Allahabad High Court
Dukhi vs State Of U.P. on 3 October, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved A.F.R. Court No. - 53 Case :- CRIMINAL APPEAL No. - 2693 of 1983 Appellant :- Dukhi Respondent :- State Of U.P. Counsel for Appellant :- Rameshwar Nath, Brij Mohan Singh Counsel for Respondent :- A.G.A. Hon'ble J.J. Munir,J.
1. The appellant Dukhi has been convicted of offences punishable under Section 395 read with Section 397 IPC and Section 25 of the Arms Act by the VII Additional Sessions Judge, Allahabad vide his judgment and order dated 03.11.1983 passed in Sessions Trial no.69 of 1982, State vs. Dukhi and others, under Sections 395, 397 IPC and connected Sessions Trial no.70 of 1982, State vs. Dukhi, under Section 25 of the Arms Act, both relating to Police Station Manjhanpur, District Allahabad (now Kaushambi). For the offence under Section 395 read with Section 397 IPC, the appellant has been awarded rigorous imprisonment of seven years, and, for the offence under Section 25 of the Arms Act, he has been awarded a term of one year, with a direction that all sentences shall run concurrently.
2. According to the prosecution, a First Information Report was lodged by one Dadu son of Ram Bhawan Nai, a native of Village Kaima, Police Station Manjhanpur, District Allahabad on 13.02.1977 at 11.15 hours against 10 nominated accused, besides another 6 - 7 unnamed, with some hints about their identity, to the effect that the informant going by his daily routine had eaten dinner and had lain down in his Chaupal. Inside home were his brother, Rup Chand, his wife and children, all retired to their respective quarters, lying down (presumably to sleep). The house was illuminated by a lantern and women folk of the house had shut doors from within. Past mid night the informant who was asleep woke up to the barking of dogs, when at the passage of a small interval, 12 - 13 men arrived at his door. It included Chhotey Lal Tamer (Lulwa), a native of the village, whose hands the informant, and, his kinsmen had chopped off 10 - 12 years ago, due to animosity. He had made life difficult for the informant and his family in the village. He was in the forefront of intruders that night. The informant further said, that he had seen and identified the man last mentioned, by the light of a lamp, that was burning in the Chaupal. The informant says that he shouted, that dacoits had come (expressed in vernacular as "cnek'k vk x;s"). The informant goes on to say that he exhorted his brother, whereupon the offenders assaulted him with sticks (Lathis), and, in the meanwhile, Chhotey Lal is said to have exhorted others, saying that he is the one who has chopped off (his) hands, kill him. And, thereupon the offenders in order to do his brother Rup Chand to death, tore the door apart and some men entered. The informant says that the assailants fell upon his brother, assaulting him with knife blows and sticks (Dandas), with an intention to do him to death. Amongst women folk, the informant's mother and his sister-in-law (brother's wife), in order to save the informant, made a human shield of themselves around him, in consequence of which some of the offenders relieved them of their ornaments, described in vernacular as Lachhe (of silver), Hansali and Jhala (of gold); one of the assailants took away a nose pin. His brothers, in order to save themselves, mounted an attack on the assailants, and, managed to catch hold of two of them. A native of the informant's village, Brij Mohan Singh, and, another, Bhola Nath Gupta, pressed their licensed guns into service, challenged the dacoits, opening fire. It is further said that the assailants in order to strike a retreat, exploded two crackers and also fired a shot. Natives of the village, Shiv Badan Singh, Anant Ram Jaiswal, Kandhai Kumhar, and, many others, arrived at the informant's place. Some natives made a fire, igniting hay, in front of the informant's house. The assailants seeing the natives grow in numbers, decamped with valuables, mentioned at the foot of the first information, taking a escape route towards Terahara.
3. It is said that the informant and his family had faced a murderous assault. The apprehended dacoit disclosed his name to be Dukhi son of Shahdev Dhobi, a native of Village Bhadain, Police Station Kokhraj. He had in his hand, a country-made pistol loaded with a cartridge. They said the accused also revealed that his brother, Makhan Lal, was also one of the party. He further said that he had been in association with Nanaka @ Ullauna Lavarai. He had, a few days back, gone to the place of the man last mentioned at Sanwarai. There he met Chhote Lal Tamer @ Lulwa of Kaima. Lulwa, later told him that he had to seek revenge of Dadu Nau and his brothers. They had to be done to death. He offered to pay a sum of Rs.3000/-, and, said that the rest of the recompense would come as exploits from the house of Dadu. He would not be bargaining a loss. Thereupon, Nanaka and Chote Lal scheduled an assault on the night of 12th, and, assembled all men. He revealed that along with him, drafted in the assault and loot, from his native village were his brother, Makhan Lal, another Raj Kumar Nai, Jhali Pasi, Gedaniya Pasi, Nanaka; Baba @ Sadhu of Village Sanwarai, Chhotaku Nai and Thakur, natives of Giriya, Police Station Pura Mufti, two Pasis of Shamsabad, besides 3 - 4 other men, whom Chhote Lal had brought along; one man was from Baiskanti. All of them assembled near the Tubewell of Kedar at Shamsabad, wherefrom they proceeded. It is also said in the FIR by the informant that the assailants had used torch light, and, the entire crime was pulled through on the motivation of Chhote Lal Tamer @ Lulwa, in order to seek revenge (after this much of description of the prosecution version in the First Information Report, there is a six itemed list of belongings detailed, that were allegedly looted by the assailants). The first information version before drawing to a close mentions that it was a dark night, and, because of fear and the absence of means of transport, the informant had proceeded by day light on foot to the Police Station along with the country-made pistol, the recovered cartridge and the apprehended dacoit Dukhi, brought along with the assistance of Brij Mohan Singh, Bhola Nath Gupta, and, Shiv Badan Singh, under close guard. The information closed with a request that after lodging a report, necessary action be taken. The First Information Report was scribed by Brij Mohan Singh son of Jagannath Singh, resident of Village Kaima, Police Station Manjhanpur, District Allahabad, and, was thumb marked by the informant, Dadu son of Ram Bhawan Nai, resident of Village Kaima, Police Station Manjhanpur, Allahabad.
4. It needs mention that the prosecution version so far has been drawn from its earliest authentic account, that is to say, the one that is carried in the First Information Report. Before proceeding further, it needs to be placed on record that it is part of the prosecution case, though not mentioned in the First Information Report, that of the two dacoits apprehended, the retreating decoits managed to free one of the two taken captive, and, it was Dukhi alone, who was apprehended by the informant and others. Taking stock of the prosecution case in some further detail, the clock has to be turned a little backwards, which shows that the apprehended accused Dukhi, who is hereinafter referred to as the 'appellant', after his apprehension by the informant and another native of the village, was brought to the house of Brij Mohan Singh. He was detained there by night. In the house of Brij Mohan Singh, the written first information was scribed by Brij Mohan Singh at the dictation of Dadu, the informant. With so much in retrospect of the prosecution account, the trail can be conveniently resumed from the point where the appellant was brought to the Police Station, by the informant and other natives of the village. At the Police Station, the written information was handed over by the first informant, Dadu, where it was registered at 11.15 a.m. A chik FIR was drawn up by Head Constable Sheo Sagar, who made an endorsement of the same in the General Diary of the Police Station. He also drew up recovery memo of the country-made pistol, and, the misfired cartridge, sealed and deposited it with the Station Strong Room.
5. The injured Dadu and Rup Chand, his brother, were sent for their medical examination to the Primary Health Centre, Manjhanpur. They were examined by Dr. B.K. Grover on 13.02.1977 at 12.35 hours, who drew up injury reports of the said date, relating to both the injured.
6. Post examination of the two injured, investigation in the case was entrusted to S.I. Ran Vijai Singh, who recorded statements of witnesses, inspected the place of occurrence, and, drew a site plan. The Investigating Officer took into possession samples of burnt hay that was used to make fire, some pieces of wood from the the door that was shattered during the assault, and, a knife, all of which he recorded in a recovery memo and sealed the same. He also inspected the lighted lantern that is said to be the source of light, by which in the night of occurrence, the accused were identified, and, gave it in the safe keeping (Supurdagi) of its owner, drawing up a memo of entrustment (Supurdaginama). Co-accused Bhaiya Lal, Jageshwar and Sharda were apprehended on 15.02.1977, and, were put up for test identification on 16.02.1977. These accused have since been acquitted by the Trial Court, along with co-accused, Chhote Lal @ Lulwa. The Investigating Officer at the conclusion of investigation, submitted a charge sheet against the appellant, and, three of the four acquitted co-accused, to wit, Bhaiya Lal, Jageshwar and Sharda on 31.03.1977. The fifth acquitted accused, Chhote Lal @ Lulwa, was charge sheeted through a separate charge sheet dated 06.01.1979. Against the appellant, in addition, since a separate crime under Section 25 of the Arms Act was registered as Case Crime no.40 of 1977, a separate charge sheet was filed. A sanction for prosecution under Section 30 of the Arms Act was granted, by the then District Magistrate, Bhurey Lal in relation to the offence punishable under Section 25 of the Act, last mentioned. The Magistrate took cognizance against the appellant, as well as the acquitted accused, on the basis of the three charge sheets last mentioned. The offences under Section 397/ 397 IPC being triable exclusively by the Court of Sessions, all the accused were committed to Sessions on 20.01.1982, directing them to appear before the Court of Sessions on 22.02.1982.
7. Charges were framed against the appellant, by the learned IX Additional Sessions Judge, Allahabad, vide order dated 14.10.1982, under Sections 395, 397 IPC and Section 25 of the Arms Act. Likewise, charges were framed against the acquitted accused, also. The appellant denied the charges, and, claimed trial. Likewise, the acquitted accused also denied the charges framed against them, and, claimed to be tried.
8. Though evident by all means, for the rectitude of record, it must be mentioned that the Trial Court by means of the impugned judgment and order dated 03.11.1983, leading to the present appeal, acquitted each of the other co-accused, that is to say, Chhote Lal @ Lulwa, Bhaiya Lal, Jageshwar and Sharda, convicting and sentencing the appellant alone, as detailed hereinbefore.
9. The prosecution, in support of its case, examined the following witnesses:-
(1) PW-1, Dadu (first informant and injured witness);
(2) PW-2, Brij Mohan Singh (native of the village and witness of fact);
(3) PW-3, Rup Chand (brother of the first informant and injured witness);
(4) PW-4, Chhavi Nath Singh (Sub-Divisional Magistrate holding TI Parade for the acquitted accused and not of relevance to the appellant);
(5) PW-5, Bhola Nath (native of the village and a witness of fact);
(6) PW-6, Dr. S.P. Singh (the doctor who proved the handwriting and signature of Dr. Grover on the injury reports); and (7) PW-7, Kanhai Lal (native of village, witness of fact by hearsay).
10. The following documents were exhibited on behalf of the prosecution:-
(1) Ex. Ka-1 - Written Report (2) Ex. Ka-2 - Identification memo prepared by the Magistrate (3) Ex. Ka-3 - Injury report of Rup Chand (4) Ex. Ka-4 - Injury report of Dadu (5) Ex. Ka-5 - Chik FIR (6) Ex. Ka-6 - G.D. Report (7) Ex. Ka-7 - Recovery memo of country-made pistol and misfired cartridge (8) Ex. Ka-8 - Charge sheet submitted against accused Dukhi, Bhaiya Lal, Jageshwar and Sharda on 31.03.1977 (9) Ex. Ka-9 - Charge sheet submitted against co-accused Chhotey Lal @ Lulwa on 06.01.1979 (10) Ex. Ka-10 - Charge sheet submitted against the appellant u/s 25 of the Arms Act (11) Ex. Ka-11 - Sanction for prosecution (12) Ex. Ka-12 - Memo of Dakhil
11. Appropriate reference to each of the documentary and/ or material evidence will be made during the course of recapitulation of evidence, and, its appreciation.
12. The two injured witnesses Dadu, PW-1, and, his brother Rup Chand, PW-3 were examined for the injuries sustained and two medical examination reports, both dated 13.02.1977, were drawn up marked as Ex. Ka-3 and Ex. Ka-4, in relation to the injured witnesses Rup Chand and Dadu, in that order.
13. The injuries sustained by Rup Chand, PW-3 (Ex. Ka-3), recorded in the medico-legal report dated 13.02.1977, are extracted below:-
(1) Lacerated wound 2½" x 3/10" x skin deep, lying obliquely lt. side of scalp 3½" from the lt. ear.
(2) Lacerated wound 3/10" x 2/10", skin deep on the Rt. Side of fore-head, 1/2" from the eye brow.
(3) Incised wound 1/2" x 1/5" x skin deep over the vertebral column corresponding to Thoracic 8 vertebra.
All injuries are simple. Injury no.1 and no.2 are caused by blunt object. No.3 caused by sharp object. The duration of injuries less than one day in duration.
14. Likewise, the injuries relating to Dadu, PW-1 (Ex. Ka-4), shows in all six injuries, that are detailed below:-
(1) Lacerated wound 3" x 1/5" x skin deep lying anterior - posteriorily Rt. side of scalp, 1/2" from mid line.
(2) Lacerated wound 1/2" x 1/2" x skin deep just in mid line of scalp (3) Contusion 4" x 1/2", lying obliquely on lateral side of lt. fore arm 3" above the wrist.
(4) Contusion 12" x 1/2", lying vertically on the back, 4" from vertebral column.
(5) Contusion 4" x 1/2", lying transversely on the back, 4" below Steral Nauch.
(6) Contusion 3" x 1/2", lying obliquely on the anterior surface of lt. High 4" from inguinal ligament.
All injuries are simple, caused by blunt object. The duration is less than one day in duration.
15. Heard Sri Ved Mani Tiwari, learned counsel for the appellant, Sri Vinod Kant, learned Additional Advocate General, assisted by Sri Nikhil Chaturvedi, learned Additional Government Advocates, appearing on behalf of the State.
16. Learned counsel for the appellant has sought to demolish the prosecution bastion on a point that gives rise to a mixed question of fact and law. He submits that the definition of the offence of dacoity, which is the sine qua non for the offence under Section 395 read with Section 397 IPC, is to be found in Section 391 of the Indian Penal Code, 1861, and, hereinafter referred to as the 'IPC'. The definition of dacoity postulated under Section 391 IPC requires, five or more persons conjointly committing, or attempting to commit, a robbery, or where the whole number of persons, conjointly committing or attempting to commit a robbery, together with the persons present and aiding them in the commission of the offence, or the attempt, make for a figure of five, everyone of them is said to commit dacoity. He has urged that in the present case only one person has been convicted, whereas the other four have been acquitted. The Trial Court, in his submission, has committed an error in convicting the appellant for an offence punishable under Section 395 read with Section 397 IPC, inasmuch as, the charge was one framed against the appellant under the aforesaid Section, along with the four other acquitted accused. The submission proceeds on the reasoning that the Trial Court having acquitted four of the five charged along with the appellant, no conviction could have been recorded against the appellant alone, for an offence punishable under Section 395/ 397 IPC. He submits with much emphasis that the conviction of the appellant, under Section 395/397 IPC, is manifestly illegal as there had to be five or more persons found involved, even if not guilty, and, that in view of acquittal of four out of the five arraigned, the Trial Court went wrong in law in convicting the sole appellant under Sections 395/ 397 IPC. It is submitted that on this short ground alone, the conviction and sentence of the appellant is liable to be set aside.
17. Sri Vinod Kant, learned Additional Advocate General, assisted by Sri Nikhil Chaturvedi, learned Additional Government Advocates, has refuted this submission of the appellant and contended that it is not the law, that unless five persons are found guilty together of committing, attempting or aiding robbery, it would not amount to dacoity. It is submitted by Sri Vinod Kant that all that the law requires is, that five or more persons should be found involved in committing, attempting or aiding a robbery, and, even if the others found involved, are not charge sheeted for lack of identification, or being charge sheeted, charged and tried, are not found guilty for lack of identification, but of them one or more but less than five are found guilty of committing robbery, along with a remainder of a total of five or more persons, who are not charged or acquitted, for lack of identification, even one accused may be held guilty of the offence of dacoity. Sri Vinod Kant has invited the attention of this Court to the fact that in the charge sheet bearing no.27 dated 13.02.1977 there are four accused, including the appellant, that is to say, Dukhi (appellant), and in the same charge sheet there are ten nominated suspects about whom there is a definitive prosecution case that they participated, along with five charge sheeted persons in the crime, but for lack of identification or other evidence, they were not charge sheeted. There is a separate charge sheet filed against Chhote Lal alias Lulwa, who has since been acquitted. It is, thus, pointed out that going by the charge sheet and the prosecution case about which there is mention in the FIR and evidence in the testimony of witnesses, the offence was perpetrated by a total 15 men (12 - 13 according to the FIR). The submission, therefore, is that the prosecution case is to the effect that the offence was committed by a multitude comprising 12 - 15 men, of whom on account of lack identification, or other strong enough evidence, ten were not charge sheeted, whereas five of them were. Out of this group of five, one was acquitted, that is to say, Chhote Lal alias Lulwa on account of the fact that his implication was found false by the Trial Court outrightly, whereas the three others were acquitted for lack of identification. It is, thus, urged by the learned Additional Advocate General, that taking the total count of perpetrators, even if one who has been acquitted by the Trial Court on finding his implication to be false, there is no cavil that the offence involved fourteen men, either committing, aiding or attempting the offence of robbery, that would certainly make it a dacoity. He has laid particular emphasis on the fact that charge sheet no.27, filed against the appellant and three others, clearly mentions name of 10 suspects in the second column, who have not been charge sheeted for want of identification or lack of evidence. Their participation in the crime, however, cannot be discounted or ignored merely because their identity is in doubt, or there is no clinching evidence against them. It is the prosecution's stand, therefore, that the solitary conviction of the appellant for an offence punishable under Sections 395/ 397 IPC is not bad in law.
18. This Court has given an anxious consideration to the aforesaid point that seems to hit at the bottom of the prosecution case, so far as the conviction, on a charge under Sections 395/ 397 IPC is concerned.
19. In this connection learned counsel for the appellant has placed reliance on a decision of the Hon'ble Supreme Court in Ram Shankar Singh and others vs. State of Uttar Pradesh, AIR 1956 SC 441, where their Lordships held thus:-
"9. The High Court was perfectly justified in brushing aside the evidence of the prosecution witnesses who apparently were not truthful witnesses, besides being very inimically disposed against the accused. The case against the three accused persons belonging to the same village did not fail for paucity of evidence of identification, but because the considerable body of evidence was tainted testimony.
But the High Court appears to have erred in making a distinction between the case of those three accused and of the appellants living in the adjoining village Alipur. In my opinion, the High Court did not give sufficient weight to the evidence elicited in cross-examination of the prosecution witnesses showing that all the six accused persons belonged to the party actively opposed to the party of the complainant and that they had good reasons for trying to utilize a true case of dacoity by falsely implicating their enemies.
In my opinion, there are no sufficient reasons for differentiating the case of the appellants from that of the other accused who were acquitted by the High Court. And these considerations, however, arise on the factual aspect of the case. This Court on special leave does not ordinarily interfere with findings of fact of the courts below. But fortunately for the appellants, a clear question of law has been raised on the findings arrived at by the High Court.
10. The charge framed against the six persons placed on trial did not indicate that those six persons along with other unknown persons had committed dacoity. The charge was that the six persons placed on trial were the persons who had committed dacoity.
On the findings arrived at by the High Court resulting in the acquittal of three out of the six persons jointly tried, we are left only with the three appellants as the persons concerned with the crime. It is possible to direct a retrial on a proper charge being framed so as to give sufficient notice to the accused persons that more than five persons were actually concerned with the alleged crime. This aspect of the matter could not have been discussed by the trial court in the view it took of the evidence.
Having convicted all the six persons under S. 395, I.P.C., no such question of law could arise before it. Even in the High Court this question was not mooted, apparently because the appellants were all sailing in the same boat and a common argument appears to have been advanced.
The High Court having come to the conclusion that three out of the six convicted persons were not guilty, should have gone into the question whether there was satisfactory evidence to show that the three remaining appellants before it could be convicted under S. 395, I.P C., on the charge as framed. In any event, the three remaining accused persons could be convicted of the lesser offence of robbery under S. 392, I.P.C., if there was evidence to show that they had committed acts of theft and used violence while committing the theft."
20. In the understanding of this Court, the decision relied upon by the learned counsel for the appellant, carries an answer to the point urged by the learned counsel here. The decision in Ram Shankar (supra) turned on facts, where their Lordships have said in the opening part of paragraph 10 of the report, that the charge framed against the six, put on trial, did not indicate that those six persons along with other unknown persons had committed dacoity. The charge was precisely against six persons, who went to trial in that case. In the background of the aforesaid figure of six who were convicted by the learned Sessions Judge, of whom three were acquitted by the High Court, their Lordships held that for the remainder of the three, whose conviction was upheld could not be sustained, the High Court not having gone into the question whether there was satisfactory evidence against the three remaining appellants before their Lordships, making out a case under Section 395 IPC.
21. In the present appeal, the prosecution has rested its case on the offence being committed by a definite number of 15 persons, 10 of whom were not charge sheeted for lack of identification, or lack of evidence. More would be said about this issue, a little later, on which much rests so far as determination of the point under reference is concerned.
22. Learned counsel for the appellant has done a time jump to cite a more contemporary authority of their Lordships of the Supreme Court in Raj Kumar alias Raju vs. State of Uttaranchal (Now Uttarakhand), (2008) 11 SCC 709, where their Lordships after a copious review of authority on the point whether the number of convicts, out of figure tried, falling below the statutory minimum of five, the remainder could be convicted of an offence of dacoity (in the authority under reference, dacoity with murder) held on facts that where the total number of accused put on trial were six, of whom two were acquitted by the Trial Court, without recording a finding that the offence was committed by six, and, upheld on appeal for the remainder by the High Court, held thus:-
"35. In the instant case, as observed earlier, there were six accused. Out of those six accused, two were acquitted by the trial court without recording a finding that though offence of dacoity was committed by six persons, identity of two accused could not be established. They were simply acquitted by the court. In our opinion, therefore, as per settled law, four persons could not be convicted for an offence of dacoity, being less than five which is an essential ingredient for commission of dacoity. Moreover, all of them were acquitted for an offence of criminal conspiracy punishable under Section 120-B IPC as also for receiving stolen property in the commission of dacoity punishable under Section 412 IPC. The conviction of the appellant herein for an offence punishable under Section 396 IPC, therefore, cannot stand and must be set aside."
23. The decision in the said case also does not help the appellant with the proposition that is mooted because their Lordships in Raj Kumar (supra) were concerned with a case where six persons were put on trial, of whom two were acquitted of the offence of dacoity by the Trial Court and their Lordships remarked in paragraph 35 of the report "out of those six accused, two were acquitted by the trial court without recording a finding that though offence of dacoity was committed by six persons, identity of the two accused could not established. They were simply acquitted by the court."
24. The aforesaid remark in the judgment of their Lordships in Raj Kumar (supra) is of cardinal importance for there lies the statement of the law that would lead to different results, in the background of two class of facts. One would be where there is evidence before the court or in appeal, a finding by the Trial Court, that the offence had the involvement of five or persons - five or any higher number - a determinate number of them alone could be identified, put up for trial, of whom less than five are convicted and the rest are acquitted for want of identification, but there is a positive finding or a conclusion based on clear admission, or there being evidence on record, leading to the conclusion that the offence did involve five or perpetrators. The second would be the class of those cases where the persons put on trial are a determinate number, all of whom are identifiable on the basis of the evidence on record, or in appeal their identity is supported by a finding of the Trial Court, but conviction is recorded against any number that takes the strength of the convicts below the figure of five. In the latter class of cases, the conviction for dacoity, certainly cannot be sustained, but in the former it most certainly would. The issue engaged the attention of their Lordships of the Supreme Court in the context of an offence under Section 396 IPC in Manmeet Singh alias Goldie vs. State of Punjab, (2015) 7 SCC 167, where referring to their earlier decision in the Raj Kumar (supra), their Lordships elucidated the issue thus:
"32. With reference to the offence of dacoity under Section 391 IPC in particular and the import of Section 149 IPC, this Court in Raj Kumar vs. State of Uttaranchal (2008) 11 SCC 709 had propounded that in the absence of a finding about the involvement of five or more persons, an accused cannot be convicted for such an offence. Their Lordships, however, clarified that in a given case it could happen that there might be five or more persons and the factum of their presence either is not disputed or is clearly established, but the court may not be able to record a finding as to their identity resulting in their acquittal as a result thereof. It was held that in such a case, conviction of less than five persons or even one can stand, but in the absence of a finding about the presence or participation of five or more persons, less than five persons cannot be convicted for an offence of dacoity.
33. The above pronouncements do acknowledge the extension of the concept of collective culpability enshrined in Section 149 IPC in Section 396 IPC contemplating murder with dacoity. An assembly of five or more persons participating in the offence is thus the sine qua non for an offence under Section 396 IPC permitting conviction of any one or more members thereof even if others are acquitted for lack of their identity. In the absence of such an assembly of five or more persons imbued with the common object of committing dacoity with murder, any member thereof cannot be convicted for the said offence irrespective of his/her individual act of murder unless independently and categorically charged for that offence."
(Emphasis by Court)
25. In the decision of their Lordships in Manmeet Singh (supra), there is reliance on a much older decision in Ram Bilas Singh vs. State of Bihar, (1964) 1 Cri LJ 573, where the principle enunciated has been quoted and reads:-
"30. This Court in Ram Bilas Singh v. State of Bihar (1964) 1 Cri LJ 573 while dilating on the scope and purport of Section 149 IPC had held:
"...... What has been held in this case would apply also to a case where a person is convicted with the aid of Section 149 of the Penal Code instead of Section 34. Thus all the decisions of this court to which we have referred make it clear that it is competent for a court to come to the conclusion that there was an unlawful assembly of five or more persons, even if less than that number have been convicted by it if (a) the charge states that apart from the persons named, several other unidentified persons were also members of the unlawful assembly whose common object was to commit an unlawful act and evidence led to prove this is accepted by the court; (b) or that the first information report and the evidence shows such to be the case even though the charge does not state so, (c) or that though the charge and the prosecution witnesses named only the acquitted and the convicted accused persons there is other evidence which discloses the existence of named or other persons provided, in cases (b) and (c), no prejudice has resulted to the convicted person by reason of the omission to mention in the charge that the other unnamed persons had also participated in the offence."
26. In the present case in the First Information Report, there are as many as 10 nominated accused, besides 6 - 7 unnamed, and, in the testimony of PW-1, there is a consistent case of 12 - 13 offenders being involved, whereas in the testimony of PW-2 the figure of the offenders has been pegged at 13 - 14. Likewise, in the testimony of PW-3, the figure of 13 - 14 dacoits being involved finds consistent mention. As to this issue, much appears from the charge sheet dated 31.08.1977, filed against four of the five accused put on trial, that includes the appellant, Dukhi. This charge sheet, in the second column, mentions the names of those accused, who have not been charge sheeted. The second column, in the format prescribed, is sub-divided to indicate the names of suspects, and, absconding accused, separately. That meticulousness of marshaling accused into those who are suspects, and, those absconding, all of whom have not been charge sheeted, is an enterprise not undertaken. However, in the second column names of the ten suspects who were not charge sheeted, have been specifically detailed. The aforesaid kind of record about 10 accused in the charge sheet, most of whom were nominated in the First Information Report, does show the participation of 14 - 15 people in the offence. It is another matter that the prosecution was not able to garner enough evidence, against those accused placed in column no.2, to file a charge against them.
27. The participation of more than five persons in the offence, is also evident from the charge that was framed, against the present appellant, by the Trial Court on 14.10.1982, in relation to the offences punishable under Sections 395 and 397 IPC, which reads thus:-
"Charge I, U.S. Tripathi, IX Additional Sessions Judge Allahabad hereby charge you Dukhi as follows:-
First that you on the night of 12/13-2-77 at about midnight along with 12 others decoits committed decoity in the house of Dadoo situate in village Kaima, P.S. Manjhanpur district Allahabad and thereby committed an offence punishable u/s 395 I.P.C. and within my cognizance.
Secondly, that you on said date, time and place committed decoity, an offence punishable u/s 395 I.P.C in the house of Dadoo situate in village Kaima P.S. Manjhanpur district Allahabad and that at the time of committing decoity you used pistol and caused hurt to the members of the family of Dadoo and thereby committed an offence punishable u/s 397 I.P.C and within my cognizance."
28. There is, thus, in this case a clear mention in the charge that apart from the appellant, 12 other dacoits committed dacoity, which brings the case in the category, where less than five persons can be convicted for an offence of being members of an unlawful assembly mentioned, as the contingency denoted by (a) in Ram Bilas Singh (supra). The fact that in the First Information Report, there is a mention of 10 nominated besides 6 - 7 unnamed accused, and, in the evidence, 12/ 13/ 14 dacoits, brings the case within the category denoted by (b) in Ram Bilas Singh (supra). The fact that the appellant's case is covered by the contingencies referred to in the first two categories mentioned in Ram Bilas Singh (supra), where lesser number than five can be convicted for an unlawful assembly, does not necessitate any reference to the third contingency, mentioned there. The principle regarding number vis-a-vis their liability for an offence under Section 149 IPC, squarely applies to an offence under Section 395/397 IPC or Section 396 IPC, or so to speak, to any offence where the basic offence is dacoity, hardly brooks doubt. The said proposition has been accepted, as in many other decisions, in Ram Bilas Singh (supra).
29. Thus, considering the facts that the charge framed against the appellant mentions 12 persons, besides him, involved in the dacoity, the First Information Report and other evidence appearing in the case, indicates involvement of 12 - 14 offenders, the evidence in the dock shows involvement of 12 - 14 offenders, and, the charge sheet too, indicates a list of 10 named suspects, who could not be charge sheeted on account of lack of evidence, in the opinion of this Court, would not entitle the appellant to urge that the offence under Section 395 cannot be said to be legally made out against him, as those convicted are not a figure of five; all besides him having been acquitted. This takes the Court to the scrutiny of evidence, appearing against the appellant.
30. In order to appreciate evidence appearing against the appellant, it would be appropriate to marshal evidence of the five witnesses of fact, to wit, the PW-1, Dadu, PW-2 Brij Mohan Singh, PW-3 Rup Chand, PW-5 Bhola Nath and PW-7 Kanhai Lal, on various parameters of relevant facts.
31. So far as the factum of dacoity, the date, the time and the place of occurrence are concerned, the evidence of these five witnesses of fact is consistent. There is also broad consensus, amongst the witnesses, about the weapons carried by the dacoits, that includes, sticks (Lathi and Danda), country-made pistol (Tamancha), axe (Kulhara), knives (Chaku). The fact that there is consensus amongst witnesses about these facts above detailed, should not be understood to mean, that there is no quarrel about them, or that the same are held to be admitted or proven. The veracity of these various facts too, have to be assessed, for its intrinsic worth, and, by a reference to other evidence, that may corroborate or contradict. All these facts, about which the five witnesses of fact have spoken in one voice, the Court proposes to assess the truth of them, with reference to some more relevant facts to which allusion must be made now, judged on the basis of evidence on record. These can be broadly categorized as follows:
(1) The injuries sustained by the victims in the assault by the dacoits;
(2) The particulars, and, worth of the property looted during the dacoity, (3) Place of apprehension of the appellant;
(4) Manner and circumstances of arrest;
(5) Proof of recovery of country-made pistol from the appellant;
(6) Motive for a false implication; and (7) Who is the author and scribe of the FIR.
(1) The injuries sustained by the victims in the assault by the dacoits -
32. The two victims, who are said to have sustained injuries in the dacoity are Dadu, and, his brother Rup Chand. The two have been examined by the prosecution, as PW-1 and PW-3, in that order. Dadu also happens to be the first informant. In his examination-in-chief, Dadu has said that the dacoits came in and assaulted him. They immobilized him, and, delivered an axe blow to his head, causing it to crack. Thereafter, the dacoits thundered into the house, shattering the door. Once inside, they pillaged house and assaulted the inmates. His brother Rup Chand came out and raised alarm. It is said by this witness, that during the dacoity, he and his brother Rup Chand, were assaulted. So much for the ocular evidence of this witness, during the examination-in-chief, about the nature of assault and the resultant injury. A perusal of the injuries sustained by this witness, that have been found during his medical examination and recorded in the injury report, indicate two lacerated wounds to the head, both of which are no more than skin deep. The ocular version of the victim Dadu as noted above, carries a categorical case that he was assaulted by the dacoits, with an axe blow to his head, that caused it to crack (the description going in vernacular, in words of the witness, are "Kulhara se mara aur mera sir phat gaya"). The aforesaid account of the injury would mean that the victim received an axe blow to his head, causing a characteristic axe wound, leading to a gash, may be a fracture to the skull. In no understandable manner could an axe blow to the head, lead to two lacerated wounds, that were skin deep and no more. No doubt, the witness has not been cross-examined about this description of the assault, but there was no reason for that to be done, once there is a categorical ocular version, in the examination-in-chief, about the manner of assault, and, the nature of injuries, specifying the weapon and the site of injury, stated during the examination-in-chief. To the understanding of this Court, the nature of injuries sustained by Dadu, PW-1, could not have resulted from the kind of assault, with an axe blow to his head.
33. The second victim of the assault during the dacoity is Rup Chand, brother of Dadu. He has been examined by the prosecution as PW-3. He has given a short but graphic account of the assault, in his examination-in-chief. He has stated that 13 - 14 of the dacoits broke into the house, shattering the door. He had woken up and come out (presumably from his room) into the courtyard, when 5 - 6 dacoits intruded. Chhotey Lal was leading, according to this witness, and, said to the others, referring to the witness, that he is Rup Chand, and, should be done to death, whereupon the dacoits assaulted him with a knife and sticks (Lathi and Danda). The knife struck him in the back, whereas the sticks landed on his hand, whereupon he came out of his house and raised alarm. The medico-legal report of the injuries relating to Rup Chand, Ex. Ka-3, shows two lacerated wounds, and, a third incised. No doubt the incised wound is dimensioned ½" x 1.5", located over the vertebral column, corresponding to the thoraces eighth vertebra, but again, the injury is skin deep. It is a little hard to believe that a knife blow to the back, in a murderous assault of the kind described, by 5 or 6 men, even if one was wielding the knife, and, a dacoit at that, would cause a wound that is just skin deep. There is a remote possibility that owing to the thickness of the fabric worn for clothing, the injury remained so superficial, to be no more than skin deep; but the said possibility seems very remote. The victim coming out, as he was from his bed, while asleep at night, would certainly not be wearing an apparel made of so tough a fabric, as to render a murderous knife blow from the hands of a person who was no friend of the appellant, to cause a superficial skin deep injury. This witness has again not been cross-examined about the cause of superficial nature of his injury, but as the evidence stands, the ocular version of the assault does not appear to be compatible with the nature of injuries sustained by this victim, also. It also merits reference that the other injury described by this witness was a lathi blow to his hand, but it is something that more than meets the eye, that none of the injuries numbering three, are sited on any part of this victim's hand. The two other injuries are lacerated wounds, again skin deep, to his head.
34. To the Court, the injuries described by the two victims in their ocular version, during their examination-in-chief, are outrightly incompatible with the injuries found on their person, during their medico-legal examination.
(2) The particulars, and, worth of the property looted during the dacoity -
35. The appellant stands charged of an offence punishable under Sections 395/ 397 IPC. To an offence of dacoity the taking of property by use of criminal force, by five or more persons, is of the essence of it all. The primary motive of dacoit is to make financial gain or seek his own enrichment by depriving another of his property. This is done by employment of force; and by a minimum of five persons. This is not to say, that in a case where the victim is not able to give an account of particulars of his valuables looted, the prosecution is to be disbelieved. But, it is equally true that if the victim gives an account of the property lost to the marauding of the dacoit, which is of a ridiculously low value or poor worth, it would certainly be a relevant fact to judge, whether the charge is at all true.
36. In the present case, the two victims of the dacoity are the two brothers, Dadu and Rup Chand. They have have deposed in court as prosecution witnesses. Nothing has been said in the evidence of Rup Chand about what property was looted by the dacoits, but Dadu in his examination-in-chief has given precise account, albeit by reference to the contents of the FIR. He has stated in his examination-in-chief, briefly to the following effect (translated into English from Hindi vernacular):
"The dacoits looted jewelries and clothes from my house which I have detailed in the FIR."
37. Thus, the part of the FIR that carries details of the property looted by the dacoits, through the aforesaid assertion in the examination-in-chief, has come to be substantive evidence about the particulars of the property, claimed to be looted.
38. The First Information Report carries an itemized account of the property looted, with full particulars, and, description of each item. It is as follows (in Hindi vernacular):
^^1- lkM+h tukuh cknkeh jax dh js'keh ,d vnn 2- /kksrh tukuh ihyh o cwVsnkj pkS[kkus lQsn fdukjk ikifiax dk ,d vnn 3- ,d vnn isVhdksV NhaV dk gjk Qwynkj 4- fcykmt rhu vnn yky ihys gjs jaxh dh 5- jtkbZ gjs jaxh dh cwVsnkj iqjkuh bLrsekyh 6- udn 250@& nks lkS ipkl #i;kA**
39. A reading of the inventory of property looted, on first blush, and, to the last and most well considered thought that one spares to the issue, does not make it look for a dacoits booty. The worth of the property is apparently so ridiculous, that it places the prosecution case, under a shadow of grave doubt.
40. There is some more account in the evidence of PW-5, Bhola about the looted property. It makes for a brief assertion in his examination-in-chief, no more than the part of a sentence, which says (in Hindi vernacular):
^^rc igys eSaus Qk;j fd;k vkSj fQj c`t eksgu flag us Qk;j fd;k Fkk] Qk;j djus ij cnek'k yksx xkao ds nf{k.k dh vksj nknw dk lkeku ywV dj Hkkx x;sA** (Emphasis by Court)
41. For one, PW-5 is not an insider to the home where the dacoity was committed, nor was he an eye witness to the act of loot of property. He might be an eye witness to the dacoits fleeing but his evidence about what property, and, of what worth they carried away, is hearsay. Even for that, he does not specify the particulars, or the worth of the property looted. Thus, all that is to an account for the worth, and, the particulars of the allegedly looted property, is that what Dadu had spoken of, in his examination-in-chief, with reference to the details of the property mentioned in the First information Report. About that, this Court has expressed itself in unequivocal terms, and, need not say anything further.
(3) Place of apprehension of the appellant -
42. Dadu (PW-1) has stated in his examination-in-chief, that Lallu set afire some haystack near the house of one Bachan Dubey, which caused good illumination. It was by the light of the said source, that the witnesses identified the dacoits. He goes on to say that when the dacoits were retreating, the appellant Dukhi, present in court, was caught. The witness further says that when Dukhi was caught, he had on his person a country-made pistol, with a cartridge in its chamber. The natives of the village, that included this witness, did not thrash Dukhi. They caught Dukhi, and, took him along to Munshi Ji's place (Munshi Ji bears reference to Brij Mohan Singh, PW-2).
43. This witness was cross-examined on behalf of Dukhi on 18.03.1983, and, has been specific in his evidence about the place where the appellant was arrested. He has specifically said that the appellant was arrested at the entrance to the house of the witness (Dadu, PW-1). The place of arrest has been specified, thus, by Dadu, PW-1, in his cross-examination (in Hindi vernacular):
^^ihNk djrs djrs xkao ds ckgj ifPNe rjQ pys x;s Fks tc dksbZ ugha feyk rks okil vk x;s nq[kh dks idM+us esa eSa] Hkksyk ukFk] c`teksgu flag o vuUr jke o dU/kbZ gh Fks fQj dgk fd f'ko cnu Hkh FkkA vkSj dksbZ ugha FkkA nq[kh dks vius ?kj ds nsgM+h ij idM+k FkkA** (Emphasis by Court)
44. The aforesaid evidence indicates that Dukhi was apprehended by PW-1, along with natives of Village, while the dacoits were retreating, and, after apprehension he was taken to the house of PW-2, Brij Mohan Singh. There is an account about the arrest of Dukhi given by the witness, which does not specify the place where Dukhi was apprehended, in his examination-in-chief. However, in his cross-examination, the witness has specified the place of arrest to be the entrance to his house, described in vernacular, as Dehri, and, it further indicates that in the act of apprehension of the appellant, the witness PW-1, had the company of Bhola Nath (PW-5), Brij Mohan Singh (PW-2), Anant Ram (native of the village, but not a witness) and Kanhai Lal (PW-7).
45. The account of apprehension of the appellant, with reference to the place where he was caught, it is stated by PW-2, Brij Mohan Singh, during his cross-examination that Dukhi was running into an alley. He did not know Dukhi earlier, but on apprehension, it was revealed that he was a Washerman (Dhobi). This witness specifies the place of arrest by saying, that the place where the appellant, Dukhi was arrested, is located between houses on both sides, a lane of a width of 4 - 5 hands (that would roughly estimate to a width of 5 - 6 feet). The aforesaid witness has precisely described the immediate circumstances, and, place of arrest of the appellant, in the following words (in Hindi vernacular):
^^nq[kh xyh esa Hkkxk tk jgk Fkk eSa nq[kh dks igys ls ugha tkurk Fkk] idM+us ij ekywe gqvk fd /kksch gSA tgkW nq[kh idM+k x;k Fkk ogka ?kjksa ds chp 4] 5 gkFk pkSM+h xyh FkhA** (Emphasis by Court)
46. The other victim of the dacoity Rup Chand who is an injured witness, as already detailed hereinbefore, and a brother of PW-1, Dadu, deposing as PW-3, has stated in his examination-in-chief, that on his raising alarm many natives of the village, that included Brij Mohan Singh (PW-2), Bhola Nath (PW-5), Shiv Badan (a native but not a witness), Anant Ram (a native but not a witness) had arrived. Brij Mohan Singh and Bhola had opened fire and the dacoits were retreating. One of the dacoits was caught. The one caught is Dukhi, the accused who is present in court, whereas the others escaped, and, that one more dacoit was caught, but the others rescued him. The said witness does not specify the precise place of arrest, in his examination-in-chief, but in his cross-examination on behalf of Dukhi, he has spoken about the place of arrest in following words (in Hindi vernacular):
^^eSa xkao ds xus'kh /kksch dks tkurw gwW] xus'kh /kksch ds ?kj ds ikl iqfy;k gS] ;g xyh yxHkx 4 gkFk pkSM+h gS] tgka nq[kh idM+k x;k Fkk] og igyh xyh gS] ml le; reUpk esa dkjrwl Hkjh FkhA** (Emphasis by Court)
47. A reading of the evidence of three witnesses, that is to say, PW-1, PW-2, and, PW-3 shows that they are not at all consistent about the place of arrest. While PW-1 has categorically said, that the place of arrest was the entrance to his house, his brother Rup Chand, PW-3 has said that the appellant was apprehended in a lane, which certainly cannot be a different description for the entrance to their house. It is decidedly a different place, stated to be the place of apprehension of the appellant, by the two brothers, Dadu, PW-1 and Rup Chand, PW-3. PW-2 who is acknowledged to be involved in the apprehension of the appellant by PW-1, in his evidence, has also said that the appellant was arrested in a lane while he was running away, which is an account that certainly does not match that given by PW-1, Dadu, though it may tally with the one given by PW-3, Rup Chand.
48. The evidence, in totality, about the place of arrest of the appellant, Dukhi is not clear and consistent, though each of the witnesses who have spoken about it were involved in the act of his apprehension. Thus, to the understanding of this Court it must be held that the place of apprehension for the appellant claimed by the prosecution has not been clearly established. It must further be held that the apprehension of the appellant being a relevant fact, through which the appellant came into the clutches of the law, this material inconsistency about the place of his arrest, again throws a cloud of doubt about the prosecution story.
(4) Manner and circumstances of arrest
49. Dadu (PW-1) has stated in his examination-in-chief, about the manner and circumstances of arrest, to the effect that when the dacoits were retreating the appellant Dukhi was caught. It is further said that when Dukhi was caught, he had with him a country-made pistol, with a cartridge in its chamber. It is also said that upon apprehending Dukhi, the witness or the other natives did not beat him. He was taken to the place of Munshi Ji (PW-2). During his cross-examination, after being recalled, this witness has said that dacoits were given a chase by the villagers, as they retreated westwards. When they could not lay their hands on anyone, they came back. It is then said that in apprehending Dukhi, PW-1, Dadu, Bhola Nath (PW-5), Brij Mohan Singh (PW-2), Anant Ram and Kanhai (PW-7) had acted together, to which he added, that Shiv Badan was also involved in the apprehension, specifically, saying that no one else took part in the arrest. The witness has then said that Dukhi was arrested at the entrance (Dehari) of his house, about which detailed mention has been made earlier. It is spoken about the circumstances, post apprehension of the appellant, that he was taken to the house of Brij Mohan Singh (PW-2), by all those who had arrested him, and, that a country-made pistol, that the appellant had on him was taken away, when he was apprehended. It is further stated that the night over, the appellant was confined to the house of Brij Mohan Singh, and, in the morning, Brij Mohan Singh (PW-2), Rup Chand (PW-3), Shiv Badan Singh, Bhola Nath (PW-5) and Dadu (PW-1) went to the police station. It is further stated in the cross-examination that Brij Mohan Singh (PW-2) had taken Dukhi, together with the recovered country-made pistol, and, handed over both man and weapon to the police at the police station. This witness has, however, denied suggestions that Dukhi has been falsely implicated, on account of the fact that he did not speak anything about the whereabouts of the fleeing dacoits or that the witness had seen Dukhi (appellant) at the place of Ganeshi Dhobi, or even that, that he knew that Ganeshi was a maternal uncle of Dukhi. He has also denied suggestions about false implication of Dukhi on account of any enmity, or that no weapon was recovered from him.
50. PW-2, Brij Mohan Singh in his examination-in-chief has stated that upon hearing the commotion, consequent upon the dacoits raiding Dadu's house, he proceeded to the scene of occurrence, armed with his licenced gun, where 13 - 14 dacoits were looting. He has stated further, all in his examination-in-chief, that the dacoits were armed with guns. He has gone on to say, that along with him Bhola Nath (PW-5), Kanhai (PW-7), Shiv Badan and other natives of the village in strong numbers had arrived, and, they opened fire. It is said that upon challenge by the natives of the village, the dacoits retreated, and, while they were retreating the appellant was caught. It is stated further by this witness that when Dukhi was caught, he was armed with a country-made pistol that had a cartridge in its chamber; and, that Dukhi, after being arrested by the villagers, was brought by them over to the house of this witness.
51. Rup Chand (PW-3), who is the other injured witness, and, brother of PW-1, Dadu, has also spoken in similar terms in his examination-in-chief that on arrival of the other natives of the Village, the dacoits took to their heels, and, says that the appellant was caught. It is also said that one more of the dacoits was caught, but the others rescued him by force. He has further said, about the circumstances after arrest, that the appellant was taken to the house of Brij Mohan Singh (PW-2). In his cross-examination at the instance of the appellant, apart from the incongruity about the place of arrest that has been dealt with, this witness has not indicated the precise manner in which the appellant was apprehended. This witness has, however, stated that the appellant was apprehended by Bhola Nath, Brij Mohan Singh (PW-2), Dadu (PW-1), Kanhai (PW-7) and Shiv Badan Singh, all acting together. He has denied suggestion that the appellant was not apprehended on the spot, and, that no fire arm was recovered, or that he was caught from the house of Ganeshi, his maternal uncle by natives of the village, and, falsely implicated. It is further stated, that the following morning, the appellant Dukhi, along with the pistol and the written report of the occurrence, were taken to the Police Station, where a First information Report was got registered. In his cross-examination, this witness has stated about the manner and circumstances of the arrest, that the appellant was running into a lane, when he was apprehended. All that he says is that Dukhi was running away into a lane. He did not know Dukhi beforehand, but when caught, it was revealed that he is a washerman (Dhobi). This witness, thus, does not speak about the precise manner in which the appellant who is said to be a member of a gang of dacoits, armed with deadly weapons, was apprehended.
52. PW-5, Bhola Nath has stated that he reached the place of occurrence, on hearing the commotion, armed with his licenced gun where Brij Mohan Singh (PW-2), Shiv Badan Singh, Kanhai (PW-7) and other natives of the village had arrived. He had heard shots being fired, and, the sound of explosion. He had seen 11 - 12 dacoits, who were beating up Dadu. The dacoits were armed with country-made pistol, sticks (Lathi & Danda), axe (Kulhara), knives (chaku) etc. This witness states that on seeing the aforesaid violence, he had opened fire, followed by Brij Mohan Singh (PW-2), whereupon the dacoits retreated to the west, looting Dadu's belongings. It is stated here that Dukhi, the appellant was caught on the spot, and, that another dacoit was also caught who was rescued. The following morning, this witness says, that he along with Dadu and others, had taken the appellant in custody over to the police station, where Dadu got his first information report registered. This witness, in his cross-examination has said, that his house is located 50 paces to the west of Dadu's house, and, when he saw the appellant Dukhi, he had already been apprehended. He was in the custody of natives of the village.
53. The witnesses are not materially inconsistent about the manner and circumstances of arrest, but inherently, the evidence of each of them, speaking about these relevant facts does not inspire much confidence. It is so, for these reasons. The dacoits were a party of 12 - 14 strong, well armed and organized. The weapons and the manner of assault attributed to them speak for themselves. In the circumstances, it is a little hard to believe, that from an organized gang of dacoits, for no special reason, one would venture away into a lane, or isolate himself from others on the entrance of the looted house, as suggested by these witnesses. It also defies all logic, why the appellant would suffer apprehension, without any resistance or struggle, and, consequently, no injury to his person. The rather over conscious statement, of more than one of the prosecution witnesses that after apprehension, the appellant was not beaten up, is a forward explanation for an otherwise improbable apprehension of a dacoit, without the telltale signs of physical strife, or violence between him and his captors. It rather shows clearly, that the appellant was apprehended under some very friendly circumstances, in a position of confidence, that was betrayed. If the appellant were in fact a member of a gang of dacoits, it also does not appeal to reason, why he was not handed over to Sub-Inspector Ran Vijay Singh, who lateron, was the Investigating Officer of the case also, when he visited the village at about 9 - 10 a.m., the following morning, and, instead was carried in private custody, all the way to the Police Station, accepting the challenge of an on way rescue, by the appellant's companions.
54. Even otherwise, the law in case of a private apprehension is that an offender, if arrested by a private person shall without unnecessary delay be made over, or caused to be made over to a police officer, or in the absence of a police officer, be taken in custody to the nearest Police Station. This is the law under Section 43(1) Cr.P.C. that is well attuned to prudence and good common sense. There is no logical, or even an illogical reason, why an apprehended dacoit would not be handed over to a visiting police officer to the village, immediately.
55. Thus, the manner and circumstances of the appellant's arrest, in the opinion of this Court, are borne by an account that is most unconvincing, most illogical, farfetched and imaginary. It is patently incredible. In this connection and to draw support for the proposition that consistent witnesses in themselves are not a guarantee of truthfulness of the prosecution, the decision of the Hon'ble Supreme Court in Badam Singh vs. State of U.P., (2003) 12 SCC 792 is illuminating, where it has been held by their Lordships, thus:
"16. .......... The High Court by its impugned judgment dismissed the appeal preferred by the appellant. We have perused the impugned judgment of the High Court. The High Court which was the first Court of Appeal did not even carefully appreciate the facts of the case. It mentions that the FIR was lodged by PWs-5 and 6 whereas the fact is that the FIR was lodged by PW-4, the Forest Officer. Without subjecting the evidence on record to a critical scrutiny, the High Court was content with saying that the three eye witnesses having deposed against the appellant, the prosecution had proved its case beyond reasonable doubt. In our view, the High Court has not approached the evidence in the manner it should have done being the first Court of Appeal. The mere fact that the witnesses are consistent in what they say is not a sure guarantee of their truthfulness. The witnesses are subjected to cross-examination to bring out facts which may persuade a Court to hold, that though consistent, their evidence is not acceptable for any other reason. If the Court comes to the conclusion that the conduct of the witnesses is such that it renders the case of the prosecution doubtful or incredible, or that their presence at the place of occurrence as eye witnesses is suspect, the Court may reject their evidence. That is why it is necessary for the High Court to critically scrutinize the evidence in some detail, it being the final court of fact.........."
(5) Poof of recovery of country-made pistol from the appellant -
56. The witnesses of fact, PW-1, PW-2, PW-3 and PW-5 are more or less also consistent that on the appellant's apprehension, a country-made pistol with a cartridge in its chamber was recovered. Going by the manner and nature of arrest, which is an arrest by private persons, there is no recovery memo strictu sensu. Whatever of a recovery memo might have been drawn and finds some mention in the judgment of the learned Sessions Judge, as an admitted document, perhaps bears reference to some kind of document, that was drawn up at the Police Station, when the accused was made over to the police, along with the seized country-made pistol. This Court on a perusal of the record, has located the said document to be, in fact, a memo making over the seized weapon to the police, that is signed by Dadu (PW-1), Brij Mohan Singh (PW-2), Bhola Nath (PW-5), and, someone from amongst the police personnel. It does not bear signatures or mark of the appellant, Dukhi. It is mentioned in the recovery memo, in some detail, about the country-made pistol, said to have been recovered from the appellant. It is said there, that the weapon was in working order, with a misfired cartridge in its chamber. There is an endorsement on this document, presumably, made by one of the counsel appearing for the various accused in the case, to the effect, "Genuineness of paper is admitted."
57. The learned Sessions Judge has, amongst others, recorded in the judgment that the defence have admitted genuineness of the recovery memo, that bears reference to the aforesaid memorandum, drawn up at the Police Station. A recovery memo of any incriminating material from the person, or at the pointing of an accused, that would include material evidence, like a fire arm, is invariably proved by drawing up such a memo, contemporaneously with the arrest of the accused. It is either signed by the accused, or bears an endorsement, that he has refused to sign it, if that be the case. It is in that sense, that a recovery memo has evidentiary value, of proving recovery of incriminating material evidence, based on Section 27 of the Indian Evidence Act.
58. A memorandum of deposit of a fire arm at the Police Station, while handing over the appellant, claiming his involvement, after an arrest privately made, would certainly not fall in the category of a document, that may be termed as a recovery memo vis-à-vis the weapon claimed to be recovered from the appellant.
59. Thus, so far as the recovery of the country-made pistol is concerned it is left entirely to the creditworthiness of the witnesses parole evidence. No support can be drawn, in this regard, by the prosecution from the memo of deposit of the fire arm at the Police Station, that the learned Sessions Judge has chosen to describe as a recovery memo. In this connection the finding of the learned Sessions Judge, on the issue, may be adverted to:
"36. The recovery of country made pistol Ext.1 and misfired cartridge Ext.2 from the possession of Dukhi accused also shows that Dukhi accused had participated in the dacoity. Because if he had simply gone to the house of his relative, there was no occasion for him having country made pistol and a cartridge. There is no suggestion to prosecution witnesses that the country made pistol was subsequently planted. The villagers were also not in a position to plant country made pistol.
37. Thus the above evidence on record clearly proves that accused Dukhi was apprehended on the spot while he was participating in the dacoity. The misfired cartridge in the barrel of pistol which was recovered from his possession also indicates that he tried to cause injury to the witness and used deadly weapon."
60. The manner in which the learned Sessions Judge has looked at the evidence, clearly indicates that recovery of the weapon has been presumed, in the manner described by the prosecution, without requiring the prosecution to discharge its burden of proof, on this very relevant fact. The remark of the learned Sessions Judge, that there is no suggestion to the prosecution witnesses, that the country-made pistol was subsequently planted, and, that the villagers were not in a position to plant the country- made pistol, presumes the veracity of the prosecution case, instead of requiring the prosecution to prove their case of recovery. It is too elementary to be said, that recovery could neither be presumed, or the prosecution relieved of their burden to prove their case of recovery of the fire arm, which perhaps, is the most relevant fact. The failure of the defence, in putting across a suggestion to the prosecution witnesses, that the country-made pistol was subsequently planted, does no credit to the prosecution case, in the considered opinion of this Court. The recovery of the country-made pistol, therefore, is to be judged, as already said, going by the oral evidence of the prosecution witnesses of fact. It is another matter, that even if that testimony proves recovery of the fire arm, it does not discharge the prosecution's burden to establish that the appellant was found in possession of the country-made pistol, in a working condition with a misfired cartridge. To the latter aspect, allusion would be made a little later. Though there is general consistency about the prosecution witnesses, PW-1, PW-2, PW-3 and PW-5 saying that a country-made pistol, with a cartridge in its chamber, was recovered from the appellant when he was apprehended by them, but the testimony on this score is not without its loopholes. The foremost on this count, is the testimony of Dadu (PW-1), in the part of his cross-examination, after he was specifically recalled by the prosecution, to prove recovery of the country-made pistol and the cartridge. This witness on being recalled on the request of the prosecution, for the purpose aforesaid, stated thus, in his evidence:
"Witness recalled on request of prosecution filrksy tks nq[kh fy;s Fkk og esjs lkeus gS Ex 1 Mkyk x;k] blds vUnj tks dkjrwl Fkk og Hkh esjs lkeus gS bl ij bDt 2 Mkyk x;kA"
61. He was cross-examined on behalf of Dukhi specifically with reference to his above detailed deposition. In a prompt cross-examination, he deposed thus:
"reUpk ij dksbZ [kkl fulku ugh gS] ftlls eSa ;g crk ldw fd ;g og gh reUpk gS tks nq[kh ds ikl ls fudyk FkkA Ex 2 dkjrwl bl reUpk es Qalk Fkk vkt igyh ckj uky ls fudyk ns[k jgk gwWA"
62. The cross-examination aforesaid, clearly shows that the witness has not been able to identify the weapon as the one that was recovered from the appellant as said by him in his examination-in-chief, may be moments before, and, it further shows that so far as cartridge is concerned, he has categorically in his cross-examination said that he was seeing it for the first time ever. The aforesaid words in the cross-examination, so far as the PW-1 is concerned, hardly prove that the country-made pistol produced by the prosecution was in fact recovered from the appellant; so also the cartridge. The other witnesses PW-2 and PW-3 who have generally deposed in their examination-in-chief about the recovery of a country-made pistol, and, a cartridge from the appellant, have not been cross-examined much on the issue, but their evidence does not convincingly established the recovery of the weapon from the appellant. In the absence of the witnesses clearly indicating, the precise circumstances and manner of recovery, and, some patent features at least about the weapon, on the basis of which they could identify it as the one recovered by them, the recovery cannot be held good. This apart, the prosecution in order to establish its case about the recovery of a weapon is required to establish, by evidence aliunde, that the gun was firing fit, and, the cartridge found from the person of the appellant was live and misfired. There is absolutely no evidence about the fact that the gun was in working order or the cartridge was a misfired one, led on behalf of the prosecution. It is said in the memo, depositing the weapon with the Police Station that the gun was in working order, and, the cartridge was misfired. However, the armourer or the constable, or whosoever certified the fact to be so, in the memo receiving in deposit, the country-made pistol, was not at all examined on behalf of the prosecution, to prove the fact. In the absence of the police personnel receiving the weapon, who certified it to be in working order as aforesaid, being examined in support of the fact by the prosecution, the recovery of a weapon in working order, or the cartridge in the condition attributed to it, cannot be held proved. May be, the burden cannot be discharged by just examining police personnel who received the gun into police custody. It had to be sent for ballistic opinion to the Forensic Science Laboratory, and, their opinion to the above effect duly proved by examining the concerned expert would relieve the prosecution of its burden that the gun recovered from the appellant was in working order, and, the cartridge was in the condition attributed to it. In the absence of the prosecution, leading evidence to prove the weapon recovered from the appellant, to be in working order, it cannot be held that the appellant was found in possession of a country-made pistol, in working order with one cartridge misfired. In the absence of such evidence, the appellant cannot be held to have been in possession of a country-made pistol in working condition, and, with a misfired cartridge in its chamber.
63. In this connection the decision of the Hon'ble Supreme Court in State of Punjab vs. Jagga Singh, (1998) 7 SCC 214 may be quoted with profit:
"........ Though the evidence of PW.1 H.C. Baldev Singh and PW.3 Basant Singh establishes that the respondent was found in possession of one. 12 bore DBBL Gun and four live cartridges, there is no satisfactory evidence to show that the said Gun and the cartridges were sent for examination by the Central Forensic scientific Laboratory. There is no report from the forensic Scientific Laboratory nor any other evidence to prove that the said gun was in a working condition or that the said cartridges were live cartridges. An entry made in the Malkhana register was relied upon by the prosecution. It does not mention that Gun bearing No. 14119-88 was sent to the Central Forensic Laboratory nor does it contain any description of the cartridges."
64. Still earlier, in Jaspal Singh vs. State of Punjab, 1998 (7) SCC 289, it was held thus, by their Lordships:
"2. Admittedly, no evidence was led by the prosecution to prove that the gun was in working condition and that the cartridges which were found from the person of the appellant were live cartridges. Neither ASI - Balbir Singh had stated so nor any report from an expert was obtained to establish that the gun was in working condition and that five cartridge were live. What was found in the gun were two empties and not live cartridges and, therefore, it was not proper to presume that it was in working condition. In absence of any evidence to that effect, the conviction of the appellant under both these aforesaid Section cannot be upheld. ........"
65. This Court in Dev Dutta and another vs. State, 2017 (1) ACR 604, following the aforesaid decision of their Lordships in a case relating to preparation to commit dacoity held thus:
"34. In view of what has been indicated herein above, I am of the opinion that the prosecution has miserably failed to prove the case against the appellants beyond reasonable doubt. Recovery of pistols and cartridges from the appellants are also doubtful in the absence of any C.F.S.L. report and benefit of doubt is to be given to the appellants."
66. In the present case the prosecution have hardly led any evidence, by securing appropriate ballistic opinion from the Forensic Science Laboratory, and, duly proving that opinion in court, or even caring to examine the constable who had custody of the weapon in the Police Station at the time of receiving it, to prove that the gun was in working condition and the cartridge, in the condition described in the memo of deposit of the fire arm at the Police Station. The fact that the cartridge was a misfired piece of ammunition, would, rather all the more suggest, that the gun/ country-made pistol was not in working order. This Court is, therefore, not at all in agreement with the findings of the learned Sessions Judge, readily inferring the recovery of a country-made pistol with a misfired cartridge in its chamber, to hold the charge under Sections 395/397 IPC read with Section 25 of the Arms Act, proved against the appellant. In the considered opinion of this Court, the prosecution has not at all proved the said fact.
(6) Motive for a false implication
67. It has been argued by Sri Vedmani Tiwari, learned counsel for the appellant that the informant, Dadu harboured enmity and ill-will against the maternal uncle (Mama) of the appellant, one Ganeshi Dhobi, also a native of Village Kaima. The circumstances in which the informant, Dadu came to harbour enmity against the appellant's maternal uncle is the fact that Ganeshi would work on the fields of first informant and his brother, Rup Chand as an agricultural labourer. He would be assigned the work of loading the produce on to the vehicle for transport to the place of storage. Ganeshi Dhobi would be made to work on very poor wages and saddled with work beyond his capacity. This led Ganeshi Dhobi to abandon his engagement at the fields of Dadu that caused souring of relations, and, consequent enmity between Dadu and Ganeshi Dhobi. The appellant would frequent his maternal uncle's place, that is to say, the house of Ganeshi Dhobi, and, was, therefore, well known to Dadu. It is submitted that Dadu and his brother, Rup Chand are evil minded and cruel. They found it to be a convenient part of their false story to implicate the appellant, that would lend support to their otherwise hollow case, with an apprehended dacoit in hand, and, on the other, would also work as a measure reprisal to settle scores with Ganeshi Dhobi. It is for this reason that the appellant who had come over to see his maternal uncle, Ganeshi Dhobi and was also about the place with other natives, hearing of the dacoity, that he was taken in by decoy, virtually abducted, and, handed over to the police.
68. It is further urged by the learned counsel for the appellant, that this aspect of the motive for a false implication, is part of a larger motive to implicate one of the accused, Chhote Lal @ Lulva, who was the target of it all. It is urged that the acquitted accused Chhote Lal @ Lulva had earlier been the victim of a gruesome assault by Dadu, the informant and his brother, Rup Chand where both hands of Chhote Lal @ Lulva were cut off. Dadu and Rup Chand were convicted, and, sentenced to 10 years' imprisonment, a term which they served out. It was to seek revenge for the imprisonment suffered, that they wanted to implicate the acquitted co-accused Chhotey Lal @ Lulva; and, the entire prosecution story was concocted to seek Lulva's conviction, where the appellant became a target of opportunistic false implication, fueled by sour relations between Dadu, and, the appellant's maternal uncle, Ganeshi Dhobi.
69. This Court, in order assess the worth of this submission of the learned counsel for the appellant, would consider it expedient to see, if at all there was any truth to the fact that the informant, Dadu and his brother, Rup Chand, were convicted of an offence involving Chhotey Lal @ Lulva, and, further if on that account, they harboured that kind of a serious enmity and ill-will against Chhotey Lal @ Lulva, that they could go on to the extent of weaving an entire plot to falsely implicate Lulva, since acquitted.
70. In this connection, the Court has perused the evidence of Dadu, PW-1, where in his examination-in-chief he has stated thus (in Hindi vernacular):
^^NksVsyky ls [ksr dh nqleuh Fkh NksVsyky ls ekjihV gqbZA NksVsyky dks ge yksx ekjs Fks mlesa ge yksxksa dks ltk gqbZ FksA ge yksxks ds ekjus ls NksVsyky ds gkFk dV x;s FksA**
71. In his cross-examination Dadu, PW-1 on the issue has stated (in Hindi vernacular):
^^esjh 4] 6 lky ls bl MdSrh ds igys ls nq'keuh py jgh gS NksVsyky ds ekjus dk tks eqdnek pyk Fkk mlesa eq>s 10 lky dh ltk gqbZ FkhA igyh okyh ekjihV esa NksVsyky ds nksuks gkFk dkV Mkys x;s FksA bl le; NksVsyky ds nksuks gkFk dksguh ds uhps ls dVs gq;s gS bldh ;g gh gkyr MdSrh ds le; Hkh Fkh] esjs f[kykQ ekjihV dk tks eqdnek pyk Fkk ml esa yqYyok mQZ NksVs us xokgh nh FkhA ekjihV 15 lky igys gqbZ FkhA ge yksx tc ltk dkVus ds ckn vk;s mlds nks lky ckn MdSrh iM+h Fkh yqYyok dksbZ vlygk ugha fy;s FkkA ds;ks fd blds gkFk gh ugha FksA yqYyok eksds ij ugha idM+k x;k Fkk ;g dguk xyr gS fd iqjkuh jaftl ls yqYyok dks >wBk eqdenk esa Qalk;k x;k gSA** (Emphasis by Court)
72. Likewise, Rup Chand, who is the brother of Dadu, the first informant has stated in his cross-examination (in Hindi vernacular):
^^yqYyok ls esjh iqjkuh jaftl gS yYyqok us ge yksxksa ds f[kykQ xokgh nh Fkh mldh xokgh ij ge yksxksa dks 10] 10 lky dh ltk gks xbZ FkhA ltk eq>s nknw] uudw ekrk izlkn vkSj dkerk dks gqbZ Fkh eSa nknw uudw o ekrk izlkn vkil esa lxs HkkbZ gSA tc yYyqok us esjs f[kykQ xokgh nh FkhA rc ge yksxks us ;g ugha dgk Fkk fd ge yksxks us yYyqok ds gkFk dkVs gSA cfYd fdlh nwljs dks dgk FkkA vc rks dg jgk gwW fd geh yksxks us yYyqok ds gkFk dkVS gS] yYyqok dks gh NksVs yky dgrs gSA yYyqok dk gkFk dkVus ls eq>s ltk gqbZ Fkh] blfy;s eSa ;g dg jgk gWw fd mldk gkFk eSaus dkVk gS rkfd yYyqok dks ltk gks tk;s vkSj og Hkh tsy dkVsA** (Emphasis by Court)
73. The aforesaid deposition by the two brothers, who are said to be the victims of this crime, Dadu and Rup Chand, does clearly indicate that they harboured enmity against the acquitted co-accused, Chhotey Lal, that had a long standing origin. The immediate cause of the enmity, that perhaps, led to a false implication for Lulva was the fact that he deposed against the informant, Dadu and his brother, Rup Chand in the case where his hands were chopped off by these two brothers. It is acknowledged by Rup Chand, PW-3 that on the statement of Lulva, two brothers who are PW-1 and PW-3, and, two other brothers were convicted and sentenced to a ten years term each, which they underwent. The present dacoity was committed, two years after the informant, and, his brother completed their terms of sentence.
74. It could be also said that Chhotey Lal @ Lulva, the acquitted co-accused had, in fact, as the prosecution goes against him, engineered this dacoity to take his back on the two brothers, who had chopped off his hands, and, not that, as urged by the appellant that the informant, and, his brother made up all this, to falsely implicate Chhotey Lal @ Lulva, to seek revenge for their ten years' sentence.
75. Going through the facts and circumstances on record, and, the evidence in this regard, this Court finds that it would be rather a remote chance for Lulva, in connection with whose loss of his forearms, the informant, Dadu and his brother, Rup Chand, besides two other brothers, had already suffered a sentence of 10 years in prison, that he would seek further revenge by planning a dacoity. In the occurrence that took place, persons immediately aggrieved were Dadu, PW-1, and, his brother, Rup Chand, who had recently come out of jail after serving a ten years prison sentence each for their rather cruel act of chopping off both hands of Lulva, the acquitted co-accused.
76. This Court thinks that Dadu, and, his brother Rup Chand, had a stronger motive to come up with a grand story, to falsely implicate Lulva in a case of dacoity, to seek revenge than the other way round, where the law had already avenged the wrong. This conclusion of the Court, is particularly buttressed by the evidence of Rup Chand, PW-3, in his cross-examination where he says that he had undergone a prison sentence on account of cutting of Lulva's hands, and, now, he was saying that he (Rup Chand) had cut off Lulva's hands, so that Lulva may also be convicted and also suffer imprisonment.
77. To the Court's mind, this part of the evidence is telltale, and, a clincher on the issue as to who had the motive to falsely implicate, at least, as regards Lulva. But, the further issue is whether on account of this enmity harboured against Chhotey Lal @ Lulva, can it be said that the appellant was also falsely implicated. Again, to this Court's mind, the fact that there was a sour relationship between the appellant's maternal uncle, Ganeshi Dhobi and the two brothers, Dadu and Rup Chand, it is not difficult to infer, that once the intention of Dadu and Rup Chand was to falsely implicate co-accused Chhotey Lal @ Lulva, they would have readily taken in a falsely apprehended dacoit to bolster the prosecution case, where otherwise, there was no evidence. In fact, all the other co-accused charged, have been acquitted.
(7) Who is the author and scribe of the First Information Report -
78. The fact is to how the First Information Report, in the present case came into existence, is particularly important to the worth of the prosecution case here, as it is part of the chronology of facts commencing with the dacoity, arrival of natives of the village, retreat of dacoits, the arrest of the appellant by the informant and other natives of the village, the subsequent events of taking the apprehended appellant to the house of PW-2, scribing of the First Information Report there (at the house of PW-2), the detention of the appellant over night at the house of PW-2, the transportation of the appellant in private custody, along with the informant and certain other natives of the village to the police station, and there, the handing over of the appellant to the police together with the written information that was registered at the Police Station, including the handing over the weapon recovered. In this sequence of facts, it is of cardinal importance to see when, where and by whom, the first information was scribed, and, who authored it.
79. In this regard the most important evidence is of the informant, PW-1, who is decidedly the author of the First Information Report. In his examination-in-chief it is stated (in Hindi vernacular):
^^nq[kh dks idM+dj c`teksgu ds njokts ys x;s ogka c`teksgu us dkxt fy[kk rgjhj ,Q0vkbZ0vkj0 ns[kdj dgk fd ;g gh dkxt gS ftls c`teksgu us fy[kk Fkk vkSj esjs fulku vUxwBk cuk;s FksA xokg dks jiV i<+dj lqukbZ xbZ dgk fd ;g og gh fjiksVZ gS ftls c`teksgu us fy[kk Fkk ftl ij bDt d&1 Mkyk x;kA**
80. The said witness, in his cross-examination, has stated about the person who scribed the First Information Report, and, the place (that would in the sequence of events include date and time of scribing it), where it was done. It is stated as follows:
^^;g dguk xyr gS fd eSaus Fkkus ij tkdj nhoku th dks lc ckrs crkbZ rc mu us fy[kk] Fkkus ij fjiksVZ fy[kkbZ Fkh] eksds dh tks tks ckr gqbZ Fkh mls nhoku th dks Fkkus ij crkbZ rc mUgksaus fy[kh] eSa crykrk tkrk Fkk nhoku th fy[krs tkrs Fks] j.k fot; flag chp esa ugha crk jgs FksA ;g dguk xyr gS fd yqYyqok MdSrh esa ugha Fkk cnyk ysus ds otg ls mldks ----- djus ds fy;s mldk uke >wBk fy[kk fn;kA** (Emphasis by Court)
81. PW-2, in his examination-in-chief, who is scribe of the First Information Report, according to the evidence of the informant, PW-1, also, so far as his deposition in the examination-in-chief goes, has said (in Hindi vernacular):
^^nq[kh dks idM+ dj eSa vius njokts yk;k] ogkW ij eSaus nknw ds cksyus ij rgjhj fy[kh o tks eSaus ?kVuk ns[kh Fkh mlds vk/kkj ij rgjhj fy[kh Fkh tks esjs ys[k o gLrk{kj esa gS] ,Dt d&1 ij xokg us vius nLr[kr o rgjhj dh luk[r dhA**
82. Now a reading of the deposition of Dadu, PW-1, and, Brij Mohan Singh, PW-2, there is a consistent stand that it was Brij Mohan Singh, PW-2, who during the night of the occurrence, at the house of Brij Mohan Singh scribed the First Information Report, at the dictation of Dadu, PW-1. To be more explicit, according to the stand of PW-1 and PW-2, in their examination-in-chief, the First Information Report was scribed by Brij Mohan Singh at the dictation of the informant, Dadu, PW-1. Brij Mohan Singh, PW-2, is as emphatic in his evidence as Dadu, that he mentioned every detail in the First Information Report that he scribed, and, is a document written in his hand, signed by him. So much of the stand of these two witnesses, in their examination-in-chief, is consistent as to the identity of the scribe and the author of the First Information Report; even the place, and, the approximate date and time, when the First Information Report was scribed. But, this stand of the prosecution is irreconcilable with what Dadu, the informant has said in his cross-examination, where he says, in one breadth, that it is incorrect to say, that he went to the Police Station and narrated all facts to the Head Constable there, who scribed the First Information Report, but in the next, he states in an irreconcilable contradiction to all that is said earlier, that he had gone to the Police Station to lodge a report; that whatever had happened at the place of occurrence, he had narrated it to the Head Constable at the Police Station who scribed the First Information Report; that he went on narrating it all to the Head Constable, who would in turn scribe it. Admittedly, Dadu, PW-1, who is the first informant, has come up with two completely different versions about who was the scribe of the First Information Report, as also the place and consequently, its date and, time of being scribed. Possibly, Brij Mohan Singh who is said to be scribe in the examination-in-chief, and, has acknowledged the fact in his examination-in-chief also, cannot be the scribe of the First Information Report, in case the First Information Report has been scribed by some Head Constable at the Police Station, upon the oral reporting of facts by the informant, Dadu.
83. This discrepant account about the genesis of the First Information Report was so intriguing, that it beckoned this Court to look into the original record. The record shows that the First Information Report is a handwritten document, which bears the thumb impression of Dadu, PW-1, with particulars of his name, parentage etc. mentioned, as the author of the First Information Report. It also mentions to the left the name, parentage and other details of Brij Mohan Singh, as the scribe of the First Information Report, though not his signatures, separately made, as said in his evidence. Assuming, that the First Information Report is in the handwriting of Brij Mohan Singh, he has written his name with particulars of his parentage etc. owning the document, as scribed by him. Thus, the name of his scribe, would for all practical purposes, be his signatures.
84. The Court has looked into the signatures of Brij Mohan Singh that are available on record, subscribed to in his evidence, before the Trial Court. A perusal of the signatures of Brij Mohan Singh on his deposition, shows that to sign he writes his name, as distinguished from some kind of illegible signatures. Thus, the name of his, that he has written on the First Information Report as its scribe, and, his signatures, are comparable specimens. This Court has compared the two. To the naked eye, the signatures of Brij Mohan Singh, on his deposition do not even remotely match with his hand and signatures, made on the First Information Report, said to have been scribed by him.
85. This Court is convinced that what Dadu has said in his cross-examination, is true that a Head Constable, or someone else at the Police Station, has in fact scribed the First Information Report, recording an account of the occurrence as narrated to him by Dadu. Brij Mohan Singh, does not appear to be scribe of the First Information Report, in the considered opinion of this Court.
86. Also, if the Head Constable at the Police Station had scribed the First Information Report, the fact that it is signed by Brij Mohan Singh, PW-2 as the scribe, renders the document suspect, manipulated and ante-timed.
87. From the above conspectus of facts, this Court is of considered opinion, that the prosecution has not been able to establish its case beyond all reasonable doubt against the appellant, and, the judgment and order of conviction impugned are, therefore, liable to be set aside and reversed.
88. In the result, the appeal succeeds and is allowed. The impugned judgment and order dated 03.11.1983 passed by the VII Additional Sessions Judge, Allahabad in Sessions Trial no.69 of 1982, State vs. Dukhi and others, under Sections 395, 397 IPC and in connected Sessions Trial no.70 of 1982, State vs. Dukhi, under Section 25 of the Arms Act, both relating to Police Station Manjhanpur, District Allahabad (now Kaushambi), are hereby set aside and the appellant is acquitted.
89. The appellant is in jail. He shall be released forthwith unless wanted in connection with any other case and subject to fulfilling the requirements under Section 437-A Cr.P.C. The proceedings initiated against the sureties, if any, shall be recalled and sureties shall be discharged.
90. A copy of this judgment along with trial court record be sent to the Sessions Judge, Allahabad for information and necessary compliance. Judgment be certified and placed on record.
Order Date :- 3.10.2018 Anoop