Court No. - 78
Case :- CRIMINAL APPEAL No. - 1540 of 1985 Appellant :- Gaya Prasad And Ors Respondent :- State of U.P.
Counsel for Appellant :- P.N.Mishra, Raghuvansh Misra, Rahul Misra Counsel for Respondent :- A.G.A.
Hon'ble Ajit Singh, J.
1. Heard learned counsel for the appellants, learned AGA, Shri Hari Pratap Gupta, appearing for the State and perused the record of this appeal.
2. This criminal appeal have been filed against the judgement and order dated 03.06.1985 passed by learned Special Judge, (Dacoity Affected Area) Agra in S.T. No. 224 of 1984 (State vs. Sadhu and others), whereby learned Judge has convicted all the appellants under Section 392 I PC and sentenced each of the appellants to undergo four years’ rigorous imprisonment.
3. From perusal of the record of this appeal it reveals that appellant No. 1, Gaya Prasad and appellant No. 4, Rajan, have died and in this regard a report dated 26.04.2018 submitted by learned Chief Judicial Magistrate, Agra is available on file. Looking to the report certifying the theory of the death of appellant No. 1 and appellant No. 4, the present appeal stands abated on their behalf.
4. The appellant No. 2, Jagdish and appellant No. 3, Sadhu, are surviving and the learned counsel has argued this appeal on their behalf.
3. In brief the prosecution story is that on 19.07.1982 one Bangali Babu was going to Agra from his village Bamrauli and he met the accused persons at about 4:00 P.M. at Taal near Gosaigarhi. Accused Gaya Prasad asked the other co-accused to catch and loot of his property, he be given the fun of implicating in dacoity case. Accused Sadhu and Jagdish caught and snatched his watch and Rs. 400/- were taken out by Rajan from his pocket. At the same time Bramhachari, Gyasiram and Ramveer reached there and saved him. Report of the incident was made to the police on the same day at about 6:10 P.M. and necessary entry in that regard was also made in G.D. No. 28. Investigation into the offence was conducted and the case was presented in Court for trial. The accused persons pleaded to be not guilty and claimed for trial.
4. From the side of the prosecution four witnesses were examined by the learned Trial Court, namely, PW-1 – Ramveer, PW-2 – Bramhachari, PW-3 – Gyasi Ram and PW- 4 – Bangali Babu (the victim). During the trial proceeding the eye witnesses i.e. PW-1 – Ramveer, PW-2 – Bramhachari, and PW-3 – Gyasi Ram were declared hostile. In this case it is evident that the trial proceeding was completed and concluded into conviction of the accused persons only on the basis of the statement of Bangali Baboo, the alleged victim of the incident. Accordingly, the each of the accused persons were sentenced to undergo four years’ R.I. by the impugned judgment and order. Being aggrieved with the judgment and order of the learned Trial Court, the present appeal has been filed by the accused persons.
5. The learned counsel for the surviving appellants submits that the conviction has been done against weight of evidence on record and it is against law.
6. The learned counsel for the appellants also submits that the accused persons are quite innocent and they have been falsely implicated in this case. He submits that the appellant No. 1, Gaya Prasad who died during the pendency of this appeal was father of appellant Nos. 2 and 3, namely, Jagdish and Sadhu. The appellant No. 4, Rajan, who also died during the pendency of this appeal was their companion. It is also argued by him that in the entire judgment and order of conviction impugned in this appeal there is no whisper of the defence evidence adduced by the accused persons and the learned Trial Court has proceeded solely on the basis of the testimony of the complainant Bangali Baboo and treated it to be true as gospel truth and that too when the prosecution witnesses PW-1 – Ramveer, PW-2 – Bramhachari and PW-3 – Gyasi Ram had not supported the prosecution story. In such circumstance, the offence against the accused persons was not proved beyond reasonable doubt, as two views of the matter was possible, and where two views of the matter are possible, in view of the law laid down by the Hon’ble Apex Court, the view which favours the accused, is just and proper to be formed by the Court while concluding the trial proceeding. Thus, the trial proceeding has been concluded in an arbitrary and illegal manner against the settled proposition of law laid down by the Hon’ble Apex Court.
7. The learned counsel for the surviving appellants further submits that appellant No. 1 was father of appellants No. 2 and 3 and it is not possible that a father along with his two sons will commit robbery with known person. It is also argued that nothing was found recovered from the possession or pointing out of the accused persons of this case. Thus, the conviction of the accused appellants was illegally done by the Trial Court against the evidence available on record by a forming a wrong view only on the sole testimony of the complainant who was bearing enmity with the accused persons. In furtherance of his argument, it is submitted by the learned counsel for the appellants that before this incident the complainant Bangali Babu had also lodged an FIR against Sadhu, Jagdish and Rajan for the offence of dacoity at his house in which the accused persons were acquitted by the learned Trial Court, which is mentioned in the impugned judgement on the last line of page No. 4 and on page No. 5, and the relevant portion is quoted herein below:-
“ Abhiyukta Ne Bhi Is Tathya Ko Swikar Kiya Hai Ki Is Sakshi Ne Unake Uppar Dacoity Ka Vaad Niyojit Kiya Tha, Jisamein Ve Dosh Mukta Kiye Gaye The….”
8. Thereafter, the learned counsel for the surviving appellants No. 2 and 3 also argues that the three witnesses examined from the prosecution side, namely, Ram Veer, Bramhachari and Gyasi Prasad have not supported the prosecution version in the statement recorded before the Trial Court. It also indicates sufficiently that a false and frivolous case was framed against the accused persons. Thus, the learned Trial Court has committed illegality while convicting the accused persons for an offence. Further argument is that the alleged victim has deposed against the accused persons during trial and his testimony does not find any corroboration with any iota of evidence oral or documentary. Nor the story put forward by the prosecution is supported by the prosecution story and in such situation the conviction of the accused appellants had no leg to stand and was based on mere surmises and conjectures of the learned Trial Court.
9. On the contrary, the learned Additional Government Advocate representing the State has supported the judgment and order impugned this appeal. It is argued by him that although the eye witnesses had turned hostile, yet the case was tried by the learned Judge by examining the PW-4, the victim of the incident, and even on the basis of a single testimony conviction can be passed. The appeal lacks merit and is liable to be dismissed.
10. This Court is very well aware of the settled preposition of law that although court can rely upon the testimony of a single witness to convict the accused, if that seems to be cogent and reliable and in this case when the complainant is successively roping the accused persons in crime one after another, then, this Court does not find it just and proper to rely upon the single testimony of the complainant which does not find corroboration with the evidence of prosecution witnesses who turned hostile during the trial proceeding.
11. After considering the rival submissions of the learned counsel for the parties, considering the evidence available on record and considering that only evidence against the accused persons is of the complainant, which was not supported or corroborated by any evidence oral or documentary, considering that all the other independent prosecution witnesses had not supported the prosecution story, considering the theory of the earlier dacoity case got registered by the complainant against the accused persons in which they were acquitted, considering further that the accused Gaya Prasad (deceased) along with his two sons Jagdish and Sadhu have been implicated in this case, which makes the entire prosecution story to be unnatural and false looking to the existence of element of enmity between the parties. Thus, it seems quite unnatural, unbelievable and improbable that a father will commit a dacoity along with his sons. The whole prosecution story appears to be pack of lies. This Court is of the opinion that accused persons might have been involved and implicated in this case by the complainant just to settle small and petty issues. It is a case where this Court deems fit and proper to given benefit of doubt to the surviving accused appellants, namely, Jagdish and Sadhu. They are acquitted of all the charges levelled against them.
12. Accordingly, the appeal stands allowed.
13. Appellants are on bail. Their personal bonds and bail bonds given by the sureties shall stand discharged forthwith.
14. Office is directed to transmit a copy of this order to the learned Sessions Judge, Agra for compliance.
15. Office is also directed to send back the record of the trial court, if any, immediately.
Order Date :- 24.09.2021 LBY