Vs. State of U.P.  INSC 287 (19 April 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 475
OF 2008 Ram Babu ...Appellant Versus State of U.P. ...Respondent WITH
CRIMINAL APPEAL NO. 550 OF 2008 JUDGEMENT R.M. Lodha, J.
appeals by special leave arise out of trial of the appellants and three others,
namely, Saudan Singh (A-3), Sher Singh (A-6) and Mangal Singh (A-1) for the
commission of offence punishable under Section 395 of the Indian Penal Code
(for short, `IPC'). They were alleged to have committed dacoity on April 7,
1980 at or about 9.30 p.m. in a temple - Totadhari Math, Gyan Gudari,
Vrindavan, District Mathura. The appellants and A-1 were convicted by the 3rd Additional
Sessions Judge, Mathura under Section 395 IPC and sentenced to undergo rigorous
imprisonment for a term of five years. A-3 and A-6 were acquitted. The
appellants and A-1 challenged their conviction by a common appeal to Allahabad
High Court. The High Court vide its judgment dated September 14, 2007 dismissed
the appeal. It is from this judgment that one appeal has been preferred by Ram
Babu (A-5) and the other by Man Singh @ Mani (A-4) and Jagdish Upadhyay (A-2).
informed that A-1 had died during the pendency of appeal before High Court.
Vrindavan is a holy and revered place having large number of public religious
Maths. Totadhari Math (hereinafter referred to as `temple') is situate in
Mohalla Gyan Gudari. Many silver idols adorn this temple. Ornaments and silver
utensils for shringar and puja of the deities were used to be kept in the
almirah in his room by the Mahant - Vishwast Sen Acharya.
disciples, students and teacher resided in the temple premises. On April 7,
1980 at about 9.30 p.m., the dacoits 2 (15/16 in number) armed with pistols,
guns, knives and lathis entered the temple premises. At that time, in the
courtyard (Chowk), Ram Ajor Pathak (PW-1), Jagdish Prasad (PW-2), Sudarshan
Prasad (PW-3), Udhav Prasad (PW-9), Brijesh Kumar, Kaladhar Dwivedi, Narotam
Kumar and three sadhus, namely, Damodar, Ram Prapan and Madhav Prasad were
taking food (Prasad). The dacoits asked them to hand over the keys of the
temple and the room where silver idols, ornaments and silver utensils etc. were
kept but they feigned ignorance as the Mahant was not in the temple. The
dacoits then asked them to stay put in a small room. PW-9 escaped from room
where he was confined and managed to reach the roof of the temple. The dacoits
broke open the room and almirah and looted the ornaments, silver utensils, cash
and other articles like clocks, clothes, etc. They also looted idols made of
Astadhatu and silver. After looting the properties, the dacoits ran away
towards river Yamuna. Before leaving, the dacoits also caused injuries to
Madhav Das and Damodar Das by the butt of the gun. As soon as Mahant reached
the temple, PW-1 went to the police station and lodged the first information
report 3 at about 10.15 p.m. in the same night against unknown persons.
Ram - a Sub Inspector commenced investigation immediately thereafter. He
visited the place of occurrence and prepared site plan. Madhav Das and Damodar
Das who were injured by the dacoits were medically examined on April 8, 1980 at
the Government Hospital, Vrindavan. During the course of investigation, the
Investigating Officer arrested number of dacoits. On April 29, 1980, A-1 was
arrested at 4.30 p.m. On April 30, 1980, A-3 and A-2 were arrested at 6.15 a.m.
a.m. respectively. On May 1, 1980, A-6 was arrested at 12.30 p.m. while on May
6, 1980, A-5 was arrested at 2.00 p.m. On May 29, 1980, accused A-4 was
arrested at 5.30 p.m.
them, three more persons namely, Biro, Chandar and Sundar were also arrested by
the Investigating Officer. On June 4, 1980, the test identification parade was
held under the supervision of L.P. Gupta (PW-14). Based on the result of the
identification and the statements recorded under Section 161 of Criminal
Procedure Code, a charge-sheet was filed against 7 4 persons including the
present appellants. Biro (A-7) was discharged by the trial judge on August 30,
prosecution examined as many as 35 witnesses. PW-1, PW-2, PW-3 and PW-9 are
inmates of the temple and were present at the time of incident. PW-14 is the
Special Executive Magistrate under whose supervision test identification parade
was conducted. Munna Prasad Srivast (PW-15), Ramesh Chandra (PW-18) and Maharaj
Singh (PW- 19) were examined to prove the arrest of the accused persons.
Singh (PW-10) is the Investigating Officer who conducted investigation after
transfer of Sub-Inspector Kashi Ram. Quite a few police constables were
examined by way of link evidence to prove that right from the arrest till being
lodged in jail, the faces of the suspects were kept veiled and nowhere was the
opportunity to see them.
statements of the accused were recorded under Section 313 of Criminal Procedure
Code. The accused also produced four witnesses Jagdish Swarup (DW-1), Tejbir
Singh Tyagi (DW-2), Purushottam (DW-3) and V.D. Gupta (DW- 5 4) in support of
their defence that their identity did not remain secret and they have been
trial court held that guilt of A-1, A-2, A-4 and A- 5 for the offence under
Section 395 IPC was proved beyond reasonable doubt. The benefit of doubt was
given to A-3 and A-6.
Ashok Kumar Sharma, learned counsel for the appellants vehemently contended
that the evidence against the appellants and A-3 and A-6 who have been
acquitted and A-7 who was discharged is identical and if based on that
evidence, the identification of A-3 and A-6 was held not established, the said
evidence is liable to be rejected in respect of the appellants as well. He
would also contend that the test identification parade was held belatedly and
delay having not been explained sufficiently, the identification was doubtful
and conviction improper. Lastly, learned counsel submitted that the incident
took place 30 years back and half the sentence has already been undergone by
the appellants and, therefore, interest of justice would be sub-served if the
sentence awarded to the appellants is reduced to already undergone.
Pramod Swarup, learned senior counsel for the State supported the judgment of
the High Court and submitted that the conviction of the appellants based on
identification does not suffer from any legal infirmity warranting interference
by this Court.
Section 9 of the Evidence Act, 1872 reads:
9. Facts necessary to explain or introduce relevant facts.--Facts necessary to
explain or introduce a fact in issue or relevant fact, or which support or
rebut an inference suggested by a fact in issue or relevant fact, or which
establish the identity of anything or person whose identity is relevant, or fix
the time or place at which any fact in issue or relevant fact happened, or
which show the relation of parties by whom any such fact was transacted, are
relevant in so far as they are necessary for that purpose."
per Section 9 of the Evidence Act, facts which establish the identity of an
accused are relevant. Identification parade belongs to investigation stage and
if adequate precautions are ensured, the evidence with regard to test
identification parade may be used by the court for the purpose of
corroboration. The purpose of test identification parade is to test and
strengthen trustworthiness of the substantive evidence of a witness in court.
It is for this reason that test identification parade is held under the
supervision of a magistrate to 7 eliminate any suspicion or unfairness and to
reduce the chances of testimonial error as magistrate is expected to take all
the present case, PW-14 supervised the test identification parade held in
District Jail, Mathura on June 4, 1980. He proved identification memos in his
deposition. He deposed that all possible precautions were taken in conduct of
the test identification parade held on that date. As a matter of fact, there is
no challenge to his testimony. Insofar as substantive evidence is concerned,
all the three appellants (A- 2, A-4 and A-5) have been identified by PW-3 and
PW-9 in the Court. A-2 and A-4 were also identified by PW-2 in the Court.
inmates, their presence in the temple at the time of incident was natural. All
of them were having their food in the chowk at that time. That there was
sufficient light for enabling them to identify the dacoits is also established.
Besides bulbs and tube lights, according to these witnesses, the light was also
available from two gas petromaxes. Pertinently, learned counsel for the
appellants did not contest the finding recorded by the trial court as well as
the High Court in this regard. The 8 prosecution also examined large number of
witnesses to adduce link evidence to the effect that right from the arrest of
the accused persons till being lodged in jail, the faces of the suspects were
kept veiled and nowhere was the opportunity to see them. The learned counsel
for the appellants, however, contended that the evidence against the appellants
and A-3, A- 6 and A-7 was identical and based on that evidence A-3 and A- 6
were acquitted and A-7 was discharged and on the same evidence, appellants
could not have been legally convicted.
as A-3 is concerned, the trial court gave him benefit of doubt as the
prosecution failed to furnish any explanation as to why he could not be
confined in jail or presented before a Magistrate on the day of arrest itself,
i.e. April 30, 1980. The trial court found that, although A-3 was arrested on
April 30, 1980 at about 6.15 a.m. but he was produced before the Court on the
next day despite the fact that Magistrate was available hardly 8 killometers
away. As regards A-6, the trial court was not convinced about the date, time
and place of his arrest. The trial court held that from the evidence on record,
possibility of his arrest at earlier point of time and at some other place 9
cannot be excluded. We are afraid the grounds on which A-3 and A-6 were given
benefit of doubt do not, in any manner, affect the credibility of the evidence
of PW-2, PW-3 and PW-9 in the Court or the test identification parade insofar
as A-2, A-4 and A-5 are concerned. These witnesses have identified the
appellants not only in test identification parade but also in the Court. The
identification of the appellants, thus, is established by substantive evidence
duly corroborated by test identification parade.
may also consider the contention of the learned counsel for the appellants that
as the test identification parade was held belatedly and delay has not been
explained sufficiently, the identification of the appellants is rendered
doubtful. It is true that A-2 was arrested on April 30, 1980; A-5 on May 6,
1980; and A-4 on May 29, 1980 while the test identification parade was held on
June 4, 1980 but the explanation that has been put forth by the prosecution for
this delay is that the suspects (9 in number) including the appellants were
arrested on different dates and the last of such arrest being of A-4 on May 29,
1980, the test identification parade was 10 held only thereafter. In our view,
in the facts and circumstances of the case explanation is acceptable and it
cannot be said that test identification parade held on June 4, 1980 suffers
from any undue and unexplained delay.
Learned counsel for the appellants took us through the evidence of all the
important witnesses. Ordinarily, this Court does not enter into an elaborate
examination of the evidence in a case where the High Court has concurred with
the findings of fact recorded by the trial court. There is nothing exceptional
in the present case that may justify departure from this rule. However, we
considered the evidence referred to by learned counsel for the appellants and
we do not think that the conclusion recorded by the trial court and confirmed
by the High Court suffers from any factual or legal infirmity, or was one which
could not reasonably be arrived at by those Courts.
was submitted by learned counsel for the appellants that the incident is of
1980 and the appellants have already undergone half the sentence and their
sentence be reduced to already undergone. We are not impressed by this
submission. Dacoity is a daredevil act. Most of the time, a 11 serious crime
like dacoity is committed by unknown persons and it is very difficult to trace
them and still difficult to secure their conviction. As a matter of fact,
looking to the nature of crime and the manner in which the appellants looted
temple properties, graver punishment was warranted. In any case, sentence of
five years rigorous imprisonment awarded by the trial court and confirmed in
appeal by the High Court for the offence under Section 395 IPC calls for no interference.
appeals fail and are dismissed.
........................J (P. Sathasivam)
........................J (R. M. Lodha)
April 19, 2010.