Palok Basu - (1.) THOUGH the three appeals appear to have a bulky record these can be decided by a short judgment dealing with the vital points argued by the learned counsel for the appellants. Babu Ram Misra has filed Criminal Appeal No. 270 of 1987, Vinod has filed Criminal Appeal No. 325 of 1987 (he has also sent an appeal from Jail numbered as Criminal Appeal No. 593 of 1988) and Sharif Ahmad has filed Criminal Appeal No. 361 of 1987 against the judgment and order of the III Additional Sessions Judge, Bahraich, dated 21-3-1987, in Sessions Trial No. 174 of 1986 convicting and sentencing all the appellants under sections 395/397 IPC to seven years' rigorous imprisonment.
(2.) A dacoity is said to have been committed at the house of one Chhotey Lal in the intervening night of 19/20th October, 1985. Chhotey Lal lodged an FIR. at Police Station Motipur, district Bahraich in the presence of the Station Officer. It was lodged at 9.15 A.M. on 20-10-1985. In order to prove its case the prosecution examined several eye-witnesses. The appellants have denied their participation in the crime and have attributed their false implication due to enmity. Babu Ram and Sharif Ahmad are residents of an adjoining district Lakhimpur-Kheri. Sharif Ahmad had proved the two telegrams, said to have been sent by his relatives, suggesting that they were arrested on 29th October, 1985, and not on 7-11-1985 as suggested by Ganesh Ram Sharma, the aforesaid Station Officer. It may be remembered that the prosecution's consistent case is that Vinod, Sharif Ahmad and Babu Ram appellants were arrested by Ganesh Ram Sharma on 7-11-1985. To complete the chronology, the appellants were put up for identification against whom there is no other evidence. The identification parade was held on 9-1-1986 which was attended by seven witnesses, namely, Chhotey Lal, Jagsen, Girdhari, Nankanna, Hardwari, Lalji and Gendey Lal. Out of these seven, six witnesses identified all the appellants but Girdhari failed to identify Babu Ram, Gendey Lal failed to identify Vinod whereas Hardwari failed to pick up Sharif Ahmad. The learned counsel for the appellants Sarvasri Vinod Kumar Singh, U. K. Shahi. P. K. Punhari and Sirdhar Bajpai have criticised the evidence of identification on two grounds. Firstly, the theory of arrest on 7-11-1985 as propounded by Ganesh Ram Sharma, I O., must be rejected as utter lie. Secondly, external aid has, in fact, been accorded to the prosecution witnesses so as to make these 'too-good' results available. Six out of seven witnesses- picking up the alleged dacoits who were allegedly available for momentary glimpse in the light of torch (While Dhibri having not been available to the witnesses for identification according to the finding recorded by the Trial Judge) would not have been so sufficient as to enable the prosecution witnesses to retain the impressions of the accused in their minds after about four months of the incident.
(3.) SRI Jyotindra Misra, learned A.G.A. appearing for the State has placed reliance on the authority reported in the case of Thanedar Singh v. State of U. P., 1981 ACC. (SOC 3 item no. 5). He further argued that the trial court was right in placing reliance upon the testimony of Ganesh Ram Sharma, the Arresting Officer and, therefore, the identification evidence furnished by the alleged witnesses should be believed. Before adverting to this point, another important fact on record requires mention. Chhotey Lal, the alleged person in whose house the dacoity was committed, named two accused specifically in his deposition and they were Ram Naresh Pandit and Baithoo both were allegedly residents of the village of the informant. The Investigating Officer filed a final report against those two persons. No complaint was filed by Chhotey Lal nor did he make any application before the Trial Judge for invoking the powers under section 319 CrPC. The result, therefore, is that Chhotey Lal to the extent of having named Ram Naresh Pandit and Baithoo as dacoits committing loot at his house, stands discredited by the prosecution itself. It is not denied that the two telegrams have been duly proved on record having been sent by the relatives of Sharif Ahmad, addressed to the S.S.P., Lakhimpur-Kheri. It has been alleged therein that Sharif Ahmad was arrested from his residence and that his where abouts are not known. This has happened only about 5 or 6 days before the arrest has been allegedly shown by the prosecution. The close proximity of the telegrams with the date of alleged arrest shown by Ganesh Ram Sharma, the Investigating Officer, leaves no room for doubt that the defence version of arrest of Sharif Ahmad in connection with this case is highly probable.;