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Ishak v. State - CRIMINAL APPEAL No. 96 of 1982 [2006] RD-AH 16197 (18 September 2006)


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Criminal Appeal no. 96 of 1982

Ishaq ...........................................................................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 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.

Dated 18.9.2006

Crl Appeal No.96 of  1982/P.P.


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