- (1.) G. P. Mathur, J. Kalian has preferred this appeal from Jail against his conviction under Section 396ipc and sen tence for imprisonment for life imposed by IInd Additional Sessions Judge, Basti, by his judgment and order dated 24-3-1979 in ST No. 194 of 1976.
(2.) THE case of the prosecution as set forth in the FIR, in brief, is that the first informant PW 2, Rajendra Prasad Misra, was sleeping in the outer verandah of his house in village Pikora, P. S. Dhebarua, in the night of 7/8-1976. His father Ram Lakhan. Surya Nath Pandey and Idris were also sleeping there and a lantern was burning nearby. At about mid-night 6-7 dacoits armed with various weapons came there and started assaulting them. Three or four dacoits entered the house after scaling the wall and opened the door from inside. THEreafter, they started removing various articles like ornaments, clothes, watch, cash money etc. from there. THE first in formant and other family members started raising an alarm on which Bharosey and some others came there flashing their tor ches. THE dacoits fired upon Bharosey who received gun-shot injuries and fell down. After committing dacoity in the house of Rajendra Prasad, they entered the house of Shanker Pradhan. However, as a large num ber of villagers had collected there they could not take away any properly and started fleeing from there. While leaving they shot at Munesar who dropped down dead after receiving gunshot injuries. THE dacoits were seen in the light of lantern and torch. A FIR of the incident was then lodged by Rajendra Prasad Misra at 2. 30 a. m. on 8-1- 1976 at P. S. Dhabrua, wherein details of the property looted was also given. Pw 12, Ram Pal Dubey, Head Con stable, registered the case in the general diary on the basis of the FIR lodged by Rajendra Prasad Misra and prepared the chick FIR. He also prepared other docu ments in connection with the registration of the case. The police personnel of police station Dhibrua then came to the spot, held inquest on the bodies of Bharosey son of Mathura and Munesar son of Ram Nand Yadav. The bodies were sealed and were sent for post-mortem examination. They also took other steps in connection with the in vestigation of the case. The appellant Kal ian, was arrested near the railway line on 19-1-1976, and after making Bapardah he was brought to the police station Dhabrua by Ganga Prasad Tewari, AS1 and was kept in the lock up. An identification parade for the appellant was arranged in District Jail, Basti, on 13-2-1976, but as the witnesses failed to appear, the parade could not be held. Subsequently, the identification parade was held on 27-2-1976, wherein the appellant was correctly identified by 3 wit nesses, namely, Pw 2 Rajendra Prasad Misra, Pw 3 Shankar and Pw 4 Binda. After completing the investigation, Pw 11 Ram Raman Bahadur Singh submitted charge-sheet against the appellant, and 3 other persons, namely, Sultana, Amresh and Agnoo under Section 396 IPC. The learned Magistrate took cog nizance of the offence and committed the case to the Court of Sessions. The learned Sessions Judge framed charge under Sec tion 396 IPC against all the lour accused including the appellant, Kalian. The ac cused pleaded not guilty and claimed to be tried. The prosecution in support of its case examined 12 witnesses, including 5 eye-witnesses of the incident. The accused did not examine witness in their defence. The learned Sessions Judge convicted the appellant Kalian under Section 396 and sentenced him to imprisonment for life. The remaining three accused, namely, Sul tana, Amresh and Angoo were acquitted.
(3.) WE have heard Sri Vinay Saran who has been appointed as amicus curiae for the appellant, learned AGA for the State and have perused the record. P W 2, Rajendra Prasad Misra in his statement in Court gave details of the prosecution case. He stated that he was sleeping in the outer verandah of his house when the dacoits came at about 11. 30 in the night. He had seen the faces of the dacoits in the light of torch and lantern which was kept burning in the verandah. He identified the appellant Kalian, as being one of the dacoits who had com mitted dacoity in his house. He further stated that he had seen the appellant during the course of dacoity and then at the time of identification parade. PW 1 Gauri Shanker was also examined as an eye-wit ness of the incident. He, however, stated that he had become blind subsequent to the commission of the dacoity, as such was not in a position to identify any one in the dock. PW 3 Shanker stated that he was sleeping near his cattleshed when he heard alarm from the house of Rajendra Prasad Misra. He along with some other villagers went there flashing torches. He stated that he had seen the dacoits in the light of torch and lantern. The witness identified the appellant Kalian in the dock and stated that he present amongst the dacoits at the time of incident. He further stated that after the dacoity, he had seen the appellant only at the time of identification parade. PW 4 Binda slated that he was resident of village Pikora and after hearing alarm from the house of Rajendra, he went there and saw the incident while standing on the road. He had seen the dacoits in the light of torch while they were running away. He identified the appellant in the dock and stated that he had seen the appellant at the time of incident and then during the iden tification parade held in jail. The prosecu tion also examined PW 5 Idris as an eye-, witness of the incident. However, this wit ness only identified Amresh, accused, and did not identify the appellant.;