- (1.) N. S. Gupta, J. The four accused ap pellants named above were convicted by Sri J. P. Sharma, the then Ilnd Addl. Sessions Judge, Banda, vide his judgment and order dated 16-12-1980, under Section 396, I. P. C Lalta Prasad, Ram Jiyawan and Sukhlal were sentenced to undergo R. I. for a period of five years, Sohan Lal being a young lad of tender age was let off on the basis of the period already undergone. Aggrieved by the said judgment the accused appellants came up in appeal before the Court.
(2.) DURING the pendency of the appeal Lalta Prasad and Sukh Lal had died and the report of their death was confirmed by the C. J. M. Banda as per his report dated 14-6-97. Their appeal, therefore, has abated and this appeal proceeded as against Ram Jiyawan and Sohan Lai. According to the case of the prosecution, a dacoity was committed at the house of Sri Krishana Duit Agnihotri, P. W. 1 on the intervening night of 26/27-1-79 at about 1. 00 a. m. about which a written report was promptly lodged at police station Mau, district Banda at about 4. 00 ?. m. The police station being 16 Kms. from the village of occurrence. The prosecution claimed that the dacoits were 13-14 in numbers and they were armed with guns, country made pistols, Kulhari and iron rods. They looted cash, clothes and ornaments from the house of the complainant Sri Krishna Dutta Agnihotri. After committing dacoity they made good their escape. The prosecution maintained that a lantern was burning at the house of the complainant at the time of occurrence. The faces of the culprits were seen by the complainant in the light of the torch. The villagers who collected on spot after hearing noise also set fire. Sohan Lal, Lalta Prasad, Sukh Lal, Ram Jiyawan s/o Bandhari and two sons of Bandhari whose names were not known were named as the culprits in the F. I. R. , besides 5-6 other un known persons. At the trial the accused ap pellants pleaded not guilty and maintained that they have been falsely implicated into this case due to enmity. After needful trial into the matter the learned trial Judge con victed and sentenced the accused appellants as aforesaid. Hence the appeal. I have heard Sri A. R. B. Kher, learned counsel for the accused appellant Ram Jiyawan and Sri I. M. Khan, brief holder of Sri M. B. Yadav, learned counsel for the accused appellant Sohan Lal and Sri Jitendra Singh A. G. A. for State, considered the facts and circumstances of the case.
(3.) THE conviction of the accused appel lants rests upon the direct testimony of P. W. 1, Sri Krishna Dutt Agmhotri and P. W. 2 Smt. Vidya Devi, w/o Sri Krishna Dutt Agnihotri, who both named the accused appel lants Ram Jiyawan and Sohan Lal as the culprit and supported prosecution version on the point that besides others they too have actively participated in the occurrence in question. Besides these two witnesses of fact who claimed to have been the injured in the incident in question, the prosecution examined Sri Ram Das, P. W. 3, Sri Chhabi Lal, P. W. 8, Sri Raj Kumar, P. W. 5, Sri Benchu Lal, P. W. 6 as witnesses of the fact who all stated the factum of dacoity but showed their ignorance on the point that the accused appellant Rani Jiyawan and Sohan Lal were there amongst the culprits. THEy all were declared hostile. P. W. 7 was Head Constable Bishambhar Nath, who proved chick report and G. D. report. P. W. 3 was the Investigating Officer of the case who immediately rushed to the scene of occur rence and prepared site plan Ex. 4 and saw the lantern which was burning on spot at the time of occurrence. P. W. 9 was another Sub-Inspector of police who subsequently inves tigated into the matter and had arrested Sukh Lal and Munshi Lal. P. W. 10 was Con stable Chandra Dutt Bajpai who has given evidence about Munshi Lal for keeping him Baparda. P. W. 11 Sri R. C. Dixitwas Deputy Collector Banda on 2-11-79 who conducted identification proceedings in respect of Munshi Lal and Babu Lal who were real brothers of accused appellant Ram Jiyawan. THEy were however, acquitted by the trial Court itself on the ground that the iden tification evidence as against them was not reliable. Nothing incriminating was recovered from the possession of the ac cused appellants although they were named as culprit in the F. I. R. although the Investigation Officer had rushed up to the spot immediately after lodging F. I. R. It is impor tant to note here that neither the com plainant Sri Krishna Dutt Agnihotri ncr his wife Smt. Vidya Devi who according to the medical examination report had sustained a number of injuries which are detailed below have stated any specific overt act on the part of the accused appellants:- Injuries of Krishna Dutt Agnihotri, P. W. 1. (1) A contused swelling 6 cm x 6 cm on the outer part of dorsum of left hand. Red in colour. This contused swelling was in continuation with as other contused swelling 3 cm x 3 cm on proximal phialanx of right index finger. There was feeling of creptus indicating fracture of underlying bone (2nd metacarpal bone ). Ad. X-ray. (2) A vertical contused swelling 10 cm x 6 cm on the back of lower half of left fore-arm. Red in colour. (3) A horizontal abrasion 5 cm x 0. 1 cm on the outer surface of left forearm 8 cm below the elbow joint. (4) A horizontal bruise 5 cm x 2 cm on the back of upper part of right upper arm 11 cm below the top of shoulder. (5) An abrasion 0. 25 cm x 0. 25 cm on the front of distal phalanx of right little finger. (6) An obligque bruise 7 cm x 2 cm on the front of right, forearm 10 cm above the wrist joint. Red in colour. Injuries of Smt. Vidya Devi, PW 2. (1) A horizontal bruise 6 cm x 2. 5 cm on outer surface of back of right upper arm 8 cm above the right elbow joint. Red in colour. (2) A vertical and slightly oblique bruise 9 cm x 2. 5 cm on the back of right shoulder from the back of top of shoulder upto 4 cm above the posterior superior angle of right scapula. Red in colour. (3) A horizontal bruise 10 cm. x 3 cm. on the back of right side chest from 4 cm posterior to upper and posterior and of axillae upto 3 cm. inferior to mid line at 3rd dorsal spine. Red in colour. (4) A horizontal bruise 10 cm x 2. 5 cm on back of left side chest front mid line at 7th dorsal spine upto inferior angle of left scapula. Red in colour. (5) A horizontal bruise 10 cm x 3 cm on the back of left side chest from the middle of posterior border of left scapula bone upto the upper and posterior end of left axillae. Red in colour. (6) A horizontal bruise 6 cm x 3 cm on the back of left side chest along the upper border of left scapula. Red in colour. (7) A contused swelling 10 cm x 12 cm on the left buttock. Reddish blue in colour. (8) A contused swelling 13 cm x 11 cm on the right buttock. Reddish blue in colour.;