JUDGMENT M.C. Jain, J.
1. All these four appeals have arisen from the judgement dated 30.1.1982 passed by the Special Judge, Budaun in S.T. No. 154 of 1979 connected with S.T. No. 439 of 1981. We propose to decide them by this common order. The accused-appellant in Criminal Appeal No. 337 of 1982 is Shiv Dan. In Criminal Appeal No. 356 of 1982 Dharmi is the accused-appellant. Trimal, Mahabir, Rameshwar and Natthu are appellants in Criminal Appeal No. 3.62 of 1982 and Mehdi Hasan has filed the last Criminal Appeal No. 389 of 1982. All of them have been convicted under Section 396 I.P.C and each of them has been sentenced to undergo life imprisonment,
2. We have heard Sri P.N. Misra. learned senior advocate for the appellants in Criminal Appeal No. 337 of 1982, Criminal Appeal No. 356 of 1982 and Criminal Appeal No. 362 of 1982. Sri Apul Misra was appointed amicus curiae for the accused-appellant Mehdi Hasan in Criminal Appeal No. 389 of 1982 by an order of this Court and he has also been heard. From the side of the State Sri R.K. Singh, learned A.G.A. has been heard.
3. An armed dacoity was committed in between the night of 8/9.7.1978 at the house of Bundi PW 1 in Village Arthal, Police Station Rajpura, District Budaun in which his nephew Kali Charan was murdered and Ram Prasad received injuries at the hands of the desperadoes who were 12 or 13 in number. The F.I.R. was lodged by Bundi PW 1 at the concerned Police Station on 9.7.1978 at 7.15 A.M., naming Shiv Dan as accused therein.
4. The facts were that in the eventful night, he was sleeping in his courtyard along with his wife. A glowing lantern was hanging there. At about midnight his wife awoke for feeding milk to her infant child. While she was feeding milk, she heard some noise from the top of her house. She awoke him, becoming suspicious. On a close and alert watch, he noticed 12-13 desperadoes. Scaling the wall, all of them reached the courtyard. Three of them stood at the gate of his house and rest of them demanded key from his wife. When she refused, one of them slapped her and started assaulting her. Then his wife handed over the key to them. The desperadoes started looting the ornaments and valuables kept inside the house. He somehow escaped through the door and raised alarm attracting villagers. Sita Ram, Harpal, Ganeshi, Ram Prasad and others with inches in their hands came and challenged the dacoits. Two of them who were standing at the roof of the house opened fire. The village Pradhan Ram Singh returned the fire from his licensed gun. Under the force and, measure of the villagers, the dacoits after collecting movables of the house started going through the lane towards cast. Ram Prasad-nephew of Bundi who was having torch in his hand challenged the dacoits. One of the dacoits opened fire. He, sustaining injury, concealed himself by the southern side. On the onward march of the dacoits, Kali Charan-second nephew of Bundi who was quite young chased and challenged them. One of them opened fire on him and he died at the spot instantly. The dacoits decamped with the movables and other valuables. Details of the property plundered by them were given in the F.I.R. It was also stated that only three of the dacoits were armed with guns and they were standing in front of the courtyard at the gate of the house. One of them was Shiv Dan who was well recognized by him, his wife and his nephew Ram Prasad. Other dacoits were very well seen who could be identified on coming face to face. On the lodging of the F.I.R., a case was registered and investigated by the Investigating Officer Man Singh Sirohi PW 6.
5. Skipping unnecessary details, it should be pointed out that Kali Charan aged about 20 years had received and died of gunshot injuries. One of such injuries had been sustained in the chest and the other in the right arm. The other injured Ram Prasad had also received gunshot injuries. He was subjected to medical examination on 9.7.1978 at 5.10 P.M. whereas post mortem over the dead body of the deceased Kali Charan was conducted on 10.7.1978 at 4.15 P.M.
6. It appears that Mehdi Hasan accused-appellant in Criminal Appeal No. 389 of 1982 resident of the same village also figured during investigation in the statement of the witnesses under Section 161 Cr.P.C. It would he recalled that Shiv Dan resident of the same village was named as one of the culprits in the F.I.R. itself. Others also figured during investigation and were subjected to identification whereafter they were booked for trial.
7. The material witnesses who had participated in the identification proceedings, too, were Bundi PW 1, Situ Ram PW 2, Ganeshi PW 3, Het Ram PW 4 and Ram Prasad PW 5. Out of them, Ram Prasad was injured also of the incident.
8. The argument from the side of the accused-appellants is that they had been implicated falsely simply on the basis of suspicion. The evidence adduced by the prosecution, it is urged, was wholly insufficient to return the verdict of guilty against the accused-appellants from whom, admittedly, no part of looted property bad been recovered. On the other hand, the learned A.G.A. supported the conviction of the accused-appellants. According to him, Shiv Dan was named in the F.I.R. itself. Mehdi Hasan came to be named by some of the witnesses in their statements under Section 161 Cr.P.C. and against both of them, evidence came to be adduced before the court regarding their participation in this dacoity. As regards others, namely, Dharmi, Mahabir, Trimal, Rameshwar and Natthu, there was convincing evidence of identifying witnesses. All of these five, it has been submitted, were subjected to identification proceedings earlier to their trial before the court I Needless to say, sufficient light and opportunity to witnesses to identify the culprits are two important factors in a case of dacoity like the present one committed during night hours.
9. The factum of dacoity having taking place at the house of Bundi PW 1 as alleged by the prosecution is not disputed. This fact is also not under challenge that Kali Charan died in this incident of dacoity because of gunshot injuries received by him and that another person, namely, Ram Prasad PW 5 sustained gunshot injuries in the same incident.
10. We have gone through the record carefully and find substantial force in the submissions made in support of all these appeals. We would do well to relate the same in succeeding discussion.
11. We first take up the case of the accused-appellants Shiv Dan and Mehdi Hasan.
Shiv Dan and Mehdi Hasan-accused-appellants :
12. Both these accused-appellants were residents of the same village Arthal where the dacoity took place. Out of them, Shiv Dan was named as one of the culprits in the F.I.R.-Ext. Ka-1 lodged by Bundi PW 1 at the Police Station the following day-9.7.1978 at 7.15 A.M. Sita Ram PW 2, who claimed to have reached the spot with flashing torch and lathi on shouts, stated that he had recognized Shiv Dan and Mehdi Hasan amongst the dacoits at the spot. To the same effect was the statement of Ganeshi PW 3. Sita Ram PW 2 and Ganeshi PW 3 also stated that after bolting away of the dacoits, Bundi PW 1 and all the other witnesses had collected. They had disclosed it to Bundi that they had recognized Mehandi also amongst the dacoits. It sounds to be very natural also that after running away of the dacoits, the villagers, particularly the alleged witnesses reaching the spot during the commission of dacoity, would have talked about as to who amongst the dacoils had been recognized. It has also to be kept in mind that the dacoity was committed at about midnight and the report was lodged the following morning at 7.15 A.M. To say in other words, it was not like that Bundi had rushed to lodge the F.I.R. immediately after the commission of dacoity without any talks and conversation with the witnesses around. Obviously, it went unexplained as to why Mehdi Hasan was not named in the F.I.R. as one of the culprits.
13. Another factor to be taken note of is that there was nothing to indicate that Shiv Dan and Mehdi Hasan residents of the same village were of hazardous character, so much so that they could commit dacoity in the same village without taking precaution to conecal their identity. Rather, we note from the testimony of Bundi PW 1 that Shiv Dan was his immediate neighbour and the cattle-shed of Shiv Dan was adjacent in the west of his house. The distance between the houses of the two was only 20 paces. He admitted that in the days of incident, his 2000-3000 bricks were lying nearby his house for the last about 5-6 months as he wanted to raise a wall. It also came to be admitted by him that that wall was constructed between (sic) after this incident. A suggestion was made to him that Shiv Dan was not letting him construct that wall and the two used to trade abuses on that score. Of course, he denied it but the suggestion could not be brushed aside to be without force. There could hardly be any reason for 2000-3000 bricks lying for the last 5 or 6 months, though they had been collected for the purpose of raising a wall by Bundi. The possibility was very much there that there was some bad blood between Bundi and Shiv Dan which inspired the former to implicate the latter in this case, making capital of the incident. Moreover, if it is presumed for the sake of argument (though it is not believable) that some witnesses had recognized Shiv Dan and Mehdi Hasan amongst the dacoits at the spot, then they would have spoken about their specific role which they did not do. Only generalized evidence was given about their alleged participation in the commission of the dacoity. It was also doubtful that there was sufficient light for these witnesses to have recognized Shiv Dan and Mehdi. The statement of Bundi PW 1 was that when the dacoits proceeded ahead to assault his wife demanding key, getting an opportunity he ran outside with torch and started raising shouts attracting other witnesses. It was there in his cross-examination that on flashing of torches by him and other witnesses towards dacoits. they resorted to firing and he and other witnesses concealed themselves by the side of walls. The statement of Ganeshi PW 3. was also to the effect that when he and witnesses flashed their torches, dacoits fired and he and other witnesses concealed by the side of walls to avoid hurt. This being the state of affairs, we do not think that sufficient light and opportunity was available to the witnesses to recognize Shiv Dan and Mehdi Hasan. The statement of Bundi PW 1 was that the Investigating Officer had arrested Shiv Dan from his house on the day of lodging of the F.I.R. itself and Mehdi Hasan the following day. No recovery of any looted property was made from any of them. On the fluid state of evidence replete of inherent weaknesses adduced at the trial against the accused-appellants Shiv Dan and Mehdi, they could not be convicted. Their conviction is liable to be set aside.
Accused-Dharmi, Trimal Mahabir, Rameshwar and Natthu:
14. The conviction of these five accused-appellants is based on identification. Out of them, Rameshwar, Trimal, Mahabir and Natthu belonged to village Bhaiyapur whereas Dharmi belonged to village Bhirauti. The identification proceedings in respect of Dharmi, Trimal and Mahabir earlier to their trial were held on 13.9.1978. Identification proceedings in respect of remaining two i.e. Rameshwar and Natthu were held as late as on 15.1.1979. The identifying witnesses are Bundi PW 1, Sita Ram PW 2, Ganeshi PW 3, Het Ram PW 4 and Ram Prasad PW 5.
15. On careful consideration, we find that evidence against them is too dicey to warrant their conviction. Several factors are lined up in support of our view. It has come in evidence that Arthal where the incident of dacoity took place and the villages Bhaiyapur and Bhirauti to which these accused-appellants belonged had conterminous boundaries. Accused Dharmi was correctly identified by four witnesses, namely, Sita Ram PW 2, Ganeshi PW 3, Het Ram PW 4 and Ram Prasad PW 5. Trimal was correctly identified by Bundi PW 1, Sita Ram PW 2, Ganeshi PW 3, Het Ram PW 4 and Ram Prasad PW 5. Mahabir accused was correctly identified by Bundi PW 1, Sita Ram PW 2, Het Ram PW 4 and Ram Prasad PW 5. Rameshwar was correctly identified by Bundi PW 1, Sita Ram PW 2 and Het Ram PW 4. Natthu was correctly identified by Bundi PW 1, Sita Ram PW 2 and Ram Prasad PW 5. The performance of identifying witnesses named above was 100% excepting that of Ram Prasad PW 5 which was 75%. It was too good to be believed. No doubt, Ram Prasad PW 5 was one of the injured of the incident but it only showed his presence. It was not a guarantee that he had actually seen the culprits whom be identified. The fact is there that no recovery was made from any of them. As we discussed earlier while dealing with the case of Shiv Dan and Mehdi Hasan, it was doubtful that sufficient light and opportunity were available to the witnesses to have very well seen the faces of the dacoits who were resorting to firing on the flashing of torches and to avoid hurt, they (witnesses) had concealed themselves by the side of the wails. The witnesses were also not uniform whether some of the dacoits had muffled up their faces to conceal their identity. It was doubtful that the above accused-residents of adjoining villages would have gone to commit dacoity in the neighbouring village without taking precaution to conceal their identity. No grappling took place between them and the witnesses. It has come in the own testimony of Bundi PW 1 that there was no other village between Arthal and Bhaiyapur. He also admitted that he had a well in one of his fields in Arthal and Bhirauti was only 1/2 kos from that well. Bhaiyapur village was also 5 or 6 fields away from his this well. It was there in the testimony of Sita Ram PW 2 that he : used to study in Junior High School, Bhirauti and the accused Dharmi was his school fellow. It becomes clear that he knew him from before. Sita Ram PW 2 also stated that none of the dacoits had muffled up his face. He ate his own words in very next breath that two or four dacoits had muffled up their faces. His these two statements could not be reconciled. There being 13 or 14 dacoits, it was a planned venture. If some of the participants had taken precaution to conceal their identity by muffling up their faces, it could not be comprehended that others would not have taken such precaution, particularly when all of them belonged to neighbouring villages and there could be possibility of their being recognized during the commission of dacoity by the inmates of the house targeted for dacoity and other witnesses collecting at the scene during their operation. The statement of Ganeshi PW 3 was that none of the dacoits had muffled up his face. Another important revelation came to be made in his cross-examination that about 4-5 years earlier to the incident, he had quarrelled with one Ram Nath-brother of present accused Mahabir and that Bundi and Sita Ram had sided him in that quarrel, whereas Mahabir accused had come from the side of Ram Nath. It indicated that he knew Mahabir from before. It came down from Het Ram PW 4 that he used to take contract in village Bhirauti earlier to the incident. He also admitted that he had seen Dharmi there. He used to be assisted by villagers of his village including Sita Ram, Ganeshi and Ram Prasad in recovering dues. He had even recovered dues from Dharmi, meaning thereby that he knew Dharmi from before. Ram Prasad PW 5 also admitted that Dharmi was resident of Village Bhaiyapur. He could not deny that he had seen him earlier to the incident.
16. We veer around the conclusion that the testimonial assertions of the identifying witnesses could not prove the accused-appellants to be the participants of this dacoity. There were apparent weaknesses knocking the prosecution case at its bottom. The evidence was not at all sufficient to nail them for the crime. They belonged to neighbouring villages and it was highly improbable that they would have committed this dacoity without taking precaution to conceal their identity. Possibility was very much there that the prosecution witnesses knew them from before. It may be stated at the risk of repetition that no recovery of any looted property was made from any of them. The possibility was very much there that they were implicated on mere vague impression or suspicion. The local police also lent a helping hand so as to take credit of working out this case of dacoity in which one person had lost his life and another sustained firearm injury. No doubt, this dacoity with murder did take place. But, the-evidence was not at all convincing to establish the participation of the accused-appellants therein. The trial judge convicted them on superfluous approach without in-depth analysis of the relevant factors. The court of law, it goes without saying, is to be guided by the legal evidence adduced, and not by any other extraneous consideration.
17. In the light of foregoing discussion, we allow all the appeals i.e. Criminal Appeal No. 337 of 1982, Criminal Appeal No. 356 of 1982, Appeal No. 362 of 1982 and Criminal Appeal No. 389 of 1982. We set aside the conviction and sentences recorded against the appellants, namely, Shiv Dan, Dharmi, Trimal, Mahabir, Rameshwar, Natthu and Mehdi Hasan. They are already on bail.
18. Sri Apul Misra, learned amicus curiae who argued for the accused-appellant Mehdi Hasan in Criminal Appeal No. 389 of 1982, shall get Rs. 1,000/- as his fee.
19. Certify the judgement to the lower court.