- (1.) CHALLENGE in this appeal by the four appellants Yad Ram A-1, Chhida A-2, Ram Swaroop A-3 and Tunda A-4 are to their conviction under Section 395/397 IPC recorded by IIIrd Additional Session's Judge, Mathura in S.T. No.7 of1976, State Vs. Yad Ram and others connected with S.T. No.395 of 1976, State Vs. Tunda, both relating to P.S. Chhata, district Mathura vide impugned judgement and order dated 24.5.80 and imposed sentence of 8 years R.I. for both the offences.
(2.) PROSECUTION allegations against the appellants,as was dictated orally by informant P.W.1 Jagdish, at P.S. Chhata, district Mathura, on 21.1.74, which was scribed by Head Constable Prem Pal Singh P.W.3, were that P.W.1 was a resident of village Vidawali, P.S. Chhata, district Mathura. On the intervening night between 20/21.1.74 at about mid night, 7 or 8 dacoits raided his house and trespassed into it from the front door, which was unlached. Shrieks of house inmates and informant's wife awakened co villagers. Some of the dacoits started committing dacoity in informant's house whereas others entered into the house of co-villagers Sanwalia and started committing dacoity. Hue and cry by house inmates had attracted co-villagers Balu S/o Chanda Gadaria, Tejpal, Bhoji @ Bhajan Lal sons of Malkhan, Kamal Singh s/o Patola, Mahendra s/o Ratan Singh, Babu s/o Munshi and Ram Singh s/o Dhani Ram at the spot armed with lathis and they all challenged the dacoits, who then resorted to firing causing injuries to the villagers. P.W.1 meanwhile, set ablaze heaps of thatch, which was kept in his precinct, as a result of which flames sufficient for identifying dacoits lighted the scene. Sanwalia's flashing of torch also facilitated identification of the dacoits. Women inmates of the house, informant's wife Smt. Bataso, Jaldevi daughter of Sanwalia, Angoori his daughter-in-law were belaboured during the dacoity as a result of which they sustained injuries. Two of the miscreants were armed with country made pistols whereas, one each was armed with a gun and an axe, while rest of the them had lathis. Two of the dacoits were having a thin lanky physic and rest of them were of average built and heights and some of them had long hair. One of the miscreants of average height was having a dark coloured complexion. Dacoits were identified in the flame lights emitting from flames and flashes of torch light and could be identified by the witnesses if brought before them. Most of the dacoits were wearing soiled cloths, tahmads, dhotis and kurta etc. and none of them were speaking local dialect. When the villagers mounted pressure, dacoits fled away from the scene of the incident along with looted bounty. Injured persons were carried to the police station in a bullock-cart alongwith three empty cartridges, two metal caps, one loin wrapper (Tahmad), one muffler and a club(dunda), which were left behind by the dacoits while fleeing from the spot and were got deposited. In the aforesaid dacoity Rs.2336 cash, two silver bracelets, weighing one and a half kilogram, and 1/4 kgs of other silver ornaments along with some lady drappers were looted. On the dictation by P.W.1 Prem Pal Singh, Head Moharrir, P.W.3 scribed FIR Exhibit Ka-1, on the basis of which, he prepared GD entry Ext. Ka-3. Left over articles by the dacoits, material Ext.1 to Ka-5, were seized regarding which a seizure memo Ext. Ka-2 was also prepared by P.W.3. Investigation into the crime was commenced by Harvir Singh P.W.11, who was acting as S.O. Chhata. After copying the FIR, P.W.11 recorded investigatory statements of informant, Mahendra, Tejpal, Bhoji @ Bhajan Lal, Jaldevi, and Babu and thereafter came to the spot at 7 a.m. where he interrogated and recorded 161 Cr.P.C. statements of Ram Singh, Sanwalia, Angoori and Subhash. Conducting spot inspection I.O. prepared site plan Ext. Ka-13. Subsequent thereto, he collected ashes, Ext. Ka-6 from the spot and prepared it's seizure memo Ext. Ka-4. I.O. also seized Sanwalia's torch and prepared it's seizure memo Ext. Ka-5. Injured persons, who had arrived at the police station were dispatched for their medical examination. Same day P.W.11 recorded statements of Kamal Singh, Smt. Bataso, Jawahar Singh, Brijlal and others. Thereafter, apprehending the accused, I.O. gave a report for their identification.Report regarding conducting of identification of Tunda A-4 is Ext. Ka-16 and report of conducting identification of rest of the dacoits is Ext. Ka-17. A-4, albeit was arrested on 14.5.74 and was put in police lock up on 15.5.74 but his identification was got conducted on 24.7.74 by P.W.8 N.A. Vishwanthan, SDM Sadabad, who had proved the identification memo Ext. Ka-7. According to the said SDM, A-4 was correctly identified by witnesses Kamal Singh, Mahendra, Sanwalia and Jagdish and was wrongly identified by one another witness Babu. Identification of rest of the dacoits were conducted by SDM Civil Defence, R.N. Saxena, who had renounced the world and had embraced sainthood and therefore prosecution examined N.N. Batra P.W.10 and led secondary evidence to prove identification memo of those accused appellants Yad Ram, Ram Swaroop and Chidda as Ext. Ka-10 to Ka-12. For the same purpose, prosecution had also examined Budhesh Chandra, Assistant Nazir P.W.13 and led secondary evidence regarding Ext. Ka-3, Ka-10, Ka-11, Ka-12 and defence Exhibits Kha-1 and Kha-2. Concluding investigation I.O. had charge-sheeted the accused vide Ext. Ka-14 and Ka-15. By the former charge-sheet only appellant Tunda A-4 was charge-sheeted whereas rest of the accused A-1, A-2, A-3 were charge-sheeted by vide Ext. Ka-15. Genuineness of the injury reports of injured persons were admitted by the defence and it's formal proof were dispensed with and therefore, it were exhibited as Ext. Ka-20 to Ka-27, the contents of which are noted below:- Exhibit Ka-20 Examined Sri Kamal Singh s/o Patola aged about 22 years r/o Bidawli, P.S. Chhata (Mathura) at 5 P.M. Dt. 21.1.74 police Constable brought by CP. No.322 Sri Mahendra Singh of P.S. Chhata. M.I.:- Scar 1" x 3/4" on the front of the left leg. Injuries: 1. One gun shot wound of entrance. It is 1/8" x 1/8" x 1/8" on the back Rt. forearm upper 1/3. One shot recovered simple. Due to gunshot probable Duration-About 3/4 day. 2. Another gun shot wound of entrance. It is 1/8" x 1/8" x skin on hte Lt. skin centre. Simple due to gun shot. Exhibit Ka-21: Examined Sri Bhajan Lal s/o Malkhan aged about 50 yrs. r/o Bidawli, P.S. Chhata (Mathura) at 4.45 P.M. Dt. 21.1.74 Police Constable, Brought by CP. No. Abdul Waheed No.2380. M.I.:- Scar on the front of the Left leg. Injuries: 1. 3 small gun shot wounds of entry each 1/8" x 1/8" x skin to deep in an area of 2 and 1/2" x 1"on the front of the Rt. thigh middle 1/3" one shot removed and sent to police. 2. Small contused wound 1/4" x 1/4" x skin on the back of the left middle finger middle 1/3. 3. Contusion 1" x 1" on the top of the Head centre. All are simple injureis No.2 is due to gunshot and the ret are due to Blunt weapon. Probable duration fresh injuries. Exhibit Ka-22 Examined Smt. Batasa W/o Jagdish Singh Thakur aged about 25 yrs. r/o Bidawali, P.S. Chhata (Mathura) at 5 p.m. dt. 21.1.74, police Constable brought by C. Abdul Waheed No.238 C.P. of P.S. Chhata. M.I.: Moleon the left supra clavicle. Injuries: 1. Contusion 2" x 1 and 1/2" on the Rt. Cheek. 2. Contusion 2" x 1" on the back of the left shoulder. 3. Contusion 1/2" x 1/8" x skin on the top of the left index finger, slightly under neath. NATURE: All are simple injuries, and are due to blunt weapon. Probable duration:- fresh Injuries. Exhibit Ka-23 Examined Mahendra s/o Sri Gyan Singh, Thakur aged about 16 yrs. r/o Bidawli, P.S. Chhata, Mathura at 4.30 P.M. on 21.1.74 Police Contable brought by C/-Abdul Waheed No.238 CP of P.S. Chhata. M.I.:- Mole on the Epigastre region. Injury: 1. 30 small gun shot wound of entry each 1/8" x 1/8" x skin is deeper tissue in anarea of covering the whole Rt. leg starting from the knee of the Ankle. one shot taken out and sealed and sent to the police. Simple injury and due to gun shot. Probable Duration:- Fresh injury. Exhibit Ka-24 Examined Sri Bhoji s/o Sri Malkhan Thakur aged about 40 yrs. r/o Bidawli, P.S. Chhata at 4.45 a.m. dt 21.1.74 police Constbale brought by C/-238 of Abdul Waheed. M.I.:- Mole on the centre of the forehead. Injuries:- 1. Contusion 2 and 1/2" x 2 and 1/2" on hte front of the left thigh lower 1/3rd. 2. Contused wound 2 and 1/2" x 1" skin, on the inner side the right knee. Both are simple injuries and are due to blunt weapon weapon. Probable duration:-Fresh injuries. Exhibit Ka-25 Examined Ballu s/o Chanda Baghaley Thakur aged about 40 yrs. r/o vill. Bidawli P.S. Chhata (Mathura) at 4.00 a.m. dt. 21.1.74 Polcie case brought by CP Abdul Waheed No.238 P.S. Chhata. M.I.:- Soar on the front of the left index finger. Injuries: 1. One gun shot wound of entry 1/8" x 1/8" to deeper tissues on the right side chest 3 and 1/4" upper and inner to the Right nipple. Simple and due to gun shot. Probable duration:-fresh injury. Exhibit Ka-26 Examined Sri Tejpal aged about 35 yrs. r/o Bidawli, P.S. Chhata s/o Sri Malkhan Thakur Rajpur at 3.30 am. dt. 21.1.74 police case brought by C/Abdul Waheed No.238 P.S. Chhata. M.I.:-Mole on the Rt. Side fore-head. Injuries:- 1. 29 gun shot wound of entry each 1/8" x 1/8" x skin to deeper tissue in an area of 1 and 1/2 feet x 1" on the Rt. side chest. 2. 2 Gun shot wound of entry one on the Rt. side neck and the other outer Rt. upper lip each 1/8" x 1/8" x skin to deeper tissue 6" apart. 3. 33 small gun shot wound of entry each 1/8" x 1/8"x skin to deeper tissue on the back of the Rt. hand and shoulder. 4. six small gun shot wound of entrance each 1/8" x1/8" x skin to deeper tissue in an area of foot and 3" on the front of the left forearm.
(3.) SHOTS have been taken and sealed and sent to the police. All are simple injuries and are due to gun shot. Probable duration:-Fresh injuries. Exhibit Ka-27 Examined Jal Devi aged about (paper-torn) yrs. W/o Sri Narain Singh Rajpur Thakur, r/o vill. bidawali P.S. Chhata (Mathura) at 3 a.m. dt. 21.1.74. Brought by c/-238 Abdul Waheed of P.S. Chhata. M.I.:-Two mole on the centre of the forehead. Injuries: 1. Incised wound 1 and 1/2" x 1" x muscle deep, on the chin and partly it is bone deep.(Through and through) Two Rt. Lower present others are shaking only but bot dislocated. 2. Contusion 2" x 2" on the top of the left shoulder. Probable duration:-Fresh.injuriesNo.1is due to sharp cutting instruments and No.II is due to blunt weapon. Both are simple injuries. Charge-sheeting of the accused resulted in their summoning and finding their case triable by Session's court, it was committed to Session's court where it was registered as S.T. No.7 of 1976, State vs. Yad Ram and two others and S.T. No.395 of 1976, State vs. Tunda. IIIrd Additional Session's Judge, Mathura charged all the accused, A-1, A-2, A-3, A-4 and one other dacoit Pyare Lal for offences under Sections 395/397 IPC on 30.2.79. All the accused abjured these charges and claimed to be tried and hence to establish their guilt and bring home the charges, their prosecution commenced. 5. To establish the charge and bring home accused guilt,prosecution tendered evidences of 13 of it's witnesses out of whom Jagdish P.W.1, Mahendra P.W.2, Kamla Singh P.W.5 and Bhoji P.W.6 were fact witnesses. Formal witnesses included Head Mohirr, Prem Pal Singh P.W.3, Rang Lal P.W.4, Hira Singh P.W.7, N.A. Vishwanathan P.W.8, Pitam Singh P.W.9, N.N. Batra P.W.10, Harivir Singh P.W.11, Satish Chandra P.W.12 and Budhesh Chandra P.W.13. All the accused in their statements under Section 313 Cr.P.C. pleaded their false implication and denied incriminating circumstances appearing against them in the prosecution evidence. IIIrd Additional Session's Judge, vide impugned judgement and order dated 24.5.80, held that prosecution has successfully establish the charge against the four appellants and therefore, convicted them under Sections 395/397 IPC and sentenced them to 8 years R.I., which conviction and sentence is under challenge in the instant appeal. When the appeal was called out for hearing, after more than three decades, Sri V.K. Tripathi, learned Advocate appeared for A-2 but for rest of the appellants A-1, A-3 and A-4 none appeared. Perusal of the record of the appeal revealed that appellant A-3 Ram Swaroop had died and, therefore, his appeal was abated. Therefore, for rest of the two appellants A-1 and A-4, Sri Vinay Saran, Advocate was appointed as amicus curiae to argue the appeal and assisted the court. Castigating the impugned judgment of conviction and sentence, both the counsels submitted that the incident occurred in the dark wintry night of 20/21.1.1974 and, therefore, there was no opportunity for the witnesses to identify any of the dacoits. There was absence of proper source of light facilitating identification in the wintry night, when there should be fog and mist and consequently, flickering of the flames of burnt heap of thatch and flashing of torches will not facilitate such an identification. In the FIR, informant had nowhere mentioned that he had also flashed his torch during the incident and the only torch, which is mentioned in the FIR was used by Sanwalia but, very queerly, prosecution did not examine him during trial and, therefore, for the of use of torch, prosecution story is incredible and cannot be attached with any authenticity. Next it was submitted that there is absence of evidence on record that the accused persons were kept under veil and, therefore, the entire identification proceedings in their respect is unconvincing and unreliable and, therefore, cannot be attached with any credence.;