G. K. SHARMA, J. - (1.) THIS appeal is directed against the judgment dated 13th June, 1980, passed by the Additional Sessions Judge No. 2, Bharatpur, convicting the accused-appe!lants under section 396 & 397, IPC, and sentencing each of them to 10 years' rigorous imprisonment and fine of Rs. 100/-, and in default of payment of fine, to further undergo 3 months' rigorous imprisonment under section 396, IPC; and to 7 years rigorous imprisonment and fine of Rs. 100/-, and in default of payment of fine, to further undergo* 3 months, rigorous imprisonment under section 397, IPC, respectively. Both the substantive sentences, were, however, ordered to run concurrently.
(2.) PARMA, son of Genda submitted a written report on 27th June, 1979, at PS Uchhain, alleging that on the intervening night of 26th & 27th June, 1979 he was sleeping out of his house. At that time, he woke up hearing some cries (Ghighhi), arid saw 10-15 miscreants armed with deadly weapons. When he forwarded with a Lathi, the miscreants fired a gun shot at him, but, he escaped by shielding behind a pillar. The villagers of Ajitpura then raised hue and cry, and hearing the same, the villagers of Villages-Nagla Peelu and Bhaisa also raised alarming-voices. The miscreants then fired one more gun-shot, to which his nephew Ramjilal died at the spot, and Charan sustained pellet-injuries. They also caused injuries by Lathis and Ballams to Mst. Ramdei, Bissi and Vamniram; and snatched away, the ornaments of Mst. Kalawati, Mst Saraswati, Mst Hukmi, Mst. Bindo and Mst. Phoolwati. They also looted ornaments from his house and from that of Nathi and Charan. He (informant) also stated in the report that he had identified the accused-appellants in the light of torches, and that he could also identify the rest of the miscreants, if they were brought before him. The report further says that seeing the villagers of villages -Nagla Peelu and Bhaisa coming towards them, the said miscreants ran away. On this report a regular FIR was prepared, and a case under sections 396 and 397 IPC, was registered. After usual investigation, a challan was filed' against the 6 accused persons. The learned Additional Sessions Judge framed charges against the accused-appellants under sec. 396 and 397, IPC who pleaded not guilty and claimed trial. After recording evidence and hearing both the sides the trial court found the accused-appellants guilty and sentenced each of them, as mentioned above. During the pendency of this appeal, Dhala appellant, son of Shobha Ram, has expired; and so, there remained only 5 accused-appellants. The learned counsel for the appellants argued that the trial court has based its conviction on the following four grounds: (a) The names of all these appellants have been mentioned in the report (Ex. P 1); (b) Both the parties, i. e. , the complainant-party as well as the accused party, were on inimical terms; (c) On account of old enmity, the accused persons looted the members of the complainant-party, and committed the dacoity; (d) The FIR in this case, was lodged within the reasonable time and therefore, there was no chance for manipulating or fabricating the report (Ex. P 1 ). So, the learned trial court, after going through the statements of the prosecution witnesses, convicted the appellants on these four grounds. Mr. P. K. Sharma, the learned counsel argued that lodging a prompt report, is not a guarantee of truthfulness. He, in this context, relied on the case of Ramjag & 10 Ors. v. The State of U. P: (1) In that case, argument was raised with regard to lodging the FIR with delay. Therein, it was observed that even a long delay in filing report of an occurrence, can be condoned if the witnesses on whose evidence the prosecution lies, have no motive for implicating the accused; and that on the other hand, prompt filing of the report is not unmistakable guarantee of the truthful of the version of the prosecution.
(3.) IN the present case also, the incident had taken place on the intervening night of 26th & 27th June, 1979, and the report was lodged at the Police Station that very night or say on the early morning of 27th June, 1979, at 3. 15 am. The distance from Village - Ajitpura and the Police Station was about 6 miles, as is clear from the FIR (Ex. P 8 ). Thus, according to the FIR, the report was lodged immediately. But, this is no ground to claim correctness, or truthfulness of the report of the prosecution story. So passing judgment on this aspect that the report of the incident was lodged promptly and basing the conviction of the accused persons, is not correct. A written report was submitted by one Parma, which is Ex P 1. There is no endorsement on this report (Ex. P 1) about its presentation at the Police Station. When, the report (Ex. PI) was submitted at the Police Station, it was the duty of the SHO, to make an endorsement on this report. Thus, it is not clear that the report (Ex. P 1) was. submitted at the Police Station (Uchhain) on 27th June, 1979, at 3. 15. a. m. No doubt, the FIR (Ex P. 8) is a copy of the report (Ex. P. 1), and thereon, the SHO had made an endorsement as 'karyavabee-Police', but, this was not the way of entertaining a report. I find that the original report can be got changed and substituted in this way, by a new one. What is the guarantee that the report submitted by Parma is this very report (Ex. P. 1 ). It may be possible that he might have submitted some other report, and the report (Ex. P. 1 ). has been prepared later on by the police and taken on record. Another point to be see. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . stated that the report (Ex. P 1) was got written by him through Charan who belonged to his village, and that when the report was submitted Nathi, Ballabh, Charni, Ramoli, Bhagile and one or two more persons were present at the police station. This report was lodged on 27th June, 79. There is no mention in this report that it was submitted by so many persons. On the FIR (Ex P. 8), in 'karyavdhee-Police', it has been mentioned that Nathisingh, resident of Nagla Peelu and Charansingh, resident of Nagla Ajitpur, were present when the report was submitted. But, neither Nathisingh nor Charan Singh has been examined by the prosecution. It creates a suspicion. Nathi Singh was Sarpanch of the Gram Panchayat, and was a reliable person. He and Charansingh were present when the report was submitted at the police station. Charansingh was the person who scribed the report. So. these two persons were very important witnesses, and they should have been examined. Parma was an illiterate person. Therefore, Charan (Charansingh) who is the scribe of this report, was an important witness. Hence, the argument that the report was prompt one and so, it can be made a basis for convicting the appellants, has no substance. The ground that both the parties were on inimical terms, is no ground for convicting the accused persons. Enmity is a double-edged sword. It was possible that on account of enmity with the accused persons, the complainant party had named them in the report, in order to take revenge. Then, the prosecution witnesses have stated that 14-15 persons had come there 6-7 of them were covering their faces by 'datas', and the appellants were not covering it. This aspect is also unbelievable. If the accused-appellants were along with the other persons who had commit dacoity, and the other persons , were covering their faces then, there could be no reason as to why the accused appellants would not be covering it, more so, because, at that time, they would not like to be identified by anybody, nor would they use torch-lights on each other's faces, in order to disclose their identity. This theory is not a probable one, and so, cannot be believed. Thus, it appears that in order to take revenge complainant Parma got the names of the accused-appellants in the report. So the basis of the judgment, i. e. , the names of the accused-appellants were mentioned in the report is not a valid ground for their conviction. Conviction can be passed on the other circumstances, if they are established against them. * The circumstance that the accused-appellant's names have been mentioned in the report, because, they were identified in the torch-lights on the night of the alleged incident, is not based on any valid reasons. Some of the prosecution witnesses have stated that the miscreants had come with 2-3 knives, and some say that 4 of them were having knives, and they were throwing torch-light on each other, and so, they were identified in that torch light None of the witnesses has stated that the appellants were having torches in their hands Apart from this, it cannot be believed that the persons who would come to commit dacoity in a dark night, would throw torch-light on each other's faces, so that they may be easily identified in that light, instead, rather they would try to hide their identity: and if they have torches in their hands, then in that case, they would avoid focussing torch-light on any of their companions. It thus be-comes clear that as both the parties were on inimical terms the names of the accused-appellants were, mentioned in the report (Ex. P 1) and in order to esta-blish identification of the accused persons, by the witnesses, the theory of having torches in the hands of some of the miscreants, has been created. ;