IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL COURT’S ORDER WHETHER THE CASE IS OR NOT APPROVED FOR REPORTING [Chapter VIII, Rule 32(2) (b)] Description of Case Criminal Appeal No. 1035 of 2001 Decided on: October 12, 2006 (Old No. 2043 of 1982) A.F.R. (Approved for Reporting) Not approved for reporting Date.12.10.2006 (Initials of Judge) Note: - Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. 1 Reserved Judgment IN THE HIGH COURT OF UTTARANCHAL AT ANINITAL Criminal Appeal No. 1035 of 2001 (Old No. 2043 of 1982) 1. Fatta S/o Umar Din (Since deceased) 2. Ibrahim S/o Umar Din R/o Village Janipur, P.S. Mirjapur, District Saharanpur. …………….. Appellants Versus The State ………….. Respondent Ms. K.S. Verma, learned counsel for the appellant Ibrahim. Mr. Rajeev Mohan Birkhani, Brief Holder for the State. Hon’ble Prafulla C. Pant, J. This criminal appeal, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (for brevity hereinafter Cr.P.C.), is directed against the judgment and order dated 24.08.1982, passed in Sessions Trial No. 43 of 1977, by learned Additional Sessions Judge, Dehradun, whereby appellants Fatta and Ibrahim have been convicted under Section 395 read with Section 397 of the Indian Penal Code, 1860 (for brevity hereinafter I.P.C.); under Section 412 of I.P.C. and also under Section 307 read with Section 149 of I.P.C., and each one of the appellant has been sentenced by the trial court to rigorous imprisonment for ten years under Section 395 / 397 of I.P.C.; rigorous imprisonment for five years under Section 412 of I.P.C. and rigorous imprisonment for five years under Section 307/ 2 149 of I.P.C. All the sentences are directed to run concurrently by the trail court. 2) Heard learned counsel for the parties and perused the entire record. 3) Prosecution story, in brief, is that P.W. 2 Kewal Ram lodged a First Information Report (Ext. A –6) at police station Sahaspur, District Dehradun, on 16.02.1977, at 9:05 P.M., informing that at about 8:00 P.M., when he along with his son P.W. 3 Balwant and son-in-law Rajendra Singh were in the sitting room of their house and the ladies of the family Smt. Kasturi and Smt. Bala were inside the house, some 6-7 persons entered in the court-yard of their house. The miscreants, when interrupted by the above male members, started beating P.W. 3 Balwant and P.W. 4 Rajendra Singh. The miscreants, thereafter, entered inside the house and committed dacoity. Inside the house Smt. Kasturi raised alarm on which one of the dacoits fired shot at her from a country made pistol and caused injuries to her. Meanwhile, Smt. Bala came out and she also raised alarm on which neighbours Bashir, Islam and Samir and some other persons reached there. According to the prosecution story one miscreant was armed with an axe and some of them were armed with lathies. The miscreants looted a double barrel gun and 50 cartridges along with the license from the house of informant Kewal Ram. The witnesses saw the faces of the dacoits in the light of lantern and torches. After commission of dacoity the miscreants ran towards the canal. While fleeing from the scene of occurrence they fired at the tyres of taxi bearing registration No. P.N.B. / 4331, parked 3 outside the house, and damaged the same, so that the same may not be used in chasing the dacoits. The police registered the case and prepared check report Ext. A –20, and necessary entry was made in the general diary (copy of extract of which is Ext. A –21). The crime was investigated by P.W. 14 Station House Officer Narendra Singh, who immediately after receiving the information, rushed to the spot and thereafter tried to chase the dacoits but the dacoits could not bee traced in the jungle in whole of the night. Next morning, the Investigating Officer prepared site plant (Ext. A –11) and collected the broken glasses of taxi and lantern etc. from the place of incident. He also recovered empty cartridges and prepared memo Ext. A –12. During investigation, appellant Fatta and Ibrahim were arrested in connection with a crime and stolen articles (Ext. 1 to Ext. 19) were recovered from the possession of the appellant Fatta, while Ext.20 to Ext. 42, and Ext. 44 and Ext. 45, were recovered from appellant Ibrahim. After identification proceedings, on conclusion of investigation, charge sheet (Ext. A –19) was submitted against both the above appellants. Some of the other accused were also arrested later on, and separate charge sheets (Ext. A –25 and (Ext. A– 26), were filed against them. They were also tried along with the Sessions Trail No. 43 of 1977. 4) On receipt of the charge sheet, it appears that the Magistrate concerned, after giving necessary copies to the accused persons, as required under Section 207 of the Cr.P.C., committed the case to the court of Sessions, for trail. Learned Additional Sessions Judge to whom the case was transferred for trail, by the Sessions Judge, after hearing 4 the prosecution and the defence, framed charge against appellants Fatta and Ibrahim relating to the offences punishable under Section 143, 307 / 149, 395 /397 and 412 of I.P.C. Both the appellants pleaded not guilty and claimed to be tried. On this prosecution got examined P.W. 1 S.B. Srivastava (The Executive Magistrate who conducted the identification proceedings); P.W. 2 Kewal Ram (informant); P.W.3 Balwant Singh (injured eyewitness); P.W. 4 Rajendra Singh (injured eyewitness); P.W. 5 Ram Swaroop; P.W.6 Jahid; P.W. 7 Janak; P.W. 8 Naurtu (eyewitness); P.W. 9 Constable Nawal Singh; P.W. 10 Constable Bir Singh; P.W. 11 Constable Jagdish Chand; P.W. 12 Constable Rajendra Pal; P.W. 13 Constable Bhim Singh; P.W. 14 Station Officer Narendra Singh (Investigating Officer); P.W. 15 V.D. Sharma [another Executive Magistrate who conducted the identification parade of another accused (not appellant)] and P.W.16 Sub Inspector S.D. Yadav (co-investigating officer). All the documentary evidence, including the medial examination report and the recovery memo and identification reports, were put to the accused persons, in reply to which they pleaded that the evidence adduced against them is false and they were shown to the witnesses before identification parade was conducted. The trial court, after hearing the parties, found accused Fatta and Ibrahim guilty of the charges relating to the offences punishable under Section 395 / 397, 307 /149 and 412 of I.P.C. and sentenced them, as mentioned earlier. However, other accused persons appear to have been found not guilty and they were acquitted of the charges framed against them. Aggrieved by said judgment and order dated 24.08.1982, the convicts preferred this appeal before Allahabad High Court 5 in the year 1982, from where the same is received by this Court by way of transfer, under Section 35 of the U.P. Re- organization Act, 2000, for its disposal. 5) Before further discussion, it is pertinent to mention here, the articles reported to have been looted in the dacoity as per the First Information Report (Ext. A –6); i) gold chain 2 ½ Tola 1No. ii) gold bangles 2 Tola 2Nos iii) god amulets 2 Tola 2 Nos iv) gold finger ring ½ Toal each 4Nos v) gold tops 1 ½ Toal 1pair vi) gold ear rings 1 Total 1 Nos vii) gold ear ring (Jhumki) 1 ½ Tola 1 pair viii) silver anklet 4 Tola each 2 pair ix) silver braslate (Dastband) 8 Tola 1 pair x) silver anklet (Jhavar) 10 Tola 1pair xi) silver Katsari 20 Tola 1 pair xii) silver Ramnomi 1 No. xiii) silver bangle 10 Tola 1 No. xiv) brass glasses 50 Nos xv) brass plate large 1 No. xvi) brass plate small 1 No. xvii) bronze plate 2 Nos xviii) brass Paraat 2 Nos xix) brass Loota 3 Nos xx) one used brass glass, plate & six brass bowls xxi) ladies garments & bedsheet (one) xxii) one shawl 1No. xxiii) ladies suit 4 Nos xxiv) ladies Dupatta 4Nos xxv) one black gents Jacket & garments used xxvi) Time piece Jayco (new) 1 No. xxvii) Wrist watches used 3 Nos xxviii) Transistor Murphy 3 Band used 1 No. xxix) 3 Blankets and 2 mattress (used) xxx) Used gents shawl (looee) 1 No. xxxi) black quilt used 1 No. xxxii) double barrel gun 12 Bore 1 No. xxxiii) cartridges 50 (LG and local) 50 Nos xxxiv) Cash worth Rs. 22,240/- 6 6) It is also pertinent to mention here the injuries found on the person of the injured witnesses, during the incident, recorded as per medical examination report Ext. A –33. Injuries found on the person of P.W. 2 Kewal Ram are reproduced here under: (i) Contusion 1 ½ cm X 1 ½ cm at the head 13 cm above right ear and 17 cm above and backwards to right eyebrow. Red in colour. (ii) Contusion 2 ½ cm X 2 ½ cm at the back of right side chest 9 cm away from vertebral column and 16 cm below the spine of scapula. Red in colour. (iii) An abrasion ¼ cm X ¼ cm present in the middle of contusion. Injuries found on the person of P.W. 3 Balwant during the incident, recorded as per medical examination report Ext. A –34, are as under: (i) Lacerated wound 2 cm X ½ cm X ½ cm vertically present at the right side head 5 cm above right eyebrow and 12 cm above right ear. Bleeding present. (ii) Contusion 4 cm X 3 cm horizontally present just above the left eyebrow. Red in colour. (iii) An abrasion 1 cm X 1 cm present in the middle part of contusion. Injuries found on the person of P.W. 4 Rajendra Singh during the incident, recorded as per medical examination report Ext. A –36, are as under: 7 (i) Lacerated wound 6 cm X 1 cm X bone deep obliquely present at the left side of hand 9 cm above left ear and 12 cm above left eyebrow. Bleeding present. (ii) Contusion 15 cm X 12 cm obliquely present in the right outer scapular region of back of shoulder 16 cm away from vertebral column. Red in colour. Selling present on the area. Injuries found on the person of Kasturi Devi during the incident, recorded as per medical examination report Ext. A –35, are reproduced below: (i) Two circular lacerated wound of ½ cm in diameter, depth could not be ascertained (for which x-ray is advised) on left side of face 2 ½ cms apart. Margins inverted and blackened. (ii) Lacerated wound ½ cm in diameter, depth could not be ascertained, on the left temple 2 ½ cm above left ear. Margins inverted and blackened. (iii) Lacerated wound ½ cm X ½ cm x ½ cm at the gum of lower jaw in the right lateral incisor region near the root of tooth. Margins irregular and inverted. Laceration inside lower lip present in front of the injury. (iv) Abrasion ½ cm X ¼ cm horizontally present at the upper lip in the middle part 1 ½ cm below nose. 8 (v) Abrasion ½ cm X ¼ cm longitudinally present at the front part of lower lip 3 cm away from left angle of mouth. No tattooing and no scorching of surrounding skin of wounds of face and temple present. 7) Appellant Fatta is reported to have died during the pendencey of appeal, as such, his appeal stands abated. 8) Narrating the prosecution story P.W. 2 Kewal Ram, informant, has stated that the dacoits came in the evening at about 8:00 P.M., on the day of incident, in his house and after causing injuries to him, his wife Smt. Kasturi, his son Balwant, son-in-law Rajendra Singh and daughter-in-law Smt Bala, looted the property mentioned above. It is also stated by him that the dacoits fired at his wife and daughter- in-law. The witness has also stated that he identified the appellants in the test identification parade correctly. 9) P.W. 3 Balwant Singh, P.W. 4 Rajendra Singh (both injured eyewitnesses), P.W. 6 Jahid, P.W. 7 Janak Singh and P.W. 8 Naurtu have corroborated the above prosecution story as mentioned earlier. 10) In the test identification parade, appellant Ibrahim was identified correctly by as many as four witnesses, namely Smt. Bala, Rajendra Singh, Jahid and Naurta. The test identification report (Ext. A –2) is proved by P.W. 1 S.B. Srivastava, Executive Magistrate, who has stated that he got conducted the parade as per the ruled. 11) Learned counsel for appellant Ibrahim argued that the witness Smt. Bala was not examined by the prosecution. As 9 far as evidence of P.W. 4 Rajendra Singh is concerned, it is argued that his identification value is 40%, as he has correctly identified only one person, out of the three. It is also contended that value of the identification made by P.W. 8 Naurtu is only 66%, as he identified only two persons correctly, out of the three. On its basis, it is contended that the prosecution story should not be treated as true and, benefit of doubt should be given to the accused. But, I am unable to accept the contention advanced on behalf of the appellant Ibrahim, for the reason that from the evidence on record, it is established that the aforesaid witnesses had an opportunity to identify the accused / appellant at the time they committed dacoity. And, if their identification value is taken together, the same is sufficient to prove the charge as against the accused / appellant. 12) Mr. K.S. Verma, learned counsel for the appellant drew attention of this Court to the case of Soni Vs. state of U.P., reported in 1983 Supreme Court Cases (Cri)49(I) and that of Subash and Shiv Shanker Vs. State of U.P., reported in 1987 Allahabad Criminal Cases 507, and argued that since there had been 60 days interval between the date of arrest and identification parade, as such, the identification made after such delay should be treated doubtful. In the case of Subash and Shiv Shanker (supra) the delay was of four months, while in the present case it is within three month’s interval. As to case of Soni (supra), the said reported case is of one paragraph, in which the facts of case are not narrated, as such, it is difficult to accept it as final ratio on the point. On the other hand, in the recent judgment of Lal Singh and others Vs. State of U.P., reported in (2003) 12 10 Supreme Court Cases 554, the Apex court has held that where the witnesses had opportunity to see the accused committing the robbery and have correctly identified the accused from whom looted articles were also recovered, should not be rejected lightly. In the present case also, a part of looted property (clothes, utensils, silver jewelry etc.) has been recovered from the accused / appellants. Regarding the property recovered from the appellants an identification was held, as is clear from the statement of P.W. 1 S.B. Srivastava, Executive Magistrate read with the memo of recovery of stolen articles (Ext. A –5). 13) For the reasons as discussed above, I see no reason to disagree with the conviction and sentence recorded by the trail court on the charges framed against appellant Ibrahim, and the reasons discussed there for in the impugned judgment. 14) In the opinion of this Court, the appeal is liable to be dismissed. The same is dismissed. The appellant Ibrahim is on bail. His bail is cancelled. He shall be taken into custody forthwith by the court concerned to make him serve out the sentence. (Appeal of appellant Fatta, in view of his death during the pendency of this appeal, stands abated). (Prafulla C. Pant, J.) Dt. October 12, 2006. H.Negi