State of U.P. vs Saghir and Others

O.P. Pradhan, J.—Saghir, Sadiq and Chhunnan were tried In connection with the charges under Sections 302/34, 307/34, 394/397 and Section 281, all of the Indian Penal Code but were acquitted of these charges by III Additional Sessions Judge, Orai on 18-12-J 978. Feeling dissatisfied with the judgment and order of acquittal, the State has preferred this appeal.

Briefly speaking, the prosecution case as unfolded at the trial is that Kamal Singh (PW 2), Ramphal (PW 3). Hori Lal (PW 4) and deceased Mohan Swaroop were all residents of village Bhendi and were students of first year of the Intermediate classes in Government Intermediate College Kadaura district Jalaun. On 2-5-1976 all these four started from their village at about 5 30 A. M. on a bullock-cart towards Kadaura where they had to take on their examination on the next day. They left the bullock-cart after some distance and began to move ahead on foot. Near about the well in Santoshl Har which is at a distance of about two miles from village Kadaura, they were accosted by three miscreants--one of whom carried a country made pistol while the other two had lathts. These miscreants asked the boys to accompany them on pain of being shot dead. While these boys accompanied the misoreants towards the tube-well, Ramphal and Hori Lal managed to escapeKamal Singh and Mohan Swaroop were taken by the misoreants to the Kothri of the tube-well and these two. boys were robbed of their clothes cash and a wrist-watch by the miscreants inside this Kothri. The miscreants who had carried country made pistol, fired two or three shots on Kamal Singh and Mohan Swaroop as a result of which they fell on the ground the miscreants thereafter tied the hands of both these victims with a Tahmat and threw them inside the well. Kamal Singh some bow managed to come out of the well with the help of Kakni of the wellHe went to Kadaura and dictated a written report of the occurrence (ExKa-1) to Mithilesh Kumar and lodged the same at the police station Kadaura at 9.45 A.M. According to this report, the incident occurred at 8.15 A.M. Nene was named in the first information report but the description of the three misoreants was given in the report.

A case u/s 394/397 IPC was registered at the police station on the basis of the said 4 written report and the Investigation was taken up by S.O. Rajveer Singh (PW 15). He reached the place of occurrence and got the dead body of Mohan Swaroop taken out from the well. An inquest report of the dead body was also prepared and the dead body was sent for post-mortem-examination. Kamal Singh who had also received injuries had also been sent to the local hospital at Kadaura for medical examination. Dr. M.K. Gopal (PW 6) examined the injuries of Kamal Singh at about 2.45 P.M. on 2-3-1976. He found three gun-shot wounds en different parts of the person of Kamal Singh-Post-mortem-examination of the dead body of Mohan Swaroop was conducted by Dr. Vijal Singh (PW 5) on 3-3-1976 at 4.30 A.M. at Oral He found six ante-mortem gun-shot wounds of entry on the abdomen and two fractures in the arm and right thigh. He also extracted two pellets from the dead body.

Saghir and Sadiq were arrested on 11-6-1976 and sent Baparda to Jail. Chhunnan surrendered in Court on 2-7-1976 and was also made Baparda thereafter. All these three accused were put up for test identification on 1-S-1976. Accused Saghir and Sadiq were identified correctly at the test identification parade by Kamal Singh (PW 2), Ramphal (PW 3) and Hori Lal (PW 4) while accused Chunnan was identified at this parade by Kamal Singh (PW 2) and Ramphsl (PW 3).

It is also the case of the prosecution that soon after the arrest on I''-6-1976 accused Saghir made a disclosure statement and in pursuance thereof shir (Ex. 7) end pant (Ex. 8) which were robbed during the occurrence by the miscreants were recovered from the house of accused Saghir by the Investigating Officer Rajveer Singh (PW 18) in the presence of Raghuvir Singh (PW 8) and others. After investigation, charge sheet for the prosecution of all the three accused was submitted in Court.

All the three accused denied their complicity in the crime and attributed there false implication to enmity with the local police. They further pleaded that the witnesses knew them from before and they were also shown to them prior to the test identification and were not kept Baparda. Likewise, accused Saghir alSO denied the recovery of the pant and shirt from his house at his own behest.

We have heard the learned Counsel for the parties and perused the record. Learned Counsel of the State urged in support of the appeal that the prosecution evidence adduced in the case establishes the complicity of all the three Respondents in the crime and that the same has been unjustifiably discarded by the learned Additional Sessions Judge while acquitting the Respondents. Particular emphasis has been laid by the learned Counsel of the State on the oral evidence of Kamal Singh (PW 2) who himself sustained Injuries during the occurrence, and accordingly his presence at the time and place of the occurrence could not be doubted. Likewise, it has been further contended by the learned State counsel that the evidence of identification could not be discarded on the ground that the test identification was held about three months after the occurrence, particularly when two accused were arrested on 11-6-1976 and the third surrendered in Court on 2-7-1976 These contentions have been refuted by the learned Counsel of the Respondents who further contended that the learned Additional Sessions Judge has receded cogent and germane grounds for discarding the prosecution evidence relied in support of the charges levelled against the Respondents It has also bees urged by the learned Counsel for the Respondents that the learned Additional Cessions Judge has properly appreciated the evidence adduced, in the case and his findings cannot be dubbed as perverse or based on surmises and conjectures.

That Mohan Swaroop died of violence on 2-5-197$ is indubitable. Complicity of accused Saghir is sought to be proved by the evidence of identification given by Kamal Singh (PW 2). Ramphal (PW 3) and Hori Lal (PW 4) as also by the evidence of recovery of looted shirt and pant from the house of accused Saghir on 11-6-1976 at his own behest and in this behalf reliance has been placed on the testimony of Rajveer Singh (PW 18) and Raghuvir Singh (PW 8). Likewise, the complicity of accused Sadiq is sought to be established by the evidence of identification given by Kimal Singh (PW 2), Ramphal (PW 3) and Hori Lal (PW 4) and this of accused Chhunnan by the evidence of identification given by Kamal Singh (PW 2) and Ramphal (PW 3).

We proceed to analyse the evidence of identification first. One area of criminal jurisprudence susceptible to miscarriage of justice is error in identification Hence, the Court''s approach to accept identification should be very cautions The court should approach the evidence of identification with reasonable doubts of an intelligent person and accept it only if those doubts are removed. In order to remove these doubts, the touchstones to be adopted could be (1) fair, if not good opportunity to the witness for observation, (ii) reasonable time within which the identification was made (iii) reliable power of observation of the witness, (iv) his credibility, and (v) the fact whether the witness got any opportunity to identify the accused after arrest The crucial requirement is the satisfaction of the court on the acceptability of the identification. If identification parade was not properly and regularly conducted, it cannot operate as reliable corroboration regarding identification in court. In order to carry conviction, the evidence should ordinarily show as to how and under what circumstances, the witness came to pick out the particular accused person and the details of the part which that accused had played in the crime in question with reasonable particularity. Likewise, test identification parade should be held at the earliest possible opportunity.

So far as Ramphal (PW 3) and Hori Lal (PW 4) are concerned, the learned Additional Sessions Judge has discarded their testimony on the ground that their presence at the time and place of the occurrence is highly doubtful and that they had little opportunity to mark the features of the miscreants. It is in the prosecution evidence that both these witnesses were accompanying Mohan Swaroop deceased and Kamal Singh (PW 2) when they were accosted by the miscreanis near the tube-well of Santoshi Har. While the miscreants succeeded In taking away Mohan Swaroop and Kamal Singh to the room of the tube-well, these two witnesses managed to See away in order to save themselves After they had run for about 50-60 paces, they noticed that the miscreants took Mohan Swaroop and Kamal Singh inside the Kothri of the tube-well and thereafter they heard the report of two or three gun-shots. It is clear from their evidence that none of them actually saw the miscreants robbing Mohan Swaroop and Kamal Singh, n r did they see the actual firing resorted to by accused Saghir who is alleged to have fired at the victims, Mohan Swaroop and Kamal Singh. However, both these persecution witnesses toll the Magistrate P.L. Verma (PW 9; who conducted the test Identification that they had seen the suspects whom they bad come to Identify, robbing and assaulting their associates. To say the least, this assertion on their part is far from truth, since none of them saw the actual robbery or assault at the hands of the miscreants. Besides this, their behavioral pattern also appears to be unnatural inasmuch as none of these two witnesses even went to the tube-well in order to ascertain if their associate Mohan Swaroop was alive or dead, it is in the evidence of Kamal Singh (PW 2) that even though Mohan Swaroop had been thrown into the well, he could not say if he was alive or dead inside the well. Since these two witnesses, namely, Ramphal and Hori Lal claim to be the associates of Mohan Swaroop who was shot dead by one of the miscreants and thrown inside the well it was reasonably expected of them to have give to the tube-well in order to ascertain if Mohan Swaroop was alive or dead not only this, these witnesses reached the tube-well at about 1 P.M. on the fateful day after they had learnt that the Sub-Inspector of Police had reached there. It is also no less surprising to notice that none of these two witnesses accompanied Kamal Singh to the police station where he had gone to lodge the report about the occurrence. It therefore, cannot be said that the learned Additional Sessions Judge was unjustified in reaching the conclusion that the presence of these two witnesses at the time and place of the occurrence is highly doubtful and that they had little opportunity to mark the characteristic features of the miscreants so as to enable them to identify them on 1-8-1976, about three months after the occurrence.

We are left with the evidence of Kamal Singh (PW 2) who appears to be the star witness of the prosecution. Since he also claims to have suffered injuries during the occurrence, a lot of reliance has been placed on his testimony by the learned A G A According to the prosecution evidence, Kamal Singh was also shot at by means of a country made pistol and he suffered three gun-shot wounds on his person, Dr. M.E. Gopal (PW 6) who examined Kamal Singh found no blackening, tattooing and charring present around of any of these gun shot wounds. According to him, the firing had been resorted at Kamal Singh from a distance of ten feet According to Kamal Singh (PW 3) who is alone eye-witness of the actual assault on him and Mohan Swaroop, accused Saghir who had the country made pistol fired at him and Mohan Swaroop from the same place while he and Mohan Swaroop were standing together inside of the Kothri of the tube-well. Strangely enough, the post-mortem-examination report of Mohan Swaroop discloses that he suffered nine-gan shot wounds of entry on the front part of his abdomen and charring and tattooing was also noticed by Dr. Vijai Singh (PW 5) who conducted the autopsy. According to Dr. Vijai Singh (PW 5) firing at Mohan Swaroop had been resorted to from a distance of four feet. It would, therefore, appear that the ocular account of the occurrence as given by Kamal Singh (PW 2) does not at all fit in with the medical evidence given by Dr. Vijai Singh (PW 5) and Dr K.M. Gopal (FW 6). If the two victims had been actually fired at from the same distance, there was no question of presences of charring and blackening on the today of Mohan Sworoop and absence of the same around the gun-shot wounds found on the person of Kamal Singh. Learned A-G A. contended that three gun-shots were fired from the country made pistol and little is known about the contents of the cartridges used at the time of the occurrence and, there fore, this discrepancy in the medical evidence is not of much significance. So far as this contention goes, it may be pointed out that no such clarification was elicited from any of the two doctors examined by the prosecution. It was incumbent upon the prosecution to confront the doctors with such situation and the expert''s views on the subject. However, nothing of the sort has been done in the case. In any case, the contention advanced on this score by the learned A.G.A. is farfetched and cannot be easily accepted by the Court to reconcile the aforesaid discrepancy, particularly in the absence of relevant material.

In this appeal, (he evidence of Kamal Singh (PW 2) does not inspire confidence inasmuch as his version bristles with glaring improbabilities According to his evidence, he was thrown is the well by the miscreants after be had suffered injuries from firing at the hands of the miscreants. However, he claims to have come out of toe well by himself without external help of any human being or such other agency. He would have us believe that he came out of 14 cubits'' deep well with the help of Kakois fixed to the well. The learned Additional Sessions Judge made a local Inspection of the place of occurrence including the well on 8-12-1978 and has placed on the record his inspection note. It discloses that the first Kakoi from the upper edge of the Jagat of the well lay at a distance of 5 1" and the space between the first and second Kaknis was about 3 ''3". At the time of his local inspection, only two Kaknis were visible since the water level of the well had risen. It was further found by the learned Additional Sessions judge that the width of the Kakni ranged from 1-1/2" to 1-3/4". At the time of the local inspection, the learned Additional (sic) Judge also found a cement pipe outside the well. However, no such cement pipe was found at the time of spot-inspections by the Investigating Officer and nothing of the sort has been disclosed in the site-plan (Ex. Ka-6). Had it been there, Kamal Singh (PW 2) would have certainly spoken about it in his statement u/s 161 Code of Criminal Procedure, and in his statement given in Court. No mention of it has been made in the first information report either. The Investigating Officer has also clearly stated that the machine which was fixed on the two angles at the water level of the well was not in use at that time. It does not appeal to reason that Kamal Singh (PW 2) would have succeeded in coming out of the well of his own without any help from external agency adumbrated above, t is also surprising to notice that even though he had been thrown into the well in a state of deep trauma, yet he would scale 14 cubit deep well and come oat without any other mishap. The medical evidence indicates the Kamal Singh had three gunshot wounds on his person on the fateful day.

From what has been said above, it appears not unlikely that Kamal Singh (PW 2) was injured in a different manner then claimed by him. We are further of the opinion that implicit reliance cannot be placed on the sole testimony of Kamal Singh (PW 2) in the particular facts and circumstances of this case.

As already indicated earlier, the test identification was conducted on 1-8-1976 even though the occurrence had taken place on 2-3-1976. Accused Saghir and Sadiq were arrested on 11-6-1976 and accused Chunnan surrendered in Court on 2-7-1976 The prosecution has not advanced satisfactory explanation for the delay in conducting the test identification. Evidence of Ramphal (PW 3) and Hori Lal (PW 4) having already been rendered incredible, and the testimony of Kamal Singh (PW 2) having been found not wholly reliable, it does not appear safe to rely upon their testimony regarding identifications the culprits, in the shape of three Respondents arrayed in this appeal.

We may briefly touch upon the evidence of recovery of shirt and pant which has also been relied upon to connect accused Saghir with tie crime in question. The shirt and Pant allegedly recovered from the house of the said accused in consequence of his disclosure statement are said to have been robbed from the victims the presecution relies upon the testimony of Raghubir Singh (PW 8) and Rajvir Singh (PW 18). it is interesting to find that Raghubir Singh (PW 8) is a resident of village Itsuza which is at a distance of about 3 miles from village Ukarua from where the alleged recovery was made by the Investigating Officer, Rajvir Singh (PW 18) The prosecution evidence discloses that there were present at the material time and place several persons of village Ukarua but they were not made recovery witnesses but a person of another village, happened to pass that way casually was picked up by the Investigating Officer to witness the alleged recovery. No explanation has been given by the Investigating Officer for not asking any local resident of that village to witness the recovery and it is not the case of the prosecution that the villagers were not prepared to cooperate with the police in the matter of recovery. The learned Additional Sessions Judge was, therefore, perfectly justified in not accepting the evidence of alleged recovery In the above back drop.

After careful scrutiny of the entire material and circumstances on record, we are satisfied that the findings recorded by the learned Additional Sessions Judge can neither be said to be perverse nor legally erroneous, warranting interference, in this appeal against the Judgment and order of acquittal.

In the result, for the reasons indicated above, this appeal is found devoid of merit and is hereby dismissed.