M.M.Gupta - (1.) APPELLANTS Babu, (Ram Charan, Nanhu Singh and Harpal Singh have filed this appeal against their conviction under Sec. 395 IPC and the sentence of rigorous imprisonment for five years. Ram Charan has also filed Cr. A. No. 2798 of 1976.
(2.) ACCORDING to the prosecution allegations on the night between 19th and 20th September 1974 Radhey Shyam complainant was sleeping in his shop along with his mother in village Bairani with in the Police Circle of Bilari. In the room of the upper storey his brother Jagdish was sleeping. His son Kali Charan and his wife Smt.Chandramukhi were sleeping in the Sehan. His son Jaipal and his wife were also sleeping in the room on the upper storey. A gas lantern was also lighted there. In the same premises were the flour mill and the expeller. At about midnight six bad characters scaled over the wall of the flour mill. They caught hold of the complainant's servant Marroo. He was beaten and was asked about the whereabouts of the gun of the complainant. On the alarm raised by him the complainant Radhey Shyam tried to break open the lock of his Kothari and enter it in order to take out the gun. He was fired at by one of the dacoits. He, however, succeeded in entering into the room and in chaining it from inside. His mother Smt.Kalawati succeeded in running out of the house who raised an alarm in the village. His brother Jagdish jumped on the roof to escape but he was also caught hold of by the dacoits. They were enquiring from him about the gun. The inmates of the house who had torches with them were flashing, at the dacoits. The complainant Radhey Shyam also fired a shot at the dacoits through the crevices in the door leaves as a result of which one of the dacoits was lit and he rolled down stairs and fell in the Angan. Jagdish who was caught hold of by the dacoits, made entreaties with his brother to open the door. The dacoits, however, left the scene of occurrence with considerable gold ornaments, silver and wrist watches. The dacoits were armed with fire arms, lathi and Dandas. While leaving the place they also left the butt of the gun bearing No. 74324. Radhey Shyam lodged the first information report of the occurrence at Police Station Bilari on 20-9-1974 at 9.30 A.M. Police Station Bilari is at a distance of about nine miles from the scene of occurrence. Sri Mahak Singh S. O. Bilari took up the investigation of the case. He recorded the statements of Radhey Shyam, Jagdish, Kali Charan and Matroo who were injured at the Police Station. They were sent for medical examination. Radhey Shyam on examination by Dr. Pramod Kumar Medical Officer Incharge, Public Health Centre, Bilari on 20th September 1974 at 1.10 P.M. was found to have five oval lacerated wounds including one which was in an area of 21 cm. x 10 cm which were caused by fire-arm. All the injuries were simple and were about half to one day old. Kalicharan, son of Radhey Shyam who was examined by Dr. Pramod Kumar the same day at 1.40 P. M. was found to have five abrasions on different parts of his body. These injuries were simple and were caused by blunt weapon and were about half to one day old. Matroo who was the servant of Radhey Shyam was examined at 2.20 P.M. the same day by Dr. Pramod Kumar. He was found to have two traumatic swellings on the left thigh and on sacrum and lower lumber vertebral region. These injuries were kept under observation and X'ray was advised of left thigh and lower vertebral and sacral region. These injuries were caused by blunt weapon and were about half to one day old. Jagdish was also examined by Dr. Pramod Kumar at 3 P. M. on 20th September, 1974. He was found to have six traumatic contusions, two traumatic swellings and two oval scabbed wounds on different parts of the body. All injuries excepting two oval scabbed wounds which were caused by fire arm were caused by blunt weapon. The injuries were simple and were about half to one day old. The Investigating Officer went to the scene of occurrence and inspected it. He also prepared the site plan. He also found pellet marks on the walls, and door leaves. He also recovered blood lying on the floor of the stair-case. He also took in his possession a number of articles left by the dacoits from the scene of occurrence including the butt of the gun No. 74324. These articles were duly sealed. He also recovered tiklies and other articles from the scene of occurrence. He further found the marks of dragging and blood stains on the Rasta through which the dacoits retreated from the place of occurrence. On 25-9-1974 the Investigating Officer arrested Babu appellant at about 7 P. M. on the road coming from Rampur side. On search being taken the stolen articles of this case a pair of silver chains were recovered from the possession of Babu appellant. A pistol and four cartridges were also recovered from his possession. These articles were duly sealed. Their recovery memo were prepared. Babu appellant was made Bapurdah. On his interrogation the complicity of Harpal Singh and Ram Charan appellants also came to light. The articles recovered from the possession of Babu appellant were deposited in the Malkhana of the Police Station. Appellant Ram Charan was arrested on 28-9-1974 by S. I. Rajpal. Harpal was arrested on 8th October, 1974 by Kalyan Singh Yadav S. I. A report for holding their identification in jail was made. They were put to identification before Sri Jai Krishna Paliwal Executive Magistrate. The property recovered from the possession of Babu appellant was also put to identification under the supervision of an Executive Magistrate. Appellant Nanhu was arrested on 7-5-1975 by the Investigating Officer. His identification parade was held on 21-5-1975 by Sri Jai Krishna Paliwal. The other suspects of this case were also arrested. After their identification proceedings were completed charge sheet was submitted against them.
(3.) APPELLANT Babu denied the recovery of the stolen property from his possession. He claimed that after his arrest he was not kept Bapurdah. He also denied having committed the dacoity. All the other appellants denied having committed the dacoity in question. They claimed that they were not kept Bapurdah and also they were shown to the witnesses. The prosecution in support of its case examined among the eye witnesses Radhey Shyam PW 4, Smt.Kusumlata PW 15, Jagdish PW 16, Jaipal PW 17 and Lakhan Singh PW 19. Besides these witnesses the Court Moharrir, the witnesses who arrested the appellants and the witnesses who escorted them from the place of their arrest to Police Station Bilari and from Police Station Bilari to the District Jail, Moradabad, Investigating Officers were also examined.;