Rishipal and Others vs State of U.P.

N.S. Gupta, J.—The accused Appellants Rishipal, Rambir, Mahendra and Bishambhar who were convicted by Sri S.N. Prasad the then VII Additional Sessions Judge, Bulandshahr u/s 412, I.P.C. and were sentenced to undergo R.I. for a period of three years and six months and to pay a fine of Rs. 100 each and in default of the payment of the same, to further undergo R.I. for a period of two months each have come up in appeal before this Court.

The prosecution case is that on the intervening night of 13/14.6.75 at about 11.30 p.m., a dacoity was committed at the house of Sri Kishan Lal Singh, P.W. 1 in village Preetampur, P.S. Pahasu, district Bulandshahr in which cash, clothes, ornaments and utensils were looted away by the dacoits. The dacoits were armed with deadly weapons, like gun and country made pistol. They, during the course of dacoity, caused injuries to the ladies of the house, namely, Smt. Kashmiri, Raj Dulari, Smt. Shanti Devi as also the other inmates of the house, namely, Vijay Pal and Veer Pal Singh. A lantern was burning in the house at the time of occurrence and the complainant and other members saw the faces of the bandits in the light of the same. An F.I.R. about the occurrence of this case was lodged by Sri Kishan Lal Singh, P.W. 1 on 14.6.75 at 2.30 a.m. at P.S. Pahasu which lies at a distance of about one mile from the scene of occurrence. Girtraj Singh and Rajendra Singh, two bandits were named in the F.I.R. It was alleged in the F.I.R that besides these two bandits, 12-13 more bandits were there. During the course of investigation, 10 other bandits were arrested and were put up for identification. The prosecution claimed that Appellants Rishi Pal, Rambir, Mahendra and Bishambhar were arrested by the Investigating Officer on 15.6.75. On search of their respective houses, the following articles which were said to be the looted property were recovered from the possession of the Appellants.

Articles recovered from the house of Mahendra:

One piece Bedsheet silk.

2.One Silk Saree used.

One Lal Imli woollen shawl.

One Mufler.

Two dhoti ladies.

Articles recovered from the house of Rishipal:

Dhoti ladies four Nos. and gents dhoti one No.

Saree two Nos.

One piece white malmal.

4 One child shirt.

Articles recovered from the house of Bishambhar:

Saree four Nos.

Dhoti three Nos.

Kurta one No.

Khes one No.

Mufler one No.

Towel one No.

One piece cashment cloth.

Articles recovered from the house of Rambir:

Bed-sheet two Nos.

Mosquito net one No.

Underwear one No.

Shirt one No.

Gents dhoti two Nos.

All the aforesaid articles were also put up for identification. After needful identification of the persons and articles recovered from the accused persons, 10 accused persons were put up for trial including the four accused Appellants, namely, Rishipal, Rambir, Mahendra and Bishambhar. The learned trial Judge did not believe the participation of the accused Appellants in the dacoity in question including the other six. He accordingly acquitted them on the charges framed u/s 395, I.P.C. the learned trial Judge, however, believed the contention of the prosecution that the articles mentioned above and recovered from the possession of the accused Appellants were looted property and were detained by the accused Appellants dishonestly and knowing them to be the looted property. He accordingly convicted and sentenced them as aforesaid. Hence the appeal.

I have heard Sri R.B. Sahai learned Counsel for the accused Appellants and Sri V.B. Singh learned Additional Government Advocate for the State; considered their contentions and have gone through the facts arid circumstances of the case.

It was argued by the learned Counsel for the accused Appellants that the articles which are said to have been recovered from the possessions of the accused Appellants were articles of household goods of the accused Appellants. They have been wrongly mentioned as the looted property and that the accused Appellants have been falsely arrayed. There appears to be force in the contention put forward on behalf of the accused Appellants.

I find from the record of the case that the police was set into motion quite promptly and the accused Appellants were arrested on the next day of the occurrence. It is clear from the record of the case that besides clothes, valuable articles like ornaments and utensils were also looted away by the dacoits but unfurtunately no ornament, no utensils were recovered from the possession of the accused Appellants or any other accused persons who were apprehended in the Incident in question. It has been observed by the learned trial Judge himself that the accused persons were shown by the police to the witnesses and, therefore, the identification of the accused persons was of no significance. P.W. 2 Mohanlal and P.W. 3 Darbari have distinctly stated this fact before the trial Court. When according to the evidence of the prosecution witnesses like Mohan Lal and Darbari, the accused persons were shown to them at the police station for connecting them with the occurrence of the dacoity in question, it is probable for me to believe that the articles like dhoti, saree, shawl and mufler were recovered by the police from the houses of the accused Appellants and were shown as the looted property. I, therefore, do not consider it safe to rely upon the prosecution evidence on the point that these articles were looted property and were being retained by the accused Appellants knowing them to be the looted property. It would suffice to state here that no list of the looted property was given by the complainant at the Police Station alongwith the F.I.R.

Under the circumstances, I am of the opinion that the approach of the learned Additional Sessions Judge in convicting the accused Appellants u/s 412, I.P.C. was not a happy one. The case of the Appellants, therefore, deserve to be acquitted for the offence punishable u/s 412, I.P.C.

In the result, the appeal is hereby allowed, the conviction of the accused Appellants u/s 412, I.P.C. is hereby set aside. It is directed that the accused Appellants shall be set at liberty forthwith, if under detention in connection with the Sessions Trial No. 53/77 and if on bail, their bail bonds shall stand cancelled but they need not surrender.