VINOD PRASAD,J. - (1.) THIS appeal has been preferred by the solitary appellant Nanka challenging his conviction under section 395 I.P.C. and imposed sentence of seven years RI recorded by VIth Additional Session's Judge, Fatehpur vide impugned judgment and order dated 25.5.81 recorded in S.T. No. 322 of 1979, State Vs. Nanka, relating to P.S. Kalyanpur, District Fatehpur. Shorn of unnecessarily details and stated briefly, prosecution allegations against the appellant, as was scribed in the written FIR Ext. Ka-1 by the informant Banwari Lal (P.W. 1) and later on testified before the trial Court were that on the intervening night between 20/21.9.1977, at 12 mid night, present appellant armed with axe along with his other socio criminises / miscreants Bhola, Ram Pal Pasi, Raghuraj and many others committed dacoity in the house of informant Banwari Lal situated in village Jaiti Khara under police circle Kalyanpur, District Fatehpur. When dacoits had approached informant house, he was sleeping under terracotta thatch in front of his house along with his brother Shiv Bodhan, his wife and children. Flashing of torches by the dacoits woke up the informant. The dacoits snatched away house keys from informant's wife, unlocked the front door and committed dacoity but some of them remained outside on guard. Informant, his brother Shiv Bodhan escaped from the spot and raised alarm, which attracted co-villagers Ram Kumar, Babu Lal, Barati Lal, Vijai Pal, Gajraj and Pancham. Out of them Babu Lal resorted to retaliatory firing from his gun. Rest of the gathered villagers, catapulted stones whereas some of them were armed with lathies. Villagers had flashed their torches to identify the miscreants. In the cross firing, dacoits also sustained injuries. Two of the villagers, Pancham and Ram Kumar, sustained injuries in exchange of fire. Dacoits sustaining gun shot injuries took to their heels but one of their associate dacoit namely Bhola was apprehended at the spot and another lost his life due to sustained injuries. Arrested dacoit disclosed identity of dead miscreant as Ram Pal. In the torch and lantern light, which was burning at the spot, dacoits were correctly identified by the informant, his family members and villagers. Out of the escaped dacoits Raghuraj, who was the maternal nephew (bhanja) of Budhu, a co-villager was identified by appearance and name.
(2.) BANWARI Lal (P.W. 1) scribed incident FIR Ext. Ka-1, carried it to the police station Kalyanpur, at a distance of five miles, and lodged it as crime no. 206, under sections 395, 397 I.P.C. on the following morning 21.9.77 at 7 A.M. against the named and unknown dacoits. SI Babu Ram Yadav (P.W. 4) registered Ext. Ka-1 by preparing chik FIR Ext. Ka-3 and GD entry Ext. Ka-4. Same day at 12.40 P.M., constable Ravindra Shanker and Jai Narayan Singh lodged accused Bhola along with four bundles of looted articles at the police station vide GD No. 25, which too was scribed by P.W. 4. Same day, informant and other villagers intimated the police that two other dacoits, Nanka and Raghuraj were apprehended by them and consequently they were also booked in penitentiary at police station at 8.15 P.M. regarding which, GD No. 36 was scribed by P.W. 4. Aforesaid GD entries are Exts. Ka-5 and Ka-6. Bhola, Raghuraj and Nanka because had also sustained injuries in the incident and hence were sent for their medical treatment and so were injured Raj Kumar and Pancham. S.I. Jagannath Tiwari (P.W. 5) as S.O., P.S. Kalyanpur engineered investigation immediately as crime was registered in his presence and inked interrogatory statements of informant Banwari Lal (P.W. 1), injured Pancham and Ram Kumar and Babu Ram (P.W. 4). Arriving at the incident scene at 8.30 A.M., I.O. arrested accused Bhola. S.I. Udit Narayan was deputed to conduct inquest on the cadaver of the deceased dacoit Ram Pal Pasi and I.O. interrogated other witnesses and subsequently he conducted spot inspection and prepared the site plan map. Blood stained earth (material Ext. 1 and 2) were collected by the I.O., who had also seized blood stained attire of dead dacoit Ram Pal Pasi and had recovered an empty cartridge, which was sealed. Thereafter, I.O. recorded statements of other co-villagers. Torches and lantern were also inspected by the Investigating Officer. Post-mortem examination report of Ram Pal Pasi and subsequently expired accused Bhola were handed over to the I.O. on 16.10.77, who copied them in the CD. On 17.10.77, I.O. recorded investigatory statements of witnesses, who had arrested appellant Nanka and other dacoit Raghuraj. Concluding investigation vide Ext. Ka-7, I.O. P.W. 5 had charge sheeted both the accused Raghuraj and Nanka. Injured Ram Kumar and Pancham were medically examined on 21.9.77 at 8.15 and 8.45 P.M. respectively vide Exts. Ka-17 and Ka-18. Doctor has noted following injuries on their body:- "Ext. Ka. 17 Injuries:- (1) Gun shot wound size 1/10" x 1/10" over left leg about 7" below the left knee joint. Metallic feel is there, Blackening and scorching is there. No wound of exit. The injury is caused by some firearm, No wound of exit. The injury is simple in nature. Duration about half day old. Ext. Ka. 18 Injuries:- Gun shot wound size 1/10" x 1/10" over Right side of back about 3" above the anterior superior lecie spine wound of entry seen blackening and scorching present, metallic feel is there. No wound of exit. The injury is caused by some firearm, simple in nature, wound of exit not seen. Duration about half day old." Appellants Nanka and Raghuraj both were medically examined following day on 22.9.77 at 5.30 P.M. who were brought to the doctor by constable Rama Shanker Tiwari. Doctor has noted following external injuries on their person, vide their medical examination reports Ext. Ka-19 and 16:- Ext. Ka. 19 Injuries:- (1) Lacerated wound 1/2" x 2/10" whole lower lid deep on the middle1/3 of Right Lower lid. Lid has dropped down. (2) Lacerated wound 1/2" x 2/10" whole lower lid deep on the middle 1/3 of left lower lid. Lid has dropped down. (3) Abrasion 2/10" X 2/10" with scalp found on the medial 1/3 of left upper eyelid. (4) Traumatic defuse swelling on the dorsun of Right hand with absent SIC (X-Ray adv.). (5) Multiple gun shot wounds of entrance over an area of upper � of Back of left thigh. Each wound is 1/8" X 1/8" X muscle deep. There is no Blackening or tattooing present. (6) Multiple Gun shot wounds of entrance each 1/8" x 1/8" x muscle deep on the back of upper 1/3 of Right Thigh. No Blackening or Tattooing present. (7) Multiple Gun shot wounds of entrance each 1/8" x 1/8" x muscle deep in the Back of middle 1/3 of Right leg. No blackening or Tattooing present. No pallet is palpable (S-Ray adv.). Conclusion:- Injury from 1 to 4 are caused by Blunt object (pointed) and are kept under observation. (injury of Right Head is accd) Injuries from 5 to 7 are caused by Fire arm and are kept under observation (X-Ray is adv). Duration :- About 1 to 1.1/2 day old (Appr)" "Ext. Ka. 16 Injuries:- (1) Lacerated wound 1/2" x �" x whole lid deep on the middle1/3 of Right Lower Eye lid. Lid has dropped down. (2) Lacerated wound 1/2" x 1/10" x muscle deep on the medial 1/2 of left eye lid (upper) Eye ball NAD. (3) Lacerated wound 1/2" x 1/10" x muscle deep on the medial 1/2 of Right upper eye lid. Eye ball NAD. (4) Lacerated wound 1/2" x 1/4" x whole lid deep on the medial 1/2 of left lower eye lid. Lid has dropped down. (5) Traumatic Defuse swelling on the left elbow with abnormality in shape and absent SIC (S-Ray advised). Conclusion :- Injuries are simple caused by Blunt Object (pointed) injury no. 5 is kept under observation and X-Ray is advised. It is caused by Blunt object. Duration:- About 1 to 1.1/2 days ole (Appr)." Autopsy on the cadaver of the deceased Bhola, which was brought to the doctor by constable Ravindra Sharma and Jai Narayan Singh was performed on 22.9.77 at 1.30 P.M. vide autopsy report Ext. Ka-15. Doctor had found that rigor mortis had passed off from upper limbs and was present in lower limbs. Bhola had an average built body. There was bluish discolouration present over his abdomen. Following ante mortem injuries were noted by the doctor in his post-mortem examination report:- "ANTE MORTEM INJURIES 1. Abrasion 2" x 1" on both knee anteriorly. 2. Contusion 3" x 2" on left forearm lateral (P.T.) 3. Contusion 4" x 2" on lower part of chest artering anteriorly. 4. Contusion 4" x 3" on lower part of Right fore arm with fracture of Humerus at lower 1/3 5. Contusion 3" x 1.1/2" on superior aspect of right (P.T.) 6. Contusion 2" x 1" on superior aspect of left (P.T.) 7. Contusion 2" x 1" on left side of fore head. 8. Contusion 2" x 1" on left eye with red con (P.T.) 9. Contusion 2" x 1" on anterior side of (P.T.) 10. Abraded contusion 2"x2" on right back (P.T.) 11. Abrasion 2"x 2" on right thigh. 12. Contusion 2" x 1" on f left scapular region 13. Contusion 3" x 1 1/2" on right infra scapular (P.T.) 14. Contusion 3" x 2" middle of back. 15. Ten gun shot wounds of entry each 1/10" x 1/10" on front (P.T.) left shoulders and arms in an area of 5" x 3" no Blackening no tattooing margin inverted and lacerated directed from (P.T.) to back. (ii) small gun shots recovered from muscles of the are. 16. Six gun shot of wounds of entry each 1/102 1/10" x 1/10" on (P.T.) (P.T.) (P.T.) 6" x 5" morgin inverted and lacerated No. Blackening No tattooing direction from right front to left (P.T.) gun shot recovered from right (P.T.) One from left lung four from muscles (P.T.) 17. Two gun shot wound of entry each 1/10" x 1/10" on right fore arm in an area of 3" x 2" on front side of the level of injury No. 16 margin inverted and lacerated. Two gun shot recovered from muscle of the area. 6. Bone and joint:- Fracture lower end of Right Humers. 7. External organs of generations:- N.A.D. 8. Addl Remarks:- NIL"
(3.) ON the internal examination, doctor has noted that there was a fracture of the lower end of right humerus and from his right and left lung, gun shot pellets were recovered. His spleen was lacerated. In doctor's estimation, death had occasioned due to sustained injuries. Cadaver of dacoit Ram Pal Pasi was post-mortemed on 23.9.77 at 11 A.M. According to the doctor, he was 30 years of age and rigor mortis had passed off from his both the limbs. His abdomen was distended and blisters were present all over the body. Doctor has noted following external injuries on his corpse:- "1. Three gun shot wounds of entry on left front of back (P.T.) an area of 2" x 1 1/2". No blackening, No tattooing present, margin inverted (P.T.)...................... three shot recovered from muscle of the area. 2. Two gun shot wounds of entry on superior side of left shoulder (P.T) inverted. Lacerated No blackening tattooing present. Two shots recovered from (P.T)........ each wound is 1/10" x 1/10" in an area of 2" x 2". 3. Three gun shot wounds of entry each 1/10" x 1/10" on left side of chest 3" lateral and below to left nipple. Three shots recovered from left lung One L.B. 2 0 .Z. blood dried present in lung cavity. 4. Two gun shot wound of entry 1/10" x 1/10" x abdomen cavity deep 4" (P.T.) lateral to umbilicus margin inverted and lacerated no blackening tattooing present. Two shots recovered from stomach. Stomach and small intestine punchured at too places. 5. Bones and joints: NAD 6. External organs of generations:- NAD 7. Addl remarks :- Nil" Internal examination revealed that laryux was fractured, lungs were pierced with three gun shot injuries. Stomach was empty and lacerated. Small intestine was empty and lacerated and death had occasioned because of the firearm injuries sustained by the said dacoit. Charge sheeting of the accused resulted in their summoning and finding their case triable by Court of Session's, it was committed to the Session's Court where it was registered as S.T. No. 322 of 1979. VIth Additional Session's Judge, Fatehpur charged the appellants under section 395 I.P.C. vide order dated 7.5.80, which charges were denied by both the charge sheeted accused, present appellant Nanka and Raghuraj, who both desired to be tried and, therefore, to anoint their guilt, trial procedure was undertaken. Pending trial, appellant Raghuraj was done to death and, therefore, only present appellant Nanka faced entire trial. For proving it's case, prosecution tendered oral testimonies of five witnesses, out of whom informant Banwari Lal (P.W. 1), Ram Kumar (P.W. 2), Pancham (P.W. 3) and Babu Ram (P.W. 4) were the fact witnesses. SI Babu Lal Yadav and SI Jagannath Tiwari (P.W. 5) were the two formal witnesses, who were examined in the trial.;