- (1.) N. S. Gupta, J. Hari Lal who was convicted in Sessions Trial No. 180 of 1979 by Sri V. N. Gupta, the then IVth Additional Sessions Judge Gorakhpur un der Section 396, IPC and was sentenced to undergo imprisonment for life and fine of Rs. 500/- and in default of the payment of the same to undergo six months further R. I. as per judgment and order dated 12-2-1980, has come up in appeal before this court.
(2.) THE prosecution case as unfolded by the first informant Hafiz (PW-4) is that on the intervening night of 30-4-79/1-5-79, he was sleeping outside his house situate in village Tendua, police station Pipraich, district Gorakahpur. Some of his family members were sleeping by his side whereas the others were sleeping inside the house. At about 11. 00 p. m. , Hafiz and his other family members woke-up on hearing the sound of gun shot. THEy raised an alarm. THE dacoits who were seven in numbers and were armed with deadly weapons like gun intimidated Hafiz (PW-4), Taj Mohammad (PW-1) Sukhari (PW-3 ). Mohd. Ali, Nabi Husain and Murtuza. THEy collected all of them at one place and four of the bandits surrounded them. THEreafter some of the bandits broke open the eastern door of the house of the com plainant Hafiz (PW-4 ). THEy entered into the house. THEre they started looting arti cles which included a trunk. THE bandits looted away wrist watch of Khalil, After committing loot inside the house of the complainant the bandits entered into the house of Murtuza and there too they committed loot and looted away a box. Hearing the nosie Phaujdar (deceased), Bhagwati, Phagu and other villagers of the nearby village of Barua reached at the spot. THEy had torches which were being flashed by them. THEy set fire to a thatch. THE prosecution claimed that the faces of the bandits were seen by the victims and the villagers in the light of torches and the flames of the fire. THE dacoits decamped with the looted property. THEy were chased by the villagers. On of the bandits opened fire near the electricity transformer. Phaujdar (deceased ). Phagu and Sukhari (PW-3) sustained a number of injuries. THE condition of Phaujdar became serious. All these three injured persons were, therefore, taken to Medical College, Gorakhpur where Phaujdar succumbed to his injuries. Hafiz (PW-4) got a report Exh. Ka. 1 written by Taj Mohammad (PW- 1 ). He took the same to the police station Pipraich in the following morning and lodged it there at 8. 10 a. m. THE police station Pipraich lay at a distance of about 4 kilometres from the place of occurrence. On the basis of the FIR Exh. Ka 1 Head Constable Lalji Yadav (PW-5) prepared Chik report and G. D. report. S. I. Jogendra Nath Singh (CW-2) who was then working as Sub-Inspector of police at police station Pipraich took up the investigation of the case. He immedi ately rushed to the scene of occurrence and there he recorded the statements of Hafiz (PW-4), Taj Mohammad (PW-1), Khalil, Murtuza, Nabi Husain, Qadir Ali, Rajman and Bhagwati. He inspected the torches of Bhagwati and Rajman Yadav and found them in working condition and prepared Suprudginama C-2 and C-3 in respect of the said torches and handed over the same to Bhagwati and Rajman. He also in spected the ash of the burnt thatch and prepared a memo Exh. C-4 about the same. He carried out a detailed inspection of the scene of occurrence and prepared site plan Exh. C-8. He also recovered two empty cartridges of '12 bore and another cartridge of 12 bore from the spot and prepared recovery memo Exh. C-5 about the same. He thereafter went to Medical College for recording the statements of the injured persons and there he was informed about the death of Phaujdar. The case was thereafter converted into one punishable under Section 396, IPC. Further investigation into the mat ter was taken over by S. I. Abhai Singh (PW-9), who was then working as Station Officer, police station Pipraich. He ar rested the accused appellant Hira Lal on 6-5-79 from near the canal of village Balewa on the basis of some secret information from an informant. He also arrested Ram Bali and recovered some looted property from his possession. He immediately made the acused appellant Baparda and lodged him in police lock-up in Baparda condi tion at about 11. 20 p. m. After necessary entries into the G. D. of police station he got a blanket placed over the lock-up of police station and directed the accused appellant to kept his identity concealed because he would be put up for identifica tion. The accused was produced before the remand Magistrate on 7-5-79 by constable Shambhu Singh (PW-6) in Baparda posi tion and after obtaining proper remand the accused appellant was lodged in the dis trict Jail Gorakhpur Baparda.
(3.) THE accused appellant was put up for identification inside the district Jail Gorakhpur on 26-5-79. Jagdeo Singh (C-1) who was then working as Executive Magistrale-cum-Deputy Collector Gorakh pur conducted the identification proceed ings. During the course of identification, Mohd. Khalik, Sukhari (PW-3), Qadir Ali, Taj Mohammad (PW-1) Ramzan and Phagu (PW-2) had correctly identified the accused appellant. After receipt of the re port of the identification S. I. Abhai Singh (PW-9) submitted the charge- sheet against the accused appellant. After committal, the case came up for trial before the Vth Additional Sessions Judge, Gorakhpur who framed charge un der Section 396, IPC against the accused appellant. The accused appellant pleaded 'not guilty1 and claimed trial. In his ex amination under Section 313, Cr PC he showed his ignorance on the factum of dacoity. He denied his participation in the commission of the dacoity in question and stated that he was arrested by the police from his house on 3-5-79 at about 8. 00 a. m. He pleaded that the police kept him at the police station for about 5-6 days and got him identified by the witnesses. He stated that his photographs were taken and that he was taken to the scene of occur rence by the police officials in a jeep. He told all these things to the Magistrate who conducted the identification proceedings. He further stated that there was a Massa on the left side of his nose. He stated that although at the time of identification that Massa was covered but the police had shown this special feature to the witnesses by fixing a chit thereon. No evidence in defence was adduced by the appellant.;