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2004 (2) Crimes 101
Allahabad High Court
U.S. Tripathi & Ghanshyam Dass, JJ.
Lalla alias Raj Kumar Singh—Appellant
versus
State of U.P.—Opposite Party
Criminal Appeal No. 2818 of 1980.
Decided on 12-11-2003
For the Appellant :Sri P.N. Misra, Sri S.K. Kulshrestha, Sri Apul Misra and Sri Brijesh Sahai, Advocates.
For the Respondent: A.G.A.
Important Point
If testimony of a witness is not reliable, conviction cannot be based merely for reason that witness had no enmity or reason to implicate accused falsely.
Headnote:Indian Penal Code, 1860 — Section 396 — Dacoity with murder — 10 or 12 dacoits entered into house of PW1 in dead of night — Two of the culprits had covered their faces with Dhatas and PW1 claimed to have recognised them appellant and the other acquitted accused when accused grappled with PW2 — Conviction of appellant believing PW1 about identity of appellant — Appeal — Appellant and other acquitted accused were armed with guns — Grappling of PW2 and deceased with dacoits appeared improbable as they would have every apprehension of their lives — Theory set up that Dhata of appellant fell down in grappling appeared improbable — Though witnesses had no enmity for false implication of appellant but when testimony was not reliable, conviction could not be sustained — Other accused acquitted by trial Court was 60 years old having cataract in one eye and glaucoma in other — Conviction of appellant could not be sustained. (Paras 16 to 24)
Result : Appeal allowed.
ORDER
U.S. Tripathi, J.— This appeal has been directed against the judgment and order dated 3-12-1980 passed by III Addl. Sessions Judge, Pilibhit in Session Trial no. 104 of 1980, convicting the appellant under Section 396 I.P.C. and sentencing him to undergo life imprisonment.
2. The prosecution story, briefly stated, was that Nand Ram (PW1) had his house at village Piparia Lal, P.S. Pooranpur, district Pilibhit. His house faced towards east. On the night of 8/9-7-1978 Nand Ram (PW1) was sleeping in the northern portion of Varandah of his house. His brother Bhoop Ram (PW2) was also sleeping in the southern portion of the said Varandah. Radhey Shyam deceased and another brother of Nand Ram (PW1) was sleeping inside the room. The ladies of the family were sleeping inside the house. At about midnight 10-12 dacoits entered into the house of Nand Ram (PW1). Hearing foot steps of the dacoits Nand Ram (PW 1) awoke. 2-3 dacoits started causing injuries on him with dandas. Two of the dacoits had covered their faces with Dhatas and other dacoits were open faced. Bhoop Ram (PW2) and Radhey Shyam deceased grappled with dacoits covering their faces with Dhatas and in this process their Dhata was opened and they recognized them as appellant Lalla alias Raj Kumar Singh and his brother Ram Singh. Appellant Lalla and his brother Ram Singh were having guns. Bhoop Ram (PW2) and Radhey Shyam told that they had recognized the appellant and Ram Singh on which the appellant and Ram Singh told that they would teach them a lesson of their recognition. Saying it Ram Singh fired on Radhey Shyam, who died on the spot and appellant Lalla fired on Bhoop Ram (PW2) due to which Bhoop Ram and Radhey Shyam sustained injuries. Sri Pal also sustained firearm injury. Nand Ram (PW1) came out of his house and hide himself in a pit towards east of his house. Two lighted Dhibris were kept inside the house and one lighted lantern was in the outer bungalow. The dacoits looted the house-hold properties, ornaments and cash, Lala Ram, Dhakan Lal (PW3), Bhajan Lal, Shyam Lal, Balak Ram and Rameshwar Lal also came to spot. Lala Ram, Dhakan Lal and Bhajan Lal were having torches which they were flashing on the dacoits. The faces of dacoits including the appellant and Ram Singh were recognized in the light of dhibris and lantern. After committing dacoity the appellant and other dacoits ran away.
3. Nand Ram (PW1) came to police station Pooran Pur in the morning at
5.00 a.m. and lodged oral report Ext.
Ka-1. Chick F.I.R. was prepared by Head Constable Shahanshah Wali Khan (PW5) who made an endorsement of the same at GD report Ext. Ka-2 and registered a case against the appellant and his brother Ram Singh and 8-10 unknown dacoits. The injured Nand Ram (PW1), Bhoop Ram (PW2 ) and Sri Pal were sent to Primary Health Centre, Pooranpur, where they were medically examined. Two traumatic swelling on left thigh and left fore-arm were found on the person of Nand Ram (PW1). Three fire arm wounds of entry on the right thigh, left thigh and left knee respectively were found on the person Bhoop Ram (PW2) and one firearm entry wound on right occipital region was found on the person of Sri Pal.
4. Investigation of the case was taken up by Hori Lal Yadav, I.O. (PW6), who visited the spot on the morning and conducted inquest of the dead body of Radhey Shyam deceased, interrogated Nand Ram (PW1), Dhakan Lal (PW3), inspected place of occurrence and prepared site plan. He also inspected lantern, two Dhibiris and one torch of Nand Ram (PW1) and found those in working order and he also inspected the torch of Dhakan Lal (PW3). The I.O. also collected blood stained and simple earth from the spot.
5. Autopsy on the dead-body of Radhey shyam was conducted on 10-7-1978 by Dr. O.P. Srivastava, who found five gun shot wounds of entry, one gun shot wound of exit and one abrasion on left shoulder back of left arm, left side of chest upper part of right side chest, left side of mid of neck left sid
