PANKAJ NAQVI,J. - (1.) This criminal appeal assails the judgment and order dated 7.7.1993 passed by Special Judge, D.A.A, Hamirpur in Special Case nos. 76, 80 and 129 all of 1982, convicting/ sentencing the appellants under Section 394 IPC to 5 years R.I, under Section 302/34 IPC to life and appellant no.1/ Mullu under Section 411 IPC to 2 years R.I. The prosecution case is as under: - (A)PW-1/ the informant, on 29.3.1982, was sleeping along with his family members in a room and in the adjoining room his relatives (who were on a visit to spray DDT in his village) from village Sisolar were also sleeping. Around 1:00 A.M, 3-4 unknown persons intruded into the house started looting the articles, which was resented by the mother (victim) of the informant (with the help of a ballam), one of the accused fired a shot from his country made pistol, which hit the mother of PW-1, who fell on the floor. PW-1 along with his wife and sister came out of the house, cried for help, co-villagers arrived, but the accused managed good their escape and while doing so smashed the glowing bulb in the courtyard as also a lighted bulb installed at the chakki (flour mill) outside the house of PW-1. The FIR (Exbt. Ka-10) dated 29.3.1982 also alleged that the mother (victim) had expressed dismay by saying that "Lala, what you are doing and why at her house". PW-1 also alleged that he had identified the assailants in a lighted bulb and can identify on being confronted. The FIR contained a list of looted articles / ornaments. (B) During investigation on 31.3.1982 at the pointing out of accused Mullu a recovery of looted radio and Rs.50 in cash was made from his house in presence of two named witnesses, which he allegedly handed over to his brother, memo of recovery is Exbt. Ka-9, on the same day recovery of silver ornaments along with a blue plastic purse over which "Jaiveer" (PW-1) was scribed was effected from the haystack kept outside the house of accused Raj Bahadur in presence of his mother co-accused Smt. Halki, who was aware of the hidden items, but had been instructed by her son not to divulge the presence of said article, memo is Exbt. Ka-12. On 13.4.1982 at the pointing of accused Raj Bahadur recovery of a lota with the name of "Rajju Prasad Prajapati Village- Makraon" along with a plate both utensils were of metal called "Phool", as also a gun of 12 bore, were taken out after digging one foot of soil at the backyard of the house of accused Raj Bahadur. Recovery of gun gave rise to an FIR, as Case Crime no. 70 of 1982, under Section 25 Arms Act against accused Raj Bahadur also. (C)After completion of investigation, charge-sheet was submitted and case was committed to the Sessions. Charges under Sections 302 / 34 , 394 , 397 and 411 IPC were framed against the accused persons, to which they denied and claimed trial.
(2.) The prosecution in order to establish its case examined PW-1, an eye-witness / the informant, PW's-2 and PW-3 are injured witnesses, former a servant to PW-3, who both saw the accused coming out of the house of PW-1. PW's 4 and 5 are relatives of PW-1, who all turned hostile by refusing to identify the assailants. PW-6 is the Executive Magistrate, who conducted Test Idendification Parade of accused Mullu and Raj Bahadur at the District Jail on 5.5.1982, as also the recovery of incriminating articles from their possession. PW-7 is an eye-witness to the second occurrence, which took place at the Chakki. PW-8 is a police witness to the alleged recoveries from the house of accused Raj Bahadur. PW-9 is the medico, who examined the injuries of PW's-2 and 3. PW-10 is the medico, who identified the signatures of the author of the autopsy (Ext. Ka-6). PW-11 is the Head Moharrir, who proved the check FIR (Ext. Ka-10) as also relevant entries in the G.D. The court examined CW-1 as a police witness, who filed charge-sheet against all the accused persons.
(3.) Accused in their statements denied their involvement and claimed false implication on account of local village factional politics.;