Important Point
If the view taken by the court below is a possible view, the appellate court may decline to interfere.

Judgment

Dr. Arijit Pasayat, J. —

1.Challenge in this appeal is to the Judgment of a Division Bench of the Allahabad High Court setting aside the conviction of the respondent for offence punishable under Section 396 of the Indian Penal Code, 1860 (in short the ‘IPC’) as was recorded by learned Vth Additional Sessions Judge, Fatehpur. The respondent was sentenced to imprisonment for life by the said Judgment; but he was acquitted of the charge relatable to offence punishable under Section 314 IPC.

2.Background facts in a nutshell are as under :

A dacoity was committed on 9.5.1973 at about mid day for about 2-3 hours in the house of three brothers namely Ramdas (PW-9), Har Prasad (PW-2) and Hiralal (hereinafter referred to as the ‘deceased’) in village Palia Buzurg within the area of police station Hathgaon, district Fatehpur. It was alleged that about 16-17 dacoits successfully decamped with cash, jewellery, ornaments, firearms etc. During the course of commission of dacoity, Hiralal, Mahesh Chandra and Smt. Mahabiria sustained injuries of whom Hiralal died. While dacoity was in operation, the matter was reported orally at police station, Hathgaon by village chowkidar Ram Ratan (P.W. 3) on the same day at 1.30 P.M. wherein none was named. Head Moharrir Fateh Bahadur Singh (P.W. 1) recorded the report in chick register and registered case under Section 395/397 IPC. Station Officer Yadram Verma (P.W. 29) took up investigation and he immediately proceeded to the scene of occurrence. He met injured Hiralal, Mahesh Chandra and Smt. Mahabiria on the way. He got the said injured sent for their medical examination with “chithi majroobi”. When the injured persons were being taken to hospital, Hiralal succumbed to his injuries. The constable who was escorting the injured then gave information at police station about the death of Hiralal, whereupon case was converted to one under Section 396 IPC.

When the investigating officer reached the place of occurrence, Har Parsed (P.W. 2) handed over to him a list of stolen articles and also a report giving out details of commission of dacoity in his house wherein he named three persons, namely respondent Awdhesh, Ram Rattan alias Jhallar and Babu Singh. The investigating officer recorded the statements of witnesses on 10.5.1973, arrested named as well as some unknown persons during the course of investigation and some stolen articles were alleged to have been recovered from respondent Awdhesh and other accused. On completion of investigation charge sheet was submitted.

3.Since the accused persons abjured guilt they were put on trial. It is to be noted that originally three persons were named as accused and reference was made to 9 unknown persons. One of them died during trial, and one died during pendency of the appeal before the High Court. Respondent was accused No.4. In Order to further its version prosecution examined 29 witnesses. Placing reliance on testimony of Har Prasad (PW-2), Ram Lakhan (PW-7), Smt. Sheo Sakhi (PW-11) and Smt. Ram Rati (PW-12) the trial Court directed conviction as noted above.

4.Stand of the appellant before the High Court was that accused persons were admittedly on inimical terms with Har Prasad (PW-2) and it was a specific case that accused Babu Singh had absconded and did not face trial. He was on inimical terms with the deceased and PW-2. Respondent Awdhesh happened to be brother in law of Babu Singh. The trial Court held that the accusations have been established. In appeal before the High Court it was noted that the enmity aspect was lost sight of by the Trial Court. In any event, for a long time no witness supposedly spoke about accused Awdhesh. Though the village Chowkidar, Ram Ratan (PW-3) reported the matter to the police station on the basis of which Crime case No.30 was registered, no one was named as accused and the case was registered against unknown persons. Only when a written report was submitted by Har Prasad (PW-2) to the investigating officer, name of resp