KALI SINGH Vs. STATE

JUDGEMENT

(1.) THIS is an appeal by three persons, namely Kali Singh, Birbal Singh and Paltoo Singh who have been convicted under Sections 457 and 380 IPC by the I Additional Sessions Judge, Basti. Each appellant has been awarded a sentence of rigorous imprisonment for four years under the first count and rigorous imprisonment for three years under the second count The two sentences have been ordered to run concurrently.

(2.) THE prosecution story was that in the night between 14th and 15th April, 1966 Sukhdeo Singh was sleeping outside his house while his son Ram Baran Singh and others were sleeping inside the house. At about 230 a. m. Ram Baran Singh woke up on hearing some sound inside the house. He flashed his torch and saw four thieves inside the room and he also saw that a hole had been bored in the southern wall. He came out of the house raising an alarm which attracted the attention of Sukhdeo Singh and others. THEreafter Sukhdeo Singh, Ram Baran Singh and others went to the south of the house and in torch light they saw and recognised these three appellants standing near the hole and one person was seen coming out of the hole. Before these persons could come nearer, the miscreants escaped. Sukhdeo Singh got a written report scribed by his son and it was lodged at the Thana at 430 a. m. THE investigation was done by Sub-Inspector Babban Singh who interrogated the witnesses, examined the torches, prepared a site plan and ultimately submitted a charge sheet on 21-10-1966.

(3.) THERE seems to be no controversy regarding the factum of theft. From the side of the prosecution, it was alleged that these appellants had a motive to commit this crime and the learned trial Court believed this part of the prosecution case. Accepting this finding regarding motive as correct, the relevant question is whether these two witnesses really got an opportunity of recognising the three appellants. In their examination-in-chief, both these witnesses deposed that when they went to the south of their house, they saw these three appellants standing near the hole. This is obviously a false story. If it is said that Ram Baran Singh came out of the house raising an alarm and then his father also raised an alarm which attracted the attention of some other village people and this party went towards the south, it is impossible to believe that these three appellants would remain standing' near the hole for no rhyme or reason. Obviously after the first alarm, the miscreants would make an attempt to escape as soon as possible. In the cross examination, however, both these witnesses changed the story and they admitted that when they went towards the south, they saw the miscreants running away at a distance of ten or twenty paces. A perusal of the site plan will make it clear that Ram Baran Singh, his father and others came from the northern direction while the miscreants were escaping towards the east. Even if it be assumed that they had really seen the miscreants, they could have seen only one side of their faces. I am not going to believe that from a distance of fifteen or twenty paces, it could be possible to recognise anybody in torch light when the miscreants were running away and particularly when these witnesses could have got only a side view of the faces. In fact, PW 4 clearly stated that at that time, his face and the faces of his companions were towards the south while the faces of the miscreants were towards the east and admittedly it was a dark night. I, therefore, find it very difficult to believe that in these circumstances it could be possible to recognise anybody without any chance of mistake. The learned Sessions Judge has paid absolutely no attention to the question whether there was any opportunity of seeing the faces or not. He seems to have assumed that because there was torch light and because the miscreants were seen running away, their faces must have also been recognised. Apart from these two witnesses, the prosecution also relied on the statement of Anirudh Singh who was examined in the committing Court but he died before the trial started and, therefore, his statement was tendered by the prosecution at the trial stage. But from the first information report it would appear that Anirudh Singh came after the complainant had raised an alarm. It was, therefore, still more difficult for Anirudh Singh to reach the spot in time to see the miscreants.