V.N.Varma, J. - (1.) THIS is an appeal from the judgment and order of Sri R. B. Srivastava, Additional Sessions Judge, Allahabad by which he convicted appellants Dadua, Bachaiya, Ram Nath, Dukhi and Ram Autar under Section 395 IPC and appellants Kripal and Gajwa under Section 395/397 IPC and sentenced the former to seven years' RI each and the latter to eight years' RI each.
(2.) BEFORE I dwell on the facts of the case I may mention at this very place that three of the appellants, namely, Dadua, Bachaiya and Gajwa have died. Their appeal, therefore, abates. One Surajpal is a resident of village Bidaun, P. S. Karari, district Allahabad. Baijnath (PW 4) and Raja Ram (PW 9) are his sons. On the night of 17/18-10-1971 Surajpal, Baijnath and Raja Ram had been sleeping in their Chaupal while their womenfolk had been sleeping inside the house. A lantern had been burning at the main door as usual. At about midnight, Surajpal woke up to make water. To his surprise, he saw some dacoits armed with lathis, Ballams and Kantas standing near the door of his house. Soon thereafter he saw some dacoits on the roof of his house. Sensing danger Surajpal raised an alarm. His sons Baijnath and Raja Ram immediately woke up and they rushed out of the house. They went to the village and woke up the villagers. By this time the dacoits had entered into the house and had opened the main door. Those dacoits who were outside also formed their entry into the house. All the dacoits then started looting the house While the looting was still going on, the villagers carrying torches and armed with lathis collected near the house of Surajpal. Raja Ram (PW 9) stepped forward and set fire to a heap of Piyara kept towards north-east of his father's house. It started burning and made the entire locality aglow. The villagers took courage and pressed on the dacoits and there was a regular encounter between them. Some of the dacoits had Dhatas on their faces and those Dhatas fell down during the course of scuffle. They were known people and the villagers had no difficulty in recognizing them. They were Dadua, Bachaiya, Gajwa (all dead), Ram Nath and Kripal. Some of the dacoits were unknown and the villagers recognised them in the light of torches and in the light of burning Piyara. In the encounter the villagers killed two dacoits. They were Bulla and Gaya Prasad of village Bais- kanti. Finding their two companions killed, the dacoits got panicky and made good their escape. After the dacoits had run away, Surajpal got a report written out by Basant Bahadur Singh (PW 1). Basant Bahadur Singh took that report to Thana and lodged it there at 7- 45 A. M. S. I. Shyam Kishore Tripathi was present at the Thana when the report was made. He immediately took charge of the investigation and recorded the statement of Basant Bahadur Singh. Thereafter, he went to the spot. At the spot he recorded the statements of the material witnesses a nd saw the torches of those villagers who had flashed them on the dacoits at the time of the dacoity. He found them to be in working order. Thereafter, he inspected the locality and drew the site plan Ek. Ka-28. He found some ash of burnt Piyara near the house of Surajpal and took a part of it in his possession. Having done that he busied himself in searching out the miscreants. On 10-11-1971 S. I. Suresh Bahadur Singh (PW 13) arrested appellants Dukhi and Ram Autar. He made them Baparda and took them to P. S. Karari. On that very day both these persons were sent to Jail in Baparda condition. Later on, the persons named in the report were also arrested.
(3.) APPELLANTS Dukhi and Ram Autar were put up for identification in Naini Central Jail on 7-1 - 1972. Their test identification parades were conducted by Sri Shitla Prasad, Magistrate First Class. After receiving the results of identification and after completing the investigation, the Investigating Officer submitted a charge sheet against the appellants.;