AMAR SARAN, J. - (1.) HEARD Sri G.S. Chaturvedi, learned Senior counsel for the appellants and the learned A.G.A. for the State. This Criminal Appeal arises from the judgement of the Additional Sessions Judge, Court No. 2, (Special Judge, D.A.A.), Banda, dated 27.9.2006. The prosecution case mentioned in the F. I.R., which was lodged at 9.20 p.m. on 9.8.1991, by Constable Surendra Singh, P.W. 4 at P.S. Tendwari was that the informant and Constable Gopal Yadav were doing picketing duty regarding the movement of trucks at a school situate near Semari Nala. At about 8 p.m., two empty trucks came from the direction of Banda. The informant and Constable Gopal Yadav asked the two trucks to proceed after making a convoy for the sake of security, but the two trucks drivers did not heed the prayer, but kept on proceeding, whilst looking in the direction of the police personnel on duty. The deceased Constable Gopal then approached the truck from the western side and flashed his torch and tried to stop the trucks, but the trucks did not heed his request. The truck occupants refused to stop the truck. The driver asked the four persons who were sitting in the rear truck to pull the 'sala ' inside and to kill him. Then they pulled Constable Gopal inside and the truck rapidly rushed towards Tenduwari. The informant and one other Constable chased the truck. About 2 or 3 furlongs away, they found Constable Gopal 'scorpse lying on the road, where he had been thrown after being murdered. His uniform etc. was torn, but his rifle was missing. The miscreants had fled with his rifle, and the cartridges in its magazine. The truck driver and their companions were said to have been recognized in the cabin light and in the torch light flashed by the witnesses, but because there was slush and mud due to rains, the truck number could not be identified. The informant then proceeded to the police station leaving Gopal in a half dead condition along with Home Guard Bhagirath, P.W.1.
(2.) ON the informant 'sreport a case was registered at case crime number 214/91, under sections 307, 394 IPC. Mahesh Babu Yadav commenced the investigation of this case. He sent the injured Gopal to Hospital, where he was declared dead. The case was then converted from one under section 307 to one under section 302 and 394 IPC. On 10.8.1991, inquest was done on the body of the deceased. The body was forwarded for autopsy to District Hospital, Banda, along with the relevant police papers. Post mortem was conducted on 10.8.1991 at 4 p.m., at the District Hospital, Banda, by Dr. M.L. Anandani, PW 2. The following ante mortem injuries were seen: - 1. Abrasion 2 cm x 0.5 cm on left chin. 2. Abraded contusion 3 cm x 0.5 cm as dorsal aspect of right hand ulnar side. 3. Abraded contusion 2 x 1.5 cm at dorsal aspect of right elbow. 4. Abraded contusion 1.5 cm x 1cm at dorsal aspect of right elbow, 2cm below injury No. 3. 5. Multiple abrasion in an area of 30 x 6 cm over dorsal and lateral aspect of forearm and arm. 6. Abraded contusion 20 cm x 34 cm over anterior aspect and lateral aspect of left abdomen and upper left thigh, 10 cm away from umbilicus. 7. Abraded contusion 29 cm x 30 cm over right upper thigh and lower part of abdomen over anterior and lateral aspect. During investigation, truck No. URQ 3660 was said to have been involved in this incident. Its driver was the appellant Ayoob and the accompanying persons were Margoob, Asloob and Fazil. The said persons were made baparda and investigation was done. On the basis of identification, a charge sheet under sections 302, 394 IPC was submitted against the appellants Ayoob and Margoob, Asloob and Fazil. On 2. 2002 a charge was framed against the appellants and Asloob under section 394, 302 read with section 34 IPC. The appellants pleaded not guilty and claimed trial. The prosecution has examined P.W. 1 Home Guard Bhagirath, P.W. 2 Dr. M.L. Anandani, P. W. 3 H.C.P. Har Govind Singh, P.W. 4 Retired Constable Surendra Singh, P.W. 5 S.I. Ram Swaroop and P.W. 6 Constable Jairam Prajapati. P.W. 1 Home Guard Bhagirath proved the identification memo (Ka 1). P.W. 2, Dr. M.L. Anandani, conducted autopsy (Ext. Ka -2) on the body of the deceased Constable Gopal. P.W. 3 H. C.P. Har Govind Singh prepared the check report (Ext. Ka -3) and the G.D. (Ext. Ka -4) and the recovery memos of plastic shoe from the deceased (Ext. ka -5). Recovery memo of 45 cartridges of 303 bore rifle and "Vindolia" cloth (Ext. Ka -6) and the charge sheet (Ext. Ka -7). The said charge sheet was proved by this witness because the Investigating Officer Mahesh Babu Yadav had died and could not be examined. P.W. 4 Constable Surendra Singh proved the F.I.R. (Ext.Ka -1A). P.W. 5 Ram Swaroop proved the inquest report (Ext.Ka -8), letter for C.M.O. (Ext. Ka -9), report R.I. (Ext. Ka -10), challan nash (Ext. Ka -11), photo lash (Ext. Ka -12), sample seal (Ext. Ka -13). P.W. 6 Constable Jai Ram Pratap proved the site plan, recovery of rifle and cartridges (Ext. Ka -14). The site plan of seizure of Truck No. URQ 3660 (Ext. Ka -15) and site plan (Ext. Ka -16). As Asloob absconded at the stage of 313 Cr.P.C. hence the appellants Ayoob and Margoob were examined under section 313 Cr.P.C. They denied having participated in the incident and stated that they would give evidence, but as a matter of fact they led no evidence. According to Dr. M.L. Anandani, P.W. 2 who conducted post mortem on the corpse of Constable Gopal Yadav on 10.8.1991, the deceased was 28 years in age. Some vomit and other materials were coming out from his nose and mouth and faeces had leaked from his anus. On dissection the 7th, 8th, 9th and 10th ribs were fractured. Lung, diaphragm, and the left spleen were lacerated. On the right side the 10th and 11th ribs were fractured. There was no injury on the liver. According to the doctor, the deceased could have died as a result of ante mortem injuries. The doctor stated that injuries Nos. 5, 6 and 7 could have been caused due to accident from a truck or jeep. Injuries 1, 2, 3 and 4 were due to abrasions or by grazing of the body.
(3.) ACCORDING to P.W. 1 Home Guard, Bhagirath, he along with the deceased, Constable Gopal Yadav were doing the duty of passing trucks in convoys on the date of incident near the Semri Nala. He further reiterated the version given in the F.I.R. P.W. 1 tried to stop the two trucks driven by the accused, but they did not stop, and only reduced their pace. P.W. 1 then told the driver that after 4 -6 vehicles had arrived only then the two trucks which were following each other would be allowed to move. In the front truck there was only a driver and in the rear truck there were a driver and three other persons. The two trucks did not stop, but they were proceeding slowly. P.W. 1 and others kept on walking with the truck asking them to stop. Gopal was also following the trucks. Then the driver of the rear truck stated that he should be picked up, which was over heard by P.W. 1 and others. He was running alongside the truck on the side on which the three occupants were sitting with the driver. The three passengers then pulled up the deceased into the truck. By means of torch and cabin light, P.W. 1 saw the incident and identified the accused. The trucks then fled away rapidly with Gopal in it. P.W. 1 and others ran 2 -3 furlongs pursuing the trucks, but they did not stop. After 2 -3 furlongs, P.W. 1 and others saw that Constable Gopal was lying on the ground, he was gasping for breath. His uniform was torn. For some time, P.W. 1 and others stood near Gopal. He had no Government rifle with him, as the truck occupants had taken the rifle away. After some time Gopal succumbed to his injuries at that spot. As it was rainy time, there was mud and slush, hence the truck numbers were unrecognizable. Two persons were coming from the side of Tendwari, and the informant Constable Surendra Singh proceeded to the police station on their scooter, where he lodged the F.I.R. P.W. 1 was called to jail to identify the accused. He recognized all the four accused persons. He signed on the identification memo (Ext. Ka -1), and again identified the accused persons 15 or 20 days after the incident. There were no chippis on the faces of the accused. After 10 -20 minutes of Surendra Singh 'sdeparture, the police has arrived and carried the body to the police station. P.W. 4 Constable Surendra Singh, the informant and the only other eye witness deposed that on the date of incident at about 6.30 p.m., he along with Constable Ram Gopal Yadav, the deceased carrying rifles and cartridges and Home Guard Bhagirath, who was carrying a danda left the police station for checking vehicles. At the school near Semari Nala at about 8 p.m., two empty trucks arrived from the side of Banda, who were instructed to proceed along with other vehicles in a convoy, but the truck drivers did not listen and started moving their trucks slowly. When Constable Ram Gopal Yadav approached the truck from the western side and flashed his torch and knocked on the window, the trucks did not stop. Then the persons in the rear truck picked up Ram Gopal and pulled him inside the cabin and thereafter rushed away with the trucks. P.W. 4 and others chased the trucks and at a distance of 2 -3 furlongs they found that Ram Gopal has been thrown out and he had injuries on his person. His rifle and cartridges with magazine were missing. They claimed to have recognized the accused persons in the cabin and torch light, but because of slush and wet mud the number plates could not be read, as it was the rainy season. After the witnesses reached near Ram Gopal, a scooter arrived, and P. W. 4 proceeded on the scooter to the police station leaving Home Guard Bhagirath to look after the deceased. He lodged the report (Ext. Ka -1) in his writing. P.W. 4 recognized the accused persons in jail after their arrest. The accused persons were arrested from their home in Saharanpur and brought to the police station. They spent the entire night at the police station. The accused persons were examined by the Investigating officer in the presence of PW He however could not remember whether their photographs appeared in the newspaper or not or whether they were photographed at the police station. P.W. 4 did not fire with his rifle on the truck. After P.W. 4 and others stopped the first truck, Ram Gopal hung on the window of that truck, then the driver of the rear truck cried out to pull Ram Gopal inside, then his companions pulled him inside along with his arms. Three submissions have been raised by the learned Senior Counsel for the appellants. Firstly, in the entire examination of the witnesses in Court, no witness has deposed that the appellants who were present in Court were the persons who had participated in the incident, and had actually been seen by the witnesses at the time of incident and had again been identified by them at the test identification parade. It was further contended that the substantive evidence that is the evidence recorded in Court in identifying the unknown accused persons was confusing and it was not possible to record a conviction only on the basis of the test identification evidence.? Secondly, it was argued by the learned counsel for the appellants that there was some evidence that the appellants have been shown to the witnesses in the police station prior to the test identification parade. Thirdly, there was no affirmative link evidence for showing that the appellants were kept baparda at all stages and that their identities had been kept concealed at all stages. Learned A.G.A., on the other hand, argued that there was evidence of baparda and there was no reason for the false implication of these appellants and that there was sufficient evidence for the trial Court to convict the appellants, which had rightly recorded their conviction.;