M.C.JAIN, J. - (1.) Both these appeals challenge the judgment and order dated 5th Oct. 1980 passed by Sri T.P. Gupta, the then V Additional Sessions Judge, Kanpur in Sessions Trial No. 287 of 1980. As such, they are being decided together. The appellant in Criminal Appeal No. 2508 of 1980 is Sunil alias Sushil Kumar whereas Shahzade is the appellant in other Criminal Appeal No. 2524 of 1980. Both of them have been convicted under Section 386, I PC and sentenced to undergo life imprisonment. Two others, namely, Devendra Kumar and Munnu alias Radhey Shyam were also tried with them, but they were acquitted being given the benefit of doubt. There was yet another suspect of the offence, namely, Rais Ahmad, but he was not charge-sheeted as no witness had identified him at the identification parade.
(2.) The background facts which led to the trial are as follows. The incident took place in between the night of 13/14th March, 1980 at about 1'o clock in village Kushwaha Nagar, within P. S. Kalyanpur, District Kanpur and the FIR was lodged on 14-3-1980 at 3.30 a.m. by an eye witness Ramesh Chandra PW-2 (injured). Nobody was named in the FIR. In fateful night, Ramesh Chandra PW-2 was sleeping in the room of his house situated in village Kushwaha Nagar. A lighted lantern was there. In front of his house, there was a street electric pole on which a bulb of 200-W was glowing as the rod fixed thereon had gone out of order. There was a Chhappar in front of his house under which his father and one Kishan Narain were sleeping on one cot. The other inmates of the house were sleeping in the room in which he was sleeping and his mother was sleeping in another room. At about 1 'o clock, his father got up on hearing some rattling sound. Ramesh Chandra opened the door of his room and through the Junglaq (window) fixed in the wall, he saw that there were 4-5 dacoits standing near his father. They were having country-made pistols, knives etc. They were threatening his father and Kishan Narain that they would be killed if they raised any alarm. At the same time, he saw two dacoits at the roof of his house. He went inside the room and chained the door from inside. The dacoits who were at the roof jumped down in the Sahan and opened the door of Sahan. 5-6 other dacoits came inside. They broke open the door of the room of Ramesh and barged inside. They' opened the door of this room opening in the outer Varandah with the result that the dacoits started coming in and going out. In total, there were 8-10 dacoits. They looted the property from the house. Somehow, Kishan Narain ran out and raised an alarm upon which the witnesses Babu Lal and Shiv Mangal also came there. Babul Lal was fired at by the dacoits near the wall in the western side of the room of Ramesh. Shiv Mangal was also injured by knife etc. under the Chhappar.
(3.) There was the house of Gurucharan , PW 3 in the eastern side of the house of Ramesh . On hearing the alarm, he himself and his two sons Pramod Kumar and Ambika Prasad went upstairs on the roof and seeing that one of the dacoits was at the roof of adjoining house of Ramesh, one of his sons threw a brick bat towards the dacoits, whereupon the dacoit opened fire causing injuries to Pramod and Ambika, Thereafter, Gurucharan PW 3 brought them down in the outer room of his house. In this outer room, there was window towards the western side through which everything was visible under the Chhappar and outside the house of Ramesh. Through this window, Gurucharan saw the dacoits committing dacoity in the light of street electric pole as well as the light of torches. There was also the light of burning sugarcane leaves lying in front of the house of Ramesh in the corner of the field. The dacoits ransacked the house for about half an hour and during their operations, they injured Ramesh also. After looting the property, they came out and went away towards the northern side. However, they were seen by the witnesses in the electric light coupled with the light produced by the burning of sugarcane leaves. That apart, Ramesh saw them in the light of the lantern which was there in his room on the table. When the dacoits decamped, the injured Babu Lal, Shiv Mangal, Pramod etc. were taken to the hospital. Ramesh P. W. 2 also accompanied them. By the time they reached the hospital, Babu Lal succumbed to his injuries. Shiv Mangal was admitted in the hospital but he also died subsequently. Injuries of Ambika Prasad and Pramod were also medically examined in the hospital.;