Keshav Deo & Ors. vs State Of U.P

Heard Mr. Ram Kumar, learned counsel for surviving appellant nos. 4 & 6, learned A.G.A. for the State and perused the record.

The present Criminal Appeal has been preferred against the judgment and order dated 28.01.1982 passed by the 3^rd Additional Sessions Judge, Mathura (hereinafter referred to as “the Trial Court”) in Sessions Trial No. 281 of 1978, State of U.P. v. Keshav Deo and others (arising out of Criminal Case No. 517/IX/78 of 1978), under Sections 395/397 I.P.C., Police Station Raya, District Mathura.

At the very outset, it is pertinent to mention that the present criminal appeal has been preferred by seven appellants. However, during the pendency of the appeal, appellant nos. 1, 2, 3, 5 and 7 passed away and the appeal, insofar as it relates to the aforesaid appellants, stood abated. Appropriate orders in this regard have already been passed by this Court. Accordingly, the present criminal appeal now survives only in respect of appellant no. 4, Jaswant and appellant no. 6, Chandrapal.

The prosecution story, in a nutshell, is that the informant, Ram Singh son of Khilari Jaat, resident of Doodhadhari, Mauja Deewan Kalan, Police Station Raya, District Mathura, lodged an FIR on 05.03.1978 at about 12:35 a.m., alleging that on the intervening night of 04/05.03.1978, at about 10:15 p.m., almost all the male residents of the village had gone to attend the marriage procession (barat) of the son of Lal Singh. Only a few persons, namely, the informant, Gulab Singh son of Heeralal, Mahavir Singh son of Ter Singh, Vijay Singh son of Ramdas, Pooran son of Roshan Singh, Nekram son of Man Singh Pradhan and Sohan Lal, brother of the Pradhan were sitting around a bonfire in front of the informant’s house. In the meantime, 13 to 14 dacoits arrived at the house of Lal Singh. Upon noticing their presence, the women of the house raised an alarm. The dacoits fired two or three shots and began looting the house of Lal Singh. A lantern was burning at the house of Lal Singh. Another lantern was illuminating the informant’s doorway. The informant put Karab in the bonfire which increased the illumination. After looting the house of Lal Singh, the dacoits proceeded towards the house of the informant. Being frightened by the dacoits, the informant and other persons took shelter in the cattle shed (Nauhara) of Ram Das, the wall of which was only up to their waist height. The informant and the accompanying witnesses hid themselves behind the said wall and continued to observe the dacoits. The dacoits were 14 in number. Thereafter, the dacoits looted the house of Roshan Lal.

According to the prosecution, the informant and the witnesses accompanying him identified the dacoits as Keshav Dev, Resham Singh both sons of Hukum Singh Jaat, Udal son of Charan Singh Jaat, Shriram son of Kishan Lal Jaat, Jaswant son of Sookha Mehtar residents of Deewana Kalan, Bachchu son of Bhagri Jatav, Hardayal son of Shyama Jatav residents of Deewana Khurd, Chandrapal son of Parsaadi Jatav of Nagla Vijai, Ramcharan son of Ninua Jatav of Siriya Nagariya, Khoota son of Jeevaram Jaat of Bhootiya Valo and four other unidentified dacoits. Shreeram was having a gun while Bachchu and Chandrapal were armed with country-made pistols. The two dacoits who were shot dead were also armed with country-made pistols. After committing dacoity in the aforesaid three houses, the miscreants proceeded towards out of the village. However, a police party arrived from the opposite direction and challenged them. An exchange of fire ensued between the police party and the dacoits, during which two miscreants sustained pellet injuries. One of them died at the spot, while the other succumbed to his injuries shortly thereafter, after disclosing his name as Suraj son of Bhoodev and the name of other deceased miscreant as Rambharose. Apart from having gun and country-made pistols, the dacoits were armed with Lathi-Danda and axe.

On the basis of the aforesaid oral information, a case was registered as Case Crime No. 44 under Sections 395 and 397 IPC and the corresponding entry was made in General Diary at G.D. Rapat No. 2 at the same time. The investigation was entrusted to the Investigating Officer, Lal Singh Tyagi, the Station House Officer concerned.

It is also remarkable that at General Diary Report No. 3 at about 1:00 p.m. on 05.03.1978, the Station House Officer Lal Singh Tyagi lodged seven accused persons (all the appellants) in the lock-up of the Police Station. He also deposited the articles recovered from their possession, namely, pistols, cartridges, a canister containing ghee, gold rings, empty cartridges, three sticks, one danda and one axe.

It is further noteworthy that according to the prosecution case, upon the arrest of seven accused persons at the spot, a sum of Rs. 300/-, comprising three currency notes of Rs. 100 each, was recovered from the possession of accused-appellant no. 7, Ramcharan; 4 kg of Desi Ghee contained in a canister was recovered from accused-appellant no. 5; two gold rings were recovered from accused-appellant no. 4; and three gold rings were recovered from accused-appellant no. 3. Separate recovery memos were prepared in respect of the said recoveries.

During the course of investigation, the Investigating Officer visited the place of occurrence, took the ashes of the bonfire into his possession and prepared a Supurdginama in respect of a lantern alleged to have been spreading light at the time of the occurrence. The statements of the informant and other witnesses were recorded and a site plan was prepared at the instance of the informant. Thereafter, the investigation was transferred to another Investigating Officer, namely, Sri Om Prakash Saraswat, Station Officer, Sureer, who submitted charge-sheet no. 28 on 26.04.1978.

After compliance with the provisions of Section 207 Cr.P.C., the jurisdictional Magistrate, the offences being exclusively triable by the Court of Session, committed the case to the Court of Session for trial, whereupon charges were framed against the accused-appellants.

It is also remarkable that on the very date of lodging the FIR, three separate lists of the articles allegedly looted from different houses were submitted to the Station Officer. These lists contained huge amount of gold and silver ornaments including the cash and other household items.

The charges framed against the accused persons were read over and explained to them in the local language. The accused persons denied the charges and claimed to be tried.

In support of its case, the prosecution examined PW-1 Ram Singh, PW-2 Mahaveer Singh, P.W.-3 Nekram, P.W.-4 Lal Singh Tyagi in oral evidence. The prosecution also adduced documentary evidence and proved the FIR as Exhibit Ka-1; the information regarding the lists of looted articles as Exhibits Ka-2, Ka-11 and Ka-12; the General Diary entry regarding information received from the informer as Exhibit Ka-3; the General Diary entry regarding the departure of the police party as Exhibit Ka-4; the search memo and recovery memo relating to Rs. 300/-as Exhibit Ka-5; the search and recovery memo relating to Ghee as Exhibit Ka-6; the search memo and recovery memo relating to golden rings as Exhibits Ka-7 and Ka-8; the General Diary entry regarding the lodging of the arrested appellants in the police station lock-up as Exhibit Ka-9; the General Diary entry relating to the registration of the FIR as Exhibit Ka-10; the site plan as Exhibit Ka-13; the recovery memo of ashes as Exhibit Ka-14; the recovery memo and Supurdginama relating to the lantern as Exhibit Ka-15 and the charge-sheet as Exhibit Ka-16, as material exhibits, the recovered three notes of Rs. 100/- denomination, the canister containing Ghee and the gold rings as Exhibits 1 to 9.

Upon the conclusion of the prosecution evidence, the statements of the accused-appellants were recorded under Section 313 Cr.P.C. The surviving appellants denied their presence at the place of occurrence at the relevant time and alleged that they have been falsely implicated on account of political rivalry in the village. They also denied that any of the articles in question had been recovered from their possession.

Accused-appellant no. 4, Jaswant, stated that he had been arrested in the morning and subsequently charge-sheeted in the present case despite having committed no offence. He alleged that he has been falsely implicated by the Police due to collusion between the police and the opposite parties.

Accused-appellant no. 6, Chandrapal, stated that the police had called him from his village to the police station and thereafter falsely implicated him in the present case.

In their defence, the accused-appellants examined two witnesses, namely, DW-1 Jagdish and DW-2 Leeladhar.

After hearing the submissions advanced by the parties and considering the evidence available on record, the Trial Court convicted all seven accused-appellants. Accused-appellant no. 6, Chandrapal, was sentenced to undergo rigorous imprisonment for eight years for the offence punishable under Sections 395 read with 397 IPC, whereas accused-appellant no. 4, Jaswant, was sentenced to undergo rigorous imprisonment for seven years for the offence punishable under Section 395 IPC.

Feeling aggrieved by the judgment and order of conviction and sentence passed by the Trial Court, the present criminal appeal has been preferred on the grounds that the conviction and sentence awarded to the appellants are contrary to the weight of evidence available on record; that no offence is made out against them on the basis of the evidence adduced by the prosecution; and that in any event, the sentence imposed upon them is excessively severe.

PW-1, Ram Singh, supported the prosecution case in its entirety in his examination-in-chief. He proved the Chick FIR by identifying his signature thereon, which was marked as Exhibit Ka-1 and also proved the list of articles allegedly looted from his house, which was marked as Exhibit Ka-2. During his cross-examination, PW-1 stated that he had no knowledge of any factional rivalry (party-bandi) in the village. He further expressed his ignorance regarding any case under Section 307 IPC against the accused persons. He also deposed that upon hearing that two dacoits have been encountered by the police, he came out of the cattle shed and saw two dacoits lying there. The police personnel were also present at the spot. PW-1 further stated that the police had not accompanied him to lodge the FIR. Rather, the informant, one Mahavir and Gulab had gone to lodge the FIR. According to his testimony, they left at about 11:30 p.m. and reached the police station at about 12:30 a.m. He also stated that he was unaware of the names of the fathers of accused-appellant no. 4, Jaswant, and accused-appellant no. 6, Chandrapal.

PW-1 further stated in his cross-examination that at the time of lodging the FIR, he was unaware of the names of the fathers of accused-appellants Chandrapal and Jaswant, as well as the names of two absconding dacoits. He has not disclosed the names of the father of bandit Giriraj. When confronted with the fact that the names of their fathers had been mentioned in the FIR, he expressed his inability to explain the same. He further deposed that accused Udal, Bhagwant and Chandrapal had made no attempt to conceal their identities. He also stated that he had mentioned in the FIR the numbers of the gun shot fired by the accused Udal, Bhagwant and Chandrapal. According to him, the police did not make any further inquiry from him after the lodging of the FIR.

PW-1 further stated that the list of articles allegedly looted from his house was already prepared in his mind and that he had dictated the particulars thereof to the Head Moharrir of the police station, who prepared the list.

PW-2, Mahaveer Singh also supported the prosecution case in its entirety in his examination-in-chief. He stated that accused Udal, Jaswant, Chandrapal and others would frequently visit his village and did not make any attempt to hide themselves. He further stated that he was unaware of the names of the fathers of accused Udal, Jaswant and Chandrapal at the time of incident. According to his testimony, the police opened fire during the commission of the dacoity. However, he admitted that he had not witnessed the encounter. He stated that the Daroga, who recorded the statement, arrived at about 12:30 a.m. and that he had spoken to the police personnel involved in the encounter. Thereafter, the witness (P.W.-2) and the informant, Ram Singh, requested the Daroga to scribe the report, but the Daroga directed them to go to police station and lodge the FIR. Accordingly, he, Ram Singh and another person proceeded to the police station for that purpose. Upon reaching there at the Police Station, they did not see the Daroga who participated in the encounter.

During his cross-examination, PW-2 stated that when they reached near the police personnel, four police personnels were present and two miscreants were lying on the ground. He further admitted that he had never seen any of the accused persons being apprehended by the police. He had also not seen the accused persons while returning to his village. However, the police personnel who had participated in the encounter were present in the village when he returned from the police station, and he continued to see them there until about 7:00 to 8:00 a.m. PW-2 further stated in his cross-examination that before he left the village to lodge the FIR, Ram Singh, Gulab, Vijay Singh, the witness Puran, Nek Ram, Sohan and Ratan Singh had narrated the entire incident to him.

PW-3, Nekram also supported the prosecution case in its entirety in his examination-in-chief. However, during his cross-examination, he stated that except accused-appellant Chandrapal, all the accused persons were residents of his Gram Sabha. The witness has no connection with the village of accused Chandrapal. Although he used to visit his village. He further stated that none of the accused persons had made any attempt to hide their faces. PW-3 further deposed that on the very night of the incident, at about 11:00 to 11:30 p.m., three Darogas visited the places where the dacoity had been committed. The police officer made inquiries from both the male and female residents. According to the witness, the three Darogas continued making inquiries for approximately one and a half hours. He further stated that after speaking to the three Darogas, he did not discuss the incident of dacoity with anyone.

PW-4, Lal Singh Tyagi is a material witness in the present case. He is stated to have been a member of the police party that engaged in an encounter with two dacoits shortly after the incident of dacoity, at a distance of approximately 100 to 150 yards from the place of occurrence. In his examination-in-chief, PW-4 stated that he was posted as the Station Officer at Police Station Raya from 04.03.1978 to 14.04.1978. On 04.03.1978, at about 9:30 p.m., he received information from a police informer regarding the gathering of a gang of dacoits at Daudayal Dharamshala, situated in Jungle Diwana. The information was endorsed by the witness at G.D. No. 41 at about 21:30 o’clock and proved the corresponding entry as Exhibit Ka-3. Thereafter, he prepared a police force equipped with arms and ammunition and proceeded from the police station after making its entry at General Diary Rapat No. 42. He was accompanied by Sub-Inspector V.L. Yadav, K.L. Verma, Lakshmi Chand and ten constables available at the police station. He proved the said General Diary entry as Exhibit Ka-4.

Upon reaching the canal culvert via the Government Agricultural Farm, he was joined by Head Constable Lakshmi Narayan and three constables. In the presence of independent witnesses Bheesham Singh and Bheemsain, he disclosed the purpose of the police operation and conducted personal searches of the police personnel to ascertain that they were carrying nothing other than their authorised arms and ammunition and the necessary investigation equipment. PW-4 further stated that he divided the police personnel into three groups. The first group, comprising Head Constable Lakshmi Narayan and three constables, was led by him. The second group was headed by Sub-Inspector Lakshmi Chand, accompanied by Sub-Inspector B.L. Yadav and four constables. The third group was headed by Sub-Inspector V.L. Verma and comprised the remaining police personnel. According to his testimony, independent witness Bheemsain accompanied the first group, while the other independent witness, Bheesham Singh, accompanied the second group. As the police parties were about to proceed, they heard gunshots emanating from the direction of village Dudhadhari, followed by sounds of people crying out. The police personnel accordingly took positions as directed by PW-4. In the meantime, the dacoits were committing dacoity in village Dudhadhari. After some time, 13 to 14 dacoits were observed approaching barefoot towards the witness through the road of village Pali from the direction of the place of occurrence. The police party challenged them, whereupon the dacoits opened fire, resulting in a commotion. The police party retaliated in self-defence. As a result of the exchange of fire, two dacoits were killed, while seven others, namely, Keshav, Resham Singh, Udal, Jaswant, Bachchu, Chandrapal and Ramcharan were apprehended by the police personnel.

PW-4 further deposed that upon conducting searches, three currency notes of Rs. 100 each were recovered from the possession of Ram Charan; a container of indigenous ghee was recovered from accused Bachchu; two rings were recovered from accused Jaswant (appellant no. 4); and three rings were recovered from accused Udal. The recovery memos were prepared by Sub-Inspector Lakshmi Chand. He identified the writing and signature of S.I. Lakshmi Chand and proved these recovery memos as Exhibits Ka-5, Ka-6, Ka-7 and Ka-8, respectively.

PW-4 further stated that all the recovered articles were duly sealed. He identified the recovered articles in open Court and proved them as Material Exhibits 1 to 9. He deposed that the arrested accused persons, along with the recovered articles, were brought to the police station, where the accused persons were lodged in the lock-up and the recovered articles were deposited in the Malkhana. He proved the relevant General Diary entry regarding the deposit of the articles as Exhibit Ka-9.

PW-4 further stated that he took up the investigation of the case the following morning. During the investigation, he visited the place of occurrence and received the lists of looted articles, which had been marked as Exhibits Ka-2, Ka-11 and Ka-12. He recorded the statements of the informant, Ram Singh, Mahavir Singh, Nek Ram and other witnesses. He also prepared the site plan and proved the site plan as Exhibit Ka-13. He further deposed that he collected a sample of the ashes from the bonfire, sealed the same and prepared a recovery memo in that regard. He proved the recovery memo as Exhibit Ka-14 and the recovered ashes as Material Exhibit 10.

He also stated that he found a lantern which was alleged to have been burning at the time of the incident. He prepared a Supurdginama in respect of the lantern and handed it over to its owner, Lal Singh. The Supurdginama was proved as Exhibit Ka-15.

PW-4 further stated that on 09.03.1978, he searched for the absconding accused persons. Thereafter, the investigation was transferred to the Station Officer, Police Station Sureer, Shri Om Prakash Saraswat. Investigating Officer, Om Prakash Saraswat submitted charge-sheet no. 28. PW-4 identified the handwriting and signature of Sri Om Prakash Saraswat on the charge-sheet and proved it as Exhibit Ka-16.

During his cross-examination, PW-4 admitted that no copies of the recovery memos had been furnished to the accused persons and that their signatures had not been obtained on the recovery memos. He further stated that on 09.03.1978, the investigation was taken over by Om Prakash Saraswat, the Station Officer of Police Station Sureer. Until that date, PW-4 had no knowledge of the names of the persons in whose houses the dacoities had been committed. He admitted that he had neither visited nor inspected any of the houses where the dacoities had allegedly taken place. PW-4 further stated that the distance between the place where the accused persons were apprehended and the place of occurrence was approximately 150 yards. He also deposed that empty cartridges had been recovered from the place of occurrence, sealed and deposited in the Malkhana. However, he was unable to explain the precise location from which the cartridges had been recovered. Furthermore, at page 54 of the paper book, he stated that he had not seen any empty cartridges or pellets at the place of occurrence.

Learned counsel for the appellants submitted that according to the testimonies of PW-1, PW-2 and PW-3, the alleged dacoity was committed by fourteen persons, comprising ten known miscreants and four unidentified persons. Although the identities of the known miscreants were disclosed at the earliest stage in the FIR, the aforesaid eyewitnesses were unaware of the identities of four miscreants, including two deceased and two out of absconding accused persons. It was contended that despite the witnesses claiming familiarity with ten of the miscreants, the charge-sheet was submitted only against seven accused persons, who are the appellants herein.

Learned counsel further submitted that there were material inconsistencies in the statements of the eyewitnesses regarding the weapons allegedly carried by the miscreants. According to PW-1, accused Shriram was armed with a gun, accused Bachchu and Chandrapal were carrying pistols and the remaining miscreants were armed with lathis and torches. However, according to the examination-in-chief of PW-2, although the weapons attributed to Shriram, Bachchu and Chandrapal were the same, accused Jaswant was stated to be carrying an axe, which is contrary to the statement of P.W.-1. The testimony of PW-3, in this regard, was stated to be identical to that of PW-2 concerning the weapons allegedly carried by Shriram, Bachchu, Chandrapal and Jaswant.

It was further argued that none of the weapons allegedly carried by the accused persons was produced before the Trial Court to establish that such weapons had been recovered from their possession. Learned counsel contended that since the accused persons were allegedly apprehended by the police shortly after the incident, there was no occasion for them to have thrown away their respective weapons before their arrest.

Drawing attention to the testimony of PW-4, learned counsel submitted that the accused persons were apprehended at a distance of approximately 150 yards from the place of occurrence. In contrast, PW-2 stated that the police arrived in the village during the commission of the dacoity and opened fire. According to learned counsel, this discrepancy raises a serious doubt as to whether the police firing took place at the site of the alleged dacoity or at the place where the seven accused persons were apprehended and the two miscreants were killed in the encounter.

It is next submitted that according to PW-1, he had gone to the police station to lodge the FIR and that the Daroga visited the village only after the FIR had been lodged. It was further contended that the list of looted articles was handed over to the Daroga after its particulars had been scribed by Mahavir Singh. According to learned counsel, these circumstances also cast doubt upon the prosecution’s account of the preparation and submission of the list of looted articles.

Learned counsel for the appellants further submitted that according to the testimony of PW-1, only two gold pendants, one chain and a sum of Rs. 5,000/- in cash were looted from his house. However, the list of looted articles, marked as Exhibit Ka-2, contains as many as 21 articles of gold, including certain articles in pairs, each pair having been counted as a single item, 22 articles of silver, Rs. 5,000/- in cash and two items of clothing. It was contended that there is material discrepancy between the oral testimony of PW-1 and the contents of Exhibit Ka-2, which renders the prosecution version, regarding the allegedly looted articles, highly doubtful and undermines the authenticity and reliability of the said list.

Learned counsel further argued that Exhibit Ka-2 was neither proved by its author nor by its signatory. Similarly, the other lists of looted articles were not proved by their respective authors or signatories. Instead, all three lists, namely, Exhibits Ka-2, Ka-11 and Ka-12, were purportedly proved by PW-4, the Investigating Officer. It was further contended that PW-4 himself had actively participated in the police encounter with the alleged miscreants, which took place immediately after the alleged dacoity and at a short distance from the place of occurrence. Thus, according to learned counsel, PW-4 was not merely an Investigating Officer but was also personally involved in a material part of the occurrence forming the subject matter of the prosecution case, albeit in his capacity as a police officer acting against the alleged dacoits. In such circumstances, learned counsel questioned the propriety and impartiality of the investigation conducted by PW-4 and submitted that he ought not to have undertaken the investigation of the case.

On the strength of the aforesaid submissions, learned counsel argued that mere exhibition of the lists of looted articles through PW-4, without their contents being duly proved by competent witnesses, cannot be treated as sufficient proof of the articles allegedly looted. It was, therefore, urged that Exhibits Ka-2, Ka-11 and Ka-12 could not be relied upon as legally proved evidence of the alleged looted property.

Learned counsel for the appellants further submitted that according to the testimony of PW-1, the informant, Ram Singh, had gone to the police station to lodge the FIR along with PW-2, Mahavir Singh, and another person, namely, Gulab. It was pointed out that all these persons were allegedly sitting together around the bonfire at the time of the incident. However, PW-2 stated that he, Ram Singh and another person had gone to the police station to lodge the FIR, without disclosing the name of the third person. Learned counsel contended that this discrepancy creates doubt regarding the identity of the persons who had allegedly accompanied the informant to the police station to lodge the FIR.

Learned counsel further submitted that, on the one hand, PW-1 stated that seven accused persons had been apprehended at the place of the encounter and that the names of all seven persons had been disclosed in the FIR. On the other hand, during his cross-examination, he stated that the two dacoits apprehended by the police were unknown to him. According to learned counsel, this contradiction in the testimony of PW-1 undermines the prosecution’s assertion that the seven accused persons, including the surviving appellants, had been apprehended at the spot and identified by the witnesses.

Drawing attention to the statement of PW-2, occurring at page 37 of the paper book, learned counsel further submitted that upon reaching the spot after hearing about the encounter involving two dacoits, the witness found only four police personnel present there, along with two bandits lying on the ground. It was argued that this testimony contradicts the account given by PW-4 regarding the composition and presence of the police party at the place of the encounter. According to learned counsel, the testimony of PW-4 indicates that approximately eighteen police personnel were involved in the operation, including the Station House Officer, three Sub-Inspectors, one Head Constable and thirteen constables. However, PW-2 found only four police personnel at the spot. Learned counsel contended that this discrepancy casts serious doubt upon the prosecution’s version of the police encounter and the circumstances in which the accused persons were allegedly apprehended.

It was further argued that PW-2 found only two miscreants lying on the ground and did not mention the presence of any of the seven accused persons allegedly arrested at the spot. According to learned counsel, this raises serious doubt regarding the alleged apprehension and involvement of the appellants in the incident, particularly surviving appellant nos. 4, Jaswant and 6, Chandrapal.

Learned counsel for the appellants further submitted that according to the statements of PW-1, PW-2 and PW-3, none of the dacoits made any attempt to conceal their identities, despite being well known to the ocular witnesses. It was contended that such conduct was wholly improbable, as no person committing an offence of this nature would ordinarily disclose his identity in the presence of persons known to him.

Learned counsel appearing on behalf of appellant Nos. 4 and 6 further submitted that as is evident from page 39 of the paper book, PW-2 neither saw any of the accused persons at the police station nor he saw any of them while returning from the police station to his village. Upon reaching the village, he found police personnel present there. According to his testimony, he returned to the village at about 2:00 to 2:30 a.m., whereas the FIR in the alleged encounter case had already been lodged at 1:00 a.m. by the informant, lodging the arrested accused persons and depositing the recovered articles in the police Malkhana. It was, therefore, contended that if the police personnel were still present in the village until 2:00 to 2:30 a.m., the lodging of the FIR at 1:00 a.m. by PW-4, as alleged, becomes highly doubtful.

Learned counsel further submitted that according to the statement of PW-1, no police officer made any inquiry from him after the lodging of the FIR. This circumstance raises a serious question as to the person at whose instance the investigating officer prepared the site plan. The preparation of the site plan, in such circumstances, was also assailed as highly doubtful.

It was further contended that PW-4, who allegedly played a pivotal role in the recovery of the looted articles, admitted that the signatures of none of the accused persons were obtained on the respective recovery memos. Nor were copies of the recovery memos furnished to the accused persons concerned. According to learned counsel, these serious lapses in the alleged recovery proceedings cast substantial doubt on the genuineness and reliability of the recoveries themselves.

In view of the aforesaid circumstances, learned counsel contended that the prosecution version regarding the arrest of the accused persons at the alleged place and time, as well as the recovery of the purportedly looted articles from them, could not safely be relied upon.

Learned counsel for the appellants further submitted that DW-1 and DW-2 had substantiated the defence version that the appellants has been falsely implicated in the case on account of political rivalry. It has been contended that PW-3, Nek Ram, was the village Pradhan at the relevant time. It was, therefore, argued that the surviving appellants had been falsely implicated owing to political animosity and had no active role in the alleged incident.

Learned counsel further submitted that according to the prosecution case, PW-4 had lodged FIR bearing Case Crime No. 45 of 1978 under Sections 147, 148, 149 and 307 IPC, besides lodging three separate cases under Section 25 of the Arms Act, alleging the arrest of the accused persons and the deposit of the recovered articles in the police Malkhana. However, the accused persons facing prosecution under Section 25 of the Arms Act, as well as under Sections 147, 148, 149 and 307 IPC, has already been acquitted by judgment and order dated 17.01.1979 passed in Sessions Trial No. 230 of 1978, State v. Keshav and Others. Learned counsel submitted that a certified copy of the aforesaid judgment is available on record and contended that the said acquittal is a relevant circumstance warranting consideration while assessing the reliability of the prosecution case in the present appeal.

It has, therefore, been submitted that the prosecution has failed to establish the charges against the appellants beyond reasonable doubt and that the impugned judgment and order of conviction and sentence is liable to be set aside, with the appellants being acquitted of the charges levelled against them.

Per contra, learned A.G.A. vehemently opposed the criminal appeal and submitted that the contradictions pointed out by learned counsel for the appellants are minor in nature and do not materially affect the credibility of the prosecution case. It was contended that such minor discrepancies ought to be disregarded in view of the consistent testimonies of PW-1, PW-2, PW-3 and PW-4.

It was further submitted by the learned A.G.A. that PW-1, PW-2 and PW-3 were eyewitnesses to the incident of dacoity and were well acquainted with the appellants. They had identified the appellants at the spot and duly established their identities before the Court. These witnesses had also testified regarding the arrest of the appellants, including those who had survived. PW-4, on the other hand, was the police officer leading the police party, whose action resulted in the death of two bandits in the encounter and the apprehension of seven miscreants along with the looted articles and weapons allegedly used in the commission of the dacoity.

It was, therefore, submitted that the prosecution evidence is sufficient to sustain the conviction of the appellants and that the impugned judgment and order of conviction and sentence does not warrant any interference by this Court.

Accordingly, learned A.G.A. prayed for dismissal of the criminal appeal and affirmance of the impugned judgment and order.

Having heard the rival submissions advanced by learned counsel for the parties and upon perusal of the record, this Court finds that the prosecution has miserably failed to establish the authenticity of the list of looted articles, the genuineness of the recovery memos, the arrest of the accused persons at the alleged place of occurrence, the presence of the police personnel and the accused persons at the spot at the relevant time. Therefore, the alleged recovery of the looted articles from the appellants could not be proved beyond reasonable doubt.

It is further remarkable to note that the articles allegedly recovered constitute only a small fraction of the articles stated to have been looted. According to the list of looted articles, as many as 52 gold items weighing about 425.59 gm and 72 silver items weighing more than two kg, cash amounting to approximately Rs. 6,000/- and several other articles were allegedly looted. However, the alleged recovery comprises only five gold rings, without any specific description and cash amounting to Rs. 300/-. The prosecution has failed to offer any convincing explanation as to how such a substantial quantity of the allegedly looted articles could have disappeared, particularly when, according to its own case, the accused persons has been apprehended at the spot.

In view of the aforesaid material deficiencies and inconsistencies in the prosecution case, this Court is unable to place reliance upon the prosecution version as presented before it. The alleged recoveries and the circumstances surrounding the arrest of the accused persons do not inspire confidence.

Moreover, according to P.W.-2, he along with informant and another accompanying person left the village to Police Station Raya for lodging the FIR after 12:30 am, while as per statement of P.W.-1 they left the village at about 11:30 pm. As per statement of P.W.-2 when he returned village after lodging the FIR, he found Police personnel witnessed after the said encounter, they remained present there and continued to remain there up to 7 to 8 am, which raises a serious question regarding promptness of FIR under Section 307 I.P.C. along with Section 25 Arms Act and also about lodging of appellants in lock-up of police station at the said relevant time. Accordingly, the said FIR reveals to be ante-time which shakes the foundation of prosecution story. It is also remarkable that according to prosecution story two bandits were shot dead in the incident but how these dead bodies were dealt with could not be brought on record by the prosecution.

In view of the foregoing discussion, this Court finds that the prosecution has failed to establish beyond reasonable doubt that the appellants were arrested immediately after the incident of dacoity or that any looted articles, including the weapons allegedly used in the commission of the offence, were recovered from their possession. Further, the prosecution has also failed to establish as to which specific articles were allegedly looted, as no list of the looted articles could be legally proved during the trial. These are not mere technical or insignificant discrepancies but constitute serious lacunae in the prosecution case, which go to the root of the matter and cannot be ignored. In such circumstances, particularly when the alleged arrest and recovery immediately after the commission of dacoity have not been established, this Court finds it unsafe to place reliance upon the truthfulness of the prosecution version regarding the commission of dacoity and the alleged involvement of the appellants therein. Therefore, the prosecution has failed to prove its case against the appellants beyond reasonable doubt.

Accordingly, appellant Nos. 4 and 6 are entitled to the benefit of doubt. The impugned judgment and order of conviction and sentence, insofar as it relates to appellant Nos. 4 and 6, cannot be sustained and is hereby set aside. The criminal appeal, insofar as it relates to appellant No. 4 Jaswant and appellant no. 6 Chandrapal is allowed. They are acquitted of the charges leveled against them by extending to them the benefit of doubt.

Since the appellants are already on bail, their bail bonds are cancelled and the sureties are discharged from their respective liabilities.

However, in compliance with the provisions of Section 437-A Cr.P.C., the appellant nos. 4 and 6 are directed to furnish a personal bond and two reliable sureties each in the sum of Rs. 50,000/- to the satisfaction of the court concerned within two weeks from the date of this judgment.

Let the Trial Court Record along with a copy of this judgment be transmitted to the Trial Court concerned for compliance and necessary action.