Ram Singh vs State
2018 Latest Caselaw 2270 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Reserved on : 13.08.2018
 
Delivered on :  31.08.2018
 

 
Court No. - 50
 

 
Case :- CRIMINAL APPEAL No. - 3152 of 1982
 

 
Appellant :- Ram Singh
 
Respondent :- State
 
Counsel for Appellant :- Virendra Saran,Akhilesh Singh,Shivam Yadav
 
Counsel for Respondent :- A.G.A.
 
AND
 
Case :- CRIMINAL APPEAL No. - 3195 of 1982
 

 
Appellant :- Munna
 
Respondent :- State
 
Counsel for Appellant :- Ravindra Singh,Virendra Saran
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Harsh Kumar,J.

1. Since, the two appeals have arisen out of one and the same order of conviction, they were heard together and are being disposed by common judgment.

2. These two appeals have been filed separately by two convicts Ram Singh & Munna Singh against the judgment and order dated 11.11.1982 passed by Special Sessions Judge, Mainpuri in S.T. No. 98 of 1982 (State Vs. Chandrapal & Ram Singh) connected with S.T. No. 141 of 1982 (State Vs. Munna) wherein by consolidated judgment and order, one accused Chandrapal was acquitted while Ram Singh & Munna two accused-appellants were convicted for the offences under Sections 395/397 IPC and sentenced with R.I. for a period of eight years.

3. Heard Sri A.K. Vaish and Niraj Singh Vaish learned counsel for the appellants, Sri L.D. Rajbhar, learned AGA for the State and perused the record.

4. The prosecution case in brief is that on 14.03.1982 at about 11.30 p.m., Ramesh Chandra Jain lodged a FIR at Case Crime No. 37 of 1982 at Police Station Khergrh, District Mainpuri, with the allegations that "last night at about 8.30 p.m. when sitting on the plateform by the side of his shop, he was talking with Vidyaram, Raghubir Dayal and Jagdish Singh of his village as well as Durbin Singh of village Bhoophal Ka Nagla and a gas petromax was alighted there, suddenly 8-10 miscreants armed with guns, pistols and axe arrived there and taken all of them to the courtyard of his house, asked for the ornaments and started loot apart from committing Maar-Peet; that they poured kerosene on his son Rajesh and put him to fire; that upon alarm when several people from village arrived and called the miscreants, they fled away by making fires, pellets of which hit Mohan Singh; that the culprits taken away his single barrel licensed gun no. 09866 and 50 cartridges apart from other goods, of which list will be submitted by him later on."

5. The FIR was lodged against total 8-10 culprits including five named in the FIR. Upon investigation and identification parade, charge-sheet was submitted against three accused Munna, Chandrapal and Ram Singh. After recording prosection evidence, statements of accused persons under Section 313 Cr.P.C. and hearing the parties counsel, learned Special Judge, Mainpuri by impugned judgment and order acquitted Chandrapal and convicted Ram Singh and Munna for the offences under Section 395 IPC and 397 IPC and sentenced each of them with rigorous imprisonment for a period of 8 years.

6. Feeling aggrieved accused Ram Singh preferred Criminal Appeal No. 3152 of 1982 and Munna preferred Criminal Appeal No. 3195 of 1982.

7. Learned counsel for the appellants contended that there are material contradictions in the statements of prosecution witnesses; that no recovery memo of the lantern inside the courtyard or gas petromax at the platform near the shop, was prepared and no recovery of looted articles was made from any of the appellants; that the accused-appellant Munna was previously known to first informant and there was some money dispute between him and first informant, who was carrying on money lending business; that he has been falsely implicated due to above enmity; that the co-accused Chandrapal was falsely implicated due to his enmity with brother-in-law of the first informant and due to this enmity he has also been falsely implicated; that the appellant Munna Lal may not be supposed to commit the incident of dacoity without concealing his identity as he was previously known to the first informant; that the trial Court acted wrongly and incorrectly in relying on the untruthful and interested evidence of prosecution witnesses; that the conviction of appellants is liable to be set aside and they are liable to be acquitted.

8. Lastly, the learned counsel for the appellant contended that at the time of their statements under Section 313 Cr.P.C. on 13.10.1982 accused-appellant Munna was 40 years old and Ram singh was 35 years old and now they have attained age of 75 years and 70 years respectively, so even in case the Court finds that their conviction is liable to be upheld, the sentence may be reduced, considering their old age.

9. Per contra, learned AGA supported the impugned judgment and order of conviction and contended that the appellant Munna was named in FIR and appellant Ram Singh was correctly identified by all the persons in the identification parade; that there was no reason for false implication of the two appellants else name of Ram Singh would also have been mentioned in FIR at the time of lodging; that the appeal has been filed with false and incorrect allegations and is liable to be dismissed.

10. Upon hearing the parties counsel and perusal of record paper book as well as lower Court record summoned in the appeal, I find that as per averments made in FIR 8-10 persons committed the incident in question on 14.03.1982 at 8:30 p.m. and out of the miscreants Edal Singh and Munna Jatav of village Dhunpai, Pati and Tej Singh of village Halpura and Satyabhan of village Husainpur were named with claim that others will be identified if brought before him, as they were seen in the light of gas petromax. In the incident Rajesh, son of first informant has sustained burn injuries, the first informant and his brother-in-law Chhakan Lal have sustained lathi injuries and Mohan Lal has sustained pellet injuries. It is contended in FIR that his single barrel licensed gun and 50 cartridges were looted apart from other artilcles of which list could be provided later. Undisputedly, no recovery of any looted articles or the licensed gun or cartridges is alleged to have been made from any of the accused. The first informant in his statement on oath before the Court as PW-1 or any other prosecution witness or Investigating Officer has not made any whisper about any such list having been provided by the first informant. In their statements on oath first informant PW-1, his son and injured witness Rajesh PW-2, and the eye-witness Jagdish PW-3 have not given any details or description of allegedly looted articles and moreover, none of them in their statements on oath have even stated about loot of licensed gun and cartridges of first informant. They have stated only of loot of gas petromax which was allegedly taken away by culprits. It is also pertinent to mention that in his statement on oath as PW-1, first informant has not dared to state about loot of his single barrel licensed gun or cartridges.

11. It is pertinent to mention that no memo of recovery of gas petromax which is alleged to have been alighted at the platform adjacent to the shop, or of lantern inside the house in which PW-2, Rajesh was allegedly studying, has been prepared by the Investigating Officer though subsequently during evidence gas petromax is stated to be taken by miscreants, of which there is no whisper in FIR. There is no mention of lantern inside the courtyard of the house in FIR however PW-1 has stated that he had shown the lantern to the I.O. but I.O. has stated that no lantern was shown to him. The improvement made by the PW-1, in his statement that the miscreants also taken away the petromax with them, is highly improbable as the miscreants are not supposed to go with the light after committing the incident.

12. As per evidence on record, Rajesh Kumar, Chhakkan Lal Jain, first informant Ramesh Chandra and Mohan Singh four persons sustained injuries in the incident out of which Rajesh Kumar, PW-2, is son of first informant. As per his injury report Exhibit-A9, he sustained 30% burns of 1st to 3rd degree on several parts of body and smell of kerosene oil was coming from his clothes though he was fully conscious at the time of examination of his injuries at 11:55 p.m. on 14.03.1982 and he was hospitalized. The injuries of Chhakkan Lal Jain, the brother-in-law of first informant and of first informant Ramesh Chandra Jain as per their injury reports Exhibits-A10 & A11, Chhakkan Lal sustained lacerated wounds and contusions which were simple in nature, except injury no. 2, traumatic swelling on left forearm which was kept under observation and rest four injuries were found to be simple in nature. The examination of injuries of first informant Ram Chandra Jain has been conducted on next day and all the injuries of first informant have been mentioned as simple in nature in his injury report Exhibit-A10. The injuries of Mohan Singh, as per his injury report Exhibit-A12 are four pellet injuries over left arm etc. out of which X-ray was advised of injury no. 1 and 2, while rest were mentioned as simple in nature.

13. It is pertinent to mention that there is no supplementary report of any of the injured on record to show that any of the injury of any of the injured was grievous in nature, except the burn injuries of Rajesh Kumar, PW-2. However, there is no evidence on record to show that for how long period Rajesh Kumar remained hospitalized for treatment of above burn injuries.

14. It is proved form evidence on record that the village of Munna was at a distance of about 3 Kms. from the place of occurrence and of Ram Singh was at a distance of about 5-6 Kms. It is also proved from the evidence on record that the first informant was carrying on money lending business and there was some money dispute between accused-appellant Munna and first informant PW-1, who has stated in Para 12 of his statement that Munna used to purchase items from his shop and there were money transactions.

15. As far as the involvement of accused-appellant Ram singh is concerned he is not named in FIR and has been chargesheeted after being identified correctly in the identification parade on 24.05.1982, after his arrest on 03.05.1982. Learned counsel for the appellant contended that identification parade was conducted after inordinate delay and the possibility of accused having been shown to witnesses before the identification parade may not be ruled out.

16. It is pertinent to mention that all the four witnesses have correctly identified Ram Singh in the identification parade which was conducted in 21 days from his arrest. As per prosecution case the gas petromax was alighted at the place of occurrence which produces sufficient light to identify a person. It is noteworthy that all the four persons who correctly identified Ram Singh are injured witnesses and so correct identification by each of them, may not be doubted, in absence of any evidence to the effect that after arrest, he was shown to witnesses. PW-1 and PW-2 have denied the suggestion of accused-appellant Ram Singh that he was shown to them before identification parade and accused have denied to put any such suggestion to PW-5, the Investigating Officer.

17. PW-1, the first informant has stated that all the miscreants were with open faces and all of them were seen by him while his son Rajesh Kumar has stated that more than four miscreants were covering their faces with dhata and PW-3, Jagdish, an eye-witness has stated that only one of the miscreants was covering his face and others were open faces. In committing incidents of dacoity, generally, in natural way the miscreants do conceal their identity by covering face, particularly when they belong to nearby area, and no one wants to be identified, except in case the miscreant is a dreaded dacoit in which case, in order to create terror (so that no one may gather courage to give evidence) keeps face open. The above discrepanices in the statements of prosecution witnesses are not material enough, to disbelieve them.

18. In view of the evidence on record and discussions made above, I find that the prosecution has failed to prove the committal of incident of dacoity at the house/shop of first informant or loot of his licenced gun, cartridges and other goods or ornaments. I find that on account of money dispute accused-appellants Munna Lal with his associates committed the incident in question in which kerosene burn injuries were caused to Rajesh, the son of first informant apart from which first informant and his brother-in-law, Chhakkan Lal sustained lathi injuries while Mohan Lal sustained pellet injuries from distant gunshot. Enmity of accused-appellant with first informant is not disputed and joining of accused-appellant Ram Singh with Munna Lal may not be ruled out. I find that the first informant has exaggerated the incident of Maar-Peet and causing of burn injuries by accused- appellants Munna Lal, Ram Singh and their associates, by stating it an incident of dacoity wherein his single barrel licensed gun, 50 cartridges etc and other articles were allegedly looted.

19. I am of the considered view that the trial Court has acted wrongly in not appreciating the evidence on record correctly and instead of holding the accused-appellant guilty for the offence under Section 326 IPC has, acted wrongly in convicting them for the offences under Sections 395 and 397 IPC and sentencing them with rigorous imprisonment for a period of eight years. The impugned judgment and order of conviction under Section 395 and 397 IPC liable to be set aside and appeal is liable to be allowed accordingly. The appellants are held guilty of offence under Section 326 IPC and are liable to be convicted for the same by altering their conviction.

20. It is pertinent to mention that the appellants Munna and Ram Singh were aged about 40 years and 35 years at the time of incident at 14.03.1982 and when their statements under Section 313 Cr.P.C. were recorded on 23.10.1982. Due to laps of about 36 years since then they have attained the ages of 76 years and 71 years, respectively. No other criminal antecedents of the appellants are on record and they are alleged to have remained in custody for few months during their trial as well as after conviction on 11.11.1982 till release on bail in furtherance of bail orders dated 17.12.1982 and 22.12.1982, respectively, passed in these appeals.

21. Considering that (i) burn injuries of Rajesh were 30% and of other injured persons were not grievous, (ii) 36 years have passed since incident, and (iii) the offence under Section 326 IPC which is punishable with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and fine, I find that sentencing each of the appellants with rigorous imprisonment for a period already undergone with imposition of fine of Rs. 5,000/- would be adequate punishment to meet, the ends of justice.

22. Accordingly the appeals are allowed. The impugned judgment and order of conviction, convicting the appellants for the offences under Sections 395 and 397 IPC and sentencing each of them with rigorous imprisonment for a period of eight years, is set aside. The appellants are held guilty and are convicted for the offences under Section 326 IPC, their conviction is accordingly allowed to Section 326 IPC. Each of them is sentenced with rigorous imprisonment for a period already undergone and fine of Rs. 5,000/- to be deposited within three months, under Section 326 IPC, and in case of default in payment of fine each of the defaulter will undergo simple imprisonment for a period of six months.

23. The appellants are on bail. Their bail bonds are cancelled and sureties are discharged. They need not surrender unless wanted in some other case or any of them makes default in payment of fine.

24. Office is directed to send the lower Court record back to Court below along with a copy of judgment for ascertaining necessary compliance, if any, by the trial Court.

Order Date :- 31.08.2018

Kamar