Allahabad High Court
Khan Singh @ Ujagar Khan And Chhotey vs State on 17 May, 1996
Equivalent citations: 1997CRILJ2305
Author: B.K. Sharma
Bench: B.K. Sharma
JUDGMENT B.K. Sharma, J.
1. Both these appeals have been heard together as they arise out of a common judgment dated 1-8-85 passed by Sri P. N. Lal, the then Special Judge/Addl. Sessions Judge, Shahjahanpur in S.T. No. 323 of 1984, connected with S.T. No. 368 of 1984 and S.T. No. 370 of 1984, whereby he convicted all the three accused-appellants of the offence under Section 396 IPC and sentenced (hem to undergo imprisonment for life and further convicted Chhotey accused-appellant and Khan Singh alias Ujagar Khan accused-appellant of the offence under section 25 Arms Act and sentenced Chhotey accused-appellant to undergo six months R.I. for the offence under Section 25 Arms Act and sentenced Khan Singh alias Ujagar Khan accused-appellant to undergo R.I. for one year for the offence under Section 25 Arms Act.
2. The prosecution story was to the effect that a dacoity took place on 12-2-84 at about 7.30 P.M. in village Kumbhia Maphi. P. S. Khutar, district Shahjahanpur, in which six. dacoits participated and they looted licensed gun No. 89963 from Sunder of his brother and looted licensed gun No. 2283 from Badshah, which was of his father, that when the looting was resisted and an alarm was raised and village people were seen coming the dacoits shot Badshah dead and also injured Sunder by firing two shots; that thereafter the dacoits fled away with the looted guns and cartridges; that Rampal witness also received Lathi injuries in the occurrence, that it was moonlit night and that Sunder died later.
3. The assailants were identified in the moon light and in the light of torches. In another incident, of dacoity at the house of Chholey Lal, in village Kisariapur, police station Schra Mau North, Chhote Lal snatched above licensed gun No. 2283 from the dacoits and deposited the same at police station Sehra Mau North.
4. None of the witnesses in the present dacoity knew the dacoits from before. The usual FIR was lodged and the investigation started. During the course of investigation Vijai Bahadur accused-appellant was arrested on 25-4-84 and made Baparda and sent to jail. On 17-5-84 accused appellant Khan Singh alias Ujagar Singh and accused appellant Chhotey both were arrested by the police party led by I.O. K.P. Pandey. From the possession of Khan Singh alias Ujagar accused-appellantaforesaid looted licensed gun No. 89963 was recovered and from the possession of Chhotey accused-appellant an unlicensed gun was recovered and from the possession, of Ramesh accused (not an accused here) a country-made pistol was recovered. They could not produce any licence for the weapons recovered from their respective oosscssion. The identification proceedings in respect of Vijai Bahadur accused-appellant took place on 23-5-1984 at the district Jail. Therein Vijai Bahadur accused-appellant was correctly dentified by all the six witnesses, namely Ram Autar, Madan Lal, Munnu Lal, Puttu Lal, Ahibaran and Rampal, who went for identification. Out of hem Ram Autar (PW 1), Madan Lal (PW 2), Munna Lal(PW4) were produced at the trial and all of them correctly identified Vijai Bahadur accused-appellant at the trial without making any mistake, Chhotey and Khan Singh alias Ujagar Chan accused-appellant were put for test identi-ication on 30-5-1984. Seven persons went to dentify them. Out of them five witnesses, namely Ram Autar, Ahibaran, Madan Lal, Munnu Lal and Ram Pal correctly identified these accused-appellant at the identification parade without Making any mistake. Out of these witnesses only Ram Autar (PW 1) Madan Lal (P.W. 2) and Munna Lal (PW 4) were produced at the trial, Where they made positive identification of both he accused-appellants without making any mistake.
5. The learned Sessions Judge held that a lacoity took place in which a murder took place in the date, time and place as alleged by the prosecution, in which Badshah was shot dead at he spot and Sunder was injured, who died later on due to his fire arm injuries. He also placed on record corroborative fact that one looted licensed gun No. 89963 was recovered from the posses-sion of Khan Singh accused appellant and the other 1ooted gun was snatched in another incident in the circle of another police station subsequently by Chhotey Lal from a gang of dacoits who looted his house. He also believed the identification evidence given by the witnesses at the trial. He also believed the evidence of recovery made by he Investigating Officer from Khan Singh and Chhotey accused-appellants on 17-5-84. Consequently he made the convictions and awarded the sentences noted above.
6. There is no doubt that two licensed weapons were looted on the date, time and place alleged by the prosecution and in the course of the dacoity nurder was also committed by dacoits as claimed the prosecution.
7. Coming now to the offence under Section 396 IPC in so far as Vijai Bahadur accused-appellant is concerned, there is only identification evidence against him. As alleged by the prosecution he was arrested on 25-4-84 and was put up for identification on 23-5-84. The identification proceeding may not be said to be unduly delayed but there is substance in the argument that the result of the identification in respect of this accused-appellant was too good to be believed (because all the six witnesses who went to identify him at the district jail correctly identified him without making any mistake) particularly when no Hulia or special feature or features of the dacoits were disclosed in the FIR by the informant. In the case of Sheonath Bhar v. State of U.P. 1990 Allahabad Criminal Rulings 553 : 1990 Cri LJ 2423 it was held that a performance of six out of six must be called too good to be believed and suspicious.
8. Another circumstance fatal for the prosecution is that no link evidence whatsoever has been, adduced by the prosecution. Link evidence means evidence to show that accused was not shown to any witness from the time of his arrest till the time of his lodging at the jail. There is only the evidence of I.O. K.P. Pandey (PW 11) that he made this accused-appellant Baparda at the spot and it was only to the effect that the accused was arrested along with a gun and his statement was recorded and he was made Baparda and was sent to jail Baparda and that a report was made for identification proceedings. The Investigating Officer did not say in so many words that it was he who made the arrest. He did not disclose as to on what date, time and place this accused was arrested. He has not proved any memo about this arrest. He also did not place on record any G.D. entry of his lodgement in the police station after the arrest made by him. He also did not say that he got the accused made Baparda. He also did not say as to who took this acccused-appellant Baparda and lodged him at the district jail. At the time of identification proceeding this acccused-appellant has stated before the Magistrate "POLICE NE MUJHE PAHICHAN KARTAON KODIKHAYA HAI.... " This statement is of great significance when the prosecution does not say as to on what date, time and place he was arrested and at what place he was taken from time to time and where he was kept in the night. The memo of identification proceeding is Ex.ka 33 which shows that he was lodged at the district jail on 26-4-84,which means that in the night of 25-4-84 he was kept isomewhere, may be at the police station, may be somewhere else. The constable who took the accused and lodged him at the jail was not produced by the prosecution, he was not even named before the court to enable the court to summon him as a court witness. In the total absence of link evidence, the identification evidence given by the witnesses at the trial cannot be made the basis of conviction. I may place on record a Division Bench authority of our High Court, Mahendra Singh v. State, 1991 Cri LJ 1381 where it was said (at Page 1385):
...The prosecution has, however, not given any link evidence to prove that Mahendra Singh alias Birendra Singh was brought Baparda from jail on that date and was kept Baparda till he was again lodged in jail the same day and he was not shown to any prosecution witnesses on that day. The case of Mahendra Singh has been that he had been shown to the witnesses. In view of this lapse on the part of the prosecution, we have no option but to give the benefit of doubt to him.
In the single Judge authority, Sheonath Bhar, cited by me aforesaid, the same view was taken. In that case the prosecution had examined the Investigating Officer and the Investigating Officer alone provided the link evidence and the explanation offered by the prosecution for the absence of link evidence in respect of not producing the case diaries was that the relevant case diary was weeded out due to lapse of time. In those circumstances it was held that the explanation offered by the prosecution cannot discharge the burden of prosecution to adduce a formal link evidence about the same in respect of taking the accused Baparda.
9. I may mention here that so far as this accused-appellant Vijai Bahadur is concerned, there is no recovery from him of any of the weapons looted in the present dacoity. I.O. K.P. Pandey has claimed that there was recovery of a fire arm from the possession of this accused-appellant but it is immaterial because the alleged recovered weapon was not said to be looted in the present occurrence. In fact, there is no evidence whatsoever that any fire-arm of any kind was recovered from the possession of this accused-appellant at the time of his arrest.
10. Consequently, the charge against this accused-appellant Vijai Bahadur alias Vijai for the offence under Section 396 IPC cannot be sustained.
11. Now we come to the other two accused-appellants Khan Singh alias Ujagar Khan and Chhotey. They, were arrested on 17-5-1984 and were put up for identification on 30-5-1984 and so there was no abnormal delay in getting the test identification done. The identification evidence , led at the trial, however, suffers from the same fatal flaw of absence of necessary link evidence. There is only the statement of I.O.K.P. Pandey (PW 11) that both these accused-appellants were arrested on 17-5-1984 and they were made Baparda at the spot and they were given direction to keep their faces concealed and not to allow any one to see their faces because they were to be put up for identification test. Beyond this there is also his evidence that from the spot of arrest they were brought to the police station and lodged there baparda. Copy of the G.D. entry No. 16 dated 17-5-84 of 13.30 hours in this respect is proved by him as Ex ka 26. If we take the statement of the Investigating Officer at its face value, it at the most shows that the accused remained Baparda from the time of their arrest till 13.30 hours on 17-5-84, the time of their lodging at the police station. Beyond this there is evidence of Investigating Officer that the departure (Rawangi) of these accused from the police station for district jail was made Baparda on 18-5-84 and further that Constable Kamlesh and Constable Sukhbari Lal took the accused-appellants to jail Baparda. The time of departure from police station and the time of lodging at jail were not disclosed by the Investigating Officer. He did not say that he himself remained at the police station from the time of their lodging at the police station on 17-5-84 at 13.30 hours till the time of their departure from the police station on 18-5-84, so as to be able to say that they were kept Baparda so long as they remained at the police station. No. G.D. entries of the period from the time of lodging of the accused-appellants at the police station till the date and time of their departure from there have been produced and proved. None of the constables who were on duty during all this period were produced by the prosecution to show that during the said period they (the accused appellants aforesaid) were kept Baparda in the Hawalat of the police station. In fact, the Investigating Officer did not even say that during the period these accused appellants were in the lock-up at the police station, they remained Baparda and that no body was allowed to see their faces.
12. Constables Kamlesh and Subhkari were also not. produced by the prosecution to give their evidence that they started from the police station with these accused Baparda and that they kept them Baparda all along til! the time of their lodging at the district jail and further that they did not allow any one to see their faces in the intervening period. We may only add that the Investigating Officer did not claim that he had accompanied the constables when they took these accused-appellants from the police station to the district jail. This absence of link evidence assumes more significance when we notice that Khan Singh accused appellant stated before the Identifying Magistrate, "THANE MEN PHOTO KHEECHA GAYA". The accused-appellant Chhotey no doubt stated before the Magistrate that the witnesses knew him from before. Nonetheless, the prosecution was bound to prove its case against this accused also by producing link evidence because its case was that the witnesses did not know the accused appellant Chholey from before. The statement of this accused that the witnesses knew from before if taken to be correct, then the fact that he was not named in the F.I.R. even then, becomes fatal for the prosecution.
13. Now we have to consider the recovery of fire arms from these two accused-appellants. So far as the recovery from Chhotey accused-appellant is concerned, it is of an illicit weapon and it establishes the offence under Section 25 Arms Act against him. But it shall have no bearing on the charge for the offence under Section 396 IPC. There is no recovery from his possession of any of the two weapons looted in the present dacoity. So no adverse inference can be drawn against this accused- appellant Chhotey in regard to the charge under Section 396 IPC. Consequently, in the absence of link evidence, the accused-appellant Chhotey lias to be given the benefit of doubt for the offence under Section 396 IPC and his con vie-tion for this offence cannot be sustained but his conviction and sentence for the offence under Section 25 Arms Act ought to stand.
14. Now we come to the recovery of the weapon from Khan Singh accused-appellant. This recovery is of the licensed gun No. 89963 looted in the present occurrence. In respect of this recovery there is the evidence of the Investigating Officer. The defence suggestion to the Investigating Officer in regard to the same is that Badhshah son of Deena and Sunder the brother of Dayaram had taken the gun for committing the dacoity and in the dacoity an encounter took place and they were killed in that encounter and further that in collusion with the licence-holders of the guns incorrect charge-sheets have been submitted against the accused persons. However, there are no circumstances and no evidence to lend support to the said plea. The evidence of the Investigating Officer in respect of the said recovery has, therefore, to be accepted and this establishes the charge under Section 25 Arms Act against this accused appellant. The learned Sessions Judge had framed the charge under Section 396 IPC and also framed the charge under Section 412 IPC against the accused-appellant for retaining the said licensed gun No. 89963 along with eight live cartridges knowing and having reasons to believe that the possession of the said licensed gun has been transferred by commission of dacoity. The learned Sessions Judge being of the opinion that the evidence establishes the offence of dacoity with murder against this accused-appellant did not make a separate conviction for the offence under Section 412 IPC.
15. Now the crucial question is as to what extent the presumption under Section 114 of the Indian Evidence Act from the said recovery could help prove the charge under Section 396 IPC or 412 IPC. Here it has to be kept in mind that the occurrence look place on 12-2-1984 but the said recovery was made on 17-5-1984. Therefore, considering this time gap we are afraid it would not be proper to draw inference in respect of corroborating the charge of dacoity with murder particularly when the material link evidence is missing, and the same entitles this accused-appellant to the benefit of doubt in regard to that charge. However, the matter does not end here. Even though the charge under Section 396 IPC will have to fail against this accused appellant also in view of the absence of the link evidence, a presumption can certainly be raised on the basis of the said recovery that he was a 'receiver'. Now the question arises as to whether the presumption should be whether he was a 'receiver' with the knowledge that the said firearm had been ac-quired by commission of dacoity. To support this presumption in favour of Offence under Section 412 IPC, it has to be proved that this accused-appellant Knew 6r had reason to believe that the possession of the weapon had been transferred by the 'commission of dacoity or that he received it from a person whom he knew or had reason to believe that he belonged to gang of dacoits. Since there is no such material on record, it will only be safe to draw a lesser presumption that he knew the fire-arm to be a stolen property. A factory made weapon is not something readily available in the market, which can be acquired just by throwing money. So, the charge under Section 411 IPC only is brought home to this accused-appellant Khan Singh, which is a minor offence with reference to the offence under section 396 IPC. Moreover, this accused-appellant had been tried by the learned Sessions Judge for the offence under Section 412 IPC but he did not make a separate conviction for the offence under section 411 or 412 IPC because the major offence under section 396 IPC was established on his assessment of evidence.
16. Now we come to the question of sentence for the offence under section 411 IPC to Khan Singh accused-appellant. In my view, three years RI should be sufficient to serve the ends of justice.
ORDER
17. Criminal Appeal No. 2244of 1985 of Vijai Bahadur alias Vijai accused-appellant is allowed. His conviction for the offence under section 396 IPC is set aside, and he is acquitted of the same. He is on bail from this court. He need not surrender. His bail bonds are cancelled and sureties arc discharged.
18. Criminal Appeal No. 676 of 1988 is partly allowed in so far as Chhote accused-appellant is concerned his conviction under section 396 IPC is set aside and he is acquitted of the same. But his conviction for the offence under Secction 25 Arms Act is maintained. However, since he was arrested on 17-5-84 and was admitted to bail by this court on 18-9-92, he has already served out the period of sentence awarded by the Sessions Judge for the offence under section 25 Arms Act. At present he is on bail. He need not surrender. His bail bonds are cancelled and the sureties are discharged.
19. Criminal Appeal No. 676 of 88 in respect of Khan Singh alias Ujagar Khan accused-appellant is also partly allowed. His conviction for the offence under section 396 IPC is set aside and he is acquitted of the same. However, he is convicted for the offence under Section 411 IPC and is sentenced to undergo R.I. for three years for the said offence. His conviction for the offence under Section 25 Arms Act is maintains Mowever, he was arrested on 17-5-1984 and had been admitted to bail by this court on 18-9-92. It means that he has already suffered imprisonment for seven years and four months as under trial or against the sentence awarded by the Sessions Judge for this offence. Consequently, he need not surrender. His bail bonds are cancelled and the sureties are discharged.
20. Let a copy of this judgment be sent to the learned Sessions Judge, Shahjahanpur in a week from today for information and compliance. The compliance report by the Sessions Judge, Shahjahanpur shall be submitted to this Court within a month from today..