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Ram Dayal v. State - CRIMINAL APPEAL No. 627 of 1982 [2006] RD-AH 19297 (15 November 2006)


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Criminal Appeal No. 627 of 1982

Ram Dayal............................................................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 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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