Lakhan And Others vs State
2019 Latest Caselaw 5477 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment reserved on 17.05.2019
 
Judgment delivered on 08.07.2019
 
Court No. - 65
 

 
Case :- CRIMINAL REVISION No. - 58 of 1990
 
Revisionist :- Lakhan And Others
 
Opposite Party :- State
 
Counsel for Revisionist :- Ram Babu Sharma
 
Counsel for Opposite Party :- A.G.A.
 

 
Hon'ble Dinesh Kumar Singh-I,J.

1. Heard Sri Ram Babu Sharma, learned counsel for the revisionist and Sri Gambhir Singh, learned A.G.A.

2. This criminal revision has been preferred against the judgment and order dated 7.11.1989 passed by IInd Additional Session Judge, Badaun in Crl. Appeal No. 75 of 1987 whereby he dismissed the appeal and modified the judgment and order passed by Assistant Session Judge, Badaun in S.T. No. 80 of 1985 on 17.4.1987 whereby the accused revisionist Lakhan, Budh Pal and Meharban along with one co-accused Bhojraj have been convicted under Section 147, 148, 307 read with Section 149 IPC and have been sentenced under Section 147 IPC with two months rigorous imprisonment, under Section 148 with three months rigorous imprisonment, under Section 307 read with 149 with three years rigorous imprisonment and fine of Rs. 500/- each and in default of payment of fine, they have been directed to further undergo three months additional simple imprisonment. All the sentences are directed to run concurrently. The appeal was partly allowed only to the extent of acquitting the accused of charges u/s 147 IPC while conviction and sentence for offences under other sections, was upheld.

3. In short, the prosecution version as per F.I.R. is that on 20/21.10.1984 in the night after 12 O' clock when informant's nephew Ranveer, Ram Bharose, Karan Singh, Mohar Singh, Brij Pal, Veer Pal, Sebu, Omkar, Latoori, Jitendra, Hukmi, Shiv Narayan and Chaukidar Gokaran were making rounds in the village as usual, Mohar Singh was having S.B.B.L. gun, Brij Pal was having D.B.B.L. gun and rest of them were having lathies and when at about 1:00 am in the night they reached towards east of the village, near the house of Om Prakash, from the western side 9-10 persons were seen coming, who reached in front of house of Ram Nath and, when informant and his companions flashed torches upon them, they, with an intention to kill opened fire upon informant side, by which the informant's nephew Ranveer received pallet injuries. In defence, in the light of torches, Mohar Singh and Brij Pal also opened fire upon miscreants, due to which, the miscreants turned around and made fires upon the informant side, while fleeing. By the fires made from the side of informant and his companions, one miscreant fell down in front of the house of informant, who got up again and tried to flee, but the informant and his companion had caught hold of him after assaulting him with Lathis, while rest of the miscreants fled towards north in field making fires. The miscreant, who was arrested had got injuries as he was assaulted by the Lathis and was not in a position to speak and soon after succumbed to his injuries. The informant and his companion had well recognized all the miscreants in the light of torch, who could be identified if they happened to appear before them. At the time of occurrence, some other villagers had also come. Due to fear of the miscreants in the night, the informant could not go to the Police Station to lodge F.I.R. They kept the deceased-miscreant, whose identification could not be done.

4. On the basis of this information at the police station by the informant Ved Ram s/o Ram Swaroop Yadav, Case No. 264 of 1984 was registered at P.S. Bilsi, District Budaun, under Section 147, 148, 307 read with Section 149 IPC against one dead miscreant as well as 8-9 unknown miscreants on 21.10.1984 at 9:30 am.

5. The investigation of this case was assigned to S.I. Kripa Ram (PW-6), who has proved the written report of head Mohrrir on the basis of Exhibit Ka-1 and prepared chik F.I.R., which is Ext. Ka-8 and made entry of this case in G.D. at report no. 19, which is Exhibit Ka-9. He went to place of incident and recovered four blank cartridges, which are material Exhibits. 1 to 4 and its Fard was prepared, which is Exhibit Ka-2. Thereafter, he collected plain soil and blood stained soil from the place of incident and prepared its Fard, which is Exhibit. Ka-3. He found one unknown deceased lying there, who was having Angauchha, Sariya, shoes, which are material Exhibits. 5 to 7 and its Fard was prepared which, is Exhibit. Ka-4. He had also seen the torches being carried by witnesses Ram Chandra, Bhoj Raj, Jitendra Singh and Mohar Singh, which were given in their Supurdagi, after preparing Supurdaginama, which is Exhibit. Ka-5, which was signed by witnesses Gajraj Singh. Thereafter, he inspected the place of incident and prepared site plan, which is Exhibit. Ka-10. Panchayatnama of the unknown deceased, photo-lash, challan-lash etc. were prepared and other necessary documents were also prepared, which are Exhibits. Ka-11 to 13. Thereafter, the dead body was sealed and sample seal was prepared, which is Exhibit. Ka-14. In the night of 28.10.1984 at 12:30 a.m., accused Budhh Pal, Meharban, Lakhan and Bhojraj were arrested by him, who had disclosed their involvement in this occurrence, upon being interrogated. All these accused were made baparda (their faces were covered) and in that condition they were lodged at P.S. vide entry in G.D. No. 105 at 5:25 a.m. on 28.10.1984, which is Exhibit. Ka-13. The said accused were kept at the P.S. They remained baparda and subsequently he submitted charge-sheet against the accused, which is Exhibit. Ka-16.

6. On the basis of evidence on record, the trial court framed charges against the accused-revisionist on 25.9.1985 under Section 147, 148, 307/149 IPC to which they pleaded not guilty and claimed to be tried.

7. In order to prove the case of prosecution, Ved Ram as PW1, Ranveer as PW2, Mohar Singh as PW3, Sri P.K. Agrawal, City Magistrate as PW4, Dr. S.R. Gupta as PW5, S.I. Kripa Ram as PW6, S.O. C.L. Sharma as PW7 and S.I. Vinod Kumar Sharma as PW8, have been examined.

8. Thereafter the prosecution evidence was closed and the statement of the accused were recorded under section 313 Cr.P.C. in which all the accused have stated that the evidence collected by the prosecution is false and further stated that they have been falsely implicated due to animosity although no witnesses have been examined by them, in defence.

9. The trial court, after having assessed the evidence, which has been brought on record, has held the accused-revisionists guilty under the above-mentioned sections and have convicted them as mentioned above, therefore, in the light of the argument made by the learned counsel for revisionist no. 2, I have to see as to whether the trial court has correctly held the revisionist along with other four co-revisionist guilty or does the same require to be interfered with in revisional jurisdiction of this Court.

10. It may also be mentioned here that the revision preferred by the accused-revisionist no. 1 Lakhan and accused-revisionist no. 3 Meharban have already been abated due to their death, vide order dated 20.12.2018 of this Court. Therefore, the revision of accused Budh Pal only survives for consideration by this Court.

11. It was argued by the learned counsel for the revisionist that in this case informant and his companion had killed one of the miscreants and yet instead the informant and his companion being held guilty of committing murder of the said person, the trial court has erroneously held the accused revisionist guilty. No identification could be made of the dead miscreant as nothing has come in evidence in that regard. It is further argued that according to prosecution case, the accused revisionist was arrested by police on 28.10.1984 on information given by Mukhbir and is said to have been identified by ten witnesses correctly although there was no possibility of the accused being identified as the said identification was made one month after the occurrence. He has placed reliance upon the judgment of Supreme Court in 1983 Supreme Court Cases (Crl.) 49 (I), Soni vs. State of U.P. and it is held in this case that the Apex Court was satisfied that the conviction of the appellant for offence of dacoity was difficult to sustain as it rests purely upon the identification of the appellant by five witnesses but it was forgotten that the identification parade itself was held after a lapse of 42 days from the date of the arrest of the appellant. This delay in holding the identification parade throws a doubt on the genuineness thereof apart from the fact that it is difficult that after lapse of such a long time the witnesses would be remembering the facial expressions of the appellant. If this evidence cannot be relied upon, there is no other evidence, which can sustain the conviction of the appellant and accordingly appeal was allowed and the appellant was acquitted.

12. In view of above proposition of law which is evident from the citation relied upon by the learned counsel for the revisionist, I have to see as to whether the identification alleged to have been made of the accused by 10 witnesses in identification parade is believable and whether on the basis of it, the conviction of the accused-revisionist would sustain or not.

13. In the finding given by the trial court, it is recorded that the occurrence of this case is of the intervening night of 20/21.10.1984 at 1.00 A.M., when the villagers in order to safeguard the properties of villagers, were taking rounds (Gast), by chance they came across the accused persons and it was then that the accused persons started making fires upon those villagers, by which the witness Ranvir received gun shot injury. The witness Ranveer also made fire by which one miscreant also received injury and later on he was beaten up by lathis and by the injuries received thereby, he died. This occurrence has been witnessed by witnesses Ved Ram, Ranveer and Mohar Singh, who have been examined in court and have fully supported the prosecution case that in the intervening night of the above-mentioned date, when they were taking round, about 9-10 unknown persons were seen by them coming towards the house of Ram Nath and when they focused torches, upon them, the miscreants opened fire upon the said witnesses with an intention to kill them. Among the witnesses, Mohar Singh and Brij Pal were armed with fire arm and rest of them were having lathis. In defence, Mohar Singh and Brij Pal also opened fire by their licensed gun upon the miscreants, which hit one accused, who fell on the ground then and there and thereafter he was beaten up by lathis, by the villagers by which he died. He was not in a position to speak even.

14. The trial court has recorded that it is undisputed that one miscreant had died on the spot, after getting fire arm injury as well as injury caused by lathis, whose post-mortem was conducted and because of him being unknown person, after inquest report having been prepared, he was cremated. It is further recorded in the judgment that despite cross-examination made at length from all the eye witnesses, nothing emerged so as to make their testimonies to be suspect as they were resident of the said village. They did not have any animosity nor acquaintance with the the accused, hence there was no question of these witnesses making false statement against the accused. It is further recorded in the judgment that the accused were identified in the night by the witnesses although earlier none of the accused was known to them, therefore, the accused were produced before the said witnesses in jail in presence of the Judicial Magistrate, who conducted the identification proceedings in accordance with rule. Out of the witnesses, who had come for identification, 4-4 witnesses had correctly identified the accused. At the time of the said identification, advocates for the accused were also present, therefore, identification proceedings, could not be doubted. He has further recorded in the impugned judgment that the report was made on 21.10.1984 at 9.30 A.M. although police station is about five miles away from the scene of occurrence, which suggests that the FIR was lodged promptly. During investigation, the property, which was looted in dacoity by them, was recovered from their houses on the basis of their statement, which would be sufficient to infer the conclusion that they were the persons of criminal nature. It is also recorded that merely taking the plea of being implicated due to enmity, is not sufficient and the same is baseless.

15. It is also recorded that from the side of the accused, a certified copy of the judgment dated 25.7.1986 was submitted, which reflects that in S.T. No. 11 of 1985 (State vs. Budh Pal and others) under section 399/402 IPC and section 25 Arms Act, P.S. Bilsi, Disrict Budaun, the Sessions Judge had acquitted them as the incident was of intervening night of 27/28.10.1984 and the charge could not be proved by the prosecution, which resulted in benefit of doubt being given to them, but the trial court has written that no benefit of the said judgment could be given to the accused in the present case because the present occurrence is of subsequent (8-7) days, accordingly, court held the accused-revisionists guilty of the above-mentioned sections.

16. It would be appropriate for this Court to analyze the evidence adduced from the side of the prosecution with respect to identification of the accuse-revisionists.

17. Sri P.K. Agarwal has been examined as PW4, who has stated that on 28.11.1984 he had conducted identification proceedings in this case. He had recorded statement of accused after summoning them and their special marks were mentioned in column-3 of the identification memo. After having recorded their statement, he had obtained their thumb impressions, which were identified by Jail Officer. Six slips of papers were prepared in order to conceal special marks of the accused and ten under trial prisons were mixed up with the accused of this case, who were having close resemblance with the present accused and slips were pasted on them at the same places where they were pasted on the accused persons, in the identification parade. The witnesses were called inside the jail and were arranged to sit at a place from where they could not see the accused and after each witness having taken his round to identify the accused, the accused persons were given opportunity to change their place according to their wish. The signatures of the counsel of the accused were also taken on the identification memo. No complaint was made at that time either by the accused or his counsel. He had obtained thumb imprison on each memo of the witness. In identification parade no. 1, accused, Lakhan; identification parade no. 2, accused, Bhoj Raj; in identification parade no.3, Budh Pal and in identification parade no. 4 Meharban were made to stand. Witness Ranvir had correctly identified all the four accused. Witness, Ved Ram had correctly identified all the accused except Bhoj Raj, witness Karan Singh had also identified all the accused correctly, witness Rukmi had correctly identified all the accused, witness Saibu @ Ganesh had correctly identified all the accused, witness Veerpal had correctly identified all the accused, witness Shiv Narain had also identified all the accused correctly, witness Latoori had also correctly identified all the accused, witness Ram Bharose had correctly identified all the accused, witness Mohar Singh had identified all the accused except Bhoj Raj. This witness has proved the identification memo Exhibit Ka-6.

18. In cross-examination, this witness has stated that the accused Budh Pal was bald-headed, this he had stated after having bent his head and having seen it. In the special marks, it is not recorded that the said accused was bald-headed. He had asked him whether he would like to wear cap or not, but he did not make any demand for it. Further, he has stated that he had asked for a cap from all the accused but none of them had demanded the same.The ear of the said accused Budh Pal was not visible as having hole in it. One could tell about these facts only after seeing him from a close range. After having seen the said accused, this witness has stated that hole was not visible and on his own, he stated that the special marks, when they were recorded, special precaution was taken.

19. This witness has stated that his hairs were not golden grey. Accused, Lakhan had a small cut on his nose. He was put a question that accused Bhoj Raj did not have teeth in his mouth to which, he responded that in this regard precaution was taken and the accused was told to keep his mouth closed. Further, he has stated that it is not recorded in respect of identification of Bhoj Raj that his hair were same as that of under trial prisons, who were mixed up with him.

20. I find that the occurrence had taken place on 20/21.10.1984, while the identification parade was held by PW4 on 28.11.1984, which would mean that the accused-appellants were put for identification parade after one month and eight days, which is close to the time, which was considered by Supreme Court in the above referred case of Soni (Supra), in which delay of 42 days was considered to be too big for correct identification of the accused persons.

21. It has also come in evidence of PW4 that the accused-revisionist Budh Pal was bald-headed, which fact according to PW4, was identifiable only when he would bend his head, but it is absolutely clear from the statement of this witness that no such precaution appears to have been taken by him for the under trial prisons, who were mixed up with him, at the time of identification parade (10 in number) that all of them were bald-headed. It was very much essential to bring similarity in the present accused as well as that of the under trial prisons, who were mixed up with them for identification purpose, so as to remove there being any possibility of the accused, being different in appearance and hence easily identifiable. It cannot be ruled out that the said accused persons would have appeared before the trial court, where witnesses could have easily seen them, prior to their identification proceedings.

22. In view of above analysis, I am of the view that on the basis of the evidence, which has been placed on record, it cannot be ruled out that it was very difficult for the witnesses to identify the said accused-revisionist Budh Pal, after about 38 days of the incident particularly when he was not of the same village to which the witnesses belonged.

23. As regards, the occurrence having taken place, in which one of the miscreants is said to have been fired upon by the informant side, in which he received injury and thereafter when he fell down, he was beaten to death, it cannot be denied that the present occurrence did happen but who actually gave effect to the present occurrence, could not be proved on the basis of prosecution evidence as its case is solely dependent upon the identification made by the witnesses.

24. I have already found that the error in recognizing the accused-revisionist Budh Pal, cannot be ruled out in identification parade being organized, after such a big delay. As regards the evidence of recovery of some articles at the pointing out of the accused, no credible evidence is found on record to the effect that these articles were stated in FIR to have been looted way by accused, which later on are found recovered from them, which were identified by the person from whom they were looted. I find that both the courts below have not appreciated the evidence properly.

25. I do not find any point in discussing injury memo of the injured person and the testimonies of other witnesses because they do not appear to be relevant as case of prosecution is wholly dependent upon identification parade and am of the opinion that the trial court's judgment and order dated 17.4.1982 as well appellate court's judgment and order dated 7.11.1989 deserve to be set aside and accused-revisionist Budh Pal is found to be not guilty of offence under section 147, 148, 307/149 IPC beyond reasonable doubt. Revision stands allowed.

26. Since the accused-revisionist is on bail, he need not surrender. The trial court shall obtain bonds from him in terms of section 437-A Cr.P.C.

27. Let a copy of this judgment be transmitted to the trial court along with lower court record for necessary compliance.

Order Dated:08.07.2019

AU