- (1.) A quadruple of appellants namely Ganga Ram, Chandra Pal, Jeewan and Ram Bahadur, have approached this Court through the instant appeal being aggrieved by their conviction and sentence recorded by VIIth Additional Session's Judge, Bareilly in two connected cases S.T. No. 231 of 1979 (State Vs. Ram Bahadur) and S.T. No. 169 of 1979 (State Vs. Chandra Pal and others) dated 2.2.1981. Three of the appellants Ganga Ram, Chandra Pal and Jeewan were convicted under section 395 I.P.C. and were sentenced to three years RI whereas appellant Ram Bahadur was convicted only for the charge under section 412 I.P.C. and was imposed sentence of nine months RI, which convictions and sentences are under challenge in the instant appeal.
(2.) PENDENT elite this appeal, two of the appellants Jeewan and Ram Bahadur expired and, therefore, their appeals abated. This now has left this Court to consider appeals of rest of the two surviving appellants Ganga Ram and Chandra Pal, who are maternal uncle (mausa) and nephew (bhatija) as Ganga Ram is brother-in-law (Sadhu) of Ved Ram, father of appellant Chandra Pal. Prosecution story stated briefly were that on the intervening night between 25/26.10.1978, houses of informant Manohar Singh P.W. 1, Dwarka Prasad P.W. 2, Ram Swaroop P.W. 3 and Tula Ram were subjected to dacoity by 10 or 13 dacoits, who were armed with blunt objects, country made pistols and gun. Ornaments etc. were looted. Incident was witnessed by Jag Mohan Singh, Nandan Singh, Lal Singh, Mahipal Singh, Lakhan and Chhote. During the course of dacoity, inmates male and female of these houses were belabored by the dacoits, resulting in causing of injuries to three persons Smt. Dai (Ext. Ka-22), Ram Swaroop (Ext. Ka-23) and Smt. Kalawati (Ext. Ka-24). Investigation into the crime ultimately resulted in laying down a charge sheet against the accused persons. During course of the incident, site plan Ext. Ka-21 was prepared by I.O., who had also made recoveries which were proved during trial. Case of the accused persons was committed to the Court of Session's and to establish their guilt, prosecution examined informant Manohar Singh P.W. 1, Dwarka Prasad P.W. 2, Ram Swaroop P.W. 3 as fact witnesses. Rest of the formal witnesses included Dharamvir Singh P.W. 6, Nandan Singh P.W. 7, Kewal Ram P.W. 8, Raghunandan Lal P.W. 9, Ram Autar Arun P.W. 12, Udai Pal Singh P.W. 13, D.D. Dayal Jaiswal P.W. 14 and S.I. Bhawan Singh P.W. 17. Noted here is the fact that evidences of Ram Bahadur P.W. 4, Jagdev Prasad P.W. 5, Shri Ram Sharma P.W. 10, Ram Bahadur P.W. 11, Ram Chandra Verma P.W. 15 and Ramvir P.W. 16 were tendered on affidavits, which were taken on record by the trial Judge. In their statements under section 313 Cr.P.C., accused denied prosecution allegations and claimed their false implication because of enmity. In their defence, Arun Kumar Goel D.W. 1 was examined by the accused. Trial Judge after marshaling of facts, critically appreciating evidences tendered before it, vide impugned judgment of conviction and sentence, came to the conclusion that charge against the three appellants Ganga Ram, Chandra Pal and Jeewan was established under section 395 I.P.C. and, therefore, convicted them for the said charge imposing sentence of three years RI. Trial Judge further opined that the charge against appellant Ram Bahadur was established only for an offence under section 412 I.P.C. because of the recovery of a transistor and, therefore, convicted him for the said charge and imposed sentence of nine months RI. For rest of the accused namely Ali Hussain, Mahendra and Babu Ram, trial Judge opined that prosecution had failed to establish the charge against these three appellants and, therefore, had acquitted them of all the charges.
(3.) ON the aforesaid facts, this appeal came up for hearing before this Court after passing of decades. None appeared for the appellants and, therefore, Dr. Abida Syed, Advocate was appointed as Amicus Curiae to assist the Court and argue the appeal. Castigating the impugned judgment of conviction and sentence, learned amicus curiae submitted that so far as two surviving appellants are concerned, they are close relatives. Appellant no. 2 Chandra Pal along with his father were a co-villagers and, therefore, because of enmity between the informant and the said appellant Chandra Pal that he has been falsely implicated in the incident. In this respect, reliance was placed on the testimony of informant Mahohar Singh P.W. 1 at paragraph 11 and statement of Dwarka Prasad P.W. 2 vide paragraph 3 of his depositions. It is submitted that Manohar Singh P.W. 1 is a liar as he intentionally concealed the truth of earlier litigation pending between appellant and them which fact had been admitted by Dwarka Prasad P.W. 2 in paragraph 3 of his deposition. It was further contended that in the earlier dacoity, Ved Ram father of appellant Chandra Pal was implicated. Prosecution did not bring on record any material as to what happened in the said incident but that happening indicates that there was no love labour lost between the two sides and there were litigations pending in between them. It is, therefore, contended that it is preposterous to cogitate that appellant Chandra Pal and his maternal uncle (mausa) will go and commit dacoity in the present incident. Castigating further, it is submitted that no specific role, weapon, attire etc. was spelt out by any of the fact witness so far as these appellants are concerned, and, therefore, their participation in the crime has not been established beyond any reasonable doubt. It is next argued that mere ipse dixit of fact witnesses, when enmity is admitted between the rival sides should not be taken to be sufficient enough, credible and cogent to convict the appellants. It was contended that in absence of reliable, confidence inspiring materials, parrot like statements of prosecution witnesses should not be taken to be sufficient to affirm guilt of the appellants and, therefore, they are entitled to acquittal. It is further submitted that nothing was recovered from the possession of these two appellants and, therefore, their participation in the incident is extremely doubtful. Learned amicus curiae went on to contend that a co-villager will not dare to commit dacoity in his own village specially in the house of his enemy to be roped in additional charge. Primarily on these submissions, it was contended that the appeal of both the appellants be allowed and their conviction be set aside. Sri Sangam Lal Kesharwani, learned AGA per contra argued that the two appellants had veiled their faces which got untied during the incident and therefore they were identified. They had taken sufficient precaution to conceal their identities but providence was not on their side and they were identified. There was sufficient light of thatch burn, torches, lantern, which were not challenged by the accused and, therefore, identification of known persons during the incident, which must have occurred for quite sufficient time was not difficult. He was, therefore, submitted that the appeal lacks merit and be dismissed.;