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2011 Supreme(All) 2972
[2011(10) ADJ 382]
ALLAHABAD HIGH COURT
VINOD PRASAD, J.
RAM PAL AND OTHERS .....Applicants
Versus
STATE OF U.P. .....Opposite Party
(Criminal Appeal Nos. 2002 and 2648 of 2009, decided on 8th November, 2011)
Renu Singh, Apul Mishra and Manish Tiwary for the Applicants; G.A. for the Opposite Party.
Headnote:(Indian) Penal Code, 1860—Sections 395, 394, 392, 397, 120-B and 412—Evidence Act, 1872—Section 114—Dacoity—Murder—Recovery of articles—Conviction—Sustainability of—Day light incident—Appellant No. 2 not named in FIR—Nor identified by any witness during identification proceedings—No opinion is being formed on basis of material contained in case diary—When a witness failed to identify an accused at an earlier occasion—Then his identification of the same accused in Court at a subsequent occasion many months after—Cannot be relied upon—It only indicates tutoring—None of fact witnesses disclosed any physical anatomical features to any body at an earlier point of time—In absence of such disclosure in Court after failing to recognize at earlier occasion, cannot be relied upon—No features or cloths etc. of appellant No. 2 was disclosed by anyone of witnesses—Case diary does not contain any such material/information—Entire evidence does not disclose their participation in actual incident—No direct evidence against appellant No. 4—Only on basis of recovery he has been convicted—Litigation with opposite party/complainant—Charge of conspiracy not proved—In present case only police personnel are witnesses without corroboration from any independent source—Prosecution has not been able to prove member of robbers to five or more. [Paras 7, 9, 17, 19 and 20]
Hon’ble Vinod Prasad, J.—Five appellants in the two connected appeals namely Ram Pal (A-1), Vijai Pal (A-2), Netra Pal @ Pahalwan (A-3), Jagveer @ Jaggi (A-4) and Yash Pal (A-5) are aggrieved by their conviction and sentence recorded by 15th Additional Sessions / F.T.C. No. 5, Bulandshahar in S.T. No. 961 of 1994 (State v. Ram Pal and others), dated 31.3.09 by which decision, appellants A-2 and A-3 have been convicted for offences under Sections 395 and 412 I.P.C., appellant A-1 has been convicted under Section 395 I.P.C. and appellants A-4 and A-5 have been convicted under Section 412 I.P.C. For proved each offence, each of the appellant has been sentence to 10 years RI with Rs. 10,000/- fine, the default sentence being six months further RI. Challenges in two connected appeals are to the aforesaid conviction and sentence by the appellants.
2. Recapitulating prosecution allegations against the appellants, as was reported by informant Mahendra Singh (P.W.1), cashier of Government Agriculture school, Bulandshahr, in his written FIR (Ext.Ka-1) coupled with chik FIR (Ext. Ka-17) and later on stated during trial, were that on 1.1.1994 he alongwith Lajja Ram Yadav (lecturer), Hoshiyar Singh (peon), of Government Agricultural school, Bulandshahar, had gone to State Bank, Bulandshahar to withdraw staff salary, from Principal’s Account No. 11018,in jeep No. U.P. 32 D 0408 driven by Raj Kumar and got debited salary amount Rs. 1,38,295/-. They returned back to the school at 12 noon and stopped their vehicle in front of school office. Except driver Raj Kumar, rest of them alighted from the jeep and climbed stairs to enter in school office, when all of sudden, one of the three miscreants armed with country made pistols, who all were standing there since prior to their arrival, pressed his country made pistol on informant’s chest, while other snatched the bag containing salary money and then all the three sprinted towards school gate with decamped money bag. Informant and other school employees Sher Pal (gardner), Hoshiyar Singh, Lajja Ram Yadav, Babu Ram Tyagi, Ravindra Kumar and others raised alarm and chased the miscreants and succeeded in apprehending Yamin (absconded accused) and appellant Ram Pal (A-1) at a distance of 150 yards. Third dacoit, whose identity later on was disclosed as Netra Pal @ Pahalwan (A-3) however made his escape good alongwith the decamped money.
3. Informant P.W.1 got the loot FIR scribed from Virendra Kumar and then alongwith apprehended accused came to PS Kotwali, Bulandshahar, at a distance of two and half kilometers, and got it registered as crime No. 5 of 1994, under Section 392 I.P.C., same day at 1.45 p.m. against three named robbers.
4. HM Sahdev Sharma registered the crime, prepared chik FIR (Ext. Ka-17) and GD entry (Ext. Ka-18). Investigation into the crime was commenced by SI Ramendra Singh (PW7), who after copying chik FIR and the GD entry recorded statements of apprehended miscreants and thereafter searched for the third eloped accused for the next three days. Since A-1 stated that he can get looted money recovered therefore, I.O. applied for his remand. Thereafter PW7 was transferred and therefore follow up investigation was carried on by P.W.8 Inspector Jai Chandra Singh, who commenced it on 4.1.1994 vide C.D. No. 4 and recorded 161 Cr.P.C. statements of Sri R.K. Das, Joint Director/Principal, Agriculture College, informant Mahendra Singh, and that of witnesses Raj Kumar, Babu Ram Tyagi, Ravindra Kumar, Shankar Pal Singh and Hoshiyar Singh. Conducting spot inspection PW8 prepared site plan(Ext. Ka-7).Thereafter PW8,on the following day, alongwith SI A.K. Dixit, SI A.K. Sachan, SI Gyanendra Kumar, SI Nem Chand Gangwar accompanied with other police force came to the sweetmeat shop of (A-4) at 11.30 a.m., situated within school premises, and from there arrested five accused, Netra Pal @ Pahalwan (A-3), Vijai Pal Singh(A-2), Ranveer @ Ranno (since dead), Jagveer @ Jaggi (A-4)and Yash Pal Singh(
