K.Narayan - (1.) ACCUSED appellant Banwari and Chhotey Lal who stood trial on the charge under Section 393, I.P.C. before Special Judge, (dacoity affected area) Kanpur Dehat in Special Session Trial No. 4 of 1986, were found guilty and were sentenced to rigorous imprisonment for 3 years each and to pay fine of Rs. 500 and in default to undergo imprisonment of three months each. Aggrieved by the same both have preferred appeal from Jail. Sri Raghuraj Kishore was appointed as amicus curiae but unfortunately he has not appeared today before the court.
(2.) I have gone through the record of the case alongwith the learned counsel for the State and proceed to dispose it. An F.I.R. of the instant case was lodged by one Kali Charan on 15.11.1985 with police station Akbarpur, Kanpur Dehat at 19.10 p.m. on 5.11.1985 with the allegations that at about 6.00 p.m. the same day, when he alongwith his wife Ganga Deyee, and daughter Prema Devi had gone towards on the field, Banwari and Chhotey Lal came there and stopped them. Banwari made on attempt to take out the hansli (Sutia) from the neck of Prema Devi but the same could not be taken out. They raised an alarm. Whereupon Banwari assaulted Kali Charan, his wife Ganga Deyee and daughter Prema Devi with lathi of which they received injuries. On their alarm the accused persons ran towards Akabarpur : Sri Raj Narayan Pandey, Amar Singh and Kailash who had arrived at the spot at the same time, chased the accused but they could not be caught but they were well seen while running away. Before proceeding with the evidence, I would like to say something about the allegations of the first information report and the definition of the word robbery in Section 090 of the Indian Penal Code. In every case of robbery there is either theft or extortion. In the instant case, there was no occasion for any sort of Extortion. At best this could be proceeded with an impression of theft. Assuming for the time being that Banwari had made an attempt to commit theft, in order to reach the definition of robbery it would be necessary that in order to commit the theft or in committing the theft or in carrying away or attempting to carry away property obtained by theft, the offender for that and voluntarily caused or attempted to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt, or instant wrongful restraint. All these wrongs which need use of force, have to flow for achieving the end of either committing the theft itself or carrying away or to take away the property obtained by the theft and so on. In the instant case there was noting in the first information report to indicate that even if Banwari had caused the injury it had anything to do with the commission or attempt to commit the theft. It was one thing that Banwari had attempted to take away the hansli (Sutia) where he had failed it and as another that Banwari had made some assault. It may be that the assault was made only to escape from the place or for any other reason but unless the property was taken or was attempted to be taken away (physically) and the cause of causing injury was in that end, the offence of robbery will not be there.
(3.) THIS was only about the first information report, I will next come to the evidence itself as from the first information report it cannot be said that it was not the case where no offence was disclosed. The offence as disclosed by the first information report could be an attempt to commit theft and causing hurt separately punishable under Sections 379 and 323, I.P.C. However, that too will be only against Banwari as there was no specific allegation against Chhotey Lal. Coming to the evidence it may be mentioned that the prosecution had examined P.W. 1 Kali Charan, P.W. 2 Smt.Prema Devi, P.W. 3 Kailash, P.W. 4 Raj Narain and P.W. 5 Amar Singh as eye-witnesses. Out of these Kali Charan and Prema Devi were the so called victims and the rest three were said to have reached the spot. P.W. 3 Kailash though he was mentioned as a witness to have reached the spot in the first information report itself, has stated that when he reached there on the alarm raised by Kali Charan his daughter and his wife, he saw no miscreants. It is something different that he was sought to be declared hostile, a term unknown to the Evidence Act and was put to a cross examination. All that could be done was to ask him question in leading form with the leave of the court under Section 145 of Evidence which is otherwise prohibited by the Evidence Act. Instead he was put by the public prosecutor, his alleged statement recorded by the Investigating Officer. He has denied to have given any such statement. This does not make any difference as the statement given to the investigating officer under Section 161, Cr. P.C. cannot be a substantive piece of evidence in any case. The witness cannot be said to be a simply because he is not stating the facts as contended by the Investigating Officer and if he is not a liar the idea that any witness who had reached on the spot, could have seen the accused persons or not makes a facts difficult to believe. P.W. 4 Raj Narain also stated that he had seen two persons running away from the spot but he could not recognise them. This does not connect accused with the alleged crime.;