JUDGMENT
M.C. Jain, J.
1. These two appeals are connected with each other, having arisen out of the same judgment dated 24.11.1981 passed by Sri S.N. Tiwari, the then II Additional Sessions Judge, Ghazipur in Sessions Trial Nos. 282 and 337 of 1980. Vijay Yadav, Umesh Kumar Sinha and Ram Pravesh alias Pankhia alias Ganesh were tried in Sessions Trial No. 282 of 1980 and Surendra Kumar Singh in Sessions Trial No. 337 of 1980. All the four have been convicted under Section 396 I.P.C. and sentenced to life imprisonment.
2. We propose to decide the two appeals by this common judgment. The appellants in Criminal Appeal No. 152 of 1982 are Vijay Yadav and Ram Pravesh alias Pankhia alias Ganesh whereas Surendra Kumar Singh and Umesh Kumar Sinha are the appellants in connected Criminal Appeal No. 153 of 1982. At the hearing of the appeal, none appeared from the side of the appellants, though the appellants of Criminal Appeal No 152 of 1982 are represented on record by Sri Gajendra Pratap. Advocate. The appellants of Criminal Appeal No. 153 of 1982 are represented on record by Sri Narendra Kumar, Advocate. We are deciding the appeals on merits after hearing learned A.G.A. and going through the record as per the dictum of the Supreme Court in the case of Bani Singh v. State of U.P. (AIR 1996 SC 243).
3. The incident took place in between the night of 13/14.4.1980 at about 1 O’clock in second class Bogie No. 5632 SLR 7 Up Toofan Express between Dildarnagar and Jamania Railway Stations within G.R.P. Circle Mughalsarai. The F.I.R. was lodged on 14.4.1980 at 4.10 A.M. by Gulab Yadav PW 1 and entry in G.D. was made by Head Constable Ganga Dayal Singh PW 14 as case crime No. 99 under Section 396 I.P.C. at Police Station G.R.P. Mughalsarai.
4. As per the prosecution case, Sattar (deceased), Liyakat (deceased), Modeen PW 2, Ishhaq PW 3, Jahoor, Farid and Sharif, residents of Koshikalan (Mathura) were cattle merchants. After selling cattle in Cattle Fair at Bihata Bazar in Bihar, they were returning home with good amount of money which was with Sattar (deceased). After the occurrence, currency notes of Rs. 61,850/- were recovered by the police from near the dead bodies of Sattar and Liyakat on 14.4.1980 at Mughalsarai Railway Station. The train in question was boarded by the above persons at Bihata Railway Station at about 9.30 P.M. on 13.4.1980. It appears that their return with money was scented by the accused appellants and their other two companions who had also boarded the same compartment at Railway Station, Bihata with these businessmen. The compartment was over crowded. Some passengers were standing in the aisle. These businessmen sat in the aisle (gallery with their belongings. There was light of electric bulb in the gallery of the compartment. Since the businessmen were carrying money, they carefully observed their six fellow passengers who boarded the same compartment and who stood near them. The train stooped at Dildarnagar Railway Station at about 12.50 A.M. One or two minutes after the movement of the train from Dildarnagar Railway Station, six persons who had boarded the compartment alongwith these businessmen, stood up near them. Two of them (Ram Pravesh alias Pankhia alias Ganesh and Surendra accused appellants) were holding contrymade pistols which they placed upon the chests of Liyakat and Sattar and asked them to hand over whatever they had or to face pistol shots. They, however, succeeded in snatching the pistols from those two miscreants and caught them by their hands after a scuffle, but the other four miscreants got their two companions released from the grip of Liyakat and Sattar. After getting themselves released, these two asked the other four companions to hand over grenades to them so that they could kill Liyakat and Sattar. Their companions were having bags. One of them (Ram Pravesh alias Pankhia alias Ganesh) took grenades (countrymade bomds) from the bag and threw 2-3 grenades towards the business. There was a bang and people started crying in the compartment. Liyakat and Sattar received serious injuries. The train, which by that time had reached the outer signal of Dildarnagar Railway Station, stopped. When the other passengers tried to apprehend the culprits, they jumped outside and threw 2-3 more bombs towards the compartment. There was again a bang and cries were raised. About 11-12 passengers inside the compartment received injuries. When the dacoits were throwing bombs towards the compartment, one of them shouted that the police had arrived and they should run away. They then made their escape good.
5. J. Marey, Guard of the train PW 9 and Shah Abdul Alim, Assistant Station Master, Dildarnagar, PW 18 supported the prosecution case that a dacoity had taken place inside the compartment of the train in question.
6. Chandra Bhan Singh, S.O. PW 19 in whose presence the F.I.R. was lodged immediately started the investigation in the case. He immediately came to the platform where the 7 Up Toofan Express train was standing. He got the compartment No. 5632 detached from the train and parked it at another platform. S.I. S.K. Tripathi PW 12, Incharge of the Police Outpost, Dildarnagar alongwith 2-3 constables also reached the train.
7. The dead body of Liyakat was found in the toilet. One countrymade pistol and a 303 bore cartridge were also recovered from the toilet from near his dead body. Similarly, a countrymade pistol along with one 303 bore cartridge had been recovered from the place where the dead body of Sattar was lying. The two countrymade bombs were found inside the compartment. One was lying inside the gallery and another under the single seat in the southern side. Necessary Fards were prepared.
8. The accused appellants were arrested the same day i.e., on 14.4.1980 at different times and places. Vijay Yadav and Umesh Kumar Sinha were arrested by Head Constable Ram Kewal Upadhyay PW 10 at 7.45 A.M. Their interrogation led to their involvement in this crime. Arms and ammunition were recovered from them. They were made Bapurdah and brought to Police Outpost Jamania. They tried to abscond from police custody at about 8.30 A.M. by hurling bombs by their outside associates and injuring Constable Kedar Singh, but were again arrested on a thorough search from a field at a distance of 50–60 yards. They were again made bapurdah. The arrest of the accused Ram Pravesh alias Pankhia alias Ganesh and Surendra Singh was made on 14.4.1980 by S.I. Shambhoo Singh PW 8 and S.I. R.P. Pandey PW 11 respectively a little before at 8.30 P.M. and a little before 10.30 P.M. respectively a little before at 8.30 P.M. and a little before 10.30 P.M. respectively. Surendra Singh was found injured when he was arrested. Both of them were made bapurdah.
9. The injured of the incident were Irfan Ali, Bansdhar, Matadeen, Sadhu Dass, Shyam Milan, Farid, Kamruddin, Suraj Prasad, Rafiq and Yaseen who received injuries such as contusions, cut injuries and lacerated wounds. Dr. Suhasan PW 5 and Dr. Udai Singh PW 6, who examined the injured, stated that their injuries could be caused by explosion.
10. The post-mortem over the dead bodies of the deceased Liyakat and Sattar had been conducted by Dr. P.N. Gupta PW 7 on 15.4.1980 between 12.05 P.M. and 2 P.M. About 1 1/2 days had passed since they died. The injuries including lacerated wounds were suffered by them. The same could be caused by bomb explosion as per the opinion of the Doctor.
11. The accused appellants who were kept Baparda were subjected to identification. The identification in jail had been conducted by Indradeo Singh, S.D.M. PW 17 who proved the test identification memo. They were correctly identified by Gulab Yadav PW 1 Modeen PW 2, Ishhaq PW 3 and Fakir PW 4 who were travelling in the same bogie. Gulab Yadav PW 1 turned hostile. However, Modeen PW 2, Mohd. Ishhaq PW 3 and Fakir PW 4 stood by the side of the prosecution even at the trial. Taking their evidence cumulatively, they supported the prosecution case in full measure proving the participation of all the accused appellants in this crime conclusively. It may be clarified that Modeen PW 2 and Fakir PW 4 identified all the four accused whereas Mohd. Ishhaq PW 3 identified only three of them, namely, Umesh Kumar, Ram Pravesh and Vijay Yadav.
12. The defence was of denial and false implication.
13. Believing the prosecution evidence, the learned trial judge recorded the finding of guilty. Obviously, the case against the accused appellants rests on identification. We have examined the evidence carefully.
14. Most material witnesses of the prosecution were Gulab PW 1 Modeen PW 2, Mohd. Ishhaq PW 3 and Fakir PW 4 who were examined as eyewitnesses. Gulab PW 1 was also the informant and maker of the F.I.R.
15. The conviction of the accused appellants is based on their identification by the witnesses in jail and thereafter in court. We have carefully examined the evidence recorded in the lower court and have cross checked the same with the reasoning and findings given by the learned Sessions Judge. We find that the reasoning and findings recorded by the lower court are consistent with the evidence material on record as would be clear from the discussion that we intend to make hereinbelow.
16. Out of the four eyewitnesses examined before the lower court, named above, Gulab PW 1 (informant) became the court, though he had identified all the four accused appellants at the test identification parade in jail. Admittedly, he was one of the passengers of the compartment in question and was returning to his home situate in Deoria from District Burdwan (West Bengal) where he was in employment. He had boarded the train at Asansol. He, however, stated that the police got the report written by him and that the accused were shown to him and he identified them owing ot the fear of the police. We not that it is crystal clear that he was won over by the accused appellants and that was the reason that he turned hostile. Learned trial judge has given good reasons to come to the conclusion of his having crossed over from the side of the prosecution to that of the accused. When he was confronted with the statement made by him to the Magistrate, he kept quiet for about 15 minutes and then stated that the magistrate had written whatever whatever he liked. It clearly shows that he was not reliable and had been won over. He was so much under the influence of the accused appellants that he disowned the knowledge about explosion of bombs and said that he had heard noise. The conclusion of the learned trial judge is well justified that the testimony of Gulab PW 1 has to be excluded and cannot be relied upon either in favour of the prosecution or against it. We are of the view that the factum of his having turned hostile did not adversely affect the prosecution version at all.
17. Modeen PW 2 and Mohd. Ishhaq PW 3 were travelling with Sattar and Liyakat (deceased), Jahoor, Ishhaq PW 3 were travelling with Sattar witnesses stated that they had carefully observed six persons including the four accused who had boarded the train at Bihata Railway Station. They were watching them till the occurrence because they were carrying money of cattle sale proceeds and apprehended any unforeseen event. According to them, half of the compartment had been used as luggage van and in the remaining half passengers seats were fixed. There were 80-81 passengers inside the compartment and there was great rush. They remained in the gallery and Liyakat took a place near the toilet. When the train left Dildarnagar, two of the accused placed pistols upon the chests of Liyakat and Sattar which they snatched from them. As per these witnesses, the other four miscreants got their companions released. Modeen PW 2 identified the two culprits who first placed countrymade pistols on the chests of Sattar and Liyakat as Ram Pravesh and Surendar Singh accused. He also identified Ram Pravesh, stating that he threw bomb too. He identified all the four accused as the authors of the crime. Mohd. Ishhaq PW 3 correctly identified the accused Umesh Kumar, Ram Pravesh and Vijai Yadav as the authors of the crime. Fakir PW 4 deposed that he was returning in the compartment in question from Patna after attending the Mundan ceremony of his friend’s son. He corroborated the prosecution story and identified all the four accused. He was an unconcerned person and wholly independent. For that matter, Modeen PW 2 and Mohd. Ishhaq PW 3 also had no connection or enmity with any of the accused appellants to implicate them falsely. All these eyewitnesses of fact categorically stated that the electric bulb was inside the compartment and they had very well seen the culprits in the light of the same. It sounds to be quite natural that the businessmen, who were returning with money with them, had boarded the compartment having electric light and a number of other passengers to ensure safety.
18. It is established that the accused appellants had boarded the same compartment with the businessmen at about 9.30 P.M. at Bihata Railway Station and the incident occurred at about 1 O’clock in the night. Fakir PW 4 had boarded the same compartment even earlier at Patna. All of them were in the same compartment quite for long. To say in other words, they were very well in a position to identify the accused appellants 14 days later at the identification parade. So, even on excluding the testimony of Gulab PW 1 who obviously seems to have crossed over to the side of the accused appellants, the testimony of three other eyewitnesses, namely, Modeen PW 2, Mohd. Ishhaq PW 3 and Fakir PW 4 is of sterling character proving the four accused appellants to be the culprits of this heinous crime. It may be stresses at the risk of repetition that Modeen PW 2 was categorical in his statement before the court that the accused Ram Pravesh and Surendar Singh were the persons who placed countrymade pistols upon the chests of Liyakat and Sattar and asked them to hand over whatever they had. This witness further deposed pointing towards Ram Pravesh that he threw bombs upon the deceased. Mohd. Ishhaq PW 3 recognised the dacoits inside the compartment at the time of commission of crime and correctly identified three accused appellants Umesh Kumar, Ram Pravesh and Vijai Yadav. Fakir PW 4 identified all the four accused appellants at the test identification parade as well as in the Court. The circumstance that Mohd. Ishhaq did identify only three accused appellants is an indicator that witnesses saw the accused appellants at the time of incident and thereafter only at identification parade. Had it been otherwise, Mohd. Ishhaq PW 3, who was the co-businessman, would have also identified Surendar Singh. May be that he had not been able to fix up the image of Surender Singh in his mind at the time of the incident and as such he could not identify him. So, even on ignoring the evidence of Gulab PW 1 (as it is bound in to be), there are two good identifications of Modeen PW 2 and Fakir PW 4 against the accused appellants Surendra Singh and of three of Modeen PW 2, Mohd. Ishhaq PW 3, and Fakir PW 3 and Fakir PW 4 were residents of far off places and there could be no reason whatsoever for any of them deposing falsely against the accused appellants who could not show any enmity either the local police.
19. It has also to be kept in mind that the incident took place in the night of 13/14.4.1980. The police apprehended the four accused appellants the very next day (14.4.1980). One of them, Surendar was found injured also when arrested. They were produced before the Chief Judicial magistrate, Ghazipur the next day i.e. 15.4.1980. No time gap intervened. The identification proceedings were conducted on 28.4.1980 (only 14 days after the incident).
20. Shambhoo Singh, S.I. PW 8, Ram Kewal Upadhyay, H.C. PW 10 and R.P. Pandey, S.I. PW 11 have lent corroboration to the prosecution case as to the arrest of the accused appellants on 14.4.1980 itself. As per their testimony, they were kept Bapurdah after their arrest till they remained at the police station. Shukurullah Khan, S.I. PW 13 and Constable Ramadhin Ram PW 20 stated that the accused remained Bapurdan so long they were in their custody. Shukurullah Khan, S.I. PW 13 had brought all the four accused appellants Bapurdah from Police Station Zamania to Chief Judicial Magistrate’s Court at Ghazipur and had then lodged in Bapurdah condition the accused Vijai Yadav, Surendar Singh and Umesh Kumar in jail. The accused Ram Pravesh had been made over Bapurdah for treatment at District Hospital, Ghazipur in the custody of Constable Ramadhin Ram PW 20.
21. The presence of huge quantity of money near the dead bodies supports the prosecution case. The businessmen i.e. two deceased Sattar and Liyakat, Modeen PW 2 and Mohd. Ishhaq PW 3, Jahoor, Farid and Sharif were returning to their home after selling their cattle. It is quite probable that the miscreants followed them from Bihata Railway Station as deposed by the witnesses and committed this crime. Considering in retrospect the purchasing power of rupee in 1980, the sum of Rs. 61,850/- was a huge amount. The fact that S.I. S.K. Tripathi PW 12 found two countrymade pistols along with cartridges near the dead bodies further supports the prosecution case that the two deceased, namely, Sattar and Liyakat had snatched the pistols from the dacoits. It is also the testimony of the witnesses that Sattar and Liyakat were of strong built. It is not surprising that they snatched the countrymade pistols from the dacoits by overpowering them. It is quite believable that the infuriated criminals lost their balance of mind and threw bombs, not only with a view to avoid the arrest but also with a view to take revenge. It is in medical evidence in the form of post-mortem reports and injury reports that two unfortunate businessmen died of bomb explosion injuries and also bout a dozen others received injuries from the explosion of bombs. Sattar and Liyakat were direct targets of the bombs thrown inside the compartment. As a result, both of them died and number of other passengers received injuries.
22. Another circumstances to be taken note of is that all the four accused appellants were residents of District Patna in the State of Bihar. All of them were arrested near Zamania, District Ghazipur on 14.4.1980. The accused Vijai Yadav and Umesh Kumar were arrested at about 8.30 A.M. in a field near Zamania Police Outpost by Ram Kewal Upadhyay PW 10. Ram Pravesh was arrested in village Payee by Shambhoo Singh, S.I. PW 8 and Surendar Singh in injured condition was arrested near village Derhgaonwa by R.P. Pandey PW 11 at a distance of about four miles from Zamania Railway Station. The arrest of the four accused on 14.4.1980 in District Ghazipur at a distance of about 100 miles from their hometowns renders the prosecution case more probable.
23. The accused Surendar Singh stated that he received injury as he fell down from the train. He also admitted his presence near Zamania Railway Station. The accused Ram Pravesh alias Pankhia stated that he was arrested near Mughalsarai while selling fishes. According to him, he used to live there. His statement about his living near Mughalsarai is inconsistent with the address that he gave in his own statement as Dhanhaswa, District Patna (Bihar). All the four accused stated that the police had shown them to the witnesses at Police Station Kotwali, Ghazipur. There was nothing on record to show that they had been taken to Kotwali, Ghazipur or that the witnesses were taken there. The incident having taken place in between the night of 13/14.4.1980, the accused appellants came to be arrested on 14.4.1980, produced before the Chief Judicial magistrate, Ghazipur on 15.4.1980 and thereafter three of them (Umesh Kumar, Surendar Singh and Vijai Yadav) were lodged Bapurdah in district jail and Ram Pravesh was admitted in district hospital Bapurdah and made over to Constable Ramadhin Ram PW 20. We have referred to these aspects of the matter just to indicate that the accused appellants were putting up a false plea of having been shown to the witnesses before their identification and of their false implication. The fact, as we pointed out, is that neither the local police nor the witnesses of far of places had any enmity or reason to falsely implicate them in this crime Modeen PW 2 and Mohd. Ishhaq PW 3 were the natural witnesses, accompanying the two deceased and returning from Bihata cattle fair after selling the cattle. Fakir PW 4 was also an independent person who was returning from Patna in the same compartment after attending Mundan ceremony of the son of his friend Dukkhi.
24. Thus, on threadbare scrutiny of the evidence on record and on cross checking the same with the findings of the learned trial judge, we find ourselves in agreement with the conclusion that the guilt of the accused appellants is proved to the hilt beyond any shadow of doubt. The four accused appellants were out of the six desperadoes who committed this dare-devil crime in a running train. It makes no difference that owing to the situation that developed at the spot because of the snatching of the weapons of two of them by the deceased (Sattar and Liyakat), they could not succeed in taking away the booty by depriving their victims of the cash they were carrying. They, however, committed murders of two unfortunate cattle merchants and caused injuries to about a dozen other innocent passengers by exploding bombs. The possibility of false implication is completely ruled out.
25. In the result, we find no merit in the two appeals. We hereby dismiss the same.
26. The accused appellants Surendar Kumar Singh, Umesh Kumar Sinha, Vijai Yadav and Ram Pravesh alias Pankhia alias Ganesh are on bail. The Chief Judicial magistrate, Ghazipur is directed to cause them to be arrested and lodged in jail to serve out the sentence of life imprisonment passed against them under Section 396 I.P.C. We also order him to send compliance report within two months.
27. Certified copy of the judgment alongwith record be sent to the lower court immediately.