Sinha, J. - (1.) This is an appeal by special leave from the judgment and order of a single Judge of the Allahabad High Court Confirming those of the Sessions Judge of Azamgargh so far as the appellants were concerned, convicting them under S. 395, I. P. C., and sentencing them to rigorous imprisonment for seven years each. The three appellants along with three other including Bhirgu Singh were placed on trial for dacoity before the learned Sessions Judge of Azamgargh who convicted and sentenced all of them as aforesaid. On appeal to the Allahabad High Court, the learned Judge acquitted three of them but maintained the conviction and sentence of the three appellants.
(2.) The occurrence of dacoity which was the subject matter of the charge against the appellants and others, is said to have taken place at the house of one Kalapnath Singh (P. W. 1), whom we shall call the complainant. He sent a written report to the police station at Mohammadabad, sub-district Ghosi, through the village chowkidar (P. W. 8). That report was treated as the first information (Ex. P-6) dated 4-6-1951 at 3-15 A. M. The police station is about four miles from village Dangauli, where the occurrence is said to have taken place. The report is to the effect that between 1 and 2 A. M. when the complainant, his brother-in-law (P. W. 2) and his servant Baljore (P. W. 4) were sleeping on separate cots in the open courtyard in front of the residential house, they were awakened by the intrusion of 14 or 15 persons armed with lathis and spears. Some of the dacoits beat the complainant, some of them kept watch on the three persons aforesaid and the others got the entrance opened by one of the female inmates of the house, Mt. Pyari (P. W. 11) the complainant's sister-in-law. Some of the dacoits entered the premises and removed boxes containing ornaments and clothes. The dacoits are also said to have snatched away some ornaments from the neck of the complainant's wife, Mt. Saraswati (P. W. 12). On an alarm being raised by P. W. 11, Surajbali Singh (P. W. 3), Balai Ahir (not examined), Chhotu Singh (P. W. 13), Ramchandra Tiwari (P. W. 6), and Jagdish Singh (P. W. 7) of the village arrived. Some of the dacoits also beat P. Ws. 3 and 6 aforesaid. As more people of the village arrived, the dacoits made good their escape with their booty. It was also alleged that the dacoits had been lighting electric torches in the light of which, as also of a lantern kept burning at the door, the dacoits were recognized and the appellants along with three others of the very same village of the complainant were named as the accused and articles worth Rs. 500 are said to have been looted away. The three appellants belong to the neighbouring village called Alipur. The Sub-Inspector (P. W. 14) arrived at the place of occurrence at 5 A. M. When he reached the spot, the complainant gave a list of stolen property (Ex. P-2). The Sub-Inspector inspected the locality and found things scattered here and there. He also found a lantern hanging at the door of which he took possession. About three furlongs to the west of the house of the complainant he found three boxes and some torn pieces of cloth. He took possession of them and drew up recovery lists. He sent the injured persons, namely, the complainants (P. W. 1), SurajBali Singh (P. W. 3) and Ramchandra Tiwari (P. W. 6) who all had simple injuries caused by a blunt weapon like a lathi. He interrogated the complainant and the other eye-witnesses, namely P. Ws. 2, 3, 4, 6, 7, 10, 11, 12 and 13 and got the statements of some of those witnesses recorded under S. 164, Criminal P. C. Ultimately he submitted a charge-sheet as a result of which the six accused named in the first information report only were placed on their trial after the necessary commitment proceedings. The charge against the six accused persons placed on the trial was in these terms:- "That you on or about 3/4 night of June 1951 in vil. Dangauli, P. S. Mohammadabad at about midnight committed dacoity at the house of Kalapnath and thereby committed an offense punishable under S.395, I. P. C., and within the cognizance of the court of session, Azamgarh. And I hereby direct that you be tried by the Court on the said charge". The defense of the accused persons as disclosed in their examination under S. 342, Criminal P. C. and in the cross-examination of the prosecution witnesses was that they all had been implicated falsely on account of a pre-existing enmity between the complainant's party to which belonged the prosecution witnesses who figure as eye-witnesses to the occurrence and that of the accused Bhirghu Singh, who was one of the three convicted persons acquitted by the High Court. The appellant who belong to the adjoining village, Alipur, also suggested the same defence. Their case was that as they had helped Bhirghu Singh in his dispute and litigation with the party to which the complainant belongs they had also been falsely implicated.
(3.) It is noteworthy that only six persons named in the first information report were placed on their trial, though 14 to 16 persons are said to have participated in the dacoity. None of the unknown dacoits was placed on trial, apparently because none could be identified by any of the eye-witnesses during the investigation. The charge as framed does not refer to any other person besides the six accused to have concerned with the occurrence. Besides the complainant and the inmates of his house P. Ws. 2, 4, 11 and 12, the eye-witnesses were Surajbali (P. W. 8), Ramchander (P. W. 6), Jagdish (P. W. 7) and Jagtu (P. W. 10).;