Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(All) 412

IN THE HIGH COURT OF ALLAHABAD
MANOJ MISRA, SAMEER JAIN, JJ.
Prem And Others – Appellants
Versus
State of U.P. – Respondent
Criminal Appeal No.1826 of 1983
Decided on : 08-04-2022

Advocates:
Advocate Appeared:
For the Appellant : Ajay Kumar Pandey, Bharat Singh, Preet Pal Singh Rathore
For the Respondent: S.S. Tomar

Point of law: Court are conscious of the legal position that being part of a gang of dacoits, while the act of dacoity is on, is sufficient to make a member of that bunch of dacoits, present there, liable for conviction.

Headnote:
Indian Penal Code, 1860 - Section 395/397 – Appeal Against Conviction - It is alleged that while informant's brother (deceased) and informant's nephew Ranbir Singh (PW-4), were at their shop, the informant heard their shrieks - In response, informant and his brother (PW-2) and others picked up lathi, torches and went to the spot - Where they saw, informant's brother - being assaulted by 10-12 persons, who had guns, pistol – Whether, appellants were a part of that bunch of dacoits or not, therefore, to test – Whether they were a part or not, court have taken notice of aspects discussed above, investigating officer of case has not been examined to explain non mentioning of the case details as well as various memos prepared during investigation so as to enable us to be completely satisfied in respect of prompt lodging of the FIR - Court are conscious of the legal position that being part of a gang of dacoits, while the act of dacoity is on, is sufficient to make a member of that bunch of dacoits, present there, liable for conviction (Para 28).
Finding of the Court :
There is no recovery of any incriminating material from accused-appellants and only independent witness of fact, namely, PW-3, did not depose with regard to involvement of accused-appellants – Even other prosecution witnesses of fact have not been able to demonstrate beyond reasonable doubt that as part of the gang of dacoits, accused- appellants participated in the dacoity, either, by lifting or looting articles or, by causing injury to any of the victims – No doubt, Court are conscious of legal position that being part of a gang of dacoits, while the act of dacoity is on, is sufficient to make a member of that bunch of dacoits, present there, liable for conviction, but, here, issue is whether, appellants were a part of that bunch of dacoits or not, therefore, to test whether they were a part or not, court have taken notice of aspects discussed above, investigating officer of the case has not been examined to explain non-mentioning of the case details in Chhitthi Majroobi as well as various memos prepared during investigation so as to enable us to be completely satisfied in respect of prompt lodging of the FIR – Further, police clerk who registered the FIR was not produced as a witness.
Results: Appeal allowed.

JUDGMENT :

Manoj Misra, J.

1. This appeal is against the judgment and order dated 03.08.1983 passed by Special Judge, Badaun in Sessions Trial No. 318 of 1981 thereby, convicting the appellants under Sections 396 I.P.C. and sentencing them to imprisonment for life. The appeal was filed by seven persons, namely, Prem, Mohar Singh, Ramesh, Banwari, Bhagwan Singh, Rajendra and Rajpal. Out of them, appellant no.1 (Prem); appellant no.3 (Ramesh); and appellant no.4 (Banwari) have died and their appeal was abated by order dated 20.11.2015. Therefore, this appeal survives for appellant no.2 (Mohar Singh son of Nathu); appellant no.5 (Bhagwan Singh son of Happu); appellant no.6 (Rajendra son of Happu); and appellant no.7 (Rajpal son of Khannu).

INTRODUCTORY FACTS

2. On an oral report made by Ganga Sahai (PW-1), a first information report (FIR) (Exb. Ka-1) was registered on 16.05.1980, at 22:00 hours, as Case Crime No. 96 of 1980, under Section 395/397 I.P.C., at P.S. Sahaswan, district Budaun, against twelve persons out of whom, eight persons, namely, Gajram (not put to trial as he had died), Prem (appellant no.1 -died during appeal), Mohar Singh (appellant no.2), Ramesh (appellant no.3 -died during appeal), Banwari (appellant no.4-died during appeal), all sons of Nathu; Bhagwan Singh (appellant no.5), Rajendra (appellant no.6), both sons of Happu; and Rajpal (appellant no.7), son of Khannu, were named. In the FIR it is alleged that at about 9 pm while informant's brother Ram Singh (the deceased) and informant's nephew Ranbir Singh (PW-4), son of the deceased Ram Singh, were at their shop, the informant heard their shrieks. In response, the informant and his brother Dhan Singh (PW-2) and others picked up lathi, torches and went to the spot. Where they saw, informant's brother -Ram Singh and informant's nephew -Ranbir Singh being assaulted by 10-12 persons, who had guns, pistol, Ballam. When the informant party challenged them, one of the miscreants assaulted Ranbir Singh with Ballam and, a fellow villager, namely, Gajram son of Khayali, shot Ram Singh and aimed at the informant party, which terrified the informant party and they retreated to the safety of their homes and from there they started pelting brickbats, etc. upon the miscreants. But the miscreants (i.e. dacoits) kept looting articles. In the meantime, informant’s wife set haystack on fire, which lit the area. After looting the house of the informant, the dacoits went to the house of Nem Chand son of Lakhan (not examined), and as soon as Kalyan son of Lakhan (not examined) opened the door, a shot was fired at him by a dacoit and the pellets of that shot struck Kalyan's wife Champa Devi (not examined). Thereafter, the dacoits went to the house of Saudan Singh (not examined), Hari Ram (PW-5), Naresh Pal (not examined) and Baburam (not examined) and looted articles. It is alleged that the dacoits took away mare of Hari Ram (PW-5). After looting the articles, the dacoits went away towards west. After alleging as above, it was stated that amongst 12 persons who committed dacoity, the informant party, in the light of torches, etc., could identify 8 fellow villagers, namely, Gajram, Prem, Mohar Singh, Ramesh, Banwari, Bhagwan Singh, Rajendra and Rajpal. Having made the allegations as above, it was also alleged that the accused Bhagwan Singh had falsely implicated the informant in the murder of Bhure and Happu; in respect of which, a case is pending. It was alleged that because of that case, the present set of named accused were inimical to the informant. It was also alleged that out of 10-12 dacoits, Gajram and 2 or 3 others were wearing Khakhi coloured clothes whereas, the rest were normally dressed. The FIR also gave details of the articles looted.

3. On a Chhitthi Majroobi (letter for medical examination of the injured), dated 16.05.1980, Ranbir Singh (PW-4) was medically examined for his injuries on 17.05.1980, at 1 am, at PHC -Sahaswan. The injury report (Exb. Ka-5), the genuineness