- (1.) THIS appeal by Asha Ram is directed against the judgment and order dated 27-4-1979 passed by the VIII Additional Sessions Judge, Meerut in Sessions Trial No. 105 of 1978 whereby the appellant was found guilty of an offence under Section 395, IPC and was sentenced to undergo R. I. for seven years.
(2.) THE appellant was bailed out under order of this Court dated 3-4-1979 but since he did not appear at the hearing of the appeal on 18-3-1998, his bail was can celled and he was taken into custody and brought before this Court on 5-5-1998. He expressed his inability to engage a counsel, therefore, Sri N. I. Jafari an Advocate of this Court was appointed to assist the Court as amicus curiae on behalf of the appellant. I have heard Mr. N. I. Jafari, Advo cate and the learned Additional Govern ment Advocate and have perused the rec ord of the case. The prosecution story briefly stated is that in the night between 1st and 2nd July, 1976 a gang of about 7 or eight per sons committed dacoity at the houses of Rajey. Ram Gopal and Ram Kishan in village. Nabipur, Police Station Inchauli, district Meerut. These three persons and the first informant Kaushal are real broth ers and Their houses are situated in one compound and adjoin each other. The dacoits were armed with Lathis, Kattas. Guns etc. and they committed dacoity for about one hour. During the course of the dacoity, they injured Ram Gopal and tor tured the ladies of the house by giving them burn injuries with Mashals to extract information from them about the valu ables. It is claimed that there were some lanterns burning in the house, in addition the dacoits were flashing torches and the Mashals prepared by them were also giv ing light. The appellant Asha Ram was alleged to be one of the dacoits. The alle gation against him was that he was known from before and belongs to a neighbouring village.
(3.) AT the trial several witnesses were examined. The conviction of the appellant is based on the evidence of Kaushal PW-1, Ram Gopal PW-3, Rajey PW-4 and Ram Kishan PW-5. A perusal of their state ments show that the appellant was very well known to each of them and yet he is not alleged to have taken any precaution whatsoever to conceal his identity. The statements of these witnesses are silent on the point and there is no explanation why this person who was very well known and was even making purchases from the shop of Kam Kishan PW-5 should have made no effort to conceal his identity. Then none of them assigns any positive role to the appellant and has not made any specific statement as to how a particular witness had the opportunity to identify him and what he was seen by the witnesses doing at the spot. None of them says whether he was amongst dacoits who stood on the roof threatening the villagers, whether he was the person who tortured the ladies with Mashal burns and whether he was the per son who hurt Ram Gopal. Ram Gopal PW-3 was injured in the occurrence. He stated that the dacoits did not allow him to move away from the cot where he was sleeping and that two of the dacoits remained standing near him. One of them was armed with a Lathi and the other with a Katta. He does not say that the appellant Asha Ram was one of those two persons. From his statement, it is clear that he could have no opportunity to identify the others. Rajey PW-4 when in his cross-examination has admitted that when he woke up he guesed that there were dacoits in the house and therefore, he covered himself with a sheet of cloth (Khes) and remained so till the dacoits left. Later he clarified that because the villagers were saying that Asha Ram was amongst the dacoits therefore, he thought he was there. Ram Kishan PW-5 also stated that he was on the roof and two dacoits remained standing near him. He managed to escape and went to the Gher of Channi. Although he says that Asha Ram was amongst the dacoits he does not clarify how he had an opportunity to see and identify him. Thus the evidence of these four witnesses was of a very perfunctory nature and required strong corroboration to be accepted. No such corroboration has been forth-coming in the case. One Mange was examined by the Court and was examined as C. W. 1. He stated that he did not recognize any of the persons committing dacoity.;