Allahabad High Court
Malkhan And Others vs State Of U.P. on 19 April, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AC:68045-DB
Judgment reserved on 01.02.2024
Judgment delivered on 19.04.2024
In Chamber
Case :- CRIMINAL APPEAL No. - 143 of 1996
Appellant :- Malkhan And Others
Respondent :- State of U.P.
Counsel for Appellant :- Anil Srivastava
Counsel for Respondent :- Govt. Advocate
Hon'ble Siddharth,J.
Hon'ble Ram Manohar Narayan Mishra,J.
(Delivered by Hon'ble R.M.N. Mishra,J.)
1. By means of instant criminal appeal, the appellants have assailed the impugned judgment and order dated 24.01.1996 passed by Special Judge (DAA) Budaun in Special Session Trial No.122 of 1987 State Vs. Malkhan and two others, arising out of Case Crime No. 67 of 1987, under Sections 394 and 302/34 IPC, Police Station Jarif Nagar, District Budaun. By the impugned judgment and order learned trial court convicted the appellants Malkhan, Badri and Om Prakash for charge under Section 302 readwith Section 34 IPC, and Section 394 and 411 IPC, and are awarded punishment of imprisonment for life for charge under Section 302/34 IPC and 10 years rigorous imprisonment alongwith Rs.1,000/- fine for charge under Section 394 IPC. However, no sentence has been passed for charge under Section 411 IPC on the ground that appellants are also convicted for main charge under Section 304 IPC.
2. It transpires from the record that instant appeal qua appellants Badri and Om Prakash, abated due to their death during pendency of appeal. Now, the instant appeal is being considered in respect of the surviving appellant Malkhan only.
3. The prosecution case as appearing on the basis of FIR version and other material on record is that informant Om Prakash lodged an FIR at P.S. Jarif Nagar, District Budaun on 30.04.1987 at 09:30 am on the basis of written report Ext. Ka1, wherein it is stated that he was sleeping in his house situated at village Mirzapur in casual manner alongwith family members in the night of 29.04.1987. The earthen-lamp (dibbi) was burning on thatchet of the house, the main gate of his house was already broken. At 11:00 pm, the informant and his wife Smt. Nathiya awoke on hearing some sound and they saw that 3 to 4 thieves had entered into their house and they were keeping the goods stolen from rooms in the courtyard of the house. The informant and his wife challenged them by referring them as thieves and raised hue and cry, they also tried to catch them, whereupon they started beating his wife by clubs and sticks. The informant ran outside the house and cried for help. The robbers started fleeing away from the place carrying the stolen articles with them, towards road, his neighbour Munshi and Yadram Baghara arrived there wielding lathi and torch in their hands. The informant identified the robbers in the light of torch and they were ready to identify them, if they happened to came infront of them, he was also able to identify the stolen goods. His wife was pregnant and received serious injuries, therefore, he sent her for treatment in Budaun. The stolen goods included 1 Batula of 5kg weight, 2 phool thali (plate), one parat (brass), one lota (brass), 2 bela (phool), 1 sewing machine ('F' marka), 1 chimta (brass), Rs.500/- cash, 10 shirts new, 1 iron, one gold ornament ¼ tola, 1 dhoti (terrycot). They also stated that in the FIR that the inventory of goods which were stolen from houses of his cousin will be given by him. The FIR was lodged under Section 382 Cr.P.C. and police investigated the case. The GD entry on registration of case was made vide report No.20, time 09:30 hours on 30.04.1987, which is marked as Ext. Ka 6.
4. The Investigating Officer recorded statement of the informant Om Prakash and head constable Vikram Singh, the author of Chik FIR on same day on 30.04.1987. The informant after getting his statement recorded, went to Budaun to look after his wife. The investigating officer recorded statement of witnesses of locality, some witness of locality also on 01.05.1987. He visited injured Smt. Nathiya at Budaun and record her statement under Section 161 Cr.P.C. in which she supported FIR version. The Investigating Officer conducted spot inspection of the place of occurrence on 04.05.1987 on the pointing out of the informant and prepared its site plan. He recorded statement of witness Yadram, who stated that in the night of 30.04.1987 some thieves committed theft in the house of Om Prakash. He stated that the thieves fled away with stolen goods which included sewing machine stolen from the house of Amar Singh. He recorded statement of Munshi and Amar Singh also on said date who stated that miscreants had stolen away his shan sewing machine, he was working on sewing machine at the time of incident and he rushed towards house of Om Prakash on hearing his cries and subsequently found that miscreants fled away with his sewing machine and left behind its stand. He had neither seen the alleged miscreants nor identified them, but he could have identified the sewing machine. The case was converted under section 394 IPC on the basis of statements recorded on 04.05.1987 vide GD Report No.33, time 21:30 hours. On 06.05.1987. Section 302 IPC was added in penal sections in view of death of injured Smt. Nathiya on 3.05.1987 at 06:35 am during treatment at Civil Hospital, Budaun and a GD entry in this regard was made. The inquest on dead body of the deceased Smt. Nathiya was carried out on 03.05.1987 by S.I M.S. Vipal who prepared inquest report which is marked as Ext. Ka10. The postmortem examination on the dead body of the deceased was conducted on 03.05.1987 at 02:00 pm by doctor R.C. Sharma, Medical Officer, District Budaun who has enumerated 10 ante-mortem injuries on the person of the deceased. He stated that she was carrying pregnancy of 8 months and her cause of death was shock due to abdominal infection in view of ante-mortem injuries. The Investigating Officer took into custody the torch used by witnesses at the time of incident and prepared its inventory as Ext. Ka.16 and 17 and one earthen lamp (dibbi) which was burning on thatched of the informant house in the night of incident, which is Ext. Ka18. The Investigating Officer arrested three suspected persons namely Malkhan son of Sukhey, Badri son of Nathu Lal and Om Prakash son of Maharam Jatav on 13.09.1987 at 14-15 hours. Accused Malkhan was carrying sacks of gunny mat (taat) in which a sewing machine labled 'Shan' was kept, for which he stated that he had stolen this from a house situated in front of the house of Om Prakash Jatav, which was being operated by him. 1 Batula (kaskut) was recovered from Badri, 1 Kalsa (brass) and 1 lota (gilat) was recovered from Om Prakash. The arrested accused persons confessed their involvement in this offence before the police, they also confessed to have assaulted the women in the house of one Jatav at village Mirzapur together with their accomplish Chandra Bhan Singh, who subsequently died during treatment. They also confessed that they had committed theft in three houses in the fateful night around 4 ½ months earlier. They had disposed of other stolen goods and spend the cash, they were moving to sell these articles in Sahaswan market, on the basis of this arrest recovery under Section 411 IPC was added in penal section. The name and complicity of accused persons surfaced during investigation as they were not identified on the spot. The Investigating Officer moved an application for holding identification parade of the arrested accused persons in the jail, and test identification parade was conducted by PW9 Shri Bheem Singh, the then Executive Magistrate posted in district Budaun on 05.10.1987 in district Jail Budaun, in which the witnesses PW1 Om Prakash, PW2 Charan Singh and PW3 Chandra Kesh and one Munshi identified the accused persons in cent percent manner as the miscreants who committed this offence on the fateful day on 29.04.1987.
5. The test identification was also conducted for identification of the articles recovered from possession of the accused appellants by PW8 O.P. Sharma, in which PW3 Chanra Kesh had identified the utensils truly and correctly, but he did not identify the sewing machine, PW2 Charan Singh identified sewing machine properly but failed to identify the utensils, PW7 Uday Pratap Singh, the Executive Magistrate proved the identification memo of recovered articles as Ext. Ka-8 during trial. The of one accused Chandra Bhan Singh whose name also surfaced during investigation died after commencement of trial and the trial in respect of him abated.
6. Learned trial judge framed under Section 411 IPC against all the three appellants Malkhan, Badri and Om Prakash and charge under Section 394, 302/34 IPC against appellants and coaccused Chandra Bhan (since deceased). The accused persons denied the charge and claimed to be tried. The prosecution examine PW1 Om Prakash, the informant as eyewitness, PW2 Charan Singh as witness, and PW3 Chandra Keshas witness of fact, PW4 Dr. R.C. Sharma doctor the author of postmortem examination (Ext. Ka-2), PW5 SI Dharam Singh Rana arresting and recovery officer, PW6 SI Sundar Lal Kanaujiya, PW7 Constable Uday Pratap Singh, PW8 Sri O.P. Sharma and PW9 Executive Magistrate Sri Bheem Singh.
7. After conclusion of prosecution evidence the statement of the accused was recorded by learned trial judge under Section 313 Cr.P.C. in which they stated that the witnesses have deposed against them falsely, they were not kept baparda (veiled) after their arrest and they were shown to witnesses before organising their identification parade. The witnesses have deposed against them due to enmity, the case was falsely initiated against them.
8. The accused did not adduce any evidence in defence, their defence is that of denial. Learned trial court after considering the submissions of learned counsel for the parties and appreciating the evidence on record a verdict of guilt against appellants for charge under Section 302/34, 394 and 411 IPC and sentenced them as above. Learned trial court concluded that on the strength of evidence on record this fact is completely proved that in the intervening night on 29.04.1987 at time 11:00 hours the accused persons together with their accomplice (deceased accused Chandrabhan) robbed utensils and sewing machine from the house of complainant Om Prakash (PW1), Charan Singh(PW2) and Chandra Kesh (PW3) and when protest was made by deceased and PW1 they badly assaulted Smt. Nathia, the pregnant wife of PW1 Om Prakash by lathi and sticks who died in the hospital during treatment due to injuries received in the incident. A sewing machine and some other stolen property were recovered from possession of the convicts persons in the evening of 13.09.1987 at around 3:00 hours which they had kept with them knowing same as stolen property. The deceased Smt. Nathiya received as many as 10 injuries on her person which resulted in her death during treatment. There is nothing on record which could suggest that PW2 and PW3 were having any animosity with the accused persons. On the basis of evidence on record, this fact is sufficiently proved that the recovered articles were looted by the accused persons in the intervening night on 29.04.1987 at around 11:00 pm. The accused persons were identified by witnesses in cent percent manner. PW9 the Executive Magistrate who carried out identification parade of the accused persons in the jail, on the request of Investigating Officer.
9. The postmortem examination report is placed on record, which is proved by evidence of its author doctor R.C.Sharma. According to PW4 doctor R.C. Sharma Ext. Ka2, postmortem report of the deceased Smt. Natha (in FIR she is referred as Smt. Nathiya). She was aged about 38 years, who died in district hospital Budaun on 03.05.1987 at time 06:35 am. As per enclosure 7 rigor mortis was present in whole upper limbs and absent in lower limbs. Postmortem staining was present on back, the dead body was identified by constables who had taken the dead body for postmortem examination.
10. Following ante-mortem injuries was present of the person of the deceased Smt. Nathia:-
i. 1cm x.4 cm x 3 cm present on right forearm 6 ½ cm above the wrist.
ii. Contusion 9 cm x 2 cm on abdomen at 11:00 O'clock position.
iii. Contusion 6 cm x 4 cm straight on abdomen 3 cm above injury No.2. iv. Contusion 9 cm x 11 cm on the back of neck below 9 cm below the place of neck in mandable. v. Contusion 18 cm x 6 cm present on left side of back up to shoulder. vi. Contusion 17 cm x 3 cm present on left side of back 3 cm below injury No.5. vii. Contusion 7 cm x 11 cm present on left side of back 3 cm below injury No.6. viii. Contusion 10 cm x 4 cm on right side of buttock.
ix. Contusion 4 cm x 2 cm on back side of abdomen straightway downwards 4 cm above hip bone. x. Contusion 30 cm x 3 cm present on left thigh. Obliquely, vertical 4 cm above, left knee joint. On foetus examination 32 weeks male foetus 16 inches long, width 4 inches was found.
11. On internal examination 250 gms pus was found in pancreatic cavity, mucus membrane was found in stomach which was empty. In the opinion of doctor death occurred due to shock resulting due to ante-mortem injuries and peritonitis.
12. PW4 doctor Ashish Agarwal, author of Ext. Ka2 stated in cross examination that at the time incident severe ruptured, but no examination was conducted after two days of death. Injuries mentioned in Ext. Ka2 were not stitched, infection was found in abdomen after opening the body. Death occurred due to infection in abdomen, he could not state as to whether the infection could be present from administering medicine or injection.
13. PW1 Om Prakash the informant and eye witness who testified on 27.09.1991 that 4 ½ years ago a robbery was committed at 11:00 pm in his house. The door of his house was broken, his wife Smt. Natho was sleeping in the house dibbe (earthen-lamp) was burning, 4 miscreants entered into his house through broken doors. He woke up on hearing the sound. The miscreants assaulted his wife Natho by lathi and sticks, she was pregnant at that time, she suffered serious injuries. The miscreants robbed away clothes, ornaments and utensils from his house. The witnesses Yadram Munshi, Charan Singh, Chandra Kesh and others rushed to the spot on hearing his shrieks. The witnesses were wielding sticks and torches in her hands. Later robbery also took place in the house of Amar Singh. His father Phool Singh and father-in-law rushed his wife straight away to hospital, she died during treatment on 4th day of incident in the hospital due to injuries suffered in this incident of robbery. Thus, injuries were caused by accused persons during robbery, he came to identify the accused persons and identified them. The witness identified all the four accused persons present in the court and stated that he identified them during occurrence, he did not see them after the occurrence before their identification. He was not acquainted with the accused persons prior to the incident, witness acknowledged the written report and stated that it bears his thumb impression which he got scribed on dictation to his brother-in-law Kishan Lal who visited his home in the morning at 7/ 8 am on hearing news of dacoity on which Ext. Ka-1 was marked. He identified the accused persons by name by touching their body. He stated that he saw them during incident and then in jail and did not see them in between these two occasions. In examination PW1 had stated that he woke up on hearing the sound during incident. The miscreants were keeping goods stolen from his house in the courtyard; when he opened his eyes he saw these miscreants in the house. Sumeri his uncle was also sleeping alongwith his children, one Lakhan Singh his relative was also present in the house of the witness, his uncle Sumeri was also present in the house. In the house of Chandra Kesh and Amar Singh also theft was committed and he got this fact scribed in Ext. Ka1. The goods of Sumeri Dau were also stolen, but he could not give description of the goods of Sumeri Dau in Ext. Ka.1. He reached police station to lodge the FIR at 12:00 hours in the day and report was lodged at 01:00 pm. He remained at his house between 11:00 pm to 11:00 am, next date in the night of the incident. Dau Sumeri was also present with him, dibbi was burning in a cavity of wall in his house. It is wrong to say that dhebri was kept inside the room, he was lying in the court yard and his wife was lying under the thatchet, Omwati and Chandrawati were in their respective thatchets in the house. The house of Amar Singh is adjacent to his house lying west wards, they identified the miscreants on the spot, he had not gone for identification. He had not described the weight of utensils stolen from his house. The sewing machine was operated by feet, which was run by his father, although this fact is not stated in FIR, he could not describe the body frame or identification mark (huliya) of miscreants in FIR. Kishan Lal visited his house after hearing the news of robbery in the morning at 07:00-08:00 next day. He visited police station alongwith Kishan Lal and on asking of the Sub Inspector, he filed written report Ext. Ka1. The miscreants had not covered their face during the incident. Charan Singh and his cousin came to Budaun once for identification. He had told the Sub Inspector the body frame (hulia) of miscreants, but he if he has not written in his statement, he cannot state its reason. He came for identification of accused persons after 10 to 5 days of their arrest. The witnesses Yadram Munshi, Chandra Kesh , Charan Singh, Siyaram also came to identify the miscreants, he came to identify the miscreants in the jail after six months of robbery. The witness properly identified accused persons Malkha, Chandrabhan (since deceased) in the court when they were shown to him. He also stated that the Investigating Officer prepared site plan on his pointing out. The Investigating Officer recorded statement of his wife (since deceased) on the next day of lodging of report. The accused carried the stolen property in their own and not through any vehicle.
14. PW1 also stated that Amar Singh would do tailoring work on feet driven sewing machine; the witness clarified that his machine was not recovered. The miscreants were four in number, there were some marriage related festivities in the house of Harijans in the village, the miscreants carried the stollen goods by themselves. The witness belied defence suggestion that he identified accused persons by seeing them and their photographs earlier.
15. PW2 Charan Singh is brother of witness Amar Singh who was later on discharged from evidence. PW2 stated that the incident occurred at 11:00 pm, prior to 1 ¼ years of his evidence, the four miscreants entered into his house and robbed his sewing machine, clothes etc., they also engaged in marpeet with him and thereafter they went to the house of Om Prakash and also committed robbery therein. The wife of Om Prakash was assaulted by miscreants who later on died due to these injuries. He identified the miscreants in the light of lantern properly, he also went to identify them in jail and identified all the four miscreants. This witness identified his sewing machine in the court on which Ext. Ka-1 was marked, this sewing machine was produced in the court at the time of his evidence in sealed cover and sealed was opened in the court. In cross-examination the witness stated that the sewing machine stolen from his house was driven by feet, the witness Kishan Lal brother-in-law (sala) of Om Prakash. The witness denied defence suggestion that there were enmity between accused Om Prakash and witness Kishan Lal, as there was illicit relationship between wife of Kishan Lal and accused Om Prakash. He has also stated that he had identified the accused twice in Budaun, firstly on 28.09.1987 and on that day the accused were taken out, the witness denied defence suggestion that accused persons were shown to him at police station and he was instructed by police to identify them, he did not tell physical frame of any accused to Investigating Officer, he also come to identify the goods alongwith the witnesses Siyaram, Amar Singh and Chandrakesh. He is real cousin of the informant Om Prakash, he was not apprised of name of the accused before their identification, he did not went to the house of Om Prakash at the time of dacoity. He had not shown the place of robbery in his house to Darogaji, other people also possessed sewing machine brand name 'Shan', he had not told the fact of burning of lantern to Darogaji, lantern was burning near sewing machine. Amar Singh is one of his real brothers, the exit of the house of Om Prakash and Yadram Munshi is same, the miscreants committed robbery in the house of Yadram Munshi, Chandrakesh and Amar Singh and lastly in his house.
16. PW3 Chandrakesh stated that four miscreants committed robbery in his house at 12:00 hours in the night, at 1 ¼ years ago and took away 1 kalsa, 1 batula, 1 lota therefrom. The dibbi was burning in his house, he identified four miscreants in District Jail Budaun who are present in the court, he also identified the goods in the court of SDM, in which he identified three utensils, lota, kalsa of brass and one batula, these were used utensils. The witness identified these utensils, they were produced before the Court in sealed cover, after opening the seal as Ext 2, 3 and 4. The witness admitted that he did not lodge separate report of robbery in his house, as the reports of all the robberies were lodged by PW1. He went to Budaun Jail for identifying the miscreants alongwith Charan Singh. This is wrong to say that on 28.09.1987 the police had taken out the accused from jail and shown them, and on that basis they identified the accused in jail. All these four miscreants committed robbery in his house. It is wrong to say that one of the miscreants was carrying a sack along with goods stolen from the house of Om Prakash and three miscreants committed robbery. One of the miscreant was having a country made pistol, one a cable and two were armed with lathi. However, darogaji had not written this fact in his statement. The utensils stolen from his house are commonly available in the houses with certain variations, and no specific identification marks on robbed utensils.
17. PW5 SI Dharam Singh Rana who is arresting and recovery officer who stated in his evidence that he arrested accused persons on 13.09.1987 around 15:00 hours on being indicated by second informer he was accompanied by SI Sundar Lal Kanaujiya and Pooran Chand Bhatt and other police personnel, on that day he left police station by marking his departure Report No.10 time 09:10 hours in the morning. He arrested three persons near tehsil trisection in presence of witnesses Liyakat Ali and Layek Ahmad. One of them disclosed his name as Malkhan, the other Badri and third as Om Prakash; from their personal search one sewing machine which was kept in a sack of gunny mat (taat) was recovered from the possession of Malkhan, one brass kalsa, 1 lota was recovered from possession of Om Prakash which was kept in a sack, 1 batula (kaskut) was recovered from a sack of cement kept by Badri. These goods were again produced during the evidence of this witness who identified them, as being recovered by him from the accused persons on their arrest. He stated that the recovery memo was prepared by SI VP Singh in his writing and signature, on which Ext. Ka3 is marked. The arrested accused persons were kept baparda (veiled) after arrest and taken to police station.
18. PW6 SI Sundar Lal Kanaujiya who is Investigating Officer of the case and proved the steps taken in the course of investigation stated that accused persons were arrested by a team confiscated by him, on 13.09.1987 at 03:00 pm and stolen goods were recovered from their possession, on which Ext. 1 to 4 are marked. These 14 goods were again produced during his evidence before the court. He stated that recovery memo Ext. Ka3 was prepared by him on the spot in cross-examination. He stated that he had not written the address of public witnesses Liyakat Ali and Layek Ahmad in recovery memo. He followed the accused persons on indication of second informed.
19. PW7 SI Uday Pratap Singh who is second investigating officer of the case had proved and undertaken investigation on 22.08.1987. He has pressed the taken steps in the course of investigation. He stated that accused Chandrabhan was arrested by SI Sundar Lal Kanaujiya on 14.09.1987. The accused were arrested and kept Baparda (veiled) as they were to be identified. He submitted the chargesheet in the case against the accused persons on 19.11.1987, after conducting of the test identification parade of the accused and identification proceedings of the recovered goods. The witness also proved the Chick FIR and the extracts of GD of the case, as Ext. Ka 5 and Ka 6 in absence of its author, Head Moharir Vijay Singh, who worked with him at the same police station and the witness also stated that he was conversant with his hand writing and signature.
20. In cross-examination the witness has stated that name of Dau Sumeri and Om Prakash are not written in Ext. Ka-1, he cannot tell that the persons in whose home dacoity was committed, belonged to same family. The witness denied defence suggestion that this incident was committed by a witness Kishan Lal, as there was illicit connection between wife of the informant and Kishan Lal. He had not recorded the statement of Kishan Lal, this is true that he is witness of recovery memo and also Investigating Officer, he prepared site plan also. The name of Chandra Kesh is not mentioned in the FIR, but robbery was also committed in his house.
21. PW8 OP Sharma was then Executive Magistrate, who carried out test identification parade of the goods allegedly recovered from three accused persons at the time of their arrest. He stated in his evidence that for identification of stolen property he mixed 5 numbers of similar items with each of the recovered goods and witnesses were called one by one to identify them, but witnesses Chandra Kesh and Siyaram identified items 1,2 and 3 properly and witness Charan Singh correctly identified the item No.4, the sewing machine. He prepared identification memo of the goods (case properties) in his writing and signature at the time of identification. He proved identification memo as Ext. Ka8. In cross-examination the witness has stated that case property was not produced on that day before the court. Item No.4 is sewing machine and item No.1 to 3 are utensils as per identification memo. There were four articles at the time of identification which were kept before him by contractor who went outside thereafter.
22. PW9 Bheem Singh Special Executive Magistrate stated in his evidence that he was posted as SDM District, Budaun on 05.10.1987. He carried out identification of the accused Malkhan, Om Prakash, Badri and Chandrabhan by witnesses Om Prakash, Chandra Kesh, Charan Singh and Munshi. He prepared identification memo in which description of identification proceedings are made. He mixed the accused persons with similarly looking other persons at the time of identification and witnesses were called one by one. He prepared Ext. Ka.9. identification memo at the time of identification, the witnesses have correctly and duly identified the accused persons without any fault. In cross-examination witness stated that identification was 100 percent correct. All the four accused persons were lodged in jail on 14.09.1987. The witness has stated that accused Chandrabhan told him that he was shown to witnesses at police and also in court on 28.09.1987, but other accused persons had not stated these things to him. The Investigating Officer had given him a list of witnesses, the witness further stated that on 05.10.1987 identification was conducted and it was concluded on that day. The accused persons did not tender any evidence in defence, their defence is of denial.
23. Learned counsel for the appellants submitted that at present appeal pertains to only surviving appellant Malkhan, as other appellants/convicts have already died during pendency of appeal. The test identification parade of accused was conducted by PW9 SDM Bheem Singh on 05.10.1987 i.e. after 3 weeks of arrests which was effected on 13.09.1987 and the identification was carried out after five months of incident had allegedly took place on 29.04.1987. PW1 failed to specify as out of three miscreants who caused fatal injuries to his wife deceased Nathiya. The other witnesses Lakhan Singh and Sumeri Dau, also present in the house, were not examined as witnesses during trial. Apart from PW1 Om Prakash and other witnesses in whose house theft was alleged committed had not lodged any separate FIR in the matter. There is no reference in FIR regarding theft or robbery in the houses of PW2 Charan Singh and PW3 Chandrakesh, public witnesses of recovery of stolen property were not examined.
24. He further submitted that PW1 and 2 both have stated in their evidence that sewing machine was robbed from their house, but only PW2 made a claim of said sewing machine in his evidence, which was produced during his evidence. From evidence of witnesses this fact is apparent that prior to 05.02.1987 on which identification of accused persons was carried out in jail, a date was fixed for identification on 28.09.1987, on that date no identification was conducted, but witnesses were called and the accused persons taken out from jail and shown to witnesses and for that reason 100 percent identification of the accused persons was secured on 05.10.1987. In fact, accused persons were never kept baparda (veiled). The police witnesses have falsely stated that he was kept baparda (under veiled) after their for the purposes of identification. This is admitted fact that accused persons were not known to the witnesses of fact. There was no specific identification mark on utensils, which were recovered during investigation and in absence of identification marks the authenticity of their identification is highly doubtful. Inasmuch as similar types of utensils are easily available in the market.
27. PW7 SI Uday Pratap Singh has admitted that after arrest of the accused persons an application was submitted by the father of co-accused Chandrabhan that the accused persons were already shown in prosecution witnesses and an application was filed before the Executive Magistrate on 28.09.1987 by one Umrao Singh, father of co-accused Chandrabhan Singh, even recovered sewing machine was having brand name 'Shan', but no specific identification mark has been described thereon in recovery memo or evidence of witnesses.
26. He lastly contended that PW9 Bheem Singh who carried out identification of the accused persons admitted that previously the date 28.09.1987 was fixed for identification, but same was conducted on 05.10.1987. The surviving appellant Malkhan is presently aged about 65 years and he has been falsely implicated in the case. After lapse of five months of the alleged incident the memory of witnesses regarding face of the miscreants would have faded and it is difficult to believe that the witnesses have properly identified the accused persons cent percent, whereas incident occurred in a village where source of light in which accused persons were identified, is mentioned as dibbi (earthen lamp and lantern), whose light scatters in a very short area. The recovery of alleged sewing machine from possession of the appellant Malkhan is only evidence, and only on the basis of alleged recovery his conviction and sentences for charge under Section 302/34 IPC is contrary to law.
27. Per contra, learned A.G.A. submitted that appellant was duly identified by witnesses in test identification parade held in jail premises and carried out by Executive Magistrate (PW9). The learned trial court has duly considered every aspect of the case and contention of defence in impugned judgment which is based on evidence on record, which deserves no interference in the present appeal and the same is liable to be sustained in the present appeal.
28. On due consideration of the submissions made by learned counsels appearing for the parties and meticulous examination of evidence adduced during trial, we find that FIR was lodged against unknown persons at the instance of the informant Om Prakash (PW1) on 30.04.1987 at 09:30 am with regard to robbery and assault committed in his house in the intervening night on 29/30.04.1987 at around 11:00 pm in which his wife Smt. Nathia who was pregnant at that time got seriously injured due to assault made by the miscreants. Informant and his wife challenged them, when they were trying to commit theft in their house. The wife of the informant namely Smt. Nathiya succumbed to her serious caused by robbers in the fateful night during treatment on 03.05.1987, i.e. on 4th day of the incident.
29. From perusal of entirety of facts and evidence appearing in the case, it can easily be discerned that the purpose of the robbers to commit robbery and then they were resisted and challenged by the house owner and his wife, they assaulted the wife (informant) badly resulting in her death during treatment. Although the suspects were arrested during the course of investigation by police. The three suspects Malkhan, Badri and Om Prakash son of Maharam Jatav were arrested on 13.09.1987 at 14/15 hours and from their possession certain stolen property relating to theft committed in the house of the informant and his neighbours in the fateful night were recovered. The witness PW1 Om Prakash, the informant PW2 Charan Singh brother of Amar Singh whose name finds place as a witness in the statement of the informant before the investigating officer and PW3 Chandrakesh have stated before the Investigating Officer and during trial that robbery was committed by unknown miscreants in their houses in quick succession around 11:00 to 12:00 hours and some utensils, ornaments and sewing machines and sewing machines were robbed from their houses. In evidence of PW1 & 2 this fact has surfaced that one sewing machine was stolen by robbers from their houses, but only sewing machine which was allegedly recovered from possession of the accused persons on their arrest by the police after the incident has been identified by PW2 before the Court as well as in proceedings of identification carried by PW8 O.P. Sharma, the Executive Magistrate.
30. PW8 O.P. Sharma, stated in his evidence that the witness Charan Singh correctly identified item No.4, the sewing machine and this fact has been proved on the basis of Investigating Officer and also on the strength of the witnesses of facts that this sewing machine was stolen from the house of Charan Singh and Amar Singh who are real brothers. PW1 admitted in his evidence that he did not participate in identification proceedings of property recovered from possession of the accused persons at the time of their arrest. The utensils described as item Nos. 1 to 3 in evidence of PW8 O.P. Sharma which were found to be recovered from the possession of appellants died during the pendency of present appeal.
31. Although no separate FIR was lodged by PW 2 and 3 with regard to robbery/theft committed in their house in the fateful night, but the police also investigated the factum of theft/robbery in the house while investigating the FIR lodged at the instance of PW1 Om Prakash with regard to robbery and assault committed by miscreants in his house which was later on converted to Section 394/411/302 IPC during investigation. On the basis of recovery of stolen sewing machine brand name Shan from the possession of the surviving appellant Malkhan and the same was identified by PW2, in the identification of property proceedings conducted by PW8, the Executive Magistrate O.P. Sharma, the charge of dishonestly receiving or retaining a stolen property, knowing or having reason to believe the same to be stolen property as punishable under Section 411 IPC is found to be proved beyond reasonable doubt against appellant Malkhan. This fact is noticeable that stolen property is defined under Section 410 IPC "which includes property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed." In present case, robbery of two sewing machines and recovery of one sewing machine is proved which is duly identified by PW2.
32. Thus, we find no infirmity, factual or legal error in appreciation of evidence carried out by learned trial court while convicting the appellant for charge under Section 411 of IPC, as he was found to be in possession of stolen property, the possession whereof has been transferred by robbery.
33. The perusal of evidence on record it appears that a robbery was committed by the miscreants in the house of PW1 in the fateful night and when the informant and his wife resisted and challenged the robbers, they badly assaulted Smt. Nathiya wife of informant who later succumbed to her injuries during treatment on fourth day. She was assaulted by clubs and sticks by the miscreants. The accused persons were arrested by police during the course of investigation and on the basis of their confessional statement regarding their involvement in the offence and recovery of some stolen property, which was later identified in identification proceedings by witnesses. They were implicated in the present offence and charged as above.
34. The main plank of arguments of learned counsel for the appellants is that although the test identification parade was conducted by PW9, then SDM, Budaun in the jail on 05.02.1987, and all the four witnesses of identification Om Prakash, Charan Singh, Chandrakesh and Munshi identified the arrested accused persons namely Chandrabhan Singh, Malkhan, Badri and Om Prakash son of Maharam Jatav were identified by the witnesses and they were also identified in Court by PW1,2 3, yet from perusal of evidence on PW 1,2 &3 as well as Investigating Officer. It appears that accused were shown to the witnesses prior to holding of identification parade on 05.10.1987.
35. Even the above contention of learned counsel for the appellants is not without force, as admittedly in FIR lodged by informant which is the basis of present criminal case, there is no mention of theft committed in houses of PW2 and 3. PW1 Om Prakash in whose house first robbery was committed has stated that he identified the accused persons in the light of dibbi (earthen-lamp) which was burning in a cavity of wall. He stated in his evidence that he had shown that place where dhebri was burning to investigating officer, his wife was sleeping under thatched and he was sleeping in the courtyard of the house. He and other witnesses identified the miscreants, as their faces were open. The miscreants left the place of incident on hearing the hue and cry. He stated that PW2 Charan Singh is his real cousin. The light of dibbi (earthen-lamp) as used in villages in early eities was not of such nature that it spreaded he light sufficiently in all directions. It is very localized and is difficult to identify the unknown persons in the light of dibbi (dhebri), if they are at some distance. The investigating officer also recorded statement of the injured Smt. Natha in the hospital who subsequently died. PW1 admitted in his cross-examination that his sewing machine was not recovered. The miscreants were four in number.
36. PW2 Charan Singh stated in cross-examination that at the time of incident his brother (Amar Singh) was running the sewing machine, a lantern was burning at that time, the machine was branded as 'Shan', which is operated by paddle. One miscreant ran away with his sewing machine and the other ran away with a cable. The dacoity was committed firstly in the house of Om Prakash, then in his house and then in the houses of Siaram and Chandrakesh. PW3 Chandrakesh is his nephew, he had gone Budaun twice in connection with identification of accused, they came firstly on 28.09.1987 for identification and accused were brought out. This would be wrong to say that these accused persons were shown to them at police station and they were instructed to identify them. This statement of PW2 gives force to contention of the defence that accused were shown to witnesses prior to the actual identification in the jail. There is a gap of five months between commission of offence and identification of the accused persons and this is a case of prosecution that accused were not shown to the witnesses during this period. The incident took place in the late night, the source of light in house was dhebri and other houses were dhebri or lantern. Inspite of such dim source of light 100% identification of accused persons by witnesses raises doubt on manner, mode and sanctity of identification.
37. PW3 Chandrakesh stated that inspite of dacoity in his house, the report was lodged only by Om Prakash. After commission of robbery in the house of Om Prakash, the robbery was committed in his house. The witness denied defence suggestion that on 28.09.1987 the accused were brought out from jail and were shown to witnesses and on that basis he was able to identify the accused persons in test identification parade.
38. PW9 Bheem Singh who carried out test identification parade of the accused persons on 05.09.1987 admitted that earlier the date of identification of accused persons was fixed for 28.09.1987, but the same was got admitted on 05.09.1987 which also suggests that something must have been done on 28.09.1987 in regard to test identification of accused persons and for reason not brought on record, the same could not be conducted on that day.
30. PW7 SI Udai Pratap Singh, stated in his evidence that chargesheet in the case was submitted on 19.11.1987 and after arrest of the accused persons an application was also submitted by the father of the co-accused Chandrabhan (since deceased) that they were already shown to the prosecution witnesses and an application was filed before the District Magistrate on 28.09.1987 by one Umrao Singh, father of co-accused Chandrabhan Singh in this regard.
40. In the light of above mentioned facts and evidence, the identification of accused persons by the witnesses during investigation becomes highly doubtful and there is sufficient force in defence version that accused persons were shown to the witnesses prior to holding of the test identification parade. There is also a long gap of 5 months between the commission of robbery and holding of identification parade of the suspects. The incident took place in late night and source of light was not sufficient for due identification of all accused persons. This is admitted fact that accused persons were shown known or acquainted to the witnesses, therefore the identification of the accused persons by witnesses becomes highly doubtful and on that count the accused appellant Malkhan deserves benefit of doubt for charge under Section 394, 302/34 IPC. The factum of commission of robbery and homicide in the house of PW1 by four persons in fateful night on the date of incident is proved but this fact is not proved beyond reasonable doubt that the present appellants are authors of crime under Section 394, 302/34 IPC.
41. Learned trial court has misappretiated the evidence on record, while recording verdict of guilt against the appellant for the said charges. The evidence of identification of accused persons by witnesses in the facts and circumstances of the case is not found to be proved beyond reasonable doubt. Thus, the appellant Malkhan is acquitted for charge under section 302/34, 394 IPC, on being extended benefit of doubt.
42. The conviction and sentence recorded against appellant Malkhan for charge under Section 302/34 and 394 IPC is hereby set-aside. However, the conviction of the appellant Malkhan for charge under Section 411 IPC is affirmed as per discussion made herein before in this judgment as commission of offence under Section 394 IPC is proved in the case but complicity of appellant is not proved beyond reasonable doubt.
43. In the impugned judgment, the appellants have not been sentenced separately for charge under Section 411 IPC on the ground that they are being sentenced for major charge under Section 394 IPC and charge under Section 411 IPC is species of said charge. However, as the appellant is acquitted of charge under Section 394 IPC in present appeal, he is sentenced to two years rigorous imprisonment for charge under Section 411 IPC. The appeal stands partly allowed accordingly.
44. The appellant-Malkhan is directed to surrender before the trial court to serve out the sentence awarded for charge under Section 411 IPC and he will be sent to jail for enforcement of remaining sentence by trial court, if the said sentence of two years rigorous imprisonment has not already suffered by him during investigation, inquiry or trial.
45. Let the copy of the judgment be sent to the trial court for compliance, in case appellant failed to appear before the trial court within a period of two weeks from today, the trial court will ensure his appearance by issuing coercive process against him.
46. The appellant-Malkhan is directed to file the personal bond and two sureties each in the like amount before trial court in compliance of the mandate of Section 437(A) Cr.P.C. with regard to charge under Section 394 and 302/34 IPC, for which he has been acquitted in this appeal.
Order Date :- 19.04.2024 Ashish/-