- (1.) R. P. Yadav, J. This Criminal Appeal is directed against the judgment and order dated 19th October, 1981 passed by the VI Additional Sessions Judge, Aligarh in Sessions Trial No. 174 of 1980 convicting the appellants Ram Swarup, Yad Ram, Nawab Singh alias Nabba and Chheda Lal under Section 396 of the Indian Penal Code and sentencing each of them to undergo imprisonment for life.
(2.) DURING the pendency of this appeal, two appellants namely Ram Swarup and Chheda Lal died and their appeal has abated. It is the prosecution case that the complainant Shri Balbir Singh PW 2 has a double storied house in village Chitarsi which is situated within the circle of P. S. Gangiri at a distance of about 5 Kms. The occurrence in question is said to have taken place in the moonlit night of 7/8 August, 1979 at about 1. 30 a. m. when complainant Balbir Singh-PW 2 his brothers Inder Singh and Dharam Singh, who were killed in this incident, were sleeping on the roof of the house, whereas, the other members of his family including his mother Smt. Chameli- wife Verma Devi, Smt. Abhilash w/o Shri Dharam Singh and Prakashi were sleeping not the ground floor of the house. It is alleged that at about 1. 30 a. m. about 8 or 9 miscreants armed with gun, Katta, Ballam and lathies entered his house by scaling down the wall and opened the main door. They started ransacking the house. Some of the miscreants went upstairs. One of them shot at Shri Inder Singh who sustained injuries and instantaneously died. The complainant Balbir Singh and his brother Dharam Singh caught hold of one of the miscreants who in an attempt to get rid of their hold fired at Shri Dharam Singh, who sustained injuries. The complainant as well as the other members of the family raised alarm, whereupon, his brother Jant Singh PW 3 Bhagwan Singh, Ranvir and others arrived there. Complainant and his brother were having torches. The miscreants were also having torches which they had been flashing during the course of the dacoity. His brother Shri Jant Singh set fire to the heap of 'patel' kept near the house of Kitab Singh, which emanated sufficient light. The faces of the miscreants were seen in the light of the lanterns, torches, burning 'patel' and the moon light and two of them namely, appellants Ram Swaroop and Yad Ram were recognized while committing dacoity, whereas others whose faces were seen by the witnesses were not known to them. The miscreants are said to have looted a D. B. B. L. gun 70, cartridges, Rs. 2000/- cash and ornaments. It is also alleged by the prosecution that during the course of commission of dacoity, the miscreants while ransacking the house of the complainant were not only flashing their torches, they were also conversing between themselves in the local dialect and enquiring about his brother Jant Singh (PW 3) Shri Dharam Singh who had sustained injuries in the incident died few hours after. Shri Vidya Ram, Chameli Devi, Balbir Singh and Bagawan Singh sustained injuries in this incident, which were cased by miscreants during the course of dacoity. Complainant lodged an oral report at P. S. Gangiri in the morning at about 6. 15 a. m. on 8th August, 1979 which was reduced to writing by Head Constable Shri Mahendra Pal Sharma. He made entries in the G. D. Exht. Ka-3 registering a case under Section 396 IPC Investigation was taken-up by Shri Sher Singh, SO-PW 6 who was then present at the police station. He, after observing formalities, left for the spot alongwith necessary police force and on reaching there held inquest on the dead bodies of Indar Singh and Dharam Singh with the help of SI Shri R. P. Singh and prepared inquest reports Ext. Ka-4 and 5. Thereafter, both the dead bodies were sent to Police Lines Mortuary for post-mortem through Constable Dingambar Singh and Ram Prasad. He also inspected the spot, prepared Site Plan-Ext. Ka-12. He took in his custody the blood stained and plain pieces of the floor and prepared their memo Ext. Ka- 13. Five empty cartridges and wads were recovered on the spot which were kept in sealed cover after preparing memo Ext. Ka-14. Sample of the burnt ashes was also taken into police custody after preparing memo Ext. Ka-15. He also took in to his custody the bed sheet and pillows on which the deceased Indar Singh had been sleeping in the night and prepared their memo. He inspected the torches of complainant Balbir Singh and Dharam Singh and the two lantern s which were said to have been burning at the time of the incident and after preparing the memo Ext. Ka-17, handed them over in the Surpurdagi of Sri Jant Singh-PW 3. He interrogated the witnesses, made search for appellant Ram Swarup and Yad Ram. But they could not be traced out. On 10th August, 1979 when he returned to police station, he found appellant Ram Swarup in the police lockup. The appellant Yad Ram could not be apprehended and he surrendered before the Court on 6th September, 1979.
(3.) SHRI Vidya Ram, Balbir, Bhagwan Singh and Smt. Chameli were medically examined at District Hospital, Aligarh on 8th August, 1979 between 4 p. m. to 4. 35 p. m. and a number of injuries were found on their person. Some of them were caused by blunt object and some of them were as a result of the fire arms. Post-mortem on the dead body of Indar Singh and Dharam Singh was conducted by Dr. R. A. Singh on 9th August, 1979 at 3 p. m. and 5 p. m. respectively. In the opinion of the doctor, the death of the aforesaid both the deceased had taken place on account of anti- mortem injuries which were caused by fire arms. These reports are Ext. Ka-20 to Ka-24. According to the prosecution case, appellants Nawab Singh alias Nabba and Chheda Lal alongwith four others were apprehended by a police team headed by Shri Surendra Kumar, SO-PW 7 in the night of 18/19th October, 1979, when they are said to have been making preparation for committing dacoity near Bhata Purana within the circle of village Ghilawali. During the course of their interrogation, complicity of the said two appellants in this crime came to be known. So their faces we covered and in the same condition they were brought to the police station lock-up. Relevant entries were made in the G. D. Exht Ka-18 of P. S. Gangiri at 4. 45 a. m. on 19th October, 1979. The said two appellants were informed that they were to be put-up for identification tests.;