# Prem & Ors v. State

- **Citation:** (2022) 4 ILRA 1093
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-08
- **Case number:** Crl Appeal No. 1826 of 1983
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-ors-v-state-48380
- **Pages:** 17

## Headnote

A. Section 482 Cr.P.C.- Mere consistency or
congruity in the testimony of the prosecution
witnesses is not the sole test of truth as even
falsehood can be given an adroit appearance of
truth so that truth disappears and falsehood
comes on the surface. Therefore, what the court
1094 INDIAN LAW REPORTS ALLAHABAD SERIES
has to look at and assess is whether the
prosecution
evidence
coupled
with
the
surrounding circumstances has a ring of truth
about it or there arises a strong suspicion and
high probability of false implication of the
accused put on trial. It is well settled that while
witnesses may lie, circumstances will not.

The Investigating Officer of the case has not
been examined to explain non-mentioning of
the case details in the chitthi majroobi as well as
various memos prepared during investigation so
as to satisfy in respect of prompt lodging of
F.I.R. Further, the police clerk who registered
the F.I.R. is also not produced as a witness.
Therefore, merely because the defence did not
question the police witness on the issue
whether F.I.R. was ante timed or not it would
not absolve the prosecution to prove it's case
beyond reasonable doubt.

The informant has taken the commission of
dacoity in the village as an opportunity to falsely
implicate persons with whom he had enmity.

Appeal allowed. (E-11)

List of Cases cited:-

## Text

_Characters 0–39,922 of 59,948. This is a partial read: ask again with offset=39922 for what follows._

4 All. Prem & Ors. Vs. State
1093
disposing of the fourth bail application of
the present applicant.

21. Accordingly, the present bail
application is allowed.

22. Let the applicant Bhaiya Ram,
involved in aforesaid case crime be
released on bail on his furnishing a
personal bond and two sureties each in the
like amount to the satisfaction of the court
concerned with the following conditions
which are being imposed in the interest of
justice:-

(i)
The
applicant
shall
file
an
undertaking to the effect that he shall not
seek any adjournment on the dates fixed for
evidence when the witnesses are present in
court. In case of default of this condition, it
shall be open for the trial court to treat it as
abuse of liberty of bail and pass orders in
accordance with law.

(ii) The applicant shall remain present
before the trial court on each date fixed,
either personally or through his counsel. In
case of his absence, without sufficient
cause, the trial court may proceed against
him under Section 229-A of the Indian
Penal Code.

(iii) In case, the applicant misuses the
liberty of bail during trial and in order to
secure his presence proclamation under
Section 82 Cr.P.C. is issued and the
applicant fails to appear before the court on
the date fixed in such proclamation, then,
the trial court shall initiate proceedings
against him, in accordance with law, under
Section 174-A of the Indian Penal Code.

(iv)
The
applicant
shall
remain
present, in person, before the trial court on
the dates fixed for (i) opening of the case,
(ii) framing of charge and (iii) recording of
statement under Section 313 Cr.P.C. If in
the opinion of the trial court absence of the
applicant is deliberate or without sufficient
cause, then it shall be open for the trial
court to treat such default as abuse of
liberty of bail and proceed against him in
accordance with law.

(v) The applicant shall not leave the
country without permission of the Court
concerned.

23. Before parting with, it is expected
that the trial shall be concluded with
expedition in terms of Section 309 Cr.P.C.
Further, the learned trial court may take all
coercive measures as per law if either of
the parties do not co-operate in the trial
properly. The learned trial court shall fix
short dates to ensure that trial is concluded
at the earliest.
----------
(2022)04ILR A1093
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.04.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Crl Appeal No. 1826 of 1983

Prem & Ors. ...Appellants
Versus
State ...Respondent

Counsel for the Appellants:
Sri Ajay Kumar Pandey, Sri Bharat Singh, Sri
Preet Pal Singh Rathore, Sri Satish Trivedi
(Senior Adv.)

Counsel for the Respondents:
A.G.A., Sri S.S. Tomar

A. Section 482 Cr.P.C.- Mere consistency or
congruity in the testimony of the prosecution
witnesses is not the sole test of truth as even
falsehood can be given an adroit appearance of
truth so that truth disappears and falsehood
comes on the surface. Therefore, what the court
1094 INDIAN LAW REPORTS ALLAHABAD SERIES
has to look at and assess is whether the
prosecution
evidence
coupled
with
the
surrounding circumstances has a ring of truth
about it or there arises a strong suspicion and
high probability of false implication of the
accused put on trial. It is well settled that while
witnesses may lie, circumstances will not.

The Investigating Officer of the case has not
been examined to explain non-mentioning of
the case details in the chitthi majroobi as well as
various memos prepared during investigation so
as to satisfy in respect of prompt lodging of
F.I.R. Further, the police clerk who registered
the F.I.R. is also not produced as a witness.
Therefore, merely because the defence did not
question the police witness on the issue
whether F.I.R. was ante timed or not it would
not absolve the prosecution to prove it's case
beyond reasonable doubt.

The informant has taken the commission of
dacoity in the village as an opportunity to falsely
implicate persons with whom he had enmity.

Appeal allowed. (E-11)

List of Cases cited:-

1. Chandrabhan Vs State 1981 CRLJ 196

2. Siyaram Rai Vs St. of Bihar (1973)3 SCC 241

3. Laxman Prasad Vs St. of Bihar 1981(Supp)
SCC 22
(Delivered by Hon'ble 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
4 All. Prem & Ors. Vs. State
1095
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 of
which was admitted, reveals following
injuries:-

(i) Incised wound 0.5 cm x 0.25 cm x
muscle deep on left side of chest, 3 cm below
left nipple;

(ii) Incised wound 1.5 cm x 0.25 cm x
muscle deep on front of abdomen on right
side, 1 cm above the umbilicus.

According to the opinion of doctor, all
injuries were simple in nature, caused by
sharp edged weapon; and fresh in duration.

4. Similarly, Smt. Champa Devi was
also examined on 17.05.1980 at PHC
Sahaswan. Her injury report (Exb. Ka-6)
reveals following injuries:-

(i) Firearm wound of entry 0.25 cm x
0.25 cm x skin deep on outer side of right
upper arm, 4 cm above the elbow joint.

According to the opinion of the doctor,
injury was simple, caused by firearm; and
fresh in duration.

NOTE: The defence accepted the
genuineness of this document and therefore it
was marked an Exhibit.

Interestingly, in this injury report, the
time of examination mentioned is 2 pm on
17.05.1980.

5. The other injured, namely, Ram
Singh, died on 08.06.1980, at about 3.20 pm,
in the District Hospital. His post-mortem
examination was conducted on 09.06.1980 at
4 pm. The post-mortem report (Exb. Ka-4) of
which the genuineness was admitted, reveals
that he died of Septic due to Pus formation. It
be noticed that there is no dispute that the
deceased (Ram Singh) had suffered gun shot
injuries in the incident.

6. Sri R.D. Yadav, S.O., Sahaswan
(not examined) started the investigation. He
1096 INDIAN LAW REPORTS ALLAHABAD SERIES
collected the kerosene lamp (Dibby) of the
informant as also the torches in the light of
which the incident could be seen. The
custody of these items were provided back
to its owners of which custody memos were
separately prepared, which were exhibited
as Exhibit Ka-2 and Ka-3, respectively. He
collected blood-stained and plain-earth
from two spots, namely, the shop of Ram
Singh and the house of Kalyan, of which
memos were separately prepared and
exhibited as Exhibit Ka-8 and Ka-12,
respectively. He collected two empty
cartridges from near the shop of Ram Singh
of which a memo was prepared and
exhibited as Exhibit Ka-9. He also
collected sample of burnt ash from near the
house of the informant of which a memo
was prepared and exhibited as Exhibit Ka10. He also prepared a custody memo of
lantern, alleged to have been lit in the shop
of Ram Singh, which was exhibited as
Exhibit Ka-11. He prepared a custody
memo of a kerosene lamp (Dibby) lit in the
house of Kalyan at the time of the incident,
which was exhibited as Exhibit Ka-13. He
prepared a memo of lifting empty cartridge
and pellets from the house of Kalyan,
which was exhibited as Exhibit Ka-14. He
also prepared a memo of collection of
blood stained Dhoti of injured Kalyan,
which was exhibited as Exhibit Ka-15.
Inquest with regard to the deceased - Ram
Singh, was held at the mortuary of Civil
Hospital, Bareilly on 08.06.1980. The
genuineness of the inquest report was
admitted and it was exhibited as Exhibit
Ka-20. After investigation, charge-sheet
(Exb. Ka-16) was submitted on 18.07.1980
by PW-6 (the second investigating officer)
against 7 persons (i.e. only the named
accused-the appellants), with a remark that
the other named accused Gajram had died.
On
the
charge-sheet,
after
taking
cognisance, on 09.08.1982 charges relating
to offences punishable under Sections 396
and 307 I.P.C. were framed.

7. During the course of trial, six
prosecution witnesses were examined,
namely, PW-1 Ganga Sahai - informant,
PW-2 - Dhan Singh (the brother of the
informant); PW-3 - Kallu (one of the
victims of dacoity, who was declared
hostile); PW-4 -Ranbir Singh (the son of
the deceased and nephew of the informant -
the person injured); PW-5 - Hari Ram (one
of the victims of dacoity); and PW-6 - P.P.
Mishra (the investigating officer who
submitted charge-sheet).

8. The incriminating circumstances
appearing in the prosecution evidence were
put to the accused for recording their
statement under Section 313 Cr.P.C. The
surviving appellant Mohar Singh claimed
that he has been falsely implicated; that in
the murder of Happu and Bhure, Ganga
Sahai was an accused, wherein he was a
witness, therefore, he has been falsely
implicated.
Appellant-Bhagwan
Singh
stated that in the murder of his father
(Happu), Ganga Sahai (the informant),
Ram Singh (the deceased), Ranbir Singh
(PW-4), Dhan Singh (PW-2), and Hari
Ram (PW-5) were all accused therefore, he
has been falsely implicated. AppellantRajendra gave identical statement as given
by Mohar Singh, which is, that he is a
witness in the murder of Happu and Bhure.
Whereas, appellant-Rajpal claimed that he
is an associate of Rajendra and Bhagwan
Singh therefore, he has been falsely
implicated.

9. The trial court held that the factum
of armed dacoity is proved; the death of
one of the victims of dacoity, after 21 days
of
hospitalisation,
on
account
of
septicaemia as a result of injuries received
4 All. Prem & Ors. Vs. State
1097
at the time of dacoity, is proved; the
injuries of PW-4 are also proved; the first
information report was lodged promptly;
that PW-4, the injured witness, and other
persons in whose house dacoity was
committed, have disclosed the presence of
the accused-appellants, therefore, there is
no reason to doubt their version, hence,
they were all liable to be convicted under
Section 396 I.P.C. As the charge of an
offence punishable under section 307 IPC
was found covered by the charge of
dacoity, no separate conviction on that
charge was recorded.

10. We have heard Sri Ajay Kumar
Pandey along with Sri Bharat Singh for the
surviving
appellants
-
Mohar Singh,
Bhagwan Singh, Rajendra and Rajpal; Sri
Pankaj Saxena along with Sri Amit Sinha,
learned A.G.A., for the State; and have
perused the record.

SUBMISSIONS ON BEHALF OF
THE SURVIVING APPELLANTS

11. Learned counsel for the appellants
submitted that this is an interesting case
where all the named accused except Rajpal
(appellant no.7) are residents of the same
village where the dacoity is alleged to have
been committed. Twelve persons are said to
have participated in the dacoity including 8
named accused. It is an admitted fact that in
the murder of Happu and his brother Bhure,
Ganga Sahai (the informant), Dhan Singh
(PW-2); Hari Ram (PW-5); Ram Singh (the
deceased); and Ranbir Singh (PW-4) were
accused. Interestingly, amongst all the
witnesses of fact, PW-3, who is not an
accused in the murder of Happu, has not
disclosed the name of any of the dacoits
and has stated that he could not recognise
them. It cannot be a mere coincidence that
only those victims of dacoity have named
the accused who held enmity with the
named accused; whereas those who held no
enmity have not named the accusedappellants. The prosecution has not led any
evidence to show that the accusedappellants
were
men
of
criminal
antecedents or were dreaded dacoits against
whom reports were there from before, or
were proclaimed offender who cared a
damn about law and order, under these
circumstances, it is unbelievable that the
accused-appellants, if were to commit
dacoity in their own village, would not
cover their faces to hide their identity. The
prosecution
story
to
the
extent
of
participation of the accused appellants in
the dacoity, without masking their identity,
defies logic, and is a circumstance which
suggests that the informant has taken the
factum of dacoity as an opportunity to
falsely implicate the accused- appellants.

12. It has been urged that in the
prosecution evidence it has come that, out
of 12 dacoits, four had sported police dress
(Khakhibana). Thus, part of the gang of
dacoits were hiding their identity, under
these circumstances, it is unacceptable that
those who were residents of the same
village would not hide their identity. This
clearly indicates that it is a case of false
implication.

13. As regards prompt lodging of the
first information report, the learned counsel
for the appellants submitted that the first
investigation officer of the case and the
clerk/constable who registered the report
have not been produced as a witness
therefore,
the
accused-appellants
were
deprived of the opportunity to elicit from
them that the FIR was ante-timed. In this
regard it was pointed out that various
memorandums prepared on 17.05.1980,
during the course of investigation, namely,
1098 INDIAN LAW REPORTS ALLAHABAD SERIES
Exhibit Ka-2, Exhibit Ka-3, Exhibit Ka-8,
Exhibit Ka-9, and Exhibit Ka-11, which all
appear to be in one handwriting, do not bear
the case crime number and other details of
the case in connection with which those
memorandums were prepared whereas, ExKa-10 which is in same writing carries the
case crime number in English language,
which
appears
interpolated.
But,
interestingly, Exhibit Ka-12, Exhibit Ka-13,
Exhibit Ka-14, Exhibit Ka-15, which were
also prepared on 17.05.1980, appear in a
different handwriting though, they carry the
case crime number. Most importantly, the
majroobi chitthi (letter for examination of the
injured) of PW-4 and Champa Devi (not
examined), marked Exb Ka-5 and Exb Ka-6,
do not bear the case details which is
suggestive of the fact that when they were
sent for medical examination, no first
information report had come into existence. It
has also been urged that as per the Chik FIR
(Exb. Ka-1), the FIR was lodged at 22.00
hours (10 pm) on 16.05.1980, whereas, if the
incident occurred at 9 pm on 16.05.1980, as
is the case, and the distance between the
place of the incident and the police station is
3 kms, the same appears too prompt. Further,
the FIR has been made orally yet, it is a
detailed report which, keeping in mind that
there were several victims of dacoity who had
also
sustained
injuries
and
required
immediate attention, would suggest that it
was made with composure and after
deliberation. This circumstance, by itself,
evokes suspicion with regard to the report
being ante-timed.

14. It was urged that as all the witnesses
were highly inimical and interested, there was a
need for corroboration from independent
evidence such as recovery of the weapons of
assault or the articles looted or by deposition of
those victims of dacoity who were not inimical
to the accused-appellants. But, interestingly, this
is a case where there is no recovery, either of
the weapon of assault or of the looted articles,
either from the accused-appellants or from
anybody else. It was also urged that the first
investigating officer of the case has not been
examined and no reason for his nonexamination has come in the testimony of the
police officer who proved the police papers by
proving the signature of the first investigating
officer. Under the circumstances, the testimony
of highly interested witnesses have got no
corroboration from other material.

15. Lastly, learned counsel for the
appellants submitted that the trial court
overlooked an important feature, which is, that
in the testimony of all the prosecution
witnesses, except for naming the accusedappellants as being part of the Gang, there is no
disclosure about the role played by the accusedappellants during the course of dacoity. Further,
there is nothing in the testimony to show as to
with what weapon the accused-appellants were
armed and who inflicted which injury and to
whom. Absence of disclosure in this regard,
according to the counsel for the appellant, is a
clinching circumstance suggestive of the fact
that the informant took advantage of the
occurrence of dacoity to implicate persons with
whom he held enmity. It is thus a case where
the
prosecution
story
as
regards
the
involvement of the accused-appellants in the
dacoity is shrouded in suspicion and that
suspicion has not been dispelled by the
prosecution, therefore, the appellants are
entitled to the benefit of doubt. It has been
prayed that the judgment and order of the trial
court be set aside.

SUBMISSIONS ON BEHALF OF THE
STATE

16. Per contra, the learned A.G.A.
submitted that as the factum of dacoity is
duly
substantiated
and
not
seriously
4 All. Prem & Ors. Vs. State
1099
disputed and the first information report
has been lodged promptly; there being an
injured witness to disclose the presence of
the accused-appellants as part of the Gang,
it stood proved that the appellants were part
of armed dacoits that committed murder in
the act of looting, which, by itself, is
sufficient to convict the appellants under
Sections 396 I.P.C. therefore, the judgment
and order of the trial court calls for no
interference.

17. As regards the possibility of false
implication and the argument that the
accused being residents of the same village
would not have participated in dacoity
without masking their faces, the learned
A.G.A. submitted that there is no hard and
fast rule that a person committing dacoity
in his own village would always mask his
identity. It is the psychology of the criminal
that lets him take such a decision and that
psychology is not for the court to guess.
Often, criminals to show their devil may
care attitude do not care to mask their face.
In this context, the learned counsel for the
appellants placed reliance on certain
observations in the impugned judgment as
also on a decision of the apex court in the
case of Siyaram v. State of Bihar, 1973 (3)
SCC 241.

18. On the issue of the FIR being
ante-timed, the learned A.G.A. submitted
that no suggestion has been given to PW-1
(the informant) that the FIR was ante-timed
therefore, the
appellants cannot
take
advantage of non-examination of the
investigating officer or the police clerk,
who made entries on the oral report.

19. In respect of absence of evidence
with regard to recovery of incriminating
material
from
any
of
the
accusedappellants, the learned A.G.A. submitted
that this may be a lapse on the part of the
investigating officer of which the benefit
should not go to the accused, because here,
there is a credible ocular account of the
incident. It has been urged that once the
factum of dacoity is proved beyond doubt
and the presence of the appellants as part of
that gang of dacoits has been proved by an
injured witness, the trial court stood
justified in recording conviction therefore,
the appeal deserves to be dismissed.

PROSECUTION EVIDENCE

20. Before we proceed to weigh the
rival submissions, it would be apposite to
have a glimpse at the prosecution evidence
in some detail. The prosecution examined
six witnesses. Their testimony, in brief, is
as follows:-

20 (i) PW-1- Ganga Sahai. He is the
informant, brother of deceased (Ram
Singh) and uncle of injured Ranbir Singh.
He states that at the time of dacoity, Ram
Singh and Ranbir Singh (PW-4) were at
their general merchandise shop in the
village. PW-1 heard their shrieks. On
hearing their shrieks, PW-1, Roopram (not
examined), Dhan Singh (PW-2), Munsi
(not examined), Babu Ram (not examined),
Saudan Singh (not examined), Sukhram
(not examined) and others went to the spot
with lathi and torches, there they saw 10-12
men armed with Guns, Pistols, Ballam and
Gandasa assaulting PW-1's brother and
nephew. When PW-1 and his men arrived
and intervened, the dacoits assaulted PW-4
with Ballam and Gajram and Bhagwan
Singh fired from their guns at the
interveners, who took shelter of the wall of
their house and started pelting stones/bricks
at the dacoits. Thereafter, the dacoits looted
articles from the house of PW-1, including
his brothers, as also from the house of
1100 INDIAN LAW REPORTS ALLAHABAD SERIES
Dhan Singh, Ram Singh and Munsi. At that
time, to lit the area, PW-1's wife set straw
leaves on fire. The dacoits thereafter
entered the house of Nem Chand and also
fired a shot at Kallu (PW-3) i.e. brother of
Nem Chand. The pellets of that shot, hit
Champa
Devi
i.e.
wife
of
PW-3.
Thereafter, the dacoits committed dacoity
in the house of Babu, Saudan, Hari Ram
(PW-5) and Naresh Pal (not examined) and
they took away the mare of Hari Ram.
After committing dacoity, the dacoits
escaped towards the west. PW-1 stated that
on account of the injuries received in the
incident, PW-1's brother-Ram Singh died
twenty four days later. After narrating the
incident as above, PW-1 stated that at the
spot he had spotted Gajaram, Bhagwan
Singh (appellant no.5), Rajendra (appellant
no.6), Prem (appellant no.1), Ramesh
(appellant no.3), Mohar Singh (appellant
no.2), Rajpal (appellant no.7) and Banwari
(appellant no.4). He stated that except for
Rajpal, all the other accused are residents
of the village of PW-1. In respect of Rajpal,
he stated that he used to visit the village
often with Gayaram. PW-1 also stated that
prior to this incident, Happu (father of
Bhagwan Singh - appellant no.5) was
murdered in which Bhagwan Singh had
implicated PW-1 and his brothers along
with 14 others, which case is pending. He
also stated that because of that case there is
enmity. PW-1 stated that after the incident
got over, he took the injured to the police
station. There, on his oral report, the first
information report was written which was
thumbed marked by him. The said report
was exhibited as Exb. Ka-1. Thereafter, the
police
station
incharge
recorded
his
statement and sent the injured to the
hospital.
He
stated
that
when
the
investigating officer had come to the
village he had seized the Dibby (kerosene
lamp) and it was handed over to his
custody. He also proved the custody memo
of the torch/batteries.

20(ia) In his cross-examination, he
stated that along with Happu (the father of
Bhagwan Singh), Happu's brother Bhure
was also killed in the incident which had
taken place a year before the present
dacoity. He admitted that in that case, PW1 and his brothers were implicated along
with Hari Ram, Mahesh, Bhawan Lal, Bhan
Singh, Munsi, Saudan. He stated that in
that case including him and his family
members i.e. brothers and nephews, there
were about 10 accused. He admitted that in
that case, Prem (appellant no.1) and Mohar
Singh (appellant no.2) were witnesses. He
also admitted that Ramesh (appellant no.3)
and Banwari (appellant no.4) are real
brothers of appellant no.2 (Mohar Singh)
whereas, Rajendra (appellant no.6) and
Bhagwan Singh (appellant no.5) are sons of
Happu and brother of Bhure. Rajpal
(appellant no.7) is nephew of Bhagwan
Singh (appellant no.5) and Rajendra
(appellant no.6).

20(ib) On further cross-examination,
he stated that his brother Saudan Singh was
abducted by criminals in respect of which a
case was lodged against Bhagwan Singh
(appellant no.5), Rajendra (appellant no.6)
and Gajram but they were all acquitted. He
also stated that about 8-10 years back, there
was another incident in connection with
which there was a case against Ram Singh
(the deceased) in connection with which
Gajram and Malkhan were tried but
acquitted. He added that after this incident,
Gajram absconded and is no longer
residing in the village.

20 (ic) In respect of the distance
between PW-1's house and deceased's shop,
he stated that the distance between the two
would be about 100 paces and in between,
there are many other houses. He stated that
at the time of the incident, he was sitting in
4 All. Prem & Ors. Vs. State
1101
his house on a cot where Roopram, Dhan
Singh, Munsi and Saudan were also sitting.
He stated that by the time he reached the
spot, he heard a gunshot and cries;
responding to that noise, they all took lathi
to go to the spot. When PW-1 arrived at the
spot, he saw his brother (the deceased) and
his nephew (PW-4) being assaulted. PW-1
stated that when he reached the spot, the
accused pushed him and fired at him but he
escaped by taking shelter of the wall of that
shop. He stated that by the time the dacoits
reached PW-1's house, PW-1 had already
retreated to his house; other witnesses were
also trying to hide themselves in PW-1's
house. He stated that the dacoits looted his
house for about half an hour and, thereafter,
they went to the settlement of Jatavs to loot
and thereafter, the dacoits vanished.

20 (id) In paragraph 15 of his
statement, during the course of crossexamination, he stated that in the night
itself Daroga (Station House Officer of the
police station concerned) had come to the
village and had taken the injured persons
with him and along with him he had also
gone to the police station. He stated that
Daroga had enquired from the villagers
about the incident in the village and had
also queried them at the police station.
Next day, again, Daroga had come to visit
the shop and the house and had prepared
site plan. In paragraph 16 of his statement,
PW-2 stated that the accused had not
covered their faces with Dhata (cloth). He
stated that he had mentioned in his report
that accused Bhagwan Singh (appellant
no.5) had also fired but if that was not
written he does not know the reason for the
same. He denied the suggestion that the
accused have been implicated on account
of enmity. He also denied the suggestion
that he could not recognise the real accused
and that the dacoity was committed post
midnight.

20 (ii) PW-2- Dhan Singh. He also
stated about the occurrence of dacoity by
10-12 persons. He stated that amongst the
dacoits, he could recognise Bhagwan
Singh, Rajendra, Prem, Mohar Singh,
Ramesh, Banwari, Rajpal and Gajram. He
reiterated that Ram Singh was shot by
Gajram and someone, from amongst the
dacoits, struck Ranbir (PW-4) with a
Ballam. He stated that dacoits looted not
only the house of the informant and his
brothers but also of other fellow villagers,
namely, Baburam, Ram Prasad, Kallu and
Hari Ram and, in that process, they took
away the mare of Hari Ram. He stated that
in the incident, Ranbir, Kallu and his wife
Champa had received injuries whereas, as a
result of the injury which Ram Singh
sustained, Ram Singh died 24 days later. In
paragraph 4 of his statement, he stated ^^esjh
HkkHkh us ljdVs ds iwyksa esa vkx yxk nh bldh dkQh
jks'kuh gq;hA ;g MdSrh Hkxoku flag us iqjkuh jaft'k
dh otg ls MyokbZA^^

20 (iia) In his cross-examination, he
stated that by the time they could reach the
shop, Ram Singh had already been shot
and, thereafter, when the accused had
aimed at the informant party, they hid
behind the wall and ran to the safety of
their homes. He stated that when the
accused tried to enter their houses, stones
were pelted at them. He reiterated that the
accused were armed with Tamancha,
Ballam, Pistol, Gun. In paragraph 8, he
stated that after the dacoits had left, the
villagers collected to lodge a report of
dacoity. Then, at the police station, his
brother lodged the report, whereas, PW-2
took his other relative to the hospital. He
stated that from the village they went to the
police station on a bullock-cart. His brother
Saudan had reached the police station
before him and he had brought the Daroga
with him, whereafter, the Daroga took them
to the hospital. He denied the suggestion
1102 INDIAN LAW REPORTS ALLAHABAD SERIES
that on the date of the incident, he was not
in the village and that he has made a false
statement on account of enmity. He
claimed that he has no knowledge whether
Kalyan and others had lodged a separate
report of the incident.

20 (iii) PW-3-Kallu. He confirmed
the occurrence of dacoity and stated that
the dacoits, after committing dacoity at the
house of PW-1, came to his house as well,
and they looted for about half an hour. He
stated that there was no fire lit at that time
though light of torches was there. He stated
that he cannot give a count of the dacoits;
and that he did not see face of any dacoit.
He stated that he was asked to open the
door and when he opened the door, four
shots were fired, out of which two hit him,
as a result of which he fell unconscious. At
this stage, he was declared hostile by the
prosecution and was cross-examined by the
prosecution. On a suggestion made by the
prosecution, he denied that his statement
was recorded by the Tehsildar.

20 (iv) PW-4-Ranbir Singh. He is the
person who received injuries in the
incident. He stated that the incident
occurred at about 9 pm; there were 12
dacoits; at the time of the incident, he was
sitting near the shop of his father (the
deceased) where a lantern was lit; the
dacoits had arrived there through a Gali;
and Gajram fired a shot at his father.
Because of that shot, his father died at
Sadar Hospital, Bareilly. Dacoits also beat
him with lathi and Ballam. Dacoits had
looted a mare of Hari Ram and they looted
the house of Babu as well as Ganga Sahai.
He stated that his aunt (cM+h ekW) had lit
haystack, in the light of which he could
notice Bhagwan Singh, Rajendra, Prem,
Mohar
Singh,
Banwari,
Rajpal
and
Ramesh. The rest of the dacoits, he could
not recognise. He stated that all the named
accused except Rajpal are residents of his
village whereas Rajpal is the Behnoi
(sister's husband) of Bhagwan Singh.

20 (iva) In his cross-examination, he
stated that he arrived at the shop an hour
before the incident and except him and his
father there was nobody in the shop. His
father was sitting on a cot whereas he was
inside the shop. The dacoits on arrival,
first, shot his father and when PW-4 came
out, he was assaulted with Ballam and lathi.
On being assaulted, he fell, but was
conscious. His father, on being hit by gun
shot, fell on the cot. The dacoits after
leaving him and his father, went to loot
other houses and when all the dacoits left,
his family and villagers arrived and
collected at the spot. In paragraph 4 of his
statement, he stated that in the night, the
police had arrived and they took him and
his father to the police station. He stated
that he is not aware as to who had called
the police. He stated that the investigating
officer had interrogated him on the third
day. He stated that he is not aware as to
how many shots had hit his father. He
admitted that the dacoits also looted other
houses. He denied the suggestion that he
could not recognise the dacoits and because
of enmity, he had named the accusedappellants.

20 (v) PW-5 - Hari Ram. He
reiterated the incident of dacoity and stated
that his mare was looted by the dacoits. He
stated that amongst the dacoits, he could
recognise
Bhagwan
Singh,
Rajendra,
Ramesh, Banwari, Prem, Mohar Singh,
Rajpal and Gajram in the light of torches
and there were four others, whom he could
not recognise. He stated that the dacoity
lasted for about 1 and 1⁄2 to 2 hours. He
stated that the dacoits were armed and were
in Khakhi dress: ^^1⁄4Mkdwvksa ij gfFk;kj Fks vkSj
[kkdh ckus esa Fks1⁄2^^

20 (va) In his cross-examination, he
stated that his house is about 50-60 paces
4 All. Prem & Ors. Vs. State
1103
from the shop of the deceased (Ram
Singh). He stated that his mare was taken
by breaking open the door of his house. In
paragraph 3, he stated that when the
incident occurred, he understood that
dacoits have come to the village and,
therefore, his wife ran to another house and
he went to the roof-top of his house. The
dacoits pushed and broke open the door of
his house and when the dacoits went away,
he
came
out.
He
stated
that
the
investigating officer interrogated him, next
day morning. He stated that along with
mare, dacoits also took utensils, clothes,
etc. He admitted that in the murder of
Happu and Bhure, he and his sons were
accused but denied the suggestion that
because of old enmity, he is making a false
statement. He denied the suggestion that he
could not recognise any of the dacoits.

20 (vi) P.W.-6 - P. P. Mishra. The
investigating
officer,
who
submitted
charge-sheet. PW-6 stated that he was
posted at the police station concerned in the
month of June-July, 1980. He took over
investigation of the case from R.D. Yadav.
He proved the signature of Head Constable
Dinesh Singh on the Chik FIR (Exb. Ka-1)
as well as the GD entry thereof (Exb. Ka7). He proved the signatures of R.D. Yadav
on Exb. Ka-2, Exb. Ka-3 and Exb.Ka-8 to
Exb. Ka-15. He stated that he read the case
diary of the case and from a perusal of the
case diary, he could gather that R.D. Yadav
had inspected the spot on 17.05.1980 but
the site plan was missing. He stated that all
the named accused have been chargesheeted by him. He proved the charge-sheet
which was marked as Exb. Ka-16. He
stated that all the accused had surrendered.
He also stated that the accused Gajram was
absconding and has been killed in a police
encounter.

ANALYSIS

21.

Having
noticed
the
rival
submissions and the entire prosecution
evidence led during the course of trial, the
key features that stand out in the
prosecution evidence are as follows:-

(a) The factum of dacoity is not
challenged as would be clear from the
suggestions
put
to
the
prosecution
witnesses. Though, its time has been
challenged by putting a suggestion to one
of the witnesses;

(b) There are three sets of accused.
One (i.e. Gajram) is named but not related
to any of the other named accused
including the present set of appellants; the
other
set,
comprising
seven
persons
including the appellants, are related to each
other and all of them, except Rajpal, reside
in the same village where dacoity was
committed; and, the third set of accused are
unknown persons. In respect of Gajram, in
paragraph 10 of the statement of PW-1,
during the course of cross-examination, it
has come that Gajram had been absconding
since after another incident and that though
he (Gajram) was earlier a resident of the
village but was no longer residing in the
village.
PW-1,
however,
denied
the
suggestion that Gajram was of PW-1's
party. PW-1, in paragraph 8 of his
statement, during the course of crossexamination, admitted that 8-10 years ago,
in a case of burglary in the house of Happu
(the
father
of
Bhagwan
Singh
and
Rajendra), a case was instituted against
PW-1's brother-Ram Singh (the deceased),
Gajram (co-accused of this case), Malkhan
and others in which they were acquitted;

(c) The role of causing gun shot injury
to the deceased is attributed to Gajram. No
specific role of causing any specific injury
is attributed to any of the other accused.
Further, as to what article was looted by
whom and as to who (excepting Gajram)
1104 INDIAN LAW REPORTS ALLAHABAD SERIES
caused which injury is not disclosed in the
prosecution evidence;

(d) The prosecution led no evidence of
recovery of any incriminating material
from any of the accused persons even
though, according to the allegations, the
dacoit lifted clothes, utensils and other
articles which could have been identified
and correlated with dacoity, if there had
been a recovery; and

(e) The enmity between the named
accused (the appellants of this case) and the
informant as well as three of the four
witnesses of fact is proved as follows:-
Father of Bhagwan Singh and Rajendra,
namely, Happu, and his brother - Bhure
were killed about a year before the incident
in which Ganga Sahai (informant-PW-1),
Ganga Sahai's brothers, namely, Dhan
Singh (PW-2), Ram Singh (the deceased),
Ganga Sahai's nephew (i.e. Ranbir - the
injured - PW-4), Hari Ram (PW-5) were
accused;

(f) The dacoits, according to the
prosecution story and the evidence led
during the course of trial, looted not only
those with whom they had enmity but other
residents of the village also.