ORDER N.K. Mehrotra, J.
1. This is an appeal against the judgment and order dated 5-9-1994 passed by IV Addl. Sessions Judge, Faizabad in Sessions Trial No. 450/1989 under Sections 394, 397 I.P.C., State v. Kameshwar convicting and sentencing him to ten years' R. I.
2. The brief facts of the case are that according to the prosecution story in the night of 3-1-1987 at about 1.00 a.m. in village Palia, Tekghar, P.S. Maharajganj, District-Faizabad appellant Kameshwar along with 2-3 bandits committed robbery at the house of the complainant Prahlad and Ram Kumar and while committing robbery, he fired with country made pistol hitting Bhola Yadav and Smt. Jagwanta and his associates used lathi and danda and caused injuries to Ram Kumar.
3. The accused was charged under Sections 394 and 397, I.P.C. separately.
4. Prosecution examined Prahlad as P.W. 1, Bhola as P.W. 2, Lalloo as P.W. 3, Dr. B. Bhargava as P.W. 4 and S.I. Harish Chandra as P.W. 5.
5. According to the prosecution story, three persons namely, Ram Kumar, Smt. Jagwanta and Bhola were injured. The injury report of Ram Kumar was proved by Dr. B. Bhargava but the Medical Officer who examined Smt. Jagwanta and Bhola was not examined and the learned Counsel for the accused admitted the genuineness of the injury reports of Smt. Jagwanta and Bhola.
6. Relying on the prosecution evidence, the learned trial Court convicted and sentenced to ten years R.I. to accused Kameshwar under Sections 394/397, I.P.C. In the criminal appeal filed by the accused-appellant sufficient opportunity was given to him to argue the appeal but nobody appeared to argue the appeal from the side of the accused. Since the appeal relates to the year 1994, I decided to proceed on merits in view of the decision of the Supreme Court in the case of Bani Singh v. State of U.P., reported in AIR 1996 SC 2439 : (1996 All LJ 1399 : (1996 Cri LJ 3491) and I heard the Additional Government Advocate.
7. The case of the accused-appellant is that according to the prosecution case, the appellant had committed robbery in the house of Ram Kumar also after committing the robbery in the house of the complainant but neither any F.I.R. was lodged nor Ram Kumar was made witness and this fact has not been considered by the learned trial Court to disbelieve the prosecution story. The finding of the learned trial Court that since because the robbery was committed in the mid-night there was no possibility of presence of any person of the locality, has been assailed by the appellant by contending that it is against the version of the prosecution. It is further contended by the appellant in the grounds of appeal that according to the prosecution, the appellant was well known to the complainant but the trial Court did not consider the most important circumstance that at time of committing robbery, the accused had not concealed his face to save identification. It is further contended that the prosecution has not disclosed the name of the scribe of the F.I.R. and the prosecution witnesses are not independent witnesses. It is further contended in the grounds that P.W. 1 Prahlad and P.W. 2 Bhola have clearly stated that the dacoits have not looted anything and P.W. 2 Bhola has clearly stated that he has not identified any dacoits. The finding of the learned trial Court that the commission of robbery was not disputed by the accused is also against the fact on the record. The injured witnesses Smt. Jagwanta and Ram Kumar have not been examined before the trial Court.
8. I have myself examined the evidence on record, Prahlad P.W. 1 is the complainant. He has stated that in the night of the incident, he was sleeping in his house alongwith his brother Bhola, mother and wife and in the mid-night 3-4 miscreants having torches in their hands entered into his house and started beating him by lathi and he and his brother both defended themselves by lathis and he identified only Kameshwar, the appellant and fire was made by appellant Kameshwar. He has stated that Bhola and his mother Smt. Jagwanta sustained fire arm injuries. He has stated that there was a fight between him and the dacoits for a period of ten minutes but neither the dacoit could attack them nor they could attack nor beat any of the dacoit. In the whole statement of Prahlad there is no statement that any thing either belonging to him or his family members was looted during the dacoity. The statement of P.W. 2 Bhola is also very important. He has stated that neither any fight took place between them and the dacoits for a period of 1-1/2 hours nor any body from his side nor dacoits sustained any injury. He has stated that 'Thakurs' and 'Yadavas' residing nearby had reached on the spot and on their exhortation, the dacoits had escaped. He has further stated that the dacoits had concealed their faces by tying cloth on their faces.
9. According to the prosecution story a robbery was committed but there was no evidence on record that even an attempt was made to loot any house-hold goods or jewellery etc., belonging to the complainant and the family members. According to the prosecution case there are three injured-persons namely; Ram Kumar, Smt. Jagwanta and Bhola. Smt. Jagwanta and Ram Kumar had not been examined for the reason best known to the prosecution. Bhola, one of the injured has been examined but he states that neither of the persons from either side had sustained any injury. He does not state about his own injury. Even the Medical Officer who had prepared the injury reports of Ram Kumar and Jagwanta has not been examined by the prosecution. Thus, a perusal of the evidence on record goes to show that the prosecution witnesses have not proved the prosecution version as stated in the F.I.R. The scribe of the F.I.R. is not known even to the complainant. Out of the three injured persons, one Bhola who has been examined does not corroborate the prosecution story that he has sustained any injury. The other two injured persons do not come forward to say that they sustained any injury. Even the doctor who examined these two witnesses has not come forward. The prosecution case that two robberies were committed by the accused on the same night has not been proved. Even the complainant does not corroborate the version of the prosecution as stated in the F.I.R. Therefore, I am of the opinion that there is no sufficient evidence to convict the accused under Sections 394/397, I.P.C.
10. In result the appeal is to be allowed.
11. The appeal is allowed. The judgment and order dated 5-9-1994 passed by the IV Addl. Sessions Judge, Faizabad in Sessions Trial No. 450/1989 State v. Kameshwar convicting and sentencing the accused-appellant Kameshwar under Sections 394/397. I.P.C. is hereby set aside. The accused-appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties stand discharged.