Allahabad High Court
Raj Kumar Khanjar And Others vs State Of U.P. on 11 May, 2017
Bench: Bharat Bhushan, Satya Narain Agnihotri
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
AFR
Case :- CRIMINAL APPEAL No. - 2560 of 2005
Appellant :- Raj Kumar Khangar And Others
Respondent :- State Of U.P.
Counsel for Appellant :- B.N. Singh,H.K. Nigam,V.B.Rao,Vijay Singh Sengar
Counsel for Respondent :- Govt. Advocate
Hon'ble Bharat Bhushan,J.
Hon'ble Satya Narain Agnihotri,J.
(Delivered by Hon. Bharat Bhushan,J.)
1. Appellants have assailed the common judgment and order dated 19.05.2005 passed by the Special Judge (Dacoity) Jalaun at Orai in Sessions Trial No.8 of 1998 (State Vs. Raj Kumar and others) arising out of Case Crime No.683 of 1997 and in Sessions Trial No. 8A of 1998 (State Vs. Raj Kumar S/o Man Singh) arising out of Case Crime No.685 of 1997 whereby all four appellants, namely, Raj Kumar Khangar, Munna, Suresh and Raj Kumar @ Pappu @ Mama have been convicted under Sections 396/397of Indian Penal Code (in short I.P.C.) and in addition to that appellant Raj Kumar Khangar was convicted under Section 25 Arms Act, P.S. Jalaun, District Jalaun at Orai. The appellants were sentenced to life imprisonment under Sections 396/397/412 IPC and fine of Rs.5000/- with default stipulation. Appellant Raj Kumar Khangar was further sentenced to three years imprisonment and fine of Rs.2000/- for the offence under Section 25 Arms Act and in default of payment of fine to undergo further six months rigorous imprisonment.
2. Prosecution story in nutshell is that the houses of the complainant Mansharam (PW 2) and his nephew Basantlal were situated across each other in village Khauna. In the intervening night of 2/3.11.1997 Basantlal and his wife Smt. Mohini, mother Smt. Raorani, son Anil Kumar, daughter Premlata were sleeping inside their house. Complainant Mansharam, his wife Smt. Saroj and their children etc. were sleeping in their own house.
3. Suddenly at about 2.00 pm in the same night, Premlata daughter of Basantlal cried. Complainant Mansharam and his family members got awakened and came at the door using flashlights. In the meantime some 7-8 miscreants opened 2-3 firearm shots from the roof of Basantlal on complainant Mansharam and his family members wherein wife of complainant Smt. Saroj, son Pradeep and Sanjay, daughter-in-law Smt. Shanti Devi, cousin sister Kishori sustained injuries. Smt. Saroj, wife of complainant fell down at the door and died.
4. When neighbour Govind Das reached at the door-step of the complainant Mansharam on the commotion, one of the miscreants opened fire on him. He sustained injury and fell down. Other villagers also reached the spot. It is alleged that the miscreants plundered the residence of Basantlal and escaped under cover of firearm shots. The villagers and village chowkidar tried to chase them but failed to apprehend them. The miscreants were armed with various kinds of fire arm weapons, axes and sticks etc. In this incident four persons, namely Basantlal (nephew of Mansharam), Smt. Saroj (wife of Mansharam) Smt. Raorani and Smt. Mohini died and several others sustained firearm injuries. The FIR (Ext. Ka-1) of this incident was lodged at 4:30 am on 3.11.1997 by complainant Mansharam at Police Station Jalaun, district Jalaun against 7-8 unknown miscreants. A chik report (Ext. Ka-6) was carved out.
5. It is pertinent to point out that two police constables, namely, Dinesh Kumar and Chandra Narayan Pandey were also busy in routine patrolling duties in village Khanua, the place of occurrence. On hearing the commotion, they also went with their rifles to the place of occurrence, challenged the miscreants and opened firearm shots but the miscreants escaped. This information was incorporated in general diary (G.D.) (Ext. Ka-7) on their return back to the police station. Complainant, Mansharam (PW 2) lodged the FIR which was also incorporated in to G.D. Investigation was initiated. Injureds, were sent for medical examination. Inquest proceedings were conducted. Site plan (Ext. Ka-8) was prepared. Samples of blood stained and simple earth (Ext. Ka-9 and Ext. Ka-10) were taken. Empties and tiklies etc. were also recovered from the spot.
6. In the aforesaid incident four persons, namely, Saroj (wife of P.W. 2 Mansharam), Basant Lal, Raorani and Smt. Mohini were assassinated. Dacoity was committed in the house of deceased Basantlal, nephew of P.W. 2 Mansharam, complainant.
7. On 10.11.1997 two persons namely, Ram Kumar Khangar S/o Man Singh Khangar and Parshuram were arrested. It is alleged that some silver ornaments were recovered from them. On 11.11.1997 other accused persons Raj Kumar @ Pappu @ Mama S/o Shiv Charan, Munna Mehtar and Suresh Mehtar were arrested. Some recoveries were also allegedly made from them.
8. On 3.11.1997, PW 3 Ashok Kumar, jeweler (younger brother of deceased Basantlal) gave a list to the police delineating the material which were looted from Basant Lal. It is pertinent to point out that complainant Mansharam is uncle of deceased Basant Lal. The list of looted material (Ext. Ka-2) was given subsequently by P.W.3 Ashok Kumar. A list containing following items is reproduced hereunder:-
"(i) One used silver toe rings amounting to Rs. 1,400/- (approx.) weighing around 200 gms designed with betel-like shape; and its front hook inscribed with flower pot design. There are tinkles affixed on the below blocks.
(ii) One used pair of silver anklets with betel-shaped toe rings amounting to Rs. 1,400/- (approx.) weighing around 200 grams with tinkles affixed.
(iii) One used pair of a 3-layer fringed silver Tokia with enamelled (Meenadaar) designs at some spaces, amounting to Rs. 500/- (approx.) weighing around 70 grams with tinkles affixed.
(iv) One used pair of silver Todia dangling with enamelled (Meenadaar) designs at some spaces, weighing around 40 grams amounting to Rs. 300/- (approx.).
(v) One used pair of gold ear ring weighing around 4 grams amounting to Rs. 1,600/- (approx.) with 5 dangles affixed on each of them.
(vi) One used gold plated ring weighing around 3 grams amounting to Rs. 1,200/- (approx) having a small red gem affixed on it.
(vii) One boat shaped Disawari enamelled (Meenadaar) silver ring weighing around 2 grams amounting to Rs.14/- (approx.) with blue-green (firozi) and blue enamelling on it.
(viii) Fifteen (15) pairs of Disawari diamond enamelled (Meenadaar) shaped toe rings weighing around 100 grams amounting to Rs. 700/- (approx.).
(ix) One dozen new steel glasses amounting to Rs. 120/- (approx.) on which my name Ashok Kumar Swarnkaar is inscribed.
(x) Six (6) full sized new plates amounting to Rs. 120/- (approx.) with my name inscribed on them.
(xi) Two (2) tericot sarees with flower print amounting to Rs. 500/- (approx).
(xii) In cash -3 wads of Rs. 50/- notes and 30 notes of Rs. 100/- amounting to Rs. 18,000/-."
9. Recovered materials were put for identification, report of which is available on record as Ext Ka-52. On conclusion of investigation, a charge sheet (Ext. Ka-53) was submitted against six persons, namely, Raj Kumar Khangar S/o Man Singh Khangar, Munna Mehtar, Suresh Mehtar, Parshuram, Raj Kumar @ Pappu @ Mama S/o Shiv Charan and Har Narayan under Sections 396 and 412 IPC. A charge sheet under Section 25 Arms Act (Ext. Ka-54) was also submitted against appellant Raj Kumar Khangar S/o Maan Singh Khangar. The Trial Judge framed charges against six persons, namely, Raj Kumar S/o Man Singh Khangar, Munna Mehtar, Suresh Mehtar, Parshuram, Raj Kumar @ Pappu @ Mama S/o Shiv Charan and Har Narayan under Sections 396, 412, 397 IPC on 18.7.1998.
10. Apparently, accused Parshuram died on 23.9.2003 and Har Narayan died on 18.8.2003, therefore, the criminal case against them stood abated. It is pertinent to point out that accused appellant Raj Kumar Khangar S/o Maan Singh Khangar also faced charge under Section 25 Arms Act in S.T. No.8-A/1998. Incidentally, both trials were conducted jointly and for the purposes of recording evidence and delivering judgment, Sessions Trial No. 8/1998 (State Vs. Raj Kumar and others) under Sections 396, 397 and 412 IPC, P.S. Jalaun, District Jalaun was declared leading case. The present criminal appeal has been instituted on behalf of appellants Raj Kumar Khangar S/o Maan Singh Khangar, Munna, Suresh and Raj Kumar @ Pappu @ Mama S/o Shiv Charan.
11. Heard Sri Ambrish Kumar, Advocate on behalf of appellants Raj Kumar Khangar S/o Maan Singh Khangar, Munna and Suresh and Sri P.K. Rao on behalf of appellant Raj Kumar @ Pappu @ Mama S/o Shiv Charan and learned A.G.A. Sri K.C. Pandey on behalf of State.
12. Learned counsels for appellants have argued that FIR did not contain name of a single accused despite the fact that appellants Suresh Mehtar, Munna Mehtar and Raj Kumar S/o Man Singh Khangar belong to the same village Khanua. Appellant no. 4 Raj Kumar @ Pappu @ Mama S/o Shiv Charan belongs to village Tiktauli within same police station Jalaun. Learned counsel for appellants have further argued that accused persons were not put to this identification by prosecution; FIR was ante-timed; the stated recoveries have not been proved; all the witnesses of recovery have denied the claim of recoveries and the identification of recovered articles was done in a shoddy manner. Further claim is that one accused late Har Narayan belonged to district Jhansi yet no identification parade was conducted. Only one witness, namely, Prem Lata (PW1) has named the accused persons but her credibility is extremely low. Source of light has not been specified. Specific roles of accused persons have not been delineated.
13. Per contra, Sri K.C. Pandey, learned A.G.A. for State has denied any allegation of manipulation and fabrication. Submission is that FIR was lodged within two and a half hours at police station Jalaun which was only 12 kms away from the place of occurrence; that two police personnel were already present there, therefore, question of ante timing of FIR does not arise. The argument is that it was not necessary to produce injured witnesses. List of looted materials was given little late on account of the fact that treatment of injured persons was required immediately. As soon as P.W. 3 Ashok Kumar (brother of deceased Basantlal) came back from Jalaun after receiving information of dacoity, he prepared the list and submitted it to the police.
14. A bare perusal of prosecution evidence would reveal that this gruesome incident is not disputed. Dacoity was indeed committed in village Khanuwa at the residence of complainant Mansharam's nephew deceased Basantlal. Several witnesses as P.W. 1 Prem Lata daughter of deceased Basantlal, P.W. 2 Mansharam, P.W. 4 Govind Das and P.W. 5 Raja Ram etc. have supported the factum of dacoity and the death of deceased Smt. Saroj wife of Mansharam (complainant), Basantlal, Smt. Rao Rani, mother of Basantlal and Smt. Mohini, wife of Basantlal. Prosecution has established the factum of dacoity quite clearly. In fact even the counsel for appellants have also not disputed this fact. The death of four persons in this dacoity is also not disputed. There is sufficient and satisfactory evidence available on record to establish that dacoity indeed was committed in village Khanua at the residence of complainant Mansharam's nephew and four persons lost life in this dacoity. However counsels for appellants have disputed the involvement of appellants in the said dacoity and they appear to have several legitimate reasons for disputing the involvement of appellants in the said dacoity.
15. First of all, no one was named in the FIR which was lodged within two and a half hours of the incident. Dacoity was committed between the night of 2/3//11/1997 at about 2 am in village Khanua. It is alleged that three accused, namely, Suresh Mehtar, Munna Mehtar and Raj Kumar S/o Man Singh Khangar belong to the village Khanua itself. The FIR indicates that several persons had gathered on the place of occurrence. In fact large number of people were present inside the house where dacoity was committed. Two constables, namely, Dinesh Kumar and Chandra Narayan Pandey were also present on their routine patrolling duties. F.I.R. says that miscreants were chased but of no avail. Several citizens were injured in this episode and yet not a single person has been named by the complainant Mansharam (P.W. 2) in his FIR (Ext. Ka-1).
16. Not only that the contents of FIR indicate that complainant Mansharam (P.W. 2) had in fact clearly seen the miscreants along with several persons. He did give some details of their appearances. Complainant, Mansharam has specifically asserted that he could very easily recognize the miscreants if brought before him. The relevant portion of F.I.R. (Ext. Ka-1) is reproduced as below:-
^^cnek'k lkr vkB Fks cUnwd reapk dqYgkM++h M.Mk fy;s Fks iSUV 'kVZ dqrkZ iktkek lwVj ifgus Fks dqN cnek'k NksVs dn dqN e>ksys dqN yEcs dn ds Fks vkl ikl dh cksyh cksyrs Fks ckr ckr esa xkfy;ka nsrs FksA eSa o esjs ?kj ds yksx o xksfoUn nkl frokjh o xkao ds yksxksa us cnek'kksa dks VkpksZa dh jks'kuh esa ns[kk o igpkuk gSA lkeus vkus ij ns[kdj igpku ldrs gSA^^
17. The aforesaid lines of FIR are very clear. It clearly says that complainant Mansharam (P.W. 2), his family members, P.W. 4 Govind Das Tiwari and several villagers had seen the miscreants clearly and could recognize them, if brought before them.
18. It is pertinent to point out that P.W. 2 Mansharam (complainant) did not say that he was incapable of recognizing the miscreants or the miscreants had covered their face during the dacoity. There is no claim that miscreants had covered their faces during dacoity. The G.D. entries (Ext. Ka-7) on the return of constables Dinesh Kumar and Chandra Narayan also do not disclose any such fact. Therefore, not mentioning the names of accused persons in the FIR despite the fact that as many as three accused persons belong to the village Khanua and despite the claim of P.W. 12 R.P. Yadav I.O. (Investigator) that 4th appellant, namely, Raj Kumar @ Pappu @ Mama S/o Shiv Charan, though originally resident of village Tiktauli, was in fact living in village Khanua for several years, meaning thereby that all the four appellants belong to village Khanua, place of dacoity.
19. P.W. 1 Premlata has claimed that village Khanua is comparatively small village of 200-300 homes. She has denied the suggestions of defence that village Khanua consists of around 1500 houses. All the four appellants were living in village Khanua. In fact one of the witnesses namely P.W. 9 Ravindra Singh has admitted that residence of appellants Raj Kumar S/o Maan Singh Khangar, Munna and Suresh was located at the distance of 150 mt, 400 mt. and 400 mt. respectively. Interestingly P.W. 9 Ravindra Singh claims to have visited the residence of complainant Mansharam at 6:30 am after receiving information of Dacoity at 5 am. It is pertinent to point out that list of plundered items were given on the same day in the evening and yet names of miscreants were not communicated by complainant to Ravindra Singh (P.W.9). Fact of the matter is that Ravindra Singh has specifically denied, witnessing involvement of appellants in the stated crime.
20. The list of plundered articles was given by P.W. 3 Ashok Kumar (younger brother of Basantlal) to the police personnel on the same day in evening as admitted by him during his testimony. Before handing over this list to the police, several persons had gathered at the place of dacoity. FIR and evidence available on record indicate two police personnel, namely, Dinesh and Chandra Narayan were present during dacoity and yet not a single person was able to recognize the miscreants barring PW 1 Premlata. We will discuss her evidence later on.
21. Other witnesses have firmly refused to support her claim that appellants were involved in this crime. Her own family member P.W. 2 Mansharam has clearly denied any knowledge of involvement of appellants in the stated crime. His evidence was recorded after 8 or 9 months of the incident. Only P.W. 1 Premlata, a 17-18 years old girl of his family has deposed about the involvement of appellants in the said crime but P.W. 2 Mansharam has refused to support the allegation of involvement of appellants in the stated crime. He has not shown the inability to recognize miscreants. He has asserted that he had seen the miscreants clearly in the light of torch and yet he refused to support allegation of involvement of appellant in the stated crime.
22. P.W. 3 Ashok Kumar was admittedly not present at the time of dacoity but remaining witnesses of fact have also refused to support the prosecution allegation of involvement of appellants in the stated crime. P.W. 4, 38 years old Govind Das was in fact injured in the episode. It is the prosecution case that one of the miscreants shot him when he neared the residence of deceased Basantlal in the dead of night at 2 am. but he has clearly denied the involvement of appellants in the stated dacoity. He has clearly stated that appellants were not involved in the dacoity. The same testimony was given by other witnesses, P.W. 9 Ravindra Singh and P.W. 10 Sudhar Singh who have also not supported the prosecution story. Both of them have claimed that they did not witness the accused persons on the stated day. Surprisingly, prosecution has not adduced the evidence of their own employees, namely, constables Dinesh Kumar and Chandra Narayan Pandey who were present at the time of incident in their routine patrolling duties. FIR says that they were present. Entries of GD support this claim. According to prosecution, these two police constables in fact opened firearm shots from their official rifles upon miscreants and yet prosecution withheld these persons.
23. We believe that there is no satisfactory reason for prosecution to withhold these constables. It is now clear that not a single witness of fact, barring P.W. 1 Premlata has testified about the involvement of appellants in the stated dacoity.
24. Coming back to the testimony of this 18 years old girl, it is clear that she is the star witness of prosecution. Dacoity was committed in her house. Her father was murdered in the same episode. Her grandmother and mother also died. Another deceased Smt. Saroj was also her family member. So she lost four persons of her family in this incident. Several other members of her family were also injured in the same episode. FIR was lodged by her grandfather (Mansharan) and yet no one is prepared to support the claim of this girl that appellants were involved in this gruesome incident.
25. Complainant, Mansharam, grandfather of this girl is claiming that he had seen the miscreants and could again recognize them if brought before him and yet P.W. 2 Mansharam, her grandfather clearly denied the involvement of appellants in the crime. He has not only given this story in court but also said the same thing in his FIR (Ext. Ka-1). It is pertinent to point out that P.W. 2 Mansharam lost his wife in the same episode. He was admittedly 70 years old at the time of his testimony. It was very natural for him to know and recognize the members of his village. He was much more in a position to recognize other village folks than that of 17-18 years old village girl. It is common knowledge that ordinarily these girls are mostly confined to their homes and yet Premlata conveniently was able to recognize all the appellants and not her grand-father and other members of his family.
26. P.W. 1 Premlata has stated that she recognized all the miscreants. These miscreants had not only committed dacoity but also murdered members of her family during this dacoity. She herself claims to have received injuries in the incident. She was subsequently admitted to hospital for treatment. She claims that police personnel came within two hours of the incident and sent them for treatment first to Orai and subsequently to Kanpur. Her statement was recorded in the Halet hospital, Kanpur after 4-5 days of the incident by I.O. The surprising thing is that she did not communicate the names of miscreants either to the police or to his grandfather Mansharam (complainant). She has admitted this fact in her testimony. The relevant portion of her testimony is reproduced below:-
^^ea'kkjke esjs ?kj vk;s FksA ea'kkjke esjs ?kj lat;] iznhi] 'kakWfr] fd'kksjh] xksfoUn nkl vk;s FksA eSus ea'kkjke dks ;g ugha crk;k Fkk fd ftu yksxksa us MdSrh Mkyh ?kVuk ds ckn iqfyl okys esjs ?kj vk x;s FksA iqfyl okyksa dks Hkh eaSus eqyfteku ds uke ugha crk;s FksA^^
27. The failure of this girl to communicate names either to her family members or to the police personnel is surprising and suspicious. At one place of her testimony she has admitted that the miscreants had covered her face with quilt. Three miscreants did not even belong to village Khanua. Co-accused late Parshuram belongs to village Vyaspura, late Har Narayan belongs to village Gokulpara of district Jhansi and one appellant Raj Kumar @ Pappu @ Mama S/o Shiv Charan belongs to village Tiktauli and yet this girl was able to name all these persons in her testimony. She gave these names in her testimony, recorded after 8-9 months of the incident, but did not give these names to complainant Mansharam or to police personnel who were present on the spot at the time of stated dacoity. Admittedly, within two hours of the incident other police personnel also came on the spot. Police personnel sent her and her injured family members to the treatment, but still she did not communicate names of miscreants to anyone including police.
28. Admittedly, she had never visited village Tiktauli of appellant Raj Kumar @ Pappu @ Mama S/o Shiv Charan, or village Gokulpara of late Har Narayan. She did not even know the distance between her village and village Vyaspura of co-accused late Parshuram. We do not believe her testimony. There are far too many discrepancies in her testimony to inspire any confidence. Her credibility is virtually nil.
29. Her ability to recognize certain material during property identification despite the admitted absence of any special marks on this jewelry, is also strange. But we will come to the property identification later on.
30. According to prosecution story, the arrest of appellants was made on 10.11.1997 and 11.11.1997. There is no satisfactory material on record to disclose the reason for their arrest. As per prosecution two persons (Raj Kumar Khangar S/o Maan Singh Khangar and co-accused late Parshuram) were arrested on 10.11.1997. The memorandum of arrest (Ext. Ka-55) does not indicate that police was aware of their involvement in the stated crime. It is pertinent to point out that statement of Premlata had already been recorded. But this 'Fard Baramadgi' (Ext. Ka-55) does not indicate that these two persons were under radar of the police because of any information furnished by Premlata. This "Fard" merely indicates that two persons were found near culvert and were arrested because of their suspicious conduct. Subsequently they were searched. A country made pistol was allegedly recovered from Raj kumar S/o Maan Singh Khangar. The same search also resulted in the alleged recovery of one pair of silver toe ring weighing 200 gm. from him. Search of late Parshuram (co-accused) resulted in the recovery of one pair of silver anklets weighing 200 gm. Strangely both of these people calmly admitted that they had committed dacoity at the residence of deceased Basantlal and murdered four persons in the process. We do not believe this story at all. No public witness was taken during this arrest reportedly conducted at 6 pm. on 10.11.1997.
31. Fact of the matter is that involvement of other four accused persons was divulged by these two people in the police custody and subsequently other arrest were made. On 11.11.1997 appellants Raj Kumar @ Pappu @ Mama S/o Shiv Charan, Suresh Mehtar and Munna Mehtar were arrested allegedly from a desolate Shiv temple on 12:30 pm. It is stated that some recoveries were, later on made at the instance of these miscreants. Some public witnesses were taken but not a single public witness has supported the prosecution story of any recoveries. P.W. 5. Raja Ram has denied any recovery from appellants Suresh, Raj Kumar @ Pappu @ Mama and Munna in his presence. In fact this man has admitted that he put his signature on empty paper because of pressure of S.I. P.W. 6 Ram Saran has even denied the arrest of accused persons in his presence. He has not admitted any recovery in his presence. P.W. 7 Brij Mohan and P.W. 8 Ram Shanker have also denied the arrest and any recovery. We believe the story of these recoveries are sham. These recoveries are not trustworthy at all. No independent evidence is available on record in support of this recovery.
32. It is pertinent to point out that circumstances surrounding the filing of FIR itself are suspicious. P.W. 2 Mansharam (complainant) has specifically stated that he dictated the FIR after return of P.W. 3 Ashok Kumar Soni. If we examine the testimony of P.W. 3 Ashok Kumar Soni, the nephew of P.W. 2 Mansharam, it would indicate that he reached his village at 5 am. and could not meet Mansharam because he had already left for Orai. P.W. 3 has also stated that police personnel had already arrived in the village when he reached there and were busy in inquest proceedings. Meaning thereby that the FIR had in fact not been recorded at 4:30 am. as indicated by chik report (Ext Ka-6 & Ext. Ka-55) but record shows that FIR had been lodged at 4:30 am. This discrepancy clearly supports the allegation of counsel for appellants that FIR had been manipulated and was ante-timed.
33. Now the question is why was FIR ante-timed? No satisfactory explanation has been given by prosecution, but this is clear that FIR was indeed ante-timed. It appears that official documentation was manipulated and it is difficult to rely on the documents prepared in the wake of stated crime. In fact the whole documentation of police and execution of official papers becomes suspicious. An attempt to manufacture and create evidence is visible. Therefore, the entire prosecution story, evidence and genesis of prosecution case become suspicious and doubtful.
34. The most fatal lapse committed by prosecution is failure to hold test identification (T.I.) parade. Evidently, miscreants were not named in the FIR. It was admitted in the FIR itself that complainant Mansharam and his family members had seen the miscreants and therefore, could have identified them during identification parade and yet the Investigating Officer failed to hold test identification parade.
35. When accused persons are previously not known to the witnesses concerned, then identification of accused by witnesses soon after the arrest is very vital, because it furnishes to the Investigating agency as well as court an assurance that investigation was done in a proper manner in addition to furnishing the corroboration of evidence given by witnesses subsequently in the court during trial.
36. We believe when witnesses did not know the miscreants/accused prior to the occurrence and no identification parade was held to test his/her identification, then his evidence becomes valueless on the question of identification. We believe that in such a case holding a prior test identification is necessary. We also believe that where identification parade has not been held and the witness for the first time identified in the court without being tested, then test identification in court has limited value.
37. It is pertinent to point out that in this case not a single witness barring P.W. 1 Premlata was able to recognize the miscreants despite the fact that at least 3-4 miscreants belonged to the same village. As far as evidence of P.W. 1 Premlata on the question of identification is concerned, we believe, it is totally valueless for the simple reason that she did not communicate the names of miscreants to her family members including complainant Mansharam (P.W. 2) and to the police personnel present and subsequently arrived on the spot.
38. We are also not satisfied with the recoveries allegedly made during arrest. No public witness has supported these recoveries. Even the testimony of the Special Magistrate Sri V.P. Srivastava (P.W. 15) is not satisfactory on this score.
39. Identification of property is not a formality. It is a serious business that is why it is conducted by the Magistrate. The Special Magistrate Sri V.P. Srivastava (P.W. 15) has admitted that he did not record which witness has correctly identified which particular item. Memorandum of this identification of property (Ext. Ka-52) in any case, is not a substantive piece of evidence. Failure to provide evidence of Kiran Devi in the court would adversely affect the prosecution case. Surprisingly, P.W. 3 Ashok Kumar Soni S/o Ram Sevak was produced in evidence. He stated that he had recognized the recovered articles during this identification parade and yet not a single question was asked by prosecution regarding recovery. No details were delineated by him during this testimony. Third witness of this identification is P.W. 1 Premlata. The identification memo (Ext. Ka-52) clearly says that P.W. 1 Premlata committed at least two mistakes during identification and thereby diminishing the value of her identification. This fact has been admitted by P.W. 15, Special Magistrate Sri V.P. Srivastava during his testimony as well.
40. Interestingly, I.O. R.P. Yadav (P.W. 12 ) has admitted during his testimony that when the list of plundered jewelry was given to him by P.W. 3 Ashok Kumar Soni, he did not enter it into case diary. There is no details in the case diary regarding material taken away by dacoits. No design and other details were given in case diary. In fact P.W.1 Premlata has also admitted that these material are easily available in market. Learned counsel for the appellants has pointed out that deceased Basantlal was involved in business of lending money in lieu of jewelry and; that such articles were easily available to the family.
41. Circumstances surrounding the recovery etc. and absence of proper identification do create lingering suspicion regarding entire prosecution evidence. In this scenario the argument of learned counsel for appellants that recoveries have been fabricated in order to flaunt the resolution of the case, cannot be ignored altogether. We also believe that source of light at the time of incident was not enough to permit reasonable identification. This conclusion is supported by evidence of all the witnesses barring P.W. 1 Premlata. Surprisingly, the material recovered from Munna Mehtar and late Parshuram were not put to the identification. The I.O. himself has admitted that the recoveries made from Munna Mehtar and late Parshuram were not placed for identification process. He has also admitted that accused were not covered or made Baparda in the wake of their arrest.
42. We have carefully perused all material on record. We believe that dacoity was committed at the residence of deceased Basantlal and his family in which several persons were injured and four persons died, but there is no evidence on record to demonstrate the involvement of appellants in the stated crime. Police has failed to conduct the proper investigation and to collect the trustworthy evidence. The entire case indicates that police perhaps was merely interested to somehow show the resolution of case rather than book the real culprits or to collect trustworthy and legally admissible evidence. The failure of police personnel is now resulting in the acquittal of appellants.
43. The failure to produce injured witnesses in the evidence is surprising. Refusal of independent witnesses to support the recoveries has completely and totally demolished the prosecution case. We believe there is no trustworthy evidence against appellants. Therefore, they are entitled of acquittal.
44. In view of the above, the common judgment and order dated 19.05.2005 passed by the Special Judge (Dacoity) Jalaun at Orai in Sessions Trial No.8 of 1998 (State Vs. Raj Kumar and others) arising out of Case Crime No.683 of 1997 and in Sessions Trial No. 8A of 1998 (State Vs. Raj Kumar S/o Man Singh) arising out of Case Crime No.685 of 1997 is hereby, set aside. The appeal is allowed. The appellants, namely, Raj Kumar Khangar S/o Maan Singh Khangar, Munna, Suresh and Raj Kumar @ Pappu @ Mama S/o Shiv Charan are acquitted. Appellants, if in jail be set at liberty immediately unless their detention is required in connection with any other case.
45. Let a copy of this order be certified to concerned court through Sessions Judge, Jalaun at Orai within a fortnight for compliance. The court concerned shall report the compliance within a month thereafter.
Order Date :- 11.5.2017 Meenu