Daya Ram Pasi vs State Of U.P.
2023 Latest Caselaw 24095 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


A.F.R.
 
Neutral Citation No. - 2023:AHC-LKO:58601
 
Reserved on 23.08.2023
 
Delivered on 06.09.2023
 
Court No. - 29
 

 
Case :- CRIMINAL APPEAL No. - 586 of 2003
 

 
Appellant :- Daya Ram Pasi
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Nisha Srivastava
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Mrs. Jyotsna Sharma,J.

1. Heard Smt. Nisha Srivastava, learned counsel for the appellant, Sri Yugal Kishore, learned A.G.A. for the State and perused the material brought on record.

2. By means of this criminal appeal, the sole appellant- Daya Ram Pasi has challenged the order dated 22.03.2008 passed by learned Additional Sessions Judge, Court No.29, Barabanki in S.T. No.192 of 1993 arising out of Case Crime No.10 of 1991, under sections- 395/397 I.P.C., Police Station- Ram Nagar, District- Barabanki, whereby the accused-appellant has been convicted and sentenced for seven years rigorous imprisonment with fine of Rs.10,000/-.

3. The facts relating to this appeal are as below:-

* As per prosecution case, the first informant- Bhai Lal, on the basis of hand written tehrir, got lodged an F.I.R. The tehrir said that the previous night at about 1:00 a.m., some burglers, with the help of a bamboo climbed over his roof and intruded inside to commit theft. Hearing some noise, his wife woke up and raised alarm. The first informant tried to catch hold of them, but they roughed him up with the danda held by them; they were seven persons. The first informant could see their faces in the light of lantern; they also thrashed his father-in-law, who was lying in the veranda. They took away a number of items made up of gold and silver (as detailed in the tehrir). After committing dacoity in his house, they entered in the house of Maya Ram and Satguru, who resided in his immediate neighbourhood. The first informant, Maya Ram, Satguru, Muneshwar Prasad, Hinsit Lal and a number of co-villagers collected on their raising alarm; all of them saw the dacoits taking away their belongings. When the villagers tried to follow them, they threw grenades on them.

* On the basis of this written report, an F.I.R. being Case Crime No.10 of 1991, under section- 459 I.P.C. was registered and investigated upon; one of the accused Daya Ram Pasi was charge-sheeted by submitting a supplementary charge-sheet under sections- 395 and 397 I.P.C.

* The Investigating Officer visited the spot and prepared the site map, separate seizure memos of taking into possession the lantern, the torch, the bamboo; collected the medical examination reports of Ishwardeen, Bhai Lal and Arvind Kumar; the suspected accused persons were put to identification test in District Jail, Barabanki and instant accused Daya Ram Pasi was identified by the witnesses and charge-sheeted.

* The accused was put to trial and was convicted for the offence under sections- 395 read with 397 I.P.C. and was sentenced to seven years rigorous imprisonment and a fine of Rs.10,000/-. Now, the convict-appellant is before this Court in this appeal.

4. Besides producing the prosecution papers viz. photocopy of tehrir, copy of identification test, chik F.I.R., charge-sheet, site-map, the X-ray reports and the injury reports, the prosecution examined P.W.1- Rama Devi @ Phoolmati, P.W.2- Arvind Kumar and P.W.4- Maya Ram as the eye-witnesses; P.W.3- Bhai Lal (the first informant and the eye-witness), P.W.5- S.I. Om Prakash (the Investigating Officer), P.W.6- S.I. Raghunandan Prasad (the Investigating Officer) and P.W.7- Dr. Madan Lal.

5. Before I proceed to take the contentions of the defence, it shall be useful to briefly mention the oral testimony given by the prosecution witnesses.

* P.W.1- Ram Devi @ Phoolmati has stated that she with her children was sleeping on the roof. The dacoits climbed over and asked her to open the door. She refused to budge. They broke upon the door and tried to manhandle and drag her inside. She managed to extricate herself and jumped on the ground. They were five in all. They opened the main door from inside. The dacoits who were standing outside intruded. They assaulted her husband; took away cash of Rs.800/-, the silver and gold jewellery worth Rs.1 lakh; initially his husband refused to tell them about the place where jewellery etc. was kept safe, but when they threatened to put him on fire after pouring kerosene, her husband disclosed the place and they removed the jewellery. They were having fire arms and hand grenades; she could not recognize them because they were throwing light on her face directly.

* P.W.2- Arvind Kumar has said that he saw the dacoits committing dacoity. He was spotted by them and they threw hand grenades at him and he sustained injuries by their explosion. He could not recognize any of them.

* P.W.3- Bhai Lal (the first informant) has supported the prosecution story and the evidence given by his wife as P.W.1, stating that the dacoits, after climbing over his roof intruded inside. They opened the main door and took him as hostage. 5 or 6 persons were inside and a few were outside. They physically assaulted him and caused him injuries on his head. They had threatened him to set him ablaze by pouring kerosene and putting him on fire. They looted jewellery worth Rs.1 lakh, Rs.800/- cash and some other things like quilt, mattress, blanket etc.

Most important evidence regarding identification of the culprit has been given by this witness. He said that a test identification parade of suspect accused persons was conducted. He identified one of them Daya Ram Pasi correctly. This witness identified accused Daya Ram Pasi in open court and said that he was the person who had committed dacoity and had physically assaulted him causing him injuries. That day three houses were looted. The witness has also given evidence regarding his medical examination and hand written report of the incident given by him.

* P.W.4- Maya Ram has said that after committing dacoity in the house of Bhai Lal, the dacoits entered his house. By that time, he had whisked away women and the children of the house to a safer place. The witness has further stated that the dacoits looted property from his and his brother Satguru's house. He could see their faces in the light of torch.

This witness has identified his signatures on the identification test report (Exhibit ka-1); he could identify one of the culprits, who is present in the Court.

This witness most importantly identified the accused in open court and said that he was the same who committed dacoity in his house. He with his companions had looted jewellery, clothes and cash from his house.

* P.W.5- S.I. Om Prakash Tripathi (the Investigating Officer) has proved the charge-sheet.

* P.W.6- S.I. Raghunandan Prasad Kannaujia (the Investigating Officer) has proved the prosecution papers namely site map (Exhibit ka-4), the seizure memo of lantern (Exhibit ka-5), the seizure memo of bamboo (Exhibit ka-6); he has stated that after conduct of test identification parade, he submitted charge-sheet against certain accused persons, thereafter the investigation was taken over by S.I. Om Prakash Tripathi.

* P.W.7- Dr. Madan Lal has proved the injury reports of injured namely Ishwardeen, Bhai Lal and Arvind Kumar. The doctor found that some of the injuries were caused by some explosive substance and some by blunt objects.

6. The accused-appellant Daya Ram Pasi, in his statement recorded under section- 313 Cr.P.C., denied his involvement in the incident; he stated that the police had filed a wrong challan against him. He, in answer to specific query raised in the statement under section 313 Cr.P.C., stated that the witness Bhai Lal could identify him in the test identification parade because he was shown to the witness by the police. He did not give any evidence in defence.

7. From the papers on record, it appears that a supplementary charge-sheet was filed against the present accused/appellant and that at that time the investigation against a number of other accused persons was still going on as they could not be apprehended. Besides two accused namely Keshan Yadav and Ram Suresh Pasi were charge-sheeted earlier.

8. As far as the occurrence is concerned, P.W.1- Ram Devi, P.W.2- Arvind Kumar, P.W.3- Bhai Lal and P.W.4- Maya Rama, who are witnesses of the fact have given consistent statements that on that day, after 12:00 midnight, a number of dacoits first committed dacoity in the house of Bhai Lal; they managed to climb over the wall and reach the roof of his house with the help of a bamboo pole; they opened the door and looted the property; they resorted to violence. It has come in the evidence that they threatened to set the first informant- Bhai Lal on fire. He has stated that not only Bhai Lal was beaten but his wife was also pulled by her hand to facilitate opening of the door of her house. The injury reports and the F.I.R. sufficiently corroborate the fact that an incident of dacoity took place. The bandits were having fire arms and hand grenades; they actually exploded the hand grenades to deter the inmates of the house from offering any resistance.

9. In my view, the prosecution has been able to prove that an incident of dacoity took place in the house of Bhai Lal, Maya Ram and Satguru. The most important question which remains to be decided by this Court is whether the instant appellant was one of the dacoits?

10. I perused the evidence given by the witnesses in this regard; P.W.1 and P.W.2 have not said anything with regard to the involvement of the instant appellant in the commission of dacoity. P.W.3 Bhai Lal has identified the accused in the open Court and said that he was the person who committed dacoity in his house; likewise P.W.4- Maya Ram has specifically said that the accused, who is present in the Court, was the person who had committed dacoity in Bhai Lal and his own house.

11. In this case a test identification parade was conducted in District Jail, Barabanki on 02.12.1991 as per rules, which is Exhibit ka-1. Witnesses Bhai Lal and Maya Ram both correctly identified the accused. Both had stated before the officer concerned, at the test identification parade, that he was one of the accused persons who committed dacoity in their houses.

12. It is contended on behalf of the defence that the identification parade has been carried out after a gap of a number of months and that it is not possible to retain the memory of face for such a long period. It has been further argued that the accused was shown to the witnesses at the police station itself, therefore the evidence of the prosecution cannot be relied upon.

13. I do not find any substance in the aforesaid arguments for the reasons as below:-

(i) Firstly, there were sources of light to sufficiently see their faces.

(ii) It is a fact of common knowledge when some incident of intense nature takes place, the victim may retain its vivid memory life long.

(iii) In his statement recorded under section- 313 Cr.P.C., the accused has claimed that his face was shown to first informant Bhai Lal. No such claim has been made as regards testimony given by witness Maya Ram. It may be noted herein that two specific questions were asked to the accused in this regard during recording of statement under section 313 Cr.P.C.; the accused has not said that his face was shown to P.W.4- Maya Ram as well. Both the witnesses have said that he was the person who committed dacoity in their houses; they emphatically identified the accused in the open court. The relevant portion of the oral testimony is as below.

* P.W.3 has said that "वही डकैत इस समय न्यायालय में उपस्थित दयाराम पासी है। इसी ने मुझे मारा पीटा और मेरे घर में डकैती डाली थी। इसने मेरे घर से माल लूटा था।"

* P.W.4 has said that "वही डकैत न्यायालय में उपस्थित दयाराम है। इसी ने डकैती डाली थी। अभिज्ञान परीक्षण के स्मरण पत्र प्रदर्श क-1 पर मेरा हस्ताक्षर है।"

(iv) Both the witnesses have denied having been shown the face of the accused before test identification parade was carried out; the evidence given by both the witnesses on this count is quite emphatic and convincing.

14. The identification of the accused in the open Court is a substantive evidence. The conduct of identification parade during the investigation, though a very important piece of evidence has, at the most, a corroborative value. There is nothing to suggest that there was any cause for them to falsely implicate the accused. The accused was not named in the F.I.R. It may be noted that the accused is a resident of another village. There is not even a suggestion of having any previous enmity or any reason which could have prompted the witnesses to identify falsely the accused as one of the dacoits or to doubt the identification evidence given by the prosecution.

15. The evidence produced by prosecution proves the fact that there were more than five persons who committed the dacoity. What was the fate of other persons, whether they were apprehended, whether they were put to trial, whether they were acquitted has no bearing in the instant case. The important thing is that there were more than five persons who conjointly committed the dacoity.

16. The learned trial court has elaborately dealt with the evidence produced by the prosecution and took up all the arguments advanced on behalf of the defence systematically and found the charges as having been proved beyond reasonable doubt. The learned trial court relied upon the judgments of Supreme Court given in Sampat Tatiya Shinde vs. State of Maharashtra, 1974 SCC (Criminal) 382 and Surendra Narayan @ Munna Pandey vs. State of U.P., 1998, SC Crl. Rul. 508 to support the finding that the identification of the accused during the recording of evidence is substantive one and the conclusions drawn or the result of identification proceeding has a corroborative value only.

17. I agree with the opinion of the trial court; the learned trial court has also tested the regularity of identification proceedings and found that it was carried out as per the rules and regulations and retained its corroborative value.

18. I do not find any infirmity in the inference drawn by the trial court. The judgment of the trial court is sound on facts as well as law and there is no merit in appeal.

19. Accordingly, this criminal appeal is dismissed. Accused-appellant shall immediately surrender before the court concerned to undergo remaining portion of the sentence. The sureties are hereby discharged from their liability.

20. Copy of this order shall be immediately transmitted to the court concerned for compliance.

21. A copy of the judgment be also handed over to the accused/his counsel free of cost immediately.

22. The court concerned shall transmit a copy of the judgment to concerned Superintendent of District Jail for handing over the same to the accused when he is taken into custody and is lodged therein.

Order Date :- 06.09.2023

Saif