- (1.) This appeal has been preferred by the three appellants Rajjan, Kodauwa, and Sukhbir Singh against their conviction under Section 395 I.P.C. and imposed sentence of 5 years R.I. recorded by 1st Additional Session's Judge, Banda in S.T. No. 57 of 1979, State v. Gyanendra Prasad connected with S.T. No. 291 of 1979, Statev. Sukhbir vide impugned judgment and order dated 22.5.1981. Pending their appeal, two of the appellants Rajjan and Kodauwa Ahir expired and, therefore, their appeals were abated vide order dated 4.5.2007. Encapsulated facts and prosecution allegations against the appellants were that 14 to 15 dacoits committed dacoity on 14.2.1976 at 12.30 p.m. at the house of informant Raja Ram while he was sleeping. During the incident, Raja Ram and mother were assaulted. Incident was witnessed by them in the light of lantern, torch and the moon light. Dacoits, had entered in the room of the informant after breaking the main entrance door with the help of an axe. One of the dacoit was armed with a gun and rest were armed with blunt object and axe. List of looted articles was appended alongwith F.I.R. vide Ext. Ka. 1, which was scribed by Bhagat Singh Yadav. The F.I.R. was registered at the Police station as Crime No. 22 of 1976 under Section 395, 397 I.P.C. Usual investigation ensued and ultimately the accused were charge-sheeted. Finding their case triable by Session's Court, it was committed to the Session's Court. Learned trial Judge charged the appellants under Sections 395 and 397 I.P.C. which charges were denied by accused, who claim to be tried.
(2.) Prosecution in an effort to anoint appellants' guilt examined in all 13 witnesses, out of whom informant Raja Ram (P.W. 1), his brother Mahraj (P.W. 2), Ram Kali (P.W. 3), Keshav Prasad (P.W. 4), Roop Rani (P.W. 7) were fact witnesses. Rest of the formal witnesses included P.D. Srivastava (P.W. 5) Executive Magistrate, (who had got conducted the identification parade of the accused) Dr. P.N. Dwivedi (P.W. 6), who had medically examined Smt. Yasudha and Raja Ram (P.W. 1) on 15.9.1976 at 12.15 P.M. vide their medical examination reports Ext. Ka 5 and Ka. 6. Krishna Kumar Verma (P.W. 9) radiologist, who had X-rayed Smt. Yasudha and had prepared her X-ray plate Ext. Ka. 11 and had given the report Ext. Ka. 8, S.O. Inayat Ali (P.W. 10) first I.O. Who had taken the sources light into custody and had prepared Ext. Ka.2, seizure memo. I.O. had also taken the broken box etc. and had prepared its recovery memo Ext. Ka.3. Torch of Bhagat Singh and Ram Sajiwan were seized vide Ext. Ka. 9. Spot Inspection note was also prepared vide Ext. Ka. 10. Subsequent, investigation was conducted by D.S. Chauhan, who concluding it, had charge-sheeted the accused vide Ext. Ka-11, Ka-12, Ka-13 and Ka-14.
(3.) In their statements under Section 313 Cr.P.C., all the accused had denied incriminating circumstances appearing against them in the prosecution evidence and pleaded a common defence of their false implication.;