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Hari Ram v. State Of U.P. - CRIMINAL APPEAL No. 3063 of 1981 [2006] RD-AH 14953 (31 August 2006)


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Criminal Appeal no. 3063 of 1981

Hari Ram..................................................................Accused



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.


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