Chandra Dhari Singh, J. - (1.) The instant appeal, filed on behalf of the accused-appellants, is directed against the judgment and order dated 21.04.1998 passed by Vth Additional Sessions Judge, Unnao in Sessions Trial No. 221 of 1990 [State Vs. Mahadev and others]. The conviction and sentence of the appellants are as under: (i). Appellants no. 1, 2 and 3, namely, Gopali, Ram Kumar and Chhedi have been convicted and sentenced a follows: JUDGEMENT_198_LAWS(ALL)4_2019_1.html (ii). Appellants no. 4, 5, 6 and 7, namely, Jang Bahadur, Ganga Prasad, Shri Pal and Om Prakash have been convicted and sentenced a follows: JUDGEMENT_198_LAWS(ALL)4_2019_3.html
(2.) Facts giving rise to the present appeal may be summarized as under: (i).According to the prosecution case, on 22.04.1990 at 8.15 am, the complainant Radhey Shyam along with his cousin brother Ram Gopal son of Shyam Bihari, residing in the same house in village Pakra Buzurg, P.S. Bihar, District Unnao, went to the police station and lodged a first information report stating therein that in the intervening night of 21/22.04.1990 at about 12.00 hours some miscreants climbed over the roof from behind, opened main door and started looting the household goods, whereupon the inmates of his family raised the alarm, on which Sheo Bahadur, Raj Bahadur, Jang Bahadur, Babu Lal, Sri Krishna, Maksood, Kaushal Kumar and Bholai etc. rushed to the spot, the miscreants running with jewellery box belonging to him and his brother making firing, as a result of which, some persons received injuries. At the time of loot, miscreants Mahadev, Gopali and Ram Kumar were identified in torch light. The complainant has also stated that he has no knowledge of articles, which have been taken away by the miscreants and its list will be given later on. (ii).At this chick FIR was scribed, Case Crime No. 76 of 1990, under sections 395, 397, 412 I.P.C., was registered at police station Bihar, District Unnao Ext. Ka-1. The investigation of the case was entrusted to Sub Inspector Sri J.N. Singh, who inspected the spot and prepared the site plan of the place of occurrence Ext. Ka-4. Recovery of lantern and torch were prepared as Ext. Ka-5. Memos regarding search of accused Mahadev and Ram Kumar Ext. Ka-6 and Ka-7. Memo regarding taking in custody of box and its supurdiginama is Ext. Ka-8. Memo regarding search of shop of Sri Gautam son of Kedar Nath Ext. Ka-9. Memo regarding recovery of five packets in which 150 grams pieces of silver and in one packet 9 grams of gold jewellery and its pieces from possession of accused Mahadev, Jang Bahadur,Om Prakash, Ganga Prasad and Sri Pal is Ext. Ka-10. Site plan of the place of recovered articles Ext. Ka-11. Injury reports of Raj Bahadur, Jang Bahadur, Bholai, Smt. Nirmala, Smt. Rajeshwari, Babu Lal, Brij Raj, Ganga Sewak, Ashok Kumar, Kushal Kumar and Sri Krishna are Ext. Ka-12 to Ka-22. Identification parade held on 29.05.1990 in respect of accused Sri Pal and Om Prakash Ext. Ka-23. Identification memo of the parade in respect of Jamuna Prasad held on 18.07.1990 Ext. Ka-27. After completion of the investigation, separate charge-sheet under sections 395/397 IPC against accused Mahadev, Ram Kumar, Chhedi, Om Prakash and Sri Pal Ext. Ka-2, charge-sheet under section 395/397 IPC against accused Gopali and Jamuna Ext. Ka-3 and charge-sheet under sections 395/397/412 IPC against accused Mahadev, Om Prakash, Sri Pal, Jang Bahadur and Ganga Prasad Ext. Ka-26, were filed. Accused-appellants pleaded not guilty and claimed to be tried. (iii).The then Additional Sessions Judge-III, Unnao, on 27.11.1990 framed charges under sections 395/397 IPC against accused Mahadev, Ram Kumar, Chhedi, Om Prakash, Gopali, Sri Pal and Jamuna and against accused Om Prakash, Sri Pal and Mahadev charged separately under section 412 IPC. Accused Jang Bahadur and Ganga Prasad were charged separately under section 412 IPC, on 18.04.1991. The case was committed to the court of Sessions on 27.08.1990. (iv).In order to prove its case, prosecution examined as many as eleven witnesses. P.W.1 Radhey Shyam (complainant), P.W. 2 Ram Gopal, P.W. 3 Smt. Nirmala Devi, P.W. 4 Krishna Mohan Singh, these are the witnesses of recovery as well as witnesses of fact while P.W.5 Sub Inspector Ram Sumujh Verma, is the Investigating Officer of the case, P.W.6 Sub Inspector J.N. Singh (earlier Investigating Officer of the case), P.W. 7 Dr. S.C. Katiyar, who proved injury reports of injured Ext. Ka-12 to Ka-22, P.W.8 Ajai Deep Singh, the then Executive Magistrate, Unnao, who proved identification parade memo Ext. Ka-23. P.W.9 Constable Mohan Lal, who proed chik report Ext. Ka-24 and G.D. report Ext. Ka-25. P.W.10 Sub Inspector Ramesh Chndra Shukla, Investigating Officer, who took the investigation of this on 16.12.1990 and proved charge-sheet Ext. Ka-26 against accused Mahadev, Om Prakash, Sri Pal, Jang Bahadur and Ganga Prasad under sections 395/397/412 IPC and P.W.11 Sri M.P. Srivastava, the then Executive Magistrate, who proved identification memo Ext. Ka-27 as formal witnesses. (v).After close of the prosecution evidence, statement of the accused persons were recorded under section 313 of the Code of Criminal Procedure. They denied the prosecution allegations and pleaded that a false recovery was made against they and they have been falsely implicated in this case due to enmity. In defence no evidence either oral or documentary has been produced in support of their case.
(3.) Heard Sri Sunil Kumar, learned counsel appearing on behalf of appellants, Sri Ram Singh, learned Additional Government Advocate for the State-respondent and perused the record.;