- (1.) S. K. Phaujdar, J. The present appeal is directed against an order dated 8-9-1979 by the VIIIth Additional Sessions Judge, Meerut, in S, T. No. 107 of 1978. By the said order, the learned Sessions Judge had convicted the two appellants under Section 395 IPC and sentenced each of them to undergo R. I. for 7 years. They were on bail during trial and both the appellants were granted bail after the filing of the present appeal. Both of them, however, filed to appear on 14-11-1994 when the case was fixed and taken up for hearing and their counsel also did not appear. Accordingly, this court cancelled the bail bond of both the appellants. This court also directed issuance of warrants of arrest against them. In pursuance to the said warrants of arrest, appellant Rampal was apprehended and he has been in custody since then. When the appeal was heard, Salim had not complied with the court's order nor was he apprehended. Accordingly, judgment was reserved with a direction that Salim should in the meantime surrender in compliance with the order of the court cancelling his bail. Salim did sutrender on 9-2-1995 before the CJM, Meerut, and was taken into custody and an information thereof through an affidavit was given by his brother-in-law on 13-2- 1995.
(2.) THE case against the appellants and another was started on an FIR lodged at Baraut station, Meerut on 10-12-1976 at 10. 30 a. m. for an incident that took place in the previous night. It was stated in the FIR that on the night between 9th/10th December, 1976, the grand-son of the complai nant, Hoshiyar Singh, was sleeping in his shop. It was a moonlit night. THEre was also a lantern burning in the shop. During mid-night, somebody knocked the shutters of the shop on the plea of purchase of. When the shop was opened, 8 to 10 persons entered the shop. And had a gun with him, two were having country- made pistols while the others were variously armed with danda etc. THEy had torches also with them. By show of gun and pistol and by beating the complainant, the miscreants demanded the keys and they also took away valuables kept in racks. THE miscreants had also sprinkled kerosene oil on the complainant and threatened him to be set on fire. THE victims made a hue and cry and different persons of the locality came there with torches and lathies and challenged the dacoits. THE miscre ants opened fire at the villagers also and left the place. THE FIR gives a list of materials stolen and it also alleged that the above named grand son, Rajesh Kumar and other witnesses had identified amongst the miscreants, three persons of that very village, who were Amichand, Salim @ Gandhi and Rampal. This Amichand died during trial and only Salim and Rampal faced the trial. Hoshiyar Singh was medically examined on 11-12-76 at 12. 45p. m. He had one bluish red contusion on the thigh and some scaled abrasions. Accused, Rampal, was arrested in village Khera Islampur (the village of occurrence itself) on 12-12-1976 from his house. His house was searched but nothing incriminating was recovered. The house of Salim was also searched and nothing was recovered from there also. The prosecution examined only five witnesses to prove the case. PW 1 is Hoshiyar Singh, the complainant, PW 2 is Tikaram, PW 3 is Rajesh Kumar, PW 4 is the Inspector of Police who had conducted the investigation and PW 5 is Sripal, the scribe of the FIR. The defence of the accused, as indicated in their statements under Section 313 Cr. P. C. is that they have been falsely implicated due to village rivalry.
(3.) THE FIR was lodged by one of the victims. It spoke of sprinkling of kerosene oil on his person by the miscreants. THEre is, however, no indica tion if his clothes were taken charge of by the Investigating Officer, to verify this assertion. THE Investigating Officer, in his cross-examination, rather accepted that when he had gone to the place of occurrence, no clothes soaked with kerosene oil were made over to him. THE FIRs spoke of assault on Hoshiar Singh by danda. Such assault, it true, were from enemy hands with a view to extort the keys from him. This man was however, not sent to the doctor on the date of lodging of the FIR itself. Ho was examined a day later and the injuries were only contusions and abrasions which do not fit it with the gravity of the alleged assault. THE maker of the FIR, Hoshiar Singh in his FIR clearly stated that after the dacoits had left, his grand-son and others claimed identification of Ami Chand, Salaem and Rampal. THE FIR gave details of the weapons held by different miscreants. But although these persons were identified, the FIR does not describe as to who was holding what weapon. THE FIR also does not ascribe any specific role to these three persons who were known from before. It would have been natural to describe the specific rules of all these persons in the FIR when they were known persons. THE FIR is silent if these person had tried to conceal their identity in any manner. THE FIR was lodged at 10 on the next day, i. e. after a lapse of 10 hours. Even if this delay be not taken into account, there is no reason why after the incident and after the villagers had assembled, no attempt was made to go to the house of any of the named accused persons in the same village. An immediate visit could have established either their absence sugges ting their probable participation in the crime, or would have negatived such theory had they been found present in their houses. A timely raid, in case of their participation in the decoity, could have helped recovery of stolen articles. It is pertinent to note here that nothing incriminating was recovered from their houses when the Investigating Officer visited on 12-12-1976. Pw 1 in his statement in court had asserted that the miscreants sprinkled kerosene oil on his clothes and tried to set fire. This allegation was made in the FIR also but non-production of the oil-soaked clothes goes to a great extent to dispel, or, at least, to doubt this averment. In his statement, he asserted that he had been seriously injured (Kafee Chot Lagee Thee), and there was bloodshed also. In the next breath, he changed his version to say that there was no bloodshed. Whether there was bloodshed or not, the injuries that have come through the report of the doctor, although he had not been examiaed, were all superficial and theory of serious injuries must be ruled out. This Pw 1 had stated that the witnesses in the FIR were all his close neighbours. Only one of them was, however, examined in court.;