Hon'ble Mrs. Vijay Lakshmi,J.
(By Hon'ble Mrs. Vijay Lakshmi,J.) As both these appeals have been preferred against the same judgement and order dated 6.3.2014 passed by the Addl. Sessions Judge, Court No.3, Jaunpur whereby acquitting the accused respondent Prem Prakash Singh @ Munna Bajrangi, both were being connected and heard together, as such both are being disposed of by this common order.
We have heard Shri N.D. Shukla, appearing on behalf of appellant Sabha Shankar @ Lalta Prasad Dubey who has preferred the appeal under Section 372 Cr.P.C. as well as learned Government Advocate appearing on behalf of State of U.P. In Government Appeal and Sri Rajarshi Gupta appearing for accused/respondent in both the appeals.
Perused the records.
Some brief facts of the case are that on 24.1.1996 at about 5:30 p.m. the informant namely Manoj Kumar Singh, along with his brother Raj Kumar Singh was standing at a tea shop situated in the market of Zamalpur on Jaunpur Bhadohi Road and was talking with him. In the meantime, Kailash Dubey and Bankey Lal Tiwari reached there and joined them. While all of them were busy discussing topic of Panchayat election, a white Maruti van came from the side of Madiyahun and haulted at some distance from the place where these people were standing. Out of the said Maruti van, accused Gajraj Singh and Alam Singh alighted. They were armed with rifles. The accused Gajraj Singh exhorted his son Alam Singh with the words "Jaan Se mar dalo saalon ko" and as a sequel to exhortation, Alam Singh fired at Raj Kumar. Gajraj Singh made fire upon Kailash Dubey due to which both of them got injured and fell down on the spot. Thereafter, 4-5 unknown persons alighted from Maruti Van and started firing indiscriminately, by which Bankey Lal Tiwari sustained fire arm injuries who immediately fell down and succumb to the injuries. Some other people present there namely, Ram Ashrey Singh, Indrajeet Singh, Sumer Rajbhar, Renu, Dhirendra Tiwari etc also sustained fire arm injuries. The condition of Kailash Dubey and Raj Kumar (brother of informant) became critical. Both of them were immediately taken to hospital at Jaunpur where doctor declared them brought dead. The incident was witnessed by the informant, Shivram Singh, Dinesh Singh, Indrajeet Singh, Lalta Dubey Keshav Mishra etc and the public present in the market. The motive behind the crime is also mentioned in the FIR which was animosity and hostility on account of last election of Block Pramukh. The informant has also mentioned that he can identify the accused person.
A criminal case was registered on the basis of above written report at Crime No.70 of 1996 under Sections 147, 148, 302, 307/149 against Gajraj Singh, Alam Singh and 4-5 unknown persons. The inquest on the dead bodies of three deceased persons Kailash Dubey, Bankey Lal Tiwari and Raj Kumar was conducted on 24.1.1996 at 10:30 a.m. and post mortem was conducted on 25.1.1996 at district hospital.
After due investigation, charge sheet was submitted against accused persons Gajraj Singh, Alam Singh, Guddu @ Abhishek, Rajesh Dubey and Prem Singh @ Munna Bajrangi. (accused respondent in the present appeal). As accused Prem Singh @ Munna Bajrangi was found absconding, charge sheet against him was submitted by the police in 'Mafroori'. Due to continuance absence of accused Prem Singh @ Munna Bajrangi his file was separated from rest of the accused persons and he was tried separately vide Session Trial No.340-A/1998 for the offences under sections 148, 302, 307 r/w 149 and 120-B of IPC.The accused denied from the charges framed against him in the aforesaid sections and claimed to be tried.
The record shows that the prosecution in order to prove its case has produced 13 witnesses in all. The following is the list of material witnesses P.W.-1 is Sabha Shankar @ Lalta Prasad Dubey, P.W.-2 informant Manoj Kumar Sngh, P.W.-3 is Samar Nath, P.W.-4 is Gappu @ Karmendra, P.W.-6 is Ram Ashrey, P.W.-8 is Km. Renu all these witnesses are the witnesses of fact and the rest are formal witnesses.
After conclusion of prosecution evidence, the statement of accused under section 313 was recorded in which he denied all the allegations, pleaded his innocence and alleged his false implication due to political rivalry. The learned trial court after a detailed discussion of evidence, acquitted the accused on the ground that prosecution could not succeed in proving its case against the accused respondent beyond reasonable doubt.
Aggrieved by the aforesaid judgements of acquittal, the appellant Sabha Shanker has approached this Court by way of filing this appeal. Learned counsel for the appellant has vehemently argued that in this case three persons namely Kailash Dubey, Raj Kumar Singh and Bakey Lal Tiwari were done to death by fire arm injuries and several other persons got injured. Post mortem reports and injury reports available on record fully support the prosecution case. Several eye witlessness and injured witnesses have been produced by the prosecution who have supported the prosecution case regarding the commission of offence. There was strong motive with the accused to kill Kailash Dubey who had defeated co-accused Gajraj in District Panchayat Election but the court below has acquitted the accused respondent on minor contradictions without any basis by passing a judgment on surmises and conjectures.
It is next contended by learned counsel for the appellant that in connected Session Trial No.340 of 1998, death sentence was awarded to co-accused Alam Singh by the judgement dated 30.11.2009 and in criminal appeal filed against that judgement in this court, although the death sentence of Alam was converted into life imprisonment by this Court but the conviction was upheld. As the accused respondent Munna Bajrangi was absconding, his case could not be concluded along with concerned persons and he escaped punishment. Learned counsel for the appellant has contended that the respondent is a hardened criminal, several heinous cases are pending against him in various courts and nobody dares to open lips against him. So in view of the criminal antecedents too, he is liable to be convicted.
On the aforesaid grounds, it has been prayed that the impugned judgement be set aside and the respondent accused be convicted and punished.
Learned AGA appearing in the connected Government Appeal has assailed the impugned judgement almost on the same ground with one addition that when the accused respondent had appeared before the Court below, P.W.-1 Lalta Prasad had identified him but the learned trial court erroneously acquitted him. It has been prayed that the judgement of acquittal is perverse, illegal and unjustified and bad in the eyes of law so it may be set aside.
A perusal of the impugned judgement shows that informant Manoj Kumar Singh, produced as P.W-2 who is the real brother of deceased Raj Kumar Singh has not named accused respondent Munna Bajrangi in his examination in chief. It is also worth mentioning that on the date when his examination in chief was to be recorded. Munna Bajrangi had been summoned from jail in the trial court but P.W.-2 Manoj Kumar Singh did not identify him during recording of his statement. Only P.W.-1 Sabha Shanker @ Lalta Prasad Dubey had identified the accused respondent that too for the first time in court by stating that the man standing behind the docks in court, was also one among the 4-5 unknown assailants.
It is worth mentioning that the accused respondent is not named in the FIR. Except P.W.-1. Except P.W.1 Sabha Shanker, no other witness has deposed any thing against him. P.W.-1 has also not named the accused respondent in his deposition. He has only made a general allegation against the respondent accused by stating that the accused present in court today was also one among the assailants firing on the deceased. Thus the only evidence against accused-respondent that he has been identified by P.W.-1 in court for the first time.
The law regarding identification of accused has been well settled by a catena of judgements of Supreme Court and various High Courts. In this regard, learned trial court has relied on the following judgments :-
1."Baikutam Chandrama vs. State of Andhra Pradesh, AIR 1960 SCC 1360;
2.Budhsen vs. State of U.P. 1970 Cr.L.J 1149 SC;
3.Chandrashekhar Bind & ors vs. State of Bihar AIR 2011 SC 4020 We are also in conformity with the view of trial court. The Apex Court in the case of Dana Yadav vs. State of Bihar 2002 SCC (Crl.) 1698 has held that if the accused is not named in the FIR, his identification by the witness in court should not be relied upon particularly when prosecution completely erred in not conducting the test identification parade. In the instant case, accused appellant Prem Singh @ Munna Bajrangi was not named in the FIR, no test identification parade was held. Suddenly in court a witness identified him, that too after expiry of four years from the occurrence, so it is neither safe nor proper to convict him particularly when enmity and election rivalry between both the parties is admitted. A perusal of the impugned judgement shows that one Court witness, Bacchha Singh @ Om Prakash Singh has also been examined but he too, has not supported the prosecution case. Under these circumstances, the learned Trial Court had no other option except to acquit the accused respondent.
According to the FIR, specific role has been assigned to accused Gajraj Singh of exhortation and firing on Kailash Dubey and to accused Alam Singh for firing on Raj Kumar Singh, the brother of informant. The informant Manoj Kumar Singh in the FIR itself has specifically mentioned the names of assailants who have taken active participation in the crime by stating that this incident was committed by Gajraj Singh and Alam Singh.
So far as the criminal antecedent of accused respondent is concerned, the legal position is well settled that criminal antecedents cannot form a basis of conviction and an accused can be convicted only on the basis of evidence available on record in the particular case in which he has been tried. In Kali Ram vs. State of Himachal Pradesh 1973 AIR 2773 the Hon'ble Apex Court has observed as under :-
" A criminal trial is not like a fairy tale wherein one is free to give flight to ones imagination and fantasy in arriving at the conclusion about the guilt of the accused charged....
If a reasonable doubt arise regarding the guilt of the accused, the benefit of that cannot be withheld from the accused. The courts would not be justified in withholding the benefit because the acquittal might have an impact upon the law and order situation or create adverse reaction in society or amongst those members of the society who believe the accused to be guilty. The guilt of the accused has to be adjudged not by the fact that a vast number of people believe, him to be guilty but whether his guilt has been established by the evidence brought on record."
The last ground on which the judgment of learned trial court has been assailed by the appellant's counsel is that the trial court has committed any error in not taking the note of the fact that the accused respondent had absconded immediately after the incident and due to which his file had to be separated from the file of other accused persons.
In our view, the aforesaid arguments has no force. The Hon'ble Apex Court in the case of Ashok Debbarma vs. State of Tripura (2014) 4 SCC 751 has held that only on the ground that an accused has been absconded, presumption of guilt should not be withdrawn by the court against him especially when the question regarding abscondence was not put to the accused in the statement recorded while examining him under section 313 Cr.P.C. There is no doubt that the accused appellant is a known criminal especially in the Eastern U.P. but only on this ground that he is a known criminal, he cannot be held guilty in the present case in which there is no reliable evidence sufficient for his conviction.
In view of the aforesaid discussion, we find no ground to interfere in the judgement. Both the appeals are without any force and are liable to be dismissed at this stage.
Accordingly, the appeal is dismissed.
Order Date :- 20.11.2014 Ps