Bharosey and Ors. vs State

R. A. Misra, J.—Accused Bharosey, Maiku and Nanhkau have been convicted and sentenced to R. I. for a period of 5 years under Section 395, I. P. C. by III Additional Sessions Judge, Unnao on 17532 for having committed dacoity in the house of one Kallu P. W. 3 on the midnight between 24th/25th December, 1978 at village Hilgi, P. S. Ajgain, district Unnao alongwith 78 other dacoits. The First Information Report of this incident was lodged on the next morning at 8.10 a.m. at P. S. Ajgain naming all the three accused.

Prosecution examined 3 witnesses Ganga Devi, Kallu and Raja Ram P. Ws. 2 to 4 who have sweared to have seen and recognised the accusedappellants in the light of lantern and torches. Learned Sessions Judge believed the aforesaid three witnesses of fact and arrived at the conclusion that the accused have committed the dacoity. He has consequently convicted and sentenced the appellants. They have first aggrieved and came up in appeal before this Court.

I have heard learned Counsel for both the parties and gone through the record. The fact that a gang of 1011 dacoits (sic) dacoity in the house of Kallu P. W. 3 on the night between 24/25th December, 1978 at village Hilgi, P. S. Ajgain district Unnao is proved beyond doubt from the evidence on the record and goes unchallenged before me.

The fact that the light of lantern and torches was available to the witnesses is also proved from the evidence and gone unchallenged. It is further proved that over and above the inmates of the house, residents of the village have also witnessed the occurrence and seen the dacoits in the aforesaid light.

The crucial question which arises for determination in the appeal is whether the accusedappellants have committed dacoity alongwith others on the aforesaid night in the house of Kallu.

The fact that Bharosey and Maiku accusedappellants are brothers of Ratan Lal''s wife is proved and goes unchallenged. Ratan Lal is son of Kallu, P. W. 3. It is also proved that the third accused Nanhkau is brotherinlaw (gainer of aforesaid three accusedappellant Bharosey and Maiku). It, therelore, leaves no room for doubt that the accusedappellants are close and direct relation of victim Kallu.

According to the prosecution Kallu refused to send Ratan Lal''s wife alongwith Bharosey and Maiku few days before the occurrence because due to heavy agricultural work pending with him in those days he could not afford to send Ratan Lal''s wife to her parent''s house. Kallu swears that when he refused to send Ratan Lal''s wife with her brothers Bharosey and Maiku'' then latter threatened him with dire consequence and the consequence was the dacoity a few days thereafter. The prosecution story regarding motive of the commission of dacoity by these close relations of Kallu does not appeal to reason and is highly improbable. Kallu, P. W. 3 as well as other two witnesses of fact do not say that the accused Bharosey, Maiku wanted to break relationship with Bharosey and Ratan Lal or that there was any important function at their residence where the presence of Ratan Lal''s wife was in any way required and would have adversely affected the prestige of the family if she absented to attend the same. Ordinarily Bharosey and Maiku were not expected to have become so much aggrieved by refusal of Kallu to send Ratan Lal''s wife to her parents home for a few days on the ground that there was sufficient work pending at his own residence. The motive given by the prosecution for commission of crime is not at all convincing and it is not possible to believe that on account of this fact the accusedappellant went to the extent of committing dacoity at the residence of their sister''s husband.

The second motive according to the prosecution is that nearly four months before this occurrence some ornaments of Kallu''s daughter were stolen and the family members suspected that Ratan Lal''s wife passed over the ornaments to her brother Bharosey and Maiku. A Panchayat took place at the initiative of the inlaws of Kallu''s daughter but no member of Kallu''s family attended the Panchayat though Bharosey and Maiku are alleged to have attended the Panchayat. So there is no reliable evidence on the record to disclose as to what happened in that Panchayat. Admittedly the three witnesses of fact produced by the prosecution were not in the Panchayat so the suspicion harboured by Kallu and his family against Ratan Lal''s wife cannot be sufficient motive on the part of Bharosey and Maiku for commission of the aforesaid dacoity after 4 months of the Panchayat.

In the result, the prosecution has failed to prove sufficient motive in the part of the accusedappellants for having committed dacoity in the family of their sister''s husband.

As admitted by the prosecution itself, a good number of villagers have witnessed the occurrence but no independent witness or resident of the village has been produced to support the prosecution story that the accused have been seen amongst the dacoits. The prosecution evidence leaves no room for doubt that three witnesses of fact to which, Ganga Devi, Kallu and Raja Ram are highly interested witnesses. They felt aggrieved with the accused and have reasons to swear falsehood against them, with the result that independent and reliable witnesses have been deliberately withheld and only interested and partisan witnesses have been produced. In these circumstances, learned Sessions Judge has grieviously erred on placing reliance on the testimony of interested and partisaned witnesses.

The only possible conclusion which can be drawn from the facts and circumstances appearing from record is that charge under Section 395, I. P. C. is not proved beyond doubt against the accusedappellants. They have been wrongly convicted and sentenced for the same by the Court below and they shall be acquitted of the same.

The appeal is, therefore, allowed and conviction and sentences passed against the accusedappellants Bharosey, Maiku and Nanhkau under Section 395, I. P. C. are set aside. They are acquitted of the charge. They are on bail. Their bail bonds are discharged, They need not surrender.