Murtaza Husain, J. - (1.) RAMDHARI Ram appellant is a police constable. At the time of occurrence he was admittedly posted at out post Civil Lines in the city of Bahraich. The appellant, along with one more constable of his out-post namely Narendra Pratap Mishra, and a constable of police lines Bahraich namely Kapil Deo Pathak, was put up for trial u/Sec. 395/397 IPC before the I st Additional Sessions Judge, Bahraich. Que Girwar, who was not in police service, was also put up for trial along with them. The learned Judge did not believe the participation of constable Narendra Pratap Mishra, constable Kapil Deo Pathak and Girwar in the alleged dacoity and he acquitted them. The appellant was, however held guilty under Section 395/397 IPC and was sentenced to undergo ten years' rigorous imprisonment. Feeling aggrieved by that order of the learned Sessions Judge the appellant has come to this Court.
(2.) IT has not been disputed before me that an armed dacoity was committed at the house of Bhola Nath PW 1 in village Shah Newazpur within the circle of police station Gilaula in the district of Bahraich at about midnight of 23/24-4-1974. The dacoits were 11 or 12 in number. One of them was armed with a gun and others were armed with other weapons. The dacoits beat inmates of Bhola Nath's house and looted property. When they were decamping an encounter took place amongst the villagers and the dacoits in the field of one Dhan Raj where the clip of the gun of the dacoit, who held a gun, fell down. That clip is known as "chap". The dacoits, however, made good their escape along with their booty. A report of the occurrence was lodged by Bhola Nath at the police station next day. No dacoit was named therein as all the dacoits were unknown to the compnant and other villagers. Investigation of the case was taken over by the police. The recovered 'chap' of the gun bore number of the gun to which it related. On the basis of that clue the investigating agency spotted out that the gun, whose 'chap' had fallen in Dhan Raj's field belonged to the appellant who had a licence for the same. A report about the theft of his gun was lodged by the appellant at police station Kotwali on 24-4 -1974 at 9.30 p.m. It is not disputed that in the case registered for that theft final report was submitted by the investigating agency. The appellant was arrested and, it is said, that through him the names of the other two acquitted constables as participants of the dacoity were revealed to the investigating agency. After the arrest of those constables the name of Girwar came to light. It also transpired during investigation that the appellant had got himself admitted to the dispensary of Bahraich police lines pretending that he had colic pain. In the same night he ran away from the hospital and was seen returning back towards Bahraich at about 3.30 o'clock in that night. Later on, the remaining portion of appellant's gun was recovered from a well near Civil Lines outpost on the pointing out of the appellant. When all the suspects were rounded up they were made baparda and were put up for identification. At the test parade they were identified by several witnesses. Consequently they were charge-sheeted. The learned Sessions Judge believed the prosecution evidence about the factum of dacoity. As that fact is not disputed before me, I need not enter into the details of evidence about it. The evidence of identification furnished by the prosecution against the four accused was disbelieved by the learned Sessions Judge on weighty grounds. He disbelieved the alleged time of arrest of the suspects. He again held that photographs of the arrested persons were taken and were shown to the witnesses. Lastly he held that the investigating agency was unscruplous enough to show the suspects to the witnesses. The learned Sessions Judge also found contradictions in the statements of the identifying witnesses about the places from where they had seen the suspects. He also held that the light available to them was not sufficient. Consequently he rejected the entire evidence of identification and acquitted the other three accused. The prosecution evidence about recovery of appellant's gun from a well near the Civil Lines outpost on appellant's pointing out was disbelieved by learned Sessions Judge. He, however, convicted the appellant on the basis of the following circumstances : (1) that the appellant got himself admitted to the Police Lines Hospital in the morning of 23-4-1974 on the pretext of having colic pain. He remained in his bed till the evening and thereafter slipped away. He again came back to his bed early next morning (2) that the 'chap' of the gun recovered from the scene of occurrence was undisputedly a part of appellant's gun ; and (3) that after having come to know that the 'chap' of his gun was recovered at the scene of occurrence the appellant lodged a false report of the theft of his gun at police station Kotwali, Bahraich in the night of 24/25-4- 1974.
(3.) IT has been argued on behalf of the appellant that the prosecution evidence about the above noted circumstances was not believable and even if those circumstances are believed they are equally compatible with the hypothesis that the appellant was not amongst the dacoits and that only his gun was used by some dacoit in that dacoity. I find force in this contention. The appellant does not dispute that he was admitted to the Police Hospital of Bahraich in the morning of 23-4-1974. He denied his absence from the hospital in the night of 23/24-4-1974. The prosecution examined a compounder of that hospital namely Shatrohan Lal PW 14. He was not on duty in that hospital in that night and, therefore, he does not prove appellant's absence from his bed in that night. Two other indoor patients were examined by the prosecution. They are Head Constable Kashi Nath PW 23 and Constable Dig Vijai Singh PW 24. The statement of Head Constable Kashi Nath PW 23 is not helpful to the prosecution because he had gone to sleep at 10 p. m. in the relevant night and did not say about the absence of the appellant from his bed after 10 p. m. The other witness namely Constable Dig Vijai Singh stated that till 1 o'clock in the night he did not see Ramdhari Ram in his bed and saw him returning to his bed next morning. There is a suggestion in his cross-examination to the effect that there was bad blood amongst lam and the appellant since before the occurrence. If that suggestion is correct reliance can safely not be placed upon his testimony. It is difficult to believe that no body amongst the doctors or compounders made a round of the hospital in the night. If the appellant was really absent from his bed for the whole might the matter ought to have come to light then and there. The prosecution evidence about the absence of the appellant from his bed in the hospital in the aforesaid night can, therefore, not be safely relied upon.;