N.N.Sharma - (1.) THERE are two appellants in this appeal. Both the appellants are residents of village Kunda, Police Station Maldaur, District Bijnor. Both the appellants were convicted under Sec. 392 of IPC and sentenced to three years R.I. each. Shera appellant was further convicted under Sec. 411, IPC and sentenced to one year's RI. Both the sentences were ordered to run concurrently on 20-8-77 by Sri M. N. Kulshrestha, learned V Addl. Sessions Judge, Bijnor.
(2.) PROSECUTION story briefly stated is that on 5th October, 73. informant Vijendra PW 2 and Kesho PW 3, his co-villagers wen: returning to their village from Nagina town after shoping. It was at about 7 P.M. when they reached the road infront of grove of one Kundan Singh that the appellants along with their associate a stranger emerged from the grove; two of them were armed with lathis ; one of them possessed a pistol also; they blocked the passage of victims sand asked the victims to handover their articles. Appellants were recognised in light of torches flashed by the bandits. A sum of Rs. 269/- and an umbrella Ext. 1 were robbed from possession of Vijendra. A sum of Rs. 10/- was robbed from Budhco and a sum of Rs. 15/- was robbed from Kesho. After the robbery robbers went towards the grove. Informant narrated this incident to his uncle and father ; Sukharam Singh PW 4 uncle of informant scribed report Ext. Ka 1; the two appellants were named in this report; along with this report informant, Gulsher Singh, Budhoo Singh, Sukhram and Genda went to Police Station Haldaur which is at a distance of three miles from scene of occurrence ; the aforesaid report was made over there at 9.15 P. M.; on the basis of this report first information report Ext. Ka 9 was drawn by head constable Laxman Singh who registered the case in General Diary vide Ext. Ka 6. Writing of Sri Laxman Singh was proved by investigator Sri D. L. Sagar PW 14 who happened to be present at Police Station when first information report was drawn, and who was acquainted with the writing of head constable Laxman Singh. He took up investigation forthwith. Vijendra, Budhoo etc, were interrogated along with constables, Sukhram PW 4 and Gandha Singh and Gulsher. House of Shera was raided in the same night at 0.30 A.M. by investigator. Shera was found asleep. He was apprehended ; currency note of denomination of Rs. 100/- Ext. 2 was recovered from the pocket of his shirt. Umbrella Ext. 1 was found on his cot ; both these articles agreed with the description of the robbed property as detailed in written report Ext. Ka 1. Recovery memo Ext Ka 2 was drawn by investigator ; Jagan was also arrested in the same night; the recovered property was sent to Police Station by investigator through constables, investigator inspected the scene of occurrence and prepared site plan Ext. Ka 3 on 6-10-73 ; another site plan Ext. Ka 4 about the place of recovery was also prepared by him ; on completion of investigation charge-sheet Ext. Ka 5 was submitted against the appellants. Both the appellants in their statements denied their participation in the occurrence ; Shera also denied the recovery of Exts. 1 and 1 from his possession. He alleged his implication to ill-will with informant; he further stated that he had gone to Police Station to lodge a report in connection with a dispute against Vijendra etc. His report was not taken down by Police ; local police was amendable to the influence of Genda Singh, father of Vijendra who happened to be Sarpanch so he was falsely involved in this case. A similar statement was made by Jagan. In defence appellants examined Ranjit DW 1 and Nathoo Singh DW 2 who testified about a dispute amongst Vijendra and appellants in connection with the plucking of guavas from the grove ; the appellants also went to lodge report on Police station in connection with that quarrel. However, their report was not taken down by Police as they learnt from Chunnu and Sarabjit. Appellants were falsely involved in the case. In support of their case prosecution examined five witnesses. I have already referred to the testimony of investigator Sri D. L. Sagar who also claimed to have been present at the time of recovery of Exts. 1 and 2 from possession of Shera and prepared recovery memo Ext. Ka 2 on 6-10-73 at 0.30 A. M. at the house of Shera in village Kunda in presence of Shukhram Singh P. W. 4 and Gulsher Singh. Shukhram Singh PW 4 is the uncle of informant and scribe Of the written report Ext. Ka 1.
(3.) ABOUT the factum of robbery there are statements of Vijendra PW I, Budhoo PW 2 and Kesho PW 3. Out of these witnesses Budhoo Singh and Kesho refused to support the prosecution version about the recognition of appellants during the commission of robbery ; they were declared hostile. Vijendra PW 1 supported the prosecution version as laid in written report. He also identified Exts. 1 and 2 in court as the robbed" property. Learned trial Judge believed the aforesaid evidence and recorded the conviction and sentences as given above.;