- (1.) This appeal has been preferred against the judgment and order dated 27.10.2004 passed by the High Court of Judicature for Rajasthan, Jaipur Bench in D.B. Criminal Appeal No. 1579 of 2002, upholding the conviction and the sentence of the appellants vide judgment and order dated 2.11.2002 in Sessions Case No. 4 of 2002 (14/2000) passed by Additional District and Sessions Judge, (Fast Track), Laxmangarh, Alwar, convicting the appellants under Sections 395, 396 and 397 of the Indian Penal Code, 1860 (hereinafter called the IPC).
(2.) Facts and circumstances giving rise to this appeal are as under: A. Santosh Jagwayan (PW.13) lodged an FIR on 17.12.1996 at 8.30 A.M. that in the intervening night between 16th and 17th December, 1996, on hearing a noise, he sent his Chowkidar Gopal Nepali (deceased) to the roof of his house. Gopal Nepali went upstairs, opened the gate of the roof, and found that 8 to 10 accused persons were trying to enter into the house by breaking upon the door of the roof. They immediately fired a shot at Gopal Nepali (deceased) and entered into the house. The accused persons locked Shashi Devi (PW.12), wife of complainant and Preeti (PW.14) and Sandhya (PW.15), his daughters, in the bathroom and started looting moveable properties. Meanwhile, the complainant's neighbours raised their voices. Thus, the accused immediately fired a shot at one of the neighbours, Mrs. Anita Yadav (deceased), and as a result, she died on the spot. Kripa Dayal Yadav (PW.2), husband of Anita Yadav caught hold of one of the accused but was beaten with a gun's butt by the other accused persons who managed to get the accused released from his clutches. The accused decamped with cash, jewellery and silver wares etc. B. On the basis of the said complaint, an FIR No. 240 of 1996 (Ex.P-30) was registered under Sections 395, 396, 397 and 398 IPC and investigation ensued. The dead bodies of Gopal Nepali and Smt. Anita Yadav were recovered and sent for post-mortem examination. C. During the course of investigation, the appellants were arrested. Raghuveer was arrested on December 19, 1996 and one Ambassador car was recovered at his instance. On his further disclosure and instance, one Kondhani of silver, 2 silver glasses, one silver Katori, one silver spoon and one torch were recovered. Raghuveer, Ghurelal and Kallu were put to the identification parade. On December 24, 1996, co-accused Ram Krishan (now dead) was arrested. On his arrest, case for offence under Section 120B, IPC was also added. On the information and at the instance of accused Kallu, a 12 bore gun, one silver Katori, one pair of ear tops and one earring was recovered on December 29, 1996. On the information furnished by Ghurelal, one golden ring, one ear 'jhala', one necklace, one Ilaychidani, one silver spoon and one Kondhani were recovered on December 30, 1996. On January 1, 1997, accused appellants Rajpal, Samay Singh and Chunchu @ Bhagwan Singh were arrested. One 12 bore gun, one worship platter, 4 silver glasses, one Katori and Rs.2,000/- in cash were recovered from Chunchu @ Bhagwan. On the information furnished by accused Samay Singh, one 32 bore revolver, two empty cartridges, 4 live cartridges, 5 glasses, one Katori, one silver spoon and two coin of silver along with Rs.8,900/- in cash and two notes of Nepal currency were recovered. On the information of appellant Rajpal, one 32 bore Katta, one empty cartridge, 5 live cartridges, two golden bangles (Kangan), 3 silver button, one Katori of silver, one silver glass and Rs.1000/- in cash were recovered. Some recoveries were also made at the instance of co-accused Kuniya and Talevar (acquitted by the High Court). Appellants Samay Singh, Chunchu and Rajpal were also put to the identification parade. D. After completing the investigation, the police filed challan for offences punishable under Sections 395, 396, 397, 120B and 412 IPC, and under Sections 3/25 and 3/27 of the Arms Act, 1950. The charges were framed against the accused appellants. The accused denied the charges and claimed to be tried. Prosecution produced as many as 34 witnesses and exhibited 80 documents (Ex.P-1 to Ex.P- 80) in support of its case. The accused appellants were examined under Section 313 of the Code of Criminal Procedure, 1973. They denied the correctness of the statements made against them and pleaded that they have been falsely implicated. E. The trial court convicted all the accused under the provisions of Section 396 IPC and awarded them punishment to undergo life imprisonment and a fine of Rs. 1,000/-, and in default of payment of fine, to further undergo six months rigorous imprisonment. All of them were also convicted for the offence punishable under Section 397 IPC, and a sentence to undergo rigorous imprisonment for seven years and a fine of Rs.500/- and in default of payment of fine, three months rigorous imprisonment was awarded. They were further convicted under Section 395 IPC, awarded life imprisonment and fine of Rs. 1,000/- and in default of payment of fine, to further undergo six months rigorous imprisonment. Accused Ghurelal, Chunchu @ Bhagwan Singh, Kallu, Rajpal and Samay Singh were further convicted under Sections 3/25 and 3/27 of the Arms Act and to each, a sentence was awarded to undergo three years rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine, to further undergo three months rigorous imprisonment. F. Being aggrieved by the said decision, all the accused preferred Criminal Appeal No. 1579 of 2002 which has been decided by the High Court vide judgment and order dated 27.10.2004 acquitting the accused Talevar and Kuniya, though maintaining the conviction and sentence in respect of the other accused. Hence, this appeal.
(3.) Shri Altaf Hussain, learned counsel appearing for the appellants has submitted that the appellants had not been kept baparda. Therefore, the identification was not proper. He further submitted that there had been most material discrepancies in the deposition of witnesses which go to the root of this case, and therefore, the conviction and sentence of the appellants is liable to be set aside.;