Radhey Shyam and others vs State of U.P.

Amar Saran and Vinay Kumar Mathur, JJ.—Heard learned counsel for the appellants and learned Additional Government Advocate. A prayer for bail has been made in this criminal appeal, which has been filed against a judgment and order dated 11.11.2010 passed by the Additional Sessions Judge/F.T.C. No. 1, Kannauj convicting and sentencing the appellants to life imprisonment u/s 412, I.P.C. in S.T. No. 11 of 1996.

It is submitted by the learned counsel for the appellants that In the present case the appellants have been acquitted u/s 396, I.P.C. and only convicted u/s 412, I.P.C. and sentenced to imprisonment for life. It is further submitted that the appellants may not have the knowledge that the truck in which they are travelling was a looted property after commission of the offence. The contents of the F.I.R. lodged by the injured Surendra Singh cannot be read as they do not relate to the death of the injured, who died subsequently and could not be examined. There was thus no legal evidence to establish the identity of the appellants as the persons who have committed this offence.

Learned A.G.A. on the other hand argued that the allegations in this case are extremely grave. The truck in which the two deceased persons Gurnam Singh and the "khalasi" and the injured Surendra Singh were travelling after loading the truck with iron pipes from Sahibabad for Kanpur was stopped at 10.30 a.m., near Dadri Kasba. Then five men and one woman took a lift in the said truck as they wanted to go to Kanpur where the truck was headed. As soon as the truck reached Chhibramau near Hanuman Temple at about 6.30 p.m., then the five accused persons made the injured and two deceased persons get down and they were taken to a mustard field where the accused persons started snatching their money. Then they fired on them with country made pistols. Gurnam Singh and the Khalasi died at the spot, but the informant Surendra Singh was only injured. The miscreants snatched Rs. 16,500 from the injured and started running away with the truck because they thought that all the three persons had been murdered. At that time two police personnel. Chhotey Lal, P.W. 2 and Pyare Lal, P.W. 4, who were passing through that way on cycles came near the truck, who also recognized the miscreants. The injured disclosed the incident to the constables. The accused fled with the truck towards Chhibramau. The accused persons were said to be calling each other by their names.

The police constables then took the injured persons to police station Chhibramau where the report was lodged at 8.10 p.m. on the same day, i.e., 16.12.1995. Consequent to the wireless message sent by the police station, the truck alongwith the six accused persons were apprehended at 8.45 p.m. by the police of Mohammadabad.

It is further submitted by the learned A.G.A. that even without going into the question whether the contents of the F.I.R. was admissible in evidence or not, but the disclosure made by Surendra Singh, the Injured immediately after the incident to the two constables, P.Ws. 2 and 4, could certainly be read and the evidence can be taken into consideration u/s 6 of the Evidence Act as evidence in the nature of res gestae. He also questioned the propriety of the trial Judge acquitting the accused persons u/s 396, I.P.C. as they were arrested with the truck soon after the incident.

As all the six accused persons, which included five men and one woman, who participated in the incident at 6.30 p.m., in which two persons were murdered and the third person who had received an injury on the neck may have also appeared to be dead to the appellants, they decamped with the truck. However, owing to a wireless message being sent by the police of P.S. Chhibramau, they were arrested at 8.45 p.m., on the same evening by the police of P.S. Mohammadabad. It would be too speculative to argue that (five men and one woman), who were arrested at 8.45 p.m. by the Mohammadabad police could be different from the six accused persons, who had travelled in the truck and participated in the murder and loot of the deceased and the injured. Thus, there would be no problem in identifying the appellants as the persons who had committed the crime.

Learned A.G.A. further submitted that this Court could in exercise of its suo motu revisional powers set aside the findings of acquittal u/s 396, I.P.C. The arrest of the six accused persons at 8.45 p.m., by the Mohammadabad police soon after their fleeing with the truck at 6.30 p.m. is another important link for connecting them with this crime. Looking to the gravity of the allegations even if the appellants have only been convicted u/s 412, I.P.C. and considering the necessity for this Court to examine the correctness of the findings acquitting the accused persons u/s 396, I.P.C., we do not think that it is a fit case at all for bail.

Accordingly, the prayer for bail of all the appellants is rejected.

However, the hearing of the appeal is expedited. Learned A.G.A. is directed to obtain instructions whether it would be proper to file a Government Appeal against acquittal u/s 396 or 302, I.P.C. in this case.