S. J. Hyder, J. - (1.) THESE are two connected appeals which are directed against the judgment of the Second Additional District and Sessions Judge, Bijnor dated 16-4-1975. By means of the said judgment and order, the two appellants have been convicted of the offence punishable under Section 396 IPC and each of them has been sentenced t(o undergo rigorous imprisonment for a period of 10 years.
(2.) THE incident giving rise to these appeals took place on 16- 7-1974 at about 11 p. m. in village Umarpur, police station Kiratpur, District Bijnor. THE first information report of the incident was lodged by Mool Chand (PW 1) at the said police station on 17-7-1974 at 3-10 a. m. In village Umarpur, one Rirhka Singh has a house which faces eastwards. In front of the said house, there is a lane towards the east. Further east to the lane, is an open piece of land, Just adjacent to the house of Rirhka Singh was his Gher. The said Gher is situated to the east of the lane which passes in front of the house of Rirhka Singh and is just north of the open land in front of this house. At the extreme end of the open land and towards its south is a tubewell. These facts are evident from the site plan prepared by the Investigating Officer Sri H. C. Saxena and had not been challenged before this Court. At the time of the occurrence, Rirhka Singh along with Rampal (PW 3) and Om Prakash were sleeping in the Gher. At the house of Rirkha Singh, his son Mool Chand complainant (PW 1) along with the ladies of the house were sleeping. The inmates of the house including Mool Chand were awakened on hearing the foot steps and the noise created by the person jumping over the tin shed in front of the rooms situated in the courtyard of the house. Mool Chand being awakened from his sleep found that about 10 or 12 miscreants were standing over the roof of the kitchen inside the house. The said kitchen is in the north western corner of the bouse. One of the miscreants who was standing over the roof of the kitchen had a gun in his hand. The other miscreant was carrying a torch light. The other miscreants who had jumped inside the house were also carrying torches and different weapons. They started ransacking the house of Rirkha Singh whereupon an alarm was raised by the inmates. On hearing the said alarm, Om Prakash and Rirhka Singh accompanied by Rampal and others advanced southwards towards the house of Rirhka Singh. They had hardly proceeded a few steps from the Gher of Rirhka Singh when two shots were fired at them. As a result of the said shots, Rirhka Singh and Om Prakash were injured. The other persons who accompanied them took the injured and retreated towards the Gher of Rirkha Singh and kept them under a thatch. There was another thatch southwards which was leaning on the southern wall of the Gher of Rirhka Singh. Rampal set fire to the said thatch. A bulb was also burning over the roof of the Tubewell and was emitting sufficient light. A lantern was burning inside the house of Rirhka Singh and with the help of the lights from different sources, the prosecution witnesses identified the miscreants who were not known to them from before. This in short is the prosecution case.
(3.) THE investigation of the case was taken up by H. C. Saxena (PW 10). He visited the spot and prepared a site plan. He was transferred on July 21, 1974. THE case was then investigated by Karan Singh (PW 11). Uma Dutt appellant was arrested near the level crossing on the Bijnor-Nagina road on September 16, 1974 at 7 a. m. by Somdutt Tyagi (PW 19). He was put up for identification on 29-11-1974. THE identification was conducted by Sri Virendra Singh, Magistrate (PW 2). Mool Chand (PW 1) and Rampal (PW 3) correctly identified Uma Dutt. At the same time, one Mushtaq was also arrested by Somdutt Tyagi. He was also put up for identification at the test identification parade on November 7,9, 1974. He was correctly identified by Mool Chand alone. Israr appellant in the connected appeal was arrested on 16th January, 1975 at 5 p. m. by S. K. Sote, S. I. (PW 17). He was sent to jail on January 17, 1975. He was put up for test identification before the same Magistrate, namely, Virendra Singh (PW 2). Mool Chand (PW 1) and Rampal (PW 3) correctly identified this appellant One Mohsinuddin was also arrested in connection with this dacoity and was put up for identification. He was correctly identified by Mool Chand alone. After completing the investigation, a chargesheet was submitted by the police against four persons, namely, Uma Dutt appellant in Criminal Appeal No. 878 of 1975 and Israr appellant in the connected criminal appeal and the other two persons Mushtaq and Mohsinuddin. The trial court recorded an order of acquittal in favour of Mushtaq and Mohsinuddin and sentenced the two appellants as stated above. They have now preferred this appeal.;