The prosecution must establish clear evidence of possession and connection to the dacoity to support conviction under Section 412 IPC; failure to do so results in acquittal.

JUDGMENT :

SANJIV KUMAR, J.

1. This criminal appeal, under Section 374 (2) Cr.P.C., has been filed by the appellant against the judgment and order dated 23.09.1988 passed by Special Judge (Dacoity Affected Area), Kanpur Dehat in Special Sessions Trial No.123 of 1987 (State vs. Ramesh), under Section 412 I.P.C., by which the appellant was convicted under Section 412 I.P.C. and sentenced to undergo three years’ rigorous imprisonment.

2. The brief facts of the prosecution case are that one Ram Nath, son of Baau Lal Katiyar, resident of village Nimndapur, Hamlet of Village Ursan, under Police Station Derapur, District Kanpur Dehat, submitted a written application (Tehrir) (Ext. Ka-5) at Police Station Derapur, District Kanpur Dehat stating therein that on 28.03.1987 at about 9:00 p.m., 9-10 miscreants, armed with lathi, danda, axe, rifle, gun and pistols entered in his house from western side of the village and assaulted his wife, Bhuri Devi. At that time, the first informant and his son, Ram Saran, returned to his home to have their meal then one of the miscreants, who was standing at the door, fired at them. The first informant and his son raised an alarm, there upon co-villagers, namely Shri Ram, Ram Prakash, Kripa Shanker, Sunder Lal, Mahendra Kumar, Loknath, Ashok Kumar, Sadafal, Shyam Manohar, Lalman, Pradeep, Gayaprasad, Sahab Lal, Ram Kumar, Awadesh Kumar and Kamlesh, along with others reached at the spot carrying lathi, danda, torches and licensed guns. Awadesh Kumar set at fire a heap of straw near the house, while lantern were lit in the courtyard and at the door. Two miscreants climbed onto the roof through the staircase, three remained standing at the door armed with guns and the remaining miscreants committed dacoity inside the house. The dacoits looted the informant’s licensed D.B.B.L. Gun 12 bore No. 72944 alongwith 35 cartridges and a license No. 8499 and also snatched Kamlesh’s watch. The informant and other villagers identified the dacoits in the light of the torches and the lantern. Some miscreants were tall, some were short and some were of average height. They were wearing pants, shirts and vests. The miscreants committed the dacoity for about half an hour and looted gold and silver ornaments, a banarasi saree, a woollen shawl, Rs. 9,500/- in cash and Kamlesh’s watch.

3. Upon receiving the aforesaid information, an FIR bearing Case Crime No. 57 of 1987, under Sections 395 and 397 I.P.C. was lodged against 9-10 dacoits and the investigation commenced.

4. The investigation was conducted by S.I. Ramesh Yadav. He recorded the statements of first informant and other witnesses. He visited the place of occurrence, collected ash from the heap of straw and prepared its recovery memo. He also recovered an empty cartridge from the spot and prepared its recovery memo. He inspected two lanterns and handed them over in supurdgi (custody) after preparing the memo and prepared the site-plan of the place of occurrence.

5. During the course of investigation, certain suspected persons were apprehended and their test identification parade was conducted, however, the first informant and other witnesses failed to identify them. On the intervening night of 24/25.06.1987, S.O. Chakra Pal Singh, along with other police personnel, wh