The prosecution must prove the case beyond reasonable doubt; failure to provide corroborative evidence and reliance on unreliable witness testimony undermines conviction under dacoity with murder.

judgment :

Pramod Kumar Srivastava, J.

1. Heard Shri R.D. Shahi, learned counsel for the appellant no. 3 Mangoo Lal & appellant no. 5 Maqbool, Ms. Manju Gupta, learned counsel for the appellant no. 2 Bhai Lal, and Shri H.P. Maurya, learned AGA for the State.

2. At the very outset, it was brought to our notice by the learned counsel for the appellants that appellant Nos. 1, Vishwa Nath Tewari, 4, Lallu, and 6, Jagatoo, have since died. Therefore, the appeal against them has already been abated vide order dated 17.02.2022. This appeal, therefore, survives and is being adjudicated only in respect of the three surviving appellants: appellant nos. 2 Bhai Lal, 3 Mangoo Lal, and 5 Maqbool.

3. The instant appeal has been preferred against the impugned judgment and order dated 17.12.1988 passed by the learned I Additional Sessions Judge, Lakhimpur Kheri, in Sessions Trial No. 40 of 1988 ( State Vs. Vishwa Nath Tewari and others ), arising out of Case Crime No. 123 of 1986 dated 21.10.1986, under Section 396 IPC, Police Station Isha Nagar, District Lakhimpur Kheri, whereby the learned Trial Court convicted the accused appellants for the offence under Section 396 IPC and awarded the sentence of imprisonment for life.

Factual Matrix

4. The brief facts of the case are that the prosecution case is based on the FIR lodged by the informant, Brij Mohan (PW-1). The incident is stated to have occurred on the night of 20.10.1986 at about 08:30 PM at the informant’s house in Village Hasanpur-Katauli, Police Station Ishanagar, District Kheri. The family was taking dinner when a group of seven accused persons, including the appellants, all residents of the same village and well-known to the informant, forcibly entered the house. The house was illuminated by a lantern and a '' (small kerosene oil lamp). The accused were allegedly armed with deadly weapons, specifically Banka (curved knife), Lathi (stick), Danda (cudgel), and a Tamancha (country-made pistol). It is alleged that accused Shesh Tiwari opened fire on the informant's father, Puttu Lal, and inflicted a fatal blow with a Banka on Smt. Munni (informant's mother), who tragically succumbed to her injuries. The informant, Brij Mohan, and his son, Rajendra Prasad (PW-5), also sustained injuries. It is also alleged that the miscreants proceeded to loot valuable items, including a silver 'Kardhani' (waist chain), other silver jewellery, and a nose ring. The informant claimed to have clearly identified all the miscreants in the available light of the lantern, , torches, and moonlight.

5. On the very next day, 21.10.1986, informant Brij Mohan (PW-1) presented a written a report (Tehrir, Exhibit Ka-1) regarding the incident before the Police Station Isha Nagar. The FIR (Exhibit Ka-2) was consequently lodged on 21.10.1986 at 08:15 AM (8:15 hours) against the seven accused persons, namely: Shesh Tiwari, Vishwa Nath Tewari, Mangoo Lal, Bhai Lal, Jassu, Lallu, and Maqbool.

6. During the course of the investigation, the Investigating Officer (I.O.) prepared the Inquest Report (Exhibit Ka-4) and sent the deceased, Smt. Munni's body for post-mortem. The I.O. also visited the place of occurrence, collected blood-stained, simple earth and prepared (Memo Exhibit Ka-5), and prepared the Site Plan (Exhibit Ka-6). The lantern (Memo Exhibit Ka-7) and a torch (Memo Exhibit Ka-8) were taken into possession. The injured, Rajendra Prasad (PW-5), Brij Mohan (PW-1), and Puttu Lal, were medically examined.

7. The following injuries were found on the person of the injured Brij Mohan:

1. Incised wound 8 Cm. x 1