Vikrama (In Jail) v. State — 1998 DIGILAW 134 (ALL)

Judgment B.K. Sharma, J. 1. This is an appeal against the judgment and order dated 6.12.1980 passed by Sri A.K. Agrawal, the then Vth Additional Sessions Judge, Ballia in S.T. No. 257 of 1979 and S.T. No. 30 of 1980, whereby he convicted the accused Vikrama of the offence under Section 395 read with Section 397, I.P.C. and sentenced him to undergo R.I. for a period of 7 years. 2. The prosecution story was as follows : The Tilak of the daughter of Bachchan Lal informant was to be sent on 1.6.1979 for which his relatives had come. In the night between 31.5.1979/1.6.1979, the informant, Ram Barai Lal and Vindhyachal Lal and others were sleeping outside the main door of his house. A lantern was hanging from aukumi in front of his Osara and burning. Women were sleeping inside the house and Ashok Kumar and Nitya Nand were sleeping on the roof of the house. At about 00.15 hours in the night on the barking of the dogs, Ram Barai Lal got up and awakened the informant Bachchan Lal and others. They saw 8-9 dacoits at their door one of whom had a gun and the others were armed with Lathis. The dacoits were also flashing their torches. The dacoits started beating the informant and others who were outside the house and due to their hue and cry, the wife of Vindhyachal Lal opened the main door of the house, whereupon 3-4 dacoits entered into the house and looted ornaments and cash from a box kept in the northern room of the house by breaking open the box. Ashok Kumar came down from the roof to the main door, whereupon, the dacoits beat him with Lathis. Sudama Singh and other witnesses came on the spot flashing their torches and the faces of the dacoits were seen in the light of the lantern, the torches of the witnesses and the torches of the dacoits. After committing dacoity, the dacoits escaped towards north along with the looted property firing from gun leaving behind a misfired cartridge, a discharged cartridge and the grip of a gun on the spot. Bachchan Lal informant went to the police station and lodged his F.I.R. at the police station at 6 a.m. on 1.6.1979 naming two persons and claiming that the rest of the culprits were not known. Bachchan Lal informant went to the police station and lodged his F.I.R. at the police station at 6 a.m. on 1.6.1979 naming two persons and claiming that the rest of the culprits were not known. During the investigation, the present accused Vikrama was arrested on 2.6.1979 and made Baparda and put up for identification and ultimately charge-sheet was submitted against Daddan, Devendra, Bhim Giri, Sudama and the present accused-appellant. 3. The trial court convicted the present accused-appellant and co-accused Sudama Singh. The trial court, however, acquitted the remaining three co-accused. The present appeal has been preferred by Vikrama accused-appellant. 4. I have heard learned counsel for the parties and also gone through the record. The fact that a dacoity was committed at the house of Bachchan Lal informant (P.W. 1) in village Maritar was established beyond every shadow of doubt. There was eye-witness account of the dacoity given by Bachchan Lal informant (P.W. 1), Nitya Nand (P.W. 2), Ashok Kumar (P.W. 3) and Vindhyachal Lal (P.W. 4). There were as many as six injured in this case. Bachchan Lal, Ashok Kumar and Vindhyachal Lal P.Ws. themselves were injured and besides them Smt. Gauri Devi, wife of Vindhyachal Lal, Ram Barai and Raj Kishore Lal were also injured in this occurrence. Their medical evidence has come on record which has not been challenged. The factum of dacoity was not challenged before the trial court and the plea of the accused persons was that they had not participated in the dacoity and they have been falsely implicated in the dacoity. Before this Court also, the factum of dacoity has not been challenged. Bachchan Lal (P.W. 1) and Vindhyachal Lal (P.W. 4) were real brothers inter se and Nitya Nand (P.W. 2) and Ashok Kumar (P.W. 3) were sons of their brother Ram Barai. On the prosecution evidence, they were inmates of the informant's house. Therefore, their presence on the place of occurrence in the night of the occurrence would be natural and the defence has also not challenged their presence at the house of the informant at the time of occurrence. On the prosecution evidence, they were inmates of the informant's house. Therefore, their presence on the place of occurrence in the night of the occurrence would be natural and the defence has also not challenged their presence at the house of the informant at the time of occurrence. On the prosecution evidence, Bachchan Lal informant (P.W. 1) and Vindhyachal (P.W. 4) both were sleeping in the verandah of the house outside its main door and Nityanand (P.W. 2) and Ashok Kumar (P.W. 4) were sleeping on the roof of the house and when the dacoits came Bachchan Lal informant and his brother Vindhyachal Lal both got up and raised alarm and on their alarm, Nityanand and Ashok Kumar came down from the roof. 5. Now the next question which arises is whether the said witnesses were able to see and identify the dacoits. It is not disputed that the night of the dacoity was a dark night. However, the prosecution has set up artificial lights. One was light of a lantern hanging on the hook of the roof of the verandah of the informant's house and burning in the night of occurrence. The other source was the light of torches of the dacoits. The third source was the light of torches of the witnesses who had collected at the spot on hearing the alarm. All the three artificial sources of light have been testified by Bachchan Lal informant (P.W. 1) and Vindhyachal Lal (P.W. 4). Nityanand (P.W. 2) and Ashok Kumar (P.W. 3) also testified to the light of lantern and the light of torches of the dacoits. They have not specifically mentioned about the torches of the witnesses. The burning of lanterns by the villagers in their houses during the night is quite normal and in the circumstances of the present case, there is absolutely no reason to doubt that the lantern must be hanging and burning as claimed by the aforesaid prosecution witnesses. The dacoity took place in the night between 31.5.79 and 1.6.79 and the evidence of Bachchan Lal informant (P.W. 1) was that on 1.6.79 in connection with the Tilak of his brother's daughter, he was to go and for going in connection with that Tilak, his relatives and his brother's daughter had also come. The dacoity took place in the night between 31.5.79 and 1.6.79 and the evidence of Bachchan Lal informant (P.W. 1) was that on 1.6.79 in connection with the Tilak of his brother's daughter, he was to go and for going in connection with that Tilak, his relatives and his brother's daughter had also come. So, it was out of question to put off the lantern while going to sleep in a house where his relatives had also come and there was preparation for going in that Tilak. Then there was nothing strange in the dacoits coming and flashing torches while committing the dacoity. The night was dark. They needed an artificial source of light to make their way to the house and to locate the movable properties of the house, so that the same may be looted and carried away. They, of course, would not be flashing their torches on each other or on themselves but the glow of the torches of dacoits was bound to spread around and help the victims and the witnesses in making the identification of the dacoits. In the ordinary course, the witnesses would rush to the spot on hearing the alarm and it will be a normal circumstance for them to carry torches with them and flash the same towards the dacoits. 6. The learned counsel for the accused-appellant had relied on the authority State of U.P. v. Jageshwar and others, AIR 1983 SC 349 , in which identification of a large group of 14/15 persons at dead of night in the light of a tiny kerosene lantern was held inherently difficult. In my opinion, this authority does not help the accused-appellant as in that case of murder, the tiny lantern was the only source of light in the dark night and in the present case, there were established several other sources of artificial light detailed earlier, besides the light of lantern. The trial court has believed the evidence of the prosecution witnesses on the point of light and there is absolutely no reason to discard the same. 7. The accused-appellant was correctly identified by Bachchan Lal informant (P.W. 1), Nityanand (P.W. 2), Ashok Kumar (P.W. 3) and Vindhyachal Lal (P.W. 4) at the identification proceedings without making any mistake. At the trial also, all the said four prosecution witnesses correctly identified him without making any mistake. 7. The accused-appellant was correctly identified by Bachchan Lal informant (P.W. 1), Nityanand (P.W. 2), Ashok Kumar (P.W. 3) and Vindhyachal Lal (P.W. 4) at the identification proceedings without making any mistake. At the trial also, all the said four prosecution witnesses correctly identified him without making any mistake. THE learned Sessions Judge ignored the identification evidence given by Nityanand (P.W. 2) on the ground that he had made three mistakes in the identification parades dated 25.9.79 and 15.1.1980. As a matter of fact, the identification evidence of Nityanand (P.W. 2) was also good because only the mistakes made by a witness at the identification parades held on the same date of identification parade in respect of a particular accused or any identification parades held prior to that date are relevant and could be taken into account in coming to the conclusion whether his identification evidence as to that accused was good or not. Any mistake by that witness in parades subsequent in the point of time, then the parade of that accused were not to be taken into account in so far as that accused was concerned. 8. The prosecution has led link evidence about the accused-appellant being kept Baparda from the time of his arrest till the time of his lodgement in the district jail. There is evidence of Ram Vilas Yadav, S.I. (P.W. 9) and Harnam Singh, S.O. (P.W. 12). Ram Vilas Yadav, S.I. stated that he arrested Vikrama accused-appellant from Sahatwar on 2.6.79 where he was made Baparda and told him that he will be put up for identification and took him Baparda to P. S. Sahatwar and lodged him in the lock-up there and that so long accused-appellant remained in his custody, he remained Baparda. There was no cross-examination of this witness on this point. Harnam Singh, S.O. (P.W. 12) also gave evidence and testified about the said arrest and his being sent with Ram Vilas Yadav, S.I. to police station Sahatwar. Harnam Singh, P.W. 12 was suggested in his cross-examination that there was furniture shop of Vikrama accused-appellant in Bansdih and that on 29.4.79 he called upon Vikrama accused-appellant to make furniture for him but when accused-appellant demanded advance, he got annoyed. He has refuted this suggestion. He also denied that he got this accused-appellant identified from the witnesses falsely to settle the scores with him. 9. He has refuted this suggestion. He also denied that he got this accused-appellant identified from the witnesses falsely to settle the scores with him. 9. Here it may be mentioned that in his statement under Section 313, Cr. P.C., the accused-appellant claimed that Harnam Singh had demanded a palang from him and given some money in advance but when the remaining price was demanded, Harnam Singh got his wood, etc. thrown away. The suggestion to Harnam Singh and the claim of the accused under Section 313, Cr. P.C. are discrepant with each other. This shows that a false plea of enmity with Harnam Singh has been taken by the accused-appellant. 10. The prosecution has also examined Indradeo Yadav, Head Moharrir (P.W. 7). He testified about the lodgement of the accused-appellant by Ram Vilas Yadav, S.I. at police station Sahatwar on 2.6.79 at 6.35 p.m., about which entry was made in the G.D. of the police station and that on 3.6.79 the accused-appellant was despatched for Ballia Baparda and an entry was made in the G.D. also in this regard. He testified that till the accused-appellant remained at the police station he was kept Baparda. It was elicited from this witness in his cross-examination that the accused-appellant has been lodged at the police station in his absence and that he had himself reported on his duty at the police station at 7.55 p.m. Thus there remained a gap for only a short period from 6.35 p.m. to 7.55 p.m. (one hour and 20 minutes). There was, however, no suggestion made to this witness that before his arrival to duty, the accused-appellant was shown to the witnesses. The suggestion was that the police got the accused-appellant photographed and had shown him to the witnesses. He has denied this suggestion. There is no reason to doubt this denial made by him. The present occurrence relates to village Meritar in police station Bansdih. Bachchan Lal informant (P.W. 1) was suggested in his cross-examination that he and the witnesses saw the accused-appellant at the police station. He made a denial to this suggestion. It is significant that it was not specified at which police station the accused-appellant was shown to the witnesses. Nityanand (P.W. 2) also denied that he was taken to the police station and shown Vikrama accused-appellant. He made a denial to this suggestion. It is significant that it was not specified at which police station the accused-appellant was shown to the witnesses. Nityanand (P.W. 2) also denied that he was taken to the police station and shown Vikrama accused-appellant. Ashok Kumar (P.W. 3) was not given any such suggestion in his cross-examination, nor was Vindhyachal Lal (P.W. 4) given any such suggestion. It is also significant in this case that side by side with the plea that the accused-appellant was photographed at the police station and also shown to the witnesses, a plea was also taken that the witnesses knew him from before the occurrence. So, there were pleas of both known and shown to the witnesses. These two pleas rather tend to discredit each other though the accused may take both pleas. If he was known to the witnesses from before, the police could not be ignorant about it and there was no occasion or need for them to call upon the witnesses at the police station and to get them acquainted with his face and features. 11. It has come in informant's evidence that Sahatwar was six miles from his village Meritar. The accused-appellant is resident of village Sahatwar. This address he gave before the Magistrate who got the identification proceedings conducted about him, at the time of his statement under Section 313, Cr. P.C. and even in the memo of this appeal. It was elicited from the informant in his cross-examination that police station Bansdih is two miles from his village Meritar and to the south of the police station, there is a saw machine. However, he denied the suggestion that furniture like table, chair or palang are made at the saw machine. It was further elicited from the informant that he visits town Bansdih and that he has been a teacher in Bansdih. However, it was not suggested to the informant that he ever visited the saw machine or the alleged furniture shop in Bansdih. Furthermore, he was not suggested that the said saw machine of shop was of Vikrama accused-appellant. 12. It was then elicited in his cross-examination that one Ram Kishore, S/o Ram Bali Sharma, lived in his village and that he is a teacher in a Primary School. It was suggested to him that Ram Kishore was a relative of accused-appellant Vikrama. He pleaded ignorance. 12. It was then elicited in his cross-examination that one Ram Kishore, S/o Ram Bali Sharma, lived in his village and that he is a teacher in a Primary School. It was suggested to him that Ram Kishore was a relative of accused-appellant Vikrama. He pleaded ignorance. Then he was suggested that Ram Kishore is the Mausa (husband of the real sister of Vikrama's mother) of Vikrama appellant. He pleaded ignorance to this suggestion also. He admitted that his house was 10 to 12 houses away from the house of Ram Kishore. The informant categorically stated that he never saw the accused-appellant at the door of Ram Kishore and for this reason, he could not say if he lived at the house of Ram Kishore. It does amount to a denial of the claim of the accused-appellant that he lived at the house of Ram Kishore. In fact his address has been given by him at the time of identification proceedings, then in his statement under Section 313, Cr. P.C. and then in the title of the memo of his appeal as of Sahatwar, and no other address, has been given. So the accused-appellant cannot succeed by raising the plea of being a relation of Ram Kishore, resident of village Meritar by claiming that in the night, he lived at Ram Kishore's house. It was elicited from him that there was a teacher in his village named Sita Ram Singh, who was since dead. It was suggested that there was relationship of Sita Ram Singh with one Bachcha Singh of Sahatwar. He pleaded ignorance in reply to this suggestion. Then it was suggested that he knew Vikrama accused-appellant from before the occurrence and that he and the witnesses had also seen the accused-appellant Vikrama at the police station and further that he has been falsely implicated at the instance of the sons of Sita Ram Singh. It was, however, not suggested as to what was the enmity between Bachcha Singh and Vikrama accused-appellant. So the plea had no substance. The denial of the witness has to be accepted. 13. It was suggested to Nityanand (P.W. 2) that he used to see Vikrama accused-appellant at the furniture shop at Bansdih. He stated that he did not see any furniture shop in Bansdih, nor had he seen any saw machine in Bansdih. So the plea had no substance. The denial of the witness has to be accepted. 13. It was suggested to Nityanand (P.W. 2) that he used to see Vikrama accused-appellant at the furniture shop at Bansdih. He stated that he did not see any furniture shop in Bansdih, nor had he seen any saw machine in Bansdih. He further stated that he did not notice if there was any saw machine in front of the college or not. The defence suggestion made to him was that he used to see Vikrama accused-appellant at the furniture shop in Bansdih and used to converse with him. He had refuted this suggestion. No particular reason has been suggested to him as to why he would visit any such furniture shop and converse with the accused-appellant. He also refuted the suggestion that he saw Vikrama accused-appellant at the house of Ram Kishore. He was suggested that he falsely implicated Vikrama accused-appellant in this case which he denied. He was nowhere suggested any reason for falsely implicating the accused-appellant. He was suggested that he was taken to the police station and shown Vikrama accused-appellant. He refuted this suggestion also. Nothing was elicited from him in his cross-examination to show that he had any enmity with the accused-appellant, nor was there any such enmity elicited from Bachchan Lal informant. 14. Ashok Kumar (P.W. 3) stated that he did not see any furniture shop in Bansdih. He admitted that there is a saw machine in Bansdih but denied that there are shops of Chauki and Charpai in Bansdih. He also denied that there is a wood shop in front of the police station. He refuted the suggestion that Vikrama accused-appellant used to run a shop of furniture in Bansdih town. The witness admitted that he knew Ram Kishore Sharma of his village. He was suggested that Vikrama accused-appellant used to live at the house of his maternal uncle (mother's brother) Ram Kishore Sharma and that he knew the accused-appellant from before and further that he has falsely implicated the accused-appellant at the asking of police of police station Bansdih. He refuted all these suggestions. It is significant that he was not suggested that he was called to the police station and shown the accused-appellant. He refuted all these suggestions. It is significant that he was not suggested that he was called to the police station and shown the accused-appellant. Vindhyachal Lal (P.W. 4) too was suggested in his cross-examination that Vikrama accused-appellant was Bhanja (son of sister) of Ram Kishore and that he lived at Ram Kishore's house. He refuted both the suggestions. He also refuted the suggestion that the accused-appellant used to run a shop of Chauki, Charpai, etc., in Bansdih. He also denied the suggestion that he knew the accused-appellant from before the date of occurrence. He categorically stated that there is a saw machine in Bansdih but there is no shop of making Charpai, Chauki, etc., it. It is significant that he was not suggested in his cross-examination that he was called by the police to the police station and shown the accused-appellant. He was also not suggested that he used to visit Ram Kishore and used to meet the accused-appellant there. 15. In his statement under Section 313, Cr. P.C., the accused-appellant stated that his relationship was with Ram Kishore Sharma, resident of Meritar, that he used to visit Ram Kishore relative and that the householders of Bachchan Lal knew him from before. He also stated that he had a land in Sahatwar in respect of which a quarrel had taken place with one Muneshar Singh, S.I., that Muneshar Singh is posted in Varanasi and that Harnam Singh, S.O. used to visit the house of Muneshar Singh. He further claimed in his statement that he had given an application against Muneshar and two months after it, he was got falsely implicated in the present case. He further claimed that the witnesses had given evidence falsely against him at the instance of the police. It may be mentioned here that when Harnam Singh, S.O. (P.W. 12) was in the witness box, he was not made any such suggestion that he used to visit Muneshar Singh, S.I. or that Muneshar Singh, S.I. had asked him to falsely implicate the accused-appellant. So the plea has come as an afterthought. 16. It may be mentioned here that when Harnam Singh, S.O. (P.W. 12) was in the witness box, he was not made any such suggestion that he used to visit Muneshar Singh, S.I. or that Muneshar Singh, S.I. had asked him to falsely implicate the accused-appellant. So the plea has come as an afterthought. 16. The accused-appellant did get the record of the applications of the years 1976 and 1978 summoned from the police station Ballia and Basudeo, record keeper of the police station (D.W. 2) stated that the register and the applications of the said years had been weeded out and so he could not say whether Vikrama accused-appellant had given any application in the year, 1978. The accused-appellant cannot be given any benefit of doubt due to this. Anybody may know the period for which applications are preserved in police office as per rules and then take such a plea with impunity. Furthermore, the accused-appellant did not produce or file the copy of any such application allegedly moved by him against Muneshar Singh, S.I., nor did he make any specific suggestion or allegation as to on what date he made the complaints and what were the allegations in the complaints. He did not disclose as to when any such quarrel had taken place about the land with Muneshar Singh, S.I. He also did not examine any witness about the alleged quarrel with Muneshar Singh, S.I. In regard to his plea that he (accused-appellant) was known to the witnesses, he examined Shiv Dayal (D.W. 3). Shiv Dayal testified that Vikrama accused-appellant was the son of the sister of his wife. In other words, the witness claims to be the mausa of the accused-appellant Vikrama. Due to relationship though this witness could be expected to know the facts about the accused-appellant but then it is also to be kept in mind that being a close relation of the accused-appellant, he would be interested in securing his acquittal even by telling false facts. So his testimony cannot be taken at its face value. It has to be scrutinised with great care. He testified that Ram Kishore Sharma, resident of village Meritar, was his (Shiv Dayal's) Pattidar and Govind Ji is son of Shivdhari who was his (Shiv Dayal's) father-in-law and Govind Ji and Ram Kishore were Sarhus inter se. So his testimony cannot be taken at its face value. It has to be scrutinised with great care. He testified that Ram Kishore Sharma, resident of village Meritar, was his (Shiv Dayal's) Pattidar and Govind Ji is son of Shivdhari who was his (Shiv Dayal's) father-in-law and Govind Ji and Ram Kishore were Sarhus inter se. He claimed that Sasural of Govind Ji and Ram Kishore was in Ram Nagar, but he could not tell the name of their father-in-law. He further stated that Ram Kishore of village Meritar was Sarhus of the maternal uncle of the accused-appellant. He further testified that there was the furniture shop of Vikrama accused-appellant in Bansdih and that every night Vikrama accused-appellant used to go to the house of Ram Kishore and sometimes he (the accused-appellant) used to come to his (Shiv Dayal's) house. In other words, his claim was that while in the day the accused-appellant used to be at his furniture shop in Bansdih, in the night he normally used to stay with Ram Kishore in village Meritar. He further claimed that the house of Bachchan Lal informant was two furlongs from his (Shiv Dayal's) house and that the house of Ram Kishore was two to three houses away from the house of the informant. He further claimed that Vikrama accused-appellant used to go to village Meritar off and on and so the witnesses knew and identified him (Vikrama). He further testified that at the time of his testimony (2.12.1980, i.e., one and half year after the occurrence) there were present 5 to 6 furniture shops in Meritar village. In his cross-examination he could not tell the name of the grandfather of Ram Kishore. He claimed that his forefathers were originally residents of village Meritar but had migrated to Shivrampur and had settled there for the last 100 years. He could not name the sons of Ram Kishore. However, the point of importance is that on his own showing Ram Kishore is the person around whom the entire defence plea on the question of known is based. He could not name the sons of Ram Kishore. However, the point of importance is that on his own showing Ram Kishore is the person around whom the entire defence plea on the question of known is based. As per defence case, it was he (Ram Kishore) who was related to the accused-appellant and it was he at whose house in Meritar the accused-appellant used to come and stay every day in the night and it was due to his visiting Ram Kishore in the village and being at his house in the night that the witnesses are said to be acquainted with the accused-appellant from before the dacoity. That being so, if the defence was truthful, Ram Kishore would have been examined as a defence witness and not Shiv Dayal who was not resident of village Meritar where the witnesses lived and where Ram Kishore lived. He (Shiv Dayal) was resident of Shivrampur. The statement of this witness was thus essentially hearsay on most points. Another aspect is that the fact that Ram Kishore has not been produced in the witness box goes to show that he was not willing to testify to the defence case that the accused-appellant used to visit him daily and used to live at his house in the night. In these circumstances, the evidence of Shiv Dayal (D.W. 3) merits rejection and the Sessions Judge has rightly rejected the plea of the accused-appellant that he was known to the witnesses from before and he also rightly rejected the plea of accused-appellant that he was got falsely implicated by the police. 17. As noted earlier, there were four good identifications against the accused-appellant and there was ample opportunity to the witnesses to see and identify the accused-appellant in the sufficient light available for the purpose and then they had also no reason to falsely implicate the accused-appellant. Therefore, the finding of the Sessions Judge in regard to the guilt of accused-appellant Vikrama is based on sound footing and there is no ground to disturb the same. 18. The learned counsel for the accused-appellant has relied on the authority Toofan Shah v. State, 1984 UPCrR 328. In my view, this ruling also does not help the accused-appellant. Therefore, the finding of the Sessions Judge in regard to the guilt of accused-appellant Vikrama is based on sound footing and there is no ground to disturb the same. 18. The learned counsel for the accused-appellant has relied on the authority Toofan Shah v. State, 1984 UPCrR 328. In my view, this ruling also does not help the accused-appellant. This ruling is based on the authority Asharfi v. State, 1960 ALJ 595, wherein a Division Bench of this Court had observed : "If the accused happens to belong to his own village, identification is useless and his name must be expected to be mentioned in the first information report or shortly afterwards. If he resides in a place situate within a radius of two miles of the habitation of the witness, it is safe to assume that he was already known." In Toofan Shah's case, the village where Toofan Shah accused lived was situated at a distance of about two miles and three furlongs from the village where the dacoity took place and the identifying witnesses resided. In Toofan Shah's case, the Court extended the presumption of Asharfi's case as the intervening distance was only about a couple of furlongs more than the two miles distance mentioned in Asharfi's case, in which case the presumption of already known was raised. In the present case as noted earlier accused-appellant Vikrama was admittedly a resident of village Sahatwar. This address he had given even at the time of his identification in Jail by the witnesses. Sahatwar was admittedly six miles away from the village of occurrence, namely Meritar. So the presumption of Asharfi's case cannot be invoked here. We have already rejected the claim of the accused-appellant that he had a furniture shop in Bansdih or that he lived at the house of Ram Kishore in the village of occurrence. So, even if we take him to have visited Ram Kishore casually the presumption mentioned in Asharfi's case and in Toofan Shah's case (supra), cannot be raised on its basis. Learned counsel for the accused-appellant has also relied on the authority Ram Lakhan v. State of U.P., AIR 1983 SC 352 (1). On the facts and the circumstances of that case the conviction of accused-appellant of that case was set aside by the Apex Court. In that case nine persons were named in the F.I.R. for having committed dacoity. Learned counsel for the accused-appellant has also relied on the authority Ram Lakhan v. State of U.P., AIR 1983 SC 352 (1). On the facts and the circumstances of that case the conviction of accused-appellant of that case was set aside by the Apex Court. In that case nine persons were named in the F.I.R. for having committed dacoity. Out of them the trial court acquitted five and convicted four and in appeal the High Court acquitted the remaining three accused persons also and maintained the conviction of only Ram Lakhan accused-appellant and in those circumstances the Apex Court observed that before an offence of committing a dacoity can be made out, there must be an assembly of five or more persons, that on the findings of the Courts below it is manifest that only one person is left and thus the appellant cannot be convicted for offence of committing the dacoity as the High Court had not found Ram Lakhan accused-appellant to be guilty of any overt act so as to bring his case within any other minor offence. In the present case, however, the position is different. In the F.I.R. the number of dacoits was said to be seven or even eight and out of them, only two were named in the F.I.R. and the rest were unknown persons and the Sessions Judge gave the benefit of doubt to Daddan accused on the ground that there was single identification against him, gave the benefit of doubt to Bhimgiri accused on the suspicion that he might have been implicated on account of enmity and convicted the present accused-appellant and one Sudama Singh at the same trial. So, here the finding of the Court below does not reduce the number of culprits to less than five. Furthermore, as noted earlier, the factum of dacoity is fully established in this case and has also not been disputed before the trial court or this Court. A dacoity involves participation by five or more culprits. So, in my view, the accused-appellant is not entitled to the benefit of this authority of the Apex Court. 19. Coming to the point of sentence, the trial court has awarded seven years' R.I. to the accused-appellant. The usual sentence in the case of dacoity is five years' R.I. In my view, it would be adequate for this accused-appellant also. 20. 19. Coming to the point of sentence, the trial court has awarded seven years' R.I. to the accused-appellant. The usual sentence in the case of dacoity is five years' R.I. In my view, it would be adequate for this accused-appellant also. 20. For the reasons aforesaid, the appeal is dismissed. The conviction of the accused-appellant Vikrama for the offence under Section 395 read with Section 397, I.P.C. is upheld. However, his sentence is reduced to R.I. for a period of five years. Vikrama accused-appellant is on bail from this Court. Let him be arrested and send to the District Jail concerned to serve out his sentence according to law. Let a copy of this judgment be sent to the learned Chief Judicial Magistrate, Ballia at once for information and compliance. The compliance report shall be submitted by the Chief Judicial Magistrate, Ballia to this Court within a month from today. The record of this appeal shall be placed before this Bench after a month along with the compliance report of the Chief Judicial Magistrate, Ballia.