JUDGMENT N.S. Gupta, J.
1. This Government appeal is directed against the order of acquittal dated 21-3-80, passed by Shri L. N. Rai, the then IVth Additional District and Sessions Judge, Badaun in Session Trial No. 113 of 1978, acquitting the accused respondent Ram Swarup for the offence punishable under Sections 148/302/307/149/396/412 I.P.C.
2. The prosecution story briefly stated is as follows :-
On 27-11-77 at about 5.00 P.M., an incident had happened at the house of one Mulaim Singh in Village Khiria Madhukar, police station Ushat, district Badaun, wherein as many as 13 accused persons had raided the house of Mulaim Singh with the intention to commit murder of Mulaim Singh, his son Itwari and brother Munshi Singh and further to attempt to commit the murder of Pt, Ram Murti Lal, resident of phenia, Sikanderpur, police station Mirzapur,' district Sahjahanpur, who also subsequently died on account of the injuries caused to him, in the incident of this case. Injuries were also caused to Pt. Ram Saran of village Makrauli, police station Ushat and Ram Dayal resident of village Majharia, police station Mirzapur, district Shahjahanpur with an intention to commit their murder. The bandits had snatched away the gun of Mulaim Singh and Pt. Ram Saran, as also the belt of cartridges of Pt. Ram Saran. Thus in the said incident as many as four persons viz. Mulaim Singh, Itwari, Munshi Singh and Ram Murti were murdered whereas Ram Saran and Ram Dayal were injured. 12 persons were named in the F.I.R. The accused appellant Ram Swarup before this Court was not named as culprit in the F.I.R.
3. According to the prosecution he was the 13th accused who was not named in the F.I.R. and who was wearing Khaki uniform at the time of occurrence. His name and address were not known. Out of the 12 persons who were named as culprits in the F.I.R. one was Hori Lal to whom the rule of conspiracy was assigned. The other II accused persons are said to have been armed with deadly weapons like spear, guns, Kanta and Lathis who has actively participated in the occurrence in question and Were responsible for the said incident.
4. It appears that accused appellant Ram Swarup was arrested on the intervening night of 19/20th November, 1977 by the police officials near the Mazar of Nasiruddin, situate in village Bharsala, police station Allahpur, district Badaun alongwith four other persons of his gang, while he alongwith his associates was making preparation for committing dacoity. at the time of his arrest a gun which was connected with the occurrence of this case and which gun is said to be belonging to Mulaim Singh alongwith the belt of 18 cartridges were recovered from his possession. The accused respondent was made Baparda and was put up for identification on 27-1-78, in district jail Badaun. Identification proceedings were conducted by Shri A. N. Sinha, P.W. 12, who was then working as Executive Magistrate at Badaun, This accused was correctly identified by Ram Saran, P.W.4, Latoori, P.W.5 and Jhabboo, P.W.6 and was accordingly prosecuted in connection with Case Crime No. 129 of 1977 under Sections 147/148/302/307/149 I.P.C., but was acquitted by the trial Judge, as per his impugned judgment, against which the State of U. P. has come up in appeal before this Court.
5. We have heard Shri V. B. Singh, learned A.G.A. for State and Shri P. N. Misra and Shri Vinod Prasad, learned counsel for the accused respondent; considered their contentions and gone through the fact and circumstances of the case.
6. It is clearly established from the evidence of witnesses fact viz. Ram Saran P.W.4, Latoori, P.W.5 and Jhabboo, P.W.6 that some incident of the kind as has been set up by the prosecution and stated by these witnesses did happen, but the pertinent question which arises for our consideration in this case is to see as to whether the accused respondent had participated in the said occurrence or not. Although as many as 12 pesons were named as culprit in the F.I.R. but the fact remains that the accused respondent was not named in the F.I.R. He was sent up for trial on the basis of the identification evidence of three witnesses of fact viz Ram Saran, P.W.4, Latoori, P.W.5 and Jhabboo, P.W. 6.
7. Admittedly according to the case of the prosecution itself, the accused respondent was arrested on the intervening night of 19/20th November, 1977, that is, after about five months from the date of occurrence. He was put up for identification on 27-1 -78, that is after about seven months of the occurrence. The period of seven months was too long a period for these witnesses the had laid hands upon this accused respondent during the course of identification parade. It is not believable that these persons could have remembered the facial expressions of the unkonwn person Of a ghastly incident in which four lives were lost and two were injured for a period of seven months.
8. It is important to note here that the complainant Bhanwar Pal, P.W.I did not lay hands upon this man during the course of identification. Similarly Ram Dayal who was an injured eyewitness of the occurrence also fails to lay hands upon the accused respondent.
9. The circumstances that two important witnesses Bhanwar Pal, P.W. 2 and Ram Dayal failed to lay hands upon the accused respondent, fully go to show that the other witnesses viz. Jhabboo, Latoori and Ram Saran could lay hands upon him because of the some extraneous aid provided to them. This to us the identification evidence against the accused respondent was too weak to be relied upon.
10. Then again two independent witnesses of the alleged occurrence in which the accused respondent was arrested and the gun and the belt of cartridges were recovered from his possession viz. Gedan Singh, P.W. 10 and Chitan, P.W. 11 stated in their very examination in chief that the police constable had come to call them saying that a gang of dacoit has been arrested and that the Sub. Inspector of police was present there near the Ziarat situate in between the village Kumari and Makrauli. They stated that when they reached at the said Ziarat they found three Sub. Inspectors and other police constables there and found that the police officials had already arrested five bandits. Shri Gedan Singh, P.W. 10 specifically stated that the police officials took personal search of the five bandits from whose possession Lathi, Tamancha and gun were recovered. Those persons had told their names and addresses to the police officials but when he was specifically confronted about the accused respondent Ram Swarup as to whether he was there amongst those five bandits or not he was unable to reply. He was further unable to state as to what was recovered from his possession. When further confronted that the gun and the belt of cartridges which was said to have been recovered from the possession of the accused respondent, this witness was unable to state that those were the articles which were recovered from the possession of the accused respondent. He further stated that there were only 18 cartridges in the belt which was shown to him whereas there were 25 cartridges in the belt which was said to have been recovered from the accused respondent. He stated that although Ram Swarup stated that he obtained the gun in question in connection with a murder case of village Khiria Madhukar, but he was unable to state the name of the persons with whom the said gun belonged. He further stated that he has seen the recovery of gun and cartridges during night and therefore he was unable to state that the accused respondent was that very accused who was arrested as explained by the prosecution. During the course of his cross-examination this witness stated that when the police officials reached at his house he was sleeping. The police constable asked him to accompany. He therefore accompanied the police constables. He stated that besides him Gore Singh and Chitan Singh had also accompanied the police constables. He stated that the police officials did not inform him as to where the dacoity was likely to be committed. He was unable to state the name of the police constable who had called him.
11. P.W. 11 Chitan Singh stated that he was a ' patient of Asthma and T. B. He stated that when the police officials had apprehended the five bandits he was also called. Thereafter the Sub. Inspector of Police made some writing. He was unable to state as to whether personal search of these five persons were taken or not. He could not state as to whether gun etc. was recovered from anybody. He did not state that any articles were sealed. He further stated that Sub. Inspector of police had obtained his thumb impression upon the writing. He was unable to state as to whether the Sub. Inspector had inquired the name and address of those five bandits. He stated that the police officials thereafter took away those five bandits with them, after making them Baparda. He frankly stated that he did not see anything and when confronted with the accused, the gun and cartridges which are said to have been recovered from the possession of the accused respondent, this witness frankly stated that he was unable to state as to whether the accused respondent was amongst those five bandits. This witness was declared hostile by the prosecution itself. During the course of his cross-examination by the State counsel he stated that after the alleged arrest no police Sub. Inspector had interrogated him. He only put his signature on some writing. He did not connect the gun Exh, 2 and belt of cartridges Ex.3 with the accused respondent. It would thus be seen that these two independent witnesses of recovery and arrest have not connected the accused respondent either with his arrest or with the recovery of gun and cartridges in the manner suggested by the prosecution.
12. P.W. 15, S. I. Rajveer Singh and P.W. 22 S. I. Sharman Dutt Tyagi were the two Sub. Inspectors of police of the alleged arrest of the accused respondent and recovery of gun and cartridges from his possession.
13. P.W.15 S. I. Rajveer Singh stated to have arrested the accused respondent on the intervening night of 19/20-11 -77 from the near the Mazar of Nasiruddin situate in village Masrala, police station Allahpur alongwith SBBL gun No. 52264 and a belt of cartridges containing 18 cartridges of 12 bore. He proved the recovery memo which was prepared by S. I. Mahadeo Prasad in his presence and upon which the signatures and thumb impressions of the witnesses were obtained. He further stated that he came to know on spot that the gun in question related to the Case Crime No. 129 of 1977 of police station Ushat and that it belonged to Mulaim Singh. He stated that after arresting the accused respondent he made him Baparda. During the course of his cross-examination he stated that he did not know the accused respondent since before by his face but he knew him because his name had figured in a number of dacoities. He stated that as soon as he received information about the assembly of certain bandits he sent the police constable to police station (Ushat for the reason that the force of police station Allahpur was not sufficient. He stated that the force from police station Ushat arrived at about 10.00 p.m. and thereafter he started for the spot which lay at a distance of about 4 kms. He took about an hour for reaching there. He stated that it took 15-20 minutes for the formation of police parties. Thereafter about an hour the bandits started arriving there from towards the east. He stated that neither the dacoits came one by one nor they all came together. He stated that sometimes 2-3 persons arrived and another time two persons arrived. He mentioned in his report that the dacoits had arrived one by one. He stated that the bandits were seen by him when they entered into the Mazar one by one, because he had taken the position by the side of the wall which was about 31/2 feet high. He stated that one police party was there towards western wall of the Mazar and one was towards the southern wall. He stated that when all the dacoits had arrived thereafter after about 10-15 mintues VLP fire were opened. He stated that when the dacoits were arrested they had opened fire towards them and then he opened fire. He stated to have made three fires by VLP and maintained that from his side 3-4 fires were made and bandits had made 1 or 2 fires. He stated that the weapons which were recovered from the bandits did not contain any cartridge alive or dead. It is not believable if a gang of bandits had assembled for the purposes of making preparation for committing dacoity and when they were armed with country made pistol and guns as also Cartridges they would have kept their weapons empty with a view to surrender themselves before the police officials so very easily. He was unable to state the names of the bandits who escaped from the spot. It was suggested on behalf of the accused respondent that he was arrested from village Dasiya, police station Baror, district Shahjahanpur from the house of one Gulfam. Although S. I. Rajveer Singh, P.W. 15 denied the suggestion of the defence, yet the manner and circumstances in which he claims to have apprehended the accused respondent does not appear to be a probable one.
14. P.W. 22 Sri Sharma Dutt Tyagi who was another witness of arrest and recovery of gun and cartridges from the possession of the accused respondent was also the Investigating Officer of the case. During the course of his cross-examination S.I. Sharma Dutt Tyagi stated that he was posted at police station Ushat after the occurrence of murder etc. 6f this case. He stated that prior to him S.O. Sukhbeer Singh has conducted the investigation into the said case. He frankly admitted that he did not enquire about the description of the unknown man who participated in the occurrence of that case in a police uniform. When this Sub inspector of police was not aware 6f the description of the unknown man, it is not known as to how he arrived at a conclusion about the complicity of this accused respondent in the said case. He failed to enquire about the role played by the accused respondent in the occurrence of the said murder case. He never bothered to enquire as to whether the said man was wearing any badges. He was unable to state the length breath of the Mazar from where the accused respondent was arrested. He stated that he did not take any personal search of the bandits. The said search was taken by S.I. Rajveer Singh. He stated that the another gun which was taken away in connection with the murder in question could not be recovered. He did not try to ascertain from the accused respondent about the another gun. He was unable to offer any plausible explanation about the fact as to why the identification parade of the accused respondent was inordinately delayed for about more than a month when he submitted the report about the same on 27-11-77. The inordinate delay in conducting identification parade caste a reflection upon the bona fide of the said parade. Since the S.I. of police did not ascertain the identity of the accused respondent before apprehending him and connecting him with the occurrence of this case it becomes obvious that he falsely booked the accused respondent in this case.
15. Thus to sum up we find that the inordinate delay of seven months in conducting the identification proceedings of this accused respondent and further the disowing of the participation of the accused respondent in the occurrence in which he was arrested by the two independent witnesses viz. Gedan Singh, PW. 10 and Chitan, P.W. 11, fully go to prove that the accused respondent was falsely booked into this case. We, therefore, consider it proper to give benefit of doubt to the accused respondent and hold that, the finding of acquittal recorded by the Court below against the accused respondent warrants no interference by this Court. The appeal has got no force. It is accordingly dismissed.
16. It is directed that the bail bonds furnished by the accused respondent shall stand discharged.