- (1.) THIS appeal arises out of judgment and order dated June 13, 1980, passed by Addl. Sessions Judge, Mir- zapur in S. T. No. 163 of 1979 of that Court, whereby he has acquitted the named ac cused Rang Bahadur Singh, Mangala Giri and Prem Singh (respondents 1 to 3) on the charge under Section 396, IPC.
(2.) THE prosecution case arose out of a written EI. R Exhibit Ka-31, lodged by Smt. Bhuiani Devi, P. W 4 at P. S. Chunar Distt. Mirzapur on 2-8-78 at 6. 15 a. m. THE distance of the police station is 6 miles. THE occurrence is said to have taken place in the night of 1/2-8-78. She has alleged that in the night in between 1/2-8-78 at about 11 p. m. the incident occurred. At that time she was sleeping with her hus band Rama Shankar (deceased) alongwith her child on the roof of her new house. Her father-in-law Cha Mangan his brother Somghar (both deceased) were sleeping in the varandha nearby the old house, on their cots. A lantern was burning. Her small child used to urinate and pass stool quite often in the night. THErefore, a lantern was throughout kept burning in order to safeguard his interest. Her hus band as usual was sleeping with a torch kept near by at his cot. At about 11 p. m. about 14-15 dacoits about 4- 5 carrying double barrel guns 1-2 carrying single barrel guns and other were armed with lathies, Gandasa etc. entered her old house flashing torches. THEy came near Mannan and Somghar aforesaid. THEy were asking them to get the doors opened. But they did not agree. THEy identified the culprits in the light of torches and lanterns. THEre fore, they started shouting that dacoits had come to their house. On hearing them, the complainant and her husband also got awakened and started crying. Being awakened with the cries of the deceased, husband, Mannan and Sombhar also started raising alarms. Ram Lakhan, a dis tant father-in-law of the complainant burnt pual stacked near the house of the complainant and that created flood light and the movements of the dacoits could be easily seen and the culprits were identified in this added light of burning Puals. Two dacoits over powered him (Ram Lakhan) and made him sit nearby. Hearing the alarm, Kalika (deceased), Lal Chand, Kal-loo, Chandrika, Ramji, Keshav, Mannan, Bechan, Dhanno Bechu, Gayasu, Lalji etc. of the village came there running flashing their torches and wielding their lathies. THEy started challenging the dacoits. Accused Ran Bahadur Singh, Baba Singh and Prem Singh, respondents were thoroughly identified by Mannan and Sorabhar etc. aforesaid. THE unknown dacoits were also identified in this light. Mannan and Sombhar as well as the complainant's hus band started naming the accused aforesaid. THEy requested the known dacoits to loot as they willed, but not to cause any physical injury to anybody else. THE three named accused aforesaid, who were armed with double barrel guns said that these persons had identified them. THErefore, it would not be safe to keep them as alive and thus saying, they mur dered these two persons Mannan and Sombhar on the spot. THE villagers were assembled and started hurling stones towards the dacoits. THE complainant's husband told the named culprits that he had identified them alright and in case an opportunity was available and he remained alive (sic), he would take a revenge certainly. THEre upon the dacoits broke open the houses with the help of Henga (a heavy wodden log used for levell ing the field ). 4-5 dacoits entered the old house and started ransacking the same. 4-5 dacoits were keeping a vigil from outside the house and preventing the witness from coming closure to them. Some of them were collecting the looted articles. THEy were coming out and going inside repeatedly and this thing continued for half an hour. Several other persons of the village assembled there. THE named three dacoits alongwith two others moved at the roof, where the complainant's husband was standing and shouting and they shot him dead on the spot. THE pressure of the village people went on increasing and they started chasing the dacoits. In order to ward off the witnesses, dacoits were also firing occasionally, as a result of which, Kalika Yadav, a neighbour of the com plainant, who was leading the witnesses towards chasing the accused, was shot dead by the accused. Lai' Chand, Kalloo, Chandrika, Ramji, Kesho, Mannan, Be-chan and Chanoo had received injuries from the pellets. Shyamu received lathi injuries. Some of the dacoits were wearing Banyan and Nekars. Some others were dressed in Kurta and Dhoti. Some were dressed in Bush shirts and Full Pants. Some of them were of average heights and some of them were quite small. THEy were speaking in Khari Boli in Hindi. Some of them were speaking local language. Some others were of black skins, some others were fairer. Due to fear, the dacoits could not be chased for long and the dacoits ran away after collecting the booty from the house of the complainant. THEreafter, the FIR contains the details of the ornaments and other articles looted by the dacoits. On the basis of the written FIR lodged by the complainant, Chik FIR was prepared by H. C. Awadhesh Kumar Sinha, P. W. 8 at 6. 15 a. m. (Exhibit Ka-31 ). I. O. /s. O. Sri Kedar Nath Singh, P. W. 11 was also present al the time of registration of the FIR, which bears his signature also. The case was registered by Sri Sinha and G. D. entry Exhibit Ka-32, was prepared. He also sent the special report at about 7. 30 a. m. through Constable Kalpanath Yadav and entry to that effect was made in the G. D. Exhibit Ka- 33. He also informed the higher authorities through wireless set about the occurrence and note to that ef fect was made in the G. D. The I. O. Sri Kedar Nath Singh took the investigation in his hands immediately and he rushed to the spot alongwith police force. There he reached at about 8. 30 a. m. He recorded the statements of the com plainant Smt. Bhulani, P. W. 4 and Ram Lakhan Yadav. He also learnt that Con stable Girdhari Yadav had taken 8 injured persons to Varanasi for medical treatment and investigation. He planted the inform ants to locate the accused. Ram Lakhan and Shyamu were also injured who had not been sent to Varanasi. He referred these persons alongwith Chitthi-Majrubis for medical examination. At about 9. 10 a. m. the then S. P. Sri Manager Pandey and Circle Officer Sri YN. Singh, had also arrived on the spot. The I. O. recorded the statement of Shyamu also. Panchyatnamas were prepared under his supervision, by S. I. Ran Bijai Bahadur Singh P. W. 2. He further interrogated Changu Lal and Chandrika on the spot and made an in spection of the spot with the help of Smt. Bhulani Devi and other witnesses of fact (Exhibit Ka-37 ). He collected the blood stained and ordinary earth from the spot, where the dead-bodies were lying and kept them under separate containers and sealed them and memo Exhibit Ka-38 was prepared by him. He examined the torches of the witnesses. All of them were in work ing order. After preparing Supurdiginama torches were handed over to the owners. He examined the Henga, broken locks, lanterns, broken doors, boxes and the remaining goods left by the dacoits. He prepared Supurdiginama for the same (Exhibit Ka-23 ). He collected 14 cartridges and ash and kept them in separate containers after sealing them on the spot and prepared memo (Exhibit Ka-24 ). At about 6. 30 p. m. D. I. R. Varanasi Range arrived on the spot. Thereafter, he interrogated the witnesses Bechan, Lal-loo, Budh Ram Yadav etc. On 4-8-78, he raided the houses of Prem Singh, Rang Bahadur and Baba @ Mangala Gonsai, but they were not available at their houses. The post-mortem reports were received by him. He copied them. On 5-8-78 he col lected the pellets embedded in the wall of the complainant and prepared a memo for that. The blood-stained clothes of the in jured persons were received. They were sealed and memos were prepared. He took action 'under Section 82, Cr. C. P. , on 12-8-78 against the absconding accused. There after, he went on medical leave.
(3.) THEREAFTER, P. W. 12, S. I. Ram Pal Yadav took over as S. O. Chunar on 30-8-78. On 19-9-78, he copied the post-mor tem report of Lal Chand in case diary. He interrogated the witnesses like Kalloo, Ramji, Keshav, P. W. 3 Mannan, Jawahar and Lalji. On 29-12-78, he submitted a charge-sheet Exhibit Ka-48 against the ac cused respondents only. P. W. 2 Ran Vijay Bahadur, S. I. had accompanied the I. P. , Sri K. N. Singh on 2-8-78 on the spot and he prepared the Panchayatnama of the deceased Rama Shankar and Somar only. The relevant documents have been proved by him. The dead-bodies were entrusted to Constable Girdhar, P. W. 10 for post- mortem ex amination in duly sealed condition.;