IMPORTANT POINT
A conviction under Section 396 IPC requires proof of participation by five or more individuals, which was not established in this case, leading to the acquittal of the appellant.

JUDGMENT :

(Delivered by Hon’ble Siddhartha Varma,J.)

1. Heard Sri Sandeep Dubey, learned Amicus Curiae for the appellant, Sri Amit Sinha, learned A.G.A. for the State-respondent and perused the material available on record.

2. Instant Criminal Appeal has been preferred against the judgment and order dated 31.3.1983, passed by IIIrd Additional Sessions Judge, Fatehpur in S.T. No. 624 of 1981, convicting and sentencing the appellant for charge under Section 396 IPC and sentencing him to undergo imprisonment for life.

3. The factual matrix of the case pertaining to present Criminal Appeal in brief is that upon an incident having occurred in the mid night of 4/5.2.1981, a first information report was lodged on 5.2.1981 at 9:10 AM by the son of the deceased. Deceased was one Smt. Phoolmati and the first informant was her son Binda Prasad Mishra. Upon the first information report having been lodged, the police got into action. The Panchayatnama was prepared on 5.2.1981 itself and was exhibited as Ext.Ka-5 and thereafter, the dead body was sent for postmortem and the postmortem report was exhibited as Ext.Ka-1. There were certain recoveries. The recovery of the ash which was there as a result of the pual which was burnt on the date of incident was exhibited as Ext.Ka-9. Similarly, the recovery memo of the torches, which were allegedly in the hands of the eye-witnesses, was prepared and exhibited as Ext.Ka-10. A recovery memo was also prepared with regard to the empty cartridges which were found on the place of the incident and the memo was exhibited as Ext.Ka-11. After the investigation had commenced on the mentioning of the names of Narad and Beni by PW-3 and PW-4 i.e. Bhola and Nanku, the accused Narad and Beni were arrested. The accused Kallu was, however, arrested on 13.8.1981. The police, upon completion of investigation had submitted its report vis-a-vis Narad and Beni on 28.6.1981 and vis-a-vis Kallu on 5.10.1981. The court, thereafter, had framed charges under Section 396 IPC against the three accused persons on 17.6.1982. The trial, thereafter, commenced when the accused persons denied the charges and desired a trial. From the side of prosecution as many as ten witnesses were produced and examined.

4. PW-1 Dr. S.K. Singh is the Doctor, who had proved the postmortem and had given the details of the injuries which were found on the dead body of Smt. Phoolmati, the deceased.

5. PW-2 Binda Prasad Mishra is the first informant and he has in detail described the incident which had occurred on the night of 4/5.2.1981. He has given the reason as to why he had not mentioned in the first information report the names of Narad and Beni. He has also mentioned the fact that Bhola, Nanku, Murad and Ram Bharose were present on the spot. This fact he had also mentioned in the first information report. With regard to the fact that why he had not mentioned the names of Narad and Beni despite the fact that the PW-3 and PW-4 had seen them on the spot, he states that he was never told by PW-3 and PW-4 that Beni and Narad were also there in the incident. He, however, has mentioned that after his house, there was a house of his uncle, which was bought by the accused Beni and Narad and also his father. He has also stated that father of Beni and Narad had 12 to 13 bighas of agricultural land in the village. Upon a question being asked as to whether the PW-3 Bhola was falsely trying to implicate Narad and Beni because he wanted to occupy their houses, the PW-2 denied this fact. In the cross-examination, he has accepted that his sasural (in-laws’ place) was in the village Bahrauli in the house of one Laxmi Narayan and upon a question being asked that when Kallu also belonged to Bahrauli did he know him from before, he had answered in the negative. He has stated that when he had gone for test identification parade, he had recognized only Kallu over there. The other persons allegedly involved in the incident were not recognized by him. He has stated that only