Allahabad High Court
Devendra Singh And Others vs State on 19 August, 2025
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No.-2025:AHC-LKO:48359 Reserved/AFR
Court No. 10
Case :- CRIMINAL APPEAL No. - 19 of 1993
Appellant :- Devendra Singh And Others
Respondent :- State
Counsel for Appellant :- S.H. Ibrahim,Amarendra Kr. Bajpai,Divesh Mishra,I K Mishra,I.P. Singh,K.K.Tewari,Kaushlendra Tiwari,Ratnesh Agnihotri,Rishad Murtaza,S K Shukla,Sachidanand Mishra,Shri Prakash Pandey
Counsel for Respondent :- Govt. Advocate,Aniruddh Singh
Hon'ble Rajnish Kumar, J.
1. Heard Sri I. K. Mishra and Sri Sachidanand Mishra, learned counsel for the appellant nos. 1 and 3 respectively and Shri Rajesh Kumar Shukla, learned Additional Government Advocate (here-in-after referred as AGA).
2. This appeal has been filed by the appellants namely Devendra Singh, Sripal Singh, Suresh Singh, Dinesh Singh and Yogendra Singh. During pendency of this appeal, Shripal Singh, Dinesh Singh and Yogendra Singh have died, therefore, this appeal has abated on their behalf on different dates. Now this appeal survives only on behalf of the appellant no. 1-Devendra Singh son of Indrapal Singh and appellant no. 3-Suresh Singh son of Hari Bux Singh.
3. This Criminal Appeal under Section 374(2) of Code of Criminal Procedure Code (here-in-after referred as CrPC) has been filed assailing the judgment and order dated 7/11-1-1993 passed in S.T. No. 387 of 1991; State Versus Devendra Singh and 4 Others, arising out of Case Crime No. 66/1990 under Sections 395/397 of the Indian Penal Code (here-in-after referred as IPC), Police Station Behtagokul, District Hardoi by IVth Additional Sessions Judge, Hardoi, by means of which the appellant nos. 1 and 5 namely, Devendra Singh and Yogendra Singh have been convicted under Section 395 IPC and sentenced each of them to 10 years rigorous imprisonment and a fine of ₹10,000, and in default of payment of fine, three years simple imprisonment and seven years rigorous imprisonment under Section 397 IPC and both the sentences have to run concurrently. The remaining appellant nos. 2, 3 and 4, namely Shripal Singh, Suresh Singh, and Dinesh Singh respectively have been convicted under Section 395 IPC and sentenced to 10 years rigorous imprisonment to each of them and a fine of ₹10,000 and in default of payment of fine, three years simple imprisonment.
4. Prosecution story, in brief, is that complainant-Ganga Bux Singh submitted written-report Ext.Ka.1 at Police Station Behta Gokul, District Hardoi, with the allegations that there is enmity between him and Sripal Singh, Suresh Singh, Dinesh Singh and Devendra Singh of his village in connection with the land since long and a case is also pending in the Tehsil and so many times hot words have been exchanged in this regard. About a year ago his sons were also beaten, in regard to which, he gave an application to police and a day before the occurrence at about 6 P.M. Devendra Singh threatened his son-Hari Nam Singh in the grove near the village situated in the north and threatened to see him. In the last night at about 1.30 A.M., while he was sleeping at his door along with his brother-in-law Ranvir Singh and his sons Harinam Singh, Hari Shanker Singh along with their wives Savitri and Shiv Kumari were sleeping inside the house, on noise, he woke up and saw that a person flashed torch on his face. He also after flashing his torch saw that Devendra Singh, Sripal Singh, Suresh, Dinesh, Yogendra Singh and four other persons, who can be identified, were standing near him, out of them Devendra Singh was armed with single barrel gun, Yogendra was armed with 'Tamancha' and remaining were armed with 'Lathi-Danda''. Devendra kept his gun on his chest and asked him "SALE UTH KER GHAR KA DARWAJA KHULWAO TUMHARE GUNDE LARKON KO JAAN SE KHATM KER DOONGA". Sripal Singh gave him 3-4 slaps. Suresh moved 'Danda'. Due to fear, he got opened the door of the house. It has further been alleged that inside the house a lantern was illuminating on the wall of kitchen. They, on being entered the house, began 'Maarpeet'. All of them used fists and kicks and beat his both the sons with 'Danda' also. Devendra Singh challenged and said "INKO ITNA MARO KI JHAGRA MITA DO". They had beaten his daughters-in-law also and Suresh, Dinesh and Yogendra tried to commit rape with them and tried to enter barrel of gun in their vagina. They also opened fire in the air. On the noise, Deva Singh, Om Prakash, Nand Kishore and several others reached on the spot. In the light of torches and on being challenged accuseds ran away. The accuseds were identified by them in the light of lantern and torches. In the last he requested that necessary action be taken after lodging his report.
5. On the basis of said written report Exihibit-Ka.1, F.I.R. Exihibit-Ka.10 was written at police station on 26.5.1990 at 9.50 hours under Sections 147, 148, 149, 452, 323, 504, 506 and 376/511 I.P.C. against the accuseds and the case was entered in general diary. In pursuance thereof, the investigation was made. The Investigating Officer (here-in-after referred as I.O.) recorded the statements of witnesses and after visiting the spot prepared the site plan, which is Exhibit-Ka.13. I.O. also took in his possession the lantern and torch and prepared their memos, which are Exhibits-Ka.2 and Ka.3 respectively. Injureds Smt. Savitri Devi, Smt. Shiv Kusari, Hari Singh and Harinam Singh were medically examined and their medical examination reports are Exhibits-Ka.4 to Ka.7 respectively. Injureds Smt. Shiv Kumari and Smt. Savitri were also referred to Women Hospital, Hardoi for examination of their injuries on their private part and in this regard their medical examination reports are Exhibits-Ka.8 and Ka.9 respectively. I.O. also took in his possession a torch, empty cartridges and torches of other witnesses and prepared their memos, which are Exhibits-Ka.12, Ka.14 and Ka.16 respectively. A copy of other relevant general diary report converting the case under Sections 395/397 I.P.C. is Exihibit-Ka.15. An application of Arún Pal Singh, scribe of the written-report, addressed to I.O. Behtagokul, District Hardoi is Exihibit-Ka.18. After completion of investigation, charge sheet, under Sections 395/397 IPC, was submitted against the aforesaid accused(s) in the court of Magistrate concerned. The First Additional Chief Judicial Magistrate, Hardoi, committed the case to the court of Sessions for trial vide order dated 01.10.1991. After committal of the case to the court of Sessions, the charge was framed against the accused(s)-Devendra Singh, Shripal Singh, Suresh Singh, Dinesh Singh, and Yogendra Singh on 29.10.1991 under Section 395 read with Section 397 IPC. The accused(s) denied the charge and claimed for trial.
6. The prosecution, to prove its case, examined nine witnesses. Ganga Bux Singh; the complainant, appeared as P.W. 1, Hari Nam Singh-Injured and Ram Chandra appeared as P.W. 2 and P.W. 3 respectively, who are the eyewitnesses of the occurrence. Dr. S Thiriyani appeared as P.W. 4, Dr. Reeta Singh appeared as P.W. 5, Head Constable Raghupati Singh, scribe of F.I.R. appeared as P.W. 6, Sub-Inspector Sabhajit Rai appeared as P.W. 7, Sub-Inspector Pyarey Lal Yadav appeared as P.W. 8 and Sub-Inspector J.B. Singh appeared as P.W. 9. P.W. 7 to 9 were the investigating officers of the case. The prosecution also produced empty cartridges and belt of cartridges, which are material Exhibits-I to VIII.
7. After closure of prosecution evidence, accused(s) were examined under Section 313 of Criminal Procedure Code (here-in-after referred as CrPC) to explain the circumstances appeared against them in the evidence. They in their statement denied the prosecution allegations and merely stated that they have been falsely implicated in the present case due to enmity. The accused(s) did not examine any oral evidence in their defense, but they filed copies of certain documents, which are exhibits- Kha-1 to Kha-5.
8. Learned counsel for the appellants submitted that the appellants have been convicted without considering the evidence and material on record. He further submitted that the complainant could not have been present at the place of incident as per the First Information Report (here-in-after referred as FIR). He further submitted that Ganga Bux Singh was not examined medically. He further submitted that there was no allegation of loot of essential goods etc. in FIR and the looted property was also not recovered. He further submitted that no proof of use of weapon was found. He further submitted that there was contradiction in the statements of witnesses and they had also modified their statements. He further submitted that the source of light has been shown only a lantern, and it could not be proved that torches were present in lightening condition. It has also been submitted that the lantern and torches etc. were also not produced during the trial. No examination in regard to the cartridges was done to ascertain, as to whether they were of the gun of Devendra Singh or not. He further submitted that two injured ladies i.e. the daughter-in-laws' of P.W. 1, were not produced in evidence. In the investigation, they had not stated about Devendra Singh, therefore, the statement was contradictory to the evidence of P.W. 1 and P.W. 2. He further submitted that the injuries are simple in nature and the appellants had no criminal history. He next submitted that the use of a deadly weapon has not been found. It has also been submitted that it is very improbable that persons of the same village, residing in the vicinity, would commit the offense of dacoity, without covering their faces. Thus, it was submitted that the appellants have been wrongly and illegally convicted and sentenced, without considering and dealing with the evidence and material on record appropriately. Thus, the impugned order is not sustainable in the eyes of law and liable to be set-aside and the appellants are liable to be acquitted.
9. Learned counsel for the appellants relied on Iqbal and another vs. State of Uttar Pradesh; 2015 (4) ALJ 239, Rang Bahadur Singh vs. State of Uttar Pradesh; 2000 J.Cr.C. 259 (S.C.), Harbeer Singh vs. Sheeshpal Singh and others; 2017 JCR 508 (SC), Juggi @ Jugendra and others vs. State of U.P.; 2015 (1) JIC 662 (All), Manzoor vs. State of Uttar Pradesh; AIR 1983 SC 295 and Dhaniram vs. State of U.P.; 1997 J.Cr.C. 692 (All.).
10. Learned AGA vehemently opposed the submissions of learned counsel for the appellants. He submitted that the impugned judgment and order has rightly been passed in accordance with law, after considering the evidence and material on record. He next submitted that it was a case of dacoity as there were more than five accuseds and in the incident, five persons were injured. He also submitted that Devendra Singh had a barrel gun; Yogendra Singh had a country-made pistol and the rest of the accuseds had lathi and danda in their hands. It was further submitted that the FIR was primarily lodged and it is settled law that it is not an encyclopedia. He further submitted that the F.S.L. report and the report of the lady doctor are in favor of the prosecution. It has further been submitted that merely because ornaments could not be recovered, it cannot be said that the prosecution has failed to prove its case because the participation of the accused in the instant case has not been proved. It has further been submitted that the conviction has rightly been made under Sections 395 and 397 IPC. He next submitted that the two injured persons have been examined. The FIR was lodged on 26.05.1990 at 09:15 in regard to the incident of the night of 25/26.05.1990 at about 11/2 AM, therefore, the FIR was lodged promptly and the accused Sripal Singh and Suresh Singh were arrested on 28.05.1990. However, nothing could be recovered. Thus, learned AGA submitted that the appellants have rightly been convicted in accordance with law and sentenced accordingly. There is no illegality or error in the impugned judgment and order. The appeal has been filed on misconceived and baseless grounds, which is liable to be dismissed.
11. Learned AGA relied on Ram Ratan vs. State of Madhya Pradesh; MANU/SC/1279/2021 [AIR 2022 SC 518], Amish Devgan vs. Union of India and others; MANU/SC/0921/2020 [(2021) 1 SCC 1)], Ganesan and others vs. State rep. by Station House Officer and others; MANU/SC/1015/2021 [(AIR 2021 SC 5643)], Ashfaq vs. State (Govt. of NCT of Delhi); MANU/SC/1042/2003 [(AIR 2004 SC 1253)] and Kuldeep Kumar Tripathi vs. Rang Bahadur Pandey and others; 2010 (3) ADJ 334.
12. I have considered the submissions of learned counsel for the parties and perused the records.
13. One of the grounds argued by learned counsel for the appellants is that there was a delay in lodging the FIR. This issue has been considered by the learned trial court and it has been held that the delay in lodging the FIR has been fully explained by the prosecution because the incident had taken place in the midnight and the people of the same village committed such heinous crime of dacoity, in which they had beaten four family members, in which two young women of the family also suffered injuries on their private parts. P.W.-1 Ganga Bux Singh; the complainant, has stated that, "रात में मैं डर की वजह से रिपोर्ट करने थाने नहीं गया था। सुबह मैंने अरुण पाल से घर पर हाल बताकर तहरीर लिखाई थी।" and the scribe of the written report, Exhibit Ka-1, Arun Pal Singh in his application, Exhibit Ka-18, has written that "26.5.90 को सुबह 5.30 बजे मैं सोकर उठा तो सन्देश वाहक जो मेरे मामा ने भेजा था ने बताया कि खुजगीपुर में गंगाबक्श सिंह के घर रात में डकैती पड़ गई है ... मैं तुरन्त मामा के गांव गया ........गंगा बक्श सिंह अनपढ़ है अतः उनके बताये हुये तरीके से मैंने घटना की तहरीर लिख दी थी।" This clearly shows that some time would have been taken in writing the written complaint.
14. It is written in the application dated 30.06.1990 of Arun Pal Singh, Exhibit Ka-18 that "निवेदन करना है कि गांव में गंगाबक्श सिंह के घर डकैती पड़ी थी व गांव के कुछ लोग उसमे शामिल थे जिन्हे प्राथमिकी में दर्ज भी कराया गया है परन्तु घटना मार पीट व बलवा की लिखाई गई क्योंकि गंगाबक्श सिंह को कुछ लोगो ने भ्रमित कर दिया कि डकैती का केस नही चल पाएगा। अतः मारपीट का मुकदमा लिखाओं। गंगा बक्श सिंह अनपढ़ है अतः उनके बताये हुये तरीके से मैंने घटना की तहरीर लिख दी थी" and the FIR was lodged under sections 147/148/149/452/323/504/506/376/511 IPC. However, during investigation, the case was converted under Sections 395 and 397 IPC. In any case, the delay in lodging the FIR has been explained by the prosecution. However, as admitted by the complainant; P.W.-1, his both the sons were educated, but he failed to explain as to when his sons were educated, why the FIR was got written only after calling Arun Pal Singh in the morning from the other village, but he was not produced in evidence. His statement under Section 161 Cr.P.C. was also not recorded.
15. The trial court observed that the main point for consideration in the case is as to whether the occurrence took place as alleged by the prosecution or not. The learned trial court, after considering the evidence of prosecution witnesses, which includes the doctors, who have proved the injury reports and the fact that empty cartridges and belts of cartridges were also found by the I.O. on the roof of the house of the complainant and it has also come in the evidence of P.W.-1 Ganga Bux Singh that the accuseds opened fire from the roof at the time of occurrence to create terror/ruckus in the village and I.O. also found some broken articles in the house of the complainant and that nobody would like to say wrongly that accused(s) persons, who are residents of his own villages, entered a barrel of the gun inside the vagina of daughter-in-laws', held that the incident of dacoity took place in the house of the complainant as alleged by the prosecution and P.W.-1 Ganga Bux Singh; the complainant, proved the prosecution case. In addition thereof, he stated that some miscreants climbed on the roof and opened fire and remaining others were beating them in the courtyard and were demanding cash and jewellery and accuseds snatched jewellery, which his daughter-in-laws were wearing and cash and looted jewellery kept in the boxes and other jewellery articles i.e. Payal, Nathuni, Bunda and seven silver coins, brass batua and paraat, three gagra etc.
16. P.W.-2 Hari Nam Singh, injured, who has been said to be the eyewitness of the occurrence, also supported the prosecution case. He stated about the enmity between him and accused Devendra Singh on account of land dispute, in regard to which the litigation was ongoing at the time of the occurrence also and in the evening at about 06:00 P.M. before the night of occurrence, Devendra Singh abused him and threatened to see him. He stated that about two and half years ago, at about 01:30 in the night, he was lying with his wife in the western courtyard of his house and his brother was lying along with his wife in the eastern courtyard of the house and his father was lying along with Ranveer Singh on the Chabutara at the door. He also stated that on the call of his father, he opened the door and saw Devendra Pal Singh, Shripal Singh, Suresh Pal Singh, Dinesh Singh and Yogendra Pal Singh and 4-5 unknown persons holding his father. On opening the door, all the accuseds along with his father entered the western courtyard and at that time, the accused Devendra was armed with a single-barrel gun, Yogendra Singh with a country made pistol, Shripal Singh, Suresh Pal Singh and Dinesh Singh were having lathi-danda in theirs hands and they began to beat him and his brother with kicks and fists. He further stated that Suresh, Dinesh and Yogendra had tried to commit rape on Smt. Savitri Devi and Smt. Shiv Kumari, but when they were unsuccessful, the accused Devendra Singh inserted the barrel of the gun in their vagina, due to which they received injuries in their private parts. He further stated that the accuseds committed loot by entering in his house and looted the articles kept in the boxes of his wife and also looted utensils. He further stated that the unknown persons climbed on the roof and made 6-7 fire and on noise, witnesses reached on the spot with torches and lathis. Thereafter, the accused(s) ran away through the western door with the looted property and all the accuseds were identified in the light of the lantern and torches.
17. The site plan indicates that the accused(s) entered the house after getting the door opened at Point "H" and thereafter, after crossing Barotha Nos. 1 and 2, entered into the first courtyard, where on the south-western side, one of the sons of the complainant along with his wife was sleeping and the other son was sleeping in the courtyard subsequent thereto on the western side and his wife was sleeping on the northern side of the said courtyard, where the kitchen is also situated and the lantern was burning on the southern wall of the kitchen, in regard to which, firstly P.W.-1 stated that it was on the western wall, but subsequently he stated that he had wrongly stated it was on the western wall and it was actually on the southern wall. The accuseds ran away from the western gate at "G". It is the case of the prosecution that the accuseds were seen in the light of the lantern and torches, while they entered the house. However, the lantern appears to be after a wall in the first courtyard, in which there is a gate on the western side for going into the second courtyard, where the kitchen is situated on the northern side, therefore it can not be said that the light of lantern would have been on all the sides in the courtyard and it has not been shown or proved. The torches have neither been produced in evidence nor it has been proved that they were in working condition. The memos have been prepared in regard to the torches used by the informant and other persons, but on different dates. However, it has not been proved as to whether these torches were used at the time of the incident or not.
18. It is also a case of the prosecution that the accused(s), other than the named persons, went upstairs and fired to create a ruckus and terror, whereas the site plan shows that the stairs are outside the house, and none of the witnesses have stated that after entering the house, any of the accused(s) had gone outside to go upstairs.
19. P.W.-2, Hari Nam Singh, the son of the complainant, has also stated in his evidence that on the call of his father, Ganga Bux Singh, he opened the main door and saw that Devendra Pal Singh, Shri Pal Singh, Suresh Pal Singh, Dinesh Pal Singh, Yogendra Pal Singh and 4-5 other unknown persons were holding his father. On opening the door, they all dragged his father into the courtyard. The accused-Devendra had a single barrel gun in his hand; Yogendra had a country-made pistol in his hand and Shri Pal Singh, Suresh Pal Singh and Dinesh Pal Singh had lathi and danda in their hands. However, he could not see which arms were with the remaining persons, whereas P.W.-1 Ganga Bux Singh, the informant, has stated that accused-Devendra Singh had a single barrel gun in his hand, Yogendra had a country-made pistol and the remaining had lathi and danda in their hands. Thus, there is contradiction in regard to the remaining unnamed persons about the arms in their hands. P.W.-1 has further stated that some of the accuseds went on the roof and fired, but he has not named the persons, who went on the roof, and according to him, the accused Devendra and Yogendra were in the house and were trying to do bad work with the daughter-in-laws' of the complainant, and they entered the barrel of the gun in their private parts, and as per his evidence no other person was having the gun. The similar statement has been given by the P.W.-2. Though he has stated about the gun shot, but he has not stated that who went on the roof and fired. Thus, there is contradiction in the evidence of the eyewitnesses i.e. P.W.-1 and P.W.-2. P.W.-3, who is a villager and a neighbour of the informant, stated that he saw that the dacoits were going up and down and coming in and going out. He further stated that 6-7 fires were made by the dacoits. Some fires were made from the courtyard and some from the roof and used cartridges were found on the roof. Ganga Bux Singh had collected the used cartridges and went to the police station. Thus, there is contradiction in the evidence of P.W.-1, P.W.-2 and P.W.-3 in regard to the fire from gun because on the one hand, P.W.-1 has stated that the fires were made from the roof, whereas P.W.-3 has stated that some fires were made from the courtyard also and according to P.W.-3, the used cartridges were collected by Ganga Bux Singh before going to the police station. On the contrary, P.W.-8, S.I. Pyarelal Yadav, who was one of the investigating officers of the case, has stated that the investigation was assigned to him on 27.05.1990 and thereafter he went to the site and recovered seven used empty cartridges and one rim of brass cartridge. Thus, once the used cartridges were already collected by the complainant on the date of the incident, then how seven used cartridges and one rim of brass cartridge were found on the roof of the complainant remains unexplained and it might have been planted subsequently because the FIR or any other material does not disclose that the cartridges collected by the complainant on the date of the incident were handed over to the police.
20. P.W.-2 has stated that the FIR was written by Arun Pal Singh before him, and it was mentioned in the written report that the accused(s), after entering the house, made loot and took away the jewelry of the ladies kept in the box and eating utensils, paraat, tasla, gagra and brass batua. Thereafter, he stated that he does not recollect as to whether it was mentioned in the FIR or not. In any case, the written report made by Arun Pal Singh neither discloses the same nor it is mentioned in the FIR. However, subsequently, during investigation, the case of dacoity and the loot of the aforementioned articles was made and a written statement by Arun Pal Singh (Exhibit Ka.18) has also been placed on record to show that some persons had confused the informant, Ganga Bux Singh, that the case of dacoity would not be workable (चल पायेगा), therefore, the case of marpeet was got written, and Ganga Bux Singh is illiterate. Though this application may have no relevance as neither the statement of Arun Pal Singh has been recorded under Section 161 Cr.P.C. nor he has been produced in evidence. But, since it has been produced by the defense and relied, therefore, it has rightly been considered. Thus, if the version of Arun Pal Singh is taken to be correct, it is apparent that the FIR was lodged after consultation and thinking. The police, in the investigation, also could not find out about the remaining unnamed accused(s) and only the named accused(s), who were residents of the same village, were arrested and the trial was held against them.
21. The daughter-in-laws' of the complainant have not been produced in evidence to prove the incident and as to how they got the injuries. The injuries suffered by the said ladies are simple in nature and in regard to the injury in their private parts, the doctor stated that they are simple in nature caused by some blunt object. It is also very strange that both the ladies suffered a lacerated wound of the same size i.e. 0.25cmX0.25cm at 6 'O clock position and at 11 'O Clock position of their vagina. The other two injureds, namely Hari Singh and Hari Nam Singh, sons of the complainant, had also simple injuries caused by a blunt and hard object. It is very strange that in a beating by about nine to ten persons with lathi-danda, a single barrel gun and a country made pistol, only four persons have suffered simple injuries and no injury was suffered by the complainant. P.W.-3 Ramchandra has not stated in his evidence that the accuseds had beaten the complainant and his family members. He has stated that the accuseds were going up and down stairs and coming out and going in the house and taking out the goods and when they exhorted, the accuseds ran away and in the light of torch, they saw the accuseds, but they could not see what goods were being brought out and stated that they ran with the same. Thus, there is a contradiction in it also because once they were taking out the goods in front of him, this court failed to comprehend as to why the witness could not see the goods and tell anything about them.
22. Shri J.B. Singh, P.W.-9, who was handed over the investigation on 22.06.1990, stated that Smt. Savitri and Smt. Shiv Kumari had not told about entering the barrel of the gun in their vagina and despite his asking to ascertain the same, they had not told. It is further stated that they did not name any of the accuseds for the said act and the said ladies have not been produced in evidence. Therefore, the said statement of the Investigating Officer remains unrebutted and the fact that Arun Pal Singh was called from the other village for writing the complaint, whereas the sons of the informant had studied up to 9th and 8th grade respectively and letter of Arun Pal Singh i.e. Exhibit Ka-18 creates doubt about the veracity of the prosecution story itself. Even otherwise, the prosecution story appears to be highly improbable because the complainant and the family members waited until the morning for treatment and lodging the FIR of the incident, in which at least four persons had suffered injuries, out of which two of the ladies suffered injuries on their private parts, and even then, no effort was made for their treatment and taking them to the hospital, whereas in such a situation, normally a prudent person would immediately take steps for treatment and lodging the FIR. The presumption drawn by the learned trial court about the firing of the dacoits also seems to be improbable and it has also not been stated by the complainant and other prosecution witnesses of fact and admittedly, the distance to the police station was about half an hour by vehicle. The accused(s) were of the same village and it also seems improbable that they would come for the dacoity with open faces and without covering them without fearing of their being recognized and in such a condition also, not firing to kill any of the family members, despite having fire arms. The complainant, Ganga Bux Singh, has also not been got examined medically because he would not have suffered any injury, whereas the allegation is that he has been dragged by about nine persons after getting the door opened by P.W.-2. In such a situation, it is not possible that certain injuries would not have been suffered by him, may be contusion, etc. The witnesses namely, Om Prakash, Nand Kishore, and Roshan, who were named by P.W.-1, P.W.-2, and P.W.-3, have not been produced in evidence, and they were discharged on the application by the learned Additional Government Counsel on the ground that they were won over by the accuseds. Ranvir Singh, who was brother-in-law of the complainant and was sleeping alongwith him, when the accuseds came and committed the crime, was a material eye-witness, but not produced in evidence, which also creates doubt about the whole prosecution story. They were material and independent witnesses and might have not been produced because they might not be ready to give evidence of a false prosecution case. Neither recovery of the stolen articles has been made nor the police could find out as to what happened to them, if they were stolen in the alleged robbery. The trial court, without considering the above and evidence and recording findings on the basis of presumption, has convicted the appellants and sentenced them, which could not have been done.
23. The Hon'ble Supreme Court, in the case of Iqbal and Another versus State of Uttar Pradesh (Supra), has held that in cases of dacoity, usually, the offence is committed by unknown persons with the criminal background. It is only in very few cases, the accused-dacoits are known to the victim. It has further been held that in order to bring home the guilt of the accused persons, it is the duty of the prosecution to prove that the stolen property was in the possession of the accused persons or that the accused had knowledge that the property was a stolen property or the accused persons had converted the stolen property. No such recovery was made to connect the appellants and other non-appealing accused persons with the crime. It has also been held that the prosecution ought to have adduced evidence as to how and in what manner the articles which were the subject matter of dacoity were either disposed of or converted.
24. The Hon'ble Supreme Court, in the case of Rang Bahadur Singh vs. State of U.P. (Supra), has held that it is difficult to believe that the appellants who were well known to the inmates of the house would have gone there without covering/concealing their faces. The Hon'ble Supreme Court has taken similar view in regard to the recovery of the articles as in the aforesaid case of Iqbal and Another versus State of Uttar Pradesh (Supra).
25. The Hon'ble Supreme Court, in the case of Harbeer Singh vs. Sheeshpal Singh and others (Supra), has held that the corroboration by independent witnesses is an indispensable rule in cases where the prosecution is primarily based on the evidence of seemingly interested witnesses. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the Court to place credence on the statement.
26. A Division Bench of this Court, in the case of Juggi @ Jugendra and others vs. State of U.P. (Supra), has held that if persons belonging to the same village or adjoining village to whom the witnesses are knowing since before the occurrence commits dacoity, they will try to conceal their identity but in the present case all the witnesses of fact have deposed that all the miscreants were having open faces and did not try to conceal their identity. So this creates a doubt upon the prosecution story and presence of the witnesses on the spot. The Court further held that non-production of torch is very relevant. In the present case, the source of light has been shown the lantern and torch, but the same have not been produced. Though recovery memos of the same were prepared but the same were handed over back.
27. The Hon'ble Supreme Court, in the case of Manzoor vs. State of Uttar Pradesh (Supra), has taken the similar view and observed as under in paragraph 12:-
"12. There is then the evidence of P.Ws. 1 and 2, the home-guards of whom only P.W. 2 had identified the appellants in the identification parade held on 17.11.1978. The four home-guards including P.Ws. 1 and 2 are stated to have flashed their torch lights and to have seen the two persons running away from the scene of occurrence after they had heard the alarm of the injured Gul Bahar near the railway line. The torches have not been produced in evidence, and the investigating officer P.W. 12 would say in his evidence that he saw those torches 30 and returned them to the home-guards. It is not known why the investigating officer P.W. 12 thought it fit to return the torches with the aid of which the home-guards are stated to have seen the two persons running away from the scene of occurrence though that will be a relevant piece of material evidence in the case. P.W. 12 has stated that after recording the statement (Ex. Ka. 11) of the deceased Gul Bahar at the District hospital, Saharanpur he went to the mela and recorded the statements of the four home-guards. This evidence of P.W. 12 shows two things, namely (1) that the home-guards would have been on duty at the mela in the night of 22/23.9.1978 40 and could not have been on patrol duty, moving about near the railway line or the lime kiln which is stated by the P.W. 12 to be situate one furlong away from the mela, as P.Ws. 1 and 2 would have it, and (2) that none of the home-guards could have accompanied the injured Gul Bahar from the petrol pump where the First Information Report (Ex. Ka. 1) is stated to have been recorded to the Police Station, for if any home-guard had accompanied the injured Gul Bahar to the Police Station he would have been examined by the police at the Police Station itself in connection with this case and it would not have been necessary for P.W. 12 to have examined that home-guard only at the mela. The evidence of P.Ws. 1 and 2 that Ex. Ka 1 was recorded at the petrol pump is not reliable, for it is stated in Ex. Ka. 1 that one of the home-guards took down the deceased's statement and brought him to the Police Station after recording the report. From the statement in Ex. Ka. 1 that one of the home guards brought the deceased to the Police Station, it would appear that Ex. Ka. 1 could have been written only after the injured Gul Bahar had been taken to the Police Station and not earlier. It is to be noted that none from the petrol pump and the rickshaw-puller who is stated to have carried the injured Gul Bahar from the petrol pump to the Police Station has been examined as a witness at the trial. It is seen from the evidence of P.W. 12 that the home-guard did not give him the description of any of the culprits when he examined them and that he did not even ask them about it though it is stated in the report Ex. Ka 1 that the home-guards had seen the culprits thoroughly and identified them. If at the earliest opportunity the home-guards did not mention any identifying features of the culprits when they were examined by P.W. 12, it is difficult for us to believe how P.W. 2 could have identified both the appellants nearly two months later on 17.11.1978. It has to be noted that the appellants have stated in the trial court that they were shown to the witnesses before the identification parade was held. In these circumstances we are not impressed with the evidence of P.Ws. 1 and 2."
28. A co-ordinate Bench of this Court, in the case of Dhani Ram vs. State of U.P. (Supra), has held that only such of the several miscreants, who use deadly weapon or cause grievous hurt to any person or attempt to cause death or grievous hurt, could be covered by offence of mischief of Section 397 IPC. In the present case, admittedly only two persons used the deadly weapons i.e. single barrel gun and country made pistol and it could not be proved as to who were the unknown persons and as to what deadly weapons were used by them, therefore, the allegation of fire to create ruckus and terror itself becomes doubtful.
29. The Hon'ble Supreme Court, in the case of Ram Ratan vs. State of Madhya Pradesh (Supra), has held that it is clear that the use of the weapon to constitute the offence under Section 379 IPC does not require that the 'offender' should actually fire from the firearm or actually stab if it is a knife or a dagger but the mere exhibition of the same, brandishing or holding it openly to threaten and create fear or apprehension in the mind of the victim is sufficient. The other aspect is that if the charge of committing the offence is alleged against all the accuseds and only one among the 'offenders' had used the firearm or deadly weapon, only such of the 'offender' who has used the firearm or deadly weapon alone would be liable to be charged under Section 379 IPC.
30. The Hon'ble Supreme Court, in the case of Amish Devgan vs. Union of India and others (Supra), has held that FIR is not an encyclopaedia disclosing all facts and details relating to the offence. The informant who lodges the report of the offence may not even know the name of the victim or the assailant or how the offence took place. He need not necessarily be an eye-witness. What is essential is that the information must disclose the commission of a cognisable offence and the information must provide basis for the police officer to suspect commission of the offence.
31. The Hon'ble Supreme Court, in the case of Ganesan and others vs. State represented by Station House Officer and others (Supra), has taken similar view in regard to Section 397 IPC. The relevant paragraphs 12.6 to 12.7 are extracted here-in-below:
"12.6. The aforesaid view has been subsequently reiterated by this Court in the case of Dilawar Singh (Supra) and in paragraphs 19 to 21 it is observed and held as under:
19. The essential ingredients of Section 397 Indian Penal Code are as follows:
1. The Accused committed robbery.
2. While committing robbery or dacoity (i) the Accused used deadly weapon (ii) to cause grievous hurt to any person (iii) attempted to cause death or grievous hurt to any person.
3. "Offender" refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 Indian Penal Code is attracted only against the particular Accused who uses the deadly weapon or does any of the acts mentioned in the provision. But the other Accused are not vicariously liable under that Section for acts of the co-Accused.
20. As noted by this Court in Phool Kumar v. Delhi Admn. [MANU/SC/0210/1975: (1975) 1 SCC 797: 1975 SCC (Cn.) 336 AIR 1975 SC 905] the term "offender" Under Section 397 Indian Penal Code is confined to the offender who uses any deadly weapon. Use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 Indian Penal Code for the imposition of minimum punishment on another offender who had not used any deadly weapon. There is distinction between "uses" as used in Sections 397 Indian Penal Code and 398 Indian Penal Code. Section 397 Indian Penal Code connotes something more than merely being armed with deadly weapon.
21. In the instant case admittedly no injury has been inflicted. The use of weapon by offender for creating terror in mind of victim is sufficient. It need not be further shown to have been actually used for cutting, stabbing or shooting, as the case may be. [See Ashfaq v. State (Govt. of NCT of Delhi) [MANU/SC/1042/2003: (2004) 3 SCC 116: 2004 SCC (Cri.) 687: AIR 2004 SC 1253].
12.7. Thus, as per the law laid down by this Court in the aforesaid two decisions the term 'offender Under Section 397 Indian Penal Code is confined to the 'offender' who uses any deadly weapon and use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 Indian Penal Code for the imposition of minimum punishment on another offender who has not used any deadly weapon. Even there is distinction and difference between Section 397 and Section 398 Indian Penal Code. The word used in Section 397 Indian Penal Code is 'uses' any deadly weapon and the word used in Section 398 Indian Penal Code is 'offender is armed with any deadly weapon'. Therefore, for the purpose of attracting Section 397 Indian Penal Code the 'offender' who 'uses' any deadly weapon Section 397 Indian Penal Code shall be attracted.
In light of the above observations and the law laid down by this Court in the aforesaid two decisions the case on behalf of the Accused in the present appeals is required to be considered. Even as per the case of the prosecution and even considering the evidence on record it can be seen that the present Accused Al and A3 are not alleged to have used any weapon. The allegation of use of any weapon was against Benny and Prabhakaran. Therefore, in absence of any allegations of use of any deadly weapon by the Appellants herein-Accused Nos. 1 and 3 Section 397 Indian Penal Code shall not be attracted and to that extent the learned Counsel appearing on behalf of the Appellants-Accused are right in submitting that they ought not to have been convicted for the offence punishable Under Section 397 Indian Penal Code."
32. The Hon'ble Supreme Court, in the case of Ashfaq vs. State (Govt. of NCT of Delhi) (Supra), has taken similar view in regard to the Section 397 IPC.
33. The judgment of Full Bench of this Court, in the case of Kuldeep Kumar Tripathi vs. Rang Bahadur Pandey and others (Supra), relied by learned AGA is not applicable on the facts and circumstances of the present case and it is in regard to the jurisdiction of hearing of criminal appeal.
34. In view of above and considering the overall facts and circumstances of the case, this Court is of the view that the impugned judgment and order has been passed convicting and sentencing the appellants without considering the evidence and material on record appropriately and recording the findings on the basis of presumption, which could not have been done and the prosecution has failed to prove its case beyond reasonable doubt. Thus, the appellants could not have been convicted and sentenced. Therefore, the impugned judgment and order is not sustainable and liable to be set-aside and the appellants are liable to be acquitted on the basis of benefit of doubt.
35. The appeal is, accordingly, allowed.
36. The impugned judgment and order dated 7/11-1-1993 passed in S.T. No. 387 of 1991; State Versus Devendra Singh and 4 Others, arising out of Case Crime No. 66/1990 under Sections 395/397 IPC, Police Station Behtagokul, District Hardoi by IVth Additional Sessions Judge, Hardoi is hereby set-aside. The appellants are acquitted on the basis of benefit of doubt.
Order date: 19.08.2025/Raj
