JUDGMENT S.K. Phaujdar, J.
1. The present appeal is directed against an order dated 8-9-1979 by the VIIIth Additional Sessions Judge, Meerut, in S.T. No. 107 of 1978. By the said order, the learned Sessions Judge had convicted the two appellants under Section 395, IPC and sentenced each of them to undergo R.I. for 7 years. They were on bail during trial and both the appellants were granted bail after the filing of the present appeal. Both of them, however, failed to appear on 14-11-1994 when the Case was fixed and taken up for hearing and their counsel also did not appear. Accordingly, this court cancelled the bail bond of both the appellants. This Court also directed issuance of warrants of arrest against them. In pursuance to the said warrants of arrest appellant Rampal was apprehended and he has been in custody since then. When the appeal was heard, Salim had not complied with the court's order nor was he apprehended. Accordingly, judgment was reserved with a direction that Salim should in the meantime surrender in compliance with the order of the court cancelling his bail. Salim did surrender on 9-2-1995 before the CJM, Meerut, and was taken into custody and an information thereof through an affidavit was given by his brother-in-law on 13-2-1995.
2. The case against the appellants and another was started on an FIR lodged at Baraut police station. Meerut, on 10-12-1976, at 10.30 a.m. for an incident that took place in the previous night. It was stated in the FIR that on the night between 9th/10th Dec. 1976, the grand-son of the complainant, Hoshiyar Singh, was sleeping in his shop. It was a moonlit night. There was also a lantern burning in the shop. During midnight, somebody knocked the shutters of the shop on the plea of purchase of bidi. When the shop was opened, 8 to 10 persons entered the shop. One had a gun with him, two were having country-made pistols while the others were variously armed with danda etc. They had torches also with them. By show of gun and pistol and by beating the complainant, the miscreants demanded the keys and they also took away valuables kept in sacks. The miscreants had also sprinkled kerosene oil on the complainant and threatened him to be set on fire. The victims made a hue and cry and different persons of the locality came there with torches and lathis and challenged the dacoits. The miscreants opened fire at the villagers also and left the place. The FIR gives a list of materials stolen and it also alleged that the above named grandson, Rajesh Kumar, and other witnesses had identified, amongst the miscreants three persons of that very village, who were Amichand, Salim alias Gandhi and Rampal. This Amichand died during trial and only Salim and Rampal faced the trial.
3. Hoshiyar Singh was medically examined on 11-12-1976 at 12.45 p.m. He had one bluish red contusion on the thigh and some scaled abrasions. Accused, Rampal, was arrested in village Khera Islampur (the village of occurrence itself) on 12-12-1976 from his house. His house was searched but nothing incriminating was recovered. The house of Salim was also searched and nothing was recovered from there also.
4. The prosecution examined only five witnesses to prove the case. P.W. 1 is Hoshiyar Singh, the complainant, PW 2 is Tikaram, PW 3 is Rajesh Kumar, PW 4 is the Inspector of Police who had conducted the investigation and PW 5 is Sripal, the scribe of the FIR. The defence of the accused, as indicated in their statements under Section 313, Cri.P.C. is that they have been falsely implicated due to village rivalry.
5. The FIR was lodged by one of the victims. It spoke of sprinkling of kerosene oil on his person by the miscreants. There is, however, no indication if his clothes were taken charge of by the Investigating Officer, to verify this assertion. The Investigating Officer, in his cross-examination, rather accepted that when he had gone to the place of occurrence, no clothes soaked with kerosene oil were made over to him. The FIRs spoke of assault on Hoshiar Singh by danda. Such assault, if true, were from enemy hands with a view to extort the keys from him. This man was however, not sent to the doctor on the date of lodging of the FIR itself. He was examined a day later and the injuries were only contusions and abrasions which do not fit in with the gravity of the alleged assault. The maker of the FIR, Hoshiar Singh in his FIR clearly stated that after the dacoits had left, his grandson and others claimed identification of Ami Chand, Saleem and Rampal. The FIR gave details of the weapons held by different miscreants. But although these persons were identified, the FIR does not describe as to who was holding what weapon. The FIR also does not ascribe any specific role to these three persons who were known from before. It would have been natural to describe the specific roles of all these persons in the FIR when they were known persons. The FIR is silent if these persons had tried to conceal their identity in any manner. The FIR was lodged at 10 on the next day, i.e., after a lapse of 10 hours. Even if this delay be not taken into account, there is no , reason why after the incident and after the villagers had assembled, no attempt was made to go to the house of any of the named accused persons in the same village. An immediate visit could have established either their absence suggesting their probable participation in the crime, or would have negatived such theory had they been found present in their houses. A timely raid, in case of their participation in the dacoity, could have helped recovery of stolen articles. It is pertinent to note here that nothing incriminating was recovered from their houses when the Investigating Officer visited on 12-12-1976.
6. PW 1 in his statement in court had asserted that the miscreants sprinkled kerosene oil on his clothes and tried to set fire. This allegation was made in the FIR also but non-production of the oil-soaked clothes goes to a great extent to dispel or, at least to doubt this averment. In his statement; he asserted that he had been seriously injured (Kafee Chot Lagee Thee), and there was bloodshed also. In the next breath, he changed his version to say that there was no blood shed. Whether there was bloodshed or not, the injuries that have come through the report of the doctor, although he had not been examined were all superficial and theory of serious injuries must be ruled out. This PW 1 had stated that the witnesses in the FIR were all his close neighbours. Only one of them was, however, examined in court.
7. PW 2 is Tika Ram. According to the sketch map prepared by the Investigating Officer, the house of Tika Ram is situated on the south-west from the shop looted. Tika Ram had come forward towards north and claimed to have seen the dacoits. The Investigating Officer had also indicated the way the dacoits ran away. This description must have been collected from the witnesses and if this description is to be believed, he would have seen, if at all he saw, only the back side of the fleeing dacoits. Tika Ram in his evidence had claimed that amongst the miscreants, he could identify Amichand, Rampal and Saleem. Rampal and Saleem were identified in court and he stated that they were of his village and identification was possible in the light of torches and in moon-light. Although the description of the Investigation Officer as per the sketch-map indicates that the dacoits had run towards north, this witness claimed that they had fled towards west. This may be interpreted as an attempt to enable him to see the face of dacoits. According to this witness, the dacoits had opened fire once. The Investigation Officer, however, does not say, if any fired cartridge was recovered from near the place of occurrence. He had reached the shop in question only after the departure of dacoits and he did not see the cash-box broken. According to this witness, the Police Officer had come after sun rise and had examined him at about 9 or 10 a.m. If this claim is correct, the examination was held even before lodging the FIR. Learned counsel for defence criticizes this aspect alleging that the FIR was lodged not at the police station but at village itself.
8. P.W. 3, Rajesh Kumar, is another inmate of ill-fated shop. He also made a statement like the one narrated by his grand-father in the FIR and in Court. He also spoke of sprinkling of kerosene oil on the person of his grand-father and this aspect of the case has already been discussed. He claimed to have identified Ami Chand, Rampal and Saleem and he pointed out to Rampal and Saleem in Court also. He is also silent as to ascribing any specific role to either of the two appellants. He claimed that he too was injured from the blows given by the miscreants, but there was no medical examination. According to him, his father had gone to the police station at about 8 in the morning and came back at 10 a.m. while police had come at about 12 noon. The FIR that was lodged, however was one at the instance of Hoshiar Singh and not by Ram Kumar father of Rajesh.
9. The evidence of Inspector (PW 4) indicates that the FIR was lodged in his presence at 10.30 p.m. of 10-12-1976. This FIR was marked Ext. Ka-2. He proceeded to the spot. He made seizures and arrests and had submitted charge-sheet. He admits, like the other PWs that the accused person belong to the village of incident itself. As already indicated, he had arrested Rampal in the village itself on 12-12-1976 from his house. There is no indication when Saleem was arrested or from where. He admitted that no clothes soiled with kerosene oil was ever produced by him. He also admitted that he did not recover any wad, pellet or fired cartridges from near the spot. The last witness examined was PW 5. He was the scribe of the report that Hoshiar Singh had given to the police station. This report has been proved as Ext. Ka-2. This was written in the village itself.
10. While discussing the FIR and the witnesses and other witnesses, infirmities, in the prosecution case have been indicated. There is yet another glaring infirmity which the prosecution had brought on record but had failed to explain. It is regarding the existence of two FIRs. According to the prosecution, a report was written by Sripal (PW 5) in the village itself at the instance of Hoshiar Singh and according to witnesses it was taken to the police station by the son of Hoshiar Singh who left the village at 9 and came back at about 10 in the morning. This approximately tallies with the recording of the FIR at 10.30 a.m. but the FIR on which the investigation was initiated is not this FIR (Ex. Ka-1). According to the Investigation Officer, he took up investigation on Ext. Ka-2, said to have been recorded at the police station. There is a clear difference between these two FIRs at least on the last few lines. In Ext. Ka-2, we find a question to Hoshiar Singh, and answer thereto which is not there in Ext. Ka-1 and crowning all, this FIR on which the investigation was taken up is not at all signed by the person making it. The evidence discloses that Hoshiar Singh had not gone to the police station, as Hoshiar Singh himself stated that his son Ram Kumar had gone to the police station. Ext. Ka-2 does not bear the signature of Hoshiar Singh or Ram Kumar.
11. The learned counsel took me through certain decisions touching the points involved in the case. Reference was made to the case of Vijay Singh as reported as a summary of cases in 1984 All Cri C 29. It was a case where all the accused persons were known to the victims and they had not taken prosecutions to conceal their faces. The Allahabad High Court observed that participation of known persons in the incident was highly doubtful, as it was most unusual that they would not try to conceal their identity while commiting dacoity.
12. Reliance was also placed on a decision of the Supreme Court in the case of Ram Sankar, . It was a case of dacoity and three of the dacoits belonged to the complainant's village, while three others belonged to an adjoining village and all were well-known to the complainant's party. The High Court disbelieved the evidence against co-villagers on the ground that if at all they would come to commit dacoity in the village, they would take ample precaution to cover their faces. The Supreme Court was of the view that this argument was available even to the persons belonging to an adjoining village. The third case-law cited before me is also a decision of the Allahabad High Court, as reported in Allahabad Criminal Cases (Summary of Cases) 1980 (74) wherein, the appellant belonged to a neighbouring village at a distance of one furlong and that itself was thought to be a good ground to make his participation in the dacoity inprobable. Moreover, soon after the incident, none of the witnesses had disclosed that the appellant was armed with a gun. The appellant was given the benefit of doubt and was acquitted. In this case, reliance was also placed on the decision of the Supreme Court (Supra).
13. In the case at our hand there is the infirmity regarding two FIRs, there is the legal lacuna of absence of signature of the complainant, on the FIR that was acted upon. The two appellants were co-villagers of the complainant and there was nothing on record to indicate that they had tried to conceal their faces, although they were known. The FIR and even the statements in Court do not ascribe any specific role to them. The villagers did not try to move to their houses to see if they were there immediately after the incident. The appellants were arrested from the village, but nothing incriminating was recovered. The allegations of serious injuries has been contradicted by the medical report. The allegation of sprinkling of kerosene oil has not been substantiated at all. Keeping in view all these aspects it would be unwise to convict the two appellants on the mere evidence of alleged identification alone. Rather, the appellants must be given the benefit of doubt.
14. The appeal accordingly stands allowed. The order of conviction and sentence recorded against the two appellants in S.T. No. 107 of 1978 is set aside. Both of them are in jail. They must be set at liberty forthwith, if not required in any other case.