Rajasthan High Court - Jaipur
Kohar Singh And Ors. vs State Of Rajasthan on 4 December, 1989
Equivalent citations: 1989WLN(UC)358
Author: A.K. Mathur
Bench: A.K. Mathur
JUDGMENT A.K. Mathur, J.
1.This appeal is directed against the judgment of the learned additional Sessions Judge, Raisinghnagar dated 28th November, 1987 where by the learned Judge has convicted the accused appellants Keharsingh and Darshan Singh under Section 394, IPC and sentenced them to 3 years' rigorous imprisonment each, under Section 397 IPC 7 years' rigorous imprisonment each and under Sections 458 & 459, IPC 7 years' rigorous imprisonment on each count. He has convicted the accused Hardamsingh and Bholasingh under Section 411, IPC and sentenced them to 2 years' rigorous imprisonment each. He has also imposed a fine of Rs. 200/- each and in default of payment of fine to further undergo 2 months' rigorous imprisonment each. All the sentences were directed to run concurrently.
2. Brief facts giving rise to this appeal are that on the night intervening 4th and 5th May 1985 at 2.00 A.M., a First Information Report was filed by one Maluk Khan stating therein that he is a resident of 10, MLD Gharsana. He has been living in this 'Dhani' along with his children. At about 10-11 P.M. three persons came and wake him. Out of them two persons were of fair complexion and one was of dark complexion. They were wearing pants and bushirts. They woke him and told him that one of their men has been arrested in the Police Station and, therefore, he should accompany them and get him released. Thereupon, he told them that be does not know any body in the Police Station and he cannot help them at that moment. He asked them to come in the morning. All these three persons, thereafter, left and he also retired to bed. Thereafter, these persons came again armed with lathies and, it is alleged, one of them gave a lathi blow on his head. He immediately get up and the remaining 3 persons started beating him. He came down from upstairs fighting with these persons. His left foot also got fractured and he fell down. Thereafter, it is alleged that somebody gave a knife blow on his leg. It is further alleged that his children were also belaboured and were shut in one KOTHAR. Thereafter, these persons started searching his house. It is alleged that these 3 persons took away the ring from his hand and one another ring of gift, and they also took away a gold chain and then tied him with rope. They also gave beating to his son. He alleged that he does not know what other articles have been taken away by these persons and he would produce a detailed list after finding out the some. He also alleged that after hearing the cries of these persons, some more people came from other neighbouring 'dhanis' and got him released from the ropes and other members of his family from the KOTHAR. On the basis of this information, the Police registered a case under Sections 395 and 397, IPC.
3. During the Course of investigation, accused Darshan Singh, Keharsingh and Bholasingh were arrested and they were charged under Sections 498, 450, 392, 394, 397 and 398, IPC. After close of the investigation, accused Keharsingh and Darshansingh were challaned under Sections 394, 397, 498 and 459, IPC and the remaining two accused persons Hardamsingh and Bholasingh were challaned under Sections 411, IPC. It is also relevant to mention here that on 15th July, 1985 Maluk Khan gave statement, which was also recorded and in that be alleged that apart from the articles mentioned by him the accused have also taken away a sum of Rs. 6,000/- and one more gold ring.
4. Prosecution, in support of its case, examined 12 witnesses, Accused Keharsingh was arrested on 27th September, 1985 and he gave information under Section 27, Evidence Act. In pursuance of this information dated 30th September, 1985, recovery was effected on 4th October, 1985 (Ex-P. 10) from Dubwali in Haryana of one gold ring and one gilt ring. The accused Darshan Singh was arrested on 5th October, 1985 and he gave information (Ex-P. 26) of the gold chain and in pursuance of that information, the gold chain was recovered on 30th October, 1985. Accused Hardam Singh was arrested on 5th October, 1985 and he also gave information an 8th October, 1985 of one watch (Ex. P 27) and the same was recovered on 13th October, 1985 vide Ex-P. 18. Bholasingh was arrested on 27th September, 1985 and he gave information on 30th September, 1985 (Ex-P 23) of one gold ring and it was recovered on 4th October, 1985 vide Ex-P. 12.
5. The accused persons were put to identification parade on 19th October, 1985 and in that identification parade only Maluk Khan, PW 6 could identify Keharsingh and Darshansingh. and the rest of the accused were not identified. All the recovery, so effected was also put for identification before PW-12 Tehsildar Hanuman Singh. In that identification PW-6 Maluk Khan identified all the articles vide Ex. P. 31 on 24th October, 1985.
6. On the basis of the evidence, the learned Sessions Judge convicted and sentenced the accused-appellants as aforesaid. Hence, present appeal.
7. The learned Counsel for the appellants has taken me through the entire evidence and necessary arrest memos, information-memos in respect of the recovery and identification of the accused as well as the identification of the articles. The learned Counsel submitted that the story of the prosecution on the face of it appears to be concocted. It has not been established that whether the accused persons and the complainant, at any point of time, were known to each other or not. It is improbable that the dead of night some persons would go to the house of the complainant and tell him to accompany them to got some one released from the Police custody and on his denying they would leave and come again. The genesis of the story is not known and it is highly suspicious.
8. The learned Counsel further submitted that in the incident, according to PW 6 Maluk Khan, besides himself, his son and one servant were also belaboured, though, they have not been able to identify the accused persons. Even Maluk Khan, PW-5 could only identify the two persons viz., Keharsingh and Darshansingh. The learned Counsel further submitted that the identification of the accused persons at this distance of time also creates suspicion The accused persons were arrested on 27th September, 1985 and 5th October, 1985 and all of them were put to identification parade on 19th October, 1985. It appears, therefore, that there is every likelihood that these accused persons might have been shown to the complainant. The learned Counsel further submitted that the accused persons were not kept 'ba-parda', neither at the time of their arrest nor at the time of remand. The learned Counsel pointed out that it is nowhere recorded that the accused persons were kept 'ba-parda' or not. Therefore, the learned Counsel submitted, the incident happened at the dead of night and the accused persons were not well known with the complainant and in this back ground, the identification of the accused is not established and as such they are entitled to benefit of doubt. The learned Counsel has next submitted that the so-called property which appears to have been recovered from the possession of the four accused persons has also not been put properly for identification before the Tehsildar. Nobody has come in the witness-box to say that all the stolen property seized was kept in proper custody from where it was produced before the Tehsildar. The learned Counsel also submitted that identification memo Ex-P. 31 does not specifically mention as to what kind of watch it was and what was the number and make of it nor is there any mention of the weight of the ear-rings and likewise about the gold chain. Therefore, the submission of the learned Counsel is that the identification of these articles by the complainant is also very doubtful and as such the benefit thereof goes to the accused.
9. The learned Public Prosecutor supported the judgment and submitted that in fact the Investigation Officer died during the course of investigation, therefore, all the names were prepared by him and were got proved by PW 11 Surjararn, Head Constable. He also submitted that if the police wanted to show the accused persons, perhaps, Maluk Khan, PW 6 would have identified all of them instead of only two. So far as the identification of the goods is concerned, the learned P.P. submitted that PW 2, Tehsildar Hanumansingh, before whom the goods were identified, has deposed that these goods were produced before him in the sealed cover and the seals were intact.
10. I have heard the learned Counsel at length and have perused the statement of PW 6 Maluk Khan. The incident happened at the dead of night intervening 4th and 5th May, 1985. According to Maluk Khan, the accused persons came to his house and woke him up. Then they asked him to accompany them and get their friend released from the Police Station. But he declined to accompany them at that time. After same time they again came and gave him a beating. They also belaboured PW 4, Sajwara Khan; PW 1 Dariya w/o Maluk Khan; and PW 2 Kuldeepram, servant of Maluk Khan; how ever, they have not been able to identify the accused persons. Likewise, PW 8 Ram has also supported the evidence of PW 7, Dulhe Khan. If the testimony of all these persons is considered, it practically lands no assistance to the prosecution case as they have not been able to identify the accused persons. Only PW 6 Maluk Khan has identified the accused persons and if even he also could identify only two of the accused persons viz., Kaharsingh and Darshan Singh. Therefore, the learned Sessions Judge has acquitted the accused Hardamsingh and Bholasingh of all the charges except under Section 411. IPC. So far as the identification by Maluk Khan, PW 6 of the accused persons is concerned, it is of a very doubtful nature. The incident took place in the dead of night intervening 4th and 5th May, 1985. The accused persons were arrested on 27th September 1, 1985 and 5th October, 1985. The accused persons are not known to Maluk Khan. They were identified by him on 12th October, 1985. It means that Maluk Khan saw the accused persons after 5 months of the incident, and practically the identification in such circumstances cannot be relied upon. Mere so, in requisition for the remand, it has not been mentioned that the accused persons were kept 'ba-parda". The accused persons were produced before the Magistrate for remand and normally in such cases, the accused should have been kept 'ba-parda' and it should be mentioned in the requisition for the remand. I have gone through the remand order. There is no such note in the requisition for the remand. How ever, the learned Magistrate directed that the accused should be kept 'ba-parda'. The Head Constable PW 11 Surjaram was specially asked this question that whether the accused persons were kept 'ba-parda' or not. He deposed that he did not know. If they had been kept 'ba-parda' then a note in the diary might have been given. This will not suffice in a case of such a nature when the accused persons are arrested at such distances of time and they are put for identification after a lapse of 5 months. It is the duty of prosecution to establish that the accused persons were kept 'ba-parda' so as to lend assurance to the prosecution story, otherwise, lapse of time or such long intervals may create doubt about the identification of the accused, mere so, in the present case, the whole prosecution story is very incoherent in as much that all the accused persons will come at the dead of night to the house of the complainant and ask him for his assistance. It is not the case of the prosecution that the accused were known to the complainant. Maluk Khan, PW 6 has not mentioned the names of the accused and, nor as to whether they were known to him earlier or not. It is unnatural that an unknown person would go to the house of the complaisant and ask for his assistance unless he is known to him previously. This has not been explained by Maluk Khan that these persons were known to him or Dot. This creates great suspicion about the whole prosecution story. Keeping this fact in background, the identification acquires greater importance, specially when it was conducted at such a distance of time in as much that there is a lapse of 5 months. In these facts and circumstances. I think that the identification of the accused by PW 6. Maluk Khan is very doubtful and no reliance can be placed on such an identification. Since the accused Kehar Singh and Darshansingh have not been identified by any other person of the complainant party, therefore, the conviction of these accused appellants under Section 397, 324, 458 and 459, IPC cannot be sustained.
11. The next question comes about the conviction of the remaining two accused persons Hardamsingh and Bholasingh under Section 411, IPC. These two accused persons were not identified by PW 6, Maluk Khan. They were only convicted on account of the recovery of gold ring from Bhola Singh under Section 411, IPC for two years. The story about the recovery and identification of these stolen gold articles before the Tehsildar is also very doubtful.
12. It is true that Duleh Khan, PW 7 and Budhram, PW 8 were the motbir witnesses of these recoveries but the question is whether the recovery and identification have been established by the prosecution or not. The articles were put for identification on 24th October, 1985 before the Tehsildar but no witness has been produced to show that these stolen goods were kept by the prosecution in a sealed cover and in proper custody. PW 12, the Tehsildar has only deposed that the articles were placed before him in the sealed cover and the seals were intact. He has not mentioned that articles of what nature were mixed up with the stolen goods. The watch of HMT make was sought to be identified but no details of the watch have been produced such as its colour, number and make whether it was round or flat and how many other watches of similar shape were mixed up for identification. Likewise, there is no account about the gold ring and the rings mixed up for the purpose of identification. The identification, as mentioned above, was hold on 19th October, 1985 and the incident took place on 4/5 to May 1985 Secondly, the complainant gave another information regarding the theft of one more ring and Rs. 6,000/-. He has given this information as late as 15th July, 1985 i.e., after two months of the incident. No cash has been recovered. This further shrouds the prosecution case is doubt in absence of fool proof evidence regarding the recovery of stolen property and doubtful identification. In the circumstances, it is unsafe to convict the appellants under Section 411, IPC also.
13. In the result, I allow this appeal and set aside the conviction of the appellants for all the charges.
14. Accused Hardamsingh and Bholasingh are already on bail. Their bail bonds are cancelled. They need not surrender. The accused Darshansingh and Keharsingh are in jail. They shall be released forthwith if not wanted in any other case.