- (1.) G. K. Mathur, J. This and the connected appeals arises out of the judgment and order dated 28th February, 1978 passed by Sri J. D. Chaturvedi, Additional Sessions Judge, Varanasi in Sessions Trial Nos. A-193 of 1975 and 111 of 1976, convicting the appellants for the offence punishable under Sec tion 396, I. P. C. and sentencing each of them to undergo life imprisonment.
(2.) THE case of the prosecution, in brief, is that at about 2 A. M. on 23rd of March, 1975 Raj Bali, complainant, who was sleeping in his Marha situate to the east of his house in village Dhananjaipur, P S. Baragaon district Varanasi, woke up due to barking of dogs and saw six or seven persons, -armed with pistols, guns and lathis, coming to his house. THEy flashed their torches and caught hold of his father Chhama Nand Rai and his cousin brother, Prem Shanker, who were sleeping on the heap of harvested wheat crop kept in between his house and the Marha, Raj Bali raised alarm which attracted Hausla Prasad (P. W. 2), Samarjeet Upadhyaya (P. W. 3), Sheo Nath (P. W. 4) and several other villagers who came there armed with lathis, spears and gandasas. THEy had also torches with them and one of the villagers is said to have set fire to the Marha of Raj Bali Rai which caused sufficient light, to is also said that a lantern was also burning in the outer verandah of the house of the complainant. Some of the dacoits entered the house of the complainant by climbing over the roof. According to the prosecution case, one of the dacoits, who had covered his face, was Mani Shanker, resident of village of the complainant, as during the course of dacoity, cloth by which he had covered his face got loose. Smt. Dulari, who had come out of the house, died by the fire arm shot of the dacoity. Raj Bail Rai, Chhama Nand Rai, Naresh Prasad, Ram Nawal, Smt. Silwant, Ram Abhilakh, Shiv Nath Misra and Mahendra Pratap Upadhyaya received injuries at the hands of the dacoits during the course of dacoity. It is alleged that one Ram Nawal caused spear injury to one of the dacoits and the villagers hurled brickbats and scuffled with the dacoits. THEre after the dacoits left the spot with the booty taken out from the boxes. THE villagers, however, chased them and claimed to have succeeded in apprehending three after causing injuries to them, while the remaining four dacoits made their escape good. Out of the three dacoits, who had been apprehended, two died at the spot and the third one disclosed his name as Prayag Dutt. He had in his possession a country made single barrel gun and five live cartridges. He allegedly disclosed the names of the dacoits who had there and also of those who had succeeded in making their escape good as Mani Shanker, Ram lochan Singh afld Ram Chhattar Singh but in respect of the particulars of the fourth escaped one, he pleaded ignorance. The first information report was lodged by Raj Bali Rai, complainant, at 6. 05 A. M. on 23rd of March, 1975 at police station Bara Gaon district Varanasi. P. W. 12 Sri Hardiya Nand Singh, the Station Officer of the police station, in whose presence the said report was lodged, started investigation of the case. After recording the statements of the complainant, Raj Bali Rai, and other injured persons, who had accompanied Ram Bali Rai to the police station, he sent all the injured persons for medical examination to the Primary Health Centre, Bara Gaon, where Dr. Avinash Chandra Rai (P. W. 13), Medical Officer, examined the injuries Raj Bali Rai, Chhama Nand Rai, Hausala Prasad, Ram Nawal, Smt. Silwanti, of Ram Abhilakh, Shiv Nath Misra and Mahendra Pratap Upadhyaya from 7. 30 A. M. to 9. 00 A, M. on 23rd March, 1975 and prepared their injury reports marked Ex. Ka. 7-A to Ka-14-A. Sri Hardiya Nand Singh (P. W. 12) reached the place of occurrence at 8. 30a. M. and took in police custody Prayag Dutt, his gun and cartridged with belt from Prem Shanker and sent Prayag Dutt for medical examination. Dr. Avinash Chand Rai examined his injuries at 7. 30 P. M. at Primary Health Centre, Bara Gaon and found the following injuries on his person : 1. Gun shot wound of entry 1-1/4" x 1/2" X four matacarpal on the palmer aspect of left hand near the base of left ring finger. Scorching and tattooing present. 2. Gun shot wound of exit 1/2" X 1/4" X muscle deep on the web of left index finger. 3. Gun shot wound 1" x 1/2" X bone deep on the palmer aspect of distal phalynx of left ring finger. Scorching and tattooing present. Incised penetrating wound 3/4" x 1/2" x 3' on the medical side of right elbow joint directed downwards and medially.
(3.) ABRASION 1" x 1/2" on the front of right knee joint. 4. The injury report prepared by Dr. Avinash Chand Rai is Ex. Ka. 31 P. W.-12 Hardiya Nand Singh took in his possession one country made pistol and seven used cartridges, sample of ash of the burnt Marha and sample of brick-bats at the spot and also the blood stained earth and the ordinary earth and sealed them separately after preparing their respective memos. He sent the dead bodies of Smt. Dulari and the two dacaits, namely, Suresh and Hira Singh under sealed covers for post mortem examination after preparing the inquest reports. He made local -inspection and prepared the site plan. Dr. V. P. Rai, (P. W. 9) conducted the post mortem examination of the dead body of Smt, Dulari and Dr. R. S. Singh (P. W. 8), did the autopsy of dead bodies of Hira Singh and Suresh. Sri Hardiya Nand Singh (P. W. 12) arrested Mani Shanker Upadhyaya on 28th April, 1975. The involvement of Mahendra Singh alias Birendra Singh in the crime in question came to light on 28th April, 1975, Mahendra Singh surrendered in the court of Munsif - Magistrate, Varanasi on 3rd December, 1975. His identification parade was conducted by Sri Sheo Nath Singh Modi, Executive Magistrate, (P. W. 10) on 9th January, 1976 in the District Jail, Varanasi. He has been correctly identified in the said identification parade by Raj Bali Rai (P. W.-l), Hausala Prasad Pandey, (P. W. 2), Samarjit Upadhyaya (P. W. 3), Sheo Nath (P. W.-4) and. one Kashi Nath. 5. The accused persons pleaded not guilty. Prayag Dutt has specifically denied all the allegations made against him and stated that he had come to Varanasi along with some people of his village and that his enemies got him arrested in the day and thereafter he was beaten. He stated that the witnesses deposed against him under the pressure of the police. He also stated that false and fictitious entries were noted by the doctor in his injury report under the pressure of the police.;