- (1.) B. K. Sharma, J. This is an appeal against the judgment and order dated 17-10-1980 passed by Sri Gaya Prasad the then 6th Additional Sessions Judge, Main-puri in S. T No. 369 of 1980, State v. Soran and another, under Section 395,1. P. C. , P. S. Jasrana, whereby, he convicted the ac cused-appellants of the offence under Sec tion 3951. P. C. and sentenced each of them to undergo R. I. for 5 years.
(2.) HEARD learned counsel for the par ties. It is established on the evidence that a dacoity took place at the house of Pitam Singh P. W. 2 in village Nagla Julha Mauza Patham P. S. Jasrana District Mainpuri in the night between 10/11- 3-1980 at about 00. 30 hours in which Chheda Lal P. W. 3, Smt. Haraini Devi P. W. 4 and Smt. Anto were injured and empty cartridge was found lying at the spot. The I. O. also found door planks to the West faced Zenana Ghar of the house of Pitam Singh in cut condition and the ornaments and cloths were looted from the Zenana Ghar of the house of Pitam Singh which was West faced and whose door planks was cut and broken open. The injuries of the victims were caused by fire arm and blunt weapons. The defence also does, not dis pute the factum of dacoity. Both the ac cused-appellants Soran and Lajja Ram had been nominated in the F. I. R. alongwith one Sumer who could not be apprehended during the investigation as he was absconding. The ocular testimony at the trial has been given by Ganga Singh informant P. W. 1, Chheda Lal, P. W. 3, and Smt. Naraini Devi P. W. 4. It is not disputed that the accused-appellants were known to the witnesses from before. The accused-appel lants lived in village Ramalpur situated just a mile away from the village where the occurrence took place. In the case of a dacoity committed in the dead of night the first question al ways is whether there was sufficient artifi cial light present and another question, is whether the presence of the eye-witnesses at or near the scene of occurrence was believable and if so, whether they were in such a situation with reference to the sourse or sources of light and the dacoits so as to be able to see and identify them. In such a case like present, where the dacoits have been named in the F. I. R. , the ques tion of false implication on account of enmity also crops up, though it cannot be said that persons can never commit dacoity at the houses of their enemies. It is all a matter of appreciation of evidence in the light of the surrounding circumstances.
(3.) NOW an unusual feature in the present case is that Pitam Singh P. W. 2 who is the owner of the house in which the dacoity took place was not an eye-witness of the dacoity. He claimed that he was not at the house at the time of dacoity and came to the house on receiving informa tion of the dacoity. The F. I. R. of this case though lodged promptly at 4. 45 a. m. on 11-3-1980, was lodged by Ganga Ram P. W. 1, a resident of the same village. The defence disputes his presence at the house of Pitam Singh at the time of occurrence. Smt. Naraini Devi wife of Pitam Singh was an inmate of the house and so her presence at the time of occurrence was not open to doubt and it has also not been doubted by the defence. As noted earlier, she is also an injured in the occurrence. Ganga Singh informant had his house elsewhere in the village and Chheda Lal P. W. 3 also had his house at a different place in the village. Their houses have not been depicted by the I. O. in the site plan. On the own showing of Ganga Ram P. W. 1, the informant of the case, his house is away from the house of Pitam Singh. So in the ordinary course, he would be sleeping at his own house in the village. He does not claim in the F. I. R. or at the trial that he woke up at his house on hearing noise or alarm and rushed to the house of Pitam Singh and saw the occur rence. His case in the F. I. R. and also in his testimony at the trial was that he was sleep ing in the night of occurrence in the Baithka of Pitam Singh and woke up at the sound of the breaking of the door planks of the Zanana Ghar of the house of Pitam Singh and saw the occurrence. The defence has disputed this claim. Ganga Singh in formant did not claim at the trial that since Pitam Singh was going out of Station he slept at Pitam Singh's house at the request of Pitam Singh. He testified at the trial in his examination-in-chief that he was sleep ing in the Baithka of Pitam Singh and that Ram Singh and Chheda Lal, P. W. 3, were also sleeping in the Baithka. Cross-ex amined, the stated that he regularly sleeps at the Baithka of Pitam Singh itself. "main PITAM SINGH KE BAITHAKA PER HI SOTA HOON. " He further stated that he, Ram Singh and Chheda Lal sleep at the Baithka of Pitam Singh P. W. 2 daily. The explanation given by him was "prem Bhav KJ Vajah Sey Sotey They. Aur Koyee Khas Vajah Nahin Thi. " So, the definite case has been taken by him that he used to sleep regularly at the Baithka of Pitam Singh. He stated that he was related to Pitam Singh as Brother by village relation ship. He stated in his evidence that the Khandan of himself and Maharaj Singh was one and that the Khandan of Pitam Singh P. W. 2 was separate. In other words, he and Pitam Singh did not belong to the same Khandan. So in the ordinary course, Ganga Singh informant was not likely to sleep at the Baithka of Pitam Singh daily having regard to the ordinary course of life of Indian villages. As noted earlier, he is not an injured in the occurrence and so this corroborative circumstance is also absent. Another point of importance is that when Pitam Singh entered the witness box, he did not say that Ganga Singh in formant used to sleep in his Baithka in the night as a routine or even that Ganga Singh was sleeping in the Baithka in the night of occurrence.;