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Hon'ble J.J. Munir,J.

(Delivered by Hon'ble J.J. Munir, J.)

1. These three criminal appeals arise out of a judgment and order of Sri P.K. Singh, the then Additional Sessions Judge, Fast Track Court no.4, Gorakhpur, dated 29.10.2003 passed in Sessions Trial no.177 of 2002, State of U.P. vs. Shyam @ Sambhal and others (arising out of Case Crime no.883 of 2001), under Sections 396, 412 IPC, Police Station Khorabar, District Gorakhpur.

2. By the aforesaid judgment and order, each of the five appellants, have been convicted by the learned Trial Judge of commission of an offence punishable under Section 396 IPC and sentenced to suffer Rigorous Imprisonment for Life, besides being ordered to pay a fine of Rs.5000/- each. In default of payment of fine, the concerned appellant has been ordered to suffer one year's R.I. Appellants, Shyam @ Sambhal, Rinku Kumar Chaudhary and Raju Mali have also been convicted of an offence punishable under Section 412 IPC and sentenced to suffer ten years' Rigorous Imprisonment, besides being ordered to pay a fine of Rs.3000/-. In the event of default, the said appellants, have been ordered to suffer seven months' R.I. Both the sentences have been ordered to run concurrently. Aggrieved, Dhan Singh, Rinku Kumar Chaudhary and Jeevan Mali have preferred Criminal Appeal no.293 of 2004, whereas Shyam @ Sambhal has preferred Criminal Appeal no.6021 of 2003. Raju Mali has appealed separately through Criminal Appeal no.109 of 2004. Criminal Appeal no.293 of 2003 has been heard as the leading case.

12. The police on the basis of this case and material, charge sheeted the appellants vide charge sheet dated 01.03.2002, Ex. Ka-54, submitted by the Investigating Officer Ravi Chandra Mishra, PW-9, praying that the appellants be summoned and punished for the commission of offences punishable under Sections 396 & 412 IPC.

13. The case was committed to the sessions by the learned Additional Chief Judicial Magistrate, Court no.14, Gorakhpur vide order dated 14.05.2002. After committal to the Court of Session, the Additional Sessions Judge/ Fast Track Court no.3, Gorakhpur, before whom the case came up for framing of charges, proceeded to hear the learned counsel for the parties, and framed a charge for an offence punishable under Section 396 IPC against all the appellants, and against the appellants Shyam @ Sambhal, Raju Mali and Rinku Kumar, framed a charge for an offence punishable under Section 412 IPC. The appellants pleaded not guilty and claimed trial.

35. The account of identification and arrest given by the Investigating Officer in his evidence, in the submission of the learned Counsel for the appellants, is also to its face, shaky and unreliable. In particular, he submits that the fact that the Investigating Officer has spoken about arresting in the first instance five accused in connection with the narcotics case, and lateron correct himself to make it a figure of six, makes the entire prosecution case a riddle about the sixth man apprehended. This is so because the charge sheet in the case has been filed against five men alone, and there is no explanation in the submission of Sri Mishra as to what happened to the sixth man apprehended. The absence of a cogent explanation by the prosecution as to why the sixth man apprehended was not put up for his trial, renders the prosecution seriously doubtful. It is also pointed out by the learned Counsel for the appellants that the Investigating Officer has said in his cross-examination, dated 09.05.2003 at the instance of appellants, Shyam @ Sambhal and Rinku that the arrest took place a little before 12.30 p.m., whereas recovery of narcotics and other articles was made at 12.30 p.m. (on 12.12.2001). The arrest of all the appellants in connection with the narcotics case that were registered as five separate crimes against them was shown at 10.30 a.m. This according to the learned Counsel for the appellants shows that the time of arrest is not certain, which furthers the appellants' case that their implication in the crime was the result of manipulation done by the police in order to do a face saving exercise. The appellants have merely become scapegoats.

"रेनु अभियुक्तों को देखते ही पहचान गई और आवेश में आकर के उलझने लगी। पुलिस ने अभियुक्तों के पास से पहले से बरामद सामान दिखाया, ये सामान दरोगा जी रखे थे। दो मगंल सूत्र चांदी का जिसमें एक मगंल सूत्र टूटा हुआ, दूसरा मगंल सूत्र जिसमें चांदी के लाकेट में सीकड़ में सोने का पानी चढ़ा हुआ था और चांदी की बिछिया, टूटे मगंल सूत्र में मोती के दाने लगे थे जो काले रंग के थे और एक ज्ञान (हथौड़ी) भी बरामद हुआ था। साथ ही एक चादी का सिक्का 1901 का बरामद हुआ था जिसे रेनु ने पहचाना था।"

38. Likewise, PW-1 in his deposition dated 14.08.2002, that is part of his cross-examination at the instance of the appellants, Shyam @ Sambhal and Rinku has said to the following effect: