SUBEDAR YADAV v. STATE OF UTTAR PRADESH — 1999 DIGILAW 970 (ALL)

B. K. SHARMA, J. ( 1 ) JUDGMENT :- This is an appeal against the judgment and order dated 17-7-1981 passed by Sri I. N. Thakural, the then I Additional Sessions Judge, Azamgarh in Sessions Trial No. 107 of 1981, State v. Subedar Yadav whereby he convicted the accused-appellant under Section 395, I. P. C. and sentenced him to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 1000. 00 and in default to further suffer rigorous imprisonment for a period of one year. ( 2 ) I have heard the learned Amicus representing the accused-appellant and the learned A. G. A. ( 3 ) THE prosecution story was as under :- ( 4 ) A dacoity took place in village Geluwara, Police Station Kotwali, district Azamgarh at the houses of Sechai Ram Vishwakarama informant (P. W. 1); Ram Sumar (P. W. 4); Jai Prakash; Smt. Chhohari and Anta Devi wife of Subedar in the night between 17th/ 18/10/1980 in the course of which Saris and ornaments of gold and silver were looted from the house of Sechai Ram Vishwakarma (P. W. 1) and properties were also looted from the houses of other victims aforesaid by 5 of 6 dacoits. A lantern was burning at the house of Sechai Ram Vishwakarma (P. W. 1) at the door in Osara hanging on a peg (Khunti ). The dacoits were armed with lathis, Katta and bombs. They had also torches with them. They snatched ornaments from the body of Sechai Rams mother and called upon her to get the door of the house opened. Sechai Ram Vishwakarma (P. W. 1) was sleeping in Baithak. When his mother did not get the door opened, the dacoits broke open the door of the house and entered it and looted Saris, ornaments etc. from there. In order to commit the dacoity and while committing dacoity, the dacoits had exploded bombs. Sechai Ram Vishwakarma informant (P. W. 1) raised alarm whereon witnesses Phool Chand (P. W. 2); Munni Lal (P. W. 3), Sita Ram, Ram Nomi, Beni, Gulab, Barsati, Jhinaku, Ram Nawal, who were carrying torches, reached there. Sechai Ram Vishwakarma (P. W. 1) was also carrying a torch. Out of the dacoits, Subedar Yadav, accused-appellant was identified by the witnesses. After committing dacoity, the dacoits went away towards west. Sechai Ram Vishwakarma (P. W. 1) was also carrying a torch. Out of the dacoits, Subedar Yadav, accused-appellant was identified by the witnesses. After committing dacoity, the dacoits went away towards west. ( 5 ) THE F. I. R. about the occurrence was got scribed by Sechai Ram Vishwakarma (P. W. 1) from Rajendra Prasad and it was signed/thumb-marked by him, Ram Sumer, Jai Prakash, Smt. Chhohari, and Smt. Anta Devi. The written F. I. R. was lodged at Police Station Kotwali, Azamgarh on 18/10/1980 at 2. 05 A. M. in which Sechai Ram Vishwakarma had been recorded as the informant. A case was registered against Subedar Yadav, the present accused-appellant and 5-6 unknown dacoits under Sections 395/397, I. P. C. The investigation of the case was entrusted to Yash Pal Singh S. I. (P. W. 5 ). He visited the spot and found remains of exploded bombs and took them in custody and sealed and prepared memo about it. He also inspected the lantern of Sechai Ram and prepared memo about it. He examined the torches of witnesses Ram Sumer (P. W. 4) and Sita Ram and prepared memo about it. He also prepared a site plan of the spot. He could not trace out the unknown culprits of the case and, consequently he submitted the charge sheet against the present accused-appellant Subedar Yadav alone. ( 6 ) AT the trial, the accused denied his participation in the dacoity and in his statement under Section 313, Cr. P. C. , he has said that he alone could not loot five houses and that a false case has been concocted. He has claimed his enmity with Phool Chand Pradhan (P. W. 2) on the point of election of Pradhan and for this enmity he has been falsely implicated in the case. ( 7 ) DURING the trial, ocular testimony was given by Sechai Ram Vishwakarma informant (P. W. 1), Phool Chand (P. W. 2), Munni Lal (P. W. 3), Ram Sumer (co-informant in this case) (P. W. 4 ). The learned Sessions Judge believed the prosecution evidence and hence convicted and sentenced the accused-appellant as aforesaid. ( 8 ) THE learned Amicus appearing on behalf of the accused-appellant has claimed that the whole story of dacoity was concocted. This contention is, however, stated only to be rejected. The learned Sessions Judge believed the prosecution evidence and hence convicted and sentenced the accused-appellant as aforesaid. ( 8 ) THE learned Amicus appearing on behalf of the accused-appellant has claimed that the whole story of dacoity was concocted. This contention is, however, stated only to be rejected. There is ocular testimony of four eye witnesses two of whom are themselves victims in this case. Then there is also evidence of Sechai Ram informant (P. W. 1) that the door of his house was broken opened by the dacoits at the time of commission of dacoity. He has also testified about the explosion of bombs by the dacoits. The Investigating Officer gave evidence about the collection of pieces of exploded bombs lying on the spot. He, no doubt, failed to send the same for analysis. Nevertheless, the Investigating Officer Yash Pal Singh (P. E. 5) has nowhere suggested in his cross-examination that he did not find any piece of exploded bombs at all and had made a fictitious memo. It has been argued that in this particular case, no one has been injured in the occurrence and that this must be indicated that actually no dacoity took place. In this regard, it is sufficient to say that the infliction of visible injury is not an essential ingredient of the offence of dacoity that is an aggravated form of theft. If the offender in committing the theft etc. ,voluntarily causes or attempts to cause to any person death, hurt etc. or fear of instant death or instant death etc. it is enough. Furthermore there is the sworn testimony of Sechai Ram Vishwakarma (P. W. 1) the informant on the factum of dacoity. He has testified that the dacoits committed lootmar after entering the house. He also testified that at the time of committing dacoity, the dacoits had exploded bombs. The necessary consequences of all this would be to instil fear of instant hurt, if not of instant death, in the mind of the victims. He also testified that the dacoits had exploded bombs at the time of dacoity in the other houses. There is also, his evidence that the dacoits exploded three bombs while running away after committing the dacoity. This also stands to satisfy the ingredient of the offence of dacoity. He also testified that the dacoits had exploded bombs at the time of dacoity in the other houses. There is also, his evidence that the dacoits exploded three bombs while running away after committing the dacoity. This also stands to satisfy the ingredient of the offence of dacoity. He has testified that the Investigating Officer had taken the pieces of exploded bombs and had prepared memo about the same. It was, no doubt, elicited from him by the learned defence counsel that there was no recovery of any of the looted property and that none of the witnesses received physical injury in the occurrence. However, it was nowhere suggested to this witness during the course of his cross-examination by the learned counsel for the defence that actually no dacoity had taken place and that a false story of dacoity was concocted. The cross-examination was directed only to the question of availability of light, the participation of culprits and enmity with the accused-appellant. ( 9 ) IN the cross-examination of Phool Chand (P. W. 2), the village Pradhan, it was suggested in para 9 by the defence that he saw the occurrence from his own house. He refuted the suggestion. He has suggested that the eyes of the witnesses were blinking to the light of the torches and he denied it, on top of all, there was categorical suggestion made to the witness that the accused- appellant was not a participant in the dacoity that is he was not one of the dacoits who committed the dacoity. The reply of the witness was "yah GALAT HAI KI YAH" (accused-appellant) "dacoity ME NAHI THA". This suggestion amounts to categorical admission of the factum of dacoity. In the cross-examination Munni Lal (P. W. 3) also, the suggestion in his cross-examination was that the accused was not amongst the persons who committed dacoity. The witness denied the suggestion that the present accused-appellant was not in the dacoity. The witness obviously replied the suggestion in the negative. There has been an omission in recording it. The entire paragraph runs as follows :-"yah KAHNA GALAT HAI KI MAIN PHOOL CHAND YA SACHAI KA DOST HUN WA RANJISHAN MULJIM KO DOSTI KE KARAN JHUTHA FANSA RAHA HUN. MULJIM DACOITY MEN NAHI THA. The witness obviously replied the suggestion in the negative. There has been an omission in recording it. The entire paragraph runs as follows :-"yah KAHNA GALAT HAI KI MAIN PHOOL CHAND YA SACHAI KA DOST HUN WA RANJISHAN MULJIM KO DOSTI KE KARAN JHUTHA FANSA RAHA HUN. MULJIM DACOITY MEN NAHI THA. "it has obviously not the suggestion to this witness that he was friend of Phool Chand Pradhan (P. W. 2) and Sachai Ram informant (P. W. 1) and due to enmity he falsely implicated the present accused-appellant in the case due to the said friendship and enmity (of Phool Chand and Sachai Ram with the accused-appellant) and that, in fact, the accused was not amongst the dacoits. So this suggestion to the witness from the side of defence also amounts to an admission of the factum of dacoity. ( 10 ) RAM Sumer (P. W. 4) has also not made any suggestion in the cross-examination to the effect that actually no dacoity had taken place and a false story was concocted. That being so, if the accused-appellant stated in his statement under Section 313, Cr. P. C. in reply to the Courts question that a false case was concocted, no importance can be attached to the same. It appears that during the course of argument before the learned Sessions Judge, a verbal plea had been taken that at the time of dacoity, the present accused-appellant might have reached the spot by way of on-looker and that he had been falsely implicated. The learned Sessions Judge had rightly rejected this plea observing that such suggestion was made from the side of the defence (the prosecution witnesses) and then the accused appellant had not given any such statement (in his statement under Section 313, Cr. P. C.) and that this plea was raised at the first time in the arguments. As noted earlier, during the cross-examination of the prosecution witnesses aforesaid, the defence admitted the factum of dacoity. ( 11 ) SO it is held that a dacoity took place at the houses of Sachai Ram Vishwakarma (P. W. 1), Ram Sumer (P. W. 4) and others in the night between 17th/ 18/10/1980 in which 5 or 6 dacoits participated. ( 12 ) NOW, it is to be seen as to whether theprosecution has succeeded in establishing the presence and participation of the present accused-appellant in the dacoity. ( 12 ) NOW, it is to be seen as to whether theprosecution has succeeded in establishing the presence and participation of the present accused-appellant in the dacoity. We have noted earlier that ocular evidence had been given, by Sachai Ram Vishwakarma (P. W. 1), Phool Chand village Pradhan (P. W. 2), Munni Lal (P. W. 3) and Ram Sumer, the second informant of the case, (P. W. 4) implicating the present accused-appellant Subedar Yadav in the commission of dacoity. They all claimed on oath to have seen and identified him while committing dacoity. The question is as to whether their presence at and near the scene of occurrence can be believed and whether they had sufficient opportunity to see the occurrence and identify the dacoits. In this regard it is also to be seen whether there is anything improbable or doubtful in the testimony of these witnesses that may justify the rejection of the testimony given by them. ( 13 ) SACHAI Ram Vishwakarma (P. W. 1), Ram Sumer (P. W. 4) are themselves the victims of the dacoity. The dacoity took place at the houses of these persons in midnight. So the presence of these persons at their houses at the time of dacoity would be natural and probable in ordinary course and there is nothing in their cross-examination by the defence to suggest that in the night of occurrence, they were not present at their respective houses. Further more, Sachai Ram (P. W. 1) testified that while the dacoits went to commit dacoity at the houses of others (aforesaid) he also went with the villagers to those houses. He has testified that when they reached at their houses two dacoits were outside the house and rest were committing dacoity inside the house. So he was a natural witness of this dacoity. A dacoity is not confined to the inside of a house. So he was an eye witness of the dacoity. No suggestion was made to him by the defence that he was not present in his house in the night of the occurrence. Ram Sumer (P. W. 4) has also testified to the commission of dacoity at the aforesaid houses in the night of occurrence. His presence is also not disputed in his cross-examination. No suggestion was made to him by the defence that he was not present in his house in the night of the occurrence. Ram Sumer (P. W. 4) has also testified to the commission of dacoity at the aforesaid houses in the night of occurrence. His presence is also not disputed in his cross-examination. Phool Chand (P. W. 2) testified that he was sleeping at his house and woke up on hearing the sound of the explosion of bombs by the dacoits and went to the house of Sachai Ram (P. W. 1) and saw that the dacoits were committing dacoity at his house; that then the dacoits went towards the house of Ram Sumer (P. W. 4) and looted his house and then the dacoits looted the house of Dhani Ram (the name of the mother of Dhani Ram is Chhohari), and then they looted the house of Subedar and that then they looted the house of Jagpat (who) is village Pradhan. His presence in the village in the night of occurrence is not disputed by the defence. A suggestion was made that he saw the occurrence from his own house but he had denied the suggestion. He has claimed that he rushed to the house of Sachai Ram (P. W. 1); that he heard the sound of the explosion of bombs and has also testified to the looting at the houses of Dhani Ram (son of Smt. Chhohari) Subedar and then Jagpat. The site plan prepared by the Investigating Officer about the spot, did not show the existence of the house of Phool Chand (P. W. 2) but it was not suggested by the defence in the cross-examination that his house was away or he could not reach the spot at the time of commission of dacoity in order to see the dacoity taking place. It has come in the evidence of Sachai Ram informant (P. W. 1) that dacoity took place for about 10 or 15 minutes in each house (after the dacoity in his house itself ). It has come in the evidence of Phool Chand (P. W. 2) that the dacoity took place for about 3/4 hours in all. Munni Lal (P. W. 3) has testified that the dacoity in this case covered about one hour. Ram Sumer (P. W. 4) claimed that the dacoity in his house took about 10-12 minutes. It has come in the evidence of Phool Chand (P. W. 2) that the dacoity took place for about 3/4 hours in all. Munni Lal (P. W. 3) has testified that the dacoity in this case covered about one hour. Ram Sumer (P. W. 4) claimed that the dacoity in his house took about 10-12 minutes. Taking all this evidence together, it is clear that there was sufficient time and in the mean time, the village Pradhan was quite likely to come at the scene of occurrence being a villager and particularly as he was village Pradhan. No credence could be given to the suggestion that the village Pradhan saw the commission of dacoity standing at his own house. ( 14 ) NOW we come to the question of light. It was the time of midnight. According to Sachai Ram (P. W. 1), it was a dark night. Phool Chand (P. W. 2) did not say that it was a moon-lit night. Munni Lal (P. W. 3) claimed in his cross-examination that it was a moon-lit night. Ram Sumer (P. W. 4) did not testify to any moon-light. The evidence of these witnesses was recorded about six months after the occurrence and in view of this time-gap, the discrepancy might have arisen in the matter of this light but for the safe side we assume that it was a dark night. This takes us to the question whether there was sufficient artificiallight to enable the witnesses to identify the dacoits. The prosecution evidence discloses the presence of a lantern burning at the Osara in the house of Sachai Ram informant (P. W. 1 ). This source of light has been testified by not only Sachai Ram (P. W. 1) but also by Phool Chand (P. W. 2) and Munni Lal (P. W. 3 ). There is no reason to doubt their testimony on this point. So this source of light would be available to the prosecution witnesses for identifying the dacoits at the house of Sachai Ram (P. W. 1 ). ( 15 ) THEN the evidence of prosecution was that there was availability of light of torches of witnesses. In this regard, there is the testimony of all the four prosecution witnesses. Sachai Ram informant (P. W. 1) claimed that he also was carrying torch at the time of occurrence. ( 15 ) THEN the evidence of prosecution was that there was availability of light of torches of witnesses. In this regard, there is the testimony of all the four prosecution witnesses. Sachai Ram informant (P. W. 1) claimed that he also was carrying torch at the time of occurrence. He claimed that his torch was also seen by the Investigating Officer but the memo prepared by the Investigating Officer does not disclose his name. To that extent, his claim of having used torch-light in the occurrence himself may be ignored. The Investigating Officer has prepared the memo (Ex. Ka-4) at the spot about the torches of Ram Sumer (P. W. 4), Gulab and Sita Ram. The testimony of Sachai Ram informant (P. W. 1) is that the witnesses came flashing torches and carrying lathies. He has specifically stated that the torches of Gulab, Sita Ram have been inspected by the Investigating Officer and that a memo had been prepared by him. His testimony on this point has been corroborated by the memo prepared by the Investigating Officer as well as by his testimony too. The testimony of the Investigating Officer about this question has not been challenged in his cross-examination. Phool Chand (P. W. 2) has also testified that Ram Sumer (P. W. 4), Sita Ram and Gulab had been carrying torches. Munni Lal (P. W. 3) has testified likewise. Ram Sumer (P. W. 4) has testified that apart from him, two others had also torches with them. He has claimed that out of the witnesses, two persons - Gulab and Sita Ram had torches and came to the spot. Thus it is fully established from the evidence of this witness beyond doubt that Ram Sumer (P. W. 4) and witnesses Gulab and Sita Ram were carrying flashing torches at the time of occurrence. Apart from it, there is a consistent evidence of Sachai Ram (P. W. 1) and Phool Chand (P. W. 2) that the dacoits were carrying and flashing torches. The other witnesses had not specifically stated on the point but then it is to be noted that it has not come any where in evidence that the dacoits were not carrying any torch. The other witnesses had not specifically stated on the point but then it is to be noted that it has not come any where in evidence that the dacoits were not carrying any torch. ( 16 ) IN my view, all the four prosecution witnesses had sufficient opportunity to see and identify the dacoits and so far as the present accused-appellant Subedar Yadav is concerned, they could have no difficulty in identifying him in the light of lantern and the torches of the witnesses as well as in the light of the torches of the dacoits in the night of the occurrence. It is easy to identify any known person even in feeble artificial light. ( 17 ) IT has been elicited in his the cross-examination of informant Sachai Ram (P. W. 1) that out of the dacoits, 3-4 dacoits were wearing Dhatas. He testified that the present accused-appellant was not wearing Dhata. Phool Chand (P. W. 2) has testified that the face of the accused-appellant Subedar Yadav was open. About the other dacoits, he stated that the faces of some were opened and some were concealed. ( 18 ) MUCH argument has been advanced that whether it was improbable that some of the dacoits would wear Dhatas but one of them would not wear Dhata. The learned A. G. A. has contended that there is nothing improbable in it. It all depends on the working of the mind of each culprit. In this case, the important aspect of this case is that all the four prosecution witnesses aforesaid have with one voice had nominated the accused appellant on oath as one of the dacoits who participated in the dacoity. The accused-appellant has claimed false implication in the case due to enmity but a scrutiny of the evidence and circumstances on record rules out the false implication of the accused-appellant due to enmity. There appears no cogent reason to discard the evidence of anyone of the four eye-witnesses who have deposed against the accused-appellant. One point of importance is that the enmity, as set up by the accused-appellant, is only with the village Pradhan, namely, Phool Chand (P. W. 2) and the informant. No enmity has been imputed by the accused-appellant in his statement under Section 313, Cr. P. C. to the other witnesses who have testified against him at the trial. One point of importance is that the enmity, as set up by the accused-appellant, is only with the village Pradhan, namely, Phool Chand (P. W. 2) and the informant. No enmity has been imputed by the accused-appellant in his statement under Section 313, Cr. P. C. to the other witnesses who have testified against him at the trial. It has come in the cross-examination of Sachai Ram informant (P. W. 1) that long before the present occurrence, the election of village Pradhan had taken place in the village, that in the election of Pradhanthere were two candidates namely, Phool Chand and Raja Ram and he (Sachai Ram P. W. 1) was doing the Pairvi from the side of Phool Chand. He denied the suggestion that the accused-appellant Subedar Yadav was doing the Pairvi from the side of rival candidate Raja Ram. He refuted the suggestion that a Marpit had taken place between him and the accused-appellant. He also denied the suggestion that he had enmity with the accused-appellant from before on account of the election. In the cross-examination of Phool Chand (P. W. 2), the village Pradhan, it has come that long before the present occurrence, the election of village Pradhan has taken place in this village and Raja Ram was the rival candidate. He states that he does not know whether the accused-appellant Subedar Yadav was canvassing the election campaign of Raja Ram, the rival candidate. He also stated on oath that Subedar accused-appellant was not doing the Pairvi from his side in the election of the Pradhan. He refuted the suggestion that in the election, he and Sachai Ram (P. W. 1) had any Marpit and quarrel with Subedar accused-appellant. He categorically stated that the dacoity in question took-place in 1980 and the said election of village Pradhan was held in 1972. The present occurrence was of October, 1980 which was long long after the election of Pradhan in 1972. It cannot be said that on account of any alleged enmity due to a Marpit and altercation in the year 1972, grudge would be nurtured by the village Pradhan Phool Chand (P. W. 2) or by Sachai Ram informant (P. W. 1) and would sprout in the form of nomination of the present accused-appellant in the dacoity that took-place in October, 1980. There is no allegation that any further altercation or quarrel took place between the said election and the dacoity in question. There is no material on record to show that any incident took place between village Pradhan and the rival candidate Raja Rama or the present accused-appellant Subedar Yadav and Sachai Ram (P. W. 1) at the time of the said election. There is no suggestion to Phool Chand (P. W. 2) in his cross-examination that he had anything to do or any close relationship with Munni Lal (P. W. 3) and Ram Sumer (P. W. 4 ). Munni Lal (P. W. 3) testified in his cross-examination that Phool Chand (P. W. 2) was not of his party. He testified that he had no party of his own. He stated that he has no affectionate relation with Sachai Ram (P. W. 1 ). He has clearly stated that due to the village relation he had visiting term with Sachai Ram (P. W. 1 ). He had further stated that he had no visiting term with the accused-appellant Subedar Yadav he denied that he had falsely implicated the accused-appellant in this case of dacoity. He denied the suggestion that due to friendship with Phool Chand (P. W. 2) and Sachai Ram (P. W. 1), he had falsely implicated the accused-appellant in this case. Ram Sumer (P. W. 4) has stated in his cross-examination that Raja Ram and Phool Chand (P. W. 2) had contested the election of village Pradhan. He has categorically stated that he did not know that he (Subedar accused-appellant) was helping Raja Ram the rival candidate in that election or not. He also stated that he did not know if any quarrel or Marpit had taken place between Phool Chand and others on one hand and Subedar accused-appellant and others on the other. ( 19 ) THE accused-appellant Subedar Yadav stated in his statement under Section 313, Cr. P. C. that he could not alone commit dacoity in five houses. It is a meaningless plea as it was not and could not be the prosecution case, that he alone committed dacoity at five houses. The prosecution case was that there were five or six persons including the accused-appellant, who had jointly committed the dacoity. ( 20 ) IN view of the above discussion, this appeal has no force on merits. It is a meaningless plea as it was not and could not be the prosecution case, that he alone committed dacoity at five houses. The prosecution case was that there were five or six persons including the accused-appellant, who had jointly committed the dacoity. ( 20 ) IN view of the above discussion, this appeal has no force on merits. Even on the point of sentence, it cannot be said that the substantive sentence was excessive. So there is no scope for interference. However, the sentence of one year rigorous imprisonment in default of payment of fine of Rs. 1000. 00 is rather excessive. It needs correction and it may be reduced. ( 21 ) IN the result, the appeal is dismissed. The conviction of the accused appellant Subedar Yadav for the offence under Section 395, I. P. C. is upheld. The substantive sentence of rigorous imprisonment for a period of four years is also maintained. The sentence of rigorous imprisonment of one year in default of payment of fine is, however, reduced to a period of one month R. I. only. The accused-appellant is on bail from this Court. His bail bonds are cancelled. He shall be got arrested immediately by the C. J. M. concerned and consigned to the District Jail concerned to serve out his sentence according to law. ( 22 ) LET a copy of this judgment along with the entire lower Court record be sent to the learned Sessions Judge, Azamgarh forthwith for information and prompt compliance. The compliance report shall be submitted by the Sessions Judge concerned to this Court within 15 days from today. List this appeal for orders on 30-7-1999 before this Bench along with the compliance report. Appeal dismissed. .