- (1.) KUNDAN Singh, J. The appellants Prakash, Natthu and Ram Sanehi have preferred this appeal against the judgment and order dated 9-4-1979, passed by Sri J. N. Tandon, the then IHrd Additional Sessions Judge, Mainpuri, in S. T. No. 233 of 1978, whereby he convicted the appellants tor the offence punish able under Section 395, I. P. C. and sentenced each of them to undergo rigorous imprisonment for two years.
(2.) THE prosecution case in a nutshell is that a dacoity was committed by 10 or 11 armed bandits at about 1-00 a. m. on 18/19-5-1977 at the house of Ram Deen in village Gigaura of Police Station Bhaugaon, district Mainpuri. In the incident informant Ram Deen, Shiv Charan, Om Devi and Jag Ram sustained injuries at the hands of bandits and the dacoits looted gold, silver ornaments and clothes of the informant and his family members. Madbav and Natthu, licence holders of fire-arms. , residents of the same village, opened fires towards the dacoits and some of them sustained injuries. In the light of a lantern, burning inside the houseand the burning pyal the witnesses identi fied the appellants and Chhotey and Daroga alias Prem Das out of the dacoits, who committed the dacoity at the house of the informant. An F. I. R. was lodged by Ram Deen at 7-45 a. m. on 19-5-1977 at Police Station Bhaugaon, district Mainpuri. The investigation was entrusted to Narain Singh, Sub-Inspector (PW 4), who recorded statements of the witnesses, inspected the spot and prepared a site plan and also completed certain other formalities in relation to the investigation. Thereafter, Mahesh Kumar Singh, Station Officer, took over the investigation in his own hand on the transfer of Narain Singh (PW 4) and after completing remaining investigation submitted charge-sheet agaiust the accused persons in court. The prosecution examined five witnesses in all to prove its case. Out of them, Ram Deen (PW 1), Tilak Singh (PW 2) and Phulwari (PW 3) are the witnesses of the factum of incident, while rest are of formal nature.
(3.) THE appellants denied the prosecution version and stated in their statements recorded under Section 313, Cr. P. C. that they have been falsely implicated due to party-faction in the village and pressure of the police. Prakash appellant examined one Ram Babu Misra as DW 1 to prove that except him there is no other person Ram Prakash son of Itwari in the village. The learned trial Judge after going through the evidence on record, held the above named three appellants guilty of the offence punishable under Section 395, I. P. C. but he acquitted them of the charge under Section 397, I. P. G. However, the co-accused Daroga and Chhotey were given benefit of doubt and were acquitted on the ground that the eye-witnesses had not named them in their statements recorded in court. It is true that PWs 2 and 3 did not name both Daroga and Chhotey accused. PW 1 Ram Deen also stated in court that he did not know assumed name of accused Prem Das but in the F. I. R. he named as Daroga alias Prem Das.;