Allahabad High Court
Jaivir Singh Son Of Shri Shiv Nath Singh vs State Of U.P. on 28 August, 1995
Equivalent citations: 1996CRILJ1494
JUDGMENT G.S.N. Tripathi, J.
1. Accused Jaivir Singh was convicted on a charge under Section 392 read with Section 397 I.P.C. by the then IVth Addl. Sessions Judge, Bijnor, vide his judgment and order dated 8- 2-80 passed in S. T. No. 29 of 78, State v. Kulwant Singh and Anr. of the same district. He was sentenced to undergo 7 years R. I. on the said charge, Co-accused Kulwant Singh has been acquitted on totally absurd grounds. However, the State has not filed any appeal against this order of acquittal. The convicted accused Jaivir Singh, appellant has filed this appeal.
2. The prosecution case is contained in the FIR lodged on 24-3-77 at the police station Sherkot, Distt. Bijnor on 20.45 P.M. The incident is said to have taken place in the same evening at about 6 P.M. The distance of the police station from the place of occurrence is about 4 miles. The complainant is Praduman Kumar, PW-3. He has alleged that he along with Garib Das, PW-4, Mawasi, PW-1, Datto Singh and Saddiq Ahmad had gone to take payment of cane-dues at cane centre, Hafizabad. While returning they were encountered by the accused Jaivir Singh and one of his companions Kulwant Singh (acquitted). Jaivir Singh had a knife. By flashing the same, he looted a bag containing Rs. 2110/- from Praduman Kumar and Rs. 507/- from Garib Das. Alarm was raised, hearing which the accused tried to retreat. Jaivir Singh successfully ran away with the looted money. However, Kulwant Singh, another co-accused was arrested after a mild chase near about the place of occurrence. He was taken into custody by the complainant and the witnesses. They started for the police Station. On the way, the FIR was scribed by the complainant and ultimately the accused Kulwant Singh with the FIR was produced before the Head Constable, Hari Singh PW-5 at the police station in the same night at 20.45 P.M. where the case was registered in the G. D. and the chik report was prepared.
3. The investigation of the case was taken in the hand by Sri Beni Singh Verma, PW-7. The case had been registered in his presence. He interrogated Praduman Kumar, PW-3, Garib Das, PW-4 and Saddiq Ahmad and Mawasi, PW-1. at the police Station itself. He also made fard for cash purchies produced by the witnesses, Exhibits Ka 7 to Ka 15 and 20. Kulwant Singh was also interrogated at the police station.
4. In the night of 24-25/3-77 itself, the I. O. started for the police station Ralagarh, where the accused Jaivir Singh the appellant resided. He took into confidence the S. C. Prem Singh, Constable Gajendra Singh, Ram Khilawan and Komal Singh in after taking them along with him, quarter No. 1028 in the Work Charge Colony was raided, in presence of Shri Shanker Saxena, PW-6, Babu Ram and others. Accused Jaivir Singh was arrested and searches were made. From his possession Rupees 2110/- were recovered. The details of the recovered notes were noted and the notes were sealed on the spot. Memo was prepared. The accused was brought to the police station. Next day, he went to the spot of recovery. After inspecting the same, he prepared the site-plan, Exhibit Ka 21. Then he came to the place where the incident took place. After inspecting it, he prepared the site-plan, Exhibit Ka 21. He interrogated the witnesses and after completing the investigation, he submitted the charge sheet against the accused.
5. In support of its case, the prosecution examined PW-3, Praduman Kumar, the complainant. He narrated the entire story as contained in the FIR PW- 1, Mawasi and PW-4 Garib Das are the other witnesses of the fact. They have stated that the looting took place in their presence. Accused Kulwant Singh was arrested by them at a short distance from the spot and the report as well as the accused Kulwant Singh were produced at the police station in the same night. Accused Jaivir Singh, who fully identified, escaped with the looted property.
6. PW-6 is Sri U. S. Saxena, a witness of recovery from Jaiveer Singh. He has tried to hesitatingly support half-heartedly the case of the accused also. I shall deal with this case with his evidence at a later stage. Other evidence is formal in nature consisting of Mari Singh, PW-5 and PW-7. Beni Singh Verma, the I. O.
7. The accused Jaivir Singh in his statement under Section 313 Cr. p.c has denied the allegation, against him and had said that on account of enmity with Praduman Kumar, who terrorises the village people, as a matter of habit, he has been falsely implicated. Additionally, he has stated that a sum of Rs. 2-110/- recovered from him, actually belonged to him. He had kept the same for purchasing bullock.
8. Accused Kulwant Singh also denied the allegations against him. The accused led no evidence in their defence.
9. After perusal of the entire facts and circumstances of the case, the learned lower Court has come to the conclusion that the prosecution has proved its case beyond a shadow of reasonable doubt against accused Jaivir Singh alone. But he extended the benefit of doubt to Kulwant Singh and acquitted him.
10. The accused Jaivir Singh has felt aggrieved against the order of conviction and sentence and has filed this appeal.
11. I have heard learned counsel for the parties at stretch and gone through the record. I find that there is absolutely no force in this appeal and it deserves to be dismissed.
12. The incident had taken place at about 6 P.M. on 24-3-77. The FIR was lodged in the same evening after negotiating a distance of 4 miles at 20.45 P.M. Accused Kulwant Singh had also been taken to the police Station. His arrival was noted by the Head Constable Hari Singh in the G. D. of the Police Station. On this point, there is a statement of the I. O. Shri Beni Singh Varma also. As this case was registered in his presence, both these persons have deposed about the registration of the case and production of the accused Kulwant Singh on the date, time and place, as noted above and significantly, no cross-examination has been made against these witnesses on this point. So is the case with regard to the statements of the complainant, Mawasi and Garib Das as well. So it comes to this that the FIR was lodged at the police station without any loss of valuable time. Minor contradictions have been detected in the statements of the complainant and Mawasi, PW-1 as regards the place where the FIR was scribed.
13. PW-1 Mawasi states in paragraph 2 of his cross-examination that he does not correctly recollect as to whether the FIR was scribed by the complainant himself or it was scribed by somebody else. In the cross-examination, at page 4, he states that so far as he recollects, Praduman Kumar had scribed the FIR at the police station although, he is not sure about it. Whereas Praduman Kumar, PW-3 states that at the office of the society on the way to the police station, he scribed the FIR. Since the statement of Mawasi is not certain and it is based upon his impression and recollection, the sworn testimony of Praduman Kumar, who is the author of the FIR cannot be whittled down and its importance cannot be minimised nor any sense (sic) of uncertainty can be introduced or entertained. Therefore, I hold that the FIR was scribed by Praduman Kumar on his way to the Police station and he produced the same at the police station before the Head Constable along with the accused Kulwant Singh.
14. This way, the FIR was lodged without any loss of valuable time. There was no time available to the complainant to consult and confabulate or chalk out a false theory to implicate the accused with the help of some legal brains. Such a prompt FIR has a great importance as regards corroboration of the prosecution case is concerned.
15. Another beauty of the FIR is that it contains everything upon which the prosecution case has been built up, namely, the date, time and place of occurrence, names of the accused, the roles played by them, the weapons held by them, the names of the witnesses etc. such a FIR is a veritable asset to the prosecution and it has a great importance in criminal case.
16. The FIR contains the detail of the notes, which were looted from Praduman Kumar. These details were noted with the help of the Parchies, which Praduman Kumar had brought with him. He states that he had noted the numbers as with the help of the Parchies, he successfully counted the money. There is nothing unnatural in it. Praduman Kumar is not an educated person. Somehow or the other, he could write and read. Time is taken for counting the money. By noting all the numbers of the bundles it is usually done by villagers and this is a usual practice and there is nothing unnatural in it. Therefore, the argument to the contrary advanced by the learned Counsel is rejected.
17. Another question is that soon after the FIR was lodged, the I. O. started the investigation in the same right earnest. As the matter related to another police station situate in Kalagarh of the same district, the I. O. reached Kalagarh in the same night. After taking the police officials of police Station Kalagrah in confidence, he raided the house of Jaivir Singh in the Work Charge-Colony, where he was readily arrested and the recoveries were made. The details of the notes recovered were noted in the recovery memo by the I. O., which were later on found to be tallying with the numbers of the notes contained in the FIR. On this point, the statement of the I. O. has remained virtually unscathed. No material irregularity could be pointed out on the basis of which it could be said that the I. O. is not telling the whole truth and the same is shaky. From the statement of Sri Uma Shankar Saxena, it appears that he has not been very sticky in his statements. In his Examination-in-Chief, he states that the police recovered notes from Jaivir Singh in his presence. They were sealed in the cloth bundle on the spot. But in the cross-examination, he states that when he reached the spot, the money had been shown to him by the police. Jaivir Singh accused was also there. The money was not taken from Jaivir Singh by the police in his presence. However, he does not say that Jaivir Singh had made any protest against this behaviour of the police in his presence. Not only this; the witness readily signed the recovery memo without any difficulty or any objection. (sic) at this stage, he cannot be allowed to say that the recovery was not made in his presence.
18. Another important feature of the case of recovery is that the accused Jaivir himself does not deny the factum of recovery of this amount from him. He says that the money belonged to him, which he had kept in store for purchasing bullock. But when Sri Uma Shankar Saxena was in the witness box, not a single question was put that the money belonged to the accused. Similarly with the I. O., such an attempt was not made. Under these circumstances, I find that the factum of recovery is clearly established. Minor contradictions and tit-bits here and there in the statements of the witnesses will not belie the recovery. Whereas the facts, circumstances and the evidence on the record, were sufficient to prove that the recovery was effected from the possession of the accused.
19. This is a secondary type of evidence to prove the case under Section 392/397 I.P.C.
20 The primary evidence consists of the statements tof PW-3 Praduman Kumar PW-1 Mawasi and PW-4 Garib Das. All these witnesses have been uniformly stating that the accused Jaivir Singh played a leading role in snatching the money from Praduman Kumar and Mawasi with a lethal weapon in his hand. Even after very lengthy cross-examination these witnesses remained unscathed. I find that the concentration of the cross-examiner was mostly on gambling and only in significant formal questions were on the point of loot. But as and when the questions were put, the story became clearer and clearer. For instance, PW-1 states in paragraph 3 that he could not see as to whether pocket of Garib had been torn when the money was snached from him. But it was a day-light when the incident took place. Further, he stated that he did not see Praduman Kumar counting his notes in his presence. The place where the loot took place, is about 1 furlong away from Hafzabad Cane Centre. Accused Kulwant Singh was arrested towards the north after crossing 2 to 4 fields. The distance might be about 10 or 50 yards. Similary, Praduman Kumar was cross-examined on this point. He also states in paragraph 4 that the payment had been made by 4.30 P.M. Thereafter he waited for 10-15 minutes. When payments to all his colleagues had been made, he started for his house. He was asked as to what talks had taken place between him and the accused Jaivir Singh regarding payment of his Parchies and whether Jaivir Singh had threatened to tear his abdomen with the help of his knife. These minute details did not find place in the FIR. I think that the FIR is not supposed to contain all the answers to questions which the learned cross-examiner may put during the course of cross-examination. It is not supposed to be an encyclopaedia of all the facts, relevant or irrelevant. Similarly, at page 4 of the cross-examination, it was put whether the button of Garib Das had been broken or not. Whether during the course of struggle. Jaivir had kept his knife in his hand or not and as to whether Jaivir was putting both his hands upon the person of Praduman Kumar or not. I think that these are absolutely insignificant questions. They do not touch the merits of the case. More over the statement was recorded after practically two years of the occurrence. Such minute details could not be kept in mind by any person, much less a rural person. His education is scanty .Therefore, after a thread-bare analysis of the statement of this witness, I find that nothing material has been extracted on the basis of which his testimony can be rejected.
21. PW-4, Garib Das is another witness of fact. He also accompanied the complainant right upto the police station. Sun had not set in. He was a patient of Asthama. He is an uneducated person. Therefore, he could not show his manliness to a great extent. However, he tried to assault the accused Kulwant Singh unsuccessfully at his legs. He was also put very insignificant questions in the cross-examination. But significantly, he had answered all of them without any demur and hesitation. Therefore, I find that the statement of Garib Das, PW-4 is equally important. His presence on the spot and loot from him have not been denied. .
22. The evidence was recorded by the trial Court which had an opportunity to watch the demeanour of the witnesses. Unless there is anything which may lead us to a conclusion that the conclusions arrived at by the learned trial Court are perverse, normally, the appreciation of evidence made by the learned trial Court should not be disturbed. After a close scrutiny of the entire evidence on the record, I am in total agreement with the learned trial Court regarding conviction and sentence of the accused as noted above.
23. However, I find that the basis upon which the learned lower Court had acquitted accused Kulwant Singh was not sufficient. At page 19 of its judgment, he has observed as follows:-
"As regards Kulwant, the prosecution case as well as the prosecution evidence is silent about any overt act on his part. The only evidence against him is that he was with Jaivir at that spot and had run away with Jaivir after the looting. This evidence no doubt creates a grave suspicion regarding the complicity of Kulwant in the crime but the grave suspicion does not amount to prove the complicity be- yond reasonable doubt. He might not have been aware about the intention of Jaivir Singh. At least, the evidence against him is equally consistent with his innocence. He is, therefore, entitled to acquittal."
I find that this is a hyper technical approach of the learned lower Court. Kulwant Singh was arrested soon on the spot with a mild chase. It is difficult to believe that he did not know or co-share the intentions or knowledge of the co-accused Jaivir Singh i.e. he was looting innocent persons for the sake of his personal aggrandisement. Therefore, with all respect to the learned lower Court I find that the grounds upon which the accused Kulwant Singh had been let off, were not sufficient for the purpose.
24. I was thinking of issuing notice to the accused Kulwant Singh to show cause as to why his acquittal should not be set aside. But since the incident is of 1977 and the order of acquittal was recorded in 1980, therefore, I find that it is not essential to do so on such a later date.
25. Taking the totality of the circumstances into consideration, I find that this appeal has no force. It is accordingly dismissed. The accused is on bail. His bail bonds and surety bonds are cancelled. He shall be taken into custody at once by the Chief Judicial Magistrate concerned, who shall intimate this Court within one moth from today about the compliance of this order.
26. Learned counsel urged that the sentence should be reduced. I do not agree, It is a high-handed and broad day light act of robbery on the public road. At this juncture, such accused should not be given any leniency.