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2010 DIGILAW 1754 (ALL)

Manna and others v. State of U. P.

2010-05-25

ASHOK SRIVASTAVA, UMA NATH SINGH

body2010
Ashok Srivastava, J.:- The appellants Manna, Munai and Ram Prasad have been found guilty under Sections 460/201 I.P.C. by learned IInd Additional Sessions Judge, Hardoi in S.T. No. 223/80 vide judgment and order dated 11.12.1981. Each of the appellant has been sentenced to life imprisonment under Section 460 I.P.C. and 5 years R.I. for the offence under Section 201 I.P.C. They have also been sentenced to pay fine. 2. Brief facts of the case are that the deceased Ramghulam, was a resident of village Gogadeo where he lived in his own house. The wife of Ramghulam had died during his life time and he had only one issue, a daughter, who was already married some 12 years ago from the date of incident. In these circumstances the deceased Ramghulam was living all alone in his residential house. The house of the appellant Manna was adjacent to the house of the deceased. The complainant of this case is one Chhotey Lal who is a cousin of the deceased and he was living in the same village and his residence was at a distance of some 40 paces from the house of deceased. The deceased carried on grain and money lending business. The appellants Manna and Munai are real brothers. Their mother and wife of deceased Ramghulam were cousin sisters. For that reason the deceased had once expressed his eagerness to give his property to the accused Manna. After a few years, when deceased found that the character of Manna was not good, he changed his idea of giving his property to him and further expressed a desire to give his entire properties to his daughter Smt. Sonkali. Since the house of the complainant Chhotey Lal was not far away from the house of the deceased and the deceased was living all alone in his house, the latter used to visit the residence of former very often. On 19.8.1979 at about 8.00 P.M. the complainant Chhotey Lal was informed by Ramesh, Nanhe Singh and Sheopal that the accused appellants Manna, Munai and Ram Prasad alongwith 3 other accused persons named in the F.I.R. were getting loaded gunny bags full of grains belonging to the deceased, on a truck. The grain bags were taken out from the residence of the deceased but neither he nor his daughter Son Kali was present there. The grain bags were taken out from the residence of the deceased but neither he nor his daughter Son Kali was present there. Ramesh, Nanhe and Sheopal asked the accused as to why they were carrying the grain bags but they did not reply. They also did not answer the queries put to them regarding whereabouts of the deceased. Therefore, the trio got suspicious, went to the residence of the complainant and narrated to him everything they had seen. An alarmed complainant alongwith Ramesh, Nanhe Singh and Sheopal came to the residence of deceased where he found that the truck had already left that place and the main door of the house of the deceased was found locked from outside. Since the complainant failed to trace out the key, he managed to get a ladder and by scaling the wall of the house of the deceased, got inside. He found there that all the household articles were scattered and it was giving an appearance that a loot or theft had taken place in that house. The deceased Ramghulam was not found inside the house. The complainant went to the police station the next morning and lodged an F.I.R. On inquiry it was found that the deceased was not seen in his village since last 5 ? 6 days. Sonkali was informed of the incident who came to her father's house. She too had no information about the whereabouts of her father. During the course of investigation the I.O. arrested the accused Munai who, when interrogated, delivered the key of the main door of the house of the deceased. On further interrogation he admitted that he alongwith co-accused killed Ramghulam and thereafter stole utensils, ornaments, food grains and other articles from the house of the deceased. The appellant Munai further informed the police that bags of grains were taken away by rest of the appellants to Lucknow in order to sell the same. The I.O. rushed to Lucknow and on 20.3.1979 he arrested the appellants Manna and Ram Prasad who were trying to sell the bags containing grains. All the bags bore name of the deceased. The I.O. recovered 56 bags Arahar and one bag full of mustered from the possession of these two appellants. The I.O. also succeeded in tracing the truck and its driver. The driver has been produced as a witness in this case. All the bags bore name of the deceased. The I.O. recovered 56 bags Arahar and one bag full of mustered from the possession of these two appellants. The I.O. also succeeded in tracing the truck and its driver. The driver has been produced as a witness in this case. When the appellants Manna and Ram Prasad were interrogated they also admitted that they alongwith Munai had eliminated Ram Gulam and after killing him they had dumped his dead body in the nearby river after tying the same with two pitchers with a view that the dead body would settle down at the bottom of the river due to the weight of the pitchers and the water filled in it. On the pointing out of Manna on 21.3.1979 the dead body of the deceased was recovered from the river. It was identified by the daughter of the deceased. The post mortem was conducted and a report was prepared. 3. After concluding his investigation, the I.O. submitted a charge-sheet in the court of learned Magistrate against all 6 accused persons named in the F.I.R. including the appellants. Charges under Section 460 and 201 I.P.C. were framed against all the 6 accused persons. The prosecution had examined as many as 10 witnesses. 4. PW-1 Shiv Pal Singh is a witness of fact who had informed Chhotey Lal that the accused persons named in the F.I.R. were getting loaded gunny bags full of grains on a truck at the residence of the deceased. PW-2 is the complainant Chhotey Lal. PW-3 Bhoora and PW-8 Kanshi Ram are the witnesses before whom the dead body of the deceased was recovered at the pointing out of the appellant Manna. PW-4 is Sonkali, daughter of the deceased. PW-5 Awadh Ram is the witness before whom bags containing Arahar and mustered were recovered from the possession of the appellants. PW-6 Babu Lal is the driver of the truck upon which the grain bags were carried from the residence of the deceased to a grain market at Lucknow. PW-7 Raj Bahadur Singh is the witness before whom the key of main door of the deceased and certain stolen utensiles were recovered from the residence of the appellant Munai. PW-9 Shiv Murti Singh, S.O., is the investigating officer of the cae and PW-10 Dr. J.K. Verma had conducted the post-mortem. 5. PW-7 Raj Bahadur Singh is the witness before whom the key of main door of the deceased and certain stolen utensiles were recovered from the residence of the appellant Munai. PW-9 Shiv Murti Singh, S.O., is the investigating officer of the cae and PW-10 Dr. J.K. Verma had conducted the post-mortem. 5. The trial of the case was concluded and the learned Addl. Sessions Judge vide his judgment and order impugned in this appeal acquitted Maiku, Ramdeen and Shrawan but he found the appellants Munai, Manna and Ram Prasad guilty of the offences charged and convicted them as has been mentioned earlier in this judgment. Feeling aggrieved by the judgment and order the present appeal has been filed. 6. We have heard learned counsel for the appellants and learned Government Counsel for the State. 7. Learned counsel for the appellants has assailed the charges framed by the learned trial court against the appellants. It has been submitted from the side of the appellants that there is no evidence on record which may justify the conviction of the appellants under Sections 460 I.P.C. and also 201 I.P.C. It has been further submitted that there is no evidence on record which may indicate that any one has seen the incident of theft or that of murder of the deceased. It has also been submitted that it is a case of circumstantial evidence and many important links are missing in the matter. It has been further contended by learned counsel for the appellants that no charge has been framed against the appellants under Section 302 I.P.C. or 411 I.P.C. or under any section relating to theft. In these circumstances it has been submitted that it was not possible at this stage to analyze the evidence available on record so as to hold the appellants guilty of murder, theft or for the offence under Section 411 I.P.C. 8. At this stage the learned Government Counsel has said that on the basis of the statement of the witnesses as contained in the case diary and other material available on record, the learned lower court should have framed charges under Section 302, 457, 380 and 411 I.P.C. also. At this stage the learned Government Counsel has said that on the basis of the statement of the witnesses as contained in the case diary and other material available on record, the learned lower court should have framed charges under Section 302, 457, 380 and 411 I.P.C. also. Since it has not been done so, it is a fit case in which the case should be remanded back to the court of learned Sessions Judge concerned to frame proper charges in the case and a fresh trial is needed in the interest of justice. It has been further contended from the side of the State that only by lapse of time no guilty should be allowed to go scot-free in the cases of heinous offences. 9. Replying to these contentions as advanced by learned State Counsel, learned counsel for the appellants has said that it is a very old case and if the case is remanded back, the appellants shall suffer unnecessarily and they will face hardship in the matter. He has further said that it is a case in which the learned trial court should have recorded an order of acquittal because there is no evidence in this case which may prove the offence under Section 460/201 I.P.C. 10. In our opinion, the argument advanced by learned counsel for the appellants is not acceptable. The date of incident is 20.8.1979 and the concerned sessions trial was decided on 11.12.1981. The appeal was filed in the year 1981. It means the matter reached the stage of appeal just in a short period of 2 years from the date of the alleged offence and due to heavy pendency in the High Court, the appeal could not be taken up for hearing prior to this date. Thus, there is no fault on the part of the State in the matter. There has been no delay on its part. Besides, it is the duty of the trial court to frame charges correctly and if an illegality or error has been committed by the trial court, it is the duty of the appellate court to set the matter right. 11. We have gone through the case diary. In the instant case there has been extra judicial confessions of the appellants regarding their involvement in the murder of the deceased. 11. We have gone through the case diary. In the instant case there has been extra judicial confessions of the appellants regarding their involvement in the murder of the deceased. On the pointing out of one of the appellants, the dead body of the deceased was recovered from the bed of the river. On the pointing out of the appellants and informations given by them, stolen utensils and food grains were recovered from their possession. The key of the main door of the house of the deceased was found in the possession of the appellant Munai. 12. After examining the material available on record and the case diary, we are of the firm view that the charges framed by the learned trial court are erroneous. 13. From perusal of the F.I.R., the statements of the witnesses recorded under Section 161 Cr.P.C. and charges framed against the appellants by the learend lower court, prima facie an involvement of more than four persons appears to be there in the entire matter. In the instant case the learned lower court has framed charges under Section 460 and 201 I.P.C. only. 14. To recapitulate the facts and keeping them in a nutshell, at the cost of repeatation, we have to say that it appears that more than four persons may be involved in the entire episode of theft, killing of Ram Gulam and disposing of his dead body with a view to eliminate the evidence. In the instant case the allegations of theft, carrying away the stolen property, killing of Ram Gulam, disposal of stolen properties and disposal of dead body stealthily with illegal intentions are there on record. 15. A perusal of Section 460 I.P.C. reveals that if at the time of the committing of lurking house-tresspass by night or house breaking by night, any person guilty of such offence if voluntarily causes or attempts to cause death or grievous hurt to any person, every person involved in committing such lurking house-tresspass by night or house-breaking by night, shall be punished under this section. 16. The language of this section clearly indicates that the ingredients of this section are confined to commission of lurking house-tresspass by night or house-breaking by night only. This section does not speak anything about commission of theft or causing injury or grievous injury or death of a person while committing theft. 17. 16. The language of this section clearly indicates that the ingredients of this section are confined to commission of lurking house-tresspass by night or house-breaking by night only. This section does not speak anything about commission of theft or causing injury or grievous injury or death of a person while committing theft. 17. According to Section 390 of Indian Penal Code, theft becomes robbery if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. 18. In the case before us it is evident that fact wise allegations are there that a theft was committed by all the accused peresons in the residential house of Ram Gulam. The over all perusal of the case diary and the statements of the witnesses of facts under Section 161 Cr.P.C. also indicate that allegations are also there that murder of Ram Gulam was committed during the course of theft either by all the accused persons named in the F.I.R. or with the active help and connivance of all of them. Therefore, in the instant case the offence of theft is converted into an offence of robbery. Since there is an involvement of more than four persons, robbery has become dacoity. A murder has been allegedly committed in the case therefore, offence becomes an offence which is punishable under Section 396 I.P.C. Thus, prima facie in the instant case an offence of dacoity with murder also appears to have taken place. 19. The law relating to framing of charges is clear. If allegations are there, the charges should be framed in graver sections so that in a case if it is found that an offence having lesser gravity has been committed, a conviction can be recorded under appropriate section of the relevant Act but reverse is not possible. Charges should also be framed in the alternative. As mentioned above, an offence punishable under Section 460 I.P.C. does not relate to an offence relating to theft or robbery. Charges should also be framed in the alternative. As mentioned above, an offence punishable under Section 460 I.P.C. does not relate to an offence relating to theft or robbery. To punish an accused under Section 460 I.P.C., it is sufficient if it is proved against him that he committed murder of a person while he was committing lurking house-tresspass by night. There may be an incident where a murder is committed by some persons while committing lurking house tresspass by night or breaking-house by night but no theft or robbery could be committed, and there may be an incident where another murder may be committed while committing theft or while taking away the articles received by theft. In the latter case, a charge cannot be allowed to be confined to one under Section 460 I.P.C. only. Another charge under Section 394 read with Section 302 I.P.C. or in appropriate cases a charge under Section 396 I.P.C. or Section 412 I.P.C. must also be framed. Charges are framed on the basis of the allegations available in the case diary. It is something different whether prosecution succeeds in proving those charges or not. 20. On the basis of the above discussion, we are of the view that learned lower court has committed an error in framing the charges under Section 460/201 I.P.C. only. He should have framed charges regarding murder of the deceased and disposing of his dead body stealthily in order to cause disappearance of evidence and while framing such charges, he should have also considered the circumstances which are indicative of the offences relating to theft, robbery or dacoity and should have also framed charges regarding these offences. 21. On the basis of the above discussion, we are of the view that the appeal should be allowed. The appeal is allowed. The judgment and order dated 11.12.1981 passed by learned II Additional Sessions Judge, Hardoi in S.T. No. 223/80 impugned in this appeal is set aside. The case is remanded back to the learned Sessions Judge, Hardoi. We direct the learned lower court to study the entire case diary attentively. It is left to the discretion of the lower court to frame charges afresh against the accused persons in appropriate sections after hearing the prosecution and accused persons of the case. The case is remanded back to the learned Sessions Judge, Hardoi. We direct the learned lower court to study the entire case diary attentively. It is left to the discretion of the lower court to frame charges afresh against the accused persons in appropriate sections after hearing the prosecution and accused persons of the case. After framing of the charges, the trial shall be concluded as the earliest possible as the case is very old. 22. The learned Sessions Judge may either decide the case himself or may transfer it to a court competent to decide it. 23. The appellants are on bail. They are required to file fresh bail bonds to the satisfaction of learned Sessions Judge. The appellants are directed to appear on 5.7.2010 before the learned Sessions Judge, Hardoi and file fresh bail bonds so that their presence before the trial court during the course of trial is ensured. 24. Office is directed to send back the lower court record forthwith the learned District & Sessions Judge, Hardoi.