- (1.) UMESH Chandra, J. These are three connected appeals, namely. Criminal Appeal No. 789 of 1978, Criminal Appeal No 883 of 1978 and criminal appeal No. 1050 of 1978, directed against a judgment and order dated 15-3-1978. passed by II Additional Judge, Ghazipur, convicting and sentencing all the four appellants to five years rigorous imprisonment under Section 395,i. P. C.
(2.) THE case relates to the commission of a dacoity at the house of Sheo Shanker Tiwan in village Sakkaput. police station Mardah District Ghazipur in the night between 5th and 6th May, 1975. According to the prosecution at about 12 o'clock in the night some 30 dacoits out of whom one was armed with a gun, the other with a knife and the remaining with lathis entered the house of Sheo Shanker Tiwari. THEy had also torches with them; It is alleged that she lighted lanterns were kept at the door of the house and the baithaka. THE dacoits entered the house through the northern gate of the house and then reached Sehan where Sheo Shankar Tiwari (PW 9), Tribhuwan Nath Tiwari (PW 2), Gauri Shanker Tiwari (PW 1) and Mahendra Tiwari (PW 10) were sleeping. THE dacoits started tying them to their cots. Sheo Shanker Tiwari however, managed to escape. He ran towards the village raising an alarm. THE dacoits removed one of the door leaves of the door of the Zenana house and entered inside it. Some of them kept standing in the sehan near the costs of Sheo Shanker Tiwari and others, who had been tied and they were continuously threatening them. Some residents of the village came near the house of Sheo Shanker Tiwari but the dacoits fired a shot at them as a result of which the villagers ran away out of fright, but they kept on raising alarms from a distance. THE enqire house was ransacked cash clothes and jewellery kept in the boxes were looted. THE ladies of the house ran towards the village out of fear. THEse villagers who had collected there were flashing their torches. As the dacoits came out of the house with the looted property, they assaulted Gauri Shanker Tiwari and Mahendra Tiwari with lathis. After committing the dacoity the dacoits managed to run away to the southern side of the village. Munna Passi son of Sakaly Passi, a resident of the same village was recognised. THE other dacoits were not named in the report but it was alleged that their faces were very well seen in the light of the torches and lanterns. A report of the occurrence was lodged by Sheo Shanker Tiwari at police station Mardah on 6-5-1975 at about 7. 05 a. m. , the place of occurrence being about one mile from the police station. Monu appellant has been named in the first information report. The prosecution case against rest of the appellants is based on the performance of the prosecution witnesses in the test parade. Shanker Saran Upadhya (PW 12) was the Thana Incharge, Mardah, Rajnath and Mahatim appellants were arrested by him on 28-8-1975 and on 7-9-75 he made a report that they be put up for identification. Mohd. Jamal Khan (PW 15) was constable Moharrir at police station Birno when on 10-9-1975 he arrested appellant Ram Janam at the culvert of Alawapur and brought him Baparda to Thana Birno where he was lodged. He was taken to jail on 11-9-1975. These three appellants were put up for identifica tion on 15-10-1975, the identification parade being held by Sri B. B. Singh (PW 14) Ram Janam was correctly identified by Sheo Shanker Tiwari (PW 9) and Mahendra Tiwari (PW 10) and Tribhuwan Nath Tiwari (PW 2 ). All the three appellants were correctly identified by Mahendra Tiwari (PW 10) and Tribhuwan Nath Tiwari (PW 2:. After a report of the identification parade was received by the Investi gating Officer, who in the meanwhile had interrogated the other witnesses and prepared a site plan, he submitted a charge-sheet against all the appellants leading to their trial.
(3.) IT may be mentioned that Mahendra Tiwari and Gauri Shanker Tiwari were examined by Dr. Sugriva Singh (PW 7 ). Sri Mahendra Tiwari had a lacerated wound on the right side of the forehend, multiple abrasion and one contusion while Gauri Shanker Tiwari had two contusions and one abrasion. In support of the prosecution case Gauri Shanker Tiwari (PW 1) Tribhuwan Nath Tiwari (PW 2) Sheo Shanker Tiwari (PW 9) and Mahendra Tiwari (PW 10) who had identified the appellants in jail were produced, the testimony of other witnesses is of formal nature. Believing their testimony, the Additional Sessions Judge convicted and sentenced the appellants as mentioned above. Aggrieved, the present appeals have been filed which have been heard together and are being disposed of by this judgment. There is no doubt that a dacoity was committed at the house of Sheo Shanker Tiwari of village Sakkapur in the night between 5th and 6th May 1975. The prosecution has deposed about the factum of dacoity and they have not been seriously cross-examined on this point. A report of the occurrence was lodged promptly. In the commission of the dacoity the miscreants had assaulted Mahendra Tiwari and Gauri Shanker Tiwari both of whom were medically examined at 7. 50 a. m. and 7. 45 a. m. respectively on 6. 5-1975, i. e. , soon after the occurrence. Inquiry No. 1 cause to Gauri Shanker Tiwari, i. e. contusion with traumatic swelling on the lower part of left arm was kept under observation as facture was suspected. The learned Additional Sessions Judge was, there fore, justified in finding that the factum of dacoity has been fully established by the prosecution.;