GOPI Vs. STATE

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order passed by Sri S. N. Prasad, the then Vlth Addl. District and Sessions Judge, Bulandshahar on 28-4-1978. The learned Judge who was disposing of criminal Sessions Trial No. 129 of 1976 found the appellants guilty on a charge under Section 396 IPC and sentenced each one of them to imprisonment for life.

(2.) THE case started against four persons namely the present appellants and one Jagdish who was, however, discharged under Section 227 of the Criminal Procedure Code, by the learned Magistrate. THE trial was against Gopi, Duli Chand and Omi. It was contended that during the night intervening between 13th and 14th December, 1974 precisely at about 1. 30 a. m. , these three-appel lants along with six to eight more persons committed dacoity at the house of Sarni in village Gulistanpur which lies within the cirrcle of Police Station Dadri, district Bulandshahar. Someone amongst them shot down Sarni inside the house and also fired at his son Mahabir who subsequently died while he was being transported to Delhi for treatment. THEre were lighted lanterns inside the house. Witnesses outside the house were possessed of the torches Dacoits were also using torch during the course of the dacoity. Two of them were on. THE roof of the house and from there they were firing to scare witnesses away. In spite of all this the people from the village including Shyam Lal, Pyarelal, Gopi Chand, Deep Chand and Devilal collected by the side of the eastern wall of the house of the Lal Singh and saw the dacoity in progress from there. A heap of straw was collected on the north south 'rasta' which runs by the side of the eastern wall of Sarni's house. It was put to fire and in its light the witnesses saw the faces of the dacoits who were looting the property and commit ting murders. It further contended that out of the ten to twelve dacoits who h id participated in this occurrence, the faces of the present three appellants namely Gopi Chand, Duli and Omi were vividly seen by the witnesses and since they were already known and related to the deceased, their names found mention in the first information report which was lodged at Police Station Dadri, district Bulandshahar on 14-12-1974 at 3. 45 p. m. by P. 7. 1 Shyam Lal

(3.) PW 1 Shyam Lal comes out with the statement that some of the docoits were putting on 'dhatas'. In examination-in-chief he was clear to say that there was none amongst the dacoits whom he knew before occurrence. He was cross-examined by the prosecution with the permission of the court and then he admitted the contents of the first information report but he insisted upon his statement that some of the culprits were putting on 'dhatas'. If this part of his statement is correct then it simply shows that the accused persons were not amongst the culprits. Even otherwise also it is highly improbable that when out of 10 or 12 dacoits some were putting on 'dhatas', those who were already known to the witnesses would have not put on 'dhatas' and would have kept their faces open while those who were not already known to the witnesses, would have put on 'dhatas' and would have kept their faces open, while those who were not already known to the witnesses, would have not put on 'dhatas'. The natural human conduct is that the people do not commit dacoity in neighbouring houses or at known places. They take precaution to conceal their identity. Of course there is no law to that effect but it generally so happens and there may be excep tions like cases in which the offence is committed by hardened criminals or by a person who is so much inimically disposed against the victim as to lose all sense of his own safety while commuting the offence. In the present case, according to PW 1 Shyam Lal some of the culprits were putting on 'dhatas' and he also says that these dacoits continued to put on 'dhatas' on their faces upto the time when they ran away from the spot. It is highly improbable that the known persons would not have put on their 'dhatas' to conceal their identity while mere strangers who had no reason of being known were putting on 'dhatas'. The testi mony of witness No. 1 Shyam Lal is, therefore, of no avail and has been rightly treated as unreliable by the Sessions Judge also.