NANKA Vs. STATE OF U P

JUDGEMENT

(1.) THIS appeal has been preferred by the solitary appellant Nanka challenging his conviction under section 395 I.P.C. and imposed sentence of seven years RI recorded by VIth Additional Session's Judge, Fatehpur vide impugned judgment and order dated 25.5.81 recorded in S.T. No. 322 of 1979, State Vs. Nanka, relating to P.S. Kalyanpur, District Fatehpur. Shorn of unnecessarily details and stated briefly, prosecution allegations against the appellant, as was scribed in the written FIR Ext. Ka-1 by the informant Banwari Lal (P.W. 1) and later on testified before the trial Court were that on the intervening night between 20/21.9.1977, at 12 mid night, present appellant armed with axe along with his other socio criminises / miscreants Bhola, Ram Pal Pasi, Raghuraj and many others committed dacoity in the house of informant Banwari Lal situated in village Jaiti Khara under police circle Kalyanpur, District Fatehpur. When dacoits had approached informant house, he was sleeping under terracotta thatch in front of his house along with his brother Shiv Bodhan, his wife and children. Flashing of torches by the dacoits woke up the informant. The dacoits snatched away house keys from informant's wife, unlocked the front door and committed dacoity but some of them remained outside on guard. Informant, his brother Shiv Bodhan escaped from the spot and raised alarm, which attracted co-villagers Ram Kumar, Babu Lal, Barati Lal, Vijai Pal, Gajraj and Pancham. Out of them Babu Lal resorted to retaliatory firing from his gun. Rest of the gathered villagers, catapulted stones whereas some of them were armed with lathies. Villagers had flashed their torches to identify the miscreants. In the cross firing, dacoits also sustained injuries. Two of the villagers, Pancham and Ram Kumar, sustained injuries in exchange of fire. Dacoits sustaining gun shot injuries took to their heels but one of their associate dacoit namely Bhola was apprehended at the spot and another lost his life due to sustained injuries. Arrested dacoit disclosed identity of dead miscreant as Ram Pal. In the torch and lantern light, which was burning at the spot, dacoits were correctly identified by the informant, his family members and villagers. Out of the escaped dacoits Raghuraj, who was the maternal nephew (bhanja) of Budhu, a co-villager was identified by appearance and name.

(2.) BANWARI Lal (P.W. 1) scribed incident FIR Ext. Ka-1, carried it to the police station Kalyanpur, at a distance of five miles, and lodged it as crime no. 206, under sections 395, 397 I.P.C. on the following morning 21.9.77 at 7 A.M. against the named and unknown dacoits. SI Babu Ram Yadav (P.W. 4) registered Ext. Ka-1 by preparing chik FIR Ext. Ka-3 and GD entry Ext. Ka-4. Same day at 12.40 P.M., constable Ravindra Shanker and Jai Narayan Singh lodged accused Bhola along with four bundles of looted articles at the police station vide GD No. 25, which too was scribed by P.W. 4. Same day, informant and other villagers intimated the police that two other dacoits, Nanka and Raghuraj were apprehended by them and consequently they were also booked in penitentiary at police station at 8.15 P.M. regarding which, GD No. 36 was scribed by P.W. 4. Aforesaid GD entries are Exts. Ka-5 and Ka-6. Bhola, Raghuraj and Nanka because had also sustained injuries in the incident and hence were sent for their medical treatment and so were injured Raj Kumar and Pancham.

(3.) ON the internal examination, doctor has noted that there was a fracture of the lower end of right humerus and from his right and left lung, gun shot pellets were recovered. His spleen was lacerated. In doctor's estimation, death had occasioned due to sustained injuries. Cadaver of dacoit Ram Pal Pasi was post-mortemed on 23.9.77 at 11 A.M. According to the doctor, he was 30 years of age and rigor mortis had passed off from his both the limbs. His abdomen was distended and blisters were present all over the body. Doctor has noted following external injuries on his corpse:-