- (1.) THIS criminal appeal, under Section 374 (2) of the Code of Criminal Proce dure, 1973 (hereinafter referred as Cr. P. C.), has been preferred by the ap pellant against the judgment and order dated 26-04- 1984 passed by Ilnd Addl. Sessions Judge, Nainital in Sessions Trial No. 42 of 1983, State Vs. Ram Gopal @ Gopal Singh and Pritam Singh, whereby the learned II Additional Ses sions Judge convicted the appellant un der section 395 I. P. C. and has awarded a sentence for five years rigorous impris onment.
(2.) IN brief, the prosecution story is that on the intervening night of 12/13-11-1982, the complainant, his father Sri Parmanand and younger brother Madan Lal were sleeping in the house along with their families. A lantern was burning in the verandah of the house and the door in the western boundary was lying opened. The parents of the complainant Krishan Kumar, his sister Darshan Rani and Pushpa Rani W/o Madan Lal were sleeping in the verandahs of the houses. At about 11:00 p. m. , some persons re moved the wristwatch from the wrist of the Sri Parmanand - father of the com plainant and thereafter he at once got up and raised an alarm. The complain ant, who was sleeping in the kitchen, also got up on hearing the alarm and saw through the grill of the window of the kitchen that about 8 to 10 dacoits were in the verandah of the house. Out of them, two dacoits who were armed with guns went on the roof of the house through the stairs. The others, got re moved the jewelry worn by the mother and sister of the complainant and wife of Madan Lal under threat. After that, the dacoits broke the door of the room in which Madan Lal was sleeping and entered in that room. The dacoits caught Madan Lal and asked him about the whereabouts of valuables. Madan Lal raised an alarm and when he started running, one dacoit made a fire shot hitting Madan Lal and he fell down. On it, the complainant Krishan Kumar also made fire shots from his licenced gun. The dacoits started to loot the property belonging to complainant after breaking open the almirah and boxes. The ladies of the house somehow managed to run out of the house and they raised alarm in the village. Thereafter, Shanoo Ram came there and made fire shots by his licensed gun. The dacoits were making fire shots and calling loudly" (Hindi) Chaudhary Ram lit fire in the Puallying in a heap outside the boundary wall of the house towards western northern corner. The dacoits also threatened the complainant and said " (Hindi) The complainant also sustained fire injuries in this incident. The fire shot made by complainant also hit one of the dacoits, so they ran away from the northern door of the house along with looted property. Witness Chaudhary Ram, Shanoo Ram, Diwan Chandra and Babu Ram etc. came on spot and identified the dacoits in the light of burning Pual. The complainant and his family members also identified the dacoits in the light of the torches and lantern. The accused Ramggpal and Pritam Singh were among the dacoits. The injured Madan Lal and Krishna Kumar were then medically examined and Madan Lal was admitted in hospi tal. The report of the incident was then lodged at police station by Krishna Kumar which is Ex. Ka-3. On the basis of this written report, the Head Moharrir Har Pal Singh prepared a Chik Report i. e. Ex. Ka-15 and on the basis of writ ten report, G. D. report Ex. Ka-16 was then prepared by him and that G. D. re port Ex. Ka-16 were duly proved by P. W. 5, Shri Ajai Pal Singh by his state ment who is the INvestigation Officer of the case. After the incident, the injured Madan Lal was medically examined by the Dr. Ashutosh Mishra on 13- 11-1982 at 12. 50 A. M. in Combine Hospital, Jaspur and his injury report was marked as Ex. Ka-1. Krishna Kumar, the another injured person was also medically exam ined at the same hospital on 13-11-1982 at 12:30 A. M. and his injury report is marked as Ex. Ka-2. Thereafter, the F. I. R. Ex. Ka-3 was lodged by the complainant Krishna Kumar at Police Station, Jaspur at 1:45 A. M. on 13-11-1982. After that, the Investigation Officer inspected the spot, recorded the statements of wit nesses and prepared the site plan. The Investigation Officer has also prepared a Fard for taking the Lantern in his cus tody and Supurdginama and that Fard is Ex. Ka-4. He has also prepared a Fard for taking the blood stained Baniyan of Krishan Kumar which was marked as Ex. Ka-5. He has also prepared a Fard for taking out the four doors in his posses sion and given his Supurdgi and the Fard was marked as Ex. Ka-6. The I. O. has also prepared a Fard for taking out 'paraat and Kanaster' having pallet holes and D. B. B. L. Gun and Supurdginama and that have been marked as Ex. Ka-7. The memo of Torch, Khokas, Pallets, Tiklis and Bul lets have been marked as Ex. Ka-8 by the I. O. for preparing the Fard and the memo of Ash has been marked as Ex. Ka-9. The site plan inspected by the I. O. has been marked as Ex. Ka-10. The I. O. also prepared a Fard relating to taking out of the blood stained clothes of injured Madan Lal and that have been marked as Ex. Ka-11. He has also in spected the broken doors and has pre pared the Fard and Supurdginama, Ex. Ka-12. During the investigation, he has recorded the statement of the wit nesses and after investigation, he sub mitted charge-sheet i. e. Ex. Ka-13 against Pritam Singh accused and against Ram Gopal and that charge-sheet has been marked as Ex. Ka-14. The Munsif Magis trate, Kashipur after completing the proc ess under Setion 207 Cr. P. C. has commit ted the case to the court of Sessions. The learned II Additional Sessions Judge has framed the charge under Section 395/397 of I. PC. against, the present application Pritam Singh and other accused Ram Gopal. He pleaded not guilty and claimed to be tried, therefore, prosecution was directed to adduce its evidence. In support of his case, the pros ecution has examined as many as five witnesses. PW. l is Dr. Ashutosh Mishra, who has medically examined the injured persons Krishna Kumar and Madan Lal. He has stated that on 13-11-1982, he was posted in Combine Hospital, Jaspur and on the same day on 13-11-1982 at 12:50 A. M. , he examined Madan Lal S/ o Parmanand and he found the follow ing injuries on his body : 1. Multiple pallet wounds over an area 10cm x 11cm. , 3cm poste rior to right interior superior iliac bone over lying the iliac crest on the right side. Each punctured wound is circular in diameter 0. 5cm. Fresh bleeding present. Blackening present at the center of the injured area. 2. Abrasion 2 cm. x 1cm,, 4cm be low and lateral to the right nip ple. Fresh bleeding present. The doctor has also stated that the Injury No. 1 is possible by firearm in a close range and the injury No. 2 is pos sible by some blunt weapon and he has, proved the Medical Report Ex. Ka-1.
(3.) DR. Ashutosh Mishra, P. W. l also medically examined Krishna Kumar-P. W. 2 on 13-11-1982 at 12:30 A. M. and he found the following injuries on his body : 1. Punched out. Pallet wound. 12v2 cm below and lateral to right nipple over the chest wall. Fresh bleeding present. 2. Punched out pallet wound over the dorseum of left wrist 6cm. in front of wrist joint. Fresh bleeding present. 3. Punched out pallet wound over the lateral aspect of the middle phaling of the middle finger of left hand. Fresh bleeding present. 4. Injuries caused by pallets of gunshots. Fresh in duration. Sim ple in nature. The doctor has also proved the medical report Ex. Ka-2. The doctor has also stated that the injury on both the injured persons are caused to be possible on 12-11-1982 in the night at 11:00 P. M. He has also stated that the general condition of the Madan Lal was poor.;