Gunni Lal And (7) Others. vs State Of U.P.
2017 Latest Caselaw 2806 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 14
 

 
Case :- CRIMINAL APPEAL No. - 315 of 1999
 

 
Appellant :- Gunni Lal And (7) Others.
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- L.S.P.Singh,Ashutosh Bajpai,D.N.Srivastava,Kunwar Veer Pal Singh
 
Counsel for Respondent :- Govt Advocate
 

 
Hon'ble Sheo Kumar Singh-I,J.

1. Challenge in this Criminal Appeal is the judgment and order dated 06.07.1999 passed by Additional Sessions Judge, Court No.1, Bahraich, in Sessions Trial No.162 of 1994 whereby the appellants were found guilty and convicted under Sections 148, 323 read with Section 149, 324/452 IPC.

2. By filing this criminal appeal under Section 374 (2) Cr.P.C., the appellants have submitted that the first information report was lodged against unknown persons and the independent witnesses have not corroborated and supported the prosecution theory but on the basis of conjectures and surmises, the appellants were found guilty and convicted by the court below.

3. In brief, the prosecution story reveals that in the night of 10/11.05.1988 in between 12.00 - 01.00 when the family members along with the complainant were sleeping on the roof of the house, near about 10-12 persons entered into the house. They were armed with lathi, farsa and guns and caused injuries to the complainant and his family members. They also taken some valuable ornaments and items from the house of the complainant and in course of committing robbery used the weapons which they had and after making noise by the family members of the complainant, when the villagers came there, the accused persons fled away. An information was lodged in the police station where it was registered under Sections 395 and 397 IPC on 11.05.1988 at about 08.00 AM. After investigation, a charge sheet was submitted under Sections 147, 148, 307/149, 452, 323, 324/149 IPC. The first information report was lodged against unknown persons while the present appellants have been named in the charge sheet. After recording the statement of the witnesses, statement under Section 313 Cr.P.C. was recorded by the court in which the appellants denied from the charges and the evidence also. After hearing the parties, the court below found the accused/appellants guilty under Sections 323, 324 and 452 IPC read with Sections 148 and 149 IPC and punished them with rigorous imprisonment of one year under Section 148 IPC, 6 months' rigorous imprisonment under Section 323 read with Section 149 IPC, 2 years rigorous imprisonment under Section 324 IPC read with Section 149 IPC and 2 years rigorous imprisonment under Section 452 IPC. Aggrieved by the order, the appellants have filed the present appeal.

4. During pendency of this appeal, the case against appellant no.3 Autar, appellant no.4 Budh Sagar and appellant no.5 Ram Shaharey stand abated due to their death.

5. I have heard learned counsel for the parties and gone through the record.

6. The first contention as raised by learned counsel for the appellants is that the incident took place on 10.05.1988 at about 12.00 in the night. There was no means of light and the witnesses had not identified the accused persons that is why the first information report was lodged against unknown persons. During the trial some of the witnesses had recognized and identified one or two accused persons that too a doubtful identification and it has been contended by learned counsel for the appellants that if the accused persons were known to the witnesses then there was no reason to lodge the first information report against the unknown persons. Secondly when there is a theory of robbery in the night by more than ten persons by looting the property of the complainant and his family members and after investigation it was found that there was nothing which was looted by the accused persons in the said incident then there was no occasion to submit charge sheet under Section 323 or 452 IPC. During cross examination PW-1 Rajendra Prasad had stated that no material had been taken by the persons who were involved in the looting of said occurrence, in this way the fact of looting the property was not found proved by the court below. PW-2 Ram Dulari was produced before the court from the side of the prosecution to identify the accused persons before the court but for indicating the accused Siya Ram, she indicated accused Kailash and Jagannath, meaning thereby she had not identified clearly to Siya Ram. The court reached to the conclusion that she failed to identify one of the accused and out of three accused persons she indicated one by one out of which third was Siya Ram that can never be said to be a clear identification of the accused. It is the theory of the prosecution that during the occurrence some injury was caused to the family members of the complainant but PW-3 Smt. Ketaki wife of Anil Kumar had stated that none of the accused had assaulted her. PW-4 Samaideen had been stated to be an eyewitness but during the course of examination he had stated that he was not present at the time of occurrence and he had never seen any of the accused person causing injury to the family members of the complainant or to be involved in any kind of loot in the said night. During the course of examination one of the witness had stated that out of ten accused persons, five were women having guns. This is not the theory of the prosecution. It has further came in the statement of the witness that one Siya Ram and Lekhpal used to come in the village and that was the reason that the witnesses recognized them. If this statement is taken as true then there was no occasion to name the accused in the first information report. There was no means of light in the midnight and there was no identification during the course of investigation.

7. It is desirable that a test identification parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution. The normal rule is that testimony of a witness, who does not know an accused from before and identifies him for the first time in the Court as a person who had participated in the commission of the crime, without holding a previous identification parade does not carry much weight. The substantive evidence of a witness is the statement in Court but as a rule of prudence, earlier identification proceedings are held in order to corroborate the testimony of a witness given in Court as regards the identity of the accused who is not known to him from before. 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. A test identification parade do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code.

8. Introduction of or addition of a new story by prosecution adversely affects and destroys the prosecution case by creating doubt in it and the accused becomes entitled to benefit of doubt. [Ram Narain Popli vs. CBI - (2003) 3 SCC 641]

9. If different stories are projected by prosecution, it is unsafe to convict the accused. [ Vallabhaneni Venkateshwara Rao v. State of A.P. - 2009(4) Supreme 363]

10. It is submitted by learned counsel for the appellant that in the night of occurrence there was complete darkness and unless there was some light burning in the house, it would be difficult for the witnesses to have identified the assailants/the persons involved in the commission of the offence and to have given such a graphic description regarding the accused persons. Further he has relied upon the case of State of U.P. v. Mata Prasad reported in 1983 L.Cr.R 184 where it was held that if known accused were said to be entered in the house and they were not concealing their identity, it is an unnatural story presented by the prosecution. Even if the identity was not concealed, the complainant or the prosecution witnessed failed to identify them during the course of occurrence and failed to name them in the first information report. Further in light of Wakil Singh and others v. State of Bihar reported in AIR 1981 SC 1392 when ten or twelve persons were standing inside the house and none of the person or villager could know the ''Hulia' or identity of the persons involved in the commission of the crime, the theory of the prosecution becomes doubtful. Further in light of Pradeep Kumar v. State reported in C.R.R. 1987 Page 278 on the identification of only one person against only one or two accused persons out of ten accused, it would not be safe to convict all the persons involved in the trial.

11. Learned counsel for the appellants relying on the case of Pali v. State of Punjab reported in JT (1996) 9 SC 96, stated that if in spite of knowledge, the investigating agency did not hold identification parade and identification of the appellant was made before the court and only one witness identified only one or two accused out of ten, the evidence of the prosecution cannot be accepted with certainty as reliable identification. Further in light of State of Maharashtra v. Sukhdeo Singh reported in AIR 1992 SC 2100, no weight can be attached to the identification held in the court more so when no satisfactory explanation is forthcoming for the Investigation Officer's failure to hold the test identification parade. Admittedly, no identification parade was held and the witnesses were examined at a very belated stage and there was liberty to the prosecution witnesses to see the accused before the court and since out of ten accused some of them are said to be priorly known to the witnesses, the conviction cannot be based on such weak type of evidence.

12. In light of above circumstances, where the independent witnesses had not supported the prosecution case and there was enmity between the parties, the incident took place in the midnight where there was no source of light to enable the witnesses to recognize the dacoits, the incident was initially registered under Sections 395 and 397 IPC which was later on converted to Sections 323, 324/452 IPC read with Sections 148 and 149 IPC, it cannot be said to be a true version of the prosecution story.

13. In the above circumstances, learned trial court has not properly assessed the statement of the witnesses and wrongly converted the offence which was lodged under Section 395 IPC to the case of house trespass and simple injury. This was not the case of the prosecution. In the circumstances, the prosecution failed to prove the case beyond all reasonable doubt and the accused appellants deserve to be acquitted from the charges levelled against them. Thus, the appeal is allowed. The conviction and sentence dated 06.07.1999 passed in Sessions Trial No.162 of 1994 is set-aside. Appellants namely Gunni Lal, Siya Ram, Jagannath, Kailash and Zimidar are acquitted from the charges levelled against them. They are on bail. Their bail bonds are cancelled and sureties discharged.

14. Let a copy of this order with lower court's record be sent to the court concerned for information.

Order Date :- 31.7.2017

A. Katiyar