Ram Babu vs State Of U.P

Ram Babu ...Appellant

Versus State of U.P. ...Respondent

WITH

CRIMINAL APPEAL NO. 550 OF 2008

JUDGEMENT

R.M. Lodha, J.

These two 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).

We are informed that A-1 had died during the pendency of

appeal before High Court.

2. 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.

The 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.

3. Kashi 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.

and 9.00 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.

Besides 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, 1980.

4. The 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.

Jaipal 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.

5. The 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-

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4) in support of their defence that their identity did not remain

secret and they have been falsely implicated.

6. The 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.

7. Mr. 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.

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8. Mr. 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.

9. Section 9 of the Evidence Act, 1872 reads:

"S. 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 any thing 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."

10. As 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 possible precautions.

11. In 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.

Being 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.

Insofar 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.

12. We 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.

13. 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.

14. It 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.

15. Both appeals fail and are dismissed.

........................J (P. Sathasivam)

........................J (R. M. Lodha)

New Delhi April 19, 2010.

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