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IN THE HIGH COURT OF ALLAHABAD
B. Amit Sthalekar, J.J. Munir, JJ.
Dhan Singh and others – Appellants
Versus
State of U.P. – Respondent
Criminal Appeal Nos. 293, 109 of 2004 & 6021 of 2003
Decided On : 05-03-2020
Penal Code, 1860 – Sections 396, 412 – Conviction – Appeal against – Test identification parade – Recovery of some looted articles and the weapon of offence –Held, identity of the appellants and their connection to the crime is under a shadow of serious doubt. Upon a consideration of the totality of evidence, we find and hold that the appellants are entitled to the benefit of doubt, and it would be unsafe to uphold their conviction – identity of the appellants and their connection to the crime is under a shadow of serious doubt. Upon a consideration of the totality of evidence, we find and hold that the appellants are entitled to the benefit of doubt, and it would be unsafe to uphold their conviction – Smt. Renu Rai is no ordinary witness. Her presence at the scene of crime and her account about it, cannot be doubted. But, her evidence about the appellants is eclipsed by a grave shadow of doubt. To add to it, her conduct in testifying to a false story of identification and arrest of the appellants on 12.12.2001 deprives her of the privilege of being an absolutely truthful witness, and her evidence of its character as sterling – Appeal allowed
Facts of the Case:
Written report, Ex. Ka-1 scribed by the informant, Ajay Kumar Rai (PW-1) was lodged at the Police Station Khorabar, District Gorakhpur with the allegations that on 22.11.2001 at 8 O'clock in the morning, he was at his shop, situate at Chandi (Colony). At that time, he received a telephonic call from his uncle's son, Anil Kumar Rai that something untoward had happened at the house of Rakesh situate in Shivaji Nagar Colony, and that therefore, they should come over at once- they saw that all the doors were ajar, and upon reaching the kitchen, they found the dead bodies of Rakesh Chandra Rai, Chandra Shekhar Rai and Anoop Kumar Rai lying there,
Finding of the Court:
Identity of the appellants and their connection to the crime is under a shadow of serious doubt. Upon a consideration of the totality of evidence, we find and hold that the appellants are entitled to the benefit of doubt, and it would be unsafe to uphold their conviction – identity of the appellants and their connection to the crime is under a shadow of serious doubt. Upon a consideration of the totality of evidence, we find and hold that the appellants are entitled to the benefit of doubt, and it would be unsafe to uphold their conviction – Smt. Renu Rai is no ordinary witness. Her presence at the scene of crime and her account about it, cannot be doubted. But, her evidence about the appellants is eclipsed by a grave shadow of doubt. To add to it, her conduct in testifying to a false story of identification and arrest of the appellants on 12.12.2001 deprives her of the privilege of being an absolutely truthful witness, and her evidence of its character as sterling
Result: Appeal allowed
JUDGMENT :
J.J. Munir, J.
1. These three criminal appeals arise out of a judgment and order of Sri P.K. Singh, the then Additional Sessions Judge, Fast Track Court no.4, Gorakhpur, dated 29.10.2003 passed in Sessions Trial no.177 of 2002, State of U.P. vs. Shyam @ Sambhal and others (arising out of Case Crime no.883 of 2001), under Sections 396, 412 IPC, Police Station Khorabar, District Gorakhpur.
2. By the aforesaid judgment and order, each of the five appellants, have been convicted by the learned Trial Judge of commission of an offence punishable under Section 396 IPC and sentenced to suffer Rigorous Imprisonment for Life, besides being ordered to pay a fine of Rs.5000/-each. In default of payment of fine, the concerned appellant has been ordered to suffer one year's R.I. Appellants, Shyam @ Sambhal, Rinku Kumar Chaudhary and Raju Mali have also been convicted of an offence punishable under Section 412 IPC and sentenced to suffer ten years' Rigorous Imprisonment, besides being ordered to pay a fine of Rs.3000/-. In the event of default, the said appellants, have been ordered to suffer seven months' R.I. Both the sentences have been ordered to run concurrently. Aggrieved, Dhan Singh, Rinku Kumar Chaudhary and Jeevan Mali have preferred Criminal Appeal no.293 of 2004, whereas Shyam @ Sambhal has preferred Criminal Appeal no.6021 of 2003. Raju Mali has appealed separately through Criminal Appeal no.109 of 2004. Criminal Appeal no.293 of 2003 has been heard as the leading case.
3. The facts giving rise to the present appeal are that a written report, Ex. Ka-1 scribed by the informant, Ajay Kumar Rai (PW-1) was lodged at the Police Station Khorabar, District Gorakhpur with the allegations that on 22.11.2001 at 8 O'clock in the morning, he was at his shop, situate at Chandi (Colony). At that time, he received a telephonic call from his uncle's son, Anil Kumar Rai that something untoward had happened at the house of Rakesh situate in Shivaji Nagar Colony, and that therefore, they should come over at once. On this information, he along with his family members reached the house of Rakesh situate at Shivaji Nagar Colony, and saw that the main door was bolted from the inside. They made a lot of effort to open the door, but to no avail. Then they gained entry into the house by scaling a wall on one side. Once inside, they saw that all the doors were ajar, and upon reaching the kitchen, they found the dead bodies of Rakesh Chandra Rai, Chandra Shekhar Rai and Anoop Kumar Rai lying there, and in the Poojaghar abutting the Kitchen, they found Smt. Leelawati wife of Rakesh Chandra Rai and Renu Rai daughter of Rakesh Chandra Rai lying injured, while in the northern Bedroom, the dead bodies of Bobby, Vikki and Vibhu Rai, all sons of Ranjit Rai, lay. All the attaché-cases and trunks carrying belongings of the inmates had been broken open, and contents were strewn all over the place, giving an impression that the victims had been murdered and their valuables looted. The injured Leelawati Rai and Renu Rai were sent to the Hospital for medical aid. The written report closed with a request to register a case and initiate appropriate action.
4. On the basis of this written report, Ex. Ka-1, the chik FIR Ex. Ka 42 giving rise to Case Crime No.883 of 2001, under Sections 302, 307, 394 IPC was registered at P.S. Khorabar, District Gorakhpur, and an entry in this regard has been made in G.D. no.21 at 09.30 hours on 22.11.2001. An extract of this GD Entry is Ex. Ka-43.
5. On 22.11.2001, the injured Renu Rai was admitted to R.D.M.O. District Hospital, Gorakhpur. PW-11, Dr. S.K. Srivastava, Medical Officer, examined her and found the following injuries on her person:
(1) Contused ir. (injury) area 5 x 3cm on whole of Lt. eye;
(2) Contusion area 3.5x3 cm on the nose clotted blood present. Inj. kept U.O. Advised X-ray.
(3) Contusion area 5x0.5 cm on Rt. ear
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