- (1.) This criminal appeal by Satish son of Debi Prasad and Ram Singh son of Reoti, accused, is directed against the judgment and order dated 21-11-1980 passed by VIII Addl. Sessions Judge, Kanpur, whereby both the appellants have been convicted under Section 395, I.P.C. and sentenced to undergo 4 years' R.I. each.
(2.) Brief facts giving rise to the present appeal are as under :On the night between 22nd and 23/02/1979 Raja Singh, P.W. 3, was sleeping on the roof of his house while his father and brother-in-law were sleeping inside the house. At about 11.30 p.m., four miscreants came to his roof, upon which he got up and flashed his torch. Two of the miscreants caught him and threatened him to kill in case he would raise an alarm. One of the miscreants went down the roof with the aid of a Dhoti and opened the door of the stair-case. The three miscreants escorted him to the Angan (courtyard) and thereafter, his father and brother-in-law were also made to sit near him in the courtyard. All the four miscreants looted the house-hold goods of Raja Singh. However, in the meanwhile, the father of the complainant managed to run away and raised an alarm, which attracted Vishram Singh, Chhidda, Bhikari, Suresh, Arjun and others to the place of occurrence. A lantern was burning in the courtyard, while the witnesses, named above, had torches with them. Thereafter the dacoits ran away towards south. Further that the miscreants had earlier entered the house of the uncle of the complainant and had looted his property and thereafter they had come to his house. Cash and ornaments of the complainant were taken away by the accused. The F.I.R. (Ext. Ka-1) was lodged by Raja Singh, complainant, on 23-2-1979 at 8.00 a.m. at Police Station Rasulabad, which is at a distance of 9 miles from village Indauti, where the complainant lives and the dacoity was committed. A Chick report (Ext. Ka-8) was prepared at the police station by Head Constable, Chandra Kesh Singh, P.W. 8, and a case under Section 392, I.P.C. was registered. The investigations of the case were taken up by S. I. Vijay Bahadur Dubey, P.W. 7, who inspected the place of occurrence on 24-2-1979 and prepared site plan, Ext. Ka-3. He examined the witnesses as also the lantern and torch of the complainant and the torches of the other witnesses. Subsequently, the case was converted into one under Sections 395/397, I.P.C. The investigations were later on taken over by S.O. Inam Chand, P.W. 9, on 10-4-1979.
(3.) Satish, accused, was arrested on the night between 23rd and 24/07/1979 at 3.15 a.m. from his house in village Anser. He was later on put to identification and was correctly identified by the complainant as well as Bhikhari, P.W. Ram Singh was arrested on 22-9-1979 at Bus-stop of village Usri and was put to identification. He was identified by the complainant, Bhikhari, Vishram Singh, Chhidda, Suresh and Lalla Singh, P.Ws. After completion of the investigations, charge-sheet (Ext. Ka-6) was filed against both the accused in the Court of Judicial Magistrate, Derapur, who committed the case to the Court of Sessions.;