Shambhu vs State of U.P.

Surya Prasad, J.—This is a criminal revision against the judgment and order dated 30-11-1990 passed by the Sessions Judge, Banda in Criminal Appeal No. 71 of 1990 dismissing the appeal filed by the applicant-revisionist against the judgment and order dated 28-8-90 passed by the Munsif-Magistrate (S.V.A.) Banda in Criminal Case No. 1167 of 1989, convicting the applicant-revisionist u/s 380 IPC and sentencing him to two years rigorous imprisonment.

The prosecution case briefly stated is that the accused-revisionist along with three others entered the house of the informant Devi Deen in the dead of night intervening 8th and 9th September, 1988 and committed theft in respect of the certain articles of Devi Deen. The ladies who were sleeping in the courtyard of his house, had the feel of the feet of the thieves and consequently they woke up and raised alarm, hearing which Devi Deen, his son Lallu and his two relatives, who were sleeping in his Khaliyan which was situate quite contiguous to his house woke up and come to his house. A neighbour named Ram Raj also reached there. Devi Deen and others saw the thieves running away. One of the thieves flashed his torch. The accused-revisionist asked him not to flash the torch. Consequently Devi Deen and others recognised the accused-revisionist Shambhu by his voice. The thieves ran away with the articles of Devi Deen. Devi Deen lodged a report. A case was registered against the accused-revisionist. Investigation ensued and after investigation into the case a chargesheet was submitted against the accused-revisionist.

The prosecution examined informant Devi Deen (PW 1) and his son Lallu (PW 2) and relied upon certain documents, formal proof of which has been dispensed with by the learned Counsel for the accused-revisionist in support of its case.

The accused pleaded not guilty. He was stated that he has been falsely implicated on account of enmity. He has not adduced any evidence in support of his contention. Having heard the learned Counsel for the parties and having considered the evidence on record, the learned Magistrate convicted the revisionist u/s 380 IPC and sentenced him to two years rigorous imprisonment there under vide his judgment and order dated 28-8-90. An appeal being the Criminal Appeal No. 71 of 1990 was preferred against his judgment and order. But the appeal was dismissed. Therefore this criminal revision has been filed.

Heard the learned Counsel for the parties and perused the record.

The learned Counsel for the revisionist has argued that it is very difficult for the informant Devi Deen PW 1 or his son Lallu PW 2 to have indentified the accused-revisionist in the dead of night at 12 O''clock especially when they were sleeping in the Khaliyan and they worke up and came to their house hearing the alarm raised by the ladies of their house. He has further argued in the same continuation that recognition by the voice has not been treated as sufficient source of identification and therefore, the judgment and order passed by the courts below are bad in the eye of law.

There is no evidence on record to indicate that any of the other three miscreants had flashed his torch on the accused-revisionist Shambhu. Therefore, the possibility of the accused-revisionist being recognised by Devi Deen PW 1 and Lallu PW 2 in the flash light of the torch is ruled out.

Devi Deen and Lallu are father and son. They along with their relatives were sleeping in their Khaliyan in the dead of night. They had reached their house from their Khaliyan having heard the alarm raised by the ladies of their house. There was, therefore, hue and cry. Lallu PW 2 has categorically stated that if Shambhu had not made a voice, he could not have recognised him. There is no evidence on record that accused-revisionist Shambhu had spoken at the top of his voice. He has made his voice only once and that too in the midst of hue and cry. He is resident of another hamlet which is situate at a distance of one kilometre from the hamlet of the informant Devi Deen. In view of all this, there appears to be a bleak possibility of the accused-revisionist Shambhu having been recognised by these two witnesses on the basis of one voice The courts below do not appear to have considered the evidence on the above mentioned aspect of the case.

There is suggestion to both the above named witnesses in their cross-examination that their was a quarrel between the accused on the one side and Devi Deen and other members of his family on the other over the grazing of their field by the animals of the accused-revisionist. The accused-revisionist has also stated u/s 313 Code of Criminal Procedure that he has been falsely implicated on account of enmity. The courts below do not appear to have carefully considered this aspect of the matter.

The prosecution has not examined any independent witness in this case. Not only this but the prosecution has also not examined the Investigating Officer. The contention of the learned Counsel for the accused-revisionist is correct.

The learned Counsel for the opposite party has argued that there are concurrent findings of fact recorded by the courts below and therefore, the same could not be interfered by this Hon''ble Court in revision. The learned counsel for the revisionist has, on the other hand, placed reliance upon the case The State of Gujrat v. Rasulmiyan Ahmedmiyan Malek (XXVII) 1990 ACC 303 SC , where in Dudh Nath Pandey Vs. State of Uttar Pradesh, , has referred to, the Hon''ble Supreme Court has quoted the observations made by it in Dudh Nath Pandey''s case as under:

The mere circumstances that two or more courts have taken the same view of facts does not shut out all further inquiry into the correctness of that view. Concurrence is not an insurance against the charge of perversity though a strong case has to be made out in order to support the charge that findings of fact recorded by more than one court as perverse.

In the instant case there are such facts and circumstances as to point out that the findings of fact recorded by the Courts below are perverse. In this view of the matter the contention of the learned Counsel for the opposite party to the contrary is not acceptable to me.

In the result the revision is allowed. The impugned judgment and order set aside. The revisionist Shambhu is acquitted of the charge framed against him. He is on bail. His bail bonds are cancelled and sureties stand discharged.