Raj Pati Singh and Others vs State

K.S. Rakhra and Vinod Prasad, JJ.—Appellants Raj Pati Singh, his brother Ghanshyam Singh, their cousin brother Lalji Singh and associate Shyam Badan Singh were tried by I Vth Additional Sessions Judge, Basti in Sessions Trial No. 66 of 1981, u/s 396, I.P.C., who found all of them guilty and therefore convicted each of them to life imprisonment. The aforesaid conviction and sentence have been challenged in this appeal.

According to the prosecution, a dacoity was committed in the house of first informant in the intervening night of 20/21.9.1980 at about 11 p.m. in village Agai Bhagar, Police Station Kalwari, district Basti. An F.I.R. of this dacoity was lodged by Indra Sen Singh on 21.9.1980 at 7.15 a.m. in which all the four Appellants were named as accused with the allegation that the Appellants Raj Pati Singh, Lalji Singh, Ghanshyam Singh and Shyam Badan Singh, participated in dacoity and were armed with revolver, gun and country-made pistols respectively. Informant Indra Sen Singh was sleeping in the courtyard of the house where dacoits asked him about his father Padamnath and dictated him to get the door of the home opened. On being called by the informant his mother opened the door. All Appellants alongwith 4-5 of their companions made entry into the house. They were looking for informant''s father Padamnath and when they could not find him in the house, they started looting property and also assaulted ladies of the house Smt. Kamla Devi, Smt. Tilka Devi and young boy Indrajeet to find out where valuable property was kept. After committing the dacoity when they were about to depart, informant''s uncle Banshi Singh obstructed them with the help of an axe in his hand. At this Appellant Raj Pati Singh shot three fires from his revolver causing death of Banshi Singh on the spot and dacoits left the place of occurrence with the looted property.

Narrating the incident in the F.I.R. as above, the informant further mentioned that motive for commission of crime was that three years back Jiladar Singh, uncle of the accused Rajpati Singh, was murdered in which informant''s father Padamnath was accused but he was acquitted by this Court and these Appellants were looking for an opportunity to kill him. Accused Shyam Badan is inimical because of his litigation with the informant in connection with agricultural property.

The information was registered as Crime No. 116/80 and the investigation was taken up by S.O. Ram Nath P.W. 9.

In this incident Banshi Singh had died whereas Kamla Devi, Indrajeet and Smt. Tilka had received injuries. Dr. M. M. Singh P.W. 4 examined injuries of the aforesaid injured persons and issued injury report Exs. Ka-5 to Ka-7.

The injury of the injured Kamla Devi aged about 40 years was examined on 21.9.1980 at 4.15 p.m. and following injuries were found on her body:

Contusion red in colour 13 cm. x 1 cm. on the back of the left fore arm just below the left elbow joint. Kept under observation.

Contusion red in colour 4 cm. x 1 cm. on the front of the left knee joint. (Injury was kept under observation and X-ray was advised).

Opinion since both injuries were kept under observation and X-ray was advised.

The nature of injuries was to be determined after X-ray report, injuries were cused by blunt object. Duration was within about one day.

The injury of the injured Indrajit aged about 13 years was examined on 21.9.1980 at 4.45 p.m. and following injuries were found on his body:

(1) Contusion red in colour 10 cm. x 2 cm. on the outer side of the left leg 12 cm. below the left knee joint.

(2) Contusion red in colour 6 cm. x 1 cm. on the front of Rt. knee joint.

(3) Contusion red in colour 3 cm. x 1 cm. on the mid of the front of the Rt. thigh.

All injuries were simple, caused by blunt object. Duration within about one day.

The injury of the injured Smt. Tilka Devi aged about 68 years was examined on 21.9.1980 at 8.30 p.m. and following injuries were found on her body:

(1) Contusion red in colour 7 cm. x 2 cm. on the Rt. gluteal region.

It was simple injury caused by blunt object. Duration within about one day.

The autopsy of the dead body of Banshi Singh was performed by Dr. K. K. Tripathi P.W. 6 who issued his report Ex. Ka-8. The following ante-mortem injuries were found by the doctor on the dead body:

(1) Gunshot wound (wound of entry) 0.7 cm. x 0.5 cm. x chest cavity deep on the front of the (Lt.) side chest. 13 cm. above the (Lt.) nipple. Blackening present around the wound. Margins inverted. Directed downwards and backwards.

(2) Gunshot wound .7 cm. x .5 cm. x skin deep (wound of entry) on the (Lt.) side of the abdomen .5 cm. above the (Lt.) iliac crest. Blackening present. Margins inverted. Directed downwards and backwards.

(3) Gunshot wound .7 cm. x .5 cm. x muscle deep (wound of entry) on the front of the (Lt.) thigh 18 cm. above the (Lt.) knee joint. Blackening present. Directed backwards. One metallic bullet recovered from the wound.

(4) Gunshot wound (wound of exit) 1 cm. x 1 cm. x communicating injury No. (1) on the (Lt.) side back 10 cm. below the axilla. Margin everted. No blackening present.

(5) Gunshot wound (wound of exit) 1 cm. x 1 cm. communicating with injury No. (2) on back of the (Lt.) lip 5 cm. below the (Lt.) iliac crest. Margin everted. No blackening present.

In the opinion of the doctor cause of death of Banshi Singh was shock and haemorrhage as a result of ante-mortem injuries.

The Investigating Officer, after completion of the investigation submitted a charge-sheet and the case was committed to Court of Sessions, which has been decided on 14.4.1982.

Prosecution examined nine witnesses in trial and out of them Indra Sen P.W. 2 is informant and Indrajeet Singh P.W. 3 is a real brother of the informant and is an injured witness. Vishwanath Singh P.W. 5 is an eye-witness. All of them have tried to support the prosecution version with regard to date, time and place of the occurrence of this dacoity and participation of the Appellants therein.

No evidence was led by the accused persons in their defence. Prosecution does not claim any recovery of stolen property from any of the accused.

We have heard Sri G. S. Chaturvedi, learned Counsel for the Appellants and Sri Danish Iqbal Faridi, learned A.G.A. for the State and have gone through the entire evidence on record.

Learned Counsel for the Appellants contended that they have been falsely implicated because of enmity as three years back Jiladar Singh, uncle of the accused-Raj Pati Singh, was murdered in which informant''s father Padam Nath was an accused. He was convicted by trial court but was acquitted by this Court. It was argued that distance of police station from the place of occurrence is about 10 miles. The F.I.R. was lodged belatedly that is at 7.15 a.m. on 21.9.1980. It was further argued that it is highly improbable and difficult to be believed that the Appellants who were known to the witnesses from before and one of the Appellants-Shyam Badan Singh was resident of the same village, would go to commit dacoity without concealing their identity. Learned Counsel for the Appellant further submitted that even if the Appellants had gone there to commit dacoity or even in order to murder Padam Nath, they would not waste time in stealing articles like blanket, pant, shirt and sweaters which were also stated to have been looted.

Learned A.G.A. on the other hand contended that there are witnesses who had seen the faces of the dacoits and named the Appellants amongst them. There was electric light inside and outside the house. It was also moonlit night in which the Appellants could be easily recognized by the informant and other witnesses.

Now let us examine the evidence. The deposition of P.W. 1 Padam Nath Singh, father of the informant in the trial, shows that the Appellants-Shyam Badan Singh wanted to grab the property of Chhangur Singh, claiming to be his son while this witness claimed that deceased was his pattidar and Shyam Badan Singh had no right to claim that property as Chhangur Singh died issueless. There was a litigation between them in the revenue court and mutation proceedings were pending. Padam Nath Singh was doing pairvi of the said case. He has also stated that a case between them was also pending before Board of Revenue. It is established from his statement that Appellant Shyam Badan Singh was litigating with P.W. 1 Padam Nath Singh in connection with the aforesaid property of Chhangur Singh.

So far as the enmity of remaining Appellants with P.W. 1 Padam Nath Singh is concerned, the testimony of Padam Nath Singh itself shows that he was an accused in the murder of the Jiladar Singh and was convicted by Sessions Court but acquitted by this Court. Therefore, on account of aforesaid reason, there was a possibility of the Appellants No. 1, 2 and 4 being named in this dacoity. This could send the Appellant to jail and save Padam Nath Singh from danger to his life from them. Padam Nath Singh is himself not an eye-witness of the occurrence as he was not present in the house when the dacoity was committed.

Although, P.W. 2 Indrasen Singh P.W. 3 Indra Jit Singh and Vishwanath Singh P.W. 5 claim to be eye-witness and also claimed that they had seen the Appellants but their testimony in this crime does not appear to us to be convincing and reliable. The prosecution story itself shows that the Appellants had strong enmity which motivated them to reach the house of informant at 11 p.m. in search of Padam Nath Singh whom they wanted to kill. The Appellants however did not try to cause any injury to Indrasen Singh and other members of the family and even Banshi Singh is said to have been fired at by Raj Pati Singh only when he came in the way to taking away of the property by dacoits. This indicates that Banshi Singh was also not fired at by any of the dacoits on account of enmity. It further appears to be improbable that the Appellants who were known to the informant and another witnesses would not conceal their identity in case they were going to commit dacoity. In the circumstances mentioned above, it appears that corroboration by independent evidence was necessary before the Appellants were held guilty. No independent witness is examined. It is significant to note that no recovery has been shown from the possession of the Appellants and no independent witnesses has been examined in this case. The testimony of main witness P.W. 2 also appears to us to be bundle of lies. It is to be noted that the dacoits inflicted injuries to Kamla Devi, Tilka Devi, Indra Jeet in order to find out the valuable property. But significantly no injuries was caused to Indrasen who was the son of Padam Nath whom the dacoits wanted to eliminate.

Considering the entire prosecution evidence, we are of the firm view that the evidence of witnesses of the prosecution is wholly unreliable and insufficient and prosecution had miserably failed to prove the guilt of the Appellants for which they were charged and the appeal must succeed.

This appeal is allowed. Conviction of the Appellants recorded by the trial court vide impugned judgment and order dated 14.4.1982 for offences u/s 396, I.P.C. and sentence of life imprisonment, awarded by I Vth Additional Sessions Judge, Basti in S.T. No. 66 of 1981 is set aside and the Appellants are acquitted of the said charge. Their bail and surety bonds are discharged and they need not surrender.

Let a copy of this judgment be certified to the trial court.