A.B.Srivastava, J. - (1.) THIS appeal unden section 378 of the CrPC has been filed by the State against a judgment and order dated 25-8-1977 of the II Additional Sessions Judge, Allahabad acquitting the two accused of the charge under section 396 IPC.
(2.) ACCUSED-opposite party Afaq died during the pendency of this appeal and vide order dated 25-3-1991 of the order-sheet, appeal of the said accused-opposite party has been held to have been atabed. Now, in this appeal we are concerned only with accused opposite party Bechan. According to the prosecution story, a dacoity with murder was committed in the night of 15/16-7-1975 in the house of informant Bhagwati Prasad (DW 1), in village Mulinapur within jurisdiction of Police Station Handia, District Allahabad. The docoits, 12-13 in number, raided the house of Bhagwati Prasad and his cousin Baboo (F'W 3). When the dacoits came Bhagwati Prasad was sleeping inside his room, Babboo was sleeping in another room in his house. Pralhad, another cousin, and deceased Ram Janam the nephew of the first informant, were sleeping in different 'chhappars'. The docoits scolded Babboo ;and enquired as to where Bhagwati Prasad was Two or three of them scaling into the house through the ventilator, opened the door and some of them beat Babboo, who raised alarm. There was kept lighted on a 'taakh' in the outer portion of the house a lantern, and two 'chimneys' were buring inside the room. Bhagwati Prasad with his torch ran out to the village and raised alarm, which brought on the scene of occurrence Ram Chandra, Hira Lal, Ram Raj and several others, who taking position behind the north estern corner of house of one Ram Lakhan, watched the dacoits flashing their torches. The dacoits looted property; one of them was armed with a gun, another with an iron rod, and rest had lathis, torches and a 'kulhari'. When Ram Janam tried to struggle he was shot dead. Ram Chandra threw a brickbat, which hurt one of the dacoits. In retaliation, a gun shot was fired causing injuries to him also. After looting the property, the dacoits made good their escape; their faces were seen in the various source of light available on the spot.
(3.) A written report regarding the incident was lodged by Bhagwati Prasad at Police Station at 6.30 A.M. on 16-7-75 and investigation was started by the Investigation Officer. S.I. Malkhan Singh. The two injured were sent for medical examination. Babboo was found to have four blunt weapon injuries and Ram Chandra had two gun shot and one blunt object injuries. Inquest of the dead body of Raj Mani was made and it was sent for post mortem examination which was conducted on 17-7--1975. Death was found to have been caused due to multiple gun shot injuries. The Investigating Officer prepared site plan of the place of occurrence and also took into possession empty cartridges and blood from the spot and prepared memos of the torches of the informant and the witnesses. Subsequent investigation was conducted by S. I. O. P. Yadav, who on 8-8-1975 raided the house of accused Bechan, who fled away. He was chased and arrested. Making baparda, he was brought at the police station and from there he was sent to the court to be lodged in the Naini Central Jail. On 3-9-1975 on information given by an informer, he arrested appellant Afaq, made him baparda and brought to the police station and kept in the same condition. The next day, he was sent baparda to jail.;