CHHOTEY Vs. STATE OF U P

JUDGEMENT

(1.) There are, in all, seven appellants in the above noted four appeals. Each has been convicted under Sec. 395 of the I. P. C. with a sentnece of rigorous imprisonment for a period u, seven years, per judgment and order dated 30. 6. 1979 passed by Sri T. P. Mital, the then, Sessions Judge, Pauri in S. T. No. 17 of 1975. 2. A temple, known as Raghunath Temple is in village Taldhari, P. S. Karnprayag district Chamoli. This temple is near the pakkaroad, which connects Badrinath and Rishikesh. Idols of Raghunathji, Lakshmiji, Radhaji, Gopalji, which were of Asthadhatu, were installed in this temple. Some photographs of other idols were also kept in the temple. Sudarshnacharvya, P. W. 2, pujari of this temple, was about 75 years old and had been serving in that capacity in the temple for over fifty years. These facts admit of no controversy. 3. According to the prosecution, eight or nine persons, had surreptitiously entered the temple on the 17th of December, 1974 at about 8 p. m. , inflicted injuries on the person of the pujari, who was, then, all alone in the temple, broke the lighted lantern, tied the Pujari with a rope and his own Dhoti, and forcibly removed the idols and other movable kept in the temple. Thereafter the miscrients bolted away with the booty. 4. The futher version of the prosecution is that a written report of the occurrence duly scribed by Jaipal, P. W. 1, was produced at Police Chauki Gaucher from where the Head Constable-in-charge of the chauki with two Constables and some village men left towards police Station Karanprayag. They had hardly covered a short distance on pakka road, when they found S. T. Swaroop Singh P. W. 5 posted at Karnaprayag, coming in a vehicle. An Ambassador green colour car bearing No. U. P. 5155 was found standing near the Guest House of D. G. B. R. Entertaining suspicion, the police personals reached near the Ambassador car in which nine persons were sitting. Two of them succeeded in bolting away there from and it is the claim of the prosecution the seven persons who had come out of that car at that time were apprehended. On a search of the boot of the car, entire movable property looted from the temple was recovered. On this basis the appellants were charge-sheeted, for committing the said crime which was allegedly registered at police station Karnaprayag at. 9. 15. p. m. on the same date. They were committed to the court of Session where the trial ended in conviction of all the seven persons, who have filed these appeals challenging the propriety and the correctness of the decision. 5. The learned counsel for the parties have been heard at length and the record have been carefully perused. There can hardly be any doubt in the least that idols of Ashtadhatu and some other movables were forcibly removed from the temple of Raghunathji on the 17. 12. 1974, after it had become dark. Further, in the course of the commission of the crime, the old Pujari was assaulted as a consequence where of, he suffered a bleeding injury on his head. His evidenc that his hands and feet were tied and he was thrown on the ground is also not open to doubt or suspicion. Further move, the evidence adduced by the prosecution that the idols and other stolen-property were recovered on the same night is also free from any blemish. 6. The crucial question for determination is as to whether the appellants were participants in the commission of the crime. The prosecution sought to establish its version in this respect on the basis of evidence which can be categorised under these two headss- (1) The evidence of identification given by the Pujari P. W. 2. (2) The evidence of possession of the ariticles of the stolen property. So far as the first one is concerned it is significant to note that even the learned trial court has rejected the claim of the Pujari P. W. 2, that he had identified all these seven persons while they were sitting in the car, from the boot of which looted property was recovered. The Court below has given cogent reasons in support of the said conclu sion and I do not want to repeat them. Suffice it to observe that this evidence of identifi cation is a fabricated link. The facts elicited in the cross-examination of the Pujari go to clearly show that he was not present on the road at the time of the alleged arrest of the appellants. Moreover, in view of the absence of light, the old age, the poor vision and the injury suffered by the Pujari in head which must neessarily have affected his power of observation, it can be unhesitatingly held that he could not form a mental note of the features of the culprits. This piece of evidence has, therefore, rightly been rejected by the trial court. 7. We are left with the evidence of the arrest of the appellants, who were allegedly sitting in the car at the relevant time. The evidence of the Head Constable examined as D. W. 1, read in connection with the entries of General Diary proved by him, clearly shows that only five persons were arrested in that night by the police of Karnaprayag. However, assuming, though with great relu ctance in view of the fabricated evidence that has been let in by the prosecution in regard to the making of report or entries connected therewith in the G. D. , that these appellants were arrested at that time, a question arises as to whether all of them or for that matter, any of them had control over and conscious possession of the materials recovered from the boot. A man sitting in a car cannot be presumed to have knowledge of the articles kept in its boot. Therefore, the evidence should be adduced by the prose cution from which it may be reasonably inferred that all the persons sitting in the car were in joint possession of the articles or any of them was in exclusive possession thereof. There is only one piece of evidence to the effect that all the occupants of the car, on seeing the police personnel and village men came out of the car and tried to escape but they were apprehended, it consists of the attempts of P. W. 5 S. I. Swaroop Singh and P. W. 4 Ram Chandra. Even their evidence is silent on the point that a chase was given to the appellants and then they were appre hended. The statement of P. W. 1 Jaipal, on the contrary, shows that they were sitting in the car and on seeing some villagemen including 2-3 police employees, they came out of the car and were apprehended. He does not say that these persons tried to escape. It is not in the statement of any of the witness that they were interrogated then and there and that either of them made disclosure statement to -the effect that the incriminatory articles were kept in the boot. The facts which spell out from the statement of P. W. 4 referred to above go to show com plete innocence of accused-appellants who are entitled to take advantage of this benefit and therefore, it is difficult to swallow without demur that all the occupants of the car including the driver (Chaman appellant) suddenly came out and started running. If we picture to ourselves the place of the alleged arrest (a hilly track) we can reasonably infer that if the persons started running in different direction, it was well nigh impo ssible to catch hold of them on the road itself. I feel, the police has introduced another false link in the case by suggesting that all the occupants jointly started running and that seven of them were arrested. If we ignore and reject the evidence of the prosecution in regard to the alleged conduct of the appellants, we are left with no evidence, of any nature whatsoever, to indicate conscious possession and control either jointly or singly, In the absence of this important and valuable piece of evidence, it is difficult to hold that all the appellants were in joint possession of the property which was recovered from the vehicle in which they were sitting. There fore, merely on the basis of the presence of the appellants in the car we can not cloth them with the required knowledge, of the existence of stolen property in the boot of the vehicle. No such inference can be legally, reasonably and legitimately drawn. The learned trial court has therefore, erred in holding that all the appellants were in joint possession of the property, which was recovered from the vehicle. Two persons, who are said to have succeeds in escaping from the vehicle, had in all probability, the requisite knowledge and the investigating officer does not appear to have made any sincere efforts to apprehend them. Since the necessary requirement of law is wanting, the charge referred to above must fail. 8. The learned counsel for the appellants drew my attention towards such features which stand out prominently and indicate that there has not only been prelooking of the report and other documents connected therewith, but also the introduction of false link to make the case look probable. I do not want to detail all such infirmities, which go to substantiate this contention. Suffice it to point out that if we read the description of articles said to have been stolen away as given in the F. I. R. and the description given in the recovery memo we would find it is not only tallying almost in all respects but also the serial number given to each item is the same. The aged Pujari could possibly not give such a detailed description of each idol etc. In F. I. R. all this gives an impression of preparation of both the docu ments at one and the same time. Again, when we find that the aged Pujari could not mark the features of the culprits due to darkness and poor vision, we can reasonably infer that it was difficult for him to form an impression about the clothes on the wearing of the culprits. Interestingly enough descri ption of the clothes is also found in the F. I. R. which suggests that the report was prepared after their alleged arrest. However, further reasons for rejecting the claim of the prose cution that the relevant documents were prepared at the time suggested by it, are not necessary. 9. In the result, the appeals succeed. The judgment and order under appeal convicting and sentencing each appellant, are set aside. Each appellant is found not quality and is acquitted on the charge stated above. The appellants are on bail. Sureties are discharged. 10, This judgment be placed on the record of Criminal Appeal No. 2&09 of 1979 Chhotey and others v. State of U. P. and a copy of thereof be kept on the record on the other connected appeals, -which shall stand disposed of: accordingly. Appeal Allowed. .