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Ishak v. State - CRIMINAL APPEAL No. 96 of 1982  RD-AH 16197 (18 September 2006)
Criminal Appeal no. 96 of 1982
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 20th of November,1981 passed by VI Additional Sessions Judge, Mathura in Sessions Trial no.150 of 1981 State vs Ishaq & another convicting accused Ishaq under section 395 read with section 397 IPC and sentencing him to eight years' rigorous imprisonment thereunder. By the impugned judgment co-accused Qamru was given benefit of doubt and acquitted.
Brief facts giving rise to this appeal are that during the night between 14th and 15th of December, 1980 Gir Raj alongwith Bhagwan, Babu, Raman and Vishnu were sleeping in their nauhra and their ladies were asleep in different apartments inside the house. At about 12:00 midnight Ishaq and others sleeping in the nauhra got awoken by the sound of firing and saw that some 3-4 bandits were firing from the roof of their house and some were ransacking the house. A burning lantern was hanging in the verandah of the house. In the meanwhile Vishnu ignited fire to the bundles of karab kept to the west of nauhra. In the meanwhile several co-villagers including Preetam, Shanker, Shikhar Chand, Girdhari, Chhamman, Lakkhi, Raghunath, Revati, Moti Ram, Data Ram, Anushya and Bhoval rushed to the scene of occurrence. Preetam also fired with his licenced gun. After ransacking the house the bandits ran away with the looted ornaments, clothes etc. Inmates of the house and the witnesses recognized some of the dacoits in the light of burning karab and that of torches flashed by the bandits and the witnesses. Next morning Gir Raj taking the injured went to police station Kosi Kalan situate at a distance of five miles from village Barchavali and lodged FIR of the said occurrence with the police there at 8:00 a.m. The police registered a crime against some 10-12 unknown bandits and started the investigation. Station Officer M.N. Jafri took up investigation of the crime in his hands. Injured Lakkhi, Smt Shanti, Smt Jasoda, Smt Anushya, Babu, Bhoval, Moti Ram, Raghunath, Chhamman, Deen Prakash, Girdhari, Shanker, Rupam, Indrajeet, Vishnu, Revati, Raman and Gir Raj were medically examined by Dr J.R. Jiyani, medical officer Civil Hospital Kosi Kalan on 15th of December, 1980 between 12:10 noon to 4:15 p.m. The doctor opined that injuries found on the person of all the injured excepting Smt Shanti and Smt Jasoda were caused by firearm projectile. Medical examination of Smt Shanti revealed one lacerated wound on her person which was caused by some hard and blunt object and simple in nature. Medical examination of Smt Jasoda did not reveal any injury on her person.
During investigation the investigating officer learnt about complicity of Ishaq, Qamru and few others. Ishaq was arrested and lodged in District Jail Mathura in connection with the said crime on 14th of February, 1981. He alongwith others was subjected to test identification proceedings in District Jail Mathura on 18th of February, 1981. In all six witnesses were produced to identify Ishaq and others as participants in the said dacoity and Ishaq was identified by Lakkhi, Raghunath, Raman and Preetam as such.
After completing investigation the police submitted charge sheet against the accused accordingly.
After framing of charge against accused Ishaq and Qamru the prosecution examined Gir Raj (PW1), Lakkhi (PW2), Raman ( PW 7) and Raghunath( PW 8) as eye witnesses of the occurrence. Out of these four witnesses Lakkhi, Raman and Raghunath appeared as identifying witnesses. PW 3 J.S. Keral, Special Executive Magistrate, Mathura who conducted test identification proceedings proved the identification memo ( Ext ka 5). PW 5 Dr S.R. Jiyani who medically examined all the injured proved the injury reports. PW 11 SI M.N. Jafri who was station officer on 15th of December, 1980 and investigated the case initially proved the police papers. PW 6 SI Ram Kunwar Singh Tyagi who subsequently took over charge as station officer police station Kosi Kalan continued the investigation and after completing the same submitted charge sheet against accused Qamru, Asgar and Ishaq.
Accused Ishaq pleaded not guilty denying his participation in the alleged dacoity. He also stated that he was got implicated in the case falsely and that he was shown to the witnesses at the police station.
On an appraisal of evidence and other material on the record the learned trial judge believing the testimony of the identifying witnesses held the accused appellant guilty of the charge levelled against him under section 395 read with section 397 IPC and convicted and sentenced him as stated above.
Feeling aggrieved by the impugned judgment the accused appellant preferred this appeal for redress.
Heard Sri G.C. Saxena holding brief of Sri R.B. Saxena, learned counsel for the appellant and Sri Naveen Shukla, learned AGA for the State respondent.
After hearing the parties' learned counsel and going through the record the Court is reluctant to accept the finding of conviction of the accused appellant recorded by the trial judge. The prosecution case against the accused appellant rests solely on identification evidence. Performance of Lakkhi and Raghunath in the test identification parade was 100% correct and that of Raman 66% correct as he identified Qamru and Ishaq correctly but committed mistake in identifying Esav. All the three were good witnesses of identification. Lakkhi identified Asgar and Ishaq, and Raman identified Qamru and Ishaq.
All the three identified accused appellant Ishaq in the trial Court correctly as a participant in the said dacoity. Now it has to be seen if implicit reliance could be placed on their testimony.
PW 2 Lakkhi stated in his deposition that he saw the accused appellant among the bandits while they were coming out from the main door after ransacking the house and ran away with the looted property. A perusal of the site plan map goes to show that ''H' point is situate towards north west of the nauhra of the victims and there were 3-4 houses and the lane in between the houses of Gir Raj and Lakkhi. A perusal of the site plan map goes to show that investigating officer depicted point ''H' from where some of the witnesses saw the incident of dacoity. House of Lakkhi is situate to the immediate north of point ''H'. The distance shown between point ''H' and chabutara of the victim's house is about 60 paces equal to 150 feet ( as one pace is equal to 2 ½ feet). A perusal of the site plan map further goes to show that after ransacking the house the bandits came out of the victim's house from main door towards east and after going out of the main door of house of Gir Raj the bandits fled away in the lane towards west. Thus this witness Lakkhi would have seen bandits from the back side from a distance of about 150 feet and was not in a position to note the features or any marked peculiarity in the appearance or stature and structure of any of the bandits so as to identify any of them in the test identification proceedings held after two months of the dacoity. In fact he admitted in his cross-examination that he could not mark any prominent feature in appearance of any of the bandits.
PW 7 Raman stated that the alleged night he and his father Babu were sleeping in their nauhra and Gir Raj, Vishnu and Bhagwan were also asleep there, that at about 12:00 midnight on hearing the hue and cry of inmates of the house and sound of firing he got up and saw that the bandits were ransacking his house and some of the bandits were firing with guns and countrymade pistols from the roof thereof; that in the meanwhile his brother Vishnu ignited fire to the karab lying there which created sufficient light and that he saw the bandits in the light of burning karab and torches flashed by the bandits and the witnesses. He stated that he himself got report of the occurrence scribed at his dictation at the police station but did not mention any marked peculiarity in the stature or structure of any of the bandits nor did he state any prominent feature in appearance of any of the bandits to the investigating officer in his statement recorded under section 161 Cr PC nor did he assign any specific role to any of the accused to whom he identified before the Magistrate at the time of test identification proceedings. However he stated in his cross-examination that he could not mark any prominent feature in appearance of any of the accused when he saw them in the light of burning karab and torches flashed. He stated in his cross-examination that accused Ishaq present in the dock was of dark complexion and had pox marks on his face. Thus admittedly this witness did not state any such fact in his earlier statement made to the investigating officer or to the Magistrate conducting test identification proceedings. Strangely enough in this case FIR was lodged by PW 1 Gir Raj as deposed by him and is evident from the FIR ( Ext ka 6) as he got report of the occurrence scribed by one Indrajeet and handed over the written report to police at the police station whereas this witness Raman ( PW 7) stated that he himself got report of the occurrence scribed at his dictation at the police station. Likewise PW8 Raghunath stated that the alleged night he was sleeping at his house; that on hearing the hue and cry in the midnight he got awoken and saw that some 10-11 bandits armed with guns, countrymade pistols, spears and dandas were committing dacoity at the house of Chhidda; that in the meanwhile Vishnu set fire to the karab lying there which created sufficient light and that in the light of burning karab and torches flashed he had seen the faces of the bandits and pointing at accused Ishaq standing in the dock he stated that he had identified him in the test identification parade held in the District Jail. However he stated in his cross-examination that he had only one eye as he lost his other eye in small pox with which he suffered in his childhood and that he saw the incident from a distance of about 60 yards and saw the faces of the bandits in the light of burning karab and torches flashed. He admitted in his cross-examination that he did not mark any prominent feature in the appearance of the accused whom he identified in the dock (accused Ishaq). Admittedly he did not state any marked peculiarity in the appearance of the accused appellant in his statement to the investigating officer. He admitted in his cross-examination that he could not note pox marks on the face of the accused (Ishaq) at the time of dacoity but the photograph was certainly of that very accused. He stated that he had seen the photograph of the accused at his village Barchavali. Though he did not state specifically that photograph of the accused whom he identified was shown to him, but his statement evidently points out that he identified accused Ishaq after seeing his photograph before the test identification proceedings.
Thus testimony of all the three identifying witnesses namely PW 2 Lakkhi, PW 7 Raman and PW 8 Raghunath is not free from suspicion. A perusal of the identification memo goes to show that accused Ishaq had deep pox marks on his face. Admittedly any of these three identifying witnesses abovenamed could not note pox marks on the face of accused Ishaq at the time of dacoity. Admittedly any of these identifying witnesses did not state to the investigating officer in their statements recorded under section 161 Cr.P.C. that one of the bandits was dark complexioned and had pox pitted face. Hence it is difficult to believe that he was a participant in the said dacoity. Because had these three identifying witnesses seen him among the bandits they would not have failed to note that one of the bandits was dark complexioned and had pox pitted face. Since the identification evidence furnished by the prosecution is not free from doubt the Court is of the considered opinion that conviction of the accused appellant cannot be based on such identification evidence which inherently is a weak type of evidence.
The appeal is therefore allowed and conviction of accused appellant Ishaq under section 395 read with 397 IPC and sentence awarded to him thereunder are hereby set aside. Accused appellant Ishaq is hereby acquitted. He is on bail. His bail bonds are hereby discharged.
Judgment be certified to the Court below.
Crl Appeal No.96 of 1982/P.P.
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