SORAN v. STATE OF U P — 1998 DIGILAW 217 (ALL)

B. K. SHARMA, J. This is an appeal against the judgment and order dated 17-10-1980 passed by Sri Gaya Prasad the then 6th Additional Sessions Judge, Main-puri in S. T No. 369 of 1980, State v. Soran and another, under Section 395,1. P. C. , P. S. Jasrana, whereby, he convicted the ac cused-appellants of the offence under Sec tion 3951. P. C. and sentenced each of them to undergo R. I. for 5 years. 2. Heard learned counsel for the par ties. It is established on the evidence that a dacoity took place at the house of Pitam Singh P. W. 2 in village Nagla Julha Mauza Patham P. S. Jasrana District Mainpuri in the night between 10/11- 3-1980 at about 00. 30 hours in which Chheda Lal P. W. 3, Smt. Haraini Devi P. W. 4 and Smt. Anto were injured and empty cartridge was found lying at the spot. The I. O. also found door planks to the West faced Zenana Ghar of the house of Pitam Singh in cut condition and the ornaments and cloths were looted from the Zenana Ghar of the house of Pitam Singh which was West faced and whose door planks was cut and broken open. The injuries of the victims were caused by fire arm and blunt weapons. The defence also does, not dis pute the factum of dacoity. Both the ac cused-appellants Soran and Lajja Ram had been nominated in the F. I. R. alongwith one Sumer who could not be apprehended during the investigation as he was absconding. 3. The ocular testimony at the trial has been given by Ganga Singh informant P. W. 1, Chheda Lal, P. W. 3, and Smt. Naraini Devi P. W. 4. It is not disputed that the accused-appellants were known to the witnesses from before. The accused-appel lants lived in village Ramalpur situated just a mile away from the village where the occurrence took place. 4. In the case of a dacoity committed in the dead of night the first question al ways is whether there was sufficient artifi cial light present and another question, is whether the presence of the eye-witnesses at or near the scene of occurrence was believable and if so, whether they were in such a situation with reference to the sourse or sources of light and the dacoits so as to be able to see and identify them. In such a case like present, where the dacoits have been named in the F. I. R. , the ques tion of false implication on account of enmity also crops up, though it cannot be said that persons can never commit dacoity at the houses of their enemies. It is all a matter of appreciation of evidence in the light of the surrounding circumstances. 5. Now an unusual feature in the present case is that Pitam Singh P. W. 2 who is the owner of the house in which the dacoity took place was not an eye-witness of the dacoity. He claimed that he was not at the house at the time of dacoity and came to the house on receiving informa tion of the dacoity. The F. I. R. of this case though lodged promptly at 4. 45 a. m. on 11-3-1980, was lodged by Ganga Ram P. W. 1, a resident of the same village. The defence disputes his presence at the house of Pitam Singh at the time of occurrence. Smt. Naraini Devi wife of Pitam Singh was an inmate of the house and so her presence at the time of occurrence was not open to doubt and it has also not been doubted by the defence. As noted earlier, she is also an injured in the occurrence. Ganga Singh informant had his house elsewhere in the village and Chheda Lal P. W. 3 also had his house at a different place in the village. Their houses have not been depicted by the I. O. in the site plan. On the own showing of Ganga Ram P. W. 1, the informant of the case, his house is away from the house of Pitam Singh. So in the ordinary course, he would be sleeping at his own house in the village. He does not claim in the F. I. R. or at the trial that he woke up at his house on hearing noise or alarm and rushed to the house of Pitam Singh and saw the occur rence. His case in the F. I. R. and also in his testimony at the trial was that he was sleep ing in the night of occurrence in the Baithka of Pitam Singh and woke up at the sound of the breaking of the door planks of the Zanana Ghar of the house of Pitam Singh and saw the occurrence. His case in the F. I. R. and also in his testimony at the trial was that he was sleep ing in the night of occurrence in the Baithka of Pitam Singh and woke up at the sound of the breaking of the door planks of the Zanana Ghar of the house of Pitam Singh and saw the occurrence. The defence has disputed this claim. Ganga Singh in formant did not claim at the trial that since Pitam Singh was going out of Station he slept at Pitam Singhs house at the request of Pitam Singh. He testified at the trial in his examination-in-chief that he was sleep ing in the Baithka of Pitam Singh and that Ram Singh and Chheda Lal, P. W. 3, were also sleeping in the Baithka. Cross-ex amined, the stated that he regularly sleeps at the Baithka of Pitam Singh itself. "main PITAM SINGH KE BAITHAKA PER HI SOTA HOON. " He further stated that he, Ram Singh and Chheda Lal sleep at the Baithka of Pitam Singh P. W. 2 daily. The explanation given by him was "prem Bhav KJ Vajah Sey Sotey They. Aur Koyee Khas Vajah Nahin Thi. " So, the definite case has been taken by him that he used to sleep regularly at the Baithka of Pitam Singh. He stated that he was related to Pitam Singh as Brother by village relation ship. He stated in his evidence that the Khandan of himself and Maharaj Singh was one and that the Khandan of Pitam Singh P. W. 2 was separate. In other words, he and Pitam Singh did not belong to the same Khandan. So in the ordinary course, Ganga Singh informant was not likely to sleep at the Baithka of Pitam Singh daily having regard to the ordinary course of life of Indian villages. As noted earlier, he is not an injured in the occurrence and so this corroborative circumstance is also absent. 6. Another point of importance is that when Pitam Singh entered the witness box, he did not say that Ganga Singh in formant used to sleep in his Baithka in the night as a routine or even that Ganga Singh was sleeping in the Baithka in the night of occurrence. 7. 6. Another point of importance is that when Pitam Singh entered the witness box, he did not say that Ganga Singh in formant used to sleep in his Baithka in the night as a routine or even that Ganga Singh was sleeping in the Baithka in the night of occurrence. 7. Smt. Naraini Devi P. W. 4 wife of Pitam Singh informant did state in her examination-in-chief that in the night of occurrence, Ganga Singh informant, Chheda Lal and Ram Singh were sleeping in her Baithka. In her cross-examination, she claimed that she had told the I. O. that Chheda Lal, Ganga Singh and Ram Singh had slept in her Baithka. However, on the pointing out that the I. O. had not recorded this in her statement in the case diary, she could not give any explanation for this omission. She claimed in the next sentence that these witnesses had come (running) from inside the Baithka and not from the village. When she was confronted with her statement before the I. O. under Section 161, Cr. PC. "mere Shore Per Gaon Ke Ram Singh, Chheda Lal, Ganga Singh Aur Bahut Se Log Daur Ker Aye The", her reply to it was that she had given this statement to the I. O. correctly. This state ment taken at its plain meaning would show that these persons came running to her house on her alarm and it is difficult to believe that she meant by this statement that these 3 persons had come with a fast speed from the Baithaka of her own house to her Zenana Ghar where she was at the time of dacoity. In the ordinary course, if these persons were sleeping in the Baithka of her house and they got up and came to the Zenana Ghar of the house and the villagers also rushed to the scene of occur rence, she would have told the Investigat ing Officer that these 3 persons came from the Baithka and villagers rushed from their houses to the scene of occurrence. The statement of this witness Smt. Naraini Devi as given to the Investigating Officer which she accepts as correct thus goes to show that the claim now being made by her at the trial that the informant Ganga Singh and 2 others namely Ram Singh and Chheda Lal were sleeping in the Baithka of her house in the night of the occurrence and got up from there, was an improvement made by her at the trial. All these circumstances go to show that the prosecu tion case that Ganga Singh informant was sleeping at the Baithka of the house of Pitam Singh at the time of the occurrence was not true and it is not possible for this Court to make out a new case for the sake of the prosecution that Ganga Singh in formant rushed to the spot on hearing alarm and then saw the occurrence and identified the accused persons. So his evidence of identification against the ac cused-appellant becomes highly doubtful and has to be discorded. 8. A related aspect is whether Chheda Lal P. W. 3 was sleeping in the Baithka of Pitam Singh in the night of dacoity as claimed by him in his testimony at the trial. In his examination-in-chief, Chheda Lal P. W 3 did not say that he used to sleep in the Baithka of Pitam Singh every day and he did not also say that in the night of occurrence for some special a reason, he was sleeping in the Baithka of Pitam Singh. In his cross-examination also, he did not make any such claim. In the ordinary course, he should have been sleeping at his own house and not in the house of Pitam Singh. Ganga Singh informant P. W 1 did say that Ram Singh is a relation of Pitam Singh by village relationship but admitted that Chheda Lal P. W. 3 did not belong to Pitam Singhs family i. e Khandan. He did claim in his cross-examination that he, Ram Singh and Chheda Lal sleep daily at the Baithka of Pitam Singh out of love and affection, and for no particular reason but this claim does not appeal to reason. It may be that Chheda Lal was an injured in the occurrence and he had received fifty six pellet entry-wounds on his body due to disposal from fire shot from behind from quite a long distance. It may be that Chheda Lal was an injured in the occurrence and he had received fifty six pellet entry-wounds on his body due to disposal from fire shot from behind from quite a long distance. However, it does not necessarily mean that he was sleeping in the Baithka of Pitam Singh in the night of occurrence. At the evidence of the inform ant three houses intervened between the house of Chheda Lal P. W. 3 and the house of Pitam Singh and so during the course of dacoity, he could have come to the scene of dacoity and in the course of the dacoity could have received the fire arm injuries on his person. 9. The story in the F. I. R. is that on alarm Bansi Lal and others came flashing torches and in the meantime the turi was set on fire and on Bansi firing with gun the dacoits fired towards the prosecution wit nesses. This sequence thus shows that Chheda Lal P. W. 3 had received his firearm injuries after the arrival of the villagers including Bansi and after Bansi had fired towards dacoits. So the fire arm injuries of this witness were fully consistent with his arrival at the scene of occurrence from his house on hearing the alarm. 10. The sleeping of Chheda Lal at the Baithka of Pitam Singh having been found doubtful his identification evidence given at the trial also becomes doubtful and it cannot be safely acted upon. 11. Ram Singh, the third witness said to be sleeping in the Baithka, had not entered in the witness box and so we need not enter into the question whether Ram Singh was present at the house of occur rence in the night in question or not. It is enough to note that Ram Singh was not an injured in the occurrence. He of course was the scribe of the prosecution F. I. R. 12. It is enough to note that Ram Singh was not an injured in the occurrence. He of course was the scribe of the prosecution F. I. R. 12. In view of the above discussion, it appears that since Pitam Singh was away from his house in the night in question when the dacoity had taken place, Ganga Singh of the village was made informant of the case and in order to make him an eye-witness of the occurrence, his presence was shown at the Baithka of Pitam Singh in the F. I. R. and Chheda Lal and Ram Singh also appear to have been shown in the F. I. R. as sleeping in the same Baithka in order to constitute them as inmates of the house and so best eye-wit nesses of the dacoity. 13. It may be mentioned here that Pyarey Lal who is said to have set the Turi on fire has not entered into the witness box and the persons who were said to be flash ing torches from the side of the prosecu tion namely Siya Ram, Bhagwan Singh and Ram Singh and whose torches are said to have been inspected by the Investigating Officer had not entered into the witness box. 14. Chheda Lal P. W. 3 claimed that waking up on the sound of breaking open of door of Zenana Ghar he went inside the Chowk and flashed torch, that witnesses too had flashed torches, that Pyarey Lai had set the Tltri lying in front of the house of Pitam Singh on fire which emitted lot of light, that the dacoits had also flashed their torches and a "lamp" was also burning at the wall of the Chowk of Pitam Singh. 15. A Dibia has been mentioned in the site plan prepared by the Investigating Officer at a point inside the Zenana Ghar of the house of Pitam Singh but its exact location has not been disclosed in the index. In his testimony at the trial, the Investigating Officer Rishi Pal Singh P. W. 6 has claimed in his cross- examination that the Dibia was kept in a Tikhal in the middle wall between two rooms in the Zenana Ghar. In his testimony at the trial, the Investigating Officer Rishi Pal Singh P. W. 6 has claimed in his cross- examination that the Dibia was kept in a Tikhal in the middle wall between two rooms in the Zenana Ghar. The site plan which is on record indicates that the Zenana Ghar of the house of Pitam Singh consisted of two rooms adjacent to and connected with each other in the eastern part of the house. 16. In his testimony, the informant Ganga Singh P. W. 1 did not make any men tion of the light of any Dibia or "lamp". Chheda Lal P. W. 3 stated in his examination-in-chief that a "lamp" was burning on thewall of the Chowk of Pitam Singh. In his cross-examination Chheda Lal testified that he had shown to the Investigating Officer the place of the burning of Diya. The work "lamp" is quite vague. Lamps are of different types and sizes. Dibia is a word which generally indicates a small tin lamp of Kerosene with a wick while the word Diya means an earthen lamp in which mus tard oil is generally burnt. He claimed that he had shown the place of burning of Diya to the Investigating Officer but there is no mention of it in his statement as recorded by the Investigating Officer and he could not give any explanation for this omission. The location of this Diya in the wall of Chowk as claimed by him is not to be found in the site plan prepared by the Investigat ing Officer. On the contrary, it shows a Dibia inside the Zenana Char. It could not be visible in the Chowk where Chheda Lal P. W. 3 was on his testimony. So this is yet another ground to discredit his testimony. 17. . Smt. Naraini Devi P. W. 4 stated in her examination-in-chief in first para that a Diya was burning in her house and then in third para of her statement, she testified about roshni of Dibia besides the light of torches of dacoits. As noted above a Dibia is different from a diya. Here it may be mentioned that the I. O. did not take this source of light into custody nor prepared any memo about it. As noted above a Dibia is different from a diya. Here it may be mentioned that the I. O. did not take this source of light into custody nor prepared any memo about it. In any case, this source of light as mentioned by the Investigating Officer or as mentioned by Smt. Naraini Devi was a feeble object of light inside the Zenana Ghar of the house of Pitam Singh and its light could not be expected to go out and be available to Chheda Lal P. W. 3 in the Chowk of the house of Pitam Singh. Per haps for this reason, Chheda Lal P. W. has claimed that "a lamp" was burning on the wall of the Chowk of Pitam Singh. If a lamp was burning on that place, its light could certainly be available to Chheda Lal P. W. whatever its worth but this is an improve ment. As noted earlier there is discrepancy as to the location of this source of light and also even in the description of the source of light. As mentioned earlier the I. O. did not prepared any memo about the Dibia, though he claimed that he was told the place where the Dibia was burning when he made the spot inspection. The defence suggestion to him was that he had added the word Dibia in the site plan sub sequently. He denied it but the fact remained that in the index, the place of Dibia had not been mentioned at all. 18. It is difficult to place reliance on the evidence of identification as given by Chheda Lal P. W. 3 for another reason also. It may be mentioned here that-about the light generated by burning of Turi it has been elicited from the I. O. in his cross-ex amination that he did not note any black ening on the wall of the house of Pitam Singh adjacent to the site of the burning of Turi. Chheda Lal P. W. 3 claimed to have come out in the Chowk after waking up and there was an alarm and stated that culprit fired shot which struck him while he was in the Dahleez. Chheda Lal P. W. 3 claimed to have come out in the Chowk after waking up and there was an alarm and stated that culprit fired shot which struck him while he was in the Dahleez. However, he also claimed after it that he has come out from the Dahleez and also that they had come out in the outer Chowk (the JVfaidan) and then had taken shelter behind the southern wall of the house of Ram Singh and others were also present there. How ever, it is difficult to believe that after receiving the numerous fire arm injuries on his back he would be in a position to take an active role and be able to come out of the house in case he was initially in the Baithka as claimed and take position as claimed by him. It may also be mentioned here that Smt. Naraini Devi in her cross-examination stated "chheda Lal Goli Khakar Titri Men Gir Parey They. Dacoit Dacoity Dalkar Jab Nikal Gaye Tab Gaon Walon Ney Ander Jakar Unko Jahan Parey They Vahan Sey Uthaya. " This statement of Smt. Naraini Devi tends to show that after receiving the fire arm injuries, the witness Chheda Lal P. W. 3 fell down to the ground and kept on lying there in the Tidari and was picked up by the villagers only after the dacoits had made good their escape. So, in any case it is difficult to place implicit reliance on the evidence of the identification as given by Chheda Lal P. W 3 at the trial. 19. Coming to Smt. Naraini Devi P. W. 4 she did not say that she came out of the Zenana Ghar and went out of the house and saw the light of the torches of the witnesses. Even if they had come it could not be available to her for making iden tification of the dacoits. She did not also claim the benefit of any such source of light. She has mentioned 3 sources of light, namely, the light of Dibia inside, the flash of the torches of the dacoits and the light of the burning Turi. Even if they had come it could not be available to her for making iden tification of the dacoits. She did not also claim the benefit of any such source of light. She has mentioned 3 sources of light, namely, the light of Dibia inside, the flash of the torches of the dacoits and the light of the burning Turi. So far as the light of the burning Turi was concerned, she could hardly get any benefit i. e. aid from it be cause if the Turi was burning it was burning totally outside the house of Pitam Singh, to the west of the south-western corner of the house. The site-plan indicates that the Baithka of Pitam Singh and the southern wall of Pitam Singhs house would have intercepted any light of the burning of Turi that may be going towards the Zenana Ghar of the house of Pitam Singh inside of which this witness Smt. Naraini Devi was all along during the time of dacoity. Smt. Naraini Devi claimed that she has told the I. O. that the villagers had set the Turi at fire and its light was coming inside the house but she could not give any explana tion for the omission of the same in her statement as recorded by the I. O. in the case diary. The I. O. categorically states that she did not tell him that the light of Turi was coming inside her house and that she had identified the accused persons in. the light of that fire also. 20. We have already noted that the I. O. did not record the presence of any Kalonch (signs of blackening) on the southern outer wall of the house adjacent to the place where the Turi is said to be burning at the time of occurrence. We have also noted that the person who is said to have put the Turi at fire has not entered in the witness box. There only remains the testimony of the I. O. that he founds ashes at the sight of the said burning of Turi. Which may not be taken at its face value in the circumstances of this case. We have also noted the discrepancies about the source of light namely Dibia/diya/ Lamp. There only remains the testimony of the I. O. that he founds ashes at the sight of the said burning of Turi. Which may not be taken at its face value in the circumstances of this case. We have also noted the discrepancies about the source of light namely Dibia/diya/ Lamp. It may be added that the I. O. admittedly did not record any Kalonch (signs of blackening) on the Tikhal where the Dibia is alleged to be burning. It is true that the burning of a tiny Dibia of Kerosene oil or of Diya (earthen lamp) inside the house in a village will be some thing common and usual, but there cannot be any presumption about the place of burning of Dibia or Diya inside the house. The place has to be established only by oral evidence and it Kalonch is found in a Tik hal, it may tends to show that the Dibia used to be kept there and burnt there in the ordinary course. When the I. O. has not noted the presence of any Kalonch in the Takhat inside Zenana Ghar, even if we take that a Dibia or Diya was burning inside, the site of the same would still remain unes-tablished and so it cannot be said as to how far the Dibia allegedly burning was from the witness and so it cannot be said whether the witness was in a position to see and identify the dacoits in the light thereof. 21. Smt. Naraini Devi P. W. 3 was no doubt, an injured in the occurrence which fixed her presence at the spot but in the case of dacoity, the injuries of the victim may, even render the victim incapable of making an effort to see and identify the culprits. In my opinion, on a total con sideration of the evidence and circumstan ces, it comes out the prosecution has not succeeded in showing to the satisfaction of the Court the availability of adequate ar tificial light to enable her to make sure and safe identification of the dacoits par ticipating in the dacoity. 22. It has been argued by the learned counsel for the accused-appellants that though the accused- appellants were per sons known to the witnesses from before, they were not alleged to have taken any precautions to canceal their faces in order to escape identification. 22. It has been argued by the learned counsel for the accused-appellants that though the accused- appellants were per sons known to the witnesses from before, they were not alleged to have taken any precautions to canceal their faces in order to escape identification. The failure to take such precaution may not always be fatal because if the culprits are dare-devils they may not take any precautions at all but the non-taking of such precaution may in a suitable case be a circumstance which may be taken into account by the Court while assessing the ocular testimony in such a case. 23. Ganga Singh informant pleaded ignorance if the daughter of one Navbat was married to Panna Lal of village Tejpur but he admitted that a litigation about desertion (or divorce) of the daughter of Navbat Singh had taken place with Panna Lal. He also admitted that later on Panna Lal performed his marriage with the sister of Soran present accused-appellant and that Lajja Ram accused-appellant is Khandani brother of Soran accused- appellant. 24. Chheda Lal P. W. 3 also admitted that initially the daughter of Navbat Singh was married to Panna Lal and after that the sister of Soran accused-appellant has been married to Panna Lal and he also admitted that for this reason, the litigation is con tinuing between Navbat Singh and Panna Lal from before the present occurrence 25. In the statement under Section 313, Cr. PC. , the accused- appellant Soran stated that the witnesses- have given the evidence against him out of enmity, that Maharaj Singh of Jeyya-ka-nagla, Pitam Singh (the owner of the house where the dacoity took place) and Ram Singh (wit ness said to be sleeping in the Baithka of Pitam Singh in the night of occurrence) were Khandani of Ganga Singh informant P. W. I and that the sister of Maharaj Singh (daughter of Navbat Singh) was married to Panna Lal whom Panna Lal had turned out (deserted) and thereupon he (Soran ac cused-appellant) had married his own sister to Panna Lal. He also stated that these very persons had falsely prosecuted them (the accused party) for abduction of a girl in which they have been acquitted and that for this reason they have given false evidence against them. 26. Lajja Ram accused-appellant in the statement under Section 313, Cr. He also stated that these very persons had falsely prosecuted them (the accused party) for abduction of a girl in which they have been acquitted and that for this reason they have given false evidence against them. 26. Lajja Ram accused-appellant in the statement under Section 313, Cr. P. C. staled that they have been falsely impli cated on account of the girl of Jeyya-ka-Nagla. He further stated that Soran ac cused- appellant is his nephew. He further stated that the men of Jayya-ka-Nagla had also pinned another false case on them from which they had been acquitted. 27. It has been elicited from Ganga Singh P. W. 1 that the Khata of himself, Bhagwan Singh and other witnesses is not joint at present but it might have been joint in the past. It was elicited from Pi tarn Singh P. W. 2 owner of the house where the dacoity took place that the Khatas of him self, Bhagwan Singh and Ganga Singh (in formant) and others had separated in con solidation. In other words, they were having a joint Khata prior to its split in consolidation proceedings. 28. Then it was elicited from Ganga Singh informant in his cross- examination that before the present occurrence, both these accused were being prosecuted for the abduction of the daughter of Bhagwan Singh (aforesaid ). In the present case, Ganga Singh informant, Ram Singh, Chheda Lal, Bhagwan Singh, Siya Ram, Pyarey Lai, Banshi and Pratap Singh were cited as witnesses in the charge-sheet. The defence suggestion was that Bansi, Chheda Lal, Bhagwan Singh and Maharaj Singh were prosecution witnesses in that abduction case. He pleaded ignorance about it but he admitted that Banshi and Siya Ram were real brothers inter se. Siya Ram is a prosecution witness in the present case who is said to have flashed a torch. He admitted that Maharaj Singh was of Ms Khandan. The defence case is that these accused- appellants have been falsely implicated in account of this abduc tion case also. 29. Chheda Lal P. W. 3 admitted in his cross-examination that in the abduction case against the accused- appellants for the offence under Section 363,1. P. C. he (the witness) is a prosecution witness against them. 30. In view of the above facts and circumstances of the case, there is a strong possibility of the accused- appellants being falsely implicated in this case. P. C. he (the witness) is a prosecution witness against them. 30. In view of the above facts and circumstances of the case, there is a strong possibility of the accused- appellants being falsely implicated in this case. Considering all the circumstances, it is a case in which both the accused-appellants ought to be given the benefit of doubt. 31. For the reasons aforesaid, the ap peal is allowed and the conviction and sentences of the accused- appellants for the offence under Section 395, I. P. C. are set aside. The accused-appellants are ac quitted of the same. They are on bail from this Court. They need not surrender to it. Their bail bonds are cancelled and sureties discharged. 32. Let a copy of the judgment be sent to the Sessions Judge concerned for information and compliance. Compliance report be submitted to this Court within a month from today. Appeal allowed. .