- (1.) CHALLENGE in this appeal is to the judgment and order dated 14.3.1983 passed by Sri D. S. Ram the then VI Additional Sessions Judge, Mainpuri in S. T. no. 206/81 [State Vs. Prakash and another] arising out of Crime no. 186/79 P.S. Eka District Mainpuri whereby the appellant had been found guilty for the offence punishable u/s 395/397 IPC and had been sentenced to undergo four years' R. I.
(2.) FACTS germane to the appeal are that complainant Munshi Lal s/o Hari Ram, r/o village Nagla Ujeerpur h/o Tanda P. S. Eka District Mainpuri submitted a written report at police station Eka on 27.11.1979 at about 6.45 a.m., stating therein that the previous night he along with his brother were sleeping out side their house under the chhappar and ladies of the house were inside the house. At about 12 O'clock in the night 12 -14 miscreants scaled down inside the house through ladder. Their whispers woke up the ladies and they raised alarm, whereby they also woke up and in the light of lantern which was lighting in the tidri and torches of the miscreants they saw them firing shots from the guns, some of them were on the roof of the house. On hearing hue cry co -villagers Lakhan Singh, Nem Singh, Turam Singh, Puttu Lal, Sultan Singh, and Ram Swarup and Munshi Singh of Sunderpur and several others carrying torches and guns arrived there. It was further stated that Malkhan Singh, brother of the complainant set fire the patel, and in the light of the flame they had identified Prakash s/o Neksey of his village and Ram Sanehi s/o Babu Ram. On the arrival of the villagers, the miscreants, who were carrying lathi, axe and guns and were speaking local language made their escape good after committing dacoity for about half an hour and looting the articles and valuables form the house, list whereof would be given later. On the basis of written report, case at crime no. 186 u/s 395/397 IPC was registered at the police station, investigation whereof was entrusted to S. I. Vrindavan Doharey. He arrived at the scene of the occurrence, interrogated witnesses, prepared site plan as also seized the articles found on the spot and at the house of the complainant through various memos namely - three empty cartridges 12 bore, lantern of the complainant, three empty boxes of the complainant and two broken locks. In the incident no one from the family of the complainant was injured. The investigation culminated into charge -sheet against the appellant and one Ram Sanehi.
(3.) AFTER committal of the case to the Court of Sessions, charges for the offence punishable u/s 395/397 IPC were framed against both the accused, who abjured their guilt and claimed trial. In support of the charges, the prosecution had examined complainant Munshi Lal PW -1, his brother Malkhan Singh PW -2, Nem Singh PW -3 and S.O. Omkar Singh PW -4.;