Kamlesh vs State Of U.P.
2021 Latest Caselaw 1040 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
A.F.R.
 
Reserved
 
Court No. - 33
 

 
Case :- CRIMINAL APPEAL No. - 181 of 1996
 
Appellant :- Kamlesh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Alok Kapoor,(Amicus Curiae),Indrajeet Shukla,Mohammad Mustafa Khan,Molhd. Shafiq
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Virendra Kumar Srivastava,J.

1. The instant criminal appeal, under Section 374 (2) of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Code'), has been preferred against the judgment and order dated 22.04.1996, passed by Ist Additional Sessions Judge, Unnao, in Sessions Trial No.191 of 1989, arising out of Case Crime No106 of 1988, P.S.-Achalganj, District-Unnao, whereby the appellant-Kamlesh (hereinafter referred to as appellant) has been convicted and sentenced for offence under Section 392 I.P.C. for seven years rigorous imprisonment and for offence under Section 397 I.P.C. for seven years rigorous imprisonment with further direction that both the sentences of the appellant shall run concurrently.

2. The prosecution case, in brief, is that Sakur Ahmad (P.W.-1) informant, was carrier of sales money from Kannaudia Petrol Pump, situated at Azad Marg Crossing, Kanpur, to the office of the firm where he was posted. On 21.07.1988, at about 8:30 a.m. he had come to the Kannaudia Petrol Pump by scooter Super Bajaj bearing registration No.UMO 257, provided by the said firm to collect the sales money and he received Rs.21,100/- from Ghanshyam Srivastava (Cashier), kept it in diggie (side luggage box) of scooter and locked it. As he started the scooter to proceed towards Kanpur, three unknown persons, who were carrying with countrymade pistol and bombs, appeared there. One of them fired by his countrymade pistol with shouting that if anybody will move, he will kill all the persons, present at the spot, including informant (P.W.-1). Ghanshyam Srivastava (Cashier), Jagdamba Prasad Yadav (Manager), Sukhram (Betel shopkeeper) (P.W.-3), Pramod Kumar Singh (Truck Driver) became afraid and maintained silence due to fear. One of the said person (criminal) started the scooter of the informant and rest persons (other criminals) rode on rear seat of the scooter and fled away with cash, kept in scooter, towards Lucknow.

3. Written information of the occurrence (Ext.-Ka-1), prepared by Ghanshyam Srivastava (cashier) on the dication of Sakur Ahmad (P.W.-1), was filed at P.S.-Achalganj on 21.07.1988, which was entered in G.D. report (Ext.-Ka-4) by Head Constable Purushotam Narayan Tandon (P.W.-7), who also prepared Chik F.I.R. (Ext.-Ka-3) and registered the case as case crime No.106 of 1988 under Sections 392 and 397 I.P.C. against three unknown persons. Investigation of the case was entrusted to S.I. S. B. Singh (P.W.-11), who reached at the place of occurrence, took into his custody blank cartridges, prepared a recovery memo (Ext.-Ka-2) and also prepared site plan (Ext.-ka-8). During investigation, he also recovered the scooter of the informant, lying in jungle in damaged condition, prepared recovery memo, handed over the scooter to the informant (P.W.-1) and also prepared site plan (Ext.-Ka-11) of recovery of said scooter. During investigation, he was in training from 06.09.1988 to 14.09.1988 and in the meantime, the appellant-Kamlesh along with co-accused-Krishna Kumar @ Munsi (since deceased) were arrested on 07.09.1988 and they were put in Identification Parade Test (T.I.P.) on 22.09.1988.

4. After conclusion of investigation, S.I., S. B. Singh (P.W.11) filed charge sheet (Ext.-Ka-14) against Hari Prasad (since acquitted), Krishna Kumar @ Munsi (since deceased) and the appellant-Kamlesh before the concerned Magistrate, who took the cognizance of the offence and since the offence was exclusively triable by the Court of Sessions, after providing the copy of relevant police papers as required under Section 207 of the Code, committed the case to the Court of Sessions, Unnao for trial.

5. The learned trial Court framed charges for the offence under Sections 392 & 397 I.P.C against the appellant and other co-accused to which they denied and claimed for trial.

6. The prosecution, in order to prove its case, examined Sakur Ahmad (P.W.-1), Ram Sajivan (P.W.-2), Sukhram Chaurasia (P.W.-3), Ikramool Haque (P.W.-4), Head Constable-Purushotam Naraian Tandon (P.W.-5), Gaya Bux Singh @ Gyari (P.W.-6), Sri Janardhan Prasad (P.W.-7), Constable-Hari Shankar (P.W.-8), Constable-R. K. Sachan (P.W.-9), Constable-Chandra Bhan Singh (P.W.10) and S. I., S. B. Singh (P.W.-11).

7. During trial, co-accused Krishna Kumar had died and the trial against him was abated by the trial Court. The statement of appellant-Kamlesh and co-accused-Hari Prasad (since acquitted) were recorded under Section 313 of the Code wherein they denied the prosecution story and alleged that they were falsely implicated. The appellant-Kamlesh further stated that he was caught by police of Police Station-Achalganj two days prior to his arrest and after his photography, he was also shown to the witnesses.

8. The appellant, to controvert the prosecution story, had filed certified copy of judgment dated 26.09.1989, passed in Criminal Case No.1667A of 1989 (State vs. Kamlesh), P.S.-Achalganj, District-Unnao, whereby he was acquitted by concerned Magistrate, from the offence under Section 25 of Arms Act.

9. After conclusion of the trial, learned trial Court acquitted the co-accused-Hari Prasad, but convicted the appellant-Kamlesh as above by the impugned judgment and order. Aggrieved by the impugned judgment and order, the appellant has preferred this appeal.

10. Heard Sri Mohd. Mustafa, learned counsel for the appellant and Sri Hansraj Verma, learned A.G.A. for the State.

11. Learned counsel for the appellant has submitted that the appellant is innocent and has been falsely implicated by the concerned police. Learned counsel further submitted that the appellant is neither named in the F.I.R. nor anything was recovered from his possession. Learned counsel further submitted that no special characteristics or identification marks of any accused person, involved in the said occurrence were either mentioned in the F.I.R. or stated by the prosecution witnesses. Learned counsel further submitted that according to prosecution witnesses, one of co-accused-Hari Prasad was employee of Kannaudia Petrol Pump firm but his name was neither shown in the F.I.R. nor stated by any witness. Learned counsel further submitted that arrest of the appellant as well as test identification parade are highly doubtful as the arrest of the appellant-Kamlesh and recovery of countrymade pistol have already been held doubtful and appellant has been acquitted. Learned counsel further submitted that the trial Court, without considering the material available on record, acquitted one co-accused-Hari Prasad and convicted the appellant-Kamlesh only on the basis of doubtful evidence of Identification Test, which is against settled provision of criminal jurisprudence and the impugned judgment is liable to be set aside.

12. Per contra, learned A.G.A., vehemently opposing the submission made by learned counsel for the appellant, submitted that the appellant has been identified in T.I.P. and also before the trial Court by the prosecution witnesses. Learned A.G.A. further submitted that the appellant was kept in baparda from the date of his arrest till the identification proceeding and there was no chance of the photography of the appellant as well as showing him to prosecution witnesses. Learned A.G.A. further submitted that the statement of prosecution witnesses is reliable and trustworthy ; the impugned judgment and order requires no interference and the appeal is liable to be dismissed.

13. I have considered the rival submissions made by learned counsel for both the parties and perused the record.

14. Admittedly, the appellant is not named in the F.I.R., although, the occurrence took place in broad day light i.e. 21.07.1988 at 8:30 a.m. and the prosecution witnesses had full opportunity to see and identify the accused persons including the appellant, but no identification marks of any accused was mentioned in the F.I.R. In the F.I.R., lodged by P.W.-1, it has been mentioned that he (P.W.-1) and all witnesses, present on the sport, had seen properly the accused persons and can identify if they would come before him.

15. Sakur Ahmad (P.W.-1) has stated that he was employee of firm of Kannaudia Petrol Pump and used to come by scooter Super Bajaj bearing registration No.UMO 257, provided by the firm. Stating that on 21.07.1988 at about 8:30 a.m., he had come on petrol pump to collect the sales money and parked his scooter near the northern door of the cash counter, he further stated that he received Rs.21,100/- from Ghanshyam Srivastava (Cashier) and kept it in diggie (side luggage box) of scooter along with relevant papers and also locked it. Stating that as he started his scooter, three unknown persons, carrying countrymade pistol and bomb (hathgola), came there and one of them made air fire and threatened him (P.W.-1) not to move from his place, otherwise, they would kill him, he further stated that Ghanshyam Srivastava (Cashier), Jagdamba Prasad Yadav (Manager), Ram Sajivan (P.W.-2) Sukhram Chaurasia (P.W.-3), Pramod Kumar Singh (Truck Driver) and so many people, present on the spot, became afraid. He further stated that one of the accused started the scooter and rest two accused rode on rear seat of the scooter. Stating further that at starting point, the scooter was unbalanced but later on, the accused persons fled away on that scooter with looted money and relevant papers, he further stated that they could not chased the accused persons due to fear but Pramod Kumar Singh (Truck driver) chased them by truck and returned thereafter. Stating further that he had seen the faces of all accused persons to whom he did not know earlier, he further stated that he got report (Ext.-Ka-1) written by Ghanshyam Srivastava (Cashier) and lodged the same at P.S.-Achalganj at about 10:00 a.m. Stating further that he had also attended T.I.P. at Jail, Unnao, he pointed out the appellant-Kamlesh and co-accused-Krishna Kumar @ Munsi (since deceased) and said that he had identified them in District Jail, Unnao. Stating further that he had seen the appellant-Kamlesh and co-accused-Krishna Kumar @ Munsi (since deceased) at the time of occurrence, who committed the loot of sales money and thereafter, identified them in T.I.P., he further stated that he had not seen them in between and also did not know them prior to the occurrence.

16. Ram Sajivan (P.W.-2) has stated that he was posted at Kannaudia Petrol Pump since 7-8 years and was present at the time of occurrence. Corroborating the prosecution story as stated by Sakur Ahmad (P.W.-1), he also stated that at the time of occurrence, Ghanshyam Srivastava (Cashier), Jagdamba Prasad Yadav (Manager), Sukhram Chaurasia (P.W.-3) and Pramod Kumar Singh (Truck Driver) were present at the place of occurrence when the accused persons, carrying the countrymade pistol and bomb (hathgola), looted the sales money and fled away with scooter Super Bajaj bearing registration No.UMO 257 from there and they could not chase the accused persons due to fear ; Pramod Kumar Singh (Truck Driver) chased them but returned thereafter. Stating further that he had seen the faces of the accused persons, who were unknown to him, he further stated that he had attended T.I.P. in Unnao Jail and identified the appellant-Kamlesh and co-accused-Krishna Kumar @ Munsi (since deceased) to whom he had not seen after the occurrence and before T.I.P.. He further stated that the police, during investigation, recovered blank cartridges and prepared recovery memo (Ext.-ka-2).

17. Sukhram Chaurasia (P.W.-3) has stated that at the time of occurrence, his betel shop was situated near Kannaudia Petrol Pump prior to 12-13 years of the occurrence and he knew the employees of said petrol pump. Corroborating the prosecution story and stating that Sakur Ahmad (P.W.-1) took Rs.21,100/- (sales money) from Ghanshyam Srivastava (Cashier) and kept it in diggie (side luggage box) of scooter, he further stated that as Sakur Ahmad (P.W.-1) started the scooter, he fell down and Ramashrey also fell down and thereafter they balanced the scooter and fled away to northern side with all accused persons. He further stated that the accused persons, carrying countrymade pistol and bomb (hathgola), threatened them not to move from their place, Ghanshyam Srivastava (Cashier), Jagdamba Prasad Yadav (Manager), Sakur Ahmad (P.W.-1), Ram Sajivan (P.W.-2), Sukhram Chaurasia (P.W.-3) and Pramod Kumar Singh (Truck Driver) were also present on the spot and Pramod Kumar Singh chased the accused persons but returned thereafter. Pointing out the appellant-Kamlesh and co-accused-Krishna Kumar @ Munsi (since deceased), he further stated that he had seen the faces of all three accused persons to whom he did not know earlier but had identified the appellant-Kamlesh and co-accused-Krishna Kumar @ Munsi (since deceased) in T.I.P. at Unnao Jail.

18. Ikramool Haque (P.W.-4), tyre tube repairing mechanic, has stated that his repairing shop was situated near the Kannaudia Petrol Pump since 12-13 years prior to the occurrence. He further stated that at the time of occurrence, he was taking bath and on hearing the gun sound, he reached at the place of occurrence and saw that the accused persons were fleeing away with scooter from the place of occurrence. Stating that two old cycles were parked near by his shop and co-accused, Hari Prasad (since acquitted), took away one of cycle just after the occurrence, he further stated that since Hari Prasad was employee of the said petrol pump, one and half year prior to the occurrence, he knew him very well. He also stated that another cycle was taken into custody by Investigating Officer and recovery memo (Ext.-Ka-2) was prepared by him.

19. Purushotam Narain Tandon (P.W.-5) has stated that he had preapred Chik-F.I.R. (Ext.-Ka-3) and G.D. report (Ext.-Ka-4).

20. Gaya Bux Singh @ Gyari (P.W.-6) has stated that on 29.07.1988, co-accused, Hari Prasad (since acquitted) had met with him and said that Ramashrey had enquired him regarding the daily transaction of Kannaudia Petrol Pump. He further stated that co-accused, Hari Prasad (since acquitted) also told him that he had accompanied Ramashrey to petrol pump at the time of occurrence and parked his cycle behind the truck and when Ramashrey and other accused persons, after looting the sales money, fled away with scooter, co-accused, Hari Prasad (since acquitted) also fled away with his cycle.

21. Janardhan Prasad (P.W.-7), retired Special Executive Magistrate, has stated that he had conducted T.I.P. of appellant-Kamlesh and co-accused-Krishna Kumar @ Munsi (since deceased). He further stated that Sakur Ahmad (P.W.-1), Ram Sajivan (P.W.-2) and Sukhram Chaurasia (P.W.-3) had identified the appellant-Kamlesh and co-accused-Krishna Kumar @ Munsi (since deceased), Ghanshyam Srivastava (Cashier) had identified co-accused-Krishna Kumar @ Munsi (since deceased) and Jagdamba Prasad Yadav (Manager) had identified the appellant-Kamlesh. Stating that he had prepared identification memo (Ext.-Ka-5), he further stated that the appellant-Kamlesh and co-accused-Krishna Kumar @ Munsi (since deceased) were identified by four persons each.

22. Constable Hari Shankar (P.W.-8) has stated that on 07.09.1988, he was posted as constable at P.S.-Achalganj. He further stated that on that day, S.H.O., P. K. Mishra, S.I., J. P. Singh along with other police personnel came at police station with the appellant-Kamlesh and co-accused-Krishna Kumar @ Munsi (since deceased) in baparda and put them in lock up. He further stated that he was on pahra (guard) duty from 6:00 p.m. to 9:00 p.m., he had not allowed any person to see the said arrestees. Verifying the relevant G.D. (Ext.-Ka-6), he further stated that he had handed over charge to one Constable Chandra Bhan Singh (P.W.-10). Stating that on 08.09.1988, he produced the appellant-Kamlesh and co-accused-Krishna Kumar @ Munsi (since deceased) before concerned Magistrate in baparda and thereafter, carried them to jail in baparda, and verifying the relevant G.D. (Ext.-Ka-7) of 08.09.1988, he further stated that during the period of journey from police station lock up to jail, no person was given opportunity to see the said arrestees.

23. Constable R. K. Sachan (P.W.-9) has stated that on 07.09.1988, he was posted at P.S.-Achalganj, where the appellant-Kamlesh and co-accused-Krishna Kumar @ Munsi (since deceased) were detained in lock up. Stating that he was on pahra (Guard) duty from 12:00 a.m. to 3:00 a.m. in the night and thereafter, handed over the charge to Constable, Hari Shankar (P.W.-8), he further stated that during that period, he had not allowed to any person to see the said accused persons.

24. Chandra Bhan Singh (P.W.-10) has stated that on 07.09.1988, he was posted at P.S.-Achalganj and took charge (pahra) from Constable-Hari Shankar (P.W.-8) and when he was on pahra (Guard) duty from 9:00 p.m. to 12:00 a.m. (night), he had not allowed to any one to see the appellant-Kamlesh and co-accused-Krishna Kumar @ Munsi (since deceased), who were detained as baparda in lock up.

25. S.I., S. B. Singh (P.W.-11) has stated that on 21.07.1988, he was posted at P.S.-Achalganj and was deputed as Investigating Officer of Case Crime No.106 of 1988. He further stated that during investigation, he recorded the statement of witnesses, inspected the place of occurrence and prepared site plan (Ext.-Ka-8). Stating that he also recovered blank cartridges from the place of occurrence and prepared recovery memo (Ext.-Ka-2), he further stated that he also recovered a scooter, used in the occurrence, in damaged condition, prepared a recovery memo (Ext.-ka-10) and site plan (Ext.-ka-11) and handed over the scooter to the informant (P.W.-1). He further stated that during investigation, on 22.09.1988, he also recorded the statement of S.H.O., P. K. Mishra, Constables-Bhagwati Prasad, Moti Lal and Lal Mohammad and on 29.09.1988, statement of S.I., J. P. Singh, Constable-Ramashrey and Constable-Umanath. Stating that from 06.09.1988 to 14.09.1988, he was in training and investigation was carried by S.I., S. N. Singh, he further stated that after investigation, he had submitted charge sheet (Ext.-Ka-12) against the appellant-Kamlesh and other co-accused.

26. It is settled principal of law that if the accused were not known to the prosecution witnesses and prosecution case is based only on the identification of the accused (T.I.P.) or on the identification produced before the Court, the prosecution must prove that the accused were not known to the prosecution witnesses prior to the occurrence and they had sufficient opportunity to see the special characteristics as well as identification marks on the person of the accused, committing the crime including identification marks on their faces. In addition to above, the prosecution also has to produce a link evidence to rule out of all the possibilities of opportunity of seeing the accused persons by the prosecution witnesses. Further, It is also settled principle of criminal jurisprudence that identification of accused by the witnesses before the Court is substantive piece of evidence whereas evidence of TIP is very weak evidence,it has only the corroboratory value and where the offenders were unknown to the witnesses and the prosecution case is based only on the evidence of identification, prosecution has to prove that prosecution witnesses had proper and sufficient opportunity to see and identify the respondents and they had properly seen and identified them.

27. In the case of Wakil Singh vs. State of Bihar, AIR. 1981 S.C.1392, where judgment and order of acquittal, passed by trial Court as the evidence of identification was doubtful, was reversed in appeal by the High Court in appeal, Hon'ble Supreme Court, setting aside the judgment of the High Court, has held as under :

"2. In the instant case we may mention that none of the witnesses in their earlier statements or in oral evidence gave any description of the dacoits whom they have alleged to have identified in the dacoity, nor did the witnesses give any identification marks viz., stature of the accused or whether they were fat or thin or of a fair colour or of black colour. In absence of any such description, it will be impossible for us to convict any accused on the basis of a single identification, in which case the reasonable possibility of mistake in identification could not be excluded. For these reasons, therefore, the trial Court was right in not relying on the evidence of witnesses and not convicting the accused who are identified by only one witness, apart from the reasons that were given by the trial Court. The High Court, however has chosen to rely on the evidence of a single witness, completely over-looking the facts and circumstances mentioned above. The High Court also ignored the fact that the identification was made at the T.I. parade about 3 1/2 months after the dacoity and in view of such a long lapse of time it is not possible for any human being to remember, the features of the accused and he is, therefore, very likely to commit mistakes. In these circumstances unless the evidence is absolutely clear, it would be unsafe to convict an accused for such a serious offence on the testimony of a single witness."

( Emphasis supplied)

28. The object of TIP is to find out whether the suspected offender arrested by police during investigation is real culprit or not. Evidence of TIP can be held as reliable and trustworthy only where the the suspects were neither shown to the witnesses nor the witnesses had an opportunity to see them prior to TIP and the proceeding of TIP is not irregular. Thus if evidence of TIP is shaky and doubt due to aforesaid reason, the evidence of identification before the court can not be relied upon.

29. In Shaikh Umar Shaikh and another v. State of Maharashtra 1998 SCC (Crl.) 1276, wherein the trial Court ,after rejecting the evidence of identification parade on the ground that suspects were shown the witnesses prior to identification parade, relied on the evidence of identification before it and convicted the appellant, Hon'ble Supreme Court while allowing the appeal has held as under :

"The Designated Court after having rejected the evidence of identification parade on the ground that the suspects were possible shown to the witnesses, relied upon the evidence of identification of the accused in the Court by the two witnesses and on that evidence recorded conviction against the appellants. No doubt, the evidence of identification parade is not a substantive evidence, but its utility is for purpose of corroboration. In other words, it is utilised for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them. The real and substantive evidence of the identity of the accused comes when witnesses give statement in the Court, identifying the accused. It is true that in the present case, PW-2 and PW-11 identified the two accused who are the appellants before us in the Court. But, the question arises; what value could be attached to the evidence of identity of accused by the witnesses in the Court when the accused were possibly shown to the witnesses before the identification parade in the police station. The Designated Court has already recorded a finding that there was strong possibility that the suspects were shown to the witnesses. Under such circumstances, when the accused were already shown to the witnesses, their identification in the Court by the witnesses was meaningless. The statement of witnesses in the Court identifying the accused in the Court lost all its value and could not be made basis for recording conviction against the accused. The reliance of evidence of identification of the accused in the Court by PW-2 and PW-11 by the Designated Court, was an erroneous way of dealing with the evidence of identification of the accused in the Court by the two eye-witnesses and had caused failure of justice. Since conviction of the appellants have been recorded by the Designated Court on wholly unreliable evidence, the same deserves to be set aside."

(Emphasis supplied)

30. Now, coming to the facts of this case, in F.I.R., it has been specifically mentioned that the said scooter, which was being used by Sakur Ahmad (P.W.-1), was also used by the accused persons including appellant-Kamlesh for fleeing away from the place of occurrence, and was in working condition. Sakur Ahmad (P.W.-1), in examination-in-chief, had not stated that the said scooter was recovered by the Investigating Officer in his presence or on the recovery memo prepared by I.O., he had put his signature. He had not stated that the said scooter was handed over to him by the I.O. (P.W.-11) whereas P.W.-11 had stated that the said scooter, lying in jungle in damaged condition, was recovered by him. P.W.-11 had specifically stated that after preparing the recovery memo of said scooter (Ext.-Ka-10), he had handed over it to the informant. ("Mukadma se sambandhit scooter jungle me khada mila jise kabje me liya | kharab dasha me tha | supurd wadi kiya |")

31. In addition to above, the prosecution has also not produced the Ghanshyam Srivastava (Cashier), Jagdamba Prasad Yadav (Manager) and Pramod Kumar Singh (Truck Driver). These witnesses were very important for the prosecution story because Ghanshyam Srivastava (Cashier) was witness of fact, who can depose as to whether he had given Rs.21,100/- to Sakur Ahmad (P.W.-1) or not. Similarly, Jagdamba Prasad Yadav (Manager), who was responsible for whole transaction of petrol pump and Pramod Kumar Singh (Truck Driver), who had not only seen the occurrence but also chased the accused persons. Prosecution has not placed any explanation or justification as to why it withhold the said important witnesses. Non producing of the said important witnesses creates a doubt in the prosecution story.

32. Further, according to prosecution story, the appellant-Kamlesh and co-accused-Krishna Kumar @ Munsi (since deceased) were arrested on 07.09.1988 at about 14:45 p.m. by S.H.O., P. K. Mishra and S.I., J. B. Singh and were brought at police station-Achalganj at about 8:00 p.m. on same day. The prosecution has produced Constable-Hari Shankar (P.W.-8), Constable-R. K. Sachan (P.W.-9) and Constable-Chandra Bhan Singh (P.W.10), who were on pahra (guard) duty at P.S.-Achalganj and had deposed that they had not allowed to any person to see the appellant-Kamlesh and co-accused-Krishna Kumar @ Munsi (since deceased) but the prosecution had failed to produce the S.H.O., P. K. Mishra and S.I., J. B. Singh and other police personnel, who had arrested the appellant-Kamlesh and co-accused-Krishna Kumar @ Munsi (since deceased) on 07.09.1988 at about 14:45 p.m. and in whose custody, they were kept for more than six hours, to prove that the appellant-Kamlesh and co-accused-Krishna Kumar @ Munsi (since deceased) were not shown to any person during that period. Failure of the prosecution to produce these police personnels further creates a doubt in the prosecution story because there may be possibility that the appellant-Kamlesh and co-accused-Krishna Kumar @ Munsi (since deceased) were shown to the witnesses.

33. Further, in addition to above, in F.I.R., no identification marks or special characteristics of any accused have been mentioned by Sakur Ahmad (P.W.-1) and none of the prosecution witnesses has stated that he had seen any special characteristics or appearance of any accused or any identification marks of their faces. Sakur Ahmad (P.W.-1), in cross-examination, has specifically stated that after firing, no one dared to see towards any of the accused and when accused persons had fled away from the place of occurrence, Ghanshyam Srivastava (Cashier) and Jagdamba Prasad (P.W.-7) came out from the cabin. (fire hone par kisi ki badmasho ki aur dekhne ki bhi himmat kisi ki bhi nahi hui jab badmash chale gaye tab ghanshyam va jagdamba cabin se nikle.) Sukhram Chaurasia (P.W.-3), in cross-examination, has admitted that at the time of occurrence, he was behind the boundary wall which was six feets in height. Furthermore, from perusal of T.I.P. report (Ext.-Ka-5), it appears that there were 7-8 identification marks on the faces of the appellant-Kamlesh and co-accused-Krishna Kumar @ Munsi (since deceased) and Janardhan Prasad (P.W.-7) has stated that he had pasted paper-sticker (kagaj ki chippi) on each identification marks of accused persons but Sukhram Chaurasia (P.W.-3), in his cross-examination, has specifically stated that no paper-sticker was pasted on the faces of the accused persons at the time of T.I.P. (shinakht ke samay mulzim ke chehre par koi chippi nahi thi.). Thus, in view of the above, where the appellant-Kamlesh and co-accused-Krishna Kumar @ Munsi (since deceased) were having sufficient identification marks on their faces but none of the identification marks and their special characteristics were either mentioned in the F.I.R. or stated by the prosecution witnesses and in view of statement of Sukhram Chaurasia (P.W.-3) that identification marks of appellant-Kamlesh and co-accused-Krishna Kumar @ Munsi (since deceased) were not concealed, the prosecution story becomes further doubtful.

34. Furthermore, appellant-Kamlesh, who was arrested with other co-accused-Krishna Kumar @ Munsi (since deceased) on 07.09.1988 at 14:45 p.m. with countrymade pistol and was also put on trial for offence under Section 25 of Arms Act but he was acquitted for the said offence by concerned Magistrate on 26.09.1989. In addition to above, no incriminating articles pertaining to this case i.e. looted properties were recovered from their possession. Non recovery of incriminating articles pertaining to this case and acquittal of the appellant-Kamlesh from the offence under Section 25 of Arms Act, further creates doubt in the prosecution version regarding his arrest on 07.09.1988 and also makes the prosecution story doubtful.

35. In Mohd. Sajjad @ Raju @ Salim vs. State of West Bengal, AIR 2017 SC 642, Hon'ble Supreme Court, relying on the judgment passed by Hon'ble Supreme Court in the cases of Lal Singh and others vs. State of U.P., (2003) 12 SCC 554, Subash and Shiv Shankar vs. State of U.P., (1987) 3 SCC 331 and Musheer Khan @ Badshah Khan and another vs. State of Madhya Pradesh, (2010) 2 SCC 748, expressing its concerned of delay on conducting the identification proceeding (T.I.P.) after arresting the accused persons, has held as under :

"In the instant case none of the witnesses had disclosed any features for identification which would lend some corroboration. The identification parade itself was held 25 days after the arrest. Their chance meeting was also in the night without there being any special occasion for them to notice the features of any of the accused which would then register in their minds so as to enable them to identify them on a future date. The chance meeting was also for few minutes. In the circumstances, in our considered view such identification simpliciter cannot form the basis or be taken as the fulcrum for the entire case of prosecution. The suspicion expressed by PW 8 Saraswati Singh was also not enough to record the finding of guilt against the appellant. We therefore grant benefit of doubt to the appellant and hold that the prosecution has failed to establish its case against the appellant."

36. Coming to the present case again, the appellant-Kamlesh was arrested on 07.09.1988 and was produced before the concerned Magistrate on 08.09.1988 but his identification proceeding along with co-accused-Krishna Kumar @ Munsi (since deceased) was conducted on 22.09.1988. The prosecution had not produced any explanation as to why identification proceeding was conducted after delay of 15 days. It has also not produced any evidence whether it (T.I.P.) was conducted after second remand of accused persons under Section 167 of the Code or during first remand of accused persons. Causing delay in holding T.I.P further creates doubt in the prosecution story. In addition to above, according to Gaya Bux Singh @ Gyari (P.W.-6), co-accused-Hari Prasad (since acquitted) had made before him extra judicial confession that one Ramashrey had come to him with two persons and had made enquiry regarding the cash of petrol pump to whom he (Hari Prasad) told everything ; he (Hari Prasad) also confessed that he (Hari Prasad) went with the said Ramashrey at the place of occurrence and was present behind the truck and he (Hari Prasad) further confessed that as Ramashrey and other co-accused looted the sales money and fled away from the place of occurrence with the said scooter, he (Hari Prasad) escaped there from by his cycle. Sukhram Chaurasia (P.W.-3) has also stated that one Ramashrey fell down at the time of occurrence. Thus, the presence of Ramashrey, at the time of occurrence, and his involvement have been alleged by these witnesses, but Investigating Officer had exonerated him and he was not placed in trial whereas the appellant-Kamlesh, who was neither named in the F.I.R. nor named by any witnesses and whose involvement in the said occurrence is doubtful, has been convicted in this case.

37. In the light of above discussion, I am of the considered opinion that the prosecution has miserably failed to prove its case beyond reasonable doubt. Learned trial Court, without considering the aforesaid fact of the prosecution story, passed the impugned judgment and order in cursory manner. The impugned judgment and order passed by trial Court is liable to be set aside and the appellant is entitled to be acquitted.

38. I am, therefore, unable to uphold the conviction and sentence of the appellant. The impugned judgment and order, passed by the Trial Court, is accordingly set aside. The appellant is acquitted. Consequently appeal is allowed.

39. The appellant is on bail, his bail bond is cancelled and sureties are discharged.

40. Keeping in view the provision of Section 437-A of the Code, appellant is hereby directed forthwith to furnish a personal bond of a sum of Rs.20,000/- each and two reliable sureties each of the like amount before the trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against this judgment or for grant of leave, appellant on receipt of notice thereof, shall appear before Hon'ble Supreme Court.

41. A copy of this judgment along with lower court record be sent to Trial Court by FAX for immediate compliance.

Order Date :-19.01.2021

Mahesh