Lal
Singh & Ors Vs. State of Uttar Pradesh
[2003] Insc 549 (4
November 2003)
N. Santosh
Hegde & B.P. Singh
WITH SPECIAL
LEAVE PETITION (CRL.) NO. 4657 OF 2003 (Crl. M. P. No.7792 of 2002) B.P. SINGH,
J.
The
four appellants in this appeal (Criminal Appeal No. 631 of 2001) by special
leave were tried by the Special Judge (Dacoity Affected Area), Mainpuri in
Sessions Trial No. 216 of 1981 and by judgment and order dated 10th December,
1990 they were found guilty and convicted of the offences under sections 394
and 411 IPC and sentenced to undergo rigorous imprisonment for seven years and
three years respectively. On appeal, being Criminal Appeal No. 2240 of 1990,
the High Court of Judicature at Allahabad affirmed their conviction under section 394 IPC but set aside their
conviction and sentence under section 411 IPC since they had been found guilty
and convicted of the principal offence under section 394 IPC.
The
State of Uttar Pradesh has also preferred Special Leave
Petition and Crl. M. P. No.7792 of 2002 against the impugned judgment and order
of the High Court acquitting the appellants of the charge under section 411
IPC.
It may
be noticed at the threshold that apart from the appellants one Ram Swaroop was
also tried by the learned Special Judge charged of the offence under section
120 B IPC. Hukam Singh was additionally charged under section 397 IPC. However,
the trial court found Ram Swaroop not guilty of the offence under section 120 B
IPC and also acquitted Hukam Singh of the charge under section 397 IPC.
A
train robbery is said to have taken place between railway stations Shikohabad
and Etawah at about 4.45
a.m. on 30th October, 1980 when the train had just moved out
of Shikohabad railway station and was proceeding at a very slow speed. In this
incident, according to the prosecution, PW.1 Amar Nath, who was carrying a sum
of Rs. 3.5 lakhs kept in his holdall which he had kept under his head, was
deprived of the said amount by the appellants herein, who after snatching the holdall
jumped out of the running train and could not be apprehended despite the best
efforts of PW.1 and other co-passengers.
It
appears from the record that Hukam Singh and Prakash Chandra, appellants
herein, are brothers. They are both residents of village Khairabad within the
jurisdiction of Jahanabad Police Station. Lal Singh, their associate was a
member of the police force and was resident of Azmatpur. Chandrika Prasad,
another appellant herein is also a resident of Khairabad.
The
case of the prosecution is that a firm known as Panna Lal Banarasi Das of Kanpur has a branch office in Katra Chauban,
Chandni Chowk, Delhi. Amar Nath, PW.1., Hari Shankar,
PW.4, Sharda Charan and Gaya Prasad Lath, PW.16 are the employees of the said
firm. The firm deals in silver metal and often transports goods from Kanpur to Delhi. The case of the prosecution is that on 28th October, 1980 Hari Shankar, PW.1 carried a sum of
rupees five lakh from the Kanpur office
to Delhi office. PW.1, Amar Nath and Sharda Charan
had also carried silver to Delhi by
train. After reaching Delhi next morning, they went to M/s. Lunia
& Co. and then came to the branch of its firm in Chandni Chowk and
delivered cash and silver to Gaya Prasad Lath, PW.16. However, PW.16 later
received instructions on phone from Kanpur to return the sum of rupees five lakh to the Kanpur office through Amar Nath, PW.1 and Sharda
Charan. He, therefore, gave to Amar Nath, PW.1 a sum of Rs. 3.5 lakhs and to Sharda
Charan the remaining amount of Rs.1.5 lakh to be taken to Kanpur. PW.1 kept the amount in a jute bag
and kept it on the left side of his holdall while Sharda Charan tied Rs.1.5 lakhs
around his waist. They had reserved their berths for the return journey to Kanpur by 12 Down Delhi-Howrah Express. They were travelling in a three tier bogie. PW.1 kept the holdall
below his head and lay on his berth. Other passengers who had reservations also
occupied their respective berths but there were several passengers who did not
have reservation and who kept sitting or loitering in the gallery of the bogie.
At about 4.45 a.m. on 30th October, 1980 the train left Shikohabad railway station and was moving at
a very slow speed. One of the culprits who was travelling in the same
compartment pulled the holdall from under the head of PW.1, who covering his
head was lying on the berth but was awake. When he found that the holdall was
being removed by someone, he jumped down from his berth and caught hold of the holdall.
A scuffle followed and one of the accomplices of the person who was trying to
snatch the holdall pressed his gun against his chin due to which a slight
injury was caused to his chin on the right side. Then the one who had snatched
the holdall from him handed over the same to his other accomplice and they
jumped from the train. Two of the co- passengers also jumped from the train
behind them. Amar Nath, PW.1 who also attempted to chase the culprits was
deterred by other passengers from continuing the chase because the culprit
holding the rifle threatened to shoot them if they chased them. He, therefore,
again boarded the same bogie and tried to stop the train by pulling the chain
but the train did not stop. Two of the culprits were wearing khaki uniform and
one of them was armed with a single barrel rifle.
The
other two characters were wearing pyjama and bushshirt. There was sufficient
light in the bogie and therefore, he and other passengers had seen their faces.
The currency notes which were looted had chits affixed to the bundles which
carried the signatures of the 'munim' of the firm. In the First Information
Report which was lodged by Amar Nath, PW.1 at the Etawah G.R.P. Police Station,
it was stated that he was confident that Kishan Lal, TTE, who was posted in the
said bogie was also mixed up with the bad characters and he had taken money
from them and permitted them to travel even when they had no reservations. He
had noticed the rifle wielding character talking to the TTE for quite sometime.
The same TTE was on duty on the train by which he had come to Delhi on 28th October, 1980.
The
First Information Report was lodged by Amar Nath, PW.1 when the train reached Etawah
station and on the basis of the same a case was registered under sections
394/397 IPC.
The
case of the prosecution is that apart from Amar Nath, PW.1, and Sharda Charan,
who were carrying the cash to Kanpur and who had seen the culprits, even Gaya
Prasad Lath, PW.16, who had gone to see them off at the railway station had
noticed two persons strolling on the railway platform wearing dress which was
like the dress of the policemen. Those two persons had entered the same bogie
in which PW.1 and Sharda Charan had their reservations. He claimed that he had
earlier seen those very persons eating chat in a shop opposite the office of
the firm in Chandni Chowk.
The
investigation of the case was entrusted to Inspector Surjan Singh of C.B.C.I.D.
who was examined at the trial as PW.48. After taking up the investigation he
examined the witnesses including one Durga Prasad Goyal, PW.3, a co-passenger
who had also witnessed the occurrence. He also inspected the record of the firm
to verify their claim and visited the place of occurrence.
It
appears that the changed and lavish life style of Hukum Singh, appellant,
attracted public notice. The Investigating Officer, PW.48 received an
information on 17th December,
1980 from a reliable
source that Constable Driver Hukum Singh, appellant and his brother Prakash
Chandra, a dismissed constable, were squandering money and had purchased a
motor cycle and other items. The Investigating officer deputed a Constable of
the C.I.D. to collect further information. After collecting further information
it was reported to the Investigating Officer that apart from these two, Chandrika
and Lal Singh were also involved. This aroused a great deal of suspicion in the
mind of the Investigating Officer and he decided to investigate the complicity
of the appellants in the occurrence in question. On 28th December, 1980 PW.48 alongwith
Inspector O.P. Tyagi, PW.18 reached Jahanabad at about 11.30 a.m.
He
received information through a police informer that appellants Prakash Chandra
and Chandrika were coming to Jahanabad. After associating two public witnesses
PW.48 waited for them at the culvert of Kora Jahanabad. When those persons were
seen they were accosted by him at 2.30 p.m. On search of the person of Prakash Chandra a sum of Rs.5,000/- was
found in his pocket. The currency notes were of the denomination of Rs.100/-
each. On search of Chandrika Prasad a sum of Rs.7,500/- was recovered. The
recoveries were duly recorded in the recovery memos prepared immediately after
the search and marked exhibits Ka-111 and Ka-112. On the bundles of the
currency notes the seal of the firm was found as also the signatures of Gaya
Prasad Lath, PW.16. On further interrogation the involvement of Lal Singh and Hukum
Singh, who were both members of the police force was revealed. It was further
stated by them that they had deposited some amounts in the bank and in the post
office.
Chandrika
Singh suffered a disclosure statement and offered to get recovered National
Saving Certificates ; Fixed Deposit Receipts and the Pass Book of his bank
account. He took them to a 'kotha' in village Khairabad and got recovered one
pass book of the District Co- operative Bank, Fatehpur showing a deposit of
Rs.4,000/- on 6th December, 1980. He also got recovered 12 National Saving
Certificates of the denomination of Rs.500/- each issued on 6th December, 1980.
He also got recovered Fixed Deposit Receipt for a sum of Rs.9,000/- also dated 6th December, 1980. A receipt evidencing the deposit
of Rs.9,000/- by him in the same branch of the bank was also produced by him.
Inspector
O.P. Tyagi, PW.18 alongwith Inspector Raghunath Prasad went in search of Hukum
Singh. They came to Kanpur and then went to police station Rasoolabad
where from they arrested appellant Hukum Singh at 11.55 p.m. on 28th
December, 1980 and
made him 'baparda'. He was brought to Kanpur at 2.45 a.m. on 29th December, 1980.
While Surjan
Singh, PW.48 was returning after searching for the accused on 28th December, 1980
at Chauraha Bara Devi at about 10.00 p.m. he got information from a police
informer that Lal Singh was about to reach his house in Safed Colony Govind Nagar.
PW.48 associated two public witnesses, namely Zila Singh, PW.40 and Sunil Mishra
and reached the colony at 10.30 p.m. He
arrested Lal Singh at 10.45
p.m. A sum of Rs.63,200/-
was recovered from Lal Singh.
There
were six bundles of Rs.10,000/- each and 32 currency notes of Rs.100/- each.
The bundles of currency notes of the denomination of Rs.100/- each had chits
affixed to them which bore the seal of the firm and also the signatures of Gaya
Prasad Lath, PW.16. The licensed gun and cartridges belonging to Lal Singh were
also seized and sealed and recovery memo exhibit Ka-116 prepared.
On
interrogation by PW.48 appellant Hukum Singh disclosed that he and his brother Prakash
Chandra had, out of their share of the looted money, purchased utensils ;
ornaments and a motor cycle.
They
had also purchased National Saving Certificates from the post office Kora Jahanabad
for a sum of Rs.20,000/- and a sum of Rs.20,000/- had also been deposited in
the name of appellant Prakash Chandra on 4th December, 1980 in Special Term
Deposit at Lalitpur Branch of the State Bank of India. He volunteered to get
these articles recovered. He took the investigating officer and other police
officers to his house situated in the campus of police station Collector Ganj
and in the presence of the witnesses he produced 20 National Saving
Certificates of Rs.1,000/- each issued on 10th November, 1980 in his own name
from post office Kora Jahanabad ; 20 National Saving Certificates of Rs.1,000/-
each issued on 10th November, 1980 in the name of appellant Prakash Chandra
from the post office Jahanabad ; a Special Term Deposit Receipt of Rs.20,000/-
issued by Lalitpur Branch of the State Bank of India in the name of appellant Prakash
Chandra ; two gold rings and utensils of stainless steel. The Investigating
Officer also found a bullet motor cycle standing in his house. All these
recovered articles were taken into custody alongwith a single barrel gun with
15 live cartridges which was also recovered from his house. The recovery memo
is exhibit Ka-117, The seized articles were duly sealed. These recoveries were
made on 29th December, 1980 whereafter the appellant Hukum Singh was lodged 'baparda'
in the lock-up of police station Juhi. Later the same day appellant Hukum Singh
gave further information that he and his brother appellant Prakash Chandra had
kept for safe custody a sum of Rs.80,000/- with Constable Bishamber Singh Yadav,
PW.17, resident of Baragaon and posted in Police Lines Lalitpur. On receiving
such an information PW.48 came to Hamirpur on 30th December, 1980 and alognwith PW.41 and other police force reached
village Baragaon.
He went
to the house of Bishamber Singh, PW.17 who disclosed that Hukum Singh and Prakash
Chandra had come to his official quarter at Lalitpur on 4th December, 1980 and
after appellant Hukum Singh had gone away, appellant Prakash Chandra had handed
over to him a sum of Rs.80,000/- consisting of currency notes of Rs.100/- each
in the form of 4 bundles of Rs.20,000/- each. He was entrusted with the amount
with the promise that he would return them when demanded though he could spend
out of that money for his personal needs subject to the condition that the full
amount would be refunded when demanded. He brought the amount to his village
home and kept it there. Out of the said amount he had purchased a motor cycle
for Rs.13,000/- as also a gun alongwith cartridges for a sum of Rs.2,355/- and
had also spent some money on his house etc. A sum of Rs.57,000/- was still with
him and he handed over the currency notes totalling Rs.57,000/- to PW.48. The
currency notes were in bundles of the denomination of Rs.100/- each. Five
bundles were of Rs.10,000/- each while the sixth bundle contained only 70
currency notes of Rs.100/- each. The currency notes were taken into custody
together with the motor cycle, gun and the cartridges etc. and memo exhibit
Ka-51 prepared.
On 3rd
January, 1981 on being interrogated, appellant Lal Singh disclosed to PW.48
that he had repaid a loan of Rs.5,000/- to Hira Chandra of Sirki Mohal, Police
Station Collectorganj, out of the amount which fell to his share. PW.48 took
the appellant Lal Singh to the house of Hira Chandra, PW.32 at 1.00 a.m., who
offered to return the money in the morning after looking into his books of
account.
Later
on the same day PW.32 produced a sum of Rs.5,000/- before the Investigating
Officer and the same was seized by the Investigating Officer under memo exhibit
Ka-106. From the books of account inspected by the Investigating Officer it
appeared that appellant Lal Singh had borrowed a sum of Rs.5,000/- from Hira
Chandra Jain on 9th
June, 1980 and had
repaid the same on 5th
December, 1980. Later
the same day appellant Lal Singh further disclosed that he had deposited some
amount in his own name and in the name of his daughter. The relevant documents
were kept in his house behind the photograph of Radha Krishna. He was taken to
his house and he produced two Fixed Deposit Receipts dated 22nd December, 1980 one of Rs.10,000/- in his own name
and the other of Rs.20,000/- in the name of his daughter issued from the State
Bank of India, Govind Nagar Branch, Kanpur. These Fixed Deposit Receipts were
duly seized under memo exhibit Ka-161. The bank record confirms these deposits.
On 2nd
January, 1981, Inspector O.P. Tyagi, PW.18, interrogated Hukum Singh who
disclosed to him about the shop from which he had got made and purchased the ornaments
and paid the amount. He was taken to the shop of Jhabboo alias Jamuna Narain,
PW.34 who confirmed the fact that he had been given a sum of Rs.10,000/- for
preparation of ornaments. He produced Rs.10,000/- which was given to him by the
said appellant and the same was seized by PW.18.
Appellant
Hukum Singh also disclosed to PW.48 that he had given a sum of 3,000/- to Chunni
Lal, PW.43. He was taken to the house of Chunni Lal on 19th January, 1981 and
said Chuni lal confirmed that Rs.3,000/- in currency notes were given to him by
appellant Hukum Singh on 4th December, 1980. He produced the said currency
notes which were duly seized and sealed vide memo exhibit Ka-164.
Shri
G.C. Saxena, Special Executive Magistrate, Mainpuri conducted the test
identification parade at the District Jail, Mainpuri on 4th February, 1981. Amar
Nath, PW.1 correctly identified all the four appellants. Durga Prasad, PW.3
correctly identified Hukum Singh and Lal Singh appellants. Gaya Prasad Lath,
PW.16 also correctly identified Hukum Singh and Lal Singh. All the three
identifying witnesses did not commit any mistake in identifying the accused.
Appellants
were put up for trial alongwith co-accused, since acquitted, before the Special
Judge (Dacoity Affected Area), Mainpuri charged variously under sections
394/397/411/120 B of the IPC. The prosecution examined a large number of
witnesses to prove its case.
The
appellants pleaded not guilty to the charges framed against them.
In his
examination under section 313 Criminal Procedure Code, Lal Singh admitted
having been arrested in front of his house on 28/29th December, 1980 and having
been found in possession of Rs.71/- and two keys of his brief-case in the
pocket of his coat. He also admitted having opened the brief case and having taken
out the tin box from inside the brief-case but he denied the recovery of Rs.63,200/-
from the tin box. He admitted that there were some loose currency notes
amounting to Rs.3,200/- but denied the recovery of Rs.60,000/-. He also denied
the other recoveries made from Hira Chandra Jain and in fact denied the entire
transaction. He further admitted that three Fixed Deposit Receipts were taken
into custody by the Investigating Officer from his house but he denied that
those Fixed Deposit Receipts were got issued by investing the money obtained by
him in the train robbery. He claimed that the amount had been collected by him
and four others to purchase a house at Kanpur. Regarding the identification
proceedings he submitted that the witnesses knew him from before. According to
him the shop of the firm was at a distance of 1 furlong from the police
station. He had not been made 'baparda'.
According
to him he had arrested Sharda Charan on 6th March, 1980 in connection with
smuggling of gold. In that connection PW.1 and other persons working in the
firm as well as Inspector Rathi had approached him, but since he did not favour
them, they became inimical and have got him falsely implicated. According to
him the Investigating Officer, PW.48 was also a friend of Inspector Rathi.
Appellant
Hukum Singh stated that he was arrested on 20th December, 1980 but he was not
made 'baparda'. He denied that the recoveries were made at his instance. He
also denied that he had given a sum of Rs.80,000/- to Bishamber Singh Constable.
The articles were not purchased from the money which he had got by robbing PW.1
and he further denied that the bundles of currency notes bore the seal of the
firm and signatures of Gaya Prasad Lath, PW.16.
He
also denied that he had any transaction with Jhaboo or Chunni Lal.
As
regards the identification by the witnesses he stated that he had been shown to
the witnesses. He further stated that in the arrest of Sharda Charan by Lal
Singh his jeep had been used and that is why the witnesses were not happy with
him.
Appellant
Chandrika Prasad denied that he had been arrested in the manner alleged. In
fact he was arrested from his house. He admitted the recovery of cash from his
house but claimed that a sum of Rs.4,200/- belonged to Ram Gopal who lived in
his house and the balance Rs.3,300/- belonged to him which was recovered from
his house. As regards the amount of Rs.4,000/- in the Saving Bank Account and
the amount invested in fixed deposit, the same belonged to him and were not
obtained by him in the robbery. He was not kept 'baparda' and the witnesses
knew him from before because he had gone to the shop of the firm for getting
ornaments made. He admitted having invested a sum of Rs.6,000/- in National
Saving Certificates.
He had
been implicated because Hukum Singh happened to be his cousin.
Appellant
Prakash Chandra also denied that he was arrested in the manner alleged by the
prosecution. In fact he was arrested from his house and a sum of Rs.5,000/- in
loose currency notes was recovered from his house. There were no chits or seals
on the bundles of currency notes as alleged by the prosecution. He had earned
the amount recovered from him by looking after the properties of his
father-in-law. He claimed to know PW.1 and he further stated that he had been shown
to the witnesses while in the lock up at Juhi Police Station. He had also been
photographed. He had been falsely implicated because he happened to be the
brother of appellant Hukum Singh.
The defence
also examined witnesses namely DW.1 to DW.5 in support of its case.
The
prosecution on the other hand relied upon the evidence of the two eye
witnesses, namely PW.1 Amar Nath and PW.3 Durga Prasad Goyal. It further sought
corroboration from the evidence of Hari Shankar, PW.4 who had carried Rs. 5 lakh
from Kanpur to Delhi.
It
also relied upon the evidence of Gaya Prasad Lath, PW.16, who had handed over
the amount to Amar Nath, PW.1 for being taken to Kanpur. He had also deposed
about the fixing of slips on the bundles of currency notes on which the seal of
the firm was stamped and that they also contained his signatures on each slip.
The prosecution also relied upon the evidence collected by PW.48 which included
recoveries made from the accused. The testimony of Shri G.C. Saxena, Special
Executive Magistrate, who conducted the test identification parade proved that
the accused were identified by the witnesses in the test identification parade.
PW.7 Dr. Mehrotra testified to the fact that he had examined the injuries of Amar
Nath at 8.30 p.m. on 31st October, 1980 while he was on duty as Medical Officer
in the dispensary at Etawah.
The defence
did not seriously contend before the High Court that a robbery did not take
place in the manner alleged by the prosecution in which PW.1 was robbed of a
sum of Rs.3.5 lakhs by the miscreants. There is abundant evidence on record to
establish the fact that PW.1 was in fact carrying a sum of Rs.3.5 lakhs and
that he was robbed of the same when the train had just left the Shikohabad
railway station and the culprits made good their escape by jumping from the
train and running away after threatening witnesses. What was disputed seriously
before the High Court and also before us is the identity of the miscreants. All
the appellants have denied that they had taken part in that incident and each
one of them set up a defence against the charge framed.
The
trial court as well as the High Court after a detailed consideration of the
evidence on record came to the conclusion that the prosecution had proved its
case beyond reasonable doubt. The judgments of the trial court as well as of
the High Court are exhaustive and deal with every aspect of the case. In fact
the High Court sitting as a Court of Appeal has devoted 247 pages to the
discussion of the evidence on record. It has meticulously considered every
aspect of the matter, considered each piece of evidence, and has exhaustively
dealt with the submissions urged before it in the light of the defence taken by
the appellants. It came to the conclusion that the evidence on record clearly established
the case of the prosecution that Amar Nath, PW.1 while travelling with Sharda Charan
was carrying a sum of Rs.3.5 lakh and that he was robbed of the same by the
miscreants at about 5.00 a.m. on 30th October, 1980 when the train had just
started moving out of Shikohabad railway station. The presence of Durga Prasad,
PW.3, a co-passenger who claimed to have witnessed the occurrence, could not be
disputed. When his presence was challenged, the prosecution produced ample
documentary evidence to show that he was travelling in the same bogie and by
the same train on the date of occurrence. The prosecution produced before the
court the railway reservation sheet exhibit Ka-109 which showed that the name
of this witness was at Sl. No.27. The High Court also found that there was
ample opportunity for the witnesses to see the appellants since there is
consistent evidence that there was electric light in the compartment. PW.1 who
was carrying a sum of Rs.3.5 lakh was obviously very conscious of the fact that
he was carrying a huge amount and, therefore, his claim that he was merely
lying on the berth and was not sleeping appears to be true. The witnesses had travelled
from Delhi to Shikohabad in the same compartment and, therefore, they were
together in the same compartment for several hours. PW.3 also claimed to have
seen two of the appellants at Delhi and from their dress he took them to be
police guards. He had seen the incident at Shikohabad. The High Court after a
careful consideration of his evidence held that there was no reason to doubt
his testimony. The evidence with regard to the identification was also accepted
by the High Court. It did not find that there was any inordinate delay in
holding the test identification parade. So far as PW.1 and PW.3 are concerned,
they being eye witnesses, their identification in the test identification
parade clearly implicated the appellants. Gaya Prasad Lath, PW.16, who also
identified appellants Hukum Singh and Lal Singh in the test identification parade
was not an eye witness but it could not be said that it was not possible for
him to remember the features of two of the appellants whom he identified in the
test identification parade. He had seen them earlier while eating chat in front
of their office in Chandni Chowk. They were dressed in khaki uniform and
obviously when he saw them again at the railway station and noticed that they
boarded the same bogie as PW.1, their faces must have got imprinted in his
memory. However, the High Court held that even if the identification by PW.16
is kept out of consideration, the identification of the appellants by PW.1 and
PW.3 could not be challenged on any ground. It considered in detail the link
evidence produced by the prosecution to establish that the appellants had been
kept 'baparda' ever since they were arrested and there was no opportunity for
any one to see them while in police custody. Apart from a vague suggestion,
there was no evidence on record to probabilize their having been shown to
witnesses at any time. The High Court in great detail has considered the
evidence relating to this allegation and has held that the evidence of the
prosecution in this regard deserves acceptance. The evidence also established
that the bundles of currency notes which were recovered had chits on them which
bore the seal of the firm and the signatures of PW.16. The original bundles had
been produced in court when PW.1 was in the witness box and he identified them
and gave proper description of those bundles. The High Court also considered the
defence of Lal Singh and others that since appellant Lal Singh arrested Sharda Charan,
the prosecution witnesses were hostile to him and had deposed falsely. It found
no substance in the defence case. It also examined the defence of Lal Singh
that since he had been visiting the shop of the firm in Kanpur with Sadhu
Singh, DW.1, he was known to the witnesses. In his examination under section
313 Cr. P.C. this witness had claimed that he used to get ornaments made from
the firm, but the evidence examined by the defence sought to prove that he had
been visiting the shop of the firm in the company of Sadhu Singh, DW.1 who got
ornaments made from them.
Learned
counsel for the parties have taken us through the relevant evidence on record
and the judgments of the courts below.
We
find that the High Court has undertaken a very meticulous and exhaustive
analysis of the entire evidence on record. Nothing has been left out and each
piece of evidence has been noticed and discussed threadbare. All contentions
urged by the appellants have been considered at length and proper findings have
been recorded.
The defence
of the appellants has also been considered fully and there is really no scope
for the criticism that the High Court has either ignored any important material
on record or that it has failed to notice the submissions urged before it. We
have also found the conclusions reached by the High Court to be reasonable and
based on the evidence on record. Learned counsel for the appellants could not
point out anything in the judgment of the High Court which requires our
interference. In fact before us the main thrust of the argument of the learned
counsel for the appellants was about the identity of the miscreants. It was
submitted on behalf of the appellants that there was considerable delay in
holding of the test identification parade, apart from the fact that the
appellants had been shown to the witnesses. It was further urged that the
recoveries were planted on the appellants and that in fact no recoveries were
made from them. It was further submitted that Prakash Chandra and Chandrika
Prasad had been identified only by PW.1 Amar Nath and, therefore, they deserve
an acquittal. Lal Singh and Hukum Singh were identified by PW.1 Amar Nath, PW.3
Durga Prasad and PW.16 Gaya Prasad Lath, Their identification had no value
since the witnesses had already seen the appellants while in police custody. So
far as the recoveries are concerned we have carefully perused the judgments of
the courts below. The courts below have carefully analysed the evidence on
record and have extensively dealt with them in their judgments. The concurrent
findings of fact recorded by the courts below on this aspect of the matter do
not call for interference by this Court. We have heard learned counsel for the
parties at length on this aspect of the matter and we find nothing which may
persuade us to record a contrary finding. We, therefore, affirm the finding of
courts below on this aspect of the matter.
The
crucial question is whether the prosecution has proved its case as against the
appellants beyond reasonable doubt. We may observe that an offence of the
nature with which we are concerned in the instant case, is committed more often
than not, by persons who are unknown to the victims. The perpetrators of such
crime are usually persons who are motivated by sheer greed to commit such
offences.
Such
an offence does not fall within the category of those offences where an accused
out of revenge or enmity commits an offence. In such cases, of course, the
identity of the accused poses no problem.
But in
cases where the offence is usually committed by unknown persons with a criminal
and professional background, it is only in very rare cases that they are known
to the victim. In most cases of such nature the accused is an unknown person
and the only evidence which may connect him with the crime is the evidence of
identification in a test identification parade, and in some cases evidence of
recovery of the articles which are the subject matter of robbery. Cases of robbery,
therefore, mostly depend on such evidence. Moreover the arrest of the culprits
in such cases is often delayed on account of the inherent difficulties which
the prosecution naturally faces in such cases. The fact that the victim is not
named in the first information report in a case of this nature is, therefore,
not of much significance. The prosecution can prove its case on the basis of
recovery of the articles which are the subject matter of the offence and
identification of the culprits in a test identification parade.
So far
as the recovery of currency notes is concerned, we are satisfied that they were
recovered from the appellants and they had been properly identified in court in
the light of the fact that the currency note bundles contained slips bearing
the seal of the firm and the signatures of PW.16.
The
next question is whether the prosecution has proved beyond reasonable doubt
that the appellants are the real culprits. The value to be attached to a test
identification parade depends on the facts and circumstances of each case and
no hard and fast rule can be laid down. The Court has to examine the facts of
the case to find out whether there was sufficient opportunity for the witnesses
to identify the accused. The Court has also to rule out the possibility of
their having been shown to the witnesses before holding a test identification
parade. Where there is an inordinate delay in holding a test identification
parade, the Court must adopt a cautious approach so as to prevent mis-carriage
of justice. In cases of inordinate delay it may be that the witnesses may
forget the features of the accused put up for identification in the test
identification parade. This, however, is not an absolute rule because it
depends upon the facts of each case and the opportunity which the witnesses had
to notice the features of the accused and the circumstances in which they had
seen the accused committing the offence. Where the witness had only a fleeting
glimpse of the accused at the time of occurrence, delay in holding a test
identification parade has to be viewed seriously. Where, however, the Court is
satisfied that the witnesses had ample opportunity of seeing the accused at the
time of the commission of the offence and there is no chance of mistaken
identity, delay in holding the test identification parade may not be held to be
fatal. It all depends upon the facts and circumstances of each case.
If we
examine the facts and circumstances of this case we find that the appellants as
well as the witnesses had boarded the train at Delhi on 29th October, 1980 at
about 10.00 p.m. in which the occurrence took place at about 5.00 a.m. in the
morning of 30th October, 1980. There is consistent evidence on record that
there were extra passengers in the reserved coach who were moving about in the
gallery of the compartment. Two of them were wearing khaki uniform and one was
carrying a single barrel rifle. The evidence on record discloses that they had
been talking to the TTE for a considerable time and that is what annoyed PW.1
who suspected the involvement of the TTE also in the offence, and had so
reported in the first information report. Having seen those persons for so many
hours, it cannot be disputed that PW.1 and PW.3 had ample opportunity to see
the appellants who travelled with them in the same compartment from Delhi to Shikohabad. When the occurrence
took place, PW.1 was awake and was merely lying on his berth covering his face
with a towel. As soon he noticed that his holdall was being pulled away, he
jumped down from his berth and held the holdall. He was thereafter threatened
by the person who was carrying a rifle.
Thereafter
the holdall was passed on from the first culprit to the second and then to the
third and then to the last one who jumped out of the train and they also
followed him. PW.1 also jumped out of the train in an attempt to catch hold of
the culprit but on the advise of the passengers he came back to the
compartment. The evidence of PW.3 is also to the same effect. He had noticed
two of the persons wearing khaki uniform in Delhi when the train left the Delhi station. He had also woken up when there was a scuffle between PW.1 and
the culprits. His presence in the compartment is fully established. He had seen
the occurrence as it took place and his evidence is quite consistent with the
evidence of PW.1. This witness is a dis-interested witness and there is no
reason to suspect his testimony. The vague suggestions made against him have
been critically scrutinized by the courts below which have found no substance
in them. We are, therefore, satisfied that both the eye witnesses, namely PW.1
and PW.3 had ample opportunity to see the appellants who were travelling in the
same compartment for about 7 hours. There was sufficient light in the
compartment which facilitated their identification by the eye witnesses.
Even
though a plea was urged before the courts below that the appellants had been
shown to the witnesses, there is no evidence on record which may deserve notice
on this aspect of the matter. It was submitted that the holding of the test
identification parade was delayed. The appellants were arrested on 28th December, 1980 and they were put up for
identification in a test identification parade on 4th February, 1981. We do not think that this delay can be said to be
inordinate in the facts and circumstances of this case. In any event having
regard to the opportunity which the witnesses had to identify the appellants,
the possibility of mis-taken identity must be ruled out.
We
have very carefully perused the evidence of PW.1 and PW.3 and we find that
their evidence is trust worthy and implicit reliance can be placed on their
testimony. We find no difficulty in acting on the identification by these
witnesses.
Learned
counsel for the appellants placed reliance on several judgments of this Court
and submitted that in view of the principles laid down by this Court, the
evidence of identification in this case should not be relied upon. On the other
hand learned counsel for the State submitted that none of those decisions help
the appellants and he also relied upon certain decisions of this Court. We
shall now proceed to consider the decisions cited at the Bar.
Reliance
placed by the appellants on the decision of this Court in Budhsen and another
vs. State of U.P. : AIR 1970 SC 1321 is of no assistance to the appellants. It
appears from the report that the entire prosecution case depended upon the
identification of the appellants and this identification was founded solely on
test identification parade. This Court found that the High Court had not
correctly appreciated the evidentiary value of these parades though they had
treated it as the primary evidence in support of the prosecution case. The High
Court seems to have proceeded on the erroneous legal assumption that it was a
substantive piece of evidence and that on the basis of that evidence alone the
conviction could be sustained. The Court also ignored important evidence on the
record in regard to the manner in which the test identification parades were
held suggesting that they were held more or less in a mechanical way without
the necessary precautions being taken to eliminate unfairness.
This
was clearly an erroneous way of dealing with the test identification parades
and had caused failure of justice. It was in these circumstances that this
Court set aside the conviction of the appellants in that case, which was based
solely on the identification of the appellants in a test identification parade.
The principle laid down in the above decision does not apply to the facts of
this case. In the case in hand the witnesses had identified the appellants in
Court and that is corroborated by their earlier identification in the test
identification parade. The prosecution had also established by examining the
Executive Magistrate that necessary precautions were taken to eliminate
unfairness.
In Soni
vs. State of U.P. : (1982) 3 SCC 368, a test identification parade was held
after a lapse of 42 days from the date of the arrest of the appellant. The
delay in holding the test identification parade created a doubt on the
genuineness thereof, apart from the fact that it may be difficult that after
lapse of such a long time the witnesses would be remembering the facial
expressions of the appellant. This Court, therefore, held that if this evidence
cannot be relied upon there is no other evidence which can sustain the
conviction of the appellant. In these circumstances the appellant was
acquitted. The judgment is a short judgment of only one paragraph and
conviction of the appellant in that case rested solely on his identification by
the witnesses. There was no other evidence which proved the complicity of the
appellant. In the instant case, apart from the identification in Court
corroborated by identification in test identification parade, there is evidence
of recovery of the currency notes from the possession of the appellants which
were the subject matter of robbery.
In
Bali Ahir and others vs. State of Bihar : AIR 1983 SC 289 this Court found that
all the identifying witnesses except PW.2 had seen the accused from behind only
when they were running away from the scene of occurrence. So far as the
remaining witness, namely Harihar Prasad Singh, PW.2 was concerned he was known
to the appellant and, therefore, his identification in Court had no value
whatsoever. It will thus be seen that this Court came to the conclusion that
except PW.2, who was already known to the appellant, the other witnesses did
not have sufficient opportunity of identifying the culprits who were running
away after commission of dacoity.
In Subhash
and another vs. State of U.P. : AIR 1987 SC 1222 the test identification parade
was held three weeks after the arrest of the appellant. There was, therefore, a
room for doubt as to whether the delay in holding the test identification
parade was in order to enable the identifying witnesses to see him in the
police lock-up or in the jail premises and make a note of his features. The
Court also noticed that 4 months had elapsed between the date of occurrence and
the date of holding of the test identification parade. The descriptive
particulars of the appellant were not given when the report was lodged. But
while deposing before the Sessions Judge, the witnesses had stated that the
appellant was a tall person and had sallow complexion. If on account of these
features the witnesses were able to identify appellant Shiv Shankar at the
identification parade, they would have certainly mentioned about them at the
earliest point of time when his face was fresh in their memory.
As the
conviction of the appellant was based solely on the identification at the test
identification parade, this Court give to him the benefit of doubt, while
upholding the conviction of the co-accused. This is also a case where the
conviction of the appellant was based solely on the evidence of identification.
There being a delay in holding the test identification parade and in the
absence of corroborative evidence, this Court found it unsafe to uphold his
conviction.
In the
instant case, however, as earlier noticed apart from identification by the eye
witnesses, there is evidence regarding the recovery of the looted articles from
the possession of the appellants.
In
State of Andhra Pradesh vs. Dr. M.V. Ramana Reddy and others : AIR 1991 SC 1938
this Court was dealing with an appeal against acquittal. The appeal in so far
as it related to the first respondent was allowed, but in so far as the second
respondent was concerned, the Court upheld the finding of acquittal recorded by
the High Court. This Court found that there was delay in holding the test
identification parade for which there was no valid explanation. The defence had
suggested to the concerned witnesses that the accused, who were in custody,
were shown to the witnesses and the police had secured a group photograph in
which accused Nos. 3 and 5 figured to facilitate their identification. The High
Court was, however, reluctant to place absolute reliance on the evidence of
PW.1 regarding the identity of accused Nos. 3 and 5. This Court held that in
the absence of a valid explanation for the delay, this approach of the High
Court could be said to be manifestly wrong calling for intervention. It will
thus be seen that even in this case the conviction was based on the
identification by PW.1 and the High Court suspected that the holding of the
test identification parade was delayed with a view to show the respondents to
the witnesses. The High Court was reluctant to place implicit reliance on PW1.
In these circumstances this Court held that this Court's interference was not
called for against an order of acquittal.
In
Rajesh Govind Jagesha vs. State of Maharashtra : AIR 2000 SC 160 : accused No.
2 was arrested on 20th January, 1993 but the identification parade was held on
13th February, 1993. It was also not disputed that at the time of
identification parade the appellant was not having beard and long hairs as
mentioned at the time of lodging of the first information report. It was also
not disputed that no person with beard and long hairs was included in the parade.
The witnesses were alleged to have identified accused No.2 at the first sight
despite the fact that he had removed the long hairs and beard. This Court held
that the Magistrate should have associated 1-2 persons having resemblance with
the persons described in the FIR and why it was not done was a mystery shrouded
with doubts and not cleared by the prosecution. In these circumstances the
Court observed that the possibility of the witnesses having seen the accused
between the date of arrest and the test identification parade cannot be ruled
out. This case also rests on its own facts, and mere delay in holding the test
identification parade was not the sole reason for rejecting the identification.
On the
other hand learned counsel for the State has relied upon the decision of this
Court in Delhi Administration vs. Bal Krishan :(1972) 4 SCC 659 wherein it was
held that it cannot be laid down as a proposition of law that after a lapse of
a long period, witnesses would, in no case, be able to identify the dacoits
they had seen in the course of a dacoity committed during the night. However,
the courts will have to be extremely cautious when such evidence is before
them.
In Vikram
Singh vs. Raj Singh : 1998 SCC (Cr.l) 578 this Court held that in the absence
of anything to indicate that the accused were shown to the witnesses, the test
identification parade held after a month of the arrest of the accused could not
be rejected.
In Bharat
Singh vs. State of U.P. : (1973) 3 SCC 896 this Court held that although it is
desirable to hold identification parade at the earliest opportunity, when there
is a delay of three months in holding the identification parade, it is the duty
of the accused to cross- examine the police officer who conducted the
investigation and the Magistrate who held the parade if the accused wishes to
take advantage out of such undue delay.
In a
recent case, Daya Singh vs. State of Haryana : (2001) 3 SCC 468 this Court held
that the identification of the accused in court after seven or eight years
would not affect the evidence of the eye witnesses, where the trial was delayed
for one or the other reason in a case where it was apparent that the witnesses
had gained an enduring impression of the accused during the incident.
It
will thus be seen that the evidence of identification has to be considered in
the peculiar facts and circumstances of each case.
Though
it is desirable to hold the test identification parade at the earliest possible
opportunity, no hard and fast rule can be laid down in this regard. If the
delay is inordinate and there is evidence probablising the possibility of the
accused having been shown to the witnesses, the Court may not act on the basis
of such evidence.
Moreover,
cases where the conviction is based not solely on the basis of identification
in court, but on the basis of other corroborative evidence, such as recovery of
looted articles, stand on a different footing and the court has to consider the
evidence in its entirety.
In the
instant case we have found that the prosecution has successfully established
the recovery of the currency notes from the possession of the appellants which
were the subject matter of robbery.
The
currency notes have been duly identified having regard to the special features,
namely existence of chits on the bundles bearing the seal of the firm and the
signatures of PW.16. PW.1 correctly identified all the appellants while PW.3
identified two of them, namely Hukum Singh and Lal Singh. He, however, made no
mistake in identifying the said appellants. We have already held that these
witnesses had ample opportunity of noticing the facial features of the
appellants since they had travelled in the same compartment for almost seven
hours and there was sufficient light in the compartment.
Moreover
the delay in holding the test identification parade was not inordinate, and
nothing has been elicited from the investigating officer as well as the Special
Executive Magistrate who held the test identification parade that the
appellants had been shown to the witnesses before holding of test
identification parade or that there was any irregularity in holding the test
identification parade. The prosecution also produced evidence which
satisfactorily proves that right from the day of their arrest, they were kept 'baparda'
so as to rule out the possibility of their faces being seen while in police
custody. No irregularity in the holding of the test identification parade has
been pointed out. In these circumstances even if it is assumed that there was
some delay in holding the test identification parade the court was required to
apply the rule of caution. In the instant case the conviction of the appellants
is based not solely on the evidence of identification by PWs. 1 and 3 but also
on the basis of the corroborative evidence in the form of recoveries of looted
currency notes from the possession of the appellants. The substantive evidence
of identification in Court is, therefore, supported by corroborative evidence
which is unimpeachable in nature and, therefore, conviction of the appellants
is fully justified.
In the
result Criminal Appeal No.631 of 2001 fails and is dismissed.
As
stated above, the State has also preferred a special leave petition against the
acquittal of the appellants of the charge under section 411 IPC. The delay in
filing the petition is condoned. We find no merit in the special leave
petition, which is accordingly dismissed.
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