T. S. Mishra, J. - (1.) BALAK Ram and Nemchand were charged under section 95 read with section 397, I. P. C. of having committed dacoity in the house of Rewa Ram in village Simaria Gausi, Police Station Neoria, District Pilibhit on the night intervening 9th and 10th September, 1970 They were also charged under section 395, I. P. C. seperately for committing dacoities in the house of Kundan Lal and Ram Lal of the said village on the said date. The trial court convicted Balak Ram and Nem Chand under section 395, I. P. C. and sentenced each of them to undergo rigorous imprisonment of five years Aggrieved Nem Chand bas preferred the appeal no. 1855 of 1971. Balak Ram and Nem Chand preferred another appeal no. 1914 of 1971 against the said order and judgment. Both the appeals were taken up together and as they arise out of the same judgment and order, they are being disposed of by a common judgment.
(2.) LERNED counsel for the appellants took us through the relevant evidence on record for the purpose of showing that the assesment of the evidence by the trial court was erroneous and, therefore, unsustainable. The occurrence took place on the night intervening 9th and 10th September, 1970. The first information report was lodged with the police station Neoria, district Pilibhit on 10th September, 1970 at 7.5 A. M. by Rewa Ram. The case of the prosecution was that on the said night one Baba Sri Ram Das had visited the aforsaid village and gave devotional discourses from 8 to 10 P. M. from the Chabutara of Rewa Ram. After the discourses were over most of the people who had assembled there, left the place but Rewa Ram, Shiv Narain Lal, son-in-law of Rewa Ram, two sons of Rewa Ram and few other persons stayed on and kept themselves busy in talking with Baba Sri Ram Das. A petromax lantern was burning there. At about mid-night 10 to 12 dacoits raided the place. Two of them were armed with guns and the rest had lathis with them. The dacoits caught hold of Liladhar and started beating him. Some other dacoits had torches with them which they flashed off and on. A lantern was also burning inside the house of Rewa Ram. The dacoits dragged Liladhar inside the house and beat Nima sister-in-law of Rewa Ram and his niece Smt. Gomti. Thereafter they started looting the property. Rewa Ram some how managed to escape from the place. On hearing his out cry some of the residents of the village reached the spot. The dacoits after committing the dacoity in the house of Rewa went to the house of Ram Lal and Kundan Lal and committed dacoity there also. The witnesses who had gathered at the spot saw the faces of the dacoits in the light of the petromax. After committing dacoities, the dacoits made good their escape. The report was thereafter lodged with the police on l0th September, 1970 at 7 A. M. Details of the property looted from the house of Rewa Ram were also given in the first information report. The police took up the investigation and arrested five persons including the present appellants. They were went baparda to the district Jail where test identification was held on 23rd November, 1970. In that test identification Nem Ghand was correctly identified by witnesses Rewa Ram, Munna Lal and Ram Lal. Appellant Balak Ram was also correctly identified by Rewa Ram and Munna Lal. Smt. Gomti Nima and Liladhar who had received injuries at the hands of dacoits were medically examined by Dr. S B. Agarwal on l0th September, 1970 between 5 and 5-40 P. M. After the test identification, the charge-sheet against the present appellants were filed and after inquiry they were committed for trial The appellants pleaded not guilty and stated that they had been faslely implicated in the case; that they were shown to the witnesses at police station Kotwali, Ram Bharosey Lal (D. W. 1) was examined by them in defence. To prove its case the prosecution examined nine witnesses and also tendered in evidence the statement of Dr. S. B.
(3.) AGARWAL recorded by the comitting Magistrate Ex. Ka-15 along with injury report of Liladhar, Gomti and Nima Exts. Ka-1 to Ka-3. Rewa Ram, Munna Lal were the eye witnesses of fact. Murtaza Husain (P. W. 3) was posted at police station Kotwali and had taken accused Nem Chand baparda from Kotwali to the District Jail, Pilibhit. J. B. Singh the Magistrate First Glass (P. W. 4) had conducted the test identification of the accused on 23rd November, 1970 and proved the memo Ext. Ka-7 Nem Ghand Sub-inspector (P. W. 5) had arrested the accused Balak Ram from the Village Gazipur Kunda and brought him baparda to the police station and had sent him in that condition on 28th September, 1970 through Constable Indra Lal to district jail, Pilibhit. Indra Lal had lodged the accused at the district jail. Bhawar Singh, Station Officer, Neoria (P. W. 7) had investigated the case and had prepared a site plan Ex. Ka-9. He had also seen petromax lantern and prepared its memo Ext. Ka-5. He had seen torches of the witnesses Ram Lal, Nanhey Lal and Bhopal and prepared memo Ext. Ka-6. The charge-sheet submitted by him was Ext. K.a-10. He along with Rajendra Singh Station Officer, Kotwali had arrested Nem Chand and brought him baparda to Police Station Kotwali, Amir Ahmed P. W. 8 who was posted as Head Moharrir at the police station Neoria on September 10, 1970 proved the chik report of Ext Ka-4. He had sent letters for medical examination Ext. Ka-1/A, Ka-2/A and Ka-3/A. Jai Prakash Gupta who was Head Muharrir at the police station Kotwali from 16th October, 1970 to 18th October, 1970 proved the copies of the G. D. Ext. Ka-11 and Ext. Ka-14. He had also deposed that accused Nem Chand remained baparda at police station Kotwali and was not shown to the witnesses there.;