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