Manji and Others vs State of U.P.

B.K. Sharma, J.—This is an appeal against the judgment and order dated 25/30.5.1979 passed by Sri O.P. Jain, the then 4th Additional Sessions Judge, Ballia in S.T. No. 191 of 1976, State v. Manji and Ors. and S.T. 178 of 1976, State v. Deo Mohan, whereby he convicted the present accused-Appellants Manji, Jogendra and Raj Kishore of the offence u/s 395, I.P.C. and sentenced each one of them to undergo R.I. for a period of 5 years.

Out of the accused-Appellants, Jogendra Singh accused-Appellant has died and the appeal has consequently abated as to him and there now remains the case against Manji and Raj Kishore accused-Appellants to be considered.

Sita Ram informant P.W. 2 and Bal Bachan P.W. 3 were real brOrs. inter se. Sita Ram informant P.W. 2 and Bal Bachan P.W. 3 were residing in village Sahatwar P.S. Sahatwar. district Ballia. In this house, there was a Central Sahan and at the North East of the Sahan, there was a Kotha in which Smt. Samarthi wife of Bal Bachan lived. This Kotha opened towards west. To the west of this Kotha, there was one Kotha south faced and then to its west there was yet Anr. Kotha which was north faced. In this north faced Kotha, Sita Ram informant P.W. 2 lived. To the north of this Kotha, there was open land in the house across which there was a Palani which was west faced. In this Palani Bal Bachan P.W. 3 used to live. In the west of the Palani, there was two Madhai south faced which belonged to Sita Ram informant.

The prosecution story was that a dacoity took place in village Sahatwar, P.S. Sahatwar. district Ballia at the house of Sita Ram and Bal Bachan P.Ws. 2 and 3 at about 1.30 a.m. in the night between 7/8.12.1975. The dacoits were carrying lathis and torches with them. In the dacoity, the dacoits beat Bal Bachan P.W. 3 and Sita Ram P.W. 2 and broke open the door of the kothari in which Smt. Samarthi Devi was sleeping in the night of occurrence and beat her also and they looted the properties from the house. At that time, Sita Ram informant was sleeping in the north faced Kotha and Bal Bachan P.W. 3 was sleeping infront of the Palani in which he lived. An alarm had been raised by Sita Ram informant and Bal Bachan P.Ws. 2 and 3 on seeing the dacoits and on it Sukhari, Laxmi and Ram Dutt witnesses had collected carrying torches which they were flashing. Sita Ram informant and Bal Bachan P.W. 3 were also having torches with them which they flashed. The dacoits were also flashing the torches which they had. Out of the dacoits Manji, Jogendra Singh and Raj Kishore present accused- Appellants and Bachcha Pandey co- accused were identified by the witnesses. They were known from before and so nominated in the F.I.R. lodged by Sita Ram informant P.W. 2 at Police Station Sahatwar on 8.12.1975 at 6.10 a.m., The distance of the police station being 3 kms. away from the village of dacoity.

Sita Ram informant P.W. 2, his brother Bal Bachan P.W. 3 and Smt. Samarthi Devi wife or Bal Bachan were being injured in the occurrence and were medically examined at the Government Hospital, Sahatwar. Their medical reports are on record. During investigation certain unknown persons were arrested and put up for test identification. One of them, Deo Mohan was acquitted by the learned Sessions Judge but we are not concerned here with the case against him. Charge-sheet was submitted by the I.O. against 4 known persons, namely Manji, Jogendra Singh. Raj Kishore and Bachcha Pandey. Bachcha Pandey has not been tried in the present case whatever be the reason.

The ocular testimony in this case has been given by Sita Ram informant P.W. 2 and Bal Bachan P.W. 3. Evidence about the initial investigation has been given by Shyam Narain Tewari P.W. 5. Ram Palat Yadav S.I. P.W. 4, was the second I.O. who had completed the investigation and submitted the charge-sheet. None of the accused-Appellant led any oral or documentary evidence in their defence. The medical officer, Dr. K.N. Dubey who had examined these three injured, was examined at the trial as P.W. 1.

The learned Sessions Judge accepted the prosecution evidence and rejected the defence plea of false implication due to enmity and so passed the impugned order.

I have heard the Learned Counsel for the parties at length and have also gone through the record of the case. It is amply established by the ocular evidence coupled with the injury reports that dacoity took place at the house of Sita Ram and Bal Bachan P.Ws. 2 and 3 in the night between 7/8.12.1975 in which a Kothari of the house was broken open, victims Sita Ram P.W. 2 and Bal Bachan P.W. 3 and Smt. Samarthi Devi were injured and movable properties were looted. The defence also does not dispute the factum of dacoity.

Then we come to the question whether the two eye-witnesses Sita Ram and Bal Bachan P.Ws. 2 and 3 had sufficient opportunity to see and identify the dacoits. It might be a dark night but the prosecution evidence discloses three sources of artificial light. Firstly, there were torches with the ocular witnesses which they were flashing. Then there was light of the torches of the public witnesses Sukhari, Luxmi and Ram Dutt, which they were carrying and flashing, who had collected on the spot on hearing alarm. Then the dacoits themselves were carrying and flashing, torches during the course of dacoity. Even in the days of occurrence possession of torches by the villagers was a common feature. The dacoits also need the help of torches to facilitate the commission of the dacoity. They cannot move inside the house and cannot locate the valuables without flash of torches and so this flash also was quite likely and bound to give incidental help to the witnesses in making their identification.

Another factor which is of great importance in this case is that both these ocular witnesses Sita Ram and Bal Bachan were injured in the occurrence by blunt weapons as is clear from the injury reports on the record of the case, it shows that in the occurrence the dacoits came in close contact with both of them and consequently they (the ocular witnesses) had the fullest opportunity to identify the dacoits who participated in the dacoity, in the light of the torches which was certainly available to them. Furthermore, if the culprits were known to the victims, it will be all the more easy for them (the witnesses) to identify the culprits.

Before I proceed further, it may be mentioned here that even though the public witnesses of the village have not been examined at the trial but it is to be noted that there is no challenge thrown in the cross-examination of the ocular witnesses in their testimony that these public witnesses had not come to the spot on hearing the alarm or that they were not carrying torches and that they had not flashed their torches. The I.O. had also prepared a memo after inspecting their torches and he has not been cross-examined by the defence on the point though an opportunity was given. So even though, these public witnesses were not examined at the trial, the availability of the flash of the torches of these public witnesses to the two eye-witnesses Sita Ram and Bal Bachan P.Ws. being established and underlinged cannot be excluded.

Here it may also be mentioned that there was no suggestion made to Sita Ram informant P.W. 2 in his cross-examination that he was not carrying any torch. It may be that he testified that as soon as he flashed his torch after coming out from his Kotha, he was assaulted by the dacoits and that he had flashed his torch only once. However, as noted earlier, the flash of the other torches remained available to him throughout the occurrence and that too was enough to enable him to identify the dacoits who were close at hand and were known to him. Bal Bachan P.W. 3 also was cross-examined at length but it was nowhere suggested to him that he did not have a torch with him or that he did not flash his torch at the time of occurrence. It is immaterial that he did not produce the torch at the trial. He has rightly, explained that he had not brought the torch to the Court because he was not instructed to produce it.

In the present case, both the ocular witnesses claim that they knew these accused-Appellants from before the date of occurrence. The accused-Appellants were admittedly the resident of the same village in which the occurrence took place and they have admitted that they were known to these witnesses from before and they being to they would easily identify them at the time of occurrence and so their identification evidence given at the trial cannot be lightly discarded. All these accused-Appellants have been nominated by Sita Ram informant P.W. 2 in the F.I.R. which has been lodged by him at the police station with reasonable promptitude. This nomination corroborates his evidence at the trial against these accused-Appellants about not only the factum of dacoity but also about the participation of the accused-Appellants therein.

The only question that remains is whether there was false implication of the accused-Appellants as claimed.

In the F.I.R. no enmity has been imputed to the accused-Appellants. In a case of dacoity, it is necessary to impute any motive to the accused persons against whom the F.I.R. is lodged. Illicit gain is the obvious motive for committing dacoity and it need not be said in so many words in the F.I.R. or in the testimony by the witnesses.

In the cross-examination of Sita Ram informant P.W. 2, it was elicited that Bachcha Singh was real brother of Raj Kishore accused-Appellant (not to be confused with Bachcha Pandey nominated in the F.I.R. by the informant who was not tried together with the present accused-Appellants). A suggestion was made to the informant in his cross-examination that the police had lodged a prosecution for the offence u/s 60 of the Excise Act against Bachcha Singh said real brother of Raj Kishore present accused-Appellant. The informant pleaded ignorance in reply to the suggestion. He also pleaded ignorance to the suggestion that his cousin brother Dehari had given evidence from the side of the prosecution against Bachcha Singh brother of Raj Kishore accused-Appellant. It may be mentioned at this stage, that in his statement u/s 313, Code of Criminal Procedure Raj Kishore accused-Appellant did not make any such claim nor was any documentary or oral evidence adduced in defence to show that Bachcha Singh real brother of Raj Kishore accused-Appellant was prosecuted for the offence under 60 of the Excise Act muchless that in that prosecution Dehari had appeared as a prosecution witness. As a matter of fact, if it is taken for a moment that Dehari had given evidence as a prosecution witness at any stage against Bachcha Singh for the offence u/s 60 of the Excise Act then one can only say that Raj Kishore accused-Appellant was annoyed with Dehari on account of this giving of evidence by him (Dehari) or at the most against the cousin of Dehari namely the present informant Sita Ram, but then it could, if at all, serve only as a motive for Raj Kishore accused-Appellant to commit the dacoity but it cannot be imagined for a moment that it would serve as a motive for Sita Ram present informant to falsely implicate Raj Kishore, accused-Appellant in a Crl. Case much less in a case of dacoity.

Here it may also be mentioned that in the cross-examination of the informant, there is no other suggestion of enmity with Raj Kishore accused-Appellant. Then in the cross-examination of Bal Bachan P.W. 3, the suggestion was made from the side of this accused-Appellant that Dehari his cousin brother had given evidence against Bachcha Singh in a case under the Excise Act and the witness made a categorical denial of this suggestion and as noted earlier, no material has been placed on record from the side of the defence in support of the prosecution and he too was not suggested any other enmity between Raj Kishore accused-Appellant and himself or with Sita Ram informant P.W. 2. It is also significant that even though both the Investigating Officers entered into the witness box not a word was put to them in their cross-examination to the effect that they have got this accused-Appellant falsely implicated in this case due to any enmity.

Thus, in his statement u/s 313, Code of Criminal Procedure Raj Kishore accused-Appellant did not make any allegation or claim regarding the alleged giving of evidence as prosecution witness by Dehari (cousin brother of the informant) in a case against Bachcha Singh. On the contrary, an entirely new plea was set up by this accused-Appellant in reply to question No. 8 u/s 313, Code of Criminal Procedure put to him (whether he has to say anything else). It was that Sita Ram informant P.W. 2 and Bal Bachan P.W. 3 get his agricultural land grazed by their cattle :

Sita Ram Va Bal Bachan Gorunon Sey Hamara Khet Chara Detey Hain. Isi Sey Ranjish Hai.

No oral evidence was led on the subject in defence nor was any documentary evidence such as copy of any F.I.R. or complaint adduced, in defence from his side. As a matter of fact, if Sita Ram and Bal Bachan P.Ws. 2 and 3 had been grazing their cattle in the fields of this accused-Appellant Raj Kishore, then it will be this accused-Appellant Raj Kishore who will be having an enmity and grudge against Sita Ram, P.W. 2 and Ram Bachan P.W. 3 and that might prompt him (this accused-Appellant) to commit the present occurrence or some other occurrence against him but there was no question of Sita Ram and Ram Bachan P.Ws. falsely implicattng this accused-Appellant Raj Kishore in dacoity. It may again be mentioned here that this accused-Appellant Raj Kishore nowhere claimed that he has been falsely implicated in this case because of any other enmity with the informant. So in regard to him, the plea of false implication cannot be sustained for a moment.

It was elicited from Sita Ram informant P.W. 2 in his cross-examination that before the present dacoity, the she-buffalo of one Deena Dusath had been stolen and that Deena had lodged a report about that theft against Chhotak who was admittedly his (the informant�s) brother. He could not tell whether Manji present accused-Appellant was a prosecution witness in that F.I.R. against Chhotak. The lodging of an F.I.R. by Deena against Chhotak was an innocuous circumstance and no document was filed from the side of Manji accused-Appellant to show that he was cited as a prosecution witness in the F.I.R. lodged by Deena against Chhotak. As a matter of fact, there was not even a suggestion from the side of Manji accused-Appellant that any charge-sheet was submitted against Chhotak on that F.I.R. and that a trial of Chhotak had taken place before the present occurrence and that therein Manji accused-Appellant had entered the witness box and had given evidence against him. Unless there were any such material to show this, or there was an admission that this had taken place, it cannot be said that the informant Sita Ram P.W. 2 or his brother Bal Bachan P.Ws. had any ground to falsely implicate this accused-Appellant in this case of dacoity. In the cross-examination of Bal Bachan P.W. 3 no suggestion was made that Manji has been cited as a witness in the F.I.R. of theft of she-buffalo lodged by Deena.

Admittedly, Manji accused-Appellant was of the Biradari of the Sita Ram informant in this case. There is of course some discrepancy in the statement given by him at the trial and the testimony of Bal Bachan P.W. 3 on the question whether they were on visiting terms with Manji accused-Appellant or not. Sita Ram informant said that they were not on visiting terms. Further he also said that he had no enmity with Manji accused-Appellant and he was on visiting terms with only Jogendra who was his pattidar. Bal Bachan P.W. stated in his cross-examination that before the occurrence they were on visiting terms with Manji and other accused-Appellants. However this discrepancy is immaterial. May be, he was personally on visiting terms with Manji accused-Appellant while Sita Ram informant was not. Moreover, there is nothing elicited in the cross-examination of any of these two witnesses that may tend to show that there was any enmity between them on one hand and Manji accused-Appellant on the other, that can even remotely be said to be a ground for his false implication in this case of dacoity. I may also mention here that no suggestion was made to them from the side of this accused-Appellant or from the side of any other accused-Appellant that they had been falsely implicated as accused at their instance. In his statement u/s 313, Code of Criminal Procedure R.C. Manji accused-Appellant stated that the witnesses gave evidence against him out of enmity but they did not disclose what was that enmity. Then in reply to question No. 8 (if he had anything further to say), he explained the enmity in these words, �Gawahan Se Hamara Khan Pan Ya Uthna Baithna Ya Bolna Chalna Nahin Hal Yah Ranjish Hat� It was the sweet-will of a person as to with whom he would keep visiting relations and with whom he would not. In any case, whether relations were warm or cool, there is no ground for false implication. It may also be mentioned here that this accused-Appellant also has not examined a single witness nor produced a single document to suggest or show any enmity from which it may be inferred that due to it hie has been falsely implicated at this dacoity.

In view of the above discussion, it is obvious that there were no grounds for false implication of any of the accused-Appellants in this case. The Learned Counsel for the accused-Appellants has placed reliance on minor contradictions which did not have any bearing on the merits of this case. It was elicited from Sita Ram informant that some dacoits were covering their faces with Dhata but this is immaterial so far as the present accused-Appellants are concerned who are not stated by him to have been covering their faces with Dhata. Whether a known dacoit will cover his face with Dhata or not, depends on his way of thinking or acting. Bal Bachan P.W. 3 did not say that any dacoit was bearing Dhata in the occurrence, but this is immaterial as even according to the informant none of the accused-Appellants are said to have bearing in Dhata.

It may be that the public and independent witnesses were not produced at the trial by the prosecution. But in respect of it, it has come in the testimony of Bal Bachan P.W. 3 in the examination-in-chief itself that Sukhari, Luxmi and Ram Dutt eye-witnesses had colluded with the accused and would not speak truth. He has explained his conclusion by stating that now these witnesses and the accused persons are on visiting terms and having relations of dining and drinking with each other. We have already discussed the ocular evidence on record . and the absence of independent witnesses, has no adverse effect on the ocular evidence as led at the trial in this case. The evidence of the public witnesses even given at the trial could only be of lesser value as neither of them have been injured in the occurrence and none of them had an equally good or better opportunity of identifying the culprits.

In view of the above discussions, this appeal has no force.

For the reasons aforesaid, the appeal is dismissed. The conviction and sentence of the accused-Appellants as awarded by the learned Additional Sessions Judge is maintained. The accused-Appellants Manji and Raj Kishore are on bail from this Court. Their bail is cancelled. Let them be arrested forthwith and consigned to the District Jail concerned to serve out their sentence according to law.

Let a copy of this judgment be sent by the registry to the Additional Sessions Judge concerned at once for compliance. The compliance report shall be submitted to this Court by the Additional Sessions Judge by 12.7.1999. This appeal shall be listed for orders before this Bench on 15.7.1999 along with the compliance report of the Additional Sessions Judge, concerned.