Judgment reserved IN THE HIGH COURT OF UTTARAK11HAND AT NAINITAL Criminal Appeal No. 1648 of 2001 Old Number Criminal Appeal No. 1846 of 1996 Harchandi and others. ………..Appellants. Versus. State of Uttar Pradesh now State of Uttarakhand. …….Respondent. Present: Mr. Anil Dabral, learned counsel for the appellants. Mr. Nandan Arya, learned AGA for the State. Hon’ble Nirmal Yadav, J. This appeal is directed against the jukdgment and order dated 03.08.1996 passed by Additional Sessions Judge, Haridwar vide which appellants have been convicted under sections 395, 397 of the Indian Penal Code (hereinafter referred to as “IPC”) and have been sentenced to undergo 10 years rigorous imprisonment each. The facts, in brief, are that during the intervening night of 16/17 December, 1990 at about 1.00 a.m. or 01.30 a.m. residents of village Lahadpur were present in their fields and most of them were sitting around the fire. Meanwhile, 7 – 8 hoodlums, one of whom armed with rifle, second one armed with double barrel gun, third one armed with single barrel gun, two of them were carrying patals and rest of them were carrying lathis, came to the deras (residence of villagers). Villagers were awake and were sitting around the fire to keep themselves warm on account of cold weather. When hoodlums came to the deras, out of fear most of the persons ran towards the jungle. Those hoodlums took away Philips radio two bands from the dera of Mukesh; Rs. 40 in cash and gold nose ring from dera of Chandrapal; two pairs of gold ear ring, one todi, one taviz, Rs. 70 in cash one torch (Jeep make) from the dera of Sukka Singh; Rs. 200 cash, a pair of gold ear ring from the dera of Tej Pal; from the dera of Karnail Singh two pairs of male clothes, ladies HMT watch and Rs. 150 in cash. All the hoodlums were seen and identified by Mukesh Kumar, Sukka, Tej Pal Singh, Karnail Singh and Dhoom Singh in the light of lantern and torch. Out of those hoodlums, 2-3 persons were wearing dothi while rest of them were wearing pants. One of them was a tall person aged about 30 years. Another person was aged about 40 year and rest of the hoodlums were within the age group of 24 – 25 years and were of normal height. After looting above articles accused ran away towards jungle. Immediately after the occurrence, Bharat Singh, Gram Pradhan of village Lahadpur submitted a written complaint (exhibit Ka-1) to the Incharge police station Shyampur, District Haridwar, on the basis of which chick FIR (exhibit Ka- 14) was recorded on 17.12.1990 at 03.05 a.m. Entry in this regard was also made in GD vide report no. 15, which is exhibit Ka-15. The investigation was handed over to Sub Inspector Roshan Singh (PW15) on whose transfer it was transferred to PW14 Satish Chandra Pachori. On 23.12.1990, PW12 Naresh Pal, SHO Nagina, District Bijnor was informed by Station Officer, police station Badapur to reach Badapur. When he reached Badapur, he was informed that some hoodlums were present in the jungle of Bhogpur near Mazar. Two police parties were constituted and when they reached near Mazar, the police party found that some hoodlums were present there. Those hoodlums were encircled and eight amongst them were apprehended. One of them disclosed his name as Mahaveer from whose possession one 12 bore double barrel gun, eight live cartridges and two empty cartridges were recovered. Some looted articles were also recovered from bag, which was hanging from his shoulder. Second person disclosed his name as Harchandi from whose possession one double barrel gun, two empty cartridges from the barrel of the gun and seven 12 bore live cartridges were recovered. However, from bag carried by him some looted articles were recovered. Third person, disclosed his name as Tilka, from his possession, one 12 bore single barrel gun, one empty cartridge in barrel of the gun, 5 live cartridges from the belt and some looted articles were recovered from the bag carried by him. The fourth person disclosed his name as Kali Charan, from whose possession one 12 bore country made pistol, 12 live cartridges and from the bag carrying by him various articles looted from the village were recovered. Fifth person disclosed his name as Jaswant, who was found in possession of knife and out of bag carried out by him looted articles from the village were recovered. Sixth person disclosed his name as Ravi, he was also found in possession of knife and from the bag carried by him several looted articles were recovered. Seventh person disclosed his name Dharama, he was found in possession of axe and out of the bag carried by him various articles looted in dacoity were recovered. Eighth person disclosed his name as Ravi. He was carrying lathi and several other articles looted in dacoity were also recovered. All the articles were taken into possession vide memo exhibit Ka-15. Copy of memo was given to the accused persons. The faces of all the accused were muffled and in the same position they were admitted in the police station Badapur, Binjor. Entry in this regard was made in GD at serial no. 26 at about 23.45 p.m., copy of which is exhibit Ka- 6. Sub Inspector Satish Kumar Pachori (PW14) submitted an application for conducting identification parade of the accused persons on 21.02.1991 before Magistrate, Bijnor. Accordingly PW13 J.K.S. Negi got the identification of the accused persons conducted while PW8 Ram Lakhan Singh got the identification of recovered articles done. After completion of the investigation, challan was presented and accused were chargesheeted for the offence punishable under sections 395, 397 and 412 IPC to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case examined PW1 Bharat Singh, PW2 Mukesh Kumar, PW3 Tej Pal Singh, PW4 Karnail Singh, PW5 Dhoom Singh, eye witnesses, from whose houses the accused had looted the articles. All of them identified the accused persons and the looted articles from their possession. PW12 SHO Naresh Pal had arrested the accused persons along with other police officials on 23.12.1990 and had recovered various looted articles along with their respective guns. He had muffled the faces of the accused at the spot and admitted them as well as recovered weapons in the police station. The fact that accused remained with muffled faces has been proved by PW6 Sant Veer, PW10 Kalwa Singh and PW9 Shanker Lal PW11 Abhi Raj Singh. They all proved GD entry no. 25 (exhibit Ka-4), GD entry no. 27 (exhibit Ka-5), GD entry no. 4 (exhibit Ka-13), GD entry no. 6 (exhibit Ka-6), GD entry no. 14 (exhibit Ka-7) GD entry no. 18 (exhibit Ka-14). Accused were produced before magistrate. PW8 Ram Lakhan Singh conducted the identification with regard to looted articles. He proved memo exhibit Ka-11 in this regard. PW13 J.K.S. Negi conducted identification parade of the accused and he proved memo exhibit K-12. The investigation was conducted by PW15 Roshan Singh and PW14 Satish Chandra Pachori. Accused when examined under section 313 Cr.P.C. denied the incriminating evidence put to them by the prosecution and pleaded false implication. However, no evidence was produced by them in their defence. The prosecution case mainly rests on the testimony of ocular evidence of PW2 Mukesh Kumar, PW3 Tej Pal Singh, PW4 Karnail Singh, PW5 Dhoom Singh in whose houses accused had committed dacoity. All the witnesses have identified the accused appellants. Most of the witnesses have identified the accused. PW2 Mukesh Kumar identified 7 accused out of 10 accused but could not identify two of them while one was wrongly identified. PW3 Tej Pal Singh identified one of the accused. PW4 Karnail Singh identified most of the accused but wrongly identified two of them. Similarly, PW 5 Dhoom Singh wrongly identified six persons. Accused Tilka was correctly identified by PW2 Mukesh Kumar. Accused Harchandi was identified by PW 2 Mukesh. PW4 Karnail Singh identified accused Harchandi and accused Jaswant was identified by PW2 Mukesh Kumar. Similarly accused Ravi was identified by PW2 Mukesh and PW5 Dhoom Singh also identified him. The witnesses also correctly identified the articles recovered from accused Tilka. One Philips radio was identified. Accused Tilka was found in possession one pair of gold ear ring and one pair of todi. From the possession of Ravi also looted articles have been recovered. The only argument raised by learned counsel for the appellants is that there is contradiction in the statements of PWs with regard to number of persons involved in dacoity. He pointed out that PW2 Mukesh Kumar stated that there were 10-11 persons in all whereas PW3 Tej Pal Singh and PW4 Karnail Singh stated that accused were 9-10 in numbers while PW5 Dhoom Singh stated that they were 10-11 persons whereas in the First Information Report Bharat Singh stated that they were 7-8 who had come to the deras of village. Learned counsel further pointed out other contradiction in the statements of witnesses. According to PW2 Mukesh Kumar accused had exhorted that if they came forward they would be shot dead whereas PW4 Karnail Singh stated that accused had made him sit near them and said that they will shoot him dead. It is further argued that there was no source of light, therefore, it was not possible for the witnesses to identify the accused. Most of the witnesses stated that they had identified the accused in the light of lantern. It is also argued that witnesses did not have sufficient time to identify the accused persons. On the other hand learned AGA submitted that there was sufficient light at the house of each of the witnesses when accused committed dacoity. Torch as well as lantern have been taken possession by the Investigation Officer vide exhibit K-23, exhibit Ka-2 and exhibit Ka-24). He further pointed that witnesses have also stated that their houses are in the fields and due to winter season they had lit the fire. Even ash has been taken into possession by the investigation officer from the dera of PW2 Mukesh Kumar vide recovery memo exhibit K-22, which proves that fire was lit at that time. With regard to the argument that whether witnesses had time and occasion to identify the accused, learned AGA submitted that all the witnesses have categorically stated in the court that they identified the accused persons from very close range as they had looted the articles from them. PW2 Mukesh Kumar stated that accused had snatched the Philips radio from him and they took some time while committing the dacoity in his dera. He also stated that in the house of Sukka the entire occurrence took place for about 10 minutes. He has also stated that he switched on the torch and had seen the accused in the light of torch. PW3 Tej Pal Singh has stated that as accused caused injuries to him and they were at his house for about one hour. PW4 Karnail Singh stated that entire occurrence took place for about 45 minutes. He further stated that he was also given beatings by the accused and they had made him sit near them and stated that they will shoot him. From the evidence of all the witnesses, it is clear that accused remained in the deras of the witnesses for about 45 – 60 minutes and committed dacoity in the houses of five persons. Even in the site plan, it has been shown that PW3 Tej Pal Singh was present in the field with torch at point ‘B’ and point ‘A’ is a place where fire was lighted. Mukesh and Sukka were sitting near the fire and the distance between point A and point B is only 15 paces. From the entire evidence and the circumstances, it is evident that accused were amongst the persons who had come to the deras of the witnesses during the intervening night of 16/17 December, 1990 and committed dacoity. They have been found in the possession of looted articles, which have been duly identified by witnesses before the Magistrate. The witnesses have also identified accused person even before the court. In these circumstances, I am of the opinion that trial court has rightly convicted the accused persons under sections 395, 397 IPC. Learned counsel for the appellants however submitted that all the accused have already undergone about 7 years of sentence. They remained in custody during the entire period of trial and even after the trial. They were released on bail in the month of November 1997. It is further submitted that almost 20 years have passed from the date of occurrence and accused are stated to be first offender and they have no past criminal history. With regard to accused Harchandi and accused Ravi a report has been submitted by police incharge, police station Shyampur, Hardwar that no other case has been registered against these accused. However, he could not verify about the criminal history of accused Jaswant and Tilka. Learned counsel for the appellants, thus, argued that keeping in view that accused have already undergone most of the sentence i.e. about 7 years and therefore, their sentence may be reduced to the period already undergone. As per the report of incharge police station Shyampur no case except present one has been registered against accused Harchandi and Ravi. Taking into consideration that the occurrence took place almost two decades back and the accused have already undergone seven years out of ten years sentence and that they have been released on bail in the year 1997, thus, they must have settled in the mainstream of the society, the interest of justice would meet if the sentence awarded to the appellants is reduced to the period already undergone. Accordingly, the appeal is partly allowed. They are sentenced to the period already undergone. Appellants are on bail. They need not surrender. Their bails bonds are cancelled and sureties are discharged. The trial court shall ensure the compliance of this order. Let the lower court record be sent back. (Nirmal Yadav, J) 23.07.2010 SKS