Nanka vs State of U.P.

Vinod Prasad, J.—This appeal has been preferred by the solitary appellant Nanka challenging his conviction u/s 395, I.P.C. and imposed sentence of seven years'' R.I. recorded by Vlth Additional Sessions Judge, Fatehpur vide impugned judgment and order dated 25.5.1981 recorded in ST. No. 322 of 1979, State v. Nanka, relating to P.S. Kalyanpur, District Fatehpur. Shorn of unnecessary details and stated briefly, prosecution allegations against the appellant, as was scribed in the written F.I.R. Ext. Ka-1 by the informant Banwari Lai (P.W. 1) and later on testified before the trial court were that on the intervening night between 20/21.9.1977, at 12 midnight, present appellant armed with axe alongwith his other socio criminises/miscreants Bhola, Ram Pal Pasi, Raghuraj and many others committed dacoity in the house of informant Banwari Lal situated in village Jaiti Khara under police circle Kalyanpur, District Fatehpur. When dacoits had approached informant house, he was sleeping under terracotta thatch in front of his house alongwith his brother Shiv Bodhan, his wife and children. Flashing of torches by the dacoits woke up the informant. The dacoits snatched away house keys from informants wife, unlocked the front door and committed dacoity but some of them remained outside on guard. Informant, his brother Shiv Bodhan escaped from the spot and raised alarm, which attracted co-villagers Ram Kumar, Babu Lal, Barati Lal, Vijai Pal, Gajraj and Pancham. Out of them Babu Lal resorted to retaliatory firing from his gun. Rest of the gathered villagers, catapulted stones whereas some of them were armed with lathis. Villagers had flashed their torches to identify the miscreants. In the cross firing, dacoits also sustained injuries. Two of the villagers, Pancham and Ram Kumar, sustained injuries in exchange of fire. Dacoits sustaining gun shot injuries took to their heels but one of their associate dacoit namely Bhola was apprehended at the spot and another lost his life due to sustained injuries. Arrested dacoit disclosed identity of dead miscreant as Ram Pal. In the torch and lantern light, which was burning at the spot, dacoits were correctly identified by the informant, his family members and villagers. Out of the escaped dacoits Raghuraj, who was the maternal nephew (bhanja) of Budhu, a co-villager was identified by appearance and name.

Banwari Lal (P.W. 1) scribed incident F.I.R. Ext. Ka-1, carried it to the police station Kalyanpur, at a distance of five miles, and lodged it as crime No. 206, under Sections 395, 397, I.P.C. on the following morning 21.9.1977 at 7 a.m. against the named and unknown dacoits.

S.I. Babu Ram Yadav (P.W. 4) registered Ext. Ka-1 by preparing chik F.I.R. Ext. Ka-3 and GD entry Ext. Ka-4. Same day at 12.40 p.m., constable Ravindra Shanker and Jai Narayan Singh lodged accused Bhola alongwith four bundles of looted articles at the police station vide GD No. 25, which too was scribed by P.W. 4. Same day, informant and other villagers intimated the police that two other dacoits, Nanka and Raghuraj were apprehended by them and consequently they were also booked in penitentiary at police station at 8.15 p.m. regarding which, GD No. 36 was scribed by P.W. 4. Aforesaid GD entries are Exts. Ka-5 and Ka-6. Bhola, Raghuraj and Nanka because had also sustained injuries in the incident and hence were sent for their medical treatment and so were injured Raj Kumar and Pancham.

S.I. Jagannath Tiwari (P.W. 5) as S.O., P.S. Kalyanpur engineered investigation immediately as crime was registered in his presence and inked interrogatory statements of informant Banwari Lal (P.W. 1), injured Pancham and Ram Kumar and Babu Ram (P.W. 4). Arriving at the incident scene at 8.30 a.m., Investigating Officer arrested accused Bhola. S.I. Udit Narayan was deputed to conduct inquest on the cadaver of the deceased dacoit Ram Pal Pasi and Investigating Officer interrogated other witnesses and subsequently he conducted spot inspection and prepared the site plan map. Blood stained earth (material Exts. 1 and 2) were collected by the Investigating Officer, who had also seized blood stained attire of dead dacoit Ram Pal Pasi and had recovered an empty cartridge, which was sealed. Thereafter, Investigating Officer recorded statements of other co-villagers. Torches and lantern were also inspected by the Investigating Officer. Post-mortem examination report of Ram Pal Pasi and subsequently expired accused Bhola were handed over to the Investigating Officer on 16.10.1977, who copied them In the G.D. On 17.10.1977, Investigating Officer recorded investigatory statements of witnesses, who had arrested appellant Nanka and other dacoit Raghuraj. Concluding investigation vide Ext. Ka-7, Investigating Officer P.W. 5 had charge-sheeted both the accused Raghuraj and Nanka.

Injured Ram Kumar and Pancham were medically examined on 21.9.1977 at 8.15 and 8.45 p.m. respectively vide Exts. Ka-17 and Ka-18. Doctor has noted following injuries on their body:

Ext. Ka-17

Injuries.-- (1) Gun shot wound size 1/10" x 1/10" over left leg about 7" below the left knee joint. Metallic feel is there, Blackening and scorching is there. No wound of exit.

The injury is caused by some firearm, No wound of exit. The injury is simple in nature. Duration about half day old.

Ext. Ka-18

Injuries.--Gun shot wound size 1/10" x 1/10" over Right side of back about 3" above the anterior superior lecie spine wound of entry seen blackening and scorching present, metallic feel is there. No wound of exit.

The injury is caused by some firearm, simple in nature, wound of exit not seen.

Duration about half day old.

Appellants Nanka and Raghuraj both were medically examined following day on 22.9.1977 at 5.30 p.m. who were brought to the doctor by constable Rama Shanker Tiwari. Doctor has noted following external injuries on their person, vide their medical examination reports Exts. Ka-19 and 16:

Ext. Ka-19

Injuries.--(1) Lacerated wound 1/2" x 2/10" whole lower lid deep on the middle l/3 of Right lower lid. Lid has dropped down.

(2) Lacerated wound 1/2" x 2/10" whole lower lid deep on the middle 1/3 of left lower lid. Lid has dropped down.

(3) Abrasion 2/10" x 2/10" with scalp found on the medial 1/3 of left upper eyelid.

(4) Traumatic defuse swelling on the dorsun of Right hand with absent SIC (X-Ray adv.).

(5) Multiple gun shot wounds of entrance over an area of upper 3/4 on back of left thigh. Each wound is 1/8" x 1/8" x muscle deep. There is no blackening or tattooing present.

(6) Multiple gun shot wounds of entrance each 1/8" x 1/8" x muscle deep on the back of upper 1/3 of right thigh. No blackening or tattooing present.

(7) Multiple gun shot wounds of entrance each 1/8" x 1/8" x muscle deep on the back of middle 1/3 of Right leg. No blackening or tattooing present.

No pellet is palpable (X-Ray adv.).

Conclusion.--Injury from 1 to 4 are caused by blunt object (pointed) and are kept under observation, (injury of Right Head is accd) Injuries from 5 to 7 are caused by fire arm and are kept under observation (X-Ray is adv).

Duration: - About 1 to 1-1/2 days old (Appr)

Ext. Ka-16

Injuries.--(1) Lacerated wound 1/2" x 1/4" x whole lid deep on the middle-1/3 of Right Lower eye lid. Lid has dropped down.

(2) Lacerated wound 1/2" x 1/10" x muscle deep on the medial 1/2 of left eye lid (upper). Eye ball NAD.

(3) Lacerated wound 1/2" x 1/10" x muscle deep on the medial 1/2 of Right upper eye lid. Eye ball NAD.

(4) Lacerated wound 1/2" x 1/4" x whole lid deep on the medial 1/2 of left lower eye lid. Lid has dropped down.

(5) Traumatic diffuse swelling on the left elbow with abnormality in shape and absent SIC (X-Ray advised).

Conclusion. -- Injuries are simple caused by blunt object (pointed) injury No. 5 is kept under observation and X-Ray is advised. It is caused by blunt object.

Duration: About 1 to 1-1/2 days old (Appr).

Autopsy on the cadaver of the deceased Bhola, which was brought to the doctor by constable Ravindra Sharma and Jai Narayan Singh was performed on 22.9.1977 at 1.30 p.m. vide autopsy report Ext. Ka-15. Doctor had found that rigor mortis had passed off from upper limbs and was present in lower limbs. Bhola had an average built body. There was bluish discolouration'' present over his abdomen. Following ante-mortem injuries were noted by the doctor in his post-mortem examination report:

ANTE MORTEM INJURIES

(1) Abrasion 2" x 1" on both knee anteriorly.

(2) Contusion 3" x 2" on left forearm lateral (P.T.)

(3) Contusion 4" x 2" on lower part of chest artering anteriorly.

(4) Contusion 4" x 3" on lower part of Right forearm with fracture of Humerus at lower 1/3

(5) Contusion 3" x 1-1/2" on superior aspect of right (P.T.)

(6) Contusion 2" x 1" on superior aspect of left (P.T.)

(7) Contusion 2" x 1" on left side of forehead.

(8) Contusion 2" x 1" on left eye-with red con (P.T.)

(9) Contusion 2" x 1" on anterior side of (P.T.)

(10) Abraded contusion 2" x 2" on right back (P.T.)

(11) Abrasion 2" x 2" on right thigh.

(12) Contusion 2" x 1" on left scapular region

(13) Contusion 3" x 1-1/2" on right infra scapular (P.T.)

(14) Contusion 3" x 2" middle of back.

(15) (i) Ten gun shot wounds of entry each 1/10" x 1/10" on front (P.T.) left shoulders and arms in an area of 5" x 3" no blackening no tattooing margin inverted and lacerated directed from (P.T.) to back. (ii) small gun shots recovered from muscles of the area.

(16) Six gun shot of wounds of entry each 1/102 1/10" x 1/10" on (P.T.) (P.T.) (P.T.) 6" x 5" margin inverted and lacerated. No, blackening no tattooing direction from right front to left (P.T.) gun shot recovered from right (P.T.) One from left lung four from muscles (P.T.)

(17) Two gun shot wound of entry each 1/10" x 1/10" on right forearm in an area of 3" x 2" on front side of the level of injury No. 16 margin inverted and lacerated, Two gun shot recovered from muscle of the area.

(6) Bone and joint: Fracture lower end of Right Humerus.

(7) External organs of generations: N.A.D.

(8) Addl Remarks: NIL

On the internal examination, doctor has noted that there was a fracture of the lower end of right humerus and from his right and left lung, gun shot pellets were recovered. His spleen was lacerated. In doctor''s estimation, death had occasioned due to sustained injuries.

Cadaver of dacoit Ram Pal Pasi was post-mortemed on 23.9.1977 at 11 a.m. According to the doctor, he was 30 years of age and rigor mortis had passed off from his both the limbs. His abdomen was distended and blisters were present all over the body. Doctor has noted following external injuries on his corpse:

ANTE MORTEM INJURIES

(1) Three gun shot wounds of entry on left front of back (P.T.) an area of 2" x 1-1/2". No blackening, no tattooing present, margin inverted (P.T.)......................... three shot recovered from muscle of the area.

(2) Two gun shot wounds of entry on superior side of left shoulder (P.T.) margin inverted and lacerated. No blackening, no tattooing present. Two shots recovered from (P.T.)............ each wound is 1/10" x 1/10" in an area of 2" x 2"

(3) Three gun shot wounds of entry each 1/10" x 1/10" on left side of chest 3" lateral and below to left nipple. Three shots recovered from left lung. One LB 2 OZ blood dried present in lung cavity.

(4) Two gun shot wound of entry 1/10" x 1/10" x abdomen cavity deep 4" (P.T.) lateral to umbilicus margin inverted and lacerated, no blackening no tattooing present. Two shots recovered from stomach. Stomach and small intestine punctured at two places.

(5) Bones and joints: NAD

(6) External organs of generations: NAD

(7) Addl remarks: Nil

Internal examination revealed that larynx was fractured, lungs were pierced with three gun shot injuries. Stomach was empty and lacerated. Small intestine was empty and lacerated and death had occasioned because of the firearm injuries sustained by the said dacoit.

Charge sheeting of the accused resulted in their summoning and finding their case triable by Court of Sessions, it was committed to the Sessions Court where it was registered as S.T. No. 322 of 1979.

VIth Additional Sessions Judge, Fatehpur charged the appellants u/s 395, I.P.C. vide order dated 7.5.1980, which charges were denied by both the charge-sheeted accused, present appellant Nanka and Raghuraj, who both desired to be tried and, therefore, to anoint their guilt, trial procedure was undertaken.

Pending trial, appellant Raghuraj was done to death and, therefore, only present appellant Nanka faced entire trial.

For proving it''s case, prosecution tendered oral testimonies of five witnesses, out of whom informant Banwari Lal (P.W. 1), Ram Kumar (P.W. 2), Pancham (P.W. 3) and Babu Ram (P.W. 4) were the fact witnesses, S.I. Babu Lal Yadav and S.I. Jagannath Tiwari (P.W. 5) were the two formal witnesses, who were examined in the trial.

In his statement u/s 313, Cr. P.C., appellant pleaded maiden defence of false implication.

Summating, vetting and analyzing prosecution evidences, both documentary and oral, learned trial Judge, vide impugned judgment and order, concluded that guilt of the appellant u/s 395, I.P.C. has been successfully anointed and, therefore, convicted the appellant for that crime and sentenced him to seven years R.I., which conviction and sentence has been assailed in instant appeal.

Appeal was admitted in this Court in 1981 and appellant was allowed bail. Since 2003, appeal was repeatedly got passed over and, therefore, left with no other option, this Court appointed Mrs. Reema Srivastava as amicus curiae to assist the Court in disposal of the appeal.

When appeal hearing commenced, arguando, Sri R.B. Sahai, learned advocate, who was engaged by the appellant to argue his appeal, also appeared and assisted learned amicus curiae and, therefore, I have heard both of them. Sri Sangam Lal Kesharwani, learned A.G.A. has been heard on behalf of respondent-State. I have gone through the entire oral and documentary evidences as well.

Castigating the impugned judgment, it is contended by learned amicus curiae that the appellant is not named in the F.I.R., no recovery was made from his possession, although it was alleged that he was apprehended from a maize (bazra) field on the next day with gun shot injuries. There is a delayed medical examination, no identification of the appellant was ever got conducted and, therefore, prosecution had not been able to substantiate the charge. She, therefore, pleaded that appellant''s conviction be set aside and he be set at liberty. Alternatively, she pleaded that the incident had occurred in 1977, 33 years ago and, therefore, appellant should not be sent to penitentiary after such an enormous delay and, in case he is not acquitted on merits, his sentence be altered to some fine. It is next submitted that the appellant was a youth at the time of commission of offence, he has no criminal proclivity and, therefore, these are the mitigating circumstance in his favour, which should be considered to modify his sentence of rigorous imprisonment.

Sri R.B. Sahai, learned counsel further contended that the appellant is alleged to have carried an axe, which he had never wielded during the incident and, therefore, he should be dealt with sympathetically in matter of sentence.

Learned A.G.A. argued to the contrary and submitted that the axe was carried by the appellant with the idea that in case, it''s use is required, the same can be wielded for committing dacoity and broke open the doors and the boxes. Appellant was apprehended soon after the incident from a maize field with sustained gun shot injury, which establishes his participation into the crime beyond any doubt. It is further submitted that cross-exchange of fire from both the sides, during the incident, is a proven fact. There was no animus for the prosecution witness to create a hokum against the appellant and, therefore, his conviction be not altered and appeal, being meritless, be dismissed.

I have cogitated over rival submissions in the light of oral and documentary evidences existing on record. Vetting of evidences, revealed that some of the underlying facts of the appeal are admitted to both the sides-

(i) that an incident of dacoity did occur at the house of the informant on the date and time alleged by the prosecution, to which no serious challenge was made by the accused.

(ii) dacoits were armed with lethal weapons and they had resorted to firing and so were the villagers.

(iii) in cross-exchange of fire, two of the villagers sustained gun shot injuries.

(iv) in the retaliatory firing made by the villagers, dacoits had also sustained gun shot injuries resulting in death of one of the dacoit and other was shot at who was later on apprehended.

(v) the house of the informant was looted and the dacoits had decamped with the booty.

Besides above admitted facts, some other important and significant glaring aspects, which were also not challenged were:

(a) that of torch and lantern light had illuminated the incident scene.

(b) dacoits had not veiled their faces and, therefore, there was no obstruction and difficulty in identifying them.

(c) that there was cross-exchange of fire.

Thus, what is perceptibly clear is that neither happening of the incident nor date, time and use of firearms have been disputed. The only defence, which was taken by the appellant, and to which suggestions were also given to the fact witnesses, was that the appellant was arrested from his house and was nailed in the present incident. Very bizarre when the appellant Nanka was questioned by the learned trial court, u/s 313, Cr. P.C., he did not plead any such defence. It seems that, in fact, defence was bewildered by the corroborative confidences inspiring and creditworthy evidences of all the fact witnesses and, therefore, at all point of time, during the trial, it tried to fathom out a possible defence on preponderance of probability, but in that effort, it miserably failed. The weapon wielded by the appellant is clearly mentioned and his specific role of standing at the door, is also culled out from the evidences and, therefore, there is unshaky, trustworthy, confidence inspiring, reliable evidence on record establishing participation of the appellant in the incident, which cannot be doubted, also for the reason, that on the following day of the incident, he was apprehended from a maize field adjacent to the incident scene having gun shot injuries. No explanation at all has been offered by the appellant, as to how he had sustained those injuries and why he was present in that maize field within a close vicinity. According to the depositions of witnesses, after the incident, when the informant returned from the police station, after lodging of F.I.R. Ext. Ka-1, the villagers went in search of the dacoits, who had sustained gun shot injuries and, therefore, following the trickled blood on the earth and other attire, they had reached the maize field where the two dacoits, present appellant and Raghuraj had concealed themselves. There is further evidence on record that from maize field, there was some sound emanating revealing presence of the miscreants inside it. Villagers divided themselves into two parties, one party entered into the maize field from the east, whereas the other entered from the west. Party, which consisted of informant, had apprehended Raghuraj whereas the other party had apprehended present appellant Nanka. There is absolutely nothing on record, which may create doubt in this story, which was evidenced by all the prosecution witnesses unhesitatingly, which is confidence inspiring and seems to be the correct narration about the incident. The F.I.R. was lodged without any delay and, therefore, no time was left to fabricate a false story, which defence is completely ruled out. Since appellant was apprehended the following day, there was no reason for putting him to test identification parade. On an overall analysis, participation of the appellant into dacoity is established beyond all shadow of doubt and, therefore, none of submissions raised by appellant''s counsel is appealing. In a case of dacoity, if an accused is not named, it is no reason to absolve him as of his crime and such a submission is rejected. No recovery of axe has been made from the possession of the appellant, as was contended by learned amicus curiae, is also no reason to acquit the appellant for the reason that none of the fact witnesses were at all questioned by the appellant on the said score. If the appellant wanted to take advantage of such a defence, it should have afforded an opportunity to the fact witnesses to explain on that score, which he never did and hence this criticism is repelled.

Coming to the last submission that there is a delayed medical examination of the injured, I do not find that aforesaid contention deserves any deliberation as it is wholly misplaced.

Conviction of the appellant, therefore, is well merited and there is no reason to interfere with it which is concurred.

Turning towards the sentence, the incident had occurred more than three decades ago. Prosecution has not brought on record any criminal proclivity of the appellant or his conviction and/or involvement in any other crime. During intervening period of three decades, during which appellant was on bail, prosecution has not brought on record his involvement into any further criminal activity. On the date of the incident, appellant was 21 years of age, Sri Sahai, learned advocate argued that the appellant had not wielded the axe during the incident. He has not caused any injury to anybody. Appellant must have settled down his life and must be nearly 60 years of age. However, the aforesaid mitigating circumstance is no reason not to send the appellant to penitentiary for the crime committed by him but all the above reasons are sufficient enough to dilute his substantive sentence of imprisonment.

In my view, three years of rigorous imprisonment with Rs. two lacs fine with default sentence of two years R.I. and compensation of Rs. 1,50,000 to the informant for the loss caused to him, out of the fine awarded, will meet the ends of justice. The appeal is allowed in part. Conviction of the appellant u/s 395, I.P.C. is maintained but his sentence of seven years R.I. is reduced to three years R.I. with fine of Rs. two lacs, out of which, Rs. 1,50,000 is awarded as compensation to the informant. If the fine is deposited, compensation to the victim shall be paid within a week by the learned trial Judge. In case of default in depositing the fine, appellant shall undergo two years further RJ. as default sentence. Appellant is on bail, learned trial Judge is directed to take him into custody and send him to jail to serve out remaining part of his sentence.

Appeal is allowed in part as above.

Let a copy of the judgment be certified to the trial court for its intimation.