Allahabad High Court
Briju vs State on 8 March, 2021
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on : 17.12.2020 Delivered on : 08.03.2021
CRIMINAL APPEAL No. 3091 of 1981
Birju ----Appellant
Vs
State of Uttar Pradesh -----Respondent
_______________________________________________________
For Appellant : Sri Pawan Singh Pundir, Amicus Curiae
For Respondent/State : Sri Bhaiya Ghanshyam, AGA _______________________________________________________
Hon'ble Raj Beer Singh, J.
1. This appeal has been preferred against the judgment and order dated 15.12.1981, passed by the IVth Additional Sessions Judge, Bijnor in S.T. No. 111 of 1979 (State vs. Birju and others), under Sections 395, 397 and 412 IPC, whereby appellant Birju and co-accused Om Prakash, Umesh Kumar and Faiza were convicted under Section 395 IPC and they were sentenced to eight years rigorous imprisonment along with fine of Rs. 2,000/- under Section 395 IPC. In default of payment of fine, the accused-appellant has to undergo six months additional rigorous imprisonment.
2. During hearing of this appeal, a report was called from the office whether any appeal of co-accused Om Prakash, Umesh Kumar and Faiza is pending and it was reported that as per the official website data, only present appeal has been preferred against ST No. 111 of 1979, and no other appeal relating to S.T. No. 111 of 1979 is pending.
3. Case of prosecution is that on 09.01.1979 one State Transport Bus No. U.S.T. No. 5205 was being plied by driver Hari Singh from Dehradun to Kotdwar. At around 17:00 hours the bus started from Haridwar to Najibabad and at around 18:25 hours when the said bus reached at some distance from village Mandawali, suddenly one of the passengers fired a shot in the bus and threatened that bus be stopped. The driver Hari Singh stopped the bus and thereafter 2-3 persons, who were traveling as passengers, started snatching the gun from the constable of RTO, who was sitting among passengers and in that grappling one of the miscreant fired a shot, which hit said constable and the miscreants snatched his gun. There were total seven miscreants and they started robbing the passengers of bus and snatched watches, cash and transistor etc from several passengers. They have also snatched the cash of Rs 341/ including government cash of Rs 319/ and other valuables from the complainant Om Prakash (bus conductor). Similarly they snatched Rs. 300/, purse and one belt from Shakti Dhar Pathak, Traffic Superintendent, who was also traveling in the same bus. After committing dacoity, all seven miscreants left the bus and went away. Thereafter, the bus was taken to police station Najibabad. The complainant has also stated about physical description (हुलिया) of the miscreants and he reported the matter to police by submitting Tehreer Ex. Ka-1, and on that basis a case was registered against seven unknown bandits under Sections 395, 397 IPC vide First Information Report Ex. Ka-9. One Jhau Ram and Narayan, both constables of RTO office, who have sustained injury, were sent for medical examination. Jhau Ram has sustained fire-arm wounds and he examined vide MLC Ex. Ka-2 and Narayan was examined vide M.L.C Ex. Ka-3.
4. During investigation, PW-21 S.I. V.N. Verma inspected the spot and recorded the statements of victims. He was informed that police of police station Nangal has arrested some persons connected with this dacoity and that some looted property has also been recovered from them. PW-21 S.I. V.N. Verma reached there and interrogated the three accused persons, namely, Birju (appellant), Umesh Kumar and Om Prakash, who were arrested by police of Nangal police station, and the contents of recovery memo, prepared by police of Nangal, were taken down in case diary. Initially accused-appellant Birju has told his name as Mahesh to conceal his identity. Accused-appellant Birju has also disclosed the name of one Shyam Lal and Daya Ram Tyagi amongst his associates in the said incident. On 15.01.1979 Birju was taken into police custody remand with permission of Court and during this period he was kept Baaparda (face covered). Co- accused Faiza and one Mehboob were also arrested. On 06.02.1979 test identification parade of appellant Birju and co-accused Om Prakash, Umesh Kumar and Faiza was held in district jail Bijnor and he was identified vide identification memo Ex. Ka-31. On 20.03.1979, the identification of recovered property was also made in presence of Magistrate. After investigation, accused appellant and co-accused were charge-sheeted.
5. The trial Court framed charge under Sections 395, 397 and Section 412 IPC against the accused-appellant Birju and co-accused persons.
6. In order to bring home guilt of accused-appellant and co-accused persons, prosecution has examined 39 witnesses. Accused-appellant was examined under Section 313 Cr.P.C, wherein he has denied prosecution evidence and claimed false implication. In defence, one R.K. Nigam was examined as D.W.-1.
7. After hearing and analyzing evidence on record, accused-appellant was convicted under under Section 395 IPC and sentenced as stated in opening paragraph of this judgment.
8. Being aggrieved, the accused-appellant has preferred the instant appeal.
9. Perusal of record shows that notice was issued to the accused-appellant Birju for hearing of this appeal but it was reported by the Chief Judicial Magistrate, Meerut that accused-appellant Birju is not traceable at his given address and that his bail bonds were also not available. As the appeal was quite old, thus, Sri Pawan Singh Pundir, Advocate was appointed as Amicus Curiae to argue this appeal on behalf of accused-appellant.
10. Heard Sri Pawan Singh Pundir, learned Amicus Curiae and Sri Bhaiya Ghanshyam, learned A.G.A. for the State.
11. In evidence, PW-1 Om Prakash, who was conductor of the said bus, has reiterated the version of first information report and stated that on 09.01.1979 while the bus No. U.S.T. No. 5205 was being taken from Dehradun to Kotdwar and that Traffic Superintendent Shakti Dhar Pathak and two staff members including one Chaman Lal and two constable of R.T.O. and 33 passengers were traveling in the bus. One of the R.T.O. constable was having a gun. At about 06:30 PM, when the bus reached at some distance after Madawali, he heard some sound of firing and saw that the miscreants, who were traveling in the bus, stood up and asked to stop the bus. One of the miscreants put a knife at his head. Four miscreants were having country made pistol and two were having knives. They got stopped the bus at the point of weapons and they snatched his bag, which was containing government cash of Rs. 319/ and his personal amount of Rs. 22/. They have also snatched a wrist watch and Rs.215/ from Shakti Dhar Pathak and they also snatched gun from R.T.O. constable and during that grappling, the miscreants have fired a bullet, which hit the said R.T.O. constable. The said miscreants committed dacoity in the bus and after that all the miscreants went away towards left side of road. PW-1 Om Prakash further stated that the bus was taken to police station and the case was got lodged by submitting tehreer Ex. Ka-1.
12. PW-2 Hari Singh is driver of said bus and he has also reiterated similar version like that of PW-1. He has stated that on day of incident he was driving the roadways bus No. UST No. 5205 from Dehradun to Kotdwar. Besides the conductor, there were three staff members in the bus and rest of the persons were passenger. Two R.T.O. constables were also traveling in the said bus. At about 06:30 PM when bus reached at some distance from village Mandawali, he heard sound of firing and bullet from the bus and the miscreants asked him to stop the bus. Accordingly, he stopped the bus. Three of the miscreants overpowered an RTO constable, who was having a gun, and in that scuffling they have also caused fire-arm injuries to him and snatched his gun. The miscreants robbed all the passengers and conductor of bus. There were total seven miscreants. At the time of alleged incident, inside lights of bus were on. After committing robbery all the miscreants went away towards north side. PW-2 Hari Singh further stated that thereafter he took bus to bus station Najibabad and from there bus was taken to police station and the bus conductor has lodged the report. PW-2 has stated that he has seen the miscreants in the light of bus and during investigation he has participated in the test identification parade. During his statement in Court he has identified the accused-appellant and three co-accused persons.
13. PW-3 Habibullah, who was one of the passenger in the bus, stated that he has boarded the said bus from Haridwar for going to Najibabad. There were two RTO constables and many other passengers in the bus. At about 06.30 PM when the bus reached at some distance from Mandawali, he heard sound of firing and the driver stopped the bus. He saw that there were seven robbers in the bus, who were armed with knives and pistols and they started robbing passengers and the conductor. The miscreants have snatched the gun of RTO constable after causing fire-arm injuries to him. After that all the miscreants went away towards northern side. PW 3 Habibullah further stated that at the time of incident, the inside lights of bus were on and he has recognized them in light. Later on he has identified the accused-appellant and three co-accused persons in identification parade in jail. He has also identified them during his statement in court.
14. PW-4 Harish Chadra, Medical Officer has medically examined injured Jhau Ram and Nayan Chandra. Injured Jhau Ram has sustained fire-arm injuries.
15. PW-5 Shakti Dhar Pathak has stated that on 09.01.1979, he has boarded the bus U.S.T. No. 5205 from Dehradun for going to Kotdwar and at around 06:30 PM, when the bus was eight kms before Najiababad, some passengers fired a bullet and they have also snatched the gun from the constable of R.T.O. by causing firearm injuries to him and that miscreants got stopped the bus. PW-5 Shakti Dhar Pathak further stated that the said miscreants snatched his purse containing cash of Rs.200/, wrist watch and one raceme belt from him. The miscreants also robbed the conductor and passengers.
16. PW-6 Ali Ahmad and PW-7 Syeed Ahmad are also passengers of bus and they have also supported the said version like that of PW-3 Habibullah.
17. PW-8 SI Narayan Singh has arrested the co-accused Fiaza.
18. PW-9 Narayan Singh is RTO constable, who was traveling in the said bus. He has also supported the prosecution version and he has participated in test identification parade. He has inter-alia stated that on 09.01.1979 he along with constable Jhau Ram was travelling in the said bus and when the bus reached at some distance after village Mandawali, a fire was shot in the bus and the driver has stopped the bus. The miscreants have attacked Jhau Ram and fired a bullet at him and and snatched gun and cartridges from Jhau Ram. The miscreants have robbed the passengers and after that went away. He has identified the accused-appellant during TIP as well during his statement in court.
19. PW-10 Ram Kumar, the then ADM of Najibabad, has conducted identification parade of recovered articles.
20. PW-32 Virendra Singh is also one of the passenger of bus. He has stated that on 09.01.1979, he was traveling in roadways bus from Haridwar and at about 06:30 PM when bus proceeded from Madawali towards Najibabad, six persons stand up in the bus and they snatched gun of policeman of R.T.O., who was traveling in the same bus and they got stopped the bus and they have fired 3-4 shots and that one of the R.T.O. policeman has sustained some pellet injury at his hand and alleged persons robbed cash and valuables of passengers. He has further stated that his philips transistor, wrist watch and cash of Rs. 400/- were robbed by the said miscreants. After committing robbery, the said miscreants went away towards field and after that bus was brought to police station Najibabad and a report was lodged. PW-32 Virendra Singh has further stated that during investigation, he has identified his wrist watch and transistor in the Court.
21. PW-12 Constable Shiv Kumar has stated that on 10.01.1979, he was posted at PS Nangal and on that day he has taken accused-appellant Mahesh (appellant Birju) and co-accused Umesh and Om Prakash from police station to district jail in Baaparda (face covered) condition.
22. PW-13 Head Constable Shiv Dayal Singh has stated that on the night of 09/10.01.1979, he along with other police officials of PS Nangal has apprehended accused-appellant Mahesh (Birju) and co-accused Umesh and Om Prakash from corner of road and they were lodged in lock up in Baaparda (face covered) condition. He has stated that the real name said Mahesh is Birju. Some articles were recovered from them, which were taken into possession vide memo exhibit Ka-5.
23. PW-14 constable Chakradhar Prasad has recorded first information report.
24. PW-11 Amar Singh and PW-15 constable Jagendra Singh are formal witness.
25. PW-16 Baldeo Singh has stated that police have inquired him about whereabouts of co-accused Mahboob and after that Mahboob and one Faiza were apprehended by police. There was a wrist watch in the hand of Mahboob, which was taken into police possession vide Ex. Ka-4.
26. PW-17 Baldeo Singh has stated that he has seen that police have apprehended Mahboob and nothing was recovered from him. He was declared hostile.
27. PW-18 Rorhu Singh has stated that one accused, who was already in police custody, has got recovered cartridges belt, which was taken into possession.
28. PW-19 constable Gopal Datt is a formal witness.
29. PW-20 constable Kali Charan has stated that on 21.01.1979 accused Mahboob and Faiza were sent to jail in Baaparda (face covered) condition.
30. PW-21 S.I. V.N. Verma has stated that he has started investigation of this case and recorded statement of witnesses. He has proved list of robbed articles as Ex. 6, 7 and 8. Later on, he came to know that some of the accused of this incident have been arrested by Nangal police and he went there and found that accused Mahesh Kumar, Umesh Kumar and Om Prakash were lying in lock up and that some robbed articles have already been recovered from them by police of police station Nangal. He has interrogated the said accused persons and they were formally arrested in this case and recovery memo was prepared. The site plan of the place, from where they were apprehended, was also prepared. During investigation, it was also found that one of the accused Mahesh, who along with accused Om Prakash and Umesh was sent to jail, was in fact Birju. On 15.01.1979 accused Birju was taken into police custody remand for three days and he was kept Baaparda (face covered). He has disclosed that his real name is Birju. During custody, all three accused persons were kept Baaparda (face covered). On 18.01.1979 accused-appellant was lodged in district jail Bijnor. During entire period of police custody remand, the accused-appellant Birju was kept Baaparda and no one was allowed to see him. On 06.02.1979 he obtained result of the test identification parade of accused-appellant Birju and co-accused persons. On 20.03.1979 identification of recovered case property was conducted. He has further stated that after completion of investigation, he has filed charge-sheet Ex. Ka-27 against the accused-appellant Birju and co-accused persons.
31. PW-22 Constable Raghuveer Singh, PW-23 constable Krishna Bahadur Gangwar, PW-24 constable Shiv Kumar, PW-25 constable Janeshwar Dayal, PW-29 constable Naubahar Singh, PW 33 Constable Raj Kumar, PW 34 Constable Ranvir Singh, PW 35 Constable Mahender, PW-36 constable Ant Ram Singh, PW-37 Pooran Singh, PW 38 Sahab Singh and PW-39 constable Nyadar Singh have made statements to the effect that after arrest of accused-appellant Birju and co-accused persons, he was kept baapada during the period he remained in police custody or in lock up and whenever he was taken to Court and jail. Some of these witnesses have remained on duty at lock up of police station while accused-appellant was in lock up and some of them have taken the accused-appellant to Court and district jail at different point of time. All these witnesses have stated that after arrest of accused-appellant, when he was kept in lock up or taken to Court or district jail or during period of police custody, accused-appellant was kept in Baaparda condition.
32. PW-26 D.P. Thapliyal, the then S.D.M. Najibabad, has conducted test identification parade of accused-appellant Birju and co-accused Umesh Kumar, Ompraksh and Fiaza vide report Ex. Ka-31. He has inter-alia stated that accused-appellant Birju and co-accused persons were correctly identified by witness Hari Singh. Accused-appellant Birju was also correctly identified by witness Mohd Haneef, Habibullah and Narayan.
33. Scrutiny of evidence shows that there is ample evidence on record to show that on 09.01.1979 at about 6:25 PM while the roadways bus No. UST - 5205, being driven by PW-2 Hari Singh, was carrying passengers from Dehradun to Najibabad and when it reached near village Jatpura, within the jurisdiction of police station Najibabad, District Bijnor, a robbery was committed by the seven miscreants, who were traveling in the said bus. The first informant / PW-1 Om Prakash, who was conductor on the said bus, has clearly stated that a dacoity was committed in the bus. His version has been amply corroborated by PW-2 Hari Singh, who was driving the said bus and PW-5 Shakti Dhar Pathak, Traffic Superintendent, who was also traveling in the said bus. The prosecution version regarding above stated alleged incident of dacoity in the said bus is further supported by PW-3 Habibullah, PW-6 Ali Ahmad, PW-7 Sayeed Ahmad and PW-32 Virendra Singh, who were traveling in the said bus as passengers and they are also victim of alleged dacoity. The prosecution version regarding said dacoity is further supported by PW-9 Narayan Singh (constable of R.T.O.), who was also traveling in the said bus and during course of dacoity. All these witnesses have been subjected to cross-examination but nothing adverse could emerge. There are absolutely no reasons that why these witnesses would depose falsely. PW 21 SI V.N. Verma, who investigated the case, has also stated that there were marks of struggle in the bus. It is also established that cash, wrist watches, transistor and other valuables were robbed from the passengers of bus and from conductor of bus. It is further established that RTO constable Narayan Singh and Jhau Ram have sustained injuries in the said incident. Thus, there is overwhelming evidence on record that on above stated date, time and place, the incident of dacoity took place in the said bus. In fact, the alleged incident of dacoity has not been seriously disputed by the defence.
34. Perusal of record shows that accused-appellant Birju was not named in first information report and his conviction is based on his identification. Accused-appellant was identified by several witnesses during TIP as well during evidence in court.
35. The contention of learned Amicus Curiae is that accused-appellant Birju was not named in the first information report and his identity could not be fixed. It was stated that there is undue delay in holding the test identification parade and that this possibility can not be ruled out that after his arrest he was shown to the witnesses and thus, the evidence regarding his identification is not free from doubt.
36. It is well settled that the evidence of test identification is admissible under section 9 of the Indian Evidence Act. The Identification parade belongs to the stage of investigation by the police. The question whether a witness has or has not identified the accused during the investigation is not one which is in itself relevant at the trial. The actual evidence regarding identification is that which is given by witnesses in Court. The fact that a particular witness has been able to identify the accused at an identification parade is only a circumstance corroborative of the identification in Court. The necessity for holding an identification parade can arise only when the accused persons are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Indian Evidence Act, 1872. It is desirable that a test identification parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.
37. 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 the Hon'ble Apex 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 purpose of a prior test identification is to test and strengthen the trustworthiness of that evidence. The identification parades belong to the stage of investigation, and though there is no provision in the Criminal Procedure Code which obliges the investigating agency to hold a test identification parade, but it is quite desirable that the Test Identification Parade should be conducted as early as possible, however, at the same time, the very purpose of conducting Test Identification Parade during the investigation is for the satisfaction of the investigating officer that the suspect is the real culprit, but the substantive evidence is the identification of the accused in the Court. There is no hard and fast rule that in every case, where the Test Identification Parade was conducted belatedly, the identification of the accused by the victim should be discarded. (Budhsen and another vs. State of U.P. : AIR 1970 SC 1321). If the delay in holding the Test Identification Parade is duly explained or where the delay had occurred due to reasons beyond the control of the investigation officer, then the delay in holding the Test Identification Parade may not be fatal. Thus, in nutshell, it can be said that in each and every case, the effect of delay in holding the Test Identification Parade has to be considered in the peculiar facts and circumstances of that case.
38. In Lal Singh and others Vs. State of U.P. 2003 (12) SCC 554, the Hon'ble Apex Court dealt with the value or weightage to be attached to Test Identification Parade and the effect of delay in holding such Test Identification Parade and held as under:-
"28. The next question is whether the prosecution has proved beyond reasonable doubt that the appellants are the real culprits. The value to be attached to a test identification parade depends on the facts and circumstances of each case and no hard-and-fast rule can be laid down. The court has to examine the facts of the case to find out whether there was sufficient opportunity for the witnesses to identify the accused. The court has also to rule out the possibility of their having been shown to the witnesses before holding a test identification parade. Where there is an inordinate delay in holding a test identification parade, the court must adopt a cautious approach so as to prevent miscarriage of justice. In cases of inordinate delay, it may be that the witnesses may forget the features of the accused put up for identification in the test identification parade. This, however, is not an absolute rule because it depends upon the facts of each case and the opportunity which the witnesses had to notice the features of the accused and the circumstances in which they had seen the accused committing the offence. Where the witness had only a fleeting glimpse of the accused at the time of occurrence, delay in holding a test identification parade has to be viewed seriously. Where, however, the court is satisfied that the witnesses had ample opportunity of seeing the accused at the time of the commission of the offence and there is no chance of mistaken identity, delay in holding the test identification parade may not be held to be fatal. It all depends upon the facts and circumstances of each case. "
39. Adverting to the facts of present case it may be seen that the first information report was lodged against 7 unknown persons. The conviction of accused-appellant Birju is mainly based on his identification by the eye-witnesses and victims of alleged dacoity. The said incident took place at about 06.25 PM. So far the source of light is concerned it may be mentioned that in first information report itself it was mentioned that the inner as well as the outer lights of the bus were on. PW 1 Omprakash, PW 2 Hari Singh as well as the other victims of dacoity have clearly stated that the inner lights of bus were on and they have recognized the miscreants in the said light. There is no such case that the miscreants have kept their faces covered. As number of persons were looted thus, there was sufficient opportunity on the part of said witnesses to see and observe their specific features. In the first information report the broad features of miscreants were also mentioned. Thus, there is ample evidence to show that there was light in the bus and the eye-witnesses have sufficient opportunity to see the miscreants. Further case of prosecution is that on the night of 09/10.01.1979, the police team of police station Nangal, which included PW-13 Head Constable Shiv Dayal Singh, has arrested accused-appellant Birju and co-accused Umesh and Om Prakash from Chandak-Nangal road. According to the prosecution, initially the accused-appellant has told his name as Mahesh however, later on it was found that he has falsely told his name as Mahesh to conceal his real identity and his name is Birju. Recovery of some of the looted articles was made from accused-appellant Birju and said co-accused persons vide recovery memo Ex. Ka-5. There is consistent evidence that after arrest of accused-appellant Birju, he and co-accused persons were lodged in lock up of the police station under Baaparda condition. On 15.01.1979 he was taken on police custody remand for three days. There is evidence that during this period also he was kept 'baaparda.' Similarly whenever he was taken to court or to jail, he was kept 'baaparda'. In this connection the evidence of PW-22 constable Raghuveer Singh, PW-23 constable Krishna Bahadur Gangwar, PW-24 constable Shiv Kumar, PW-25 constable Janeshwar Dayal, PW-29 Naubahar Singh, PW-33 constable Raj Kumar, PW-34 Rajveer Singh, PW-35 constable Mahendra Singh and PW-36 Ant Ram Singh is quite clear and cogent. Merely because accused-appellant remained in police custody remand for three days, it could not be presumed that he was shown to the witnesses. Prosecution has led all link evidence to establish that after his arrest, during the period of his custody in lock up of police station or when taken to Court or to jail or during police custody remand, the accused-appellant Birju was kept in Baaparda condition.
40. PW-26 D. Thapliyal, the then Sub Divisional Magistrate, Najibabad (District Bijnor) has conducted test identification parade on 06.02.1979 at District Jail Bijnor vide identification parade memo Ex. Ka-31. PW-26 D. Thapliyal has clearly stated that accused-appellant Birju was correctly identified by PW-2 Hari Singh, constable Jhau Ram, witness Mohd. Haneef as well as by PW-3 Habibullah. Thus, it is apparent that accused-appellant was identified by the witnesses, who included driver of the bus (Hari Singh), constable Jhau Ram (who sustained injury in the said incident) and the above stated passengers of the bus, who were also victim of the said dacotiy. Similarly the accused-appellant Birju has been identified in court by several witnesses. It is correct that the incident of alleged dacoity took place on 09.1.1979 and the accused-appellant Birju was arrested on the same night i.e. night of 09/10.01.1979 and his test identification parade has been conducted on 06.02.1979 but the said delay is to be examined in view of attending facts and circumstances of the case. The prosecution has led ample evidence in the form of PW-19 constable Gopal Datt, PW-20 constable Kali Charan, PW-22, constable Raghubeer Singh, PW-23 constable Krishna Bahadur Gangwar, PW-24 constable Shiv Kumar, PW-25 constable Janeshwar Dayal, PW-29 Naubahar Singh, PW-30 constable Hukum Singh, PW-34 Rajveer Singh, PW-35 constable Mahendra Singh, PW-36 Pooran Singh and PW-37 constable Sahab Singh to the effect that after arrest of the accused-appellant Birju, he was kept in Baaparda condition till he was lodged in district jail. PW-26 D. Thapliyal has also made a detailed statement regarding entire test identification parade exercise. No material contradiction or inconsistency could be shown in the statement of PW-26 D. Thapliyal. He has proved the identification memo Ex. Ka-31 in accordance with law. In view of these facts and circumstances, it cannot be said that alleged delay in holding the test identification parade of accused-appellant Birju is fatal. In fact, there is sufficient evidence on record that accused-appellant Birju was identified in test identification parade as one of the culprit, who was involved in commission of alleged incident of dacoity in the said bus. During evidence, PW-2 Hari Singh, PW-3 Habibullah, PW 7 Sayeed Ahmed and PW-9 Narayan Singh have identified the accused appellant Birju in Court. In this regard, their statements are corroborated by test identification parade, conducted during investigation. The learned counsel for the appellant has failed to point out any serious contradiction, infirmity or any other lacuna in the prosecution case regarding identification of accused-appellant. In view of evidence on record mere delay of 27 days holding the test identification parade can not be said undue or fatal to prosecution.
41. Thus, on the basis of evidence on record, it stand established that accused-appellant Birju was one of the miscreant, who was involved in commission of alleged dacoity in the said bus. In this regard, the Trial Court has appreciated the entire evidence in correct perspective and thus, the involvement of accused-appellant Birju in the said incident has been established.
42. One more question involved in this matter is that total four accused persons including the accused-appellant Birju were convicted by the Trial Court and thus, it is to be considered whether four accused can be convicted under Section 395 IPC?. For the sake of convenience, Section 391 IPC, which defines ''dacoity' is reproduced as under:-
"391. Dacoity When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
43. After considering the above stated provision, it appears that the term 'conjointly' implies jointness of action and understanding. 'Conjointly' means to act in joint manner, together, 'unitedly by more than one person. 'Conjoin' means 'join together', as per the Oxford Large Print Dictionary. Similar meaning has been given in Webster's New International Dictionary and by Collins. Thus the use of word 'conjointly' in Section 391 IPC indicates that five or more robbers act with knowledge and consent and in aid of one another or pursuant to an agreement or understanding, i.e., unitedly. No doubt in most of incidents of dacoity, the robbers would be acting with a common object to loot with use of violence. The word 'conjointly' means uniform intention along with unified or united or concerted action. It appears that this word has been deliberately preferred over the word 'jointly'. From bare reading of provisions of aforesaid Section, it is clear that when five or more persons conjointly commit a robbery or they conjointly attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery and persons present and aiding such commission or attempt amount to five or more, every person who is so committing, attempting or aiding is said to commit 'dacoity'. Therefore, robbery or attempted robbery by at least five persons is dacoity. It is not necessary that all the five persons must commit or attempt to commit robbery. If the total number of those, who are committing or attempting to commit or are present and aiding such commission or attempt is at least five, all of them are guilty of dacoity. In other words, those who commit robbery and those who attempt to commit the same, and those who are present and aiding such commission or attempt are all counted, and if their number is five or more all of them would be guilty of committing dacoity. Moreover, it is not necessary for their conviction that their attempt must succeed. If the attempt does succeed it is a dacoity, and if the attempt fails even then the offence is dacoity. Section 395 IPC provides punishment for dacoity, which reads as under:-
"395. Whoever commits dacoity shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
44. It is apparent from aforesaid provisions that when robbery is committed or an attempt to commit is made by five or more persons, then all such persons, who are present or aiding in its commission or in an attempt to commit it, would commit the offence of dacoity. In case of Manmeet Singh @ Goldie Vs. State of Punjab, 2015(4) SCALE 111, the Hon'ble Supreme Court observed as under:-
"27. With reference to the offence of dacoity under section 391, IPC in particular and the import of Section 149, IPC, the Apex Court in Raj Kumar vs. State of Uttranchal 2008 (11) SCC 709 had propounded that in absence of a finding about the involvement of five or more persons, an accused cannot be convicted for such an offence. Their Lordships, however, clarified that in a given case it could happen that there might be five or more persons and the factum of their presence either is not disputed or is clearly established, but the Court may not be able to record a finding as to their identity resulting in their acquittal as a result thereof. It was held that in such a case, conviction of less than five persons or even one can stand, but in the absence of a finding about the presence or participation of five or more persons, less than five persons cannot be convicted for an offence of dacoity."
45. In the instant case it may be seen that it is consistent case of prosecution that total seven miscreants were involved in commission of alleged incident of robbery in the bus. In the first information report itself it was clearly mentioned that number of miscreants involved in the incident of robbery in bus was seven. In evidence the first informant as well as other witnesses of factum of alleged robbery have clearly stated that total number of miscreants involved in the incident in question was seven. Here it would be pertinent to mention that after investigation only four of the accused persons including the accused-appellant Birju were charge-sheeted. All the said four accused persons including the accused-appellant Birju have been convicted under section 395 IPC. It is not case here that any of charge-sheeted accused was acquitted by the trial court. In view of these facts and circumstances, conviction of accused-appellant would not affect on the ground that number of convicted persons is less then five. As stated earlier there is ample evidence on record that the whole number of persons conjointly committing the robbery in question were seven. Merely because the remaining three miscreants could not arrested and charge-sheeted, it would not affect the conviction of four accused persons including accused-appellant Birju and thus no fault can be found with conviction of accused-appellant Birju under section 395 IPC on the ground that number of convicts is falling below the statutory requirement of five.
46. It may stated here that even leaving aside the prosecution version regarding alleged recovery, on the basis of evidence on record, particularly the evidence regarding identification of accused-appellant Birju, it appears that there is sufficient evidence on record, which unerringly point out to the guilt of accused-appellant. Though, evidence on record shows that on the night of 09/10.01.1979 accused-appellant and co-accused Umesh Kumar and Omprakash were arrested by police of PS Nangal and Rs. 175/ cash, one wrist watch, three postal tickets and one ticket of bus No. 5205 were recovered from accused-appellant and PW-13 HC Shiv Dayal has proved recovery memo exhibit ka-5 but it appears that there is no cogent evidence that the articles recovered from accused-appellant Birju were looted in the incident in question. However, considering entire evidence it clearly emerges that accused-appellant Birju was one of the participant in the said incident of dacoity. The Trial court has considered entire evidence in correct perspective and thus, the trial Court was justified in recording conviction of accused-appellant Birju for offence under Section 395 IPC.
47. So far as question of sentence is concerned, it is well settled that sentence must be just and proportionate to the gravity of crime. In case of Gopal Singh Vs. State of Uttarakhand (2013) 7 SCC 545, the Hon'ble Apex Court, held as follows:
"Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The Principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect-propensity to become a social threat or nuisance, and some times lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasize, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalized judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a Court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment".
48. In the instant case, it is apparent that this case pertains to a daring incident of robbery in public transport Roadways Bus on highway. In the said incident, besides the public money, being carried by conductor of the bus (PW-1 Om Prakash), various other valuables like wrist watch, transistor and cash were looted from several passengers of the bus. The miscreants have even snatched the gun of constable Jhau Ram and caused firearm injuries to him. However, the trial Court has convicted the accused-appellant Birju only for offence under Section 395 IPC. It is quite apparent that incident was quite daring and that such culprit must be dealt with sternly. However, this fact can also not be ignored that the alleged incident of dacoity took pace on 09.01.1979 and this appeal is pending since 1981, thus, the period of four decades has already been passed since the incident. The accused-appellant Birju alone cannot be held responsible for delay in disposal of the appeal. In statement under Section 313 Cr.P.C. of accused-appellant Birju, which was recorded on 01.12.1981, his age was shown as 38 years. Thus, now the accused-appellant might have been aged around 77-78 years. Though, the incident relates to a daring incident of dacoity in public transport but considering the fact that period of four decades has been passed since then and that now the accused-appellant Birju is stated aged around 77-78 years, it would be appropriate that the sentence awarded by the Court below be reduced. Considering the entire relevant facts and position of law, ends of justice would met if period of sentence of the accused-appellant is reduced from eight years rigorous imprisonment to three years rigorous imprisonment.
49. In view of aforesaid, conviction of accused-appellant Birju under section 395 IPC is upheld but the sentence of imprisonment awarded by the Court below is altered and he is sentenced to three years rigorous imprisonment along with fine of Rs. 2000/-. In default of payment he shall undergo six months additional imprisonment. The accused-appellant Birju is on bail, thus, the Court below shall take appropriate steps for presence of the accused-appellant Birju so that he may be sent to jail concerned to serve out the sentence.
50. Appeal is partly allowed in above terms.
51. This court appreciate the assistance rendered by Sri Pawan Singh Pundir, learned Amicus Curiae. He shall be paid Rs. 6000/ (six thousands) by the State Government as remuneration for his assistance.
52. A copy of this order along with record of trial court be sent back to the court concerned.
Date: 08.03.2021 A. Tripathi (Raj Beer Singh, J)