(1.) ACCUSED appellants Anopsingh, Umedsingh and Ugamsingh have been convicted by the learned Addl. Sessions Judge, Jaipur District, Jaipur for offences under secs. 392 and 394 of the Indian Penal Code and accused Jaisingh was convicted by the same judgment under sec. 392 read with sec. 397 of the Indian Penal Code and also under sec. 394 of the Indian Penal Code and sentenced to various terras of imprisonment and fine under these offences. It is against this judgment of the learned Additional Sessions Judge dated 3rd January, 1966 that this appeal has been filed by them jointly.
(2.) THE prosecution case against the appellants was that on 14th April, 1964, at about 5 p. m. all the four accused persons came to village Jhunsa. Accused Jai Singh was armed with a single barrel 12 bore gun and the rest of the accused had Lathis in their hands. It is alleged that the accused entered the house of prosecution witness Surajmal in order to commit robbery, Jaisingh went up the roof of the first floor of the house and Umedsingh was deputed at the gate of the house and the rest of the two started ransacking the house. Boduram uncle of Surajmal who was a sleeping in a shop just near the gate of the house came out, but he was given a beating by Umedsingh and was dragged inside the house in order to handover the keys of the locks where valuables were kept. Mst. Gulabi, widowed sister of Boduram was also alleged to have been given a beating when Mst. Gulabi and Boduram refused to handover the keys. Jaisingh opened fire in the air in order to scare away the villagers, but inspite of this fire, it is said that the villagers assembled and they challenged the dacoits. THEreupon all the dacoits came out of the house and took to their heels, but they were followed by the villagers who wanted to apprehend them. THE prosecution story further reveals that while running the dacoits were dropping down the looted articles on the way. During the pursuit Jaisingh opened fire at the villagers to scare them away, but the villagers proceeded in their pursuit and some of the villagers received injuries of gun fire at the hands of Jaisingh. THEreafter the accused were over-powered by the villagers and according to the prosecution case there was a scuffle between the villagers and the accused persons and it is said that the villagers succeeded in their pursuit to apprehend the dacoits at a distance of about one mile from the village. According to the prosecution, the dacoits had decamped with cash worth about Rs. 2200/-, gold ornaments viz. , a gold chain and gold buttons and certain woollen clothes of Surajmal but all these things were dropped by the dacoits when they were being hotly chased by the villagers and therefore, the stolen articles were recovered out of which gold buttons and woollen clothes were seized by the Station House Officer Rashid Khan (PW 26 ). Surajmal constable who was deputed at the Out-post of Badal came to know at about 7 O'clock in the evening that a dacoity had taken place at village Jhunsa and therefore, he sent a telegraphic information to the Police Station, Renewal about the incident and thereafter he proceeded to the place of occurrence. Lajjaram L. C. on receiving information reached village Jhunsa at 8 45 p m. where he recorded the first information report lodged by Surajmal (Ex. P-21 ). Meanwhile Premchand Head Constable (P. W. 15) also reached the spot and started Investigation. Balu (P. W. 11) produced before Premchand Head Constable one 12 bore gun, one lathi and two bags which he is alleged to have taken from the possession of the accused persons when they were apprehended in the field. Prem Chand (P. W. 15) drew up the seizure memo of these articles which is Ex. P-l on the record. THEreafter Rashid Khan, Station House Officer, reached the village at about 1. 45 a. m. Surajmal produced five gold buttons before the Station House Officer as having been found by him lying on the path in front of his house which according to him were stolen by the accused persons during the commission of the offence. THEse buttons were seized by the Station House Officer under seizure memo Ex. P-4. One Ranbirsingh then produced six alleged stolen clothes before Rashid Ahmed which were also seized by him under seizure memo Ex. P-3. While lodging the first information report it was disclosed by Surajmal that all the stolen articles which had been thrown by the accused while running away and which had been picked up by the villagers, had been scattered inside his house and therefore, Rashid Khan instructed the inmates not to enter the house till it was inspected by him in the morning. Next morning Rashid Khan inspected the house but he did not find anything scattered in the house of Surajmal. THEreafter he prepared a site plan Ex. P-26 at the instance of Surajmal. It is alleged by the prosecution that the accused persons received severe injuries during the scuffle. All the four accused persons were then sent for medical examination to the Primary Health Centre, Renewal on 15th April, 1964. Dr. Brahm Dutt (P. W. 27) examined them. Accused Jaisingh was found to have sustained as many as 13 injuries out of which injury No. 12 was suspected to be a fracture and he was advised for X-ray. Accused Anopsingh received 8 injuries. Accused Ugamsingh also received on his person seven injuries and Umedsingh accused had also received seven injuries. Those villagers who received injuries at the hands of the accused persons were also sent for examination and they are Bhagwan Sahai, Hanuman, Hukamsingh, Jamuna, Lallu, Ramniwas, Balu and Roda. Dr. Shyamnath Mishra (P. W. 14) found minor injuries on their person. THE other four villagers Raghunath Singh, Ramdeo, Devisingh and Lalu were examine d by Dr. Brahm Dutt on 15th April, 1964 and they were also found to have received injuries on their person, but all of them were minor.
After investigation, a challan was put up in the court of the Magistrate, First Glass, Sambhar against the accused appellants for offences under secs. 394, 392 and 397 of the Indian Penal Code. The learned Magistrate came to the conclusion that a prima facie case was made out against all the four accused persons and therefore, he sent them to the court of session to stand their trial for the said offences.
The appellants denied the charge and pleaded that on the date of occurrence they had gone to village Jhunsa in order to negotiate the marriage of Anop Singh's daughter with one Raghuvir Singh of that village. Prosecution witness Narain Singh was related to the accused and therefore, they went to his place where they took liquor. Narain Singh demanded Rs. 5/- in place of Rs. 3/- as the price of the bottle of liquor and at this a quarrel started between Narain Singh and the accused persons. They further said that thereafter they left the village, but they were followed by 4-5 persons and they were apprehended by them and they were given a severe beating and thereafter they foisted this false case over them.
The prosecution produced as many as 27 witnesses in this case out of whom PW. 1 Manphool, PW. 2 Mst. Gulabi, PW 3 Bhagwan Sahai, PW. 4 Narain Singh, PW. 6 Chandmal, PW. 7 Ramdeo, PW. 13 Lalya and PW. 23 Surajmal are said to be the eye witnesses of the occurrence. Surajmal is the person at whose house this robbery is alleged to have taken place and Chandmal (PW. 6) is his brother. Out of these prosecution witnesses Bhagwan Sahai and Ramdeo received injuries from the appellants' fire by 12 bore gun which is alleged to be in the possession of accused Jaising. On the basis of the prosecution evidence, the trial court came to the conclusion that the four accused appellants committed theft at the house of Surajmal and thereafter decamped with a booty which they had to throw on the way when they were being pursued by the villagers and therefore, the learned Judge convicted and sentenced them as said above.
Learned counsel for the appellants has urged that if the statements of these prosecution witnesses are closely scrutinised then the only inference that can be drawn therefrom is that absolutely a false case has been foisted by the villagers of village Jhunsa on the appellants so that they may not be hauled up for having given merciless beating to the accused persons. In support of his argument he pointed out certain anomalies in the prosecution case which according to him go to show that this was really no case of theft but the allegation of theft was cooked by the villagers in order to save their own skin.
I will deal with the arguments of the learned counsel for the appellants one by one. It is urged by Mr. Thanchand that the first information report in this case was lodged when Lajjaram, L. C. reached the village at about 8. 45 p. m. It may be noted here that this report was lodged after four hours of the occurrence and by that time, according to the prosecution story as it developed at the trial, all the articles which were looted were handed over to Surajmal and his brother Chand Mal. But it is significant to note that no description of the looted articles was given in document Ex. P. 21. According to the prosecution story the accused persons dropped the stolen articles on the way when they were making good their escape and were being hotly pursued by the villagers. But there is not a single name appearing in the first information report of those persons who might have picked up those articles from the way. It is also not mentioned in this report that Boduram and Mst. Gulabi were given beating by the accused persons in order to extract keys from them. At the trial the witnesses have said that Boduram and Mst. Gulabi were beaten by the dacoits. These lacunae pointed out by the learned counsel for the appellants are very material and they can be explained on this hypothesis only that at the time when the first information report was lodged Surajmal did not know what articles had been taken away by the alleged dacoits. But this was not possible because the story later on developed that Surajmal himself presented the gold-plated buttons to the Station House Officer when he came at about 1. 45 a. m. for which seizure memo Ex P. 24 was drawn by him. In the report Ex. P. 21, Surajmal is stated to have said before the Station House Officer that he had found these buttons on the road in front of his house. But when Surajmal came in the witness-box he said that these buttons were lying on the Chabutra when he came to his house after the dacoits had left the place. Balu (P. W. 11) is another witness who may be mentioned in this connection. He is that person who had taken from the appellants their gun, lathi and two Thelas. This witness says that these buttons were found in the bag of Jaisingh. These discrepancies could not be explained by the learned Dy Govt. Advocate. If these buttons had really been found by Surajmal soonafter he came to his house, then there was no reason why he did not make a mention of this in the first information report lodged with Lajjaram. Premchand Head Constable arrived at the village after the first information report Ex. P. 21 was drawn up by Lajjaram (P. W. 25 ). To this witness, Balu (P. W. 11) presented the gun, a lathi and two bags for which seizure memo Ex. P. 1 was prepared by Premchand (P. W. 15 ). At that time when the bags were given to Premchand no mention was made by Balu (P. W. 11) that the bag belonging to Jaisingh contained buttons. In such circumstances the seizure of buttons as a stolen article, is highly doubtful.
Ex. P. 3 which is the seizure memo of the woollen clothes shows that one Ranbirsingh produced these clothes before Rashid Khan (P. W. 26) as the stolen articles. But Ranbirsingh has not been produced in the witness box by the prosecution. There is no mention in the first information report of these clothes. It is urged that these are torn clothes and no man of intelligence would like to commit theft of such rotten clothes. Balu (P. W. 11) states that there is no person of the name of Ranbir Singh in his village. From what places these clothes were collected by Ranbir Singh is also not known to the prosecution. It is really strange that Surajmal did not know anything about the alleged stolen clothes having been collected by Ranbirsingh at the time when the first information report was lodged or when Premchand Head Constable seized the gun etc. Curiously enough, these clothes and buttons were presented at the time when Rashid Khan, Station House Officer, went to the place of occurrence. Learned counsel for the appellants argues that it occurred to the complainant only after the Station House Officer arrived in the village that something must be produced as a stolen article otherwise the case of robbery would not be believed and in order to fill in this lacuna these articles were presented before the Station House Officer as the stolen articles. If these articles were really stolen by the appellants and were picked up by the villagers then there is no reason why those villagers who had picked them up, were not produced in the witness box and that they were not presented before Lajjaram or Premchand when they came to the spot soonafter the alleged occurrence.
There is yet another circumstance which throws a cloud of doubt on the prosecution case. According to Surajmal the robbers had decamped with a cash of 1600/- or Rs. 1700/ -. His brother Chandmal gives a different amount viz. , Rs 2200/-but the currency notes stolen by the robbers were neither produced before the Sub-Inspector nor they were found scattered as alleged by Surajmal in the first information report, inside his house. One more article is added to the list of stolen property at the trial and it is the golden chain. But no one knows where the golden chain was and who recovered it and where it had gone thereafter. It is very easy to say that a particular article has been stolen, but when it is recovered, it is the bounden duty of the complainant to produce it before the court in order to ascertain that he did really possess that article at the time theft had been committed in his house. If really cash had been taken away by the alleged robbers and the golden chain had been really stolen from Surajmal's house, then these two articles must have been produced before the Station House Officer. The Station House Officer in his statement has categorically said that next morning when he inspected the house of Suraj Mal he did not find anything scattered. It is not the case of the prosecution that the stolen articles which were scattered in Surajmal's house after the alleged robbery, were collected by the inmates of the house and were kept in safe custody.
It is the definite case of the prosecution that Jaisingh was armed with a. 12 bore gun and the rest of the three accused persons had lathis in their hands. At the time when the accused persons were said to have been over-powered by the villagers who hotly chased them, Balu (P. W. 11) snatched away the gun from the hands of Jaisingh and only one lathi was taken away by him from the rest of the accused persons. Balu is not prepared to state as to where the lathis possessed by the other appellants had gone. He did not extend any explanation as to why the lathis of the other two accused persons were not taken possession of by the pursuers. At the time when Premchand Head Constable came to the village, Balu (P. W. 11) submitted only one gun and one lathi. This circumstance goes to show that the accused persons had only one gun and one lathi and two of them were without any arms. If it were the intention of the accused appellants that they should commit robbery in the village in day light, then it cannot be conceived that the appellants could have gone to the village without any arms in their hands. The absence of the recovery of lathis by the pursuers from the possession of the other two accused persons is a circumstance which is incompatible with the theory of robbery advanced by the prosecution.
It is the unanimous case of the prosecution witnesses that as soon as the robbers came to the village, Jaisingh who had a gun in his hand went up-stairs on the roof of the first floor of the house of Surajmal and from there he fired many shots to scare away the villagers. Jaisingh, according to the prosecution witnesses, came down only when the villagers had collected outside the house of Surajmal and were trying to over-power Umedsingh who was guarding the gate of the plundered house. It is not the prosecution story that Jaisingh fired any gun shot when he came down from the roof. But Bhagwan Sahai (P. W. 3) says that he sustained the gun shot injuries just in front of the house of Surajmal. The other witnesses Surajmal, Chandmal, Mst. Manphooli and Mst. Gulabi did not say that any fire was opened by Jaisingh at the door of the house. It is also significant to note that no empty cartridge is recovered either from the roof or in front of the house where Bhagwan Sahai is alleged to have been injured by the gun shot at the hands of Jaisingh. The empties were recovered from places which are shown in the site plan Ex. P. 26 at the points 18, 19, 20 and 21 where Jaisingh is alleged to have used the gun to scare away the villagers who were pursuing them. No empties were found from the Thella of Jaisingh also which was recovered from his possession by the pursuers. In the absence of the empties at the roof of Surajmal's house and also in front of his door, the story of using the gun by Jaisingh from the roof and in front of the house of Surajmal becomes doubtful. It can also not be forgotten that at the time when the Station House Officer prepared the site plan Ex. P. 26 at the instance of Surajmal, he pointed out a different point No. 17 where there were exchange of lathi blows between the party of Jaisingh and the villagers. But no one of the prosecution witnesses have stated at the trial that there was a fight between Jaisingh and his party and the villagers at that point which has been marked 17 in the site plan Ex. P. 26. All these lacunae in the prosecution case make their story very doubtful and it is difficult for this Court to uphold the findings of the trial court.
For the reasons above mentioned I am inclined to extend the benefit of doubt to the accused appellants. The appeal is therefore, allowed, all the accused persons are acquitted of the charges for which they have been convicted by the trial court and the sentences awarded to them thereunder are set aside. The appellants are in jail and they shall be released forthwith if not required in any other case. .