Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : No Conviction For Dacoity Can Be Recorded If Identification Is Not Confidence Inspiring/Appeal Is Partly Allowed.
JUDGEMENT TITLE : Ram Pal & Others Vs. State Of U.P. On 08/11/2011 By Allahabad High Court
CASE NO : CRIMINAL APPEAL NO. 2002 OF 2009
CORAM : Hon'ble Vinod Prasad,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 53
AFR

CRIMINAL APPEAL NO. 2002 OF 2009
Ram Pal And Others ........Vs...... State Of U.P.
Connected With
CRIMINAL APPEAL NO. 2648 OF 2009
Jagveer @ Jaggi And Another ........Vs...... State Of U.P.

Hon'ble Vinod Prasad, J.
Five Appellants In The Two Connected Appeals Namely Ram Pal (A-1), Vijai Pal (A-2), Netra Pal @ Pahalwan (A-3), Jagveer @ Jaggi (A-4) And Yash Pal (A-5) Are Aggrieved By Their Conviction And Sentence Recorded By 15th Additional Sessions / F.T.C. No. 5, Bulandshahar In S.T. No. 961 Of 1994 (State Vs. Ram Pal And Others), Dated 31.3.09 By Which Decision, Appellants A-2 And A-3 Have Been Convicted For Offences U/s 395, 412 I.P.C., Appellant A-1 Has Been Convicted U/s 395 I.P.C. And Appellants A-4 And A-5 Have Been Convicted U/s 412 I.P.C. For Proved Each Offence, Each Of The Appellant Has Been Sentence To 10 Years RI With Rs. 10,000/- Fine, The Default Sentence Being Six Months Further RI. Challenges In Two Connected Appeals Are To The Aforesaid Conviction And Sentence By The Appellants.
Recapitulating Prosecution Allegations Against The Appellants, As Was Reported By Informant Mahendra Singh (P.W.1), Cashier Of Government Agriculture School, Bulandshahr, In His Written FIR (Ext.Ka-1) Coupled With Chik FIR (Ext. Ka-17) And Later On Stated During Trial, Were That On 1.1.1994 He Along With Lajja Ram Yadav (lecturer), Hoshiyar Singh (peon), Of Government Agricultural School, Bulandshahar, Had Gone To State Bank, Bulandshahar To Withdraw Staff Salary, From Principal's Account No. 11018,in Jeep No. U.P. 32 D 0408 Driven By Raj Kumar And Got Debited Salary Amount Rs.1,38,295/-. They Returned Back To The School At 12 Noon And Stopped Their Vehicle In Front Of School Office. Except Driver Raj Kumar, Rest Of Them Alighted From The Jeep And Climbed Stairs To Enter In School Office, When All Of Sudden, One Of The Three Miscreants Armed With Country Made Pistols, Who All Were Standing There Since Prior To Their Arrival, Pressed His Country Made Pistol On Informant's Chest, While Other Snatched The Bag Containing Salary Money And Then All The Three Sprinted Towards School Gate With Decamped Money Bag. Informant And Other School Employees Sher Pal (gardner), Hoshiyar Singh, Lajja Ram Yadav, Babu Ram Tyagi, Ravindra Kumar And Others Raised Alarm And Chased The Miscreants And Succeeded In Apprehending Yamin (absconded Accused) And Appellant Ram Pal (A-1) At A Distance Of 150 Yards. Third Dacoit, Whose Identity Later On Was Disclosed As Netra Pal @ Pahalwan (A-3) However Made His Escape Good Along With The Decamped Money.
Informant P.W.1 Got The Loot FIR Scribed From Virendra Kumar And Then Along With Apprehended Accused Came To PS Kotwali, Bulandshahar, At A Distance Of Two And Half Kilometers, And Got It Registered As Crime No. 5 Of 1994, U/s 392 I.P.C., Same Day At 1.45 P.m. Against Three Named Robbers.
HM Sahdev Sharma Registered The Crime, Prepared Chik FIR (Ext. Ka-17) And GD Entry (Ext. Ka-18). Investigation Into The Crime Was Commenced By SI Ramendra Singh (PW7), Who After Copying Chik FIR And The GD Entry Recorded Statements Of Apprehended Miscreants And Thereafter Searched For The Third Eloped Accused For The Next Three Days. Since A-1 Stated That He Can Get Looted Money Recovered Therefore, I.O. Applied For His Remand. Thereafter PW7 Was Transferred And Therefore Follow Up Investigation Was Carried On By P.W.8 Inspector Jai Chandra Singh, Who Commenced It On 4.1.1994 Vide C.D. No. 4 And Recorded 161 Cr.P.C. Statements Of Sri R.K. Das, Joint Director/Principal, Agriculture College, Informant Mahendra Singh, And That Of Witnesses Raj Kumar, Babu Ram Tyagi, Ravindra Kumar, Shankar Pal Singh And Hoshiyar Singh. Conducting Spot Inspection PW8 Prepared Site Plan(Ext. Ka-7).Thereafter PW8,on The Following Day, Along With SI A.K. Dixit, SI A.K. Sachan, SI Gyanendra Kumar, SI Nem Chand Gangwar Accompanied With Other Police Force Came To The Sweetmeat Shop Of (A-4) At 11.30 A.m., Situated Within School Premises, And From There Arrested Five Accused, Netra Pal @ Pahalwan (A-3), Vijai Pal Singh(A-2), Ranveer @ Ranno (since Dead), Jagveer @ Jaggi (A-4)and Yash Pal Singh(A-5), After A Police Encounter, At 11.45 A.m., When They Had Alighted From A Tempo And Were Sitting At The Shop. From The Possession Of (A-3) A .315 Bore Country Made Pistol Along With An Empty And Two Live Cartridges Of The Same Bore Were Recovered. From (A-2) A.315 CMP Along With Empty And Live Cartridges Were Recovered. From Expired Accused Ranvir@ Ranno, And(A-4) Two Knives Were Recovered And From(A-5), A Kripan Was Recovered. Arrest And Recovery Memo Was Prepared, A Copy Of Which Were Handed Over To Apprehended Accused, Who All Were Then Brought To The Police Station And Were Lodged In Police Lock-up And Against Them Cases U/s 307 IPC And 25 Arms Act Were Registered. Arrest Of These Accused Resulted In Conversion Of Crime From 392 To 395/397/412 I.P.C. By P.W.8. On 5.1.1994 (A-3), Was Interrogated In The Police Lockup Who Confessed His Guilt And, Therefore, Separate Teams For Recovery Of Looted Money Were Formed Consisting Of SI Awadhesh Kumar, SI Gyanendra Kumar, SI Nem Chandra Gangwar And SI A.K. Dixit. Thereafter All The Miscreants Were Taken Out From The Police Lockup And The Police Parties Took Them For The Purposes Of Recovery. Subsequently PW8 I.O. Inspector Jai Chandra Singh Was Transferred And Further Investigation Was Carried On By P.N. Singh, In-charge Inspector (P.W.11), Who Commenced The Investigation On 7.3.1994 And Recommended For Holding Of Test Identification Parade, Which Was Attempted On 16.3.1994 But Could Not Be Held And, Therefore It Was Held On 22.3.1994. On 24.3.1994 Third I.O. Recorded Statements Of SI A.K. Sachan And A Constable Virendra Singh And Thereafter, On 28.3.1994 He Copied The Identification Memo. Statements Of SI H.C. Gangwar, Constables Satyaveer Singh, Vijay Pal, Head Constable Suresh Chandra, Constable Dharmveer, Ram Das, Om Pal, Lakshman Singh, Surendra,Ved Pal, Mohd. Akbar Khan, SI A.K. Dixit And SI Gyanendra Kumar Were Then Recorded. Concluding Investigation,PW11, Charge Sheeted The Accused U/s 395, 397, 412, 120-B I.P.C. Vide Ext. Ka-16.
Before Proceeding Further It Will Be Useful To Mention The Result Of Identification. Identification Memo Reveal That Ram Pal(A-1) Was Identified By P.W. 1, P.W. 2 And P.W. 3, Ranveer @ Ranno (since Dead) Was Identified By P.W. 2 And P.W.3, Vijai Pal(A-2) Was Not Identified By Any Witness, Netra Pal @ Pahalwan( A-3) Was Identified By P.W.1 And P.W.3. Jagveer @ Jaggi(A-4) And Yash Pal(A-5) Were Never Put Up For Identification At All.
To Complete The Chronology Of Sequence Of Events Further Fact Which Requires To Be Taken Note Of, Is That After Arrest On 5.1.1994 At 11.45 A.m., Recovery Of Looted Money Was Made From Arrested Accused. From(A-3) Rs. 54,000/-, From(A-2) Rs. 50,000/-, From Ranveer @ Ranno (dead Accused) Rs. 23,000/- And From A-4 And A-5 Rs. 5,000/- Each Were Alleged To Have Been Recovered. Since Ram Pal (A-1) And Absconded Accused Yamin Were Apprehended At The Spot, No Money Was Recovered From Their Possession.
C.J.M., Bulandshahar On The Basis Of The Charge Sheet Registered Criminal Case No. 851 Of 1994 (State Vs. Yamin And Others) Under The Aforesaid Sections On 1.4.1994, And Summoned The Accused, Who Were Then Incarcerated In Jail. Finding Their Case Session's Triable, C.J.M. Committed It To Session's Court On 30.9.1994. Same Day Session's Judge, Bulandshahar Registered S.T. No. 961 Of 1994, State Versus Ram Pal And Others Against The Accused.
IVth Additional Sessions Judge, Bulandshahar On 17.5.1995 Charged The Appellants Yamin, Ram Pal (A-1), Netra Pal @ Pahalwan (A-3), Vijai Pal (A-2) And Ranveer @ Ranno U/s 395 I.P.C., While Jagveer And Yash Pal Were Charged U/s 412 IPC Only. Subsequently On 18.3.2009, Trial Judge Also Charged (A-2) And (A-3) Under Section 412 I.P.C. Since All The Charges Were Abjured By The Accused, To Establish Their Guilt Their Trial Commenced.
In It's Endeavour To Establish The Charges Prosecution In All Tendered Fifteen Witnesses, Out Of Whom Informant Mahendra Singh P.W.1, Jeep Driver Raj Kumar P.W. 2 And Lecturer Hoshiyar Singh P.W. 3 Were Fact Witnesses. SI Ajay Pal P.W. 4, SSI P.C. Gangwar P.W. 5, SI Awadhesh Kumar P.W. 6 And SI Gyanendra Kumar P.W. 9 Respectively Were The Investigating Officers Who Had Proved The Recovery Memos Regarding Recovery Of Looted Money From The Accused Netra Pal @ Pahalwan, Ranveer @ Ranno, Yash Pal, Vijai Pal And Jagveer @ Jaggi. SI Ramendra Singh P.W. 7, SHO Jai Chandra Singh P.W. 8 And SI P.N. Singh P.W. 11 Were The First, Second And Third Investigating Officers. Sri S.C. Sharma P.W. 12, Constable Satyaveer Singh P.W. 13, Constable Virendra Singh P.W. 14 Were The Witnesses Of Recovery From The Accused. Constable Bhoj Pal Singh P.W. 15 Has Tendered Secondary Evidence In Respect Of The Identification Parade Of The Accused Conducted On 22.3.1994.
Accused Persons In Their Statements Under Section 313 Cr.P.C. Denied Incriminating Circumstances Appearing In The Prosecution Evidences Put To Them And Took A Common Plea Of Their False Implication. They Further Pleaded Various Defences.(A-1) Stated That He Was A Tailor In His Village And On The Date Of The Incident He Was Returning Back To His House From The Market When Police Personnel Stopped Him And Implicated Himself Falsely In The Instant Crime. Vijai Pal (A-2) Stated That He Was Apprehended On 4.1.1994 From Delhi And After Showing False Arrest Was Roped In The Instant Crime. Netra Pal @ Pahalwan (A-3) Stated That He Was Arrested On 23.1.1994 And After Showing A False Arrest Has Been Nailed In The Crime. Jagveer @ Jaggi (A-4) Stated That He Was Arrested From His Sweetmeat Shop On 3.1.1994 And Thereafter By Showing A False Recovery, He Has Been Booked In The Crime By The Police. Yash Pal (A-5) Took The Defence Plea That When He Was Returning From Village Virodi Tajpur, Constable Suresh Chandra Sharma Along With One Other Constable Apprehended Him On The Pretext That He Is Required By The Inspector And Thereafter Police Personnel Snatched Away His New Hero Cycle Along With Rs. 5,245/- And A HMT Watch And Implicated Him Falsely In The Instant Crime.
Additional Sessions Judge / F.T.C. No. 15, Bulandshahar After Appreciating Prosecution And Defence Case, Vide Impugned Judgment And Order Dated 31.3.2009, Came To The Conclusion That Vijai Pal And NetraPal @ Pahalwan (A-2 And A-3) Were Guilty U/s 395/412 I.P.C., Ram Pal (A-1) Was Guilty U/s 395 I.P.C., And Jagveer @ Jaggi(A-4) And Yash Pal(A-5) Were Guilty U/s 412 I.P.C. And, Therefore, Convicted Them For Those Charges. None Of Them However Were Convicted Under Sections 397/120-B I.P.C. Each Of The Accused For Their Respective Offences Was Sentenced To Undergo 10 Years RI With Rs. 10,000/- Fine. Trial Judge Also Ordered That Each Of Them Will Undergo Six Months Further RI In Default Of Payment Of Fine. It Further Ordered That Both The Sentences Shall Run Concurrently. Challenge In These Appeals Is To The Aforesaid Conviction And Sentences.
Before Adverting To Appellants Submissions Controverted By Learned AGA Two Facts Which Are Required To Be Mentioned Here Are That Ranveer @ Ranno Expired After Charge Was Framed And, Therefore, His Trial Abated. Another Accused Yamin Absconded And Could Not Be Apprehended And, Therefore, His Trial Was Separated From Rest Of The Accused Persons.
In The Back Ground Of The Preceding Facts, I Have Heard Sri Brijesh Sahai, Learned Counsel For The Appellants In Both The Connected Appeal And Sri Patanjali Mishra And Sri Sangam Lal Kesharwani, Learned AGAs In Opposition.
Castigating And Criticizing The Impugned Judgment Of Conviction And Sentence, Appellants Counsel Submitted That In The F.I.R., Complicity Of Only Three Robbers Was Disclosed And No Other Person Was Joined With The Crime And Therefore, Rest Of The Accused Persons Have Been Falsely Implicated. Next It Was Submitted That Since Guilt Of Only Three Miscreants Have Been Proved Conviction Of All The Appellant's U/s 395/ 412 IPC, For The Charge Of Dacoity And Receiving Of Property From Such Dacoity, Is Unmerited And Cannot Be Affirmed And Approved. Theory Of Spot Arrest Is Bogus And False And Does Not Inspire Any Confidence. It Is A Cooked Up And Manufactured Allegation. In Support Of This Argument Following Reasons Were Putforth:-
(a) That All The Three Accused Were Alleged To Have Been Armed With Country Made Pistols, Which They Have Not Used At All While Being Apprehended;
(b) No Recovery Of Any Firearm Was Made From Arrested Accused, Although They Were Alleged To Have Been Arrested After Some Chase During Course Of Which They Have Not Got Themselves Rid Of Those Fire Arms;
(c) Arrested Accused Had No Criminal Background And Therefore, Their Participation In The Crime In A Day Light Incident Within The Premises Of An Agricultural School, Where, Chances Of Natural Presence Of Many Youths Were Inevitable And Therefore, Allegation Against Them Are False. They Cannot Be Naive Enough To Be A Privy To Such A Crime;
(d) None Of The Person Who Actually Arrested The Two Accused Was Named By The Prosecution Nor Any Such Witness Was Examined During Trial. No Fact Witness (PW1 To 3) Had Deposed That It Was He Who Had Arrested The Accused. Categorical Depositions Of All These Prosecution Witnesses Were That Accused Were Apprehended By The Students Of The Agricultural School. In View Of Such Evidences Theory Of Spot Arrest, As Put-forth By The Prosecution, Is A Hokum;
(e) That Non Wielding Of Firearm By Arrested Accused Is An Unnatural Absurd Conduct And Hence Cannot Be Lend With Any Credence.
With Aforesaid Contentions It Was Further Submitted That Arrest Of Other Miscreants On 5.1.1994 Also Does Not Inspire Any Confidence. Conduct Of The Accused To Roam In The Vicinity Of Place Of The Incident With Unveiled Faces Just After Four Days Is Such An Absurd Story That It Does Not Hold Any Water At All And It Was Because Of This Reason That Arrest And Police Encounter Theory Brought-forth By P.W.8 Was Disbelieved By The Trial Judge In Two Connected Session's Trial Nos.653 Of 1994, State Vs. Netra Pal And S.T. No.648, 653/94, State Vs. Netra Pal, Prior To Impugned Judgement And Hence Benefit Of The Said Decision Should Be Conferred On The Accused. Appellants Counsel Relied Upon Paragraph 41 Of The Impugned Judgement For This Contention. It Was Further Submitted, As A Natural Corollary, That Since The Arrest Of The Five Accused On 5.1.1994 Has Been Disbelieved By The Competent Court Hence Alleged Recovery From Appellant's Possession Too Is False And Unsubstantiated. It Was Also Contended That Once The Factum Of Arrest Is Doubtful All Subsequent Events Of Recovery And Disclosure Statements Itself Becomes Doubtful. In This Connection Elaborating Further It Was Contended That (A-4) Had A Sweetmeat Shop Inside School Premises And He Was Litigating With The School Management For Protecting His Shop For More Than A Decade On The Civil Side And Therefore, His Participation In The Crime Without Any Motive Cannot Be Believed And Has To Be Discarded As Being An Absurd Allegation. All The Appellants Have Been Implicated Malafidely By Joining Them As Associates Of Jagveer @ Jaggi Only With The Desired Motive To Get His Shop Removed From The School Premises. Denouncing Test Identification Result And Castigating It Learned Counsel Argued That Identification Was Conducted After Inordinate Unexplained Delay Of 76 Days Of The Arrest And During This Period Appellants Were Shown To The Witnesses. None Of The Prosecution Witnesses Has Given Credible And Convincing Evidence Of Keeping Accused Under Veil (baparda) And Therefore Appellants Identification Is Of No Value, Which Should Be Discarded From Consideration Especially When Appellants Could Not Get Opportunity To Cross Examine Magistrate Ram Charan Jatav, Who Had Died Meanwhile. Secondary Evidence Of Const. Bhojpal, PW15, Does Not Help The Case Of The Prosecution At All. For Reliability Of Accused Identification, As Is Clear From Identification Memo, Ext. Ka-20, It Was Submitted That A-2 Was Not Identified By Anybody.(A-4) And(A-5) Were Never Put Up For Identification. A-1 Was Correctly Identified By P.W.1, P.W.2 And P.W.3 And His Identification, Being Hundred Percent, Is Too Good To Be Believed. Accused Ranveer @ Ranno(since Dead) Was Not Identified By A-1 And Therefore His Identification Is Only 66%, Which Is Not Good Enough To Be Believed. Arrest Of Third Accused Netra Pal @ Pahalwan Is Doubtful And He Was Identified Only By PW1 And 3 And Therefore His Identification Is Also 66%, Which Is Not Sufficient To Hold Him Guilty. It Is Further Submitted That Before Conducting Identification Parade No Features Of Any Of The Accused Were Disclosed By Any Of The Witness Of The I.O. And Therefore, Remembering Of Those Special Features After A Gap Of 76 Days Is Impossible And Should Not Be Believed. In Respect Of Recoveries Made From The Accused It Was Argued That The Same Is An Unproved Fact, As Entire Prosecution Case Is Based On The Signature Found On The First Currency Note On Each Bundle But That Could Have Been Done At Any Time By The Informant And Therefore Entire Prosecution Case In That Respect Is Unbelievable. Conduct Of Accused Also Does Not Convincingly Establish Their Participation In The Crime As It Will Be Wrong To Believe Absurd Conduct Of The Appellants To Commit Robbery In Day Time, In A School, Without Covering Their Faces And Without Arranging For Any Vehicle Or Any Other Conveyance For Escaping From The Spot. Such Naïve Conduct Is Too Unnatural To Lend With Any Credence. Because Of Shop Litigation Which Was Bitterly And Hotly Contested There Was Every Reason For The Management To Implicate (A-4) In The False Case Of Recovery Of Looted Money. It Was Because Of This Reason That Only Interested, Partisan And Inimical Witnesses, Who All Were Employees Of The School Came Forward To Depose Against The Accused And Prosecution Failed To Lead Testimony Of Any Independent Witness. Articulating The Argument, It Was Submitted That The Appellants Were Not Involved In The Instant Crime, Which In Fact Never Occurred. The Salary Money Was Embezzled By The Informant And His Associates And The Entire Cooked Up Story Was Created And The Appellants Have Been Nailed In Just To Cover Up The Entire Crime. It Was Further Submitted That Conviction Of The Appellants Under Section 395 IPC Cannot Be Sustained As Their Crime Does Not Fall Within It's Purview. Primarily, On The Aforesaid Contentions It Was Argued By Sri Sahai That Both Appeals Be Allowed And Conviction And Sentences Of The Appellants Be Set Aside And They Be Set At Liberty.
Refuting Appellant's Contentions Learned AGA Submitted That It Is A Day Light Incident Executed In A Dare Devil Manner By The Appellants Inside The Premise Of Agriculture School And While Dacoits Were Decamping With Booty Two Of Them Ram Pal (A-1) And Absconding Accused Yamin Were Apprehended Near The Spot After A Small Chase. (A-3) Was Well Recognized By The Witnesses And PW1 And 3 Have Not Made Any Mistake To Point Out Finger At Him During Identification Parade And Consequently Complicity Of These Appellants Is Established To The Hilt Beyond Any Reasonable Doubt. Prosecution Version Is Supported By Recoveries Of Huge Amount Of Looted Money, Soon After The Incident, From The Possession Of Both (A-2) And (A-3) I.e.: Rs. 50,000/- And 54,000/- And They Have Failed To Offer Any Satisfactory Explanation For The Same. Police Cannot Plant Such Huge Sums Of Money And Therefore False Implication Of (A1 To 3) Is Ruled Out. It Is Further Submitted That It Depends Upon The Courage Of The Culprits To Take Precaution Of Covering Their Faces And Conceal Their Identities. Taking Recourse To Section 114 Of The Evidence Act, Guilt Of The Appellants For The Charges Of Dacoity And For Receiving Property Stolen In The Dacoity Is Established Convincingly. Arrest Of Two Of The Appellants Is An Established Fact Corroborated By FIR And Other Surrounding Circumstances And Therefore Happening Of Incident Cannot Be Doubted And Consequently A Different View Is Not Possible Than What Has Been Taken By The Trial Judge Submitted Learned AGA. (A-1) Was Correctly Identified By All The Fact Witnesses, Whose Presence At The Spot Cannot Be Doubted And Since He Was In Closest Proximity In Day Time With The Miscreants With Unconcealed Faces His 100% Identification Cannot Be Castigated For Being Too Good To Be Believed. Defence Has Failed To Elicit Any Circumstance Casting A Doubt On Such An Identification. Gap Of Seventy Six Days Is Not Sufficient To Discard Entire Prosecution Case And Doubt Otherwise Truthful Testimonies Of Fact Witnesses Contends Learned AGA. Recovery Of Looted Money Evidenced By P.W. 4, P.W. 5, P.W. 6 And P.W. 9 Along With Supporting Depositions Of P.W.12 S.C. Sharma, Constable Satyaveer Singh P.W.13 And Constable Virendra Singh P.W.14 In Conjunction With Other Circumstances Authenticate And Establish Prosecution Case In It's Entirety And No Damaging Evidence Could Be Brought Forth In Cross Examination To Doubt Veracity Of Prosecution Witnesses And, Resultantly Conviction Of All The Appellants U/s 412 I.P.C. Is Also Well Merited. Defence Has Failed To Show Any Animus Or Reason For False Implication After Cooking Up A False Case Of Day Light Dacoity. Identification Memo Proved By P.W.15 Constable Bhojpal With Facts Recorded Therein Establish Complicity Of The Appellants Convincingly. For Arrested Accused Identification Proceeding Is Not Very Relevant And Since (A-4) And (A-5) Were Charged Only U/s 412 I.P.C., Therefore, Conducting Of Their Identification Proceeding Was Not Desired. Only Those Culprits, Who Participated In The Dacoity, Viz. (A-1), (A-2), (A-3), Ranveer @ Ranno And Yamin Were Put Up For Identification And Were Correctly Identified. Trial Of Ranveer @ Ranno Abated Because Of His Demise And Yamin's Trial Was Separated Because He Absconded. Further, It Was Argued That Merely Because The Accused Were Acquitted In The Other Trial By The Trial Judge Is No Reason To Disbelieve Fact Witnesses As Acquittal Was Not Recorded On Merits But Was Because Of The Fact That In Spite Of Adequate And Sufficient Opportunity Being Afforded To The Prosecution It Could Examined Only One Witness And No Other And Hence In That Trial, Court Took The View That It Is Unsafe To Convict Accused On A Single Testimony Without Further Corroboration. It Was Therefore Submitted That Benefit Of Aforesaid Judgement Cannot Be Given To The Appellants In The Instant Case. It Is Further Contended That Mere Delay In Conducting Identification Proceedings Without Any Prejudice Being Caused To The Appellants Should Not Be Taken To Be Sufficient To Negate Whole Of The Prosecution Case. Learned AGA Further Argued That Non Recovery Of Firearms From The Two Apprehended Accused Should Not Discredit Prosecution Case Or Be Considered To Be A Damaging Factor Because No Opportunity During Cross Examination Was Afforded To Any Of The Fact Witnesses, In That Respect, To Explain That Fact. If The Appellants Wanted To Take Benefit Of The Aforesaid Fact, They Should Have Questioned The Fact Witnesses On That Aspect Of The Matter Before Castigating Their Veracity. Criticism Of Witnesses Without Affording Them Any Opportunity To Explain Is Unjustified Submitted Learned AGA. It Is Further Submitted That Neither The Spot Arrest Nor The Recovery Nor Happening Of The Incident Are Incredible And, Therefore, Prosecution Has Successfully Proved It's Case By Leading Acceptable, Convincing And Cogent Evidences, Standing On Its Own Leg And Consequently Both The Appeals Be Dismissed. It Is Further Submitted That Role Of (A-4) Was That Of An Informer In Chalking Out A Pre-concerted Plan And Since He Did Not Physically And Actually Participated In The Crime But Had Shared The Bounty Therefore, His Complicity In The Crime Also Stands Proved. Looted Money Has Been Recovered After Four Days From(A-5) And, Therefore, His Complicity Also Stands Established. Two Of The Dacoits Vijai Pal(A-3) And Ranveer @ Ranno (since Dead) Were Guarding The Gate At The Time Of Commission Of Dacoity And They Also Escaped From The Spot Along With Three Accused And Hence Their Involvement In The Crime Is Also Beyond Doubt. Since Prosecution Story Of Participation Of Five Persons Is Proved To The Hilt And Hence Prosecution Has Successfully Anointed The Charges Against All The Appellants And They Were Rightly Convicted By The Trial Judge And The Instant Appeals By Them, Being Meritless, Deserves To Be Rejected And The Impugned Judgement Of Conviction And Sentence Be Upheld And The Findings Recorded By The Trial Judge Be Concurred And Approved, Concluding Submitted Learned AGA.
I Have Considered The Arguments Raised By Both The Sides And Have Perused The Record In The Light Of Those Submissions. In This Case, Entire Episode Of Commission Of Dacoity And Recovery Of Money Is Bifurcated Into Three Separate Stages Which Occurred At Various Times And At Various Places. In The First Part, Dacoity Was Committed By Three Persons Armed With Firearms Inside Agriculture School Premises With Two Miscreants Acting As Watchman Outside The Gate Of The School. In The Second Stage Five Miscreants Were Arrested In A Police Encounter Four Days After The Incident On 5.1.1994 From The Sweetmeat Shop Of (A-4) At 11.45 A.M. The Third Stage Consists Of Recovery Of Looted Money From The Appellants By Various Investigating Officers And Their Team. Prosecution Has Lead Evidences About All The Three Stages. In Such A View, An Analysis Of Evidences Regarding All The Three Stages Jointly And Separately Will Only Separate The Grain From The Chaff And Truth Can Be Elicited And Surfaced.
Analyzing From The Above Angle, Evidences Of Three Fact Prosecution Witnesses Are Clear, Cogent, Consistent And Reliable Against Participation Of Three Accused Ram Pal (A-1), Netra Pal @ Pahalwan (A-3) And Yamin(absconding Accused). Two Of Them (A-1) And Yamin Were Arrested At The Spot And In Their Respect, All The Prosecution Witnesses Have Given Convincing, Reliable And Confidence Inspiring Statements. Prosecution Version Cannot Be Doubted At All In Their Respect. During Cross Examination, Defence Has Not Been Able To Discredit And Shake Their Testimonies. These Appellants Could Not Muster Courage To Lead Any Defence Evidence To Negate Prosecution Allegations And Improbablise It. Entire Defence Cross Examination Is Centered Around Meaningless Insignificant Facts Beating Behind The Bushes To Confuse The Fact In Issue Instead Of Bringing Anything Of Substance On The Record. On Such Unsatisfactory And Unconvincing Cross-examination Truthfulness And Unimpeachable Veracity Of Fact Witnesses Corroborating Each Other And Lending Credence To The Prosecution Case Cannot Be Doubted Or Discarded. Their Testimonies Do Not Suffer From Any Infirmity, Significant Contradictions Or Embellishment And Hence There Is No Reason Not To Act On Them. (A-3) Was One Of The Culprits Who Had Entered Into School Premises And Was Clearly Spotted And Recognized By Fact Witnesses. PW1 And 3 Have Correctly Identified Him During Test Identification Parade And Have Made No Mistake. From His Possession Rs. 54,000/- Have Been Recovered By SI Ajay Kumar, P.W.4,whose Testimony Is Corroborated By Constable S.C. Sharma, P.W.12. Nothing Has Been Elicited From Their Cross-examinations To Doubt Their Depositions. P.W.4 Has Stated In His Examination-in-chief That (A-3) Had Taken Him And His Teammates Head Constable Suresh Chandra, Constable Dharmveer Singh, Mahesh Babu, Poonam Singh To His House On 5.1.1994 At 4.45 P.m., And From Beneath A Wheat Storage Container He Had Pulled Out A Bag Containing Looted Money, Which Were In Various Bundles Of Various Denominations. Five Bundles Were Of Rs. 100/- Currency Notes, And Four Bundles Were Of Rs. 10/- Currency Notes. First Currency Note Of Each Bundle Contained Informant's Signature On It. SI Ajay Kumar,P.W.4, Had Efforted To Join Independent Witnesses To Participate In Recovery Proceedings But Nobody Had Obliged Him. Recovery Memo Has Been Proved As Ext. Ka-4. Accused Was Put Under Veil And Was Brought To The Police Station. On This Aspect P.W. 4 Is Supported By SI Suresh Chandra Sharma, PW12. It Is Interesting And Noteworthy That Expired Accused Ranveer @ Ranno And (A-3) Both Were Co-villagers Resident Of Village Sabalpur, P.S. Pisawa, District Aligarh And, Therefore, Their Joining Hand In The Instant Dacoity Is Plausible. On An Over Assessment Of Prosecution Evidences And Surrounding Circumstances It Is Evident That Ram Pal(A-1), NetraPal @ Pahalwan (A-3), Yamin And Ranveer @ Ranno Did Participate In The Incident And, Therefore, Trial Court Has Not Committed Any Error In Convicting Them.
However, So Far As Appellant VijaiPal (A-2) Is Concerned Prosecution Evidences Lacks Credibility In Anointing His Guilt. Broad Features Which Supports Such A Conclusion Are Firstly That He Is Not Named In The FIR Nor Has Been Identified By Any Witness During Identification Proceedings. None Of The Witness, During Interrogatory Statements U/s 161 Cr.P.C. Made To The Second I.O Named Him.1st I.O. S.I. Ramendra Singh, P.W.7, For A Period Of Three Days Did Not Conduct Any Investigation Worth In Name Nor Recorded Any 161 Cr.P.C. Statement. Entire Investigation Into The Crime Was Conducted By 2nd I.O. Jai Chandra Singh, P.W.8, Who Had Commenced It On 4th January 1994 Three Days After The Incident. Second I.O. Had Recorded Statements Of 8 Witnesses On 5th January 1994. To Judge The Veracity Of The Prosecution Allegations Regarding Involvement Of(A-2), (A-4) And (A-5), Besides Evidences In Court, Case Diary Was Also Perused For The Reason That Arrest Of These Accused Persons On 5th January 1994 Was Disbelieved By A Court Of Competent Jurisdiction In Session's Trial Nos.653 Of 1994, State Vs. NetraPal Connected With S.T. No.648, 653 Of 1994. In That Trial No Other Police Witness Except Informant Appeared To Give Evidence Against These Accused, Which Created Doubt About Participation Of These Persons In The Incident. Hence Perusal Of The Case Diary Was Only For A Limited Purpose To Be Satisfied About Involvement Of These Accused In The Incident And To Come To The Truth Of The Allegations And For No Other Purpose. No Opinion Is Being Formed On The Material Contained In The Case Diary. However, Case Diary Reveals That Out Of 8 Witnesses, Including The Informant, None Had Not Spelt Out Name Of (A-2). Informant, PW1 Had Stated That He Had Not Seen The Two Persons Acting As Watchmen Standing Outside The Agricultural School Premises. Rest Other Witnesses Stated Only This Much That Two Persons Standing And Acting As Watchmen At The Gate Ran Along With Netra Pal (A-3), When He Was Running Away Along With Decamped Money. They Further Stated That They Had Recognised Them And Can Identify Them If Produced Before Them But During Identification Proceedings None Of Them Could Identify Vijay Pal (A-2) Although On The First Day Their Identification Could Not Be Conducted And Therefore, 22.3.1994 Was Fixed And On That Date Identification Parade Was Held. Ranvir @ Ranno, Who Was Alleged To Have Escaped From The Spot Along With (A-2) Was Correctly Identified By P.W.2 And P.W.3 But (A-2) Could Not Be Identified By Anybody. No Student Of The School, Who Were Stated To Have Chased And Apprehended Two Of The Accused Came Forward To Lend Credence To The Prosecution Case About Complicity Of (A-2) In The Crime. During Entire Investigation, None Of The Three Investigating Officers Made Any Endeavour To Get The Identity Of Appellant Vijay Pal(A-2) Fixed As One Of The Dacoits. No Doubt Conducting Of Identification Parade Is A Supporting Evidence And The Substantive Evidence Is The Identification Of The Accused In Court By The Witnesses But When A Witness Failed To Identify An Accused At An Earlier Occasion Then His Identification Of The Same Accused In Court At A Subsequent Occasion Many Months After Cannot Be Relied Upon As It Only Indicates His Tutoring. Another Unsatisfactory Feature On This Aspect Is That None Of The Fact Witnesses Had Disclosed Any Physical Anatomical Features Of (A-2) To Anybody At Any Earlier Point Of Time And Hence, In Absence Of Such Disclosures Identification In Court After Failing To Recognize At The Earlier Occasion Cannot Be Relied Upon. No Features Or Cloths Etc. Of (A-2) Was Disclosed By Anyone Of Witnesses. Case Diary Does Not Contain Any Such Material Or Information. In Above View, In Absence Of Any Convincing Evidence Forthcoming Regarding Participation Of (A-2) In The Crime, It Is Difficult To Sustain His Conviction For The Charge Of Dacoity U/s 395 IPC And The Said Appellant Is Entitle To The Benefit Of Doubt. None The Less Conviction Of Said Appellant For The Charge Of Receiving Of Stolen Property Does Not Suffer From Any Error Of Fact Or That Of Law And Is Established Beyond Any Shadow Of Doubt, As Has Been Evidenced By P.W.6 S.I. Awadhesh Kumar Coupled With Testimonies Of P.W.14 Brijendra Singh. From His Possession Rs.50,000/- Has Been Recovered, Which Is A Huge Money For The Police To Plant. In Such A View, So Far As His (A-2) Conviction For Charge Of Receiving Of The Stolen Property Is Concerned, It Cannot Be Doubted And To That Extent, Appeal Of Appellant Vijay Pal(A-2) Deserves To Be Dismissed.
Coming To The Participation Of (A-4) And (A-5), The Entire Evidences Does Not Disclose Their Participation In Actual Incident. According To The Prosecution Evidences They Were Involved In The Crime Because Looted Money Was Recovered From Them. Only A Paltry Amount Of RS.5000/- Is Alleged To Have Been Recovered. Appellant (A-4) Jagveer @ Jaggi Was Litigating With The Management Of The School Over His Shop In The Civil Side, Which Was Situated Within School Premises And Therefore, His Implication In The Crime Cannot Be Ruled Out. There Is No Direct Evidence Against Him And Only On The Basis Of Recovery That He Has Been Joined With Other Culprits. In The Background Of Fact Scenario Procuring Of Five Thousand Rupees For Implanting Him Was Not Difficult.(A-4) In His 313 Cr.P.C. Statement Had Stated That He Was Apprehended From His Sweetmeat Shop And Was Nailed In The Present Crime. Thus Defence Of (A-4) To The Extent Of His Arrest From His Shop Is Supported By Prosecution Evidence Also. Litigation With Him Is Admitted To Prosecution Side As The School Wanted His Sweetmeat Shop To Be Removed From It's Premises. No Independent Witness Has Come Forward To Implicate Him. It Is Only With The Help Of Police That Arrest Of (A-4) Was Brought Into The Crime And For That No Credible, Cogent And Reliable Evidence Was Lead During The Trial. In Above View, Involvement Of ( A-4) In The Crime Seems To Be A Remote Possibility And His False Implication By Showing False Recovery Of Rs.5000/- Cannot Be Ruled Out. His Presence At The Scene Of The Incident Is Also Not Improbable And Is Very Natural, As He Is The Owner Of The Sweetmeat Shop Situated Within The School Premises. Further For The Charge Of Conspiracy U/s 120B IPC All The Accused Have Been Acquitted, Which Acquittal Has Not Been Challenged And Has Attained Finality. No Charge U/s 109 I.P.C. Of Aiding And Abetting The Crime Was Framed Against Any Of The Appellants And Therefore, Participation Of(A-4) Into The Incident Remains Unsubstantiated And Disproved And Therefore, He Is Entitled To The Benefit Of Doubt.
Coming To The Appeal Of (A-5), He Is Also Entitled To The Benefit Of Doubt As He Too Was Never Put Up For Identification, Paltry Amount Of Rs.5000/- Is Alleged To Have Been Recovered From His Possession And The Defence Which He Had Taken Is That The Police Had Apprehended Him And Have Snatched Away His Wrist Watch And More Than Rs.5000/- And Have Implicated Him In The Instant Crime. Yash Pal (A-5) Had No Reason To Participate In A Day Light Incident Without Any Rhyme Or Reason And Without Having Any Criminal Proclivity Or Background Criminal History. He Had No Grouse Against The School Management. None Of The Fact Witnesses, Who All Were Employees Of The School Have Given Any Evidence Against Him. Only Police Personnel Are Witnesses Without Corroboration From Any Independent Source. But For Alleged Recovery Of Rs. 5000/= There Is No Other Convincing Evidence Against Him. His Joining Hand With Other Accused And Sharing Of Looted Money Therefore Does Not Appeal To Reason And Does Not Convince At All. In Such A View, It Will Be Very Weird To Accept Prosecution Case That Appellant (A-5) Yash Pal Will Receive Only A Paltry Amount Of Rs.5000/- To Involve Him In The Crime. From The Cross-examination Of Fact Witnesses And Chances Of His False Implication Not Very Remote, On An Overall Analysis, He Too Deserves Benefit Of Doubt.
Turning Attention Towards Appellant's Contention That In The Earlier Trial, Arrest Of Five Of The Accused On 5.1.1994 Had Been Disbelieved By The Court Of Competent Jurisdiction And Therefore, Arrest And Recovery Of Money Alleged By The Prosecution Remains Unsubstantiated, That Argument Does Not Impress At All. Reply Argument By Learned AGA On The Said Aspect Has Got Some Force. Acquittal Of The Appellants In The Earlier S.T. Was Not Because Involvement Of The Accused In The Incident Was False But Was Primarily Was For The Reason That, But For Informant No Other Witness Came Forward To Lend Credence To The Story Of Police Encounter Arrest And Seizure Of Illegal Firearms. Judgement Rendered In The Aforesaid Trial Was On The Basis Of Altogether Different Evidences Than What Was Tendered In The Instant Crime. In My Humble View, On Such Fact No Benefit Can Be Conferred On The Appellants. Apex Court Decisions Cited By Sri Sahai Viz;Brij Basi Lal Srivastava Versus State Of M.P.: 1980 SCC (Cr) 116 And Kharkaran Versus State Of U.P.: AIR1965 SC 83 Are Distinguishable On Facts And Therefore Are Of No Benefit To The Appellants. Principles Of Autrefois Acquit Or Autrefois Convict, Contained In Section 300 Cr.P.C. Does Not Apply. Ratio Decidendi In Both The Trials Were Different. Incident In Both The Trials Were Also Different.
Turning Towards Another Castigation In Respect Of Non-concealing Of Identity, It Cannot Be Said That The Appellants Were Naive And On The Said Score Prosecution Allegation Is False. Two Of The Apprehended Accused Could Not Bring Forth Any Evidence On Record Satisfactorily Explaining Their Presence At The Scene Of The Incident. Prosecution Witnesses Had No Inimous Against Them To Depose Falsely And Create A Total Hokum.(A-1) Was A Resident Of Village Birodi Tajpur, Police Station Kotwali Deghar, District Bulandshahar. In His 313 Cr.P.C. Statement He Had Not At All Uttered Any Reason For His False Implication. According To His Claim, He Was A Tailor And While He Was Returning With Tailoring Articles, He Was Stopped And Searched By The Police Who Later On Falsely Implicated Him, Is Such An Un-convincing And Unappealing Defence That It Does Not Require Any Detailed Discussion At All. Such A Defence Cannot Repel Authentic, Well Corroborated And Confidence Inspiring Evidences Tendered By The Independent Prosecution Witnesses. Netra Pal (A-3) Also Could Not State Reasons For His False Implication. According To His Defence, He Was Arrested From District Etah On 23.1.1994 And Was Falsely Implicated In The Incident. This Case Put Forth By The Said Appellant Is Patently False As Much Prior To 23.1.94, He Was Already Arrested On 5.1.94. He Had Also Failed To Bring On Record, Even On Preponderance Of Probability, That The Police Had Any Enmity Against Him To Implicate Him In A Case Of Loot. From His Possession Rs.54,000/- Were Recovered, Which He Failed To Account For Satisfactorily. Such Huge Sum Of Money Is Difficult To Be Arranged By The Police To Nail In Somebody Who Is A Poor Agriculturist.
Coming To Another Limb Of Argument That The Magistrate Was Not Examined To Lend Credence To The Identification Proceeding Conducted By Him And, Therefore, Accused Were Precluded From Cross Examining Him To Demolish Authenticity Of The Identification Proceedings Conducted By Him, Needless To Say That The Said Argument Does Not Go Very Well Down With The Facts And Circumstances Of The Case As The Magistrate Had Already Expired Prior To Closure Of Prosecution Evidences. In Such A View Prosecution Could Have Led Only Secondary Evidence. Criticism On The Said Aspect, Therefore, Is Hereby Repelled.
Coming To Another Argument That Only Employees Of The School Have Been Examined During The Trial And None Of Them Had Disclosed The Features Of The Assailants At Any Earlier Point Of Time And, Therefore, Involvement Of (A-3) In The Crime Is Doubtful, To Say The Least, The Argument Does Not Hold Water At All. Firstly None Of The Fact Witnesses Were Interested Inimical Or Partisan. All Of Them Were Independent Witnesses And It Is Their Salary, Which Was Looted. Why A Person Will Give False Evidence In Respect Of Dacoity Of His Own Salary Is Not Understandable And Is A Codswallop Suggestion. Appellant's Counsel During The Course Of The Argument Had Gone To The Extent Of Suggesting That The Money Was Embezzled By The Informant And His Associate And The Entire Hypothetical Incident Was Reported To The Police Is Such An Unappealing Maiden Argument, Which Does Not Require Any Discussion At All. No Foundation For Such A Suggestion Was Led During The Trial. If The Accused Wanted To Take Benefit Of Such A Defence It Should Have At Least Brought On Record That The School Staff Had Raised A Complaint Against The Informant And His Associates In That Respect.
Another Criticism That Why After Four Days Accused Involved In The Dacoity Will Arrive At The Same Place Where They Had Committed Dacoity Is An Argument Which Has To Be Tested On The Facts Involved In The Case. Netra Pal @ Pahalwan (A-3) Was The Only Culprit Who Had Escaped From The Spot. Rest Of The Persons Who Were Apprehended On 5.1.1994 Were Not Involved In The Crime Till The Time Of Their Arrest. It Was Only After Being Arrested In A Police Encounter That Their Complicity In The Crime Was Surfaced Because Of The Recoveries Made At Their Instances. In Such A View, The Argument Of Appellant's Counsel Is Not Appealing And Is Hereby Rejected.
Now From The Above Discussion, The Legal Question Which Crops Up For Consideration Is That When Prosecution Could Establish Participation Of Only Four Accused In The Incident What Offence Was Committed By The Accused? This Question, Automatically Comes Into Being Because Of The Reason That For Making Out An Offence Of Dacoity U/s 395 I.P.C, Proved And Established Participation Of Five Or More Of The Accused In Actual Dacoity Is Sine Qua Non. If Number Of Miscreants Participating, Aiding And Abetting Robbery Falls Less Than Five, The Offence Committed By The Culprits Will Not Be Dacoity But Will Be Only Robbery. Since From The Preceding Discussions Prosecution Has Not Been Able To Prove Number Of Robbers To Five Or More, Conviction Of All The Appellants U/s 395 Cannot Be Sustained And Has To Be Altered To U/s 392 IPC. At This Juncture, It Will Be Relevant To Mention That Section 394 IPC Cannot Be Resorted To For The Reason That No Actual Hurt, As Is Defined Under Section 319 I.P.C., Was Caused To Any Of The Victims, By Any Of The Miscreants While Committing The Crime. None Of The Fact Witnesses P.W.1 To P.W.3 Had Given Any Evidence About The Same Worth In Name And Therefore, It Is Difficult To Alter Conviction U/s 394 I.P.C.
As A Natural Corollary, The Precipitated Residue Will Be That Conviction Of All The Appellants U/s 412 I.P.C. Also Cannot Be Sustained And Has To Be Diluted To U/s 411 I.P.C. To Such An Extent Appeals Of All The Appellants Deserves To Be Partly Allowed.
Concluding The Discussion Criminal Appeal No. 2002 Of 2009 Preferred By Appellants Ram Pal (A-1), Vijai Pal (A-2) And Netra Pal (A-3) Is Partly Allowed. Conviction Of Appellant Ram Pal (A-1) And Netra Pal (A-3) For Offence U/s 395 I.P.C. Is Set Aside And Instead They Are Convicted U/s 392 I.P.C. For The Said Offence U/s 392 I.P.C., Each Of The Appellants Ram Pal (A-1) And Netra Pal (A-3) Are Sentenced To Undergo 10 Years RI With Fine Of Rs. 10000/= Each And In Default Of Payment Of Fine To Serve 1 Year Further RI. Conviction Of Vijai Pal (A-2) U/s 395 Is Set Aside And He Is Acquitted Of The Said Charge. However, Convictions Of Appellants Vijai Pal (A-2) And Netra Pal (A-3)u/s 412 I.P.C. Is Set Aside And Instead They Are Convicted U/s 411 I.P.C. For Which Offence Each Of Them Vijai Pal (A-2) And Netra Pal (A-3) Are Sentenced To Undergo 3 Years RI With Rs. 10000/= Fine, And In Default Of Payment Of Fine They Shall Undergo Further 6months RI. Both The Sentences Of Appellant Netra Pal (A-3) Shall Run Concurrently. These Appellants Are In Jail. They Shall Serve Out Their Sentences.
Criminal Appeal No. 2648 Of 2009 Preferred By Jagvir @ Jaggi (A-4) And Yash Pal (A-5) Is Allowed In Full And Their Conviction Under Section 412 I.P.C. Is Set Aside And They Are Acquitted Of That Charge. These Appellants Are On Bail. They Need Not Surrender. Their Personal And Surety Bonds Are Discharged.
Let A Copy Of This Judgement Be Certified To The Trial Court For Its Intimation.

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