- (1.) THE sole appellant Dharamvir @ Master @ Dan Singh is aggrieved by his conviction under section 395 I.P.C. and imposed sentence of five years RI recorded by IVth Additional Session's Judge, Aligarh vide impugned judgment and order dated 15.11.1980 passed in S.T. No. 282 of 1980, State Vs. Habib and another relating to P.S. Jawan, District Aligarh.
(2.) PROSECUTION case in nut-shell, as was scripted by informant Kehar Singh, in his written FIR Ext. Ka-1,was that, on the intervening night between 22/23.1.80 at 11 a.m., ten or twelve dacoits, out of whom four or five were armed with guns and rest of them were armed with lathis and knife, trespassed into informant's house alighting from roof staircase and, after breaking open latch of the room, where informant and his issues were sleeping, with the help of a crowbar (Sabbal) trespassed into it. Informant's father, who was sleeping in another room, woke up because of commotion and came into the enclosed courtyard (aangan) where he was caught and belaboured by the dacoits who had bet other house inmates also including P.W. 1. Some of the dacoits, who were moving to and fro, were flashing torches and were speaking local dialect. The dacoits were identified by the informant, his father, brother Soran Singh and Rajendra Singh in the light of torches as well as lantern light , which was burning in the court yard. On hue and cry raised by the house inmates, village pradhan Saudan Singh and co villagers Harish Chandra, Bhudev, Mawasi and Tota Ram arrived at the scene of the incident. Resorting to firing, dacoits escaped from informant's house and then entered into the house of Harish Chandra where also they committed dacoity and had belabored Kailashi wife of Harish Chandra. They subsequently committed dacoity in the houses of co-villagers Mawasi , Tota Ram, Chhatra Pal, Karan Singh, Megh Singh, Rohan Singh, Babu Lal, Bhudev, Ram Chandra and Badam Singh. List of looted articles consisted of silver ornaments, both of male and female, cash money, attires, watches, table lamps etc. Fir about the incident was lodged by Kehar Singh at the police station Jawan, on the following morning 23.1.1980 at 6.30 a.m., as crime no. 18 of 1980, under sections 395, 397 I.P.C. against unknown dacoits, which Fir was registered by head moharir Jagat Singh by preparing chik Fir Ext. Ka-2 and GD entry Ext. Ka-3 . Investigation into the crime was taken up by Nagendra Kumar Sharma S.O. Jawan, P.W. 4., who prepared site plan, Ext. Ka-4, examined the lantern and the torch and had given it in custody vide Ext. Ka-5 and Ka-6.PW4 arrested the appellant accused Dharamvir @ Master @ Dan Singh and another accused Habib at 4 p.m. on 23.1.80 and had put them under veil and lodged them in police lockup at police station Jawan. From the possession of the appellant one pistol and two live cartridges and looted article in a bag were recovered. Concluding investigation, P.W. 4 had charge sheeted both the accused, appellant as well as Habib, vide Ext. Ka-7. Case of the accused, after they being summoned, was committed to the Session's Court, where it was registered as S.T. No. 282 of 1980, State Vs. Habib and another. Both the accused were charged with the offence of dacoity. During trial, prosecution relied upon testimonies of five of it's witnesses, out of whom, Soran Singh P.W. 1, Rajendra Singh P.W. 2 were fact witnesses. Formal witnesses included head moharir Chetram Singh P.W. 3, who had taken the accused under veil to Aligarh jail along with constable Shivbran Singh, N.K. Sharma S.O. P.W. 4 is the Investigating Officer and Sri Fasi Uddin, Special Executive Magistrate P.W.5 who had conducted identification parade of the accused on 19.4.1980 and had proved the identification memo Ext. Ka-8. In their statements under section 313 Cr.P.C., accused claimed their false implication. Appellant Dharamvir @ Master @ Dan Singh took additional defence that he was shown to the witnesses P.W. 1 and P.W. 2 and that is how he was identified only by P.W. 1 and P.W. 2 Soran Singh and Rajendra Singh out of thirteen witnesses, who were paraded in the identification proceedings. Thus, numerological, identification of the appellant is less than even 20%.
(3.) TRIAL Judge after scanning the prosecution version and vetting of the evidences produced before it concluded that prosecution had failed to establish guilt of accused Habib and, therefore, acquitted him. It however convicted appellant Dharamvir @ Master @ Dan Singh only on the basis of identification by the two witnesses and had sentenced him for five years RI, which conviction and sentence is under challenge in the instant appeal. Appeal was filed in 1980 and after a gap of three decades when it was called out for hearing, nobody appeared for the appellant and hence Sri P.C. Srivastava Advocate was appointed as amicus curiae to assist the Court in disposal of the appeal as to keep the appeal pending on the dockets of this Court would not have served any useful purpose. Castigating and criticizing the impugned judgment of conviction and sentence, it is contended by learned amicus curiae that identification by two persons out of thirteen persons who had taken part in identification proceedings was wholly insufficient to convict the appellant. It is further submitted that P.W. 1 Soran Singh had testified before the Court that from the time dacoits entered into the house till he ran out of his house, he could not identified any of the dacoits and in view of such a deposition, identification of the appellant by P.W. 1 could not be relied upon. It is next submitted that Rajendra Singh P.W. 2 was not a witness during investigation nor he was interrogated by the I.O.u/s 161 Cr.P.C. and he is a got up witness and, therefore, no reliance can be placed on his testimony. It is further submitted that appellant is not named in the FIR and prosecution allegation that the dacoits were identified in the torch lights flashed by them on their own faces is patently absurd. It is further submitted that the appellant was arrested on 23.1.1980, following day of the incident, but his identification was conducted on 19.4.80, more than seventy seven days after and, therefore, no reliance on such an identification can be placed. It is next submitted that Kehar Singh informant was not examined by the prosecution nor the record reveals as to why he was withheld and, therefore, prosecution version is incredible. Learned amicus curiae further submitted that the entire prosecution version is false and cannot be affirmed for the reason that although co-accused Habib was identified by six persons and from him looted articles were also recovered but the trial Judge disbelieved his involvement in the crime and acquitted him. Trial Judge did not even cared to frame charge under section 412 I.P.C. and, therefore, entire prosecution version remains unsubstantiated. It is further submitted that the prosecution allegations that unknown dacoits were bare faces and had not attempted to conceal their identities is also an unnatural conduct on which no reliance can be placed nor any credibility can be attached to such testimonies by fact witnesses. Primarily on these submissions, learned amicus curiae submitted that the conviction of the appellant is unsustainable and he deserves acquittal. Learned AGA however endeavoured to support the judgment of conviction.;