- (1.) THIS appeal is directed against the judgment and order passed by Sri S. N. Prasad, the then Vlth Addl. District and Sessions Judge, Bulandshahar on 28-4-1978. The learned Judge who was disposing of criminal Sessions Trial No. 129 of 1976 found the appellants guilty on a charge under Section 396 IPC and sentenced each one of them to imprisonment for life.
(2.) THE case started against four persons namely the present appellants and one Jagdish who was, however, discharged under Section 227 of the Criminal Procedure Code, by the learned Magistrate. THE trial was against Gopi, Duli Chand and Omi. It was contended that during the night intervening between 13th and 14th December, 1974 precisely at about 1. 30 a. m. , these three-appel lants along with six to eight more persons committed dacoity at the house of Sarni in village Gulistanpur which lies within the cirrcle of Police Station Dadri, district Bulandshahar. Someone amongst them shot down Sarni inside the house and also fired at his son Mahabir who subsequently died while he was being transported to Delhi for treatment. THEre were lighted lanterns inside the house. Witnesses outside the house were possessed of the torches Dacoits were also using torch during the course of the dacoity. Two of them were on. THE roof of the house and from there they were firing to scare witnesses away. In spite of all this the people from the village including Shyam Lal, Pyarelal, Gopi Chand, Deep Chand and Devilal collected by the side of the eastern wall of the house of the Lal Singh and saw the dacoity in progress from there. A heap of straw was collected on the north south 'rasta' which runs by the side of the eastern wall of Sarni's house. It was put to fire and in its light the witnesses saw the faces of the dacoits who were looting the property and commit ting murders. It further contended that out of the ten to twelve dacoits who h id participated in this occurrence, the faces of the present three appellants namely Gopi Chand, Duli and Omi were vividly seen by the witnesses and since they were already known and related to the deceased, their names found mention in the first information report which was lodged at Police Station Dadri, district Bulandshahar on 14-12-1974 at 3. 45 p. m. by P. 7. 1 Shyam Lal Before we proceed further it may be mentioned at this stage that the deceased Sarni had a brother by the name of Kale. Kale had died and his widow is Smt, Chavli. She is still alive. She is sister of the accused-appellant Gopi Chand and Duli Chand is his son and while Omi is his nephew. Smt. Chavli had a son named Nanak and Nanak's wife is Smt, Prakasho. It is contended that in spite on the resentment shown by Smt. Chavli, Nanak way still associating with Sarni and his family members. Both Smt. Chavli and Smt. Prakasho did not want Nanak to associate with Sarani. There was some sort of quarrel bet ween the accused persons and two ladies on one hand and Nanak and Sarani on the other hand. As a consequence of which the two ladies left village Gulistanpur and migrated to their 'maika' which is in villages Shahpur Bamheta and started living with Gopi and his family members There is also some evidence to show what a few days prior to this occurrence a representation was made by Omi to Sarni to the effect that he should stop associating with Nanak and turn him out, but Sarni did not agree and, therefore, a threat, was given to him. Then this occurrence took place. In all, nine witnesses were examined by the prosecution and one by the defence PW 9 Dr. D. B. Singh conducted the post-mortem examination on the dead bodies of Sarni and Mahabir PW 8 R. L. Gautam was the then Station Officer of Police Station Dadri and is Investigating Officer of this case. PW 4 who is the son of the deceased Sarni has only been examined to prove the handing of a list of the looted properties to the Investigating Officer during the course of the investigation. His name is Brahmjeet PW 5 and PW 7 are the police officials S. I. Sukhpal Singh is PW 5 who registered the case on the basis of the first information report and Brahma Nand is PW 7 who took the dead bodies to the mortuary PWs 1, 2 and 6, namely Shyam Lal, Gopi Chandra and Prithi Singh are eye-witnesses. Prithi Singh is another son of Sarni and he is said to have been inside the house when the occ urrence took place. According to his testimony, he saw the occurrence from inside the house and it may be mentioned that he never came out of the house and during the course of occurrence he remained present inside the house.
(3.) PW 1 Shyam Lal comes out with the statement that some of the docoits were putting on 'dhatas'. In examination-in-chief he was clear to say that there was none amongst the dacoits whom he knew before occurrence. He was cross-examined by the prosecution with the permission of the court and then he admitted the contents of the first information report but he insisted upon his statement that some of the culprits were putting on 'dhatas'. If this part of his statement is correct then it simply shows that the accused persons were not amongst the culprits. Even otherwise also it is highly improbable that when out of 10 or 12 dacoits some were putting on 'dhatas', those who were already known to the witnesses would have not put on 'dhatas' and would have kept their faces open while those who were not already known to the witnesses, would have put on 'dhatas' and would have kept their faces open, while those who were not already known to the witnesses, would have not put on 'dhatas'. The natural human conduct is that the people do not commit dacoity in neighbouring houses or at known places. They take precaution to conceal their identity. Of course there is no law to that effect but it generally so happens and there may be excep tions like cases in which the offence is committed by hardened criminals or by a person who is so much inimically disposed against the victim as to lose all sense of his own safety while commuting the offence. In the present case, according to PW 1 Shyam Lal some of the culprits were putting on 'dhatas' and he also says that these dacoits continued to put on 'dhatas' on their faces upto the time when they ran away from the spot. It is highly improbable that the known persons would not have put on their 'dhatas' to conceal their identity while mere strangers who had no reason of being known were putting on 'dhatas'. The testi mony of witness No. 1 Shyam Lal is, therefore, of no avail and has been rightly treated as unreliable by the Sessions Judge also. Pw 2 Gopi Chand says that he was possessed of a torch. In the site plan the place where he was standing has been shown by the letter 'g' which is some where near the house of Lal Singh and north of the house of Sarni. He says that he flashed his torch on the culprits when they were running on the Rasta' after committing the dacoity. Cross-examination made with this witness shows that he was not possessed of and torch. He says that he handed over his torch to the Investigating Officer but admits that the Investigating Officer neither prepared any 'fard' nor returned his torch to him.;