Allahabad High Court Order

Allahabad High Court Order

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ORDER HEADLINE : Appeal Against Acquittal-incident 34 Years Ago-remand Of Case Not Desirable-bleak Chances Of Evidence Being Available-appeal Dismissed
ORDER TITLE : State Of U.P. Vs. Shamim Beg On 01/21/2011 By Allahabad High Court
CASE NO : GOVERNMENT APPEAL NO. 2971 OF 1980
CORAM : Hon'ble Vinod Prasad,J. And Hon'ble Yogesh Chandra Gupta,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved


GOVERNMENT APPEAL NO. 2971 OF 1980


State ......... Appellant

Vs.
Shamim Beg ............ Accused-Respondent


Hon'ble Vinod Prasad, J.
Hon'ble Y.C. Gupta, J.

Appellant-State Is Aggrieved By Acquittal Of Accused-respondent Shamim Beg By VIII-Additional Sessions Judge, Azamgarh Vide His Impugned Judgment And Order Dated 6.9.1980 Recorded In S.T. No. 471 Of 1976 (State Vs. Shamim Beg) For Charges Under Section 395 I.P.C., P.S. G.R.P.
According To The Prosecution Allegations, A Dacoity Was Committed In Down Train No. 284 By The Dacoits After Boarding In It At Didarganj Railway Station In A IInd Class Compartment. Train Passengers, During The Dacoity Threw Four Of The Miscreants Out Of The Train When The Dacoits Endeavour To Loot Them After The Train Started From Sarainmeer Railway Station. G.R.P. Picket, Which Was Travelling In The Train, Witnessed Some People Falling From The Train, Therefore, Endeavour To Stop The Train. Ultimately, Train Was Got Stopped At Fariha Railway Station. On Inquiry, The Police Personnel Found That The Dacoity Was Committed. They Went In Search Of The Miscreants And Found Blood Stains Lying Near The Railway Track But None Of The Dacoits Could Be Apprehended. Constable 136 Chand Dev Of G.R.P., Azamgarh, Scribed The FIR About The Said Incident, Which Had Occurred On 11.1.1976 At 5.00 AM And Lodged It At G.R.P. Police Station Out Post, Azamgarh On The Same Day At 10.20 AM Against The Unknown Dacoits. According To The FIR Version, Informant Chand Dev Was Travelling In The Said Train Along With Constable Surya Narain Lal. Two Of The Other Constables Shyam Narain Shukla And Tara Singh Had Also Boarded The Train. Dacoity Was Alleged To Have Been Committed In The Running Train And The Informant Had Witnessed One Person Falling Out Of The Train Near Outer Signal And Had Also Witnessed 2 Or 3 Assailants Jumping Out Of The Train Near Sanjarpur Halt. From The Inquiry By The Informant Two Of The Army Soldiers Namely Nayak Musafir Tiwari And Nayak Hare Ram Ojha Of 75 - Jammu Battalion Had Informed The Informant That The Miscreants Were Armed With Country Made Pistols And Knives.
After Registration Of FIR, Crime Was Got Investigated And During Investigation, Appellant And Three Other Miscreants Were Apprehended, Who Were Put For Identification. Accused-responded Shamim Beg Was Correctly Identified By Three Witnesses But Rest Of The Apprehended Accused Could Not Be Identified And, Therefore, On 20.3.1976, A Charge Sheet Was Submitted Against The Accused-respondent. A.P.O. Forwarded The Said Charge Sheet To The Court Of C.J.M., Azamgarh On 18.6.1976, On The Basis Of Which Cognizance Was Taken On The Same Day And 13.8.976 Was Fixed For Appearance Of The Accused.
After Looking To The Prosecution Papers, Case Was Committed To The Court Of Sessions Where Charge Was Framed Against The Accused-respondent On 28th July 1980, Under Section 395 I.P.C. By VIII-Additional Sessions Judge, Azamgarh. The Said Charge Was Denied By The Accused-respondent, Who Claimed To Be Tried.
Date For Prosecution Evidence Was Fixed On 26th And 27th August 1976 But The Prosecutor Did Not Examine Any Witness On These Dates. In Spite Of Direction By The Trial Judge, Neither S.O., G.R.P. Nor S.I., G.R.P. Produced Any Witness Before The Court. Three Of The Witnesses, Who Had Correctly Identified Accused-respondent Shamim Beg Where All G.R.P. Constables Posted At G.R.P., Mau. None Of These Witnesses Were Also Produced By The Prosecutor. On The Laxity Of The Prosecution, Though The Trial Judge Expressed Unhappiness But Gave One More Opportunity To Produce Prosecution Witnesses But In Vain. Since The Trial Court Found That Giving Of Opportunity To The Prosecution Will Be "totally Futile" And "it Would Have Been A Sheer Wastage Of The Courts Time And Further Harassment Of Accused" That The Trial Judge Refused To Grant Adjournment To A.P.O., Closed The Prosecution Case And Acquitted The Accused Vide His Impugned Judgment And Order Dated 6th September, 1980 By Observing That Though There Are Three Identification Against Accused-respondent Shamim Beg But Only One Identification Was Good, The Remaining Two Witnesses Shyam Narain Shukla And Tara Singh, During Identification Parade Committed One Right And Three Wrong Identifications.
Aggrieved By The Aforesaid Impugned Judgment Of Acquittal, The State Has Come Up In Appeal Before This Court.
We Have Heard Sri K.N. Vajpai, Learned Government Advocate In Support Of This State Appeal And Sri R.K. Pandey, Learned Counsel On Behalf Of Accused-respondent Shamim Beg And Have Perused The Record.
Perusal Of The Record Indicates That The Incident Occurred On 11th January, 1976 More Than 34 Years Ago. In Spite Of Repeated Opportunity, Prosecution Failed To Examine Any Witness During The Trial. Though, The Trial Judge Should Have Been More Careful In Conducting The Trial And Should Have Resorted To Coercive Measures To Compel The Prosecution To Produce Evidence, But We Find That After A Gap Of 34 Years It Will Neither Be In The Interest Of Justice To Set Aside The Acquittal And Direct A Retrial Nor The Evidences Will Be Available As On Date. We Are Not Sure Whether The Prosecution Witnesses Are Still Alive Or Dead. In Our Opinion After 34 Years To Direct A Retrial Will Be An Exercise In Futility. In Our Opinion, The Trial Judge Cannot Be Faulted With Because Of The Laxity On The Part Of The Prosecutor And The Investigating Officer In Tendering Evidences During The Trial And In Such A View, We Find No Merit In The Instant Appeal.
The Appeal Lacks Merit And Is Hereby Dismissed.

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