Jagannath (in Jail) vs State of U.P.

Both these appeals were filed by Jagannath, Jairam and Nanka against their conviction u/s 396, I.P.C. and consequent sentence of R.I. for life, passed by the v. Ith Additional Sessions Judge, Fatehpur, vide his order dated 28.4.1981 in S.T. No. 149 of 1979.

The brief facts giving rise to the occurrence are that on the night intervening 26/27.10.1978 a dacoity was committed in the houses of Mahadeo Singh. Ram Asrey Singh and Deshraj Singh. Initially 4-5 dacoits jumped into the aangan (inside courtyard) of Mahadeo''s house by scaling its rear wall. Mahadeo Singh at that time was sleeping in the inner verandah where other family members including females were also asleep. His brother Sahadeo Singh was sleeping outside the house under open sky in front of his main door, which was bolted from inside. 6-7 dacoits surrounded him. They started belabouring him with lathis. The alarm raised by Sahadeo Singh and also the thud sound created by jumps of the miscreants in the aangan awakened Mahadeo Singh. He opened the main door and stealthily swept past the dacoits, who at the time were belabouring Sahadeo Singh in front of his house. He came to the house of Deshraj situate at a distance of 40-50 hands. Some pual was lying near the house of Deshraj. He set it afire in the meantime. Mahadeo concealed himself behind the wall of the house of Ram Asrey. He witnessed the entire incident from there. The alarm raised by him from here attracted Dharamraj Singh, Deshraj Singh, Ram Asrey Singh, Sheo Kumar Singh, Budhraj Singh, Raj Bahadur Singh, Malkhan Singh and many other villagers to the spot of occurrence. These villagers, while rushing to the spot, were also flashing their torches. The dacoits in the meantime continued loot (plunder) in the house of Mahadeo. Thereafter they looted the houses of Ram Asrey Singh and Deshraj Singh.

Three of the miscreants were covering their faces with pieces of cloth (Dhatas). Their Dhatas fell down in the scuffle with Sahadeo Singh. They were identified by Mahadeo and deceased Sahadeo as Jagannath son of Sheo Das Kurmi, Jairam son of Mahadeo Gadariya and Nanka son of Dhani Khatik. All residents of nearby village. Sahadeo Singh called them by their names and told them that he had identified each one of them and will see them in the morning. Appellant Jairam then asked his accomplices that his living alive is dangerous. He shot at Sahadeo''s chest. As a consequence he fell down and died on the spot. The villagers hurled brickbats on the dacoits. In retaliation two miscreants who were on the roof opened fire causing injuries to Ram Asrey Singh, Raj Bahadur Singh, Budhraj Singh and many others. The miscreants have also taken away the licensed single barrel gun and belt of cartridges of the brother-in law of Ram Singh. When the licensee from the nearby villages arrived at the spot and opened fire on the miscreants, they decamped with the booty. According to F.I.R. the miscreants were identified by the witnesses in the light of the burnt Pual, lantern and torches.

10 persons suffered injuries in the firing. Some of them sustained firearm injuries and other suffered blunt object injuries including some of the inmates of the house of Mahadeo. They were all medically examined by Dr. Prakash Joshi in the District Hospital on 27.10.1978 between 1.00 p.m. and 3.30 p.m. These injury reports are Exts. Ka-11 to Ka-20.

The post-mortem examination on the dead body of Sahadeo was conducted by P.W. 5 Dr. Som Sharma on 28.10.1978 at 11.00 a.m. at the District Hospital, Fatehpur. The post-mortem examination report is Ext. Ka-10. 26 pellets were recovered from the right lung, 20 pellets from the left lung and 14 pellets from the heart of deceased Sahadeo. A wadding piece was also recovered by the Medical Officer.

The case was investigated by P.W. 7 Ram Mohan Ram, who also prepared the inquest memo and despatched the body of Sahadeo for post-mortem. After completion of the investigation he submitted the charge-sheet, Ext. Ka-29, against these accused persons.

Accused Jairam and Jagannath surrendered in the Court before 23.12.1978. Nanka was apprehended by the Investigating Officer the very next day from his village from the tube-well.

After conclusion of the trial on an appreciation of evidence the trial court came to the conclusion that the incident did occur at midnight on the date of occurrence. He also came to the conclusion about the participation of these three Appellants in the said incident of dacoity in the houses of Mahadeo, Ram Asrey and Deshraj. Therefore, the convictions followed, as earlier discussed.

So far as these Appellants are concerned, Jairam came out with the defence that his father''s land was fraudulently obtained by a fictitious sale deed by the named witness Deshraj in the impugned F.I.R. A suit for cancellation of the sale deed was filed. Since then Deshraj is nursing grudge against him and his father. He was nominated in the incident on account of that litigation. Appellant Jagannath alleged that his elder brother Kanhai had a quarrel in a dangal (kusti contest) with Mahadeo, Sahadeo, Deshraj and Ram Asrey about a month before this occurrence. In that connection his brother Kanhai had made an application against these persons to S.P., Fatehpur. That was enquired into. On account of that he has been nominated in this case. It has also come in evidence that his brother was murdered in a police encounter before the incident. So far as Nanka is concerned, his defence is that he was employed with Tej Pratap Singh, Pradhan of the village of dacoity i.e., Nasirpur. He was working as Halwaha of Tej Pratap Singh and at his instance he was involved falsely in the impugned offence.

We have perused the evidence of three eye-witnesses, who were examined in support of the prosecution case in the trial court, viz., P.W. 1 Mahadeo Singh, P.W. 3 Ram Bahadur Singh and P.W. 4 Dharamraj Singh.

So far as P.W. 3 Ram Bahadur Singh is concerned, we find that he did not state about any scuffle between the dacoits and deceased Sahadeo, brother of Mahadeo Singh. He further stated that when he reached the spot of occurrence he found the Pual burning. He also noticed Sahadeo Singh lying on the ground in front of his house underneath the Chabutra. Two miscreants were keeping vigial at the house of Mahadeo. One of them was armed with a gun and other with a country made pistol. Two other miscreants armed with gun were keeping vigil from the roof of Mahadeo. Other 9-10 miscreants were committing loot (dacoity) in the house of Mahadeo. They were frequently going in and coming out. It is not stated by any witness that these miscreants were collecting outside the house of Mahadeo looted booty. This is a very significant omission in their statement. If they were not doing so then the question of their coming out and going in does not arise. The miscreants first looted the house of Mahadeo then Ram Asrey and thereafter Deshraj''s houses. It is also relevant to point out that all these witnesses claimed that they were standing near the house of this Deshraj. The distance between Mahadeo''s house and Deshraj''s house is over 40 hands. The house of this witness is about two houses from the house of deceased Sahadeo. According to him, all his brothers came to the spot. He further stated that when he reached the house of Mahadeo, dacoity was going on there. Some 4-5 persons were present at the spot where he concealed himself. They were standing by the side of the house of Deshraj in the south. They have recognised all the miscreants from that spot. He alleged that he received injuries at that very spot. He further stated significantly that after half an hour of his reaching the spot he sustained injury. According to him the distance between the place where he was standing and the house of Mahadeo was 50-60 hands. He alleged that when he suffered injury dacoits were committing loot in the house of Ram Asrey. He further alleged that when he along with others reached the spot the dacoits opened fire. The dacoits standing on the ground opened fire. The dacoits on the roof of Mahadeo also fired at them. Some other dacoits fired from the roof of Ram Asrey as well. He retreated after suffering injury some 4-6 hands from the spot where he initially was. He claimed that he identified Appellants Jagannath and Jairam when they were retreating with the booty. When he saw them they were near the neem tree. They were in the north of the neem tree. According to him the dacoits did not retreat briskly even after completion of the dacoity and fires opened by licensee of the neighbouring village. They were moving slowly. When he came to the spot Deshraj was already near the house of Jai Ram in its south. His door was open. The doors of the house of Ram Asrey was also open. He admitted that village Belwara is nearest to their village but none from Belwara came to the spot. He denied any enmity of any person of his village, viz., Mahadeo, Deshraj, Ram Asrey or any other person with any member of village Belwara. According to him members of the village Belwara came to the spot in the morning after the occurrence was over. They did not have any talk with the members of village Belwara about the incident.

From his statement, it is amply clear that when this witness reached the spot, Sahadeo Singh was already lying dead. Further, it is apparent from his statement that at that time, house of Ram Asrey was seized by the dacoits. They were committing loot there. He suffered injury at this juncture. The pual was burnt in between the house of Mahadeo and Deshraj. Its distance from the house of Mahadeo was about 40 hands. Thus, in the light of this burning pual it will not be possible for these witnesses to see the miscreants stationed at the house of Mahadeo. Moreover, he is not a witness of any scuffle between Sahadeo and the miscreants in which the dhata of these three Appellants was claimed to have fallen. Therefore, even if this witness''s presence is accepted, it would be difficult for us to believe that he had pierced through the strong pal of glow of pual to identify the miscreants who were committing dacoity in the house of Mahadeo including these Appellants. Very candidly he stated that he had identified these Appellants amongst the miscreants when they were retreating with the booty. From his statement it is clear that despite the firing resorted to by licensee, who came from a nearby village the miscreants did not retreat briskly. It leaves hardly any room for doubt that no such fire was resorted to from the side of the prosecution, as alleged by this witness. No such spent cartridges were recovered or handed over by any of these licensees to the Investigating Officer on his arrival in the village. Thus, any firing by the villagers who came from a distance of 6-8 furlongs is not probable. Moreover, admittedly, Belwara was the nearest in distance but the witnesses deliberately denied arrival of any licensee from this village for the reason best known to them though person having weapons live in this village.

In the light of the facts and circumstances and the statement of P.W. 2 Dev Krishna Verma, we would like to examine the statement of P.W. 1 Mahadeo Singh, who claimed that he was sleeping inside the house in the verandah where other members of the family were also asleep. He was awakened by the alarm raised by Sahadeo and also the sound of thud created by the jumps of the miscreants, who entered the house by jumping over the wall. He further claimed that he stealthily went past the dacoits stationed at his main door after opening it where his brother Sahadeo was sleeping and was assaulted by 6-7 miscreants with lathis and dandas. Complete absence of any lacerated wound or a contusion on the person of Sahadeo makes it impossible for us to accept his version that his brother was belaboured by 6-7 dacoits with lathis and dandas. According to him some 6-7 blows of lathis were given to his brother. There were only some abrasions on the person of the deceased other than firearm injuries. If he was assaulted with lathis, some contusion ought to be there, if no laceration. The dacoits exhibited no compassion for Sahadeo. Apart from this, it is his case that the night was dark and the distance between him and the house, i.e., Deshraj''s house, where he concealed himself in the south behind its southern wall was nearly 50-60 hands, as admitted by P.W. 2 though this witness himself revealed the distance to be about 40 hands. In this view of the matter, the distance was not less than around 100 feet. It would be next impossible for this witness to identify the miscreants especially when in between there was a strong glow of the burning pual. Identification of these three Appellants who were covering their faces with dhatas, in our opinion, was totally ruled out. The story of scuffle, therefore, was an ingenuity on the part of prosecution. It was introduced just to afford them an opportunity to identify these three known persons, some of whom were residents of the nearby villages like Belwara, etc. In the evidence he further stated that so far as his memory goes only 2/3 dacoits were belabouring his brother. He cleverly stated in the cross-examination that the place where he was standing no fires were made by dacoits, despite his raising alarm. This in, our opinion, is unbelievable because as soon as other villagers arrived near the scene of incident raising alarm they were fired upon by the miscreants. He did not suffer any injury in the incident whereas Ram Bahadur Singh, who was standing nearby him had suffered firearm injury. This clearly makes out that the dacoits did fire towards them. From these facts and circumstances, it is apparent that this witness was not present near the house of Deshraj. Some others, who were at that place had suffered injuries from the fires made by dacoits. Had he been amongst them, he must have also sustained injuries. Complete absence of any injury on his person further lends corroboration to the fact that he was not present at the spot, as alleged by him. He had admitted that Appellant Jairam is a Pahalwan and he used to visit his house frequently. There was no enmity between him and his dead brother Sahadeo and this Appellant. He feigned ignorance about any civil litigation between Deshraj and the father of this Appellant Jairam. This is, in our opinion, a false statement. Deshraj belongs to his own community and appears to be related to him as well. He further stated that he knew Jagannath, brother of Kanhai. He also admitted that a Dangal (wrestling contest) takes place every year in the month of Bhado (July-August). He admitted that a dangal was held before this dacoity in the same month, but claimed that he did not participate or went there to see that Dangal. According to him, he had gone to Chittrakoot for Darshan. He denied that any quarrel between him and his deceased brother Sahadeo took place with Jairam and Kanhai in that Dangal. We have documentary evidence on record filed by this Appellant to establish these facts. They are Exts. Kha-1 to Kha-3. He denied that he had named these Appellants on account of this enmity. Regarding Appellant Nanka, his statement is that he was a labour working with the village Pradhan Tej Pratap. Tej Pratap was his Khandani Chacha. This Appellant had abandoned his job of Tej Pratap six months before the commission of this dacoity. He did not know why he had abandoned the job of Tej Pratap. He denied that there was any dispute on salary between Tej Pratap and this Appellant. He also denied that he had nominated him at the instance of Taj Pratap. Tej Pratap, Pradhan, accompanied him when he was going to lodge the report is a proven fact. It is significant. He admitted that before the report was scribed a discussion between him and the villagers about the participation of Nanka took place. He denied that any discussion as to who was behind this dacoity also took place between them. It is written in the F.I.R. itself that in this dacoity hand of Bhaiya Din Kurmi was suspected. When this statement was put to this witness, he explained what he meant by writing it in the F.I.R. was that this Bhaiya Din time and again was talking to these known Appellants before the dacoity. Thus, we are not inclined to accept the testimony of this witness as well about the identity of this miscreant as well as about his presence at the spot. His story of fall of cover from the faces of these known dacoits is a clear ingenuity of the prosecution.

The last eye-witness in this chain, of the occurrence, is P.W. 4 Dharam Raj Singh. He had corroborated the version presented by P.W. 1 Mahadeo Singh in its entirety, though according to P.W. 3, he arrived at the scene of occurrence along with him. Admittedly, licensee of villages Budhaiyapur and Teliyani and some other distant villages came to the spot and also opened fire upon dacoits. We have shown earlier by preponderance of probability that it was a gross concoction. Thus, in our opinion, testimony of this witness also cannot be given any credence. In the incident, apart from Ram Bahadur Singh, Budhraj Singh and Raj Bahadur Singh also suffered injuries. According to P.W. 4 he, Mahadeo Singh, Deshraj Singh, Budhraj Singh and Ram Bahadur Singh were standing at the house of Deshraj Singh. Rest of the persons were standing near the house of Jaipal Singh. He is a signatory of the inquest memo and also a signatory of the memos of recoveries of lantern, torches, spent cartridges and pellets, burnt ashes of pual, blood stained and unstained earth etc. Tej Pratap Singh, Pradhan was also a signatory of these recoveries. These are Exts. Ka-5 to Ka-9. According to him, he was awakened by Mahadeo Singh. He also told him thereafter that dacoity is being committed. P.W. 1 Mahadeo did not so state. He also raised alarm with Mahadeo Singh. Mahadeo had set afire the pual before he was awakened by him. He was told later on by Mahadeo that pual was set afire by him. This was told to him while he was scribing the report on the dictation of Mahadeo Singh. According to him, the dacoits were some 40 hands away from him. He claimed that he identified the dacoits from this distance. As admitted by P.W. 1, it was a dark night. It was not probable for him to identify the miscreants, though he claimed that pual was burning. According to him pual was some 20 hands in the south-east from his house. Southern Chappar of his house is 20 hands is length and 6 hands in width. These two things that Sahadeo and the miscreants were doing Lapta Jhapti and dacoits were assaulting Sahadeo are not corroborated by medical evidence. According to him only 1-2 dacoits were armed with dandas. Out of 14-15 dacoits three were armed with guns and 4 with country made pistols. Thus, as admitted by P.W. 1 and P.W. 3, some 6-7 dacoits were armed with dandas and all of them assaulted Sahadeo. He stated that once their dhatas fell down, they did not tie their faces again is also not acceptable to us. This dhata business especially when these miscreants belong to the village which is just 3-4 furlongs from the village of this witness is beyond comprehension. They were known from before and there is evidence of animosity between this witness and these Appellants. It has been proved by oral as well as documentary evidence. This makes doubtful the presence and participation of these three Appellants in this incident. The probability is that they were named in the incident only on account of their animosities with some of the villagemen including informant, deceased and Pradhan of the village Tej Pratap. No brickbats were recovered by the Investigating Officer from the spot despite the fact that it is alleged by the witnesses that some of the villagers hurled brickbats upon the miscreants.

D.W. 1 Ashik Ali has proved the application of Jagannath dated 22.9.1978, pertaining to the complaint made by Kanhai, brother of Jagannath against Mahadeo, Sahadeo and Ram Asrey etc. belonging to village Nasirpur. These are, as earlier discussed, Exts. Kha-1 to Kha-3. The prosecution has not cross-examined this D.W. 1, the record-keeper of the S.P. Office.

D.W. 2 is Nand Kishore. He is a resident of village Belwara, P. S. Mehwa, district Fatehpur. Admittedly village Belwara is just 2-3 furlongs from the ill-fated site. There are licensee is this village as well. The gun-shot report must have attracted the villagers of this village. We find substance in the statement of D.W. 2 Nand Kishore that licensee from his village rushed to the village of dacoity. Jagannath did not go to that village because his father alone was in the house and his elder brother was in Bareilly jail. He also stated that just two months before the occurrence a dangal had taken place in his village. In that dangal some quarrel between Kanhai on the one hand and Sahadeo, Deshraj and Ram Asrey of village Nasirpur on the other did take place. According to him the quarrel occurred when Sahadeo was felled by a (pahalwan) of village Belapur. Brother of Jagannath, Kanhai was a referee in the dangal. He ruled in favour of the winner pahalwan Sahadeo and other pahalwan of his village were agitated at this ruling. Mahadeo Singh and Deshraj Singh lost temper. They started alleging that kusti was not over. Members of village Nasirpur armed with gun, lathi, etc. hurled abuses on Kanhai. He, Jag Narain and members of his village belonging to Kurmi community also hurled abuses in retaliation from the side of Kanhai. Jagannath was involved in the incident on account of this quarrel that occurred just two months before the present incident is thus proved beyond doubt from the evasive response made by the eye-witnesses as well as the statement made by the defence witness D.W. 2 Nand Kishore. Taking place of dangal was admitted by P.W. 1 as well. We find no ostensible reason to disbelieve the defence witness.

There is one and the same yardstick for the evaluation or appreciation of the evidences of both the sides examined by the prosecution and the defence. Generally, we find that there is a tendency amongst the Sessions Judges that once they accept the prosecution evidence, they use to deal with the defence evidence in a most cursory manner. As a matter of fact, defence evidence is looked upon with a squint eye. Bias is very apparent. It is not permissible in law especially when animus is pleaded and prosecution witnesses were found eagerly wanting in acknowledging this animus. In such a situation, defence evidence deserves an appreciation equal to that of the prosecution evidence. It requires an unbiased and wholly unsquinted evaluation from the Court.

In the circumstances we find force in the defence contention that all these three Appellants were involved on account of one or the other animosity by these three eye-witnesses. Their evidence with regard to presence and participation of these three Appellants in the incident, therefore, cannot be relied upon by us.

The result, therefore, is that these appeals are allowed. The Appellants are acquitted of the charge u/s 396, I.P.C. The order of conviction is hereby quashed. Their sentences are set aside. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are hereby discharged.