Allahabad High Court
Dhan Singh And Others vs State Of U.P. on 5 March, 2020
Equivalent citations: AIRONLINE 2020 ALL 734
Author: B. Amit Sthalekar
Bench: B. Amit Sthalekar
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved A.F.R. Court No. - 45 Case :- CRIMINAL APPEAL No. - 293 of 2004 Appellant :- Dhan Singh and others Respondent :- State Of U.P. Counsel for Appellant :- B.K. Tripathi,Anil Yadav,Arun Kumar Singh,Ashok Kumar Mishra,Krishna Kumar Shukla,Lav Srivastava,Rajeshwar Prasad Sinha,Sanjay Kumar Mishra,Sanjay Kumar Srivastava,Yakub Ansari Counsel for Respondent :- Govt. Advocate,Ravindra Rai And Case :- CRIMINAL APPEAL No. - 6021 of 2003 Appellant :- Shyam @ Sambhal Respondent :- State Of U.P. Counsel for Appellant :- B.K. Tripathi,Ashok Kumar Mishra,Krishna Kant Tiwari Counsel for Respondent :- Govt. Advocate,Rajendra Rai And Case :- CRIMINAL APPEAL No. - 109 of 2004 Appellant :- Raju Mali Respondent :- State Of U.P. Counsel for Appellant :- Anil Yadav,Ashok Kumar Mishra,Krishna Kant Tiwari Counsel for Respondent :- Govt. Advocate Hon'ble B. Amit Sthalekar,J.
Hon'ble J.J. Munir,J.
(Delivered by Hon'ble J.J. Munir, J.)
1. These three criminal appeals arise out of a judgment and order of Sri P.K. Singh, the then Additional Sessions Judge, Fast Track Court no.4, Gorakhpur, dated 29.10.2003 passed in Sessions Trial no.177 of 2002, State of U.P. vs. Shyam @ Sambhal and others (arising out of Case Crime no.883 of 2001), under Sections 396, 412 IPC, Police Station Khorabar, District Gorakhpur.
2. By the aforesaid judgment and order, each of the five appellants, have been convicted by the learned Trial Judge of commission of an offence punishable under Section 396 IPC and sentenced to suffer Rigorous Imprisonment for Life, besides being ordered to pay a fine of Rs.5000/- each. In default of payment of fine, the concerned appellant has been ordered to suffer one year's R.I. Appellants, Shyam @ Sambhal, Rinku Kumar Chaudhary and Raju Mali have also been convicted of an offence punishable under Section 412 IPC and sentenced to suffer ten years' Rigorous Imprisonment, besides being ordered to pay a fine of Rs.3000/-. In the event of default, the said appellants, have been ordered to suffer seven months' R.I. Both the sentences have been ordered to run concurrently. Aggrieved, Dhan Singh, Rinku Kumar Chaudhary and Jeevan Mali have preferred Criminal Appeal no.293 of 2004, whereas Shyam @ Sambhal has preferred Criminal Appeal no.6021 of 2003. Raju Mali has appealed separately through Criminal Appeal no.109 of 2004. Criminal Appeal no.293 of 2003 has been heard as the leading case.
3. The facts giving rise to the present appeal are that a written report, Ex. Ka-1 scribed by the informant, Ajay Kumar Rai (PW-1) was lodged at the Police Station Khorabar, District Gorakhpur with the allegations that on 22.11.2001 at 8 O'clock in the morning, he was at his shop, situate at Chandi (Colony). At that time, he received a telephonic call from his uncle's son, Anil Kumar Rai that something untoward had happened at the house of Rakesh situate in Shivaji Nagar Colony, and that therefore, they should come over at once. On this information, he along with his family members reached the house of Rakesh situate at Shivaji Nagar Colony, and saw that the main door was bolted from the inside. They made a lot of effort to open the door, but to no avail. Then they gained entry into the house by scaling a wall on one side. Once inside, they saw that all the doors were ajar, and upon reaching the kitchen, they found the dead bodies of Rakesh Chandra Rai, Chandra Shekhar Rai and Anoop Kumar Rai lying there, and in the Poojaghar abutting the Kitchen, they found Smt. Leelawati wife of Rakesh Chandra Rai and Renu Rai daughter of Rakesh Chandra Rai lying injured, while in the northern Bedroom, the dead bodies of Bobby, Vikki and Vibhu Rai, all sons of Ranjit Rai, lay. All the attaché-cases and trunks carrying belongings of the inmates had been broken open, and contents were strewn all over the place, giving an impression that the victims had been murdered and their valuables looted. The injured Leelawati Rai and Renu Rai were sent to the Hospital for medical aid. The written report closed with a request to register a case and initiate appropriate action.
4. On the basis of this written report, Ex. Ka-1, the chik FIR Ex. Ka42 giving rise to Case Crime No.883 of 2001, under Sections 302, 307, 394 IPC was registered at P.S. Khorabar, District Gorakhpur, and an entry in this regard has been made in G.D. no.21 at 09.30 hours on 22.11.2001. An extract of this GD Entry is Ex. Ka-43.
5. On 22.11.2001, the injured Renu Rai was admitted to R.D.M.O. District Hospital, Gorakhpur. PW-11, Dr. S.K. Srivastava, Medical Officer, examined her and found the following injuries on her person:
(1) Contused ir. (injury) area 5 x 3cm on whole of Lt. eye;
(2) Contusion area 3.5x3 cm on the nose clotted blood present. Inj. kept U.O. Advised X-ray.
(3) Contusion area 5x0.5 cm on Rt. ear bleeding from Rt. ear kept UO & Advised X-ray. Advise referred to ENT Surgeon and Surgeon.
Thereafter, she was referred to the K.G.M.I., Lucknow considering the serious condition of the injured, Renu Rai, where she was admitted to the Gandhi Memorial and Associate Hospital of K.G.M.I., Lucknow.
6. On 22.11.2011, the injured Renu Rai was admitted to the Gandhi Memorial and Associate Hospital of K.G.M.I., Lucknow, where Dr. Amit Sharma attended on her. She remained at the said Hospital an indoor patient from 22.11.2001 to 07.12.2001. PW-10, Dr. J.D. Rawat, Assistant Professor, Surgery Department, K.G.M.I., Lucknow further treated her and also proved the case history drawn up by Dr. Amit Sharma and marked, Ex. Ka-55.
7. On 22.11.2001, PW-6, SI Virendra Pratap Singh prepared inquests of the deceased, Rakesh Chandra Rai, Anoop Kumar Rai, Chandra Shekhar Rai, Bobby, Vikki and Vibhu, and after completing necessary formalities, sent their corpses for autopsy to the District Hospital, Gorakhpur.
8. Smt. Leela Rai, died at the District Hospital, Gorakhpur and her inquest was held by PW-8, SI Amrendra Kumar Rai at the Mortuary of the Hospital in the presence of Panch witnesses on 22.11.2001. The said document is Ex. Ka-42, proved by PW-8, SI Amrendra Kumar Rai.
9. On 22.11.2001, PW-4, Dr. R.K.L. Gupta conducted autopsy of all the seven deceased and drew up postmortem reports, the material part of each of which are as under:
Deceased Rakesh Chand Rai Ante-mortem injuries (1) Contused swelling 12cm x 8 cm on occipital region, more on Lt. side;
(2) Contused swelling 5cm x 4cm on Lt. orbital region;
(3) Contused swelling 9cm x 6cm on Lt. side frontal region. On cutting surface haemotoma present.
The cause of death is due to coma as a result of AM head injury.
Deceased Chandra Shekhar Rai Ante-mortem injuries (1) Contused swelling 5cm x 4 cm over Lt. orbital region;
(2) Contused swelling 12cm x 8cm on Lt. side of face;
(3) Lacerated wound 2cm x 1-1/2 cm x bone deep on inner part of chin, underlying Haematoma & mandible fracture present;
(4) Contused swelling 5cm x 6cm on Lt. temporal region on cutting Haematoma present.
(5) Contused swelling 15-1/2 cm x 10 cm on front of neck & upper part of chest, on cutting profused Haematoma & carotid vessels ruptured & thyroid bone fractured.
The cause of death is due to asphyxia as a result of strangulation.
Deceased Lila Rai Ante-mortem injuries (1) Lacerated wound 3cm x 1-1/2 cm x bone deep on front of chin, underlying Haematoma & mandible fractured;
(2) Contused swelling 12cm x 5cm on Lt. side of face, on cutting Haematoma present.
(3) Contused swelling 10-1/2 cm x 6cm over front of neck, on cutting profuse Haematoma found. Both carotid vessels ruptured and Hyoid bone fractured.
The cause of death is due to asphyxia as a result of strangulation.
Deceased Anoop Kumar Rai Ante-mortem injuries (1) Lacerated wound 6cm x 1-1/2 cm on Lt. side chin;
(2) Contused swelling 15cm x 8cm on Lt. side face upto forehead;
(3) Contused swelling 6cm x 4 cm on Rt. Side forehead;
(4) Contused swelling 6cm x 5cm on Rt. face;
(5) Contused swelling 12 cm x 8 cm on Lt. side of head, just above ear, on cutting profuse Haematoma present.
The cause of death is due to coma as a result of AM head injury.
Deceased Bobby Ante-mortem injuries (1) Contused swelling 7cm x 5 cm on Rt. side of forehead, 3cm above from Rt. eyebrow, on cutting Haematoma & underlying frontal bone fracture present;
(2) Contused swelling 8cm x 4cm on Lt. side of head, just above the Lt. ear, on cutting Haematoma present.
The cause of death is due to coma as a result of AM Head injury.
Deceased Vikki Ante-mortem injuries (1) Contused swelling 13cm x 6-1/2 cm over Lt. side head, extending from frontal to occipital region underlying profuse haematoma & frontal & parietal Lt. bone fractured.
The cause of death is due to coma as a result of AM Head injury.
Deceased Vibhu Ante-mortem injuries (1) Contused swelling 11-1/2cm x 7-1/2 cm over upper part of the head, on cutting profuse Haematoma & multiple pieces of vault of skull present. Brain matter contused, mannings torn.
The cause of death is due to coma as a result of AM head injury.
10. According to the prosecution, during the course of investigation, the Investigating Officer and other police personnel on 12.12.2001 at 12.30 hours were inquiring from the appellants and one Rajesh Mali, who were arrested in connection with an NDPS Case, about certain items of jewelry recovered from three of them. At that time, Smt. Renu Rai (injured in the present case) along with her relatives, Ajay Kumar Rai and Anil Kumar Rai arrived there, and upon seeing the appellants, she turned hysterical and assaulting the appellants, crying aloud, identified them as the robbers who had entered her father's house on the night of occurrence, committed loot and done the entire family to death. Upon being shown the recovered items of jewelry, she identified two Mangalsutra, a silver coin, a pair of silver Bichhiya as hers, which the appellants had looted in the night of 21/22.11.2001. On identification of the appellants by the injured Renu and recovery of proceeds of the dacoity, they were taken into custody in connection with the present crime, apprising them of the offence under Section 396 IPC made out against them. Since the recovered jewelry were case property, the same were sealed in separate containers.
11. According to the prosecution, the appellants confessed to their crime and said that they along with their companions, Vishram and Kalu, entered the victims' house via the roof and after battering the inmates, looted the house. They further said that the stick (Danda) used in the crime and a looted bag carrying diaries, wallet etc., they had thrown under the foliage for fear of identification. According to the prosecution, the appellants volunteered to get the stick (Danda) and the bag thrown away in the bushes nearby, recovered in case the police were willing. The police acting on the aforesaid disclosure, proceeded along with the appellants and the injured victim Renu Rai, together with her relatives, Ajay Kumar Rai and Anil Kumar Rai, to the place where the weapon of offence and the bag were said to have been thrown away by the appellants. The appellants led the way and getting off the main road, walked into the grove of one Arjun, wherefrom under the foliage of a bush, they produced a rexine bag, brownish in colour with print bearing the label 'VIP', made of metal with two black zippers and a stick from a guava tree. Upon opening the bag, were found inside a black coloured wallet, that carried an identity card with a photograph of Rakesh Chandra Rai issued by the Income Tax Commissioner, Allahabad, two small diaries with the name of Chandra Shekhar Rai, scribed on it. Upon seeing the bag and wallet, Renu Rai said that the identity card in the wallet was her father's whereas the diary was her brother's. The stick (danda) bore blood stains and measured the length of about a hand and a three quarters (the manner the dimensions are described in the recovery memo).
12. The police on the basis of this case and material, charge sheeted the appellants vide charge sheet dated 01.03.2002, Ex. Ka-54, submitted by the Investigating Officer Ravi Chandra Mishra, PW-9, praying that the appellants be summoned and punished for the commission of offences punishable under Sections 396 & 412 IPC.
13. The case was committed to the sessions by the learned Additional Chief Judicial Magistrate, Court no.14, Gorakhpur vide order dated 14.05.2002. After committal to the Court of Session, the Additional Sessions Judge/ Fast Track Court no.3, Gorakhpur, before whom the case came up for framing of charges, proceeded to hear the learned counsel for the parties, and framed a charge for an offence punishable under Section 396 IPC against all the appellants, and against the appellants Shyam @ Sambhal, Raju Mali and Rinku Kumar, framed a charge for an offence punishable under Section 412 IPC. The appellants pleaded not guilty and claimed trial.
14. In order to prove their case, the prosecution have examined the following witnesses:
(1) PW-1, Ajay Kumar Rai, informant and scribe of the written report;
(2) PW-2, Anil Kumar Rai, another witness of fact and relative of the victim family;
(3) PW-3, Renu Rai, injured witness;
(4) PW-4, Dr. R.A.L. Gupta, conducted autopsy;
(5) PW-5, Dr. Mahendra Singh, Superintendent, District Hospital, Gorakhpur, who gave primary medical attention to injured Renu Rai, admitted her and referred her to K.G.M.I., Lucknow;
(6) PW-6, SI Virendra Pratap Singh, drew up inquest reports and other documents regarding investigation;
(7) PW-7, HC 138 Awadhesh Kumar Pandey, registered the FIR in Case Crime no.883 of 2001, under Sectins 302, 306, 394 IPC and also made entry in GD about the case;
(8) PW-8, SI Amarendra Kumar Rai, prepared inquest of Smt. Leela Rai and also drew up other documents for her postmortem;
(9) PW-9, IO Ravi Chandra Mishra, investigated the case and submitted charge sheet;
(10) PW-10, Dr. J.D. Rawat, Assistant Professor, Surgery Department, KGMI, Lucknow, medically managed injured Renu Rai at KGMI, Lucknow, and proved the Medical Case History of injured Renu Rai; and (11) PW-11, Dr. S.K. Srivastava, examined injuries and drew up the medico-legal report of injured Renu Rai, dated 22.11.2001.
15. The prosecution have relied on the following documents:
Sr. No. Exhibit No. Exhibited documents with brief particulars 1 Ex. Ka-1 Written report dated 22.11.2001 lodged with the Police Station Khorabar, District Gorakhpur and proved by PW-1, Ajay Kumar Rai 2 Ex. Ka-2 Recovery memo dated 12.12.2001 with regard to the weapon (danda) used in the crime and a rexine bag belong to the victim family, proved by PW-1, Ajay Kumar Rai 3 Ex. Ka-3 Recovery memo dated 12.12.2001 with regard to stolen articles, proved by PW-2, Anil Kumar Rai 4 Ex. Ka-4 Postmortem Report of Rakesh Chand Rai, dated 22.11.2001, proved by PW-4, Dr. R.K.L. Gupta 5 Ex. Ka-5 Postmortem Report of Chandra Shekhar Rai, dated 22.11.2001, proved by PW-4, Dr. R.K.L. Gupta 6 Ex. Ka-6 Postmortem Report of Smt. Lila Rai, dated 22.11.2001, proved by PW-4, Dr. R.K.L. Gupta 7 Ex. Ka-7 Postmortem Report of Anoop Rai, dated 22.11.2001, proved by PW-4, Dr. R.K.L. Gupta 8 Ex. Ka-8 Postmortem Report of Bobby Rai, dated 22.11.2001, proved by PW-4, Dr. R.K.L. Gupta 9 Ex. Ka-9 Postmortem Report of Vikki, dated 22.11.2001, proved by PW-4, Dr. R.K.L. Gupta 10 Ex. Ka-10 Postmortem Report of Bibhu, dated 22.11.2001, proved by PW-4, Dr. R.K.L. Gupta 11 Ex. Ka-11 Referral letter of Renu Rai, dated 22.11.2001 to KGMI Lucknow, proved by PW-5, Dr. Mahendra Singh 12 Ex. Ka-12 Inquest Report of deceased Rakesh Chandra Rai, dated 22.11.2001, proved by PW-6, SI Virendra Pratap Singh 13 Ex. Ka-13 Photo Nash of Rakesh Chandra Rai, dated 22.11.2001, proved by PW-6, SI Virendra Pratap Singh 14 Ex. Ka-14 Police Form no.33, dated 22.11.2001 for autopsy of deceased Rakesh Chandra, proved by PW-6, SI Virendra Pratap Singh 15 Ex. Ka-15 Form no.13, dated 22.11.2001 of deceased Rakesh Chandra, proved by PW-6, SI Virendra Pratap Singh 16 Ex. Ka-16 Letter written to CMO dated 22.11.2001 for PM examination of Rakesh Chandra, proved by PW-6, SI Virendra Pratap Singh 17 Ex. Ka-17 Inquest Report of deceased Anoop Kumar Rai, dated 22.11.2001, proved by PW-6, SI Virendra Pratap Singh 18 Ex. Ka-18 Photo Nash dated 22.11.2001 of Anoop Rai, proved by PW-6, SI Virendra Pratap Singh 19 Ex. Ka-19 Challani (Form no.13), dated 22.11.2001 of deceased Anoop Rai, proved by PW-6, SI Virendra Pratap Singh 20 Ex. Ka-20 Police Form no.33, dated 22.11.2001 for PM examination of deceased Anoop Rai, proved by PW-6, SI Virendra Pratap Singh 21 Ex. Ka-21 Letter written to CMO dated 22.11.2001 for PM examination of Anoop Rai, proved by PW-6, SI Virendra Pratap Singh 22 Ex. Ka-22 Inquest Report of deceased Chandra Shekhar Rai, dated 22.11.2001, proved by PW-6, SI Virendra Pratap Singh 23 Ex. Ka-23 Challani (Form no.13), dated 22.11.2001 of deceased Chandra Shekhar, proved by PW-6, SI Virendra Pratap Singh 24 Ex. Ka-24 Police Form no.33, dated 22.11.2001 for postmortem examination of deceased Chandra Shekhar, proved by PW-6, SI Virendra Pratap Singh 25 Ex. Ka-25 Photo Nash of Chandra Shekhar Rai, dated 22.11.2001, proved by PW-6, SI Virendra Pratap Singh 26 Ex. Ka-26 Letter written to CMO dated 22.11.2001 for PM examination of Chandra Shekhar Rai, proved by PW-6, SI Virendra Pratap Singh 27 Ex. Ka-27 Inquest Report of deceased Bobby, dated 22.11.2001, proved by PW-6, SI Virendra Pratap Singh 28 Ex. Ka-28 Photo Nash of Bobby, dated 22.11.2001, proved by PW-6, SI Virendra Pratap Singh 29 Ex. Ka-29 Challani (Form no.13), dated 22.11.2001 of deceased Bobby, proved by PW-6, SI Virendra Pratap Singh 30 Ex. Ka-30 Police Form no.33, dated 22.11.2001 for postmortem examination of deceased Bobby, proved by PW-6, SI Virendra Pratap Singh 31 Ex. Ka-31 Letter written to CMO dated 22.11.2001 for PM examination of Bobby, proved by PW-6, SI Virendra Pratap Singh 32 Ex. Ka-32 Inquest Report of deceased Vikki, dated 22.11.2001, proved by PW-6, SI Virendra Pratap Singh 33 Ex. Ka-33 Photo Nash of Vikki, dated 22.11.2001, proved by PW-6, SI Virendra Pratap Singh 34 Ex. Ka-34 Challani (Form no.13), dated 22.11.2001 of deceased Vikki, proved by PW-6, SI Virendra Pratap Singh 35 Ex. Ka-35 Police Form no.33, dated 22.11.2001 for postmortem examination of deceased Vikki, proved by PW-6, SI Virendra Pratap Singh 36 Ex. Ka-36 Letter written to CMO dated 22.11.2001 for PM of Vikki, proved by PW-6, SI Virendra Pratap Singh 37 Ex. Ka-37 Inquest Report of deceased Vibhu, dated 22.11.2001, proved by PW-6, SI Virendra Pratap Singh 38 Ex. Ka-38 Photo Nash of Vibhu, dated 22.11.2001, proved by PW-6, SI Virendra Pratap Singh 39 Ex. Ka-39 Challani (Police Form no.13), dated 22.11.2001 of deceased Vibhu, proved by PW-6, SI Virendra Pratap Singh 40 Ex. Ka-40 Police Form no.33, dated 22.11.2001 for postmortem examination of deceased Vibhu, proved by PW-6, SI Virendra Pratap Singh 41 Ex. Ka-41 Letter written to CMO dated 22.11.2001 for PM examination of Vibhu, proved by PW-6, SI Virendra Pratap Singh 42 Ex. Ka-42* Inquest Report of deceased Leela Rai, dated 22.11.2001, proved by PW-8, SI Amrendra Kr. Rai Ex. Ka-42* Chik FIR dated 22.02.2001 43 Ex. Ka-43** Police Paper no.33, dated 22.11.2001 for postmortem examination of deceased Leela Rai, proved by PW-6, SI Virendra Pratap Singh Ex. Ka-43** Carbon copy of the G.D. Entry no.21, Time 9.30, dated 22.11.2001 relating to Case Crime no.883 of 2001, under Sections 302, 307, 394 IPC, proved by PW-7, HC 138 Awadhesh Kumar Pandey 44 Ex. Ka-44 Photo Nash of Leela Rai, dated 22.11.2001, proved by PW-8, SI Amarendra Kr. Rai 45 Ex. Ka-45 Challani (Police Form no.13), dated 22.11.2001 of deceased Leela Rai, proved by PW-8, SI Amarendra Kr. Rai 46 Ex. Ka-46 Letter written to CMO dated 22.11.2001 for PM examination of Leela Rai, proved by PW-8, SI Amarendra Kr. Rai 47 Ex. Ka-47 Letter written to RI dated 22.11.2001 for PM of Vibhu, proved by PW-8, SI Amarendra Kr. Rai 48 Ex. Ka-48 Site Plan of the place of incident dated 22.11.2001, proved by PW-9 49 Ex. Ka-49 Memo regarding recovery of blood stained clothes, proved by PW-9, SO Ravi Chandra Mishra 50 Ex. Ka-50 Memo regarding recovery of blood stained and plain earth, proved by PW-9, SO Ravi Chandra Mishra 51 Ex. Ka-51 Memo regarding recovery of jewellaries, proved by PW-9, SO Ravi Chandra Mishra 52 Ex. Ka-52 Memo regarding recovery of blank containers of jewellaries, proved by PW-9, SO Ravi Chandra Mishra 53 Ex. Ka-53 Memo regarding recovery of shoes/ slippers, proved by PW-9, SO Ravi Chandra Mishra 54 Ex. Ka-54 Charge sheet, proved by PW-9, SO Ravi Chandra Mishra 55 Ex. Ka-55 Surgery Cases Sheet of injured Renu Rai dated 22.11.2001, proved by PW-10, Dr. J.D. Rawat 56 Ex. Ka-56 Photostat copy of Injury report of Renu Rai dated 22.11.2001, proved by PW-11, Dr. S.K. Srivastava 57 Ex. Ka-57 Report of Forensic Science Laboratory, U.P., Lucknow dated 17.08.2002 58 Ex. Ka-58 Report of Forensic Science Laboratory, U.P., Lucknow dated 17.08.2002 * Ex. Ka-42 is assigned to two documents, apparently by clerical error ** Ex. Ka-43 is assigned to two documents, apparently by clerical error
16. Thereafter, the statements of the appellants were recorded under Section 313 Cr.P.C. They denied the incriminating circumstances appearing in evidence against them and relied upon the following documents:
(1) True copy of the Chik FIR;
(2) True copy of the site plan;
(3) True copy of the statement of PW-3, HC Awadhesh Kumar Pandey, (4) True copy of the statement of PW-9, Ravi Chandra Mishra, Investigating Officer of the case.
17. The Trial Court after hearing both the parties and discussing the evidence and material on record found the appellants variously guilty of offences under Sections 396 and 412 IPC and sentenced each of them as above detailed, by the impugned judgment and order.
18. Aggrieved, the convicts have preferred these appeals.
19. Heard Shri Ashok Kumar Mishra, learned Counsel for all the appellants, Shri J.K. Upadhyay, learned A.G.A. for the State and Sri Rajendra Rai, learned Counsel appearing on behalf of the complainant.
20. Learned Counsel for the appellants, Sri Ashok Kumar Mishra, has assailed the prosecution case as one engineered by the police. He has impressed upon us the fact that the crime is one that has been perpetrated in an entirely different manner by offenders who would be very different than the convicts before us. According to him, the appellants have been framed by the police, either at the instance of the true offenders who might be acquaintances of the family or their kinsmen, or the prosecution is the result of an easy solution to a complicated crime that the police have contrived.
21. To all this end, learned Counsel for the appellants has drawn the Court's attention to some early signs of doubt about the prosecution case. It is pointed out by him that the First Information Report in this case was lodged by Ajay Kumar Rai, after an information he received from Anil Kumar Rai over telephone that some untoward incident had happened at the house of the informant's cousin, Rakesh Chandra Rai. He points out that Anil Kumar Rai is a cousin of the informants. The informant was at his shop in a village 25 kilometers away at the time he received this information, at 8 o' clock in the morning. He proceeded to the house of Rakesh Chandra Rai along with other members of the family, where they found a congregation of people outside the entrance door, that was bolted from within.
22. Learned Counsel for the appellants submits that discovery of the crime thereafter, by Ajay Kumar Rai and others is quite another matter. What is intriguing, according to Sri Ashok Kumar Mishra is the fact that Anil Kumar Rai, who was himself a cousin of Rakesh Chandra Rai did not move in with the aid of all those who were present there to discover what had befallen the inmates of the house, all of whom were his relatives. In a display of conduct, highly unnatural to meet a suspected emergency, he called another cousin of his, that is to say, Ajay Kumar Rai to come over and find out what had befallen the family.
23. Moving further with his submission that the prosecution story is suspect at its inception, learned Counsel for the appellants submits that it is not just that, that Anil Kumar Rai called up Ajay Kumar Rai to come all the way over to the place of occurrence to find out what had happened to the family who became victims of the crime, but he chose to call the first informant over in the face of an emergency, though the informant was located at a distance of about 25 kilometers from Gorakhpur in Village Chandi Gaon. It took Ajay Kumar Rai some 40 - 45 minutes to reach Gorakhpur, and some more to reach the place of occurrence. Once at the house of Rakesh Chandra Rai, the informant found Anil Kumar Rai and his brother Pramil Kumar Rai present, along with a big crowd of unrelated persons. Learned Counsel for the appellants submits that there was no earthly reason for Anil Kumar Rai or Pramil Kumar Rai, both of whom were cousins to Rakesh Chandra Rai, not to have acted swiftly and moved in with the others present to find out whatever had happened inside Rakesh's house, when everyone present suspected some mis-happening. In this regard, learned Counsel for the appellants has drawn attention of the Court to the evidence that figures in the cross-examination of Ajay Kumar Rai at page 63 of the paper-book.
24. Dwelling further upon the suspicious circumstances attending the earliest steps taken by the family to discover the crime leading to the First Information Report, it is pointed out by the learned Counsel for the appellants that Ajay Kumar Rai who deposed before the Trial Court as PW-1, has said in his examination-in-chief (as well as his cross-examination) that he and Anil Kumar Rai, on finding the main door to the house bolted, gained entry via the house of one H.N. Singh, located to the north of Rakesh's house. They did so after moving in to H.N. Singh's house through his main-gate and scaling the wall dividing the two premises.
25. Learned Counsel for the appellants has placed much emphasis on the fact that H.N. Singh, who would be the earliest independent witness about the manner of crime, or atleast its discovery, was never examined by the police, and of course, never examined as a prosecution witness. In this connection, the attention of the Court has been drawn to the examination-in-chief of Ajay Kumar Rai recorded during trial, that figures at page 58 of the paper-book, and his cross-examination at page 65.
26. It is submitted, thus, in substance by the learned Counsel for the appellants that the First Information Report does not at all disclose the true and the earliest account about discovery of the crime that has been perpetrated in a very different manner, and by assassins, completely unrelated to these convicts. The First Information Report is a prelude to a complete story of falsehood that the prosecution witnesses have lateron come up with; including the story that the injured witness, Smt. Renu Rai, PW-3 has given out falsely on oath in her testimony.
27. Sri J.K. Upadhyay, learned A.G.A. and Sri Rajendra Rai, learned Counsel for the complainant, have refuted the aforesaid submissions of the learned Counsel for the appellants. They have said that the First Information Report is a very natural depiction of the behaviour of close relatives, where a number of their family members became victims of a heinous crime of this nature. There is nothing unnatural about the First Information Report, or to harbour suspicion about the prosecution case on its basis.
28. This Court would consider a little later in this judgment, this and the other submissions advanced on behalf of the appellants. It would be more profitable to record those submissions together with the prosecution's response before moving in to analyze the worth of the prosecution case.
29. There is then a whole lot of scathing criticism about the manner of the appellants' arrest and, more fundamentally, how these appellants came to be connected to the crime. Learned Counsel for the appellants submits that the manner in which the appellants have been shown to be arrested in connection with an NDPS Case near a place called Baudh Sangrahalaya on 12.12.2001, and then shown to be identified by Renu Rai, the sole survivor of the crime and an injured witness, who was passing by, riding pillion with PW-1, Ajay Kumar Rai and Anil Kumar Rai on way to the hospital, ex facie, makes it look like a foisted case. The arrest and the identification, both, that are said to have happened spontaneously, connecting the appellants to the crime, is hard to believe.
30. Learned Counsel for the appellants has laid particular emphasis about the prosecution case to the effect that on 12.12.2001 at 12.30 p.m., the surviving and injured witness, Renu Rai was accompanying PW-1, Ajay Kumar Rai and PW-2, Anil Kumar Rai to the hospital and as they approached a place called Baudh Sangrahalaya, they found near one Arjun's grove a large crowd of people. Upon seeing the crowd, they moved to the grove and there found the appellants in police custody. It is the prosecution case that they were arrested in connected with recovery of Narcotics (Ganja) and certain items of jewelry, that were until then not connected to any crime. Upon seeing the appellants, Renu Rai immediately identified them as the men who had pulled the dacoity at her home and brutally murdered her family members. In this connection, Sri Ashok Kumar Mishra has invited the attention of the Court to the examination-in-chief of PW-1, Ajay Kumar Rai which is extracted below:
"इसके बाद पुलिस घटना स्थल पर पहुंची। दिनांक 12.12.2001 को करीब साढ़े बारह बजे दिन में मै रेनू राय व अनिल कुमार राय के साथ अपने मामा के घर से रेनू को दिखाने अस्पताल जा रहे थे तो बौद्ध संग्रहालय के पास रामगढ़ परियोजना में बाई पास रोड के बगल में अर्जुन के बाग के पास भीड़ देखकर हम लोग वहां गये तो वहां हम लोगों ने देखा कि मुलजिमान हाजिर अदालत को पुलिस ने पकड़ा हुआ है उनके पास से गाजा और मेरे भाई राकेश चन्द्र राय के घर से हत्या कर लूटे हुये दो मंगल सूत्र, चांदी की बिछिया, और एक 1901 का सिक्का बरामद हुआ था जिन्हे रेनू ने पहचाना था और अभियुक्तों को देखते ही उसने कहा था कि यही वे लोग हैं जो मेरे घर लूट पाट किये थे और हत्या किये थे।"
31. To the same effect, learned Counsel for the appellants has pointed out, is the account of identification and arrest of the appellants in connection with this crime by PW-2, Anil Kumar Rai, that finds place in his examination-in-chief, dated 20.08.2002. He has laid particular emphasis on the testimony of PW-3, Renu Rai, the injured and sole surviving witness, who also speaks in identical terms in her examination-in-chief about a wayside and spontaneous identification of the accused by her and their ensuing arrest. Learned Counsel for the appellants has referred to the concluding part of her examination-in-chief, dated 05.09.2002 and the substantial part of it recorded on the following day, i.e., 06.09.2002. The part of deposition of PW-3, referred to by the learned Counsel, recorded on 05.09.2002, reads to the following effect:
"12.12.2001 को दस बजे दिन में अनिल चाचा और अजय मौसा आये और वहां से सवा बारह बजे के करीब निकले डाक्टर के यहां जा रहे थे।"
32. The resumed deposition of PW-3, Smt. Renu Rai on 06.09.2002, that is in continuation of what is extracted above, reads thus:
"मामा के घर से निकले तो वहां से बाई पास रोड पर आये कुछ दूर आगे आकर फिर हम उत्तर की तरफ गये बौद्ध संग्रहालय के पास आई तो वहां पुलिस दिखी वहां पर रुकने के बाद मेरे चाचा और मौसा आपस में बात किये कि यहां पुलिस क्यों खड़ी है वहां से करीब एक सौ मीटर की दूरी पर काफी भीड़ दिखाई दी भीड़ देखने के बाद मेरे चाचा और मौसा वहां लेकर के गये। जब मैं वहां पर पहुंची तो वहां पर भीड़ थी पुलिस वालों ने छः आदमियों को पकड़ा था उनमें से पांच आज न्यायालय में उपस्थित हैं वहां जब मैने देखा तो मैने कहा कि यही वह पाँच आदमी है जिन्होंने मेरे बच्चों व माता पिता भाई व परिवार वालों को मार डाला।"
33. It is next urged by the learned Counsel for the appellants that the Investigating Officer, PW-9 in his cross-examination on behalf of appellants, Raju Mali and Jeewan Mali, dated 02.04.2003 has said that until 11.12.2001, there was no information or knowledge about the identity of the perpetrators. He was tipped off by an informer that some criminal elements were about the place at Tara Mandal (near Baudh Sangrahalaya). He has said that acting on the said tip off, he arrested the appellants on 12.12.2001 from Tara Mandal. He has specified their number to be five in the first instance, and has lateron, modified it to a figure of six. These men were arrested in connection with a case of recovery of narcotics. The recovery of narcotics had led to recovery of some unconnected items to the narcotics case that were pieces of valuable jewelry. While the Investigating Officer was interrogating the six men arrested in connection with the narcotics matter, more about the additional recovery, PW-3 arrived there along with PW-1 and PW-2, and identified the six men present as perpetrators of the present crime spontaneously. It is emphasized that in the evidence of the Investigating Officer, it has again been admitted that no member of the public witnessed the recovery, except the Rai Family. The relevant part of the evidence of the Investigating Officer, upon which account Sri Mishra has laid great emphasis, is reproduced infra:
"दिनांक 11.12.01 तक कोई भी मुलजिम प्रकाश में नहीं आया था। रेनु राय से मेरी मुलाकात 9.12.01 को आजाद नगर में अजय राय वादी मुकदमा के घर पे हुआ था। फिर कहा कि रूस्तम पुर ढाल पर बयान लिया था। दिनांक 9.12.01 को रेनु का बयान लेने के बाद दिनांक 12.12.01 को मुलजिमान को तारा मण्डल से हम लोगों ने गिरफ्तार किया था। कुल पांच मुलजिम पकड़े थे। मेरे खास आदमी मुखबिर ने सूचना दिया था कि कुछ अपराधिक किस्म के आदमी तारा मण्डल के पास है। जिस व्यक्ति ने तारा मण्डल के पास कुछ अपराधिक व्यक्ति के बारे में होने का सूचना दिया था मैं उसका नाम नहीं बता सकता।
अजखुद कहा कि 6 मुलजिमानों को पकड़ा गया था। जिस व्यक्ति ने सूचना दिया था उसका नाम बताना उचित नही है। यह सूचना मुझे 10 बजे दिनांक 12.12.01 को मिली थी। यह सूचना मुझे राय गढ़ ताल चौकी पर मिली थी। इस सूचना पर तुरन्त हम लोग तारा मण्डल पहुंच गये और 6 व्यक्ति वहां बैठे मिले। मौके पर पब्लिक के काफी लोग वहां पहुंच गये थे। वहां मौजूद पब्लिक में से मुलजिमान की गिरफतारी का साक्ष्य नही है। बरामदगी का कोई साक्ष्य राय परिवार के अलावा वहां मौजूद काफी लोगों में कोई गवाह नही है। मुलजिमान हम लोगों को देख नहीं पाये होगें इसलिए भगे नही।"
34. Learned Counsel for the appellants has submitted that it is not about the fine details of the prosecution account coming from these three witnesses, pitted against the contradictions here and there about this account in their cross-examination that he emphasizes. According to him, this story about the surviving and injured witness, PW-3, Renu Rai, proceeding to the hospital or a Doctor along with her uncles Ajay and Anil in connection with her treatment, and suddenly on seeing the police or a crowd of people in a grove, close to the Baudh Sangrahalaya, abandoning course and moving in to find out what was afoot there, is inherently unbelievable. He submits that it is beyond comprehension that a vulnerable and shaken person, like Renu Rai, proceeding to a Doctor for a checkup, would suddenly change course on seeing the police or a crowd; to do so is not in keeping with normal or even a slightly variant standard of human behaviour. It is urged by him that on seeing the police along with a crowd, the natural tendency of any peace-loving and law abiding citizen is to move away as sights like these are in the common experience of men of ordinary prudence, sources of brooding trouble. No one wishes to barge into a crowd mixed up with the police to find out what has happened. According to the learned Counsel for the appellants, this is almost a universal reaction of persons circumstanced as the three prosecution witnesses. To add to it is the fact that they were a family, hardly emerged from the trauma of a big crime and tragedy. PW-1 and PW-2, according to their consistent account, had moved out with PW-3 to seek medical consultation. It is in these circumstances preposterous to suggest much less believe, in the submission of Sri Ashok Kumar Mishra that all three of them would move out to a sight that in common perception of men no source of attraction, recreation or curiosity.
35. The account of identification and arrest given by the Investigating Officer in his evidence, in the submission of the learned Counsel for the appellants, is also to its face, shaky and unreliable. In particular, he submits that the fact that the Investigating Officer has spoken about arresting in the first instance five accused in connection with the narcotics case, and lateron correct himself to make it a figure of six, makes the entire prosecution case a riddle about the sixth man apprehended. This is so because the charge sheet in the case has been filed against five men alone, and there is no explanation in the submission of Sri Mishra as to what happened to the sixth man apprehended. The absence of a cogent explanation by the prosecution as to why the sixth man apprehended was not put up for his trial, renders the prosecution seriously doubtful. It is also pointed out by the learned Counsel for the appellants that the Investigating Officer has said in his cross-examination, dated 09.05.2003 at the instance of appellants, Shyam @ Sambhal and Rinku that the arrest took place a little before 12.30 p.m., whereas recovery of narcotics and other articles was made at 12.30 p.m. (on 12.12.2001). The arrest of all the appellants in connection with the narcotics case that were registered as five separate crimes against them was shown at 10.30 a.m. This according to the learned Counsel for the appellants shows that the time of arrest is not certain, which furthers the appellants' case that their implication in the crime was the result of manipulation done by the police in order to do a face saving exercise. The appellants have merely become scapegoats.
36. Learned Counsel for the appellants submits that the account of identification can either be utter falsehood or one that came about in a preplanned manner on a tip off from the police. He also submits that the possibility of this manner of identification and arrest being utterly false, never to have taken place that way is very high, bearing in mind the fact that about this identification and arrest, which involves some recovery also, no witness of the public has been associated; much less examined before the Court. On this part of his submission, Sri Mishra says that the absence of a public witness about this wayside and fantastic identification followed by arrest shows it to be the result of a concocted story conjured up by the police, in connivance with the first informant and the two other prosecution witnesses. There is no independent witness to corroborate it. It is urged that this kind of an inherently unbelievable identification and arrest, in the absence of some independent and corroborating evidence, makes the prosecution story unbelievable. It is also emphasized that since this identification and arrest is a very relevant fact, on the basis of which the appellants have been connected to the crime, the failure of the prosecution to prove it, knocks the bottom out of their case.
37. The next submission of Sri Ashok Kumar Mishra, learned Counsel for the appellants is closely connected to the one about the manner of identification and arrest. It is about recovery of some case property and the weapon of offence. It is urged on behalf of the appellants that it has clearly figured in the deposition of PW-1, that when he along with Renu Rai and Anil Kumar Rai reached the place where the accused had been arrested and they were identified by Renu Rai spontaneously, the police showed them some recovered articles of dacoity that they had already recovered from the accused. It is urged that this recovery of what have been dubbed as part of the dacoits booty was not recovered in presence of either PW-1, PW-2 or PW-3. There is no witness to this recovery, either from the complainant's family or amongst the public. This recovery was shown by the police to have been made along with the recovery referable to the NDPS Case, in connection whereof the accused were shown to be falsely arrested from the grove near the Baudh Sangrahalaya. The recovered articles are attributed to a chance recovery, along with the recovered narcotics. It is only lateron, when the victim of the crime, PW-3 along with PW-1 and PW-2 arrived at the scene of occurrence and PW-3 is said to have spontaneously identified them, that they were shown the recovered articles of loot, which Renu Rai PW-3 is said to have identified. In this connection, learned Counsel for the appellants has drawn attention of the Court to the deposition of PW-1 during his cross-examination, dated 13.08.2002 at the instance of the appellants, Raju Mali and Jeewan Mali. This deposition is extracted below:
"रेनु अभियुक्तों को देखते ही पहचान गई और आवेश में आकर के उलझने लगी। पुलिस ने अभियुक्तों के पास से पहले से बरामद सामान दिखाया, ये सामान दरोगा जी रखे थे। दो मगंल सूत्र चांदी का जिसमें एक मगंल सूत्र टूटा हुआ, दूसरा मगंल सूत्र जिसमें चांदी के लाकेट में सीकड़ में सोने का पानी चढ़ा हुआ था और चांदी की बिछिया, टूटे मगंल सूत्र में मोती के दाने लगे थे जो काले रंग के थे और एक ज्ञान (हथौड़ी) भी बरामद हुआ था। साथ ही एक चादी का सिक्का 1901 का बरामद हुआ था जिसे रेनु ने पहचाना था।"
38. Likewise, PW-1 in his deposition dated 14.08.2002, that is part of his cross-examination at the instance of the appellants, Shyam @ Sambhal and Rinku has said to the following effect:
"मेरे सामने पुलिस के द्वारा कोई मंगल सूत्र या चाँदी का सिक्का बरामद नहीं किया था और मैं यह भी नहीं बता सकता कि किस अभियुक्त के पास से कौन सा सामान बरामद हुआ था। यह कहना गलत है कि मेरे सामने मुलजिम की निशान देही पर कोई सामान बरामद नहीं हुआ।"
39. Learned Counsel for the appellants has also drawn our attention to the deposition in the examination-in-chief of Anil Kumar Rai, PW-2, relating to recovery of the articles of loot. The aforesaid deposition recorded on 20.08.2002 reads as follows:
"हम लोगों के पहुँचने के पूर्व पुलिस ने इन बदमाशों के पास से दो मंगल सूत्र जिसमें एक मंगल सूत्र काले रंग की गुड़िया और चांदी का लाकेट व सिकड़ी जिस पर सोने का पानी चढ़ा था, दूसरा मंगल सूत्र जिसमें काले रंग की मोतिया और चार सोने की गुड़िया गुथी हुई थी और टूटा हुआ था। एक चांदी का सिक्का जिस पर 1901 अंकित था। बिछिया एक अदद बरामद किये गये थे।"
Again, on the following day, that is to say, on 21.08.2002, PW-2 spoke about the recovery of these articles in the following words:
"जो सामान दरोगा जी बरामद किये थे वह सब डिब्बों में अलग अलग मेरे सामने सील किये थे। वह सामान सील्ड हालत में अलग अलग डिब्बों में मेरे सामने है। जिसकी सील मुहर दुरूस्त है। न्यायालय की आज्ञा से वकील मलजिमान को दिखा कर सील खोला गया। सील खोलने पर एक डिब्बें में से काले रंग की मोतियों की माला (मंगल सूत्र) व चार सोने की गुरिया निकली मगंल सूत्र का धागा टुटा हुआ है। दूसरे डिब्बे से मंगल सूत्र मय लाकेट जिस पर सोने का पानी चढ़ा है मय सिकड़ी चांदी की जिस पर सोने का पानी चढ़ा हुआ है, व तीसरे डिब्बे में से एक जोड़ा चांदी की बिछिया व 1901 का एक सिक्का चांदी का निकला। जिन पर क्रमशः वस्तु प्रदर्श 1 ता 4 डाला गया। बरामदशुदा इन सामानों को देखकर रेनु ने कहा कि यह सब सामान उसके है। इस सामानों को पुलिस ने इन मुलजिमान हाजिर अदालत से बरामद किया था। बरामदशुदा सामानों की लिखा पढ़ी हुई थी इसी स्थान पर हुई थी जिस पर मैने भी हस्ताक्षर बनाये थे वह फर्द मेरे सामने है जिस पर प्रदर्श क-3 डाला गया।"
40. Learned Counsel for the appellants has also laid emphasis on the deposition of PW-3, Smt. Renu Rai who has spoken about this recovery of the looted articles by the police from the arrested men, in her examination-in-chief on 06.09.2002, thus:
"जब मै चिल्लाने लगी और रोने लगी तो पुलिसवालों ने मुझे कुछ सामान दिखाया। दो मगंल सूत्र दिखाये व एक चांदी का सिक्का व एक जोड़ा बिछिया था जो पुलिस वालों ने मुझे दिखाया जो मेरा था। एक लोहे का हथोड़ा दिखाया। बरामद शुदा सामान जो डिब्बे में सर्व मुहर है खोला गया। बरामद शुदा सिक्के पर सन 1901 अंकित है।"
41. Learned Counsel for the appellants submits that the recovery is in two different parts, both of which are not only different about the nature and character of the articles recovered, but the legal incidents thereof. He submits that so far as the recovery of looted articles of property attributed to the appellants is concerned, this recovery from the evidence of the three witnesses of fact, as well as the recovery memo dated 12.12.2001, Ex. Ka-3, is not at all referable to a recovery under Section 27 of the Evidence Act. This recovery is one that the police claim to have been made from the appellants on the wayside, while they were being searched in connection with the NDPS Cases. That search had led to recovery of Ganja from their possession, and along with it, one or the other of the looted articles from three of the appellants as a matter of chance. It was not the kind of recovery that was made at the instance of the appellants who disclosed it ahead of the recovery, which then was made at their pointing out. The recovered articles according to the recovery memo, distinct and separate from the narcotics recovered, were shown to PW-3, Smt. Renu Rai, when these were already in the hands of the police, claimed by them to be recovered from the appellants. These articles were identified by Smt. Renu Rai as part of the looted property, but Smt. Renu Rai or for that matter PW-1 or PW-2 are not witnesses of this recovery.
42. Sri Mishra, learned Counsel for the appellants points out that a perusal of the recovery memo dated 12.12.2001, Ex. Ka-3 shows that it is signed by the accused, the police party, besides Ajay Kumr Rai, Anil Kumar Rai and Smt. Renu Rai. It is submitted by Sri Mishra that this recovery memo is a document, that is hardly of any worth. According to him, the reason is that this recovery was made by the police in connection with the NDPS Case, and, in fact, that the recovery of these articles was also shown in the NDPS Case Recovery Memo. Once the injured, PW-3 identified the appellants, as claimed by the prosecution, recovery memo, Ex. Ka-3 was drawn up, assigning the claimed articles of loot to the present crime. PW-1, PW-2 and PW-3, who have signed the recovery memo, have not witnessed the recovery. He submits that these articles of loot were picked up from the scene of crime, where a lot of jewelry lay strewn and foisted upon the appellants. There is absolutely no public witness of this recovery as would be evident from a perusal of the recovery memo, Ex. Ka-3. Learned Counsel for the appellants has also referred to the evidence of PW-1, PW-2 and PW-3, which according to him, consistently shows that the police claimed to have already recovered these articles as part of the NDPS Case apprehension of the appellants and investigation. PW-3 lateron identified them as perpetrators of the present crime. The evidence of the three witnesses, thus, clearly shows that they were shown the claimed articles of loot, what the police had already recovered. None of the prosecution witnesses have stated that these articles of loot were recovered from the appellants in their presence. Also, the recovery of these articles is not endorsed by any other member of the public. The submission, therefore, of the learned Counsel for the appellants is that the entire recovery of the claimed articles of loot is planted.
43. We may now refer to the submission of the learned Counsel for the appellants regarding second part of the recovery. It comprises the weapon of offence, a stick made of guava tree wood, a rexine bag carrying a label of its make described as 'VIP' and the contents of the bag, that revealed a black coloured wallet with an identity card of Rakesh Chandra Rai, bearing his photograph issued by the Commissioner of Income Tax, Allahabad and a small diary, bearing the name of Chandra Shekhar Rai and his address. The bag aforesaid carried another small diary, also bearing the name of Chandra Shekhar Rai.
44. All these recovered articles claimed by the police have been shown through a separate recovery memo, also dated 12.12.2001, but bearing Ex. Ka-2. In the submission of Sri Mishra, this recovery is distinct and different from the first, not only about the contents, but the manner in which it has been made and its legal incidents. This recovery is shown to have been made after the appellants were identified by PW-3, Renu Rai. The appellants are then said to have made a disclosure and led way to the place where they had hidden these articles. It is claimed that they led the police along with PW-1, PW-2 and PW-3 to a place, where they left the main road and went into Arjun's grove. There, from under a shrub they recovered the rexine bag and the guava wood stick. The contents of the rexine bag carrying the wallet with an identity card of Rakesh Chandra Rai and the diaries of the other deceased Chandra Shekhar Rai, were identified by Renu Rai as those of her fathers and brothers. The bag was identified as that of her brother, Chandra Sherkhar Rai as well as the diaries, whereas the wallet was identified, together with the identity card, as her fathers, by PW-3. The recovered stick is claimed to be smeared with blood, one hand and a three quarters in length. All these articles are shown to be sealed on the spot with the recovery memo being thumb marked by the appellants, signed by the police party, besides Ajay Kumar Rai, Anil Kumar Rai and Smt. Renu Rai.
45. Learned Counsel for the appellants points out that this recovery memo is not signed by any member of the public, who were around and available in abundance. The recovery memo also does not mention that members of public were invited to sign the recovery memo which they declined. It is urged that the recovery memo also does not say that members of the public went along with the police party and witnessed the recovery. Sri Mishra submits that the entire recovery, on a reading of this recovery memo, Ex. Ka-2, is to its face a product of falsehood and part of a design to frame the appellants. In this connection, apart from the contents of the recovery memo, through which we have been taken, Sri Mishra has drawn the attention of the Court to the examination-in-chief of Ajay Kumar Rai, dated 24.07.2002, where about this part of the recovery, that is subject matter of Ex. Ka-2, it is said by Ajay Kumar Rai, PW-1:
"मुलजिमानों ने कहा था कि पकड़े जाने के भय से हत्या में प्रयुक्त डण्डा व बैग झाड़ी में फेक दिया है आप कहे तो चल कर दे देवे। पुलिस इन अभियुक्तों को तथा हम लोगों को साथ लेकर झाड़ी के पास गई और अभियुक्तों के निशान देही पर हत्या में प्रयुक्ति अमरूद का डण्डा व बैग निकाल कर दिया जिसकी फर्द बनाई गई वह फर्द मेरे सामने है इस पर मेरा भी हस्ताक्षर है इस पर प्रदर्श क-2 डाला गया।"
46. Learned Counsel for the appellants has further laid emphasis about the testimony of this witness in his cross-examination at the instance of appellants, Raju Mali and Jeewan Mali, dated 13.08.2002, where he has said:
"जहाँ पर अभियुक्त पकड़े गये थे वहीं बगल से बाग के बाहर झाड़ी में से डंडा और एक बैग बरामद हुआ था। डंडा ढाई हाथ का था जो अमरूद का था। वहां जनता के काफी लोग एकत्र हो गये थे। पुलिस वालों ने मेरे सामने जनता के किसी आदमी की गवाही नहीं लिया था, मै रेनु व अनिल गवाह थे। इस सम्बन्ध में करीब 40-45 मिनट का समय लगा था। दरोगा का नाम आर0 सी0 मिश्र था और पुलिस के करीब 4-5 लोग थे, फिर वहीं से हम लोग डा0 संजीव श्रीवास्तव के अस्पताल चले गये।"
47. Likewise, learned Counsel for the appellants has referred to the deposition in the examination-in-chief of PW-2, Anil Kumar Rai, dated 21.08.2002, where about this part of the recovery, he has said:
"मेरे अलावा और किसने इस पर दस्तखत बनाया मुझे नहीं मालूम इसके बाद पुलिस ने मुलजिमान से पूछताछ की पूछताछ करने पे मुलजिमान ने पुलिस से कहा कि हत्या में प्रयुक्त डण्डा व बैग पकड़े जाने के भय से यही झाडी में फेंक दिया है कहिये तो चल कर दे देवे। इसके बाद मुलजिम आगे आगे उसके बाद पुलिस उसके बाद हम लोग व जनता गये और मुलजिमान ने अमरूद का डण्डा खून लगा हुआ और एक बैग निकाल कर दिया उस बैग को देखकर रेनु ने कहा कि यह मेरे भाई का है। बैग को दरोगा जी ने खोला जिसमें से दो डायरी एक आइडेन्टीटी कार्ड निकला डायरी चन्द्र शेखर राय का था और आइडेन्टीटी कार्ड राकेश चन्द्र राय का था।"
48. Learned Counsel for the appellants submits about this recovery that though this recovery, and not the one that relates to looted articles, is referable to Section 27 of the Evidence Act, it is as much false and the result of planting as the earlier one. In this connection, he lays particular emphasis on the fact that in the evidence of PW-1 and PW-2, there is no dearth of acknowledgment of the fact that members of the public were available in abundance and according to PW-2, they too had witnessed this recovery. However, the recovery memo is signed by the police party, the first informant, PW-1, the victim, PW-3 and PW-2, but by no member of the public. There is no earthly reason assigned, according to the learned Counsel for the appellants, why not even a single member of the public has signed this recovery memo, claimed as it is to be a recovery made within their sight. Learned Counsel for the appellants again emphasizes that the recovery memo does not carry any remark to the effect that members, one or more from the public present, were asked to sign and they refused. According to Sri Mishra, therefore, the recovery memo, that is referable and sought to be proved with the aid of Section 27 of the Evidence Act, is also the result of a planted and foisted recovery.
49. It is next submitted by Sri Mishra, learned Counsel for the appellants that seven persons have been done to death in this crime. Of them according to the autopsy report, two, Chandra Shekhar Rai and Smt. Leelawati Rai died due to throttling, whereas the other five died due to head injuries. It is submitted on behalf of the appellants that according to the prosecution based on the account of the surviving victim, Renu Rai, PW-3, one of the appellants, Shyam @ Sambhal alone was armed with a stick (danda). The other accused were not armed at all. He points out that a solitary stick (danda), according to the prosecution account, was shown recovered at the pointing of the appellants. However, on reference to the F.S.L. for serological examination of the blood smeared recovered stick (danda), the F.S.L. Examination Report, Ex. Ka-57, dated 17.08.2002 shows that the blood was disintegrated. He submits that there is no evidence of human blood being found on the recovered, alleged weapon of offence. He emphasizes that the recovered stick (danda) is admittedly the only weapon employed to bludgeon the victims, five of whom show that they died of head injuries. It is urged on the basis of the aforesaid evidence by the learned Counsel for the appellants that: the prosecution story is inherently unreliable, inasmuch as, it is beyond imagination that six or more assailants would enter a house to commit dacoity as scantly armed as the appellants here, where one of the entire group was carrying a stick (danda) with all others going bare handed; secondly, though the prosecution version based on an eye witness account by PW-3 shows it to be mostly an assault by a stick (danda), two of the seven victims died of throttling, about which there is no explanation. It strongly suggests that the crime was perpetrated in some other manner and by someone else, than that testified to by PW-3; and, thirdly, that the F.S.L. Report, dated 17.08.2002, reported the blood found on the sole weapon of offence, shown to be recovered from the appellants to be disintegrated. The said stick (danda) cannot be connected to the crime. Also, it suggests strongly that the recovery was fake, false and planted.
50. Learned Counsel for the appellants has assailed the testimony of injured witness, Smt. Renu Rai, PW-3 as a product of an illegal identification. He submits that the appellants were shown to Smt. Renu Rai on 09.12.2001 at the Police Station illegally, three days ahead of their arrest in a fake NDPS Case, followed by a sham and spontaneous identification by PW-3 on the wayside. The appellants who were held in connection with NDPS Case were claimed to be spontaneously and coincidently identified by a passing Smt. Renu Rai, PW-3 as the perpetrators of this crime on 12.12.2001. It is submitted by the learned Counsel for the appellants that the appellants were already in illegal custody of the Police, some days before their arrest in connection with the present crime or even the NDPS Case. No test identification parade was ever organized, so as to ensure a true and forthright identification of the offenders by the injured witness. Rather, these men were virtually introduced to Smt. Renu Rai on 09.12.2001 at the Police Station, and three days later, they were shown arrested in connection with the NDPS Case only to be fantastically identified by Smt. Renu Rai, as she was passing by. It is urged by Sri Mishra that the identification of the appellants on 12.12.2001 near the Baudh Sangrahalaya, where they were shown to be arrested in connection with the NDPS Case, was no identification at all. It is, according to the learned Counsel for the appellants, a pre-planned and scripted story by the police to connect the appellants to this heinous crime, after showing their arrest in an NDPS offence.
51. In this connection, our attention has been drawn by the learned Counsel for the appellants to the testimony of Smt. Renu Rai recorded on 18.09.2002, that figures as part of her cross-examination on behalf of the appellants, Raju Mali and Jeewan Mali. This testimony reads to the following effect:
"जब मै लखनऊ अस्पताल से वापस आई तो मुझे पुलिस थाने ले गई थी। पुलिस ने मुझे वहां आठ नौ बदमाशों को दिखाया वहां पर मुलजिमान हाजिर अदालत नही थे पुलिस मुझे आठ या नौ बजे दिन में ले गई थी। इन बदमशों में मेरी पट्टीदारी या रिश्तेदारी का कोई नही था। उसी दिन फिर मुझे रात के आठ नौ बजे पुलिस थाने ले गई और वहां नौ दस बदमाश थे और ये हाजिर अदालत मुलजिमान भी थे। दिन में ये मुलजिमान वहां नही थे रात में थे। मै वहां पर इन सारे बदमाशों को पहचानी थी और कहा था कि इन्ही बदमाशो ने मेरे यहां कान्ड किया है। उस रात मेरे साथ मेरे मौसा अजय कुमार राय और मेरे चाचा दुर्गेश राय थे। बौद्ध संग्रहालय मै जब गई थी उसके एक दिन पहले नौ तारीख को मुलजिमान को पहचाना था। उस रात में एक मुलजिम थाने में और था और जो मेरे घर में हुये घटना में शरीक था। परन्तु आज वह न्यायालय में नही है नौ तारीख को दरोगा जी ने पहचान के बाद मेरा signature करवाया था । मेरे अलावा और किसी का signature नही कराया था । थाने पर रात में नौ तारीख को मै बीस पच्चीस मिनट रही थी। फिर मै अपने चाचा मौसा के साथ घर चली आई। नौ तारीख के बाद फिर पुलिस मेरे यहां नही पहुची। दरोगा जी ने मेरा कोई बयान नही लिया। दरोगा जी ने वारह तारीख को मेरा बयान लिया था।"
52. Learned Counsel for the appellants has also drawn the attention of the Court to the deposition of this witness recorded on 19.09.2002, next following what has been extracted above. On the said date, her statement to the police that she was proceeding to the Hospital, along with Anil Kumar Rai and Ajay Kumar Rai from Shivaji Nagar Colony, was put to her. In response, she said in her cross-examination thus:
"मैने दरोगा जी को यह बयान नही दिया था कि "दिनांक 12-12-2001 को मै शिवाजी नगर कालोनी से अपने परिवार के अनिल कुमार राय व अजय कुमार राय के साथ अस्पताल जा रही थी"। यदि दरोगा जी ने मेरे बयान में उपरोक्त बातें लिखी है तो मै इसकी कोई वजह नही बता सकता।"
53. It is on the strength of this testimony of PW-3 that the learned Counsel for the appellants submits that there was absolutely no identification of the appellants on the wayside, near the Baudh Sangrahalaya. Nothing of the kind as said by the prosecution witnesses about identification, including PW-3, ever came to pass. The appellants were got identified by the police on 09.12.2001 at the Police Station, and lateron, shown to be arrested in Arjun's grove, near the Baudh Sangrahalaya in a fake NDPS Case. They were then foisted with illegal and fake recoveries said to be proceeds of the dacoity, as also weapons of the crime and some other articles. They were shown to be arrested on a chance identification, that never happened. A bogus statement of Smt. Renu Rai, PW-3, was shown to be recorded on 12.12.2001, post the appellants' fake arrest. It is, in particular, emphasized by Sri Mishra that it is for this reason that none of the recovery memoranda bear signatures of members of the public, except those of Smt. Renu Rai, Anil Kumar Rai and Ajay Kumar Rai.
54. It is submitted on behalf of the appellants that the entire evidence of Smt. Renu Rai, PW-3, who is the prosecution's star witness, collapses under the weight of the fact that all the appellants were introduced to her as the offenders, prior to their sham arrest in the present crime and the antecedent arrest in the NDPS Cases.
55. Sri J.K. Upadhyay, learned A.G.A. and Sri Rajendra Rai, learned Counsel for the complainant have refuted the various contentions put forth on behalf of the appellants and have submitted that the categorical testimony of PW-3, Smt. Renu Rai, who is an injured witness, cannot be trifled with for lapses of investigation, even if they be serious lapses. They have submitted in one voice that the deposition of Smt. Renu Rai is consistent about the involvement of the appellants in the crime and she has described in graphic detail, what befell her family on the fateful night. It is emphasized by the learned A.G.A. as well as learned Counsel for the complainant that Smt. Renu Rai does not know the appellants or has any kind of acquaintance with them. She has no reason to falsely implicate them in a heinous crime.
56. We have carefully considered rival submissions advanced on behalf of both sides.
57. It would be convenient to consider under definitive heads the facts in issue or relevant facts that have been the subject matter of contention before us.
(1) The First Information Report and circumstances attending it
58. The submission of the learned Counsel for the appellants that the sequence of events and circumstances, leading to discovery of the crime and registration of the First Information Report, shows it to be a false account and a coverup for what was the truth about it, is to be seen with reference to the circumstances in which the First Information Report was registered. To the understanding of this Court the First Information Report came to be registered when Anil Kumar Rai and his brother, Pramil Rai, being cousins of the deceased, Rakesh Chandra Rai, were informed, or otherwise came to know from neighbours that there was an unusual quiet about the house in the morning of 22.11.2001. No one was moving there and the door was bolted from within. Sensing trouble, the neighbours along with these two kinsmen of Rakesh Chandra Rai had assembled outside his entrance, where the gate or the main door was bolted from within. Neither the neighbours or Anil or Pramil moved in to see what had happened to the inmates. Instead, he called up over telephone, Ajay Kumar Rai, who is somewhere described as a cousin of Rakesh Chandra Rai, but is in fact his brother-in-law (husband of wife's sister). He conveyed to Ajay Kumar Rai the circumstances that led him and others gathered outside Rakesh's premises to believe that something untoward had happened to the inmates. Anil Kumar Rai asked Ajay Kumar Rai to come over immediately. Anil Kumar Rai waited for Ajay Kumar Rai to come over instead of moving in himself, along with others to render assistance to inmates of the house, whom everyone present believed to have suffered some ill-happening. Ajay Kumar Rai was located in a certain village Chandi Gaon, some 25 kilometers away from the Gorakhpur Headquarters. On receiving information, he immediately moved with other family members, but reckoning the distance between the village Chandi Gaon and Gorakhpur Headquarters, it took him about 45 minutes to reach Gorakhpur, and some more time to reach Rakesh Chandra Rai's house. It was, upon Ajay Kumar Rai's arrival that Anil Kumar Rai along with Ajay Kumar Rai, gained entry to the house of Rakesh Chandra Rai, after scaling a wall, separating his premises from those of one H.N. Singh, whose house the two entered through the main-gate. It is this conduct of Anil Kumar Rai and Pramil Rai, that has been the subject matter of scathing criticism about the First Information Report being the narrative of a false account and a coverup.
59. To our understanding, there is nothing unnatural about it all. The conduct of men on encountering a particular situation is to be evaluated going by the prevalent circumstances in a society. It is not that the conduct of Anil Kumar Rai, his brother Pramil Rai, in awaiting arrival of Ajay Kumar Rai before moving in to the house has to be judged with reference to some copy-book model of ideal behaviour. And, then every departure or a serious departure from it viewed as a circumstance casting suspicion over their conduct, or the first information they lodged. In contemporary times, and times not so contemporary also, the dis-motive of false implication by the police, or at least spending a torturous time being interrogated as a suspect outweighs the motive of ordinary and respectable men to rush in and rescue their fellowmen, or even relatives who might have become victims of a suspected crime or an accident. Under the circumstances, if Anil Kumar Rai or his brother, Pramil Rai thought that they better await the arrival of Rakesh Chandra Rai's brother-in-law, before anyone moved in to see what had happened, the conduct cannot be castigated as unnatural. It must be remarked that due to the fact that anyone who comes close to a suspected or potential scene of crime has to spend quite an unpleasant time, going by the hard handed, high handed and stereotyped investigation by the police, applying outmoded methods, many a life is lost, that could be saved by any good spirited and respectable man. In these circumstances, Anil Kumar Rai or his brother, Pramil Rai did not do anything unnatural in waiting for Ajay Kumar Rai's arrival, along with other members of the family.
60. It would be noticed that our assessment of the situation is in no way a hyperbole, if one were to look to the fact that even unconnected men who had congregated, may be neighbours or just passers by, also did not venture in to take the risk of finding out what had happened to the inmates of the house. No one ventured in until the closest of relatives to the family had arrived, so as to be all differently placed and sufficient in number to bear the brunt of an expected, rustic investigation by the police.
61. In our considered opinion, the conduct of Anil Kumar Rai, his brother, Pramil Rai, all members of the public who had collected outside the house where the crime occurred, as well as that of Ajay Kumar Rai is not at all blameworthy or one that creates any doubt about the First Information Report, carrying a truthful account.
62. So far as criticism of the First Information Report based on non-examination of H.N. Singh is concerned, through whose main door Ajay Kumar Rai and Anil Kumar Rai went inside his house to gain access to the wall separating H.N. Singh's premises and those of Rakesh Chandra Rai, it may be a lapse of investigation on the part of the police, but in no way does it detract from the veracity of the First Information Report. It is true that H.N. Singh would be an independent witness about the manner of discovery of the crime on which the First Information Report is based, and logically ought to have been examined, but his non-examination would not throw the unqualified account of Ajay Kumar Rai and Anil Kumar Rai under any kind of doubt. On this score too, this Court is satisfied that there is nothing about the circumstances leading to the First Information Report or the manner in which the crime has been reported to be discovered, that may cast some legitimate doubt about the First Information Report.
(2) The manner of arrest and connecting the appellants to the crime on its basis
63. About this relevant fact, this Court has heard elaborate arguments on both sides. The learned Counsel for the appellants has been more emphatic about it. It would not be of much utility to recapitulate the appellants' contention about it for every fine detail, including the evidence on which the submissions are based. They have been recorded in the earlier part of this judgment where contentions of parties have been noticed. The manner of arrest is in the opinion of this Court a very relevant fact, because the arrest has ensued identification of the appellants by PW-3, Smt. Renu Rai. But, for the identification that is shown to be a chance occurrence, while the appellants were arrested in connection with an NDPS Case near the Baudh Sangrahalaya and PW-3, Smt. Renu Rai along with her uncles, Ajay Kumar Rai and Anil Kumar Rai suddenly alighting there en route to a Doctor, the appellants would not have been connected to the present crime.
64. It is true that persons of ordinary prudence and common men, like PW-1, Ajay Kumar Rai, PW-2, Anil Kumar Rai and PW-3, Smt. Renu Rai, would not be attracted or virtually drawn to a crowd of people in a grove, with police about the place. Learned Counsel for the appellants has laid much emphasis on this point that any person placed in the circumstances like the three prosecution witnesses would steer clear of troubles way, instead of plunging into it, as the prosecution witnesses have done. On the foot of this rather unusual behaviour, learned Counsel for the appellants has urged strongly, in conjunction with certain other relevant facts that either the prosecution witnesses were called over by the police to do a sham identification of the appellants who were already arrested and identified, or these witnesses never went to the place where the arrest is shown. No arrest in the manner shown was ever made.
65. In our opinion, it is indeed an exemplar of unusual behaviour that the prosecution witnesses circumstanced as they were would be drawn to the rather unseemly sight of a crowd mixed up with the police. They were a family, not yet emerged from a serious tragedy. According to the prosecution, Smt. Renu Rai was proceeding to the Doctors or the Hospital, whatever it might be, to seek medical treatment for some of the persisting fallouts of the assault that she had suffered. There is no particular reason suggested by any of the three witnesses, about what attracted them to the place where the appellants had been apprehended. While they were on way to the Doctors, there would have to be some very special reason for these witnesses to do so, which is conspicuous by its absence in their testimony. The identification of the appellants in the manner it is described by PW-1 in his examination-in-chief, quoted hereinbefore, makes for an account that more than meets the eye. Some articles of loot along with recovered narcotics were said to be lying there, which the witnesses saw and recognized, whereas PW-3, Renu Rai spontaneously identified the six arrested men as the perpetrators of this crime who had committed dacoity and murder at her father's house. It does seem rather unusual and unconvincing that each of the six men present, whom PW-3 had seen during the short period of time that the family suffered the crime, and she too was injured, would spontaneously recognize everyone of them. They were not her acquaintances. At the most one man about whom she has said elsewhere, visiting her place during the day portraying as a beggar could be recognized, but to believe that all six would be identified with precision and spontaneity, defies all good logic.
66. The arrest of the appellants in the NDPS Case and while they were held in police custody, being investigated for the narcotics crime, the sudden appearance of the prosecution witnesses, including PW-3 there, accompanied with prior recovery of some articles of loot and then a post disclosure recovery of the weapon of offence, along with a bag carrying some diaries and wallet to connect it to two of the deceased, appears to be too unnatural and real to happen around. The entire circumstances attending the arrest and identification of the appellants smack of pre-planned action, if at all it happened that way. The part related to recovery of the articles of loot, which is not provable under Section 27 of the Evidence Act, besides the post disclosure recovery attributed to the appellants, are closely related facts, that would soon be dealt with in this judgment. But, on the evidence on record, we are convinced that the appellants were not arrested or identified in the manner the prosecution wants us to believe. They appear to have been arrested under different circumstances, and charged first in connection with the NDPS Case; and, lateron, in connection with the present crime, but not in the manner described. They have been identified also elsewhere by the appellants, and not the way the prosecution urges.
(3) Recovery of some looted articles and the weapon of offence
67. While the learned Counsel for the appellants has assailed the recovery as one that is completely fake, made up and foisted, learned A.G.A. and Sri Rajendra Rai, learned Counsel for the complainant have emphatically submitted that both recoveries have been proved beyond any shadow of doubt. In the submission of the learned A.G.A. and the learned Counsel for the complainant, the first part of the recovery carries with it the guarantee of spontaneity, inasmuch as, the articles of jewelry looted were recovered during search in connection with the NDPS Case. These articles were, thereafter, spontaneously identified by PW-3, who appeared on the scene per chance. In the circumstances, according to the learned Counsel supporting the prosecution, there is no possibility of these recovered articles of loot being planted on the appellants. So far as the recovery of weapon of offence is concerned, it is submitted for the prosecution that the recovery is clearly one made in accordance with the provisions of Section 27 of the Evidence Act, after a disclosure made by the appellants and on their pointing out. There is no reason to doubt both sets of recoveries, that are embodied in the recovery memoranda, both dated 12.12.2001, Ex. Ka-2 and Ex. Ka-3.
68. The recovery of proceeds of dacoity attributed to the appellants is very different from recovery of the weapon of offence and certain other belongings that were recovered at the pointing of the appellants. The looted items of jewelry are said to be recovered from the appellants. Regarding these articles recovered, recovery memo, Ex. Ka-3 has been drawn up. This recovery memo has been drawn up after coincidental and spontaneous identification of the appellants by PW-3 in the grove, where they were held arrested in connection with the narcotics case. It attributes the recovery of a mangalsutra from the appellant, Shyam @ Sambhal with black coloured guria carrying a silver pendant in a gold polished chain, described as sikri. The appellant, Raju Mali was shown to be in possession of another mangalsutra, that carried black coloured beads with four gold gurias entangled in it. It is said to be in a dismembered state. Likewise, the recovery memo shows that from the appellant, Rinku a silver coin bearing the year of mint as 1901 was recovered, that bore the image of the King Emperor, besides two silver bichhia (a pair). It is mentioned in the recovery memo that these already recovered articles of jewelry when shown to PW-3, Smt. Renu Rai were identified by her immediately as her belongings and looted on the night of occurrence.
69. A perusal of the deposition of PW-1, dated 13.08.2002, that is part of his cross-examination at the instance of Raju Mali and Jeewan Mali extracted hereinbefore, clearly shows that these articles said to be recovered from the appellants, were shown as recoveries already made by the police. They were not recovered in the presence of PW-1 or PW-3. Likewise, PW-1 in his cross-examination on 14.08.2002 has categorically said that the police did not recover the mangalsutra or the silver coin in his presence. He could not say what article was recovered from each of the appellants. To the same effect is the deposition of PW-2 recorded on 20.08.2002, where he has clearly said that before the prosecution witnesses reached the place of arrest, the two mangalsutra, the gold coin and the bichhia (a pair) had already been recovered by the police from the appellants. Smt. Renu Rai, PW-3 who is said to have identified the accused on 12.12.2001, in the circumstances already detailed, has said about the recovery of this jewelry that belongs to her family in her examination-in-chief on 06.09.2002, that as she wailed and cried (upon identifying the appellants), the police showed her the two mangalsutra, the gold coin and a pair of bichhia, besides a hammer made of iron. It is, thus, evident that whatever was recovered as proceeds of the dacoity from the appellants, was not recovered in the presence of the prosecution witnesses, who have signed the recovery memo. They have signed the recovery memo, Ex. Ka-3 because the police gave them to understand that these articles were recovered from particular appellants, assigning them possession of different articles. The recovery memo is also not signed by any member of the public who are said to be present in large numbers. This recovery memo is not made after a disclosure statement or at least a prior mention of it, followed by its recovery at the pointing of the appellants. All these articles are said to be chance discoveries while the appellants were searched and held in connection with the NDPS Case. This part of the recovery is, therefore, not relevant under Section 27 of the Evidence Act. That, however, does not mean that the recovery cannot or could not at all be proved. It would have to be proved in accordance with law. Whether it is proved by cogent evidence in this case is quite another matter.
70. It has figured in the cross-examination of PW-1, dated 13.08.2002 at the instance of Raju Mali and Jeewan Mali that at the scene of crime, much articles of jewelry lay strewn. For reasons that we shall presently indicate, we do not find this recovery of looted jewelry from the appellants made by the police, unwitnessed by any member of the public, to be at all reliable. There is a strong possibility that these articles were planted on the appellants, while they were searched and held in connection with the NDPS Case. The other part of the recovery relates to the weapon of offence and a rexine bag carrying two small diaries belonging to the deceased, Chandra Shekhar Rai and a wallet with an identity card of Rakesh Chandra Rai, kept in it. Regarding these recoveries, a separate recovery memo, Ex. Ka-2, also dated 12.12.2001 has been drawn up. These recoveries have been made pursuant to a disclosure statement by the appellants recorded in the recovery memo, Ex. Ka-3, where the disclosure statement has been recorded in the following words:
"इस घटना में प्रयुक्त डण्डा व मिला बैग जिसमें डायरी व पर्स वगैरह था शिनाख्त के भय से हम लोगों ने यही झाड़ी में फेंक दिया है।"
71. Now, Ex. Ka-2 which is the recovery memo relating to the weapon of offence and the rexine bag that was looted, has been recorded in the following words:
"गवाह मौके पर मौजूद श्रीमती रेनू राय w/o श्री रणजीत राय R/o वेला सुल्तान पुर PS घोषी जनपद मऊ हाल पता शिवाजी नगर कालोनी PS खोराबार गोरखपुर व श्री अजय कुमार राय S/o श्री ओपी राय सा0 चांदी PS बासगांव जनपद गोरखपुर व श्री अनिल कुमार राय S/o श्री लाल जी राय R/o 345/B आजाद नगर नहर रोड रूस्तमपुर PS कैण्ट गोरखपुर के समक्ष पकड़े गये अभियुक्त श्याम उर्फ शम्मल, राजू माली, रिंकू चौधरी, धन सिंह, जीवन माली ने आगे-आगे चलकर मुख्य सड़क के उत्तर तरफ अर्जुन के बाग में फेंका गया झाड़ी से निकाल कर वैग रिकसिन का कत्थई छींटदार जिस पर वी0 आई0 पी0 का लेवल टीन का चस्पा है जिसमें काले रंग की दो चैन लगी है तथा अमरूद का डण्डा दिया, बैग खोल कर देखा गया तो एक पर्स काले रंग का जिसमें राकेश चन्द्र राय का फोटो लगा पहचान-पत्र आयकर आयुक्त इलाहाबाद के दस्तखती व एक छोटी डायरी जिस पर चन्द्रशेखर राय का नाम व पता लिखा है तथा नीव प्लाई लिखा है तथा एक छोटी डायरी जिस पर श्री चन्द्र शेखर राय का नाम लिखा है जिसे देखते ही रेनू ने बताया कि यह मेरे भाई की डायरी व बैग है तथा पर्स में मेरे पिता का पहचान-पत्र है उसी बैग में सभी डायरी व पर्स रखकर कपड़े में सील कर सर्व मुहर किया गया डण्डा का निरीक्षण किया गया तो डण्डे में खून का धब्बा लगा है डण्डे की लम्बाई करीब पौने दो हाथ है जिसे वजह सबूत कब्जा में लिया गया जिसे परीक्षण को ध्यान में रखते हुए एक कपड़े में सील कर सर्व मोहर किया गया।"
72. This recovery is relevant under Section 27 of the Evidence Act, being one made pursuant to a disclosure statement and also witnessed by the three prosecution witnesses. The prosecution witnesses are not in any way inimical to the appellants, or their prior acquaintances. Under usual circumstances, therefore, there should be no reason to distrust the fact that recoveries of these articles, that are subject matter of Ex. Ka-2 was made in their presence. It would again be quite another matter whether the weapon of offence is indeed one that was used in the crime or the fact that the bag recovered at the instance of the appellants, pursuant to a disclosure statement was after all a looted article that was thrown there, or under the circumstances of this case and the evidence that would be noticed hereinafter, the appellants were forced to make a false disclosure. And, lateron, planted articles by the police were shown recovered at their instance in the presence of the prosecution witnesses. In ordinary circumstances, it would be imprudent not to accept the recovery of the rexine bag, but other facts and evidence in this case impel us to doubt this recovery, if not altogether reject it. Those circumstances and evidence would be indicated shortly, in the totality of which the arrest, identification and recoveries, all have to be viewed.
73. So far as the weapon of offence is concerned, it is said to be a stick made of guava tree wood. It was found smeared with blood, according to the recovery memo, Ex. Ka-2. However, the serological examination report from the Forensic Science Laboratory, U.P., Lucknow, dated 17.08.2002, Ex. Ka-57, that is listed in the referred articles at serial no.6, has been found in the result to carry blood that was disintegrated, the origin of which could not be ascertained. The weapon of offence said to be recovered at the instance of the appellants cannot, therefore, be surely connected to the crime. So far as the rexine bag carrying the wallet and two diaries of two of the deceased in the crime is concerned, it is a recovery on the pointing of the appellants. It cannot be held proved, though not disapproved either. It falls in the category of a fact 'not proved' within the meaning of Section 3 of the Indian Evidence Act. The circumstances and reasons for us to doubt these recoveries too would be indicated, a little later in this judgment.
(4) Worth and value of the testimony of the sole surviving injured witness, PW-3, Smt. Renu Rai and its bearing, in particular, on the identity of the appellants as also recovery made from them
74. The prosecution have strongly depended upon the testimony of the sole surviving injured witness, Smt. Renu Rai, and say that it is enough by itself to convict the appellants. Sri J.K. Upadhyay, learned A.G.A. and Sri Rajendra Rai, learned Counsel for the complainant who have jointly canvassed the prosecution case before us have submitted that Smt. Renu Rai is the sole surviving and injured witness of the crime. She does not have prior acquaintance with the appellants, that may form basis to suspect a shadow of cause for a false or motivated implication. Learned Counsel for the prosecution have impressed upon the Court the fact that looking to the enormity of the crime, where all members of Renu Rai's family were done to death before her eyes, including her three young sons, there is not the slightest reason to doubt her evidence which is clear, categorical and graphic. There is no reason why PW-3 would falsely implicate the appellants or anyone else, for that matter. It is urged further that being an injured witness, her presence at the scene of crime cannot be doubted. It is also emphasized that she is also not an injured witness of the kind who might have been marginally afflicted in the assault. Like, the other victims, she too suffered battery at the hands of the appellants and remained hospitalized in a critical condition at Lucknow for a number of days. Unlike, the other victims, she was fortunate to have survived. As such, in the submission of the learned Counsel appearing for the prosecution, her evidence comes with an inherent guarantee of truth. There is no way it can be disregarded. Her evidence is of sterling quality, and enough by itself to convict the appellants. The infirmities pointed out by the appellants go no far than lapses or may be failures of an inept investigation. But, none of those lapses are of a kind or nature that may eclipse the eye witness account of PW-3, which the Trial Court has rightly relied upon to convict the appellants. Learned Counsel for the appellants on the other hand has called the testimony of PW-3, Smt. Renu Rai, the product of an illegal identification, and, therefore, vitiated. The details of his submissions in this regard have been recorded hereinbefore and need not be recapitulated.
75. Smt. Renu Rai is indisputably an eye-witness to the gruesome crime and a seriously injured one at that. Her testimony in itself no doubt carries great weight, comes as it does with an inherent guarantee of truth to it. She is a witness who has lost all her family, including three minor sons. We do not have the slightest manner of doubt that she would have reason to falsely implicate anyone knowingly and much less, motivatedly or maliciously, in a crime of this enormity, kind and consequences unless her judgment were blurred by mistake or misguiding suggestion. The principle about a relative generally not deposing to implicate falsely an innocent man, or to shield the true offender, finds authoritative statement in an early decision of their Lordships of the Supreme Court in Dalip Singh vs. State of Punjab, AIR 1953 SC 364, where it is held:
"26.A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
27.This is not to say that in a given case a Judge for reasons special to that case and to that witness cannot say that he is not prepared to believe the witness because of his general unreliability, or for other reasons, unless he is corroborated. Of course, that can be done. But the basis for such a conclusion must rest on facts special to the particular instance and cannot be grounded on a supposedly general rule of prudence enjoined by law as in the case of accomplices."
76. The same principle with a recount of an earlier authority on the point has been endorsed by the Supreme Court in Abdul Sayeed vs. State of M.P., (2010) 10 SCC 259. In paragraphs 28, 29, 30 & 31 of the report, it has been held:
"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar [(1973) 3 SCC 881 : 1973 SCC (Cri) 563 : AIR 1972 SC 2593], Malkhan Singh v. State of U.P. [(1975) 3 SCC 311: 1974 SCC (Cri) 919 : AIR 1975 SC 12], Machhi Singh v. State of Punjab [(1983) 3 SCC 470 : 1983 SCC (Cri) 681], Appabhai v. State of Gujarat [1988 Supp SCC 241 : 1988 SCC (Cri) 559 : AIR 1988 SC 696], Bonkya v. State of Maharashtra [(1995) 6 SCC 447 : 1995 SCC (Cri) 1113], Bhag Singh [(1997) 7 SCC 712 : 1997 SCC (Cri) 1163], Mohar v. State of U.P. [(2002) 7 SCC 606 : 2003 SCC (Cri) 121] (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan [(2008) 8 SCC 270 : (2008) 3 SCC (Cri) 472], Vishnu v. State of Rajasthan [(2009) 10 SCC 477 : (2010) 1 SCC (Cri) 302], Annareddy Sambasiva Reddy v. State of A.P. [(2009) 12 SCC 546 : (2010) 1 SCC (Cri) 630] and Balraje v. State of Maharashtra [(2010) 6 SCC 673 :(2010) 3 SCC (Cri) 211].]
29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab [(2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107] , where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) "28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka [1994 Supp (3) SCC 235 : 1994 SCC (Cri) 1694] this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand [(2004) 7 SCC 629 : 2004 SCC (Cri) 2013] a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana [(2006) 12 SCC 459 : (2007) 2 SCC (Cri) 214] ). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below."
30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
31. Ashfaq (PW 2) had given a graphic description of the entire incident. His presence on the spot cannot be doubted as he was injured in the incident. His deposition must be given due weightage. His deposition also stood fully corroborated by the evidence of Anees (PW 1) and Usman Ali (PW 4). The depositions so made cannot be brushed aside merely because there have been some trivial contradictions or omissions."
77. The principle about the high value of evidence of an injured witness is well acknowledged. A witness who has lost all her family in the crime carries a very high probative value, comes as it does with an inherent guarantee of truth about it. There is no reason to multiply reference to authorities on the point as the proposition involved is well settled. So far as the occurrence goes, the evidence of PW-3 carries graphic detail rendered in an unwavering manner. The deposition of PW-3, in her examination-in-chief on 05.09.2002, requires to be quoted for every word of it. It reads:
"बहलफ बयान किया कि आज से नौ माह से कुछ अधिक हुआ दिनांक 21-12-2001 को मै अपने तीन बच्चो वावी, विक्की और विभू के साथ शिवाजी नगर स्थित अपने पिता राकेश चन्द्र राय के घर पर थी । इस दिन शाम को मेरे यहां एक आदमी भीख मागने आया था यदि वह व्यक्ति जो मेरे घर में उस दिन भीख मागंने आया था यदि आ जाये तो मै पहचान सकती हूँ।
प्रश्न :- क्या वह व्यक्ति आज मेरे सामने न्यायालय में उपस्थित है ?
इस प्रश्न के द्वारा अभियोजन पक्ष के अधिवक्ता मुलजिम की शिनाख्त या पहचान कराना चाहते है जिस पर अभियुक्त के विद्वान अधिवक्ता ने विरोध किया कि विवेचना अधिकारी द्वारा दौरान विवेचना शिनाख्त की कार्यवाई नही कराई गई है ऐसी स्थिति में साक्ष्य के समय अभियोजन द्वारा शिनाख्त की कार्यवाई नहीं कराई जा सकती है।
न्यायालय द्वारा अभियुक्त के विद्वान अधिवक्ता का विरोध स्वीकार नही किया गया और अभियोजन पक्ष को अनुमति दी गई कि वह साक्षी द्वारा अभियुक्त की पहचान करा सकते है।
साक्षी द्वारा अभियुक्त हाजिर अदालत श्याम को पहचाना गया और कहा कि यही अभियुक्त मेरे घर पर भीख मांगने आया था।
अभियुक्त भीख मांगने आया और फिर चला गया। घटना की रात मेरे पिता के घर में, मै मेरे तीन बच्चे, मेरा भाई चन्द्र शेखर, मौसेरा भाई अनूप मेरी मां लीलावती राय, और मेरे पिता राकेश चन्द्र राय अपने अपने कमरों में सोये हुये थे। मै अपने तीनो बच्चों के साथ सीढ़ी के बगल वाले कमरे में सोई थी। एक बजे रात को मुझे चीख व धप धप की आवाज सुनाई दी और उससे मेरी नींद खुली। मेरी नींद खुली तो मै उठी मैने अपने कमरे की लाईट जलाई तब मैने दरवाजा खोला तो देखा कि जो मुलजिम भीख मागंने आया था वह दरवाजे के सामने डंडा लेकर खड़ा था । उसके पीछे भी चार आदमी डंडा लिये खड़े थे। जो इस समय हाजिर अदालत है। अभियुक्तो को देखकर गवाह ने कहा कि यही मुलजिमान थे जिस पर अभियुक्तो ने अपना नाम राजू, धन सिंह, जीवन, रिंकू कुमार चौधरी बताया। जो आदमी मेरे सामने सबसे पहले खड़ा था उससे मैने पूछा कि तुम तो कल तीन बजे भीख मागने के लिये आये थे इस समय किस लिये आये हो उसने कहा कि कल भीख मॉगने आये थे इस समय लूटने आया हूँ इस पर मुलजिमान मेरे कमरे में घुसते है उसके बाद जो भीख मागने आया वह मेरे गले का मंगल सूत्र पकड़ता है और बाकी लोग बक्सा जो खुला हुआ था उसमें से कपड़े निकाल कर फेकते है बक्से में एक बैग में गहने रक्खा था उस बैग को निकाले और उसमें से गहना निकाल लिये और बैग फेंक दिये। जब मेरे गले से अभियुक्त मगंल सूत्र खीचं रहा था तो मैने कहा कि जो कुछ तुम्हे लेना है तुम ले लो तब तक भीख मागंने वाले के इशारे पर तो धन सिंह ने डंडे से मेरे हसुली की हड्डी पर डंडे से मारा और हसुली की हडडी टूट गई और मुलजिम ने मगंल सूत्र खीच लिया। इस पर मेरे बच्चे जग गये और रोने चिल्लाने लगे जो भीख मागने आया था उसने मेरे बड़े लड़के बावी को अपने हाथ में लिये हुये डंडे से मारा उसके बाद बाकी चारो मुलजिमानों ने मेरे तीन बच्चों को मारा तीनों बच्चो ने चिल्लाना बन्द कर दिया छोटा बच्चा नीचे गिर गया मैने इन लोगों से न मारने के लिये विनय किया लेकिन ये लोग नही माने। बच्चे इन लोगों के मारने से मर गये तीनो बच्चों की मौत हो गई इसके बाद भीख मांगने वाले ने मुझे डंडे से मारा और मै बेहोश हो गई फिर मै नही जानती कि क्या हुआ।
फिर मुझे जब होश आया तो मैने अपने आपको अस्पताल में पाया। सामने मेरे पति खडे थे मैने अपने पति से पूछा कि मै यहां कैसे आ गई तो उन्होने बताया कि तुम्हारी तबियत खराब थी इसलिये लखनऊ अस्पताल ले आया हूँ।"
78. But, the question is that notwithstanding the consistency of her account about the occurrence and identification of the appellants in Court, can it be said on the evidence of PW-3, Smt. Renu Rai that she was mal-influenced, misguided, or in one manner or the other, aberrated in her judgment about identifying the appellants? If for some reason she has erred in her judgment about the identity of the appellants, can her evidence be still classed as sterling so as to found a conviction. Normally, in a matter like the present one, where the identity of the offender or the offenders is completely unknown to the victim, the suspects ought to be put up for a test identification. The result of a test identification parade is relevant under Section 9 of the Evidence Act, and although, it is a procedure that rightfully belongs to the stage of investigation to lend the Investigator an assurance about the identity of the offender, it is of great worth in corroborating evidence of the identifying witness in the dock. There are, however, known exceptions to the rule where no test identification parade may be held. One is where the offender is a prior acquaintance of the witness or otherwise well-known to him/ her. The other is when the identity of the offender becomes known to the witness through some kind of a chance exposure of the offender, such as, publication of photographs in the Print or Electronic Media or the offender being somehow seen by the witness during various steps of investigation, or in some other manner.
79. It is no doubt ultimately identification by the witness in the dock, that is substantive evidence about the offender's involvement. However, that is subject to the witness's assured capability of identifying the offender uncorrupted by suggestion, misplaced imagination or a mistake about the offender's identity of any kind of genre. It has also been held on high authority that notwithstanding the absence of a test identification to corroborate a witness's evidence about identification in the dock, the testimony in Court may still be good in cases where there are reasons for the witnesses to retain an enduring impression about the identity of the offender. In this connection, about the legal postulate, reference may be made to the decision of the Supreme Court in Daya Singh vs. State of Haryana, (2001) 3 SCC 468, where in the context of an offence under Sections 3 and 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, an identification of the accused by two prosecution witnesses straightaway in the dock after a lapse of seven and a half years was held good. It was held in Daya Singh (supra):
"11. At this stage we would first refer to the decisions upon which reliance is placed. In the case of Soni [(1982) 3 SCC 368 (1) : 1983 SCC (Cri) 49 (I)] this Court observed that a delay of 42 days in holding the identification parade throws a doubt on genuineness thereof, apart from the fact that it is difficult that after a lapse of such a long time the witnesses would be remembering facial expression of the appellant. In the case of Mohd. Abdul Hafeez [(1983) 1 SCC 143 : 1983 SCC (Cri) 139 : AIR 1983 SC 367] the Court while dealing with a robbery case observed that as no identification parade was held, no reliance can be placed on the identification of the accused after a lapse of four months in the Court. In the case of Hari Nath [(1988) 1 SCC 14 : 1988 SCC (Cri) 14 : AIR 1988 SC 345] the Court observed that evidence of test identification is admissible under Section 9 of the Evidence Act. But the value of test identification, apart from the other safeguards appropriate to a fair test of identification depends upon the promptitude in point of time with which the suspected persons are put up for test identification. If there is an unexplained and unreasonable delay in putting up the accused persons for a test identification, the delay by itself detracts from the credibility of the test. The Court further referred to (para 9) Prof. Borchard: Convicting the Innocent on the basis of error in identification of the accused. The learned author has observed:
"The emotional balance of the victim or eyewitness is so disturbed by his extraordinary experience that his powers of perception become distorted and his identification is frequently most untrustworthy. Into the identification enter other motives not necessarily stimulated originally by the accused personally -- the desire to requite a crime, to exact vengeance upon the person believed guilty, to find a scapegoat, to support, consciously or unconsciously, an identification already made by another. Thus, doubts are resolved against the accused."
12. In AIR paras 10 and 11, the Court has observed as under: (SCC p. 21, paras 19-21) "19. The evidence of identification merely corroborates and strengthens the oral testimony in court which alone is the primary and substantive evidence as to identity. In Sk. Hasib v. State of Bihar [(1972) 4 SCC 773 : AIR 1972 SC 283] this Court observed: (SCC p. 777, para 5) ''... the purpose of test identification is to test that evidence, the safe rule being that the sworn testimony of the witness in court as to the identity of the accused who is a stranger to him, as a general rule, requires corroboration in the form of an earlier identification proceeding.'
20. In Rameshwar Singh v. State of J&K [(1971) 2 SCC 715 : 1971 SCC (Cri) 638 : AIR 1972 SC 102] this Court observed: [SCC p. 718, SCC (Cri) p. 641, para 6] ''... it may be remembered that the substantive evidence of a witness is his evidence in court, but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after the former's arrest is of vital importance because it furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial.'
21. It is, no doubt, true that absence of corroboration by test identification may not assume any materiality if either the witness had known the accused earlier or where the reasons for gaining an enduring impress of the identity on the mind and memory of the witness are, otherwise, brought out. It is also rightly said that:
''Courts ought not to increase the difficulties by magnifying the theoretical possibilities. It is their province to deal with matters actual and material to promote order and not surrender it by excessive theorising or by magnifying what in practice is really unimportant.' "
13. The question, therefore, is -- whether the evidence of injured eyewitnesses PW 37 and PW 38 is sufficient to connect the appellant with the crime beyond reasonable doubt. For this purpose, it is to be borne in mind that the purpose of test identification is to have corroboration to the evidence of the eyewitnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the court. If that evidence is found to be reliable then absence of corroboration by test identification would not be in any way material. Further, where reasons for gaining an enduring impress of the identity on the mind and memory of the witnesses are brought on record, it is no use to magnify the theoretical possibilities and arrive at conclusion -- what in present-day social environment infested by terrorism is really unimportant. In such cases, not holding of identification parade is not fatal to the prosecution. The purpose of identification parade is succinctly stated by this Court in State of Maharashtra v. Suresh [(2000) 1 SCC 471 : 2000 SCC (Cri) 263] as under: (SCC p. 478, para 22) "We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence."
14. In the present case, there is no lapse on the part of the investigating officer in holding the test identification parade. The appellant was arrested on 28-5-1988 and the identification parade was to be held on 2nd June, but on that day the accused refused to take part in the parade. For his arrest, PW 45 Resham Singh, DIG and PW 46 Bishan Singh, CIA Inspector have specifically stated that the appellant was arrested on 27-5-1988 by the Punjab Police and was brought to Kurukshetra on 28-5-1988 and was sent to judicial custody as he was to be identified. Further, there is no reason to disbelieve the evidence of Tahsildar who had gone there for holding the test identification parade of the accused. Learned Senior Counsel Mr Lalit repeatedly submitted that the investigating officer had not produced on record the statement of the accused recorded by Tahsildar and the report submitted by him and, therefore, no credence should be given to the evidence of Tahsildar. In our view, this submission is totally misconceived. It is true that if the investigating officer had produced on record the statement of the accused and the report submitted by Tahsildar, it would have corroborated his say. But in our view the evidence of such disinterested, independent, official witness does not require any corroboration. In cross-examination, the Tahsildar has specifically stated that he did not know the accused Daya Singh personally but the accused was identified by the jail authorities. He has also denied the suggestion that Daya Singh never refused for such identification parade and that he was deposing falsely. The Tahsildar was least interested in the prosecution or falsely involving the accused. Further, he is not expected to know the accused personally nor to remember his face for years. He was discharging his official functions and is not expected to memorise the identity of the persons whose statements he had recorded. There is no reason to hold that jail authorities have committed any mistake in producing Daya Singh before the Tahsildar for parade. Further, the evidence of Tahsildar that he had gone to Central Jail for identification parade gets corroboration from the evidence of PW 38 who also went to the Central Jail Ambala for identifying the accused, but they were informed that the accused had refused to participate in the test parade. It is to be stated that in such a situation, this Court in Suraj Pal v. State of Haryana [(1995) 2 SCC 64 : 1995 SCC (Cri) 313] held that substantive evidence identifying the witness is his evidence made in the Court and if the accused in exercise of his own volition declined to submit for test parade without any reasonable cause, he did so at his own risk for which he cannot be heard to say that in the absence of test parade, dock identification was not proper and should not be accepted, if it was otherwise found to be reliable. The Court observed that "it is true that they could not have been compelled to line up for test parade. But they did so on their own risk for which the prosecution could not be blamed for not holding the test parade". In that case also, the Court disbelieved the justification given by the accused for not participating in the identification parade on the ground that the accused were shown by the police to the witnesses. Same is the position in the present case."
80. It may be remarked here that this case is not concerned with the law about holding a test identification parade or what is the worth of it in establishing the identity of an unknown offender, who is identified in the dock by a witness or an injured witness for that matter. Here, the question is about the credibility of the witness, vis-a-vis, the identity of the appellants, though her credibility about the description of the offence cannot be in doubt. It is in the context of the credibility of PW-3 about identifying the appellants that this Court has looked into the law regarding identification of unknown offenders, which has largely been laid down in the context of the requirement of holding a test identification parade, and the consequences of failure to do so in varying facts and circumstances of different cases. There is valuable guidance in the decision of their Lordships of the Supreme Court regarding identification of strangers by a witness for the first time in Court to be found in Malkhan Singh vs. State of M.P., (2003) 5 SCC 746, where it has been held:
"7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Admn. [AIR 1958 SC 350 : 1958 Cri LJ 698] , Vaikuntam Chandrappa v. State of A.P. [AIR 1960 SC 1340 : 1960 Cri LJ 1681] , Budhsen v. State of U.P. [(1970) 2 SCC 128 : 1970 SCC (Cri) 343 : AIR 1970 SC 1321] and Rameshwar Singh v. State of J&K [(1971) 2 SCC 715 : 1971 SCC (Cri) 638].)"
(Emphasis by Court)
81. The same principle has been reaffirmed by their Lordships of the Supreme Court in a recent decision in Raja vs. State By the Inspector General of Police, 2019 SCC OnLine SC 1591, where it has been held:
"15. It has been accepted by this Court that what is substantive piece of evidence of identification of an accused, is the evidence given during the trial. However, by the time the witnesses normally step into the box to depose, there would be substantial time gap between the date of the incident and the actual examination of the witnesses. If the accused or the suspects were known to the witnesses from before and their identity was never in doubt, the lapse of time may not qualitatively affect the evidence about identification of such accused, but the difficulty may arise if the accused were unknown. In such cases, the question may arise about the correctness of the identification by the witnesses. The lapse of time between the stage when the witnesses had seen the accused during occurrence and the actual examination of the witnesses may be such that the identification by the witnesses for the first time in the box may be difficult for the court to place complete reliance on. In order to lend assurance that the witnesses had, in fact, identified the accused or suspects at the first available opportunity, the TIP which is part of the investigation affords a platform to lend corroboration to the ultimate statements made by the witnesses before the Court. However, what weightage must be given to such TIP is a matter to be considered in the facts and circumstances of each case.
16. Again, there is no hard and fast rule about the period within which the TIP must be held from the arrest of the accused. In certain cases, this Court considered delay of 10 days to be fatal while in other cases even delay of 40 days or more was not considered to be fatal at all. For instance, in Pramod Mandal v. State of Bihar, (2004) 13 SCC 150 the accused was arrested on 17.01.1989 and was put up for Test Identification on 18.02.1989, that is to say there was a delay of a month for holding the TIP. Additionally, there was only one identifying witness against the said accused. After dealing with the decisions of this Court in Wakil Singh v. State of Bihar, 1981 Supp SCC 28, Subhash v. State of Uttar Pradesh, (1987) 3 SCC 231 and Soni v. State of Uttar Pradesh,(1982) 3 SCC 368(1) in which benefit was conferred upon the accused because of delay in holding the TIP, this Court considered the line of cases taking a contrary view.........
19. It is, thus, clear that if the material on record sufficiently indicates that reasons for "gaining an enduring impression of the identity on the mind and memory of the witnesses" are available on record, the matter stands in a completely different perspective. This Court also stated that in such cases even non-holding of identification parade would not be fatal to the case of the prosecution. Applying the tests so laid down to the present case, in view of the fact that each of the eyewitnesses had suffered number of injuries in the transaction, it can safely be inferred that every one of them had sufficient opportunity to observe the accused to have an enduring impression of the identity of the assailants. It is not as if the witnesses had seen the assailants, in a mob and from some distance. Going by the injuries, the contact with the accused must have been from a close distance.
24. As has been repeatedly laid down by this Court, what is important is the identification in Court and if such identification is otherwise found by the Court to be truthful and reliable, such substantive evidence can be relied upon by the Court. Considering the totality of circumstances on record, the presence and participation of the Accused Nos. 1 to 6, in our view, stood proved through the eyewitness account. We do not find any infirmity in the evidence of identification by PWs 1 to 5."
82. In the present case, this Court is not at all concerned, as said earlier, about the holding of a test identification parade. To say it again, it is the abiding anxiety of this Court to see whether PW-3, whose account of the occurrence cannot be doubted, has indeed identified the appellants without mistake. If it were a case where the appellants were identified by PW-3, Renu Rai for the first time in the dock, we would have not harboured the least of doubt about the veracity of her evidence about these appellants. But, the evidence of this witness about the fixation of identity of the appellants is under the shadow of grave doubt. We have doubted the manner in which these appellants were spontaneously identified by a passing Renu Rai, along with her two uncles, while on way to the Doctors when she came across a crowd of people with the police there. We have viewed with some suspicion, the rather unnatural conduct of PW-3 as also PW-1 and PW-2, her uncles, Ajay Kumar Rai and Anil Kumar Rai in moving towards the gathered crowd and the police to find out what had happened, where it is said, she suddenly identified all the appellants held there, in connection with a narcotics case. The reason why we have doubted this part of the prosecution case, through which the appellants have been connected to the crime, is not just the manner about which Renu Rai along with PW-1 and PW-2 suddenly rushed to the place, where the police and the crowd were gathered. That suspicion stems from her very inconsistent evidence in her cross-examination about the date, time and manner in which she first identified the appellants.
83. The prosecution case consistently is to the effect that the appellants came to be connected to the crime for the first time on 12.12.2001 when they were coincidentally identified by Renu Rai, PW-3, near the Baudh Sangrahalaya, where they were held in connection with an NDPS Case. This stand has been stoutly taken by PW-1, the first informant and PW-2, Anil Kumar Rai, both of whom are said to have been with PW-3, Renu Rai, when she is claimed to have spontaneously identified the appellants, held in connection with the NDPS Case, near the Baudh Sangrahalaya. In fact, that is also the categorical stand of PW-3, Renu Rai in her examination-in-chief, recorded on 05.09.2002 and on the following day on 06.09.2002. There, she has very definitively supported the prosecution case of that spontaneous identification when she along with PW-1 and PW-2, while on way to the Doctor, changed course to see what was the big crowd about along with the police near the Baud Sangrahalaya. She has said specifically that it was there that she suddenly saw that the six men, whom the police had held (in connection with the NDPS Case), and of whom of five were present in Court that day, were these appellants who had done her children, father, mother and brother to death. This part of her evidence is extracted in paragraphs 31 and 32 (supra).
84. The Investigating Officer too has said in his dock evidence, also extracted in paragraph 33 (supra) to the effect that upto 11th December, 2001, none of the appellants had come to light. He has also said that he met Renu Rai on 09.12.2001 at the Azad Nagar Home of the first informant, Ajay Kumar Rai. He has said thereafter that he arrested the five appellants on 12.12.2001 from Tara Mandal, acting on a tip off from an informer. This bears reference to the incident, where he arrested the appellants in connection with a narcotics case, and later, Renu Rai suddenly appeared to identify the appellants. The appellants were, thereafter, also arrested in connection with the present crime. Thus, the consistent stand of the prosecution is that the appellants were arrested for the first time on 12.12.2001, and it was in connection with a narcotics case from a place, called Baudh Sangrahalaya, near the Tara Mandal, precisely at the grove of Arjun. Soon thereafter, Renu Rai appeared at the scene of occurrence, in the circumstances indicated and spontaneously identified the appellants. There is absolutely no scope about the prosecution case for the appellants being seen, connected or identified to the crime prior to 12.12.2001.
85. Surprisingly, Renu Rai in her cross-examination, dated 18.09.2002, extracted in paragraph 51 (supra) has said in no uncertain terms that after she came back from Hospital, the police took her to the station. The police made her see about 8-9 suspects, but the appellants were not amongst them. This happened about 8-9 in the morning. The same day at about 8-9 in the evening, the police again took PW-3, Renu Rai to the station, where she was brought face to face with a total of about 9-10 suspects. She has said there that these appellants were amongst them. In the morning, they were not there. In the night, they were amongst the men who were shown to her. She has then gone on to say categorically that she identified all the appellants, who had pulled the dacoity at her home. That night, her uncles, Ajay Kumar Rai and Durgesh Rai were with her at the Police Station. It is then said in a very startling turn to her testimony that before she went to the Baudh Sangrahalaya (bearing reference to the claimed and sudden identification on 12.12.2001), a day before on 9th of that month, she had identified the appellants. It is also said that, that night there was one more of the perpetrators at the police station, who was particeps criminis, but was not present in Court. It is also said in no uncertain terms that on the 9th of the month, the Sub-Inspector after identification of these appellants had taken her signatures. She has also said that she had stayed at the police station on the 9th for a period of about 20-25 minutes. It is then said that after the 9th, the police never came to her. The Sub-Inspector took down her statement on the 12th.
86. The prosecution realizing their folly about this star witness, PW-3 testifying to facts in her cross-examination on 18.09.2002, that unmistakably show that the appellants' arrest shown on 12.12.2001 was all sham, and that appellants have been unlawfully shown to this prosecution witness at the Police Station on 09.12.2001, without holding a test identification parade, recalled her on 11.02.2003. Upon being recalled, this witness said in her evidence thus:
"जिस दिन यह घटना हुई थी उसके बाद मुलजिमान को दिनांक 12-12-01 को देखा था।"
None of the appellants chose to cross-examine PW-3 about this stand of hers on 11.02.2003, upon recall.
87. To our understanding, Smt. Renu Rai, PW-3, may be the worst of sufferers of a heinous crime and a seriously injured witness, but her testimony about the circumstances relating to a sudden identification and arrest of the appellants near the Baudh Sangrahalaya on 12.12.2001, when she was passing by, is false to its face. In fact, her stand during the cross-examination, dated 18.09.2002, removes the very basis of the identification and arrest of the appellants in connection with this crime on 12.12.2001. She has said in no uncertain terms that she was taken to the Police Station on 09.12.2001 twice - once in the morning at about 8.00 a.m., and then in the evening at about 8.00 p.m. She was shown the suspects privately and illegally, without holding a test identification parade on both occasions. She did not find any of the appellants amongst the suspects in the morning, when she went to the Police Station. But, in the evening, she found six of them, including the five appellants. She identified them to the police, and was made to sign some papers. Her testimony during cross-examination on 18.09.2002 shows that PW-3, Renu Rai was not tricked by any shrewd cross-examiner into making a stray admission unwittingly and caught off guard. She has been emphatic and categorical that she identified the appellants on 09.12.2001 during her evening visit to the Police Station, in no uncertain terms. Once this is her stand, the story about the arrest of the appellants in connection with an NDPS Case near the Baudh Sangrahalaya, close to the Tara Mandal by the police, turns to utter falsehood. It leads to a certain inference that these men were in police custody on 09.12.2001, detained as suspects, who were illegally shown to PW-3.
88. We must remark here that this fact that the appellants were unlawfully got identified by the police, two days ahead their arrest being shown, at the Police Station by PW-3, privately and unlawfully without holding a test identification parade, is no lapse of investigation as the learned Counsel appearing for the prosecution want us to accept. It is a relevant fact that hits at the bottom of the prosecution case about the manner in which the appellants came to be identified and arrested, at the instance of the solitary injured witness of the occurrence, PW-3. This Court fails to understand what prevented the police from holding a test identification parade, if they had some suspects in hand and a surviving and injured witness to identify. There was no reason for the Police to go about this exercise in a clandestine and unlawful fashion and then come up with a bogus case of implicating the already identified appellants, while detained as suspects in an NDPS Case, attributing to them recovery of some articles, claimed to be proceeds of the dacoity. And, to weave around this bogus arrest in the NDPS Case, a fantastic story of spontaneous identification by Renu Rai as she was passing by the Baudh Sangrahalaya, renders the story untruthful beyond redemption. With this testimony of Renu Rai in the witness box on 18.09.2002, the entire story about the appellants' identification and arrest on 12.12.2001 becomes false to its face.
89. We must also remark here that the learned Sessions Judge on being encountered with this gaping flaw in the prosecution case, has chosen to describe the testimony of PW-3, Renu Rai recorded on 18.09.2002 as a "mistaken slip of tongue". We are not in agreement with the learned Sessions Judge at all. The categorical stand of Smt. Renu Rai in her cross-examination on 18.09.2002 is cast in too certain and detailed a description of the events at the Police Station on 09.12.2001 to pass off as a slip of tongue of any kind. It is on account of this irreconcilable flaw about Smt. Renu Rai's evidence, relating to identification of the appellants and the manner of their arrest that we have looked upon the recovery shown from the appellants, apart from other discrepancies, to be unreliable and untrustworthy. For the same reason, we have not been inclined to accept even that part of the recovery, that has been sought to be proved with the aid of Section 27 of the Evidence Act. Our opinion about the recovery, recorded in the earlier part of this judgment must be seen in togetherness with what we have concluded here, on the basis of Smt. Renu Rai's evidence, dated 18.09.2002.
90. We are mindful of the fact that Smt. Renu Rai is no ordinary witness. Her presence at the scene of crime and her account about it, cannot be doubted. But, her evidence about the appellants is eclipsed by a grave shadow of doubt. To add to it, her conduct in testifying to a false story of identification and arrest of the appellants on 12.12.2001 deprives her of the privilege of being an absolutely truthful witness, and her evidence of its character as sterling.
91. On this kind of evidence, in our considered opinion the identity of the appellants and their connection to the crime is under a shadow of serious doubt. Upon a consideration of the totality of evidence, we find and hold that the appellants are entitled to the benefit of doubt, and it would be unsafe to uphold their conviction.
92. In the result, the appeals succeed and are allowed. The impugned judgment and order dated 29.10.2003 passed by the Additional Sessions Judge, Fast Track Court no.4, Gorakhpur in Sessions Trial no.177 of 2002, State of U.P. vs. Shyam @ Sambhal and others, under Sections 396, 412 IPC, Police Station Khorabar, District Gorakhpur is hereby set aside and the appellants are acquitted.
93. The appellants are in jail. They shall be released forthwith unless wanted in connection with any other case and subject to fulfilling the requirements under Section 437-A Cr.P.C.
94. A copy of this judgment along with Trial Court record be sent to the learned Sessions Judge, Gorakhpur for information and necessary compliance. Judgment be certified and placed on record.
Order Date :- 5.3.2020 Anoop