Khunnu vs State of U.P.

@DELETEUPPERDATA

Surendra Vikram Singh Rathore, J.—Under challenge in this appeal is the judgment and order dated 31.1.2012 passed by the learned Additional Sessions Judge, Court No. 3, Faizabad in Sessions Trial No. 162 of 2010 arising out of Case Crime No. 25 of 1985, Police Station Khandasa, District Faizabad whereby appellant Khunnu and Hansraj Singh were convicted for the offence under Section 392 I.P.C. and sentenced to undergo rigorous imprisonment for a period of two years and also with fine of Rs. 2,000/- with default stipulation of one month additional imprisonment. However, the appellants were acquitted of the charge under Section 397 I.P.C.

In this case, there were two more accused, namely, Tej Narayan and Ram Het alias Hannu but during trial, they have expired, therefore, the case with regard to them was abated.

Before proceeding further, it is pertinent to mention here that the incident of this case is alleged to have taken place on 18.2.1985. The trial could conclude after about 25 years. The reason for the delay in disposal of the trial was that some original papers were lost and file was subsequently reconstructed.

According to the case of the prosecution, on 18.2.1985 in the night, complainant Satguru along with his Smt. Leelawati was sleeping on the roof of their house. In the mid-night, two persons came on the roof and they brought the complainant and his wife down the stairs and one of the culprit opened the main door and two other accused persons also entered into the house of the complainant. A lamp was lightening in the house. The accused persons started threatening them and were enquiring the complainant and his wife regarding valuable articles. Hearing the noise, the other persons of the vicinity reached there and started throwing bricks on the accused persons. Under the pressure of the villagers, the accused persons ran away with one Handa (A big metal utensils valuing of Rs. 1,000/-). They were chased by the villagers then one of the culprits, who was armed with gun fired towards the villagers who were chasing. Therefore, they could not chase them further. The complainant named Khunnu Lodh, Hansraj Singh and Ram Het Pasi as the persons, who have committed this offence in his F.I.R. and the fourth accused person, who was armed with gun, was not previously known to him.

On the basis of this F.I.R., investigation proceeded and place of occurrence was investigated. During investigation, looted Handa was recovered from a pond of the village and its recovery memo was prepared. After completing the investigation, charge sheet was filed. During investigation, one empty cartridge and torches of the witnesses were also taken into custody and its recovery memo was prepared.

The case of the defence was that appellant Khunnu is a labour and he worked for the last several years in the house of appellant Hansraj Singh. Khunnu is the family member of the wife of the complainant and because of the family dispute, he has been falsely implicated. Since Hansraj Singh was his employee, there he has also been falsely implicated.

In order to prove its case, the prosecution has examined PW-1 Smt. Leelawati, wife of the complainant, PW-2 complainant Satguru, PW-3 Constable Tasvvur Hussain who is a formal witness, who has proved chik report and G.D. of the case and other documents prepared, during investigation by the Investigating Officer as secondary evidence.

In defence on behalf of the appellants, D.W. -1 Raja Ram and D.W. -2 Harak Bahadur Singh have been examined. D.W. -2 who was a witness of the recovery of the Handa.

In this case, 13 persons were named as witness of fact in the charge sheet. Out of whom, six witnesses have expired. Two witnesses have been examined by the prosecution and two witnesses have been examined in defence on behalf of the appellants. Remaining witnesses were formal witnesses of recovery of empty cartridge and torches.

After appreciating the evidence on record, the trial court has convicted the appellants as above, hence the instant criminal appeal.

Submission of learned counsel for the appellants is that in this case admittedly Khunnu was known to both the witnesses and accused Hansraj Singh was also previously known to PW-2 complainant Satguru, therefore it is unbelievable that they will commit such an offence without covering their faces. It has further been submitted that after a lapse of about 25 years it was not possible for PW-1 Smt. Leelawati to identify Hansraj Singh in court because there was huge time gap between the incident and identification in court and in such a long period, the face of a person also gets changed due to age effects. It has further been submitted that even according to evidence of PW-2 complainant Satguru, recovery of Handa is not proved and there is no other evidence to prove that the said Handa was recovered on the pointing out of any of the accused persons. The recovery memo of the said Handa is not on record.

Learned A.G.A. has submitted that it has come in the evidence that accused persons have not concealed their faces and therefore, the appellants were named in the F.I.R. The F.I.R. was lodged with promptness, therefore, there is no question of any false implication. The trial court has rightly convicted the appellants.

PW-1 Smt. Leelawati has stated in her evidence that two accused persons came to the roof and the lamp was lighting on the roof. She has further stated that both the accused persons started beating her and her husband and accused persons brought them down in the courtyard. The accused persons were making about the ornaments and cash. While coming down from the stairs she fell down. She has stated that apart from it, Khunnu and other persons were not known to her. However, she was recalled on the subsequent date and she identified appellant Hansraj Singh in court. In the F.I.R. it was mentioned that the lamp was kept in the courtyard.

Perusal of the impugned judgment of the trial court shows that the trial court went on to appreciate the evidence keeping in mind the fact of recovery of Handa on the pointing out of the accused persons stands proved. This approach of the trial court was not in accordance with law. He was supposed to first consider the evidence regarding the recovery of the Handa and only thereafter any interference from the said recovery or corroboration from the said recovery could have been used in support of prosecution. PW-1 Smt. Leelawati has admitted that appellant Khunnu was previously known to her. It has come in the evidence of PW-2 that he was the family member of his wife. They belong to one and the same family. Since the family grew in number, therefore, there was partition. It has come in the evidence that Khunnu was working with appellant Hansraj Singh.

Submission of learned counsel for the appellants has force that if known persons would commit Dacoity then they will definitely cover their faces to hide their identity. It has further been submitted that it is not a case where the accused persons have covered their faces and during the incident cover fell down from their faces due to which they were recognized.

So far as the evidence of recovery is concerned, PW-2 Satguru has stated in his cross-examination that someone from the police station had come to call him and then he went to the police station then the appellants Khunnu and Hansraj Singh was present at the police station and looted Handa was also in the police station. Thus PW-2 Satguru cannot be said to be a witness of recovery of the said Handa on the pointing out of the accused persons. There is absolutely no other evidence on record to the effect that said Handa was recovered on the pointing out of the accused persons. The other witnesses of the recovery memo namely D.W. -1 Harak Bahadur Singh has not supported the prosecution story regarding the recovery of the Handa. He has stated that his signatures were obtained on blank papers. This witness was cross-examined by the A.D.G.C. but nothing material could be elicited from his cross-examination to lend support to the prosecution case. Thus there was absolutely no evidence that the said Handa was recovered on the pointing out of the accused persons as perusal of the impugned judgment shows that the trial court has taken this fact as a very important fact and several observations in the judgment shows that the corroboration of the evidence of the witness with the said recovery was observed by the trial court.

In the F.I.R., there was absolutely no allegation that any of the accused persons has caused injuries to any person, but PW-1 says so however the said allegation is not supported by any medical evidence.

PW-1 has stated that they were beaten by the appellants while no such statement has been given by PW-2 complainant Satguru. So in the facts of this case, this fact also assumes importance. Non-examination of the Investigating Officer and other formal witnesses has also made the appellants handicapped in proving the contradictions, which have emerged in the statements of the witnesses. All these factors makes, the appellants entitled to benefit of doubt. The trial court has not properly appreciated the evidence on record, which renders the judgment unsustainable under law.

In view of the discussion made above, this appeal deserves to be allowed and is hereby allowed. The judgment and order dated 31.1.2012 passed by the learned Additional Sessions Judge, Court No. 3, Faizabad in Sessions Trial No. 162 of 2010 is hereby set aside. The appellants are hereby acquitted of the charges levelled against them. The appellants are on bail. They need not to surrender. They be set at liberty. Their bail bonds are cancelled and sureties discharged.

Office is directed to communicate this order forthwith to the court concerned for compliance. Lower court record be sent back.