- (1.) MUKTESHWAR Prasad, J. Hem Raj Ram, the then II Additional Sessions Judge, Ballia convicted five accused Jagdish, Bansraj, Hardev, Khedan and Sheo Deni under Section 395 I. P. C. and sentenced each of them to undergo rigorous imprisonment for a period of eight years vide his judgment and order dated 30-6-81. All the five accused have challenged the judgment and order passed on 30-6-81 through this appeal.
(2.) IN brief, the facts of the prosecution case were as under : A dacoity was committed at the house of PW 2 Raj Kishore Tiwari, a resident of village Sonbarsa, P. S. Ubhaon of District Ballia. He was sleeping in his Baithaka on his cot in the night intervening 19/20th December, 1977. The informant's brother Uma Shanker, his son Ravindra and daughter Km. Mansa Devi were also sleeping in the same baithaka. The informant's son Rajendra Tiwari and his wife were sleeping inside the house. At about mid night 10-15 dacoits armed with Lathis, spear and gun arrived them flashing their torches. When the informant intercepted the dacoits trespassed into his Baithaka and assaulted him with lathis saying that he was a Dalal of police. Some of them assaulted Uma Shanker and his children. A lantern was burning there in the Baithaka and it was a moon-lit night. The informant and his brother Uma Shanker identified co-villagers Gautam alias Lallan in the light of lantern. They further identified Khedan, Hardev, Jagdish and Bansraj residents of village Mathiya. Ram Chandra and Sheo Deni were also identified correctly amongst dacoits. The remaining dacoits were wearing dhoti-kurta and two were wearing trousers. On the alarm raised by Raj Kishore and other family members. Rajendra Tiwari went out of the house. He was followed by some dacoits but he succeeded in running away. The dacoits ransacked the house flashing their torches. The co- villagers Shiva Nand Upadhyaya, Chhotey Lal, Kedar Nath Tiwari, Rama Shanker and others arrived there set fire to Pooval which created sufficient light and all dacoits were seen and Khedan, Hardev, Jagdish, Bansraj, Ram Chandra, Gautam Datt and Shoe Deni were identified correctly. The dacoits looted the house for half an hour. When they felt that they had been surrounded by villegers they ran away towards east of the village with looted articles. They fired 2- 3 shots but none was injured. Since they were having fire-arms, no villager chased the dacoits. The informant's leg was fractured. The dacoits took away golden-silver ornaments, clothes, two bicycles, a murphy radio, a wrist watch, saris etc. Raj Kishore got a report of dacoity prepared by his son Rajendra Tiwari and lodged F. I. R. at police station Ubhaon on 20- 12-77 at 2. 40 a. m. The local police registered a case at crime No. 193 under Sections 395/397 I. P. C.
(3.) THE investigation of the case was taken up by PW 4 SI Umesh Chandra Mishra. He interrogated Raj Kishore, Uma Shanker, Rajendra Nath and Km. Mansa Devi on 20-12-77. All the injured were sent to P. H. C. , Belthra Road for medical examination of their injuries. On the same day, the I. O. reached the informant's house, interrogated other witnesses and at the pointing out of the witnesses prepared site- plan. He saw lantern and prepared at Fard. He collected ash also. On 25-12-77, accused Jagdish was arrested on 27-1-78 accused Bansraj, Hardev and Khedan were interrogated. He submitted charge-sheet against Jagdish Bansraj, Hardev, Khedan, Ram Chandra and Sheo Deni. After transfer of SI U. C. Mishra, the case was investigated by SI Rama Shanker Singh who submitted charge-sheet against Haridwar and Kanhiya after their identification in jail.;