N. N. Sharma, J. - (1.) BOTH these appeals are being disposed of by this common judgment as these arise out of the same judgment by Sri J. N. Tandon learned Addl. Sessions Judge, Mainpuri in Sessions Trial No. A 70 of 75 by which appellants were convicted under section 395 IPC ; each appellant was sentenced to five years R. I. ; co-accused Munshi and Ram Awatar were acquitted by the same order.
(2.) PROSECUTION story briefly stated is that on the dead of night in between 25th and 26th September 73 a gang of bandits about 13 or 14 in number equipped with firearms, axes raided the house of Hawaldar Singh PW 4 situated in Nagla Tijan hamlet of village Bhure Bharthra. This house of Hawaldar has been shown in site plan Exh. Ka. 10 towards north west of the house of informant Tulsi Ram PW 1. Hawaldar was sleeping under the thatch of the house with a child and his licensed gun under the thatch in front of his eastern door ; there is also another thatch in front of his northern door. A lane intervened in between his house and the house of informant etc. Bandits belaboured Hawaldar and looted his gun ; Hawaldar's wife raised alarm when their property including cash amounting to Rs. 120/-and two silver anklets were looted ; thereafter dacoits entered the house of Sri Ram uncle of informant which lies towards south-east of the house of Hawaldar and is inhabited by Tulshi Ram, Sri Ram etc. Informant was lying at that time at a distance from this house in open land towards west. House of Narain Singh lies in between the house of Sri Ram and the place where informant was lying. A lantern was burning outside the house of Narain Singh etc. at a place towards west not shown in site plan; a lantern and lamp were also burning inside the house. The places of the lanterns have not been shown in site plan. The inmates of the house woke up on hearing the barking of dogs and saw the bandits who ransacked the house and some of them climbed the roof and fired shots. Smt. Barbati wife of informant and his cousin Vidya Ram PW 3 were belaboured by dacoits;. Dacoits were also coming in and going forth while the crime was in progress. Witnesses who thronged near the house of informant on the hue and cry of the inmates saw the dacoits in the light of lantern and torches. After commission of dacoity dacoits decamped towards south. On account of shots none could chase them. After the departure of dacoits informant and other witnesses entered the house and checked the looted property. Informant prepared written report Exh. Ka 1 at about 2. 30 A. M. or so which was scribed by Jaswant Singh Pradhan. It was made over at Police Station Sirsaganj on the next morning at 7. 30 A. M. Distance of Police Station from scene of occurrence was five miles. On the basis of written report Exh. Ka. 1 FIR Exh. Ka. 9 was drawn by Clerk Constable Chandra- vir Singh who registered the case in General Diary vide Exh. Ka. 20. Investigator Sri Ramadhin Singh PW 12 happened to be present at the Police Station when FIR was drawn. He took up Investigation forthwith. Informant Sri Ram etc. were interrogated ; injured Narain Singh, Sia Ram and Hawaldar (?) Dispensary. Investigator reached the scene of occurrence in the same morning at 10. 30 A. M. and inspected the spot. From the spot he recovered 38 fired cartridges vide memo Exh. Ka. 11, wife of Hawaldar produced the Lantern which was entrusted to her vide entrustment memo Exh. Ka. 12. Investigator also saw lantern and lamp which were alleged to have been burning inside the house of Sri Ram at time of occurrence ; these were found in working order. Torches of Hub Lal, Nathoo, Ram Dayal, Raja Ram were also examined by investigator and found in working condition and returned to their respective owners vide entrupstment memo Exh. Ka. 13. Hub Lal, Nathoo, Ram, Saraman, Raja Ram, Ram Dayal, Vidya Ram were interrogated. Ram Awatar, Sri Kishan and Lalloo along with three others were arrested on the night of 11th and 12th October 73 from the old brick kiln situated in Nagla Khara Bani ; they were brought to Police Station by S. O. Sri Shishu Pal Singh Malik PW 7 and placed in lock up ; they wetre sent to District Jail Mainpuri under Pardah. Basti Ram appellant surrendered in court on 29-1-74 and was lodged in District Jail Mainpuri under Pardah on the same day.
(3.) SRI G. D. Maheshwari Executive Magistrate PW 6 conducted test identification parade of Ram Awatar, SRI Kishan, Lalloo, Munshi in District Jail Mainpuri on 29-11-73. Munshi was correctly identified byJNathoo Ram, Vidya Ram, Raja Ram, Tulsi Ram, Hawaldar and Hub Lal. Ram Awatar was correctly identified by Nathoo Ram, Vidya Ram.;