- (1.) MUKTESHWAR Prasad, J. Accused Ram Poot son of Balwant has filed this appeal under Section 374 Cr. P. C. against the judgment and order dated 30-6-1981 passed by the then Additional Sessions Judge, Badaun in ST No. 423-A of 1978 whereby he was found guilty for the offence punishable under Section 395 I. P. C. and was sentence to undergo rigorous imprisonment for a period of seven years.
(2.) BRIEFLY stated, the facts of the case leading to the prosecution of the appellant were as under: P. W. 1 Chandrapal son of Jhanjhan Teli is a resident of village Adhauli, Police Station Ujhani in District Budaun. He lived in his house alongwith his wife Smt. Somwati and his parents Jhanjhan and Smt. Ladaiti. In the night intervening 7/8 August, 1978, the informant and other members of his family were all sleeping in the house. Chandrapal and his wife Smt. Somwati were sleeping in the Kotha and their parents were sleeping in Dehlej. An earthen lamp (Dibiya) was burning in the courtyard. At about mid- night, 8-10 dacoits, out of which, three were having guns and remaining armed with Lathies trespassed into the house of Chandrapal and caught hold of the couple. Two dacoits who were armed with guns reached the roof of the house and opened fire with a view to terrorise the villagers. The dacoits assaulted complainant and his wife with Lathies and made enquiries regarding valuables. During dacoity, the dacoits were flashing their torches and searching goods. On alarm raised by Chandrapal, his parents went out of the house and raised hue and cry in the village, which attracted a number of villagers including Sohan Lal, Siya Ram, Khem Karan, Kedar and Mukhan. The witnesses arrived there, flashing their torches and having lantern also. When villagers challenged the dacoits, they opened fire. Tika Ram, a co-villager of the complainant also opened fire with his gun. When the villagers assembled in large number and challenged the dacoits, they ran away with the looted articles, which consisted of a wooden attache, silver and golden ornaments, clothes etc. The dacoits were seen and identified by Chandrapal, members of the family and villagers in the light of torches, lanterns, earthen lamp and electricity and they identified their co-villagers Triveni, Ram Lal and Naubat also who lived in complainant's village (Sasural) for the last several years. A written report was handed over at Police Station Ujhani next morning i. e. on 8-8-1978 at 7. 15 a. m. A case under Sections 395/397 I. P. C. at crime No. 271 was registered and three dacoits Triveni, Naubat and Ram Lal were named in the report.
(3.) CHANDRAPAL and his wife Smt. Somwati were sent to P. H. C. Ujhani for medical examination of their injuries where Dr. S. K. P. Singh, the then Medical Officer examined injuries of Smt. Somwati at 8 a. m. on 8-8-1978. He further examined injuries of CHANDRAPAL on the same day at 8. 15 a. m. The case was investigated by S. H. O. Ved Pal Singh. He interrogated Chandrapal, his mother Smt. Ladaiti, Makhan Lal and other witnesses. After inspection of the house, he prepared site-plan and collected 15 empty cartridges from the house in question and prepared Fard. He prepared a Fard recovery regarding lantern and earthen lamp. He saw torch of Babu, which was found to be in working order and prepared a Fard.;