State of U.P. vs Khalil

S.I. Jafri, J.—This appeal has been filed by the State of U.P. against the judgment and order dated 30-10-76 of Sri S.K. Misra, I Additional Sessions Judge. Jhansi acquitting Khalil Khan Respondent of the charge u/s 395 IPC. Co-accused Khalil s/o Idu. Chhotey and Amol Singh were also acquitted of the charge u/s 395 IPC by the learned Sessions Judge.

The above mentioned appeal came up for hearing before a Division Bench of this Court consisting of Hon. B.N. Katju, J. and Hon. K.C. Agarwal, J. Hon. B.N. Katju, J. had upset the findings arrived at by the trial Court. He had allowed the appeal and convicted Respondent Khalil Khan u/s 395 IPC and sentenced him to undergo R.I. for 5 years whereas Hon. K.C. Agarwal, J. differed with his brother Judge and held that there was no merit in the appeal and while dismissing the appeal, affirmed the order of acquittal passed by the trial Court in favour of the accused.

In view of the aforesaid difference of opinion between them the appeal was placed before Hon''ble the Acting Chief Justice for reference to another Judge for his opinion as required by Section 392 Code of Criminal Procedure.

The Hon''ble the Acting Chief Justice nominated Hon. B.C. Jauhari, J. for delivering his opinion in the case and accordingly the appeal along with the respective opinions of the Hon''ble Judges was putup before Hon. B.C. Jauhari, J. for his opinion. However, as required by Hon''ble B.C. Jauhari, J. and in view of the provisions contained in the proviso to Section 392 Code of Criminal Procedure, this appeal came up for decision before this Bench.

The case of the prosecution is that on 7th September 1973 at about 9.30 P.M. Sardar Autar Singh PW 11 a Naik in Military force posted at Jhansi accompanied by his wife Smt. Kuldeep Kaur PW 8 was returning back on a cycle to his military quarter after seeing off his friend, Sepoy Milkiat Singh at the Railway Station, Jhansi. The complainant and his companions reached the tri-junction (Tiraha) of the roads near the office of Territorial Army where a road branches off the Tiraha. His companions Joginder Singh, Bachan Singh and Barkat Singh who were also going on cycles, drove towards their quarters upto a distance of 40 or 50 steps. As the complainant moved ahead of Tiraha along-with his wife on the road towards his quarter he was encircled by Respondent Khalil Khan and six others and Khalil Khan tried to relieve Smt. Kuldeep Kaur of the necklace which she was wearing around her neck. The complainant Sardar Autar Singh and Smt. Kuldeep Kaur, wife of the complainant both raised alarm, whereupon the aforesaid companions of the complainant i.e. Joginder Singh, Bahchan Singh and Barkat Singh who as already stated had gone ahead by 40 or 50 steps towards their quarters, rushed back towards the complainant to rescue him. The accused along with others made an unsuccessful attempt to flee, but were chased and out of them Khalil Khan Respondent was apprehended on the spot at a distance of about 150 yards from the Tiraha by the aforesaid Military personnels while his companions made good their escape. After his arrest, the Respondent Khalil Khan was brought by the complainant Autar Singh and others to their Units where he was produced before the Commanding Officer and the matter was reported to him who advised the complainant and his companions to hand over the Respondent in the custody of police at Police Station Sudar Bazar and also to lodge a report. Consequently the complainant and his companions took Khalil Khan to Police station Sadar Bazar. The complainant handed over the Respondent in the custody of Police and also dictated an oral report to the Head constable Autar Singh PW 3 who prepared the chick report on the basis of the oral dictation given to him by the complainant. The head constable then registered a case in the General Diary of Police Station u/s 398/395 IPC against the Respondent and others whose names were disclosed by Khalil Khan after his arrest to the complainant.

The investigation of the case was taken up by Shiv Kumar Tiwari PW 12. During investigation co-accused Amol Singh, Chhotey and Khalil Khan s/o Idu were arrested and they were kept baparda till their admission in jail. They were putup for identification proceedings in Jail and were correctly picked up by one or more witnesses. During investigation, it came to light that Respondent Khalil Khan had incorrectly given his name to the complainant after his arrest as ''Habib'' instead of ''Khalil''. After completing the investigation, Shiv Kumar Tiwari PW 12 submitted chargesheet against Respondent Khalil and others.

Respondent Khalil Khan pleaded not guilty to the charge and stated in his statement u/s 313 Code of Criminal Procedure that the Sub-Inspector had foisted upon him a false case. He stated that he was caught hold by four Sardars from Lascala Cinema and was brought from there by aforesaid four Sardars. He also stated that he wanted to lodge a report at the Police Station but the Sub-Inspector did not take down his report. He further stated that the witnesses had deposed against him on account of the pressure exerted by the Sub-Inspector. He examined two witnesses namely Munnalal and Smt. Helma in his defence.

We have heard the learned Government Advocate for the State and also the learned Counsel for the Respondent at great length and we feel that the appeal must be allowed.

The prosecution examined in all 18 witnesees in support of its case and out of them Barkat Singh PW 4, Joginder Singh PW 5, Autar Singh PW 11, Bachan Singh PW 16 and Smt. Kuldeep Kaur PW 18 are the witnesses of the occurrence.

The trial Court after considering the evidence produced in this case, came to the conclusion that the prosecution had failed to bring home the guilt against the Respondent and acquitted him accordingly. Co-accused Khalil s/o Idu, Amol Singh and Chhottey against whom there was only evidence of identification were also acquitted by the trial Court.

Sardar Autar Singh PW 11 is the First Informant of this case. He is the husband of Smt. Kuldeep Kaur PW 18 whose necklace was attempted to be robbed while she was seated on the carrier of the cycle peddled by her husband Sardar Autar Singh at the time of occurrence. His evidence is corroborated by the First Information Report lodged at the Police Station Sadar Bazar without any delay. His evidence is further corroborated by the statement of his wife Smt. Kuldeep Kaur PW 18 and also by PWs. Barkat Singh, Joginder Singh and Bachan Singh. Sardar Autar Singh also stated that on his cry, Barkat Singh, Joginder Singh and Bachan Singh rushed to his rescue and saved him and his wife from the Respondent Khalil and his companions who had made attempt to snatch the necklace from the neck of his wife. They chased the miscreants and arrested Respondent Khalil on the spot. This statement also finds support by the evidence of witnesses Barkat Singh, Joginder Singh, Bachan Singh who had no enmity with the Respondent Khalil Khan. The evidence of complainant Naik Autar Singh is natural, straight forward and convincing. There is no infirmity in his statement so as to discredit his testimony. No enmity has been imputed by the defence to doubt the testimony of Sardar Autar Singh complainant.

As stated above, his evidence finds corroboration from the evidence of the independent witnesses Barkat Singh, Joginder Singh, Bachan Singh and Smt. Kuldeep Kuar. All these witnesses have been named by the complainant in the FIR. Moreover the statement of complainant Autar Singh also finds corroboration from the evidence of PW 3 Attar Singh, Head constable and Shiv Kumar Tiwari PW 12 the Investigating Officer that the Respondent Khalil after being apprehended on the spot by the complainant and his companions was handed over to the custody of the police at the time of the lodging of the FIR.

The fact of the arrest and handing over of the Respondent to police custody also finds mention in the General Diary entry Ex. ka 4 of Police Station Sadar Bazar in which a case u/s 398/395 IPC was registered against Respondent Khalil and others on the basis of the Chick report prepared at the Police Station by the Head Constable Attar Singh on the dictation of the complainant Sardar Autar Singh at 11 P.M. on 7-9-1973.

The complainant Sardar Autar Singh fully stood the test of cross examination in the witness box and the defence has failed to bring out any improbability in his evidence. His evidence is, therefore, reliable and trustworthy. Likewise the evidence of Barkat Singh PW 4, Joginder Singh PW 5, Bachan Singh PW 16 and Kuldeep Kaur PW 18 is convincing and reliable and there emerges no element of untruth or improbability which may render their evidence unwrothy of reliance. It has been fully and convincingly established from the evidence of the complainant and his witnesses that the occurrence had taken place in the manner alleged by the prosecution.

We, therefore, unhesitatingly hold that the Respondent Khalil had made an unsuccessful attempt to rob the necklace from the neck of Smt. Kuldeep Kaur while she was seated on the carrier of the cycle driven by her husband Autar Singh complainant, while returning to her quarter from Railway Station Jhansi and on the out cry raised by them, Barkat Singh, Joginder Singh, Bachan Singh had come to their help and the Respondent Khalil and his companions were chased and Khalil Respondent was apprehended by them at about 9.30 p.m. at a distance of about 150 yards from the place of occurrence. As such, the participation of Respondent Khalil in the occurrence is satisfactory established without any doubt.

The defence had suggested to the eye witnesses during their cross-examination that the complainant Sardar Autar Singh was a bachelor at the time of the occurrence and on the day of occurrence Autar Singh along with Barkat Singh, Joginder Singh and Bachan Singh had gone to see the picture at 6.30 p.m. show at Lascala Cinema and a Christian girl was in the company of Sardar Autar Singh. It was also suggested to the eye witnesses that during the interval some persons abducted the aforesaid Christian girl and when the show was over, Respondent Khalil was caught by them near the Cinema hall and he was falsely booked in the case. Respondent Khalil in his statement u/s 313 Code of Criminal Procedure before the trial Court stated a different version that he was caught by four Sardars from Lascala cinema and was implicated falsely in this case. He also stated that he wanted to lodge a report at the police station but the Sub-Inspector did not write his report.

Smt. Helma DW 2, a christian girl was examined who stated that she had gone with her brother to Lascala Picture House to see 6 p.m. show about three years back and in the Cinema Hall Khalil Respondent was occupying a seat next to her brother and behind her, some military personnels including one Sikh were sitting and when the show had started the military personnels began to tease her and they did not refrain despite her protests. When the show was over, the aforesaid Military personnels caught hold Khalil Respondent outside the Cinema Hall and began to question him while she along with her brother went to her house from the Cinema Hall.

It may be noted that the statement of Smt. Helma is on a completely different footing from the defence version which was put to the eye-witnesses during their cross-examination. It is, therefore, quite obvious that the statement of the accused made u/s 313 Code of Criminal Procedure and that the defence case put to the eye-witnesses during cross-examination, are both contradictory and false. The trial Court fell in error in not taking into account the two contradictory versions given by the accused. We, therefore, hold that the statement of Smt. Helma deserves to be rejected outright. There is no whisper in her evidence about the fact that the Respondent Khalil might have objected to the behaviour of military personnels teasing her in the Cinema Hall while the picture was underway. Therefore, it is very difficult to believe that the complainant and his companions would have caught the Respondent Khalil without any rhyme or reason after the show was over and implicated him in the present case. Even the trial Court has observed that Smt. Helma does not appear to be a girl of good moral character as she was herself involved in two criminal cases either as an accused or as a complainant regarding her being teased, molested or her modesty attempted to be outraged. In our opinion Smt. Helma is a got up witness. She is not at all reliable as her evidence does not inspire confidence. In view of the circumstances as given above, Smt. Helma can very well be procured by the Respondent Khalil for the purpose of deposing in his defence.

Munna Lal DW 1 stated that he was a clerk at Jhansi Railway Station. He had brought the outdoor A.S.M. Diary of September 1973. He stated that in the said Diary it is noted that on 7-9-1973, 57 Down Express Train bound for Amritsar came from Delhi. The scheduled arrival of the train was 8.15 p.m. and the scheduled departure of it was 8.45 p.m. He stated that on 7-9-73 the said train was 40 minutes behind schedule and it had arrived at Railway Statian Jhansi at 8.15 p.m. and left at 8.25 p.m. The evidence of Munna Lal does not lend any help to the accused even for doubting the evidence of eye witnesses regarding time of incident as set out by the prosecution.

The complainant Autar Singh PW 11 had stated that he and his companions after the departure of the train had left the Railway Station Jhansi for their respective quarters. The time of occurrence as given by the complainant in the FIR is about 9.30 p.m. and the place of occurrence lies at a distance of about a mile from the Railway Station and, therefore, the evidence of eye witnesses that the incident had taken place after they were coming back from the Railway Station is probable.

The trial Court held that according to the prosecution case, the Respondent gave out the names of six of his companions but on investigation it was detected that five of them were not linked to the crime. It may be mentioned that the Respondent Khalil Khan might have given spurious names of his companions in order to mislead the investigating agency. It is very difficult to read the mind of a criminal who is arrested on the spot. The above reasoning of the trial Court is also without any substance.

Another reason given by the trial Court is that Khalil Khan Respondent had given his name at the time of his arrest as Habib though he divulged his correct parentage and residence. This trick might have been resorted to by the Respondent by giving his spurious name in order to conceal his identity and to lead the investigation go astray. If Khalil Khan had given his parentage and residence correctly and his name correctly, it cannot be held that Khalil Khan would not have given his correct parentage and address to the complainant. Khalil Khan might have thought that even by giving his name incorrectly people would have been misled.

The next reason given by the trial Court is that all the witnesses, namely, Barkat Singh, Joginder Singh, Bachan Singh and complainant Autar Singh were military personnels and they must have gone to the Railway Station to see off their friend attired in military uniform and they were also stout and young men and as such it was very difficult to believe that at about 9.30 p.m. after the show of Lascala Cinema was over, they would have been attacked by miscreants near the Cinema Hall and also near the office of Territorial Army as they were all military personnels. The trial Court further held that the miscreants could not have dared to attack Autar Singh complainant and his wife when his companions had hardly gone about 40 or 50 paces ahead of him.

There is no improbability in the conduct of Respondent Khalil Khan and his associates in making attempt to snatch the necklace from the neck of Smt. Kuldeep Kaur who was sitting on the carrier of the cycle driven by Autar Singh. The place of occurrence was a lonely spot situated at a distance of about 2 furlongs from Lascala cinema and the complainant and his wife were alone when the Respondent Khalil Khan had attempted to snatch the necklace from the neck of Smt. Kuldeep Kaur. Snatching of necklace is a swift operation executable within a few seconds. The culprits would have disappeared by snatching the necklace from the neck of Smt. Kuldeep Kaur in no time, had she not resisted the attempts made by the Respondent Khalil Khan and the witnesses Barkat Singh, Bachan Singh and Joginder Singh had not come to her help on (sic)er cries. There is a galore of instances when in the crowded places like Chowk, Melas, Railway Station etc. the culprits had accomplished their game by snatching a necklace or an ear-ring from the person of ladies within no time running the risk of their being apprehended on the spot. The learned Sessions Judge erred in holding that the act of the Respondent and his associates was unnatural in attacking the military personnels.

The learned Sessions Judge further held that there are material contradictions in the statement of eye witnesses regarding the number of attempts made by miscreants to snatch the gold necklace. To our mind the fact whether the Respondents made attempt to snatch the necklace from the neck of Smt. Kuldeep Kaur once, twice or thrice is of no significance to cast any doubt on the veracity of the prosecution story as, such contradictions are very trivial, immaterial, insignificant in nature and do not out weigh the consistent evidence to render the prosecution case untruthful.

The learned Sessions Judge further held that none of the miscreants had any knife, pistol, danda etc. with them and they did not threaten Sardar Autar Singh complainant and his wife Kuldeep Kaur to attack and it was, therefore, unbelievable that seven miscreants would try to rob military personnels who were unarmed. This inference by the trial Court is without any substance. The culprits might be carrying weapons with them in their pockets and they might have thought to relieve Smt. Kuldeep Kaur of golden necklace without use of any weapon as at the time of attack Smt. Kuldeep Kaur was sitting on the carrier of the cycle driven by her husband Autar Singh and the remaining sepoys had moved ahead by 40 or 50 paces on another road leading to their quarters from the tri-junction. Therefore, there was nothing unusual in the conduct of the culprit. They could achieve their object without displaying any weapon etc.

Another reason given by the trial Court is that it was very difficult to believe that Smt. Kuldeep Kaur who was running a pregnancy of 7 1/2 months would have gone on a cycle with her husband Autar Singh to see off her husband'' friend at the Railway Station. To our mind, there was nothing unusual or improbable if Smt. Kuldeep Kaur had gone to the Railway Station to see off her husband''s friend. Sometimes, ladies undergo hard work even in the advanced stage of pregnancy in their daily routine. The learned Sessions Judge has lost sight of the fact that Smt. Kuldeep Kaur was a pregnant lady and no husband would like to drag her wife in fabricating a false case by alleging that the necklace of her wife was attempted to be robbed of by the miscreants.

The credibility of the evidence of Barkat Singh was doubted by the trial Court on account of his statement that he did not go to police station with Autar Singh complainant when Autar Singh had gone to lodge the FIR while on the contrary. Joginder Singh, Sardar Autar Singh and Bachan Singh had stated that he had gone to the police station with them. It is worthwhile to note that statement of Barkat Singh was recorded after about 3 years of the occurrence and, therefore, there is very likelihood that Barkat Singh might have forgotten that he had also accompanied Autar Singh to the police station when he went there to lodge the FIR. It may further be noted that in the General Diary entry Ex. ka 3 Barkat Singh is mentioned as one of the companions of Autar Singh complainant. Therefore, this omission on the part of witness Barkat Singh is not at all sufficient to doubt the presence of Barkat Singh at the time of the occurrence.

The next reason given by the trial Court is that four military personnels had grappled with seven miscreants and it was, therefore, improbable that they could have apprehended only one miscreant. To our mind, there is nothing improbable that only one out of seven miscreants i.e. Khalil Khan Respondent was caught on the spot while others managed to escape.

Another reason given by the trial Court is that the FIR was lodged after undue delay at 11 p.m. as the occurrence had taken place at about 9.30 p.m. and the place of occurrence was at a distance of 5 furlongs from the Police Station The complainant Sardar Autar Singh, Barkat Singh, Bachan Singh and Joginder Singh had stated that after apprehending the Respondent Khalil Khan on the spot they had taken him to their regimental Head Quarters and it was only then that on the direction of the Subedar Major, they went to the Police station and lodged the report and also handed over the Respondent in the custody of the police. The incident had taken place in the Cantoment area, therefore, it was natural that after the Respondent Khalil Khan was caught hold by the complainant and his companions, he was taken to their officer in the Regiment and as such there was no delay if the report was lodged at 11 p.m. as an hour or so must have been spent in going to regimental Lines from the spot of arrest and then coming to Police Station for lodging the FIR. Therefore, we hold unhesitatingly that there was no delay in lodging the FIR by the complainant Autar Singh.

The trial Court has also held that non examination of Subedar Major Ranjit Singh before whom the Respondent Khalil Khan was first produced by the complainant and his men in the Regimental Lines by the Investigating Officer, and also his non-production during the trial had prejudicied the accused in his defence. Subedar Major Ranjit Singh was not an eye-witness of the occurrence. He had simply directed the complainant to lodge the report at the police station and also to hand over the accused in the custody of the police. No prejudice was, therefore, caused to the accused by non examination of Subedar Major Ranjit Singh in the trial Court.

The next reason entitling the Respondent to a acquittal according to the trial Court was that there was discrepancy between the statement of Investigating Officer and witness Bachan Singh regarding the date on which his statement was recorded by the Investigating Officer. PW 12 Shiv Kumar Tiwari. Investigating Officer stated that he had interrogated the witness Bachan Singh next day of the incident whereas Bachan Singh stated that he was interrogated by the Investigating Officer after about 4 or 5 days of the occurrence. This statement of Bachan Singh might have been made on account of some confusion as Bachan Singh was examined in the trial Court after along gap of 3 years of the incident. This discrepancy is also very trivial in nature and does not deserve to be taken into account.

The trial Court further held that there was discrepancy in the statement of complainant Autar Singh about the place where the Respondent Khalil Khan had disclosed the names of his associates. Complainant Sardar Autar Singh stated that Respondent Khalil Khan had disclosed the names of his associates at the piece of occurrence whereas Bachan Singh stated that Respondent Khalil Khan had told the names of his associates at the Police Station. This discrepancy is very insignificant in view of the fact that the statement of PW was recorded after a gap of 3 years of the incident.

Another reason for acquittal given by the trial Court is that Smt. Kuldeep Kaur stated before the Investigating Officer that all the miscreants had surrounded her and attempted to snatch her golden chain but in statement before the trial Court she stated that there was grappling too. To our mind, this discrepancy is also of trivial nature and no importance can be attached to it.

The learned trial Court had further pointed out that Smt. Kuldeep Kaur stated in her deposition in the Court that she could not say with certaintly whether Barkat Singh, Joginder Singh, Bachan Singh and Autar Singh were attried in military uniform at the time of incident or not. It may be noted that Smt. Kuldeep Kaur was examined in the last as a witnesses of occurrence and her statement was recorded after a long gap of about 3 years of the incident. Therefore, she might not have remembered whether her husband and his companions were wearing military uniform at the time of incident or not. No significance should have, therefore, been attached to this statement by the trial Court even if Smt. Kuldeep Kaur had stated that her husband and his companions were in military uniform or in plain clothes. Her statement to this effect was not at all liable to be scrutinised or contradicted by any other evidence as no such question about the dress of the complainant or his companions was put to the other eye witnesses in their cross-examination earlier. Smt. Kuldeep Kaur was examined as the last witness in the trial Court as stated above.

The last reason given by the trial Court is that necklace of Smt. Kuldeep Kaur which was tried to be snatched by the miscreants, was not produced in the Court. The non production of the necklace does not at all adversely affect the case of the prosecution as according to Smt. Kuldeep Kaur, she had given the necklace to her husband who had given it to the Investigating Officer when he had recorded her statement and the Investigating Offier after preparing its recovery memo had given it back to her. Her statement is corroborated by the Investigating Officer. Therefore, the non production of the Necklace by her in the Court does not adversely affect the prosecution case. Moreover it was never put to her during evidence by the defence that she did not possess the necklace at the time of the occurrence.

We have fully considered every circumstance on the record and also the reasons given by the trial Court in support of its order of acquittal. As shown above, the findings arrived at by the trial Court in acquitting the Respondent Khalil are imaginative and deserve to be set aside. The statement of the complainant and his witness are reliable and they establish beyond all reasonable doubt that Khalil Khan Respondent had tried to snatch the Necklace from Smt. Kuldeep Kaur at the place of occurrence and was arrested on the spot by the complainant and his men. The charge u/s 395 IPC is, therefore, fully proved against the Respondent Khalil Khan.

It was urged on behalf of the Respondent that the difference of opinion in this appeal clearly shows that the view of the trial Court is possible in this case. Therefore, the conclusion of the trial Court should not be interfered with. As already discussed above, the conclusion of the trial Court is not supported by the evidence on record and is rather based on an incorrect appreciation of the evidence and circumstances of the case. It is in fact not a case in which two views could reasonably be taken. The case is fully established against Khalil Khan Respondent by reliable and independent witneses who have no reason to implicate him falsely by forging a case of his spot arrest at the time and place of occurrence. We have no doubt that the guilt of Khalil Khan Respondent has been fully proved in this case.

Accordingly, the appeal is allowed and the order of acquittal of the Respondent Khalil Khan is set aside. Instead he is convicted u/s 395 IPC and sentenced to three years'' R.I. He shall be taken into custody forth-with to serve out the sentence.

Appeal allowed.