Sohan And Others. vs State Of U.P.
2022 Latest Caselaw 11217 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 

 
Reserved on : 20.05.2022
 
Delivered on 25.08.2022
 
Court No. - 1
 

 
Case :- CRIMINAL APPEAL No. - 57 of 2006
 

 
Appellant :- Sohan And Others.
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Sunder Lal,Mustafa Hussain Hashmi,Pradeep Kumar Tripathi,V.S.Srivastava(Amicus Curiae)
 
Counsel for Respondent :- Govt.Advocate
 

 
With
 

 
Case :- CRIMINAL APPEAL No. - 1627 of 2005
 

 
Appellant :- Shyam Pal Singh @ Babloo Singh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Nagendra Mohan
 
Counsel for Respondent :- Govt. Advocate
 

 
With
 

 
Case :- CRIMINAL APPEAL No. - 30 of 2006
 

 
Appellant :- Hari Dutt Tewari
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Abhai Srivastava,Puneet Kumar Shukla
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ramesh Sinha, J.

Hon'ble Brij Raj Singh,J.

(Delivered by Hon'ble Brij Raj Singh, J.)

1. Heard Shri Pradeep Kumar Tripathi, learned counsel for appellants in Criminal Appeal No.57 of 2006, Shri Nagendra Mohan, learned counsel for appellant in connected Criminal Appeal No.1627 of 2005, Shri Puneet Kumar Shukla, learned counsel for appellant in connected Criminal Appeal No. 30 of 2006 and Shri Vishwas Shukla, learned A.G.A. for State-respondents.

2. Eight accused persons, namely, Sohan, Saktoo, Ram Singh, Shyampal Singh, Maiku, Kamlesh, Ajay Kumar alias Jitu, Hari Dutt Tewari, were tried by the Additional Sessions Judge (Fast Track Court No.4), Sitapur in Sessions Trial No. 202 of 1998 : State Vs. Sohan and others arising out of Case Crime No. 244 of 1997, under Sections 147, 148, 149, 302, 307, 404, 506, 120-B, 201, 216 I.P.C., Police Station Mishrikh, District Sitapur, whereas two accused persons, namely, Hari Dutt Tiwari and Ram Kishun, were tried in Sessions Trial No. 362 of 2000 : State Vs. Hari Dutt and another, arising out of Case Crime No. 213 and 214 of 1997, under Section 25 (1-B) of the Arms Act, Police Station Misrikh, District Sitapur.

3. Vide common judgment and order dated 17.12.2005, the Additional Sessions Judge (Fast Track Court No.4), Sitapur, while acquitting the accused Ajay Kumar alias Jitu under Sections 148, 307 read with 149, 302 read of 149 I.P.C. in Sessions Trial No. 202 of 1998; and accused Hari Dutt Tewari under Section 25 (1-B) of the Arms Act; and accused Ram Kishun under Section 30 of the Arms Act in Sessions Trial No. 362 of 2000, convicted and sentenced the accused persons, Sohan, Saktoo, Ram Singh, Shyampal Singh alias Babloo Singh, Maiku, Kamlesh, Hari Dutt Tewari, in the manner stated hereinbelow :-

"Accused Sohan, Saktoo, Ram Singh, Shyampal Singh alias Babloo Singh, Maiku, Kamlesh, Hari Dutt Tewari :-

(1) Under section 148 I.P.C. to undergo one year's simple imprisonment; and

(2) Under section 307 read with 149 I.P.C. to undergo seven years rigorous imprisonment and fine of Rs.2000/-. In default of payment of fine to undergo additional six months' simple imprisonment.

(3) Under section 302 read with 149 I.P.C. to undergo imprisonment for life and fine of Rs.5000/-. In default of payment of payment of fine to undergo additional one year's imprisonment.

Accused Sohan

(1) Under Section 404 I.P.C. to undergo two years' imprisonment and fine of Rs.500/-. In default of payment of fine to undergo additional three months' imprisonment.

4. Feeling aggrieved by their conviction and sentences, convicts/ appellants, Sohan, Sakatoo, Ram Singh, Maiku and Kamlesh have preferred Criminal Appeal No. 57 of 2006, whereas convicts/ appellants Shyam Pal Singh alias Babloo Singh has preferred Criminal Appeal No. 1627 of 2005 and convict/appellant Hari Dutt Tiwari preferred Criminal Appeal No. 30 of 2006.

5. It transpires from the record of Criminal Appeal No. 57 of 2006 that convict/appellant no. 5-Kamlesh died, hence his appeal stood abated vide order dated 15.09.2016 passed by a Co-ordinate Bench of this Court. Now, Criminal Appeal No. 57 of 2006 survives only in respect of convicts/appellants Sohan, Sakatoo, Ram Singh and Maiku.

6. Since common questions of law and facts are involved in the above-captioned appeals, hence they are being decided by a common judgment.

7. Vinay Kumar Yadav (P.W. -1) lodged report mentioning therein that he was deciding disputes in the police station Machharehta. S.I. Ram Lal Pandey and attached Head Constable (Tej Bhan Singh) went to Misrikh from Machharehtha on Yamaha Motor Cycle at 7:00 O' Clock in the evening. After sometime he proceeded to Misrikh from Machharehtha by Government Jeep No. U.P. 34A 5605. As soon as he reached at Machharehta Misrikh Road situate in Dhandhari Jungle, he heard sound of firing. He saw that there were 8-10 criminals armed with firearms, lathi and kanta ran away towards the northern side of jungle and they were identified in the search light of the vehicle by constable Rampal Verma, Constable Jai Singh, Constable Driver Lal Bahadur, who were accompanying him. He mentioned in the F.I.R. that he can identify the persons in case they are brought before him. On exhortation, the miscreants while firing and threatening of dire consequences, ran away in the jungle by intimidating the complainant and his party. Jeep was stopped on road and he found that S.I. Ramlal Pandey and Constable Tej Bhan Singh, were lying on the road who had received many injuries on their body and S.I. Ram Lal Pandey was dead. Constable Tej Bhan Singh was breathing and he was at the verge of death. On asking Deewan (Police Constable) Tej Bhan Singh, could only tell that an encounter with miscreants took place and thereafter he died. The motor cycle of Dewan was lying on spot but the watch & pistol of S.I. were missing.

8. The report was lodged under Sections 147, 148, 149, 302, 307, 506, 404, 120B, 201 and 216 I.P.C in Case Crime No. 244 of 1997. The case was investigated and 4 cartridges of 12 bore, one bullet of 303 and 3 empty cartridges of 9 M.M. and one Yamaha Motorcycle was recovered from the place of occurrence. The dead bodies were taken into custody and inquest was prepared and both bodies were sent to District Sitapur for the post mortem.

9. During investigation, Hari Dutt Tewari-accused was arrested along with SBBL Gun along with 12 bore butt and further six cartridges of 12 bore and two L.G. was recovered from him. On being asked to show licence, he stated that the said gun was belonging to Ram Kishun son of Ramdeen and it was in his possession for the last one and half year. He further confessed that he killed Daroga and one Deewan, with the help of same gun along with his accomplices, co-accused, namely, Shyamlal @ Babloo, Maiku, Kamlesh, Sohan, Sakatoo, Fakkad @ Ram Lakhan and Ram Singh. Against accused Hari Dutt, case under Section 25(1)(b) of the Arms Act was also imposed and Section 30 of the Licence Act was also imposed upon co-accused Ram Kishun.

10. The charge sheet was filed in the Court and cognizance was taken. The charges were framed against the accused on 31.10.1999 and the charges were framed against co-accused Sohan under Section 404 I.P.C. on 17.06.2004. The accused denied the charges and pleaded for trial.

11. The prosecution had produced witnesses, namely, P.W.-1 -Vinay Kumar Yadav (Informant), P.W. -2 -Jai Singh (Constable), P.W. - 3 - Ram Pal Verma (Constable), P.W. - 4 - Lal Bahadur (Driver), P.W. - 5 - Chandrabhan Dubey (Inspector), P.W. -6 - Ram Naresh Singh (Constable), P.W. - 7 - Ram Lakhan Verma, P.W. - 8 - Raghubeer Singh (Head Constable), P.W. - 9 - Dr. S.S. Trivedi, P.W. - 10 - Suresh Singh, P.W. - 11 - Sukh Ram, P.W. - 12 - Sabhajeet Singh, P.W. - 13 - Sudama Ram, P.W. - 14 - Jai Singh and P.W. - 15 - Nisar Ahmed in Sessions Trial No. 362 of 2000. S.I. Surendra Nath Tripathi was examined who proved his case under the Arms Licence Act against accused Hari Dutt.

12. The post mortem on the body of both the deceased was conducted by Dr. S.S. Trivedi. The post mortem of deceased Tejbhan Singh indicates following two injuries :-

"(i) Firearm wound of entry 3cm X 3cm X abdominal cavity deep on left side lower abdomen just above left Ant. Superior iliac spine. Margins lacerated, inverted blackened.

(ii) Lacerated wound 4.5 X 1/2 cm X scalp deep on the top of skull 10 cm above back of Rt ear."

13. The cause of death of Tej Bhan Singh was opined to have occurred due to hemorrhage and shock as a result of Injury No. 1.

14. Similarly, the post mortem conducted on the body of deceased Ram Lal Pandey, on 11.08.1997 indicates following six antemortem injuries.

"(i) L.W. 6 cm X 1 cm X scalp deep on the Rt side forehead 5 cm above Rt eyebrow.

(ii) Fire Arm wounds of entry left side face 2cmX2cmX buccal cavity deep 2.5 on medial from (L) trogus firarm margins inverted, lacerated and blackend tatooing present.

(iii) Wound of exit 14cm X 10cm X (sick) with inj. no. 2 margins are everted and Lacerated with fractured of upper and lower Jaw bones. Tongue lacerated. Mouth and pellets badly lacerated.

(iv) Fire arm wound of entry over Rt (soft and hard) arm wound 2cm X 2cm muscle deep 8cm above Rt. Elbow margins injury no. 3 are inverted, lacerated and blackened wound is communicating with.

(v) exit wound of firearm overmiddle side of arm 2.5cm X 2.5cm with everted margins.

(vi) Firearm wound of entry 5cm X 5cm (Paper torn) over rt. Side of upper Abdomen 15cm (Paper Torn) nipple at 7 O' clock position margins are inverted and lacerated (Paper Torn)"

15. The cause of death of Ram Lal Pandey was opined to have occurred due to hemorrhage and shock as a result of antemortem injuries.

16. The accused were confronted under Section 313 Cr.P.C. They denied all the charges and submitted before the Court that they were falsely implicated. Accused Sohan deposed before the Court that he was caught by the police in some other case and was falsely implicated in the present case. Accused Maiku deposed that he was arrested in his Sasural (in-laws house), Birsapur and then brought to police station. Accused Ajai deposed that being supporter of Bhartiya Janta Party, he has been falsely implicated on account of influence of Om Prakash Gupta, M.L.A., Samajwadi Party and he was arrested from his house. Accused Hari Dutt also submitted that being a leader of B.J.P., he has been falsely implicated by the police under the influence of the aforesaid M.L.A. of Samajwadi Party. Accused Shyampal Singh and his father Munshi Singh were brought to Police Station - Mishrikh by arresting them from their house. Accused Sakatoo stated before the Court that due to enmity relating to elections of Gram Pradhan, he has been falsely implicated and the same fact was stated by Kamlesh as he too stated that it is enmity relating to Gram Pradhan elections therefore he was implicated in the case. Accused Ram Kishun has stated that he was falsely implicated showing false recovery against him.

17. D.W. - 1 Shankar was produced by the co-accused to take defence by showing Paper No. - 203Ka to 7.

18. After recording the statements of witnesses and adducing the evidences on record, the trial court passed judgment on 17.12.2005 by which the accused have been sentenced and convicted under Sections 148, 307/149, 302/149 I.P.C. and the accused Sohan was sentenced and convicted under additional Section 404 I.P.C. apart from aforesaid sections. Hence the present appeals.

19. P.W.-1 (Vinay Kumar Yadav) was examined before the court below and he deposed the same facts which he narrated in the F.I.R. P.W. -2 - Constable Jai Singh was also examined and he deposed before the court that he was posted as Constable and was in the company of C.O. (P.W. -1) and S.I. Ramlal Pandey and Head Constable Tejbhan Singh along with Constable Rampal, were also present. He further stated that C.O. Vinay Kumar Yadav was deciding the disputes/complaints within the police station and was present there. S.I. Ram Lal Pandey and Constable Tej Bhan Singh proceeded to Police Station Mishrikh through Motorcycle. He further stated that S.I. Ramlal Pandey was posted at Chauki Mishrikh and Head Constable Tej Bhan Singh was posted in the office of C.O. He deposed that after sometime, they proceeded to Mishrikh along with Constable Rampal Verma, Lal Bahadur Driver and C.O. At about 7:45 p.m. they reached to Dhandhari Jungle, where, they saw Head Constable Tejbhan Singh and S.I. Ramlal Pandey were having altercation and fighting with some miscreants. He saw the said incident in the light of Jeep and there were eight miscreants armed with Lathi, Kanta and Firearms. He further deposed that when they saw the incident, they stopped Jeep and came down and saw that miscreants were beating Head Constable Tejbhan Singh and S.I. Ramlal Pandey. The miscreants were assaulting the Head Constable and Ramlal Pandey with lathi and by firing gun and on exhortation, the miscreants ran away from the place by firing in the air. They went near them and found that S.I. Ramlal Pandey was dead and Head Constable Tejbhan Singh was breathing, who told the C.O. that the miscreants fired on them and they were beaten with lathi and they fired bullets upon them. He further deposed before the court that he saw the faces of the miscreants in the search light and head light of the vehicle and miscreants were not known to him. He identified the seven miscreants in the jail. He was further asked to identify the seven accused in court and he caught hand of a accused and told that he had identified that accused in jail and that accused was involved in the commission of crime. The accused told his name Kamlesh. He further deposed that he identified four other accused who were identified in jail and stated that they were involved in the crime.

20. The accused told their names as Sohan, Sakatoo, Ram Singh and Maiku, who were identified in the court. He further deposed that he had seen the accused committing the crime but before the court he submitted that they did not commit the crime, thus, he was declared hostile.

21. P.W.-3 (Rampal Verma) was also accompanying the C.O. On 10.08.1997 at the relevant time who deposed that at about 7:00 O' Clock in th evening, S.I. Ramlal Pandey and Deewan Tejbhan Singh had gone to Police Station Chauki Mishrikh. C.O. and he proceeded towards the place of incident at 7:45 P.M. The search light of the Jeep was on and he saw that Ramlal Pandey and Constable, were lying on the ground. The miscreants were armed with lathi, firearm and kanta. He was not familiar with any of the miscreants. When he chased the miscreants, they threatened him to kill and went in the jungle. When he came back he saw that Darogaji was no more but Head Constable was breathing. He deposed before the court that he had gone in District Jail in identification parade and he identified one person by catching his hand whose name was Kamlesh. The second accused whose hand he caught was Hari Dutt and the other accused told his name Shyam Pal. Out of the accused persons, he caught the hand of one another accused whose name was Maiku. He deposed before the court that these accused had committed the crime.

22. P.W. -4 (Constable Lal Bahadur) was also examined before the court below. He stated the same fact in respect of the incident as narrated by P.Ws. -1, 2 and 3 in the examination in chief. He deposed in the cross-examination that in the light of vehicle, he saw the accused running away from the place after committing the crime who were 7-8 in number. He deposed that the accused were firing while running away from the place of occurrence. S.I. Ramlal Pandey died on the spot however, Head Constable Tejbhan Singh was gasping and when P.W. -1 asked from Head Constable Tej Bhan Singh, he told that the miscreants fired on them and caused injury and he died. He further deposed before the court that he went in the jail for identification of the accused. He caught the hand of Ram Singh, Sakatoo, Hari Dutt, Sohan and Kamlesh thus he identified five accused but he did not identify the other accused.

23. P.W.-5 Chandrabhan Dubey, the Investigating Officer was examined before the Court who proved the F.I.R. and case diary. He deposed that he investigated the case and recorded the statement of witnesses under Section 161 Cr.P.C. He also deposed that he conducted the inquest report and recovered blood stains etc. He proved the sealed cover in which cartridges, firearm and bullets were kept.

24. P.W.-6 (Constable Ram Naresh Singh) was also examined who deposed that accused Hari Dutt was arrested by him along with SBBL Gun and six live cartridges. Accused Hari Dutt did not show any licence and he confessed that he killed the deceased by the same firearm along with co-accused Fakkad, Ram Singh, Sohan, Babloo, Sakatoo, Kamlesh and Maiku. He arrested the accused Hari Dutt and brought to the police station on 21.08.1997.

25. P.W.-7 (Constable Ram Lakhan Verma), P.W. -8 (Constable Raguvir Singh), are formal witnesses who have proved the documents of the prosecution.

26. P.W. - 9 (Dr. S.S. Trivedi, Senior Radiologist) was examined who deposed that the body of the deceased Tejbhan Singh was brought on 11.08.1997 at 3:15. The deceased had received two injuries and died due to shock and hemorrhage as a result of ante mortem injuries. He further deposed before the court that other deceased Ramlal Pandey was also brought at 4:15 P.M., the post mortem was conducted and six injuries were found on his person. The cause of death opined to have occurred due to shock and hemorrhage as a result of ante mortem injury.

27. P.W. -10 (S.I. Suresh Singh) had done inquest of the deceased and he proved the entire documents of the inquest. P.W. -11 (Sukhram Yadav) was also examined before the court. He deposed that accused Sohan was arrested by him along with a pistol and a magzine. He deposed that co-accused Sohan had confessed that he committed the murder of the deceased along with other co-accused. This P.W.-11 is witness of fact. P.W. -12 (Head Constable (Sabhajeet Singh) is the formal witness who desposed that he prepared the Chik F.I.R. No. 135/1997. Similarly, P.W.-13 (S.I. Sudama Ram) also deposed before the court that he conducted the investigation of Case Crime No. 213 of 2019 and Case Crime No. 214 of 1997, under Section 25(b) of the Arms Act which was handed over to him on 22.08.1997. He further deposed that S.I. Surendra Nath Tiwari did the earlier investigation. He is the formal witness who submitted that he recorded the statements of witnesses under Section 161 Cr.P.C.

28. P.W. -14 (Jai Singh) deposed before the court that he knew Rama Shankar Singh Parihar who were posted with him. He proved the charge sheet Exhibit -31. He submitted that he filed the charge sheet against Shyampal, Maiku, Hari Dutt, Kamlesh, Ajay Kumar @ Jeetu vide Exhibit -32 and deposed that Ramashankar Singh Parihar, S.I. has died.

29. P.W. -15 (Nisar Ahmad) was posted as Additional Magistrate in District Sitapur who deposed before the court that he visited to District Jail, Sitapur on 28.10.1997 in the identification parade. The identification proceeding of Kamlesh Kumar, Maiku, Hari Dutt, Shyampal was conducted in jail. The identification of accused Sohan, Sakatoo, Ram Singh, was done on 13.01.1998 in the jail.

30. The accused has taken plea that the identification parade was done after two months from the date of incident, has shattered the prosecution case. The date of incident is 10.08.1997 and the identification of the accused was done in the jail on two dates i.e. 28.10.1997 and 13.01.1998. It is submitted by the counsel for the appellants that after two months from the date of incident, the first identification parade was done in the jail 28.10.1997 and the appellants were not veiled and the appellants were brought to the police station and then they were sent to jail. They were pre-identified by the witnesses, thus, the entire identification proceeding was sham and appellants were falsely implicated. The appellants were identified by the witnesses who were police personnel either in the police station or while the applicants were arrested at the spot. It has been further submitted by the counsel for the appellants that the accused ran away from the place of incident and police party saw them from behind, thus they could not identify the face of the accused appellants. The appellants were rather identified firstly and then after long lapse of time identification was done in jail which casts high doubt on the part of prosecution.

31. Counsel for the appellants submitted that the accused Maiku was arrested in Village Birsapur and was falsely implicated. The identification parade was not not done as per the standard. The accused appellant has taken plea that there is no Recovery Memo of "source of light". The memo recovery Exhibit Ka-2 of the site plan has been prepared by the Investigating Officer but there is no memo recovery of "source of light". In the statement of P.W.-1, P.W.-2 and P.W. -3, it has been categorically deposed before the court that in the head light of Jeep and search light, they identified the accused who were running from the place but no such recovery of "source of light" is made. A Division Bench of this Court in the case of Uma Ram and Others Vs. State of U.P. [Criminal Appeal Nos. 3067 and 2915 of 2013, decided on 10.07.2018], considered the issue of "source of light" in the following words:

"82. In our opinion there are contradictions in material particulars which go to the root of the case namely, identifying the presence of the appellants at the time of incident. The presence of PW-1 inside the house is established but his testimony having witnesses the assault and the assailants fleeing away from the scene is not established at all. Additionally, as discussed above even the source of light was not proved as observed by the Apex Court in the judgments relied upon on by the learned counsel for the appellants."

32. It has been argued by the counsel on behalf of accused Sohan, Sakatoo and Ram Singh that there was no recovery against them and they surrendered themselves. Accused Ram Singh was a resident 40 Kms away from the place of occurrence, therefore was falsely implicated. It has been argued by the counsel on behalf of appellant Sohan that the country-made pistol and cartridges were recovered but the same were not produced before the court and Sohan was first identified by photographs taken by the police and then identification was done.

33. The submission is made on behalf of accused Shyam Pal Singh that he was arrested by the police on 16.08.1997 and thereafter he was kept in custody at police station illegally for which various communications were made. Similarly, counsel for the accused Shyampal Singh @ Bubloo has submitted that police witnesses are chance witnesses and there presence is highly doubtful. It has further been argued on behalf of the appellant that the accused are said to have run away towards north-west and in that state only back portion of the body of accused could be identified and it was not possible to identify the face.

34. P.W. - 1 - Vinay Kumar Yadav could not identify accused Maiku in the court and he was declared hostile. In cross-examination, Vinay Kumar Yadav admitted that he conducted the identification proceeding against Maiku and he identified him in jail but after long lapse of time he was unable to identify him in the court. It is very strange that after two months in identification proceeding, he identified Maiku in jail but during cross-examination before the court, he deposed that he could not identify him.

35. Accused Hari Dutt was also identified in identification proceeding after more than two months. He was arrested in other case and thereafter he was remanded in the present case. There is no documentary evidence produced by the prosecution to connect the link of the recovered gun from the possession of Hari Dutt. The gun recovered from Hari Dutt was never sent for examination in laboratory. The thumb impression of the appellant was not taken and no opinion was obtained. The gun was belonging to Ram Kishun who was licensee of the said gun. The gun of Ram Kishun was taken into custody from his house and the same was shown to have recovered from the custody of accused Hari Dutt and later on it was said to be used in the act of commission of crime.

36. Accused Ram Kishun had two houses one situate in village and other in Misrikh Kasba. The gun of Ram Kishun was said to be used by Hari Dutt in the act of commission of crime. Accused Ram Kishun was residing in the house situate in Misrikh whereas his brother was residing in the house situate in village and the gun was recovered from the house situate in village and cartridges were also recovered. Accused Ram Kishun had not handed over his gun to Hari Dutt. The recovery of gun of Ram Kishun from Hari Dutt is highly doubtful. The gun which was recovered had no smell of gun-powder.

37. The record reveals that the accused Kamlesh Kumar, Maiku, Hari Dutt and Shyampal were identified in jail on 28.10.1997 after elapsing two months from the date of their arrest. Accused Sohan, Saktu, Ram Singh were identified on 13.01.1998 and they were not veild/covered for this period, thus, it creates high doubt on proceedings of identification. Accused Shyampal Singh @ Bubloo was arrested on 16.08.1997. Accused were in jail for two months and they were also attending the proceedings of the case. There is doubt regarding the identification proceedings because during these two months, it is all probable that the appellants being unveiled/uncovered would have been pre-identified by the witnesses.

38. Another surprising and doubt-casting fact is to be analyzed that if the accused were running towards north-west of the Jungle, how it was possible to identify them from behind as in that state the faces of the accused would be towards opposite side and in all probability only the back portion of the body of the accused could have been seen.

39. C.O. Vinay Kumar Yadav has stated that he reached to the spot along with police party and saw that Tejbhan Singh and Ramlal Pandey were lying on the ground and Tejbhan Singh told him that there was encounter with some miscreants and they received injuries, due to which S.I. Ramlal Pandey died. It appears that these witnesses are chance witnesses and their presence is highly doubtful because nowhere, it is stated by any of the witness that any information of encounter was received. It is really unnatural to believe that C.O. Along with other police personnel reached to the spot where encounter took place and that too without information. The incident occurred at a place and encounter took place between two police personnel and the accused but the witnesses reached to the spot, by chance. The presence of the witnesses is highly doubtful.

40. We have to analyze the case on the anvil of possibility of two views and their impact for conviction or acquittal on the accused. In case two views are possible and if doubt is there, then, why accused appellants should be convicted.

41. In the case of State of U.P. Vs. Banne and Others [(2009) 4 SCC 271], the Hon'ble Supreme Court has held that if a serious doubt has been cast on the credibility of the prosecution version, High Court was justified to allow the appeal by setting aside the conviction, which reads as under:

"The High Court in the impugned judgment arrived at a definite finding that it is highly doubtful that the complainant party was in exclusive possession of the disputed land at the relevant time and witnesses Sahadeo PW3 and Narayan PW4 cannot be considered to be independent witnesses. A serious doubt has been cast on the credibility of the prosecution version. The High Court allowed the appeal and set aside the conviction and sentence of the appellants and they were acquitted of the offences charged for."

42. The Hon'ble Supreme Court further in a judgment rendered in the case of State of Uttar Pradesh Vs. Wasif Haider and Others [(2019) 2 SCC 303] has observed that a suspicion, however grave it may be, unless proved otherwise, conviction is not sustainable in the following words:

"10. Prosecution had failed to link chain of circumstances so as to dispel cloud of doubt about culpability of Accused-Respondents. It was well settled principle that a suspicion, however grave it may be cannot take place of proof, i.e. re was a long distance between "may be" and "must be", which must be traversed by prosecution to prove its case beyond reasonable doubt."

43. In catena of cases, Hon'ble Supreme Court has also considered the identification proceeding and observed that after a long lapse of time, if identification of the accused is conducted, the same would be doubtful on its genuineness. In the case of Soni Vs. State of Uttar Pradesh [(1982) 3 Supreme Court Cases 368(I)], Hon'ble Supreme Court held thus:

"2. After hearing counsel on either side we are satisfied that the conviction of the appellant for the offence of dacoity is difficult to sustain. The conviction rests purely upon his identification by five witnesses, Smt. Koori, Pritam Singh, Kewal, Chaitoo and Sinru, but it cannot be 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. We therefore allow the appeal and acquit the appellant."

44. Also in the case of Hari Nath and Another Vs. State of U.P. [(1988) 1 Supreme Court Cases 14], observed that after long lapse of time, if identification is conducted without explanation of delay, there is no justification to support the conviction and held thus in para 23 and 25 of the said judgment:

"23. We are afraid in the present case, there is a serious lapse on the part of the prosecution in putting up the suspected culprits for a test identification after a lapse of four months after their arrest. There is no explanation at all for the delay. There might conceivably, be occasions when there could be justification, or acceptable explanation, for the delay. There are cases where the delay was at the instance of the accused persons themselves as they expressed a choice as to the venue for the test parade. There may be other causes, which in the very nature of things cannot be exhaustively enumerated. Cases can only be illustrative....

25. The benefit of this regrettable and wholly unexplained lack of promptitude in holding the test identification, we are constrained to say, enures to the appellants. The evidence of test identification lacks the requisite element of reassurance to support the conviction. A reasonable doubt arises."

45. Thus, considering the evidence led by the prosecution it is not established beyond reasonable doubt that the appellants could be held responsible for the incident which has taken place and further applying the well-settled law by the Apex Court referred above, the impugned judgment and order dated 17.12.2005 is hereby set-aside. Convicts/appellants Sohan, Sakatoo, Ram Singh, Maiku, Shyam Pal Singh @ Babloo Singh and Hari Dutt Tewari are hereby acquitted from the charges levelled against them. They are on bail and they need not surrender. Their bail bonds are cancelled and sureties discharged. .

46. Convicts/appellants Sohan, Sakatoo, Ram Singh, Maiku, Shyam Pal Singh @ Babloo Singh and Hari Dutt Tewari are directed to file a personal bond and two sureties each in the like amount to the satisfaction of the court concerned in compliance of Section 437-A Cr.P.C. within six weeks from today.

47. The above-captioned appeals are allowed in above terms.

48. Copy of this judgment as well as the Lower Court Records be sent to the court concerned forthwith for necessary information and follow-up action, if any.

[Brij Raj Singh, J.]    [Ramesh Sinha, J.]
 
Order Date :- 25.08.2022
 
Arun K. Singh