Chottey Lal v State of Uttar Pradesh

Allahabad High Court

 13 May 2013

Bench

Dinesh Gupta

Cr.A. No. 1034 of 1982

The Order of the Court was as follows :

1. This Criminal Appeal is preferred against the judgement and order dated 20.04.1982 passed by Sri Ramji Lal, Special Judge, Scheduled Offences, Mainpuri in Session Trial No. 208 of 1979 convicting the appellant u/s. 412 I.P.C. and sentencing him four years’ R.I.

2. As per prosecution story, an F.I.R. was lodged with the allegation that in the night of 21/22, June, 1977 at about 11.00 p.m., there was some commission of dacoity in the house of the complainant by certain miscreants wherein his cash, jewellery and garments have been taken away by dacoits and at the time of visit of the investigating officer, a list of the alleged looted articles were handed over to him.

3. After registration of the case, investigation was handed over to S.I. Suraj Pal Singh and when the investigation was going on S.I. Rajpal Singh, Vishwanath Singh received information about the possession of certain garments of the dacoity. When they were in search of some wanted persons, they proceeded to the culvert of Lonayee where they found the person (appellant) wearing T-shirt of the complainant and one Pooran a Pantaloon. Hence, both of them were arrested by the police at 10.00 p.m. and from their possession, these articles were recovered from them. The appellants were taken to the police station. Articles were put in before the Magistrate for identification and the complainant Raghuvir Singh correctly identified the T-shirt and on the basis of the identification of the looted property, the Investigating Officer submitted chargesheet against both the accused and the case was committed to the Court of Sessions by the learned Additional Magistrate, Scheduled Offences, Mainpuri. Charges were framed against the appellant, who denied the same.

4. In order to prove the guilt of the accused, prosecution examined S.I. Sri Vishwa Nath Singh as P.W. 1, complainant Raghuvir Singh as P.W. 2, Constable Shyam Singh as P.W. 3, Contractor R. M. Shawala as P.W. 4 and examined no other witness, since the execution of documents was admitted by the learned counsel of the defence.

5. After hearing the prosecution and the defence arguments, the Court of Sessions Judge found appellant guilty and convicted him for the offence u/s. 412 I.P.C.

6. Feeling aggrieved, appellant preferred this appeal.

7. The counsel for the appellant submitted:-

(a) That the conviction of the appellant is against the evidence on record;

(b) That no sanctity can be drawn to the evidence of identification of the T-shirt alleged to have been recovered from the possession of the appellant;

(c) That the appellant and the complainant of this case are real cousins residing in the same village and are next door neighbours and it is highly improbable that the appellant will commit such offence.

(d) That it is not the case of the prosecution that the appellant was involved in the dacoity and as a part of the dacoity, he received this T- shirt;

(e) That the counsel further submitted that it is highly improbable and improper that the real cousin brother of the complainant will possess the looted property and will also wear the same openly in the same village. All the allegations in this regard are totally false and baseless;

(f) That the identification of the T-shirt was highly doubtful.

(g) That even in the evidence before the Sessions Judge, the complainant was not fully capable to identify the T-shirt recovered from the possession of the appellant accused;

(h) That the sentenced imposed upon the appellant is too harsh. Only a single piece of T-shirt is alleged to have been recovered from him and the sentence of four years’ R.I. is highly excessive and lastly;

(i) That the order passed by the Court below is bad in law and on facts and deserves to be set aside and the appeal be allowed.

8. Learned A.G.A. opposed and submitted that a distinctive feature of the T- shirt, which was recovered from the possession of the appellant was duly identified by the complainant. No sufficient ground to allow the appeal. The appeal has no merit and deserves to be dismissed.

9. I am unable to accept the submission made by learned counsel for the State. However, argument raised by the counsel for the appellant has some force.

10. Admittedly it is not the case of the prosecution that the appellant was one of the docoits who looted the complainant house. It is alleged against the appellant that from his possession, a single piece of T-shirt which was the part of the loot was recovered. First of all, the recovery alleged to have been shown by the appellant appears to be doubtful. There was no public witness of the recovery although the occurrence is on a public way. Now so far as identification of the T-shirt is concerned, the statement of P.W. 2 Raghuvir Singh is relevant in this respect. The witness has admitted that the accused appellant is the son of his real uncle. He also stated that the appellant was arrested in his presence. However, in the memo of recovery, there was no mention of the presence of the complainant at that time nor his signatures are on the recovery memo.

Hence, the statement of the witness that the accused was arrested in his presence cannot be relied upon. Later on in the same statement he denied his earlier statement that accused was arrested in his presence. He further pleaded ignorance whether the T-shirt was recovered from the appellant accused house or from where he was recovered. He has admitted that he could not identify the trousers/pant. He also admitted that along with this T-shirt four shirts were also stitched and there was no difference between this T-shirt and other T-shirts. Even this witness could not state that on what basis he identified that this T-shirt belongs to him. This statement is not at all reliable and he completely fails to identify the T-shirt and possibility cannot be ruled out that due to some enmity, out of the remaining shirts, one was given to the police, shown to be recovered from the appellant. Remaining evidence is of no value as they are only formal witnesses.

11. Learned Sessions Judge has based his conviction only on the evidence of P.W. 2, which in the opinion of the Court is highly improbable and cannot be believed at all and the prosecution could not prove the recovery of T- shirt from the possession of the accused appellant.

12. In view of the above discussion, the conviction recorded by the Sessions Judge cannot be sustained and deserves to be set aside and appeal deserves to be allowed.

13. Consequently the appeal is allowed. The judgement and order dated 20.04.1982 passed by Special Judge, Scheduled Offences, Mainpuri in Session Trial No. 208 of 1979 convicting the appellant u/s. 412 I.P.C. and sentencing him for four year’ R.I. is set aside and the appellant is acquitted from the charges levelled against him in the aforesaid session trial.

14. Appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged.

15. Lower court record, if received, be sent back to the trial court concerned.

16. Let a copy of this order be sent to the Special Judge, Scheduled Offences, Mainpuri within a month to be kept along with the record of Session Trial No. 208 of 1979 u/s. 412 I.P.C.

Appeal allowed