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Ishwary & Others v. State Of U.P. - CRIMINAL APPEAL No. 3045 of 1981 [2006] RD-AH 1402 (19 January 2006)


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CRIMINAL APPEAL NO. 3045 of 1981

Ishwary and another Vs. State of U.P.

Hon'ble Mukteshwar Prasad J.

This appeal by two accused Ishwary, son of Shyam Lal, and Ram Pal, son of Sundar Lal, is directed against the judgment and order-dated 28.11.1981 passed by the then 1st Additional Sessions Judge, Farrukhabad whereby he convicted both the accused under Section 395 read with Section 397 of the Penal Code and they were sentenced to suffer rigorous imprisonment for a period of nine years.

Appellant no.2 Ram Pal, son of Sundar Lal, expired during pendency of this appeal and his appeal abated vide order of the court-dated 16.12.2003.

In brief, the prosecution story runs as under.

P.W.1 Kunwar Singh, son of Ganga Singh, and P.W.3 Visheshwar Singh are brothers and they lived in village Singhpur, P.S. Gursahaiganj, District Farrukhabad. The wife of Visheshwar Singh had delivered a child. Both brothers lived separately and their houses faced towards east. At the time of dacoity, the southern wall of their house was dilapidated and southern side of the house was enclosed with a tatia.

At about mid-night intervening 8/9th October, 1978, Kunwar Singh, his mother Smt. Revti, his wife and wife of Visheshwar Singh were all sleeping inside the house. P.W.3 Visheshwar Singh was sleeping at his door. On account of delivery, an earthen lamp (Dibbi) was burning inside the house and a lantern was also burning at the door. At about mid night, 11-12 miscreants entered into the house with a view to commit dacoity. They caught hold of Kunwar Singh and his mother and assaulted them and made enquiries regarding valuables. One of the dacoits reached the roof of the house through a ladder and indulged in intermittent firing. The dacoits were flashing their torches in the course of dacoity with a view to search the valuables and were coming and going outside the house. They ransacked the house. On the alarm raised by inmates of the house and after hearing sound of firing, a number of villagers, including Ajay Pal Singh, P.W.2 Harish Chandra, Munnu Singh and Pritam arrived there flashing their torches. They concealed their presence and challenged the dacoits. Sundar Lal, son of Ajay Pal Singh, reached his roof with licensed gun of his father and fired several shots. P.W.3 Visheshwar Singh set fire in the heap of patel which was lying in front of the door of Natthu Singh which created sufficient light. After committing dacoity in the house for about an hour, all the dacoits went out of the house and ran towards east. The members of the family and other villagers could not dare to chase them on account of firing. Out of the dacoits, Lala Ram, Ram Pal and Ishwary were identified correctly. Ishwary Kachhi, a resident of village Badhaura, was armed with a Tamancha in the course of dacoity. He was wearing a red T-Shirt and a nekar (half-pant). Almost all dacoits were quite young.

The dacoits looted silver and golden ornaments, utensils clothes and a wrist watch worth Rs.250/- from the house of Kunwar Singh. They looted a double barrel gun, silver and golden ornaments, clothes, etc. from the house of Visheshwar Singh.

Next morning, Visheshwar Singh gave details of the articles looted from his house to his brother Kunwar Singh who dictated a report of the dacoity to one Brij Kishore, a resident of village Unimaugh. The informant accompanied by his brother Visheshwar Singh, his mother Smt. Revti and Shiv Ram left the village for Police Station on a bullock cart and handed over his written report at the police station.

P.W.4 H.C. Ram Swaroop prepared chick repot and registered a case at crime no.374 under Sections 395 and 397 I.P.C. at 11-45 A.M. and entry was made in the G.D. at serial no. 24.

Both Kunwar Singh and Smt. Revti were sent to Government Dispensary, Gursahaiganj for medical examination of their injuries where P.W.5 Dr. A.K. Rastogi examined the injuries of Kunwar Singh at 12-30 P.M. on 9.10.1978 and found one lacerated wound, one abraded contusion and two abrasions on different parts of the body.

Dr. Rastogi further examined Smt. Revti on the same day at 12-45 P.M. and found one contusion on the left scapula and one contused swelling on the lower lip.

All injuries of both the injured were caused by hard and blunt object, were simple and were about ½ day old at the time of examination.

The case was investigated as usual by S.I. Krishna Mohan Chauhan. He interrogated Kunwar Singh at the Police Station itself and his mother Smt. Revti in the hospital. He interrogated Visheshwar Singh also in the hospital and thereafter reached the village in question. P.W.2  Harish Chandra was also interrogated by the I.O. on the same day and after inspection of the house, he prepared a site-plan. He recovered one danda, patel and two used cartridges and prepared Fard. He saw torches of the witnesses and gave them in their Supurdagi. The I.O. saw the dibbi and lantern and found them in working order. Accused Ishwary was arrested by the police on 10.10.78 and was interrogated. After completing investigation, a charge sheet was sent in the court.

After committal of the case, accused Ram Pal and Ishwary were charged together under Section 395 read with Section 397 of the Penal Code on 17.7.81 to which they pleaded not guilty.

In order to bring home the charge against the accused, the prosecution examined P.W.1 Kunwar Singh, who is informant, injured and victim of dacoity, P.W.2 Harish Chandra is a co-villager of the informant and is said to be an eyewitness, P.W.3 Visheshwar Singh is real brother of the informant and another victim of dacoity, P.W.4 Ram Swaroop, P.W.5 Dr. A.K. Rastogi and P.W.6 S.I. K.M. Chauhan are formal witnesses and proved F.I.R., entry in the G.D., injury reports of Kunwar Singh and Smt. Revti and other relevant papers.

Accused Ishwary in his statement given in the court totally denied his complicity in the alleged dacoity and pleaded his false implication on account of enmity. The defence version is that he is Kachhi by caste and owned about 80 Bighas agricultural plot. He used to sell vegetables in the villages and had quarreled with Visheshwar Singh. Moreover, Visheshwar Singh took away Patel and altercation had taken place. No evidence was led in defence.

After having considered the entire material on record, learned trial Judge found accused Ishwary guilty for committing an offence punishable under Section 395/397 I.P.C. and convicted and sentenced him as mentioned above.

I have heard learned counsel for the appellant at length, learned A.G.A. and have gone through the record carefully.

Learned counsel for the appellant has assailed the judgment in question mainly on the grounds that appellant is a resident of village Badhaura situated at a distance of one mile only from the informant's village (where dacoity was committed) and as such, he was well known to the witnesses and other villagers. He however took no precaution to conceal his identity during dacoity and this fact alone falsifies the entire prosecution case. It was further contended that there was delay in lodging the F.I.R. at the Police Station situate at a distance of five miles only and no recovery of looted articles was made from the possession of the appellant. It was urged that there was no light available to Kunwar Singh in which dacoits could be identified and in fact the witnesses got no opportunity to recognize the faces of dacoits.

Reliance was placed on the following two decisions.

1- Sibte Asgar alias Daroga Vs. State of U.P. 1982 U.P. Criminal Rulings 219.

2-  Asha Ram Vs. State of U.P. 1998 (37) ACC 312.

On the other hand, learned A.G.A. has supported the judgment and submitted that the surviving appellant was well known to the villagers, including the informant and as such, they had no difficulty in identifying him correctly on the impugned night. The trial Judge committed no illegality in convicting the appellant and this appeal is liable to be dismissed.

I have given my anxious consideration to the entire submissions made on behalf of the parties. I have also perused the entire record carefully. The first question is whether a dacoity was committed at the house of Kunwar Singh and his brother in the night in question and the dacoits took away valuables and other articles from their houses. The dacoity is said to have taken place at about mid-night. There is clear and reliable evidence of the eyewitnesses on record that next morning Kunwar Singh dictated a report to Brij kishore at his house and before dictating the report Visheshwar Singh gave details of the articles to his brother. The informant left his village alongwith other for Police Station at about 9-00 A.M. and reached there at about 12 O'clock. The Police Station is situated at a distance of five miles from the informant's village. In this view of the matter, I find that no delay took place in lodging a report of the incident at the Police Station. It will not be out of place to mention that two persons of the informant family, including him sustained injuries in the course of dacoity and local police sent them for medical examination. Dr. Rastogi found injuries on their bodies and proved injury reports. I therefore see no reason to take a different view on this point and hold that a dacoity was committed at the house of Kunwar Singh on the impugned night in which he and his mother were assaulted at the hands of dacoits. The I.O. too found used cartridges, ash of the patel, etc. on the spot when he visited the village on 9.10.78.

Now the second relevant question is whether the appellant was amongst the dacoits who committed dacoity at the house of Kunwar Singh and took away the ornaments, etc. Admittedly, the appellant is a resident of neighboring village and he resided in village Badhaura situate at a distance of one mile only. The informant asserted that village Badhaura was on one side of Kali River and he resided in village Singhpur situated on the other side of the river. He totally denied that some altercation had taken place between him on the one hand and Ram Pal and Ishwary on the other and he falsely implicated on account of enmity. Kunwar Singh remained inside his house throughout dacoity. He and his mother were caught hold of dacoits who assaulted them also. An earthen lamp was burning inside the house and the dacoits were also flashing their torches with a view to search out the articles. I therefore see no valid reason to disbelieve his testimony. In my opinion, he got an opportunity to recognize the faces of dacoits, including the appellant because the appellant was well known to him since before the dacoity.

P.W.2 Harish Chandra, who is named in the F.I.R. as one of the eyewitnesses, fully supported the prosecution version and claimed that he armed with a lathi reached there and was flashing his torch. He took his position under Neem tree situated towards east of the house of Visheshwar Singh. Both Harish Chandra and Visheshwar Singh gave out that Visheshwar Singh set fire to the heap of Patel which created sufficient light. Besides, a lantern was also burning towards east of the house quite adjacent to the main door. Thus, I find that light created by torches, Patel and lantern was available to the villagers, including the witnesses, which was sufficient for identifying the dacoits correctly. It is noteworthy that a known person may be identified by any witness even in the dim light. P.W.3 Visheshwar Singh, who was sleeping at his door, corroborated the testimony of his brother and claimed to have set fire to Patel lying at the door of Natthu Singh. He too claimed to have identified the appellant correctly on the fateful night because he was well known to him. All the three witnesses gave out that Ishwary was having a Tamancha during dacoity. Visheshwar Singh gave details of the articles to his brother which was looted from his house. Learned counsel for the accused made an unsuccessful attempt in the trial court to show that appellant was falsely implicated on account of enmity. In my opinion, learned defence counsel totally failed in his attempt. This opinion of mine finds support from the assertion made in the F.I.R. itself. It is noteworthy that Kunwar Singh mentioned in his report itself that Ishwary was having a Tamancha in his hand and was wearing a T-Shirt and nekar and remaining dacoits were wearing Banyans and under wears. Moreover, the dacoits ransacked the house for about one hour. It means, witnesses got sufficient opportunity to see the faces of dacoits who were committing dacoity. It is true that no recovery was made from the possession/house of Ishwary. However, non-recovery of any looted article from his house does not show that he did not participate in the dacoity.

After close scrutiny and scanning of the evidence on record, I hold that learned trial Judge committed no error in appraisal of the evidence led by the prosecution and was wholly justified in convicting the appellant. So far muffling is concerned, it might be that dacoits had muffled their faces at the time of entering into the house and in the course of dacoity their faces opened and they could be identified. I am, therefore, not prepared to attach any significance to this argument that appellant had not taken any precaution to conceal his identity. So far the case of Sibte Asgar is concerned, his house was hardly at a distance of 15 paces from the house where a robbery was committed.

So far sentence is concerned, the trial court sentenced the appellant to undergo rigorous imprisonment for a period of nine years. The dacoity was committed in the month of October, 1978 and since then more than 27 years have elapsed. The appellant was about 28 years old in the year 1981. Now he must be more than 50 years old. In this view of the matter, I hold that minimum sentence prescribed under Section 397 I.P.C. will meet the ends of justice.

In the result, the appeal is partly allowed. The conviction of appellant Ishwary alias Ishwar Dayal under Section 395 read with Section 397 of the Penal Code is maintained. He is sentenced to undergo rigorous imprisonment for a period of seven years only. The appellant is on bail. His bail is cancelled. He shall be taken into custody and lodged in Jail to serve out the sentence.

A certified copy of this judgment alongwith lower court record shall be sent to the court below for information and compliance of the aforesaid order. Compliance report shall be submitted to this Court within two months from the date of receipt of the record.

Date : 19th, January, 2006



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