Allahabad High Court
Ganga Din And Ors. vs State Of U.P. on 16 November, 2000
Equivalent citations: 2001CRILJ1762
Author: S.K. Agarwal
Bench: S.K. Agarwal
JUDGMENT S.K. Agarwal, J.
1.This appeal arises from a judgment and dated 10-3-1981 passed by the III Additional Sessions Judge, Hamirpur, Sri R.R. Jatav, in S.T. No. 303A of 1974 convicting the appellants Under Section 392, I.P.C. and sentencing each one of them to four years R.I.
2. Brief facts of the case are that on the night intervening 30/31-8-1973 at about 8.30 p.m. six persons, who were moving on a Tanga from Kabrai triangular crossing to Railway Station Kabrai, were robbed of their belongings (cash and jewellery) by four miscreants, i.e. the present appellants and one another, at pistol point in the light of the torch that was possessed by Jai Ram Singh. In the said robbery the miscreants had taken away cash worth Rs. 604/- from Ram Sunder Singh and a golden chain weighing 1-1/2 tolas and the torch from Jai Ram Singh. This torch belonged to Ram Sunder Singh. His name was inscribed on it. They had also taken away Rs. 4/- from Bhagwan Das, Rs. 54/- from Jhandu and Rs. 6/- from an unknown old person.
3. From the F.I.R. the only light available to the witnesses to identify the miscreants, who robbed them was a torch that was held by Jai Ram Singh. From the triangular crossing at Kabrai, where the victims were robbed they went to Railway Station Kabrai. Sometime after the mid-night they went to Railway Station Mataund by boarding another train. These witnesses are residents of Mahoba and their destination was Mahoba. From Mataund next morning they had gone to their village. This F.I.R. came into existence at P.S. Kabrai on 1-9-1973. The written report was scribed by P.W. 11 Jai Ram Singh on the dictation of P.W. 1 Ram Sunder Singh. This is Ext. Ka-1. On the basis of this written report a chick F.I.R. was prepared by P.W. 13 Chhote Lai Shukla at P.S. Kabrai at about 10.00 A.M. This chick report is Ext. Ka-2. The investigation of this case was entrusted initially to P.W. 12 Habibul Haque, Station Officer. Finally the charge-sheet in the case submitted by P.W. 17 Ram Mangan Singh. Appellant Ganga Din was arrested by P.W. 14 Chhote Lai Tripathi from his house. He was brought to the police station and lodged in the lockup at about 11.00 p.m. He was taken out from the lock-up on 17-7-1973 at 11.00 a.m. and thereafter procuring the remand warrants they were lodged in jail, as is apparent from the affidavit filed by the concerned Constables. No time for obtaining the remand warrants and lodging in jail is disclosed in their affidavits. This Ganga Din was subjected to test-identification in jail on 12-10-1973 by P.W. 16 Achhaiver Singh. He was identified by P.Ws. 1, 2, 3, 4, 6, 10 and 11, in all seven persons. Nine persons were sent to identify him.
4. Appellant Sundar was arrested by P.W. 15, an S.I. of P.S. Indiliya on 6-10-1973 at 1.30 p.m. from a well situate near Super Ralway Station in connection with an offence Under Section 25 of the Arms Act. He was lodged in the lock-up on the same day at about 2.45 p.m. at P.S. Mahoba. He was taken out from the lock-up independently at 10.00 p.m. for jail, but was not lodged in jail and instead was taken to P.S. Sumerpur and lodged in the lock-up there at 9.30 a.m. The explanation offered for not taking him to jail is that no conveyance was available to the Constables for the purpose. He was taken out again next morning at 5.30 a.m. and thereafter obtaining the remand warrant was lodged in jail. In his case also no time of obtaining the remand warrant, producing the accused before the Judicial Magistrate and thereafter time of their lodging in jail is disclosed in the affidavits of the concerned Constables. He was put up for identification on 12-10-1973 by P.W. 16 Achhaiver Singh in jail. Nine witnesses were sent to identify him and strangely enough each one of them was successful in putting his hand on this appellant. They are P.Ws. 1, 2, 3, 4, 5, 6, 7, 10 and 11.
5. Appellant Ravindra surrendered in the Court of Chief Judicial Magistrate, Banda, on 13-10-1973. From there he was sent to District Jail, Banda, on the same day. No time of his lodging in jail or the time for obtaining remand warrant is stated by the witness. He was taken out from District Jail, Banda on 18-10-1973 and was brought to P.S. Sumerpur and lodged there in the lockup at 8.10 p.m. Here also no time of his taking out is disclosed in the evidence of the concered witness. He was taken out for jail on 19-10-1973 at 5.45 a.m. and thereafter lodged in jail after obtaining remand warrant. No time of production before the concerned Magistrate and of his being lodged in jail is disclosed in the evidence of the witness. He was subjected to test-identification by P.W. 18 Awadh Saran Pathak, S.D.M. on 23-10-1973 in District Jail, Hamirpur. He was identified by P.Ws. 1, 2, 5, 7 and 11. The identification memos of these accused persons are Exts. Ka-14 and Ka-16 on the record of this case.
6. The prosecution in support of its case has examined following witnesses, some of whom are victims of the incident as well.
7. Apart from all the three Tongawalas, P.W. 1 Ram Sunder Singh, P.W. 2 Bhagwan Das, P.W. 5 Beni Singh, P.W. 6 Jhandu, P.W. 7 Damodar, P.W. 11 Jai Ram Singh are all victims at the hands of the msicreants. P.W. 3 Tutiya, P.W. 4 Qamar Ali and P.W. 10 Mohd. Hamid are the three Tongawalas in whose presence the incident of robbery had taken place. The other witnesses are P.W. 12 Habibul Haque, the first Investigating Offcer, as earlier stated, P.W. 13 Chhote Shukla, Head Moharir of P.S. Kabrai, who had registered the case on the basis of written report produced by P.W. 1 Ram Sunder Singh, and P.W. 14 Chhote Lal Tripathi, S.I. of P.S. Indoliya, who effected the arrest of appellants Ganga Din and Sundar. P.W. 16 Achhaiver Singh and P.W. 18 Awadh Saran Pathak are the two Magistrates. P.W. 16 conducted the test-identification parade of Ganga Din and Sundar and P.W. 18 held the same for Ravindra. P.W. 17 Ram Magan Singh is the second Investigating Officer. This is the entire evidence adduced in sup-pprt of its case by the prosecution.
8. Heard learned Counsel for the appellants and learned A.G.A.
9. Learned counsel for the appellants has convassed before this Court very seriously that the link evidence produced does not fully establish the precautions ought to have been taken by the prosecution against the appellants. The possibility that the appellants were shown in transit or at the police station before they were lodged in jail, cannot be eliminated in the circumstances. The second contention is that the prosecution has failed to disclose anything about complicity of these appellants. When it became known to it, and no date, time or name of the persons, who disclosed about their complicity in this case to the police is available from the evidence on record. He has also challenged the very F.I.R. itself. According to him P.W. 3 Tutiya has admitted that on the next morning, i.e. on 31-8-1973, while on way back to his village he had gone to P.S. Kabrai and narrated the entire incident to the Sub-Inspector there who asked him to go. Further, according to him, the enormous delay in lodging in F.LR. despite the fact that it is admitted to P.W. 3 that a Constable had also reached Railway Station Kabrai during the night when the witnesses, the victims of the robbery, were present at the Railway Station, but even than at that time no words were exchanged by them with the Constable about the incident is a strange conduct. Even on reaching their village they had not bothered for loding the F.I.R. on 318-1973. They had started from their village for registering the F.I.R. at P.S. Kabrai on the next morning, i.e. on 1-9-1973. No appropriate or proper explanation for this delay was offered by the witnesses, except that 'they were afraid'. It is also admitted by these witnesses, as is contended, that some more police stations fall in the way and yet they had not bothered to get their F.I.R. registered at any of these police stations including P.S. Mataund. The last limb of the argument is that appellant Sundar was lodged in the lock-up on the same day on which appellant Ganga Din was lodged. Ganga Din was taken out from lock-up for being sent to jail at about 11.00 a.m., but strangely enough the other appellant Sundar was kept there and was taken ot at 3.30 p.m. What to say of any plausible explanation, not a word has occurred in the evidence of the concerned witnesses, the I.Os. or the Head Moharir about the fact why both these appellants, when it was known that they are involved in this dacoity, were not taken out at the same time and lodged in jail that very day. His being taken to P.S. Sumerpur is an indication that the opportunity was utilised by the prosecution for showing him to the witnesses and that is the reason why all the nine witnesses have put their hands upon this appellant. The identification against him is too good to be believed.
10. In order to appreciate these contentions I have to examine the evidence of the witnesses. So far as the factum of availability of proper light for identification of these accused persons is concerned, the evidence of the witnesses is embellished by improvement. In the F.I.R. only one torch is alleged, that too with Jai Ram Singh, which was taken away by the miscreants. No other light is alleged in this document. In the statement in Court all the witnesses have stated clearly that the dacoits were also holding torches, which they were flashing towards them and the light of these torches and the torch of Jai Ram Singh they were able to identify the miscreants. It is further important to point out that no figurative description was disclosed by these witnesses in the F.I.R. or in their statements to the I.O., but in the trial Court they have stated that they have given out the description about the culprits in their statements to the I.O. It is also admitted to the witnesses that it was a dark night and no other source of light except the torches were available to them to identify the miscreants. These improvements are serious omissions in their previous statemnts and they go to the root of the case of the prosecution regarding availability of any source of light. If there was no light available to them then it is next impossible to accept the value of their test-identification and the identification of these culprits by them in Court. Without any outside aid it is unbelievable that these witnesses could have performed so excellently. Appellant Ganga Din was identified by as many as seven witnesses out of nine sent for the purpose and Sundar was identified by the all nine witnesses. These identification results, in the circumstances discussed above, are too good to be acknowledged by this Court. In the result the value of the identificaiton is lost to the prosecution for the purposes of upholding their conviction.
11. It is also a fact that none of the witnesses, either the I.Os or the arresting Officer or the Head Moharir have disclosed to the Court in their statements as to how and when the complicity of these miscreants became known to them. This is a very important ingredient in establishing the guilt against the appellants and the same to be proved by the prosecution. Moreover, as in the initial stage of this judgment pointed out that there is no explanation as to why Ganga Din and Sundar were not taken out together from the lock-up on the same day. Apart from these two anomalies it is also not disclosed by the prosecution witnesses, especially the link evidence witnesses, as to when the remand warrants were obtained for these appellants and when were they lodged in jail, although the time of their taking out from the lockup had been disclosed. This leaves the Court in a dilemma that the possibility of these appellants having been shown to the witnesses in transit to jail being probable. There is no plausible reason also offered by the prosecution for not disclosing these facts. These are very important links that would have proved the worthiness of the identification beyond any doubt. In the absence of these facts and circumstances further the value of the identification is hit beyond repair.
12. Learned A.G.A. has pointed out that there is hardly much to say about the case of Ravindra. As earlier discussed that the conduct of the police of P.S. Kabrai is not free from doubt, and once a doubt in the mind of the Court has arisen about the for malities and the link evidence and the probability of the accused having been shown to the witnesses is strengthened then the identification about the appellant Ravindra too is rendered weak and is not capable of arousing the confidence for his conviction. This appellant had surrendered on 13-10-1978. He was sent to District Jail. Banda, the same day. There is no evidence as to when and how his complicity in the offence was known to P.S. Kabrai and why was he taken out from District Jail, Banda, and was brought to P.S. Sumerpur. Strangely enough in the case of Sundar and this appellant the agency of P.S. Sumerpur has been utilised by the prosecution without offering any app'ropri ate or fair explanation for doing so.
13. In the light of the discussions made above, this appeal deserves to succeed. It is accordingly allowed. The appellants are ac quitted. Their conviction and sentence, as awarded by the trial Court, are set aside, They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged.