VINOD PRASAD, J. - (1.) THE sole appellant Lekhraj s/o Pan Singh, r/o village Naugavan, P.S. Kasganj, district Etah has knocked the door of this Court under section 374(2) Cr.P.C., by preferring instant appeal, being aggrieved by his conviction under section 396 I.P.C. and impose sentence of seven years R.I. for that charge recorded by Vth Additional Session's Judge, Aligarh vide impugned judgment and order dated 3.2.1982, passed in S.T. No. 88 of 1980, State v. Lekhraj and another, PS Gangiri, District Aligarh. By the impugned judgment Trial Judge has acquitted another co-accused Chandra Pal.
(2.) STATED briefly, prosecution allegations were that in the intervening night between 31st May, 1979 and 1st June. 1979, at about 12.30 a.m., in village Nagla Khaggu, 10 or 11 dacoits committed dacoity in the house of informant P.W.2 Tota Ram armed with firearm, knife and blunt objects, when informant P.W.2 Tota Ram, his brother Munshi Lal, were sleeping outside their house and their sons Hari Singh P.W.3, Om Prakash P.W.5 and Soran P.W.4 were sleeping on the roof and Ashrafi, wife of informant, Veera Devi wife of Munshi Lal, both daughter-in-laws, wives of Om Prakash and Hari Singh were sleeping inside the house. During course of dacoity, women folk of the house were belaboured, who had shrieked on which house inmates and other villagers were awakened. Dacoits were in the attires of pant, shirts, trousers and dhoti. They had entered into the house from backyard staircase. A lantern was hanging in the covered courtyard (Agan), which facilitated identification of the dacoits. Terror striken Sri Devi, informant's daughter, had opened the front door. Brother of informant, Munshi Lal, picking up a club, endeavour to enter into the house, on which he was shot at by the dacoits from inside the house causing him fatal injury on front of his chest resulting in his instantaneous death. Informant meanwhile, had put the heap of straw stacked in Tilak Singh's precinct to fire, because of which flames sufficient for identification of dacoits illuminated the scene of the incident. Witnesses had identified the dacoits in the light of flames and torch, which was carried by Hari Singh, s/o informant. After committing dacoity, dacoits escaped from the spot. Amongst the dacoits informant and other inmates had identified three of them namely, Naubat, Kanchan Singh, Ramveer @ Deena. Rest of the dacoits could be identified, if produced before the witnesses. Informant Tota Ram P.W.2, got FIR Ext. Ka-2, scribed from Foran Singh and after covering a distance of four miles south, went to the police station Gangiri and lodged his FIR the same morning on 1.6.1979 at 7.00 a.m. against those three named and rest unnamed dacoits. Constable Clerk Om Prakash on the basis of Ext. Ka-2 prepared Chik FIR Ext.13 and GD entry Ext Ka-12. Investigation into the crime was commenced by Banwari Lal Gautam S.O. P.S. Gangiri P.W.7, who conducted spot inspection prepared site-plan Ext.Ka-5. I.O. also conducted inquest on the cadaver of the deceased by preparing inquest report Ext. Ka- 6. Burn ashes were collected by the I.O. vide Ext. Ka-7. In respect of lantern and torch, Ext. Ka-8 was prepared. On 1.6.1979 acquitted accused Chandra Pal was arrested at 6.30 p.m. from the forest of village Chitansi and from him, some looted articles were recovered regarding which a recovery memo was prepared but the same does not find place on the record of the Trial Court Site-plan regarding the arrest of said accused Chandra Pal is Ext. ka-9. On 26.6.1979, appellant Lekhraj was arrested from Neem River Bridge at 3 p.m. and was put under veil. GD entry regarding arrest of these-accused persons was exhibited as Ext. Ka-10 and Ka-12. These accused persons were dispatched to District Jail, Ali- garh vide GD entry Ext. Ka-14 and Ka-15 dated 4.6.1979 at 8.30 a.m. and 27.6.1979 at 7.30 a.m. respectively. Further investigation into the crime was conducted by S.O. Sher Singh P.W.6, who concluding the investigation had submitted two charge-sheets against both the accused Lekhraj and Chandra Pal, which were Ext. Ka-3 and Ka- 4. Post-mortem on the corpse of the deceased was conducted by Dr. L.K. Shukla P.W. 1 on 2.6.1979 at 3 p.m. Autopsy report has been proved by P.W. 1, as Ext. Ka- 1.Doctor had found post-mortem staining present, mouth and eyes closed and rigor mortis passed off from the body. On the internal examination, doctor had noted that valves and peritoneum were lacerated and cavity contained blood, stomach and small intestines were empty and lacerated, gases and feacal matter were present in the large intestine. In the estimation of the doctor, cause of death was shock and haemorrhage. On external examination, doctor has noted following injury on the cadaver of the deceased: "Lacerated wound of gun shot on the left side abdomen. 4-1/2 below left nipple at 6 O' clock position. Margin Black, Omentum coming out. Size 1" x 1" cavity deep."
(3.) ACCUSED persons were summoned on the basis of aforementioned charge- sheets and finding their case triable by Session's Court, it was committed and was registered as S.T. No.88/1980, -State v. Lekhraj and anther. Vth Additional Session's Judge, Aligarh charged both the appellants under section 396 IPC on 3.6.1980. Chandra Pal was separately charged on the same day for offence under section 412, IPC. Both the accused persons denied the charges, therefore, in an attempt to establish their guilt, their prosecution com- menced during course of which, prosecution examine eight witnesses out of whom informant P.W.2 Tota Ram, P.W.3 Hari Singh, P.W.4 Soran, P.W.5 Om Prakash were the fact witnesses. Formal witnesses included P.W.1 Dr. L.K. Shukla, P.W.6 second I.O. S.I. Sher Singh, P.W.7 first I.O. Banwari Lal Gautam and P.W.8 Roop Singh.;