Rajjan And Another vs State Of U.P.
2019 Latest Caselaw 2263 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 1
 

 
Case :- CRIMINAL APPEAL No. - 79 of 1983
 

 
Appellant :- Rajjan And Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- G.P. Dixit,Dileep Kumar Shukla,Katyayini (A.C.),Mahendra Pratap Singh,Mohit Singh
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

(Delivered by Hon'ble Dinesh Kumar Singh-I,J.)

1. Heard Sri Mohit Singh and Sri Mahendra Pratap Singh, learned counsel for the appellants, Sri Pawan Shukla, learned A.G.A. for the State and perused the record.

2. This Criminal Appeal has been preferred against the judgement and order dated 23.10.1982 passed by IV Additional Sessions Judge, Fatehpur in S.T. No. 604 of 1981 (State Vs. Rajjan and one another) whereby the accused appellants, Rajjan and Rambali have been convicted and sentenced under Section 396 I.P.C. with imprisonment for life each.

3. The prosecution case as disclosed in the F.I.R. is that on 26.05.1981, Surendra Nath Bajpayee, informant (P.W.1) was sitting on chabutra outside the house of his uncle, Beni Madhav with brother-in-law (Behnoi) Ram Bhawan in the light of laltern which was hanging outside the house at about 8.00 p.m., right then 10-15 miscreants came from the eastern side, out of whom two remained outside his house and three ascended the roof of his house, all of them were having guns, while rest of the miscreants entered from the door of house which was open and thereafter, they started looting and beating the ladies. The miscreants who were out of the house and those who were on the roof were making fires and were exhorting that if anyone came near them, he would be shot dead. All the miscreants had carried torches with them which were sometimes lighted and some times switched off. The miscreants who were out of the house and those on the roof were moving inside and outside the house and were some-times coming down and some-times ascending the roof. After having heard the sound of fire, Matadeen S/o Sudarshan (P.W.5), Ram Autar S/o Rahimal, Ram Mohan S/o Vishwanath Shukla, Lavkush S/o Chandra Bhushan Bajpai, Dulare S/o Dokhi Gurai, Shiv Narayan S/o Shiv Bhajan Bajpai, Sukhdev Prasad S/o Mathura Prasad Bajpai came there armed with 'lathi', 'danda' and having torches and Suraj Bhan and Anant Ram also came there firing with licensed guns and Lavkush set on fire 'kadiyan' which were kept outside the village. After hearing the commotion and sound of fire, the miscreants fled towards south after taking one licensed gun along with 'patta' which was kept in Northern Kothari and the articles which were kept in Southern Kothari in 'kevaria' which included 'sutia' of gold weighing five tolas, gold chain weighing two tolas 'ferwa' of gold weighing one tola, 'mohar' of gold weighing six tolas, 'kargata' of silver weighing about one kg., two bars of 'bahura' weighing three pau ( 750 grams), 'gulsan patti' of silver weighing 1 1/2 pau, one pair of bangles of silver, weighing about 1/2 pau, Rs. 45,000/- in cash. All the miscreants had covered their faces with 'safi' and because their safi was slipping while the culprits were entering and coming out several times from the house, the inmates of house (ladies etc.) and witnesses recognized one of them who had covered his face with 'safi', as Rajjan S/o Bhagwata who belonged to the same village, while rest of the miscreants/decoits were well recognized in the light of laltern and burning 'kadiyan'. All of them were of average height and were wearing kurta, bell-bottus, shirt, luga-kurta, half-pant, banyan and were speaking local dialect. His mother was beaten with 'lathi', 'danda' by them by which she was in critical condition and while she was being taken on bullock-cart for the treatment, she died on the way within one hour. Leaving the dead body in the village, he had come to lodge the report.

4. On the above report, Exhibit Ka-1, Case Crime No. 115 of 1981 was registered under Section 396 I.P.C. on 28.05.1981 at 6.00 a.m. at P.S. Ghazipur, District Fatehpur against Rajjan S/o Bhagwata R/o Pamrauli, P.S. Ghazipur and 10-11 unknown miscreants by Jeet Bahadur Singh who was Head Moharrir at P.S. Ghazipur on 28.05.1981. He prepared chick F.I.R. on the basis of said written report which is Exhibit Ka-4 and made entry of said case in G.D. no.5, Exhibit Ka-5. He also prepared special report of this case to be sent to the higher officials and made its entry in G.D. at report no. 12, time 6:45 hours which is Exhibit Ka-6. From the place of incident, Constable Jawahar Lal came on the same day with four bundles in sealed condition at about 6.15 p.m. which was deposited at the P.S. and its entry was made in G.D. at report no. 21, time 18.15 hours, Exhibit Ka-7 in his hand-writing on 30.05.1981. Constable Md. Naseer deposited one sealed 'sabri' (weapon) which was used in causing injury to the deceased and which is supposed to be a sharp-edged weapon, a sealed 'potli' which was given later on to the doctor who conducted the post-mortem, the entry of which was made at report no. 2 in G.D. which is Exhibit Ka-8. The Investigation of this case was assigned to the I.O. who has not been examined in this case who visited the spot on 28.05.1981 at about 10.00 a.m. and prepared panchayatnama, Exhibit Ka-11 and, thereafter, prepared 'photo-nash', Exhibit Ka-12 indicating therein the injuries received by the deceased. Thereafter, he prepared the police form-13, challan-lash, Exhibit Ka-14, Chitthi R.I., Exhibit Ka-16, Chitthi C.M.O., Exhibit Ka-15 and, thereafter delivered the dead body to the Constable Md. Naseer and Chaukidar. According to the affidavit, Exhibit Ka-28, Constable Jawahar Lal brought four bundles of the articles of this case to the P.S. on 28.05.1981 and submitted them there. Constable Jeet Bahadur Singh (moharrir), P.W.3 received it and recorded its entry in G.D., Exhibit Ka-7 at 8:15 hours at serial no. 21. According to the Exhibits Ka-30, Ka-31 and Ka-32, the I.O.  thereafter made efforts to arrest the accused under Sections 82 and 83 Cr.P.C. The Constable and 'chaukidar' brought the dead body to the mortuary and after getting police form no. 33, Exhibit Ka-17 from R.I. submitted the same before Medical Officer, Dr. Swatantra Singh, P.W. 2 on 29.05.1981 and after identification of the dead body, post-mortem was conducted at 2.00 p.m. by the said doctor who found the following nine ante-mortem injuries upon dead body.

(i) Contusion left side neck and skull, 5 inches X 3 inches.

(ii) Contusion left fore arm and hand dorsal aspect 10 inches X 3 inches.

(iii) Contusion left thigh posterior aspect lower half 5 inches X 3 inches.

(iv) Lacerated wound 3/4 inches X 1/4 inches bone deep right leg outer aspect, upper 1/3 with contusion all around, in an area of 10 inches X 5 inches.

(v) Contusion medial aspect right thigh 2 inches X 1 inch middle 1/3.

(vi) Multiple contusion over back in an area of 14 X 12 inches.

(vii) Contusion 6 inches X 3 inches over sacrum gluteal region.

(8) Contusion front of neck and right side of neck and right shoulder 8 inches X 2 1/2 inches.

(9) Vagina lacerated having iron rod (sabri) of 3 X 4 inches diameter and 23 inches length with one end  flat passing into uterus and upward in the abdomen.

5. Out of the said injuries, seven were thush contusion and two were lacerated wounds. He also found an iron rod measuring 3 X 4 inches diameter and 23 inches of length having been passed through uterus up to the stomach which was taken out and put in a sealed cover and delivered it to the Constable and Chaukidar who had brought the dead body.

6. Upon internal examination, he found peritoneum lacerated perforated empty, small intestine lacerated and perforated at various places, empty large intestine lacerated perforated generation organ lacerated and perforated and empty.  He also found a dhoti and dat-khundni tied with a thread upon the dead body. He put these articles in sealed condition and delivered the same in a packet to the Constable who had brought the dead body and prepared the post-mortem report, Exhibit Ka-2. Deceased, Smt. Anand Kumari could have died on 27.05.1981 at about 8-9 p.m. and also found that the injuries were caused by 'sabri' (material Exhibit Ka-1) which itself was sufficient to cause he death in ordinary course. He also found that blood was not oozing out from the injuries of the dead body when he conducted the post-mortem and all the injuries were caused by blunt object. Doctor was not in a position to tell about the duration of the ante-mortem injuries of the victim and stated that instantaneous death was possible on account of such injuries. He also said that death could have happened after some time and he also expressed opinion that deceased could also have remained alive for four to six hours after receiving the injuries.

7. Constable Md. Nasir brought the 'sabri' on 30.05.1981 in a sealed cover and submitted the same in police station which was received there by Constable Prem Shankar Dubey who made its entry in G.D., Exhibit Ka-8 at serial no. 2.

8. On 17.07.1981, Constable Kailash Nath, P.W.6 had gone with Station Officer, Sri S.N. Pathak in search of certain wanted accused and upon Information of mukhbir (informer), they arrested accused Ram Bali at 10.00 a.m. at the minor culvert in village Muttaur under the jurisdiction of P.S. Lalauli and a country made pistol, cartridges and also police uniform were recovered from him. Upon his confession with regard to complicity in various crimes, he was made 'baparda' and brought to village, Kakhari. On 18.07.1981, he was brought to the police station Lalauli, baparda and its entry was made in G.D., Exhibit Ka-9 at Serial No. 17 at 13:30 hours by Head Moharrir, Sone Lal Shukla. On the same day, he was taken out from 'thana' and sent to district jail, Fatehpur though Constable Raees Ahmed at 15.00 hours after recording an entry in G.D., Exhibit Ka-10 at serial no. 19. It was further stated that during the period since he was arrested till the time when he was lodged in district jail, he was kept 'baparda' with the aid of orange cover 'Angocha'. He was then put to test identification on 26.07.1981. The Executive Magistrate, Sri Amitabh has conducted his identification parade with nine witnesses including the complainant. His uncle, Beni Madhav participated therein. According to the identification memo, Exhibit Ka-24 out of the nine persons, the complainant Surendra Nath Bajpai did not identify the accused and committed mistakes in two rounds. The uncle of the complainant, Beni Madhav and each of the witnesses, Lav Kush and Madadeen identified the accused correctly on the first round and each of them committed mistake in the identification of the accused in the second round. Anant Ram committed mistake in the first round and even in the second round, he did not identify the accused. Dulare committed mistakes in both the rounds. Shiv Narayan, Sukhdev, Ram Manohar did not identify the accused in either of the two rounds. The I.O. after having concluded investigation, submitted charge-sheet against accused, Rajjan, Exhibit Ka-25 on 24.03.1981 and against accused, Rambali, Exhibit Ka-26 on 13.10.1981 and on the basis of evidence on record, both the accused were challaned under Section 396 I.P.C. on 4.08.1982 to which they pleaded not guilty and claimed to be tried.

9. In order to prove its case, the prosecution examined Surendra Nath Bajpai as P.W.1, Dr. Swatantra Singh as P.W.2, Jeet Bahadur Singh as P.W.3, Beni Madhav as P.W.4, Matadeen as P.W.5, Kailash Nath as P.W.6. It appears from the record that Investigation Officer was not examined in this case but on account of genuineness of all the challani papers, the same were exhibited by the trial court.

10. Both the accused have stated under Section 313 Cr.P.C. that evidence which has been collected by Investigating Officer is false; no recovery was made from them and Rambali has not stated anything in defence, however, the other accused, Rajjan has stated that because Goat of Raj Pal Singh was killed in which case Surendra had implicated him and he had to get out of it after paying Rs. 500/- to Daroga Ji and because of this enmity, he was implicated.

11. After apprehension of evidence and in the light of argument made from either side, the learned trial court has held both the accused appellants guilty and has awarded punishment under the sections mentioned above.

12. We have to analyse the evidence on record afresh and to see as to whether the apprehension of evidence made by the trial court is in accordance with law or does the same suffer from any infirmity and requires interference by us in the light of arguments made by the learned counsel for the appellants as well as learned A.G.A.

13. Learned counsel for the appellants has vehemently argued that names of accused, Ram Bali has emerged after 50 days of the occurrence which took place on 27.05.1981 at about 8.00 a.m. as per the F.I.R. which was lodged on the next day i.e. 28.05.1981 at 8.00 a.m. after much delay and no tenable reason has been mentioned for not lodging the same on same night when the occurrence happened. The reason given that because of fear, the informant did not go out to lodge F.I.R., the same night cannot be acceptable. It is further argued that identification of the accused, Rajjan is stated to have been made because of opening of 'dhata' occasionally due to his movement inside and outside of home which is unbelievable. It was also argued that Exhibit Ka-19, which is recovery memo of the seven empty cartridges recovered from outside of the house of the informant which were left there by the miscreants while Exhibit Ka-22 which is 'supurdaginama' of the empty cartridges indicates that Anant Ram S/o of Ram Narayan and Surya Bhan S/o Daya Shankar had licensed guns. Surya Bhan had D.B.B.L. gun who had made five fire shots and Anant Ram had S.B.B.L. gun who had made 12 fires indicates that in all, 17 fires were made, hence 17 fires which are alleged to have been fired upon villagers to scare away the miscreants, should have been found on the spot which is not the case here and it would, therefore be inferred that the occurrence took place in some other manner and at some other time and not at the time and manner as stated by the prosecution. In-fact the said incident appears to have happened in night at unknown time when none had seen it but subsequently when it had happened, the witnesses have taken the names of the accused appellants just to implicate them despite the fact that as per the version of prosecution, there were about 12 miscreants who had committed this offence and only two could be apprehended. It was also argued that in statement under Section 313 Cr.P.C of accused, Rajjan, he has stated that Raj Pal Sigh had killed a goat in which case, informant had implicated him and he had got out of it by paying bribe of Rs.500 to the I.O. and because of this enmity, he has been falsely implicated. This enmity does not appeal to reason as it is not very clear as to how it would reflect enmity between two sides. Further it is argued that the looted gun has not been recovered; F.I.R. is ante-timed because the same has been lodged after inquest having been conducted. There is no eye-witness of this occurrence. Had the P.W.1 and other witnesses were sitting at the place where they are shown to be present then they would have certainly resisted the accused but nothing of the sort had happened in this case which makes the presence of the witnesses doubtful on the scene of occurrence and lastly it was argued that the sentence is too excessive as accused Rajjan has already been in jail for about 10 years, therefore, the accused should be released on undergone sentence.

14. On the other hand, learned A.G.A. has vehemently opposed the arguments made by the learned counsel for the appellants stating that the conviction made by trial court is absolutely in accordance with law on the basis of the evidence which has come on record. There is no infirmity in appreciation of evidence made by the trial court. It is proved by prosecution beyond doubt that the present accused appellants were involved in giving effect to this occurrence along with their ten other companions at about 8:00 p.m. in the night of 26.05.1981 and they were seen by the three eye-witnesses who were examined by the prosecution. In respect to the accused, Rambali, it is also argued that in test identification parade, he was partly identified by some witnesses, therefore, taking into account the gruesomeness of the occurrence which has taken place, the appeal deserves to be rejected.

15. To appreciate the evidence on record, it would be appropriate to cite here the relevant portion of the same which are as follows.

16. P.W.1, Surendra Nath Pandey, informant has stated in examination-in-chief that on 27.05.1981, decoity took place in his house at 8:00 p.m. when he was sitting on 'chabutra' with his uncle Beni Madhav along with his brother-in-law, Ram Bhawan. His uncle, Beni Madhav and various persons who were sitting there and were talking to each other and there was one 'laltern' also hanging there in the northern side from the door. At that time, the door of his house was open. At the time of occurrence, his children and ladies were sitting inside the house and were cooking food and inside the house also, a laltern was burning. From the passage going by the side of Dalare Murai, from the eastern side about 12 decoits entered his house, two decoits out of them were having guns who stopped at the door and three miscreants having guns, ascended the roof of his house, rest of the decoits went inside his house. All of them were having torches which were being lighted intermittently. These decoits had broken the lock of the room which was situated in the northern side of house and out of it, his gun, cartridges in belt and copy of license were taken away and, thereafter, they had broken the almirah which was located at the southern room and out of it, jewellery of gold and silver and cash of about Rs. 10,000/- to 12,000/- which were kept there was also taken away. Inside the house, his daughter, Rani and mother, Anand Kumari were beaten due to which, they received serious injuries. The decoits who were at the main door of the house were making fires and on the roof, the accused were taking rounds and were making fires too and were lighting the torches intermittently and were badly abusing and exhorting "aaiye jisko aana ho". One decoit who had covered his face was coming out and entering the house frequently. When the decoits came, he (P.W.1) shouted loudly and upon hearing his shout, the villagers also reached there. Villagers i.e. Ram Manohar, Dulare, Matadeen, Ram Autar and Chaukidar came there and apart from them, Anant Raj, Suraj Bhan also came there with guns and both of them were making fires. The villagers were also having torches with them and they lighted the same towards the miscreants. The decoits continued to indulge in committing decoity for about one hour; his two kadiya (arhar ki lakdi) which were lying to the south of the house of Lavkush, were set on fire by which there was lot of light. These decoits had looted away the articles from his house and went away from there through southern passage which passed from the door of Beni Madhav.

17. He has further stated that he had seen the faces of the decoits, among them was included Rajjan whom he knew from before as he was resident of his village. Rest of the decoits were unknown. The decoits were identified in the light generated by burning 'kadiya' as well as in the light of torches and lantern. Rajjan had covered his face up to head and neck by 'safi' although his face was open. When the decoits fled away from the place of occurrence then he entered his house and saw that his mother was lying in court-yard in dishevelled condition and the lantern was burning. He stumbled upon his mother and then his mother whispered that Rajjan had inserted iron-rod in her vagina and she also gave information about the looted articles. The condition of her mother was very critical who was being taken in a bullock-cart to hospital and hardly 2-3 ferlong distance would have been travelled, she died, thereafter, he returned with his mother back to the temple in the village under the 'peepal' tree and because of fear of the miscreants, he stayed at home throughout the night. Next day, he got the report written by his nephew, Vimlesh and took the same to the police station, whatever he had dictated, was written by him and, thereafter, he had read it out to him, which is Exhibit Ka-1. The said report was given to Munshi at the police station, Ghazipur by him where his report was registered and a copy of the same was provided to him. I.O. was present there who recorded his statement and thereafter, the I.O. accompanied him to the village where panchayatnama of the dead body of his mother was conducted and place of incident was also inspected. The empty cartridges which were fired upon the miscreants were also found there. The I.O. had seen the laltern and the torches and after having prepared their fard, returned the same.

18. In cross-examination, this witness has stated that when the decoits came there and entered his house at that time, he was sitting at chabutra along with three to four persons who started shouting and out of them, one or two persons went from there in order to call other persons. After decoity he, along with his uncle and others went inside the house. At the time of incident, Rajjan was having sabri, who some-times was going inside the house and some-times was coming out of the house and at that time. He along with other witnesses was looking the incident from behind the pillar which was on the chabutra of his uncle and from there, Rajjan was just 15 to 20 paces away. Only Rajjan had covered his face by safi and none else was having 'dhata' (cloth to cover face). The 'dhata' of Rajjan had opened once when he came out and because of that, he was identified and prior to that also, he was identified.

19. Further he has stated that when he went to the police station with a written report, at that time, it must have been around 7:00 to 8:00 a.m. In the night because of fear, he did not go to the police station and had gone there only in the morning. His statement was recorded by the I.O. at the police station itself. He had stated to the I.O. that as soon as he reached Fatehpur- Ghazipur road about one hour after the occurrence, her mother died and that he had left her dead body in the village and had come to lodge the F.I.R., this statement was made by him at the police station.

20. Further he has stated that when the miscreants came, they came slowly and did not stop at the door of Matadeen and ran towards his house. From that place, the door of Matadeen where he, this witness was sitting with others, was about 15-20 paces. Place of incident was inspected by the I.O. at his home. His house was located at a distance of 4 to 6 paces from the house of Matadeen and apart from him, Beni Madhav and other villagers were sitting there and all of them had seen the decoits. All the villagers who were sitting there had very well recognized accused Rajjan. Accused Rambali was not known to him prior to the incident. He could be known only since the time of occurrence. Inside jail, he could not be recognized because of number of small chippi (chippi is small piece of paper which is used for concealing the prominent marks of identification while conducting the identification parade). He has stated it to be wrong that accused were not involved in decoity. Accused Rajjan belonged to his village and it is also wrong to say that because of enmity, he was falsely implicating him as there was no enmity as such.

21. P.W.4, Beni Madhav who is uncle of the informant has stated in examination-in-chief that about one year three months ago, decoity had taken place in the house of Surendra Bajpai (P.W.1) of his village which was month of summer at about 800 p.m. At that time, he (P.W.4) was sitting outside his house beneath Chappar on chabootra and near him, were sitting Ram Bhawan, Surendra and two-three other persons and were talking to each other in the light of laltern which was hanging by a peg. A laltern was also hanging by the peg in front of the house of Surendra. About 10-12 persons had come from the eastern side to the house of Surendra and reached the door of his house out of whom, three ascended the 'atari' who were having guns and two out of them who were also having guns, remained outside the door and remaining accused went inside the house. All of them were having torches and these decoits started looting property in the house and were firing and at the same time were exhorting that 'agar koi aaya to goli maar denge'. We started making hue and cry at our door and after hearing the sound of fire, the villagers assembled there, out of whom some assembled near the house of Surendra towards north of it and some towards east of it. Suraj Bhan from the north and Anant Ram from the east had made fires. The villagers also had batteries (torches) which were lighted by them towards the decoits. The decoits who were inside the house were coming out at times; south of the house of Lavkush, there was a pile of 'kadiya' which were set on fire by Lavkush which resulted in lot of light there like the light which happens in 'holi dahan' in which people could be recognized. Decoits had made loot for about one hour and, thereafter, they fled towards south of the house of Surendra via passage going by the P.W.4's house. The faces of decoits were well recognized by him in the light of above things i.e. lanterns, the burning of 'kadia' and the torches. One, out of decoits i.e. Rajjan was known to him since before who was resident of Kamrauli. When decoits came out then he saw them and when they entered the house then they were seen and in the meantime those who were coming out and going in, were also seen. Rest of the decoits apart from Rajjan were not known to him. After fleeing away of decoits, he went inside the house of Surendra. The decoits had caused injuries to mother of Surendra and his daughter. The maximum injuries were caused to the mother of Surendra who was sent to the hospital but hardly two to three furlong would have been travelled on bullock-cart, she died on way. Thereafter, the I.O. visited the place of incident, whom he narrated the incident and had shown his own laltern, regarding which memorandum was prepared by him. Further he has stated that for identification of decoits, he had gone to district jail, Fatehpur where he had identified one decoit who was seen for the first time at the place of incident by him and, thereafter when he was exposed to him in jail; in the meantime he had not seen him ever nor knew him from prior to the incident. The said decoit was present in Court today. This accused was touched by this witness in Court and further stated that he was identified by him in jail also and on being enquired, he disclosed his name to be Rambali.

22. In cross-examination, this witness has stated that first of all, he had seen Rajjan coming out of house and at that time, he was having 'safi' in his neck and cheeks. The witness tied his 'angocha' like a muffler and showed that the same was being worn by this accused but he stated that his face was open. Accused, Ram Bali was also tying something in his neck. Rest of the miscreants, four to five had tied something in their neck. They had covered their head up to their ears just as one would wear a muffler. Further he has stated that lot of face of Rambali was covered by 'safi' but was also visible. Rajjan was wearing 'safi' but his face was open, neck was open, eyes were open. His face was much more open. At that time, he could not understand that whether he was resident of Jamu or was Rambali (does not appear to make sense here). Surendra Bajpai, P.W.1 had gone next day in the morning of the incident to lodge report of the incident. The decoits had fled after having committed decoity and at least two hours thereafter, the mother of Surendra died. He had a licenced gun. He is aged about 68 years but his eyes are not weak; his teeth are pretty strong. He can see in the night at a great distance and wears spectacles only for reading. He has denied the suggestion that because of being uncle of Surendra, he was giving false statement and also denied that Rambali and Rajjan were not involved in decoity and were being falsely implicated. He has no enmity with them and also denied the suggestion that because of these decoits wearing 'dhata', they could not be recognized by him.

23. P.W.5, Matadeen who is of the clan of the informant has stated that about one year three months ago in the summer season, at about 8 p.m. when he was sitting at his door with lantern burning there at his chaupal, from the eastern side, 10-12 miscreants passed by the side of his door and went to the door of Surendra (P.W.1) where a laltern was burning. Three, out of them ascended the ataria of Surendra with guns and five to six went inside his house and two were guarding at the entrance door with guns. All these decoits started beating the inmates inside and making fires. He after taking 'lathi' and torch in his hand shouted that decoity was being committed at the house of Surendra whereon villagers assembled there. Out of them, some were having 'lathi', some were having guns and some were having torches. Some of the villagers were towards north of the house of Surendra near the house of Shiv Sagar and some at the eastern side had assembled near his house. Anant Ram and Suraj Bhan had made fire and villagers were lighting their torches. The decoits were making fires from the roof; by the lighting of torches, there was lot of light as would be there when one would light gas. Decoits were going inside and coming outside from the house frequently. To the south of the house of Lavkush, 'Kadiya' were burning which also emitted light. Decoits made loot for about one hour and after having collected the looted material (property), they came out of the house and fled towards south. The faces of the decoits were recognized by him in the aforesaid light. At the door of Beni Madhav, lartern was also burning. He knew Rajjan from before who was resident of his village. When he came with the decoits, he was seen and when he came out of house then also he was seen. Rest of the decoits were unknown persons. His (P.W.5) house is located towards east of the house of Surendra and after the passage, the exit of his house is towards north and, thereafter, there is passage which goes from east to west up to the house of Surendra. The decoits came from this route only. Further he stated that I.O. had come the next day whom he stated about the occurrence and had shown him the battery (torch), memo of which was prepared by the I.O. He had gone for the identification for the unknown decoits to the district jail, Fatehpur out of whom one decoit was identified by him which was not seen by him earlier ever and the said decoit was present today in the Court who was recognized by touching in the court room and named him as Ram Bali. Further he stated that Surendra was sent for the treatment of his mother but she died on the way and then she was brought back.

24. This witness in cross-examination has stated that he is 70 years' of age and is from the family of the Surendra (informant). He had seen accused, Rajjan at the time when he was committing dacoity. When miscreants passed by the side of his door, some of them had covered their faces by cloth, some by muffler but faces of most of them were covered. During the time when decoity was being committed, Rajjan was wearing muffler like angocha but accused, Ram Bali had not covered his face.

25. He further stated that due to fear in the night, Surendra had not gone for lodging the report but had gone in the morning. None of the miscreants was concealing his face. He stated it to be wrong that the person who was identified by him in jail had concealed his whole face and also stated it to be wrong that neither he had seen Rajjan nor Rambali and was making false statement and also that they were not involved in this occurrence and were implicated due to enmity.

26. P.W.6, Constable Kailash Nath has stated in examination-in-chief, on 17.07.1979 that he was posted as constable at Lalauli police station, on that day, S.H.O., S.N. Pathak had proceeded in search of the wanted accused. On information of informer that accused Rambali could be arrested at 10.00 a.m. in village Muttaur where he was arrested and pistol, cartridges as well as police uniform were recovered from him. The accused admitted guilt and, thereafter, he was made baparda and in anticipation that other accused would also be arrested along with articles which were recovered, the accused was taken to various places in village Kokhri under jurisdiction of P.S. Khaga and Lakhanpur, hamlet of Enjhi under the jurisdiction of P.S., Asothar and also Laxmanpur under the jurisdiction of P.S., Jafarganj and raids were made. The accused was lodged beparda at P.S. Lalauli, the entry of which was made in the G.D. at report no. 17 at 13:30 hours by H.M. Sone Lal Shukla with whose hand-writing and signature P.W.6 is conversant and has proved the said G.D. as Exhibit Ka-9. Further this witness has stated that on 18.07.2008 at 15:00 hours in the afternoon, accused Rambali was taken out of the hawalat in baparda condition and was handed over to the constable Raees Ahmed for being taken to district jail, Fatehpur regarding which entry is made in G.D. at report no. 19 by Head Moharrir, Sone Lal Shukla which is Exhibit Ka-10. After arrest of this accused till he was lodged in jail, he was kept in baparda condition and no one was given opportunity to see him.

27. The prosecution's case is that on 26.8.1981 when the informant- Satyendra Bajpayee (son of the deceased) was sitting outside the house of his uncle Beni Madhav (PW-4) on Chabutra along with his brother-in-law (Bahnoi), at about 8:00 pm, ten to fifteen miscreants came from the eastern side, out of whom, two remained outside the door guarding the house and three ascended its roof and the remaining miscreants entered inside the house and looted away the property, details of which have been given in the F.I.R. and during the process they had beaten mother of the informant namely Smt. Anand Kumari badly by Lathi & Danda, who died about one hour of the incident when she was being taken for treatment. The name of accused-appellant Rajjan has been mentioned in the F.I.R., who is stated to be one of the miscreants, who was recognized by the informant as well as PW-4- Beni Madhav and PW-5 Matadin also, who belongs to their village although he was wearing a Safi, which was used by him in the form of Dhata covering his face but it is mentioned in the F.I.R. that the said Dhata was opening frequently on his movement and, therefore, in the light of torches and burning 'kadiyo' as well as lantern, which provided sufficient light accused were identified. It is also the prosecution case that rest of the accused were also seen but they did not belong to the village, hence out of the remaining accused, only one other accused namely Ram Bali was identified by the above witnesses who was involved in giving effect to this occurrence, regarding whom identification parade was also conducted.

28. We find that in site plan the informant (PW-1) is shown to be sitting outside the house of Beni Madhav at place 'A' when the miscreants came from the eastern side which is shown by arrow through the passage which was by the side of house of Matadin (PW-5) and, thereafter, two of the miscreants remained at places shown by 'E' and 'F' outside the house and three miscreants ascended the roof of the house which is shown by 'G' 'H' 'I' and rest of them were inside the house and looted property which included jewellery etc. By 'J' is shown the place where the mother of the deceased was sitting and by 'K' 'L' is shown the place where the wife of the informant and his daughter were cooking food. The place from where the informant has seen the accused going inside the house is about 15-20 paces.

29. PW-1 (informant) Surendra Bajpayee has stated that he had seen the faces of dacoits which included Rajjan whom he knew from before as he is resident of his village although other dacoits were outsiders, not known to him. The face of Rajjan was open although he was having Safi around his head up to ears and the incident of dacoity continued for about one hour and when the dacoits had fled from there, he went inside the house and he found that his mother was in dishevelled condition and he stumbled upon her and then in low tone his mother told him the name of Rajjan that he had inserted iron rod through her vagina and also told about the articles which were looted away. The condition of her mother was very delicate and, therefore, she was kept on a bullock cart for being taken to the hospital but even before she could be taken two to three furlong she succumbed to her injuries and, thereafter, she was brought back in the village kept under the Peepal tree near temple. During the night due to fear of dacoits, he remained in the village, then on the next day he dictated the report (Ext. Ka-1) to his nephew Vimlesh, which was given by him at the P.S. and the same was lodged.

30. A long cross-examination has been made by the defense side of this witness but we find consistency in the statement of this witness as regards him recognizing the accused Rajjan. The main ground on the basis of which we find that this accused was recognized by him is that not only he (accused) belonged to the same village but also the Dhata, which he was wearing, is stated to have opened many times on movement of this accused and, therefore, in the light of burning 'Kadiyo', lantern and the torches, he was well recognized by him. We find that it would not be difficult for this witness to recognize him, he being of the same village. As regards F.I.R. also, this witness has given justifiable reason that due to fear of miscreants, he did not go to lodge F.I.R. in the night and went to the P.S. in the morning, therefore, there is no delay in lodging the F.I.R. which includes the name of Rajjan as he was distinctly identified by him.

31. The learned A.G.A. has vehemently argued that the statement of this witness that when he entered the house after the occurrence and stumbled upon his mother, his mother told him the name of Rajjan, who had caused her injury no. 9, the said statement falls in the category of dying declaration of the said deceased before PW-1.

32. We have to take into consideration this aspect of the matter as to whether the deceased could have been in a position to make such statement to PW-1 because PW-1 has stated to have entered the house after the occurrence. In this regard, we have to rely upon the statement of PW-2 Dr. Swatantra Singh, who has conducted the post-mortem and has stated that Smt. Anand Kumari could have died on 27.5.1981 at about 8:00 to 9:00 pm by the injury which was caused to her by Sabri (iron rod), which was sufficient in ordinary course to cause her death. He has further stated that the deceased did not have any fire arm injury. At the time of post-mortem, blood was oozing out of the wounds, he could not tell the exact duration of the injuries although he has stated that it was possible that the deceased might have died immediately but it was also possible that she might have remained alive for about four to six hours after having received the said injuries. In all, there were nine injuries on the body of the deceased, which were all of blunt object. He had found seven contusions and two lacerated wounds and the iron road was found inserted through the uterus up to the stomach which was extricated and was handed over to the police.

33. We find from this statement that since opinion has come of the doctor that deceased could have remained alive for about four to six hours after the occurrence, there was plenty of chance for PW-1 to have been told by the deceased the name of accused Rajjan that he was involved in this incident and that the injury no. 9 was caused to the deceased by the said accused. We do not find any reason why the statement of PW-1 in this regard should be dis-believed if the same is read in conjunction with the statement of PW-2, hence the presence of this accused is established by the above statement of these two witnesses coupled with the name of this witness disclosed by the deceased herself.

34. The other eye-witness Beni Madhav (PW-4), who is uncle of the informant has also reiterated the same version which is given in the F.I.R. and has been stated by PW-1, who has stated that when the incident happened at about 8:00 pm, he was sitting outside his house under Chhappar on Chabutara with Ram Bhawan and Surendra Bajpayee (PW-1) along with two-three other persons. When the miscreants were committing dacoity, they were shouting that if anyone came forward he would be killed and were making fires and by hearing the sound of fire and the commotion, lot of villagers had assembled there near the place of incident and the said occurrence continued for about one hour. He had recognized the faces of dacoits in the light of lantern, 'Kadiyo' and the torches. Torches were being lighted intermittently by the accused. This witness has also stated that he knew Rajjan from before as he belonged to village Pamrauli. The rest of the miscreants were outsiders but they were recognized in the source of above light because they were coming out of the house and going inside frequently. The dacoits had caused serious injuries to the mother of the informant which was seen by him when dacoits had fled from there and when he entered inside the house, thereafter, he found the deceased in deeply injured condition. This witness has also stated that face of the accused Rajjan was open, he was wearing angaucha in the form of Muffler and his face was clearly visible, therefore, we find that despite searching and incisive cross-examination of this witness, there is consistency in the statement of this witness to the effect that he had recognized at least Rajjan, who was named in the F.I.R. and it is also established by this witness that when he reached the place of incident, the mother of the informant was alive in serious injured condition, therefore, as regards the accused Rajjan, we find that there is no reason to disbelieve the statement of this witness and the presence of this witness on the spot cannot be disbelieved.

35. Third eye-witness examined from the side of prosecution is Matadin (P.W.5), who is also a distant relative of the informant but that could not be treated to be a ground to disbelieve his statement. He has stated that at the time of incident, he was sitting outside the house at the door near Chaupal and had seen that ten to twelve miscreants had come from the eastern side and passed by the side of his door, who were all armed with fire arm weapons and two of them remained outside the house of the informant, while three ascended the Atariya and the remaining went inside the house and started looting the articles and were making firing. This witness had also rushed to the place of incident with torch and a Lathi and was shouting loudly that dacoity had taken place in the house of Surendra Bajpayee because of which villagers had assembled there, which included Anant and Surajbhan, who had made fires lighting their torches. This witness has clearly stated that he had identified the dacoits in the source of light, which is mentioned above in the statement of other eye-witnesses. Even this witness has stated that he knew Rajjan from before being resident of the same village, although rest of the miscreants were of different place whom he did not know but he had stated that he had gone for identifying one miscreant/dacoit in District Jail Fatehpur and identified Ram Bali.

36. In long cross-examination made by defence, nothing could be elicited so as to disbelieve his version that he had recognized the accused Rajjan. Although this witness has stated that no one was wearing muffler among the miscreants, when they were passing by the side of his door nor were any of them having Dhata, the said statement though is in conflict with the statement of above mentioned two eye-witnesses but we find that his testimony with respect to Rajjan should be believed that he had recognized him because he knew the said accused from before. Therefore, involvement of Rajjan is also found to have been proved by this witness in this occurrence.

37. In this case, identification parade is stated to have been conducted from the side of prosecution which is conducted by Executive Magistrate, Sri Amitabh but even his statement has not been recorded to prove the memorandum of identification although the genuineness of the same has been got accepted from the side of the defence and on that basis, the same has been accepted.

38. In this regard, we have to rely upon the following case laws:-

(i) Asharfi and another vs the State, AIR 1961 Allahabad 153, in which law relating to evidence of identification was explained and the liability of the 2 appellant was examined in a case under sections 396 IPC and it was held that the evidence against both the appellants was purely of personnel identification. In the jail 7 of the eye-witnesses of the crime identified Ashrfi, and 6 identified Ram Dhani. At Asharfi's parade none made any mistake except Sukh Lal (who was 50% correct) and in Ram Dhani's parade none made any mistake except Sheo Prasad (who was 75% correct). The slips of paper had been pasted on marks, but these were not such as to obscure the contours of the face. All the afore- mentioned witnesses repeated their identification before the trial court and stated on oath that they had seen these persons participating in the crime. They also swore that the persons they identified were totally strangers to them and had not been seen by them between the dacoity and the real parades. The available sources of light were highly satisfactory and witnesses had stationed themselves between, 8 and 15 paces from Gaya Prasad's house, hence the opportunity of making out the features of the miscreants was excellent. The defence of both the appellants was not found creditworthy and hence accepting the identification evidence against them the conviction was affirmed. It was argued in the light of this ruling that in the present case, the identification of the accused appellants was not beyond reasonable doubt as they could not have been identified in the night in the light of torches and moon and that there were plenty of opportunity to the witnesses to have seen the accused prior to their identification, as the procedure adopted was not aboveboard, hence no credit could be given to the identification of accused persons made by the witnesses.

(ii) Poshaki vs State, Laws (Allahabad) 1952 10 15, which is an appeal against the conviction under section 395 IPC and sec. 412 IPC, in a case of dacoity which took place in the intervening night of 8/09-08-1949 which is committed in the house of one Rewa Ram by 14 or 15 persons and ultimately 6 accused persons stood their trial before the Sessions Judge, who after trial acquitted 4/6 accused and convicted the 2 appellants who were arrested on 13/08/1949 from their residential village not far away from the scene of dacoity. The case rested on two kinds of evidence - one consisted of usual identification by witnesses and the other was the proof of his statement by the accused to the investigating officer which led to the discovery of a well which, in turn, yielded a box from which certain articles were recovered, which were identified at the trial to belong to the complainants. As regards the evidence of identification, Poshaki was identified by only 2 witnesses, Ganga Ram and Hetram. Ganga Ram made four mistakes and identified 3 correctly while Hetram made 4 mistakes and identified 4 correctly. The value of this identification was adjudged to be very poor and it was found to be very unsafe to rely on this identification and also there was found to be a long gap between the date of the dacoity and the identification parade. As regards other evidence against the appellants in respect to recovery of incriminating articles, it was held that from the statement of the witness it would appear that information in regard to the well and what was inside the well, was conveyed to the police, more or less, jointly by 2 appellants. There was a variation found in regard to which the 2 accused appellants first pointed out the well in the version recorded in Exhibit P 16 and the version given in court. The prosecution led evidence to prove the statement made by the accused presumably under Section 27, Evidence Act . On account of variation in the two versions, one recorded in Exhibit P 16 and the other is stated in court, the same was found to be a bit suspicious. It was held that Section 27 is required to be construed strictly. The use of the word ''person' in singular, in Section 27, is somewhat significant. The word was used in singular designedly because the joint statement of a number of persons, cannot be said to be an information received from any particular one of them. When a fact is discovered in consequence of information received from one of several persons charged with an offence, and when others give like information, it is impossible to treat the discovery as having been made from the information received from, each one of them. Ultimately the court did not find sufficient evidence for conviction of the appellants and allowed the appeal.

(iii) Subhash and Shiv Shankar vs State of U.P., (1987) 3 Supreme Court Cases 331 in which it was held that there was a long interval of nearly 4 months before the test identification parade was held and it was found to be difficult to accept that in spite of this interval of time the witnesses were able to have a clear image of the accused in their minds and identify him correctly at the identification parade. In absence of any descriptive particulars of the accused in the FIR or in the statements of witnesses during investigation, it was held to be not safe and proper to act upon the identification of the accused by the witnesses at the identification parade and hold that he was one of the assailants of the deceased.

(iv) Dularey vs the State, Laws (Allahabad) 1955 11 51, in which in an appeal against conviction under sections 395/397 IPC and 19 (f) Arms Act the judgment of the trial court was reversed holding that the identification of the accused which was held in District jail, Etawah was not creditworthy because the 5 witnesses who identified the appellant in the test identification parade, each of them committed 50% mistake during the identification.

39. It is apparent from the above that the Court has to be absolutely convinced that the procedure as laid down for test identification parade must be adhered to by the authority concerned to eliminate any chance of false implication that the accused who was put to identification parade was kept 'baparda' from time when they were arrested till they were put to identification proceedings so that no one could see them in between. There was no opportunity that he would have been shown to the persons identifying him. In this case, neither I.O. nor the officer who had conducted the said proceedings have been examined from the side of prosecution so as to help the Court form an opinion as to whether proceedings were conducted in fair manner or not because no cross-examination could be conducted in this regard from the side of defence, therefore, this Court has nothing before it in regard to reaching the conclusion whether the fair proceedings were adopted in conducting the said proceedings, however the witnesses who have come on record, they have stated that the accused, Rambali was identified by Beni Madhav and Matadeen in jail and identified the said accused i.e. Rambali as the person involved in the occurrence. We find that because of the whole procedure as laid down for identification parade whether the same was fairly conducted or not, was not proved beyond reasonable doubt in this case and when accused was not known to the witness from before, there could be huge possibility of mistake being committed in identification of this accused by then witness and, therefore, his false implication many not be ruled out.

40. From the above analysis, we come to the conclusion that the ground, which has been taken of enmity by the accused Rajjan for being falsely implicated in this case, does not stand to reason because whatever he has stated in that respect, is not clear in his statement under Section 313 Cr.P.C., therefore, we do not find established that there was any enmity of the complainant side with the accused Rajjan and, therefore, on the basis of eye-witnesses' account as narrated above, we come to the conclusion that he being resident of the same village, it was not difficult for the eye-witnesses to recognize him. There was sufficient source of light as mentioned above. The version of the learned counsel for the appellants is that none had seen this occurrence as this occurrence might have happened at some other time in the dead of night when no body had seen it and subsequently the accused appellants have been falsely implicated on account of enmity, does not stand to reason. Nothing is found in the testimonies of PW-1, PW-2 and PW-3, who have stated to have seen occurrence to disbelieve their testimonies. Their presence is found on the spot proved and there is consistency in the statement with respect to involvement of accused Rajjan and accordingly, he was named also in the F.I.R. He had lodged the F.I.R. promptly because the justification given for not lodging the same in the night itself is sufficient as he was having fear from the accused side. The statements given by eye-witnesses are in consonance with the site plan also. The name of Rajjan is also taken by the deceased prior to her death and we find that in the light of above evidence, offence under Section 396 IPC is clearly stands proved against the accused appellant Rajjan despite the fact that I.O. and Executive Magistrate in this case have not been examined because of the genuineness of the Challani documents having been admitted by the defence side. It would be held that by admitting the genuineness of the Challani documents, defence had forfeited its right to cross-examine the aforementioned witnesses.

41. As regards the other accused appellant Rambali, we are inclined to give benefit of doubt, as he belonged to different village, we are not sure that in the identification parade, the entire full proof procedure had been followed or not as the Executive Magistrate has not been examined. We accordingly give benefit of doubt to accused appellant Ram Bali.

42. The conviction of the appellant Rajjan is upheld under Section 396 IPC while that of co-accused Ram Bali is set aside. Both the accused-appellants are in jail. The accused appellant Ram Bali be released forthwith unless wanted in any other case subject to his filing bail bonds/surety-bonds in terms of Section 437-A Cr.P.C

43. Let a copy of this judgment be transmitted to the trial court with a direction that it shall ensure that the accused-appellant Rajjan serves out the remaining sentence in accordance with law and the other accused Ram Bali is released forthwith, if not wanted in any other case.

44. Accordingly the present appeal is partly allowed.

(Dinesh Kumar Singh-I,J.) (Ramesh Sinha,J.)

Order Date :- 02.04.2019

A. Mandhani/A.P. Pandey