Sita v. State of U. P. — 1986 DIGILAW 751 (ALL)

Judgment S.I. Jafri, J. 1. SITA and Hira Lal appellants have filed this appeal against their conviction and sentence of 8 years R. I, recorded by Sri R. S. Misra Sessions Judge, Lalitpur by his judgment and order dated 10-3-1979 in S. T. Nos.28 and 30 of 1978. 2. THE case of the prosecution is that; a dacoity was committed at the house of complainant Narain Das in village Chauraoni P. S. Talbehat, District Lalitpur in the night of intervening 19/20 December, 1977 by 6 dacoits and out of them two were armed with guns. THE complainant and his family members were sleeping inside the house and a lantern was burning in the Atari of his house where the complainant was sleeping. On hearing the alarm raised by the ladies of the house as well as the complainant's brothers, the complainant went to the roof with a torch in his hand. He found 6 dacoits and two of them were armed with guns and they were firing with the intention of scaring away the villagers and on an alarm raised by the complainant and his family members, number of villagers including Ram Dayal, Bindraban, Sukka, Gilla and Lallu were attracted to the scene of occurrence and the dacoits inflicted injuries on the inmates of the house. THE dacoits had plundered the house. THE complainant was also assaulted by the dacoits with Kulahri, when he tried to apprehend them. THE dacoits continued plundering the house for about one and half hours. THE dacoits made good their escape, with the looted properly. It was alleged that dacoits were seen in the light of lantern by the inmates of the house and the villagers who were collected near the scene of occurrence. The complainant lodged a report at the Police Station at 8.30 A. M. on 20-12-78 and a case under Section 395/397 IPC was registered in the General Diary of the Police Station Thereafter Mohd. Aslam PW 16 took the investigation of the case into his hand. He went to the village and recorded the statement of the witnesses. He also prepared the site plan of the occurrence. 3. DURING the investigation, the appellant Sita was arrested on 13-3-1978 by M. L. Bhodi and he was sent to jail thereafter in baparda condition. Aslam PW 16 took the investigation of the case into his hand. He went to the village and recorded the statement of the witnesses. He also prepared the site plan of the occurrence. 3. DURING the investigation, the appellant Sita was arrested on 13-3-1978 by M. L. Bhodi and he was sent to jail thereafter in baparda condition. Hira Lal appellant was arrested by Radhey Shyam Saraswat PW 20 on 26-3-1978 and he was sent to the court on 26-3-1978 baparda. The identification of the accused Hira Lal. was held in the District Jail on 11-4-1978 by Vijai Bahadur Nigam PW 12, Magistrate First Class, Lalitpur and he was correctly identified by Narain Das PW 1, Ram Dayal PW 2 and Bindraban PW 3. Sita appellant was put to identification proceeding in the jail on 28-4-1978, inside the jail conducted by Vijai Bahadur Nigam PW 12 Magistrate First Class. Sita Appellant was correctly identified by Narain Das PW 1 Ram Dayal PW 2 and Bindraban PW 3. 4. AFTER completing the investigation Mohd. Aslam PW 16 submitted the charge sheet against the appellants. The accused pleaded not guilty to the charge and stated that they have been falsely implicated in the case on account of enmity. 5. LEARNED Sessions Judge after considering the entire evidence produced by the prosecution, came to the conclusion that the prosecution has succeeded in proving the charge against the appellants and convicted and sentenced the appellants accordingly as stated above. 6. IN support of its case, the prosecution has examined 20 witnesses, only out of them Narain Das PW 1, Ram Dayal PW 2 and Bindraban PW 3 were examined as eye witnesses of the occurrence Narain Das PW 1 has narrated the prosecution case in detail. He has stated that on the night of the occurrence, he woke up on hearing the alarm raised by his brother Gulab and other members of his family while he was sleeping inside the house. He immediately rushed up to the stairs of his house and there he found 6 dacoits standing and out of them two were armed with the guns. The miscreants were firing with the intention of scaring away the villagers. He further deposed that a lantern was burning inside the house and he was also having torch. He immediately rushed up to the stairs of his house and there he found 6 dacoits standing and out of them two were armed with the guns. The miscreants were firing with the intention of scaring away the villagers. He further deposed that a lantern was burning inside the house and he was also having torch. He further stated on hearing the alram, number of villagers were attracted to the scene of occurrence and out of them Narain Das PW 1 and Ram Dayal had torches. He further stated that the dacoits after plundering the house ran away towards north with the looted property including the ornaments and clothes. He further stated that he had marked the faces of the miscreants in the light of lantern and torches. He further deposed that he was sent to jail for identifying the accused where he had correctly identified the appellants. He had also put his hand correctly on the appellants in the court. Ram Dayal PW 2 and Bindraban PW 3 have corroborated the statement of Narain Das complainant about the factum of dacoity. They also stated before the court that they had reached the place of occurrence on hearing the alram raised by Narain Das and his family members and in the light of their torches they had seen the miscreants. They have also stated that they were asked to identify the appellants inside the district jail where they had correctly identified the accused they have also identified the appellants in the court during their evidence. IN cross-examination Ram Dayal has admitted that on hearing the alarm raised by the complainant and his family members he reached there along; with Bindraban and others and concealed him behind the boundary of the wall and he came out when the dacoits had gone 10 paces from him. Under the circumstances, it appears quite probable that Ram Dayal had no sufficient opportunity to mark the faces of the dacoits. Bindraban has also admitted in his cross-examination that he had also seen the miscreants while sitting behind the said wall and he added that he could see the miscreants through the holes of the wall from a distance of 50 paces. Bindraban has also admitted in his cross-examination that he had also seen the miscreants while sitting behind the said wall and he added that he could see the miscreants through the holes of the wall from a distance of 50 paces. In view of the statements made by Ram Dayal and Bindraban, it is absolutely clear that Ram Dayal and Bindraban had no sufficient opportunity to mark the faces of the miscreants and under the circumstances, it will not be safe to place reliance on the evidence of identification by them. Narain Das, has no doubt, correctly identified the appellants but in the absence of any other corroborative evidence, it will not be safe to place reliance on the testimony of the complainant for the conviction of the appellants. In view of the facts and circumstances, as discussed above, the order of conviction and sentence recorded by the trial court deserves to be set aside. 7. IN the result, the appeal is allowed. The conviction and sentences recorded by the trial court against the appellants are set aside. The appellant Sita is on bail. He need not surrender. His bail bonds are discharged. Hira Lal appellant who is in jail, shall be released forthwith unless wanted in some other case. Appeal allowed.