- (1.) M. C. Jain, J. Appellants are Dularey and Ram Autar, who have preferred this appeal against the judgment and order dated 22-12- 1979 passed by Sri C. L. Anand. the then Hnd Additional Ses sions Judge, Mainpuri in Sessions Trial No. 406 of 1977 which had been decided with connected Sessions Trial No. Ill of 1978 The appellant in connected Sessions Trial No. Ill of 1978 was Munna who was ac quitted. The present appellants have been convicted under Sections 364, I. P. C. and 395, 1. RC. The punishment of life imprisonment has been awarded for the offence punishable under Section 364, I. P. C. and five years rigorous imprisonment has been awarded under Section 395, I. P. C. Both the sentences have been ordered to run concurrently.
(2.) THE basis of the prosecution case was written First Information Report lodged by P. W-1 Ram Shree at Police Sta tion Ounchha, District Mainpuri on 14-6-1976 at 5. 00 p. m. THE occurrence took place in between the preceding night at about 12 or 1 'o clock in village Nilkanthpur. It was alleged that she and her children were sleeping in her house where a lantern was glowing. Her husband Baldeo was sleeping'outside on Chabulra. THE miscreants appeared at about 12 or 1 O'clock 5 or 6 of them stated belabouring her husband with butts of the guns. 5 or 6 others entered inside the house and started belabouring her to extract infor mation about valuable articles. Some of them were wearing uniforms while others were wearing ordinary cloths. After ran sacking the house, the miscreants looted her jewellery and clothees. the details of which were mentioned in the F. I. R. THEy also fastened her husband to a cot an ab ducted him. THE present two appellants were allegedly identified amongst the miscreants. A case was registered. on the basis of such F. I. R. and the investigation was started. She was subjected to medical examination and as per injury report Ex. Ka-1 prepared on 15-6-1976 at 11. 45, four contusions and two lacerated wounds had been found on her person. After con clusion of investigation, a charge- sheet was laid, inter-alia, against the present ap pellants. THEy pleaded false implication. At the trial, the prosecution ex amined seven witnesses in all out of whom P. W.-l Smt. Ram Shree complainant. P. W.-3 Ram Singh P. W.-4 Desh Raj and P. W.-5 Smt. Shakuntala Devi daughter of the complainant were examined as eye-wit nesses. P. W.-2 Ram Sewak son of the com plainant was also examined, though he was not present at the time of incident. Believ ing the prosecution story and evidence, the learned Additional Sessions Judge con victed and sentenced the appellants by the impugned judgment. The matter is now in appeal before this Court. We have heard Sri D. N. Wali. learned Counsel for the appellants and learned A. G. A. We have also carefully, waded through the evidence on record. On giving our thoughtful consideration, we find that there are conspicuous pitfalls in the prosecution case and the judgment of conviction and sentence passed by the Court below is not at all sustainable. We state the reasons for formulating such opinion in succeeding discussion.
(3.) THE first point to be taken note of is that the F. I. R. inordinately delayed. THE incident took place in between night of 13/14-6-1976, but the Fl. R was lodged as late as on 14-6-1976 at 5. 00 p. m. THE dis tance of Police Station was only five miles. THE explanation for the late lodging of the F. I. R tendered by P. W-1 Smt. Ram Shrcc that her son was noi at the house and the report could be lodged only when he returned, is not at all convincing. THE facts as per the prosecution story were quite startling inasmuch as the husband of the complainant had been abducted by the miscreants after having been fastened at the cot. Besides, the dacoity had been committed in her house. She herself says that certain villagers, name ly, Ram Singh and Dcsh Raj had arrived at the spot of the incident with torches. In these circumstances, the Fl. R could and should have been lodged much earlier than at 5. 00 p. m. on 14-6-1976 so that the police could swing in action to recover the abducted husband of the complainant. THE late lodging of the F. I. R. is bound to generate an impression that deliberation and concoction had been made to nominate the appellants as participants of the crime against whom the complainant has spoken of enmity also and who belonged to the same village. Secondly, it does not sound to be convincing that the miscreants including the appellants would commit the dacoity and would also abduct the husband of the complainant. The two alleged criminal acts are somewhat irreconcilable. If the dacoity was the mission of the miscreants, there could hardly be any reason for the abduction of the husband of the com plainant. Indeed the thing have to be viewed keeping regard to the natural human conduct. It appears to us that a coloured and distorted version has been presented by the prosecution before the Court. Though the F. I. R. mentions the articles of jewellery and clothes allegedly looted by the miscreants, but, surprisingly, P. W.-l Smt. Ram Shree has not stated any thing in this behalf in her testimony before the Court. The two eye-witnesses P. W.-3 Ram Singh and P. W.-4 Desh Raj turned hostile. It is most doubtful that P. W.-5 Shakuntala Devi, married daughter of the complainant, was actually present at the time of incident at the house of her parents. We note that the F. I. R. , does not mention her name specifically. Admitted ly, she had been married earlier to the present incident. She stated that the dacoits had relieved her of the jewellery that was on her person. Nothing of the kind was stated by her mother P. W-l Ram Shrce. This witness was also not injured. If the dacoits had forcibly snatched jewellery from her person in ordinary course, she would have received some injuries. Her statement had not been uniform on the point as to whether she was actually wear ing some jewellery. Her presence at the time of the incident sounds to be doubtful.;