Dua, J. - (1.) THESE three appeals (Criminal Appeals Nos. 196 -D, 197 -D and 207 -D of 1962) arise out of the same occurrence and are directed against a common judgment and are, therefore, to be disposed of together.
(2.) ON 13th December, 1960 a dacoity was committed at the house of Roop Chand, a land -owner, money lender and Pradhan of the village Panchayat in his village Hamidpur at about 6 P.M. Roop Chand had just returned to his house and was taking his meals on the first floor amidst the other members of his family including his father. Three of the dacoits, two of them armed with guns and one holding a torch came there but Roop Chand continued taking his meals. One of the dacoits who was at the head of the group felt: annoyed and addressing Roop Chand in abusive language gave him a kick near his right cheek at the same time remarking as to how he dared to continue taking his meals. Roop Chand was then made to stand and was asked as to where his valuables were. Roop Chand answered that they were in the house. He was pushed back and the door was bolted from outside. The dacoits then went on to the roof and warned the villagers not to come near them. They also fired some shots at random to terrorise the villagers and to scare them away. Three of the villagers, however, were also hit by these random shots. As a matter of fact, there were 10/15 dacoits in number the majority of whom actually remained in the house in the lower storey. One of them began to break open the safe and indeed the sound created thereby could be heard all over the house. The villagers, it seems, gathered up some courage and again started collecting round the place. Noticing this the dacoits at the top of the house exhorted their companions down below to rush through their job. This operation is stated to have lasted for about one hour. All the cash and jewellery from the safe were removed and some other boxes were also emptied in search of valuables. All the dacoits then went to the top of the house and escaped by passing over the roofs of the adjoining houses. Hearing the gunshots a resident of a neighbouring village is stated to have rushed to Alipur Police Station on his tractor and brought a police party with him to the scene of occurrence. In the meantime when the inmates of the house were satisfied that the dacoits had actually gone away they succeeded in loosening one of the leaves of the outer door. On coming down they discovered the extent of the loss. On the arrival of the police Piare Lal lodged a report and as a result of the investigation seven persons were sent up for trial, they being Shiv Narain, Kapura, Subedin, Majid, Sadiq, Yasin and Mangey. They were committed by Shri R.S. Dewan, Magistrate 1st Class, the first six persons under section 395/397, Indian Penal Code and the 7th one for abetment under section 395/109, Indian Penal Code. The learned Additional Sessions Judge in a fairly detailed and considered judgment dealing with the case of each one of the accused before him came to the conclusion that Shiv Narain, Kapura and Subedin (appellants in this Court) were clearly proved to be guilty under section 395, Indian Penal Code. He also found. Shiv Narain and Kapura to be armed with gun and Subedin with a lathi. Holding that the word "uses" occurring in section 397, Indian Penal Code, merely means that the offender should be armed with a deadly weapon at the time of the commission of the dacoity he sentenced all the accused persons to ten years' rigorous imprisonment. The four remaining accused persons Sadiq, Majid, Yasin and Mangey were given the benefit of doubt and acquitted. On appeal, Shri Nanak Chand has addressed me on behalf of Shiv Narain and Shri Dhanbir Singh, Advocate as amicus curiae on behalf of Kapura and Subedin. Shri Nanak Chand, the learned counsel for Shiv Narain very frankly submitted that the factum of the commission of dacoity was not being questioned by him and that the only point which in his submission arises for consideration on appeal is whether his client Shiv Narain can actually be held to have been proved to have taken part in this dacoity. In other words, the only question relates to the identity of this appellant. The learned counsel somewhat surprisingly did not press any elaborate arguments on the prosecution evidence but concentrated his attention on witnesses produced on behalf of defence. It is not disputed and indeed reliance has been placed on Shiv Narain being a history -sheeter. D.W. 6 Bhopal Singh has proved Exhibit D.P., a letter said to have been written by him and addressed to Yoginder Kumar D.W. about the arrest of Shiv Narain convict. He has deposed that Ch. Rambal Singh had informed him about this convict's arrest on 20th December, 1960. After verifying this fact he wrote a letter Exhibit D.P. Before writing this letter the witness also states to have gone to Kanth where Yoginder Kumar resides to inform him about Shiv Narain's arrest but since he could not find him there he came back and then wrote this letter. In cross -examination the witness has had to admit that he was neither related to Shiv Narain nor to Yoginder Kumar and that he had written this letter merely for the purpose of performing a good neighbourly act. He also expressed his ignorance if Rambal Singh knew either Yoginder Kumar or Shiv Narain accused. A suggestion was put to him that he had got the postal mark affixed on this letter with the connivance of some post office clerk but he denied it. It was also put to him that he was related to Shiv Narain accused and that this letter had been manufactured for being produced as evidence but as expected he controverted this suggestion as well. He, however, admitted that he had verified about Shiv Narain's arrest from Rambal Singh. Rambal has appeared as D.W. 8 and hud deposed that he had become acquainted with Shiv Narain because he used to go to Chanda village to sell his bullocks. According to him Shiv Narain was arrested on 19th December, 1962 by the police which appeared to be Punjab Police. They stated that they were taking Shiv Narain in connection with the dacoity in Hamidpur village. While getting into the police van Shiv Narain is stated to have said that if anyone could go to Kanth he should inform his relative Yoginder Kumar. In cross -examination this witness gave a poor account of his memory in regard to dates.
(3.) THE appellant's learned counsel has laid great stress on this letter Exhibit D.P. and has urged that the Court below erred in not relying on this letter. The Court below has, however, gone into the matter at some length and after considering the various aspects has come to the conclusion that the postal mark on the letter Exhibit D.P. is not conclusive and that the defence evidence is highly unimpressive. The statement of Bhopal Singh, D.W. 6 does suggest that he was trying to create evidence in the form of a letter posted by him because if Bhopal Singh had already been to Kanth where Yoginder Kumar resides to inform him about Shiv Narain's arrest, then normally speaking, a message could have been left there and there was no necessity of posting this letter. Assertion of absence of relationship between himself and Shiv Narain or Yoginder Kumar is also not without significance because as suggested in cross -examination the witness is related to the accused; and if this is true then his interest and partiality are of some importance.;