K.S. Rakhra, J.

1. Appellants Nawab Singh, Nathoo Singh, Hakim Singh and Ram Autar Singh have challenged the Judgment and order dated 5.3.1982 of Special Judge, Budaun in S.T. No. 90 of 1980 whereby the appellants were held guilty and convicted under Section 396 IPC and sentenced to life imprisonment.

2. On 23.11.1979 at about 11.30 p.m. a dacoity was committed in the house of Sohanpal son of Ganga Singh in village Jakhupura police station Sahaswan district Budaun. In this incident his real brother Kailash and the informant himself had received serious injuries and valuable properties including ornaments, clothes, utensils and watch etc. were looted from the house. Kailash subsequently died on the account of said injuries. On 24.11.1979 at about 4 p.m. report of this incident was lodged at police station Sahaswan by Sohanpal Singh, P.W. 1. In this report, he named the appellants and alleged that they along with three unknown dacoits committed this offence, Out of the accused persons, appellant Nathoo Singh is the Sala of appellant Nawab Singh and is resident of village Nijampur police station Bitsi district Budaun which is 20 kilometers away from village Jakhupura. The remaining three appellants are resident of Jakhupura itself. Appellant Hakim Singh son of Collector Singh and Ram Autar son of Gajju Singh are nephews of appellant Nawab Singh. Admittedly the house of Ram Autar son of Gajju Singh is adjoining the house of Sohanpal. It is alleged that during the course of dacoity five of the dacoits made entry into the house of Sohan Pal and looted the property, remaining two i.e. appellant Ram Autar and Nathoo Singh were standing on the roof of the house of Gajju Singh. Ram Autar was flashing torch while Nathoo had gun in his hand who fired on the inmates of the house and particularly on the informant Sohan Pal Singh.

3. In the FIR it was alleged that in the light of torch and lantern which was kept lighting in the house as usual, the informant, his wife Hansmukhi, brother Kailash, his wife Sarla Devi, mother Harpyari, cousin brother Sia Nand and his wife Shanti Devi and aunt Shakuntala who were present in the house had seen the faces of the dacoits and identified Nawab Singh and Hakim Singh amongst those five who committed loot in the house. Nawab Singh was carrying gun while Hakim Singh was armed with lathi. It was further alleged that informants brother Kailash was beaten by the dacoits and was dragged out in the Angan where appellant Nawab Singh opened fire on him. When the informant tried to run out of his house, the appellant Nathoo Singh on the exhortation of Ram Autar fired on the informant from the roof of Gajju Singh causing fire arm injuries to Sohan Pal. Several villagers including Ati Raj Singh (brother-in-law), Ram Pal, Om Prakash real brother of the informant, Ramveer, Hakim Singh sons of Harnam Singh and Balwant Singh also reached there and challenged the dacoits. They also flashed torches. The dacoits then took to their heels but while leaving the village, again fired few shots towards the witnesses. Jaswant Singh P.W.3 had also reached the place of occurrence, flashed his torch and had identified four appellants amongst the dacoits. None of the dacoits, according to the prosecution story was concealing his identity by covering his faces with scarf etc.

4. In the FIR a detailed list of 29 items was given which allegedly was taken away by the dacoits. Their split up, as per belonging of individual inmate of the house, was also mentioned. An attempt was made by the informant to explain the delay in lodging of the FIR by mentioning therein that in the night on account of fear he did not come to the police station. In the morning, the informant carrying his brother Kailash on a bullock cart accompanied by Raj Pal Singh, Ram Pal, Pradhan Jiwan, Parsadi, Jhamman and chaukidar Asharfi Lal went to the police station and lodged a written report there.

5. At the police station a case was registered as crime No. 215 of, 1979 and investigation was taken up by S.I. Mahendra Pal Singh, P.W.7. The informant along with his brother Kailash was sent for medical examination at PHC Sahaswan which was just across the road from police station. However, the Investigating Officer claimed that condition of Kailash was serious and before he departed for PHC, the Investigating Officer interrogated him Kailash had given statement to the effect that four appellants were identified by him amongst the dacoits. This statement is recorded in the case diary as statement under Section 161 Cr.P.C. and was relied upon by prosecution as dying declaration.

6. When examined at PHC Sahaswan at about 4.30 a.m., the doctor had found that Kailash, was already dead. The defence version is that Kailash had received injuries in his abdomen and his intestines were protruding out of the body and he was not in position to speak from the moment he received injuries. The defence suggestion is that Kailash had not given any statement to the Investigating Officer at the police station.

7. Inquest of the dead body was held by S.I. Nathu Singh P.W.2 at PHC Sahaswan and dead body was sent for a autopsy. Dr. A.K. Malwani of police hospital Budaun conducted the post mortem examination and had found following ante mortem injuries:

1. Gun shot wound of entrance 4 cm x 4 cm over the left side of abdomen 3 cm. above the superior iliac, spine cavity deep, blackening, and burning present around the margins. Loop of intestines coming out from the wound alongwith lacerated peritoneum loops having clotted blood. Clotted blood present around the wound. Direction anterior to posterior and downwards.

2. Lacerated wound 1 cm x 0.3 cm x skin deep over the right side of fore head 1.5 cm. above and lateral to the outer end of right eye brow clotted blood present around the wound.

3. Lacerated wound 1cm x 0.3 cm x skin deep over the back of the right fore arm clotted blood present around wound.

4. Abrasion 2 cm x 1 cm over the back of the right fore arm 2 cm below injury No. 3.

5. Two abrasion in area 3 cm x 1 cm over the front of right leg each size 1 cm x 1 cm and having distance of one cm.

6. Abraded contusion 7 cm x 3 cm on the top of the right shoulder joint.

7. Abrasion 0.5 cm x 0.5 cm over the fore arm left side 3 cm above from medial end of left eye brow.

8. Abrasion 6 cm x 0.5 cm (linear) on the lateral side of the left arm 7 cm above from the lateral epicondyle.

9. Abrasion 1 cm x 1 cm over the left ankle.

10. Abraided contusion 2.5 cm x 2 cm, 1 cm above from left tibial tuberocity over the left leg.

11. Abrasion 1 cm x 1 cm over the dorsal aspect of the metacarpo phalyngeal joint of the left midle finger.

12. Abrasion 1 cm. x 1 cm over the dorsal aspect of the metacarpo phalyngeal joint of the left ring finger.

13. Lacerated wound 1 cm x 0.5 cm over the left side of the fore head 2 cm above injury No. 7.

14. Contusion 5 cm x 3 cm over the back of right side 4 cm above inferior angle of right scapula.

8. In the internal examination, two walls of abdomen were found wounded, peritoneum was ruptured beneath injury No. 1. One cork piece and 60 small pellets were recovered from abdominal cavity. Loop of intestine was found ruptured at four placed. In the opinion or the doctor, death of Kailash had occurred on account of shock and haemorrhage as a result of ante mortem injuries. He also opined that the victim might have immediately become unconscious after receipt of the injuries and unconsciousness must have deepened by passage of time. Further in his opinion it is quite possible that Kailash must have become incapable of speaking immediately after he received injuries. According to the doctor, death of Kailash could have occurred in the morning of 24.11.1979.

9. The informant Sohanpal Singh had also received 10 injuries attributable to fire arm. He was examined by Dr. Kali Charan P.W.5 at PHC Saheswan. The injury report is Ex.ka-10. It is not necessary to enumerate the injuries mentioned in the injury report at this stage but it is undisputed fact that Sohanpal Singh, informant received injuries in this incident and was a witness thereof.

10. There was admittedly enmity between the appellants and the first informant or his family members etc. although the grounds for enmity have been differently given by the prosecution as well the defence. According to the prosecution the appellants had participated in this dacoity because of annoyance caused to them on account of some Panchayat held at the instance of Kailash wherein, it was discussed that appellant Nawab Singhs wife had established illicit relation with a sweeper namely Ram Phul Bhangi of the village. Kailash declared in the Panchayat that if it was so, they would out caste Nawab Singh from village society would boycott him in social events.

11. The defence with regard to enmity was that informants sister Sushila Devi who is now married in Bhan Singh ka Nagla, district Etah was previously contracted to be married to Badan Singh of Rustam Nagar. Informant and his brother Kailash broke that contract and married her in Bhan Singh ka Nagla. According to the defence, Badan, Singh of Rustam Nagar had called a Panchayat in village Jakhupura about 20 days prior to the present incident wherein appellant Nawab Singh taking initiative had condemned the conduct of the informant and his family.

12. After the FIR was registered at the police station, the investigation was taken up by Mahendra Pal Singh P.W. 7. He after recording the statement of deceased Kailash who was alive till then, and sending two victims for medical examination proceeded for the place of occurrence. On reaching the house of informant he recorded the statement of family members of the informant, made spot inspection and prepared site plan. Samples of plain and blood stained earth were collected. He also found some wad pieces on the spot and after examining the light source i.e. torch, lantern etc. returned them in the supurdgi of witnesses.

13. Search of the houses of the appellants was made but they could not be traced out in their houses nor any incriminating articles were recovered from there. He recorded the statement of first informant after about a week on 30.11.1979. On the basis of statement given by the witnesses the Investigating Officer submitted charge sheet.

14. The prosecution placed reliance on the testimony of Sohanpal Singh, P.W.1, Jaswant Singh, P.W.3 and Smt. Sarla, P.W.4 for the purpose of connecting the appellants with this crime. The remaining witnesses are formal witnesses. S.I. Nathu Singh, P.W.2 had held inquest of the dead body on 24.11.1979. Dr. Kali Charan, P.W.5 had examined injuries of Sohan Pal on 24.11.1979 at PHC Saheswan and had declared Kailash dead. Dr. A.K. Malwani, P.W.6 had conducted post mortem examination, S.I. Mahendra Pal Singh, P.W.7 is the Investigating Officer and P.W.8 H.C. Dinesh Singh is the person who had registered the crime on the report of Sohan Pal Singh.

15. All the three eye witnesses Sohanpal Singh, P.W.1, Jaswant Singh P.W.3 and Smt. Sarla, P.W.4 deposed in the trial court that they had seen all the four appellants amongst the dacoits who had committed dacoity in the house of the informant. They were not covering their faces to conceal identity. The witnesses also stated about alleged enmity of the appellants with Sohanpal Singh etc. in connection with the Panchayat held to look into alleged illicit relation of Nawab Singhs wife with Ram Phul Bhangi.

16. The trial court on the basis of above evidence found the prosecution case fully established and has convicted the appellants as mentioned above.

17. Sri P.N. Misra, learned Counsel for the appellants has vehemently argued that the prosecution evidence was not cogent and reliable. No independent witness was examined and the prosecution story that appellants who either belonged to same village or known to the villagers would commit dacoity without concealing their identity is highly improbable. He argued that there was sufficient time gap between the incident and lodging of the FIR providing opportunity to the informant to deliberate and make consultation to implicate the appellants falsely in the aforesaid incident. Sri Mishra referred to the medical evidence in the case and argued that the Investigating Officers claim that Kailash was brought to the police station alive and he has recorded his statement Under Section 161 Cr.P.C. at 4.30 a.m. is totally false.

18. Sri K.D. Tripathi, private counsel for the complainant and Usha Kiran learned AGA for the State contended that eye witnesses can not be disbelieved and they had seen the appellants participating in the dacoity.

19. As mentioned earlier the enmity between the two sides i.e. prosecution party and the accused side is admitted fact although both have given different reasons for this. The evidence therefore has to be scrutinised very carefully and the circumstances shall also have to be seen in the light of relationship between the parties.

20. The testimony of Dr. A.K. Malwani P.W.6 who conducted the autopsy and had given his report makes it clear that the deceased Kailash had received very serious injuries which were sufficient in ordinary course to cause the death. He had suffered as many as 14 injuries caused by fire arm. The shot was fired at him from such a close range that piece of cork along with 60 pellets entered the body and they have been recovered by the doctor from the abdominal cavity. Hip bone was found fractured into pieces. Intestine was ruptured at four places. Peritoneum under injury No. 1 was also ruptured. Sohanpal Singh P.W.1 has deposed that condition of Kailash after the dacoity was very serious and he was able to speak very little. The intestine was protruding out. Natthu Singh P.W. 2 who had held inquest between 6.30 to 7.30 a.m. at PHC Saheswan had found plenty of froth coming out from the nostrile and mouth of the dead body Dr. A.K. Malwani P.W.6 had opined that in view of nature of injuries suffered by Kailash he must have fallen unconscious after suffering the injuries. He also admitted the possibility of Kailash having been rendered incapable of speaking immediately after the incident.

21. From the above statement and the medical evidence it appears that Kailash was not in position to speak and it is quite doubtful that he was even alive when the FIR was being registered. It is significant to note that the Investigating Officer Mahendra Pal Singh had not called any doctor to certify physical or the mental condition and capacity of Kailash to make a statement. The police station and the tahsil are in one campus. The Tahsildar who also happens to be a magistrate was also not called for recording dying declaration. The FIR is a detailed document running in to three typed pages. The police claims that FIR was registered at 4 a.m. The statement of Dinesh Singh P.W.8 who was Head Moharrir shows that I.O. Mahendra Pal Singh was not at the police station when theFIR was lodged. He was in his quarter. He was sent for after the FIR was registered. "Chitthi Majrubi" which was allegedly sent by H.M. Dinesh Singh to PHC along with two victims is not on record. Doctor Kali Charan P.W.5 deposed that at 4.30 a.m. when Kailash was brought to him he was already dead. The claim of I.O. Mahendra Pal Singh that after copying the chik FIR and the G.D. entry he had recorded the statement of Kailash is therefore highly doubtful. Since it was not physically possible to complete all these entries in the case diary within the time claimed by the investigating officer, he tried to give explanation that he started making entries in the case diary and noted the contents of the FIR as well as entries in the G.D. simultaneously as the documents were being prepared by Head moharrir Dinesh Singh who while preparing the documents kept on speaking loudly as to what he was writing. To our mind, it is only a futile effort to explain the alleged recording of statement of Kailash in the case diary Under Section 161 Cr.P.C. Looking to the circumstances of the case we are of the view that Kailash was not in position to speak and could not have given statement as claimed by the investigating officer implicating four appellants. The said statement ( Ex.Ka-13) is therefore wholly unreliable and can not be treated as dying declaration.

22. It is significant to mention here again that the same day search was made at the house of the accused but no incriminating article was recovered.

23. The prosecution had examined Jaswant Singh P.W.3 as an independent witness who tried to conceal his enmity but the material on record shows that he had old enmity with appellant Nawab Singh and Gajju Singh etc. He deposed that he had no enmity with the accused persons nor there was any litigation in the past involving them but Ex.kha-2 is certified copy of the judgment in consolidation appeal Under Section 11 of U.P. Consolidation of Holdings Act. This was filed by this witness Jaswant Singh son of Munshi Singh and his brother Magister Singh against Jagdish Singh also claiming to be son of Munshi Singh. The question before the consolidation authority was about heirship of Munshi Singh. While Jaswant Singh and Magister Singh claimed to be sons of Munshi Singh, Jagdish Singh also claimed to be son of Munshi Singh Jaswant Singh and Magister Singh were claiming that they were sons of first wife of Munshi Singh who was turned out by him and he married another lady Smt. Chameli. Jagdish Singh was son of Chameli. In that controversy, the judgment of the consolidation officer shows that Nawab Singh and Gajju Singh had deposed in favour of Jagdish Singh. Consolidation Officer held that Magister Singh and Jaswant Singh were illegitimate sons of Munshi Singh and were not entitled to inherit his land. Thus Jaswant Singh P.W.3 had also very strong motive and old enmity with the appellants.

24. Only inimical witnesses have therefore deposed against the appellants. FIR shows that a large number of villagers had collected on the spot and had seen the occurrence. No independent witness has been examined. In view of this, the claim of interested and inimical witnesses, that the appellants who were well known to them from before and were close door neighbour participated in the dacoity without concealing their identity or faces is highly improbable and can not be believed.

25. The FIR also appears to be ante timed because evidence does not show that it was promptly sent to the court in accordance with provision of Section 157 Cr.P.C. No date is noted on the FIR regarding its receipt in the court of magistrate. Circle Officer of the police however made his endorsement for court on 26.11.1979. The statement of informant was recorded on 30.11.1979, after a week, without any proper justification.

26. It is further significant to note that there was inordinate delay in lodging of the FIR and it appears that time was being gained for deliberation and consultation. The two persons i.e. informant and his brother Kailash were seriously injured and condition of Kailash was precarious. This should have prompted the informant and other family members to rush the two victims to the hospital without delay but contrary to this the informant took time to prepare a very detailed written report. The description of the property in detail, according to its owners is clear indication of the fact that elaborate effort was made to find out what articles were taken away and to whom they belonged to. In all a list of 29 articles said to have been looted by the dacoits is given in the FIR and it also includes insignificant articles like a used small brass tumbler worth Rs. 5/-, a used iron tongs worth Rs. 15/-, old clothes like shirt, petticoat ect. of petty value. The police station was 8 kilometers from the place of occurrence. In the circumstances of the case it appears that unnecessary delay was caused and time was gained for deliberation.

27. The so called independent witness Jaswant Singh could not dare to give firm statement. He was asked whether the appellants were covering their faces during the course of dacoity. He replied he does not remember about it with certainty. With regard to remaining three unknown persons he says that he remembers very well that they had not covered their faces. Subsequently he tried to modify his statement by saying that although the faces of four appellants were not covered but they had scarf wrapped around their head. This statement is highly improbable because if at all the appellants had wrapped their heads by scarf, in all probabilities they must have covered their faces also because they were known to the witnesses.

28. The evidence further shows that Nawab Singh appellant was not strong and influential person. The prosecution says that it was Kailash who was instrumental in calling Panchayat in the matter of illicit relation of Nawab Singhs wife with Ram Phul Bhangi. He succeeded in passing a resolution for social boycott of Nawab Singh etc. In such a situation it can not be believed that Nawab Singh, his brother and nephew would dare to commit dacoity in the house of informant and Kailash who were next door neighbours and that too without taking precaution of concealing their identity. In the circumstances of the case villagers might have reacted and lynched them on the spot.

29. The trial court has not given due consideration and weightage to all these circumstances and therefore has come to wrong conclusion. We are of the view that all the appellants are entitled to be acquitted as no charge has been proved against them beyond doubt.

30. The appeal is allowed. The conviction and sentence imposed on the appellants by the trial court is hereby quashed. They are acquitted. They are on bail. Their personal and sureties bonds are discharged and they need not surrender. Let a copy of this judgment be certified to the court below.