Asha Ram vs State

M.C. Agarwal, J.—This appeal by Asha Ram is directed against the judgment and order dated 2741979 passed by the VIII Additional Sessions Judge, Meerut in Sessions Trial No. 105 of 1978 whereby the appellant was found guilty of an offence under Section 395, IPC and was sentenced to undergo R.I. for seven years.

The appellant was bailed out under order of this Court dated 341979 but since he did not appear at the hearing of the appeal on 1831998, his bail was cancelled and he was taken into custody and brought before this Court on 551998. He expressed his inability to engage a counsel, therefore, Sri N.I. Jafari an Advocate of this Court was appointed to assist the Court as amicus curiae on behalf of the appellant.

I have heard Mr. N.I. Jafari, Advocate and the learned Additional Government Advocate and have perused the record of the case.

The prosecution story briefly stated is that in the night between 1st and 2nd July, 1976 a gang of about 7 or eight persons committed dacoity at the houses of Rajey. Ram Gopal and Ram Kishan in village. Nabipur, Police Station Inchauli, district Meerut. These three persons and the first informant Kaushal are real brothers and Their houses are situated in one compound and adjoin each other. The dacoits were armed with Lathis, Kattas. Guns etc. and they committed dacoity for about one hour. During the course of the dacoity, they injured Ram Gopal and tortured the ladies of the house by giving them burn injuries with Mashals to extract information from them about the valuables. It is claimed that there were some lanterns burning in the house, in addition the dacoits were flashing torches and the Mashals prepared by them were also giving light. The appellant Asha Ram was alleged to be one of the dacoits. The allegation against him was that he was known from before and belongs to a neighbouring village.

At the trial several witnesses were examined. The conviction of the appellant is based on the evidence of Kaushal PW1, Ram Gopal PW3, Rajey PW4 and Ram Kishan PW5. A perusal of their statements show that the appellant was very well known to each of them and yet he is not alleged to have taken any precaution whatsoever to conceal his identity. The statements of these witnesses are silent on the point and there is no explanation why this person who was very well known and was even making purchases from the shop of Kam Kishan PW5 should have made no effort to conceal his identity. Then none of them assigns any positive role to the appellant and has not made any specific statement as to how a particular witness had the opportunity to identify him and what he was seen by the witnesses doing at the spot. None of them says whether he was amongst dacoits who stood on the roof threatening the villagers, whether he was the person who tortured the ladies with Mashal burns and whether he was the person who hurt Ram Gopal. Ram Gopal PW3 was injured in the occurrence. He stated that the dacoits did not allow him to move away from the cot where he was sleeping and that two of the dacoits remained standing near him. One of them was armed with a Lathi and the other with a Katta. He does not say that the appellant Asha Ram was one of those two persons. From his statement, it is clear that he could have no opportunity to identify the others. Rajey PW4 when in his crossexamination has admitted that when he woke up he guesed that there were dacoits in the house and therefore, he covered himself with a sheet of cloth (Khes) and remained so till the dacoits left. Later he clarified that because the villagers were saying that Asha Ram was amongst the dacoits therefore, he thought he was there. Ram Kishan PW5 also stated that he was on the roof and two dacoits remained standing near him. He managed to escape and went to the Gher of Channi. Although he says that Asha Ram was amongst the dacoits he does not clarify how he had an opportunity to see and identify him. Thus the evidence of these four witnesses was of a very perfunctory nature and required strong corroboration to be accepted. No such corroboration has been forthcoming in the case.

One Mange was examined by the Court and was examined as C.W. 1. He stated that he did not recognize any of the persons committing dacoity.

A report of the incident was lodged early in the morning at 6 a.m. and the police has not done anything in the matter. The investigation of the case was taken up by PW7, S.I. Nawab Singh. He stated that the accused Asha Ram surrendered in the court. The record shows that soon after his surrender he was granted bail by the Court. The statement of the Investigating Officer shows that he did not raid the house of the accused nor made any serious effort to arrest him. So much so that after appellant surrendered, he did not even move the Court to take him into police custody for interrogation and investigation.

This was a case in which a dacoity was admittedly committed and the inmates of the houses were hurt and tortured. There were seven or eight persons who participated in the crime. A responsible police officer must have made all efforts to find out who the dacoits were and to recover property. In this case apart from the appellant who was named in the first information report, identity of the other participants in the dacoity has not been discovered and no serious effort appears to have been made in that direction S.I. Nawab Singh has stated that the appellant was a previous convict and historysheeter. It appears that it was for this reason that the appellant was got booked in this case. Had he been really amongst the dacoits, it could not have been much difficult to find out the identity of his companions but no attempt was made in that direction and that speaks volumes against the prosecution.

The approach of the learned Sessions Judge in accepting the evidence of the aforesaid witnesses was of a mechanical nature and no analytical examination of the circumstances of the case was done to satisfy the Court''s judicial conscience that the appellant was really guilty of the charges. The appellant''s conviction therefore, cannot be sustained.

In the result, the appeal is allowed. The judgment and order under appeal is set aside and the appellant is acquitted of the offences under Section 395, IPC. He is in jail and shall be released forthwith unless required to be detained in any other case.

A certified copy of this judgment be transmitted to the court below alongwith the record forthwith for compliance. This order be also communicated to the Superintendent District Jail, Meerut for releasing the accused Asha Ram unless he is required to be detained in any other case.

Sri N.I, Jafari Advocate who assisted the Court as amicus curiae be paid the necessary fee as per Rules.