Dulare and Another vs State of U.P.

M.C. Jain, J.—Appellants are Dularey and Ram Autar. who have preferred this appeal against the judgment and order dated 22.12.1979 passed by Sri C.L.A. and. the then IInd Additional Sessions Judge, Mainpuri in Sessions Trial No. 406 of 1977 which had been decided with connected Sessions Trial No. 111 of 1978. The Appellant in connected Sessions Trial No. Ill of 1978 was Munna who was acquitted. The present Appellants have been convicted under Sections 364, I.P.C. and 395, I.P.C. The punishment of life imprisonment has been awarded for the offence punishable u/s 364, I.P.C. and five vears'' rigorous imprisonment has been awarded u/s 395. I.P.C. Both the sentences have been ordered to run concurrently.

The basis of the prosecution case was written First Information Report lodged by P.W. 1 Ram Shree at Police Station Ounchha. District Mainpuri on 14.6.1976 at 5.00 p.m. The occurrence took place in between the preceding night at about 12 or 1 O''clock in village Nilkanthpur. It was alleged that she and her children were sleeping in her house where a lantern was glowing. Her husband Baldeo was sleeping outside on Chabutra. The miscreants appeared at about 12 or 1 O''clock. 5 or 6 of them started belabouring her husband with butts of the guns. 5 or 6 others entered inside the house and started belabouring her to extract information about valuable articles. Some of them were wearing uniforms while others were wearing ordinary clothes. After ransacking the house, the miscreants looted her jewellery and clothes, the details of which were mentioned in the F.I.R. They also fastened her husband to a cot and abducted him. The present two Appellants were allegedly identified amongst the miscreants. A case was registered on the basis of such F.I.R., and the investigation was started. She was subjected to medical examination and as per injury report Ext. Ka-4 prepared on 15.6.76 at 11.45, four contusions and two lacerated wounds had been found on her person. After conclusion of investigation, a charge-sheet was laid, inter alia, against the present Appellants. They pleaded false implication.

At the trial, the prosecution examined seven witnesses in all out of whom P.W. 1 Smt. Ram Shree complainant. P.W. 3 Ram Singh, P.W. 4 Desh Raj and P.W. 5 Smt. Shakuntala Devi daughter of the complainant were examined as eyewitnesses. P.W. 2 Ram Sewak son of the complainant was also examined, though he was not present at the time of incident. Believing the prosecution story and evidence, the learned Additional Sessions Judge convicted and sentenced the Appellants by the impugned judgment. The matter is now in appeal before this Court.

We have heard Sri D.N. Wali, learned Counsel for the Appellants and learned A.G.A. We have also carefully waded through the evidence on record. On giving our thoughtful consideration, we find that there are conspicuous pitfalls in the prosecution case and the judgment of conviction and sentence passed by the Court below is not at all sustainable. We state the reasons for formulating such opinion in succeeding discussion.

The first point to be taken note of is that the F.I.R. is inordinately delayed. The incident took place in between night of 13/14.6.1976. but the F.I.R. was lodged as late as on 14.6.1978 at 5.00 p.m. The distance of Police Station was only five miles. The explanation for the late lodging of the F.I.R. tendered by P.W. 1 Smt. Ram Shree that her son was not at the house and the report could be lodged only when he returned, is not at all convincing. The facts as per the prosecution story were quite startling inasmuch as the husband of the complainant had been abducted by the miscreants after having been fastened at the cot. Besides, the dacoity had been committed in her house. She herself says that certain villagers, namely, Ram Singh and Desh Raj had arrived at the spot of the incident with torches. In these circumstances, the F.I.R. could and should have been lodged much earlier than at 5.00 p.m. on 14.6.1976 so that the police could swing in action to recover the abducted husband of the complainant. The late lodging of the F.I.R. is bound to generate an impression that deliberation and concoction had been made to nominate the Appellants as participants of the crime against whom the complainant has spoken of enmity also and who belonged to the same village.

Secondly, it does not sound to be convincing that the miscreants including the Appellants would commit the dacoity and would also abduct the husband of the complainant. The two alleged criminal acts are somewhat irreconcilable. If the dacoity was the mission of the miscreants, there could hardly be any reason for the abduction of the husband of the complainant. Indeed, the things have to be viewed keeping regard to the natural human conduct. It appears to us that a coloured and distorted version has been presented by the prosecution before the Court. Though the F.I.R. mentions the articles of jewellery and clothes allegedly looted by the miscreants, but, surprisingly, P.W. 1 Smt. Ram Shree has not stated anything in this behalf in her testimony before the Court. The two eye-witnesses P.W. 3 Ram Singh and P.W. 4 Desh Raj turned hostile. It is most doubtful that P.W. 5 Shakuntala Devi, married daughter of the complainant, was actually present at the time of incident at the house of her parents. We note that the F.I.R., does not mention her name specifically. Admittedly, she had been married earlier to the present incident. She stated that the dacoits had relieved her of the jewellery that was on her person. Nothing of the kind was stated by her mother P.W. 1 Ram Shree. This witness was also not injured. If the dacoits had forcibly snatched jewellery from her person in ordinary course, she would have received some injuries. Her statement had not been uniform on the point as to whether she was actually wearing some jewellery. Her presence at the time of the incident sounds to be doubtful.

Thirdly, admittedly, there was enmity between the two Appellants and the family of the complainant from before. The two Appellants belonged to the same village. The prosecution evidence is that they had come to commit the crime with open faces. It is not shown that they were of hazardous character and would have gone to commit the crime without taking steps to conceal their identity. One of them, namely, Ram Autar is the immediate neighbour of the complainant. She has stated that the roof of the house of Ram Autar is adjacent to that of Khanjan and Khanjan''s roof is adjacent to her own house. Dularey Appellant had allegedly assaulted the complainant and her sons earlier to the present incident as stated by the complainant''s son P.W. 2 Ram Sewak. A case in this regard was going on. The possibility cannot be ruled out of the Appellants having been falsely nominated in the First Information Report as participants of this crime owing to enmity factor, with regard to which, there is yet another factor. It has come down from the testimony of P.W. 1 Ram Shree complainant and her son P.W. 2 Ram Sewak that about 15-16 days before the incident, four persons had come and sat outside their house with Baldeo (husband of P.W. 1 Ram Shree and father of P.W. 2 Ram Sewak); they had been fired at and that they ran away after leaving their guns. They also stated that their guns had been taken away by Bharat and the present Appellant Ram Autar. Baldeo did not lodge any report regarding the leaving of guns by those four persons. The police came to know of it and searched the houses of Ram Autar and Dularey Appellants and they started suspecting that Baldeo had passed on information to the police and they started harbouring grudge against Baldeo on this score. So, the point of the matter is that there was bad blood between the families of complainant and Appellants from before. This could very well be the reason for their having been nominated as participants of this crime in the First Information Report lodged by P.W. 1 Ram Shree. This earlier incident of leaving guns by four persons outside the house of Baldeo (husband of P.W. 1 Ram Shree and father of P.W. 2 Ram Sewak) about fifteen or sixteen days before also smacks that those four persons might have come to the house of Baldeo in search and for recovery of their guns, suspecting that they were with him and this could be the possible reason of their abducting Baldeo in the hope of getting clue of their guns. We have related this possible angle as a passing reference since it appeals to reason in view of the admitted facts emanating from the own evidence of the prosecution.

The result is that the conviction of the Appellants recorded by the lower court is based on superfluous approach founded on evidence with no intrinsic worth. The judgment under appeal is unsustainable and is liable to be set aside.

For the discussion made hereinabove, we allow this appeal and set aside the conviction and sentence recorded against the Appellants by the impugned judgment. The Appellants Dularey and Ram Autar are hereby acquitted. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged.