Ganga Ram and others vs State of U.P.

Hon''ble Vinod Prasad, J.—A quadruple of appellants namely Ganga Ram, Chandra Pal, Jeewan and Ram Bahadur, have approached this Court through the instant appeal being aggrieved by their conviction and sentence recorded by VIIth Additional Session''s Judge, Bareilly in two connected cases S.T. No. 231 of 1979 (State Vs. Ram Bahadur) and S.T. No. 169 of 1979 (State Vs. Chandra Pal and others) dated 2.2.1981. Three of the appellants Ganga Ram, Chandra Pal and Jeewan were convicted u/s 395 I.P.C. and were sentenced to three years RI whereas appellant Ram Bahadur was convicted only for the charge u/s 412 I.P.C. and was imposed sentence of nine months RI, which convictions and sentences are under challenge in the instant appeal.

Pendent elite this appeal, two of the appellants Jeewan and Ram Bahadur expired and, therefore, their appeals abated. This now has left this Court to consider appeals of rest of the two surviving appellants Ganga Ram and Chandra Pal, who are maternal uncle (mausa) and nephew (bhatija) as Ganga Ram is brother-in-law (Sadhu) of Ved Ram, father of appellant Chandra Pal.

Prosecution story stated briefly were that on the intervening night between 25/26.10.1978, houses of informant Manohar Singh P.W. 1, Dwarka Prasad P.W. 2, Ram Swaroop P.W. 3 and Tula Ram were subjected to dacoity by 10 or 13 dacoits, who were armed with blunt objects, country made pistols and gun. Ornaments etc. were looted. Incident was witnessed by Jag Mohan Singh, Nandan Singh, Lal Singh, Mahipal Singh, Lakhan and Chhote. During the course of dacoity, inmates male and female of these houses were belabored by the dacoits, resulting in causing of injuries to three persons Smt. Dai (Ext. Ka-22), Ram Swaroop (Ext. Ka-23) and Smt. Kalawati (Ext. Ka-24). Investigation into the crime ultimately resulted in laying down a charge sheet against the accused persons. During course of the incident, site plan Ext. Ka-21 was prepared by I.O., who had also made recoveries which were proved during trial.

Case of the accused persons was committed to the Court of Session''s and to establish their guilt, prosecution examined informant Manohar Singh P.W. 1, Dwarka Prasad P.W. 2, Ram Swaroop P.W. 3 as fact witnesses. Rest of the formal witnesses included Dharamvir Singh P.W. 6, Nandan Singh P.W. 7, Kewal Ram P.W. 8, Raghunandan Lal P.W. 9, Ram Autar Arun P.W. 12, Udai Pal Singh P.W. 13, D.D. Dayal Jaiswal P.W. 14 and S.I. Bhawan Singh P.W. 17. Noted here is the fact that evidences of Ram Bahadur P.W. 4, Jagdev Prasad P.W. 5, Shri Ram Sharma P.W. 10, Ram Bahadur P.W. 11, Ram Chandra Verma P.W. 15 and Ramvir P.W. 16 were tendered on affidavits, which were taken on record by the trial Judge.

In their statements u/s 313 Cr.P.C., accused denied prosecution allegations and claimed their false implication because of enmity. In their defence, Arun Kumar Goel D.W. 1 was examined by the accused.

Trial Judge after marshaling of facts, critically appreciating evidences tendered before it, vide impugned judgment of conviction and sentence, came to the conclusion that charge against the three appellants Ganga Ram, Chandra Pal and Jeewan was established u/s 395 I.P.C. and, therefore, convicted them for the said charge imposing sentence of three years RI. Trial Judge further opined that the charge against appellant Ram Bahadur was established only for an offence u/s 412 I.P.C. because of the recovery of a transistor and, therefore, convicted him for the said charge and imposed sentence of nine months RI. For rest of the accused namely Ali Hussain, Mahendra and Babu Ram, trial Judge opined that prosecution had failed to establish the charge against these three appellants and, therefore, had acquitted them of all the charges.

On the aforesaid facts, this appeal came up for hearing before this Court after passing of decades. None appeared for the appellants and, therefore, Dr. Abida Syed, Advocate was appointed as Amicus Curiae to assist the Court and argue the appeal.

Castigating the impugned judgment of conviction and sentence, learned amicus curiae submitted that so far as two surviving appellants are concerned, they are close relatives. Appellant no. 2 Chandra Pal along with his father were a co-villagers and, therefore, because of enmity between the informant and the said appellant Chandra Pal that he has been falsely implicated in the incident. In this respect, reliance was placed on the testimony of informant Mahohar Singh P.W. 1 at paragraph 11 and statement of Dwarka Prasad P.W. 2 vide paragraph 3 of his depositions. It is submitted that Manohar Singh P.W. 1 is a liar as he intentionally concealed the truth of earlier litigation pending between appellant and them which fact had been admitted by Dwarka Prasad P.W. 2 in paragraph 3 of his deposition. It was further contended that in the earlier dacoity, Ved Ram father of appellant Chandra Pal was implicated. Prosecution did not bring on record any material as to what happened in the said incident but that happening indicates that there was no love labour lost between the two sides and there were litigations pending in between them. It is, therefore, contended that it is preposterous to cogitate that appellant Chandra Pal and his maternal uncle (mausa) will go and commit dacoity in the present incident. Castigating further, it is submitted that no specific role, weapon, attire etc. was spelt out by any of the fact witness so far as these appellants are concerned, and, therefore, their participation in the crime has not been established beyond any reasonable doubt. It is next argued that mere ipse dixit of fact witnesses, when enmity is admitted between the rival sides should not be taken to be sufficient enough, credible and cogent to convict the appellants. It was contended that in absence of reliable, confidence inspiring materials, parrot like statements of prosecution witnesses should not be taken to be sufficient to affirm guilt of the appellants and, therefore, they are entitled to acquittal. It is further submitted that nothing was recovered from the possession of these two appellants and, therefore, their participation in the incident is extremely doubtful. Learned amicus curiae went on to contend that a co-villager will not dare to commit dacoity in his own village specially in the house of his enemy to be roped in additional charge. Primarily on these submissions, it was contended that the appeal of both the appellants be allowed and their conviction be set aside.

Sri Sangam Lal Kesharwani, learned AGA per contra argued that the two appellants had veiled their faces which got untied during the incident and therefore they were identified. They had taken sufficient precaution to conceal their identities but providence was not on their side and they were identified. There was sufficient light of thatch burn, torches, lantern, which were not challenged by the accused and, therefore, identification of known persons during the incident, which must have occurred for quite sufficient time was not difficult. He was, therefore, submitted that the appeal lacks merit and be dismissed.

I have considered the arguments raised by both the sides. Perusal of the material and oral evidences of prosecution witnesses, indicate that the two surviving appellants Ganga Ram and Chandra Pal are named in the FIR. In their respect, the allegations were that they had come to commit dacoity after veiling their faces but during the course of the dacoity, in the midst of scuffle and brawl, their veil got untied and they were identified. But for the aforesaid statement, prosecution witnesses have not spelt out anything else in their respect. No role or specific weapon has been assigned to them. So much so that out of three dacoits, two were armed with country made pistols and one with gun but prosecution has not even cared to point out as to who were these dacoits and as to whether the two appellants Ganga Ram and Chandra Pal were armed with firearm or not. From their possession, no recovery of any looted article was made, which otherwise could have established their participation in the crime. It is also not very convincing that the appellants, who were resident of the same village and were known to the first informant and other fact witnesses will go and commit dacoity simultaneously in four conjunctive houses to be identified. They had no criminal proclivity nor they were involved in any other crime. It seems that in the earlier dacoity father of appellant no. 2 namely Ved Ram, who is brother-in-law (sadhu) of appellant Ganga Ram was implicated unsuccessfully and, therefore, informant had the opportunity of nailing two appellants in the subsequent incident only to wreck vengeance. Further it is at all not convincing nor there is any evidence led by the prosecution to that effect that with whom, these two appellants had a scuffle during the course of which, their veil untied. No witness had come forward to state such a duel. Further said allegation by the prosecution witnesses cannot be attached with any authenticity looking to the weapons, which were carried by the dacoits. Why the dacoits will have clemency and indulged into scuffle with house inmates is not understandable when they could have, saved their veiling of faces very conveniently. This view is further supplemented by the fact that, it was deposed that one of the dacoits, who was standing on the roof was constantly firing and, therefore, dacoits had no intention not to wield their weapons. In such a view, it is not understandable why the dacoits will allow the house inmates to have muscle flexing with them. Such an allegation by the prosecution, therefore, is wholly unnatural, unconvincing and cannot be attached with any credence.

It is also not appealing to reason that the dacoits will not be chased although according to the witnesses testimonies, villagers also resorted to firing. Naming of these two appellants, therefore, seems to be because the informant wanted to seek vendetta and, therefore, prosecution evidence does not establish the charge beyond all shadow of reasonable doubt against them.

In view of above, I am not satisfied that the prosecution has been able to establish charge against the appellants beyond any reasonable doubt and consequently, they are entitled to acquittal.

Appeal is allowed. Both the appellants Ganga Ram and Chandra Pal are hereby acquitted of the charge levelled against them. They are on bail, they need not surrender, their personal and surety bonds are discharged.

A copy of this judgment be certified to the trial Judge for it''s intimation.

Dr. Abida Syed, learned Amicus Curiae has rendered valuable assistance in deciding the appeal, which was pending since last three decades and, therefore, she is directed to be paid Rs. 8,000/- as her fees by the office of this Court.