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Ram Dayal v. State - CRIMINAL APPEAL No. 627 of 1982  RD-AH 19297 (15 November 2006)
Criminal Appeal No. 627 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 30th of January,1982 passed by III Additional Sessions Judge, Mathura in Sessions Trial No.261 of 1979 State Vs Ram Dayal convicting the accused appellant under section 395 IPC and sentencing him to seven years' rigorous imprisonment thereunder.
Brief facts giving rise to this appeal are that during the night between 22nd and 23rd of January, 1979 Dharamvir Singh and his family members were sleeping in different apartments of their house situate at Nagla Kali and a glowing lantern was hanging inside the room. Nand Lal, father of Dharamvir was sleeping in the baithak situate to north of the house. At about 11:00 p.m. some dacoits jumped inside the house by scaling the eastern wall. Feeling presence of some persons Dharamvir Singh opened door of the house and saw that there were some dacoits. Getting the opportunity Dharamvir went out of his house and raised hue and cry. Some 15-16 dacoits started plundering goods inside the rooms flashing their torches. In the meanwhile some of the dacoits took Nand Lal, father of Dharamvir out of the baithak but somehow he got himself released and ran away and fell down in the pond. Hearing the hue and cry one Saudan Singh, Bhurey Singh, Chhigga, Munshi Lal and several others flashing torches rushed to the scene of occurrence. Saudan Singh set fire to the Bitaura covered with chhan which created sufficient light. One Balvir Singh who had come to the house of Karan Singh to see him also reached there and fired with his licenced gun. After ransacking the house for about an hour the dacoits who were armed with countrymade pistols, guns, lathis, axes etc. ran away with the looted ornaments, utensils, cash etc. Inmates of the house and the witnesses saw the faces of the dacoits well in the light of torches flashed and in the light of fire ignited to Bitaura. Next morning Dharamvir Singh went to police station Sahpau situate at a distance of four miles from Nagla Kali and handed over written report of the occurrence to the police at 8:45 a.m. The police prepared check report on the basis of the written report handed over to him at the police station and made entry regarding registration of the crime in the GD. SI Sabir Ali Khan, station officer Sahpau who took up investigation of the case in his hands investigated the crime.
It appears that accused Ram Dayal was arrested in police encounter by the police of police station Barhan at 11:15 p.m. on 2nd of February, 1979 He was made baparda and lodged in District Jail Agra on 3rd of February, 1979. He was subjected to test identification proceedings in connection with the said dacoity in District Jail, Agra on 24th of May, 1979. In all six witnesses were produced to identify him as a participant in the said dacoity and he was identified by five of them as such.
After completing investigation the police submitted charge sheet against the accused accordingly.
After framing of charge against the accused appellant the prosecution examined Dharamvir (PW 1), Raghuvir (PW 2), Jaswant Singh ( PW 3), Nand Lal ( PW 4) and Saudan Singh ( PW 5) as eye witnesses of the occurrence. PW 6 SI V.B. Singh, Station Officer police station Barhan District Agra who arrested accused Ram Dayal in the police encounter and made him baparda on the spot stated the said fact. PW 9 SI Sabir Ali Khan who investigated the crime proved the police papers. Testimony of rest of the witnesses more or less was of formal nature.
The accused pleaded not guilty stating that he did not participate in the said dacoity. He also stated that he was shown by the police to the witnesses and that he used to reside in his house near the police station Sahpau.
On an appraisal of evidence on the record the learned trial judge believing the identification evidence held the accused guilty of the charge levelled against him and convicted and sentenced him as stated above.
Feeling aggrieved by the impugned judgment and order the accused appellant preferred this appeal for redress.
Heard Sri Satya Prakash, learned counsel for the accused appellant and Sri Rajiv Kumar Singh, learned AGA for the State respondent.
After going through the impugned judgment and record of the case, the court is reluctant to accept the finding of conviction recorded by the court below against the accused appellant.
Out of five identifying witnesses PW 1 Dharamvir did not identify the accused appellant at the time of his deposition. Now remains the testimony of PW 2 Raghubir Singh, PW 3 Jaswant Singh, PW 4 Nand Lal and PW 5 Sheo Dan Singh. It has come in evidence that none of the identifying witnesses stated any marked peculiarity in the appearance or stature and structure of any of the bandits to the investigating officer in his statement recorded under section 161 Cr.P.C. nor did they assign any specific role to the accused whom they identified before the Magistrate at the time of test identification proceedings. All the four identifying witnesses stated that they saw bandits in the light of fire ignited to Bitaura and in the light of torches flashed by the witnesses and the bandits. A perusal of the site plan map goes to show that the house of Dharamvir is north faced and the house of Satya Vir Singh is situate in the immediate east thereof and thereafter there is open land and then there is the public way. It was to the east of the public way that the Bitaura was kept to which fire was ignited. Pond in which Nand Lal fell down was situate to the west of his house at a distance of some 30 paces therefrom. PW2 Raghuvir stated in his cross-examination that it was a dark night. PW 3 Jaswant Singh stated that Bitaura to which fire was ignited was at a distance of 20 metres from the house of Dharamvir. PW 2 Raghuvir and PW 3 Jaswant Singh stated that they kept sitting taking side of Bitaura and warming themselves with fire when dacoity was going on. PW 4 Nand Lal stated that as the bandits caught hold of him in the baithak he could not recognize any of them as there was no light; that he got himself released and jumped into the pond and that thereafter when he came out of the pond he kept sitting by the side of the pond till the dacoits ran away. PW 5 Sheodan Singh stated that he kept standing by taking the side of the Neem tree situate at a distance of 2-3 paces from Bitaura. Thus the witnesses would have seen the assailants only in the light of burning Bitaura when after ransacking the house they ran from the northern door of the house of Dharamvir through the public way towards east. Hence they would have had only fleeting glimpses of fleeing bandits.
In the instant case the accused appellant Ram Dayal was lodged in District Jail Agra on 3.2.79 whereas he was subjected to test identification proceedings in connection with the said dacoity on 24.5.79. A perusal of GD entry no.15 dated 3.2.79 police station Barhan, District Agra goes to show that it was mentioned therein that accused Ram Dayal confessed that he was a participant in the dacoity registered as crime no. 11 of 1979 under section 395 read with section 397 IPC, police station Sahpau (Ext Ka 6). He was under ''B' warrant in the instant crime since 14.2.79. Thus in the instant crime the accused appellant was subjected to test identification proceedings after 110 days of being lodged in District Jail, Agra. PW 9 SI Sabir Ali Khan, the investigating officer appeared as a witness but no explanation was offered by the investigating officer as to why accused Ram Dayal could not be subjected to test identification proceedings in connection with the said dacoity by the end of February 1979. Excepting Sheodan Singh and Bhurey Singh all the four identifying witnesses belonged to one family. PW 5 Sheodan Singh and Bhurey Singh too resided in the same village Nagla Kali at a distance of some 30-40 paces from the house of Dharmvir. Under the circumstances accused Ram Dayal could well be subjected to test identification proceedings in connection with the said dacoity within 3-4 weeks of being lodged in the District Jail Agra. In Soni versus State of U.P. (1982) 3 SCC 368 ( I ) the identification parade was held 42 days after arrest of the accused appellant. The Hon'ble Apex Court held that the delay in holding test identification parade throws a doubt on the genuineness thereof apart from the fact that it is difficult that after lapse of such a long time the witnesses would be remembering facial expressions of the appellant. In the instant case accused appellant Ram Dayal was subjected to test identification proceedings after 110 days of being lodged in the District Jail, Agra.
For the foregoing reasons, this Court is of the view that identification evidence furnished by the prosecution against the accused appellant is not free from suspicion and hence can not form sturdy basis for his conviction. Since the learned Trial Judge recorded the finding of conviction on faulty appreciation of evidence the impugned judgment and order can not be sustained and is liable to be set aside.
The appeal is allowed and the impugned judgment and order convicting accused appellant Ram Dayal under section 395 IPC and sentencing him to seven years' rigorous imprisonment thereunder is hereby set aside. Accused appellant Ram Dayal is acquitted. He is on bail. His bail bonds are hereby discharged.
Judgment be certified to the court below.
Dated: 15th of November, 2006
Crl A 627-82
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