CRIMINAL APPEAL 10 of 1980 on 21 November 1980

1. Heard learned counsel for the appellants, learnedAGA for the State and perused the record.

2. The instant criminal appeal has been preferred bythe appellants against the judgement and order dated18.01.1982 passed by IIIrd Additional Sessions Judge,Bijnor in Case Crime No.10 of 1980, Session Trial No.376of 1980 (State Vs. Magan Singh and others), underSections 460 & 411 IPC, Police Station Kiratpur, DistrictBijnor whereby the appellants were convicted underSection 411 IPC and were further sentenced to undergorigorous imprisonment for two years with fine ofRs.1,000/- along with default sentence.

3. At the very outset, it is to be kept into mind thatthe present criminal appeal was preferred by twoappellants, namely, Mani Pal Singh and Virendra Singhand during pendency of appeal, appellant no.2 VirendraSingh died and the appeal abated qua him on 14.12.2022.Hence, appellant no.1 Mani Pal Singh is the sole survivingappellant in this appeal, who is contesting the same.

4. The prosecution story, in brief, as narrated in theF.I.R. is that on 21.11.1980 informant Smt. Sushila Devihad gone to the house of her neighbour Shiyansh Kumarand when she returned at about 10:00 PM, she found herhusband aged about 70 years lying dead on cot and itappeared that he was murdered by use of knife and thejewels kept in the box were also missing. F.I.R. waslodged on the basis of written report of Smt. Sushila Deviagainst unknown person. Investigation started and duringthe course of investigation, four accused persons weretraced out by the police and some incriminating articleswere also recovered from their possession. Aftercompletion of the investigation, charge sheet underSections 460 & 411 IPC was submitted by the policeagainst four accused persons, namely, Magan Singh, ManiPal Singh, Narendra Singh and Virendra Singhrespectively.

5. The offence being exclusively triable by the sessionscourt, the case was committed to the court of Sessionswhere charges under Sections 457, 392, 302/34 IPC wereframed against all the accused persons to which theydenied and claimed for trial. Co-accused Virendra Singhwas charged separately for the offence under Section 411IPC to which he also denied and claimed for trial.

6. The prosecution to bring home the charges againstaccused persons relied upon oral evidence of P.W.-1 Smt.Sushila Devi, the informant, P.W.-2 Shreyansh Kumar, thewitness of fact, P.W.-3 Shanti Prasad, witness of fact, P.W.-4 Virendra Singh scribe, P.W.-5 Hukum Chandra thewitness of arrest and recovery, P.W.-6 Chandra Pal thewitness of recovery in respect of accused Virendra Singh,P.W.-7 S.I. Satyapal Singh, the Investigating Officer andto corroborate the oral evidence the prosecution furtherrelied upon the documentary evidence as written reportEx.Ka-1, list of articles which were robbed Ex.Ka-2,recovery and search memos of gold and silver jewelleryEx.Ka-3, Ex.Ka-4, recovery memos of articles Ex.Ka-5,chik F.I.R. Ex.Ka-6, G.D. Ex.Ka-7, inquest report Ex.Ka-8,photo nash Ex.Ka-9, challan nash Ex.Ka-10, report forpost-mortem Ex.Ka-11, G.D. Ex.Ka-12, site plan of placeof recovery of some jewels in respect of accused VirendraEx.Ka-13, site plan in respect of recovery from accusedMagan Singh and Mani Pal Singh Ex.Ka-14, memo ofsupurdaginama of torch Ex.Ka-15, site plan of place ofoccurrence Ex.Ka-16 charge sheet Ex.Ka-17 and post-motem report Ex.Ka.-18.

7. After closure of the prosecution evidence, theincriminating circumstances and evidence were put to theaccused persons in their statements under Section 313Cr.P.C. wherein they claimed the prosecution evidence tobe false and fabricated and pleaded their innocence.

8. D.W.-1 Ombir Singh, D.W.-2 Rajendra Singh, D.W.-3Balwan Singh and D.W.-4 Rajeshwar Prasad have beenexamined as defence witnesses.

9. After hearing the learned counsel for the parties andconsidering the entire evidence on record, the learnedtrial court recorded the conviction of accused MaganSingh, Mani Pal Singh and Virendra Singh under Section411 IPC and they were sentenced for two years rigorousimprisonment with fine of Rs.1000/- each along withdefault stipulation.

10. The co-accused Narendra Singh was found not guiltyof any offence and he was therefore acquitted of all thecharges levelled against him.

11. The accused persons Magan Singh, Mani Pal Singnand Virendra Singh were also acquitted of all theremaining charges levelled against them except chargeunder Section 411 IPC.

12. It is also to be noted that although charges underSections 457, 392, 302/34 IPC were framed against all theaccused persons on 22.12.1980 and on 16.02.1981additional charge under Section 411 IPC was framedagainst accused Magan Singh and Mani Pal Singh andadditional charge under Section 460/34 IPC against all theaccused persons was further framed on 04.08.1981 andsubsequently on 29.09.1981 a separate charge underSection 411 IPC was framed against the co-accusedVirendra Singh to which they denied and claimed to betried but the learned trial court has explained inparagraph no.4 of the impugned judgement that theprosecution evidence needs to be examined in the light of charge under Sections 460/34 & 411 IPC and it furtherheld that charges under Sections 457, 392, 302/34 IPCshould not have been framed legally. Hence, the learnedtrial court itself presumed that there was no necessity toanalyse and assess the prosecution evidence in the light ofthe charges under Sections 457, 392, 302/34 IPC. Hence,in the present appeal it is to be determined whether theprosecution succeeded to prove its case beyond reasonabledoubt for the offence under Sections 460/34 & 411 IPC.

13. P.W.-1 Smt. Sushila Devi, the informant in herexamination-in-chief states that on 21.01.1980 she hadgone to the house of Shreyansh Kumar in herneighbourhood and when at about 10:00 PM she cameback, she found her husband lying on bed having knifeinjuries over his neck. He was dead and the jewels keptin the almirah and box were also not there. She dictateda report to Virendra Kumar on the basis of which F.I.R.was ldged and the said written report has been proved byP.W.-1 as Ex.Ka.-1. She further states that a list of lootedarticles was also prepared on her dictation by VirendraKumar, which was handed over to the police and sheproves the said list as Ex.Ka.-2. Several robbed articleswere produced before the Court and P.W.-1 identifies thesame as material Ex.-1 to material Ex.-17 in her evidencerecorded before the court.

14. P.W.-2 Shiyansh Kumar is the neighbourer of thedeceased and states in his examination-in-chief that on21.01.1980 in the night when he was going to temple with Rakesh Jain he saw all the four accused persons,namely, Magan Singh, Narendra Pal, Mani Pal andVirendra Singh coming out of the house of deceasedKhajan Chandra upon which they were identified in theelectricity light. Subsequently, in the same night he cameto know about the murder of Khajan Chandra and hereached there and found Khajan Chandra as dead and thejewellery boxes lying on the floor in open condition. Henarrated the whole story to the police.

15. P.W.-3 Shanti Prasad is the native of the village ofthe informant and the accused persons are well known tohim. He states in his deposition that on 21.01.1980 atabout 08:30 P.M. when he was going to the house of hisaunty in front of the house of Khajan Chandra, he saw allthe four accused persons entering into the house ofKhajan Chandra in the light of battery and when heenquired into for their presence over there co-accusedNarendra Singh replied that they had come to purchasesome stamp from Khajan Chandra and subsequently hecame to know about the incident of murder of KhajanChandra and robbery committed in the house of theinformant. He also affirms the presence of ShiyanshKumar on spot at the time when he visited the house ofthe informant subsequently in the same night.

16. P.W.-4 Virendra Kumar is the scribe who states thatthe report Ex.Ka.-1 was written by him on the dictationof Smt. Sushila Devi who happens to be her maternal grand mother. He further identifies his signature andhandwriting over the list of stolen articles Ex.Ka.-2.

17. P.W.-5 Hukum Chandra is the witness of arrest andrecovery of two accused persons. In his evidence heproves the factum of arrest of co-accused Magan Singhand Mani Pal and recovery of some gold and silverarticles from their possession and the memos of arrest andrecovery have been proved by him as Ex.Ka.-3 & Ka.-4.Further, he identifies the case property material Ex.-1 tomaterial Ex.-17 before the court.

18. P.W.-7 S.I. Satyapal Singh, the Investigating Officerof the case affirms the proceedings of investigation in hisstatement. He proves the chik F.I.R. and registration G.D.as Ex.Ka.-6 & 7 as secondary witness for the scribe Headmoharrir Ashok Kumar. He further proves inquest reportEx.Ka.-8, photo nash Ex.Ka.-9, challan nash Ex.Ka.-10,report to C.M.O. for post-mortem Ex.Ka.-11, copy of G.D.Ex.Ka.-12, site plan of the place of recovery pertaining toaccused Virendra Kumar Ex.Ka.-12 and Ex.Ka.-13, siteplan pertaining to recovery from accused Mani Pal Singhand Magan Singh Ex.Ka.-14, memo of supurdaginama oftorch Ex.Ka.-15, site plan of place of occurrence Ex.Ka.-16and charge sheet Ex.Ka.-17 in his evidence.

19. Learned counsel for the appellant vehementlyassailed the impugned judgement and order and it hasbeen submitted that the impugned judgement and order isnot sustainable in law. On the same set of evidence, the learned trial court recorded acquittal of the accusedpersons for the offence under Section 460/34 IPC whereasin arbitrary manner charge under Section 411 IPC waspresumed to be proved against them. Since the mainoffence for robbery/dacoity/theft has not been provedbeyond reasonable doubt, the learned trial court was notlegally correct to record the conviction of the accusedappellant under Section 411 IPC for the simple reasonthat there was no evidence on record to connect theincriminating articles allegedly retrieved from thepossession of the appellant with any stolen or lootedproperty which was a sine qua non for the application ofthe provisions of Section 411 IPC. Several othersubmissions have been made by the learned counsel forthe appellant to give force to his plea that the impugnedjudgement and order is not sustainable under law.

20. Per contra, the learned AGA vehemently opposed thepresent appeal and it has been contended that theimpugned judgement is not liable to be interfered with forthe reason that the learned trial court recorded theconviction of the appellant only for the offence which wasproved beyond reasonable doubt by relying upon thereliable evidence adduced by the prosecution. It is furthersubmitted that the prosecution case has been well provedby the evidence of witnesses of fact which is furthercorroborated by the testimony of the formal witnesses andwith the aid of documentary evidence as well.

21. In the light of the submissions made by the learnedcounsel for the parties and considering the entire evidenceon record, this Court proceeds to evaluate the merits andlegality of the impugned judgement and order.

22. Since the conviction of the appellant has beenrecorded only under Section 411 IPC, the evidence onrecord which relates to recovery of incriminating articlesfrom the possession of the accused appellant is relevantfor the purpose of disposal of this appeal.

23. The prosecution story proceeds with the allegationthat when the present appellant was arrested by thepolice during investigation along with other co-accusedMagan Singh, the police recovered one silver article, onepair dast band chauki, one silver piajeb, one goldenbangle and one silver ring material Ex.12 to Ex.-17respectively and cartridges as well from his possession.P.W.-7 the Investigating Officer of the case in hisexamination-in-chief narrated that on information of someinformer received on 23.01.1980 at about 04:45 PM, thepolice party proceeded to the railway gate towards villageSisauna and when two miscreants came there they werecaught hold by the police. Their search was made on thespot and some golden and silver jewels along with onecountry made pistol and cartridge were retrieved from thepossession of accused Magan Singh whereas from thepossession of present accused appellant Mani Pal Singh,the recovery was made as mentioned here-in-above.

24. The recovery witness P.W.-5 in his cross examinationadmits that deceased Khajan Chandra was real uncle andhe was not acquainted with Man Pal Singh prior to theoccurrence and an attempt has been made by this witnessto identify the accused persons before the Court duringthe course of his deposition but he has wrongly identifiedthe present appellant by naming him as Magan Singh andthe accused Magan Singh was identified by him as presentappellant Mani Pal Singh. P.W.-5 further admits that theaccused persons were held on a public place. The conductof this witness is quite unnatural when he states that afterthe recovery of incriminating articles, he did not disclosethis fact to his aunty, the informant. Not only this but henever disclosed this fact to anyone that the articlesretrieved from the possession of the appellant Mani PalSingh belong to his uncle Khajan Singh. This witness alsoadmits that both the accused persons were held by thepolice in the back side of Mal Godam. The evidence onrecord reveals that it is a public place as also shown inthe site plan Ex.Ka.-14. It is very strange that P.W.-5 thewitness of recovery was found by the police to witnessthe incident of arrest and recovery of accused Mani PalSingh who happened to be the real nephew of thedeceased but no independent public witness was takenfrom the place of occurrence which is a public place. Thiswitness has been unable to specify as to what was theweight of the jewels allegedly recovered from thepossession of the present accused-appellant.

25. P.W.-7 the Investigating Officer of the case hasstated that the police held two miscreants on 23.01.1980in the evening and subsequently they disclosed their nameas Magan Singh and Mani Pal Singh and some jewellerieswere retrieved separately from their possession. He furtherstates he was not aware about the fact that witnessHukum Chandra was the nephew of the deceased. He hasbeen unable to answer as to whether the signatures of thewitnesses were obtained upon the sealed bundle or not.

26. Learned counsel for the appellant submits that thereis no ravanagi G.D. on record to show that on 23.01.1980the Investigating Officer along with other police personnelmade an exit from the police station on information ofthe miscreants and proceeded to the railway track.

27. In Rifaqat alias Fakkar vs. State of U.P., 2007 SCCOnLine All 1638, this Court has held as under:

“15……………….It is also worthwhile tomention here that P.W. 1 and P.W. 2have stated in their testimony that theyhad proceeded on patrolling duty fromtheir concerned police station andreached at the place of incident. He wasapprehended by the police from hishouse as per suggestion. In suchcircumstances, it was essential thatRawanagi G.D. of P.W. 1 and P.W. 2should have been proved on behalf ofprosecution, so that it could be provedthat they had proceeded from concernedpolice station and reached at the relevantplace of incident. In absence of producingRawanagi G.D. of these witnesses, thepresence of both the witnesses is liable to be suspicious at the place of incident.Therefore, search and seizure has becomeultimately suspicious……..”

28. No doubt, rawangi G.D. is a very significant andrelevant document to show that in fact the police partyhad left the police station for a particular purpose on aparticular date and time. Since this G.D. is not availableon record, the very inception of the prosecution casebecomes doubtful. It certainly is a dent in the prosecutioncase, if the prosecution fails to prove that the police partyin fact had left the police station on relevant date andtime. The prosecution was always under obligation tocorroborate this fact by prosecution of the rawangi G.D.which, for the reasons best known to prosecution, wasnever produced before the trial court.

29. Learned counsel for the appellant further submitsthat P.W.-7 the Investigating Officer in his evidence statesbefore the Court that the articles which were recoveredfrom the possession of accused-appellant Mani Pal Singhare material Ex.-12 to Material Ex.-17 whereas theinformant who has identified his jewels and articles beforethe court during her deposition states that the articlesmaterial Ex.-6 to Ex.-11 were kept in the sealed packetwhere upon Mani Pal Singh was returned and the sealedpacket wherein material Ex.-12 to Ex.-17 were kept wasbearing the name of Magan Singh. This is a materialcontradiction which makes the prosecution story highlydoubtful as to which articles were retrieved from the bagtaken by the present appellant Mani Pal Singh hence, the theory of the recovery made by the prosecution alsobecomes unreliable.

30. Learned trial court while recording the conviction ofthe appellant under Section 411 IPC did not consider theabove portion of the evidence on record and this courttakes notice of this fact that if the prosecution fails toestablish as to what were the incriminating articles whichwere retrieved from the appellant Mani Pal Singh on thebasis of cogent and reliable evidence, he could not beconvicted under Section 411 IPC.

31. The attention of this Court is also drawn to theevidence adduced by the appellant during the trial. Fourdefence witnesses have been examined by the defenceside.

32. D.W.-1 Ombir Singh is the witness of plea of alibitaken by accused Narendra Singh and D.W.-2 RajendraSingh also deposes in favour of accused Narendra Singhbut since this appeal does not relate to accused NarendraSingh there is no need to analyse and scrutinize theevidence of D.W.-1 & D.W.-2. Further D.W.-4 RajeshwarPrasad deposes in his testimony that accused Magan Singhwas held by the police from bricklin but for the samereason as mentioned above this Court finds no need toanalyse the evidence of D.W.-4.

33. D.W.-3 Balwan Singh in his testimony deposes thatthe police held and took away the present appellant Mani Pal Singh from his house. He has stated that accusedMain Pal Singh is the native of his village and is wellknown to him. He had witnessed the incident when theS.O. and two police personnels took away Mani Pal Singhfrom his house. Subsequently, he came to know that foran offence of murder he was held by the police.

34. It has been vehemently argued by the learnedcounsel for the appellant that P.W.-2 Shriyansh KumarJain in his deposition states that Dr. Dharam Pal was theManager of his college who happens to be the son of Dr.Anand Prakash. The Manager removed the principal of thecollege from his post and it was protested and a letterwas sent in this regard to the Manager. The applicationbears his signature as well and has been proved asEx.Kha-1 by P.W.-2.

35. It is always to be borne in mind that in a criminaltrial normally the burden goes upon the prosecution toprove its case beyond reasonable doubt and if the defenceonly creates some suspicion in respect of involvement ofthe accused in the commission of the alleged crime thesame is sufficient to fail the prosecution story and theconviction of the accused cannot be sustained.

36. In view of that I find that the story put forward bythe prosecution that some incriminating articles and jewelswere retrieved from the possession of the presentappellant Mani Pal Singh by the police is a false andconcocted story and does not inspire confidence and in this factual scenario, the accused appellant is entitled forbenefit of doubt and his conviction under Section 411 IPCmade by the learned trial court cannot be sustained in theeyes of law.

37. Resultantly, the appeal is allowed and the presentaccused-appellant is acquitted of the charge under Section411 IPC. Appellant is on bail. He need not surrender. Hisbail bonds are cancelled and sureties are discharged.

38. The material exhibits shall be disposed of inaccordance with relevant law/rules by the competentcourt/authority.

39. A copy of this order alongwith trial court record betransmitted to the Sessions Judge, Bijnor for necessarycompliance.

Order Date :- 23.10.2024Sanjeet