Alok Singh, J. -
(1.) AT the outset, it is pertinent to mention here that CRJA No. 47 of 2010 is not on board. Since the same is also arising out of same impugned judgment and order dated 08.07.2010 passed by Additional Sessions Judge, Rishikesh, District Dehradun in Sessions Trial No. 41 of 2008 whereby appellants were convicted for the offences punishable under Section 395, 397, 412 IPC and appellant Raju Mandal was also one of the accused in the said trial, so in the interest of justice, this Court summoned this case and appointed Mr. Vishwadeepak Bisen, as Amicus Curiae for the appellant Raju Mandal, who is ready to argue the matter instantly. It is also pertinent to mention here that appellants Jalil, Zaheed and Sakoor have preferred appeal from jail bearing No. CRJA No. 50 of 2010 and have also filed appeals in their individual capacity bearing Nos. CRLA No. 172, 171, 170 of 2010, so there is no need to appoint any Amicus Curiae in the CRJA No. 50 of 2010, as Mr. Kurban Ali is present in the Court and ready to argue the appeals on their behalf. All these appeals are arising out of judgment and order dated 08.07.2010 passed by Additional Sessions Judge, Rishikesh, District Dehradun in Sessions Trial No. 41 of 2008 whereby appellants were convicted for the offences punishable under Section 395, 397, 412 IPC and sentenced to undergo 10 years rigorous imprisonment and to pay fine of Rs. 10,000/ - each and in default, to further undergo six months imprisonment on each count.
(2.) BRIEF facts of the present case, inter alia, are that P.W. 2 Suman Joshi lodged an FIR with police station Rishikesh on 15.10.2007 at 06.45 a.m. to the effect that her husband was serving in Japan while she was residing in house No. 35, Ashutosh Nagar, Rishikesh along with her children; in the intervening night of 14/15.10.2007 at about 02.00 a.m., six miscreants entered into her house, after breaking the grill of window; one of them was armed with country made pistol while other miscreants were armed with knife and on the point of knife, miscreants overpowered and then pushed her, her children, her tenant Mukesh Kirsali and her driver in a room and threatened to kill them, in case, they make noise; two miscreants remained in the room while four of them looted ornaments of gold and silver, Rs. 8,000/ - cash from her room and Rs. 31,000/ - cash and gold jewellery, three mobile sets from the room of Mukesh Kirsali; miscreants had disconnected the phone by pulling out wire thereof; after committing dacoity, they had put a lock from outside; after dacoits left the place, their neighbours heard their noise and came there for their rescue and broke the lock of room and released them. From the side of prosecution, Mahipal Singh Rawat P.W. 1, Suman Joshi P.W. 2, Mukesh Kirsali P.W. 3, Vijay Laxmi P.W. 4, Pradeep Pant P.W. 5, Om Prakash Arya P.W. 6, Rakesh Rawat P.W. 7, Sheesh Pal Singh P.W. 8 and Constable Sunil Kumar P.W. 9 were examined.
(3.) IDENTIFICATION parade of the appellants was held on 01.03.2008 in District Jail, Dehradun in the presence of Magistrate. P.W. 2 could identify only appellant Zaheed but could not identify others; P.W. 4 Vijay Laxmi, mother -in -law of P.W. 2, failed to identify anyone; P.W. 3 Mukesh Kirsali tenant of P.W. 2, failed to identify anyone; as mentioned in Exhibit A -3.;