RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) CRIMINAL APPEAL NO.1660 OF 2001 (Old No.2242 of 1996) Dilawar Singh ……… Appellant The State Versus ……… Respondent (2) CRIMINAL APPEAL NO.1658 OF 2001 (Old No.2198/1996) Idris S/o Anis Ahmed ……… Appellant The State Versus ……… Respondent (3) CRIMINAL APPEAL NO.1926 OF 2001 (Old No.60/1997) Jasveer Singh ……… Appellant The State Versus ……… Respondent Dated: April 26, 2010 Mr. J.S. Virk, Advocate for the appellants Mr. Amit Bhatt, Additional Government Advocate for the State HON. DHARAM VEER, J. All these have appeals have arisen out of a common judgment and order and the evidence in all the appeals is one and the same as well as the incident is also the same, hence all of them are being disposed of by this common judgment and order. 2 2. All these criminal appeals, preferred under section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), are directed against the judgment and order dated 04.12.1996 passed by the Second Additional Sessions Judge, Nainital in Sessions Trial No.149/1991, State Vs. Jasbir Singh @ Jassa & others, S.T. No.255/1991, State Vs. Jasbir Singh @ Jassa and S.T. No.256/1991, State Vs. Dilawar Singh, whereby the learned Second Additional Sessions Judge has convicted each of the appellants/accused Jasbir Singh @ Jassa, Dilwar Singh and Idris for the offences punishable under Sections 392/397/412 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced each of them to seven years’ R.I. u/s 397 IPC, five years’ R.I. u/s 392 IPC and further seven years’ R.I. u/s 412 IPC. The appellants-accused Jasbir Singh @ Jassa and Dilawar Singh were further convicted u/s 25 of the Indian Arms Act, 1959 (hereinafter to be referred as the Act), however no separate sentence was awarded against them under that section. All the sentences were directed to run concurrently. 3. I have heard learned counsel for the parties and perused the entire material available on record. 4. In brief, the prosecution case is that on 4.1.1991 at about 12:30 PM, PW1 Kanhaiya Prasad was coming on his cycle at his shop, namely, Shahi and Company after withdrawing Rs.51,000/- from State Bank Rudrapur and he hanged the bag containing money in the handle of his cycle. The amount was in the denomination of 4 bundles of Rs.100/- each i.e. Rs.40,000/- and 11 bundles of Rs.10/- each i.e. Rs.11,000/-, in total Rs.51,000/-. As soon as he was entering in his shop from the back gate, then three 3 persons came on a Yamaha Motorcycle No.UML 6365 and surrounded him. Out of them, two accused were armed with pistols, who threatened him to his life by showing pistols while the third accused took out the bag containing the money from the handle of cycle. On the noise raised by complainant, PW2 Devendra Sahi and PW3 Jitendra Nath Tripathi reached there, however by then the accused persons ran away from there towards Gadarpur road and could not be caught. The complainant along with two other witnesses had identified the accused. With the same averments, an FIR Ex.Ka-1 was lodged by PW1 Kanhaiya Prasad on 4.1.1991 at 1:15 PM at P.S. Rudrapur. On the basis of this FIR, CHIK FIR was prepared by H.M. Ved Prakash Sharma, i.e. Ex.Ka-10. Entry was also made by him in the G.D., carbon copy thereof is Ex.Ka-11. Thereafter P.W.4 S.I. Surendra Pal Singh and P.W.5 S.I. Krishna Pal Singh, on the same day i.e. on 4.1.1991 at about 1:02 PM, on the basis of information received through Radiogram about the said incident, started checking the vehicles and at about 4:15 PM, three persons were seen coming on the said motorcycle Yamaha No.6365 and on being stopped, they started running, however by using necessary force, they were caught hold by the police personnel, who disclosed their names as Jasbir Singh @ Jassa, Dilawar Singh and Idris (appellants-accused). From the possession of the appellant-accused Jasbir Singh @ Jassa, the recovery made was of a pistol of 12 Bore, a live cartridge loaded inside the pistol along with two live cartridges from his pocket and two bundles of notes of Rs.100/- each (Rs.10,000/- each), in total Rs.20,000/-; from the possession of appellant-accused Dilawar Singh, recovery made was of a pistol of 12 Bore loaded with one live cartridge and also one cartridge from his pocket and 4 eleven bundles of Rs.1,000/- each (in the denomination of Rs.10/-), in total Rs.11,000/- were recovered, while from the possession of the appellant-accused Idris, two bundles of Rs.10,000/- each (in the denomination of Rs.100/-), in total Rs.20,000/- were recovered. For recovery of above- said, Fard Ex.Ka-2 was prepared. Investigation of the main case was entrusted to S.I. Ram Ratan Verma (PW7), who during investigation, inspected the place of occurrence and prepared the site plan from where the money was said to be looted from PW1 Kanhaiya Prasad, i.e. Ex.Ka-12. He also prepared the site plan of the place from where the appellants-accused were arrested, i.e. Ex.Ka-13. During investigation, he recorded the statements of witnesses and on completing the investigation, he filed the charge sheet against the appellants-accused u/s 394/397/412 IPC, i.e. Ex.Ka-15. 5. P.W.4 S.I. S.P. Singh got the case registered against the appellants-accused. Chik FIR of the case u/s 25 of the Act was prepared by H.M. Satish Chandra, i.e. Ex.Ka-3. He also made entry in the G.D., carbon copy of which is Ex.Ka-4. Investigation of the case u/s 25 of the Act was entrusted to P.W.6 S.I. Babu Ram Yadav, who also inspected the place of occurrence and prepared the site plan u/s 25 of the Act, i.e. Ex.Ka-5. The I.O. also obtained the sanction for prosecution of the appellants-accused Jasbir Singh @ Jassa and Dilawar Singh from the District Magistrate. Sanction accorded by District Magistrate, Nainital against the appellant-accused Jasbir Singh @ Jassa u/s 25 of the Act is Ex.Ka-6 while the sanction accorded against the appellant-accused Dilawar Singh is Ex.Ka-7. During investigation, the I.O. recorded the statements of witnesses and on completing the 5 investigation, he filed two separate charge sheets against the appellants-accused Jasbir Singh @ Jassa and Dilawar Singh u/s 25 of the Act, which are Ex.Ka-8 and Ka-9 respectively. 6. Test Identification Parade of the appellants- accused was got done by P.W.8 Bhavnath Singh, S.D.M. Rudrapur on 16.3.1991. It is pertinent to mention here that P.W.1 Kanhaiya Lal had not identified any of the appellants-accused in the test identification parade; P.W.2 Devendra Sahi and P.W.3 Jitendra Nath Tripathi had identified the appellants-accused Dilawar Singh and Idris but none of them had recognized the appellant-accused Jasbir Singh. Identification memo was also prepared i.e. Ex.Ka-16. 7. Learned Munsif Magistrate, Rudrapur committed the case to the court of Sessions on 20.06.1991 after giving necessary copies to the appellants/accused as required under Section 207 Cr.P.C. Thereafter, on 23.9.1991, case against the appellants-accused Jasvir Singh @ Jassa and Dilawar Singh u/s 25 of the Act was also committed to the court of Sessions after giving necessary copies to them as required under Section 207 Cr.P.C. After that the case was transferred by learned Sessions Judge to Additional Sessions Judge, Nainital for disposal according to law. 8. Vide order dated 12.2.1992, learned IV Addl. Sessions Judge, Nainital directed to club the Sessions Trials No.255/91, 256/1991 with S.T. No.149/1991 and S.T. No.149/1991 was made the leading case. 9. On 12.2.1992, learned Fourth Additional Sessions Judge, Nainital framed the charge against the appellants/accused under Section 412/392/397 of the 6 IPC. The charges were read over and explained to the appellants/accused, who pleaded not guilty and claimed to be tried. Charge against the appellants-accused Jasbir Singh @ Jassa and Dilawar was further framed u/s 25 of the Act, which was read over and explained to them, to which also they pleaded not guilty and claimed to be tried. 10. To prove its case, the prosecution has examined P.W.1 Kanhaiya Lal, eyewitness, P.W.2 Devendra Sahi, eyewitness, P.W.3 Jitendra Nath Tripathi, eyewitness, P.W.4 S.I. S.P. Singh, P.W.5 S.I. Krishan Pal, P.W.6 S.I. Babu Ram Yadav, P.W.7 S.I. Ram Ratan Verma and P.W.8 Bhavnath Singh, SDM, who conducted the test identification parade. 11. Thereafter, the statements of the appellants/ accused were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them and stated that they have been falsely implicated. 12. After appreciating the evidence on record and hearing learned counsel for the parties, the learned Second Additional Sessions Judge, Nainital vide judgment and order dated 04.12.1996 convicted and sentenced the appellants/accused as discussed above. Feeling aggrieved with the aforesaid judgment and order, the appellants/accused have preferred the present appeals. 13. To prove its case, the prosecution has examined P.W.1 Kanhaiya Lal, who in his examination in chief, has reiterated the version of the FIR lodged by him. He also proved the FIR Ex.Ka-1. However, he had not identified any of the appellants-accused in the identification parade conducted in Jail. 7 14. P.W.2 Devendra Sahi stated that on 4.1.1991 he sent his Clerk (MUNIM) to State Bank Rudrapur to withdraw Rs.51,000/-. While his clerk coming back, then on the place of occurrence, three persons came there on a blue motorcycle. He along with Jitendra Nath Tripathi (PW3) was sitting in the verandah of his shop. On hearing noise, they reached there and saw that out of those three miscreants, two were pointing out the pistols towards his clerk while the third accused was taking out the bag containing money. On their reaching, all the three accused ran away from there by snatching the bag in the motorcycle No.UML 6365. After that he came back on the shop and his clerk got the report scribed from Yashwant Bindra and went in the police station to lodge the report. In the evening they came to know that some persons have been arrested. After this incident, in the month of March 1991 he went in Haldwani Jail to identify the accused where he had identified two accused persons, namely, Dilawar and Idrish (appellants-accused), however he had not identified the appellant-accused Jasvir Singh @ Jassa. He had seen those accused at the time of incident and later on in the jail and he had not seen any of them in between. 15. P.W.3 Jitendra Nath Tripathi, eyewitness of the case, has fully corroborated the statement of P.W.2 Devendra Sahi. He also identified the appellants-accused Dilavar Singh and Idrish in the identification parade, however he had also not identified the appellant-accused Jasvir Singh. 16. P.W.4 S.I. Surendra Pal Singh and P.W.5 S.I. Krishan Pal have fully reiterated the entire version as has been narrated in the recovery memo Ex.Ka-2 with regard to the recovery of money as well as the recovery of weapons. 8 17. P.W.6 is S.I. Babu Ram Yadav, to whom the investigation of the case u/s 25 of the Act was entrusted. Chik FIR u/s 25 of the Act was prepared by H.M. Satish Chandra, i.e. Ex.Ka-3, who also made entry in the G.D., carbon copy thereof is Ex.Ka-4. He prepared the site plan of the place of occurrence, i.e. Ex.Ka-5. He also obtained the sanction for prosecuting the appellants-accused Jasvir Singh and Dilavar Singh from Deepak Singhal, District Magistrate, Nainital which is Ex.Ka-6 and Ka-7 respectively. During investigation he recorded the statements of witnesses and on completing the investigation he filed separate charge sheets against the appellants-accused Jasvir Singh and Dilawar, i.e. Ex.Ka.8 and Ka-9 respectively. 18. P.W.7 is S.I. Ram Ratan Verma, to whom the investigation of the main crime was entrusted. Chik FIR was prepared by H.M. Ved Prakash Sharma, i.e. Ex.Ka.10. He also made entry in the G.D., i.e. Ex.Ka-11. He inspected the place of occurrence where the loot was conducted, i.e. Ex.Ka-12. He also inspected the place of occurrence from where the appellants-accused were arrested, i.e. Ex.Ka-13. During investigation, he recorded the statements of the witnesses and on completing the investigation, he filed the charge sheet against the appellants-accused, i.e. Ex.Ka-15. 19. P.W.8 Bhavnath Singh, SDM Rudrapur who has conducted the test identification parade of the appellants- accused and after completing the entire proceedings, he prepared identification memo, i.e. Ex.Ka.16. 20. Thereafter, the statements of the appellant/ accused were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question 9 form, who denied the allegations made against them and stated that they have been falsely implicated. The appellant-accused Dilawar Singh stated that on 3.1.1991, the police had arrested him from his house and before 2-3 days, he had sold that motorcycle and kept the money of sale for Rs.16,000/- in his house, which the police had taken. The appellant-accused Jasvir Singh stated that on 4.1.1991 the police had arrested him from his house and the police also took Rs.30,000/- kept by him in his house and he was falsely implicated. The appellant-accused Idrish also stated that on 3.1.1991 the police had arrested him from his house and Rs.25,000/- kept in his house for the marriage of his sister was taken by the police and he was falsely been implicated. In documentary evidence, two documents have been filed as Ex.Kha-1 & Kha-2, which are the documents relating to sale of motorcycle by the appellant-accused Dilawar Singh to Malkeet Singh. 21. In oral evidence, they have produced D.W.1 Malkit Singh, who stated that the appellant-accused Dilawar Singh had sold his motorcycle to him for Rs.16,000/-, receipt thereof is Ex.Kha-1. The said motorcycle was transferred to him from RTO Kathgodam, copy of registration is Ex.Kha-2. 22. Sri J.S. Virk, learned counsel for the appellants- accused argued that as per the above-said evidence, the prosecution has not proved its case against them beyond reasonable doubt. I find force in the submission put forth by the counsel for the appellants/accused due to the following reasons: - A. That the identification of the accused/appellants was not done as per law. In the present case, the identification parade was held after 74 days of the 10 arrest of the accused/appellants. In a judgment rendered by Hon’ble Apex Court in the case of Soni Vs. State of U.P. reported in 1983 SCC (Cri.) 49(I)), the identification parade was held after 42 days after the arrest and it was held that there is a grave doubt on the identification. On relying upon the aforesaid dictum, on the basis of identification held in present case conducted after 74 days, no conviction can be made upon the appellants-accused. The delay in holding the identification parade throws a doubt on the genuineness thereof apart from the fact that it is difficult that after a lapse of such a long time, the witnesses would be remembering the facial expressions of the accused. If this evidence cannot be relied upon there is no other evidence on record which can sustain the conviction of the accused/appellants. B. The prosecution has not proved that the looted amount was the same, which was shown to be recovered from the possession of the accused, as no number of notes were mentioned in the FIR and even no number of the entire notes was mentioned in the recovery memo Ex.Ka-2. Even no bank official was produced by the prosecution to prove that the money which was withdrawn by the PW1 Kanhaiya Prasad from the State Bank Rudrapur on 4.1.1991, was the same which was looted and recovered. C. That in the identification parade held by PW8 Bhavnath Singh, who was posted as SDM Rudrapur on that day i.e. on 16.3.1991, the appellant no.2 Jasvir Singh was not identified by any of the witnesses and even PW1 Kanhaiya Lal, from whom the loot was made, could not identify the any of the 11 accused/appellants and, therefore, the involvement of the appellants-accused in the aforesaid crime is not proved by the prosecution beyond reasonable doubt. D. That PW3 J.N. Tripathi, who has been examined by the prosecution as eyewitness, is the resident of different village and his presence on the place of occurrence is doubtful as he is not the businessman in the Mandi rather he is the resident of Village Pratappur and is shown to be an agriculturist and hence, on the basis of this type of evidence, conviction is not sustainable. E. That the weapons shown to be recovered from the possession of the appellants-accused Jasveer Singh and Dilawar Singh were not sent in the laboratory for the expert report so as to prove whether they were in working condition or not. This further throws a reasonable doubt in the prosecution story about the recovery of weapons from the appellants-accused. 23. That in view of the aforesaid discussion, the prosecution could not prove its case against the appellants- accused Jasveer Singh @ Jassa, Dilawar Singh and Idris u/s 392/397/412 IPC and also against the appellant- accused Jasbir Singh @ Jassa and Dilawar Singh u/s 25 of the Act and they are liable to be acquitted by giving benefit of doubt. However, it is made clear that the appellants- accused could not prove that the money shown to be recovered by the police from their possession, as stated by them in their statements u/s 313 Cr.P.C., is their own money, as their claim over the said money could not be established and they are not at all entitled for that money. Therefore, I have no hesitation to state that the trial court 12 has erred in law in convicting and sentencing the appellants/accused as above said and the judgment and order dated 4.12.1996 is liable to be set aside and is accordingly set aside. 24. For the reasons as aforesaid as well as in light of the judgment of Hon’ble Apex Court in the case of Soni (Supra), all the three appeals are allowed. Judgment and order dated 4.12.1996 passed by the Second Additional Sessions Judge, Nainital in convicting and sentencing the appellants-accused, as above said, is hereby set aside. They are on bail. They need not surrender. Bail bonds are cancelled and sureties are discharged. 25. Lower court record be sent back. (Dharam Veer, J.) April 26, 2010 Rajeev Dang