R. K. Saksena, J. - (1.) HEARD Sri P. C. Sharma, Advocate, Learned Counsel for the appellants and Sri Kamal Krishna, Counsel for the State.
(2.) EACH of the above named three appellants stands convicted under Section 396 of the Indian Penal Code with a sentence of rigorous imprisonment for a period of ten years, per judgment and order dated 22-2-1979, passed by the, then, V Additional Sessions Judge, Etah, in Sessions Trial No. 70 of 1978. Briefly put, the prosecution story is that Prem Das PW 2 son of Bhopal used to run his sweet stall at the bank of Gangas in village Lehara. Near about sun-set, when the Mela was almost over and he was winding up his business, 10-11 persons came to his shop and asked him to surrender whatever he possessed and give sweets, when Prem Das did not accede to the demand and refused to part with his belongings, one of the criminals moved towards him for making an assault. Thereupon, Bhopal, father of Prem Das took up a lathi to attack that miscreant and then one of the miscreants fired a shot, thereby killing Bhopal and all ran away. The report of the incident was made at the police station Soron. The crime was registered under Section 147 and 302/149 IPC. No body was named in the report as culprit. The police arrested these appellants on 17th February, 1977. They were put up for identification in District Jail on 17th April, 1977 and after getting the result of the identification parade, the Investigating Officer submitted a charge-sheet against them, as a consequence whereof they were committed to the Court of Session. The Learned Sessions Judge in the first instance, framed charges under Section 147 and 302/149 IPC against these appellants, and later on, after having entertained a feeling that the provisions of 396 of the Indian Penal Code were attracted, a charge under Section 396 of the Indian Penal Code was also framed.
(3.) ALL the accused denied the accusations and pleaded not guilty, attributing their false implication in the crime at the instance of police. Accepting the identification evidence of Prem Das, Tika Ram and Balli, PW 1 to PW 3 respectively, the Learned Trial Judge found that the appellants were participants in the commission of the crime of dacoity and, therefore, he has convicted and sentenced them as stated at the outset. Feeling dissatisfied with the decision, all the accused have come up in appeal.;