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Jag Mohan v. State Of U.P. - CRIMINAL APPEAL No. 413 of 1982 [2007] RD-AH 3685 (2 March 2007)


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Criminal Appeal No. 413 of 1982

1. Jagmohan

2. Ram Singh

3. Parmeshwari Dayal.............................................Accused   Appellants


State of U.P .........................................................Respondent

Hon'ble M. Chaudhary, J.

This is a criminal appeal filed on behalf of the accused appellants from judgment and order dated 11th of February, 1982 passed by Assistant  Sessions Judge, Hamirpur in Sessions Trial No.148 of 1979 State vs. Jagmohan & others convicting the accused  appellants under section 397 IPC and sentencing each of them to seven years' rigorous imprisonment and  a fine of  Rs 1000.00 thereunder.

Brief facts giving rise to this  appeal are that Raja Bhaiya alongwith his family resided  at village  Masgavan within the limits  of police station Bivar,  District  Hamirpur. At  about  7:00 p.m. on 14th of January, 1979 Raja Bhaiya alongwith  his son Surendra and one Ram Sanehi and Babu Ram was  warming  with  fire in the  Barotha at his house and  a glowing lantern  was   hanging  by the wall there that some 10-12  bandits  armed with firearms and lathis reached there. Some of  them caught  hold of  Raja Bhaiya and  Ram Sanehi  and tied  their hands  with  their respective  safis  and made  them  sit in Dugai.   Since  Ram Kali did not disclose  whereabouts of the property  the bandits  beat her and  set fire to her legs by  pouring  kerosene thereon.  Then  Ram Kali  disclosed that  some  six  hundred  silver  coins  were  embedded  in the ground  which   were  excavated..  The bandits  started plundering the   goods  by flashing  torches. Inmates  of the house  recognized  Jagmohan, Ram Singh and  Parmeshwari  Dayal among the  bandits  in the light of   glowing lantern and torches  flashed by the  bandits.  The  bandits   also  beat  Babu  Ram in order to know as to where  his gun  was kept in  that  house but he  told that it  was  deposited  at that time. On hearing the hue and cry some of the co-villagers  reached there and  fired shots with their respective weapons and some of the bandits  also fired  shots.  After ransacking the house  for about  one and half an hour the bandits ran away with the  looted  ornaments, silver  coins, clothes, utensils etc. The following morning  Raja Bhaiya   taking his injured wife  Ram Kali and Babu Ram  went  to police station Bivar  situate at a distance of eight miles from the village and lodged  an FIR of the occurrence with the police there at  10:00 a.m.  The police registered  a  case   against the accused and   unknown bandits under section 395 read with section 397 IPC and started the investigation.

Injured  Ram Kali and  Babu Ram were got medically examined   at  PHC Masgavan on 15th of  January, 1979 at  5:00 and 5:30 p.m. respectively.  Medical examination of injured  Ram Kali revealed  deep burn injuries  on her  both the legs involving  lower  half  of both the legs and half right  leg and  multiple blisters present on both the legs  containing  fluid and skin peeled of  around  left ankle joint.  There was smell of  kerosene. The doctor  opined that the   burn injuries  were caused  by heat burn and one day old  in duration.  

Medical examination of  Babu Ram revealed four contusions,  one on  back of his chest and two on right upper arm besides abraded contusion on inner border  on left  elbow  joint.

After  completing investigation  the police  submitted   charge sheet  against the accused accordingly.  

After framing of charge  against the  accused  appellants, the prosecution examined  Raja  Bhaiya ( PW 1), Ram Sanehi ( PW 2), Ram Kali    ( PW3) and Babu Ram ( PW 4) as eye witnesses of the occurrence. PW 5 HC Lalta Prasad  who prepared check report  on the basis of written report of the dacoity  handed over to him at the police station and made entry regarding registration of the crime in the GD proved these papers ( Exts  Ka 4 &  Ka 5).    PW 7 station officer Lal Singh Chandel who investigated the crime in main  proved the  police  papers.  On his transfer  investigation of the crime was  continued  by his  successor  station officer Santosh Kumar  Singh.  PW 6 SI Santosh Kumar  Singh who after completing investigation submitted  charge sheet  against the  accused  proved  the police papers.

The accused  pleaded  not guilty stating that  they were not a participants in the alleged dacoity and attributed their  false  implication in the said dacoity to animosity with Ganga Singh, brother of  Ram Kali.

On an appraisal of evidence on the record, the learned  trial judge held the  accused  guilty of the  charge  levelled against them and convicted   and sentenced  them as stated above.

Feeling aggrieved   by the impugned  judgment and order   the accused appellants  preferred this appeal for  redress.

Heard  Sri D.S.P. Singh, learned counsel for the  accused appellants  and  Sri Navin Shukla, learned  AGA for the   State  respondent.

After  going  through   the  impugned  judgment and  record of the case  the  Court is  reluctant to accept the   finding  of  conviction  recorded by the  trial  court as  it   does not appear to be   sound for the following  reasons:

Admittedly,  accused  Jagmohan,  Ram Singh and  Parmeshwari  Dayal used to reside   in same village  Masgavan in   which  Raja  Bhaiya resided at whose  house the dacoity was    committed .  None of the  eye  witnesses  examined  by the prosecution stated  that any of the bandits   was putting   on dhata or  wrapped  his face in order to conceal  his identity  at the   time of dacoity.  It is difficult to believe that a person   well known  to the   Co-villagers   would  go to  commit  dacoity at the house in his   own village  without  taking  any precaution  to conceal  his identity.  There is nothing on the  record to show  that  any of the  accused appellants had   any criminal   antecedents  or   was  a   daredevil  or  desperado   who could  have  gone   to  commit  dacoity in his own village  without  having   taken  any precaution to conceal his identity.  Further,   admittedly  Devi  Singh, father of  accused  appellant  Ram Singh  filed a  criminal complaint  against   Ganga   Singh, Lallu Singh  and  Jag Roop Singh,    all the  three  real brothers under  sections  323 and  325  IPC and   in that  criminal case   Jagmohan, the accused  appellant  appeared  as a  witness   against  them and that   criminal case   ended  in their conviction as all the three namely  Jag Roop Singh, Ganga   Singh  and  Lallu  Singh were  convicted  under  section 323  IPC and  sentenced   to   fine ( Ext Kha  1) thereunder. Admittedly Ganga  Singh,  Jag Roop  Singh  and  Lallu are real brothers of  Ram Kali who was married to  Raja  Bhaiya. Further,  admittedly  Munva son of  Parma  lodged  an  FIR  against  Ganga  Singh  and  Babu  Ram and  in that  criminal  case  Ram Singh  appeared  as  a witness against them. Thus  evidently  accused appellants  Ram Singh and  Jagmohan  who  appeared  as  witness against  Ganga    Singh, Lallu  Singh  and  Babu  Ram must  be on  inimical terms with  Raja  Bhaiya and his  wife  Ram Kali.  Under  the circumstances, the possibility can not be ruled out  that both Ram  Singh  and  Jagmohan  were  named  as a participants  in the dcacoity  committed   at the house of  Raja  Bhaiya on suspicion or  due to enmity.

Further, it  has  been argued  by the appellants' learned   counsel that  FIR of the  occurrence is much delayed  and the accused  appellants  were named in the  FIR after due  consultations and deliberations. Since the  dacoity was  committed at  the  house of  Raja  Bhaiya at  about  7:00 p.m. in the   winter  night  and  the  dacoits  ransacked  the house  for  about  one  and half an hour and the police  station was  situate at a distance of  about  eight   kms  from the village and the first informant taking  both  the  injured  went to the  police  station  in   bullock  cart  the  FIR  lodged  at the police  station at  10:00 a.m. the following  morning  can  not be said to be  delayed .  However, the possibility  that  Jagmohan, Ram  Singh and  Parmeshwari  Dayal  were  named   therein  after  due  consultation and  confabulation  can not be  ruled  out.  PW 4 Babu Ram deposed  that at  about  7:00 p.m. that  evening  he  was  warming  himself  with fire at the  house of  Raja  Bhaiya when  10-12  dacoits   armed with various   weapons  ransacked his house  and that  after  the dacoity he  stayed at the  house of  Raja  Bhaiya  for the whole  night and  went  with  him in the bullock cart  to the police  station.  PW 3  Ram Kali herself  stated in her  examination-in-chief that   hearing  the hue and cry Lallu rushed  to her house but the  bandits  made  him sit  out of her  house.  Lallu  abovenamed  is the real brother  of  Ram Kali  (PW 3). Being  real brother    of  Ram Kali he must have  stayed at her house  particularly when she  received  deep  burns   at her  legs at  the hands of the dacoits.  Under the circumstances, the  possibility can not  be ruled  out   altogether   that  all the  three  accused  appellants   were named in the   FIR after due  consultation and confabulation.

Furthermore,  it  has come in evidence that the   police challaned  Ganga  Singh, Munna  Singh son of  Raja   Bhaiya , Babu  Ram and his son  Ram  Shanker  and  six  others   under  sections  107 &  117 of the  Code of  Criminal  Procedure and  accused Ram Singh   was   cited as  a witness therein  ( Ext Kha  3).  On the  basis of  FIRs  lodged  by Munva son of  Parma  against the persons  abovenamded  the  police  challaned  the persons  abovenamed   and  six  others  including  Parmeshwari  Dayal. Now it  has  been argued  by the   appellants' learned  counsel that  Parmeshwari  Dayal   was also   arrayed with Ganga  Singh, Munna  Singh  son of  Raja  Bhaiya  and  Babu  Ram and thus  he  could not have  joined   hands  with  Jagmohan and  Ram  Singh  in committing the dacoity.  It  appears  that  since  Munva   has lodged   a  report  against Ganga   Singh  and  Babu Ram under  section 307 IPC in February, 1975 and  again  lodged  a  report  against   Munna   Singh  son of  Raja  Bhaiya,   Ganga  Singh  and  Babu  Ram and his son  Ram  Shanker under  section 436  IPC in April, 1978 the police  challaned  them under sections  107 and 117   Cr P C and joined  some   of the  co-villagers  with them  of  their  own.   Hence  the said  argument  advanced by the  appellants' learned  counsel has  not  got  much  substance.  But   still the  fact  remains that  accused  appellant  Parmeshwari  Dayal  was  arrayed  with  Ganga  Singh,  Babu Ram and  others  in the  proceedings under  sections 107 & 117 Cr P C.

Out  of four  eye witnesses  examined  by the prosecution  PW 1  Raja  Bhaiya and  PW 2  Ram Sanehi have not   supported the prosecution case against  any of the  accused  named in the  FIR.   PW 1  Raja  Bhaiya   stated in  his examination-in-chief  that since he  is short-sighted  he could not recognize  any of the   bandits in the   dacoity  the alleged night.  PW 2  Ram Sanehi  stated in his   examination-in-chief  that the alleged  evening  he  and  Babu Ram were   warming  themselves  with fire  in the   barotha of the  house  of  Raja  Bhaiya that  one of the  bandits  empowered  him and   then  he  could not  see  and recognize  any of the  bandits.  Both  these  witnesses were  declared   hostile  and   cross-examined  by the prosecution  with the   permission of the court  but to no use.    Now  remains  the testimony of  PW 3  Ram Kali  and  PW 4  Babu Ram.  PW 3   Ram Kali stated in her   examination-in-chief   that the  bandits tied hands of Raja Bhaiya  and  Ram Sanehi with their   respective  safis and  took her   in the  aangan and  burnt    her legs  pouring   kerosene  in order  to   know  whereabouts of the property and  then she told that  600 silver  coins were  embedded in the  ground there.  She   further  stated that  she  recognized   Ram Singh, Jagmohan and  Parmeshwari Dayal    in the light of  glowing  lantern  hanging in the  barotha and  in the   light of  torches  flashed by the bandits; that Ram Singh   was armed  with  DBBL, Parmeshwai Dayal   with SBBL and  Jagmohan   was  taking  a rifle  at that time and  that on hearing  the hue and  cry  some of the  co-villagers fired  with their  respective weapons   to pressurize   the  bandits   and then all the  three bandits abovenamed  also fired   with their  respective weapons.  However,  PW 7  SI Lal  Singh  Chandel  who inspected  the    scene of  occurrence   and prepared its site plan map  stated that he   did not find   any  empties  of the shots  allegedly fired at the scene of  occurrence.

Lastly, PW 3  Ram Kali  and  PW 4  Babu  Ram  do not appear to be   a truthful and   straightforward   witnesses. Admittedly Ganga   Singh, Lallu  Singh and  Jag Roop  Singh  are real brothers of  Ram Kali ( PW 3). However she  stated that she  did not  know if  Devi Sigh   filed   any criminal  case  against her  brothers  Ganga   Singh, Lallu  Singh and  Jag  Roop Singh and  if accused  Jagmohan  appeared  as   a witness  against  them.  She  further stated that she did not know if proceedings under sections  107 & 117   of  Code of  Criminal  Procedure  were taken   against   Ganga   Singh and  others  and accused  Ram  Singh   was a  witness against  them in that case. A perusal of the  document ( Ext  kha 3 )  goes to show that in those criminal proceedings  under sections  107 & 117 Cr P C Munna   Singh son of   Raja  Bhaiya (PW 3) was also   challaned.   Likewise,  PW 4  Babu Ram   stated in his cross-examination  that  he  accompanied  Raja Bhaiya  when he   went to  the police  station  to lodge   FIR of the   dacoity but  Lallu  Singh   had not  accompanied them to the police  station whereas a perusal of the  GD entry   ( Ext  ka 5 )   goes to show that  Lallu Singh  had also  accompanied  Raja  Bhaiya and  Babu  Ram  in the bullock  cart when they   had    gone to the  police  station to lodge  FIR of the  dacoity.

For the foregoing reasons,  the Court is of the view  that implicit  reliance can be  placed on the interested  testimony of  PW 3  Ram Kali  and PW 4  Babu Ram, and hence  benefit of doubt   is extended to  accused  appellants  Jagmohan,  Ram Singh   and Parmeshwari Dayal, and  they  are   entitled to acquittal.

The  appeal is allowed and the impugned  judgment and order  convicting accused  appellants   Jagmohan,  Ram Singh   and Parmeshwari Dayal under  section 397  IPC  and  sentencing  them thereunder is hereby  set aside.  Accused appellants  Jagmohan, Ram Singh and  Parmeshwari  Dayal  are acquitted of the charge levelled  against them.  They are on bail.  Their  bail  bonds  are hereby discharged.  

Judgment  be  certified   to the  Court  below.

Dated: 2nd of  March, 2007

Crl Appeal No.413 of  1982


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