Kaushal Jayendra Thaker, J. - (1.) By way of this appeal, the accused-appellants have felt aggrieved by conviction rendered in Sessions Trial No.10 of 2010 arising out of Case Crime No.43 of 2009, passed by Additional Sessions Judge, Court No.1, Allahabad, vide judgment and order dated 3.4.2013, convicting the appellants under Sections 396, 412 of Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.'), Police Station-George Town, District-Allahabad.
(2.) The facts as culled out from the record are that the investigation was moved into motion when PW1 was conveyed that the residence of Dr. Deepa Jain w/o Pramod Kumar Agrawal, in Charan Mani Road, in the jurisdiction of Police Station George Town, on 28.1.2009 at about 3:00 p.m. was locked. PW1 received a phone-call from Upendra Sharma, who is a friend of the deceased, who conveyed that the house of Dr. Deepa Jain was bolted and nobody was answering the telephone calls. PW1 along with his driver went to the residence of deceased. PW1 was the real brother of the deceased Dr. Deepa Jain. When they reached the place of incidence, it was closed and the news-paper was lying outside the door and the room was closed. The driver was asked to go up on the first floor. The driver broke open the door. When the driver went up and came down and opened the door, the said witness along with Upendra Sharma and PW1 came in the house. The door was opened and all the three deceased persons were seen in pool of blood. The articles in the said room were lying halter skelter and valuables were missing. In this regard, report was lodged against unknown people. The police authorities came to the place of incidence and drew the map. The inquest report of the dead bodies was made and they were sent for post-mortem. Certain articles, namely, chappals, a half smoked bidi, Raj Shree Gutka, that is how the panchnama of the place and articles were prepared. This incidence occurred on 28.1.2009. After about four days, a message came to the Police Personnel from their informer that some people were seen at the banks of river Yamuna in doubtful condition with certain ornaments, certain foreign currency and other valuable items. On receiving the message, the police authorities cordoned the accused, out of several persons, three persons were cordoned and recovered valuables as also foreign currency, by preparing Panchnamas. The main gang-leader was never nabbed.
(3.) Case under Sections 394, 302, 396 and 411 of Indian Penal Code was registered and charge-sheet thereafter was filed under Section 396 read with Section 412 of I.P.C against the accused and other unknown assailants. The PW11 has categorically conveyed in his oral testimony that during the investigation, names of other accused were also revealed. They tried to search the said accused and they arrested Jodan, Sunil and Rajesh and they formed teams to nab the absconding accused. They had on 21.4.2009 arrested accused Shera, Chakori and Bablu under Section 396 read with Section 142 of IPC. He has not scribed in writing any statement of any of the witnesses. No question was asked to him whether and how the names of other accused were disclosed. Similar is the version of PW5 and PW12. PW5 very categorically in his examination-in-chief has submitted that people of ghumantu community, who had come to the Magh Mela had started going but three people were present and they were about to leave the place and at that time they were nabbed and, therefore, from this evidence the case was altered from Sections 392 and 302 to Sections 396 and 412 of IPC, while submitting the charge sheet before the Magisterial court against the name of accused.;