B.P.Singh - (1.) THIS is an appeal against the judgment and order dated 26-4-1979 passed by Shri M. M. H. Siddiqi, Additional Sessions Judge, Gyanpur, Varanasi, in Sessions Trial No. 42 of 1978 under sections 395/397 IPC and Sessions Trial No. 5 of 1979 under section 25 of the Indian Arms Act.
(2.) THE case of the prosecution may briefly be stated as follows :- Nand Lal PW 1 son of Hoob Lal PW 4 is a resident of village Matakipur P. S. Aurai district Varanasi. THE houses of witnesses Jawahir Lal PW 2 and Ram Nath PW 3 are situate near the house of Nand Lal PW 1. On the night of 29/30-5-1978, a dacoity was committed in the house of Nand Lal PW 1 in which five dacoits are said to have participated. During the course of dacoity, one of the dacoits had placed a country made pistol upon the chest of Nand Lal while the latter was sleeping outside the door of his house. Hoob Lal was also brought there. Nand Lal and his cousin brother Jata Shanker raised alarm which attracted witnesses Jawahir Lal PW 2, Chaniya Prasad Kahar, Ram Nath 4, Ram Deo Dhobi, Chaukidar Vikrama and others. THE witnesses, and the villagers had come upon the house of Nand Lal PW 1 and were: carrying torches and lantern with them. One of the dacoits was armed with spear while the remaining four dacoits were armed with pistols. On the arrival of the witnesses and the villagers, the dacoits started firing and attempted to escape. While the dacoits were escaping, the villagers succeeded in apprehending one dacoit along with his pistol. THE remaining four dacoits managed to escape. Accused Shridhar and Laxmi Kant, who are residents; of the same village, Matakipur, were among the dacoits. THE dacoit, who was apprehended on the spot, had given out his name as Dharam Raj. On making enquiries, Dharam Raj had given out that the remaining two dawks were Raja Ram and Jai Shanker. After the departure of the dacoits from the scene of occurrence, Nand Lal proceeded towards the police Station, Aurai where the FIR Ext. ka 1 was lodged on 29-5-1978 at about 10.50 P.M. Head Constable Sahja Nand PW 5, who was posted in police station, Aurai on 29-5-1978 had received the report Ex. ka 1 from Nand Lal and had prepared the FIR Ext. ka 2. He had also made G. D. entries Exts. ka 3 and ka 4 about the commission of the crimes. According to Sahja Nand, PW 5 S. I. Akhlaq Ahmad had ordered him to register the case against accused Dharam Raj under section 25 of the Indian Arms Act and he had made the relevant G. D. entry Ext. ka 5. S. I. Akhlaq Ahmad, PW 7 who was posted in P. S. Aurai from May 1978 to July, 1978 was the Investigating Officer in this case. He had investigated the crime relating to the offence under sections 395/397 IPC. He had reached the scene of occurrence on the same night and had carried out the routine investigation. He had also taken Dharam Raj in his custody from the custody of the villagers and had also recovered the country made pistol from him. After routine investigation, a charge-sheet Ext. ka 15 was submitted by S. I. Akhlaq Ahmad against all the five accused. S. I. Dina Nath Singh PW 6 conducted the investigation against Dharam Raj under section 25 of the Indian Arms Act. After completing the investigation and after obtaining sanction from the District Magistrate, Varanasi, a charge- sheet Ext. ka 8 was submitted by him against the accused Dharam Raj.
(3.) BOTH the Sessions Trials were tried together by the Additional Sessions Judge, Gyanpur. At the Trial, ;all the accused pleaded not guilty and claimed to be tried. The case of the accused was that they were falsely implicated in this case out of enmity. Dharam Raj stated that he was working as Halwai at the shop of Laxman and on account of non-payment of wages some altercation took place and hence he was falsely implicated in this case at the instigation of Laxman. In all the prosecution examined seven witnesses i.e. Nand Lal PW 1 Jawahir Lal, PW 2, Ram Nath Gupta PW 3, Hoob Lal PW 4, Sahja Nand PW 5, Dina Nath Singh PW 6 and Akhlaq Ahmad PW 7 in the case. The accused did not lead any evidence in their defence.;