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CASE NO.: Appeal (crl.) 397  of  1998

PETITIONER: RANG BAHADUR SINGH AND ORS.

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT:       07/03/2000

BENCH: K.T. THOMAS & R.C. LAHOTI

JUDGMENT:

THOMAS, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   For  Bhulani  Devi the night on the 1st of August,  1978 turned  out to be the most dreadful in her life, for, it was on  that  night her husband, her father-in-law, his  brother and  two other neighbours were gunned down within her  sight inside  her  nuptial home by armed dacoits.   Police,  after investigation  challaned  the appellants as three out  of  a gang  of dacoits, as the others could not be identified thus far.  Though the three appellants secured acquittal from the trial  court they fell into the dragnet of conviction when a Division  Bench  of the High Court found them guilty of  the offence,  on  the  appeal preferred by the State.   All  the appellants were thereupon convicted under Section 396 of the Indian  Penal  Code  and  each   was  sentenced  to  undergo imprisonm nt for life.

   Thus  the appellants filed this appeal as of right under Section  379 of the Code of Criminal Procedure and Section 2 of  the  Supreme  Court (Enlargement of  Criminal  Appellate Jurisdiction)  Act  1970.   We   heard  detailed   arguments advanced  by  Shri  U.R.   Lalit,  senior  counsel  for  the appellants  and Shri Vishwajit Singh, counsel for the  State of U.P.

   Facts lie in a narrow compass.  The incident happened in Rudauli Village (Mirzapur District).  Bhulani Devi’s husband Rama  Shankar  Yadav was the Pradhan of that  village.   His residential building must have been a twin house wherein the entire  family of his father would have been living.  On the fateful  night he and his wife Bhulani Devi along with their children  were  sleeping on the roof of one segment  of  the building.   His  father  Chamman Yadav was sleeping  on  the verandah  of the next segment along wit his brother  Sombhar Yadav.   It  appears  that  the  family  was  in  reasonably affluent  circumstances  and they had a number of  valuables which  were kept in the house.  It was around midnight  that the  dacoits arrived consisting of a gang of 14 or 15.  They tri  d to break open the door of the house.  On hearing  the sound  of  gate-crashing  Bhulani Devi woke up and  saw  the

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dacoits  in the light of torchlights flashed by them.   They were  armed  with  guns,  chopper and lathis.   One  of  the inmates  of  the  house - Ram Lak an Yadav -  presumably  to alert the villagers, set ablaze a haystack in the courtyard. The  flames  provided  enough alert to  the  neighbours  who started trickling in.  The dacoits first attacked Ram Lakhan Yadav  and  vanquished  him.   Some of the  neighbours  w  o arrived  there  gathered courage and attacked the  marauders with bricks and pebbles.

   Dacoits  turned  against Chaman Yadav who  entreated  to them  to  spare  their lives and allowed them to  take  away whatever  wealth  they required.  On realising  that  Chaman Yadav  had discovered the identity of the attackers some  of them fired at him and also at his brother Sombhar Yadav, and consequently  both  of them fell down.  Rama  Shankar  Yadav became  forceful  and  told the dacoits that he  would  take revenge  for  the killing of his father.   Instinctively  he picked  up  bricks  and  pelted such handy  weapons  at  the killers.  Then some of the dacoits turned against him, broke up  his  part of the house, climbed up to the roof and  shot him dead.  Thereafter the dacoits tried to run away with the booty.

   While running away some of the local people chased them. So  the dacoits turned and fired at them also.  Lalchand and Kalika  Yadav sustained fatal bullet injuries and later they succumbed  to  those injuries.  The marauders  succeeded  in escaping with the booty.

   The  first information was actually conveyed to a Police Outpost where PW-10 Head Constable was present.  He told the informant  to report the matter to the police station.  So a written  complaint was presented at the police station which was  made  the  basi  for the FIR.  Names of  three  of  the dacoits were mentioned in the said written complaint.

   None of the appellants, nor any of the remaining dacoits could  be  arrested  by the police.  However  on  16.8.1978, first and third appellants surrendered before the magistrate court  while  the second appellant surrenered on  24.8.1978. Some  other persons we e taken into custody on suspicion and were  put to Test Identification Parade.  But the  witnesses did not identify them and hence they were dropped out.

   Prosecution  examined  12 witnesses.  Out of  them  PW-3 Keshav,  PW-4 Bhulani Devi, PW-5 Lalloo, and PW-6  Chandrika have  stated that they identified the appellants as three of the  dacoits.   The  accused examined  two  witnesses,  DW-1 Jaishree and DW-2 Roop Nara n Singh.  Jaishree is one of the neighbours.   His version was that when he reached the house of  occurrence  in  the night he found some of  the  inmates lying  dead  and  some  other lying  injured,  but  even  on enquiries made by him none could tell him as to the id ntity of any of the dacoits.

   The  Session Judge was not persuaded to believe that the three  appellants were involved in the dacoity.  He advanced 8 reasons for holding the said view.  Those reasons are:

   (1) Exhibit KA-22 (which is the written complaint signed by  Bhulani  Devi  and  which   is  the  first   information statement) would have been created much after the occurrence and  it  would have been prepared under the active care  and supervision of the local po ice.

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   (2)  FIR was ante-dated and hence is devoid of any legal utility.

   (3)  There  was  no  sufficient light  to  identify  the dacoits.

   (4) The investigating officer did not make any effort to arrest  the  accused.   Instead   some  other  persons  were arrested and they were let off later.

   (5)  Name of the second appellant (Mangala Giri) was not in  the FIR, and on the contrary the name of another  person (Baba  Singh) was found in place thereof.  According to  the police,  even  the said Baba Singh was not involved  in  the offence.

   (6)  It is difficult to believe that the appellants  who were  well known to the inmates of the house would have gone there without covering/concealing their faces.

   (7)   There  is  no   acceptable  explanation  for   the non-examination of Ram Lakhan.

   (8)  As  PW-3 admitted that there was a previous  enmity between  Rama Shankar Yadav and the first appellant there is also   the   possibility  of   the  accused  being   falsely implicated.

   The  Division  Bench of the High Court agreed  with  the Sessions  Judge  that the investigating officer (PW-11  K.N. Singh)  acted  in  a  very unfair  manner.   Learned  judges further  felt that PW-11 was trying to help the  appellants. The  role  played  by  PW-11 in th  investigation  has  been subjected  to  very rude comments passed against him by  the Division  Bench  of  the High  Court.   Nonetheless  learned Judges  felt  that  the evidence of the four  eye  witnesses could  be  relied  on and hence the order of  acquittal  was rever  ed and appellants were convicted by the High Court of the offence mentioned above.

   True, if the evidence of those four eye witnesses can be accepted  regarding identification of the appellants as  the culprits  there is no difficulty to confirm the  conviction. So  the  crucial  question  in this appeal  is  whether  the evidence  of those witnes ses can safely be acted on, merely because  in  the trial court those witnesses identified  the appellants  as three of the culprits.  We are definite  that the  identification made by the four witnesses in court must be  subjected  to  severe scrutiny for the rea on  that  the appellants  were admittedly at loggerheads with the  husband of PW-4 Bhulani Devi.

   If  the  inmates of the robbed house could not  identify any  of  the  dacoits  but later  they  suspected  that  the appellants  were behind the dacoity, there can certainly  be the  possibility  of  implicating   the  appellants  out  of suspicion.  Is it enough to sidelin e their testimony merely because of such a possibility?

   There  are  certain broad incongruities staring  at  the prosecution  version  against the appellants.  They  can  be

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narrated below:

   First is that the written complaint made by PW-4 Bhulani Devi  which  became  the  basis for  the  FIR,  reached  the magistrate  only  on 3.8.1978.  If the incident happened  on the  night of 1st August and the police was told on the next morning that appellants wer e the dacoits, we have no reason to think that the FIR would not have been registered against the  appellants  on the same morning.   PW-11  investigating officer  admitted  that no case was registered  against  the appellants  till the night of 2nd August, 1978.  If so,  the arguments   that  the  case   against  the  appellants   was registered  only on the 3rd of August 1978, cannot be  ruled out.   What  was the reason for such a peculiar  dodging  in making an FIR?

      The second aspect is that names of the appellants did not officer on 2nd August.  The argument was attempted to be made  in defence of such non-inclusion of the appellants  on the  premise that no su figure in any of the papers prepared by  the investigating ch document required mention the names of  the accused.  We find it difficult to believe that  even the general diary need not contain the names of the culprits whose  identity was known by then.  It is equally  difficult to  comprehend  that the inquest prepar d on the morning  of 2nd August 1978, should be totally silent about the names of at  least the known culprits.  Is it not more reasonable  to presume   that   no  names  were   mentioned  in   all   the investigative  records made on 2nd August 1978, because  the investig  ting officers had not come to know of the names of any of the dacoits till then?

   In  the  above context we may point out that the  police did  not  think  it  necessary to raid  the  houses  of  the appellants  either on the 2nd or on the 3rd of August, 1978. It  was  only  on the 4th that the police chose  to  make  a search  of  the  houses of the acc used.  This could  be  on account  of  the  fact  that  police  had  no  idea  of  the involvement of the said accused till 3rd of August, 1978.

   The   next  impediment  against   the  veracity  of  the prosecution  version  is, why the investigating officer  did not  feel  the  necessity  to recover at least  one  of  the articles   robbed   away.   We   must  remember   that   the investigating  officer could not recover even the guns  with which  the appellants would have killed five persons in  the occurrence.   Such  a serious flaw cannot be explained  away simply  because  the police failed to know where  such  guns were disposed of.

   In  the  above  context it must be remembered  that  the appellants surrendered to the court on their own initiative. It is difficult to appreciate that the investigating officer could  not interrogate any of the appellants even after they surrendered in the court.

   We may now point out the prosecution version that Chaman Yadav  and  Sombhar  Yadav were gunned down  by  the  police because  they realised the identity of the appellants.  PW-4 Bhulani  Devi  said  that she heard one  of  the  appellants uttering  the  words:  "Chaman Yadav had already  identified us".   We have to pause here for a minute and ask a question -  if  the dacoits did not want the inmates of  the  burgled house to know their identity, is it not reasonable to assume that  they would have reached the house after c vering their

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faces?   Instead,  all  of them turned against the  old  man Chaman  Yadav,  only  because Chaman  Yadav  understood  the identity of the dacoits.

   From  the above broad aspects it is quite possible  that none of the witnesses could mention the names of the persons on  2.8.78.   If  that  be  so the  evidence  of  DW-1  (the neighbour)  that nobody could say who the dacoits were  even though   he   reached  the   place  immediately  after   the occurrence,  cannot be brushed aside.  If that was the  real position,  it is possible that the names of the accused were mentioned by PW-4 and others out of suspicion.

   It  is  again in the aforesaid context that we  have  to evaluate  the  impact of the non-examination of  Ram  Lakhan Yadav.   When  four witnesses were examined to speak to  the occurrence  normally non-examination of one more witness  is not a serious flaw.  But in this case non-examination of Ram Lakhan  Yadav  cannot  be sidelined with such  a  reasoning. This  is because it was Ram Lakhan Yadav who set fire to the haystack,  in  the light of which flames the  culprits  were identified;   and  it  was  Ram Lakhan Yadav  who  wa  first attacked by the dacoits, and it was Ram Lakhan Yadav who had seen  the  dacoits earlier than any other  person  connected with  victims’  house.   What he would have said  about  the identity  of the dacoits cannot now be left in surmise.   If he  also had sa d that all the dacoits were unknown  persons it  would have had a very deleterious impact on the veracity of the four witnesses who pointed to the three appellants as the dacoits.

   At any rate, the reasons advanced by the trial court are by  no  means  weak  or untenable for  not  relying  on  the evidence  regarding  identity of the dacoits.  In an  appeal against acquittal interference cannot be made if the reasons of the trial court are go od and sturdy.

   The  amount  of  doubt which the court  would  entertain regarding  the complicity of the appellants in this case  is much  more than the level of reasonable doubt.  We are aware that  acquitting the accused in a case of this nature is not a  matter  of satisfactio n for all concerned.  At the  same time  we  remind  ourselves  of the  time-tested  rule  that acquittal  of  a  guilty  person   should  be  preferred  to conviction  of  an innocent person.  Unless the  prosecution establishes the guilt of the accused beyond reasonable d ubt a  conviction  cannot be passed on the accused.  A  criminal court  cannot  afford to deprive liberty of the  appellants, lifelong liberty, without having at least a reasonable level of  certainty  that appellants were the real  culprits.   We really   entertain  oubt  about   the  involvement  of   the appellants in the crime.

   We  therefore,  allow  this  appeal and  set  aside  the judgment  of  the  High  Court.  We  restore  the  order  of acquittal  passed  by  the trial court and direct  the  jail authorities  to  set  the appellants free, unless  they  are involved in any other case.