JUDGMENT Mukteshwar Prasad, J.
1. Accused Ram Root son of Balwant has filed this appeal under Section 374 Cr.P.C. against the judgment and order-dated 30.6.1981 passed by the then Additional Sessions Judge, Budaun in ST. No. 423 A of 1978 whereby he was found guilty for the offence punishable under Section 395 I.P.C. and was sentenced to undergo rigorous imprisonment for a period of seven years.
2. Briefly stated, the facts of the case leading to the prosecution of the appellant were as under: -
PW 1 Chandrapal son of Jhanjhan Teli is a resident of village Adhauli, Police Station Ujhani in District Budaun. He lived in his house along with his wife Smt. Somwati and his parents Jhanjhan and Smt. Ladaiti.
3. In the night intervening 7/8 August 1978, the informant and other members of his family were all sleeping in the house. Chandrapal and his wife Smt. Somwati were sleeping in the Kotha and their parents were sleeping in Dehlej. An earthen lamp (Dibiya) was burning in the courtyard. At about mid night, 8-10 dacoits, out of which, three were having guns and remaining armed with lathies trespassed into the house of Chandrapal and caught hold of the couple. Two dacoits who were armed with guns reached the roof of the house and opened fire with a view to terrorise the villagers. The dacoits assaulted complainant and his wife with lathies and made enquiries regarding valuables. During dacoity, the dacoits were flashing their torches and searching goods. On alarm raised by Chandrapal, his parents went out of the house and raised hue and cry in the village, which attracted a number of villagers including Sohan Lal, Siya Ram, Khem Karan, Kedar and Mukhan. The witnesses arrived there, flashing their torches and having lantern also. When villagers challenged the dacoits, they opened fire. Tika Ram, a co-villager of the complainant also opened fire with his gun. When the villagers assembled in large number and challenged the dacoits, they ran away with the looted articles, which consisted of a wooden attache, silver and golden ornaments, clothes etc. The dacoits were seen and identified by Chandrapal, members of the family and villagers in the light of torches, lanterns, earthen lamp and electricity and they identified their co-villagers Triveni, Ram Lal and Naubat also who lived in complainant's village (Sasural) for the last several years.
4. A written report was handed over at Police Station Ujhani next morning i.e. on 8.8.1978 at 7.15 a.m. A case under Sections 395/397 I.P.C. at crime No. 271 was registered and three dacoits Triveni, Naubat and Ram Lal were named in the report.
5. Chandrapal and his wife Smt. Somwati were sent to P.H.C. Ujhani for medical examination of their injuries where Dr. S.K.P. Singh, the then Medical Officer examined injuries of Smt. Somwati at 8 a.m. on 8.8.1978. He further examined injuries of Chandrapal on the same day at 8.15 a.m.
6. The case was investigated by S.H.O. Ved Pal Singh. He interrogated Chandrapal, his mother Smt. Ladaiti, Makhan Lal and other witnesses. After inspection of the house, he prepared site plan and collected 15 empty cartridges from the house in question and prepared Fard. He prepared a Fard recovery regarding lantern and earthen lamp. He saw torch of Babu, which was found to be in working order and prepared a Fard.
7. On 9.8.1978, the Investigating Officer arrested accused Ram Poot Teli and on his personal search, one old kurta, one Dhoti (male) and Golden Pattar wrapped in a paper kept in a bag were also recovered. Besides, Ram Poot was also carrying a Tamancha and four live cartridges. A Fard recovery was prepared on the spot and he was made 'Baparda' and his face was covered with an Angoncha. Ram Pyare who was also arrested along with Ram Poot were sent to Police Station through two constables. After identification of the accused in District Jail on 22.9.1978, he was charge sheeted along with four others.
8. Accused Ram Foot along with four others was charged under Section 395 read with Section 397 I.P.C. on 19.1.1980 to which he pleaded not guilty and claimed to be tried.
9. In order to establish complicity of Ram Root also in the dacoity in question, the prosecution examined PW 1 Chandrapal, complainant, PW 2 Smt. Ladaiti, complainant's mother, PW 3 Makhan Lal, father-in-law of Chandrapal, PW 4 S.I. Pradeep Kankan, who arrested co-accused Kesari on 8.9.1978. PW 5 S.I. Khem Singh, who prepared Chik Report and proved entry in the G.D. and sent the husband and wife to P.H.C. for medical examination, PW 6 Constable Dragpal Singh, who was accompanying the Investigating Officer at the time of arrest of the appellant and recovery of looted articles, PW 7 Constable Ujagar Singh, who took co-accused Kesari and another accused to District Court on 8.9.1978 and from the District Court to District Jail on the same day. PW 8 Constable Tej Ram who took Ram Poot in Baparda condition to District Court on 9.8.1978 and on the same day, he got him admitted in the District Jail. PW 9 Sri A.M. Sinha was Executive Magistrate who conducted identification proceedings of the accused on 22.9.1978 in District Jail, Budaun. PW 10 Dr. S.K.P. Singh, Medical Officer examined injuries of Smt. Somwati and Chandrapal on 8.8.1978. PW 11 Ved Pal Singh, Investigating Officer of the case and PW 12 Afsar Khan Constable Clerk who admitted Ram Poot and Ram Pyare in lock up of the Police Station on 9.8.1978 and deposited the seized articles in Malkhana.
10. Ram Poot totally denied his complicity in the alleged dacoity. He pleaded that his real sister Smt. Chandrawati is married to Ram Charan son of Tota Ram Teli of village Adhauli. He used to visit the village in question and witnesses knew and identified him. He was arrested by the police in the noon at Ujhani and brought to Police Station where he was assaulted and shown to the witnesses also and some photographs were also taken.
11. The accused examined his brother-in-law Ram Charan in his defence.
12. After scrutiny of the entire evidence on record led by the parties and considering the submissions of the parties' learned counsel, learned Judge found the accused guilty for committing an offence under Section 395 I.P.C. and as such, he was convicted and sentenced, as noted above.
13. I have heard learned counsel for the appellant at length, learned A.G.A. and perused the record carefully. Learned counsel for the appellant has urged with vehemence that the prosecution examined Chandrapal, his mother Smt. Ladaiti and his father-in-law Makhan Lal, who all claimed to have identified the appellant in the test identification parade and no independent witness of the village came forward to prove the participation of the appellant in the dacoity in question. According to the prosecution, the appellant was arrested by the police on the next day of dacoity i.e. 9.8.1978 and identification parade was held in the District Jail on 22.9.1978 i.e. after 44 days from the date of arrest. It was also contended that appellant's sister is married with Ram Charan son of Tota Ram Teli in the informant's village and he used to visit his sister's Sasural for the last several years and complainant, members of his family and other villagers knew him by name and face. The court below committed error in appraisal of the evidence led by the prosecution and further erred in rejecting the testimony of Ram Charan. One Babu who was allegedly having torch at the time of dacoity was not examined and there was no sufficient light inside the house in which complainant or his mother could have identified the appellant. Therefore, in view of a number of infirmities in the prosecution case, the appellant is entitled to be acquitted.
14. Learned counsel for the appellant has placed reliance on the following two decisions: -
1. Raghubar Singh v. State of U.P. 2004(1) ACR 128
2. Nirmal Pasi and Anr. v. State of Bihar 2002(2) JIC 630(SC)
15. On the other hand, learned counsel for State has supported the judgment of the trial court and urged that court below rightly found the appellant guilty and appeal is liable to be dismissed.
16. I have considered the arguments advanced on behalf of the parties. As "mentioned above, the prosecution placed reliance on the testimony of three witnesses to prove the complicity of appellant in the dacoity in question. They are P.W. 1 Chandrapal, P.W. 2 Smt. Ladaiti, and P.W. 3 Makhan Lal. Admittedly, the appellant was not named in the report and three dacoits Triveni, Naubat and Ram Lal were named therein on the ground that they committed dacoity in their own village.
17. The prosecution evidence may be divided in two parts. In the first part, prosecution relied on the evidence of identifying witnesses and they are Chandrapal, Smt. Ladaiti and Makhan Lal. In the second part, the prosecution relied on the testimony of P.W. 11 Vedpal Singh, Investigating Officer and P.W. 6 Constable Dragpal Singh, who are said to have recovered Dhoti, Kurta and a golden Pattar concealed in a bag.
18. A perusal of the written report lodged by Chandrapal goes to show that he did not lodge a correct report and prosecution has not come with clean hands. The incident of dacoity took place in the mid night. Therefore, the question of light is very important. In the written report, the complainant alleged that an earthen lamp was burning in the courtyard. The villagers arrived there along with lanterns and were flashing torches. Besides, there was electric light also. Admittedly, there was no electric light in the house of Chandrapal. The Investigating Officer has not shown electric connection in the site plan. It means there was no electricity supply in the village. I further find from judgment under appeal that no lantern was burning inside the house of the complainant and villagers did not have any lantern at the time of dacoity. It means there was only one source of light inside the house and that was earthen lamp. P.W. 1 Chandrapal was assaulted mercilessly by dacoits and they gave him several lathi blows causing seven contusions and one lacerated wound. It means he had an opportunity to see faces of dacoits. He, however, nowhere claimed that he saw and identified the appellant at the time when he was assaulting him with lathies. Chandrapal admitted in his cross-examination that during dacoity he remained inside his house and did not come out of the house. Two dacoits caught hold of him but he pleaded his ignorance about their names. Chandrapal stated in very clear words that dacoits had not muffled their faces including those who belonged to his village. According to him, about 16-17 shots were fired at by dacoits in the course of dacoity. In this view of the matter, the statement of Chandrapal does not inspire confidence that he identified the appellant in the light of Dibari and thereafter, identified him at the T.I. parade.
19. So far as testimony of Smt. Ladaiti is concerned, Chandrapal mentioned in his report itself that on alarm raised by him and his wife, his parents ran away from the house and raised alarm. It means Smt. Ladaiti got no opportunity to see and mark features of dacoits on the fateful night. She was an old lady aged about 50 years. She was having no torch. How could she see faces of dacoits in the darkness of night. The dacoits were armed with guns and were firing continuously. Therefore, it does not inspire confidence that an old lady remained outside her house just to see faces of dacoits. She too gave out that dacoits had not covered their faces. She must have taken shelter somewhere with a view to save her life.
20. P.W. 3 Makhan Lal, who is father-in-law of Chandrapal and Babu were sleeping in the Gher of Naththu, brother of Chandrapal. He along with Babu came out of Gher. Babu flashed his torch and they saw dacoits in the light of torch. When he came out of Gher, the dacoits were running out of the house flashing their torches. It is noteworthy that Babu was not produced in the witness box for the reasons best known to the prosecution. Moreover, Makhan Lal, an old man aged about 75 years, had no torch and as such, it does not stand to reason that he marked features of dacoits in the night in question where there was complete darkness and the dacoits were running away after committing dacoity.
21. It may be mentioned that testimony of Makhan Lal was not relied upon by the trial Judge also.
22. The appellant was arrested on 9.8.1978 by Inspector Vedpal and was made Baparda on the spot. He was sent to Police Station in Baparda condition through P.W. 6 Dragpal Singh. According to Vedpal Singh and Dragpal Singh, one male Dhoti, one old Kurta, one Golden Pattar and one Gamcha allegedly looted in the dacoity at the house of Chandrapal were recovered from the possession of the appellant and a seizure memo was prepared. These articles allegedly recovered from the possession of the appellant were never put up for test identification and court below placed reliance on the statements of two police personnel mainly on the ground that these articles also find place in the list of looted articles given by the complainant. The identification of the articles by the complainant in the court was sufficient in the opinion of the trial Judge. I do not agree with this conclusion of the trial Judge. It may be noted here that Dhoti, Kurta and Gamcha are used daily by the villagers and may be found in their houses.
23. I further find that test identification was held in the District Jail, Budaun on 22.9.1978 i.e. after 44 days from the date of arrest. There is no explanation for this delay in holding the identification.
24. On the other hand, the appellant examined his brother-in-law Ram Charan as defence witness. He gave out in clear words that the appellant's sister Premwati, was married to him more than 20 years ago, and the appellant used to visit his residence and villagers knew and identified him. Since appellant disclosed the name of his sister as Chandrawati and his brother-in-law claimed his wife's name as Premwati and on the basis of this contradiction, the trial Judge rejected the defence version. I am not in agreement with the finding of the trial Judge on this point. It is noteworthy that both appellant and Ram Charan (D.W. 1) are illiterate and rustic villagers and as such, some discrepancies took place.
25. I further find that Investigating Officer has shown Chaupal of Tota Ram towards north-west of house of Chandrapal.
26. After close scanning of the evidence on record led by the parties, it is crystal clear that there was only one source of light inside the house of the complainant (earthen lamp) and light was not sufficient. In my opinion, Chandrapal got no opportunity to see facial features of appellant in his Angan and he placed his hands in the parade on the ground that he had seen the appellant in his own village. The testimony of P.W. 3 Makhan Lal on the ground of his old age and no opportunity to see the face of dacoits was rightly rejected by the court below.
27. P.W. 2 Smt. Ladaiti had no source of light at her disposal to see the faces of dacoits.
28. It does not stand to reason that all the dacoits including those belonging to the same village had taken no precaution to conceal their identify and committed dacoity in their own village without covering their faces. The prosecution did not hold any identification of articles allegedly recovered from the possession of the appellant and court below committed error in holding that articles were looted by the appellant in the course of dacoity.
29. No electric light was available to the complainant or his villagers who had assembled there at the time of dacoity to see faces of dacoits.
30. From the aforesaid discussion and scrutiny, it is clear that there was no sufficient source of light in which the dacoits could be identified and as such, I am unable to place reliance on the testimony of Chandrapal and his mother Smt. Ladaiti. I also hold that sister of appellant is married in the complainant's village and he and his mother deliberately concealed these facts in their testimony. Consequently, I hold that the conviction and sentence imposed on the appellant are not sustainable and are liable to be set aside.
31. The appeal succeeds and conviction of appellant under Section 395 I.P.C. and sentence imposed on him thereunder are set aside. He is acquitted. He is on bail. His bail bonds are cancelled and he need not surrender.