Shyam Sunder Tamoli and Others vs The State

Mahendra Dayal, J.—By means of this criminal appeal, the appellants have challenged the judgment and order of conviction dated 02.02.1991 recorded by the Additional Sessions Judge-IV, Unnao in S.T. No. 31 of 1985, whereby the appellant Shyam Sunder, Hanuman, Hari Nam and Mahadeo have been sentenced to undergo rigorous imprisonment for 7 years under Sections 395 and 397 IPC while the appellants Chhedi Lal and Dashrath have been sentenced to undergo rigorous imprisonment for 5 years under section 395 IPC. The appellant Chhedi Lal has further been convicted under Section 412 IPC and has been sentenced to undergo rigorous imprisonment for 3 years.

During the pendency of appeal, the appellant No. 2 Hanuman died while appellant No. 7 Chhedi Lal completed his period of sentence. The appellant No. 6 Smt. Sheokumari was found guilty for the offence under Sections 412 IPC, but was released on probation on her executing a personal bond of Rs. 5000/-. During the pendency of this appeal, the period of probation came to an end and the appeal as regards her became infructuous.

The prosecution case, in short, is that the informant Smt. Vidya Devi lodged a First Information Report on 05.09.1984 at 3.30 a.m. stating therein that in the night of 04.09.1984 when her husband was out, and she was sleeping with her son Arvind, her daughter Manju and her mother-in-law, four dacoits entered into her house from the house of Shyam Sundar and jumped into her courtyard. Hearing the noise, the informant and her mother-in-law awoke. She recognized Shyam Sundar, Mahadev, Hanuman and Hari Nam in the light of lantern which was hanging in the courtyard. They were armed with axe and country made pistol. She saw that Mahadev opened the main door of her house and there upon four more dacoits entered into the house. One of the dacoits armed with gun climbed over the roof while the others began search for the husband of the informant. When they did not find him, they started extending threats to the brother-in-law of the informant and asked him about the ornaments and money kept in the house. One of the dacoits also inflicted axe injury over the head of the mother-in-law of the informant and it was further stated in the First Information Report that there upon she informed about the ornaments which were kept under ground in the baramda. The dacoits began to unearth the ornaments by digging the baramda with the help of a spade. In the meantime, the informant managed to slip out of the house and started raising alarm. The father-in-law of the informant, namely, Hansh Kumar and Devendra also raised alarm upon which the family members and villagers came armed with lathi and torches and challenged the dacoits. Some of the licenced gun holders opened fire in the air in order to scare the dacoits, upon this the dacoits also opened fire but when the villagers exerted much pressure, the dacoits ran away with looted ornaments and clothes. The villagers tried to chase the dacoits but without any result.

The police registered the case on the basis of written First Information Report and proceeded for investigation. Two persons, namely, Sadhu and Smt. Sundra had received injury during the course of crime. They were sent to the hospital for treatment. During investigation, the appellant Chhedi Lal and Santosh Kumar were arrested on 07.09.1984 and identification pared was conducted in jail and during parade, three witnesses including informant correctly identified them. The parade was conducted on 11.10.1984. Chhedi Lal was arrested on 06.09.1984 and two dhoties were recovered from his possession. These dhoties were identified by the witnesses. The police also recovered ornaments from the house of Mahadev. After completion of investigation, the police submitted charge-sheet.

The prosecution in order to prove its case, examined seven witnesses during trial and the learned trial court on appraisal of evidence found the appellants guilty and convicted them, as aforesaid.

I have heard Kunwar Mukul Rakesh, learned counsel for the appellants and learned A.G.A. for the State.

The first submission on behalf of the appellants is that it is an admitted fact that the appellants and the informant along with her husband were inimical since prior to the occurrence. The informant Smt. Vidya Devi has herself admitted that there was a dispute with regard to a nali. The informant had dispute with regard to the aforesaid nali and according to the informant after the case was decided in favour of the informant, the appellants became inimical to her husband and it was on account of this enmity that dacoity was committed in her house. It has also come in evidence that the appellants are also residents of the same village and are close neighbours of the informant. Being close neighbours of the informant, they must have knowledge that the husband of the informant was not present in the house if they had any intention to take revenge from the informant''s husband, they could have chosen the time when the husband of the informant was present. In fact, some unknown persons committed dacoity in the house of the informant and the appellants were falsely implicated in this case due to enmity.

It is also a submission of the appellants that had the appellants committed the offence of dacoity in the house of the informant, they must have covered their faces so as to avoid their recognization by the informant and by her family members. It is a natural phenomena that the dacoities in order to conceal their identity cover their faces specially those dacoits who belong to the same or neighbouring village. It is the natural conduct of a human being to conceal himself before committing such crime as that of dacoity. If the appellants had to take revenge from the husband of the informant, they could have done it any time. But committing dacoity in the house in the absence of the husband of the informant clearly indicates that the dacoity was committed by some others and not by the appellants. The story of recognizing them in the light of lantern is an after thought and has been developed only to implicate the appellants in this case.

Learned counsel for the appellants has relied upon a decision of this Court reported in 2004 (50) ACC 686, Chhedi @ Master v. State, in which a Division Bench of this court while deciding the criminal appeal under Section 396 IPC has observed that the accused were not known or proved criminals so as not to care for being identified. They were all previously known to the informant. Had they really participated in the commission of the crime, they would have certainly made attempt to conceal their identity by covering their faces.

Reliance has also been placed on a decision reported in Lakshman Prasad Vs. State of Bihar, AIR 1981 SC 1388 : (1981) CriLJ 1010 : (1981) 1 SCALE 580 : (1981) 1 SCC 22 Supp : (1981) SCC 22 Supp : (1981) SCC(Cri) 642 in which it has been observed by the Hon''ble Supreme Court that where admittedly the appellants were previously known and were also the neighbour of the complainant, it is difficult to believe that they would have committed dacoity in the house of their own neighbour and that too when the husband of the informant was not present with whom they had previous enmity. If there is evidence showing possibility of false implication and raising suspicion regarding complicity of accused the conviction was held to be liable to be set aside.

It is next submitted by the learned counsel for the appellants that a theory has been developed that at the time of commission of crime, a lantern was hanging on a wall and the appellants were recognized in the lantern light by the informant as well as by the other witnesses. Even if it is presumed that a lantern was present at the scene of occurrence, it is very difficult to believe that the informant and her family members recognized them in the light of the lantern. The prosecution case that an identification parade was conducted in the jail premises, where three witnesses correctly recognized the dacoit, is also doubtful in view of the fact that the identification parade was conducted after more than a month of the alleged occurrence. It has not come in the evidence that right from the time of arrest till identification parade, they were kept ''baparda'' and they were also brought to the court covering their faces. Since identification parade was conducted after such a long time, the possibility of recognizing them by the witnesses in the intervening period, can not be ruled out. It appears that the identification parade was conducted only to fill up the lacuna of the prosecution case while as a matter of fact it was a definite case of the prosecution that the dacoits were previously known to the informant and other witnesses. Since there was previous enmity between the parties, the informant and other witnesses had every reason to identify them in the identification parade.

It is also submitted on behalf of the appellants that if all the witnesses correctly identified an accused, such type of identification according to the Hon''ble Supreme Court is too good and can not be held to be reliable.

The next submission on behalf of the appellants is that the recovery of silver ornaments and dhoties has been shown from the house of the appellant Mahadev and from the wife of Mahadev and Chhedi Lal. The appellant Chhedi Lal has already completed his sentence and has been released from jail. The prosecution has shown the recovery of two dhoties from the house of Mahadev and accordingly Smt. Shivkumari, wife of Mahadev was found guilty under Section 412 IPC, but her period of probation is already over. There is no recovery from any of the remaining appellants. Thus, the learned trial court has not examined prosecution evidence in correct prospective and has believed the identification parade of the appellants by the informant and other witnesses in a mechanical manner. The identification being delayed is suspicious for the reason that it was conducted after a long gap and there was absolutely no necessity to conduct the identification parade when the appellants were previously known to the appellants and were also correctly identified by the informant at the time of commission of the crime. The identification parade was conducted only to make out the false case against the appellants.

The learned A.G.A. has contended that the crime took place at 1.00 a.m. in the night and the First Information Report was promptly lodged by the informant after two and half hours at 3.30 a.m. The promptness in lodging the First Information Report rules out the possibility of false implication. It is an admitted case that the husband of the informant was not present in the house when the occurrence took place and it was the informant herself who took such a decision to lodge the First Information Report without waiting for her husband to come. It has also been submitted by the learned A.G.A. that two persons have received injuries during the course of dacoity and their presence at the place of occurrence cannot be doubted. The dacoits have been properly identified by the witnesses. The source of light at the place of occurrence is also established from the evidence on record. The looted articles have also been recovered and rightly recognized by the witnesses. In these circumstances, the prosecution case can not be doubted merely on the ground that the appellants were the residents of the same village and they did not conceal their identity by covering their faces.

In reply to the aforesaid arguments, learned counsel for the appellants submits that the recovery of the looted articles from the possession of Mahadev is highly doubtful as there is no public witness of the alleged recovery. The appellants from whom the recovery was shown have already completed their sentence and from the possession of the present remaining appellants, there has been no recovery.

After hearing learned counsel for the parties and after careful examination of the evidence on record, there is one important aspect of the matter that some of the appellants were admittedly close neighbours of the informant and admittedly they did not conceal their identity while committing the crime. The appellants are not habitual criminals. The prosecution has not been able to show that any of the appellants had previously been implicated in any other case of dacoity. Thus, the appellants were not professional dacoits. The enmity between the husband of the informant and some of the appellants is also not denied. In these circumstances, the possibility of false implication by the informant can not be ruled out. Moreover, this fact also can not be ignored that the appellants who were not professional criminals, did not make any efforts to cover their faces in order to conceal their identity. This conduct of the appellants is against the natural human conduct. The present appeal is under consideration only in respect of five appellants and admittedly there has been no recovery from their possession. In these circumstances, I have grave doubt that the present appellants had committed the dacoity in the house of the informant. It appears to me that the occurrence took place in some other manner and was committed by some unknown dacoits, but the informant implicated the appellants with whom she had previous enmity.

For the reasons stated above, I am of the view that the prosecution has not been successful in establishing the case beyond reasonable doubt against the appellants. Therefore, the finding of guilt recorded against them deserves to be set aside.

In the result, the appeal is allowed and the conviction of the appellants Shyam Sundar, Hanuman, Hari Nam and Mahadev under Sections 395 and 397 IPC, and that of Chhedi Lal and Dashrath under Section 395 IPC and that of Chhedi Lal under Section 412 IPC is set aside. The aforementioned appellants are acquitted of the charges. They are presently on bail. They need not surrender. Their personal bonds and bail bonds are cancelled and the sureties are discharged.

Let a certified copy of this judgment along with the lower court record be sent back to the court concerned for information and compliance.