J.M.L.Sinha, J. - (1.) THESE appeals arise out of the judgment and order dated 8th September, 1973 passed by First Civil and Sessions Judge, Allahabad, convicting all the appellants of the offence under Section 396 IPC and further convicting Sheo Kumar appellant of the offence under Section 412 IPC. For the offence under Section 396 IPC, all the appellants have been sentenced to life imprisonment and for the offence under Section 412 IPC, Sheo Kumar appellant has been sentenced to four years' further RI.
(2.) THE prosecution case briefly stated was as follows: - "On 16th June, 1968 at about 7.30 P. M., a dacoity was committed at the house of Kamla Prasad (PW 1) in village Saraidina, police station Soraon, by the inmates of the house, a number of persons living near about assembled on either side of the house of Kamla Prasad. Ram Ji (PW 3), who is real brother of Kamla Prasad and was present in the flour mill situate in the west of Kamla Prasad's house, set fire to a heap of Arhar sticks that were lying there at a distance of about 10 paces to the west of the main door of the house of Kamla Prasad. That created brilliant light. It is also alleged that some of the witnesses who had assembled as well as the dacoits possessed torches which they flashed. Another source of light alleged is the light of lantern. It is said that it was burning at the main door of Kamla Prasad's house and Diya was ,also burning at the temple situate to the north of Kamla Prasad's house. THE dacoits beat Babu Lal in order to extract information regarding valuable inside the house. On getting an opportunity, Babu Lal started running away but he was shot at as a result of which he fell dead some distance away from the house. Having plundered the house for about 45 minutes, the dacoits made good their escape along with the looted property." A report about the occurrence was lodged by Kamla Prasad PW 1 at P. S. Soraon the same night at about 11. 30 p. m. distance of six miles intervened between the place of occurrence and the police station. A case under Section 396 IPC was registered on the basis of that report and usual investigation followed. The post mortem examination on the dead body of Babu Lal was performed by Dr. K. C. Gupta on 18-6- 1968, at about 11.15 a.m. According to the findings of the doctor, the deceased had 9 antemortem external injuries. Injury no. 9 was a result of gun shot. On internal examination, the doctor found that the 8th and 9th ribs on the left side were fractured. Left lung was lacerated under the external injury. The cause of death, in the opinion of the doctor, was shock and haemorrhage.
(3.) ON the night between 24th and 25th September, 1968, Mahendra Singh S. I. PW 42 effected arrest of Tirsu and Indra Pal appellants. Evidence has been led to show that they were made Bupardah immediately after their arrest and they were kept in that condition till they were admitted in jail. Lal Bahadur, Sheo Kumar, Mahadeo and Bhola appellants were arrested by B. S. Roy, S. I. PW 48 and D. B. Mehta PW 45 on 26th October, 1968 at 8.30. P.M. from the shop of Mahavir Halvvai. ON at search being taken, Lal Bahadur appellant was found in possession of a D.B.B.L. gun No. 07075 besides some live cartridges. Sheo Kumar appellant was found in possession of a D.B.B.L, gun no. 8288 besides some cartridges. This is the same gun which had been looted from the house of Kamla Prasad. Mahadeo appellant was found in possession of a country made pistol besides some cartridges. It is allged that at the time of his arrest, Mahadeo appellant threw away some bundle and from inside that bundle, the police recovered two guns Nos. HOKE 172/180, B.S. 123/185. Bhola appellant was found in possesion of a S.B.B.L. gun No. P. 927 which also carried No. P.H.I.M. 0470 at another place. He was also found in possession of some live cartridges. All the articles recovered from the possession of the aforesaid appellants were sealed at the spot and memoes were prepared in evidence thereof. Evidence has been led to show that Lal Bahadur, Sheo Kumar, Mahadeo and Bhola appellants were made Bupardah immediately after their arrest and remained so till they were admitted in Jail, and the property recovered , from them also remained in sealed condition. Chhutai and Bhai Lal (now dead) were arrested by B. S. Roy PW 48 on 27th July, 1968 at 6 a.m. in an encounter in village Shikra District Pratapgarh. Evidence has been led to show that they were made Bupardah immediately after their arrest and were kept in that condition till they were admitted in jail.;