STATE OF U P Vs. BANARSI MALLAH

JUDGEMENT

(1.) THESE two appeals have been preferred against the judgment and order dated 29 -8 -1980 passed by Sri O.K. Agrawal, the then IVth Additional Sessions Judge, Deoria in S.T. No. 186 of 1977 State v. Banarsi Mallah and S.T. No. 277 of 1978 State v. Vikram Gond and 3 others, whereby he acquitted Banarsi Mal ­lah and Harihar Singh accused of the of ­fence under Section 396, IPC and con ­victed Ram Narain accused of the same offence sentenced him to imprisonment for life. The Government Appeal was preferred regarding the acquittal of Banarshi Mallah and Crl. Appeal was preferred by Ram Narain accused against his convic ­tion. So far as Ram Narain is concerned, he has died, consequently, his appeal has abated and orders of abatement has been passed by this Court on .24 -3 -1998. So there remains only the Government Ap ­peal preferred against the acquittal of Banarshi Mallah by the learned Sessions Judge.

(2.) WE have heard learned A G. A and the learned counsel for the accused -, respondent Banarshi Mallah. It is not in controversy that a dacoity took place in the village Chhattarpur, P.S. Salempur, Dis ­trict Deoria in the intervening night of 16/17 -2 -1975 in which as many as 13 or 14 dacoits participated armed with gun, pistol, pharsa, lathi and bomb in the village at the house of Shiv Narain Singh informant in which Parsu Ram Singh were done of death and property was looted. Artificial sources of light were said to be present at the time of the occurrence. FIR was lodged against Vikram Gond, Harihar Singh and Radha Kishun Singh and 10 to 11 un ­known dacoits. During investigation Banarshi accused -respondent and Ram Narain were arrested and put up for test identification parade Banarshi Mallah was correctly identified by Anirudh Singh, Ram Nagina Singh and Ram Kishun Singh witnesses in the identification parade. Out of them, Anirudh Singh and Ram Nagina Singh were examined at the trial as P.W. 4 and P.W 3 respectively. They gave positive evidence against him at the trial and iden ­tified him correctly as one of the dacoits.

(3.) THE learned A. G. A has challenged the acquittal of this accused -appellant by the learned Sessions Judge. He pointed out to the statement of this accused under Section 313, Cr. P.C wherein this accused -respondent had not set up any enmity with any of the prosecution witnesses and claimed implication only under police pressure. In that statement the accused had claimed that the informant's house was only one mile away from his house. He also claimed that he was not brought to the police station Baparda and he was not taken to the jail Baparda and further said that the informant knew him and further that he was shown the witnesses at the police station. A scrutiny of the persecu ­tion evidence indicates that this accused Banarshi was arrested from his house on 6 -8 -1975 at 3.00 a.m. by S.I. Ram Narain Yadav of P. S. Kham Paar on a requisition sent by S.O. Salempur and lodged at the police station at 5.10 a.m. on the same day then he was despatched from the lock up of the police station for the District Jail, Deoria. The evidence further shows that he was put up for identification on 6 -10 -1975. There was thus a gap of as many as 60 days between the date of arrest and the date of identification proceedings. The learned AG.A has pointed out in the evidence of Rama Shankar Singh I.O. P.W. 8 that it was on 15 -8 -1975 that he (S.O.) P.S. Salempur received information from P.S. Khampaar about the arrest of this accused Banarshi and of his being sent Baparda to jail and that on its basis, he gave report for identification proceedings arid identification proceedings were held. It is difficult to believe that the information of this arrest would not promptly reach to S.O. Salempur on whose requisition, the arrest was made. Further more, there was no explanation for the time gap between the alleged date of the receipt of informa ­tion about the arrest as claimed by him and the date of the identification proceedings. There is the added circumstance that the identification proceedings had taken place about 8 months after the date of occur ­rence.