Allahabad High Court
Jabar Singh & Another vs State on 16 July, 2010
Author: Yatindra Singh
Bench: Yatindra Singh
Reserved
A.F.R.
1.Criminal Appeal No. 1433 of 1981
Jabar Singh and another Vs. State of U.P.
And
2.Criminal Appeal No. 1539 of 1981
Sardar Singh and others Vs. State of U.P.
.............
Hon'ble Yatindra Singh, J.
Hon'ble Shyam Shankar Tiwari,J.
( Delivered by Hon'ble Shyam Shankar Tiwari J.)
1. Criminal Appeal No. 1433 of 1981 has been filed on behalf of appellants Jabar Singh and Harpal Singh against the judgment and order dated 24.6.1981 passed by learned Vth Addl. Sessions Judge, Moradabad in S. T. No. 192 of 1975 in which they have been convicted u/s 396 IPC and sentenced to undergo rigorous imprisonment for ten years. Similarly Criminal Appeal No. 1539 of 1981 has been filed by appellants Sardar Singh, Veer Singh and Babu Singh against the judgment and order dated 24.6.1981 passed in S. T. No. 192 of 1975 by learned Vth Addl. Sessions Judge, Moradabad in which they have been convicted u/s 396 IPC and sentenced to life imprisonment. Appellant Babu Singh has further been convicted u/s 412 IPC and sentenced to undergo rigorous imprisonment for three years.
2. Both the appeals have been filed against common judgment and order dated 24.6.81 hence they are being disposed of by a common order.
3. The prosecution story in brief is that in the night of 26/27.7/74 complainant Harbansh and his son in law Chandrabhan who used to live with the complainant at that time were sleeping at their Baithak. The daughter of complainant Smt. Ramwati was sleeping inside the house Jasram and his wife Smt. Kashmiri, Puran and his wife Smt.Veerwati were sleeping in their Kothas in the house of Jasram. In the house of Ganga Sahay his son Dharam Singh and his wife Smt. Amari were sleeping in that night. One Lantern spreading light in the Baithak and another lantern was spreading light inside the house of the complainant. Similarly one lantern was spreading light in the house of Jasram and another lantern was spreading light in the house of Ganga Sahai at that time. It is further stated that Nepal Singh and Hari Singh were sleeping at the Chaupal in that night.
4. The prosecution story further reveals that at about 1.00 a.m. the complainant and his son in law woke up on some noise and they saw six dacoits entering in their house though the Baithak and nine more dacoits entering in the house of Jasram by scaling the wall of his house. Out of these dacoits five were armed with guns and three were armed with Tamanchas and rest of the dacoits were armed with lathi and torch. They started committing dacoity in the house of Harbansh Singh, Jasram and Ganga Sahai. Complainant along with his son in law escaped from the Baithak, went to Chaupal where Hari Singh and Nepal Singh were sleeping and all the four ran towards the village raising alarm. Some of the dacoits caught hold of Jasram and his wife and forced them to sit in the Sehan of their house while looting the property. Meanwhile Puran Singh bolted the door of his Kotha from inside which was broke- open by the dacoits with the help of lathis. Puran Singh retaliated and wielded lathi on the dacoits for preventing them entry inside his Kotha. During the scuffle the dhatas of four dacoits were opened and they were recognized as Sardar Singh, Veer Singh son of Balwant Chowkidar, Sukhey and Lakhia. (Sukhey and Lakhia are stated to be related to Balwant Chowkidar.) Veer Singh was armed with gun . On the exhortation of Sukhey Singh and Sardar Singh, Veer Singh caused fire arm injury to Puran for taking revenge of murder of his maternal uncle Chandu and consequently Puran succumbed to the fire arm injury on the spot. Smt.Veerwati was also beaten by miscreants during the commission of loot in their house. Consequent upon the alarm raised by complainant and others, several villagers including Roopram, Banshi, Latoor, Bhagwant, Khacheru Singh, Diwan Singh, Lal Singh and others gathered near the house of the complainant in the Gher of Jasram. Mukhtiyar and Deewan Singh also fired shots from their fire arms and in reply the dacoits also fired shots, causing injuries to one Bhagwat Singh. In the 2 mean time complainant Harbansh Singh set on fire the Chhappar of Jasram present in his Gher and in the light of that fire witnesses recognized the dacoits. Particularly Sardar Singh, Veer Singh, Sukhey and Likhia on the spot.
5. Complainant Harbansh Singh got prepared written report Ext. Ka-1 from one Parsadi Singh ad submitted it at the police station Hasanpur at 6.15 a.m. on 27.7.74 on the basis of which chik FIR Ext. Ka-2 was prepared by the constable Clerk under section 396 IPC against accused Sardar Singh, Veer Singh, Sukhey Singh and Likhia along with some other unknown persons. Its entry was made in the G.D., Carbon copy of which is Ext. Ka-3.
6. The prosecution has examined 27 witnesses in support of the prosecution story. Out of which P.W.1 Harbansh Singh, P.W.11 Nepal Singh, P.W.15 JasRam, P.W.16 Banshi Singh, P.W.17 Smt.Veerwati and P.W.18 Smt. Amari have been examined to give direct evidence of fact in support of the prosecution story, whereas P.W.2 constable clerk Kedar Nath Sharma, P.W.3 constable Vijai Singh, P.W.4 S I Sri H.C.Bhati, P.W.6 H.C. Gauri Dutt, P.W.7 S.I Sheesh Pal Singh, P.W.8 Constable Afjal Ali Beg, P.W.9 Constable Girja Shankar, P.W.12 Constable Raghupati Tyagi, P.W.13, H.C. Pati Ram, P.W.14 H.C Shyorti Prasad, P.W.Constable H.N.Saxena, P.W.22 Afzal Ali Beg, P.W. 23 S.I. Devendra Singh Yadav, P.W. 24 Constable Navi Husain, P.W.25 S.O. Sri Jagvir Singh Inspector , have been examined as formal witnesses. P.W.5 Sri S.P. Pant the then S.D.M., P.W. 10 Dr. J.P. Chaturvedi and P.W.19 Prem Prakash have been examined as other formal witnesses in support of the prosecution case.
7. P.W.2 Constable Kedar Lal Sharma had prepared chik report Ext.Ka-2 on 27.7.74 at 6.15 a.m. on the basis of written report submitted by complainant Harbansh Singh at the police station and had made its entry in the G.D. also. He has proved the chik FIR Ext.Ka 2 and the entry in G.D. is Ext.Ka-3 on record. He has further stated that accused Harpal Singh and Jabar Singh were brought at the police station on 28.8.74 Baparda. They were admitted to the lockup of the police station at 22.15 p.m and entry to this effect was made in the GD of the police station. He has proved its copy as Ext.Ka 4.
8. P.W.3 Constable Vijai Singh has stated on oath that on 27.7.74 he had brought the dead body of Puran Singh in sealed condition along with constable Tej Pal Singh for post mortem from Andherpuri to mortuary house Moradabad and had produced the dead body before the Doctor along with the relevant papers. After post mortem a packet in sealed condition, post mortem report in sealed packet was handed over to him. He has also stated that he did not permit any one to interfere with the dead body during his custody.
9. P.W.4 S.I Harischand Bhati had accompanied Station Officer Jagveer Singh o 27.7.74 from police station to village Andherpuri after receiving information about the offence and he had prepared inquest report of the dead body of Puran Singh Ext. Ka 5, Khaka lash Ext. Ka-6, Challan Lash Ext. Ka-7 on the direction of S.O. Jagveer Singh. He has further stated to have handed over the dead body of the deceased in sealed condition to constable Vijai Singh and TejPal for its post mortem along with relevant papers including inquest report, FIR and a letter to Civil Surgeon Moradabad which is Ext. Ka-8.
10. P.W.5 S.P. Pant has stated on oath that on 11.9.74 as Executive Magistrate Moradabad was posted as S.D.M.,Hasanpur. On that date he had got conducted the test identification parade of accused Jabar Singh and Harpal Singh after completing all the required formalities. He has proved the identification memo Ext.Ka-9 as it was prepared by him in his hand writing and signature. He has further proved the identification memo of the articles alleged to have been recovered by the police and produced before him in the saled cover on 15.10.1974 with the help of government Contractor H.R.Vats. He has proved the identification memo of articles by recognizing his hand writing and signature as Ext.Ka-10.
11. P.W.6 Head Constable Gauri Dutt has been examined to state that constable Raghupati Tyagi had brought a sealed bundle of case- property from P.S. Hasanpur and had deposited it in the Sadar Malkhana where this witness was posted. He has further stated that on 15.10.1974 Kishori Singh Court Muharrir of P.S. Hasanpur had carried the case property from Sadar Malkhana to the Court of S.D.M. Hasanpur and after identification parade deposited it again in Sadar Malkhana. He has also stated that on 17.2.1975 constable Afjal Ali Beg had deposited four sealed bundles of the case property in Sadar Malkhana in sealed condition and it was not permitted to interfered with by any one.
12. P.W.7 S.I. Sheesh Pal Singh has stated that on 30.7.74 at about 8.00 a.m on the information of informer he had apprehended accused Babu Singh along with a JOOT bag in his hand containing clothes looted from the house of the complainant and others in the presence of witnesses Amir Ahmad and Kishori Lal. Fard of recovered articles was prepared by him on the spot. He has proved it as Ext.Ka- 11 and its entry was made in the G.D. of the police station by this witness himself and he has proved its copy as Ext.Ka-12.
13. P.W.8 Constable Afjal Ali Beg has given the statement of depositing four bundles in sealed condition on 17.2.1975 from police station Hasanpur to the Sadar Malkhana, Moradabad.
14. P.W.9 constable Girja Shankar has stated on oath that on 29.7.74 he had carried accused Jabar Singh and Harpal Singh Baparda from police station Hasanpur and got him admitted in District Jail 3 Moradabad, he had been accompanied by constable Ganga Saran and Vijai Singh. He did not permit to any one to see or recognized the accused persons during his custody.
15. P.W.12 Head Constable Raghupati Tyagi had deposited one sealed bundle of articles relating to this case from police station Hasanpur to Sadar Malkhana Moradabad on 23.9.74.
16. P.W.13 PatiRam has stated on oath that on 29.7.74 at about 9.30 a.m arrested accused Jabar Singh and Harpal Singh were sent Baparda to District Jail Moradabad through constable Girja Shankar and Ganga Saran and its entry was made in the G.D at the police station at report no.9 by this witness copy of it has been proved by him as Ext. Ka-15. He has also stated that on that very day he had handed over one bundle of sealed articles meant for identification at Tahsil Hasanpur on 23.9.74.
17. P.W.14 Head constable Shyorati Prasad has stated on oath that on 17.2.75 he sent four sealed bundles of articles from Malkhana of the police station Hasanpur to Sadar Malakhana Moradabad through constable Afzal Ali Beg and he has proved true copy of the entry as Ext.Ka-16.
18. P.W.21 Harinarayan Saxena constable Clerk has been examined by the prosecution to prove the extract of register no.4 of 1973 of Police station Hasanpur in which an occurrence on 6.3.73 at 8.30 a.m regarding FIR on Crime No.32 of 2002 against unknown person and suspected against Harbansh son of Chhatar Singh to village Andherpuri was entered. Since due to lapse of time the FIR and copy of the G.D was not available, he filed an extract of register no.4 as stated above and has proved it as Ext. Ka-19.
19. P.W.22 constable Afzal Ali Beg was pairokar of Hasanpur had copied the FIR of a crime of 1973 on 12.6.76 which was available at that time. He has filed its extract in the form of copy of FIR relating to Crime No.32/73 u/s 302 IPC against suspected accused Harbansh Singh which is Ext.Ka-20.
20. P.W.23 SI Devendra Singh Yadav has stated on oath that he had taken charge of the investigation of this case from earlier police Inspector Jagveer Singh in Sept.1974.
21. P.W.24 Constable Navi Husain has been examined by the prosecution to prove that witness Kishori Lal who had been summoned by the court for evidence is not traceable for the last three years.
22. The investigation of the case was made by Station Officer Jagveer Singh P.W.25. During investigation after fulfilling necessary formalities by making entries in the case diary and collecting necessary papers he proceeded to the spot in village Andherpuri along with S.I. Harishchand Bhati P.W.4 and other police officials. Inquest report was got prepared by P.W.4 and dead body of Puran Singh was sent for post mortem , injured Veerwati and Bhagwat were sent for medical examination. Inquest report Ext. Ka-4 and other necessary papers including photo lash Ext. Ka-6 and Challan Nash Ext. Ka-7 were also got prepared. The dead body was sent through constable Vijay Singh along with a letter to Civil Surgeon Moradabad which is Ext. Ka-8. He interrogated witnesses Harbansh Singh and others available on the spot , he prepared site plan which is Ext. Ka-28, blood stained and plain earth was recovered from the spot was sealed in containers which are Ext.-7 and Ext-8. He also recovered some ash from the Gher of Jasram from the heap of burnt Chhappar and it was kept in sealed condition which is Ext.-9 which was sealed in bundle. Similarly five empty cartridges Ext.10/2 to 10/5 were also recovered from the spot and recovery memo Ext. Ka- 27 was prepared. Supurdginama of four lanterns found on the spot in different houses and torches with witnesses was prepared which are Ext. Ka-29 and Ext. Ka-30. On 28.7.74 accused Sardar Singh was apprehended by the Investigating Officer near Bus stand and on his interrogation complicity of other accused including that of Harpal Singh and Jabar Singh was disclosed. On the same day Harpal Singh was arrested from his house and Jabar Singh was arrested from his house and they were made Baparda and brought to police station Hasanpur and this fact was entered in the G.D. Of the police station by constable Kedar Lal Sharma P.W.2, carbon copy of which is Ext. Ka-4 on 29.7.74 they were sent to District Jail Moradabad Baparda with constable Girija Shankar P.W.9 and Ganga Saran and entry of G.D. in that respect is Ext. Ka-15.
23. The further investigation of the case was conducted by his successor police Inspector Devendra Singh Yadav P.W.23 who interrogated the witnesses of recovery, namely, S.I. Shish Pal Singh, Amir Ahmad and Kishori Lal. He also prepared site plan of the place from where accused Babu Singh was arrested by S.I. Shish Pal Singh which is Ext. Ka- 22. After concluding the investigation he submitted charge sheet against accused Jabar Singh, Harpal Singh,Sardar Singh and Veer Singh and Lakhia u/s 396 IPC on 25.9.1974 and against accused Babu Singh under section 412 IPC on 31.1.1975. He has proved both the charge sheets as Ext. Ka-23 and Ext.Ka-24. Accused Jabar Singh and Harpal Singh were put up for identification in District Jail, Moradabad on 11.9.1974 and identification memo was prepared by S.D.M. Moradabad P.W.5 which is Ext.Ka-9 on record. On 15.10.74 identification parade of looted and recovered clothes was organized by the aforesaid S.D.M. and identification memo with its result was prepared by the above witness which is Ext.Ka 10.
24. P.W.26 H.R. Vatsa is a Government Contractor who has been examined by the prosecution to prove that on 15.10.74 as Government Contractor he had mixed similar articles during identification parade of articles in the court of SDM Hasanpur in sealed condition five in number . He has proved his signature on identification memo Ext. Ka-10.
25. P.W.27 constable Navi Ahmad has been examined to prove that he had accompanied constable 4 Kishori Singh Court Moharrir of SDM Hasanpur on 15.10.74 for safely carrying the sealed bundle of recovered articles from Malkhana to the court of SDM Hasanpur. That articles were not seen or disturbed by any one during his custody.
26. Dr. J.P. Chaturvedi P.W.10 conducted the autopsy on the dead body of Puran Singh on 28.7.1974 in District Hospital Moradabad at 1.00 p.m. and found the following ante- mortem injuries on his person:
"(1).Gun shot wound of entrance1-1/2" x 1-1/2"x abdomen cavity deep-left side of the abdomen 3-1/2" above iliac with a small bowel coming out, blackening and scorching were found present around the wound;"
In the opinion of the Doctor the death of Puran Singh was caused about 36 hours ago. He has proved the post mortem report Ext.Ka-13.
27. P.W.19 Prem Prakash posted as compounder at P.H.C. Hasanpur has filed true copies of the injury reports of Bhagwat and Smt.Veerwati prepared by the then Dr. G.K. Khanna by identifying the signature of Sri G.K. Khanna. He has filed the copy of the injury reports which are Ext. Ka 17 and Ext. Ka-18 respectively.
28. Accused in their statement u/s 313 Cr.P.C. have denied the prosecution story alleging their false implication due to enmity. Accused Jabar Singh and Harpal Singh have further stated that they were shown to the witnesses who knew them from before and they have falsely been implicated as accused in this case.
29. The accused Jabar Singh has produced two witnesses, namely, D.W.1 Ramphal and D.W.2 Veer Singh in support of his contention and accused Harpal Singh has also produced three witnesses in his defence,namely, D.W.3 Sahib Singh, D.W.4 Ram Singh and D.W.5 Shree Ram.
30. After supplying copies of relevant papers to the accused there case was committed to the court of Sessions for trial by the learned Magistrate. Accused Jabar Singh, Harpal Singh, Sardar Singh, Veer Singh, Likhia and Babu Singh were charged u/s 396 IPC by the learned trial court on 29.1.1976 whereas accused Babu Singh was further charged separately under section 412 IPC by the learned trial court on the same day.
31. Learned trial court after assessing the evidence on record convicted accused Jabar Singh, Sardar Singh, Harpal Singh and Veer Singh under section 396 IPC and sentenced accused Veer Singh and Sardar Singh with life imprisonment whereas accused Harpal Singh and Jabar Singh were sentenced to undergo R.I. For ten years.
32. Accused Babu Singh has been convicted under section 412 IPC. and sentenced to under go R.I for three years.
33. Feeling aggrieved the above appeals were filed on behalf of accused appellants before this Court.
34. We have heard learned counsel for the appellants and learned AGA for the State and perused the record.
35. Some peculiar features of this appeal are worth to be mentioned before discussion of the evidence on merit. Admittedly Balwant Singh Chowkidar is also a Pattidar and neighbour of complainant Harbansh Singh. Three accused involved in this case, namely, Sardar Singh, Veer Singh and Babu Singh are the sons of one Balwant Singh Chowkidar whose house is situated in the southern side of the houses of the complainant Harbansh Singh, Ganga Sahai and Jasram. The only gap between the houses of the parties is a rasta situated between the two houses. It is also relevant to mention here that two sons of Balwant Singh Chowkidar, namely, Veer Singh and Sardar Singh had wrapped their faces with dhatas whereas third son Babu Singh has been made accused on the basis of recovery of some clothes alleged to have been looted by dacoits from the houses of complainant and other witnesses. It is also in the evidence that prosecution has tried to introduce the factum of enmity between Balwant Singh father of accused persons and Harbansh Singh complainant of this case on account of a case of theft by one Chandu a relative of Balwant Singh and his subsequent conviction in thief case and murder in which the name of Harbansh Singh was brought to light as suspected accused. Due to this enmity the alleged dacoity is said to have been committed. The other accused, namely, Sookhe and Likhia are related to this Balwant Singh Chowkidar through his son Babu Singh as they happened to be cousin brothers of the father in law of Babu Singh. Accused- appellant Jabar Singh has died as per the report of C.J.M. Moradabad which has been brought on record in the order sheet of the file. The dhatas of all the four accused automatically opened when they were trying to enter forcibly in the room of Pooran Singh.
36. The evidence adduced by the prosecution before the learned trial court to prove its case can be divided in three categories-
(1) Direct evidence in which accused Sardar Singh, Veer Singh, Sookhe and Likhia have been seen and recognized by the witnesses of fact during the commission of dacoity on the spot in the fateful night (2) evidence of identification against accused Jabar Singh (died) and Harpal Singh 5 (3) evidence of identification of clothes looted from the house of the complainant and witnesses of this incident which were subsequently identified by the witness during identification parade organized by S.D.M. Hasanpur. Apart from it, the prosecution has come forward with a motive for commission of the dacoity of this case.
37. As regards the motive part of the case it is to be seen as to whether the prosecution has successfully proved the motive or not. Though presence of motive is not a condition precedent for the commission of such type of offences but if the prosecution has come forward with specific motive, it has to be proved like any other fact.
38. According to the prosecution, this dacoity was committed by the accused for taking a revenge has already mentioned above. Three accused namely, Veer Singh, Sardar Singh and Babu Singh are the sons of Balwant Singh Chowkidar. P.W.1 Harbansh Singh complainant of this case has come forward with a version that Chandu the brother in law of Balwant Singh was prosecuted for committing theft in the house of his brother Ganga Sahai and he was convicted and sentenced to one year R.I in that case. This P.W.1 was as witness for prosecution in that case of theft. About 8 or 9 months prior to the present incident Chandu was murdered and Balwant Singh tried to implicate the complainant in that case. The prosecution has filed a copy of the FIR of that case of murder (Ext.Ka 20) which appears to have been lodged by Balwant Singh and Harbansh Singh was named in that FIR as a suspected accused. The prosecution has placed reliance on this paper (Ext.Ka20) and has tried to argue that due to that enmity the sons of Balwant Singh and his relatives, namely, Likhia and Sookhe organized this dacoity and committed this crime in which Puran Singh lost his life. The prosecution has also come forward with two more clinching facts i.e. when the dacoits tried to enter in the Kotha of Puran Singh four of them had wrapped their faces by Dhata. Puran Singh protested by wielding lathi upon the dacoits to check their entry inside his Kotha . But during this scuffle the Dhatas of all the four dacoits opened and P.W.17 Smt.Veerwati wife of Puran Singh recognized those four dacoits, namely, Sardar Singh, Veer Singh, Likhia and Sookhe. Not only this there is evidence to the effect that when the dhatas of four dacoits opened from their faces Sookhe instigated Veer Singh who was armed with a gun to take revenge of his maternal uncle Chandu and the other accused Sardar Singh also instigated Veer Singh by taking his name to kill Puran Singh on the spot and then Veer Singh caused a fire arm injury to Puran Singh who died on the spot. By the above evidence prosecution has tried to prove that not only Smt.Veerwati and later on other witnesses recognized Sardar Singh, Veer Singh, Sookhe and Likhia but also adduced another evidence by naming Veer Singh so that the witness particularly Smt.Veerwati may not have any doubt in her mind regarding the presence of Veer Singh son of Balwant Singh and Sardar Singh on the spot. The learned trial court on the basis of the above evidence concluded that the motive has been proved by the prosecution.
39. Learned counsel for the appellants has argued that the motive put forward by the prosecution is not proved. In support of this contention reliance has been placed on the evidence of complainant Harbansh Singh P.W.1 who himself has admitted in his examination in chief that to his knowledge Balwant Singh Chowkidar had not given any application against him relating to the murder of Chandu either before the Collector or Superintendent of Police. Since it was a rumor in the village ,therefore, he says that Balwant Singh wanted to falsely implicate him in that case. At another place he has admitted that in the theft case against Chandu he had been a witness in which Chandu was convicted for one year. At another place he has admitted that out of four sons of Balwant Singh three sons are accused in this case and the fourth one is minor. P.W.15 Jasram has admitted in his cross-examination that there was no enmity with Balwant Singh or other accused persons even after the death of Chandu neither any quarrel or marpeet took place between the parties. The complainant or his family members or these witnesses had never been threatened in the way by the accused persons, even though in the dark night they used to come to their house from their fields. He also states that he does not know as to whether Balwant Singh had any suspicion on Harbansh Singh as accused in the murder of Chandu or not. P.W.1 Harbansh was forced by the dacoits sleeping on his cot at the Varandah, but no harm is caused to him by dacoits, despite the fact that P.W.1 was inimical to Balwant Singh. Thus the motive part put forward by the prosecution does not appear to have been fully proved.
Direct evidence adduced by the prosecution against the accused Sardar Singh, Veer Singh, Sookhe and Likhia.
40. Prosecution has examined P.W.1 Harbansh Singh ,P.W.11 Nepal Singh, P.W.15 Jasram, P.W.16 Banshi Singh, P.W.17 Smt.Veerwati and P.W.18 Smt.Amari to give direct evidence against accused Sardar Singh, Veer Singh, Sookhe and Likhia. Now we will examine whether these witnesses had actually an occasion to see and recognize the faces of aforesaid accused persons on the spot or not. According to P.W.1 complainant , when he was sleeping in his Verandah by the side of his son in law Chandrabhan and his daughter was sleeping inside the house, at about 1.00 a.m. he saw six dacoits entering in his house and nine dacoits on the roof of the house of Jasram. There was a lantern spreading light in the outer Verandah and another lantern in the inner Veranda of his house. He saw the dacoits who had not wrapped their faces with dhatas. He along with his son in law escaped away from the Verandah to the Gher of Jasram, took Nepal Singh and Hari Singh and went towards the Abadi of the village 6 shouted for help and when several villagers gathered there, he came back to the Gher of Jasram along with the witnesses and set on fire a hut of Jasram. He has specifically stated that he and all the witnesses continued to stand there in the Gher during the entire incident of dacoity. They were watching the movement of the dacoits, of course some villagers had exchange fire on the spot. P.W. Bhagwat has sustained fire arm injury in this incident.. He has further stated that when the dacoits went away with the looted articles then he went to the house of Jasram and Puran Singh where ladies and others were weeping as Puran Singh was shot dead. He has admitted that it was a dark night at the time of the incident. He has also admitted that nine dacoits including four with dhatas present on the roof of the house of Jasram could not be recognized by him as he had seen them on the roof before he set on fire the hut of Jasram at that time the faces of those nine dacoits were not visible due to dark night and when there was a light of burning of the hut by that time dacoits had entered in the house of Jasram and what was happening in side the house, they could not see.
41. This witness is admittedly on inimical terms with Balwant Singh whose three sons are accused in this case. A criminal case of committing theft in the house of Ganga Sahai was initiated earlier to this incident against Chandu the brother in law of Balwant Singh. This witness Harbansh was a witness against Chandu in that case which resulted in conviction of Chandu for the offence of committing theft. Moreover, according to P.W.1 himself his name has been mentioned in the FIR lodged by Balwant Singh for the murder of his brother in law Chandu as a suspected accused before this incident. In these circumstances it cannot be said that P.W.1 is totally independent witness against the accused persons. At least Sardar Singh, Veer Singh, Babu Singh and his relatives Sookhey and Likhia.
42. A perusal of the evidence of this witness further reveals that his conduct as brought on record does not appear to be natural. This witness has admitted in his cross-examination that when six dacoits were entering in side his house from the gate of his Haveli, he was lying in the Verandah of his house along with his son in law Chandrabhan. . Lantern was spreading light there. He had seen the dacoits with his own eyes but he did not raise any alarm at that moment nor he tried to check the stranger(dacoits)entering in his house at about 1.00 a.m. It is also in evidence that even the dacoits inspite of the fact that they had seen this witness and Chandrabhan lying there on the gate did not quarry anything from these persons rather silently those six dacoits entered in the house without any kind of act on their part. It is also in the evidence that the dacoits had not to make any effort to enter inside his house as the main door was already unbolted and the dacoits had no difficulty to enter into the house. Complainant and his son in law did nothing to check their entry.
43. It is also worth to mention that asper FIR nine dacoits were seen by this witness on the roof of the house of Ganga Sahai. The site plan reveals that from his Veranda he cannot see the dacoits on the roof of Ganga Sahai.
44. A perusal of entire evidence adduced by him on record only reveals that after the dacoits entered in his house he along with his son in law escaped away for help in the village and when several villagers came to him, he came back in the Gher of Jasram where he set his hut on fire and continue to stand there during the entire incident of dacoity. He left that Gher only when the dacoits went away.
45. The other evidence of fact adduced by the prosecution is that of Nepal Singh P.W.11. Admittedly this witness also had no opportunity to see and recognize the dacoits from close range .Though he has given a general statement that he had seen and recognized four dacoits, namely, Sardar Singh,Veer Singh, Sookhe and Likhia, but a close scrutiny of his evidence on record reveals that he also continued to stand in the Gher of Jasram where from nothing could be seen inside the house of complainant Ganga Sahai and Jasram. He has been a witness of identification of appellants Harpal and Jabar Singh. This fact will be dealt with later on in the chapter of identification.
46. The other eye witness examined by the prosecution is P.W.15 Jasram. This witness in his examination in chief itself admits that when the dacoits entered in his house he was sleeping. They forced him and his wife to sit on the ground in the courtyard by holding them and he along with his wife continue to sit there during the entire incident. He has been examined by the prosecution to state that he had also seen and recognized the accused Sdardar Singh,Veer Singh, Sookhe and Likhia when they entered in the Kotha of Puran Singh for committing dacoity and their dhatas were opened. But taking into consideration his entire statement including cross-examination it appears that in fact he had no occasion to recognize the above four dacoits at that time. The site plan prepared by the I.O. reveals that there is some distance between the place where he was forced to sit on the ground and the Kotha of Puran Singh of course having a gate towards southern side. It is in the evidence of this witness that no lantern was present in the Kotha of Puran Singh. By that time it was a dark night. There was no source of light at all in that Kotha at the time of incident with Puran Singh. It is also apparent from the evidence that the dhatas alleged to have opened from the faces of above four dacoits were in side the Kotha and not when they were present in the court yard. He never says that with open dhatas or naked faces the above four dacoits even came to him or asked anything to him or he himself asked anything from them even after recognizing that two of them are the sons of his close door neighbour Balwant Singh and other two are his relatives. On the other hand it appears that when the dacoits went away after looting the articles of the house then he went to the Kotha of Puran Singh where he was lying dead. Probably the 7 prosecution was conscious of the weakness of this evidence that is why another type of evidence i.e. exchortation by accused Sukhey and Sardar Singh to Veer Singh to take revenge was introduced. It is said that when the dacoits were trying to enter in the Kotha of Puran Singh and Puran Singh was wielding lathi on them the dhatas from the faces of Sardar Singh, Veer Singh, Sookhe and Likhia fell down and their faces were recognized at that time. Not only this, another peculiar evidence was introduced by the prosecution i.e. when the dhatas of these four dacoits fell down from their faces appellant Sookhe instigated Veer Singh by resiting his name that Veer Singh took the revenge of death of your maternal uncle Chandu and the other appellant Sardar Singh also instigated Veer Singh by reciting his name that Veer Singh fire on Puran Singh and on this instigation Veer Singh caused fire arm injury to Puran Singh. It is worth to mention here that the Dhatas of all the four dacoits fell down from their faces at the same time or one after the other as stated by witnesses of prosecution. It is also in the evidence of the prosecution that no lathi blow given by Pooran Singh came in contact with any of the dacoits at that time. In other words it is not the case of the prosecution that after getting lathi blows on their faces the Dhatas opened and fell down on the faces of those dacoits. Automatically the dhatas intentionally tied on the faces of four accused persons became loose and fell down on their shoulder just at that time only. This story of the prosecution is certainly not reliable. Prosecution feeling the weakness of its case introduced another fact that co-accused Sookhe and Sardar Singh recited the name of Veer Singh and instigated him to cause fire arm injury and to take revenge of death of his maternal uncle Chandu. Though several other dacoits armed with fire arms , and lathi were present there but instigation was only to Veer Singh. It is also note worthy that Veer Singh and Sardar Singh are sons of Balwant Singh whose house was just a few steps away from this place. Puran Singh are even Jasram knowing the fact that they are sons of Balwant Singh and they are closed door neighbours did not say anything to them on the spot. This fact also creates doubt in the truthfulness of this story. Another feature which creates doubt is that as per the statement of this witness, these four accused persons did not try to conceal their faces with dhatas again. Though it appears that four dacoits who have dhatas on their faces they purposely concealed their faces with dhatas just to hide their identity because at least two of them were closed door neighbour of these witnesses. But they did not make any effort to conceal their faces again. This is also something unnatural in the prosecution story.
47. As regards the lighted lantern, this witness has admitted that it was present and hung on Khooti though it was not usual place of hanging the lantern. This witness and other witnesses are not sure as to the clothes used for dhatas were thrown by the dacoits or they took away those clothes with them. This witness has specifically stated that he did not recognize the faces of dacoits in the light of burning hut but in the light of lantern. As already discussed above, the lantern was away from the place where he was forced to sit and it was away from the Kotha of Puran Singh.
48. Banshi Singh P.W.16 is the other eye witness examined by the prosecution to prove its case. This witness has admitted that he continued to be present in the Gher of Jasram during the entire incident of dacoity. He recognized accused Veer Singh, Sardar Singh, Sookhe and Likhia in the light of burning fire of hut and torch light. His entire evidence shows that he had no occasion to go closer to these dacoits when he could recognize them. He has expressed his ignorance on the fact that there was a scuffle between the brother Prakash and accused Babu Singh about 8-10 months prior to this incident in which Babu Singh had lodged report against his brother. He does not deny this fact but expresses only ignorance about this fact.
49. P.W.17 Smt.Veerwati is the wife of the deceased Puran Singh . As per evidence on record she was present with Puran Singh inside the Kotha when this incident took place. She has repeated the same story that nine dacoits having guns, country made pistol and lathis had entered in her Kotha and four dacoits had tied their faces with dhatas. The dhatas of four dacoits were opened by wielding lathi by Puran Singh and then she recognized their faces. She has also repeated the story of instigation by accused Sookhe and Sardar Singh to Veer Singh to take revenge of maternal uncle Chandu. She also does not say anything on the spot even though she came to know that at least two dacoits, namely, Veer Singh and Sardar Singh are her just closed door neighbour and other two were their relatives. Natural reaction could have been that after noting the fact that they are her closed door neighbour and with no earlier enmity she must have recited their names and might have questioned that how they are doing it and how they are present there. This witness has further admitted that inside the Kotha absolutely there was no light of any kind. She is not sure as to whether the clothes of dhatas of dacoits were thrown by them here and there or they took away their dhatas clothes with them. She is an injured witness also. She has admitted that she had seen Likhia accused and Sookhe at the residence of Babu Singh before this incident as they used to come to her house. But she had never any kind of talks with them and these accused never came to her house, she does not know any other details about Sookhe and Likhia or their family except their name.
50. P.W.18 Smt. Amari has also been examined by the prosecution as a witness of fact. She has admitted that she was sleeping by the side of her husband Dharam Singh in the night and she was also forced by the dacoits to sit in the court yard of her house and the dacoits looted the articles. She says that she had recognized dacoits Sardar Singh, Veer Singh, Likhia and Sookhe. Though as per evidence of other witnesses after committing the murder of Puran Singh and looting the articles of her house the 8 dacoits went away. This witness had no occasion at all to see the faces of above four accused persons. She has only made a general allegation of recognizing four accused persons on the spot. She never says that any of the four persons whose dhatas were opened asked her anything or either about herself or about articles of the house.
51. Thus it appears from the above discussions that the evidence alleged to be direct evidence adduced by the prosecution in support of its case fails to fully support the prosecution story beyond reasonable doubt and all the witnesses have made only general allegations about recognizing the four accused, namely, Sardar Singh ,Veer Singh, Sookhe and Likhia at the time of the incident. On close scrutiny it can be said that he had no occasion to see the accused persons as they have stated to have seen them.
Identification evidence against Jabar Singh and HarPal Singh
52. The prosecution has relied upon the identification evidence against accused Jabar Singh and Harpal Singh as according to the prosecution story they were seen by the witnesses in the light of flame of burning hut and in the torch light thrown upon the accused by the witnesses.
53. As regards accused Jabar Singh, according to P.W.5, he had been identified by Harbansh Singh complainant, P.W. Banshi Singh, Chandrabhan, P.W. Jasram Singh, P.W. Nepal Singh and Hari Singh are said to have identified this accused during identification parade organized by SDM Hasanpur in the District Jail Moradabad on 11.9.1974. Similarly accused Harpal Singh was identified by witnesses Harbansh Singh, Nepal Singh, Hari Singh and Smt.Amari. It has already been discussed at length that P.W. Harbansh Singh, Nepal Singh, Banshi Singh had no occasion to recognize the accused at the time of the incident as according to P.W.1 himself when the dacoits were entered in his house he along with his son in law Chandrabhan escaped away from his Verandah, went to the Gher of Jasram took Nepal Singh and Hari Singh and went to the village side shouting for help and after arrival of villagers he came back to the Gher of Jasram set on fire the hut of Jasram and continued to stand there along with other witnesses during the entire incident of dacoity. He has also admitted that in the light of flames of burning hut he could not see the incident of dacoity in side the house and there is no evidence to this effect that any torch light was thrown on the faces of the dacoits by the witnesses to recognize them on the spot. The presence of lantern inside the houses alleged to be hanging on Khootis is doubtful as no symptom of blackening has been detected or found by the Investigating Officer during investigation. According to the witnesses themselves there was no specific place for hanging the lantern in the night. It is a matter of common knowledge that when the lantern is hung in the Khooti of wall, it leaves some blackening spot on the wall. No such spot was found by the I.O.
54. Chandrabhan has not been examined before the court . Hari Singh has also not been examined in the court to support the prosecution case.
55. Accused Jabar Singh has stated in his statement u/s 313 Cr.P.C. that he was shown to the witnesses during custody and the witnesses were knowing him very well from before this alleged incident parade. He has further stated that Ramphal of village Daudpur, an adjacent village of Andherpur is his cousin brother. The distance of house of complainant from that village is about a furlong and he used to stay there with his brother Ramphal for several days. He has further stated that the sister of witnesses Latoor,Banshi and Roopa are married in his village. They frequently visit his village and they were familiar to him from before this occurrence. It is also stated that police had not made him Baparda. He has examined two witnesses in support of his contentions, namely, D.W.1 Ramphal Singh and D.W.2 Veer Singh who have deposed on oath supporting the contentions of accused Jabar Singh.
56. As regards accused Har Pal Singh according to the prosecution witnesses Harbansh Singh, nepal Singh, Hari Singh and Smt.Amari had recognized him correctly. It has already been discussed earlier that the witnesses Harbansh Singh and Nepal Singh could not recognize the accused during the incident. Hari Singh has not been examined and Smt.Amari had also no occasion to recognize the above accused as she was also forced to sit on the ground at one particular place in her courtyard and she was not permitted to leave that place during the entire incident of dacoity in all the three houses. Moreover, accused Harpal Singh has stated in his statement u/s 313 Cr.P.c. that witnesses knew him from before this occurrence and police had shown him to the witnesses during custody. He has further stated that his brother Horam is resident of village Shekhpur Jhakari, who also resides in his village for last about 10 to 12 years. He has also purchased a piece of land in the said village in 1973. He had canvassed in his election of village Pradhan, he had worked and supported to Horam and the daughter of witness Roopram and sister of Rupali are married in his village, they all knew him from before this incident. In support of his contention he has examined three witnesses, in defence, namely D.W.3,Saheb Das, D.W.4 Ram Singh and D.W.5 Shree Ram Singh. All these witnesses have supported the contentions of accused in their statement in the court. Apart from the above facts it is also relevant to mention here that admittedly both these accused were arrested on 28.7.74 from their houses and the identification parade of these accused was organized on 11.9.74 apparently after about 44 days of their arrest. The prosecution has not given any explanation whatsoever for such delayed identification parade of these accused. There 9 is nothing on record to explain the delay in conducting the identification parade. Even the Investigating Officer of this case do not say anything in this regard as to why the identification parade could not be conducted earlier.
57. The defence has placed reliance on Soni Vs. State of U.P. 1983 SCC(Crl) 49(1) in which Hon'ble Apex Court has held that where the identification parade itself was held after a lapse of 42 days from the date of the arrest of the appellant, this delay in holding the identification parade throws a doubt on the genuineness thereof apart from the fact that it is difficult that after lapse of such a long time the witnesses would be remembering the facial expressions of the appellant. If this evidence cannot be relied upon there is no other evidence which can sustain the conviction of the appellant. Similarly in the case of Subash & Shiv Shankar Vs. State of U.P. 1988 A.Cr.J. Page 38 the Hon'ble Apex Court has held that long interval of time between the date of occurrence and identification parade there is room for doubt for doubt as to whether the delay in holding the identification parade, was in order to enable the identifying witnesses to see him in the police lock-up in the jail premises and make a note of his features. In that case identification parade was held after three weeks of the arrest of the accused and no explanation whatsoever had been offered for the delay.
58. Similarly, in the case of Satrughana alias Satrughana Parida and others Vs. State of Orissa 1995 Supp(4) SCC 448 the Hon'ble Apex Court has held that where the identification parade was held one and half long months after the occurrence in question and after the expiry of the maximum permissible period(15 days) for producing the arrested accused before the Court there was no explanation for the delay. There was nothing on record to show that while taking the accused to and producing them before the court the identity of the accused was not revealed and the witnesses had at no earlier stage revealed any special identifying features, held, exclusive reliance could not be placed on such identification, conviction and sentence set aside.
59. In the case of Nirmal Pasi and another Vs. State of Bihar 2002(3) Acr R2590(SC) also the Hon'ble Apex Court has held that where no recovery has been made from the accused and they have been put up for identification after about one month 10/20 days from the date of their arrest and no explanation for such delay has been offered on record no reliance can be placed on such identification.
60. From the above observations of Hon'ble Apex Court it can be safely observed that even in the present case no specific features or peculiar remarks of the accused were mentioned in the FIR and no explanation whatsoever has been offered for such a delayed identification parade. The unexplained delay about 44 days is certainly damaging to the prosecution case.
Evidence against accused Babu Singh
61. The prosecution has adduced two kinds of evidence against this accused. The first kind of evidence against him that he was arrested by S.I. Sheesh Pal Singh P.W.7 on 31.7.74 at about 8.40 a.m. on the information of informer in the presence of two public witnesses Amir Ahmad and Kishori Lal. From his personal search a Zoot bag Ext.6 was recovered and one(Odhna) Ext.-1, one Dhoti Ext.-2, two Gararas Ext.-3 and Ext.-4 and one Dhoti Patwar Ext.-5 was recovered from that bag in presence of the above P.Ws for which a recovery memo Ext.Ka-11 was prepared on the spot by P.W.7. The arrested accused Babu Singh along with recovered articles was brought to the police station and entry to that effect was made by this witness in the G.D of the police station, carbon copy of which has been proved by him as Ext.Ka13. As regards the factum of recovery of the above Zoot bag containing above articles from the personal search of accused Babu Singh it appears that the only evidence on record is that of P.W.7 who is police official. It has come in the evidence that even prior to 30.7.74 he had visited the house of Balwant Singh Chowkidar in connection with the arrest of co-accused Veer Singh and Sardar Singh but at that time the house of Babu Singh was not searched by the police. P.W.20 Amir Ahmad is an independent witness of the above recovery, produced by the prosecution. During his evidence in the Court he put his hand over the accused Jabar Singh stating that this man(Jabar Singh) was arrested by police and from his personal search the above articles(clothes) were recovered by P.W.7. This witness has been declared hostile and prosecution has been permitted to cross examine him but nothing favourable to prosecution could be extracted from this witness. Other witness of recovery Kishori Lal could not be produced by the prosecution in the court as he was not traceable as per the evidence of P.W.24 Pairokar of the police station. Thus the only evidence of arrest and recovery from accused Babu Singh on record is that of P.W.7 Sheesh Pal Singh who was already been in that area for the last three days. In absence of any corroborative evidence about the arrest and recovery of the above articles from the accused Babu Singh, it is not safe to rely on the evidence of P.W.7 only as he is a police witness and subordinate to the I.O with whom he had been present during investigation of the case since beginning.
62. The other kind of evidence produced against accused Babu Singh is the evidence of identification of recovered clothes from the possession of accused. In this regard it is worth to mention here that all the five clothes Ext.-1 to Ext. -5 alleged to have been recovered are used clothes, having no specific features or specific remarks or specific colour,variety or distinguishing features only Odhani, Garara and Dhoti is mentioned in the FIR. The FIR is silent about the details of the clothes which were looted by the dacoits from the house of the complainant and others. For the first time some specific 10 detail of the recovered five clothes were mentioned in the recovery memo alleged to have been prepared on 30.7.74 by Sub Inspector P.W.7. The special features of clothes mentioned in the Ext.Ka-11 do not find place in the FIR lodged at the police station. Moreover, it has come in the evidence of the witnesses, namely, Smt.Veerwati, Smt.Kashmiri, Smt.Ramwati, Nepal Singh, Smt.Amari, Jasram and Dharam Singh that they had not purchased these clothes. They had only seen the ladies putting on these clothes once or twice in their house. In absence of any specific features and distinguishing marks or colour mentioned in the FIR in the list of looted articles, no sanctity can be attached to the test identification parade of these clothes. Moreover, these articles were recovered on 30.7.74 but the identification of these clothes was held on 15.10.1974 apparently about three months later. No explanation whatsoever has been offered by the prosecution for this delayed identification of the clothes. Even the witnesses who used these clothes once or twice also could not specifically tell as to when these clothes were purchased for them and by whom. The accused appellant Babu Singh has stated that no such recovery was made from his possession and he has been falsely implicated in this case and he is son of Balwant Singh Chowkidar with whom earlier enmity with the complainant existed.
63. Learned counsel for the appellant has relied upon the observations made by Hon'ble Apex Court in Laxman Prasad Vs. State of Bihar 1981 SCC(Crl)642 that in a criminal trial while judging the reliability of the evidence of witnesses congruity or consistency in the testimony of the witnesses is not the sole test of truth because some times even falsehood is given an adroit appearance of truth, so that truth disappears and falsehood comes on the surface. In the present case also it appears that some of the witnesses of fact particularly belonging to the family of the complainant have tried to give consistent statement to the effect that they had recognized accused Sardar Singh, Veer Singh, Likhia and Sookhe. But from their own admissions and after perusal of their entire statement on record it appears that actually they had not seen and recognized the accused at the time of the incident. The version of the prosecution particularly of witness Jasram and Smt.Veerwati that the dhatas of four dacoits had opened automatically one after the other when they were trying to enter in the Kotha of deceased puran Singh also becomes un-trust worthy because Smt.Veerwati herself has admitted that none of the lathi blows wielded by Puran Singh hit or even touched the body or faces of these dacoits who had tied their faces with dhatas. It also fails to inspire confidence when the witnesses say that these accused/dacoits did not make any attempt to conceal their faces with dhatas again because the earlier version of the prosecution is that these dacoits had tied their faces with dhatas because they were well known to the complainant and witnesses as the houses of Sardar Singh and Veer Singh were almost adjacent to the house of complainant and Jasram. It does not appeal to normal sense that if these dacoits had concealed their faces with dhatas to hide their identity in the beginning,why they did not tied up their faces again to conceal their faces in the Kotha of Pooran Singh.
64. In the case of Ram Lakhan Singh and another Vs. State of U.P. 1977 CAR page 221 S.C, it has been held by Hon'ble Apex Court that if only inimical witnesses of neighborhood are named in the FIR and they are produced in support of the prosecution story particularly in the case of dacoity u/s 396 IPC, it throws great deal of doubt on the prosecution against the accused. In the present case also witnesses produced by prosecution are on inimical terms with accused version Sardar Singh, Sukhey and Likhia
65. Thus in view of the above discussions we come to the conclusion that the prosecution has failed to prove the charges against the appellants. The evidence brought on record is not trust worthy so as to justify the findings recorded by the learned trial court.
66. Accordingly, both the appeals are allowed and the conviction and sentence awarded to the appellants is hereby set aside.
67. The material exhibits be disposed of according to law after the expiry of period of second appeal if any, before the Hon'ble Supreme Court.
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