- (1.) V. S. Bajpai, J. Appellant Balbir Singh has preferred this appeal against the judgment and order dated 20-4-1981 passed by Sri B. K. Srivastava, the then III Additional Sessions Judge, Mainpuri, in S. T. No. 622 of 1979, State v. Balbir, convicting the appellant under Section 395 IPC and sentencing him to undergo rigorous imprisonment for a period of four years.
(2.) THE prosecution case, in brief, was that informant Rajvir Singh, his brother Shyam Singh and their father Badam Singh were sleeping in their 'gher' which is towards west of the village. Smt. Bhawani, mother of the informant, Smt. Dakhshri wife of the informant and Smt. Kesar Shri, wife of Rajpal Singh were sleeping along with the children inside the house. In the verandah a lantern was burning. On 22-3- 1979 at about 11. 30 p. m. they heard the cries of ladies coming from their house. THEy got up and ran towards the house raising alarm. When they reached near the house they saw a dacoit over the roof who threatened to shoot them if they proceeded any further. THE informant, his brother and their father raised alarm in the village on which villagers Mahavir Singh and Sanehi Lal opened fire. THE dacoit who was standing on the roof fired towards them. Meanwhile, Hakim Singh, Dori Lal, Layak Singh, Rameshwar, Saudan Singh and many other villagers assembled and went in the eastern 'gher'. Layak Singh ignited fire by lighting up 'bajra' straws on the place where Holi is burnt. THE informant and the villagers saw the faces of the dacoit, who were 14 or 15 in number, in this light. THE dacoits looted the property for about one and a half hours and also beat the wife of the informant with 'lathi' and 'danda' Jal Devi, wife of Ram Singh sustained fire-arm injury by the shots fired by the dacoits. Having committed the dacoity the dacoits went away towards east, firing in the air. THE informant and the witnesses recognized the appellant a resident of the same village and known to them from before. Civil Litigation was going on between the informant and Achchey Lal, father of the appellant. It was on account of this enmity that the appellant invited the dacoits to commit this dacoity. Informant Rajvir Singh got the report written by one Brijendra Singh and lodged it at the police station. On the basis of this report, the Chik FIR was scribed and the case was registered. Investigation was taken up by the then S. O. , Moti Lal (P. W. 5 ). He recorded the statements of the witnesses and after inspecting the place of occurrence, prepared the site plan. The informant handed over the list of the looted property to him. He also took ash of the burnt 'bajra' stalks and sealed it vide memo Ext. Ka-7. He took piece of plaster, an empty cartridge and axe in his custody and sealed them separately and prepared their memos. He saw the torches of the witnesses and lantern of the informant and gave them in their supurdagi after preparing the memos. The appellant was arrested the next day. During the investigation, the complicity of co-accused Suresh came into light and he was arrested and made 'baparda'. His test identification took place on 6-7-1979. After completing the investigation, he submitted the charge-sheet against the appellant and co-accused Suresh.
(3.) A charge under Section 395/397 IPC was framed against both the accused to which they pleaded not guilty. Appellant Balbir stated that the informant and others had obtained a forged and fictitious agreement to sell from his aunt, Smt. Champa Devi. After her death, this agreement was challenged by the father of the appellant and ultimately the appellant and others could not get that land. It is on account of this enmity that he has been falsely implicated in this case. Co-accused was acquitted of the charge framed against him on the ground that he could not be identified by the witnesses. Appellant Balbir did not lead any evidence in his defence. The prosecution examined 6 witnesses in all to establish the guilt of the appellant. Out of these witnesses, S. O. Hoti Lal (P. W. 5) and G. C. Saxena (P. W. 6) the Special Executive Magistrate who had conducted the test identification of co-accused Suresh, are formal witnesses. Informant Rajvir Singh, Dori Lal, Hakim Singh and Mahavir Singh are the witnesses of fact. Relying upon this prosecution evidence the trial Judge convicted the appellant and passed the aforesaid sentence.;