that night that the bandits were firing intermittently during the commission of the crime of dacoity. It appears that one who tried to come near the scene of occurrence, suffered a gun shot wound. In a situation like this, it is difficult to conceive that one mustered courage and stationed himself near the scene of occurrence to see the faces of the culprits. The claim of the two villagers Paras Nath and Satai Ram that they had reached the spot on hearing shouts at about mid night and had seen the faces of the culprits from a close range is unworthy of belief. Satai Ram (PW 3) resides at a distance of about three furlongs from the place of occurrence. He says that he all alone covered the distance after having heard the gun sound. I am not prepared to accept that he was allowed by the inmates of the house to go all alone and that too at a time when shots were being fired. Further, the evidence of Paras Nath (PW 2) shows that he was trying to conceal and suppress true facts. On some relevant questions he kept mum and gave no reply. The trial court should have made a note of the behaviour and conduct of the witness which falsifies his claim and indicates that he is not a truthful witness.

In view of what has been said above, there arises a suspicion about the correctness of the prosecution version in regard to the complicity of these Appellants in the crime. The suspicion stands strengthened from yet another fact which may be pointed out here According to the prosecution when Khalil, accused-Appellant was arrested, a country made pistol and three live catridges were recovered from his possession. Another crime u/s 25 of the Arms Act was registered against him. He was tried on that charge and was found not guilty by the court of the first instance, which recorded a clear and categorical finding that public witnesses examined by the prosecution in that case were under the influence and pressure of the police. The fact that the said trial ended in acquittal clearly indicates that the police fabricated a false story and introduced such a link to make the case look as black as possible against that person. Experience shows that with a view to work out a case of this nature where prestige of the police is involved, some innocent persons are sent by the police for trial. The instant case falls in that category; even the judgment under the Arms Act gives an indication to that effect These facts which stand out prominently were not considered by the learned trial judge who has, therefore, recorded an erroneous finding that the identifying witnesses are reliable.

Regard being had to the fact that there was considerable delay in holding the test parade from the date of arrest read in conjunction with the facts discussed above, I am of the opinion that the judgment and order under appeal cannot be sustained.

In the result, the appeal is allowed. The judgment and order under appeal are set aside and each Appellant is found not guilty and is acquitted on the said charge. Their sureties are discharged.

This judgment shall be placed on the record of Criminal Appeal No. 1936 of 1979 and a copy thereof be kept in Criminal Appeal No. (sic) of 1979, which shall stand disposed of accordingly.