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2018 Supreme(All) 2519
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
J.J. MUNIR, J.
Dukhi – Appellant
Versus
State Of U.P. – Respondent
Criminal Appeal No. 2693 of 1983
Decided on : 03-10-2018
For the Appellant : Rameshwar Nath, Brij Mohan Singh Counsel
Headnote:
The appellant was convicted of offences punishable under Sections 395/397 IPC and Section 25 of the Arms Act. The prosecution alleged that the appellant along with 12-13 other dacoits committed dacoity in the house of the informant. The appellant was apprehended by the informant and other natives of the village. A country-made pistol loaded with a cartridge was recovered from the appellant. The appellant denied the charges and claimed trial. The Trial Court convicted the appellant and sentenced him to rigorous imprisonment of seven years, and, for the offence under Section 25 of the Arms Act, he was awarded a term of one year, with a direction that all sentences shall run concurrently.
Fact of the Case:
The prosecution alleged that the appellant along with 12-13 other dacoits committed dacoity in the house of the informant. The appellant was apprehended by the informant and other natives of the village. A country-made pistol loaded with a cartridge was recovered from the appellant.
Finding of the Court:
The court found that the prosecution had not been able to establish its case beyond all reasonable doubt against the appellant. The court held that the appellant was falsely implicated in the case due to a motive of revenge harbored by the informant and his brother against the acquitted co-accused, Chhotey Lal @ Lulva. The court also found that the First Information Report was not genuine and was scribed by a Head Constable at the Police Station, and not by the informant or the alleged scribe, Brij Mohan Singh.
Issues: 1. Whether the appellant was a member of the dacoit gang that committed the dacoity. 2. Whether the appellant was in possession of a country-made pistol loaded with a cartridge. 3. Whether the First Information Report was genuine.
Ratio Decidendi: 1. The court held that the prosecution had failed to prove that the appellant was a member of the dacoit gang that committed the dacoity. The court relied on the fact that the appellant was apprehended by the informant and other natives of the village, and not by the police. The court also noted that the appellant was not found in possession of any incriminating material, except for a country-made pistol loaded with a cartridge. 2. The court held that the prosecution had failed to prove that the appellant was in possession of a country-made pistol loaded with a cartridge. The court relied on the fact that the recovery of the weapon was not proved by a recovery memo, and that the police personnel who received the weapon at the Police Station were not examined to prove that the weapon was in working order and the cartridge was live. 3. The court held that the First Information Report was not genuine. The court relied on the fact that the informant had given two different versions about who was the scribe of the First Information Report, and that the signatures of the alleged scribe on the First Information Report did not match his signatures on his deposition.
Final Decision: The appeal was allowed, and the impugned judgment and order of conviction were set aside. The appellant was acquitted and ordered to be released forthwith.
JUDGMENT :
Hon'ble J.J. Munir, J.
1. The appellant Dukhi has been convicted of offences punishable under Section 395 read with Section 397 IPC and Section 25 of the Arms Act by the VII Additional Sessions Judge, Allahabad vide his judgment and order dated 03.11.1983 passed in Sessions Trial no.69 of 1982, State vs. Dukhi and others, under Sections 395, 397 IPC and connected Sessions Trial no.70 of 1982, State vs. Dukhi, under Section 25 of the Arms Act, both relating to Police Station Manjhanpur, District Allahabad (now Kaushambi). For the offence under Section 395 read with Section 397 IPC, the appellant has been awarded rigorous imprisonment of seven years, and, for the offence under Section 25 of the Arms Act, he has been awarded a term of one year, with a direction that all sentences shall run concurrently.
2. According to the prosecution, a First Information Report was lodged by one Dadu son of Ram Bhawan Nai, a native of Village Kaima, Police Station Manjhanpur, District Allahabad on 13.02.1977 at 11.15 hours against 10 nominated accused, besides another 6 – 7 unnamed, with some hints about their identity, to the effect that the informant going by his daily routine had eaten dinner and had lain down in his Chaupal. Inside home were his brother, Rup Chand, his wife and children, all retired to their respective quarters, lying down (presumably to sleep). The house was illuminated by a lantern and women folk of the house had shut doors from within. Past mid night the informant who was asleep woke up to the barking of dogs, when at the passage of a small interval, 12 – 13 men arrived at his door. It included Chhotey Lal Tamer (Lulwa), a native of the village, whose hands the informant, and, his kinsmen had chopped off 10 – 12 years ago, due to animosity. He had made life difficult for the informant and his family in the village. He was in the forefront of intruders that night. The informant further said, that he had seen and identified the man last mentioned, by the light of a lamp, that was burning in the Chaupal. The informant says that he shouted, that dacoits had come (expressed in vernacular as “ cnek'k vk x;s ”). The informant goes on to say that he exhorted his brother, whereupon the offenders assaulted him with sticks (Lathis), and, in the meanwhile, Chhotey Lal is said to have exhorted others, saying that he is the one who has chopped off (his) hands, kill him. And, thereupon the offenders in order to do his brother Rup Chand to death, tore the door apart and some men entered. The informant says that the assailants fell upon his brother, assaulting him with knife blows and sticks (Dandas), with an intention to do him to death. Amongst women folk, the informant's mother and his sister-in-law (brother's wife), in order to save the informant, made a human shield of themselves around him, in consequence of which some of the offenders relieved them of their ornaments, described in vernacular as Lachhe (of silver), Hansali and Jhala (of gold); one of the assailants took away a nose pin. His brothers, in order to save themselves, mounted an attack on the assailants, and, managed to catch hold of two of them. A native of the informant's village, Brij Mohan Singh, and, another, Bhola Nath Gupta, pressed their licensed guns into service, challenged the dacoits, opening fire. It is further said that the assailants in order to strike a retreat, exploded two crackers and also fired a shot. Natives of the village, Shiv Badan Singh, Anant Ram Jaiswal, Kandhai Kumhar, and, many others, arrived at the informant's place. Some natives made a fire, igniting hay, in front of the informant's house. The assailants seeing the natives grow in numbers, decamped with valuables, mentioned at the foot of the first information, taking a escape route towards Terahara.
3. It is said that the informant and his family had faced a murderous assault. The apprehended dacoit disclosed his name to be Dukhi son of Shahdev Dhobi, a native of Village Bhadain, P
