SURENDRA SINGH,J. - (1.) THE challenge in this appeal is the judgment and order dated 30.1.1982 passed by 3rd Additional Sessions Judge, Mathura, in ST No.43 of 1981 and ST No.140 of 1981 convicting and sentencing the appellants under Section 396 IPC for the life imprisonment.
(2.) SHORN of unnecessary details, briefly stated facts of the case are as follows: According to the prosecution on 16.12.1980, at abut 9.10pm, at police station Sahpau, Mathura situated at a distance of one and a half miles to the north of village Nagla Sewa of Dhandhau where the dacoity is alleged to have taken place at about 6.45pm in late morning on the same day, the Informant Lakshman Singh lodged a written report (Ex Ka-1) purported to have been scribed by one, Phulwar Singh of Nagla Sewa, P.S. Sahpau, District Mathura. As gleaned from the FIR, on the date of incident in the evening, at about 6.45pm, said Lakshman Singh, his father (Sugreev Singh), Dal Chand S/o Than Singh, Ramvir S/o Ram Prasad, Satyavir S/o Pyare Lal and Bachchi S/o Shobha Ram were sitting around the fire in front of the exit of their house, then about seven or eight persons came from the side of the village Dhandhau and surrounded them at once and opened fire in order to frighten them thereupon the Informant caught hold appellant no.2 who had fired the shot with a Pauna, knocked him on the ground and at the same time appellant Karua gave a lathi blow on the head of the Informant so that appellant no.2 (Mahipal Singh) was able to free himself from the clutches of the Informant. After having been free, said Mahipal Singh fired another shot at him but unfortunately it struck to Dal Chand in his stomach. During this incident, it is alleged that the third miscreant struck his father on the latter's head with the Pharsa while the remaining miscreants entered into the house and started looting whereupon the Informant and others raised alarm on which one Kaptan Singh S/o Siya Ram ignited the fire behind the house and Ram Swaroop S/o Shobha Ram also ignited the fire below the Neem tree in front of the house and thus the sufficient light including the lantern light was provided. It is further alleged that one Juginder Singh S/o Lal Singh of the village climbed to the roof of the house and started indiscriminate firing from his licensed gun towards the miscreants with the consequence that miscreants lost courage and fled away towards village Dhandhau and during the course of escape from the spot, they fired again causing injury to one Virendra S/o Hukum Singh. It is further specified that appellant no.1, Karua was wearing pant and coat and had a lathi in his hand and others had country made pistols and guns at the time of incident and that Mahipal Singh was wearing a black coat, a white Pajama and had a tie on and a muffler around his neck. It has been given out that the miscreants were seen and recognized well in light provided by fire and lantern. It has also been given out that the dacoity lasted for about 20 minutes. On the basis of the said written report, a formal FIR (Ex Ka-16) was prepared by the then head moharrir Mewa Ram and consequently an entry was made in G.D. at serial no.28, both contained signatures of Radhey Shyam (PW-8). On the basis of formal FIR (Ex Ka-16), a case under Sections 395/397 IPC vide crime No.192 of 1980 was registered. The injuries sustained by Dal Chand, Virendra, Sugreev Singh and Lakshman Singh were noted and they were sent for treatment and medical examination alongwith concerned 'chiththi majrubi' accompanied with Constable, Shripal Singh to PHC Sahpau, Mathura. Injured, Dal Chand lost the battle of his life in the mid night of 17.12.1980. Consequently, the offence was altered to Section 396 IPC from 395/397 IPC vide G.D. entry (Ex Ka-18).
(3.) SRI Durga Prasad Sharma (S.I.) was entrusted to prepare inquest of the dead body of Dal Chand. S.O. , Radhey Shyam was given a list of looted articles (Ex Ka-2) by the Informant, Lakshman Singh on the spot on the same day in the morning i.e. 17.12.1980. He recorded the statement of witnesses Lakshman Singh (PW-1), Sugreev Singh (PW-3), Satyavir (PW-4) and Om Pkash (PW-5) on 17.12.1980. He made a spot inspection and prepared site plan (Ex Ka-19). He collected samples of ash from two different places material Ex-I from behind the house and material Ex-II from the other places and prepared memo (Ex Ka-20). He collected 14 blank cartridges and 7 wads from the spot and prepared memo (Ex Ka-21) and sealed them (Ex-III to Ex-XVI and XVII to XXIII). He further examined lantern of Sugreev S/o Nihal Singh and found it in order and prepared memo cum supurdginama (Ex Ka-22) and handed it over back to Sugreev. He recognized writing and signatures of S.I. Sri D.P. Sharma on papers concerning inquest report of the dead body of Dal Chand (Ex Ka-7 to Ka-13). Exts. Ka-6 and Ka-14, copy of written FIR apparently sent alongwith other papers at the time of dispatching the dead body for post mortem examination which were duly received by the medical officer concerned and the genuineness whereof has been admitted.;