Surendra and Others vs The State of U.P.

Pratyush Kumar, J.—1. The instant appeal, filed on behalf of the accused-appellants, is directed against the judgment and order dated 28.08.2004 passed by Additional Sessions Judge/F.T.C. IV, Lakhimpur Kheri in Sessions Trial No. 528 of 1992 [State v. Surendra and three others]under Sections 396, 412 IPC and Sessions Trial No. 70 of 1996 [State v. Surendra] under Section 25 of the Arms Act, whereby the accused-appellants have been convicted and sentenced to undergo life imprisonment under Sections 396, 412 IPC with fine of Rs. 10,000/- and in default thereof two years'' rigorous imprisonment. The appellant No. 1 Surendra has also been convicted and sentenced to undergo three years RI under Section 25 of the Arms Act with fine of Rs. 2,000/- and in default thereof two months RI.

Heard Sri Rajiv Misra, Advocate holding brief of Ms. Soniya Mishra, learned counsel for the appellants, Sri Umesh Verma, learned Additional Government Advocate for the State-Respondent and perused the record.

In the appeal facts of the prosecution case relevant for the present purpose, may be summarized as under:

"On 8th December, 1988 at 8.30 AM, Tej Pal Singh resident of Village Olarapur, P.S. Maigalganj, District Kheri gave a written report at the police station stating therein that yesterday he and his co-villager Ram Asarey Singh were bringing back sister of Ram Asarey Singh from her Sasural to her Mayke, a box containing jewellery and clothes of her was with him, when they reached near their village at about 7.30 PM 5-6 miscreants armed with gun, country made pistol, Danda and Lathi appeared, when they came near to them, he turned on his flash light and saw them, they surrounded him and his two companions, they raised hue and cry which brought there Chhatrapal Singh, Krishna Pal Singh, Jogendra Pal Singh, Raj Kumar Singh, Dhan Pal Singh and others armed with weapons flashing their flash lights, they challenged the miscreants, who in the meantime took the box of Vindeshwari Devi @ Bitta from the carrier of his bicycle, when Ram Asarey Singh grappled with one of the miscreant, the other miscreant fired on him. While they were taking care of Ram Asarey Singh, the miscreants went away towards north carrying the looted box. Since miscreants were armed, they were not chased, Ram Asarey Singh was brought on a cot but he died. From their clothes and language miscreants appeared to be resident of nearby villages, their faces were identified in the flash light. The box contained wrist watch, jewellery and clothes of Vindeshwari Devi @ Bitta the sister of Ram Asarey Singh."

At this chick FIR was scribed, Case Crime No. 140 of 1988 under Section 396 IPC was registered and requisite entry was made in the report of the general diary. Investigation was taken over by Sri Purushottam Sharma, the then Station Officer, who in the course of investigation on 19th December, 1988 at about 7.10 AM arrested four persons, out of which from one Surendra a country made gun, three live cartridges and some of the looted property were recovered. Similarly from Ram Autar, Ram Sagar @ Sagar and Mool Chandra some of the looted property was recovered, which they confessed to have looted on 7th December, 1988 near the village of the first informant. After holding inquest proceedings the dead body was sent to mortuary where autopsy was performed. The arrested persons and the recovered property were put to identification, all were identified by the first informant and other witnesses correctly.

During investigation names of three more dacoits came into light, namely, Sambhu Dayal, Maya Ram and Ram Kishun, they were identified on 02.02.1989, most of the witnesses could not identify the correct person due to long interval. After investigation charge-sheet was submitted against all the seven accused persons. A separate case was registered against accused Surendra under the Arms Act wherein after investigation charge-sheet was submitted.

All the seven accused stood for trial before Court of Session where four accused persons, namely, Surendra, Ram Autar, Ram Sagar @ Sagar and Mool Chandra were charged in addition to Section 396 IPC under Section 412 IPC also. Accused Surendra was also charged under Section 25 Arms Act.

All the seven accused including Ram Kishan, Maya Ram and Shambu Dayal were also charged under Section 396 IPC. All the accused persons denied the charges and claimed to be tried. All the accused were tried together.

During the trial accused Mool Chandra died, against him proceedings were abated.

In order to prove charges, the prosecution filed documentary evidence and in the oral evidence five witnesses were examined. Thereafter statements of the accused persons were recorded under Section 313 Cr.P.C. They denied the facts stated by the prosecution witnesses and claimed that they were falsely implicated and their arrest was fictitiously shown, they were taken from their houses respectively.

The learned trial Judge after hearing the arguments came to the conclusion that the prosecution could not prove the charge under Section 396 IPC against accused Maya Ram and Shambhu Dayal, hence they were acquitted. Against the present appellants the learned trial Judge found the eye witness account trustworthy, believed the prosecution version of the occurrence and recovery and convicted the present appellants and sentenced them as above.

In support of the appeal on behalf of the appellants very briefly it has been argued that there is no evidence against the present appellants, the learned trial Judge without going through the record has convicted and sentenced the appellants. According to learned counsel for the appellants, the identification parade was not held in accordance with law, the appellants were not identified in the court by the witnesses, looted property was not produced before the court during trial, hence the impugned judgment is against the material on record and perverse.

On behalf of the State these arguments have been repelled and it has been argued that Tej Pal Singh P.W. 1 has identified all the appellants during the identification parade and also in the court. Recovery has been duly proved, case property was identified by two witnesses and the findings have been rightly recorded by the learned trial Judge.

Before we propose to deal with the arguments submitted by the respective parties, we would like to recollect the manner in which appeal against conviction is required to be considered by this Court and scope of jurisdiction conferred on the Court by Sections 374 and 386 Cr.P.C. Further we would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni v. State of Gujarat [, 1995 Supreme Court Cases (Crl) 222]. Para-4 of the judgment reads as under:

"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."

In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [, 1995 Cri.L.J. 2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:

"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh''s case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."

The documentary evidence, especially the exhibits would be discussed during the discussion of oral evidence made for the purposes of appreciation of evidence. At this juncture we would like to give summary of the statements of prosecution witnesses, which reads as under:

While going through the record we have noticed that in the present case on behalf of the prosecution the doctor, who conducted the postmortem examination of the dead body of the deceased Ram Asarey Singh has not been examined by the prosecution. Though formal proof of the same was dispensed with, we find that in the statements recorded under Section 313 Cr.P.C. the appellants pleaded ignorance about the postmortem examination of the deceased. It is not for us to criticise the public prosecutor but the fact that the homicidal death of the deceased has to be proved, this we will keep it in mind while appreciating the evidence of eye witnesses.

Statements of Dhan Pal Singh P.W. 2, Raj Kumar Singh P.W. 3 and Bitto Devi P.W. 4 on the point of complicity of the present appellants in the occurrence cannot be treated to be a substantive piece of evidence for the reason that in the court they could not identify the appellants as dacoits and second that whatever value the identification memo would have carried, cannot be appreciated by us because identification magistrate was not examined by the prosecution. The Hon''ble Apex Court in the case of Sheo Shankar Singh v. State of Jharkhand [, 2011 (74) A.C.C. 159] has observed that the test identification parade is conducted during the course of investigation to facilitate the investigation. It has only corroborative value. Identification of the accused in the Court by the witnesses is the substantive evidence. Thus, evidentiary value of these three eye witnesses on the point of dacoity is negligible.

So far as statement of first informant Tej Pal Singh P.W. 1 is concerned, we find that the Investigating Officer has held identification two times, first on 28th December, 1988 Surendra (appellant No. 1), Ram Autar (appellant No. 2), Ram Sagar @ Sagar (appellant No. 3) and deceased accused Mool Chandra were put to identification and this witness had identified all the four appellants without any mistake. In the second identification held on 27th July, 1989 three non appellants Shambhu Dayal, with Ram Kishun and Maya Ram were put to identification and this witness could identify Ram Kishan correctly. He could not identify rest two persons, whereas in the court on oath he had identified all the appellants. It is settled that on the basis of correct identification by one witness conviction in a case of dacoity where other witnesses could not identify the dacoits, would not be normally sufficient to prove the charge of dacoity against the accused persons. In this case Tej Pal Singh P.W. 1 though wrongly identified two non appellants but in the court he had identified them correctly. This goes against the credibility of the evidence of the witness. For this reason, we do not think that it would be sufficient to rely on his solitary statement about the complicity of the appellants in the said dacoity.

The learned trial Judge though noticed this fact that three witnesses could not identify the appellants in the court in stead of giving benefit of doubt to the appellants has held that since the witnesses were examined after gap of several years there inability to identify the accused-appellants in the court should be ignored. We do not think that this could be a valid reason to believe the testimonies of such witnesses on the basis of their identification made during investigation.

In view of above, we find that on the charge framed under Section 396 IPC the evidence adduced by the prosecution does not inspire our confidence and we hold that this charge could not be proved by the prosecution beyond doubt.

The appellants were held guilty for the charge framed under Section 412 IPC, though the case property was not produced before the court during the evidence of witnesses, who had identified the property during the investigation, such non production of case property, is fatal for the prosecution because the appellants had no opportunity to cross-examine the witnesses about the case property. In this way charge under Section 412 IPC could not be proved against the present appellants by the prosecution beyond doubt. The learned trial Judge has not taken into consideration the non production of case property and wrongly convicted the appellants under Section 412 IPC.

Appellant No. 1 Surendra has also been convicted under Section 25 of the Arms Act. The recovery of the country made gun and live cartridges were made by the then Station Officer of police station Maigalganj, District Kheri. The investigation was entrusted to Sub-Inspector Vijendra Singh, who was working under the recovery officer, in such a situation, it is not expected that the Investigating Officer could have carried a fair investigation. On this score we find the conviction of the appellant No. 1 Surendra under Section 25 of the Arms Act to be tainted. This point was also not considered by the learned trial Judge.

In view of above, we conclude that the appeal has substance. The charges levelled against the present appellants could not be proved by the prosecution beyond doubt. Findings recorded by the learned trial Judge are factually and legally incorrect, they deserve to be set aside as well as the impugned judgment and order along with conviction and sentence awarded to the appellants. The appeal deserves to be allowed. The appellants, after giving them benefit of doubt, deserve to be acquitted from the charges levelled against them.

Criminal Appeal is allowed. The conviction and sentence awarded by the trial court vide judgment and orders dated 28.08.2004 in Sessions Trial No. 528 of 1992 under Section 396, 412 IPC and S.T. No. 70 of 1996 under Section 25 of the Arms Act are set aside. The appellants, namely, Surendra, Sagar @ Ram Sagar, Ram Autar and Ram Kishun are acquitted from the charges framed under Sections 396, 412 IPC and appellant Surendra also from the charge framed under Section 25 of the Arms Act. All the appellants are in jail. They be released forthwith, in case, they are not wanted in any other case, provided they file their personal bond and two sureties each in the like amount to the satisfaction of the Court concerned in compliance of Section 437-A Cr.P.C.

Office is directed to certify this order to the court concerned forthwith for compliance and to send back the lower court record.