Allahabad High Court
Lal Man And Anr. vs State Of U.P. on 2 December, 1999
Equivalent citations: 2000CRILJ3336
Author: M.C. Jain
Bench: M.C. Jain
JUDGMENT M.C. Jain, J.
1. Two appellants, namely, Lal man and Tej Singh have preferred this appeal against the judgment and order dated 15-3-1980 passed by Sri Sachidanand, the then Sessions Judge, Farrukhabad in Sessions Trial No. 334 of 1979. He convicted both the appellants under Sections 394/397 I.P.C. and sentenced each of them to undergo rigorous imprisonment for eight years. Appellant Lalman was further convicted under Section 302 I.P.C. and sentenced to undergo life imprisonment.
2. Lalman died during the pendency of the appeal and the same abated against him by order dated 20-7-1998. Therefore, presently we are concerned only with the other appellant Tej Singh. He happened to be the brother-in...aw of the deceased appellant Lalman being the husband of his sister.
3. Shortly put, the case of prosecution was that at about mid night in between 6/ 7-10-1979 in village Sithauli, Police Station Mohammadabad, District Farrukhabad, the present appellant, deceased appellant Lalman and two others raided the house of Ram Charan and committed robbery. Both of them, who were carrying guns, had remained on guard outside Ram Charan's house while their two other companions had gone inside and looted the property from the house of Ram Charan. An alarm had been raised by the women folk and childern of his family where upon he and his brother Dashrath woke up. They were sleeping in their Gonda at a short distance of their house. They came running, flashing torches and saw the present appellant and the deceased appellant Lalman standing guard with guns. Ram Charan and his brother also raised alarm whereupon their neighbour Ziledar alias Ramesh Chandra living in the house across the lane emerged into the lane.The deceased appellant Lalman shot with his gun on Ziledar alias Rarnesh Chandra from point blank range. He fell down dead. The other villagers too joined him in raising alarm. Thereafter the appellants and their two companions who then emerged from Ram Charan's house and only armed with dandas and articles looted from the house, ran away to the south. Ram Charan went inside the house and found that his valu-ables such as clothes and ornaments worth at Rs. 1000/- had been looted away. He got a report of incident written and took the same to the Police Station where he lodged it at 3.15 A.M. the same night. A case was registered. The investigation followed as usual. The corpse of Ziledar alias Ramesh Chandra was subjected to post-mortem which was conducted on 8-10-1977 at 2 P.M. by Dr. K.K. Agarwal PW2. He had died on gunshot injury. On conclusion of investigation, the two appellants were booked for trial.
4. The defence was of denial and false implication.
5. At the trial, the prosecution examined five witnesses, out of whom Ram Charan PW1 and Sukhbasi Lal PW3 were the witnesses of fact. One Angad had been examined in defence too. Believing the prosecution evidence, the learned Sessions Judge convicted the two appellants as mentioned in the earlier part of the judgment.
6. We have heard Sri Vinay Saran, learned counsel for the appellant Tej Singh in support of the appeal and learned A.G.A. from the side of State in opposition of the same. We have also waded through the evidence on record carefully. On bestowing our thoughtful consideration to the arguments made at the bar in support and in opposition of the appeal, we form the opinion that the finding of conviction recorded by the learned Sessions Judge against appellant Tej Singh is not at all sustainable and the appeal deserves to succeed for the following solid reasons.
7. It may first be pointed out that appellant Tej Singh belonged to another village under different Police Station than the one in which the incident took place. His SASURAL was in village Sithauli, Police Station Mohammadabad where the incident occurred. On the face of it, it sounds to be improbable that he would join his wife's brother in the latter's village to commit a robbery in that very village. It is further significant to note that Ram Charan PW1 informant as well as Sukhbasi Lal PW3 stated that they knew appellant Tej Singh from before as he used to come to his SASURAL in village Sithauli where the incident occurred. The prosecution evidence is that he as well as Lalman (deceased) had not muffled up their faces. In other words, they participated in this incident with open faces. But it is not shown that the appellant Tej Singh, or for that matter, the deceased appellant was of hazardous character with criminal background and could have dared to participate in this daring incident with open faces without taking any precaution to cancel their identity. It assumes greater importance in the wake of the fact that it is not the prosecution case that they had some deep rooted enmity with the complainant Ram Charan which could have inspired them to participate in this crime in a revengeful mood with open faces.
8. Secondly, we note that no specific role has been assigned to the present appellant Tej Singh. It is said that he simply kept standing on ground with a gun outside Ram Charan's house. He did not perform any overt act. He did not enter the house of Ram Charan to commit robbery along with two others who had allegedly gone inside for the purpose. It sounds to be unnatural that he would have participated in this crime by his mere physical presence. The natural human conduct suggests that he would have done some overt act in the commission of the crime if he was one of the culprits. There could hardly be any point of his mere physical presence with a gun but without doing anything more.
9. Thirdly, the source of light at the spot is also doubtful. Ram Charan PW1 admitted that the light from the dibbi glowing at the northern end in the verandah in front of the house did not reach the place where ziledar had been shot dead. However, he as well as Sukhbasi Lal PW3 insisted that they had torches, which they had flashed and in the light of which they had recognised the present appellant (and deceased appellant Lalman). Ram Charan PW1 also blurted out that it was a dark night. He admitted in cross-examination that he had seen the present appellant and the deceased appellant Lalman from a distance of 8-10 paces and further that Ziledar had been shot at from a distance of 8 paces. But it comes out from the post mortem report of Ziledar and testimony of Dr. K. K. Agarwal PW2, who conducted autopsy on the dead body, that it was a contact shot. It, thus, appears that Ram Charan PW1 did not actually see the incident and what he has stated as regards the participation of the present appellant Tej Singh and deceased appellant Lalman is simply based on his imagination. It is not acceptable that in a moment of stress and sudden crises, he would have identified the accused present appellant and deceased appellant Lalman from a distance of 8-10 paces in the feeble light of torch. If the miscreants could shoot dead the neighbour Ziledar, who had simply rushed up on hearing shouts, then it does not fit in the scheme of things that he would have been spared without any harm despite the fact that the present appellant and deceased appellant Lalman had guns and when his house was the object of robbery. What we intend to indicate is that they would not have spared him unharmed if he was flashing torch towards them at a distance of 8-10 paces.
10. Lastly, the testimony of another eye witness Sukhbasi Lal PW3 is equally unconvincing. It is worthwhile to state that his name does not find place as a witness in the F.I.R. His house was situated at a distance of one furlong from the place of occurrence. He allegedly came running from his house on hearing shouts. He did not witness the incident himself. Rather, he has testified that he had seen the present appellant, deceased appellant Lalman and their two companions running towards the Panchayatghar from nothern to southern side. It cannot be accepted with certainty that he could have correctly identified the present two appellants with the help of torch in such a state of running. It is clear from what has been stated earlier that the own testimony of Ram Charan PW1 is doubtful. This being so, there remains no corrobora-tion of what has been deposed by Sukhbasi Lal PW3 in an attempt to tender incriminating evidence against the present appellant.
11. For the above cogent reasons, we come to the conclusion that the finding of conviction and sentence recorded by the learned Sessions Judge against the present appellant Tej Singh cannot be sustained. We accordingly allow this appeal and set aside the conviction and sentence recorded by the learned Sessions Judge against him by the impugned judgment. The bail of appellant Tej Singh was cancelled during the pendency of this appeal and presently he is lodged in jail. He shall be set at liberty forthwith, if he is not wanted in any other case.