- (1.) THE appellants have been convicted under Section 395, I. P. C. , and sentenced to seven years' rigorous imprisonment. A dacoity was committed on the night between the 11th and 12th february 1949, at the house of Zahari. A report of the incident was lodged at the Police Station, zafrinagar at 9'clock in the morning of 12th February 1949. The report was made by Zahari through Prasadi Chaukidar of the village. In the report it was mentioned that there were fifteen or sixteen dacoits who were armed with guns, spears, lances and lathis etc. A list of the property that was looted, the valuation of which came to about Rs. 2,000/-, was given to the police. Investigation was started and some days after the occurrence the appellants were arrested and were committed to stand their trial in the court of session under Section 395, I. P. C.
(2.) AFTER the conviction by the learned Sessions Judge the appellants have come up to this Court in appeal and it is urged on their behalf that on the evidence their guilt was not made out. The first two appellants Aidal and Babu are represented by Sri Bhagwan Swarup Darbari. No looted property was recovered from the houses of these two appellants. The evidence against them consists entirely of identification by witnesses. Aidal was identified by five witnesses and Babu by three. On 11th March 1949, these two accused along with Azimullah, appellant No. 4, were put up for identification in the District Jail at Budaun. At the time that the identification was held aidal said that Bhim Singh was his sister's husband and knew him from before and the Station officer had shown him to the other witnesses. Azim Ullah accused said that he was by profession a barber and he had several times visited the houses of the witnesses in marriages and on other occasions. Azim Ullah is a resident of village Raj Thal, Babu of village Dinaura while aidal is a resident of village Bazpur. The dacoity was committed in village Eudhaiti. So none of these three accused were residents of the village where the dacoity had been committed. The village of Budhaiti is in the circle of Police Station Zafrinagar while Raj That is in the circle of police Station Islamnagar. Dniaura is in the circle of Police Station Gunnaur and Bazpur is in the circle of the same Police Station.
(3.) SEVEN witnesses were asked to identify these accused and the accused were mixed up with thirty others. The result of the identification was as follows : the accused Aidal was identified by Zahiri, Srimati Rewati, Lakhpat, Chetram and Bhim Sen. Babu accused was identified by Srimati Rewati, Lakhpat and Bhim Sen. Azim Ullah accused was identified by Zahiri, Chetram, Jamal Chaukidar and Parshadi. At the time of identification of the accused Zahiri made one mistake. Srimati Rewati made one mistake, Chetram made two mistakes, Bhim Sen made one mistake and the other witnesses made no mistakes.;