Sewa Ram vs State of U.P.

A.N. Dikshita, J.—Appellant Sewa Ram, has preferred this criminal appeal against the judgment and order dated 24-3-1979 passed by II Ird Addl. Sessions Judge, Hamirpur in Sessions Trial No. 50 of 1976 convicting the Appellant under Sections 392/397 IPC and sentencing him to undergo 7 years'' R.I.

The facts of the case reveal that on 4-1-1975 at about 5.30 P.M., when Smt. Phoolrani wife of Gayadin, her husband Gauri Shanker and Hargovind son of Gauri Shanker of village Galiha police station Rath District Hamirpur were returning home from their field, two miscreants armed with Pharsa way laid and threatened them near the culvert of the Canal that in case they raise any alarm, they would be done to death. They stopped Smt. Phoolrani and Hargovind and forcibly relieved Smt. Phoolrani of the silver Paijana. On raising alarm by Smt. Phoolrani and Hargovind, Gauri Shanker, who was coming behind them, and Narpat Singh residents of Galiha reached the place of incident. The miscreants were chased. They ran towards Kaithi Badanpur. The cost of Paijanas was estimated around Rs. 1200/-.

A written report of the incident was lodged by Gauri Shanker (PW 1) on 5-1-1975 at 3.00 P. M. at police station Rath. The distance of police station from village is 3 miles. Delay in lodging the FIR is around 22.00 hours. The investigation started and Appellant Sewa Ram was arrested by the Police on 6-1-1975 from bis village Kaithi Badanpura and lodged in jail. He was put to identification parade in jail, where PW 1. Gauri Shanker and PW 3 Narpat identified him correctly. After the completion of the investigation, the Appellant was proceeded against.

The prosecution in support of its case examined two eye-witnesses PW 1 Gauri Shanker and PW 3 Narpat. PW 1, Gauri Shanker has supported the allegations, as contained in the FIR. He has, however, admitted that he was walking behind at a distance of about 200 paces. He has also stated that he chased the miscreants for some distance,-but did not proceed further due to fear as he was not having any arm with him. It was on account of the fear that he did not lodge the report in the night. He has also admitted that he got the report prepared on the next morning by Man Singh and then banded it over at the police station. He has categorically stated that he had recognised the Appellant in the identification parade which was conducted after about 6 months. The only explanation that he has furnished about the delay in lodging the FIR was that this delay was on account of fear. PW 2 Man Singh is his brother who has prepared the FIR. PW 2 has stated that the FIR was prepared by him on the dictate of PW 1 Gauri Shanker at about 10 A. M. in the morning of 5-1-1975. It appears very surprising that when Jewellary of the daughter-in-law would be looted, still the father-in-law (PW 2) Gauri Shanker would get the report prepared around 10/11 A. M. No promptness has been shown. Even otherwise the distance from the village to the police station is only around 3 miles. If this report was prepared as has been stated, by PW 2 Man Singh around 10 or 11 A.M., even then the time taken in lodging the report at 3.00 P.M. is not convincing. Apparently no plausible explanation is forth-coming as regards the delay in lodging of the FIR. Other cardinal fact which can not be lost sight of, is that PW 1 Gauri Shanker was walking at a distance of 200 paces behind Smt. Phoolrani and his son Hargovind. It was the month of January. The sun set on 4-1-1975 was at 5.25 P.M., while the incident is that of 5.30 P.M. as is disclosed in the FIR. The learned Counsel for the State has submitted that even after the sun-set a person can be recognized, but it is difficult to accept this, in view of the fact that dusk had descended and in village atmosphere becomes dusty on account of the movement of the cattle and people at that time.

The date of occurrence is 4-1-1975. The Appellant was put to identification parade on 28-6-1975. Thus sufficient long interval of time bad elapsed between the date of occurrence when PW 1 Gauri Shanker and PW 3 Narpat had seen the Appellant Sewa Ram for a while and the date of that test identification parade. No doubt PW 1 Gauri Shanker and PW 3 Narpat had correctly identified Appellant Sewa Kara at the parade. It is admitted that about 6 months had elapsed. If PW 1 Gauri Shanker bad seen the Appellant Sewa Ram, then there appears to be no reason as to why the descriptions of his features were not mentioned in the FIR. Even in his statement, he has no-where disclosed the features of Appellant Sewa Ram. In the absence of any such description in the FIR, it would not be safe and proper to act upon the identification of Appellant Sewa Ram. It is thus difficult to place any reliance on the test identification parade. Apparently the visibility at that time would be too poor and it may not be possible for PW 1 Gauri Shanker to recognize the Appellant Sewa Ram from such a long distance. This fact further fortifies that the FIR does not contain the description of the Appellant Sewa Ram. Had he recognized, as be has stated in his statement and as also identified him, it is incomprehensible as to why this fact was not stated in the FIR about the description of the Appellant Sewa Ram. PW 1 Gauri Shanker is a literate man. No explanation is forthcoming as to why the report was prepared by PW 2 Man Singh, when the property of his daughter-in-law was looted. It is normal conduct that PW 1 Gauri Shanker could have prepared the report in the night or immediately the next morning instead of waiting and getting it prepared through Man Singh. This seems to have been introduced only to explain the delay in lodging the FIR.

PW 1 Gauri Shanker has stated that he is literate. He is farmer by profession. It may appear to be startling that he could remember and could identify Sewa Ram after 6 months. The delay in the identification of the Appellant thus becomes dubious. Implicit reliance can not be placed on the statement of PW 1 Gauri Shanker.

The other eye Witness of the incident is PW 3 Narpat Singh, be has corroborated the statement of PW 1 Gauri Shanker. His testimony also deserves to be discarded for the same reason as much the testimony of PW 1 has been rejected. The other witnesses in the case are formal and their testimony is of no avail to bring home the guilt of the Appellant.

Before parting with this case, the manner in which the prosecution has proceeded deserves to be castigated. The conduct of the Investigating Officer in delaying the identification when the Appellant was arrested within 24 hours of the lodging of the FIR, is highly dubious. His effort to implicate Appellant Sewa Ram deserves to be spurned. It only shows that much of the public fund had been wasted in the trial of the Appellant Sewa Ram. Appellant, Sewa Ram had to suffer the agony of the trial for 13 years. The loss he has suffered can not be compensated in any way. Had there been any law for such compensation, it could have been the most appropriate case where the State (police) was required to pay the necessary compensation for aggravating the misery and agony of a poor villager. In view of the above, it is manifest that the prosecution has failed to establish the guilt of the Appellant.

In the result, the appeal succeeds and is hereby allowed. The Appellant Sewa Ram is on bail. He need not surrender. His bail bonds are discharged.