G.MALAVIYA,J. - (1.) APPELLANTS Sri Ram, Bhildla, Gulley, Hari Ram and Munna were tried by the IInd Additional District & Sessions Judge, Gonda in Sessions Trial No. 443 of 1981 and vide order and judgment dated 14 -9 -1983 were acquitted of the charges under Sections 395, 397 Indian Penal Code but were convicted under Section 326 Indian Penal Code read with Section 149 Indian Penal Code as also under Section 147 Indian -Penal Code. Under Section 147 Indian Penal Code the appellants were awarded six months rigorous impsonment where under Section 326/149 Inman Penal Code they were awarded three years rigorous imprisonment.
(2.) AGAINST their conviction the appellants have preferred this appeal in which Mr. S.P. Pathak has been heard on behalf of the appellants and the learned Government Advocate has been heard on behalf of the State. Liyakat Ali, PW 1 lodged a First Information Report at Police Station Kotwali, Gonda on 14 -5 -1980 at 3.30 AM. stating therein that he along with hi § family members was sleeping at the door of his house on the previous night when at about 1.30 or 2 am. In the night, the appellants along with five and six other persons whose names were not known entered his house armed with lathi, bhala and pharsa. Immediately after arriving there they snatched the silver neckless, the golden nose pin as also one more golden ornament from the possession of his wife Hamshira While snatching away the ornaments they also strock a blow on Hamshira with a pliatro. On the a1ann raised by the family members they also struck their weapons on them. However as the witnesses arrived hearing the alarm they left the place of the incident. The First Information Report categorically mentioned that the accused we~ seen during the beating and looting in the light of the torches. After the case was registered the injured were sent for medical examination. The Investigating Officer completed all other formalities and after completing the investigation he submitted the charge -sheet where after the appellants were tried after committal as they denied the charge and claimed to be tried. During the trial apart from formal witnesses the prosecution produced PW 1 Liyakat Ali, PW 2 Hingai and PW 4 Smt. Hamshira as eye witnesses. PW 2 Hingai turned hostile. The accused. denied the charge and claimed to have been falsely implicated in this case due to enmity. The Sessions Judge found that there was light of the bulb on the poll as also on the house of Shiv Charan La1 as had been called by PW 4 Smt. Hamshira, in her examination -in -chief and in the re -examination ofP.W.1 Liyakat Ali He also found that these witnesses had really seen and identified the appellants in the light of bulbs as also the torches which was being flashed. Accordingly he found the evidence of the two eye -witnesses Layakat Ali and Hamshira to be reliable enough to warrant conviction of the appellants. However, as stated above learned Sessions Judge in paragraph 25 of the judgment found that the part of the story which related to the snatching away of the ornaments were doubtful and hence the appellants could not be convicted under Section 395 read with Section 397 Indian Penal Code. The learned Sessions Judge however found them guilty under Section 326. Indian Penal Code read with Section 149 Indian Penal Code by observing that it was not clear as to who was the authorised of the grievous injuries found on the person of Fatima daughter of Liyalffit All. This, according to the learned Sessions Judge, was possible as more than five persons had entered the house with the purpose to commit offence and had consequently formed an un law assembly and each of the accused was liable for the act done by every accused forming the unlawful assembly.
(3.) LEARNED counsel for the appellant argued that once the First Information Report categorically mentioned that the features of the accused persons had been seen in the light of the torches, the introduction of the electric light at a subsequent stage was a clear improvement which should not have been taken into consideration by the learned Sessions Judge. He has also argued that even during the entire examination of PW 1 Liyakat Ali in the Trial Court he had not mentioned about the electric light and it was only after he was recalled for re -examination by the Public Prosecutor -that he spoke about the electric light.;