- (1.) B. K. Sharma, J. Both these appeals have been heard together as they arise out of a common judgment, dated 1-8-1985 passed by Sri P. N. Lal, the then Special Judge/addl. Sessions, Judge, Shajahanpur in S. T. No. 323 of 1984, connected with S. T. No. 368 of 1984 and S. T. No. 370 of 1984, whereby he convicted all the three accused-appellants of the offence under Section 396, IPC and sentenced them to undergo imprisonment for life and further convicted Chhotey accused-appellant and Khan Singh alias Ujagar Khan accused- appellant of the offence under Section 25, Arms Act and sentenced Chhotey accused-appellant to undergo six months R. I. for the offence under Section 25, Arms Act and sentenced Khan Singh alias Ujagar Singh accused-appellant to undergo R. I. for one year for the offence under Section 25, Arms Act.
(2.) THE prosecution story was to the effect that a dacoity took place on 1 -2. 1984 at above 7. 30 p. m. in village Kumbhia Maphi, P. S. Khutar, district Shahjahanpur, in which six dacoits participated and they looted licensed gun No. 89963 from Sunder of his brother and looted licensed gun No. 2283 from Badshah, which was of his father, that when the looting was resisted and an alarm was raised and village people were seen coming the dacoits shot Badshah dead and also injured Sunder by firing two shots; that thereafter the dacoits fled away with the looted guns and cartridges; that Rampal witness also received Lathi injuries in the occurrence, that it was moon-lit night and that Sunder died later. The assailants were identified in the moon light and in the light of torches. In another incident of dacoity at the house of Chhotey Lal, in village Kisariapur, Police Station Sehra Mau North, Chhote Lal snatched above licensed gun No. 2283 from the dacoits and deposited the same at Police Station Sehra Mau North. None of the witnesses in the present dacoity knew the dacoits from before. The usual FIR was lodged and the investigation started. During the course of investigation Vijai Bahadur accused-appellant was arrested on 25-4-1984 and made baparda and sent to jail. On 17-5-1984 accused appellant Khan Singh alias Ujagar Singh and accused appellant Chhotey both were arrested by the police party led by I. O. , K. P. Pandey. From the possession of Khan Singh alias Ujagar accused appellant afore said looted licenced gun No. 89963 was recovered and from the possession of Chhotey accused-appellant and unlicensed gun was recovered and from the possession of Ramesh accused (not an accused here) a country-made pistol was recovered. They could not produce any licence for the weapons recovered their respective possession. The identification proceedings in respect of Vijai Bahadur accused-appellant took place on 23-5-1984 at the district Jail. Therein Vijai Bahadur accused-appellant was correctly identified by all the six witnesses, namely Ram Autar, Madan Lal, Muunu Lal, Puttu Lal, Ahibaran and Rampal, who went for identification. Out of them Ram Autar (PW 1), Madan Lal (PW 2), Munna Lal (PW 4) wore produced at the trial and all of them correctly identified Vijai Bahadur accused-appellant at the trial without making any mistake, Chhotey and Khan Singh alias Ujagar Khan accused-appellant were put for test identi fication on 30-5-1984. Seven persons went to identify them. Out of them five witnesses, namely Ram Autar, Ahibaran, Madan Lal, Munna Lal and Ram Pal correctly identified these accused appellant at the identification parade without making any mistake. Out of these witnesses only Ram Autar (PW 1) Madan Lal (PW 2) and Munna Lal (PW 4) were produced at the trial, where they made positive identification of both the accused-appellants without making any mistake,
(3.) THE learned Sessions Judge held that a dacoity took place in which a murder took place on the date, time and place as alleged by the prosecution, in which Badshah was shot dead at the spot and Sunder was injured, who died later on due to his fire-arm injuries. He also placed on record corroborative fact that one looted licensed gun No. 89963 was recovered from the possession of Khan Singh accused appellant and the other looted gun was snatched in another incident in the circle of another Police Station subsequently by Chhotey Lal from a gang of dacoits who looted his house. He also believed the identification evidence given by the witnesses at the trial. He also believed the evidence of recovery made by the Investigating Officer from Khan Singh and Chhotey accused-appellants on 17-5-1984. Consequeatly he made the convictions and awarded the sentences noted aboved. There is no doubt that two licensed weapons were looted on the date, time and place alleged by the prosecution and in the course of the dacoity murder was also committed by dacoits as claimed by the pro secution.;