- (1.) APPELLANTS Nawab Singh, Nathoo Singh, Hakim Singh and Ram Autar Singh have challenged the judgment and order dated 5-3-1982 of Special Judge, Budaun in S. T. No. 90 of 1980 whereby the appellants were held guilty and convicted under Section 396, IPC and sentenced to life imprisonment.
(2.) ON 23-11-1979 at about 11. 30 p. m. a dacoity was committed in the house of Sohanpal son of Ganga Singh in village Jakhupura police station Sahaswan District Budaun. In this incident his real brother Kailash and the informant himself had received serious injuries and valuable properties including ornaments, clothes, utensils and watch etc. were looted from the house. Kailash subsequently died on the account of said injuries. ON 24- 11-1979 at about 4 p. m. report of this incident was lodged at police station Sahaswan by Sohanpal Singh, P. W. 1. In this report, he named the appellants and alleged that they alongwith three unknown dacoits committed this offence. Out of the accused persons, appellant Nathoo Singh is the 'sala' of appellant Nawab Singh and is resident of village Nijampur police station Bitsi District Budaun which is 20 kilometers away from village Jakhupura. The remaining three appellants are resident of Jakhupura itself. Appellant Hakim Singh son of Collector Singh and Ram Autar son of Gajju Singh are nephews of appellant Nawab Singh. Admittedly the house of Ram Autar son of Gajju Singh is adjoining the house of Sohanpal. It is alleged that during the course of dacoity five of the dacoits made entry into the house of Sohan Pal and looted the property, remaining two, i. e. , appellant Ram Autar and Nathoo Singh were standing on the roof of the house of Gajju Singh. Ram Autar was flashing torch while Nathoo had gun in his hand who fired on the inmates of the house and particularly on the informant Sohan Pal Singh. In the FIR it was alleged that in the light of torch and lantern which was kept lighting in the house as usual, the informant, his wife Hansmukhi, brother Kailash, his wife Sarla Devi, mother Harpyari, cousin brother Sia Nand and his wife Shanti Devi and aunt Shakuntala who were present in the house had seen the faces of the dacoits and identified Nawab Singh and Hakim Singh amongst those five who committed loot in the house. Nawab Singh was carrying gun while Hakim Singh was armed with lathi. It was further alleged that informant's brother Kailash was beaten by the dacoits and was dragged out in the 'angan' where appellant Nawab Singh opened fire on him. When the informant tried to run out of his house, the appellant Nathoo Singh on the exhortation of Ram Autar fired on the informant from the roof of Gajju Singh causing fire arm injuries to Sohan Pal. Several villagers including Ati Raj Singh (brother- in-law ). Ram Pal, Om Prakash real brother of the informant, Ramveer, Hakim Singh sons of Harnam Singh and Balwant Singh also reached there and challenged the dacoits. They also flashed torches. The dacoits then took to their heels but while leaving the village, again fired few shots towards the witnesses. Jaswant Singh P. W. 3 had also reached the place of occurrence, flashed his torch and had identified four appellants amongst the dacoits. None of the dacoits, according to the prosecution story was concealing his identity by covering his faces with scarf etc. In the FIR a detailed list of 29 items was given which allegedly was taken away by the dacoits. Their split up, as per belonging of individual inmate of the house, was also mentioned. An attempt was made by the informant to explain the delay in lodging of the FIR by mentioning therein that in the night on account of fear he did not come to the police station. In the morning, the informant carrying his brother Kailash on a bullock cart accompanied by Raj Pal Singh, Ram Pal, Pradhan Jiwan, Parsadi, Jhamman and chaukidar Asharfi Lal went to the police station and lodged a written report there.
(3.) AT the police station a case was registered as Crime No. 215 of 1979 and investigation was taken up by S. I. Mahendra Pal Singh, P. W. 7. The informant alongwith his brother Kailash was sent for medical examination at PHC Sahaswan which was just across the road from police station. However, the Investigating Officer claimed that condition of Kailash was serious and before he departed for PHC, the Investigating Officer interrogated him Kailash had given statement to the effect that four appellants were identified by him amongst the dacoits. This statement is recorded in the case diary as statement under Section 161, Cr. P. C. and was relied upon by prosecution as dying declaration. When examined at PHC Sahaswan at about 4. 30 a. m. , the doctor had found that Kailash was already dead. The defence version is that Kailash had received injuries in his abdomen and his intestines were protruding out of the body and he was not in position to speak from the moment he received injuries. The defence suggestion is that Kailash had not given any statement to the Investigating Officer at the police station.;