JUDGMENT Hon’ble Mrs. Vijay Lakshmi, J.—All these connected appeals arise out of the same judgment and order dated 11.11.1986 passed by the Special Judge (D.A.A.), Etah, in Special Sessions Trial No. 140 of 1985, State v. Tilloo and others, wherein the appellants have challenged the legality and correctness of the impugned judgment convicting them under Section 396 I.P.C. and awarding life imprisonment to all of them. 2. We have heard Sri PanKaj Kumar Shukla, learned counsel for the appellants Tilloo, Mahendra and Chunna and learned AGA Kumari Meena, appearing on behalf of the State. Perused the lower Court’s record. The prosecution story is that on 15.3.1985 a first information report was lodged at Police Station Jalesar, District Etah, by the informant Jwala Singh at 7.45 a.m. to the effect that in the intervening night between 14/15.3.1985, when he alongwith his brother Kishan Lal was sleeping in the Chappar (thatched roof Verendah) of his house, his mother Smt. Leelawati, bhabhi Smt. Shanti Devi and his wife Smt. Munni Devi were sleeping in the Kotha (room) and as usual a lantern was burning in the Chhappar, 8 or 9 bandits armed with guns, country made pistols, hockey sticks and torches entered into his house at about 12.00 O’ Clock. They were speaking in the local dialect. Some of them were wearing Khaki clothes and others were in plain clothes. The Dacoits started looting the house of the informant after entering inside the “Kotha”, where women of the house were sleeping. By the sound caused by falling of some house hold article, the informant and his brother Kisnan Lal woke up. Kishan Lal caught hold of one of the dacoits namely accused Tilloo and pinned him to the floor. Accused Tilloo called his companion Mahendra to help him saying, ^^egsUnz D;k eq>s ;gkW ejok nsxkA^^ 3. Upon hearing the aforesaid call, accused Mahendra came near Kishan Lal and fired on his shoulder from a point blank range, causing fatal injury to him. One of the dacoits Chunna assaulted on the head of Kishan Lal by hockey stick. Kishan Lal died on the spot. Hearing the hue and cry, the witnesses Rewati, Suresh, Ghasi Ram, Kanchan, Amar Singh and several other villagers reached with their torch lights. One of the dacoits Chunna assaulted on the head of Kishan Lal by hockey stick. Kishan Lal died on the spot. Hearing the hue and cry, the witnesses Rewati, Suresh, Ghasi Ram, Kanchan, Amar Singh and several other villagers reached with their torch lights. In the light of torch and the lantern burning on the spot all those witnesses, the mother, bhabhi and wife of the informant saw and recognised the bandits. After committing dacoity in the house of the informant, the bandits looted the houses of Mawasi, Kanchan, Ram Khiladi and Rewati Ram also and thereafter, they fled towards southern direction firing in the air. According to the informant the dacoits have looted ornaments and clothes and he would provide the list of looted articles afterwards. The dead body of his brother Kishan Lal was lying on the spot when the FIR was lodged. 4. On the basis of this written report (exhibit Ka-1) a criminal case under Section 396 I.P.C. was registered at Crime No. 64 of 1985 at Police station Jalesar, District Etah, and the matter was investigated. The I.O. proceeded to the place of occurrence and after concluding the inquest proceedings sent the dead body for autopsy. He took in possession the blood stained and plain earth from the spot and prepared its ‘fard’. He also recovered empty cartridges from the spot and prepared recovery memo. He recorded the statements of witnesses and prepared Supurdaginama of the torches. He inspected the spot and prepared site plan and after concluding the investigation, he submitted charge-sheets against all the three accused appellants. 5. The case being triable by the Special Judge (D.A.A.), the trial proceeded in that Court and charge was framed against all the accused persons under Section 396 I.P.C. The accused appellants denied the charge and claimed their trial. 6. The prosecution in order to prove its case, examined four witnesses in all, out of them only two witnesses were the witnesses of fact. Rest of two witnesses i.e. PW3 and PW4 were the two I.O.s of the case. No other witness was produced by the prosecution. After conclusion of the prosecution evidence statements of the accused persons under Section 313 Cr.P.C. were recorded in which they denied all the allegations made against them and stated about their false implication in land and water dispute. However, they did not adduce any defence evidence. 7. No other witness was produced by the prosecution. After conclusion of the prosecution evidence statements of the accused persons under Section 313 Cr.P.C. were recorded in which they denied all the allegations made against them and stated about their false implication in land and water dispute. However, they did not adduce any defence evidence. 7. Learned Court below, after a detailed appreciation of evidence, found the prosecution case worthy of credence and the accused persons guilty under Section 396 I.P.C. As a result, it awarded life imprisonment to all of them. 8. Sri Pankaj Shukla, learned counsel appearing on behalf of the appellants in all these connected appeals, has filed written submissions questioning the legality of the impugned judgment mainly on the following grounds : 1. The presence of the informant at the spot is doubtful. 2. The identification of the accused persons by the informant is also doubtful. 3. The manner of occurrence as depicted in the FIR and in the statement of PW1 does not find corroboration with the description of ante-mortem injuries in the Post-mortem examination report. 4. There was no sufficient source of light at the place of occurrence. The scuffle has been seen by the informant in the dim light of lantern. 5. The place of occurrence is doubtful. The police has not found the dead body of Kishan Lal under the “Chhappar” on the other hand the site plan reflects that the dead body found was lying on the streets. The blood stains were also found on the street and not under the Chhappar. 6. The conduct of the informant is doubtful as he has admitted that he did not inform any one, about the fact of recognizing the assailants. 7. There is delay in lodging the FIR without any explanation for the same. 8. There are only two witness in this case, who are not reliable. PW2 Rewati has criminal antecedent. He is also a close relative of the informant. 9. The prosecution has not examined any other inmate/family members of the informant i.e. his wife, bhabhi and mother although they were alleged to be present at the time and place of occurrence and were shown as witnesses in the FIR. 10.The informant’s conduct appears doubtful also in view of the fact that he has not tried to rescue his brother as the informant has not sustained any injury on his body. 10.The informant’s conduct appears doubtful also in view of the fact that he has not tried to rescue his brother as the informant has not sustained any injury on his body. 11.Although it is alleged that the dacoits after committing dacoity in informant’s house, also looted the houses of 12 to 13 other villagers but except the informant nobody has lodged the FIR. 12. Four close relatives of the deceased i.e. deceased’s mother, wife, younger brother (informant) and wife of his younger brother, were said to be present in the house at the time of occurrence but none of them has received even the slightest injury even any contusion, abrasion on his/her body. This shows that no one has tried to rescue the deceased, which appears unnatural on the part of the family members. 13. PW2 Rewati Ram has stated that after hearing sound of fire he reached the house of Todi from where he saw the assailants in the light of torch. However, the site plan (exhibit Ka-15) shows that it is impossible for any one standing by the wall of house of Todi to see what is happening in the Chhappar of the informant. 14. The site plan shows that agricultural fields of the accused persons, fields of the witnesses and fields of informant are adjacent to each other, which corroborates the defence version of the story that the appellants have been falsely implicated in this case due to dispute with regard to the flow of water through the fields of the accused persons. 9. Learned counsel for the appellants has relied on the following judicial pronouncements: 1. Ram Vilas @ Pauwa v. State of U.P., 2012(9) ADJ 622 (DB) 2. Umesh Kamat v. State of Bihar, (2005)9 SCC 200 3. Jabar Singh and another v. State of U.P., 2010(6) ADJ 465 (DB). 4. Jal Pal Singh v. State of U.P., 2012(2) ADJ 58 . 10. Per contra Km. Meena, learned AGA, who has also filed written submission, has contended the case by arguing that the statements of the witnesses, post-mortem report, recovery memos and the site plan, all support the prosecution case. The witnesses are natural and probable witnesses. There was sufficient light at the time and place of occurrence. Besides it, the witnesses were standing so close to the dacoits that they could have easily been recognized even in the light of lantern and torches. The witnesses are natural and probable witnesses. There was sufficient light at the time and place of occurrence. Besides it, the witnesses were standing so close to the dacoits that they could have easily been recognized even in the light of lantern and torches. Moreover, the dacoits were residents of the neighbouring village and their agricultural fields being adjacent to the fields of witnesses could also be recognized being known to them and with their uncovered faces there was no difficulty for the witnesses in identifying them. The learned AGA prays that the appeals are liable to be dismissed being without any merit. 11. In order to properly appreciate the rival contentions of the learned counsel for the parties, we have to independently scrutinize the written as well as oral evidence brought on record by the prosecution. The prosecution has produced only two witnesses of fact in this case. Both these witnesses PW1 Jwala Prasad Singh, the first informant and PW2 Rewati Ram, who are said to be eye-witness of the occurrence have fully supported the prosecution case with regard to the active participation and the definite role played by each of the appellants namely Tillu, Mahendra and Chunna. 12. PW-1 Jwala Singh has stated that he was sleeping in the ‘Chhappar’ in front of his house. His brother Kishan Lal also was also sleeping there on another cot whereas his mother, wife and Bhabhi were sleeping in the ‘Kotha’. A lantern was burning in the ‘Chhappar’. On hearing the noise of a falling object in the ‘Kotha’ he and his brother Kishan Lal woke up and saw 8 or 9 bandits coming out of his Kotha with goods. His brother Kishan Lal caught hold of one of them, i.e. the accused Tilloo, who called his companion Mahendra for help. Then Mahendra came near Kishan Lal and fired on him. As a result Kishan Lal fell down and died. He recognized accused Chunna, who was also amongst the dacoits. He and one of his companion dacioits hit Kishan by hockey-sticks. He (Pw1) raised alarm, on which witnesses reached there and they also saw the accused Mahendra, Tilloo and Chunna in the light of lantern and torch. Accused Tilloo and Mahendra were armed with country made pistols and accused Chunna had Hockey-stick with him. Some of the dacoits had guns. He and one of his companion dacioits hit Kishan by hockey-sticks. He (Pw1) raised alarm, on which witnesses reached there and they also saw the accused Mahendra, Tilloo and Chunna in the light of lantern and torch. Accused Tilloo and Mahendra were armed with country made pistols and accused Chunna had Hockey-stick with him. Some of the dacoits had guns. The dacoits thereafter also looted the houses of several other villagers uptill about half an hour before leaving the village. After they left the village, he (PW1) wrote the report of the occurrence and went to the Police Station to lodge the same. When the I.O. came on the spot in the morning, he gave him the list of his looted property. 13. PW-2 Rewati Ram has stated that on hearing the noise he took a torch and a danda and reached near the house of Todi. He sat by the side of the wall and from there he saw the dacoits and recognized Tillu, Mahendra and Chunna amongst them. He has further stated that Kishan Lal had caught hold of Tillu. Tillu wanted to get rid of him, he called and asked Mahendra to save him. On this Mahendra fired on Kishan Lal from his ‘Katta’. The accused Chunna had a hockey stick in his hand and he gave a hard blow with that stick on the head of Kishan Lal. When the villagers assembled, dacoits ran away from the spot. They also looted several other houses of the village before leaving the place of occurrence. 14. The statements of both the witnesses PW1 and PW2, as a whole appears to be trustworthy and inspire confidence. Despite their lengthy and grilling cross- examinations nothing has been elicited so as to discard their testimonies. The presence of both these witnesses at the place of occurrence is natural. PW1 is the real younger brother of the deceased residing in the same house. He was sleeping in the same Chhappar alongwith his elder brother deceased Kishan Lal on the fateful night. PW2 Rewati Ram is their neighbour, whose house is situated just after 2 or three houses in the vicinity. On hue and cry PW2 got awake and saw the occurrence sitting behind the wall of house of Todi. Hence the presence of witnesses at the time and place of occurrence cannot be doubted. 15. PW2 Rewati Ram is their neighbour, whose house is situated just after 2 or three houses in the vicinity. On hue and cry PW2 got awake and saw the occurrence sitting behind the wall of house of Todi. Hence the presence of witnesses at the time and place of occurrence cannot be doubted. 15. So far as the identification of the accused persons is concerned, the witnesses have stated that they know the accused persons since prior to the occurrence. PW1 i.e. the informant even knows their father’s names as he has mentioned the same in the FIR itself. PW1 during his cross- examination has also stated that all the three accused persons were studying with him in the same school at Hasangarh. Their fathers used to come to his village, which is situated at a distance of only one and half Kms. 16. It is also worth mentioning that the appellant Tillu has clearly stated in his statement recorded under Section 313 Cr.P.C. that the fields of informant and the witness are adjacent to their fields. Appellant Mahendra has stated that Rewati (PW2) had encroached on his fields. Appellant Chunna has also stated that his field is situate by the side of field of Rewati. He has further stated that as he had not permitted the flow of water through his field to the field of Rewati, a dispute arose between them. Although the accused persons have stated all these facts in order to show that due to this dispute they have been falsely implicated in this case, yet it is clearly evident by their statements that their fields and the fields of the informant and PW2 Rewati are adjacent to each other. It is also evident that there is personal enemity between them due to dispute of land encroachment and flow of water. Under these circumstances, it cannot be assumed that the appellants were not priorly known to the informant and the witness PW2. 17. All these aforesaid facts establish that the appellants had prior acquaintance with the witnesses. The police has recovered the lantern burning at the spot hence it cannot be said that there was absolute dark at the place of occurrence. Having prior acquaintance, the accused persons could have easily been recognized by the witnesses even in insufficient light. 18. 17. All these aforesaid facts establish that the appellants had prior acquaintance with the witnesses. The police has recovered the lantern burning at the spot hence it cannot be said that there was absolute dark at the place of occurrence. Having prior acquaintance, the accused persons could have easily been recognized by the witnesses even in insufficient light. 18. In the instant case the witnesses have clearly stated that they have seen the assailants in the light of lantern and flash of torch light. Hence the ground taken by appellants questioning their identity becomes baseless as a person having prior acquaintance can easily be recognized even in torch light or in the dim light of the lantern. 19. So far as the place of occurrence is concerned, there is no dispute that the dead body of the brother of the informant has been found in front of his ‘Chhappar’. The prosecution case is that when the dacoits were coming out of the house with looted articles, deceased Kishan Lal caught hold of one of them. A fight ensued between them and Kishan Lal overpowered appellant- Tilloo by pressing him against the ground. In these circumstances, it cannot be assumed that while fighting they might have confined themselves inside the ‘Chhappar’, which is an open verendah with thatched roof. The dead body of Kishan Lal has been found in front of it. 20. The post-mortem report shows that following ante-mortem injuries have been found on the body of the deceased: 1. Lacerated wound 3 cm x .5 cm x bone deep on the front of forehead in the middle, vertically placed. 2. One firearm wound of entry 4 cm x 4 cm x chest cavity deep over left side of shoulder joint. Blackening present in the subcutaneous tissues on dissecting the wound. Head of humorous proactive. Left clavicle fractured. Upper part of left lung badly lacerated. About one litre free and clotted blood present in the chest cavity. Direction left to right. Thus the description of the ante-mortem injuries in the post-mortem report fully supports the manner of occurrence and the weapon used as described by the witnesses. 21. Head of humorous proactive. Left clavicle fractured. Upper part of left lung badly lacerated. About one litre free and clotted blood present in the chest cavity. Direction left to right. Thus the description of the ante-mortem injuries in the post-mortem report fully supports the manner of occurrence and the weapon used as described by the witnesses. 21. There appears no delay in lodging the FIR as it has been lodged at 7.45 a.m. on 15.3.1985, the occurrence in the house of the informant had taken place in the intervening night of 14/15.3.1985 at 12.00 a.m. and thereafter several houses in the village were looted. The distance of the police station from the place of occurrence is three miles. In the remote village, the modes of transportation are very limited. It is also evident that the dacoits, after committing robbery in the house of the informant did not leave the village immediately but looted several other houses too. Under these circumstances it was natural for the witnesses not to dare to go to police station immediately in the midnight in presence of dacoits. It appears that in the morning, after sunrise the informant might have gathered the courage to go to the police station to lodge the FIR which has been lodged at 7.45 a.m. Thus there appears no inordinate delay in lodging the FIR, so as to provide any opportunity to the complainant to make consultations and deliberations. The informant is the real brother of the deceased. There appears no reason why he would falsely implicate the appellants while exonerating the real assailants? 22. Learned counsel for the appellants has assailed the prosecution story on one more ground that why not any other person of the village, whose house has also been alleged to be looted on the same night, has lodged any FIR? The record shows that although separate FIRs have not been lodged by the other villagers, whose houses were looted by the accused persons on the same night yet the villagers have given the list of their looted articles to the I.O. on the same morning. These lists are available on record. 23. In our view, it does not make much difference if the other inmates of the house have not sustained any injury or they have not made any attempt to rescue the deceased. These lists are available on record. 23. In our view, it does not make much difference if the other inmates of the house have not sustained any injury or they have not made any attempt to rescue the deceased. The facts of the case in hand clearly show that the entire episode has taken place all of a sudden. More so, the other family members which include all except the informant ladies were unarmed so they could not have dared to oppose the armed gang of dacoits. Both the witnesses, produced by the prosecution are rustic villagers hence minor contradictions occurring in their statements should be ignored. 24. The argument of the learned counsel for the appellants that the prosecution has not produced any other inmates of the house also does not appear to have any force in view of the verdict of the Hon’ble Apex Court rendered in the case of Masalti v. State of U.P., AIR 1965 SC 202 , in which the Apex Court has held that it would be unsound to lay down as a general rule that every witness must be examined. In Rohtash Kumar v. State of Haryana, 2013(3) RCR (Criminal) 355, this legal principle has again been reiterated by the Apex Court with the words that “it is not the number of witnesses but the quality of their evidence, which is important.” As seen earlier, the rest of the inmates of the houses are all ladies and the informant, out of fear of dacoits might have been reluctant to produce them in the Court as witnesses. 25. In view of the aforesaid discussion we are of the firm view that the learned trial Court has rightly convicted and sentenced the accused persons under Section 396 I.P.C. for life imprisonment. We find no reasonable ground to interfere in the order impugned. Accordingly the impugned judgment and order of learned trial Court deserves to be confirmed in these appeals. The appeals are merit less and are liable to be dismissed. 26. The judicial verdicts cited by learned counsel for the appellants are of no avail due to their entirely different facts and circumstances. The appeals are dismissed. The judgment and sentence of the appellants by the trial Court is upheld. The appellants Chunna and Tilloo are on bail. Their bail bonds are cancelled. 26. The judicial verdicts cited by learned counsel for the appellants are of no avail due to their entirely different facts and circumstances. The appeals are dismissed. The judgment and sentence of the appellants by the trial Court is upheld. The appellants Chunna and Tilloo are on bail. Their bail bonds are cancelled. They shall be taken into custody for serving out their respective period of sentence. The Chief Judicial Magistrate, Etah, is directed to ensure their arrest and send his report within one month. Let a certified copy of this judgment be sent to the Chief Judicial Magistrate, Etah, for compliance and also to the trial Court for its intimation. —————