- (1.) S. K. Phaujdar, J. Three appellants, namely, Patwa, Man Singh and Lakhan Singh were convicted under Section 397, IPC and were sentenced to RI for seven years each. The appellant Ram Murat was convicted under Section 395, IPC and was sentenced to RI for six years. These four appllants were tried with two more, namely, Ram Raj and Amar Singh. These last mentioned two accused were acquitted on benefit of doubt. The above order was passed by the IIIrd Additional Sessions Judge, Banda, on 18-12-1979 in Sessions Trial No. 236 of 1979. The four appellants, upon admission of the present appeal, were released on bail. It is not disputed that appellant Ram Murat Singh is now dead.
(2.) THE prosecution, which ended in the aforesaid conviction and sentence of the four appellants, was initiated on an FIR lodged at police station Bindawari, District Banda by one Dharampal Singh on 4-4- 1979 at 9. 30 a. m. THE alleged occurrence took place in the previous night at about 12 THE written report that was lodged at the police station was scribed by one Shiv Karan 'singh and was signed by Dharampal Singh. It was stated therein that the complainant Dharampal Singh was sleeping in his Khalihan in the previous night. His wife and other female inmates were sleeping in the house. At about mid-night five miscreants entered the house. THEy were Patwa, Man Singh, Ram Murat and one nephew of Kuber Singh. THEre was also one unknown person who could not be identified. It was stated that Patwa had a gun, Man Singh had a Tamancha, Ram Murat held a lathi and the nephew of Kuber Singh was armed with a gun. THE miscreants had "lights" with them which they were switching on and they could be seen properly in that light. THE miscreants first went to the complainant in the Khalihan, caught hold of him and took him inside the room. THEy assaulted the complainant and his mother and were asking about the valuables. THEy were often coming in and going out. In the Court yard a lantern was buring and in that light also the complainant and the inmates of the house could see and identify the miscreants. THEy took away valuables, a list which was appended to the FIR. THE complainant claimed that he would be able to identify his articles. THE complainant had also claimed that he would be able to identify the unknown person also if seen again. THE miscreants opened fire on him. An alarm raised by the inmates of the house attracted the attention of the villagers Maniya, Bandu Singh and Shri Pal Singh. THEy had also seen the miscreants and identified them in the glow of the "lights" carried by them. THE complai nant stated that he did not come to the police station in the night due to fear. According to the FIR the village of the occurrence, namely, Jauharpur was eight miles north of the police station Bandawari. Upon this FIR, case crime No. 52 under Sections 395 and 397, IPC dated 4-4-1978 was started and investigation was taken up. The lantern burning in the Court Yard was seized. Torches carried by the witnesses were also seized. The injuries of Dharampal Siugh and Smt. Ramkali were medically examined and witnesses were examined whereupon charge sheet was submitted and the case was committed to the court of session. Charge was framed on 12-11-1978 against Patwa, Ram Surat, Man Singh, Lakhan Singh Ram Raj and Amar Singh to the effect that on the night between 3rd and 4th April, 1978, they had come armed with gun, lathi and tamancha to the house of Dharampal Singh in Jauharpur, for commiting dacoity and had forcibly looted ornaments from the persons of the women folk in the house and also the household materials. All were charged for an offence under Section 395, IPC. A further charge was levelled against them to the effect that at the same time and place they had, during commission of the dacoity opened fire from gun and had caused injuries to Dharampal and Smt. Ramkali. Accordingly, they were charged under Section 397, IPC. 4 The prosecution examined, before the trial court, seven witnesses PW 1 was Dharampal Singh. He was the victim and the maker of the FIR and he had allegedly suffered injuries also. PW 2 was Smt. Ramkali. She was the mother of Dharmapal Singh. She had also suffered injuries during the alleged dacoity. PW 3 was Maniya Singh. He did not say anything about the incident or about identification of the culprits. He was declared hostile. PW 4 was one Subedar. He was an alleged witness to the incident and ha also spoke of identification. PW 5 was Shiv Karan Singh he was the scribe of the written report on which the FIR was drawn up. PW 6 was Ram Swaroop He also declined to speak anything about the occurrence or about the identity of any miscreants. He too was declared hostile. PW 7 was Shankar Singh, SI of police. He had conducted the investigation and he had submitted charge sheet. The accused persons were examined under Sec-a 313 Cr PC and they stated were falsely implicated due to old enmity. They declined to cite any defend witness. The judgment of the court below indicates that upon consideration of the evidence below it, the court had held that the prosecution could prove beyond shadow of doubt that the annellants Patwa, Ram Murat, Man Singh and Lakhan Singh were guilty of the offence of dacoity. He further found that Patwa, Man Singh and I akhan Singh had arms with them and they were given an enhanced punishment under Section 397, IPC. For Ram Murat the liability was for holding a lathi only and he was convicted under Section 395, IPC only. 5. The learned counsel for the appellants submitted that all the appellants were known to Dharampal Singh from before and it was unlikely that they would go to commit dacoity in the house of a known person with out trying to conceal their identity. It was further stated that there was no recovery either of ornaments or of any other stolen property or any other incriminating articles from the appellants. The learned counsel for the appellants further submitted that the trial court disbelieved Subedar (PW 4) and witnesses Maniya Singh and Ram Swaroop were declared hostile. Thus there were only the complainant Dharampal and his mother Smt. Ramkali whose evidence was to be judged in the light of the evidence given by PW 5 Shiv Karan and the FIR. It was contended that admittedly the FIR was made after arrival of the police and that belies the claim in the FIR that it was lodged at 9. 30 a. m. According to the learned counsel, the whole pro secution was bad for framing charge against six persons when, admittedly, the FIR did not speak of presence more than five miscreants. There was a challenge to the conviction under Section 397, IPC on the ground that evi dence on the point of use of deadly weapon was lacking except against Ram Murat who had allegedly used his lathi during the commission of the dacoity. 6. The FIR was lodged, as stated at the out set, at about 9. 30 a. m. when Dharampal had produced at the police station a written report scribed by Shiv Karan Singh. According to Dharampal Singh the report was written by Shiv Karan at his instance at the police station and he had signed on it. He reiterated that it was written at the police station in pre sence of the Officer Incharge and then the same was made over to him. Ho had stated in his cross-examination that in the report he had named Lakhan. A mere reading of the FIR contradicts him on this point. The name of Lakhan was not there. He further stated that he did not known Lakhan by name but he could know the name prior to the scribing of the report. He could not say why the name of Lakhan was not entered in the report. He did not disclose the names of Patwa, Lakhan and Ram Murat before anybody prior to the writing of the FIR, although about twenty per sons had come there after the dacoits had left. He had no talk with these persons regarding the dacoity. He had a talk with Subedar about this dacoity but not concerning the dacoits. The second witness Smt. Ramkali stated that the report was written by the Officer Incharge. She had stated that Subedar had reached the house after the dacoity and he was question ing her again and again as to who wore the dacoits and she had told him. She further stated that she had told the Sub-Inspector what were the orna ments stolen in the dacoity and the Sub-Inspector got the report written by Shiv Karan and then took the signature of Dharampal on it. She had told Subedar about the dacoity and about the dacoits but Subedar did not say anything about the identity of the dacoits to her. PW 5 Shiv Karan is admittedly the scribe of the report on which FIR was drawn up. According to his examination-in-chief he wrote the report in the house of Dharampal at about 4 a. m. and whatever was told to him by Dharampal he had scribed the same. Dharampal thereafter put his signature on it. Only thereafter it was taken by Dharampal to the police station. His cross-examination, however, indicates that he wrote the report in the village after the arrival of the police. The court intervened during his cross-examination and asked him pointedly, which of his statements was correct. He gave a frank answer that whatever was deposed subsequently was correct. Thereby he accepted that the report was written only after the arrival of the police officer. He further clarified to the court the report was written at about 12 in the noon. PW 7 Shankar Singh claimed that the written report was given to the police station in his presence and the chik was written by the constable Umanath Mishra also in his presence. It was suggested to him that he got the report written after visting the spot. The suggestion, however, was denied. 7. From the above evidence of the four witnesses touching the written report, we have before us several theories, firstly the report was written in the village and was taken to the police, secondly, the report was written by Shiv Karan at the police station In presence of the officers-incharge and was made over to him and thirdly, the report was written in the village at 12 noon after arrival of the police to the village. The police officer proposed to say that he got the written report at the police station but he is silent about the place where it was scribed. He had stated that the report was made over to the constable Umanath Mishra in his presence but he is silent about the time when it was so made over at the police station. Constable Umanath Mishra had not been examined. Shiv Karan gives two versions in his examination-in-chief and' cross-examination. At one point of time he had stated, it was written in the house of Dharampal at 4 a. m. and there after Dharampal took to the police station. But subsequently he changed the version to say that he wrote it only after arrival of the police. He further stated that he wrote if the report at 12 noon. Both the statements cannot be true at the same time. If we are to believe the police officer then the report must have been written at the village and brought to the police station, otherwise we are to disbelieve the very origian of the FIR. There is no case of the prosecution that Shiv Karan wrote the report at the police station but this is the averment of Dharampal and he insists that the got the report written by Shiv Karan at the police station in presence of the police officer. The mother of Dharampal gave another version that the report was written by Thanedar. In her cross- examination she stated that she told the Darogaji about the ornaments taken away by the dacoit and only thereafter Darogaji called Shiv Karan to write a report on which Dharampal had put his signature. From all these statements one cannot conclude clearly whether the report was written at the police station or at the village. The presence of the police officer is accepted by all the witnesses Dharampal, Smt. Ramkali and Shiv Karan Singh. Thus that version of Shiv Karan is only acceptable that he wrote it at about 12 noon after the arrival of the police in the village. If this is the fact then certainly the FIR now sought to be proved is not the actual FIR on which the police had proceeded to the place of the occurrence. 8. We may now come to the evidence on the question of the involve ment of the Individual appellants. The FIR, for which a detailed discussion has been given in the last paragraph, named four persons Patwa, Man Singh, nephew of Kuber Singh and Ram Murat and also and other unknown miscreant. Patwa was holding a gun, Man Singh a Tamancha, Ram Murat a Lathi and nephew of Kuber Singh a gun. The fourth man was described as nephew of Kuber Singh and it was indicated that his name was not known to the complainant. PW 1 is the complainant himself the spoke about the presence of only four persons. Two of them dragged him to the door of the room and asked him to get it opened. When the door was opened all the four persons entered the room. In his evidence, PW 1 claimed that he knew all these four persons, namely, Man Singh, Ram Murat, lakhan and Patwa. In court the witness narrated that Patwa was having a gun, Ram Murat had a lathi, Lakhan had a gun and again he spoke of Ram Murat having a tamancha. He is silent about the weapon held by Man Singh. He spoke in unambiguous terms that he had seen these four persons only and did not see anybody else and one of these four was going in and coining out. He explained in his cross-examination that Lakhan was the nephew of Kuber Singh and he knew Patwa, Lakhan and Ram Murat from before. He is silent as to how he knew Man Singh. Identification was claimed, according to the statement of this witness, in the light of lantern and also in the light of torches held by the accused persons. He made it clear in his cross-examination that he had indicated to the Investigating Officer as to where the lantern was burning. The sketch map which was prepared by the Investigating Officer indicates that the lantern was burning on the western side of the court yard while the main door was on the eastern boundary wall and the applicant was sleeping outside the boundary wall in the khalihan. He made in further clear that in his report he had indicated the name of Lakhan and he had known $he name before the report was scribed. A reading of the report indicates that Lakhan was not named, he was only described as nephew of Kuber Singh. He further indicated that he did not disclose the names of Patwa, Lakhan and Ram Murat to anybody as miscreants before writing out the report although about twenty persons had assembled after the dacoity. He did not talk to them about the dacoity at all. His statement indicates that Subedar (PW) was the father-in- law of his son and he reached the spot after the dacoits had left and that was half an hour after the incident. He had talked to Subedar but nothing about dacoity. Concerning Man Singh it had come in evidence of this witness that one Bhojwal was a relation of this witness. He, however, denied that Bhojwal and Man Singh had a litigation or that Man Singh was named only at the instance of Bhojwal. 9. The second witness to the incident was Smt. Ramkali (PW 2 ). According to her, the lantern was burning in the room in which she was sleeping. The door was opened under threat at the dacoits had caught hold of her son, the complainant. She spoke of the presence of Ram Murat, Lakhan, Patwa and Man Singh she also spoke a fifth person who was com ing in and going out. According to her, Patwa had a gun, Man Singh had a tamancha. Ram Murat has lathi and Lakhan had a gun. She suffered injuries and was examined medically. She stated that due to assault she suffered bleeding injuries and her clothes were stained with blood. She claimed have to gone the police station and had shown the clothes, to the daroga. She had also shown to the police officer the place where blood had fallen. The clothe were not seized. Subedar had reached the place after some time- On being asked by Subedar she had stated to him who were the dacoits. She accepted that Bhojwal and Man Singh had an enmity from prior to the incident. Maniya had also reached after the dacoity. She denied the suggestion that Man Singh was involved at the instance of Maniya. Her evidence discloses that Lakhan was staying in the house of Kuber Singh long and that house was only ID steps away from her house. Her cross-examination discloses that on his arrival, Subedar had asked her about the indicent but she did not ask Subedar anything nor did Subedar tell the names do dacaits to her of his own. 10. The third witness examined on the point of identity of the accus ed person was Subedar. He claims to have seen the dacoits and had named Patwa, Man Singh, Ram Murat and Lakhan and two more, namely, Amra and Ramraj. The last mentioned two persons were acquitted at the trial. This man claimed identification in the light of the torch. He claimed that he had come to the motor stand to call some labourers. He claims to have seen the incident from a place south-west of the boundary wall of the house of Pharampal. The south-west side of the house, according to the sketch map prepared by the Investigating Officer, is covered by the boundary wall or rooms, the opening lies on the east and the sketch map indicates, is turns of the information from the witnesses, that the dacoits has entered and departed through the eastern door only. The sketch map does not indicate where was Subedar standing at that time, He accepted that he did not tell Dharampal the names of the docits and he explains this con duct by saying that he did not inform Dharampal about the names of the dacoits because Dharampal was not in his senses then. Ho did not disclose such names even to the mother of Dharampal or to the persons who had assembled after the dacoity. He did not disclose the names to Dharampal even after he regained senses next morning. It appears that the witness Subedar was disbelieved by the court below so far his claim of identification of Ramraj and Amra was concerned. The evidence as has been discussed in this paragraph idicates that Subedar's house was about two miles from the house of Dharampal and even the bus stop where he was allegedly staying that night, was a furlong away. The place where he was allegedly standing was not indicated to the Investigating Officer. The sketch map that has been prepared makes it clear that he could not have seen the dacoity in the house from the south-west corner of the house as the rooms and boundary wall must have intervened Admittedly and naturally he should have arrived after the dacoits had left. Had he seen any miscreants even at the time of running away, the only natural thing expected of this close relation of Dharampal was that he should have Informed Dharampal or his mother or even to the persons assembled as to who were the persons whom he had seen amongst the miscreants. He could not even be a witness of corroboration on the point of identification as neither Dharampal nor Smt. Ramkali claim to have stated anything to him nor does he claim, ho was told by them the names of the dacoits. Thus, the evidence of Subedar could not be read as primary evidence on the point of identification nor could be read as one corroborating the evidence of Dharampal or Smt. Ramkali. His tendency to rope in Ramraj and Amra is also a factor to be considered to disbelieve his testimony as the two inmates of the house did not say the presence of any sixth person in the incident. 11. We are accordingly, left with the statements of Dharampal and his mother. A gist of their statements have been given earlier. The com plainant Dharampal spoke about the presence of four persons only. He was assertive in saying that there was non else and only one amongst these four was going in and coming out. His mother Smt. Ramkali, however, spoke of presence of five persons and this fifth person was going in and coming out. Thus the presence of the fifth person is in doubt although he remains to be identified. When out of only two eye witnesses one categori cally stated that there were only four persons and the other claims that five persons were there and the five persons remains unidentified, a grave doubt is created regarding the very presence of this fifth person and this doubt is re-enforced on the face of the fact that the FIR was written after the arrival of the police. It is quite possible that the presence of the fifth person was added only to make the offence grave and only to make it one under Sec tion 397, IPC. On facts of the case, therefore, it must be held that not more than four persons were there in the ail edged incident and the offence if any, if at all prosecution witnesses are believed, could, at the worst, be one under Section 394, IPC. The case against the individual appellants may now be analysed. For Lakhan we find that he was a man living in the village in the house of Kuber and the complainant knew him from before and had known his name from prior to the lodging of the report. The complainant claims that he had named Lakhan and be did not know any reason why the police officer had not recorded his name as Lakhan and simply described him as the nephew of Kuber. Evidence is there to suggest enmity between Kuber and the complainant. There is no evidence on record that Kuber had only one nephew Smt. Ramkali claims to have seen Lakhan as one of the mis creant. It can normally be expected and that Smt. Ramkali would talk to her son and the name of Lakhan should, therefore, have come in the written report. We are not having before us the report on which the police had come to the village. Admittedly, the present report on which the FIR was drawn was written in presence of the police officer, may be, at his dictation. Neither the SI nor Shiv Karan, nor even Dharampal, could explain why Lakhan should have been described only as a nephew of Kuber and not by his name. It is true that only the complainant could be contradicted by the statement in the FIR which was his version of the incident, but Smt. Ramkali was none but the mother of the complainant and if she had seen Lakhan she should have named him as Lakhan before his son Dharampal and the name should have appeared in the FIR. The claims of Smt. Ramkali in court that she had seen Lakhan as one of miscreant may not, therefore, remove the doubt that was created due to the discrepancy in the FIR and the statement of the complainant. Lakhan must, therefore, be given the benefit of this doubt. 12. The case against the other three accused may now be taken up. They are Patwa, Ram Murat and Man Singh. The criticism of the evidence against them is mainly entered around the question of identification. It was stated that the lights were not sufficient for identification and when these persons were known to the complainant and were of the same village, they would have taken precaution to conceal their identity before commit ting dacoity (or robbery) in the house of the complainant. The evidence of PW 1 indicates that identification was possible in the light of lantern and of the torches held by the miscreants. PW 1 stated in an ambiguous term that these persons were known to him from before. These persons had caught hold of him in the Khalihan, dragged him up to the door of the room, forced him to get the door opened and thereafter looted the valu ables. They were all of the village and so there was every possibility on the part of Dharampal to identify them. Absence of light in the Khalihan would not stand on the way of his being able to identify the persons who had caught hold of him and had spoken words to him and had assailed him. Identification by Smt. Ramkali was possible in the light of the lantern in front of the room where she was sleeping and she had not only named them but also identified them in the court. She was assaulted by the mis creants and her ornaments were taken away. She had a full opportunity to see these persons. 13. Nothing is there on record to indicate that these persons had covered their faces to conceal their identity. Normally a person tries to conceal his identity when committing dacoity in the house of a unknown person. But this cannot be any invariable rule of appreciation of the evi dence that a claim of the identification otherwise acceptable must be discarded simply for the reasons that there was no attempt on the part of the known dacoits to conceal their identity. The testimony on identifica tion would only be assailed or could be doubted if an acceptable case of enmity is brought on record or unless the prosecution case suffers from some basic an intrinsic defect. According to the learned counsel for the appel lants, the doubt the FIR is one such an intrinsic defect read with enmity of the accused persons with the complainant. The doubt concerning the FIR has been dealt with in discussing the case against Lakhan. The first ever FIR becomes important in a criminal trial on a supposition that the same is the first ever version not tinted by deliberation or after thought. If there is acceptable evidence on the point of the enmity it could be argued that the delay in the FIR was caused only with a view to implicate the known enemies when a dacoity had been committed. It is the consistent case of the defence that the accused persons were implicated due to grudge and enmity. We may, therefore, engage ourselves to see with his evidence on the point of enmity. 14. At this stage a decision of the Supreme Court as reported In 1981 Cr LJM010, may be looked into. The Supreme Court was dealing with an appeal from a conviction under Section 395, IPC the accused was a next door neighbour or the complainant and was also a man of means. Evidence was there suggesting possibility of false implication and raising suspicion regarding complicity of the accused in dacoity. The evidence was that the dacoits had concealed their identity in such a way that their faces were visible. The Supreme Court had observed that if the appellant had parti cipated in the dacoity and took precautions for concealing his identity then he would have seen to it that his face was fully covered so that identifica tion by the complainant or the witnesses would become impossible. The Supreme Court also considered that the house of the accused was visited next morning and the accused had not absconded. Nothing incriminating was recovered from him. There was a dispute between the complainant and the accused and there was, accordingly, a clear possibility of false implication. Thus, the absence of concealment of identity by known dacoits must be accompanied by other circumstances to question such appearance without concealment of identity. 15. We have already discussed above that identification was possible by both the complainant and the mother of the complainant and it must be tested against the other circumstances available in the case. The main one is about enmity as we have already discussed about the FIR earlier in the judgment. On the point of enmity the complainant state about pledging of certain ornaments to his father by Kuber Singh and the ornaments were found fake. There was a panchayati over it. The accused Lakhan was a nephew of this Kuber Singh and we have given out reasons above in the earlier paragraph of this judgment for giving a benefit of doubt to Lakhan. The complainant denied that Patwa, Man Singh and Ram Murat had any quarrel with the police. He denied knowledge if Patwa was associate of Ram Murat and was working under him. Hs denied knowledge if Patwa was an accused for murder one Chandaman. He also denied that Man Singh had any quarrel with Bhojwal relation of the complainant. PW 2 Smt. Ramkali denied the suggestion that the case was filed due to grudge or at the instance of Subedar and Shiv Karan. No defence witness was cited nor any paper was filed to establish existence of any enmity and litigation between the parties. It is true that Dharampal had not disclosed the name of the dacoits to the assembled villagers. This alone may not shake his credibility as he must have been under a mental trauma and shock imme diately after the dacoity and so was the situation with Smt. Ramkali. 16. It was argued that although the prosecution story according to the FIR spoke of presence of only five persons, in the trial six persons wore charged. This irregularity should have been taken not of by the trial court. It has been found that Ramraj and Amra were not there. It is further found that there was no fifth man present. There were, therefore, only four persons including Lakhan and a benefit of doubt to Lakhan has been given for reason recorded above. The complainant was consistent in naming Ram Murat, Man Singh and Patwa from the stage of the FIR to the trial and so was Smt. Ramkali from the stage of 161, Cr PC statement to her deposition in court. The rule of appreciation always dictates that the court is to pick up the truth from the falsehood. Simply because the witnes ses hive not been believed for certain accused persons (Lakhan in this case) their testimony if otherwise consistent may not be discarded for the others accused. The introduction of the names of Ramraj and Amra was made by Subedar only and the trial court and this Court have disbelieved Subedar. It must, therefore, be held that the involvement of Patwa, Ram Murat and Man Singh in the incident has properly been proved. 17. On the finding that only four persons had taken part in the offence and there was no fifth person present, the conviction under Sec tion 395, IPC must be diluted to one under Section 394, IPC. Although the accused Patwa and Man Singh have been atributed the role of holding a gun and tamancha, these weapons were not used at all and the injury reports of the complainant and his mother suggests assault by blunt weapon only and Ram Murat was holding the blunt weapon (lathi) and he must have used it. Ram Murat is dead and the appeal so far he is concerned has abated. We need not dilate on the question as to what was the offence committed by him. For Patwa and Man Singh it is out and out a case under Section 394, IPC only and in the circumstances of the case the sentence also requires interference. For their conviction under Section 397, IPC, Patwa and Man Singh were sentenced to RI for seven years each. On the alteration of the conviction to one under Section 394, IPC the two appellants, Patwa and Man Singh are sentenced to RI for three years each. It has already been held that Lakhan was entitled to benefit of do but and his conviction and sentences, are, accordingly, sot aside. The other appellant Ram Murat is reported dead' and the appeal has abated so far he is concerned. In the result the appeal stands partly allowed as indicated above. Lakhan is discharged from his bail bonds. He need not surrender in court again. Accused Patwa and Man Singh are to surrender to their bail bonds to undergo the remaining part of their sentences as modified by the present judgment. They are to appear before the trial court within a month from today failing which the trial court would issued all stringent processes to compel their atten dance and to see that they serve out the remaining portion of the imprisonment. .;