V. K. Mehrotra, J. - (1.) BY his judgment dated December 21, 1974, the Ilnd Additional Sessions Judge, Azamgarh, convicted Hausila under section 396 IPC and sentenced hint to undergo imprisonment for life in sessions trial No. 264 of 1974 (State v. Hausila). Hence the present appeal.
(2.) IT is said that on the night between March 1 and 2, 1973 a gang of five armed dacoits raided the house of Surya Nath (PW 3) situate in village Junarder Patti police station Ahraula district Azamgarh of whom two, including the appellant, stood at the door and the rest committed dacoity in the house after breaking open its main door. Hearing the noise of the breaking open of the door, PW 3 Surya Nath who was sleeping in a chhapper along with his uncle Siri at a distance of about six paces got up, flashed his torch and on sighting the dacoits ran towards the village raising an alarm. He reached the Sehan of Millu Gadori where Ram Dular (PW 5) of village Payagpur of which the abadi is close by, had also arrived from his house which is at a distance of about 200 paces. IT is said that Ram Ugrah of village Payagpur along with Sambhal Kewat had reached the grove of Siya Ram near the Sehan aforesaid and saw the incident in the light of torches. Likewise, two other persons, namely, Rajdeo and Phirtu had also arrived at the scene of the incident along with their torches and further there was a light of a lantern in the outer Osara of one Nirkhi, an uncle of Surya Nath whose house adjoins the house of the latter to its east. Balli, another uncle of Surya Nath has a house further to the east and all these houses had thatched roof with tiles. Having heard the alarm, Nirkhi and Balli woke up and ascended on the tiled roof from where they started throwing tiles on the dacoits. The two dacoits who stood at the door were recognised to be the appellant Hausila and his brother Ram Sanehi, and it is said that Hausila was armed with a gun and fired three shots with it of which the last hit Balli while he was on the tiled roof. The dacoits ran away after committing the dacoity. An oral report was lodged by Surya Nath at the police station at about 2.30 a.m. the same night giving his version of the incident and also naming the appellant and his brother. At 7 45 a.m. on March 2, 1973, the Medical Officer of Ahraula Dispensary (Dr. G. D. Prasad) examined Balli and incorporated the injuries sustained by him in the memo Ext. Ka. 4. Balli was sent by Dr. G. D. Prasad to the District Hospital but he died before he could reach there, and it was his dead body which reached the Hospital at about 11.45 a.m. On March, 3, 1973, postmortem examination of the body was made at 3.15 p.m. by the Superintendent of the District Hospital, Azamgarh (Dr. N. Gupta) who found the following ante mortem injuries on the person of the deceased : In the opinion of Dr. Gupta, the injuries could have been caused by gun shot on the night between March 1/2, 1973 at about midnight and were sufficient in the ordinary course to cause the death of Balli. Station Officer Rajeshwar Singh (PW 8) was present at the police station when the oral report was lodged by Surya Nath about the incident there. In this report it was, inter alia, mentioned that three dacoits were breaking open the door of the house and two dacoits were standing outside. Of the two, one had a gun. The report, however, does not contain any mention of the fact that the appellant was armed with a gun or that he fired a shot with it. The Station Officer started the investigation forthwith and eventually submitted a charge sheet (Ext.Ka-6) after completing the same and after the appellant and his brother who had been named in the first information report had surrendered at Faizabad.
(3.) TO establish its case, the prosecution examined the reporter Surya Nath as PW 3 ; Ram Ugrah Singh as PW 4, Ram Dular Singh as PW 5 and Nirkhi as PW 6 as eye witnesses of the incident. They deposed to the prosecution version and asserted that the appellant was the dacoit who was armed with a gun and had fired with it causing fatal injuries to Balli deceased. We shall deal with their evidence in further detail later. The appellant denied his participation and his case was that he had been implicated falsely on account of enmity with the witnesses. The learned Sessions Judge, as noticed earlier, believed the prosecution witnesses and convicted the appellant. Surya Nath in his deposition as PW 3 asserted that he had recognised two dacoits in the light of the torches and the lantern whom he knew from before and the appellant was one of them. According to the witness, he was awakened by the noise of the (breaking open of the main door of his house and upon lighting his torch he found that three dacoits were breaking open the main door and two were standing in front of the door in the Sehan with their guns. The statement that two of the dacoits were armed with guns is inconsistent with case of the prosecution as set out in the first information report itself in which it was specifically mentioned that of the two dacoits who stood in the sehan, one had a gun. In answer to the very first question in his cross-examination, Surya Nath admitted that the appellant and his brother Sanehi were residents of village Madhupur which was at a distance of only one furlong from the village of the witness. The circumstance that the appellant belongs to a village which is only at a distance of about a furlong from the scene of the incident makes is highly improbable that he would participate in a dacoity so close to his own village. The normal human instinct is to avoid detection as a participant in an offence like dacoity and even if one is tempted Ho do so, it is expected that he would take precaution to conceal his identity, it is not the case of the prosecution that the appellant took any such precaution at concealing his identity. The decision of the Supreme Court in the case of Ram Shanker Singh v. State of U.P., AIR 1956 SC 441 clearly lays down that one would not normally expect a person to commit the offence of dacoity in his close neighbourhood. The latter decision of that court in the case of Siva Ram v. State of Bihar, AIR 1973 SC 51 upon which reliance has been placed by the trial Judge was decided on its peculiar facts. In that case it had been found that a dacoity had taken place in the house of one Sita Ram who had sustained injuries during the course thereof and injuries had also been sustained by his family members. Siya Ram (accused-appellant) had been named almost immediately after the incident and had been captured by two chaukidars along with his co-accused Kirandeo while they were running away from the village in suspicious circumstances and at an unusual hour. The testimony of the eye witnesses, as corroborated by the aforesaid circumstances, had been found to be reliable Under these circumstances, the Supreme Court observed as under : "On the first contention, it was urged that........which made him abandon any caution which he would have otherwise taken while participating in such an incident.";