Lalla alias Raj Kumar Singh (In Jail) vs State of U.P.

U.S. Tripathi, J.—This appeal has been directed against the judgment and order dated 3.12.1980 passed by IIIrd Additional Sessions Judge, Pilibhit in Session Trial No. 104 of 1980, convicting the Appellant u/s 396, I.P.C. and sentencing him to undergo life imprisonment.

The prosecution story, briefly stated, was that Nand Ram (P.W. 1) had his house at village Piparia Lal, P.S. Pooranpur, district Pilibhit. His house faced towards east. On the night of 8/9.7.1978 Nand Ram (P.W. 1) was sleeping in the northern portion of verandah of his house. His brother Bhoop Ram (P.W. 2) was also sleeping in the southern portion of the said verandah. Radhey Shyam deceased another brother of Nand Ram (P.W. 1) was sleeping inside the room. The ladies of the family were sleeping inside the house. At about mid night 10-12 dacoits entered into the house of Nand Ram (P.W 1). Hearing foot steps of the dacoits Nand Ram (P.W. 1) awoke. 2-3 dacoits started causing injuries on him with dandas. Two of the dacoits had covered their faces with dhatas and other dacoits were open faced. Bhoop Ram (P.W. 2) and Radhey Shyam deceased grappled with dacoits covering their faces with dhatas and in this process their dhata was opened and they recognised them as Appellant Lalla alias Raj Kumar Singh and his brother Ram Singh. Appellant Lalla and his brother Ram Singh were having guns. Bhoop Ram (P.W. 2) and Radhey Shyam told that they had recognised the Appellant and Ram Singh on which the Appellant and Ram Singh told that they would teach them a lesson of their recognition. Saying it Ram Singh fired on Radhey Shyam, who died on the spot and Appellant Lalla fired on Bhoop Ram (P.W. 2) due to which Bhoop Ram and Radhey Shyam sustained injuries. Sri Pal also sustained fire arm injury. Nand Ram (P.W. 1) came out of his house and hid himself in a pit towards east of his house. Two lighted dhibris were kept inside the house and one lighted lantern was in the outer bungalow. The dacoits looted the house hold properties, ornaments and cash. Lalla Ram, Dhakan Lal (P.W. 3), Bhajan Lal, Shyam Lal, Balak Ram and Rameshwar Lal also came to spot. Lala Ram, Dhakan Lal and Bhajan Lal were having torches which they were flashing on the dacoits. The faces of dacoits including the Appellant and Ram Singh were recognised in the light of dhibris and lantern. After committing dacoity the Appellant and other dacoits ran away.

Nand Ram (P.W. 1) came to police station Pooranpur in the morning at 5.00 a.m. and lodged oral report Ext. Ka-1. Chick F.I.R. was prepared by head constable Shahanshah Wali Khan (P.W. 5) who made an endorsement of the same at G.D. report Ext. Ka-2 and registered a case against the Appellant, his brother Ram Singh and 8-10 unknown dacoits. The injured Nand Ram (P.W. 1), Bhoop Ram (P.W. 2) and Sri Pal were sent to Primary Health Centre, Pooranpur, where they were medically examined. Two traumatic swelling on left thigh and left forearm were found on the person of Nand Ram (P.W. 1). Three fire arm wounds of entry on the right thigh, left thigh and left knee respectively were found on the person of Bhoop Ram (P.W. 2) and one fire arm entry wound on right occipital region was found on the person of Sri Pal.

Investigation of the case was taken up by Hori Lal Yadav, Investigating Officer (P.W. 6), who visited the spot on the morning and conducted inquest of the dead body of Radhey Shyam deceased, interrogated Nand Ram (P.W. 1), Dhakan Lal (P.W. 3), inspected place of occurrence and prepared site plan. He also inspected lantern, two dhibiris and one torch of Nand Ram (P.W. 1) and found those in working order and he also inspected the torch of Dhakan Lal (P.W. 3). The Investigating Officer also collected blood stained and simple earth from the spot.

Autopsy on the dead body of Radhey Shyam was conducted on 10.7.1978 by Dr. O. P. Srivastava, who found five gun shot wounds of entry, one gun shot wound of exit and one abrasion on left shoulder back of left arm, left side of chest upper part of right side chest, left side of mid of neck left side of thigh and left side of chest respectively, as ante-mortem injuries and cause of death shock and haemorrhage due to above injuries.

The Investigating Officer interrogated Bhoop Ram (P.W. 2) on 26.7.1978 and on completion of investigation submitted charge-sheet against the Appellant and Ram Singh.

Cognizance of the case was taken by the Magistrate, who committed the case to the Court of Sessions.

Appellant and Ram Singh were charged with the offence punishable u/s 396, I.P.C. They pleaded not guilty and contended that they were falsely implicated as their nephew had caused hurt to Nand Ram (P.W. 1). Ram Singh further contended that he was suffering from cataract and was not able to see for the last several years.

The prosecution in support of its case examined Nand Ram (P.W. 1), Bhoop Ram (P.W. 2), Dhakan Lal (P.W. 3) as witnesses of fact, besides Lala Ram (P.W. 4), witness of inquest, H/C Shahanshah Wali Khan (P.W. 5) and Hori Lal Yadav, Investigating Officer (P.W. 6) as formal witnesses. Learned Counsel for the accused admitted the genuineness of injury reports of injured persons and post-mortem report of deceased.

Learned Sessions Judge on considering the evidence of prosecution held that role of Ram Singh in the whole affairs of dacoity and murder was rendered doubtful and benefit of doubt was given to him. He further held that the role of Lalla alias Raj Kumar Singh Appellant was definitely established and with these findings he convicted Appellant Lalla alias Raj Kumar Singh u/s 396, I.P.C. and sentenced him to imprisonment for life. However, accused Ram Singh was acquitted.

Aggrieved with the above conviction and sentence the Appellant has come up in this appeal.

We have heard Sri P.N. Misra, learned Counsel for the Appellant, learned A.G.A. for the Respondent and have gone through the evidence on record.

The factum of dacoity, sustaining of injuries by Nand Ram (P.W. 1), Bhoop Ram (P.W. 2), as well as Radhey Shyam deceased in the course of dacoity and death of Radhey Shyam deceased on account of injuries sustained during course of dacoity are not disputed.

Learned Counsel for the Appellant contended that the participation of Appellant in the dacoity with murder has not been established from the evidence on record as evidence of Nand Ram (P.W. 1) and Bhoop Ram (P.W. 2) regarding participation of Appellant in the dacoity is unreliable. Therefore, the question which arises for determination in this appeal is whether the prosecution has successfully established participation of the Appellant in the dacoity with murder.

In order to prove participation of Appellant in the dacoity with murder the prosecution relied on the testimony of Nand Ram (P.W. 1), Bhoop Ram (P.W. 2) and Dhakan Lal (P.W. 3). Dhakan Lal (P.W. 3) stated that on hearing the sound of fire he awoke and came in front of his house, from where he saw that dacoity was being committed in the house of Nand Ram (P.W. 1). He hid himself in a pit in front of his house. When the dacoits were coming out of the house of Nand Ram (P.W. 1) he saw in the light of torches that there were 10-12 dacoits, but he could not recognise any dacoit. Nand Ram was raising alarm that Lalla and Ram Singh were amongst the dacoits. The witness has thus not recognised any of the dacoits and his testimony regarding participation of Appellant in the dacoity is not believable.

Nand Ram (P.W. 1) stated that on the night of occurrence he was sleeping in verandah of his house. Bhoop Ram (P.W. 2) and Radhey Shyam were in their respective verandah. 10-12 dacoits entered into his house. Hearing the foot steps of the dacoits he awoke. 2-3 dacoits started causing injuries on him with dandas. Two of the dacoits had covered their faces with dhatas. The others were bare faced. Radhey Shyam deceased and Bhoop Ram (P.W. 2) grappled with them and their dhata was opened. He recognised them as Ram Singh and Lalla alias Raj Kumar Singh. Ram Singh and Lalla were having guns and other dacoits were having lathis. Bhoop Ram told that he had recognised Ram Singh and Lalla. On it they told that they would teach a lesson of recognition and saying it Ram Singh fired on Radhey Shyam and Lalla fired on Bhoop Ram. Radhey Shyam, Bhoop Ram and Sri Pal sustained fire arm injuries. Radhey Shyam died on the spot. There was lighted lantern outside his house. He recognised the Appellant and Ram Singh in the said light.

Bhoop Ram (P.W. 2) stated that in the night of occurrence he was sleeping in his house. 10-12 dacoits entered into his house, out of which two dacoits had covered their faces with dhatas. 4-5 dacoits started causing injuries to Nand Ram (P.W. 1). He awoke and he and Radhey Shyam grappled with dacoits bearing dhata. In the course of grappling dhata of two dacoits opened and he recognised them as Ram Singh and Lalla Singh. Radhey Shyam told that they were Ram Singh and Lalla Singh of village Dudhiya. They told that they would teach them a lesson of recognition. Saying it Ram Singh and Lalla Singh fired on him and Radhey Shyam. Sri Pal also sustained pellet injury. Radhey Shyam fell down on his door. He came out of his house. Radhey Shyam died after some time. He and Nand Ram hid in a pit. Two lighted dhibris were inside the house and a lighted lantern was outside the house. He recognised the Appellant and Ram Singh in the said light.

Appellant and Ram Singh were admittedly known to Nand Ram (P.W. 1) and Bhoop Ram (P.W. 2) from before. From the evidence of above witnesses, it is clear that they had covered their faces. It means that they had entered into the house of Nand Ram for the purposes of committing dacoity after taking precaution to conceal their identity. Appellant and Ram Singh were not recognised till their dhatas opened and according to above witnesses, the dhata of Appellant and Ram Singh opened as Bhoop Ram and Radhey Shyam grapped with them. On the own showing of the above witnesses, the Appellant and Ram Singh were having gun and Nand Ram and Bhoop Ram were not having any arm. Therefore, the grappling of Bhoop Ram (P.W. 2) and Radhey Shyam with the Appellant and Ram Singh appears improbable, because they would have not thought it proper to grapple with the dacoits, who were having guns as they had every apprehension of their lives.

In case the Appellant and Ram Singh had concealed their identity by covering their faces as they were known to the inmates of the house in which the dacoity was being committed, they would have taken full precaution to conceal their identity by tying dhata on their faces so that it could not easily fall down. Therefore, the theory set up by two witnesses that dhata of Appellant and Ram Singh fell down while Bhoop Ram and Radhey Shyam grappled with them also appears improbable.

The evidence of above two witnesses further shows that when Bhoop Ram (P.W. 2) and Radhey Shyam recognised the Appellant and Ram Singh, they told that they had recognised them and on it the Appellant and Ram Singh fired on them. This aspect of their evidence also appears improbable, because in case the Appellant and Ram Singh were having gun, they would have fired on the persons who grappled them before their recognition by them and not after their recognition.

There are also improvements and embellishment in the evidence of above two witnesses, because in the F.I.R. it was not mentioned that the Appellant and Ram Singh were having gun. It was mentioned in the F.I.R. that when Bhoop Ram and Radhey Shyam cried that they had recognised the Appellant and Ram Singh then the dacoits who were having guns fired on them. In his evidence, both the witnesses have specified that the Appellant and Ram Singh were having guns and they fired on Radhey Shyam and Bhoop Ram.

The learned Sessions Judge has held that since the two witnesses, namely, Nand Ram and Bhoop Ram were injured persons, their presence could not be doubted and they were also not having any enmity with the Appellant and Ram Singh and therefore, there was no ground for false implication of the Appellant. It is true that Nand Ram (P.W. 1) and Bhoop Ram (P.W. 2) are injured witnesses and their presence on the spot cannot be doubted, but the injuries on their person is guarantee of their presence and injuries are no guarantee of their truthfulness. The manner in which they have recognised the Appellant and Ram Singh is highly improbable and, therefore, there is no guarantee that these two witnesses were speaking truth, though they were present at the time of dacoity and sustained injuries. It is true that it has not been shown that they were having any sort of enmity with the Appellant and Ram Singh, but the accused are not required to prove the ground of their false implication. If the testimony of a witness is not reliable, an accused cannot be convicted simply because there was no ground for his false implication. It is also clear from the evidence on record that the Appellant and Ram Singh were having sufficient agricultural land and were never challaned in any theft or dacoity and were not dare devil persons. As such the prosecution story suffers from inherent probabilities and it is difficult to accept that the Appellant and Ram Singh would commit dacoity in their neighbourhood and in the house of a known person, because they would have every apprehension of being recognised and being prosecuted.

The trial court itself has disbelieved the participation of Ram Singh on the ground that he had glaucoma in his left eye and there was cataract in his right eye. Ram Singh had given his age in his statement u/s 313, Cr. P.C. as 60 years and it was no-where challenged. Thus, a person of 60 years, suffering from cataract and glaucoma in his respective eyes would hardly be expected to commit dacoity in the night. It is true that the principle "falsus in uno falsus in omnibus" is not applicable in India and if it is shown that some of the accused were falsely implicated it is not a ground to doubt the participation of other accused, but in this case it is clear that the prosecution witness had falsely implicated Ram Singh, the real brother of Appellant and considering the improbabilities, embellishment and improvements in their statement, their evidence regarding participation of the Appellant in the dacoity is not believable.

In view of what has been discussed above, we find that the participation of Appellant was highly doubtful and evidence of prosecution witnesses regarding complicity of the Appellant in the dacoity is not worthy of credence and there is no other evidence such as recovery of looted property or recovery of weapon, etc., from their possession. Therefore, the conviction of the Appellant u/s 396, I.P.C. cannot be sustained.

The appeal thus succeeds.

The appeal is accordingly allowed and conviction and sentence of Appellant Lalla alias Raj Kumar Singh is set aside and he is acquitted of the offence of which he was tried.

The Appellant is on bail. His bail bonds are cancelled and sureties are discharged. He need not surrender.