- (1.) THIS criminal appeal, preferred un der Section 374 (2) of the Code of Crimi nal Procedure, 1973 (for brevity herein after Cr. P. C.), is directed against the judgment and order dated 24 -08 -1982, passed in Sessions Trial No. 43 of 1977, by learned Additional Sessions Judge, Dehradun, whereby appellants Fatta and Ibrahim have been convicted under Sec tion 395 read with Section 397 of the Indian Penal Code, 1860 (for brevity hereinafter I. P. C.); under Section 412 of I. P. C. and also under Section 307 read with Section 149 of I. P. C. , and each one of the appellant has been sentenced by the trial court to rigorous imprison ment for ten years under Section 3957 397 of I. P. C. ; rigorous imprisonment for five years under Section 412 of I. P. C. and rigorous imprisonment for five years under Section 307/149 of I. P. C. All the sentences are directed to run concur rently by the trial court.
(2.) HEARD learned counsel for the parties and perused the entire record.
(3.) PROSECUTION story, in brief is that FW. 2 Kewal Ram lodged a First Infor mation Report (Ext. A -6) at police sta tion, Sahaspur, District Dehradun, on 16 -02 -1977, at 9:05 P. M. , informing that at about 8:00 P. M. , when he along with his son P. W. 3 Balwant and son -in -law Rajendra Singh were in the sitting room of their house and the ladies of the family Smt. Kasturi and Smt. Bala were inside the house, some 6 -7 persons entered in the court -yard of their house. The miscreants, when interrupted by the above mate members, started beating P. W. 3 Balwant and P. W. 4 Rajendra Singh. The miscreants, thereafter, entered inside the house and committed dacoity. Inside the house Smt. Kasturi raised alarm on which one of the dacoits fired shot at her from a country made pistol and caused injuries to her. Meanwhile, Smt. Bala came out and she also raised alarm on which neigh bours Bashir, Islam and Samir and some other persons reached there. According to the prosecution story one miscreant was armed with an axe and some of them were armed with lathies. The mis creants looted a double barrel gun and 50 cartridges along with the licence from the house of informant Kewal Ram. The witnesses saw the faces of the dacoits in the light of lantern and torches. Af ter commission of dacoity the miscreants ran towards the canal. While fleeing from the scene of occurrence they fired at the tyres of taxi bearing registration No. P. N. B. /4331, parked outside the house, and damaged the same, so that the same may not be used in chasing the dacoits. The police registered the case and prepared cheek report Ext. A -20, and necessary entry was made in the general diary (espy of extract of which is Ext. A -21 ). The crime was investigated by P. W. 14 Station House "officer Narendra Singh, who immediately after receiving the information, rushed to the spot and thereafter tried to chase the dacoits but the dacoits could riot be traced in the jungle in whole of the night. Next morn ing, the Investigating Officer prepared site plan (Ext. A -11) and collected the broken glasses of taxi and lantern etc. from the place of incident. He also re covered empty cartridges and prepared memo Ext. A -12. During investigation, appellant Fatta and Ibrahim were ar rested in connection with a crime and stolen articles (Ext. 1 t& Ext. 19) were recovered from the possession of the ap pellant Fatta, while Ext. 20 to Ext. 42, and Ext. 44 and Ext. 45, were recovered from appellant Ibrahim. After identifica tion proceedings, on conclusion of inves tigation, charge sheet (Ext. A -19) was submitted against both the above appel lants. Some of the other accused were also arrested later on, and separate charge sheets (Ext A -2s arid Ext. A -26), were filed against them. They were also tried along with the Sessions Trial No. 43 of 1977. On receipt of the charge sheet, it appears that the Magistrate con cerned, after giving necessary copies to the accused persons, as required under Section 207 of the Cr. P. C. , committed the case to the court of Sessions, for trial. Learned Additional Sessions Judge to whom the case was transferred for trial, by the Sessions Judge, after hear ing the prosecution and the defence, framed charge against appellants Fatta and Ibrahim relating to the offences punishable under Section 143, 307 / 149, 395 / 397 and 412 of I. P. C. Both the appellants pleaded not guilty and claimed to be tried. On this prosecution got examined P. W. 1 S. B. Srivastava (The Executive Magistrate who con ducted the identification proceedings); P. W. 2 Kewal Ram (informant); P. W. 3 Balwant Singh (injured eyewitness); P. W. 4 Rajendra Singh (injured eyewitness); P. W. 5 Ram Swaroop; P. W. 6 Jahid; P. W. 7 Janak; P. W. 8 Naurtu (eyewit ness); P. W. 9 Constable Nawal Singh; PW. 10 Constable Sir Singh;. P. W. 11 Constable Jagdish Chand; P. W. 12 Con stable Rajendra Pal; P. W. 13 Constable Bhim Singh; P. W. 14 Station Officer Narendra Singh (Investigating Officer); P. W. 15 V. D. Sharma [another Executive Magistrate who conducted the identifi cation parade of another accused (not appellant)] and P. W. 16 Sub Inspector S. D. Yadav (co - investigating officer ). All the documentary evidence, including the medical examination report and the re covery memo and identification reports, were put to the accused persons, in re ply to which they pleaded that the evi dence adduced against them is false and they were shown to the witnesses before identification parade was conducted. The trial court, after hearing the parties, found accused Fatta and Ibrahim guilty of the charges relating to the offences punishable under Section 395/397,307/ 149 and 412 of I. P. C. and sentenced them, as mentioned earlier. However, other accused persons appear to have been found not guilty and they were ac quitted of the charges framed against them. Aggrieved by said judgment and order dated 24 -08 -1982, the convicts pre ferred this appeal before Allahabad High Court in the year 1982, from where the same is received by this Court by way of transfer, under Section 35 of the U. P. Re organization Act, 2000, for its disposal.;