Baljit And Others vs State Of U.P.
2019 Latest Caselaw 5210 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 01.05.2019
 
Delivered on 30.05.2019
 
Court No. - 1
 

 
Case :- CRIMINAL APPEAL No. - 267 of 1983
 

 
Appellant :- Baljit And Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Pradeep Verma,Amit 						      Kumar,Satish Trivedi
 
Counsel for Respondent :- D.G.A,S.N. Gupta
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

(Delivered by Hon'ble Ramesh Sinha,J.)

1. The present criminal appeal has been preferred by the two appellants, namely, Baljit Singh and Gaya Shankar @ Daya Shankar, both sons of Bihari, out of whom appellant No.1-Baljit Singh son of Bihari has died during the pendency of the present appeal and appeal on his behalf has already been ordered to be abated by Coordinate Bench of this Court vide order dated 28.1.2009, thus, the present appeal survives with respect to appellant No.2-Gaya Shankar @ Daya Shankar only, hence, the Court proceeds to adjudicate the aforesaid appeal with respect to the said appellant, namely, Gaya Shankar @ Daya Shankar.

2. The present criminal appeal has been preferred against the judgment and order dated 01.02.1983 passed by IVth Additional Sessions Judge, Fatehpur in S.T. No.393 of 1981, under Section 396 I.P.C., Police Station Malwan, District Fatehpur convicting and sentencing the appellants for life imprisonment.

2. The prosecution case in nutshell is that the informant Deshraj submitted a written report at Police Station Malwan, District Fatehpur on 3.2.1981 alleging therein that on 3.2.1981 in the evening at about 6.00 p.m., he along with his brother Chhedilal who was Village Pradhan, Raghubir Singh, Bhola and Vijay Bahadur were warming themselves by fire (Kauda) in the verandah in front of the main door of his house. Lanterns were burning at his house as well as at the house of Roshan Singh which were hanging at their doors. Roshan Singh, who was his cousin brother, was performing prayer in the evening at the Chabutra in front of the doors of his house. The females of both the houses were busy in cooking food and 'dibris' were burning inside the two houses. They heard noise and foot steps of some persons coming from the north. As soon as said persons reached at the door of the house of Roshan Singh, he saw that 5-6 of them were having guns and one of them was having an axe (Kulhadi) and rest of the persons were armed with Tamanchas (country-made pistols) and were having torches. Some of them had masked their faces. 5-6 of them then climbed on the Chabutra of Roshan Singh and caught-hold of him, dragged him inside the house and rest of them started abusing and threatening. Chhedilal Pradhan ran to the house and bolted the doors from inside and rest of them ran towards west in Galiyara (Corridor) raising an alarm and challenging the miscreants. The miscreants thereupon fired gunshot which caused injuries to Rabhuvir Singh and Vijay Bahadur. The miscreants started asking Roshan Singh about his belongings, one of them picked up the gun and cartridges of Roshan Singh. They further asked from the wife of Roshan Singh about her belongings. When Roshan Singh failed to disclose about the articles, one of them fired a gunshot at him inside the house, who died instantaneously on account of the gunshot injury. The miscreants looted the articles given in the list mentioned in the report. While committing loot in the house of Roshan Singh, the miscreants were kept on going in and coming out to the house of Roshan Singh and flashing torches. On the alarm raised and hearing the fire shot, Basdeo, Ram Asrey, Laxmi Narain, Sheo Shankar, Rameshwar came with their guns. Fattey, Sumer, Buddhu and Gaya Prasad also arrived there with lathis. All of them started challenging the miscreants and flashing torches towards south of the house of Manni. The licensed holders also fired gun shots towards them. The miscreants who were 10-12 in number had after coming out of the house of Roshan Singh, went to the house of Chhedilal Pradhan and started abusing and asking him to open the door. When he failed to open the door, one of the miscreants broke the door with axe and 5-6 of them went inside the house. In the meantime, Raj Bahadur @ Rajau lit fire to the pual heap which was towards south of the temple which gave sufficient light. They fired gunshot at Chhedilal Pradhan inside the house where he died. They looted the articles and belongings of Chhedilal and during the act of looting the house of Chhedilal, they kept on coming out and going inside the house of Chhedi Lal. During the said process, the mask (Dhatha) of some of the miscreants had by that time unfastened. The witnesses, informant and family members of the house saw and recognized them in the light of lantern, torch, 'dibri' and pual light. They identified and recognized Baljit, Gaya Shankar @ Daya Shankar of the village and Ramraj Lodh of village Dadhiwa participating in the crime. It was stated by the informant that rest of the accused persons were seen and he could recognize them on being produced. He also claimed that some of the miscreants were seen in the dacoity committed in the house of Rampal, Harchhati and Rajaram. According to the written report, one of the miscreants was 'Adher' while the rest were young and were speaking in the accent of neighbourhood and they were wearing Kneekar, Paijamas, Dhoti, Kurta and Sweter. Upon the pressure of the people of the village and firing of the licensed holders of the village, the miscreants fled away towards north. They were chased to some distance. It was further stated that he could recognize the looted articles if produced before him.The informant leaving the dead bodies inside the houses and sending the injured witnesses, i.e., Raghubir Singh and Vijay Bahadur to the hospital came to the police station along with Gajraj.

4. In pursuance of the written report (Ext. Ka.1) submitted by the informant Deshraj at Police Station Malwan to Head Moharrir Ram Saran Singh (PW3), a First Information Report was registered at 22.00 hours on 3.2.1981 (Ext. Ka.2). PW3 further registered the case in General Diary (Ext. Ka.3) at Sl. No.34 in presence of Station Officer Siromani Singh.

5. Siromani Singh (PW7) Station Officer of police station Malwan took over the investigation of the case and proceeded to the spot on the same date and took into custody the dead body of the deceased Roshan Singh and conducted inquest proceedings in the next morning on 4.2.1981. He conducted the Panchayatnama on the dead body of the deceased Roshan Singh and proved the same as Ext. Ka.8 and thereafter sealed the dead body and prepared the sample seal (Ext. Ka.10). He then prepared the challan-nash and letter to C.M.O. (Ext. Ka.11 & 12). He reached the spot with carbon copy of the FIR Ext. Ka.13. He handed over the dead body of Roshan Singh to the Constables, namely, Ram Sajiwan Pandey and Chaukidar Vipati for being taken to the post mortem.

6. The Investigating Officer then took into custody the dead body of the deceased Chhedilal Pradhan and started inquest proceedings of the same and prepared the Panchayatnama (Ext. Ka.14) of the dead body of the deceased Chhedi Lal. He prepared the photo-nash (Ext. Ka.15) and also sealed the dead body in clothes and prepared the sample seal Ext. Ka.16. He then prepared the challan-nash and letter to C.M.O. (Ext. Ka.17 & 18). He had carried copy (Ext. Ka.19) of the FIR with him. He handed over the dead body of the deceased Chhedilal to the Constable Amar Singh for post mortem, who received police form no.33 from the R.I.

7. The deceased Roshan Singh was wearing paijama, one shirt and sadri baniyan. He took all the blood-stained clothes into custody, sealed the same and prepared recovery memo (Ext.Ka.20). From the dead body of deceased Chhedi Lal, he found a dhoti, one kurta, one sweter and one baniyan. He took them into custody which were blood-stained clothes, also sealed them and prepared recovery memo (Ext. Ka.21). He then recorded the statement of the informant Deshraj on the spot. He also recorded the statements of Panch witnesses and witnesses of recovery. He further recorded the statements of Basdeo and other persons also on that date. On the pointing out of the informant and the witnesses, he made spot inspection and prepared site plan (Ext. Ka.22). The place, where the deceased Chhedilal, Raghubir Singh, Bhola, Vijay Bahadur, Deshraj were said to have been warming themselves by fire (Kauda) at the time of occurrence, was shown by letter "C" in the site plan. The place where the fire was lit to pual heap was shown by letter "E" and the places where burning lanterns were handing in front of the houses and the places where 'dibris' were said to have been burning at the time of occurrence, were also shown in the site plan. He found five empty cartridges lying on the spot. He picked them in custody, sealed them and prepared the recovery memo (Ext. Ka.23). He also took sample 'Ash" of the burnt pual, sealed it and prepared the recovery memo (Ext. Ka.24). By the side of dead body of Roshan Singh, he recovered blood and also took the blood stained earth from there and plain earth from the adjoining place and put the same in separate containers and sealed them.

8. Similarly, from the side of the dead body of the deceased Chhedilal, he recovered blood stained earth from there and plain earth from the adjoining place and put the same in separate containers and sealed them and prepared its recovery memo (Ext. Ka.25 & 26). He thereafter examined the 'dibri' and lanterns of the two houses, found them in working order and prepared the fard supurdginama. Those fards were not available on record of the case. He made a search of the miscreants but they were not found in their houses.

9. PW6-Ramesh Chandra Dixit was examined by the trial Court and he being a Pharmacist has stated that Dr. V.K.Srivastava who was Medical Officer posted in District Hospital along with him examined the injured, namely, Vijay Bahadur and Raghubir Singh on 3.2.1981 and prepared the injury report (Ext. Ka.6 & 7).

10. The injuries examined by Dr. V.K.Srivastava of injured Vijay Bahadur is quoted here-in- below:-

"1. Multiple wounds of entry of size 0.5 cm. x 0.5 cm. each x depth, under observation on inner and front surface of lower part of right thigh in the area of 12 cm. x .5 cm. Margins are inverted, wounds bleeding. No blackening or tattooing. Advised X-ray.

2. Multiple wounds of entry of size 0.5 cm. x 0.5 cm. each x depth under observation on inner and front surface of left part of left leg extending upto sale in the area of 18 cm. x 5 cm. Margins are inverted, wounds bleeding. No blackening or tattooing. Advised X-ray.

3. Multiple wound of entry of size 0.5 cm. x 05 cm. each x depth, under observation on back of middle and left part of left thigh. No blackening or tattooing. Margins inverted. Advised X-ray.

4. Multiple wounds of entry of size 0.5 cm. x 0.5 cm. each x depth under observation on back and outer part of left leg in the area of 18 cm. x 7 cm. Margins are inverted. No blackening or tattooing, wounds bleeding. Advised X-ray."

11. He has proved the injury report of Vijay Bahadur prepared by Dr. V.K.Srivastava as Ext. Ka.6. According to him, all the injuries were caused by firearm and fresh in duration.

12. Similarly,the injuries examined by Dr. V.K.Srivastava of injured Raghubir Singh is quoted here-in- below:-

"1. A firearm wound of entry 0.5 cm. x 0.5 cm. x depth under observation on right side of cheek 4 cm below. The eye wounds was bleeding (oozing). No blackening or tattooing. Margins inverted. Advised X-ray.

2. Multiple firearm wounds of entry of size 0.5 cm. x 0.5 cm.x depth under observation on right side of neck and lower part of face in the area of 5 cm. x 5 cm. Margins are inverted. No blackening or tattooing. Advised X-ray, wounds are bleeding (oozing)."

13. He has proved the injury report of Raghubir Singh prepared by Dr. V.K.Srivastava as Ext. Ka.7. According to him, all the injuries were caused by firearm, fresh in duration. All the injuries were kept under observation and X-ray was advised.

14. PW4-Dr.S.R.Gupta has deposed before the trial Court that he was posted as Medical Officer of District Hospital, Fatehpur on 4.2.1981 and on that date at 3.30 p.m. he received dead body of the deceased Chhedilal through Constable Amar Singh who handed over the same to him and also identified the dead body. He conducted the post mortem of the deceased. Upon external examination, he found that the deceased Chhedilal was a man of average built of 55 years of age. Rigor mortis present in the upper limb and lower limb. Eyes open, mouth closed. Clotted blood adherent at places over the body. He found the following injuries on the dead body of the deceased Chhedilal:-

"1. Firearm wounds of entry with blackening and tattooing on the left side and inverted and lacerated margins measuring 1 ¼" x 1 ¼" cavity deep on the right side of chest, adjoining to the right border of sternum 2 ½" above and medial to the right nipple.

2. Firearm wound of entry on left lower side of chest in the front with blackening and tattooing on the upper border measuring 2" x 2 ½" x cavity deep 2 ½" below and medial to the left nipple and 2-1/2" below the injury no.1.

3. Multiple abrasion in an area of 3" x 1 ½" on the left side of chest lateral part adjoining to injury no.2.

15. He prepared the post mortem report of the deceased Chhedilal and proved the same as Ext. Ka.4.

16. Similarly, PW4 Dr. S.R.Gupta also received dead body of the deceased Roshan Singh which was brought by Constable Ram Sajiwan at 4.00 p.m., who handed over the same to this witness and also identified same. He conducted the post mortem on the dead body of the deceased Roshan Singh on 4.2.1981at about 2.05 p.m. and found the following ante-mortem injuries on his person:-

"1. Firearm wound of entry measuring 1 ½" x 1 ½" cavity deep with lacerated margins present on the left lateral side of chest 4" below the axilla and 3" lateral to the left nipple.

2. Firearm wound of entry measuring 2 ½" x 1 ½" x Cavity deep on the lower lateral side of left chest 2" below the injury no.1 with blackening and tattooing.

3. Abrasion on the right side of fact 1" x 1/2" lateral to lateral angle of right side eye.

4. Abrasion on the left side of face measuring 2" x 1" each (3 in number) placed horizontally 1/2" lateral to lateral angle of left eye.

5. Multiple abrasion in an area of 1 ½" x 1 ½" on the lower part of left forearm on posterior surface 2" above the wrist.

6. Abrasion at the base of left thumb on posterior aspect measuring 1" x 1/2".

7. Abrasion on the lateral aspect of right shoulder measuring 1 ½" X 1/2".

9. Contusion on the lateral part of right forearm 1 ½" x 1/2", 3" below the elbow joint placed obliquely.

10. Contusion on right forearm posterior surface 2" x 1/2", 2 ½" below the injury no.9.

11. Abrasion 1/2" x 1/4" on the forearm 1" above the wrist.

12. Contusion on the back of right hand 2" x 1/2".

13. Abraded contusion on the right side of thigh lateral aspect 2" x 1/2".

17. He found upon the internal examination, esophagus lacerated. Stomach empty. Omentum lacerated. Gall-bladder lacerated. Pallets are embedded. The substance weight 1 Db 16 ounce, spleen lacerated. According to the post-mortem report, the death was caused due to shock and haemorrhage as a result of firearm injuries.

18. PW7-Shiroman Singh, Investigating Officer of the case, has stated before the trial Court that he was posted as Station Officer of Police Station Malwan on 3.2.1981. On the said date at 10.00 p.m. in the night, the FIR of the present case was registered in his presence. He recorded the statements of the witnesses and also made search of the accused persons and came to know that the accused Gaya Shankar @ Daya Shankarand and Baljit had surrendered in the Court on 13.2.1981 and had interrogated the said accused in jail after obtaining permission from the Committing (Magistrate) Court on 20.2.1981. He also made search of other miscreants but in the meanwhile he was transferred. The earlier investigation done by him, reference of which has already been made above. After his transfer, the investigation was taken up by S.I.Sobaran Singh. He, in encounter with the third accused of this case, namely, Ramraj, sustained injuries and was stated to be under treatment in Halet Hospital, Kanpur.

19. The earlier Investigating Officer has stated before the trial Court that rest of the investigation was completed by S.I. Sobaram Singh against the accused Baljit and Gaya Sankar @ Daya Shankar and submitted charge sheet (Ext. Ka.27) against them.

20. The case after being committed by the Court of Sessions of learned Magistrate, the charges were framed against the accused Gaya Shankar @ Daya Shankar, Baljit and Ramraj under Section 396 I.P.C. and they pleaded not guilty and claimed their trial.

21. During the pendency of trial, the accused Ramraj died on 22.7.1982, on account of which his trial was abated.

22. Prosecution in order to bring home the guilt of the accused has examined PW1-Deshraj, PW2-Basdeo, PW5-Vijay Bahadur as witnesses of fact. The prosecution also filed affidavits of Ram Sajiwan Pandey (Ext. Ka.28) and Amar Singh (Ext. Ka.29), who had taken the dead body of the two deceased for post mortem after being handed over to them by PW6. Learned counsel for the accused did not press for the presence of the said Constables when their affidavits were given and they were marked as Ext. Ka.28 & Ka.29.

23. The statements of the accused Baljit was recorded under Section 313 Cr.P.C. by the trial Court in which he stated that he has been falsely implicated in the present case at the instance of S.I.Shiromani Singh and Diwakar Singh against whom his brother Prem Singh had filed a complaint before the learned Magistrate and he was a witness against them in the said case and the said two police personnel asked them not to press the said complaint, to which they did not agree and refused for the same, on account of which they also threatened that they would keep harassing them and the witnesses were speaking against them on account of pressure of local police and enmity.

24. The accused Gaya Shankar @ Daya Shankar further stated in his statement under Section 313 Cr.P.C. that 2-3-4 days after the occurrence, offence of dacoity was committed in the house of Roshan Singh in which he was murdered and his brother Prem Singh had instituted a complaint against Shiroman Singh and Diwakar Singh in which he was a witness and his evidence was recorded in the said case and it was on account of the said enmity, he was falsely implicated in the present case. Further, his evidence has been recorded in the said case.

25. The accused persons in their defence have filed three papers with a list 67B which are Ext. Kha 1 to 3, which are available on record.

26. We would now to deal with the evidence of witnesses of fact and in this contest statement of PW1-Deshraj who is informant of the case and real brother of the deceased Chhedilal and cousin brother of deceased Roshan Singh in his deposition before the trial Court has stated that Roshan Singh was living separately from them in another house. He and deceased Chhedilal lived together in the same house. The main door of his house towards north and that of Roshan Singh is towards west. There is a Galiyara (Corridor) north south in front of the house of Roshan Singh. That Galiyara goes towards east of his house (that is of this witness) to some extent and then turns towards south. That Galiyara is towards west of his house also. It is the only Galiyara in between the space of his house and the house of Roshan Singh. There is open land also in between the two houses. There is no other house between the said two houses. The door of his house ( i.e.,Roshan Singh's) is visible from the door of his own house. Towards west of the house of Roshan Singh, there is an open land and well and then the house of Munna after that Galiyara. He also said that about one year and two months back the dacoits had come to his house on 3.2.1981, he was warming himself by Kauda fire below his verandah. That verandah is towards north in his house and further north of that verandah there is the place, where Kauda had been ignited. There were his brothers Chhedilal, Raghubir Singh, Vijay Bahadur, Bhola and himself by the side of Kauda fire. Roshan Singh was absorved in prayer in front of his house on the Chabutra. A lantern was burning at the door of his house. Another lantern was burning at the door of Roshan Singh's house as usual. Family members of the houses of Roshan singh and of this witness were inside the respective houses. Dibiya were also burning in both the houses and the ladies were busy in cooking food. He heard noise of foot steps from the north of his house and then he saw 8-9 miscreants at the door of Roshan Singh. 4-5 of them were armed with guns and rest were armed with Tamanchas and torches. One of them was having an axe also. 4-5 miscreants had masked their faces. They caught-hold of Roshan Singh and dragged him inside the house, beating him. 2-4 miscreants remained outside his house and rest entered his house. All the other witnesses then raised an alarm and Chhedilal rushed to his house and chained the door from inside. All others who were by the side of Kauda fire ran towards west, towards house of Mannu raising an alarm. At the time when they were running away the miscreants fired gunshots from the Chabutra of Roshan Singh which caused injuries to Raghubir Singh and Vijay Bahadur. They reached the place towards south of the house of Munna. By the side of Galiyara they stood there and started raising alarm. On their cries, the licensed holders of his village, namely, Rameshwar, Sheo Shankar, Laxmi Narain, Basdeo, Ram Asrey came there with guns. Buddhu, Sumer Gaya Prasad, Fattey came there with lathis, torch and dandas and stood by the side of the house of Mannu, where they (i.e., complainant and the witnesses) had been standing. The dacoits at that time committing the offence of looting were inside the house and were abusing. 2-4 miscreantswere also outside his house and had masked their faces. The dacoits flashed torch light towards them from the place outside the house of Roshan Singh. They were coming out and going inside the house during the offence of dacoity in the house of Roshan Singh. The witnesses had also torches. They too were flashing torches and firing gunshots. The dacoits were also retaliating with gun shots.After committing dacoity in the house of Roshan Singh, the miscreants came out of his house and in order to get the door of Chhedilal's house opened, they started abusing. When Chhedilal did not open the door, they started breaking open the door with an axe. They broke open the door with an axe and intruded inside the house and started looting his articles. They kept on going in and coming out of the house and lighting torches during the course of dacoity. There situated a temple towards north of his house and adjacent to that temple towards its south there was Pual heap. Raj Bahadur @ Rajau lit fire to that Pual which gave sufficient light. 'Dhatas' of some of the dacoits had been unfastened. He saw the faces of dacoits in lantern, torch and light of the pual flames. Three of them were known to him from before and the rest were unknown persons. The known persons were Baljit, Daya Shankar alias Gaya Shankar of his village and the third man was Ramraj of village Dadhiwa of the circle of police station Ghazipur.The dacoits committed dacoity in houses for about half an hour. Upon the pressure of the people of the village, the dacoits went away towards north with the looted property. After the dacoits left the place of offence, he went inside the house and saw Chhedilal lying dead with gunshot injury in his 'Barotha'. That 'Barotha' lies at the place on way, inside the house. He then went inside the house and knew about the looted articles. He thereafter went to the house of Roshan Singh and saw Roshan Singh lying dead with gunshot injury. 'Dibiya' was burning inside the house of Roshan Singh. He knew about the looted articles of the house of Roshan Singh also. The dacoits had carried away DBBL gun of Roshan Singh, gold and silver ornaments and clothes of the two houses. He then dictated the report of the occurrence to Sheo Shankar. The scribe Sheo Shankar after writing it out, read over to him and thereafter he put his signature on the same, which is marked as Ext. Ka.1.With the said written report, he then went to the police station Malwan and reached there at 10.00 p.m. in the night and Gajraj accompanied him there. The two witnesses, namely Raghubir Singh and Vijay Bahadur who had sustained injuries were sent to Fatehpur Hospital in the night. Their medical examination was performed in the same night. On the basis of written report, FIR was registered. The Sub-Inspector and police constables then came to the village at night. He had shown the place of occurrence to the Investigating Officer who recorded his statement. The 3rd accused Ramraj was the sister's son of Sheo Nath of his village, due to which he was known to him. In cross-examination, he further stated that Baljit and Gaya Shankar @ Daya Shankar are brothers. They have two other brothers, namely Prem Singh and Ranjit Singh also. Their father is Bihari who is alive. They reside with their father in the village. Youngest of them is Daya Shankar @ Gaya Shankar. Their father owned 30-35 bighas of land and tubewell. Prior to the occurrence of this case, Baljit had never been challaned. Daya Shankar @ Gaya Shankar was arrested in a case in preparation to commit dacoity and had to face trial 1 ½ years back. He did not know if that case had been decided or it was pending till then. He also did not know if Gaya Shankar @ Daya Shankar was acquitted in that case or not. Prior to that 'Girohbandi' case, neither Daya Shankar nor any one of his family member was arrested, although Vijay Bahadur of Bhalewan used to reside with them. After the occurrence of that Girohbandi and prior to the occurrence of this case Prem Singh and Ranjit Singh were challaned in a dacoity case. He then said that Prem Singh had got this bail cancelled and had surrendered in Court on the same date, on which the occurrence of this case had taken place or 2-3 days prior to it. He did not know if Prem Singh had instituted a complaint case during the period after Girohbandi case and prior to the occurrence of this case against two Sub-Inspector separately. He also did not know if the said two accused are witnesses in those two complaint cases against the police personnel. He or his family members had no enmity with any of these accused persons. People of family members of Daya Shankar were saying that the deceased Chhedilal had got implicated Gaya Shankar @ Daya Shankar in Girohbandi case. It was wrong to say that on account of that enmity and upon seeing the Raghibir Singh and Raj Bahadur in collusion with the local police, he had implicated the accused persons in this case falsely. He then stated that the dacoits had committed the offence for about one hour in his house and in the house of Roshan Singh. It had taken 1 -½ hours in ascertaining as to what articles were looted. He is class XI fail. He also stated that on account of the fact that he was worried with grief, his hands and feet were shivering due to which he asked the scribe to write down the report upon his dictation at the time when the report was scribed. Rabhibir, Rajau @ Raj Bahadur or any other witnesses was not present there. The report was written inside the house. Prior to writing of that report, Raghubir Singh and Vijay Bahadur had gone to Fatehpur Hospital o bullock-cart. Fattey his father's brothers wife and Mohanlal had brought them there and they had started from the village at the time in his presence. From the police station, he came to Fatehpur directly. He had gone to the police station on Cycle and from the police station he came to District Hospital, Fatehpur along with S.I. and constable on cycle. They had reached Fatehpur Hospital at about 12.00 at night. From the Hospital, he went to the village at about 12.30 a.m. at night. Shiroman Singh S.O. had gone to his village on such occasion. He did not know the name of the constables who had accompanied him there. There was dearth light, due to which Panchayatnama proceedings were drawn on the next morning at 8.00 a.m. On reaching the spot, the Investigating Officer had inspected the places inside the houses of occurrence and had done nothing else in that night. At the time when he had reached the police station to lodge the FIR, the S.O. Shiromani Singh was present there and the FIR was registered in his presence. The person who had recorded his FIR had not come to his village. He denied that his FIR was not registered at the police station. He also denied that the written report was prepared in the morning by the S.I. in the village. The dead body was sent by bullock-cart at 10-11 a.m. on the next date of occurrence. His village is at a distance of three miles from Fatehpur. It takes one hour for the bullock cart to reach Fatehpur from his village. Healthy and fast bullocks can reach Fatehpur in half an hour also. The police station is 10 miles from his village. The Investigating Officer had recorded his statement in the morning after night of occurrence. He had also recorded the statements of Basdeo and Sheo Shankar. He did not know as to whether he had taken down the statements of other persons also or not. He also stated that there is one 'Dar' outside his house and in front of it there is a Verandah or Chapper. There is Chhaper in front of his house. It was two cubits wide. There is no Chhaper or roofed Verandah in front of his house. His Chhaper is on brick pillars. Lantern was hanging by one such brick pillar. He had shown that lantern to the Investigating Officer. He had taken that lantern in his custody, but did not know if he written any document in that behalf of nor. He also did not know as to whether the Investigating Officer had gone away with that lantern or not. He was not in a position to say as to whether the Investigating Officer had taken lantern and 'dibri' of the house of Roshan Singh and of his own house or not. He also did not know as to whether the Investigating Officer had prepared document for 'dibri' and lantern or not. Two of the witnesses of the village were having torches with them. They were witnesses of this case. The Investigating Officer had not taken the torches of those persons. The door of the house of Roshan Singh is at a distance of 20 cubits towards west from his house. He had run away at the time when the dacoits had come and caught hold of Roshan Singh and had started beating him. Chhedilal had also run to his house at that time. The house of Munnu is at a distance of 40-50 cubits towards west. The door of the house of Munnu is towards west. He had also a door towards south in his house. Munnu's other door is towards west. The dacoits were fining from the door of the house of Roshan Singh. They had fired 20-25 gunshots and were roaring Ram Asrey, Raghubir "Aa-Jao". The dacoits were firing gunshots towards them. As soon as the dacoits had come and they had run, gunshots were fired causing them injuries. Nobody else had received pellets injuries. He had gone in the corner or by the side and Raghubir and Vijay Bahadur had been on Rasta. It was on account of all that he did not sustain pellet injury and those persons were injured. He was seeing the occurrence from the side of the western door or Munnu. On account of his being by the side of western wall of that house, he did not get pellet injury on account of any of the 20-25 gunshots. The dacoits had climbed the roof of the house and were flashing torches by movement of torch in hand and were firing gunshots. Initially, gunshots were fired from ground and then for 5-6 minutes they went up and started firing gunshot from there. At the place, from where he was seeing the occurrence, Rameshwar, Basdeo, Laxmi Narain, Ram Asray, Sumer Buddhu, Gaya Prasad were also present. The Galiyara by which he came from his house to the house of Munnu is 4-5 cubits wide. In front of the house of Roshan Singh, there is a rasta and then a Khandhar. Towards north of that Khandhar, there situated the house of Chhedilal son of Jagannath. In that house of Chhedi Lal, there are two Kothris and a Chappar in front of them. After the house of Chhedi Lal, there situated the house of Munnu Lal, from the side of the western door of Munnu Lal, the house of Roshan Singh can be seen from the Chakroad. The door of Roshan Singh cannot be seen by standing by the side of the western door of Munnu. The miscreants were 8-9-10-11 in number. 4 or 5 of them had masked their faces. Their faces had been unmasked at the time when they were going in and coming out of his house in that occurrence. Some of them were having 'Dhathas' and the 'Dhathas' of others had been unfastened by that time. He had told the Investigating Officer that 4-5 dacoits had masked their faces with Dhathas. In case the Investigating Officer had not recorded the number of 'Dhatha' men in his statement, then he was not in a position to give a cause of it. Gaya Shankar and Baljit had also masked their faces with 'Dhathas'. He had recognized them by their voice etc. He had also recognized them by seeing their body or body-built. He then said that he had not incorporated the fact in his written report that he had recognized those persons by "Boli Bani" and body built. Although he had said so before the Investigating Officer, in case the Investigating Officer had omitted to record that fact in his statement, then he was not in a position to give a cause of it. He had forgotten to incorporate that fact in his written report. Other miscreantsof this case were also arrested. He had gone to jail for identification on 2-3 times but he could not recognize any of them on such occasions. He had gone to jail on 19.4.1982 also to recognize four dacoits, but he had not recognize any of them. He then said "Mai Shinakht Nahin Kar Paya Iska Karan Yah Hai Ki Mai Mauke Par Tha, Bhid Bhadakka Men Koi Andar Hai Koi Bahar Hai Isliye Pachan Nahin Paya."

27. He had seen the miscreants from two places. Once he had seen them from the side of the door of the house of Munnulal and then again from the house of roof of Munnu at the time when Pual was put to fire. At that time, when he had climbed the roof of Munnu, all those who were present there, had also climbed. Upon the lightening of Pual heap, sufficient light had spread. License holders had been firing gunshots by concealing themselves and when the dacoits came out from his house and rant towards north, then they chased them firing gunshots and seeing them. He had seen Daya Shankar, Baljit and Ramraj. People of the village were also raising hue and cry and were firing gunshots. The dacoits were also firing gunshots while going away. Neither the gunshots of the miscreantscaused any of them injuries nor the gunshots of the village people caused injury to the culprits. At the time when the dacoits used to fire gunshot, the people of the village used to lean. The gunshots of the people of the village was not striking any of them because they were running zig-zag. There was a distance of 100-125 steps in between the people of the village and the dacoits when they were running away. He had not given the fact neither in his written report nor in his statement before the Investigating Officer that he had seen the occurrence from roof, because he had forgotten it. It was wrong to say that he was not present on the spot at the time of occurrence. It was also wrong to say that there was no arrangement of light at the time of occurrence. It was also wrong to say that on account of enmity between the accused persons and the Investigating Officer, he implicated them upon the saying of the Investigating Officer.

28. PW5-Vijay Bahadur (injured) stated in his evidence, inter-alia that his father's sister resides in village Dalipur and he used to visit her place in that village. He had gone to that village on the date of occurrence at 4.30 p.m. About one year five months back at about 6.00 p.m. offence of dacoity was committed in the house of Roshan Singh and Chhedilal in village Dalipur. Roshan Singh is his father's sister son. At the time of dacoity he was warming himself by Kauda fire in front of the door of Chhedi Lal. At that place, children of Chhedi Lal, Deshraj, Bhola, Raghubir were also present and were sitting by his side. Lantern was burning at the door of Roshan Singh and Chhedu. 10-12 miscreants armed with guns, Tamanchas and Kulhadi, came there at that time.They were having torches with them. 5-6 of them were having guns, 2-3 had Tamanchas and one of them was armed with Kulhadi. Reaching there, the miscreants caught-hold of Roshan Singn and started beating him. They dragged him inside his house. Consequently they (all those who were by side of Kauda fire) went towards western Rasta. Chheddu went to his house and closed the door from inside. The dacoits started committing dacoity inside the house and the witnesses kept on raising hue and cry. On their cries, Basdeo, Ram Asrey and many other persons came there. Ram Asrey and Basdeo were having guns. Gunshots were exchanged between the dacoits and people of the village. In the meantime, Raj Bahadur lit fire to Pual heap which was lying towards south of the temple.That Pual heap was at a distance of 7-8 cubits from the door of Roshan Singh. It gave sufficient light opening firing the dacoits, he and Rabhubir had sustained injuries. The dacoits killed Roshan Singh inside his house. They broke open the door of the house of Chheddu and committed dacoity there. They killed Chheddu also. They committed dacoity in the two houses for about 1 ½ hours. They had committed dacoity in the house of Roshan Singh first and then in the house of Chheddu. During the course of dacoity, the dacoits had been coming out and going inside the houses. Amongst the dacoits he had seen and recognized Baljit, Ramraj and Gaya Shankar. Gaya Shankar and Baljit are present in Court. Ramraj was having a gun in his hand whereas the Baljit was armed with a Tamancha and Gaya Shankar had a torch. All of them had masked their faces with 'Dhathas'. While going in and coming out of the house their 'Dhathas' had been unfastened. He had seen and recognized the dacoits in the light of Pual flames, torch and lantern. The dacoits after committing the dacoity had decamed with the booty towards north. He knew Ramraj, Gaya Shankar and Baljit for 7-8 years from before the occurrence. His injuries were examined at the District Hospital. He had sustained injuries on both the legs. He had seen other dacoits also, but he could not recognize them. He had no enmity with any of those three dacoits. Chheddu and Roshan Singh had enmity with those persons from before. Baljit and Gaya Shankar reside in Dalipur and are real brothers. Ramraj is dead. He too resided in their house in Dalipur. The house of Baljit and Gaya Shankar in Dalipur was raided and they had misunderstanding that it was done on account of Chheddu and Roshan Singh.

29. In cross-examination this witness stated that the Investigating Officer had not recorded his statement in connection with the occurrence of this case. In case, he had recorded his statement, then he was not in a position to say as to how he had recorded that statement. He then stated further that out of the culprits, 5-6 miscreantshad caught-hold of Roshan Singh and had taken him inside the house, beaten him. Rest of the dacoits had kept on standing outside the door and on the Rasta. All of them had covered their faces with 'Dhathas'. Besides the 'Dhathas' those (named), 'Dhathas' of 2-4 other miscreants had also been unfastened, but he could not recognize them. The 'Dhathas' of all such named three miscreants and other had been unfastened during the course of looting. He had seen the faces of other miscreants also but he was not in a position to give their Holiya nor could he recognize them. He further stated that 'Ramraj Ko Pahchana Hi Tha Choonki Anya Badmash Aparchit The Isliye Unhe Nahin Pachan Saka tha. Ramraj, Baljit ya Gaya Shankar Choonki Pahiley Se Parichit the Isliye Unhe Pachan Gaya Tha."

30. The miscreants when reached there, Deshraj, Bhola, Raghubir and this witness himself had run towards west on the Rasta. While running in that direction he had not sustained injury. On running towards west up to some distance they had stopped at one place and had gone in the concealment behind the well which is situated after three houses after the house of Chheddu. He was not in a position to say as to in front of whose house that well was situated. All the witnesses had seen the occurrence from the side of the Jagat of that well. The witnesses had fired towards the dacoits from the same place.That well is situated at a distance of 8-10 cubits from the house of Chheddu. He and all the other witnesses had remained by the side of the Jagat of that well and during the course of dacoity, they kept seeing the offence from that place. They had moved from that place after the dacoits had gone towards north. The dacoits had kept on firing throughout the duration of the occurrence in the direction of that well. He was not in a position to give the boundaries of the house of Chheddu nor could he give the boundaries of the house of Roshan Singh. He and Raghubir Singh had sustained pellet injuries at the time when they were committing dacoity in the house of Roshan Singh. They had sustained those injuries at the place when they were standing by the side of Jagat of that well. He had sit down on getting those injuries by the side of well. It was denied that they had seen the occurrence from the door of the house of Munnu. During the course of dacoity Ramraj was standing on the roof of the house of Roshan Singh. Written report of the occurrence was not scribed in his presence. He had not talked with Deshraj prior to the writing of that report. In regard to the offence of this case, he had for the first time made statement before the Court. The main door of the house of of Roshan Singh was towards west. There are three doors in his house in that direction. In front of those doors, there is a 'Dasa' of knee height on the door, which is towards south of the house of Roshan Singh on the corner, there was a peg by its side where burning lantern was hanging. That peg was at the height of 6-7 feet from the 'Dasa'. There is one door in the house of Chheddu and in front of that door, there is his Chabutra and Chhapar. In front of the door there is a Chaupal also having a door. In the south of that Chaupal burning lantern was handing by a peg. That lantern was towards east of the main door of that Chaupal. That Chaupal is of 6-7 cubits in width. There is Chapper 2-4 cubits in width, in front of that Chaupal towards north of it there is a Rasta he did not note that lantern after the occurrence. He also did not note the maker of that lantern. He had proceeded to Hospital from Dalipur at 8.00-8.30 p.m. at night by a bullock-cart. Raghubir was also on that bullock-cart with him. That bullock-cart was driven by Dinesh. Nobody else had accompanied them. In the hospital only one constable had come at night. Deshraj and the S.I. had not come to him there. The house of Roshan Siingh is towards north of the well. In between that well and the house of Roshan Singh, there was Pual heap which was put to fire. Fire was lit to Pual heap at a distance of 6-7 cubits from the house of Roshan Singh. Father of Baljit etc. is the 'Mama' of the deceased accused Ramraj. He had known about the fact that their house was raided, from Roshan Singh and Chheddu. Their house was not raided in his presence. He knew about the enmity between Roshan Singh and Chheddu and the accused persons on account of that raid. The enmity between Roshan Singh and Chheddu and the accused persons was known to him. It was wrong to say that there was no arrangement of light at the time of occurrence. It was also wrong to say that he had seen or recognized any of the culprits. It was wrong to say that he was speaking false statement against those accused persons.

31. PW2-Basdeo stated in his evidence, inter-alia; that offence of dacoity was committed in the house of Roshan Singh and Chheddu at 6-7 p.m. one year and two months back. He was at that time in his house. His house is situated at a distance of 3-4 houses towards south from the house of Roshan Singh.On hearing the noise of gunshots and cries, he took his licensed arm and ran to the place near the house of Munnu. Laxmi Narain, Fattey, Gaya Prasad, Rajau @ Raj Bahadur, Raghubir, Brij Bahadur and many others 10-20 persons had collected there. Laxmi Narain, Ram Asray, Sheo Shankar and Rameshwar had also guns with them. Rest were having lathies and torches. Fattey etc. were having torch. He saw from there that the dacoits were coming in and going out of the house of Roshan Singh while committing dacoity, hue and cry was being raised inside his house. Outside the house of Roshan Singh a burning lantern was hanging by a peg. The dacoits had torch with them which was being flashed intermittently. The dacoits then came out of the house of Roshan Singh and came to the door of Chhedilal.They were 8-10 in number. Some of them were having guns, others were having Tamanchas and torches. Reaching the house of Chhedilal they broke open it by 'Kulhada' and went inside Chhedilal's house. There was another burning lantern at the door of Chhedilal. Rajau @ Raj Bahadur had put firer to Pual heap. 2-4 dacoits had remained outside the house of Chhedilal and rest had intruded his house. Those who were outside, were threatening in abusive language. They were also firing gunshots. In order to drive the dacoits, they too had fired gunshots. They had flashed torches towards the dacoits. Some of the dacoit had covered their faces with 'Dhathas.' 'Dhathas' of some of them had been unfastened while they were coming in and going out of the hose. They had committed dacoity for about 1 ½ hours in the two houses. Upon the pressure of the people of the village, firing and hue and cry, the dacoits went away towards north with the booty. He had seen and recognized the faces of dacoits in the light of Pual, lantern and torches, that in the torches were flashed from both the sides. They were 9-10-11 dacoits in number of whom he had recognized three-Ramraj of Dadhiwa, Daya Shankar @ Gaya Shankar and Baljit of his village. Rest of the dacoits were unknown, their faces had been covered earlier, but their 'Dhathas' had been unfastened later on. They had chased the dacoits upto the distance of 1-2 fields and had then returned back to the house of Roshan Singh and Chhedilal. Roshan Singh was found lying dead inside his Kothri after doors. He had gunshots wounds. There were wife and children of Roshan Singh inside his house. A 'dibri' was burning there. From the house of Roshan Singh they ( i.e. witnesses) came to the house of Chhedilal and found Chhedilal lying dead in the Kothari where fuel wood had been stored. Chhedilal's brothers daughter Urmila was there inside the house. His wife was not there. A 'dibri' was burning there. He also stated that Brij Bhushan and Raghubir had sustained injuries in the occurrence of this dacoity. Brij Bhushan resided in village Ghanshyampur and is related to Roshan Singh deceased. He had come to Roshan's place on such occasion. He also said that Brij Bhushan may have been called by another name also. He then stated that the Investigating Officer had visited his village and had recorded his statement. Ramraj (accused) had his Nanihal in his village. He was the son of cousin sister of father of Daya Shankar accused. Baljit and Daya Shankar are present in Court.

32. He denied that Prem Singh, brother of the accused persons was a witness in that report. He then stated that the offence of dacoity of this case was committed at 6.00 pm. to .30 p.m. in the evening and Sub Inspector had come to his village at 12.00-12.30 a.m. (at night). He had 3-4 constables also with him. He himself was at that time at the door of Chhedilal. That S.I. was the Station Officer of the police station. He did not know his name. At the time of visit of the Station Officer Laxmi Narain, Raj Bahadur, Gaya Prasad, Sheo Shankar, Ram Asrey and many other persons were present at the door of Chhedilal. The Investigating Officer had made inspection and had enquired people at night. Deshraj was also there at that time. The Station Officer had recorded his statement at the time when he had drawn the proceedings of Panchayatnama. Those proceedings were drawn during the day time and after that Panchayatnama, his statement was recorded. The statements of Fattey, Maikoo, Deshraj, Bhagwan Deen, Gaya Prasad and Raj Bahadur were also recorded. He had done so after putting the dead body in sealed cover. He had obtained signatures of 4-6 persons of Panchayatnama and when his statement was recorded, their signatures were obtained. The dead-bodies were then carried from the place at 10.30-11.00 a.m. The Sub-Inspector had, at night, only asked from the people about the occurrence and had made inspection but he had not recorded the statement of anybody in 'dibri' light.

33. He had also seen persons on a roof of the house of Mannu, but he could not recognize them on account of distance, as to who of them belong to his village and who was outsider on that roof. Deshraj, on seeing him remained with him till the time the dacoits had left the place of occurrence.

34. The occurrence had taken place on 'Amavasya' day. There were clouds in the sky. The miscreantscould not be arrested and as such he was not not in a position to say as to whether any of them had sustained pellet injury or not. It was evening time although the night on that day was dark. At the time when the miscreantshad reached there, sun had set in and it had become somewhat dark to the extent man of the distance 20-25 yards could not be seen. After the occurrence of this case, other miscreants were arrested and he had gone to District Jail Fatehpur to identify them, twice. He had not recognized any of the miscreants of the occurrence of this case in those two identification parades. He also said that 7-8-10 persons or miscreants had stood in the identification parade but he could not recognize as to whether any of them had committed the offence of this case or not. He was not sure if all such persons or any of them were or were not involved in the offence of this case. It was wrong to say that he was not present at the time of the occurrence on the spot due to which he could not identify any of the miscreantsin the identification. He also said that from the Pual that was put to fire in the occurrence of the case, the Investigating Officer had taken sample ash and had put it in a container. It was wrong to say that the accused Baljit was present at the time of occurrence and was amongst the people of the village. He had not seen the accused Daya Shankar after the occurrence of this case. He denied that the accused Daya Shankar was not amongst the miscreants of the offence of this case or he had gone out of the village on that date. He denied that he was speaking falsehood on account of friendship with Deshraj and pressure of the Investigating Officer. He further denied that there was no 'dibri', lantern or torch on the spot at the time of occurrence. He also denied that he was speaking against the Baljit and Daya Shankar on account of partibandi in the village. He denied that the accused persons Baljit and Daya Shankar were not present on the spot at the time of occurrence. According to this witness, he was present at the time of arrival of the Investigating Officer.

35. Heard Sri Rajiv Lochan Shukla, learned Amicus Curiae for the appellant and Sri J.P.Tripathi, learned AGA appearing for the State and perused the lower court record.

36. It is contended by learned counsel for the appellant that three accused persons, namely, Baljit , Gaya Shankar @ Daya Shankar and Ram Raj were named in the FIR along with nine unknown miscreants. He pointed out that from the FIR as well as from the evidence of PW1, PW2 and PW5, namely, Deshraj, Basdeo and Vijay Bahadur who are witnesses of fact and eye witnesses of the occurrence, it is apparent that a dacoity took place in the house of the two deceased, namely, Roshan Singh and Chhedilal and the dacoits/miscreants were 10-12 in numbers. The said three witnesses of fact including the injured witness, namely, Raghubir Singh and Vijay Bahadur have only identified the three accused persons named in the FIR including the appellant, out of whom accused Baljit and appellant Gaya Shankar @ Daya Shankar are the real brothers whereas the accused Ramraj happens to be maternal uncle of other two accused named in the FIR as it was stated that during the process of looting the houses of the two deceased, miscreants were coming in and going outside the two houses and in that process their mask (Dhathas) were unfastened, due to which they have been identified by PW1, PW2 and PW5 .

37. He next argued that the accused Baljit and Gaya Shankar @ Daya Shankar are the resident of the same village where dacoity had taken place where the three witnesses of fact reside. So far as the third accused Ramraj is concerned, no doubt he belong to another village but he happens to be relative of the two accused Baljit and Gaya Shankar @ Daya Shankar as he was maternal uncle's son.

38. He further submits that naming of the three accused in the FIR by the three eye witness is only at the instance of Sub-Inspector Siromani Singh and Sub-Inspector Diwakar Singh, who were police personnel, as against whom their brother Prem Singh had filed a complaint before the learned Magistrate for the offence under Section 342, 323 I.P.C. etc. and they were the witnesses against them and it was being pressurized by the said two police personnel for withdrawing the case but they refused to do so, hence, they were falsely implicated in the present case and this has been a categorical stand taken by the two accused Baljit and Gaya Shankar @ Daya Shankar in their defence before the trial Court.

39. He next submitted that the place from where the three eye witnesses, i.e., PW1, PW2 & PW5 are stated to have witnessed the occurrence goes to show that the said witnesses when failed to see the incident from the said place, they shifted their place of witnessing the incident deliberately to come closer to the place where the actual incident had taken place as they could not see the incident if they were present at the house of Munnu from where the place of incident could not be visible. Moreover, the source of light, i.e., lanterns and 'dibries' which have been shown at the place of occurrence were not the sufficient source of light in which the real assailants could be identified as it was dark 'Amayashya' night as it has come in the evidence of PW1, PW2 & PW5.

40. Learned counsel for the appellant has drawn the attention of the Court towards the statement of PW5 wherein he has stated that he was witnessing the incident from the house of Munnu and thereafter climbed on the roof and one of the accused Ramraj also climbed on the roof of Roshan Singh.

41. He submitted that in village on the day of incident dacoity took place and two persons shot dead and two person received injuries by dacoits and when actual miscreants could not be traced out or identified, then the present appellant along with his real brother and maternal uncle's son was implicated in the present case.

42. He further pointed out that as per the statement of the injured witness PW5 it is apparent that the accused Baljit and Ramraj were carrying firearm weapons, whereas the appellant Gaya Shankar @ Daya Shankar was having torch, meaning thereby if the statement of the said injured witness is accepted, the appellant Gaya Shankar @ Daya Shankar did not cause any injury either to the injured or to the deceased, whereas the two other witnesses PW1 and PW2 have given general allegation against all the miscreants for committing dacoity of the two deceased Roshan Singh and Chhedilal and stated that some of them were armed with firearm weapons whereas one was armed with Kulhadi and they were engaged in committing loot and dacoity in the two houses.

43. It was lastly submitted that the conviction of the appellant by the trial Court on the basis of prosecution evidence is not at all acceptable as it is a case of dacoity and two real brothers including the appellant along with their maternal uncle's son have been implicated and it was what a co-incident that only three brothers mask (Dhathas) was unfastened, such evidence was made by the witnesses in collusion with the police to make it sure that the two murders in the village has been worked out by implicating the innocent persons. The appellant has no criminal history. He is not involved in any criminal antecedents. No incriminating article has been recovered either at the point out of the appellant or from this possession, hence, participation of the appellant in the present case is doubtful.

44. Learned AGA on the other hand, has vehemently opposed the arguments advanced by learned counsel for the appellant and submitted that the two persons have been done to death and two persons received injuries in the incident and the evidence of PW5 who has identified the appellant, his brother Baljit and accused Ramraj who had participated in the incident, were amongest the dacoits who were 10-12 in number and it cannot be a co-incident that mask (Dhathas) of all the three accused could be unfastened, hence, the trial Court has rightly convicted and sentenced the appellant.

45. We have considered the submissions advanced by learned counsel for the parties and have also perused entire evidence along with the lower court record as well as the impugned judgement and order passed by the trial Court.

46. It is an admitted fact that two persons namely, Chhedilal and Roshan Singh have been shot dead in their houses and two persons, namely Raghubir Singh and Vijay Bahadur received injuries in the incident. The incident had taken place in the dark hours in the evening and source of light which has been mentioned is lanterns hanging at the doors of the two houses of the deceased as well as of 'dibri' burning in the house including the torch light which is said to have been with witnesses who arrived at the place of occurrence, in which it is stated that amongest 10-12 dacoits, the three accused including the appellant were identified who are named in the FIR and it is stated that the mask (Dhathas) by which the dacoits had covered their faces, had been unfastened during the process of looting in the house of the two deceased and the three accused including the appellant were identified and were named in the FIR by PW1.

47. The question whether the accused persons named in the FIR including the appellant have participated in the crime in question or not, that has to be adjudged by the Court from the evidence of witnesses of fact and other circumstances narrated by the prosecution. In this regard the first of all it is necessary to examine the evidence of PW5 who is injured witness and from his evidence it is absolutely clear that there were 10-12 miscreants who had come in the village and were armed with guns, country-made pistol, torches and one of them was armed with an axe for the purpose of committing dacoity (loot) in the house of the two deceased, namely, Roshan Singh and Chhedilal and when the two deceased failed to disclose their belongings, they were shot dead by the miscreants in their houses by firearm weapons. The miscreants had covered their faces with mask (Dhathas) and in the process of coming out and going inside the houses of the two deceased where the dacoity was being committed by them, the mask of the accused who were 4-5 in numbers had been unfastened and three accused namely, Baljit, Gaya Shankar @ Daya Shankar and Ramraj were identified by him and rest of the accused whose mask were unfastened could not be identified. He further went jail for identifying the accused involved in crime but he failed to identify them, which goes to show that he could not identify the real miscreants involved in the crime committed in the houses of the two deceased and it was at the instance of the police personnel S.I. Siromani Singh and S. I. Diwakar Singh against whom a complaint was filed by the brother, namely, Prem Singh of the accused Gaya Shankar @ Daya Shankar and Baljit under Section 342, 323 I.P.C. for harassing him and the two accused Gaya Shankar @ Daya Shankar and Baljit who were witnesses against them in the said case and evidence of accused appellant Gaya [email protected] Daya Shankar has also been recorded in the said complaint case and the two police personnel were pressurizing them to withdrawing the said case and not to pursue the same, which was refused by them, hence they have been implicated in the present case.

48. No doubt PW5 is an injured witness but he has failed to identify the actual assailants involved in the present case though he visited 2-3 times to identify them and only identified three appellants out them as accused Baljit and Gaya Shankar @ Daya Shankar, the two real brothers, who belonged to his village and they were known to him from before and when he failed to identify the real miscreants involved in the murder of the two deceased, he implicated the three accused persons including the appellant at the instance of said two police personnel, hence, his testimony also is not wholly reliable and it would not be safe to convict the accused on his testimony.

49. Similarly, PW2 also belonged to the village of accused appellant. The two accused Bajjit and the appellant belong to the village of PW2 and of the deceased and his testimony is also not reliable as he too appears to have been deposed against the appellant being relative of the deceased and under the influence of police personnel.

50. The place from where the witnesses are said to have seen the incident when it was dark, it was not possible for them to identify the actual assailants, hence they failed to identify the actual assailants and falsely implicated the accused including the appellant who were known to them from before under the influence of the police.

51. It is significant to mention here that even if the statement of PW5-Vijay Bahadur is taken into consideration so far as appellant is concerned, he is said to have only a torch and no firearm weapon was with him, which further goes to show that his false implication in the present case is quite possible by him under the influence of police personnel.

52. It further appears from the evidence of PW1 Deshraj that the incident had taken place in the evening at 6.00 p.m. on 3.2.1981 and FIR was lodged at 10.00 p.m. in the night by him at the police station which was at a distance of 10 miles and perusal of the FIR shows that it is in a great detail giving inventory of the articles which were looted from the houses of the two deceased which further goes to show that after the incident had taken place in which two persons were shot dead and two persons received injuries, it is highly improbable and beyond imagination to think that such a detailed FIR could be lodged in a short span of time, meaning thereby that the present FIR appears to have been lodged after due consideration and deliberation with the police by PW1.

53. The findings which have been recorded by the trial Court against the accused persons including the appellant convicting them for the offence in question does not sound to reason as the trial Court has failed to appreciate the fact that in a case of dacoity where there are 10-12 miscreants, only three persons, out of whom two real brothers and one maternal uncle's son of the two accused, can it be a co-incidence that mask of the said three accused were only unfastened in order to enable the witnesses to identify them, which appears to be far-fetch from the truth. The accused Baljit died during the pendency of trial and accused Ramraj is stated to have been died in police encounter, hence, it would not be safe to convict and sentence the appellant Gaya Shankar @ Daya Shankar on the basis of the evidence led by the prosecution witnesses of fact who failed to identify the real miscreants involved in the crime who were 10-12 in number and only identify the appellant and his real brother Baljit and Ramraj, his maternal uncle's son (i.e., his cousin) though PW5 injured witness had gone in jail 2-3 times to identify the real accused but failed to identify the accused. Moreover, no recovery of any incriminating article has been made from possession or pointing out of the appellant. He has no criminal antecedents.

54. In view of the forgoing discussions, the accused appellant Gaya Shankar @ Daya Shankar is entitled for the benefit of doubt. Hence, conviction and sentence of the appellant Gaya Shankar @ Daya Shankar is liable to be set aside by this Court. It is, accordingly, set aside.The appeal stands allowed.

55. The appellant is acquitted of the charges, unless otherwise wanted in any case.

56. The appellant is stated to be in jail, he shall be released forthwith, unless otherwise wanted in any other criminal case.

57. It is further directed that the accused appellant Gaya Shankar @ Daya Shankar shall furnish bail bond with surety to the satisfaction of the Court concerned in terms of the provision of Section 437-A of Cr.P.C.

58. Let the lower court record be transmitted to the trial Court concerned for its information and compliance forthwith.

59. The assistance rendered by Sri Rajiv Lochan Shukla, learned Amicus Curiae in disposal of the present appeal is appreciated by this Court.

	  (Dinesh Kumar Singh-I, J.)     (Ramesh Sinha, J.) 
 
Order Date :30.05.2019
 
NS