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2014 DIGILAW 384 (ALL)

MAHENDAR v. STATE OF U. P.

2014-02-05

RAMESH SINHA

body2014
JUDGMENT Hon’ble Ramesh Sinha, J.—Heard Sri M.P. Singh Gaur, learned counsel for the appellants Mahender and Prempal, Sri R.K. Maurya, learned AGA for the State and perused the record. 2. This appeal has been filed against the judgment and order dated 30.6.1981 passed by 4th Additional District and Sessions Judge, Badaun by which the appellants Mahendra, Onkar and Prempal have been convicted and sentenced under Section 395 IPC read with Section 397 IPC sentencing them to eight years R.I. and also convicting the appellants Puttu and Krishna under Section 395 IPC and sentencing them to six years R.I. 3. As per office report dated 9.3.2006, it has been stated that the C.J.M vide report dated 28.1.2006 has submitted a report that the appellant No. 2 Puttu and appellant No. 4 Onkar have died, hence in view of the said report of C.J.M., the appeal of the aforesaid two appellants stands abated. The appeal of appellant No. 3 Krishna has already been ordered to be abated vide order dated 9.4.2014 as he expired during the pendency of the appeal. 4. The prosecution story as has been set-out is that in the night between dated 25/26.8.1979 the complainant Budh Pal resident of village Rukampur, P.S. Dataganj, district Budaun alongwith his father Raghubar, his uncle Khem Karan and his cousin Chatter Pal was sleeping in his house and the female inmates of the house were also sleeping there. A lantern was burning in the Khaprail and there were no door shutters at the sadar darwaza of the complainant. Just after mid-night 8 or 10 bandits armed with guns and lathis including the five accused entered the house of the complainant and they surrounded the complainant Budh Pal and his uncle. The accused Mahendra who was armed with a gun put the barrel of the gun at the chest of Khem Karan. Khem Karan tried to snatch the gun and thereon Onkar accused who was also armed with a gun fired one shot from his gun and the pellets of thie fire hit Khem Karan and Chatter Pal who was also sleeping on the charpai of Khem Karan. The accused Krishna and Puttu who were armed with lathis asked for the articles from the complainant after using the lathis. The accused Krishna and Puttu who were armed with lathis asked for the articles from the complainant after using the lathis. Raghubar and the female inmates of the house after getting an opportunity, ran outside the house and they raised the cry in the village and after hearing the noise and sound of fire from the gun the village people Hira Lal, Thakuri, Chimman, Bhoop, Sawanti, Ram Lal, Janki, Ram Charan. Net Ram and the complainant’s cousin Harnam carrying the lathis and the torches, reached the spot. The accused Prem Pal who was armed with a gun remained standing at the Sadar Darwaza and fired the shots from his gun. Four or five bandits looted the property from the house of the complainant. The dacoits ran towards the jungle carrying the looted property on the arrival of the village people and the witnesses. The faces of the accused and the other bandits were clearly recognized in the light emited from the lantern and flashed from the torches and in the light of the moon. The bandits fired four or five shots on the spot. The complainant got the report (Ext.Ka.1) written from Brij Lal and he lodged the same at the police station Dataganj on 26.8.1978 at 10.12 a.m. Rama Shanker (P.W.7) who was posted as Head Moharrir at the police station Dataganj on 26.8.1978, prepared the FIR (Ext.Ka.2) on the basis of the written report (Ext.Ka.1). He made an entry in the G.D. the same time at serial No. 14 a copy of which (Ext. Ka.3) is on the record. He saw the injuries of Khem Karan, Budh Pal and Chatter Pal and constable Mahavir Singh prepared the Chitti Mazroobi for the examination of these persons at P.H.C. Dataganj. These Chitti Mazroobi are (Exts. Ka.4 to ka.6) respectively. The injuries on the person of Budh Pal and Chatter Pal were examined by Dr. C.P. Mehrotra at the P.H.C. Dataganj. He gave the injury reports (Ext. Ka.12 and ka.13) respectively. Khem Karan was referred to the district hospital Budaun by Dr. C.P. Mehdi Ratta and on 26.8.1978 at 2.0 p.m. Dr. M.V. Jaal (P.W.9) examined the injuries on the person of Khem Karam and gave the injury report (Ext. Ka.11). S.J. Moin Uddin (P.W.8) who was present at the police station Dataganj on 26.8.1978 when the case was registered was entrusted with the investigation of the case. C.P. Mehdi Ratta and on 26.8.1978 at 2.0 p.m. Dr. M.V. Jaal (P.W.9) examined the injuries on the person of Khem Karam and gave the injury report (Ext. Ka.11). S.J. Moin Uddin (P.W.8) who was present at the police station Dataganj on 26.8.1978 when the case was registered was entrusted with the investigation of the case. He recorded the statements of the injured persons and other witnesses and H.C. etc. at the police station and thereafter reached the spot prepared the site plan (Ext.Ka.8). He took blood stained and unstained ‘Ban’ of the charpai on which Budh Pal and Chatter Pal were allegedly sleeping at the time of the occurrence and he found two empty cartridges on the spot and took them into his possession and prepared the memo (Ext.Ka.9) in this respect. He saw the lantern which was allegedly burning on the spot at the time of the alleged occurrence and saw the torches of the witnesses and prepared the memo (Ext.Ka.10) in this respect. He searched for the accused, but they were not traceable. Subsequently the investigation of the case was done by Sri Om Prakash Tyagi S.O. Dataganj (P.W.11). He gave the charge-sheet (Ext.Ka.7) against the accused. 5. The accused were committed to the Court of Session by Sri M.A. Khan, J.M.I Budaun vide his order dated 18.12.1978. The charge against the accused Mahendra, Onkar and Prem Pal under Section 395/397 IPC and the charge under Section 395 IPC against the accused Puttu and Krishna were framed in this Court on 19.1.1980. The accused pleaded not guilty and claimed to be tried. 6. The prosecution has examined in all 11 witnesses. Budhpal (P.W.1) is the complainant in the case who has proved his written report (Ext.Ka.10), Khem Karan (P.W.2), Raghubar (P.W.3), Chimman Lal (P.W.4) Ram Pal (P.W.5) and Ram Charan (P.W.6) are the alleged eye witnesses of the occurrence. Ram Shanker (P.W.7) who was the Head Moharir at the police station Dataganj on 26.8.1978 has proved the FIR (Ext.Ka.20 prepared on the basis of the report (Ext.Ka.1). He has also proved the copy of the G.D. No. 15 (Ext.Ka.13) about the registration of the case. He has also proved chitti mazroobi (Exts. Ka.4 to 6) written by constable Mahavir Singh in his presence relating to Khem Karan, Budh Pal alnd Ram Lal respectively. He has also proved the copy of the G.D. No. 15 (Ext.Ka.13) about the registration of the case. He has also proved chitti mazroobi (Exts. Ka.4 to 6) written by constable Mahavir Singh in his presence relating to Khem Karan, Budh Pal alnd Ram Lal respectively. He has also proved the charge-sheet (Ext.Ka.7) given by Sri O.P. Tyagi against the accused. S.I. Moin Uddin (P.W.8) has proved the site plan (Ext.Ka.8), the memo (Ext.Ka.9) in respect of blood stained and unstained ‘Ban’ of the cot and two empty cartridges. He has also proved the memo (Ext.Ka.10) in respect of the lantern and torches. He has also proved the blood stained ‘Ban’ (Ext.Ka.1) and unstained ‘Ban’ (Ext.2) and two empty cartridges Ex.3 Dr. M.V. Jwal (P.W.9) has proved the injury report (Ext.Ka.11) in respect of the injuries of Khem Karan. Dr. C.P. Mehdi Ratta who examined Budh Pal on 26.8.1978 at 11.30 a.m. Proved his injury report (Ext.Ka.12). He has also proved the injury report (Ext.Ka.13) in respect of Chatter Pal who was examined by him at 11.40 a.m. the same day Sri O.P. Tyagi (P.W.11) has stated that he took the investigation of the case after the transfer of Sri Moin Uddin I.O and gave the charge-sheet against the accused. 7. Budh Pal (P.W.1) has clearly stated that in the night of the occurrence, at about mid-night a dacoity was committed at his house and at that time he and his uncle Khen Karan and his cousin Chatter Pal was sleeping under Khaprail and the women inmates of the house and his father were also inside the house and a lantern was also burning in the khaprail as usual and the night was moonlight. He further deposed that he woke up on hearing the noise and the light flashed from the torches and he saw 8 or 10 bandits including the five accused in the house. The accused Puttu and Krishna were carrying the lathis and the accused Prem Pal, Mahendra and Onkar were armed with guns. Mahendra-accused put his gun on the chest of Khem Karan who tried to snatch the gun and on the instigation of accused Prem Pal, Onkar fired a shot from his gun and the pallet of this fire hit Khem Karan and Chatter Pal who was also sleeping with Khem Karan. Mahendra-accused put his gun on the chest of Khem Karan who tried to snatch the gun and on the instigation of accused Prem Pal, Onkar fired a shot from his gun and the pallet of this fire hit Khem Karan and Chatter Pal who was also sleeping with Khem Karan. The accused Krishna and Puttu surrounded him and beat him with lathis and inquired about the articles and Prem Pal accused remained standing at the door of the house and fired the shots from his gun. He further stated that the female inmates of the house and his father Raghubar ran outside the house after getting an opportunity and the witnesses carrying the lathis and torches arrived on the spot and they challenged the bandits and thereupon the bandits escaped towards the east, carrying the looted property. He further stated that he got the report (Ext.Ka.1) written from one Brij Pal at Dataganj and lodged the same at the police station Dataganj and he was also accompanied by Khem Karan and Chatter Pal and their injuries were seen by the Head Moharrir and the injuries on his person and the person of Chatter Pal were examined by the Doctor at Dataganj and the injuries on the person of Khem Karan were examined at Budaun who was referred by the doctor to Budaun. The testimony of Budh Pal (P.W.1) is consistent and nothing has come out in his cross-examination to disbelieve his testomony. He has clearly denied the suggestion that there has been any dispute with Mahendra relating to any mendh of the field. He denied the suggestion that there has been any ill-will between the parties relating to the transaction of the field. 8. Khem Karan (P.W.2) has clearly stated that in the night of the occurrence a dacoity was committed at his house by 10 or 11 bandits and at that time he alongwith his son Chatter Pal was sleeping on a cot and his brother Raghubar and Budh Pal (P.W.1) and the female inmates of the house were also present and at that time there were no door shutters at the sadar darwaza. He also stated that the accused persons who were known to him from before were also amongst the bandits and Mahendra, Onkar and Prem Pal accused were carrying the guns and Puttu and Krishn accused were carrying the lathis. He also stated that the accused persons who were known to him from before were also amongst the bandits and Mahendra, Onkar and Prem Pal accused were carrying the guns and Puttu and Krishn accused were carrying the lathis. The accused Mahendra put his gun on his chest and he tried to snatch the gun and thereupon Prem Pal instigated to shot and thereupon the accused Onkar fired a shot from his gun whose pallet his him and Chatter Pal. He also stated that Budh Pal was surrounded by Puttu and Krishna accused and they gave the lathi blows to him and inquired about the articles. His brother Raghubar and the female inmates of the house ran outside the house after getting an opportunity and they raised cry and after hearing the gun shot fire and the noise the witnesses arrived on the spot carrying lathi and torches. He further stated that he clearly recognized the bandits in the light emited from the lantern flashed from the torches and the moon light and the bandits went towards the east after carrying the looted property when the witnesses arrived on the spot. He further stated that he alongwith Budh Pal and others went to the police station Dataganj in the morning and Budh Pal got a report written from one Brij Pal and lodged the same at the police station Dataganj. He was sent to the Primary Health Centre Dataganj for the medical examination, but from there he was referred to the District Hospital Budaun where his injuries were examined by the doctor. The testimony of Khem Karan (P.W.2) is consistent and reliable. There is no ground to disbelieve his testimony. 9. Raghubar (P.W.3) has also given a consistent statement and deposed that about 2-1/2 years ago in the midnight a dacoity was committed at his house and at that time he was sleeping at the chaupal and Khem Karan, Budh Pal and Chatter were sleeping in the house and the female inmates of the house were sleeping inside the house and a lantern was burning in the khapral. He further stated that he woke up after hearing the noise and the gun shot fire and saw 10 to 11 bandits including the accused. He further stated that he woke up after hearing the noise and the gun shot fire and saw 10 to 11 bandits including the accused. He further stated that the accused Prem Pal, Onkar and Mahendra were armed with guns and Puttu and Krishna accused were carrying lathis and the other bandits were not known to him from before, but their faces were clearly marked by him. He further stated that he alongwith the female inmates of the house ran outside the house and the witnesses arrived there carrying the lathis and torches and the bandits caused gun shot injuries to Khem Karan and Mahendra and lathi injuries to Budh Pal and they escaped carrying the looted property. The testimony of this witness is consistent and there is no ground to disbelieve him. 10. Chimman Lal (P.W.4) has also stated that a dacoity was committed at the house of Budh Pal at about mid-night 2-1/2 years ago and he reached the place of the occurrence carrying the torch and saw 8 or 10 bandits committing dacoity at the house of Budh Pal and he clearly recognised the accused amongst the bandits and other bandits who were not known to him from before were marked by him and the accused Mahendra, Prem Pal and Onkar were carrying the guns and the accused Puttu and Krishna were carrying lathis. He further stated that the accused escaped with the looted property when they were challenged by him and the other witnesses who have arrived on the spot. He has clearly stated that he had recognized the accused in the light of the moon and in the light flashed from the torches. He further stated that Khem Karan and Chatter Pal were injured by the gun shot fire and Budh Pal received lathi injuries in the occurrence. 11. Ram Lal (P.W.5) has clearly stated that a dacoity was committed at the house of Budh Pal about 2-1/2 years ago in the mid-night. He however, stated that he could not see the accused as the accused were at a sufficient distance from him when they were escaping. This witness was declared hostile on the application of the learned public prosecutor. 12. Ram Charan (P.W.6) has also deposed that he saw 8 or 10 bandits armed with lathis guns and torches. He however, stated that he could not see the accused as the accused were at a sufficient distance from him when they were escaping. This witness was declared hostile on the application of the learned public prosecutor. 12. Ram Charan (P.W.6) has also deposed that he saw 8 or 10 bandits armed with lathis guns and torches. He also stated that the accused had gone away from the house of Budh Pal when he reached the place of the occurrence and he saw the accused from their back. This witness was also declared hostile. 13. Dr. M.B. Jwal (P.W.9) examined Khem Karan on 26.8.1978 at 2.0 p.m. at the District Hospital Budaun and found the following injuries on the person of Khem Karan : 1. Lacerated wound 11 cm. x 3 cm. x depth not probed in the abdomen lower half just below thte umblicus starting from right side abdomen running obliquely and transversely crossing the middle and right left side abdomen. There is tatooing and blackening around the wound. Advised X-Ray abdomen. 2. Abrasion 2.25 cm. x 5 cm. on right side abdomen just above to right hand of injury No. 1. Injury No. 1 was kept under observation and injury No. 2 was found simple. Injury No. 1 was caused by some fire arm and injury No. 2 by friction. 14. Dr. M.V. Jwal (P.W.9) has also stated before the Court that injury No. 2 could be caused by friction from a pellet. He has also stated that the injury on the person of Khem Karan could be caused in the mid night between dated 25/26.8.1978. He has proved his injury report (Ext.Ka.11). 15. Dr. C.P. Mehdi Ratta (P.W.10) found three bruise on the person of Budh Pal on 26.8.1978 at 11.30 a.m. and has proved the injury report (Ext.Ka.12). He has also clearly stated that these injuries could be caused to Budh Pal by the lathi blows in the mid-night between dated 25/26.8.1978 he has also stated that on 26.8.1978 at 11.40 a.m., he examined the injuries on the person of Chatter and found the following injuries on his person : 1. Multiple lacerated wounds ¼ cm. x ¼ cm. x ¼ on the right lower part anterior abdomen wall in an area of 5 cm. x 3 cm. 2. Lacerated wound ¼ cm. x ¼ cm. x ¼ cm. Multiple lacerated wounds ¼ cm. x ¼ cm. x ¼ on the right lower part anterior abdomen wall in an area of 5 cm. x 3 cm. 2. Lacerated wound ¼ cm. x ¼ cm. x ¼ cm. on the inner side of left leg 3 cm. below the knee joint. 16. He has stated that these injuries were caused by the fire arm and they could be caused in the mid night between dated 25/26.8.1978. 17. Sri Moin Uddin (P.W.8) has stated that the investigation of the case was done by him. Sri Rama Shanker (P.W.7) has clearly stated that the FIR (Ext.Ka.2) was duly written by him on the basis of the written report (Ext.Ka.1) and he also made an entry in the G.D. at serial No. 15 at the same time whose carbon copy is (Ext.Ka.3) on the record. 18. Sri O.P. Tyagi (P.W.11) has proved that he submitted charge-sheet against the accused. 19. It has been argued by learned counsel for the appellants that it is a categorical case of the prosecution that the appellants alongwith five unknown dacoits have committed dacoity in the house of the complainant and looted away the articles but the said allegation against the appellants appears to be absolutely false one as the appellants are resident of same village to that of complainant and it is highly improbable that the appellants would not take any precaution to conceal their identity in the case of dacoity. The appellants No. 1 Mahender is the cousin brother of appellant No. 3 and 5 namely Krishna and Prempal. No incriminating article was recovered from the possession of the appellants. It has been further submitted that there was enmity going on between the appellant No. 1 Mahender with the informant regarding some agricultural land on account of which he has been falsely implicated in the present case alongwith other appellants who are related to each other. The appellants have no criminal history and their antecedents are absolutely clean. It has been further submitted that there was enmity going on between the appellant No. 1 Mahender with the informant regarding some agricultural land on account of which he has been falsely implicated in the present case alongwith other appellants who are related to each other. The appellants have no criminal history and their antecedents are absolutely clean. Learned counsel for the appellants in support of his contention has placed reliance on the Division Bench judgment of this Court in the case of Parsu Ram v. State of U.P., 1995 (7) JIC 1367 (DB) (All), in which it has been held that the evidence of a witness naming an accused in the dacoity or robbery cannot be brushed aside solely on the ground that the accused was previously known or resident of the same locality and the accused committed offence without taking precaution to conceal his identity, some time the evidence of a witness naming an accused in a dacoity has also to be accepted on taking into account the entire and total circumstances of the case. Therefore the Courts have to analyse the evidence on record and examine the entire facts and circumstances of the case for reaching at a right and definite conclusion. The law does not require multiplicity of evidence but quality of evidence is needed for arriving at a finding. 20. It was then argued that the instant case is a specific case of dacoity as evidence has been adduced by the prosecution in this context but during the course of investigation, it has not come into light as to who were the five unknown persons involved in the alleged crime alongwith appellants.The entire incident has been concocted in order to falsely implicate the appellants in the present case and the trial Court without considering the said aspect of the matter has erred in convicting and sentencing the appellants, hence their conviction and sentence be set-aside. 21. On the other hand Sri R.K. Maurya, learned AGA has submitted that trial Court has rightly convicted the appellants. He further argued that during the dacoity committed three persons have sustained injuries and specific role of firing on the said injured persons were assigned to the appellant Onkar. 21. On the other hand Sri R.K. Maurya, learned AGA has submitted that trial Court has rightly convicted the appellants. He further argued that during the dacoity committed three persons have sustained injuries and specific role of firing on the said injured persons were assigned to the appellant Onkar. The incident has no doubt taken place as there are injured witness but could not dispute the fact that the case of the prosecution is of dacoity and the appellants who are known to the complainant and other persons did not take any precaution to conceal their identity in the case of dacoity and other accused persons who were five in number were not arrested by the police during investigation nor their whereabout were traced. 22. Considered the submission advanced by learned counsel for the parties. 23. I have perused the judgment of the trial Court as well as record of the case. 24. From the evidence of P.W.1 Buddhpal who is the complainant of the case, it is apparent that the dacoity has taken place in his house but whether it was the appellants who were actually involved in the incident could not be borne out from the evidence on record. It is a admitted fact that the appellants were known to the complainant and his family members as they belonged to their village but they had not taken any precaution to conceal their identity. It also transpires from the evidence of P.W.3 that there was some enmity going on between the appellant No. 1 Mahender and the complainant with regard to agricultural land on account of which it appears that the appellants have been implicated in the present case. Moreover there has been no recovery of any incriminating article from the possession of the appellants in order to show that they were involved in the dacoity committed in the house of the complainant. The two independent witnesses of the incident i.e. Ram Lal (P.W.5) and Ram Charan (P.W.6) have turned hostile before the trial Court and did not support the prosecution case. The testimony of the rest of the prosecution witnesses cannot be relied upon as they are related to each other and are highly interested and partisan witness. It is quite natural for them to falsely implicated the appellants on account of earlier enmity existing between the parties. The testimony of the rest of the prosecution witnesses cannot be relied upon as they are related to each other and are highly interested and partisan witness. It is quite natural for them to falsely implicated the appellants on account of earlier enmity existing between the parties. It is not safe to accept their testimony particularly when it is not supported by any recovery or by any other corroborative evidence. It appears from the record that some unknown dacoits have committed the present crime as out of 8 or 10 bandits, besides the appellants, no other bandits were arrested by the police or identified by the complainant and his family members and the appellants have inimical relation with the complainant had nominated as culprits. The appellants are respectable persons of the society having substantial source of livelihood including land. Moreover the appellants are inter-se related to each other. They are not regular professional criminals nor previous convict nor they were earlier challaned in any dacoity case. These intrinsic circumstances speak volumes against the prosecution case and raise considerable amount of suspicion regarding the complicity of the appellants in the dacoity. It is well-settled that while witnesses lie, circumstances do not The law laid down by the Apex Court in the case of Laxman Prasad v. State of Bihar, AIR 1981 SC 1388 (1988 Cri LJ 1010), Rama Shanker v. State of U.P., AIR 1956 SC 441 (1956 Cri LJ 822) and Munni Singh v. State of Bihar, 1993 SCC (Cr.) 142, also supports the contention of learned counsel for the appellants. 25. In view of the foregoing discussions, the trial Court has committed error in recording the conviction and sentence of the appellants as the prosecution has failed to bring home the guilt to the accused who are entitled to be acquitted. Thus, the judgment and order passed by the trial Court is not sustainable in the eyes of law, hence the same is set-aside and the appellants Mahender and Prempal are acquitted. They are on bail. They has not surrendered. Their bail bonds and sureties are discharged. 26. The appeal stands allowed.