High Court of Judicature at Allahabad
Case Law Search
Hari Ram v. State Of U.P. - CRIMINAL APPEAL No. 3063 of 1981  RD-AH 14953 (31 August 2006)
Criminal Appeal no. 3063 of 1981
State of U.P. .............................................................Respondent
Hon'ble M Chaudhary,J.
This is a criminal appeal filed on behalf of the accused appellant from judgment and order dated 14th of December 1981 passed by IV Additional Sessions Judge Jalaun at Orai in Sessions Trial no. 93 of 1981 State Versus Hari Ram under section 395 IPC and sentencing him to rigorous imprisonment for seven years and a fine of Rs.1000.00 thereunder.
Brief facts giving rise to this appeal are that during the night between 11th and 12th of June, 1980 Smt Shanti Devi and her husband alongwith their children were sleeping in the Aangan on eastern side of the house and other members of family were asleep in the Aangan on western side. A burning lantern was hanging on a peg fixed on the western wall of the Aangan on eastern side diffusing sufficient light. At about 12:00 midnight some three bandits jumped from the roof of the house in the Aangan flashing torches. By the sound of jumping in the Aangan inmates of the house got awoken. Sighting the bandits inmates of the house raised hue and cry and then the bandits threatened them with murder if any of them raised shouts any further. Two of the bandits were armed with guns and one with countrymade pistol and the remaining 3-4 were taking lathis. The bandits beat Komal and his brother's wife and mother in order to know whereabouts of the property. The bandits who were on the roof of the house fired 2-3 shots. On hearing the sound of firing some of the co- villagers rushed to the scene of occurrence. Then the miscreants ran away with the looted property and while running away they also beat Ram Ratan. The inmates of the house and witnesses saw miscreants well in the light of burning lantern and flash of torch light. Next morning Komal went to police station Rampura situate at a distance of nine kilometers from village Gora Chirraya and handed over written report of the occurrence to the police there at 8:30 a.m. The police registered a case against 6-7 unknown persons and made entry regarding registration of the crime in the GD. Investigation of the case was entrusted to SI Arvind Nath Sachan posted at police out post Gohan of police station Rampura. On 30th of October 1980 accused Hari Ram surrendered in the Court of Chief Judicial Magistrate Orai and he was taken into custody and made baparda and lodged in the District Jail the same day. He was subjected to test identification proceedings in connection with the alleged crime on 1st of December 1980. In all three witnesses were produced to identify him as a participant in the said dacoity and he was identified as such by all the three correctly. After completing the investigation the police submitted charge sheet against the accused accordingly.
After framing of charge against the accused the prosecution examined Shanti Devi (PW 1), Komal (PW 2) and Govind Narain (PW 3) as eye witnesses of the occurrence and also as identifying witnesses. Testimony of rest of the witnesses is of formal nature.
On an appraisal of evidence and other material on the record the learned trial Judge held the accused guilty under section 395 IPC and he was convicted and sentenced as stated above.
Feeling aggrieved by the impugned judgment and order the accused appellant preferred this appeal for redress.
Heard Sri V.S. Singh, learned counsel for the appellant and Sri A.K. Jain, learned AGA for the state respondent.
After hearing the parties' learned counsel and going through the record the Court is not inclined to accept the finding of conviction recorded by the trail judge against the accused appellant. In this case entire case against the accused appellant rests on the identification evidence of three identifying witnesses PW 1 Shanti Devi, PW 2 Komal and PW 3 Govind Narain. PW 2 Komal and PW 3 Govind Narain are real brothers and PW 1 Shanti Devi is wife of their elder brother Ramadhin. PW 1 Shanti Devi stated that the alleged night she and her husband alongwith their children were sleeping in the eastern Aangan of their house and a burning lantern was hanging on a peg by the wall; that some three bandits went on the roof of the house and jumped in the Aangan and one of them opened the main door of the house and two bandits also came inside, that two of the bandits were armed with guns and one with countrymade pistol and rest with lathis; that some of the bandits beat her in order to know whereabouts of the property and that she recognized one of them in the light of burning lantern. She stated in her cross-examination that it was a dark night and that when the bandits beat and threatened her she became unconscious. It may be mentioned here that five persons namely Chhotey Lal, Dharamjeet, Malkahn, Gaya Prasad and Durga Charan faced trial for the said dacoity in Sessions Trial No. 169 of 1980 State vs. Chhotey Lal & others and they were acquitted by V Additional Sessions Judge, Jalaun at Orai vide judgment and order dated 27th of March, 1981. Admittedly she stated in her deposition in that case that the bandit whom she recognized was of dark complexion and had pox marks on his face. However she stated in the instant case that the accused standing in the dock had no pox marks. PW 2 Komal and PW 3 Govind Narain both identified the accused appellant standing in the dock as a participant in the dacoity committed at their house stating that they had identified him as a participant in the said dacoity and he was not known to them since before.
Accused Hari Ram was lodged in the District Jail Orai in connection with the said dacoity on 30th of October, 1980 and was subjected to test identification proceedings on 1st of December, 1980. However no explanation was offered by the investigating officer as to why Hari Ram could not be subjected to test identification proceedings within a fortnight or so of being lodged in the District Jail in connection with the said dacoity.
A perusal of the copy of the judgment in Sessions Trial No. 169 of 1980 State vs. Chhotey Lal & others goes to show that the five accused were subjected to test identification proceedings in connection with the said dacoty on 25th of August, 1980 and three witnesses namely Smt Shanti Devi, Komal and Govind Narain were produced to identify him as a participant in the said dacoity in that case. In that identification parade performance of Shanti Devi was 33% correct and that of Govind Narain 50% correct. Hence no reliance can be placed on the testimony of these two identifying witnesses in the instant case as evidently their power of observation and memory cannot be said to be good as they could not retain the image of the bandits in their minds for a period of two and a half months even. They could not be termed to be good witnesses of identification in view of their performance at test identification proceedings held earlier, i.e. on 25th of August, 1980. Neither of these two witnesses stated any distinctive features or marked peculiarity in the stature or structure of any of the bandits in their statements given to the investigating officer under section 161 of the Code of Criminal Procedure. PW 2 Komal, the first informant did not mention any distinguishing feature or marked peculiarity in the structure of any of the bandits in the written report of the occurrence handed over at the police station nor did he state any such fact in his statement to the investigating officer under section 161 of the Code of Criminal Procedure. Neither of these three identifying witnesses ascribed any specific activity or role to the accused appellant at the time of identifying him before the Magistrate conducting identification proceedings.
A perusal of the identification memo goes to show that none of the eye witnesses assigned any specific activity or role to the accused before the Magistrate at the time of his identification. in the dacoity. For all these reasons the Court is of the view that none of these witnesses was in a position to retain the features of the accused appellant in her or his memory so as to identify him in the said identification parade held more then five and half months after the dacoity without any external aid and in the Court after more than 15-16 months of the dacoity as their statements were recorded by the trial judge in October, 1981.
In view of the above infirmities and shortcomings in the identification evidence furnished by the prosecution implicit reliance cannot be placed on the testimony of the three identifying witnesses. And hence benefit of doubt is extended to the accused appellant. The appeal is therefore allowed and the impugned judgment and order convicting the accused appellant under section 395 IPC and sentence imposed upon him thereunder are hereby set aside. The fine, if deposited, shall be refunded to the accused appellant. Accused appellant Hari Ram is hereby acquitted. He is on bail. His bail bonds are hereby discharged.
Judgment be certified to the Court below.
Dated 31st of August, 2006
Criminal Appeal No.3063 of 1981/P.P.
Double Click on any word for its dictionary meaning or to get reference material on it.