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Ram Bahadur v. State - CRIMINAL APPEAL No. 1463 of 1980 [2006] RD-AH 2147 (27 January 2006)


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Hon'ble Mukteshwar Prasad J.

This criminal appeal by the accused has been filed against the judgment and order-dated 27.6.1980 passed by the then Additional Sessions Judge, Pilibhit whereby he convicted the accused under Section 395 read with Section 397 of the Penal Code and sentenced him to undergo rigorous imprisonment for a period of eight years.

Briefly stated, the facts of the case giving rise to this appeal are as under.

P.W.11 Kalloo Khan, son of Kabir Khan handed over a report written in Persian at P.S. Neoria on 19.9.77 at  7-45 A.M. The police registered a case at crime no. 105 under Section 395/397 I.P.C. against 10-12 unknown dacoits and made entry in the G.D. at serial no.11.

It was alleged in the report that Kalloo Khan and his brother-in-law (Behnoi) Mohd. Ashraf had taken a contract for cutting of Baib grass in Mahof Forest Division and they were getting the grass cut in the month of September, 1977. On 18.9.77 at about 8-00 P.M. both were returning from the forest. Kalloo was having his licensed gun (single barrel) and cartridges. They arrived near the Jhala of Mohd. Ashraf. A lantern was burning there outside the Jhala and Shabir was cooking food outside the Jhala. They saw 10-12 persons sitting near the Jhala. As soon as they reached there, they were overpowered and after putting them into fear, the miscreants snatched away the licensed gun of Kalloo, a belt having 21 cartridges and his wristwatch and Rs.300/- cash.

On the same night, the miscreants committed dacoity at the house of Natthoo, son of Duja Ram, and took away ornaments, etc. from his house. An earthen lamp was burning inside the house of Natthoo. The dacoits were identified correctly in the light of lantern and earthen lamp. They were armed with guns, Tamanchas and knives.

Kalloo Khan got prepared a report by Mohd. Ashraf (P.W.10) and mentioned therein the articles which were looted from the house of Natthoo also. The dacoits took away ornaments, wristwatch, Murphy radio, torch and Rs.100/- cash from the house of Natthoo.

After registration of the case, the investigation was taken up by S.I. Naresh Chandra Tyagi, who was Station Officer. He interrogated the witnesses, reached the village in question and after inspection, prepared a site-plan. He saw two lanterns and one earthen lamp produced by witnesses on 19.9.77 and prepared Fard Supurdiginama.

P.W.14 S.I. Bhagwat Tiwari, the then S.O. Puranpur, arrested the appellant on 17.10.77 at about 2-30 P.M. from the Railway line and he was made Baparda.

Accused was sent to Jail on 18.10.77 and his T.I. parade was held in District Jail, Pilibhit on 29.11.77 by Sri Rama Shankar Dwivedi, the then A.S.D.M. At the parade, seven witnesses were sent for identification out of which all the witnesses except Ram Bilas, son of Natthoo Lal, identified him correctly and committed no mistake. After completing investigation, the police submitted charge sheet against the appellant and others.

After committal of the case, the appellant alongwith three others were charged under Section 395 read with Section      397 I.P.C. on 13.1.79. He was charged under Section 412 I.P.C. also. He pleaded not guilty to the charges and claimed to be tried.

In order to establish the guilt of the appellant, the prosecution examined 14 witnesses in all, including Kalloo Khan, Mohd. Ashraf, Natthoo Lal, Ram Bilas and Damodar. Out of six witnesses, who identified the appellant correctly at the T.I. parade, P.W.1 Damodar, P.W.2 Natthoo Lal, P.W.10 Mohd. Ashraf Khan and P.W.11 Kalloo Khan were examined in the court. The prosecution led formal evidence also to prove that the appellant was kept Baparda and none was allowed to see his face after his arrest and before identification in Jail.

Accused Ram Bahadur in his statement recorded under Section 313 Cr.P.C. totally denied his participation in the alleged dacoity and pleaded his false implication on account of enmity with the police. He admitted that he was arrested by the police and was put for test identification. According to him, when he was going to plough his field, he was arrested by the police at about 6-00 A.M. He was detained at the Police Station for two days where he was shown to the witnesses. He was a servant of Mahendra/Mahesh Singh at his farm where the witnesses used to visit and knew him. He added that whenever he was produced in the court for the purpose of remand, he was shown to the witnesses. No evidence was led in defence.

After considering the entire submissions made on behalf of the parties and the oral and documentary evidence also led by the prosecution, learned trial Judge found that charge under Section 412 I.P.C. was not proved against the accused and he was acquitted thereunder. He was however found guilty of the charge under Section 395/397 I.P.C. and was convicted and sentenced as indicated above.

I have heard learned counsel for the appellant, learned A.G.A. and perused the record carefully.

Learned counsel for the appellant has assailed the judgment under appeal mainly on the grounds that the witnesses knew and identify the appellant from before the incident of alleged dacoity and this fact finds corroboration from the evidence on record. According to him, seven witnesses in all were sent to Jail to identify the appellant out of which, six placed their hands on the appellant and committed no mistake. It means, the witnesses had an opportunity to see the face of the appellant. He pointed out that no precaution was taken by the Magistrate conducting identification proceeding to conceal the distinctive marks particularly in respect of left ear of the appellant, which was cut. It was also urged with vehemence that the evidence led by the prosecution is wholly silent as to what precaution was actually taken by it when the appellant was produced in the court for seeking remand after his arrest on 17.10.77. Admittedly, T.I. parade was held on 29.11.77 and he must have been produced in the court for the purpose of remand between 18.10.77 and 29.11.77. The witnesses could not disclose as to what weapon was carried by the appellant in the course of dacoity and none of the witnesses sustained any injury. The light in the house of Natthoo and the light near the Jhala of Mohd. Ashraf was not sufficient for identification of the dacoits and as such, the conviction of the appellant is liable to be set aside.

On the other hand, learned A.G.A. has supported the impugned judgment and urged that the court below took into consideration all aspects of the case and believing the testimony of prosecution witnesses convicted the appellant.

Learned counsel for the appellant has placed reliance on two decisions of Supreme Court of India in Satrughana Alias Satrughana Parida and others Vs. State of Orissa 1995 Supp (4) SCC 448 and Anil Kumar Vs. State of U.P. 2003 SCC (Cri) 770.

I have considered the arguments advanced on behalf of the parties and have scrutinized the evidence on record carefully. After having scanned the evidence on record and considering the arguments, I find that learned Judge was not justified in convicting the appellant and his conviction is liable to be set aside. According to prosecution case, a wristwatch (Titus) was also recovered from the possession of the appellant at the time of his arrest which was put up for identification. The wristwatch was identified correctly by three witnesses-Ram Bilas, Damodar Das and Chhotey Lal. However, the court below did not believe the evidence on record on this point and acquitted the appellant of the charge under Section 412 I.P.C. In other words, part of the allegations against the appellant was found incorrect.

Admittedly, the appellant was not named in the F.I.R. and the witnesses claimed throughout that the appellant and other dacoits were not known to them prior to dacoity. They saw the dacoits for the first time in the course of dacoity and subsequently at the time of identification in Jail and in between two dates, they got no opportunity to see the face of appellant. Contrary to this, P.W.11 Kalloo who is informant and whose licensed gun alongwith cartridges and wrist watch were looted by the dacoits gave a death blow to the prosecution case by admitting in the opening line of his cross-examination that he had seen Ram Bahadur at the house of Mahesh Singh. He testified that Ram Bahadur was a servant of Mahesh Singh and he used to go there for the last ten years. He however took a somersault and changed his version. It is, therefore, clear that Kalloo knew and identify the appellant from before the incident of dacoity.

P.W.10 Mohd. Ashraf Khan, who is scribe of the report and one of the witnesses who picked up the appellant at T.I. parade also claimed to have seen and identified the appellant during dacoity and placed his hand on the appellant in the court also. He however could not disclose as to what weapon was being carried by the appellant. According to him, there was one lantern outside his Jhala where Shabir was cooking food. In my opinion, this light was not sufficient for the witnesses to identify the dacoits. Admittedly, Jhala of the witness was at a distance of 10 steps from the place where Kalloo was looted by the dacoits. Mohd. Ashraf and other witnesses gave out that left ear of the appellant was cut and they saw him in Jail in the same condition. It is noteworthy that late Rama Shankar Dwivedi who conducted identification proceedings noted in column no.3 of identification memo that there were marks of injury on the left Kanpati and there was a hole in the right ear, which were concealed with the pieces of papers. Contrary to this, the witnesses deposed in the court that ear of the appellant was not concealed. It was, therefore, very easy for the witnesses to identify the appellant correctly at the T.I. parade.

It is quite obvious from the testimony of P.W.1 Damodar Das, P.W.2 Natthoo Lal and P.W.3 Ram Bilas that an earthen lamp was burning inside the southern Kotha of their house where Damodar was sleeping alongwith his wife. Natthoo was sleeping in the outer Chhapar. It is noteworthy that the witnesses introduced the presence of two lanterns also inside their house when their statements were recorded in the court. Nathoo and his son introduced in the court that two lanterns and one earthen lamp were burning inside their house during dacoity and they identified the dacoits correctly. Damodar admitted in his cross-examination that the moment he saw the dacoits inside his Kotha, he ran away. It means, he did not get sufficient opportunity to mark distinctive features of the appellant or other dacoits and as such evidence of identification by him in the Jail as well as in the court is not trustworthy.

Natthoo and his sons have contradicted each other regarding number of dacoits who had entered into their house.

Sri Rama Shankar Dwivedi who conducted identification proceeding expired during pendency of this case in the trial court and he was not examined. Therefore, the prosecution could not lead any evidence as to what precautions were actually taken by the Magistrate to conceal the distinctive marks of the appellant regarding his ears.

The prosecution examined three Constables Raja Ram, Ram Adhar and Satya Prakash to prove that appellant remained Baparda throughout his stay in police lock-up and none was allowed to see his face. I however find that the prosecution led no evidence at all to prove that the appellant was not shown to any witness or the witnesses got no opportunity to see his face on the dates when he was produced in the court for remand after his arrest and before his identification in Jail on 29.11.77.

In view of the above discussion and close scrutiny of the entire evidence on record led by the prosecution, I have arrived at the conclusion that the trial Judge committed error in appraisal of the evidence on record. In my considered opinion, the prosecution failed to prove the charge under Section 395/397 I.P.C. The prosecution was required to lead evidence on the point that none of the witnesses got opportunity to see the face of the appellant after his arrest and before his identification. As noted above, the prosecution has failed on this point. Keeping in view the result at the identification parade the possibility that appellant was shown to the witnesses at the Police Station or thereafter cannot be ruled out. Consequently, I hold that this appeal has merits and conviction and sentence of appellant are liable to be set aside.

In the result, the appeal succeeds. The conviction and sentence recorded against the appellant are hereby set aside and he is acquitted of the charge framed under Section   395/397 I.P.C. also. He is on bail. He need not surrender. His bail is cancelled and sureties are discharged.  

Date:  27th, January, 2006



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