RAJJAN Vs. STATE

JUDGEMENT

(1.) THE scene of the occurrence was Kampil Railway Station on broad-guage of the Farrukhabad-Shikohabad Line. On 24th March 1972 as 122 Down Kasganj-Farrukhabad train was to arrive at the Kampil Railway Station, which is within the Police Circle of G. R. P. Farrukhabad, Constables Jagannath Prasad, Kare Lal and Qaim Singh of G. R. P. were on duty in that train. THE Rifle in possession of Kare Lal bore No. 14155 and the Rifle with Qaim Singh had No, 5575, Both were 303 Rifles THEse constables were in the IIIrd Class Compartment Bogie No. 8792. At about 10 or 10-15 P. M. as the train was steaming in Kampil Railway Station and was slowing down these constables noticed that from the western side five or six persons were running on the plat form. It was thought that they were passengers and wanted to catch the train. As soon as Constables Kare Lal and Qaim Singh got down on the platform those people fired five or six shots at them. As Kare Lal fell down on receiving the shots one of those persons snat ched the rifle of Kare Lal and made his escape good. In spite of his being injured Qaim Singh took courage and fired two shots at them. All the time while those persons and the constables were engaged in firing Jagannath Prasad was flashing his torch at them, It was a moonlit nignt and there was also train light on the platform. In these lights it is claimed that the witnesses succeeded in seeing the faces of the dacoits. After the occurrence a number of people from the public helped the injured Constables Kare Lal and Qaim Singh in getting into the train again. Jagunnuth Prasad took the injured to G. R P. Farrukhabad where after arrival of the train he lodged the first information report on 24-3-1972 at 23-57 P. M. Kare Lal was examined by Dr. R. P. Chaudhry, Medical Officer, Farrukhabad on 25-3-1972 at 12-45 A. M. He had one gunshot wound of entry with inverted and lacerated margine 1/4x1/4" going inside chest on left side part of chest 5" below left nipple at 6 O'clock position. He was kept under observation. THE injury was caused by some fire arm and was fresh. THE injury of Qaim Singh was examined by Dr. R. P. Chaudhary at 1. 05 A. M. on 25-3-1972. He had a gunshot wound of entry with inverted and lacerated margins 1/4"x1/4" circular and going inside lower and upper part of left leg. His injury was kept under observation. X'ray was advised, It was caused by some fire arm and was fresh. THE results of the observations have not been placed in evidence by the prosecution. THE investigation was taken up by Sri Jagdish Prasad Singh S. O. , G. R. P. Farrukhabad after the report was lodged at G. R. P. Farrukhabad. He examined the Bogie in which the occurrence took place. He also found fire arm shots on the Bogie. THEreafter he went to Kam pil Road Railway station. He was hand ed over a cap of the Constable, a pair of shoes and a stick belonging to some cons table by Sri Brijnandan Sharma, Station Master Kampil Road Railway Station. He recorded the statements of the witnesses Hamid Khan, Manzoor Khan, Hameed Khan and also inspected the scene of occurrence at the Kampil Road Railway Station. He prepared the site plan. He further found the empties lying at the platform along with the tiklies and lead of the cartridges on the scene of occurrence. THEy were taken into possession, sealed and their memo were prepared, He had also found Kerosene Oil Lamp Lights at the plat form shown in the site plan. He further recorded the statements of Kare Lal, Qaim Singh and Jagannath Prasad. He also recorded the statements of the driver and the Guard of the train. Sri Braj Gopal Verma S. O. Police Station Mohamrnadabad in District Farrukhabad received telephonic infor mation on 8-9-1972 at 3. 30p. M. that the members of Rajjan gang were run ning away towards Mohammadabad from Farrukhabad Town after firing shots. On this information Sri Braj Gopal Varma accompanied by a Police Posse left towards the Bus Stand of Mohammadabad but at the Bus Stand he received information that the Rajjan gang was in village Bidhail on the upper storey of the house of Munnu Pandit. He further summoned Police aid and was accompanied by three or four more public witnesses. When they were pro ceeding towards village Bidhail another Police force coming from Farrukhabad side in Jeeps also met them. Both these Police forces were divided into three parties. THE house of Munnu Pandit was surrounded. Rajjan appellant among the dacoits fired at them. THE Police party, however, succeeded in apprehending Rajjan and his four com panions. From the possession of Rajjan a 03 Rifle bearing No. AU 14/55 was recovered. THE arrested persons were brought to Police Station Mohammada bad and from there they were taken to District Jail, Farrukhabad. THE report for holding identification proceedings of the appellant was made. He was put to identification in Central Jail, Fatehgarh on 31-10-1972 under the supervision of Sri Brijesh Kumar Magistrate First Class, Farrukhabad. After receiving the result of the iden tification of the appellant the charge-sheet was submitted against him by the Investigating Officer. In usual course the case was committed for trial to the court of Session by the Magistrate. At the trial the charges under Section 395 read with Section 397 I. P. C. , under Section 148 I. P. C. and under Section 307 I. P. C. read with Section 149 I. P. C. were framed against the appellant. THE appellant denied having com mitted the dacoity in question. He claimed that he was formerly a member of the Police Force. He was on inimical terms with one Amar Das Sharma S. O. He had recovered an unlicensed fire arm. Sri Amar Das Sharma accepted illegal gratification and he let-off the accused and retained the fire arm himself. When he wanted to make a complaint against him to the Superintendent of Police he was threatened to be implicated. It was also claimed by him that Kare Lal and Jagannath Prasad, Constables had seen him twice after his arrest-once they had seen him in the Police Station Mohammadabad when he was brought there after his arrest and next when he was being transferred from the District Jail Farrukhabad to the Central Jail Fateh garh. At the trial among the eye-witnesses Constables Jagannath P, W. 1, the first informant, and Kare Lal P. W. 3 were examined. Braj Gopal Verma P. W. 8 had arrested the appellant on 13-8-1972. THE injury reports of Constables Kare Lal and Qaim Singh were proved by P. W. 19 Ram Mohan, the peon of late Dr, R. P. Chaudhary who had examined their injuries, and who had died before the commencement of the trial. Ram Prakash P. W. 17 is the Guard and Nausa Jiya Khan P. W. 18 is the Driver of the train in which the two injured were travelling. Sri Brijesh Kumar P. W. 20 is the Magistrate who had con ducted the identification proceedings con cerning the appellant in the Central Jail, Fatehgarh, on 31-10-1972. Jayanti Prasad P. W. 2 was the Head Constable attached to Police Station G. R. P. He had prepared the Check Report and had recorded General Diary eniries. P. W. 4 Abdul Naeem Khan, P. W. 5 Babu Ram P. W, 6 Ram Singh, P. W. 7 Gaya Prasad and P. W. 9 Vidya Ram are the link witnesses in whose custody the appellant was sent to Jail. THEy claimed that the appellant ramained Bapardah so long as he had remained in their custody and was not seen by any one. THE other witnesses examined were the witnesses of the recovery of the Rifle taken away by the dacoits from Kare Lal Constable but they did not support the prosecution case. Sri Jagdish Prasad P. W. 15 is the Inves tigating Officer. THE learned Sessions Judge relied on the testimony of the eye-witnesses and the other link witnesses. He accordingly convicted and sentenced the appellant under Section 397 I. P. C. and under Section 324 read with Section 149 I. P. C. THE learned counsel for the appellant contended that the learned Session Judge from the evidence on record was wholly unjustified in convicting the appellant. Jagannath Prasad P. W. 1 and P. W. 3 Kare Lal who was one of the Injured supported the prosecution case. It is claimed by Jagannath Prasad P. W. 1 that he along with Qaim Singh and Kare Lal P. W. 3. were on duty in 122 Dn Kasganj Farrukhabad train on 24-3-1972. Kare Lal had 303 Rifle bearing No. 4155 and Qaim Singh had also a 303 Rifle bearing No. 5575. THE witness Jagannath Prasad had himself only a Danda and a torch with him. As the train steamed in Kampil Road Rail way Station and was slowly coming to a halt at about 10 or 10-15 P. M. they were standing near the window. THEy noticed that five or six persons were rushing on the platform towards the engine side. Between the compartment which was occupied by them and the engine only one compartment intervened. As the train was coming to a halt Kare Lal P. W. 3 and Qaim Singh got down on the platform first. THE persons who were running fired at them. Kare Lal and Qaim Singh received injuries and fell down on the platform. In the mean time those people snatched the Rifle of Kare Lal and started funning away. Inspite of injuries Qaim Singh fired shots at those bad characters. He flashed his torch and raised an alarm. THE lights that were available to the witnesses were moonlight, torch light and the light that was coming out of the compartment on the platform. It was claimed by this witness and Kare Lal that they had seen the faces of the dacoits in the above lights. After the dacoits had run away the injured were again boarded in the compartment with the help of the witness and other passengers. THEreafter the train left for Farrukhabad. THE report was lodged by this witness at G. R. P. Farrukhabad. In the night at 11. 57 P. M. THE statement of this witness finds support from the statement of Kare Lal P. W. 3 who was also injured It is not claimed that there was electric light on the platform but there were some kerosene lanterns burning on the platform. Since in this case the Rifle was snaiched from Kare Lal P. W. 3. THE persons amongst the dacoits who had snatched the Rifle from Kare Lal must have come to grips with Kare Lai. In such circumstances there is no reason to disbelieve the witnesses that they had an opportunity to see the face of the dacoit, snatching the rifle. THE next question that arises for con sideration is how far the corroborative evidence of identification is reliable. THE appellant was arrested on 13-8-1972 while committing an offence under Sec tion 399 and 402 I. P. C. It is claimed by Brij Gopal Verma P. W. 8 that on 13-8-1972 he had received telephonic information at 3-30 P. M. that the mem bers of the appellants gang had escaped from Farrukhabad after firing in that Town and had run away towards Mohammadabad side. THE witness was the Station Officer, Police Station Mohammadabad at that time. He, therefore, took up a Police force consisting of three sub-inspectors and three Constables with him and proceeded to the Bus Station of Mohammadabad and waited for the arrival of the Bus. At the Bus Stand he received information that Rajjan gang was present at the house of Munnu Pandit. He summoned more Police force and along with the police posse and public witnesses proceeded in a Bus on Pucca Road. When he reached near village Bidhail he found that other police force in two Jeeps was coming from Farrukhabad side chasing the Rajjan gang. THE entire police force of Farrukhabad and Mohammadabad divi ded itself into three parties and proceeded to arrest the appellant and his gang and at about 5 P. M. the Police force after surrounding the house of Munnu Pandit and after exchange of fire arrested the appellant and others. After his arrest it is claimed that the appellant was made Bapardah and was brought to police station Mohammadabad from where he was sent to the district Jail Farrukhabad. THE link evidence has been given to show that so long as the appellant remained in their custody he remained Bapardah. So far as the arrest of the appellant in village Bidhail, in the course of encounter is concerned, there is no reason to doubt the statement of P. W. 8 Braj Gopal Verma and it also cannot be doub ted from his testimony that the Rifle in question which was taken away by the dacoits from Kare Lal was also recovered from his possession. However, since the dacoity in this case took place on 24-3-1972 and the Rifle was recovered from the possession of the appellant on 13-8-1972 it cannot be presumed that the appellant was either one of those who had committed the dacoity or had the knowledge that the Rifle was stolen in the course of the commission of the dacoity. THE possession of the Rifle with the appellant has, therefore not much of bearing in this case against him. We, therefore, have to consider how far the prosecution has been fair against the appellant. THE appellant has claimed that he was shown to the witnesses at Police Station Mohammadabad and also in the course of his transfer from the District Jail, Farrukbabad to the Central Jail, Fatehgarh where his identificaiion Pro ceedings took place. THE appellant was brought to Police Station Mohammada bad on 13-8-1972. THE entry of his arrival is made by P. W. 8 Braj Gopal Vernia in the General Diary at 9-35 P. M. P. W. 9, Vidya Ram was the Head Constable attached to Police Station Mohammadabad. He claimed that the appellant was brought to Police Station Mohammadabad by Sri Braj Gopal Verma P. W. 8 at 9. 35 P. M. and the appellant was despatched to District Jail, Farrukhabad on 14-8-1972 at 11. 35 A. M. through P. W. 5 Babu Ram Constable. During this period he remained Bapardah, and the appellant was not allowed to be seen by the witnesses. Mohammadabad Police Station is not a railway station and no train passes through it. Only Bus passes through it. THE appellant claims that he was shown to the witnesses at police Station Mohammadabad. It has been claimed by P. W. 5 Babu Ram, Constable that the appellant waa taken from Mohammada bad Police Station at 11. 35 A. M. on 14-8-1972 for District Jail, Farrukhabad. THE witness denied that before his admis sion in Farrukhabad District Jail the appellant was shown to the witnesses. However, that statement of P. W. 6 Ram Singh, Deputy Jailor, District Jail, Farrukhabad, shows that the appellant was admitted in the District Jail on 14-8-1972 at 6. 02 P. M. This was noted in the Jail Gate Register produced by him. THE appellant was brought to Police Station on 13-8-1972 at 9. 35 P. M. No satisfactory explanation has been given for despatching the appellant from the Police Station Mohammadabad on 14-8-1972 at 11-35 A. M. when he was already brought to the Police Station Mohammadabad the previous night at 9,35 P M. THE appellant was admitted in the District Jail, Farrukhubad at the fag end of the day, at about 6. 02 P. M. THE distance between Mohammadabad Police Station and the District Jail, Farrukhabad, is only about 21 Kilometre. It is, therefore, not improbable that this delay in admission to the District Jail, Farrukhabad, was utilised in showing the appellant to the witnesses. It is the duty of the prosecution to be fair to the accused and to be above suspicion. In District Jail Farrukhabad the appellant was under trial. Sri Ram Singh P. W. 6, Deputy Jailor Farrukhabad has stated that in the District Jail, Farrukha bad, the under trials and convicts, who have been sentenced to a term of imprisonment not exceeding seven years are kept whereas the convicts who have been sentenced to a term of imprisonment exceeding seven years are transferred to the Central Jail, Fatehgarh. He has also stated that in Central Jail, Fatehgarh, the under trials are not kept. No expla nation has come for showing the reason which led the prosecution to transfer the appellant from the District Jail, Farrukha bad, to the Central Jail, Fatehgarh on 8th September 1972. THE entire prose cution evidence is completely silent on this point. THE appellant has claimed that he was shown to the witnesses when he was being taken from the District Jail, Farrukhabad to the Central Jail, Fatehgarh in a Police Van. P. W. 7 Gaya Prasad Constable claims to have escorted the appellant from the District Jail, Farrukhabad, to the Central Jail, Fatehgarh. He claimed that so long the appellant remained in his custody he was not shown to any witness. It was ex pressly put to him in cross-examination that Kare Lal and Jagannath Prasad, the two witnesses belonging to the G, R. P. Police were also in the same police van in which the appellant was taken to the Central Jail, Fatehgarh. THE witness stated that he could not say if Kare Lal and Jagannath Prasad were in that Police Van, In view of such evidence and the fact that no explanation has been furni shed by the prosecution for transferring the appellant from the District Jail, Farrukhabad, to the Central Jail, Fateh garh on 8-9-1972 and also the inability of P. W. 7 Gay a Prasad, Constable for not being able to say if the two witnesses Kare Lal and Jagannath Prasad were in the same Police Van in which the appel lant was taken from the District Jail, Farrukhabad to the Central Jail, Fateh garh, the probability cannot be ruled out that this opportunity was utilised to show the appellant to the witnesses. THE appellant has also' claimed that he was posted in Hardoi district as a Police constable. Before entering that service his photograph was taken and was kept on record by the Police autho rities. A judgment of S. T. No. 63 of 1967 was also cited to show that one of the grounds on which the appellant was acquitted under Section 365 I. P. C. was that his photograph was retained by the police authorities in that district. It may be assumed that the photograph of the appellant is with the police authorities of Hardoi district but from that fact alone it cannot be presumed that the photo graph was utilised for showing it to the witnesses in any other district. If this contention of the appellant is accepted every ex- police employee who takes to the life of crime would never be convicted even if there is good evidence of identi fication. I am, therefore, not prepared to attach any importance to such conten tion, THEre is an interesting feature of this case also. THE identification proceed ings against the appellant were also fixed for 26-10-1972. On that date the Magistrate Sri Brijesh Kumar P. W. 20 had come to jail for conducting the identification proceedings. He claims that he postponed the proceedings to 31-10- 1972 as the Description Roll was not available to him. He further claims that on 26-10-1972 he had only put the date on the memo of identification. He scored it off and made it 31-10-1972. Nothing more was done on that date. However, he admitted in crose-examination that the ink that was used on 26-10- 1972 was not as dark as the ink that was used later on. THE description of special marks noted by him in column no. 3 were written with similar ink that was used for writing "26-10-72. " It is, there fore, obvious that the identification marks were noted in the identification memo on 26-10-1972 D W. 1 Sri Niwas Upadhya, Assistant Jailor of the Central Jail, Farrukhabad, has produced the Jail Register in which it was noted that on 26-10-1972 at the time when the Magis trate had come to the Jail to conduct the identification proceedings of the appellant Sri Jagdish Prasad, Advocate D. W. 2 and Sri R K. Kataria the Assistant Public Prosecuting Officer were present. THEir signatures were on that Register. Sri Jagdish Prasad Advocate has stated on oath that he was present with the Ma gistrate in Central Jail, Fatehgarh on 26-10-1972 for the conduct of identi fication proceedings of the appellant. He had also made a request to the Magistrate Sri Brijesh Kumar P. W. 20 that at least five outside persons should also be mixed with the appellant. THE appellant was called by the Magistrate in his presence and in the presence of Sri R. K. Kataria Ap. P. THE special Marks of identification of the appellant were seen by the Magistrate and were noted in his presence in column no. 3 and thereafter the identification proceed ings were postponed. This was done because the Magistrate was in a hurry and Jail Ragister could be brought in his presence. Thus, the special marks of identification of the appellant were noted in the presence of the A. P. P. on 26-10-1972 who was representing the State and the witnesses were outside the Jail. It cannot be ruled out that such special marks of identification were not utilised in getting the appellant identified on 31-10-1972. In view of the infirmities in the con duct of the identification proceedings and the fact of the transfer of the appellant from District Jail Farrukhabad to the Central Jail, Fatehgarh, raises quite a good deal of reasonable doubt that the identification proceedings were not con ducted fairly. THE appellant in such circumstances should be entitled to get the benefit of doubt. I do not, therefore, agree with the conclusions arrived at by the learned Sessions Judge who has ignored the aforementioned infirmities of the prosecution case. I cannot, however, part with this appeal without observing that the learned Additional Sessions Judge who had tried the appellant had not cared to look into the sections properly under which he was to convict the appellant after finding him guilty. He has convicted the appellant only under Section 397 I. P. C. and under Section 324 read with Section 149 I. P. C. An accused cannot be convicted under Section 397 I. P. C. alone. It is a section which provides maximum sentence of seven years in cases of offence of robbery and dacoity where the offender uses the deadly weapons. It is only an enabling section to provide the maximum sen tence of seven years in cases of robbery and dacoity where the offender uses a deadly weapon or caused hurt to any person or attempts to cause death or grievous hurt to any person. Thus, the appellant could only be convicted under Section 395 with the aid of Section 397 I. P. C. and not merely under Section 397 I. P. C. It may also be pointed out that unless the appellant was convicted for offence of rioting u/s-148 or u/s H7 I. P. C. he could not be convicted for an offence under Section 324 with the aid of Section 149 I. P. C. THE appeal is, therefore, allowed. THE conviction and sentences imposed against the appellant are hereby set aside. THE appellant is on bail, He need not surrender. His bail bonds are cancelled and sureties are discharged. .