- (1.) S. K. Agarwal, J. Both these appeals were filed by Jagannath, Jairam and Nanka against their conviction under section 396 IPC and consequent sentence of R. I. for life, passed by the VI Additional Sessions Judge, Fatehpur, vide his order dated 28. 4. 1981 in ST. No. 149 of 1979.
(2.) THE brief facts giving rise to the occurrence are that on the night intervening 26/27. 10. 1978 dacoity was committed in the houses of Mahadeo Singh, Ram Asrey Singh and Deshraj Singh. Initially 4-5 dacoits jumped into the Aangan (inside courtyard) of Mahadeo's house by scaling its rear wall. Mahadeo Singh at that time was sleeping in the inner verandah where other family members including females were also asleep. His brother Sahadeo Singh was sleeping outside the house under open sky, in front of his main door, which was bolted from inside. 6-7 dacoits surrounded him. THEy started belabouring him with Lathis. THE alarm raised by Sahadeo Singh and also the thud sound created by jumps of the miscreants in the Aangan awakened Mahadeo Singh. He opened the main door and stealthily swept past the dacoits, who at the time were belabouring Sahadeo Singh in front of his house. He came to the house of Deshraj situate at a distance of 40-50 hands. Some Puaal was lying near the house of Deshraj. He set it afire in the meantime. Mahadeo concealed himself behind the wall of the house of Ram Asrey. He witnessed the entire incident from there. THE alarm raised by him from here attracted Dharamraj Singh, Deshraj Singh, Ram Asrey Singh, Sheo Kumar Singh, Budhraj Singh, Raj Bahadur Singh, Malhkan Singh and many other villagers to the spot of occurrence. THEse villagers, while rushing to the spot, were also flashing their torches. THE dacoits in the meantime continued loot (plunder) in the house of' Mahadeo. THEreafter, they looted the houses of Ram Asrey Singh and Deshraj Singh. Three of the miscreants were covering their faces with pieces of cloth (Dhatas ). Their Dhatas fell down in the scuffle with Sahadeo Singh. They were identified by Mahadeo and deceased Sahadeo as Jagannath son of Sheo Das Kurmi, Jairam son of Mahadeo Gadariya and Nanka son of Dhani Khatik. All residents of nearby village. Sahadeo Singh called them by their names and told them that he had identified each one of them and will see them in the morning. Appellant Jairam then asked him accomplishes that his living alive is dangerous. He shot at Sahdeo's chest. As a consequence he fell down and died on the spot. The villagers hurled brickbats on the dacoits. In retaliation two miscreants who were on the roof opened fire causing injuries to Ram Asrey Singh, Raj Bahadur Singh, Budhraj Singh and many others. The miscreants have also taken away the licensed single barrel gun and belt of cartridges of the brother-in-law of Ram Singh. When the licensee from the nearby villages arrived at the spot and opened fire on the miscreants, they decamped with the booty. According to FIR the miscreants were identified by the witnesses in the light of the burnt Pual, lantern and torches. Ersons suffered injuries in the firing. Some of them sustained firearm injuries and other suffered blunt object injuries including some of the inmates of the house of Mahadeo. They were all medically examined by Dr. Prakash Joshi in the District Hospital on 27. 10. 1978 between 1. 00 P. M. and 3. 30 P. M. These injury reports are Exts. Ka-11 to Ka-20.
(3.) THE post-mortem examination on the dead body of Sahadeo was conducted by PW 5 Dr. Som Sharma on 28. 10. 1978 at 11. 00 A. M. at the District Hospital, Fatehpur. THE post-mortem examination report is Ext. Ka-10. 26 pellets were recovered from the right lung, 20 pellets from the left lung and 14 pellets from the heart of deceased Sahadeo. A wadding piece was also recovered by the Medical Officer. The case was investigated by PW 7, Ram Mohan Ram, who also prepared the inquest memo and despatched the body of Sahadeo for post-mortem. After completion of the investigation he submitted the charge-sheet, Ext. Ka-29, against these accused persons.;