HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Court No. - 46 Case :- CRIMINAL APPEAL No. - 4717 of 2009 Appellant :- Pintu Respondent :- State Of U.P. Counsel for Appellant :- Anurag Pathak, Ajatshatru Pandey, Ajay Prakash, C.B. Tiwari, J.P.S. Chauhan, Mohit Kumar Singh, Prashant K.Lal Counsel for Respondent :- Govt. Advocate Hon'ble Arvind Kumar Tripathi, J.
Hon'ble Pramod Kumar Srivastava, J.
(Delivered by Hon'ble Pramod Kumar Srivastava, J.)
1.Sri G.S. Chaturvedi and Sri Samit Gopal, learned counsels, appeared on behalf of appellant; and Sri Mahendra Singh Yadav, learned A.G.A. appeared on behalf of State.
2.The present appeal has been filed against the judgment dated 30.7.2009 passed by Additional Sessions Judge, Court No.-10, Muzaffar Nagar in Sessions Trial No. 526 of 2007, State Vs. Rahul and others, case crime no. 202/2006, under sections 394, 302/34, 411 I.P.C., p.s. Ramraj, Muzaffar Nagar.
3.The prosecution case in brief was that on 5.6.2006 complainant Smt. Ruchi Agarwal was travelling from her Indica car with her husband Hemant Agarwal, daughter Mahak, husband's sister Smt. Lalita and her children. Her car was driven by driver Hari Singh. They were coming from Rajasthan and going to Lansdown (Uttarakhand). When they reached towards Bairaj on the canal road within area of Ramraj, then a Maruti car approached them from the side of Jangal road of village Dewal and blocked the way. The four ruffians, aged between 22-25 years, climbed down from that car, waved the country-made pistols and surrounded the complainant's car. They threatened the occupants of complainant's car and robbed the ornaments worn by complainants and Lalita, including gold chain, gold bangles, rings, their purse containing Rs. 17,000-18000, Nokia 1100 mobile, key of their vehicle and purse of Hari Singh driver. Those robbers also snatched about 8,000-10,000 rupees from the pocket of complainant's husband, his gold chain and gold rings. When complainant's husband resisted, then one robber had fired at him by country-made pistol, injuring him. After committing robbery, those criminals fled away in their car. Then complainant's husband Hemant Agarwal was taken to Bijnor Government Hospital, where during treatment he succumbed to his injuries. Informant Ruchi Agrawal dictated the written report to scribe Akhil Agarwal, her father. On the basis of this report, case crime no. 202/2006, under sections 394, 302 I.P.C. was registered in p.s. Ramraj on 5.2.2006 at about 5:20 p.m. against four unknown persons.
4.During investigation police has arrested accused Rahul, Rohit and Pintu and recovered the case properties, which was looted from complainant and her co-travelers at the time of incident. Thereafter charge-sheet was submitted against these three accused persons.
5.Trial Court had framed charges under sections 394, 302/34 and 411 I.P.C. against three accused Rahul, Rohit and Pintu. They had pleaded not guilty of the charges and claimed to be tried.
6.Prosecution side had examined PW-1 Dr. T.P. Singh (who had performed postmortem of Hemant Agarwal), PW-2 Ruchi Agarwal (complainant), PW-3 Hari Singh (Driver), PW-4, Rajendra Singh (Head Moharrir), PW-5 Smt. Lalita, PW-6 S.I. Virendra Singh (I.O.), PW-7 S.I. Pramod Kumar Singh (who performed inquest), PW-8 S.I. Uday Veer Singh (last I.O.) and PW-9 Constable Sukhvir Singh (for proving documents in secondary evidence). These witnesses had also proved documentary evidences of prosecution side.
7.After closure of prosecution evidence statements of accused persons were recorded under section 313 Cr.P.C. They had stated that prosecution evidence is wrong, no recovery was made from them, witnesses had done wrong identification, Investigation Officer had falsely implicated them in wrong case and they are innocent. Defence side had examined one witness in defence namely, DW-1 Rajendra Singh.
8.After affording opportunity of hearing and considering arguments of the parties learned Additional Sessions Judge, Court No. 10, Muzaffar Nagar had passed judgment dated 30.7.2009, by which accused Rahul and Rohit were acquitted of the charges on the ground of benefit of doubt; but accused Pintu was convicted for offence u/s 302/34, 394 and 411 I.P.C. Then trial court after giving opportunity of hearing to parties on point of quantum of sentence passed order of sentence which was imprisonment for life and Rs. 20,000/- as fine (in default of payment, one year additional imprisonment) for charge u/s 302 read with section 34 I.P.C., three years imprisonment and Rs. 5,000/- as fine (in default of payment, three months additional imprisonment) for charge u/s 411 I.P.C. and ten years imprisonment and Rs. 10,000/- as fine (in default of payment, six months additional imprisonment) for charge u/s 394 I.P.C. Trial court also directed that all sentences would run concurrently. Aggrieved by this judgment of conviction and sentence dated 30.7.2009 accused Pintu had preferred present appeal.
9.Out of nine examined prosecution witnesses only three witnesses namely PW-2 Ruchi Agarwal (informant), PW-3 Hari Singh (driver) and PW-5 Smt. Lalita are the witnesses of incident of robbery and murder. PW-6 S.I. Virendra Singh (I.O.) had been witness of recovery of robbed property from accused persons. Rest prosecution witnesses are of formal in nature. PW-7 S.I. Pramod Kumar Singh had conducted inquest proceedings of deceased Hemant Agarwal, PW-1 Dr. T.P. Singh performed post-mortem of deceased on 5.6.2006 at about 7:10 p.m., PW-4 Head Moharrir Rajendra Singh had proved chik-F.I.R. and G.D., PW-8 S.I. Uday Veer Singh was last Investigating Officer, who had submitted the charge-sheet and PW-9 Sukhvir Singh was police parokar, who had proved several prosecution documents. These formal witnesses and other witnesses of fact had proved beyond doubt that on 5.6.2006 at about 2:00 p.m. informant Ruchi Agarwal, her husband Hemant Agarwal, her sister-in-law Lalita and their children were going on their car being driven by PW-3 Hari Singh when four robbers blocked their way on road within area of village Dewal p.s. Ramraj, Muzaffar Nagar. Then those robbers used force against occupants of complainant's car, robbed them, relieved their valuables and one of them had fired on Hemant Agarwal; and thereafter fled away in their Maruti car with looted cash, ornaments and mobile phones. It is also proved that after this incident injured Hemant Agarwal was taken to Government Hospital where he succumbed to his injuries. Then complainant Ruchi Agarwal had lodged F.I.R. in police station Ramraj, Muzaffar Nagar. These facts had not been controverted or denied by defence- appellant's side. It is also admitted and proved fact that before the time of incident complainant and her co-travellers were not acquainted with appellant or any accused of the case. After completion of investigation, charge-sheet was submitted against three accused persons namely, Rahul, Rohit and appellant Pintu. Defence side had adduced defence evidence in form of DW-1 Rajendra Singh for proving alibi of accused Rahul and Rohit. On the basis of evidence adduced the learned Sessions Judge had acquitted Rahul and Rohit, but had convicted only accused- appellant Pintu. This finding has been challenged through present appeal. This has to be seen as to whether there is sufficient believable evidence regarding charged offences against appellant-Pintu.
10.Out of three eye witnesses of the fact examined in this case, only one witness PW-2 Ruchi Agarwal (complainant) had identified the accused Pintu in the Court. Her statement has to be scrutinized in light of facts and circumstances of the case and in the light of evidences of other witnesses of facts and circumstances.
11.Each witnesses of fact namely, PW-2, PW-3 and PW-5 had stated that on 5.6.2006 they were going with their Indica car from Neem Ka Thana, Rajasthan to Lansdown (Uttarakhand) with their family and their car was driven by driver Hari Singh then at canal road within village Dewal p.s. Ramraj their car was stopped by four ruffians, who were armed with country-made pistols; who had threatened them with pistols, robbed them, relieved their purse, cash, ornaments and mobile phones, and one of them had fired at Hemant Agarwal. Due to this injury of fire Hemant Agarwal had succumbed in the hospital. The descriptions of this incident given by PW-2, PW-3 and PW-5 are similar and supportive to F.I.R. Admittedly, no test identification parade was conducted in this matter by the Investigation Officer. So far identifiability of witnesses are concerned, PW-5 Smt. Lalita had stated during his examination-in-chief on 2.9.2007 that the accused Rohit was not involved in loot and fire. On that date, accused Pintu and Rahul were not present in Court. Then this witness was again summoned on 26.4.2008 for re-examination. Then she had seen the Pintu and Rahul in Court and stated that they were also not involved in the loot in question and in murder of Hemant. PW-3 Hari Singh (driver) had stated that age of ruffians was between 20-25 years. When his car was stopped one ruffian had pulled him out of the car and slapped and fired at Hemant Agarwal. Due to fear and being bothered he could not see the faces of those ruffians. This incident happened one year back. He had stated to Investigating Officer that he can recognize the criminals by seeing them. But he is unable to recognize them because long time has passed from the date of incident till his statement in the Court; and he is seeing those criminal for the first time after the date of incident. Therefore, he cannot tell as to whether Pintu and Rahul, (who were present in the Court at the time of evidence) were involved in that case or not. PW-2 complainant Smt. Ruchi Agarwal had stated that at the time of incident faces of ruffians were not covered. She had identified the accused-appellant Pintu in the Court and stated that Pintu is the person who had looted them on 5.6.2006 at 2:00 p.m. with his companions. During cross-examination she had again specifically stated that ruffians had forced driver Hari Singh to get down of the car and had fired at her husband Hemant Agarwal. Pintu was involved in the robbery but he had not fired at her husband. This witness PW-2 had also identified the mobile Nokia 1100, which was looted from her husband and recovered from accused. Thus out of three witnesses of fact relating to robbery and causing of injury, which later on resulted into death, one witness PW-5 Lalita could not identify any accused, PW-3 driver Hari Singh had shaky evidence though he had stated that after the date of incident he is seeing those ruffians for the first time in Court but had also stated that he is unable to tell as to whether accused persons were involved in the incidence of robbery and fire or not but only PW-2 informant Ruchi Agarwal had stated specifically that out of three accused she is sure about the accused appellant Pintu being involved in this robbery along with other robbers. She had identified the appellant Pintu as the person, who had not fired at her husband but was involved in this charged incident of robbery etc. along with other robbers. The trial court had discussed facts, circumstances and evidences and came to the finding of fact that evidence of PW-2 complainant Ruchi Agarwal is believable regarding identifiability of appellant Pintu being involved in this case of robbery and murder etc.
12.The finding of fact on the point of identifiability of appellant and the evidence of PW-2 regarding said identifiability was vehemently challenged by learned counsel for the appellant. It was also contended that in such heinous offences test identification parade should have been conducted during investigation and by not doing it material evidence was suppressed by prosecution side. Learned counsel for the appellant also contended that it is not proved beyond doubt that any looted property was recovered from the possession of appellant. Therefore, uncorroborated statement of PW-2 regarding identifiability of appellant is very unsafe. He contended that in such circumstances testimony of PW-2 informant should not be accepted as of believable witness. This contention was opposed by learned A.G.A. who argued that complainant Ruchi Agarwal is not previously known to accused. She had no enmity or previous introduction with appellant, an there is no reason to disbelieve testimony of PW-2, especially in the circumstances when on remaining other points her testimony has been proved beyond doubt and correct up to the mark of perfection.
13.We have meticulously considered these points and gone through available evidences. As discussed earlier, no witness of fact of robbery and firing had any previous introduction with any accused. It is proved that car of victim and these witnesses of facts were suddenly stopped at a lonely place by four robbers, who immediately pulled out driver Hari singh (PW-3) and thrashed him. Then one of them had immediately fired at Hamant Agarwal, who had tried to resist the robbery; and thereafter committed the act of robbery and fled away. In these circumstances, no ordinary person can keep his head cool. The criminals in this case had stopped the car of informant (Ruchi Agarwal) and other witnesses of fact all of sudden, then immediately beaten the driver and fire on Hemant Agarwal and then looted the cash, ornaments, mobile phone etc. and fled away. In these abnormal circumstances everyone must had feared of his/her life and it was very difficult for every one to identify all or any criminal. Even properly gazing the criminal for identifying was dangerous in such circumstances. In such circumstances lady witness PW-5 Lalita had to come twice in the Court for identifying the accused, and on second occasion, that is after about two years of the incident she had found appellant Pintu in the Court and said that he is not the person involved in the loot and murder. When examination-in-chief and first cross-examination was conducted after about one year and three months. There might have been possibility of other statement regarding identifiability but on that date appellant Pintu was absent in the Court. The delay in presenting him before PW-5 was caused by appellant himself.
14.So far evidence of PW-3 driver Hari Singh is concerned, he had stated that at the time of incident four ruffians armed with revolvers and pistol has stopped his car, pulled him out of the car and slapped him and fired at Hemant Agarwal. His statement is not improbable that in such dangerous situation he became perturbed and could not keep his cool, but had told the Investigating Officer that he can identify the criminals. But after a period of more than one year he could not be sure as to whether Pintu or Rahul were involved in the incident of loot or not. PW-3 had not exonerated appellant Pintu and only told that long time had lapsed since incident, and he is seeing the criminals for the first time after incident, so he is not sure whether appellant Pintu was involved in this loot or not. So far evidence of PW-2 Ruchi Agarwal informant is concerned, she had seen the three accused persons in the Court and specifically stated that only appellant Pintu was involved in this incident, who was involved in the loot but had not fired at her husband. Apart from it, she had specifically stated that Rohit and Rahul were not involved in loot and murder of her husband. For these two accused namely, Rahul and Rohit defence witness DW-1 Rajendra Singh had given evidence of alibi. All the three witnesses of fact of robbery namely, PW-2, PW-3 and PW-5 were independent witnesses having no preconception or enmity with appellant or other co-accused. Their evidences and statements appear truthful and believable. In aforesaid circumstances PW-5 Lalita could not identify appellant. PW-3 Hari Singh was not sure about involvement of appellant but PW-2 Ruchi Agarwal had properly identified the appellant Pintu. She and her family members were looted and her husband was murdered before her in day light. There was probability that she could identify the person involved in the incident happened before her. Her evidence had not only inspired confidence in the trial court but appeared truthful to us. So far conduct of PW-2 Ruchi Agarwal in the court below was concerned, it is also very natural for other co-accused Rahul and Rohit. She had made efforts to identify them and then gave statement that they were not involved in the loot. But she had immediately identified the appellant Pintu. Had there been any personal or previousbias or preconception she could have told that Pintu was involved in firing also; but she had not stated anything like that. For recovery of looted article from Pintu and other co-accused her evidence and testimony is believable. Several points of her statement regarding identifiability of looted article was challenged by learned counsel for the appellant. But there is nothing on record or in her statement that may cast doubt on the believability of her statement regarding identifiability of appellant Pintu. In these circumstances, finding of fact of trial Court regarding involvement of appellant Pintu along with his companions in charged incident of loot and murder of Hemant Agarwal is found correct. It is proved that this finding of trial court is correct that appellant Pintu was actively involved in the charged incident of robbery and loot, and during this incident one of his companion had fired at Hemant Agarwal, who died due to that injury. This finding of fact of trial court is found correct and is confirmed. Therefore we are of the considered opinion that appellant Pintu was rightly convicted by trial court for the charge under sections 302/34 and 394 I.P.C.
15.So far argument of learned counsel for the appellant regarding identifiability of appellant in Court by witness and not through the test identification parade is concerned, learned trial court had rightly discussed the legal position on this point in its judgment.
16.Section-9 of the Indian Evidence Act reads as under:
"9. Facts necessary to explain or introduce relevant facts.- Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose."
In Malkhansingh v. State of M.P., (2003) 5 SCC 746 Hon'ble Apex Court had held as under:
"6. The principal submission urged before the courts below as also before us is whether the conviction of the appellants can be sustained on the basis of the identification of the appellants by the prosecutrix in court without holding a test identification parade in the course of investigation. While the appellants contend that the identification in court not preceded by a test identification parade is of no evidentiary value, the prosecution contends that the substantive evidence is the evidence of identification in court and, therefore, the value to be attached to such identification must depend on facts and circumstances of each case. No general rule could be laid that such identification in the court is of no value.
7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration."
In Rameshwar Singh v. State of J&K, (1971) 2 SCC 715 Hon'ble Supreme Court had held as under:
" The identification during police investigation, it may be recalled, is not substantive evidence in law and it can only be used for corroborating or contradicting evidence of the witness concerned as given in Court. The identification proceedings, therefore, must be so conducted that evidence with regard to them when given at the trial, enables the court safely to form appropriate judicial opinion about its evidentiary value for the purpose of corroborating or contradicting the statement in Court of the identifying witness."
In Ram Nath Mahto v. State of Bihar, (1996) 8 SCC 630 Hon'ble Supreme Court had held as under:
"There can be no dispute to the proposition that oral evidence led at the trial may by itself be substantive evidence whereas evidence of test identification parade may per se be not. In that situation, the court would certainly be entitled to rely upon such evidence as that would be relevant under Section 9 of the Evidence Act, 1872."
17.Therefore, on the basis of above discussion, the contention of learned counsel for the appellant for doubting the believable testimony of informant PW-2 Ruchi Agarwal regarding identifiability of appellant in Court is concerned, is unacceptable, especially in the circumstances when her statements on other point was proved beyond reasonable doubt and her statement regarding identifiability inspired confidence and appears truthful and beyond any shadow of doubt.
18.Learned counsel for the appellant has assailed the findings of trial court for the conviction under section 411 I.P.C., but the finding of fact of trial court and its conclusion on this point appears correct. It is a fact that IEMI number of mobile was not remembered by any witnesses. Though it was informed to Investigating Officer, who had stated this number during examination but other witnesses of facts have not stated said IEMI number. It is also a fact that a company manufactures a large number of mobiles of each model, but in spite of that a person, very often, can identify his own mobile or article, even if such articles have been manufactured by a company in large number. Witnesses had identified the mobile, which was recovered from appellant Pintu. The evidences of witnesses of fact namely, PW-2, PW-3 and PW-5 have been found correct and believable on each point, which support testimony of each other. In the same way trial Court had believed that the testimony of witnesses of facts regarding identifiability of looted article from appellant Pintu is proved on the basis of available evidences. The finding reached by trial Court may be correct. This finding appears correct to us also. Such finding of fact reached by trial Court should not be interfered only on the ground that on the basis of available evidences there may be remote chances that other conclusion may be reached. The witnesses had identified the recovered article from appellant as their looted article. Trial Court had believed it, and we have no reason to disbelieve the finding of trial Court on this point. So the conviction of appellant for the charged offence under section 411 IPC is also confirmed.
19.On the basis of above discussion, we are of the considered opinion that charges of sections 394, 302/34 and 411 I.P.C. against appellant Pintu have been proved and, therefore, he was rightly convicted. So far quantum of punishment is concerned, this point was not argued at the time of hearing, but a perusal and consideration of sentences reveal that minimum sentence was awarded for offence u/s 302 read with section 34 I.P.C. which is life imprisonment, and reasonable punishment was awarded for other charges under sections 394 and 411 I.P.C.; and it was directed that all sentences would run concurrently. In these circumstances, there is no justification in interference in sentences awarded by the trial court.
20.On the basis of above discussion, the judgment of conviction and order of punishment awarded on 30-07-2009 by trial court to appellant Pintu for offences under sections 302 read with section 34, 394 and 411 I.P.C. are hereby confirmed. Accordingly, this appeal is dismissed.
Order Date :- 06.7.2015 SR